Scoma's of Sausalito, LLC

National Labor Relations Board - Board Decisions

Aug 21, 2015

362 NLRB No. 174 (N.L.R.B. 2015)

362 NLRB No 174
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Scoma’s of Sausalito, LLC and UNITE HERE, Local
2850. Case 20–CA–116766
August 21, 2015
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN
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 Re-
spondent 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 conclusions2
and to adopt the recommended Order as modified and set
forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Applying Levitz Furniture Co. of the Pacific, 333 NLRB 717
(2001), as extant law, Member Johnson joins his colleagues in finding
that the Respondent violated Sec. 8(a)(5) and (1) by withdrawing
recognition from the Union at a time when it retained majority support.
Were the issue raised in exceptions, however, he would modify the
Levitz standard by requiring that unions present evidence of reacquired
majority support within a reasonable amount of time, a requirement
proposed by former Chairman Battista in Parkwood Developmental
Center, 347 NLRB 974, 975 fn. 8 (2006). In Member Johnson’s view,
imposing an affirmative disclosure obligation would be more consistent
with the Act’s fundamental policies of promoting stability in bargaining
relationships and protecting employee free choice on the matter of
collective-bargaining representation. In contrast, a policy allowing
unions to withhold evidence of reacquired majority support unneces-
sarily disrupts the bargaining relationship and encourages gamesman-
ship between parties. In this case, for instance, the union’s failure to
give notice of its restored majority status misled the Respondent into a
disruptive unlawful withdrawal with the collateral effect of precluding
employees from filing a decertification election petition with the Board.
3 In keeping with the Board’s longstanding policy that an affirma-
tive bargaining order is “the traditional, appropriate remedy” for an
unlawful withdrawal of recognition from an incumbent union and sub-
sequent refusal to bargain, Caterair International, 322 NLRB 64, 68
(1996), and in agreement with the judge’s analysis applying the balanc-
ing test required by the District of Columbia Circuit in Vincent Indus-
trial Plastics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000), we find that an
affirmative bargaining order is warranted here. Further, we find no
merit in the Respondent’s exception that the judge erred in rejecting the
R. Exh. 2, a postwithdrawal decertification petition, because the second
ORDER
The National Labor Relations Board orders that the
Respondent, Scoma’s of Sausalito, LLC, Sausalito, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from UNITE HERE, Lo-
cal 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, re-
straining, 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 concern-
ing terms and conditions of employment and, if an un-
derstanding 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 earn-
ings and other benefits suffered as a result of the Re-
spondent’s repudiation of the collective-bargaining rela-
tionship, 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 Admin-
istration allocating the backpay to the appropriate calen-
dar quarters.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for

decertification petition was necessarily tainted by the Respondent’s
unlawful withdrawal of recognition. See Lee Lumber & Building Ma-
terial Corp., 322 NLRB 175, 177 (1996) (“unlawful refusal to recog-
nize and bargain with an incumbent union will be presumed to taint any
subsequent loss of support for the union”), affd. in part and remanded
in part 117 F.3d 1454 (D.C. Cir. 1997). Member Johnson notes that
employees are free to seek a decertification election once the parties
have bargained for a reasonable amount of time.
We shall substitute a new order to conform to the Board’s standard
remedial language, and we shall substitute a new notice to conform to
the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic 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 repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 custom-
arily 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 cov-
ered 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 em-
ployees and former employees employed by the Re-
spondent 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 certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 21, 2015
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 bene-
fit 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 rep-
resentative 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 representa-
tive 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 repudi-
ation of the collective-bargaining relationship.
WE WILL compensate you for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and WE WILL file a report with the Social Security Ad-
ministration allocating the backpay to the appropriate
calendar quarters.
SCOMA’S OF SAUSALITO, LLC
SCOMA’S OF SAUSALITO, LLC 3
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, De-
certification, 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 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 NLRB 717 (2001) (over-
ruling 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 sup-
port of the majority of the bargaining unit employees.”) I find
that Respondent has not shown by a preponderance of the evi-
dence 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 superviso-
ry 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, pre-
sumed 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.
On the entire record, including my observation of the de-
meanor 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.
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 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 embodied in suc-
cessive collective-bargaining agreements, the most recent of
which was effective through November 18, 2008. An un-
signed, ratified agreement was honored from 2010 to Septem-
ber 30, 2012, as to wage increases, health insurance, and other
substantive terms. There has been no further collective-

