UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
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`RED ROCK RESORTS, INC.;
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`and
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`STATION HOLDCO LLC;
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`and
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`STATION CASINOS LLC;
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`and
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`FP HOLDINGS, L.P. d/b/a
`PALMS CASINO RESORT AND PALMS PLACE, and
`FIESTA PARENTCO, L.L.C., General Partner;
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`and
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`NP BOULDER LLC d/b/a
`BOULDER STATION HOTEL & CASINO;
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`and
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`NP FIESTA LLC d/b/a
`FIESTA RANCHO HOTEL & CASINO;
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`and
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`NP LAKE MEAD LLC d/b/a
`FIESTA HENDERSON CASINO HOTEL;
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`and
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`NP PALACE LLC d/b/a
`PALACE STATION HOTEL & CASINO;
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`and
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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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`1
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`NP SANTA FE LLC d/b/a
`SANTA FE STATION HOTEL & CASINO;
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`and
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`NP SUNSET LLC d/b/a
`SUNSET STATION HOTEL & CASINO;
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`and
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`NP TEXAS LLC d/b/a
`TEXAS STATION GAMBLING HALL AND HOTEL;
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`and
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`STATION GVR ACQUISITION, LLC d/b/a
`GREEN VALLEY RANCH RESORT SPA CASINO;
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`collectively, a Single Employer and
`Single Integrated Enterprise
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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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`and
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`THOMAS STALLINGS, an Individual
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`Party in Interest
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`2
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`Cases 28-CA-228052
`28-CA-228944
`28-CA-247602
`28-CA-248464
`28-CA-249203
`28-CA-249576
`28-CA-251083
`28-CA-251254
`28-CA-251803
`28-CA-252404
`28-CA-252964
`28-CA-256630
`28-CA-257778
`28-CA-260167
`28-CA-260169
`28-CA-260187
`28-CA-260199
`28-CA-260207
`28-CA-260209
`28-CA-260216
`28-CA-261666
`28-CA-262465
`28-CA-262973
`28-CA-262977
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`28-CA-262980
`28-CA-262982
`28-CA-262987
`28-CA-263582
`28-CA-264135
`28-CA-264297
`28-CA-264465
`28-CA-264469
`28-CA-264476
`28-CA-264612
`28-CA-264619
`28-CA-264626
`28-CA-264631
`28-CA-264638
`28-CA-266556
`28-CA-266987
`28-CA-267067
`28-CA-268930
`28-CA-268957
`28-CA-268958
`28-CA-268960
`28-CA-269516
`28-CA-269517
`28-CA-269519
`28-CA-269520
`28-CA-269959
`28-CA-269962
`28-CA-269965
`28-CA-271251
`28-CA-271608
`28-CA-273812
`28-CA-276735
`28-CA-276745
`28-CA-277335
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`RED ROCK RESORTS, INC.;
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`and
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`STATION HOLDCO LLC;
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`and
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`STATION CASINOS LLC;
`
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`and
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`3
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`Casess 28-CA-239331
`28-CA-247230
`28-CA-260724
`28-CA-274303
`28-CA-276527
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`NP SUNSET LLC d/b/a
`SUNSET STATION HOTEL & CASINO;
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`and
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`FP HOLDINGS, L.P. d/b/a
`PALMS CASINO RESORT AND PALMS PLACE, and
`FIESTA PARENTCO, L.L.C., General Partner;
`
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`and
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`NP LAKE MEAD LLC d/b/a
`FIESTA HENDERSON CASINO HOTEL;
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`and
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`STATION GVR ACQUISITION, LLC d/b/a
`GREEN VALLEY RANCH RESORT SPA CASINO;
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`collectively, a Single Employer and
`Single Integrated Enterprise
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`and
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`INTERNATIONAL UNION OF OPERATING ENGINEERS,
`LOCAL 501, AFL-CIO
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`and
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`THOMAS STALLINGS, an Individual
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`Party in Interest
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`RED ROCK RESORTS, INC.;
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`and
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`STATION HOLDCO LLC;
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`and
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`STATION CASINOS LLC;
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`and
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`4
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`NP TEXAS STATION LLC d/b/a TEXAS STATION
`GAMBLING HALL AND HOTEL;
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`collectively, a Single Employer and Single Integrated
`Enterprise
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`and
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`MARIA SANJUANA ORTIZ, AN INDIVIDUAL
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`RED ROCK RESORTS, INC.;
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`and
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`STATION HOLDCO LLC
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`and
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`STATION CASINOS LLC;
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`and
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`Case 28-CA-245467
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`Case 28-CA-273936
