Scoma's of Sausalito, LLC

National Labor Relations Board - Unpublished Board Decisions

Oct 29, 2015

20-CA-116766 (N.L.R.B. Oct. 29, 2015)

1
NOT INCLUDED IN PHMc
BOUND VOLUMES Sausalito, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SCOMA’S OF SAUSALITO, LLC
and Case 20-CA-116766
UNITE HERE, LOCAL 2850
ORDER DENYING MOTION FOR RECONSIDERATION
On August 21, 2015, the National Labor Relations Board issued a Decision and Order in
this proceeding, finding that the Respondent violated Section 8(a)(5) and (1) by withdrawing
recognition from the Union because it failed to prove that the Union had actually lost majority
support on the date of the withdrawal of recognition.1 To remedy the violations, the Board
ordered the Respondent to recognize and, on request, bargain with the Union. On September 1,
2015, the Respondent filed a Motion for Reconsideration. On September 4, 2015, the General
Counsel filed a reply to the Respondent’s motion.
The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
The Respondent contends that the Board committed a material error by failing to consider
its Exception Number 6, which states: “Charged Party excepts to the ALJ’s ruling that the Union
had no duty to inform Scoma that it had obtained revocation signatures from decertification
signers sufficient to defeat majority support before, or even after, Scoma withdrew recognition.”
The Respondent bases its argument on former Member Johnson’s observation that had “the issue

1 Scoma’s of Sausalito, 362 NLRB No. 174 (2015). Chairman Pearce did not participate in the
underlying decision, but agrees with the disposition of the instant motion.
2
[been] raised in exceptions, however, he would modify the Levitz[2] standard by requiring that
unions present evidence of reacquired majority support within a reasonable amount of time.”
362 NLRB No. 174, slip op. at 1 fn. 2. The Respondent further contends that the Board erred by
failing to reinstate the employees’ withdrawn decertification petition and order an election.
Having duly considered the matter, we find that the Respondent has not identified any
material error or demonstrated extraordinary circumstances warranting reconsideration under
Section 102.48(d)(1) of the Board’s Rules and Regulations. Specifically, the Respondent has
raised no substantial argument not previously considered by the Board. In affirming the judge’s
findings, the Board adopted her rejection of the Respondent’s argument that an incumbent union
must provide an employer with notice of reacquired majority support.3 The Board also rejected
the Respondent’s proposed remedy, observing among other things that an affirmative bargaining
order is the “traditional, appropriate remedy” for an unlawful withdrawal of recognition from an
incumbent union. Thus, contrary to the Respondent’s assertions, the Board’s Decision and Order
was based on a thorough review of the judge’s decision, the record, and the parties’ arguments.
Accordingly, we deny the motion.
IT IS ORDERED, therefore, that the Respondent’s Motion for Reconsideration is denied.
Dated, Washington, D.C., October 29, 2015.
______________________________
Mark Gaston Pearce, Chairman
______________________________
Kent Y. Hirozawa, Member
______________________________
Lauren McFerran, Member

2 Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001).
3 Former Member Johnson’s personal view that the Board should modify the Levitz standard in a
future appropriate case does not support the Respondent’s supposition that the Board did not
fully consider all of the Respondent’s exceptions to the application of that standard in this case.
3
(SEAL) NATIONAL LABOR RELATIONS BOARD