3 When necessary, credibility resolutions have been made based up-
on 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 posthearing briefs on January 13,
2015, Respondent filed a supplemental citation of authority on Febru-
ary 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 as-
serts 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 Sec. 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 employ-
ees in such unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other conditions of em-
ployment.”
7 Sec. 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 bargain-
ing shall be the employer unit, craft unit, plant unit, or subdivision
thereof . . . .”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agreement between the parties although the Union
requested bargaining on October 28. The parties stipulated that
as of October 31, the unit consisted of 54 employees.
Decertification Petition
On October 28, the same day the Union requested bargain-
ing, Respondent received a decertification petition entitled
“Petition for Decertification (RD)—Removal of Representa-
tive” 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.
The decertification petition form was in English only. How-
ever, 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 hand-
written portions are shown here in italics. The petition stated,
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 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 percent or
more of the bargaining unit 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.
There is no allegation that any of the signatures were tainted
by supervisory involvement. After comparison of all decertifi-
cation 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 signa-
tures. On October 31, Respondent notified the Union via fac-
simile transmission that it was withdrawing recognition based
on the decertification petition.
Revocation Petition Signatures
In the meantime, on October 29, the Union gathered signa-
tures from six employees on a petition stating they were revok-
ing their decertification signatures. These employees were

8 Canche filed the decertification petition with the NLRB on Octo-
ber 29 in Case 20–RD–115782. Respondent and the Union were noti-
fied 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 Exh. 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 sign-
ers.
Fernando Montalvo (Montalvo), Juan Santos (Santos), Luciano
Yah Chi (L. Yah Chi), Jose 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 decer-
tification signatures. The form used by the Union to gather
these signatures was in English and Spanish and stated,
If I signed a petition to decertify or get rid of the Union, I
hereby revoke my signature. I do wish to continue being rep-
resented by Unite Here Local 2850 for the purposes of collec-
tive bargaining.
Si yo firmé una petición para decertificar o sacar la Union, yo
revoco la firma. 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,
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 [Respond-
ent]” to set benefits, wages, and working conditions. Accord-
ing 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 decertification by signing Alan’s
petition revoking his decertification signature. Montalvo did
so. Montalvo did not testify. Based on Alan’s unrebutted tes-
timony, I find that on October 29, Montalvo revoked his decer-
tification signature.
As Montalvo signed the revocation and left, other employees
arrived. Five employees, L. 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 em-
ployees that there might be an NLRB election based on the
decertification petition or Respondent might withdraw recogni-
tion. Alan presented the revocation petition and told 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 every-
thing just as it was but might also change things. Santos signed
and left for another job. L. Yah Chi, Rodriguez, J. Yah Chi,
and Villalobos also signed the petition revoking their decertifi-
cation signatures.
Dishwasher Santos, who signed the decertification petition
on October 26, was presented at hearing by Respondent, and

