UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
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`Cases 28-CA-244484
`28-CA-250950
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`Cases 28-CA-250229
`28-CA-250282
`28-CA-250873
`28-CA-252591
`28-CA-253276
`28-CA-254470
`28-CA-254510
`28-CA-254514
`28-CA-260640
`28-CA-260641
`28-CA-262187
`28-CA-262803
`28-CA-264605
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`Case 28-CA-254155
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`Case 28-CA-254162
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`NP RED ROCK LLC d/b/a
`RED ROCK CASINO RESORT SPA
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`and
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`CLAUDIO MONTANO, an Individual
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`and
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`LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS
`a/w UNITE HERE INTERNATIONAL UNION
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`NP BOULDER LLC d/b/a
`BOULDER STATION HOTEL & CASINO
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`and
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`LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS
`a/w UNITE HERE INTERNATIONAL UNION
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`NP PALACE LLC d/b/a
`PALACE STATION HOTEL & CASINO
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`and
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`LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS
`a/w UNITE HERE INTERNATIONAL UNION
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`NP RED ROCK LLC d/b/a
`RED ROCK CASINO RESORT SPA
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`and
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`LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS
`a/w UNITE HERE INTERNATIONAL UNION
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`Case 28-RC-252280
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`RESPONDENTS’ OPPOSITION TO COUNSEL FOR THE GENERAL COUNSEL’S
`REQUEST FOR SPECIAL PERMISSION TO APPEAL REVOCATION OF
`SUBPOENAS AD TESTIFICANDUM A-1-1AIUQ3D AND A-1-1AIV91L
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`I. INTRODUCTION
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`On October 6, 2020,1 counsel for the General Counsel (CGC) served a subpoena ad
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`testificandum (A-1-1AIUQ3D) on Frank Fertitta III, and a subpoena ad testificandum (A-1-
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`1AIV91L) on Lorenzo Fertitta (collectively, the Fertitta Subpoenas), directing Frank and Lorenzo
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`Fertitta to appear and testify at the trial in this matter. On October 14, Respondents NP Red Rock
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`LLC d/b/a Red Rock Casino Resort Spa (Respondent Red Rock), NP Boulder LLC d/b/a Boulder
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`Station Hotel & Casino (Respondent Boulder), and NP Palace LLC d/b/a Palace Station Hotel &
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`Casino (Respondent Palace) (collectively, Respondents) filed a petition to revoke the Fertitta
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`Subpoenas. On October 23, Judge Jeffrey D. Wedekind granted Respondents’ petition to revoke.
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`On October 30, CGC filed a motion for reconsideration of the judge’s order granting Respondents’
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`petition to revoke. On November 5, the judge denied CGC’s motion for reconsideration on the
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`basis that it raised nothing that had not been previously argued in CGC’s opposition to
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`Respondents’ petition to revoke or considered by the judge. On November 13, CGC filed a request
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`for special permission to appeal the judge’s decision to revoke the Fertitta Subpoenas. Respondents
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`hereby oppose CGC’s request for special permission to appeal.
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`1 All dates referenced herein are in 2020, unless otherwise indicated.
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`2
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`II. BACKGROUND
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`A. Complaint Allegations
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`On October 8, CGC issued a fourth consolidated complaint against Respondents.2 (Special
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`Appeal Exhibit 1.)3 The complaint includes allegations emanating from 13 unfair labor practice
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`(ULP) charges Charging Party Local Joint Executive Board of Las Vegas (Charging Party or the
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`Union) filed against Respondent Red Rock between October 18, 2019, and August 11, 2020; 1
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`ULP charge the Union filed against Respondent Boulder on January 3, 2020, and amended on
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`April 29, 2020; 1 ULP charge the Union filed against Respondent Palace on January 3, 2020, and
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`amended on April 29, 2020; and 2 ULP charges an individual, Claudia Montano (Montano), filed
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`against Respondent Red Rock on July 8, 2019, and October 31, 2019, respectively. The ULP cases
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`have also been consolidated with overlapping objections filed by the Union in Case 28-RC-
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`252280.
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`The charges against Respondent Red Rock generally relate to its alleged conduct before,
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`during, and after the Union’s organizing campaign that lead to a secret-ballot election on December
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`19 and 20, 2019. The charges against Respondents Palace and Boulder are coterminous with a
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`charge against Respondent Red Rock alleging that the three employers unlawfully used images of
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`their respective employees as part of their messaging during an organizing campaign. One of the
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`charges Montano filed against Respondent Red Rock alleges her schedule was unlawfully changed
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`in January 2019, and her seniority unlawfully reduced in May 2019. The other charge Montano
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`2 On October 26, CGC filed a notice of intent to amend the complaint to add an individual
`to the list of alleged Sec. 2(11) supervisors and Sec. 2(13) agents and to correct dates of certain
`alleged unlawful conduct. On November 6, CGC filed a second notice of intent to amend the
`complaint to add eight more individuals to the list of alleged Sec. 2(11) supervisors and Sec. 2(13)
`agents, to correct another date related to the alleged unlawful conduct, and to request additional
`special remedies. At the hearing on November 9, the judge permitted CGC to amend the complaint
`accordingly.