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`NP PALACE LLC LLC d/b/a PALACE STATION HOTEL &
`CASINO
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`collectively, a Single Employer and
`Single Integrated Enterprise
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`and
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`BLAKE SAARI, AN INDIVIDUAL
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`COUNSEL FOR THE GENERAL COUNSEL’S OPPOSITION TO RESPONDENT’S
`REQUEST FOR SPECIAL PERMISSION TO APPEAL DENIAL OF PETITION TO
`REVOKE SUBPOENAS AD TESTIFICANDUM A-1- 1D0635D AND A-1-D0RGN1
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`5
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`Counsel for the General Counsel (CGC) opposes Respondent’s Request for Special
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`Permission to Appeal (the “Special Appeal”)1 the Administrative Law Judge’s (the “ALJ”)
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`denial of Respondent’s Petition to Revoke Subpoenas Ad Testificandum A-1-1D0635D and A-1-
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`D0RGN1 (the “Fertitta Subpoenas”) in the above-captioned matter. The Fertitta Subpoenas
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`require the appearance and testimony of Frank Fertitta III, Chief Executive Officer and Chairman
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`of the Board of Red Rock Resorts, Inc. and Chief Executive Officer of Respondent Station
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`Casinos LLC, as well as Lorenzo Fertitta, Vice Chairman of the Board of Red Rock Resorts, Inc.
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`(collectively, “the Fertittas”).
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`CGC respectfully requests that the Board deny Respondent’s Special Appeal as the ALJ
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`correctly applied Board law and did not abuse her discretion in denying Respondent’s Petition to
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`Revoke the Fertitta Subpoenas.
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`I.
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`Background
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`On April 12, 2021, the Regional Director of Region 28 of the Board issued the instant
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`Complaint.2 The Complaint contains allegations stemming from charges filed by the Local Joint
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`Executive Board of Las Vegas (the “LJEB”), the International Union of Operating Engineers,
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`Local 501 (the “IUOE”) and individual employees. The Complaint alleges Respondent engaged
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`in numerous, severe and pervasive unfair labor practices within the meaning of Sections 8(a)(1),
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`(3), (4) and (5) of the Act during the LJEB and IUOE’s efforts to organize and represent
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`employees at Respondent’s facilities, and in response to its employees’ protected, concerted
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`activities, filing of charges and participation in NLRB proceedings, union activities and support.
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`Respondent’s conduct alleged in the Complaint dates to roughly March of 2018 with the most
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`1 References to specific pages of Respondent’s Special Appeal will be set forth herein as follows: R. Appeal at (page
`number).
`2 The Complaint was attached as Respondent’s Special Appeal Exhibit 1.
`6
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`recent charges incorporated in the Complaint being filed in March of 2021, which is a span of
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`roughly three (3) years. The conduct alleged in the Complaint concerns all of Respondent’s
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`facilities and includes, among other things, allegations Respondent:
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`- Promised and granted benefits to employees to discourage their support for
`the LJEB;
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`- Threatened employees with loss of promised benefits and future benefits if
`they selected the LJEB as their collective-bargaining representative;
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`- Threatened employees that collective-bargaining would be futile if they
`selected the LJEB as their collective-bargaining representative, and/or that it
`would be futile to continue with the LJEB as their collective-bargaining
`representative;
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`- Solicited decertification, provided more than ministerial assistance to
`employees in circulating decertification petitions, and withdrew recognition of
`the LJEB as collective-bargaining representative of its employees at its
`Boulder Station and Palace Station facilities;
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`- Disciplined, suspended and/or discharged employees at its Green Valley
`Ranch, Texas Station, Sunset Station, Fiesta Henderson, Fiesta Rancho, Palms
`and Palms Place, Boulder Station, Palace Station, and/or Santa Fe facilities;
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`- Laid off, terminated, recalled, reinstated, rehired, and transferred, or otherwise
`manipulated its employee complement across all Respondent facilities under
`the cover of the Coronavirus Disease 2019 (COVID-19) and without giving
`notice or an opportunity to bargain to the LJEB, the IUOE and/or Painters,
`District Council 16 (collectively, the Unions), the three labor organizations
`that represent bargaining units of employees at Respondent’s facilities as
`alleged in the Complaint;
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`- Failed or refused to consider for hire or hire applicants for employment who
`were former employees Respondent laid off or terminated under the cover of
`COVID-19;
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`- Failed and refused to bargain collectively and in good faith with the LJEB, the
`IUOE and Painters, District Council 16; and
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`- Undermined the Unions as the collective-bargaining representatives of
`Respondent’s employees of various bargaining units they represent across
`Respondent’s facilities.