10 A seventh employee signed the revocation petition but she had
not signed the original decertification petition. Accordingly, her signa-
ture 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.
SCOMA’S OF SAUSALITO, LLC 5
testified that he spoke with Alan on October 29. Santos was
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.
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 decertification petition is dated Octo-
ber 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 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 Un-
ion, I don’t need the Union. But you should go and help Car-
los, 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 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 decertifi-
cation 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 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, stat-
ed that Alan told him on October 29, that if he did not sign the
petition to revoke his signature, he would be fired, his hours
would be cut, his breaks would be cut and his lunchbreaks.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 with-
drawal of recognition. Thus, either of the dates postdated his decertifi-
cation signature date and predated withdrawal of recognition and thus
would have qualified temporally to work a revocation.
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 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 unwar-
ranted.
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
testimony must be credited. Alan was experienced and well-
trained. He had spent 8 years engaged in representing employ-
ees for the Union and had attended numerous training sessions
regarding his duties on NLRB law and procedures. His testi-
mony was precise and straight forward and his demeanor was
open, thoughtful, and confident. Based on these factors, I find
that he would not lightly misrepresent the significance of sign-
ing a decertification petition to employees and I credit his tes-
timony.
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):
[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 un-
ion activities in violation of § 8(a)(1). We therefore reject any
rule that requires a probe of an employee’s subjective motiva-
tions as involving an endless and unreliable inquiry.
Thus, the five revocation signers presented by Respondent
uniformly gave testimony damaging to the Union while exhibit-
ing hesitancy, misunderstanding, lack of cohesive recall, and
inconsistency between each other as to what was said. This last
factor is particularly telling. 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
petition. He further told them that if the Union were decerti-
fied, Respondent might leave everything the same but that Re-
spondent could also set different wages, benefits, and working
conditions.
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 refusal to
bargain allegation if it shows, as a defense, the union’s actual
loss of majority status.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 bargaining, and to promote stability in relationships.
Once employees have chosen a union, this choice must be re-
spected 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 recogni-
tion based on objective evidence such as a petition signed by a
majority of employees in the unit. Id. The presumption of con-
tinued majority prevails if an employer fails to prove by a pre-
ponderance 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 em-
ployees in a 54-employee unit. Certainly, on its face, the peti-
tion 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 decertifica-
tion action with the NLRB. Respondent could have proceeded
to an NLRB election but, instead, chose to withdraw recogni-
tion on October 31, thus acting at its peril. There is no evi-
dence that Respondent was aware that the Union was collecting
revocations 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 mis-
representation or coercion and are valid revocations. Respond-
ent could not rely on the decertification signatures of those
employees to withdraw recognition. HQM of Bayside, LLC,
348 NLRB 758, 759–760 (2006) (employer may not rely on
decertification signature when employee subsequently demon-
strates support for the union).
Contrary to Respondent’s assertion that the underlying poli-
cies of the Act dictate that the Union had a duty to inform Re-
spondent that it had gathered evidence of support for the Union
from decertification signers, there is no duty under Levitz Fur-
niture for the Union to provide 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, LLC, supra, 348 NLRB at
788 (union has no duty to demonstrate majority support prior to
withdrawal of recognition), both relied on by the General
Counsel and the Union.14 Indeed, in overruling Celanese

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 hold-
ing 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 fn. 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 evi-
dence, the Respondent would have [succeeded in proving loss of major-
ity support]” and finds this statement at odds with the holding in Levitz
Furniture that the union has no affirmative obligation to notify the
Corp., 95 NLRB 664, 671–673 (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 on important princi-
ples 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
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 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 pre-
ponderance of the evidence that on October 31 when it with-
drew recognition that the Union had actually lost majority sup-
port. In withdrawing recognition under these circumstances,
Respondent violated Section 8(a)(5) of the Act.
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 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, Respond-
ent must recognize and bargain with the Union for a reasonable
period of time as the bargaining representative of unit employ-
ees.
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 stat-
ed in Anderson Lumber, 360 NLRB No. 67 (2014), “We adhere
to the view that an affirmative bargaining order is ‘the tradi-
tional, appropriate remedy for an 8(a)(5) refusal to bargain with
the lawful collective-bargaining representative of an appropri-
ate unit of employees.’” Id., slip op. at 1, quoting Caterair,
supra, 322 NLRB at 68. Noting its disagreement with the Unit-
ed States Court of Appeals for the District of Columbia Circuit