`3 Citations are to CGC’s exhibits attached to their request for special permission to appeal.
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`3
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`filed against Respondent Red Rock alleges she was unlawfully issued a written warning, and a
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`final written warning, in October 2019.
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`B. Frank and Lorenzo Fertitta
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`Frank Fertitta III is the Chief Executive Officer and Chairman of the Board of Red Rock
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`Resorts, Inc. His brother, Lorenzo Fertitta, is Vice Chairman of the Board of Red Rock Resorts,
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`Inc. Red Rock Resorts, Inc., is a publicly-traded company that owns an indirect equity interest in,
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`and manages, Station Casinos LLC, a Nevada limited liability company. Station Casinos LLC is a
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`gaming, development, and management company that owns and operates 10 major gaming and
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`entertainment facilities in the Las Vegas regional market, including Respondents. Station Casinos
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`LLC also owns and operates 10 smaller casino properties in the Las Vegas regional market, and it
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`manages a resort in northern California on behalf of a Native American tribe. Frank Fertitta III is
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`also the Chief Executive Officer of Station Casinos LLC.
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`In 1993, Frank and Lorenzo Fertitta took over the business their father started in 1976 and
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`grew it into one of the leading casino and development companies in the United States. They also
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`purchased and built the mixed-martial arts brand Ultimate Fighting Championship (UFC) into a
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`global business, which they sold in 2016 for approximately $4 billion.
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`C. Fertitta Subpoenas
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`CGC issued the Fertitta subpoenas on October 6 directing Frank and Lorenzo Fertitta to
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`appear and testify at trial.4 (Special Appeal Exhibits 3 and 4.) On October 14, Respondents timely
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`filed a petition to revoke the Fertitta Subpoenas. (Special Appeal Exhibit 5.) On October 23, the
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`judge granted the petition to revoke, concluding, as Respondents argued, that the subpoenas do not
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`4 CGC has issued approximately 40 other subpoenas ad testificanda directed at current or
`former Sec. 2(11) supervisors and/or Sec. 2(13) agents of Respondents.
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`4
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`seek evidence related to any matter in question in the proceedings.5 (Special Appeal Exhibit 7.)
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`The judge observed that the complaint itself does not allege the Fertittas engaged in any unlawful
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`conduct and, until the fourth consolidated complaint was filed, CGC did not even mention the
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`Fertittas or allege they were Respondents’ supervisors and/or agents.6 (Special Appeal Exhibit 7.)
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`Further, the judge stated, it is not the General Counsel’s burden to show how, when, or why
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`Respondents formulated the benefits package at issue in the case, and whether the Fertittas’
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`testimony would be relevant and helpful in discrediting Respondents’ rebuttal case appears entirely
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`speculative at this point. (Special Appeal Exhibit 7.)
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`Notably, the judge left the door open for CGC to seek reconsideration or to reissue the
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`subpoenas if the documents produced pursuant to separate subpoenas duces teca and/or the
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`evidence adduced at the hearing provided substantial reasons to believe the Fertittas’ testimony
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`would be relevant to any of the complaint allegations, and that its probative value would not be
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`substantially outweighed by a danger of undue delay, wasting time, or needlessly presenting
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`cumulative evidence under FRE 403. (Special Appeal Exhibit 7.)
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`5 Respondents also argued that the Fertittas should be protected under the familiar “apex”
`doctrine, given that they sit at the apex of Respondents’ parent companies, and there are no
`allegations they have superior or unique personal knowledge of the events giving rise to the
`allegations. (Special Appeal Exhibit 5.) See, e.g., Celerity, Inc. v. Ultra Clean Holding, Inc., No.
`C05-4373 MMC(JL), 2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 2007) (“Virtually every court
`that has addressed deposition notices directed at an official at the highest level or ‘apex’ of
`corporate management has observed that such discovery creates a tremendous potential for abuse
`or harassment.”) (citing Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.C.R.I. 1985)); Baine v.
`General Motors Corp., 141 F.R.D. 332, 334 (M.D. Ala. 1991) (finding deposition of high-level
`official “would be oppressive, inconvenient, and burdensome” where counsel had not shown
`information sought could not be obtained in other ways, and official sought to be deposed had no
`“superior or unique personal knowledge”). Because the judge found the Fertitta Subpoenas should
`be revoked for other reasons, he found it unnecessary to address Respondents’ “apex” doctrine
`argument. (Special Appeal Exhibit 7, fn. 4.)
`6 Indeed, as Respondents argued in support of their petition to revoke, the Region never
`informed or even suggested to Respondents’ counsel during its investigation of the underlying
`charges that it believed the Fertittas were somehow involved or had personal knowledge of any
`relevant events. (Special Appeal Exhibit 5.)