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`7
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`Because of the scope, pervasiveness and shocking nature of Respondent’s unfair labor practices,
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`the Complaint alleges there is only a slight possibility that a fair election can be held at its Red
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`Rock, Texas Station and Santa Fe Station facilities, even if the Board ordered traditional
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`remedies, such that, on balance, employees’ sentiments regarding representation, having been
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`expressed through authorization cards, would be better protected by issuance of a remedial
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`bargaining order.
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`In its Answer dated May 10, 2021, Respondent denied engaging in the unfair labor
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`practices alleged in the Complaint and raised twenty-six (26) affirmative defenses. Respondent
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`also denied the commerce allegations for Respondent Red Rock Resorts, Inc. (“Respondent
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`RRR”) and Respondent Station Holdco, LLC (“Respondent Station Holdco”); denied the
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`Complaint’s single employer and single integrated enterprise allegations; denied that the LJEB
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`has represented units of Food and Beverage and Hotel Operations employees at its Boulder
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`Station and Palace Station facilities since about September 13, 2016 and March 13, 2017,
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`respectively; and at least in part denied the supervisory and agency status of individuals named
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`in the Complaint.3 As a result, CGC has issued Subpoenas Duces Tecum and Ad Testificandum
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`to Respondent and certain of Respondent’s agents and supervisors seeking testimony and
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`documents relevant to the issues of whether Respondent engaged in the alleged unfair labor
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`practices, as well as the issues concerning employer status, single-employer status, supervisory
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`and agency status that Respondent has denied in its Answer. The pleadings raise a broad array of
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`issues because the Complaint is extensive, and Respondent has denied nearly all Complaint
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`allegations.4
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`3 A copy of Respondent’s Answer is attached hereto as Exhibit 1.
`4 Following the initial Complaint and Answer, on August 10, 2021, a Second Consolidated Complaint and Notice of
`Hearing (“Second Complaint”) issued, adding some allegations and discriminatees to the Complaint and making
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`8
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`On July 6, 2021, CGC served the Fertitta Subpoenas. As noted by Respondent in its
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`Appeal, the CGC also served subpoenas ad testificandum to other of Respondent’s current and
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`former supervisors, managers, officers, and agents the same date. R. Appeal at 3.
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`On July 12, 2021, Respondent timely filed its Petition to Revoke the Fertitta Subpoenas.
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`On July 13, 2021, Respondent separately filed a timely Petition to Revoke subpoenas ad
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`testificandum CGC had served on Respondent’s other current and former supervisors, managers,
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`officers, and agents (the “2(11) Subpoenas”). In its Petition to Revoke the Fertitta Subpoenas,
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`Respondent contended that the Fertitta Subpoenas should be revoked under the “apex doctrine,”
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`and because the subpoenas do not seek evidence within the Fertittas’ knowledge. Respondent’s
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`Petition to Revoke also asserted that the Fertittas were not referenced in connection with any
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`specific allegations contained in the Complaint. In its Petition to Revoke the 2(11) Subpoenas,
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`Respondent raised, among others, the same argument in support of revocation: that certain of its
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`supervisors, managers, officers, and agents were not referenced in connection with specific
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`Complaint allegations.
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`On July 30, 2021, CGC filed a Response in Opposition to Respondent’s Petition to
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`Revoke the Fertitta Subpoenas. The CGC’s Response is attached to Respondent’s Special
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`Appeal as Special Appeal Exhibit 5.
