Scoma's of Sausalito, LLC

National Labor Relations Board - Administrative Judge Opinions

Feb 23, 2015

20-CA-116766 (N.L.R.B. Feb. 23, 2015)

JD(SF)–04–15
Sausalito, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
SCOMA’S OF SAUSALITO, LLC
and Case 20–CA–116766
UNITE HERE, LOCAL 2850
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
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge: 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 post-withdrawal 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, 333 NLRB 717 (2001) (overruling Celanese Corp., 95 NLRB 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Respondent at the time, six of the signatures it relied upon in withdrawing recognition had been
revoked.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.

1 The Union filed the underlying unfair labor practice charge on November 12, 2013. Complaint
issued on April 22, 2014. Hearing in San Francisco was held on November 4‒5, 2014.
2 All dates are in 2013 unless otherwise referenced.
JD(SF)‒04‒15
2
On the entire record, including my observation of the demeanor of the witnesses,3 and
after considering the briefs4 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.
5
JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits and I find that it meets the Boards retail jurisdictional standard5 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 10
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
15
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 embodied in successive collective-bargaining agreements, the most recent of which was
effective through November 18, 2008. An unsigned, ratified agreement was honored from 2010 20
to September 30, 2012 as to wage increases, health insurance, and other substantive terms. There
has been no further collective-bargaining agreement between the parties although the Union

3 When necessary, credibility resolutions have been made based upon a review of the entire record
and all exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have been
utilized to assess credibility. Testimony contrary to my findings has been discredited on some occasions
because it was in conflict with credited testimony or documents or because it was inherently incredible
and unworthy of belief.
4 Following simultaneous filing of post-hearing briefs on January 13, 2015, Respondent filed a
supplemental citation of authority on February 2, 2015. The General Counsel moved to strike the
supplemental citation of authority. Having fully considered this matter, I grant the General Counsel’s
motion to strike Respondent’s supplemental citation of authority. Respondent’s supplemental citation is to
authority it asserts supports a proposition argued in the original brief. I find the authority unhelpful as it
does not clearly support the proposition for which it is cited. More importantly, I note that the issue for
which the authority was cited was ultimately not relevant to my determination.
5 The Board asserts jurisdiction over all retail enterprises which fall within its statutory jurisdiction
and have a gross annual volume of business of at least $500,000. Carolina Supplies & Cement Co., 122
NLRB 88 (1958).
6 Section 9(a) of the Act, 29 U.S.C. §159(a), provides in relevant part, “Representatives designated or
selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate
for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of
employment.”
7 Section 9(b) of the Act, 29 U.S.C. §159(b), provides in relevant part, “The Board shall decide in
each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed
by this Act . . . the unit appropriate for the purposes of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof . . . .”
JD(SF)‒04‒15
3
requested bargaining on October 28. The parties stipulated that as of October 31, the unit
consisted of 54 employees.
DECERTIFICATION PETITION
5
On October 28, the same day the Union requested bargaining, Respondent received a
decertification petition entitled “Petition for Decertification (RD) – Removal of Representative”
which had been circulated by employee Georgina Canche (Canche). On the following day,
Canche filed the same petition with the NLRB.8 The petition was signed by 29 of the 54 unit
employees on dates between September 26 and October 28. 10
The decertification petition form was in English only. However, Canche testified that she
read it in Spanish to the Spanish-speaking employees.9 The text of the petition contained blanks
to fill in the employer and union names. The filled-in handwritten portions are shown here in
italics. The petition stated,15
The undersigned employees of Scoma’s Sausalito (employer name) do not want
to be represented by Unite Here Local 2850 (union name).
Should the undersigned employees make up 30% or more and less than 50% of
the bargaining unit represented by Unite Here Local 2850 (union name), the 20
undersigned employees hereby petition the National Labor Relations Board to
hold a decertification election to determine whether a majority of employees no
longer wish to be represented by this union.
Should the undersigned employees make up 50% or more of the bargaining unit 25
represented by Unite Here Local 2850 (union name), the undersigned employees
hereby request that Scoma’s Sausalito (employer name) withdraw recognition
from this union immediately as it does not enjoy the support of a majority of
employees in the bargaining unit.
30
There is no allegation that any of the signatures were tainted by supervisory involvement.
After comparison of all decertification petition signatures to I-9 and W-2 exemplars on file,
Respondent determined that the signatures were authentic. No party disputes authenticity of the
decertification petition signatures. On October 31, Respondent notified the Union via facsimile
transmission that it was withdrawing recognition based on the decertification petition.35

