NP Lake Mead LLC d/b/a Fiesta Henderson Casino Hotel

National Labor Relations Board - Board Decisions

Jun 28, 2019

368 NLRB No. 19 (N.L.R.B. 2019)

368 NLRB No. 19
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.
NP Lake Mead LLC d/b/a Fiesta Henderson Casino
Hotel and International Union of Operating
Engineers Local 501, AFL–CIO. Case 28–CA–
230458
June 28, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
This is a refusal-to-bargain case in which the Respond-
ent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on November 5, 2018, by
International Union of Operating Engineers, Local 501,
AFL–CIO (the Union), the General Counsel issued a com-
plaint and notice of hearing on November 14, 2018, alleg-
ing that the Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act by refusing the Union’s
requests to recognize and bargain with it and to furnish
relevant information following the Union’s certification in
Case 28–RC–218426. (Official notice is taken of the rec-
ord in the representation proceeding 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 complaint and asserting af-
firmative defenses.
On December 10, 2018, the General Counsel filed mo-
tions to transfer and continue matter before the Board and
for Summary Judgment. On December 14, 2018, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion should
not be granted. The Respondent filed a response, and the
Union filed a Joinder in the Motion for Summary Judg-
ment and Request for Remedies.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.

1 The Respondent raises the unit issue in both its denial of complaint
par. 5(a) and in its affirmative defenses.
2 The Union requested the information in a letter (mis)dated March
14, 2018, which is appended as Exhibit A to the Respondent’s response
to the General Counsel’s motions to transfer and continue matter before
the Board and for Summary Judgment. That letter included the words
“and Social Security number” at the end of the first numbered infor-
mation request. Par. 5(f) of the complaint and the motions to transfer
and continue matter before the Board and for Summary Judgment, how-
ever, deleted the phrase “and Social Security number.” The deletions in
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain and to fur-
nish requested information, but contests the validity of the
Union’s certification on the basis of its contention, raised
and rejected in the underlying representation proceeding,
that the unit is not appropriate.1 In addition, the Respond-
ent asserts that it has raised issues of material fact by deny-
ing that the requested information is necessary and rele-
vant to the Union’s role as bargaining representative.
All representation issues raised by the Respondent were
or could have been litigated in the prior representation pro-
ceeding. The Respondent does not offer to adduce at a
hearing any newly discovered and previously unavailable
evidence, nor does it allege any special circumstances 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 unfair labor practice proceed-
ing. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 (1941).
For essentially the same reasons as in NP Sunset LLC
d/b/a Sunset Station Hotel Casino, 367 NLRB No. 62, slip
op. at 1–2 (2019), we also find that there are no factual
issues warranting a hearing with respect to the Respond-
ent’s refusal to furnish the Union with requested infor-
mation. The complaint alleges, and the Respondent ad-
mits, that about May 14, 2018, the Union requested in
writing that the Respondent furnish it with the following
information:
1. A list of current employees including their
names, dates of hire, rates of pay, job classification,
last known address, phone number, date of comple-
tion of any probationary period [. . .].2
2. A copy of all current company personnel poli-
cies, practices or procedures.
3. A statement and description of all company
personnel policies, practices or procedures other than
those mentioned in Number 2 above.
4. A copy of all company fringe benefit plans in-
cluding pension, profit sharing, severance, stock in-
centive, vacation, health and welfare, apprenticeship,
both documents were signified by brackets and ellipses. Thus, we con-
strue the General Counsel’s summary judgment motion to exclude the
Social Security numbers of unit employees. Moreover, even if the Gen-
eral Counsel’s motion were interpreted to seek such data, the Board has
held that Social Security numbers are not presumptively relevant and that
the requesting union must demonstrate their relevance. Maple View
Manor, 320 NLRB 1149, 1151 fn. 2 (1996), enfd. mem. 107 F.3d 923
(D.C. Cir. 1997) (per curiam). There has been no effort to demonstrate
relevance here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
training, legal services, child care or any other plans
which relate to the employees.
5. Copies of all current job descriptions.
6. Copies of any company wage or salary plans.
7. Copies of all disciplinary notices, warnings or
records of disciplinary personnel actions for the last
year. A copy of all witness statements for any such
discipline.
8. A statement and description of all wage and
salary plans which are not provided under number 6
above.
The complaint further alleges, and the Respondent admits,
that since May 25, 2018, the Respondent has failed and re-
fused to furnish the information requested by the Union.
It is well established that information concerning the
terms and conditions of employment of unit employees is
presumptively relevant for purposes of collective bargain-
ing and must be furnished on request.3 See, e.g., Metro
Health Foundation, Inc., 338 NLRB 802, 803 (2002).
Specifically, the information requested by the Union as to
unit employees is presumptively relevant for purposes of
collective bargaining, and the Respondent has not asserted
any basis for rebutting the presumption. See, e.g., NP Sun-
set LLC, supra; CVS, 364 NLRB No. 122, slip op. at 1
(2016), enfd. mem. 709 Fed.Appx. 10 (D.C. Cir. 2017)
(per curiam); Metro Health Foundation, supra.4
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a limited
liability company with an office and place of business in
Henderson, Nevada (the Respondent’s facility), and has
been engaged in operating a hotel casino. During the 12-