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`corrections to several paragraphs of the Complaint. Respondent filed a Second Answer on August 24, 2021.
`Respondent’s Second Answer continues to deny the employer status of certain Respondents including, but not
`limited to, Respondent RRR and Respondent Station Holdco, as well as the single employer and single integrated
`enterprise allegations as they relate to Respondent RRR and Respondent Station Holdco, among other denials.
`Neither the Second Complaint, nor Respondent’s Second Answer, contain information or allegations that would
`impact the Board’s consideration of this matter.
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`9
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`On August 6, 2021, Respondent filed a Response to the CGC’s Response in Opposition
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`to Respondent’s Petition to Revoke the Fertitta Subpoenas.5
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`On August 12, 2021, the ALJ issued her order denying Respondent’s Petition to Revoke
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`the Fertitta Subpoenas. The ALJ’s Order is attached to Respondent’s Special Appeal as Special
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`Appeal Exhibit 3.6
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`II.
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`THE BOARD SHOULD DENY RESPONDENT’S REQUEST FOR SPECIAL
`PERMISSION TO APPEAL THE ALJ’S ORDER DENYING RESPONDENT’S
`PETITION TO REVOKE THE FERTITTA SUBPOENAS
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`A. The ALJ’s Order Denying Respondent’s Petition to Revoke the Fertitta
`Subpoenas
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`The ALJ Order Denying Respondent’s petition to revoke is consistent with Board law
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`and supported by the circumstances. In denying Respondent’s Petition, the ALJ considered
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`Respondent’s arguments set forth in its Petition and its Reply to CGC’s Opposition.
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`Specifically, the ALJ considered Respondent’s arguments that the Subpoenas should be
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`revoked because the Fertittas are not specifically named in the Complaint as committing any
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`unfair labor practices and that requiring them to testify would violate the “apex” doctrine, a
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`doctrine Respondent failed to establish has ever been applied in any Board proceeding. ALJ
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`Order at 5-6. However, the ALJ rejected Respondent’s arguments, reasonably concluding that
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`the Fertitta Subpoenas seek “relevant information that may advance the General Counsel’s case
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`5 On August 2, 2021, Respondent filed a Notice of Intent to file Reply Briefs in Support of its Petitions to Revoke
`(the “NOI”). On August 5, 2021, CGC filed an Opposition to Respondent’s NOI noting: (1) Respondent’s NOI was
`inconsistent with the Board’s Rules and Regulations, which do not provide for replies in a subpoena context; and (2)
`to the extent Respondent would raise additional arguments or support for its arguments in any reply, those
`arguments and/or support would be untimely reasons for revocation under the Board’s Rules and Regulations.
`6 Although the ALJ separately denied Respondent’s Petition to Revoke the 2(11) Subpoenas including, but not
`limited to, Respondent’s identical arguments that subpoenas sent to certain of its supervisors, managers, officers and
`agents should be revoked because they were not specifically named in connection with substantive Complaint
`allegations, Respondent has not requested Special Appeal with respect to the ALJs Order denying Respondent’s
`petition to Revoke any of the 2(11) Subpoenas.
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`10
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`or rebut any anticipated defenses.” ALJ Order at 6. Reaching her conclusion, the ALJ applied
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`the Board’s well-established subpoena standard. See, e.g., NLRB v. Dutch Boy, Inc., 606 F.2d
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`929, 932 (10th Cir. 1979) (finding subpoenas issued by the Board pursuant to section 11(1) are to
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`be enforced . . . if the court finds “that a proceeding is pending before the Board of which it has
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`jurisdiction and the evidence sought relates to or touches the matter under investigation.”)
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`(internal citations omitted).
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`In finding that the Fertitta Subpoenas seek relevant testimony, the ALJ rejected
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`Respondent’s argument that the subpoenas should be rejected because the Fertittas are not
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`specifically identified in the Complaint as having committed unfair labor practices. On this
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`point, the ALJ acknowledged that Lorenzo Fertitta was not identified in connection with specific
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`allegations in the Complaint, but found that, contrary to Respondent’s contentions, Frank Fertitta
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`III was named in allegations that he issued communications to employees that are alleged to
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`affect the remedial relief sought by the General Counsel in this matter under NLRB v. Gissel
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`Packing Co., 395 U.S. 575 (1969). ALJ Order at 6.
