366 NLRB No. 58 (N.L.R.B. 2018)

Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino

National Labor Relations Board - Board DecisionsApr 12, 2018

366 NLRB No. 58 (N.L.R.B. 2018)

366 NLRB No. 58 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. Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino and International Un- ion of Operating Engineers Local 501, AFL– CIO. Case 28–CA–214925 April 12, 2018 DECISION AND ORDER BY CHAIRMAN KAPLAN AND MEMBERS MCFERRAN 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 by the Interna- tional Union of Operating Engineers Local 501, AFL– CIO (the Union) on February 15, 2018, the General Counsel issued a complaint on February 22, 2018, alleg- ing that Station GVR Acquisition, LLC d/b/a Green Val- ley Ranch Resort Spa 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 following the Union’s certification in Case 28–RC–203653. (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 February 28, 2018, the General Counsel filed a Motion for Summary Judgment. On March 1, 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. 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 on the basis of its contentions, raised and rejected in the underlying representation proceeding, that the employees in the peti- tioned-for unit are guards as defined in Section 9(b)(3) of the Act and that the Regional Director erred in refusing to ban the use of cell phones and other electronic devices within the voting area.1 1 The Respondent denies par. 5(a) of the complaint, which sets forth the appropriate unit. The unit issue, however, was fully litigated and resolved in the underlying representation proceeding. Accordingly, the Respondent’s denial of the appropriateness of the unit does not raise any litigable issue in this proceeding. In addition, the Respondent 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.2 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 has been a lim- ited liability company with an office and place of busi- ness in Henderson, Nevada, and has been engaged in operating a hotel and casino. During the 12-month period ending February 15, 2018, the Respondent, in conducting its operations described above, purchased and received at the Respondent’s facili- ty 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 August 25, 2017,3 the Union was certified on October 164 as the advances an affirmative defense that could not have been raised in the representation proceeding: that the complaint fails to state a claim under the Act upon which relief can be granted. The Respondent has not offered any explanation or evidence to support this bare assertion. Thus, we find that this affirmative defense is insufficient to warrant denial of the General Counsel’s motion for summary judgment in this proceeding. See, e.g., George Washington University, 346 NLRB 155, 155 fn. 2 (2005), enfd. 2006 WL 4639237 (D.C. Cir. 2006); Circus Circus Hotel, 316 NLRB 1235, 1235 fn. 1 (1995). 2 The Respondent claims there are “special circumstances” in this case akin to those the Board found in Brinks, Inc. of Florida, 276 NLRB 1 (1985). In that case, the Board directed a hearing to determine whether the charging party union was affiliated with a union that ad- mits to membership employees other than guards, a contention that had been overruled without a hearing in the representation case. Here, there has been a hearing on whether the unit employees are guards within the meaning of Section 9(b)(3) of the Act; the Respondent simply disagrees with the determination that they are not. 3 All dates hereinafter are 2017 unless otherwise noted. 4 By unpublished order dated November 30, the Board denied the Respondent’s request for review. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: Included: all full-time, regular part-time, and extra board slot technicians and utility technicians employed by the employer at its Henderson, Nevada facility. Excluded: excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain Since at least October 31, the Union has requested that the Respondent recognize and bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since November 6, the Respondent has failed and refused to do so. 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 November 6 to recognize and bargain with the Union as the exclusive collective- bargaining representative of the 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 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); 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 Respondent, Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, Henderson, Nevada, its officers, agents, successors, 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 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 representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement: Included: all full-time, regular part-time, and extra board slot technicians and utility technicians employed by the employer at its Henderson, Nevada facility. Excluded: excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Henderson, Nevada, copies of the attached notice marked “Appendix.”5 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 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 proceed- ings, 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 Respondent at any time since November 6, 2017. 5 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.” STATION GVR ACQUISITION, LLC D/B/A GREEN VALLEY RANCH RESORT SPA CASINO 3 (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. April 12, 2018 ______________________________________ Marvin E. Kaplan, 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 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 International Union of Operating Engineers Lo- cal 501, AFL–CIO (the Union) as the exclusive collec- tive-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: Included: all full-time, regular part-time, and extra board slot technicians and utility technicians employed by the employer at its Henderson, Nevada facility. Excluded: excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. STATION GVR ACQUISITION LLC, D/B/A GREEN VALLEY RANCH RESORT SPA CASINO The Board’s decision can be found at https://www.nlrb.gov/case/28-CA-214925 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., Washing- ton, D.C. 20570, or by calling (202) 273-1940.