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

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 BOARD 2 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