NP Red Rock LLC d/b/a Red Rock Casino, Resort & Spa

National Labor Relations Board - Board Decisions

Aug 23, 2019

368 NLRB No. 52 (N.L.R.B. 2019)

368 NLRB No. 52
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 Red Rock, LLC d/b/a Red Rock Casino Resort &
Spa and International Union of Operating Engi-
neers Local 501, AFL–CIO. Case 28–CA–242302
August 23, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
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 May 29, 2019, and a
first amended charge on June 6, 2019, by the International
Union of Operating Engineers Local 501, AFL–CIO (the
Union), the General Counsel issued a complaint on June
7, 2019. The complaint alleges that NP Red Rock, LLC
d/b/a Red Rock Casino Resort & Spa (the Respondent) has
violated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing to recognize and bargain with the
Union and refusing to provide relevant and necessary in-
formation for the purpose of collective bargaining follow-
ing the Union’s certification in Case 28–RC–230613.
(Official notice is taken of the record in the representation
proceeding as defined in the Board’s Rules and Regula-
tions, Secs. 102.68 and 102.69 (d). Frontier Hotel, 265
NLRB 343 (1982).) The Respondent filed an answer ad-
mitting in part and denying in part the allegations in the
complaint and asserting affirmative defenses.
On June 26, 2019, the General Counsel filed with the
National Labor Relations Board a Motion for Summary
Judgment.1 On June 28, 2019, 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 to the Motion for Summary
Judgment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.

1 The Union filed a Joinder in the General Counsel’s motion.
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.”).
3 The Union requested the information in a letter dated December 4,
2018, which is appended as Exhibit A to the Respondent’s response to
the Motion for Summary Judgment. That letter included the words “and
Social Security number” at the end of the first numbered information re-
quest. Para. 5(f) of the complaint and the reference to that section
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but asserts
that it had no duty to bargain with the Union because the
certification of representative is invalid. The Respondent
alleges that, because the bargaining unit consists of
guards, as defined by the Act, and the Union admits into
membership employees other than guards, the Union is
statutorily precluded from representing the unit.2 In its re-
sponse, the Respondent acknowledges that it had already
raised this issue in the underlying representation case and
reiterates the arguments previously made in the represen-
tation proceeding. It contends, however, that the alleged
statutory preclusion of the Union constitutes a special cir-
cumstance requiring the Board to depart from its typical
practice and consider arguments previously made in the
representation case proceeding.
We reject the Respondent's argument that this case pre-
sents a special circumstance. All representation issues
raised by the Respondent were or could have been litigated
in the prior representation proceeding. 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 pro-
ceeding. See, e.g., NP Palace LLC d/b/a Palace Station
Hotel & Casino, 367 NLRB No. 129 (2019) (guard issue
fully litigated and resolved in underlying representation
proceeding). We therefore find that the Respondent has
not raised any representation issue that is properly litiga-
ble in this unfair labor practice proceeding. See Pitts-
burgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no factual issues warranting
a hearing with respect to the Union’s request for infor-
mation. The complaint alleges, and the Respondent ad-
mits, that about December 5, 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[s], last
known address, phone number, [and] date of completion
of any probationary period [. . .].3
contained in the Motion for Summary Judgment deleted the phrase “and
Social Security number.” The deletions in both documents were signi-
fied by brackets and an ellipsis. We construe the General Counsel’s sum-
mary judgment motion to exclude the Social Security numbers of unit
employees. Moreover, even if the General Counsel’s motion were inter-
preted 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
(2) A copy of all current company personnel policies,
practices or procedures.
(3) A statement and description of all company person-
nel policies, practices or procedures other than those
mentioned in [n]umber 2 above.
(4) A copy of all company fringe benefit plans including
pension, profit sharing, severance, stock incentive, vaca-
tion, health and welfare, apprenticeship, 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 rec-
ords 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.
It is well established that the foregoing types of infor-
mation concerning the terms and conditions of employ-
ment of unit employees are presumptively relevant for
purposes of collective bargaining and must be furnished
on request. See, e.g. Metro Health Foundation, Inc., 338
NLRB 802, 803 (2003). Moreover, the Respondent has
not asserted any basis for rebutting the presumption. See,
e.g., NP Sunset LLC, d/b/a Sunset Station Hotel Casino,
367 NLRB No. 62, slip op. at 1–2 (2019); CVS, 364 NLRB
No. 122, slip op. at 1 (2016), enfd. mem. 709 F.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