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`5
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`On October 30, CGC filed a motion for reconsideration of the judge’s order granting
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`Respondents’ petition to revoke. (Special Appeal Exhibit 8.) However, CGC failed to point to any
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`new information or evidence warranting reconsideration of the judge’s initial order. Consequently,
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`the judge denied the motion for reconsideration on November 5. (Special Appeal Exhibit 9.) In
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`denying the motion for reconsideration, the judge explained that CGC raised nothing that was not
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`previously argued in CGC’s opposition to the petition to revoke or considered by the judge,
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`including any significant new facts or circumstances regarding Respondents’ rebuttal or defense
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`to the allegations. (Special Appeal Exhibit 9.) Indeed, the judge observed, CGC even
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`acknowledged in their motion for reconsideration that the details of Respondents’ rebuttal case
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`remained “somewhat speculative.” (Special Appeal Exhibit 9.)
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`In denying CGC’s motion for reconsideration, the judge again stated, as he did in granting
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`Respondents’ petition to revoke, that CGC was free to seek reconsideration and require the
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`Fertittas to appear and testify as adverse witnesses pursuant to the subpoenas if and when they
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`could show that the Fertittas’ testimony would be relevant to any of the disputed allegations or
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`issues and that its probative value would not be substantially outweighed by a danger of undue
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`delay, wasting time, or needlessly presenting cumulative evidence. (Special Appeal Exhibit 9.)
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`III. LEGAL ARGUMENT
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`CGC’s request for special permission to appeal the judge’s decision to revoke the Fertitta
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`Subpoenas should be denied. Section 102.31(b) of the Board’s Rules and Regulations provides, in
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`pertinent part, that “[t]he Administrative Law Judge . . . will revoke [a] subpoena if in [his] opinion
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`the evidence whose production is required does not relate to any matter . . . in question in the
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`proceedings . . . or if for any other reason sufficient in law the subpoena is otherwise invalid.” In
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`the judge’s opinion, CGC has offered nothing more than mere speculation about the relevance and
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`6
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`probative value of testimony from Frank and Lorenzo Fertitta to proving the alleged violations
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`under Board precedent. Importantly, however, the judge expressly invited CGC to seek
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`reconsideration or reissue the subpoenas if the documents produced pursuant to separate subpoenas
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`and/or the evidence adduced at the hearing provided substantial reasons to believe the Fertittas’
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`testimony would be relevant to any of the complaint allegations, and that its probative value would
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`not be substantially outweighed by a danger of undue delay, wasting time, or needlessly presenting
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`cumulative evidence under FRE 403.
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`In their October 30 motion for reconsideration, CGC were unsuccessful in persuading the
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`judge that sufficient grounds existed to reverse the original order. The judge specifically pointed
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`out that CGC raised nothing that had not previously been argued in CGC’s opposition to the
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`petition to revoke or considered by the judge. Now, in support of their request for special
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`permission to appeal, CGC argues they have received evidence that the Fertittas had some direct,
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`personal involvement in the decisions giving rise to the alleged unfair labor practice allegations in
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`the case. However, this “new” evidence has not been presented to the judge to evaluate and make
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`a determination on whether 1) it is relevant; 2) its probative value is substantially outweighed by
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`a danger of undue delay, wasting time, and needless presentation of cumulative evidence; and 3)
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`it should be excluded under the “apex” doctrine.
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`The judge is the appropriate evaluator of these issues, not the Board on a special permission
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`to appeal. Consequently, CGC’s request for special permission to appeal should be denied.
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`Respectfully submitted,
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`s/ Reyburn W. Lominack, III
`Reyburn W. Lominack, III, Esq.
`Michael D. Carrouth, Esq.
`FISHER & PHILLIPS LLP
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`7
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`1320 Main Street, Suite 750
`Columbia, South Carolina 29201
`Phone: (803) 255-0000
`Fascimile: (803) 255-0202
`rlominack@fisherphillips.com
`mcarrouth@fisherphillips.com
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`November 20, 2020
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`8
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`STATEMENT OF SERVICE
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`The undersigned hereby states that Respondents NP Red Rock LLC d/b/a Red Rock Casino
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`Resort Spa, NP Boulder LLC d/b/a Boulder Station Hotel & Casino, and NP Palace LLC d/b/a
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`Palace Station Hotel & Casinos’ OPPOSITION TO COUNSEL FOR THE GENERAL
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`COUNSEL’S REQUEST FOR SPECIAL PERMISSION TO APPEAL REVOCATION OF
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`SUBPOENAS AD TESTICANDUM A-1-1AIUQ3D AND A-1-1AIV91L in the above-
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`captioned cases has been E-Filed on the National Labor Relations Board’s website, and a copy
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`served on the following by email, on the date indicated below:
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`Jeffrey D. Wedekind
`Sara Demirok, Esq.
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`Kyler Scheid, Esq.
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`Kimberley Weber, Esq.
`Richard Treadwell, Esq.
`Claudia Montano
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`jeffrey.wedekind@nlrb.gov
`sara.demirok@nlrb.gov
`kyler.scheid@nlrb.gov
`kweber@msh.law
`rtreadwell@msh.law
`claudiaguzman351@aol.com
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`s/Reyburn W. Lominack, III
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`November 20, 2020
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`9
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