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`Further, the ALJ found that despite the lack of express connection in the Complaint as
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`drafted, CGC had identified several allegations that the Fertittas would have knowledge of,
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`including (1) allegations related to other communications sent to employees (Complaint ¶¶ 6(z),
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`7(x), 7(y), and 7(dd)) (Frank Fertitta); and (2) allegations that the various entities constitute a
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`single employer (Frank and Lorenzo Fertitta). ALJ Order at 6. The ALJ pointed out that the
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`Fertittas hold positions within the entities that are disputed as comprising a single employer that
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`show they would have personal and unique knowledge related to the relationship amongst the
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`entities. Thus, the ALJ found that the Fertitta Subpoenas seek reasonably relevant testimony to
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`the hearing, and that even if the apex doctrine applied in Board cases, such doctrine would not
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`11
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`preclude the Fertittas’ testimony because they possess unique knowledge. Notably, the ALJ
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`recognized that Respondent had not provided any authority supporting its position that the Board
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`even adheres to the apex doctrine. ALJ Order at 6, n.1.
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`As discussed more fully below, the ALJ’s Order is grounded in Board law, and she did
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`not abuse her discretion by rejecting Respondent’s position that the apex doctrine necessarily
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`shields the Fertittas from testifying in this matter.
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`B. Respondent’s Request for Special Permission to Appeal Presents a Case of First
`Impression
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`Respondent’s Request for Special Permission to Appeal the ALJ’s Order is premised on
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`its contention the ALJ erred by failing to apply the apex doctrine when denying its attempt to
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`revoke the Fertitta Subpoenas. Respondent’s position, in sum, is that the so-called “apex
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`doctrine” is rooted in the Federal Rules of Civil Procedure, which provides the Board with useful
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`guidance on subpoena revocation matters, and should be applied here. R. Appeal at 5. Further,
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`Respondent concedes that the apex doctrine has not been applied by the Board in previous cases
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`but contends that the doctrine should apply here because the Fertittas require protection from
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`harassment, which, according to Respondent, is CGC’s intention.7 R. Appeal at 4-6. However,
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`as discussed below, the Board should not find that the ALJ erred by failing to apply the so-called
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`apex doctrine. To find otherwise would carve out an exception from the Board’s well-
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`established subpoena standard to require special treatment for high-ranking corporate officials,
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`regardless of their involvement in unfair labor practices under prosecution.
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`The apex doctrine, in effect, establishes a rebuttable presumption that the burden of
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`requiring such individuals’ testimony outweighs the need for their testimony, absent a showing
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`that such individuals have unique personal knowledge of relevant facts and that the relevant fact
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`7 This contention is addressed in more detail infra at 16-17.
`12
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`cannot be obtained through less intrusive means. See, e.g., Tierra Blanca Ranch High Country
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`Youth Program v. Gonzales 329 F.R.D. 694, 697 (D.N.M. 2019). Although Respondent has
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`described the apex doctrine as “routinely applied,” the apex doctrine is not universally applied,
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`as some courts have declined to supplant the balancing of need for evidence against an actual
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`showing of undue burden required under Rule 26 of the Federal Rules of Civil Procedure. See,
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`e.g., Serrano v. Cintas Corp., 699 F.3d 884, 902 (6th Cir. 2012).
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`Respondent argues that the ALJ’s analysis constitutes “reversible error” because (1) the
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`ALJ did not explain “what actual, unique evidence [the Fertittas] might possess, and (2) the ALJ
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`did not apply what it contends is the “second prong of the analysis needed to rebut the
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`presumption against requiring testimony from the highest-level executives – that such
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`information cannot be obtained through other less obtrusive means[.]” R. Appeal at 6-7.
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`Respondent contends that by not considering whether the information sought from the Fertittas
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`can be obtained by other means, the ALJ is “unnecessarily” allowing the Ferttitas to be harassed.
