UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC;
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`FP HOLDINGS, L.P. d/b/a
`PALMS CASINO RESORT AND PALMS PLACE, and
`FIESTA PARENTCO, L.L.C., General Partner;
`
`and
`
`NP BOULDER LLC d/b/a
`BOULDER STATION HOTEL & CASINO;
`
`and
`
`NP FIESTA LLC d/b/a
`FIESTA RANCHO HOTEL & CASINO;
`
`and
`
`NP LAKE MEAD LLC d/b/a
`FIESTA HENDERSON CASINO HOTEL;
`
`and
`
`NP PALACE LLC d/b/a
`PALACE STATION HOTEL & CASINO;
`
`and
`
`NP RED ROCK LLC d/b/a
`RED ROCK CASINO, RESORT & SPA;
`
`and
`
`
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC;
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`FP HOLDINGS, L.P. d/b/a
`PALMS CASINO RESORT AND PALMS PLACE, and
`FIESTA PARENTCO, L.L.C., General Partner;
`
`and
`
`NP BOULDER LLC d/b/a
`BOULDER STATION HOTEL & CASINO;
`
`and
`
`NP FIESTA LLC d/b/a
`FIESTA RANCHO HOTEL & CASINO;
`
`and
`
`NP LAKE MEAD LLC d/b/a
`FIESTA HENDERSON CASINO HOTEL;
`
`and
`
`NP PALACE LLC d/b/a
`PALACE STATION HOTEL & CASINO;
`
`and
`
`NP RED ROCK LLC d/b/a
`RED ROCK CASINO, RESORT & SPA;
`
`and
`
`
`
`NP SANTA FE LLC d/b/a
`SANTA FE STATION HOTEL & CASINO;
`
`and
`
`NP SUNSET LLC d/b/a
`SUNSET STATION HOTEL & CASINO;
`
`and
`
`NP TEXAS LLC d/b/a
`TEXAS STATION GAMBLING HALL AND HOTEL;
`
`and
`
`STATION GVR ACQUISITION, LLC d/b/a
`GREEN VALLEY RANCH RESORT SPA CASINO;
`
`collectively, a Single Employer and
`Single Integrated Enterprise
`
`and
`
`LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS a/w
`UNITE HERE INTERNATIONAL UNION
`
`and
`
`THOMAS STALLINGS
`
`Party in Interest
`
`2
`
`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
`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
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC;
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`3
`
`
`
`NP SUNSET LLC d/b/a
`SUNSET STATION HOTEL & CASINO;
`
`and
`
`FP HOLDINGS, L.P. d/b/a
`PALMS CASINO RESORT AND PALMS PLACE, and
`FIESTA PARENTCO, L.L.C., General Partner;
`
`and
`
`NP LAKE MEAD LLC d/b/a
`FIESTA HENDERSON CASINO HOTEL;
`
`and
`
`STATION GVR ACQUISITION, LLC d/b/a
`GREEN VALLEY RANCH RESORT SPA CASINO;
`
`collectively, a Single Employer and
`Single Integrated Enterprise
`
`and
`
`INTERNATIONAL UNION OF OPERATING ENGINEERS,
`LOCAL 501, AFL-CIO
`
`and
`
`THOMAS STALLINGS
`
`Party in Interest
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC;
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`4
`
`Casess28-CA-239331
`28-CA-247230
`28-CA-260724
`28-CA-274303
`28-CA-276527
`
`
`
`NP TEXAS STATION LLC d/b/a TEXAS STATION
`GAMBLING HALL AND HOTEL;
`
`collectively, a Single Employer and
`Single Integrated Enterprise
`
`and
`
`MARIA SANJUANA ORTIZ
`
`RED ROCK RESORTS, INC.;
`
`and
`
`STATION HOLDCO LLC
`
`and
`
`STATION CASINOS LLC;
`
`and
`
`Case 28-CA-245647
`
`NP PALACE LLC d/b/a PALACE STATION HOTEL &
`CASINO
`
`collectively, a Single Employer and
`Single Integrated Enterprise
`
`and
`
`BLAKE SAARI
`
`Case 28-CA-273936
`
`ORDER1
`
`The Respondent’s request for special permission to appeal Administrative Law Judge
`
`Amita Tracy’s August 12, 2021 order denying the Respondent’s petition to revoke subpoenas ad
`
`testificandum A-1-1D0635D and A-1-1D0RGN1 served on Frank Fertitta III and Lorenzo
`
`1 The National Labor Relations Board has delegated its authority in this proceeding to a three-
`member panel.