3 Although the complaint does not specifically state that the infor-
mation request was limited to unit employees, we find, in agreement with
the Respondent, that it should be so construed. See, e.g., Freyco Truck-
ing, Inc., 338 NLRB 774, 775 fn. 1 (2003) (request for “copy of all pay-
roll records” construed as pertaining to unit employees, even though re-
quest not described in those specific terms).
4 With respect to items 6 and 7 in the Union’s request for information,
we note that, in its response to the General Counsel’s summary judgment
motion, the Respondent refers to this information as confidential but pro-
vides no explanation or argument in support. It is well settled that the
mere assertion of confidentiality does not, by itself, raise a material issue
of fact warranting consideration. E.g., Mission Foods, 345 NLRB 788,
792 (2005) (summary judgment granted where “[r]espondent . . . only
asserted a blanket claim of confidentiality, and [did] not establish[] why
particular information would trigger specific confidentiality concerns”);
see also Bud Antle, Inc., 359 NLRB 1257, 1265 (2013) (claim of confi-
dentiality rejected when no evidence offered in support), reaffirmed and
incorporated by reference 361 NLRB 873 (2014). Further, with respect
to the Union’s request in item 7 for copies of witness statements in
month period ending November 5, 2018, the Respondent,
in conducting its operations described above, purchased
and received at its facility 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 has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on May 3,
2018, the Union was certified on May 16, 2018, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:5
All full-time and regular part-time slot technicians and
utility technicians employed by the Employer at its fa-
cility in Henderson, Nevada; excluding all other em-
ployees, office and clerical employees, guards, and su-
pervisors as defined by the National Labor Relations
Act.
The Union continues to be the exclusive collective-bargain-
ing representative of the unit employees under Section 9(a)
of the Act.
B. Refusal to Bargain
At all material times, Valerie Murzl has been an agent
of the Respondent within the meaning of Section 2(13) of
the Act.6
About May 14, 2018, the Union requested that the Re-
spondent recognize and bargain with it as the exclusive
collective-bargaining representative of the unit employ-
ees, and since about May 25, 2018, the Respondent has
disciplinary matters, the Respondent does not contend there is a confi-
dentiality interest weighing against disclosure of any specific statements
or, indeed, raise any particularized defense, including that the applicable
standard should be changed. See NP Sunset LLC, supra, slip op. at 2 fn.
5; see also Piedmont Gardens, 362 NLRB 1135 (2015) (overruling An-
heuser-Busch, Inc., 237 NLRB 982 (1978) (holding that witness state-
ments must be furnished on request unless employer establishes legiti-
mate and substantial confidentiality interest that outweighs the union’s
need for the statements), affd. on other grounds 858 F.3d 612 (D.C. Cir.
2017)). Chairman Ring and Member Kaplan apply Piedmont Gardens
here as extant precedent absent any request to reconsider it.
5 The Respondent subsequently filed a request for review on May 25,
2018. The Board denied the request for review in Case 28–RC–218426
by unpublished order dated July 25, 2018.
6 Although the Respondent denies the complaint allegation that Va-
lerie Murzl has held the position of corporate vice president of human
resources and is a supervisor within the meaning of Sec. 2(11) of the Act,
it admits that Murzl is an agent within the meaning of Sec. 2(13) of the
Act.
NP LAKE MEAD LLC D/B/A FIESTA HENDERSON CASINO HOTEL 3
failed and refused to recognize and bargain with the Un-
ion.
Also about May 14, 2018, the Union requested that the
Respondent furnish it with the information described
above, and since about May 25, 2018, the Respondent has
failed and refused to furnish the requested information.
The requested information for the unit employees is nec-
essary for and relevant to the Union’s performance of its
duties as the exclusive collective-bargaining representa-
tive of the unit.
We find that these failures and refusals constitute an un-
lawful 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 25, 2018, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the ap-
propriate unit, and by failing and refusing since May 25,
2018, to furnish the Union with requested information that
is necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining repre-
sentative of the Respondent’s unit employees, the Re-
spondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order the Respondent
to cease and desist from such conduct. In addition, we
shall order the Respondent to bargain on request with the
Union and, if an understanding is reached, to embody the
understanding in a signed agreement. We shall also order
the Respondent to furnish the Union with the information
it requested on May 14, 2018, with the exception of em-
ployee Social Security numbers.
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 the date the Respondent begins to bar-
gain 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).
The Union requests additional enhanced remedies.
Contrary to the Union’s assertion, there has been no

