NP Red Rock LLC v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 24-1221 September Term, 2025

FILED ON: JUNE 10, 2026

NP RED ROCK LLC, D/B/A RED ROCK CASINO RESORT SPA,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS,

INTERVENOR

Consolidated with 24-1239, 24-1240

On Petitions for Review and Cross-Application

for Enforcement of an

Order of the National Labor Relations Board

Before: CHILDS and PAN, Circuit Judges, and GINSBURG, Senior Circuit Judge

JUDGMENT

The petitions for review and the cross-applications for enforcement were considered on the

record from the National Labor Relations Board, and the briefs and oral arguments of the parties.

After full review of the case, the court is satisfied that appropriate disposition of the appeal does

not warrant an opinion. See Fed. R. App. P. 36; D.C. Cir. R. 36(d). For the reasons stated below,

it is

ORDERED and ADJUDGED that the petitions for review are DENIED and the cross-

applications for enforcement are GRANTED.

* * *

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I.

Petitioner NP Red Rock LLC, d/b/a Red Rock Casino Resort Spa (Red Rock) is one of ten

casino hotels in Las Vegas, Nevada owned and operated by Station Casinos LLC (Station). Red

Rock opened in 2006 as Station’s largest property, comprising 800 hotel rooms, 2,700 slot

machines, 64 gambling tables, 9 full-service restaurants, a 16-screen movie theatre, a 72-lane

bowling alley, and 94,000 square feet of meeting and convention space—all operated by over 1,300

employees. Starting in 2016, the Local Joint Executive Board of Las Vegas (the Union) began

organizing employees across Station properties. The employees that the Union sought to organize

included culinary and non-gaming employees in departments such as food and beverage,

banquet/catering, bell, housekeeping, sanitation, and internal maintenance. By mid-June 2019, the

Union had successfully organized several thousand employees at six Station properties: Boulder

Station in September 2016, Palace Station in March 2017, Green Valley Ranch in November 2017,

Palms in April 2018, and both Sunset Station and Fiesta Rancho in June 2019. In late 2019, the

Union attempted to organize at Red Rock. When only 46% of the employees voted to unionize,

the Union filed numerous election objections and unfair labor practice challenges with the National

Labor Relations Board (the Board). The Agency’s Regional Director, on behalf of the Board’s

General Counsel, issued a complaint alleging that Red Rock’s and Station’s supervisors or agents

had committed approximately 50 violations of the National Labor Relations Act (the Act) both

before and after the union petition and the election. After an extensive hearing, an Administrative

Law Judge (ALJ) found that Red Rock had committed “most” of the General Counsel’s unfair

labor practice allegations. J.A. 14. 1

The Board adopted in substantial part the ALJ’s findings. As pertinent here, the Board

found that Red Rock violated Section 8(a)(1) of the National Labor Relations Act of 1935, Pub. L.

No. 74-198, 49 Stat. 449 (codified as amended at 29 U.S.C. §§ 151–169), by: (1) promising,

announcing, and implementing substantially improved benefits for Red Rock employees in order

to discourage Union support, (2) threatening to withhold or withdraw benefits if employees

selected the Union, (3) implicitly threatening that supporting the Union would be futile,

(4) threatening employees with job loss as a result of strikes, (5) interrogating an employee about

her Union sympathies, (6) posting photographs of employees on an anti-union website without

their consent, and (7) serving free steaks branded with the words “Vote No” in the Red Rock

employee dining room. NP Red Rock LLC (Board Order), 373 NLRB No. 67, 2024 WL 3063775,

at *1 & n.4 (June 17, 2024). The Board also found that Red Rock violated Section 8(a)(1) and (3)

by issuing discriminatory disciplinary warnings and discriminatory work assignments to union

supporters, and by failing to recall an employee from a COVID-related layoff because of her union

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The hearing before the ALJ took place over 58 days between October 27, 2020, and June 16,

2021, during which a total of 77 witnesses were called to testify and over 400 exhibits were

introduced into evidence. The parties also submitted post-hearing briefing.

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activity. 2 Id. Finally, the Board agreed with the ALJ that Red Rock’s “egregious and pervasive”

conduct warranted a remedial bargaining order. Id. (citing NLRB v. Gissel Packing Co., 395 U.S.

575 (1969)). 3

Red Rock petitioned for review of the Board’s decision; the Board and the Union filed

cross-applications for enforcement. 4

II.