`
`5
`
`
`
`Fertitta is granted. On the merits, the appeal is denied. We find that the Respondent has failed to
`
`show that the judge’s denial of the petition to revoke the subpoenas was an abuse of discretion,
`
`as the subpoenas seek information relevant to the matters at issue, and the Respondent failed to
`
`establish any other legal basis for revoking the subpoenas. See Postal Workers Local 64 (USPS),
`
`340 NLRB 912 (2003); Offshore Mariners United, 338 NLRB 745 (2002); see also 29 C.F.R. §
`
`102.31(b).
`
`The Respondent’s primary argument in support of its special appeal is that the judge
`
`erred in misapplying the so-called “apex doctrine,” a tool some federal courts use to limit the
`
`potential for harassment of high-level corporate executives through pre-trial depositions. The
`
`Respondent argues that, under that doctrine, those officials enjoy a rebuttable presumption that
`
`subpoenas for their testimony are unduly burdensome, unless the party issuing the subpoena can
`
`show that they have unique, personal knowledge of relevant information that cannot be obtained
`
`through less intrusive means – a presumption that, the Respondent argues, the General Counsel
`
`did not overcome. The Respondent, however, identifies no cases in which the Board has applied
`
`such a standard, neither to revoke a subpoena for trial testimony, nor otherwise.
`
`In rejecting the Respondent’s argument, we emphasize that we see no evidence that the
`
`concerns animating the apex doctrine (potential harassment of high-level corporate officials with
`
`little personal knowledge of the matters at issue) are at play here. The judge described, in detail,
`
`the disputed subject matters on which the Fertittas may have personal knowledge: among other
`
`things, those relating to the alleged unfair labor practices, the requested bargaining order under
`
`NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and the Respondent’s employer and single
`
`employer status. The Respondent has not demonstrated that the General Counsel issued the
`
`6
`
`
`
`subpoenas to harass the Fertittas or that the subpoenas are unduly burdensome.2 See, e.g., FDIC
`
`v. Garner, 126 F.3d 1138, 1145-46 (9th Cir. 1997) (party petitioning for revocation bears burden
`
`of showing harassment and/or undue burden). And the judge has promised that she will not
`
`allow the Fertitta testimony, or any other testimony, to be used as a “fishing expedition.” We
`
`therefore decline to second guess the judge’s significant discretion to regulate the course of the
`
`hearing and direct the creation of the record.3 See, e.g., Parts Depot, Inc., 348 NLRB 152, 152
`
`n.6 (2006), enfd. mem. 260 Fed. Appx. 607 (4th Cir. 2008); 29 C.F.R. § 102.35.
`
`Dated, Washington, D.C., October 13, 2021.
`
`LAUREN McFERRAN,
`
`CHAIRMAN
`
`MARVIN E. KAPLAN,
`
`MEMBER
`
`JOHN F. RING,
`
`MEMBER
`
`2 The Respondent has presented no evidence that the Charging Party counsel’s statements
`regarding the Fertittas in any way reflect the General Counsel’s motives in issuing the
`subpoenas.
`
`3 Although we have affirmed the judge’s ruling on the subpoenas, this does not preclude the
`parties from entering into stipulations or agreeing to other measures that would obviate the need
`for the Fertittas’ testimony.
`
`7
`
`
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