FP Holdings L.P., d/b/a Palms Casino Resort

National Labor Relations Board - Board Decisions

May 13, 2019

367 NLRB No. 127 (N.L.R.B. 2019)

367 NLRB No. 127
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.
FP Holdings, L.P. d/b/a Palms Casino Resort and Lo-
cal Joint Executive Board of Las Vegas a/w
Unite Here International Union. Case 28–CA–
224729
May 13, 2019
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union's certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on August 1,
2018,1 by Joint Executive Board of Las Vegas a/w
UNITE HERE International Union (the Union), the Gen-
eral Counsel issued the complaint on August 15, alleging
that FP Holdings, L.P. d/b/a Palms Casino Resort (the
Respondent) has violated Section 8(a)(5) and (1) of the
National Labor Relations Act by refusing the Union’s
request to recognize and bargain with it following the
Union’s certification in Case 28–RC–217964. (Official
notice is taken of the record in the representation pro-
ceeding as defined in the Board's Rules and Regulations,
Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer admitting
in part and denying in part the allegations in the com-
plaint and asserting affirmative defenses.
On August 31, the General Counsel filed a Motion to
Transfer and Continue Matter Before the Board and for
Summary Judgment. The Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted on Septem-
ber 5. The Respondent filed a response, and the Charg-
ing Party filed a reply to the Respondent’s response.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but con-
tests the validity of the Union's certification of repre-
sentative on the basis of its contentions, raised and re-
jected in the underlying representation proceeding, that
the Union prematurely filed a representation petition that

1 All dates hereinafter are 2018 unless otherwise noted.
2 On January 23, 2019, we granted the General Counsel’s Unop-
posed Motion to Sever and Remand Refusal to Provide Information
Allegations. Accordingly, those allegations were remanded to the
Regional Director for Region 28 for further appropriate action.
did not include a substantial and representative comple-
ment of employees.3
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor has it shown any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, with an office
and place of business located in Las Vegas, Nevada, has
been engaged in operating a hotel casino.
During the 12-month period ending on August 1, 2018,
the Respondent purchased and received goods valued in
excess of $50,000 directly from points outside the State
of Nevada and derived gross revenues in excess of
$500,000.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on April 27
and 28, the Union was certified on May 95 as the exclu-

3 The Respondent continues to posit that the Regional Director
should have dismissed the Union’s petition because it did not account
for the potential increase in the Respondent’s work force resulting from
renovations. Additionally, the Respondent’s answer asserts as an af-
firmative defense that the complaint fails to state a claim on which
relief can be granted. The Respondent has not offered any explanation
or evidence to support this bare assertion. Thus, we find that this af-
firmative defense is insufficient to warrant denial of the General Coun-
sel’s Motion for Summary Judgment in this proceeding. See Station
GVR Acquisition, LLC, 367 NLRB No. 38, slip op. at 1 fn. 2 (2018),
citing Circus Circus Hotel, 316 NLRB 1235, 1235 fn. 1 (1995).
4 Member Emanuel did not participate in the underlying representa-
tion proceeding. He expresses no opinion on the merits of the Board’s
decision in that proceeding. Nonetheless, he agrees with his colleagues
that the Respondent has not raised any new matters that are properly
litigable in this unfair labor practice proceeding and that summary
judgment is appropriate, with the parties retaining their respective
rights to litigate relevant issues on appeal.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
sive collective-bargaining representative of the employ-
ees in the following appropriate unit (unit):
All full-time and regular part-time Banquet Servers,
Bakers, Bar/Beverage Porters, Bartenders, Banquet
Bartenders, Banquet Porters, Beverage Servers, Bus
Persons, Cooks, Cooks Helpers, Food Servers, Assis-
tant Food Servers, Guest Room Attendants,
Host/Cashiers, House Persons, Kitchen Workers, Lead
Porters, Lead Banquet Porters, Mini Bar Attendants,
Porters, Room Runners, Service Bartenders, Sprinters,
Status Board, Specialty Cooks, Stover Persons, Team
Member Dining Room Attendants, Uniform Room At-
tendants, Utility Porters, VIP Bartenders, and VIP Bar
Hosts employed by [Respondent] at its facility in Las
Vegas, Nevada, excluding all other employees em-
ployed by [Respondent], including Bell Persons, But-
lers, Valet Parkers, Housekeeping Supervisors, Gaming
Employees (including, but not limited to Dealers, Slot
Attendants, Cage, and Cashiers), Drivers, Front Desk
Employees, Engineering and Maintenance Employees,
Lifeguards, Spa & Salon workers, Office Clerical Em-
ployees, Confidential Employees and all Guards, Man-
agers, and Supervisors as defined by the [National La-
bor Relations Act (the Act)].
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
On May 16, the Union requested that the Respondent
recognize and bargain collectively with the Union as the
exclusive collective-bargaining representative of the
Unit. Since May 17, the Respondent has failed and re-
fused to recognize and bargain with the Union.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since May 17 to recognize and
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the appro-
priate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.