8 Canche filed the decertification petition with the NLRB on October 29 in Case 20-RD-115782.
Respondent and the Union were notified of the decertification petition that same date.
9 Canche sought to intervene in this proceeding in order to present evidence that she and other
employees do not wish to be represented by the Union and to protect her and other employees’ Sec. 7 and
9 rights. I denied the motion as without a recognized interest in the subject matter of this litigation. See
Order (ALJ Ex. 2). Although Canche’s affidavit omitted the fact that she read the petition language to all
Spanish-speaking signers in Spanish, I find that she did read the petition in Spanish based on the
consistency of her testimony and that of the signers.
JD(SF)‒04‒15
4
REVOCATION PETITION SIGNATURES
In the meantime, on October 29, the Union gathered signatures from six employees on a
petition stating they were revoking their decertification signatures. These employees were
Fernando Montalvo (Montalvo), Juan Santos (Santos), Luciano Yah Chi (L. Yah Chi), Jose 5
Magdaleno Yah Chi (J. Yah Chi), Rene Rivera Rodriguez (Rodriguez), and Nicolas Villalobos
(Villalobos).10 There is no evidence that Respondent was aware of the Union’s efforts in seeking
revocation of the decertification signatures. The form used by the Union to gather these
signatures was in English and Spanish and stated,
10
If I signed a petition to decertify or get rid of the Union, I hereby revoke my
signature. I do wish to continue being represented by Unite Here Local 2850 for
the purposes of collective bargaining.
Si yo firmé una petición para decertificar o sacar la Union, yo revoco la firma. 15
Yo quiero continuar ser repressntado con la Union, Unite Here Local 2850 con el
prepósito de negociar colectivamente.
Lian Alan, lead organizer for the Union, accompanied by steward Clem Hyndman, and
Union member Maria Munoz,11 spoke with employees at shift change on October 29. Initially, 20
they met cook Montalvo as he was leaving for the day. On Alan’s questioning, Montalvo related
that he had signed the decertification petition. Alan told Montalvo that if the Union were
decertified “then it would be 100 percent up to [Respondent]” to set benefits, wages, and
working conditions. According to Alan, Montalvo stated that he did not want to decertify the
Union if that was the case. Alan explained that Montalvo could withdraw his support of 25
decertification by signing Alan’s petition revoking his decertification signature. Montalvo did so.
Montalvo did not testify. Based on Alan’s unrebutted testimony, I find that on October 29
Montalvo revoked his decertification signature.
As Montalvo signed the revocation and left, other employees arrived. Five employees, L. 30
Yah Chi, Rodriguez, J. Yah Chi, Villalobos, and Santos were eventually in and out of this group.
Around the time Montalvo left, the group moved away from the restaurant and gathered in an
open area near a pier about one-half block from the restaurant. Alan told the assembled
employees that there might be an NLRB election based on the decertification petition or
Respondent might withdraw recognition. Alan presented the revocation petition and told 35
employees they could sign it to revoke their decertification signature.
Alan testified they asked what would happen if Respondent withdrew recognition and he
explained that all of their benefits, pay, and wages would be determined by Respondent. Alan
further elucidated that Respondent might choose to leave everything just as it was but might also 40