7 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 National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
showing that the Board’s traditional remedies are insuffi-
cient to redress the violations found. Accordingly, we
deny the Union’s request for additional remedies. NP
Sunset LLC, 367 NLRB No. 62, slip op. at 3.
We also reject the Union’s request for a broad order
requiring the Respondent to cease and desist from violat-
ing the Act “in any other manner” and “to bargain with
every union where the Board issues a certification.” Id.,
citing Hickmott Foods, 242 NLRB 1357, 1357 (1979).
ORDER
The National Labor Relations Board orders that the Re-
spondent, NP Lake Mead LLC d/b/a Fiesta Henderson Ca-
sino Hotel, Henderson, Nevada, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the International Union of Operating Engineers, Local
501, AFL–CIO (the Union) as the exclusive collective-
bargaining representative of the employees in the bargain-
ing unit.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining rep-
resentative of the Respondent’s unit employees.
(c) 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 exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time slot technicians and
utility technicians employed by the Employer at its fa-
cility in Henderson, Nevada; excluding all other em-
ployees, office and clerical employees, guards, and su-
pervisors as defined by the National Labor Relations
Act.
(b) Furnish to the Union in a timely manner the infor-
mation requested by the Union on about May 14, 2018,
with the exception of employee Social Security numbers.
(c) Within 14 days after service by the Region, post at
its Henderson, Nevada facility copies of the attached no-
tice marked “Appendix.”7 Copies of the notice, on forms
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
provided by the Regional Director for Region 28, after be-
ing signed by the Respondent's authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since May 25, 2018.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 28 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. June 28, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(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 vio-
lated 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 ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with International Union of Operating Engineers, Local
501, AFL–CIO (the Union) as the exclusive collective-
bargaining representative of our employees in the bargain-
ing unit.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
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 as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody that understanding in a signed agree-
ment:
All full-time and regular part-time slot technicians and
utility technicians employed by the employer at its facil-
ity in Henderson, Nevada; excluding all other employ-
ees, office and clerical employees, guards, and supervi-
sors as defined by the National Labor Relations Act.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on May 14, 2018, with
the exception of employee Social Security numbers.
NP LAKE MEAD LLC D/B/A FIESTA HENDERSON
CASINO HOTEL
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or by calling (202) 273-1940.