FP Holdings L.P., d/b/a Palms Casino ResortDownload PDFNational Labor Relations Board - Board DecisionsMay 13, 2019367 NLRB No. 127 (N.L.R.B. 2019) Copy Citation 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.â€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. Copy with citationCopy as parenthetical citation