10 A seventh employee signed the revocation petition but she had not signed the original
decertification petition. Accordingly, her signature on the revocation petition is irrelevant to these
proceedings.
11 Munoz did not work for Respondent. Rather, she worked for a Bay area country club which had
been involved in a decertification effort.
JD(SF)‒04‒15
5
change things. Santos signed and left for another job. L. Yah Chi, Rodriguez, J. Yah Chi, and
Villalobos also signed the petition revoking their decertification signatures.
Dishwasher Santos, who signed the decertification petition on October 26, was presented
at hearing by Respondent, and testified that he spoke with Alan on October 29. Santos was 5
leaving Respondent’s restaurant in a hurry because he had to get to his next job. According to
Santos, Alan told him that he had to sign because he could lose his job or immigration could
come. Alan denied making such statements. In any event, Santos signed and left.
L. Yah Chi, also presented by Respondent, testified that on October 29, a man from the
Union told them that if there was no Union, the company would take away current benefits. 10
Having signed the decertification petition on October 25, L. Ya Chi signed the revocation
petition on October 29.
Villalobos, who was called by Respondent, testified that on October 29 Alan told him to
sign the revocation petition and he did so. On further questioning, Villalobos testified that Alan
asked him if he signed Canche’s petition and he said that he did. His signature on the 15
decertification petition is dated October 13. Alan told him then that
“Did you know that they’re removing the signatures to give [general manager
Roland [Gotti] the preference, so that the day that you’re no longer useful, they
can fire you? So that you lose your rights and everything. So that the day that
you’re no longer useful to them, they can fire you.” I told him so. “Me with or 20
without the Union. I’m not interested.” “Will you sign me – will you sign for me
rejecting the signature of this girl?” And I said, “Yes, why not? But if you are the
Union, I don’t need the Union. But you should go and help Carlos, because he
hasn’t been helped and he was fired.”
Villalobos also recalled that Alan made a comment that “he [Gotti] could throw immigration at 25
us, if he wanted to.”
J. Yah Chi, salad maker, was called by Respondent and signed the petition revoking his
decertification signature on being requested to do so by Alan on October 29. His decertification
petition signature is dated October 22. He recalled that Alan told him, “That if we didn’t sign
with [Alan], [Gotti] would take away all of the benefits we were given.” J. Yah Chi added, “To 30
be honest, they were talking . . . in English, and I don’t understand English well . . . they were
talking in English in Spanish. But what he was saying was that Roland [Gotti] had started hiring
people who had documentation, instead of people without documentation.”
Rodriguez, dishwasher, who was called by Respondent, stated that Alan told him on
October 29 that if he did not sign the petition to revoke his signature, he would be fired, his 35
hours would be cut, his breaks would be cut and his lunch breaks. 12 Rodriguez signed Alan’s
revocation petition. He signed the decertification petition on October 13.

12 Although Rodriguez dated his revocation signature “10-19-13,” and testified that he signed the
revocation petition on that date, I find this testimony highly unlikely as the signatures above and below
his signature, as well as all other signatures, are dated October 29. Further, his signature was witnessed by
Union organizer Alan who recalled that it was signed on October 29. In any event, whether Rodriguez
signed the revocation petition on the 19th or the 29th, both dates are after his October 13th decertification
signature and prior to Respondent’s withdrawal of recognition. Thus, either of the dates post-dated his
JD(SF)‒04‒15
6
Although there is evidence that Alan was accompanied on October 29 by Hyndman and
Munoz, neither of them testified regarding what was said to revocation signers Montalvo, J. Yah
Chi, L. Yah Chi, Rodriguez, Villalobos, and Santos. Moreover, it is unclear on the record
whether Hyndman and/or Munoz were in a position to hear what Alan said to the revocation
signers. I note specifically that of the five revocation signers who testified, only Villalobos and 5
Rodriguez mentioned the presence of individuals such as Hyndman (whom they knew) and an
unidentified lady (which might refer to Munoz). Under these circumstances, an adverse inference
that Hyndman and Munoz would have testified favorably to Respondent is unwarranted.
In resolving the credibility conflict between Alan on the one hand and revocation signers
J. Yah Chi, L. Yah Chi, Rodriguez, Villalobos, and Santos on the other hand, I find that Alan’s 10
testimony must be credited. Alan was experienced and well-trained. He had spent eight years
engaged in representing employees for the Union and had attended numerous training sessions
regarding his duties on NLRB law and procedures. His testimony was precise and straight
forward and his demeanor was open, thoughtful, and confident. Based upon these factors, I find
that he would not lightly misrepresent the significance of signing a decertification petition to 15
employees and I credit his testimony.
Further, in assessing the credibility of the five revocation signers, I am guided by the
Court’s reasoning in NLRB v. Gissel Packing Co., 395 U.S. 575, 608 (1969):
20
[E]mployees are more likely than not, many months after a card drive and in
response to questions by company counsel to give testimony damaging to the
union particularly where company officials have previously threatened reprisals
for union activities in violation of § 8(a)(1). We therefore reject any rule that
requires a probe of an employee's subjective motivations as involving an endless 25
and unreliable inquiry.
Thus, the five revocation signers presented by Respondent uniformly gave testimony
damaging to the Union while exhibiting hesitancy, misunderstanding, lack of cohesive recall,
and inconsistency between each other as to what was said. This last factor is particularly telling. 30
None of their testimony agrees. Thus I find that the five employees called by Respondent did not
accurately testify about the substance of Alan’s comments.
Based on my credibility finding above, I find that Alan told employees that Respondent
might seek an election with the NLRB or withdraw recognition based on the decertification 35
petition. He further told them that if the Union were decertified, Respondent might leave
everything the same but that Respondent could also set different wages, benefits, and working
conditions.
40