5 By unpublished Order dated August 16, the Board denied the Re-
spondent’s request for review of the Regional Director’s Decision and
Certification of Representative.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning on the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the Re-
spondent, FP Holdings, L.P. d/b/a Palms Casino Resort, Las
Vegas, Nevada, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Local Joint Executive Board of Las Vegas a/w UNITE
HERE International Union as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
(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) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time Banquet Servers,
Bakers, Bar/Beverage Porters, Bartenders, Banquet
Bartenders, Banquet Porters, Beverage Servers, Bus
Persons, Cooks, Cooks Helpers, Food Servers, Assis-
tant Food Servers, Guest Room Attendants,
Host/Cashiers, House Persons, Kitchen Workers, Lead
Porters, Lead Banquet Porters, Mini Bar Attendants,
Porters, Room Runners, Service Bartenders, Sprinters,
Status Board, Specialty Cooks, Stover Persons, Team
Member Dining Room Attendants, Uniform Room At-
tendants, Utility Porters, VIP Bartenders, and VIP Bar
Hosts employed by [Respondent] at its facility in Las
Vegas, Nevada, excluding all other employees em-
ployed by [Respondent], including Bell Persons, But-
FP HOLDINGS, L.P. D/B/A PALMS CASINO RESORT 3
lers, Valet Parkers, Housekeeping Supervisors, Gaming
Employees (including, but not limited to Dealers, Slot
Attendants, Cage, and Cashiers), Drivers, Front Desk
Employees, Engineering and Maintenance Employees,
Lifeguards, Spa & Salon workers, Office Clerical Em-
ployees, Confidential Employees and all Guards, Man-
agers, and Supervisors as defined by the [National La-
bor Relations Act (the Act)].
(b) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 28,
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 May 17, 2018.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 28 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. May 13, 2019
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan Member
______________________________________
William J. Emanuel Member

6 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."
(SEAL) 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 fail and refuse to recognize and bargain
with the Local Joint Executive Board of Las Vegas a/w
UNITE HERE International Union (the Union) as the
exclusive collective-bargaining representative of our
employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing appropriate bargaining unit:
All full-time and regular part-time Banquet Servers,
Bakers, Bar/Beverage Porters, Bartenders, Banquet
Bartenders, Banquet Porters, Beverage Servers, Bus
Persons, Cooks, Cooks Helpers, Food Servers, Assis-
tant Food Servers, Guest Room Attendants,
Host/Cashiers, House Persons, Kitchen Workers, Lead
Porters, Lead Banquet Porters, Mini Bar Attendants,
Porters, Room Runners, Service Bartenders, Sprinters,
Status Board, Specialty Cooks, Stover Persons, Team
Member Dining Room Attendants, Uniform Room At-
tendants, Utility Porters, VIP Bartenders, and VIP Bar
Hosts employed by us at our facility in Las Vegas, Ne-
vada, excluding all other employees employed by us,
including Bell Persons, Butlers, Valet Parkers, House-
keeping Supervisors, Gaming Employees (including,
but not limited to Dealers, Slot Attendants, Cage, and
Cashiers), Drivers, Front Desk Employees, Engineering
and Maintenance Employees, Lifeguards, Spa & Salon
workers, Office Clerical Employees, Confidential Em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ployees and all Guards, Managers, and Supervisors as
defined by the [National Labor Relations Act (the
Act)].
FP HOLDINGS, L.P. D/B/A PALMS CASINO
RESORT
The Board’s decision can be found at
https://www.nlrb.gov/case/28-CA-224729 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.