Scoma's of Sausalito, LLC, 20-CA-116766

• Court: National Labor Relations Board
• Citation: 362 NLRB No. 174
• Docket Number: 20-CA-116766
• Parties: SCOMA' S OF SAUSALITO, LLC AND UNITE HERE, LOCAL 2850
• Decision Date: 21 August 2015

362 NLRB No. 174

SCOMA' S OF SAUSALITO, LLC AND UNITE HERE, LOCAL 2850

No. 20-CA-116766

United States of America, National Labor Relations Board

August 21, 2015

BY MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN

DECISION AND ORDER

On February 23, 2015, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, and the Respondent filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, ^[1] and conclusions^[2] and to adopt the recommended Order as modified and set forth in full below.^[3]

ORDER

The National Labor Relations Board orders that the Respondent, Scoma's of Sausalito, LLC, Sausalito, California, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Withdrawing recognition from UNITE HERE, Local 2850 (Union), and failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of unit employees.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Recognize and, on request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:

All servers, cooks, dishwashers, bartenders, hostesses, and bussers, excluding all other employees

(b) On request of the Union, adhere to the terms and conditions set out in the expired collective-bargaining agreement honored through September 30, 2012, giving effect to its terms retroactive to October 31, 2013, and continuing those terms and conditions in effect unless and until changed through collective bargaining with the Union.

(c) Make unit employees whole for any loss of earnings and other benefits suffered as a result of the Respondent's repudiation of the collective-bargaining relationship, in the manner set forth in the remedy section of the decision.

(d) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file a report with the Social Security Administration allocating the backpay to the appropriate calendar quarters.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(f) Within 14 days after service by the Region, post at its Sausalito, California facility, copies of the attached notice marked “ Appendix.” ^[4] Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 31, 2013.

(g) Within 21 days after service by the Region, file with the Regional Director for Region 20 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

Kent Y. Hirozawa, Member; Harry I. Johnson, III, Member; Lauren McFerran, Member

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

WE WILL NOT withdraw recognition from, and fail and refuse to recognize and bargain with, Unite Here Local 2850 (Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above.

WE WILL recognize and, on request, bargain with the Union as the exclusive collective-bargaining representative of our employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:

All servers, cooks, dishwashers, bartenders, hostesses, and bussers, excluding all other employees

WE WILL, on request of the Union, adhere to the terms and conditions set out in the expired collective-bargaining agreement honored through September 30, 2012, giving effect to its terms retroactive to October 31, 2013, and continuing those terms and conditions in effect unless and until changed through collective bargaining with the Union.

WE WILL make you whole for any loss of earnings and other benefits you have suffered as a result of our repudiation of the collective-bargaining relationship.

WE WILL compensate you for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file a report with the Social Security Administration allocating the backpay to the appropriate calendar quarters.

SCOMA' S OF SAUSALITO, LLC

The Board's decision can be found at www.nlrb.gov/case/20-CA-116766 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.

Sarah M. McBride, Esq., for the General Counsel.

Diane Aqui, Esq., for the Respondent.

Elizabeth Hinckle, Esq., for the Charging Party.

Glen M. Taubman, Esq., special appearance for limited purpose of seeking intervention on behalf of Georgina Canche, Decertification, Petitioner.

DECISION

MARY MILLER CRACRAFT, ADMINISTRATIVE LAW JUDGE.

STATEMENT OF THE CASE

Scoma's of Sausalito, LLC (Respondent) unilaterally withdrew recognition from UNITE HERE Local 2850 (the Union)^[1] on October 31, 2013.^[2] At issue in this postwithdrawal refusal to bargain case is whether the Union had actually lost support of a majority of the bargaining unit employees on that date. Levitz Furniture Co. of the Pacific, Inc., 333 N.L.R.B. 717 (2001)(overruling Celanese Corp., 95 N.L.R.B. 664 (1951), and holding that, “ an employer may unilaterally withdraw recognition from an incumbent union only when the union has actually lost the support of the majority of the bargaining unit employees.”) I find that Respondent has not shown by a preponderance of the evidence that the Union had lost majority support on the date of withdrawal.

The unit consisted of 54 employees at the time of withdrawal of recognition. Respondent relied on a petition signed by 29 unit employees to support withdrawal. There is no dispute that the signatures were valid and there is no evidence of supervisory taint. However, unknown to Respondent at the time, six of the signatures it relied upon in withdrawing recognition had been revoked. I find that the revocations were uncoerced. The revocations reduced the valid decertification signatures from 29 to 23 with the remaining 31 unit employees, a majority, presumed to support the Union. Thus the Union had not actually lost majority support at the time of withdrawal of recognition. Accordingly, I find the violation as alleged.

On the entire record, including my observation of the demeanor of the witnesses, ^[3] and after considering the briefs^[4] filed by counsel for the General Counsel, counsel for the Union, and counsel for the Respondent, the following findings of fact and conclusions of law are made.

Jurisdiction and Labor Organization Status

Respondent admits and I find that it meets the Boards retail jurisdictional standard^[5] and that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent further admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Thus this dispute affects interstate commerce and the Board has jurisdiction of this case pursuant to Section 10(a) of the Act.

Collective-Bargaining Relationship

Since at least 2000, Respondent has recognized the Union as the Section 9(a)^[6] exclusive collective-bargaining representative of an appropriate Section 9(b)^[7] unit of “ All servers, cooks, dishwashers, bartenders, hostesses, and bussers, excluding all other employees.” This recognition has been...