decertification signature date and pre-dated withdrawal of recognition and thus would have qualified
temporally to work a revocation.
JD(SF)‒04‒15
7
ANALYSIS
[A]n employer may unilaterally withdraw recognition from an incumbent union
only where the union has actually lost the support of the majority of the
bargaining unit employees. . . . [Thus] an employer can defeat a postwithdrawal 5
refusal to bargain allegation if it shows, as a defense, the union’s actual loss of
majority status.
Levitz Furniture, supra, 333 NLRB at 717. The Board based this holding on the fundamental
policy of the Act to protect employees’ rights to choose or reject a union, to encourage collective 10
bargaining, and to promote stability in relationships. Once employees have chosen a union, this
choice must be respected by an employer. Id. at 723. The union then enjoys a presumption of
majority support. If an employer withdraws recognition in an honest but mistaken belief that the
union has lost majority support, it violates Section 8(a)(5). Id. at 725. Thus, an employer acts at
its peril when it withdraws recognition based on objective evidence such as a petition signed by a 15
majority of employees in the unit. Id. The presumption of continued majority prevails if an
employer fails to prove by a preponderance of the evidence that the union has lost majority
support at the time of its withdrawal. Id.13
Here Respondent relied on a petition signed by 29 unit employees in a 54-employee unit. 20
Certainly, on its face, the petition presented evidence that a majority of unit employees did not
wish to be represented by the Union. On the following day, Respondent was informed that
Canche had filed a decertification action with the NLRB. Respondent could have proceeded to
an NLRB election but, instead, chose to withdraw recognition on October 31, thus acting at its
peril. There is no evidence that Respondent was aware that the Union was collecting revocations 25
from decertification signers. But, in fact, the Union obtained signatures from six of the 29
employees who had signed the decertification petition. Based on my credibility finding, the
revocation signatures were not the subject of misrepresentation or coercion and are valid
revocations. Respondent could not rely on the decertification signatures of those employees to
withdraw recognition. HQM of Bayside, 348 NLRB 758, 759-760 (2006) (employer may not rely 30
on decertification signature when employee subsequently demonstrates support for the union).
Contrary to Respondent’s assertion that the underlying policies of the Act dictate that the
Union had a duty to inform Respondent that it had gathered evidence of support for the Union
from decertification signers, there is no duty under Levitz Furniture for the Union to provide 35
such notice. Fremont Medical Center, 354 NLRB 453, 459-460 (2009), adopted 359 NLRB No.
51 (2013) (withdrawal of recognition unlawful although union did not inform employer of
countervailing evidence of union support); HQM of Bayside, supra, 348 NLRB at 788 (union has
no duty to demonstrate majority support prior to withdrawal of recognition), both relied upon by
the General Counsel and the Union.14 Indeed, in overruling Celanese Corp., 95 NLRB 664, 671-40