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`R. Appeal at 7. The remainder of Respondent’s Special Appeal primarily addresses how CGC
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`has not overcome the rebuttable presumption should the Board find that the apex doctrine
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`applies. R. Appeal at 7-10.
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`Respectfully, the Board should reject Respondent’s arguments that the ALJ erred by not
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`applying the apex doctrine as set forth in its Special Appeal. As summarized above, the ALJ
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`applied the Board’s well-established standard governing subpoena revocation. To impose an
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`obligation on the ALJ to treat the Fertitta Subpoenas different than any other subpoenas would
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`upend Board law and essentially eviscerate an ALJ’s discretion in matters involving high-
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`ranking individuals such as here. Moreover, as discussed below, there are overwhelming
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`grounds to find that the Fertitta Subpoenas seek relevant testimony on numerous issues in this
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`13
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`matter, including those not highlighted by the ALJ’s Order. As such, Respondent’s histrionic
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`harassment concerns should be met with a high level of skepticism. CGC merely seeks to
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`prosecute this case, which impacts thousands of employees’ statutory rights, through relevant
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`testimony of Respondent’s highest-level officials because those are the individuals possessing
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`personal knowledge of the events and issues raised in this matter.
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`C. The ALJ did not Abuse Her Discretion by Denying Respondent’s Petition to
`Revoke the Fertitta Subpoenas
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`Sec. 102.35 of the Board's Rules and Regulations provides, in pertinent part, that a judge
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`should “[r]egulate the course of the hearing” and “[t]ake any other necessary action” authorized
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`by the Board's Rules. Thus, the Board accords judges significant discretion in controlling the
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`hearing and directing the creation of the record. See Parts Depot, Inc., 348 NLRB 152, 152 fn. 6
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`(2006), enfd. 260 Fed.Appx. 607 (4th Cir. 2008). The Board reviews ALJ rulings under the
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`highly deferential abuse-of-discretion standard. Abiding by that standard is essential to permit
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`the judge to fulfill the judge’s duty under Sec. 102.35 of the Board's Rules and Regulations to
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`“regulate the course of the hearing.” See generally F.W. Woolworth Co., 251 NLRB 1111, 1111
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`fn. 1 (1980), enfd. 655 F.2d 151 (8th Cir. 1981), cert. denied 455 U.S. 989 (1982).
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`As set forth in more detail below, the ALJ did not abuse her discretion in denying
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`Respondent’s Petition to Revoke the Fertitta Subpoenas.
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`1. The ALJ Applied Board Law Finding the Fertitta Subpoenas Seek Relevant
`Testimony
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`Section 11 of the Act, 29 U.S.C. § 161, grants to the Board and its agents broad
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`investigatory authority, including the power to subpoena any evidence “that relates to any matter
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`under investigation or in question.” 29 U.S.C. § 161(1); NLRB v. Interstate Material Corp., 930
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`F.2d 4, 6 (7th Cir. 1991) (describing the Board’s broad Sec. 11 powers); NLRB v. Steinerfilm,
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`Inc., 702 F.2d 14, 15 (1st Cir. 1983) (same); NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113
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`14
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`(5th Cir. 1982) (same). This broad subpoena power enables the Board “to get information from
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`those who best can give it and who are most interested in not doing so.” U.S. v. Morton Salt Co.,
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`338 U.S. 632, 642 (1950). Thus, such subpoenas may be directed to any person having
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`information relevant to an investigation. See, e.g., Link v. NLRB, 330 F.2d 437, 440 (4th Cir.
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`1964). Courts are to enforce subpoenas issued by the Board pursuant to Section 11(1) of the Act
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`if the court finds “that a proceeding is pending before the Board of which it has jurisdiction and
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`the evidence sought relates to or touches the matter under investigation.” NLRB v. Dutch Boy,
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`Inc., 606 F.2d 929, 932 (10th Cir. 1979). Additionally, a subpoena is proper when it is designed
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`to produce material concerning a defense, even if that defense may never arise. NLRB v. North
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`Bay Plumbing, Inc., 102 F.3d 1005 (1996) citing NLRB v. Dutch Boy, Inc., 606 F.2d at 933 n. 4.
