NP Palace LLC d/b/a Palace Station Hotel & Casino

National Labor Relations Board - Board Decisions

May 14, 2019

367 N.L.R.B. 129 (N.L.R.B. 2019)

367 NLRB No. 129
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 Palace LLC d/b/a Palace Station Hotel & Casino
and International Union of Operating Engineers
Local 501, AFL–CIO. Case 28–CA–218622
May 14, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
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 April 18, 2018,1 by In-
ternational Union of Operating Engineers Local 501,
AFL–CIO (the Union), the General Counsel issued the
complaint on May 2, alleging that NP Palace LLC d/b/a
Palace Station Hotel & Casino (the Respondent) has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to recognize and bargain and by refusing
to furnish requested information following the Union’s
certification in Case 28–RC–211644. (Official notice is
taken of the record in the representation proceeding as de-
fined 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 assert-
ing affirmative defenses.
On May 9, the General Counsel filed a Motion for Sum-
mary Judgment. On May 16, 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 Motion for Summary Judgment and Request for Reme-
dies.

1 All dates are in 2018 unless otherwise noted.
2 See Sec. 9(b)(3) of the Act (“[N]o labor organization shall be certi-
fied as the representative of employees in a bargaining unit of guards if
such organization admits to membership, or is affiliated directly or indi-
rectly with an organization which admits to membership, employees
other than guards.”). The Respondent’s answer denies par. 5(a) of the
complaint, which sets forth the appropriate unit, and par. 5(c), which al-
leges that the Union is the exclusive collective-bargaining representative
of unit employees. These issues, however, were fully litigated and re-
solved in the underlying representation proceeding. Accordingly, we
find that the Respondent’s denials of these complaint allegations do not
raise any litigable issues in this proceeding. See Voices for International
Business and Education, Inc. d/b/a International High School of New
Orleans, 365 NLRB No. 66, slip op. at 1 fn. 1 (2017), enfd. 905 F.3d 770
(5th Cir. 2018).
Additionally, the Respondent’s answer denies that it employs “regular
part-time slot technicians and utility technicians.” However, that denial
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 and to fur-
nish requested information but contests the validity of the
certification based on its contention, raised and rejected in
the underlying representation proceeding, that the peti-
tioned-for employees are guards that cannot be repre-
sented by the Union, which admits non-guards to its mem-
bership.2 In addition, the Respondent denies that the in-
formation requested by the Union is necessary for and rel-
evant to the Union’s performance of its duties as the ex-
clusive collective-bargaining representative of the unit.3
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.4 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 (1941).
As indicated above, the Respondent’s answer also de-
nies the complaint’s allegation that the information re-
quested by the Union is necessary for and relevant to the
Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of the unit. Additionally, in
its response to the Notice to Show Cause, the Respondent
contends that the Union requested a host of confidential
information. We find that the Act’s policies will be best
effectuated by severing and retaining for further consider-
ation the allegation that the Respondent unlawfully re-
fused to furnish the requested information and the General
does not warrant denying the General Counsel’s motion for summary
judgment as to the technical refusal-to-bargain allegation because the Re-
spondent does not deny that it employs full-time slot technicians and util-
ity technicians, who are included in the bargaining unit.
3 The Respondent’s answer also asserts as an affirmative defense that
the complaint fails to state a claim on which relief may be granted. How-
ever, the complaint does indeed state a claim upon which relief can be
granted by alleging that the Respondent violated the Act by refusing to
meet and bargain with the Union. See Wolf Creek Nuclear Operating
Corp., 366 NLRB No. 30, slip op. at 1 fn. 2 (2018), enfd. 2019 WL
367172, __ Fed. Appx. __ (10th Cir. Jan. 29, 2019).
4 Chairman Ring did not participate in the underlying representation
proceeding. He agrees with his colleagues that the Respondent has not
raised any litigable issue in this unfair labor practice proceeding and that
summary judgment is appropriate, with the parties retaining their respec-
tive rights to litigate relevant issues on appeal.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel’s Motion for Summary Judgment with respect to
that allegation.5
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment with respect to the technical re-
fusal-to-bargain allegation and sever and retain for further
consideration the information-request allegation.6
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
Las Vegas, Nevada (the facility), and has been engaged in
operating a hotel and casino.
During the 12-month period ending April 18, the Re-
spondent, in conducting its operations described above,
purchased and received at its facility goods valued in ex-
cess of $50,000 directly from points outside the State of
Nevada and derived gross revenues in excess of $500,000.