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 Furni-
ture 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 de-
certification signers on a Unity Petition might lower the remaining
decertification signers even further. The Unity Petition did not explicit-
ly revoke their decertification signatures, but nevertheless demonstrated
support for the Union by stating that the signers desired to be represent-
ed by the Union for purposes of collective bargaining.
SCOMA’S OF SAUSALITO, LLC 7
regarding a 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 Indus-
trial Plastics v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). On
virtually the identical facts, the same result occurs here.
Vincent Industrial Plastics requires balancing of three con-
siderations. 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 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 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 un-
ion representation because the duration of the order is no
longer than is 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 un-
fair labor practices.
(2) An affirmative bargaining order also serves the policies of
the Act by fostering meaningful collective bargaining and in-
dustrial peace. That is, it removes the Respondent’s incentive
to delay bargaining in the hope of further discouraging sup-
port 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.
(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 chal-
lenge to the Union’s majority status before the taint of the Re-
spondent’s unlawful withdrawal of recognition has dissipated,
and before the employees have had a reasonable time to re-
group and bargain through their representative in an effort to
reach a successor collective-bargaining agreement. Such a re-
sult 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 pe-
riod or immediately thereafter. We find that these circum-
stances outweigh the temporary impact the affirmative bar-
gaining order will have on the rights of employees who op-
pose continued union representation.
For all the foregoing reasons, we find that an affirmative bar-
gaining order with its temporary decertification bar is neces-
sary to fully remedy the allegations in this case.
Anderson Lumber, 360 NLRB at slip op. 1‒2. Based on 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 bal-
ancing test of Vincent Industrial Plastics.
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, on request from the Union, continue the
terms and conditions of its expired agreement unless and until
changed through collective bargaining with the Union. Re-
spondent must bargain on request with the Union as the exclu-
sive 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 loss-
es in 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, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (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 F.2d 940 (9th Cir.
1981). Such amounts are to be computed in the manner set
forth in Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons, supra, and Kentucky River Medical
Center, supra. Further, in accordance with Don Chavas LLC
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014), Re-
spondent 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.
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 Respond-
ent, it shall sign it or otherwise notify Region 20 of the Board
what action it will take with respect to this decision. In the
event that, during the pendency of these proceedings, Respond-
ent 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.
Respondent shall, within 14 days of a request, or such addi-
tional 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 rec-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ords, 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, 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 recommended17
ORDER
Respondent Scoma’s of Sausalito, LLC, Sausalito, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the
Union as the exclusive bargaining representative for the follow-
ing bargaining unit of its employees as described in the parties’
most recent collective-bargaining agreement in effect from
2010 to September 30, 2012: All servers, cooks, dishwashers,
bartenders, hostesses, and bussers, excluding all other employ-
ees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
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 the bargaining unit employees
described above.
(b) Upon request of the Union, adhere to the terms and con-
ditions 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 collective bargaining with the Union. If no
such request is made by the Union, bargain on 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, be-
fore implementing any 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 the 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 them for any adverse tax conse-
quences of receiving lump sum backpay 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 addi-
tional time as the Regional Director may allow for good cause
shown, make available at a reasonable place designated by the
Board or its agents for examination and copying, all payroll

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
records, social security payment records, timecards, personnel
records and reports, and all other records, including an electron-
ic copy of the records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(f) Within 14 days after service by the Region, post at its fa-
cility in Sausalito, California, copies of the attached notice
marked “Appendix.”
18 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
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. 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 facility at any time since Oc-
tober 31, 2013.
(g) Within 21 days after service by the Region, file with the
Regional Director of Region 20 a sworn certificate of a respon-
sible official on a form provided by the Region attesting to the
steps that Respondent has taken to comply with the provision of
this Order.
Dated, Washington, D.C., February 23, 2015.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT withdraw recognition from and fail and refuse
to bargain with Unite Here Local 2850 (the Union) as the ex-
clusive collective-bargaining agent of our employees in the
bargaining unit.

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SCOMA’S OF SAUSALITO, LLC 9
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 em-
ployment and, if an understanding is reached, embody the un-
derstanding 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
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,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.