13 Respondent’s attempt to rely on after-acquired evidence, such as oral statements of other
employees after the withdrawal, is rejected. See RTP Co., 334 NLRB 466, 469 (2001), enfd. 315 F.3d.
951 (8th Cir. 2003), cert. denied 540 U.S. 811 (2003), cited by the Union and holding that only factors
actually relied upon by the employer are relevant in a withdrawal of recognition analysis.
14 In Fremont-Rideout, supra, 354 NLRB 453 at n. 3, Member Schaumber noted that dicta in Levitz
Furniture , supra, 333 NLRB at 725, states that “had the Union not asserted that it had contrary evidence,
JD(SF)‒04‒15
8
673 (1951), and holding that an employer may withdraw recognition only on a showing that the
union has in fact lost majority support, the Board reaffirmed the presumption of continued
majority based upon important principles underlying the Act such as safeguarding industrial
stability and fostering employee rights to designate their collective-bargaining representative.
Levitz Furniture, supra, 333 NLRB at 725. Further, the Board noted that an employer need not 5
unilaterally withdraw recognition but may petition the NLRB for an election based on a lower
“uncertainty” standard. Id. at 727. With these safeguards in place, Levitz does not require that a
union notify an employer that it is gathering evidence in support of majority support.15
Thus, the six decertification signature revocations lowered the number of decertification 10
petition signers from 29 to 23 at the time Respondent withdrew recognition.16 The remaining 31
employees, a majority, are presumed to continue support of the Union. Accordingly, Respondent
has failed to prove by a preponderance of the evidence that on October 31 when it withdrew
recognition that the Union had actually lost majority support. In withdrawing recognition under
these circumstances, Respondent violated Section 8(a)(5) of the Act. 15
THE REMEDY
Having found that Respondent has engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act, Respondent is ordered to cease and desist from engaging in 20
such conduct and take certain affirmative action designed to effectuate the policies of the Act.
Most importantly, in order to restore the status quo ante, in light of Respondent’s withdrawal of
recognition and refusal to bargain with the Union, Respondent must recognize and bargain with
the Union for a reasonable period of time as the bargaining representative of unit employees.
25
An affirmative bargaining order is a reasonable exercise of the Board’s broad
discretionary remedial authority. Caterair International, 322 NLRB 64, 64-68 (1996). As the
Board stated in Anderson Lumber, 360 NLRB No. 67 (2014), “We adhere to the view that an
affirmative bargaining order is ‘the traditional, appropriate remedy for an 8(a)(5) refusal to
bargain with the lawful collective-bargaining representative of an appropriate unit of 30
employees.’” Id., slip op. at 1, quoting Caterair, supra, 322 NLRB at 68. Noting its disagreement
with the United States Court of Appeals for the District of Columbia Circuit regarding a