5 The information request includes requests for job descriptions for
nonunit employees and information about customer complaints. We
agree with our colleague that summary judgment is inappropriate at this
time with respect to these requests. The Respondent has also asserted
confidentiality concerns with respect to other information requests in its
response to the Notice to Show Cause. Contrary to our dissenting col-
league, those confidentiality concerns are not waived on the ground that
they were not raised in the Respondent’s answer. “The Board has held
that a respondent may properly cure defects in its answer before a hearing
either by an amended answer or a response to a Notice to Show Cause.”
Ellis Electric, 321 NLRB 1205, 1206 (1996) (citing Vibra-Screw, Inc.,
308 NLRB 151 (1992) (treating a response to a Notice to Show Cause as
an amended answer)). Here, having denied in its answer the allegation
that it violated Sec. 8(a)(5) by failing and refusing to furnish the Union
with the information requested by the Union, the Respondent’s response
cured any defect in its answer by asserting its confidentiality concerns as
a specific reason for the denial. In any event, the dissent cites no prece-
dent rejecting a confidentiality defense on the procedural ground that it
was not included in the answer, much less any such precedent involving
a respondent that, like the Respondent here, still had a right to amend its
answer. See Sec. 102.23 of the Board’s Rules and Regulations (“The
Respondent may amend its answer at any time prior to the hearing.”). In
these circumstances, we decline to further delay action on the technical
refusal-to-bargain allegation in order to comb through the information
request for the purpose of determining at this time which items are or are
not amenable to disposition through summary judgment. Cf. Rules and
Regulations Sec. 102.24(b) (providing that the Board may deny a motion
for summary judgment “where the opposing party’s pleadings, opposi-
tion [to the motion] and/or response [to the Notice to Show Cause] indi-
cate on their face that a genuine issue may exist”).
Unlike her colleagues, Member McFerran would immediately grant
the General Counsel’s motion for summary judgment with respect to the
Union’s requests seeking information that clearly is presumptively rele-
vant, which encompasses nearly all of the Union’s requests. Those re-
quests seek such basic information as a list of current bargaining-unit
employees, company policies and procedures applicable to those em-
ployees, job descriptions for bargaining-unit positions, and applicable
wage, salary, and benefit plans. Contrary to the majority’s assertions, it
requires no great delay to determine the relevance of these straightfor-
ward requests. The Union is entitled to this information. Ordering the
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 January 9,
the Union was certified on January 187 as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time slot technicians and
utility technicians employed by [the Respondent] at its
Las Vegas, Nevada facility; excluding, all other employ-
ees, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
Respondent to provide this information now, moreover, will better serve
the collective-bargaining process, as well as administrative efficiency,
by ensuring that in the event a reviewing court enforces the Board’s Or-
der to bargain, the Union will be prepared to engage in informed bargain-
ing without delay. Member McFerran nevertheless agrees with her col-
leagues that it is appropriate to retain two of the Union’s requests that
appear to seek information that may not be presumptively relevant, spe-
cifically a request concerning job descriptions for non-unit employees
and a request for information about customer complaints. Finally, to the
extent that the Respondent first asserted confidentiality concerns in its
response to the Board’s May 16, 2018 Notice to Show cause, Member
McFerran would find that those claims were not timely raised—they
should have been asserted in the Respondent’s answer to the complaint—
and are therefore waived.
There is no merit to her colleagues’ assertion that the Respondent’s
submission following the Notice to Show Cause cures the untimeliness
of its confidentiality claims. In Ellis Electric, 321 NLRB 1205, 1206
(1996), and Vibra-Screw, Inc., 308 NLRB 151 (1992), cited by the ma-
jority, the employer generally denied certain backpay calculations, but
failed to do so with the required specificity explaining the reasons for its
disagreement. In those circumstances, the Board found that the employer
could cure the defect in the answer by means of its response to a Notice
to Show Cause. Here, by contrast, the Respondent did not even assert its
confidentiality claim in its answer. It merely denied that it violated the
Act by refusing to provide the information. Contrary to the majority, this
general denial of the violation cannot open the door to a specific claim
of confidentiality under a theory that the latter “cures” the former. There
was no defect in the initial general denial and entertaining this so-called
“cure” would impermissibly enable respondents to later sweep in a wide
range of unpled defenses. But even taking the majority’s position, the
Respondent’s broad claim of confidentiality does not specifically iden-
tify which presumptively relevant requests are of concern and why. The
Board has long rejected such general claims. Detroit Newspaper Agency,
317 NLRB 1071, 1072 (1995). The Respondent’s belated—and in any
event deficient—confidentiality claim therefore remains untimely.
6 Accordingly, the Respondent’s request that the complaint be dis-
missed is denied.
7 By unpublished order dated April 12, the Board denied the Respond-
ent’s request for review of the Regional Director’s Decision and Direc-
tion of Election.
NP PALACE LLC D/B/A PALACE STATION HOTEL & CASINO 3
The Union continues to be the exclusive collective-bar-
gaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
About January 22, the Union requested that the Re-
spondent recognize and bargain collectively with it as the
exclusive collective-bargaining representative of the em-
ployees in the bargaining unit set forth above. Since about
January 22, the Respondent has failed and refused to rec-
ognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the bargaining-unit em-
ployees.
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 January 22 to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent 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 it to cease and
desist, to bargain on request with the Union and, if an un-
derstanding 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 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 show-
ing that the Board’s traditional remedies are insufficient to
redress the violations found. Accordingly, we deny the
Union’s request for additional remedies.
ORDER
The National Labor Relations Board orders that the Re-
spondent, NP Palace LLC d/b/a Palace Station Hotel &

8 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
Casino, Las Vegas, Nevada, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union of Operating Engineers Local 501,
AFL–CIO (the Union) as the exclusive collective-bargain-
ing representative of the employees in the bargaining 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 exclusive
representative of the employees in the following appropri-
ate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part-time slot technicians and
utility technicians employed by [the Respondent] at its
Las Vegas, Nevada facility; excluding, all other employ-
ees, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its Las Vegas, Nevada facility copies of the attached no-
tice marked “Appendix.”8 Copies of the notice, on forms
provided by Region 28, after being signed by the Re-
spondent’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 elec-
tronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, 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 employed by the Re-
spondent at the closed facility at any time since January
22, 2018.
(c) 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
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the complaint allegations
concerning the Respondent’s refusal to provide infor-
mation requested by the Union are severed and retained
for further consideration by the Board.
Dated, Washington, D.C. May 14, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
_____________________________________
William J. Emanuel, 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 vi-
olated 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 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 con-
ditions of employment for our employees in the following
bargaining unit:
All full-time and regular part-time slot technicians and
utility technicians employed by us at our Las Vegas, Ne-
vada facility; excluding, all other employees, office cler-
ical employees, professional employees, guards, and su-
pervisors as defined in the Act.
NP PALACE LLC D/B/A PALACE STATION HOTEL
& CASINO
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-218622 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.