Hard Rock Holdings, LLC d/b/a Hard Rock Hotel and Casino

National Labor Relations Board - Board Decisions

Apr 7, 2011

356 NLRB No. 132 (N.L.R.B. 2011)

356 NLRB No. 132
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.
Hard Rock Holdings, LLC d/b/a Hard Rock Hotel
and Casino and Professional, Clerical and Mis-
cellaneous Employees, Local 995, affiliated with
International Brotherhood of Teamsters. Case
28–CA–23259
April 7, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on November 12, 2010,
the Acting General Counsel issued the complaint on De-
cember 21, 2010, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to bargain following the Union’s certifi-
cation in Case 28–RC–6680. (Official notice is taken of
the “record” in the representation proceeding as defined
in the Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer, admitting in part and deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On January 10, 2011, the Acting General Counsel filed
a Motion for Summary Judgment. On February 4, 2011,
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.
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 certification based on its objec-
tions to the election, the Board’s disposition of chal-
lenged ballots, and the Board’s unit determination in the
representation proceeding.
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 does it allege 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). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Nevada corpo-
ration with an office and place of business in Las Vegas,
Nevada, has been engaged in the operation of a hotel and
casino.
During the 12-month period ending November 12,
2010, the Respondent, in conducting its business opera-
tions, derived gross revenues in excess of $500,000, and
purchased and received at the Respondent’s 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, Professional, Clerical
and Miscellaneous Employees, Local 995, affiliated with
International Brotherhood of Teamsters, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a representation election held November 6,
2009, the Union was certified on September 28, 2010, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and part-time Valet Parking employees
employed by the Respondent at 4455 Paradise Road,
Las Vegas, Nevada, excluding all other employees, of-
fice clerical employees, guards, and supervisors as de-
fined in 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 about October 5 and 28, 2010, the Union, by let-
ters, requested that the Respondent recognize and bargain
with it as the exclusive collective-bargaining representa-
tive of the employees in the unit. Since about October
29, 2010, the Respondent has failed and refused to rec-
ognize and bargain with the Union. We find this failure
and refusal constitutes an unlawful failure and refusal to
recognize and bargain with the Union in violation of Sec-
tion 8(a)(5) and (1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
CONCLUSION OF LAW
By failing and refusing since about October 29, 2010,
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
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 the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); and Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
ORDER1
The National Labor Relations Board orders that the
Respondent, Hard Rock Holdings, LLC d/b/a Hard Rock
Hotel and Casino, Las Vegas, Nevada, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Professional, Clerical and Miscellaneous Employees,
Local 995, affiliated with International Brotherhood of
Teamsters, as the exclusive collective-bargaining repre-
sentative 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
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

1 Consistent with our decision in J. Picini Flooring, 356 NLRB No.
9 (2010), we have ordered the Respondent to distribute the notice elec-
tronically if it is customarily communicating with employees by such
means.
All full-time and part-time Valet Parking employees
employed by the Respondent at 4455 Paradise Road,
Las Vegas, Nevada, excluding all other employees, of-
fice clerical employees, guards, and supervisors as de-
fined in 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.”2 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. In the event that, during the
pendency of these proceedings, 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 Respon-
dent at any time since October 29, 2010.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 7, 2011
Wilma B. Liebman, Chairman
Craig Becker, Member
Mark Gaston Pearce, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

2 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.”
HARD ROCK HOTEL & CASINO 3
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
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Professional, Clerical and Miscellaneous Employ-
ees, Local 995, affiliated with International Brotherhood
of Teamsters, as the exclusive collective-bargaining rep-
resentative of the 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
guaranteed you by Section 7 of the Act.
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 bargaining unit:
All full-time and part-time Valet Parking employees
employed by us at 4455 Paradise Road, Las Vegas,
Nevada, excluding all other employees, office clerical
employees, guards, and supervisors as defined in the
Act.
HARD ROCK HOLDINGS, LLC D/B/A
HARD ROCK HOTEL AND CASINO