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`The ALJ correctly applied Board law in denying Respondent’s Petition to Revoke the
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`Fertitta Subpoenas. ALJ Order at 6.
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`2. Even if the Apex Doctrine is Applied, the ALJ did not Abuse Her Discretion
`by Denying Respondent’s Petition to Revoke the Fertitta Subpoenas
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`Assuming arguendo the Board were to apply the apex doctrine to Board proceedings, the
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`ALJ properly found that “even if the apex doctrine applied to Board cases, this doctrine would be
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`inapplicable as the Fertitta brothers’ testimony is unique to themselves and reasonably relevant
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`to this hearing.” ALJ Order at 6.
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`As noted supra, the apex doctrine, in effect, establishes a rebuttable presumption that the
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`burden of requiring such individuals’ testimony outweighs the need for their testimony, absent a
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`showing that such individuals have unique personal knowledge of relevant facts and that the
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`relevant facts cannot be obtained through less intrusive means. See, e.g., Tierra Blanca Ranch
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`High Country Youth Program, 329 F.R.D. at 697. Respondent’s Special Appeal essentially
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`argues that the ALJ applied the apex doctrine in denying Respondent’s Petition to Revoke but
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`failed to apply the apex doctrine properly.
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`Although Respondent claims that the intent of the Fertitta Subpoenas is to harass
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`Respondent’s “well-known business owners,” R. Appeal at 4, Respondent’s contention is a red
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`herring. CGC did not serve the Fertitta Subpoenas for any purpose other than the fact that, as the
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`ALJ correctly found, they have unique and relevant testimony necessary for the instant
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`proceeding. This is the same reason the CGC has served subpoenas on other of Respondent’s
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`current and former supervisors, managers, officers, and agents (whose subpoenas, at least in part,
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`Respondent has not petitioned to revoke and/or for whom Respondent has not filed a Special
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`Appeal following a denial of its petitions to revoke). In support of its arguments in this regard,
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`Respondent cites to one article on Law360. R. Appeal at 4, fn. 5. Upon information and belief,8
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`the article appears to include a statement attributed to counsel for one of the Charging Parties
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`about the instant case and the Fertitta subpoenas. It should go without saying that counsel for the
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`Charging Party is not counsel for the General Counsel. A Charging Party does not control the
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`CGC’s theory or presentation of the case, nor does it have any say in whether or to whom the
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`CGC ultimately decides to serve (or not serve) subpoenas. See, e.g., Zurn/N.E.P.C.O., 329
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`NLRB 484, 484 (1999); Kimtruss Corp., 305 NLRB 710, 711 (1991) (General Counsel controls
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`the theory of the case, not the Charging Party ).9 Nor does the Charging Party speak for the
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`8 Law360 is a subscription-based service for which the undersigned Counsel for the General Counsel do not have a
`paid subscription. As such, the full content of the article is not available to the undersigned Counsel for the General
`Counsel for review. This is not the first time Respondent has suggested that public statements by agents of a
`Charging Party are somehow attributable to the General Counsel. Respondent did the same in its Motion for a Bill of
`Particulars, wherein it represented to the ALJ that public statements made by one of the Charging Parties were
`public statements made by Region 28.
`9 This familiar axiom is based on Section 3(d) of the Act, which gives the General Counsel “final authority, on
`behalf of the Board, in respect of the investigation of charges and issuance of complaints . . ., and in respect of the
`prosecution of such complaints before the Board.” 29 U.S.C. §153(d). E.g., Moore Dry Dock Co., 92 NLRB 547,
`547 fn. 1 (1950) (charging party not entitled to amend complaint without agreement of the General Counsel).
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`General Counsel. Counsel for the General Counsel has no more control over what counsel for a
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`Charging Party says about the case than it does over what Counsel for Respondent (or
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`Respondent’s clients and representatives) say about the case or put in their Answer.10
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`The CGC has demonstrated evidence establishing the Fertittas have knowledge of facts
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`relevant to the allegations of the Complaint, which demonstrate the need for their testimony.