the Respondent would have [succeeded in proving loss of majority support]” and finds this statement at
odds with the holding in Levitz Furniture that the union has no affirmative obligation to notify the
employer that it possesses evidence tending to negate the employer’s evidence of loss of majority. The
General Counsel and the Union argue that this acknowledgement simply echoes the holding in Levitz
Furniture that the burden remains with the employer to establish loss of majority.
15 The Union further argues that introducing such a requirement would be unmanageable and would
not increase employee free choice.
16 Because the number of revocation signers lowered the number of remaining decertification signers
to 23, it is unnecessary to the outcome of this case to determine whether the signatures of two additional
decertification signers on a Unity Petition might lower the remaining decertification signers even further.
The Unity Petition did not explicitly revoke their decertification signatures but nevertheless demonstrated
support for the Union by stating that the signers desired to be represented by the Union for purposes of
collective bargaining.
JD(SF)‒04‒15
9
requirement to justify imposition of a bargaining order in each case, the Board nevertheless
found a bargaining order was justified in Anderson Lumber pursuant to the District of Columbia
Circuit balancing test as set out in Vincent Industrial Plastics v. NLRB, 209 F.3d 727, 738 (D.C.
Cir. 2000). On virtually the identical facts, the same result occurs here.
5
Vincent Industrial Plastics requires balancing of three considerations. These
considerations are (1) employee Section 7 rights, (2) whether other purposes of the Act override
the rights of employees to choose their representative, and (3) whether alternative remedies are
adequate to remedy the violations of the Act. Id. Because the violation found here is identical to
the violation found in Anderson Lumber, the Board’s balancing rationale is quoted in full and 10
adopted:
(1) An affirmative bargaining order vindicates the Section 7 rights of the unit
employees who were denied the benefits of collective bargaining by the
Respondent’s withdrawal of recognition and resulting refusal to bargain with the 15
Union for a successor collective-bargaining agreement. At the same time, an
affirmative bargaining order, with its attendant bar to raising a question
concerning the Union’s continuing majority status for a reasonable time, does not
unduly prejudice the Section 7 rights of employees who may oppose continued
union representation because the duration of the order is no longer than is 20
reasonably necessary to remedy the ill effects of the violation. To the extent such
opposition exists, moreover, it may be at least in part the product of the
Respondent’s unfair labor practices.
(2) An affirmative bargaining order also serves the policies of the Act by fostering
meaningful collective bargaining and industrial peace. That is, it removes the 25
Respondent’s incentive to delay bargaining in the hope of further discouraging
support for the Union. It also ensures that the Union will not be pressured by the
Respondent’s withdrawal of recognition to achieve immediate results at the
bargaining table following the Board’s resolution of its unfair labor practice
charges and issuance of a cease-and-desist order.30
(3) A cease-and-desist order, alone, would be inadequate to remedy the Respondent’s
refusal to bargain with the Union in these circumstances, because it would permit
another challenge to the Union’s majority status before the taint of the
Respondent’s unlawful withdrawal of recognition has dissipated, and before the
employees have had a reasonable time to regroup and bargain through their 35
representative in an effort to reach a successor collective-bargaining agreement.
Such a result would be particularly unjust in circumstances such as those here,
where the Respondent’s withdrawal of recognition would likely have a continuing
effect, thereby tainting any employee disaffection from the Union arising during
that period or immediately thereafter. We find that these circumstances outweigh 40
the temporary impact the affirmative bargaining order will have on the rights of
employees who oppose continued union representation.
For all the foregoing reasons, we find that an affirmative bargaining order with its
temporary decertification bar is necessary to fully remedy the allegations in this 45
case.
JD(SF)‒04‒15
10
Anderson Lumber, 360 NLRB at slip op. 1‒2. Based upon this rationale, the same determination
is warranted here and I find that an affirmative bargaining order is necessary and justified in
order to remedy the allegations in this case pursuant to the balancing test of Vincent Industrial
Plastics.
5
Although there is no evidence one way or the other as to continuation of the terms and
conditions of employment of the expired collective-bargaining agreement, if the terms have not
been adhered to, then restoration of the status quo ante requires that Respondent must, upon
request from the Union, continue the terms and conditions of its expired agreement unless and
until changed through collective bargaining with the Union. Respondent must bargain upon 10
request with the Union as the exclusive collective-bargaining representative of employees in the
appropriate bargaining unit and embody any understanding reached in a signed agreement.
If the terms and conditions of the expired collective-bargaining agreement have not been
adhered to since October 31, 2013, Respondent shall make whole its employees for losses in 15
earnings and other benefits which they may have suffered as a result of Respondent’s repudiation
of the collective-bargaining agreement with such losses to be calculated in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). Interest
on all such sums shall be computed as prescribed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical 20
Center, 356 NLRB No. 8 (2010). Additionally, Respondent shall reimburse the unit employees
for any expenses ensuing from failure to make the required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F2d 940 (9th Cir. 1981).
Such amounts are to be computed in the manner set forth in Ogle Protection Service, supra, with
interest as prescribed in New Horizons for the Retarded, supra, and Kentucky River Medical 25
Center, supra. Further, in accordance with Don Chavas LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014), Respondent must compensate unit employees for any adverse tax
consequences of receiving lump-sum backpay awards and file a report with the Social Security
Administration allocating the backpay awards to the appropriate calendar quarters for each unit
employee.30
Respondent shall post an appropriate informational notice, as described in the attached
appendix. This notice shall be posted in Respondent’s facility or wherever the notices to
employees are regularly posted for 60 days without anything covering it up or defacing its
contents. When the notice is issued to Respondent, it shall sign it or otherwise notify Region 2035
of the Board what action it will take with respect to this decision. In the event that, during the
pendency of these proceedings, Respondent has gone out of business or closed the facility
involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by Respondent at any time
since October 31, 2013.40
Respondent shall, 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 45
JD(SF)‒04‒15
11
electronic form, necessary to analyze the amount of backpay due, if any, under the terms of this
Order.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:175
ORDER
Respondent Scoma’s of Sausalito, LLC, Sausalito, California, its officers, agents,
successors, and assigns, shall
10
1. Cease and desist from:
a. Failing and refusing to recognize and bargain with the Union as the exclusive
bargaining representative for the following bargaining unit of its employees as described in the
parties’ most recent collective-bargaining agreement in effect from 2010 to September 30, 2012: 15
All servers, cooks, dishwashers, bartenders, hostesses, and bussers, excluding all other
employees.
b. In any like or related manner interfering with, restraining or coercing employees
in the exercise of rights guaranteed to them by Section 7 of the Act. 20
2. Take the following affirmative action which is necessary to effectuate the purposes of the
Act:
a. Recognize the Union as the exclusive collective-bargaining representative of the25
bargaining unit employees described above.
b. Upon request of the Union, adhere to the terms and conditions set out in the
expired collective-bargaining agreement giving effect to its terms retroactive to October 31,
2013, and continuing those terms and conditions in effect unless and until changed through 30
collective bargaining with the Union. If no such request is made by the Union, bargain upon
request with the Union as the exclusive collective-bargaining representative of employees in the
bargaining unit described above and embody any understanding reached in a signed Agreement.
c. In the absence of a collective-bargaining agreement, before implementing any35
changes in wages, hours, or other terms and conditions of employment of unit employees, notify
and, on request, bargain with the Union as the exclusive collective-bargaining representative of
employees in the above described unit.
d. Make all affected employees whole, with interest, in the manner set forth in the40
remedy section of this Decision and Order for any loss of earnings and other benefits suffered as
a result of Respondent’s repudiation of the collective-bargaining relationship and compensate