4 With respect to “company wage or salary plans,” we note that, in its
response, the Respondent refers to this information as confidential but
provides 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 dis-
ciplinary matters, the Respondent does not contend there is a confidenti-
ality interest weighing against disclosure of any specific statements or,
Las Vegas, Nevada (the Respondent’s facility) and has
been engaged in operating a hotel and casino.
In conducting its operations during the 12-month period
ending on June 6, 2019, the Respondent derived gross rev-
enues in excess of $500,000. In conducting its operations
during the above period, the Respondent purchased and
received at its facility goods valued in excess of $50,000
directly from points outside the State of Nevada.
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 a representation election held on November
29, 2018, the Union was certified on December 11, 2018,5
as the exclusive collective-bargaining representative of
the employees in the following unit:
All full-time and regular part-time slot technicians and
utility technicians employed by [Respondent] at its facil-
ity in Las Vegas, Nevada; excluding all other employ-
ees, office and clerical employees, guards, and supervi-
sors as defined by the National Labor Relations Act.
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
Since about December 5, 2018, the Union requested that
the Respondent recognize and bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of the unit. Since about December 10, 2018, the
Respondent has failed and refused to recognize and bar-
gain with the Union.
Since about December 5, 2018, the Union requested in
writing that the Respondent furnish the Union with the in-
formation set forth above that is necessary for, and rele-
vant to, the Union’s performance of its duties as the
indeed, raise any particularized defense (other than the general possibil-
ity of union threats, bullying, or harassment), or argue that the applicable
standard should be changed. See NP Sunset LLC, 367 NLRB No. 62,
slip op. at 2 fn. 5; see also Piedmont Gardens, 362 NLRB 1135 (2015)
(overruling Anheuser-Busch, Inc., 237 NLRB 982 (1978) (holding that
witness statements must be furnished on request unless employer estab-
lishes legitimate 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)). We apply Piedmont Gardens here as extant prec-
edent absent any request to reconsider it.
5 On February 22, 2019, by unpublished Order, the Board denied the
Respondent’s request for review of the Regional Director’s Decision and
Direction of Election and Certification of Representative.
NP RED ROCK, LLC D/B/A RED ROCK CASINO RESORT & SPA 3
exclusive collective-bargaining representative of the unit.
Since about December 10, 2018, the Respondent has
failed and refused to furnish the Union with the requested
information.
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 December 10, 2018, to
recognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
appropriate unit and to furnish the Union with requested
information regarding the terms and conditions of em-
ployment of unit employees, 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 recognize and bargain on request with the Union
and, if an understanding is reached, to embody the under-
standing in a signed agreement. We shall also order the
Respondent to furnish the Union with the information it
requested.
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).6
ORDER
The National Labor Relations Board orders that the Re-
spondent, NP Red Rock, LLC d/b/a Red Rock Casino Re-
sort & Spa, Las Vegas, Nevada, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union of Operating Engineers Local 501,

6 The Union requests that the Board grant certain extraordinary rem-
edies, including, among others, requiring the Respondent to provide the
Union with signed copies of the Board’s notice and a photograph of the
posted notice, paid time for the employees to read and review the Board’s
order and remedy, the reading of the notice by the Employer’s repre-
sentative of the Employer so that the Union’s representative can record
it, and a mail notice. We deny the Union’s request, as we find that the
AFL–CIO as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(b) Failing and refusing to furnish the Union with re-
quested information that is relevant and necessary to the
Union’s performance of its functions as the collective-bar-
gaining representative of the Respondent’s unit employ-
ees.
(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 Respondent] at its
facility in Las Vegas, Nevada; excluding all other em-
ployees, office and clerical employees, guards, and su-
pervisors as defined by the National Labor Relations
Act.
(b) Furnish the Union in a timely manner the infor-
mation requested by the Union on December 5, 2018.
(c) Within 14 days after service by the Region, post at
its facility in Glendora, California, copies of the attached
notice marked “Appendix.”7 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, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, 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 customarily
communicates with its employees by such means. Rea-
sonable 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
Board’s traditional remedies are sufficient to effectuate the policies of
the Act.
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
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
employees employed by the Respondent at any time since
December 10, 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. August 23, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, 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 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 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, 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
appropriate bargaining unit:
All full-time and regular part-time slot technicians and
utility technicians employed by us at our facility in Las
Vegas, Nevada; excluding all other employees, office
and clerical employees, guards, and supervisors as de-
fined by the National Labor Relations Act.
WE WILL furnish the Union in a timely manner the in-
formation requested by the Union on December 5, 2018.
NP RED ROCK, LLC D/B/A RED ROCK CASINO
RESORT & SPA
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-242302 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.