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`First, Frank Fertitta III is named in paragraphs 5(hh), (mm), and (rr) as having issued
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`communications to employees. Those paragraphs also support the CGC’s seeking a remedial
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`bargaining order under Gissel Packing Co., 395 U.S. 575 (1969). In assessing the
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`appropriateness of such an order, the Board considers any evidence that high-ranking corporate
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`officers not only personally committed violations, but also authorized or directed conduct found
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`to be unlawful. See, e.g., Evergreen America Corp., 348 NLRB 178, 181 (2006) (relying on
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`evidence that employer’s president authorized wage increases, promotions, and a $400 gift
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`certificate to employees), enfd. 531 F.3d 321 (4th Cir. 2008); Overnite Transportation Co., 329
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`NLRB 990, 992-993 (1999) (considering evidence that employer’s senior vice president and its
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`general counsel both helped direct unlawful activities), enf. denied in part on other grounds 280
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`F.3d 417 (4th Cir. 2002). As such, the Fertittas’ testimony is relevant not only to the substantive
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`Complaint allegations and Respondent’s defenses, but also to the remedy sought by CGC in this
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`case.
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`10 See for example: https://www.law360.com/articles/1347645/casino-blasts-nlrb-s-bid-to-force-it-to-bargain-with-
`union; https://www.reviewjournal.com/business/casinos-gaming/labor-board-alleges-station-casinos-attempted-to-
`undermine-unions-2330125/ (representative of Respondent RRR asserting the Regional Director is a “willing
`accomplice” with the LJEB); and Respondent’s 12th Affirmative Defense in its Answer, which states “Respondents
`assert that the Complaint’s frivolous and overreaching allegations constitute nothing more than a coordinated
`scheme between NLRB Region 28 and officials of LJEB to interfere with, and by collusion, to damage
`Respondent’s business enterprises, and to defame Respondents’ officials and managers named in the false
`Complaint.” See Answer at 22.
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`Respondent’s Special Appeal also asserts that testimony in the Red Rock matter
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`demonstrates the Fertittas were not involved in the details of the decisions at issue in that case.
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`R, Appeal at 8-9. First, CGC disputes Respondent’s mischaracterization of the record in that
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`matter. Indeed, the CGC has already explained how the record in the Red Rock matter is replete
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`with evidence of the Fertittas’ hands-on involvement in the management, timing, and
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`implementation of operational decisions at their facilities, issues that will also be vital, if not
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`more so, to the ALJ’s determination of the Complaint allegations in this matter. See CGC’s
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`Opposition to the Petition to Revoke the Fertitta Subpoenas, at pages 7-8 (giving examples of the
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`Fertittas’ involvement in the decisions in that case).
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`Second, and perhaps most importantly, this case is not the Red Rock case. This case is
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`markedly different. Here, in stark contrast to the Red Rock Complaint, there are numerous
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`severe and pervasive 8(a)(3) allegations encompassing all of Respondent’s facilities where the
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`Fertittas’ testimony is expected to be relevant. In that regard, during the investigation of
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`underlying unfair labor practice charges comprising the instant Complaint, Respondent asserted
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`to the Region, among other things, that actions taken by Respondent during the COVID-19
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`pandemic were ultimately decided and implemented by Respondent’s Board of Directors.11
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`Respondent’s actions taken during the COVID-19 pandemic are central to the unfair labor
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`practices alleged in the Complaint in this case. Frank Fertitta III and Lorenzo Fertitta are the
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`highest-ranking members of Respondent RRR’s Board of Directors.12 They have unique
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`11 See, for example, Respondent’s July 31, 2020 supplemental position statement regarding the appropriateness of
`10(j) relief, at page 6, attached hereto as Exhibit 2.
`12 Respondent’s Board consists of: Frank J. Fertitta III, Lorenzo J. Fertitta, Robert A. Cashell, Jr., Robert E. Lewis
`and James E. Nave D.V.M. See Respondent RRR’s April 22, 2021 SEC Schedule 14A Filing, available at
`http://redrockresorts.investorroom.com/sec-filings, last visited August 25, 2021. Frank Fertitta III is the Chairman
`of the Board of Respondent RRR, and Lorenzo Fertitta is the Vice Chairman of the Board of Respondent RRR.
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`knowledge regarding those decisions made by the Board, and their testimony will be relevant not
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`only to the CGC’s case in chief but also to Respondent’s defenses.
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`Third, t