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order, as provided in Section 102.48 of the Rules, shall be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
them for any adverse tax consequences of receiving lump sum back
Social Security Administration allocating the backpay to the appropriate calendar quarters.
e. Preserve and, within 14 days of a request, or such
Director may allow for good cause shown, make ava5
the Board or its agents for examination and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an electronic
copy of the records if stored in electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
10
f. Within 14 days after service by the Region, post at
California, copies of the attached notice marked “Appendix.”
provided by the Regional Director for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by Respondent and maintained for 60 consecutive days
in conspicuous places, including all places15
Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the pendency of these proceedings,
Respondent has gone out of business or closed the facility involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by Respondent at that facility20
October 31, 2013.
g. Within 21 days after service by the Region, file with the Regional Director of
Region 20 a sworn certificate of a responsible official on a form provided by the Region attesting
to the steps that Respondent has taken to comply wit25
Dated, Washington, D.C., February 23
30
35

18 If this Order is enforced by a judgm
reading “Posted by Order of the National
Judgment of the United States Court of Ap
Board.”
JD(SF)
12
pay and file a report with the
additional time as the Regional
ilable at a reasonable place designated by
its facility in Sausalito
18 Copies of the notice, on forms
where notices to employees are customarily posted.
at any time
h the provision of this Order.
, 2015.
____________________
Mary Miller Cracraft
Administrative Law Judge
ent of a United States court of appeals, the words in the notice
Labor Relations Board” shall read “Posted Pursuant to a
peals Enforcing an Order of the National Labor Relations
‒04‒15
,
since
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
The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post,
mail, and abide by this notice.
WE WILL NOT withdraw recognition from and fail and refuse to bargain with Unite Here Local 2850 (the Union) as the
exclusive collective-bargaining agent 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 guaranteed you
by Section 7 of the Act.
WE WILL recognize and, on request, bargain collectively with the Union as the exclusive collective-bargaining representative of
our unit employees concerning terms and conditions of employment and, if an understanding is reached, embody the
understanding in a signed agreement. The unit is as follows:
All servers, cooks, dishwashers, bartenders, hostesses, and bussers, excluding all other employees
WE WILL, on request of the Union, adhere to any or all of the terms and conditions set out in the collective-bargaining
agreement that expired on September 30, 2012, giving effect to its terms retroactive to October 31, 2013, and continuing 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 lump-sum backpay awards, and WE WILL file
a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters.
SCOMA’S OF SAUSALITO LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130.
The Administrative Law Judge’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, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, 415-356-5139.