We have jurisdiction to review the parties’ petitions under 29 U.S.C. § 160(e) and (f). Our

“review of the Board’s unfair labor practice decisions is tightly cabined,” and affords the Board “a

high degree of deference.” Absolute Healthcare v. NLRB, 103 F.4th 61, 67 (D.C. Cir. 2024)

(citation modified). We “will uphold the decision of the Board unless it was arbitrary or capricious

or contrary to law, and as long as its findings of fact are supported by substantial evidence in the

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The Board disregarded Red Rock’s challenge to the ALJ’s conclusion that it violated Section

8(a)(1) and (5) “by failing to offer the Union notice and an opportunity to bargain prior to

cancelling table-swap agreements” because Red Rock failed to state, “either in its exceptions or

supporting brief, any grounds on which the judge’s purportedly erroneous conclusion should be

reversed.” Board Order, 2024 WL 3063775, at *1 n.4 (citing Security Walls, LLC, 371 NLRB No.

74, slip op. at 3 n.15 (2022), enforced 80 F.4th 1277 (11th Cir. 2023); Holsum de Puerto, Inc., 344

NLRB 694, 694 n.1 (2005), enforced 456 F.3d 265 (1st Cir. 2006)). The Board also held that, in

any event, it agreed with and affirmed the ALJ’s conclusion that Red Rock violated the Act as

alleged on the merits. Id. Red Rock does not challenge this part of the Board’s order.

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The Board also concluded that Red Rock violated Section 8(a)(5) and (1) by refusing to recognize

and bargain with the Union. Board Order, 2024 WL 3063775, at *6 n.31. Red Rock purports to

challenge this finding by listing it in the issue section of its opening brief, Op. Br. 2, but has

forfeited this challenge because it failed to provide any “legal argument” in the argument section,

Laurel Bay Health & Rehab. Ctr. v. NLRB, 666 F.3d 1365, 1367 n.2 (D.C. Cir. 2012).

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The Union also petitioned for review, contending that the Board improperly declined to include

certain union-access remedies. The Board considered whether “additional remedial provisions . . .

designed to enhance the Union’s access to . . . employees prior to a second election” were

necessary. Board Order, 2024 WL 3063775, at *14 n.76. Yet because it was issuing an

“affirmative bargaining order,” the Board determined that additional remedies were unnecessary.

Id. “A party challenging the Board’s choice of remedy must show that the remedy is clearly

inadequate in light of the findings of the Board.” United Food & Com. Workers Union Loc. 204

v. NLRB, 447 F.3d 821, 828 (D.C. Cir. 2006) (citation modified). Nothing in the Union’s brief

indicates that the Board’s extensive remedial measures, including the bargaining order, are “clearly

inadequate.” Id. Nor, as the Union conceded at oral argument, do “union access remedies always

have to accompany a bargaining order where the Board finds the conduct severe and pervasive.”

Oral Argument at 19:58. Indeed, at oral argument counsel for the Union informed the court that it

is “more important” to the Union that the court affirm the Board’s order as is. Oral Argument at

17:20. We thus deny the Union’s petition.

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record as a whole.” Oak Harbor Freight Lines, Inc. v. NLRB, 855 F.3d 436, 440 (D.C. Cir. 2017).

In reviewing the Board’s decisions for substantial evidence, we do not “displace the Board’s choice

between two fairly conflicting views, even though [we] would justifiably have made a different

choice had the matter been before [us] de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474,

488 (1951). “We are even more deferential when reviewing the Board’s conclusions regarding []

motive, because most evidence of motive is circumstantial.” Traction Wholesale Ctr. Co. v. NLRB,

216 F.3d 92, 99 (D.C. Cir. 2000) (quoting Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 734

(D.C. Cir. 2000)). Finally, we accept all credibility determinations made by the ALJ and adopted

by the Board unless those determinations are “patently insupportable.” Id. (quoting Exxel/Atmos,

Inc. v. NLRB, 28 F.3d 1243, 1246 (D.C. Cir. 1994)).

III.

In challenging the Board’s order, Red Rock presses several arguments on appeal. Yet

because its arguments either lack merit, were forfeited, or were not properly preserved, we deny

Red Rock’s petition and grant the Board’s and the Union’s cross-applications for enforcement.

A.

Red Rock first challenges the Board’s findings that it violated Section 8(a)(1) and (3) of

the Act.

Section 7 of the Act protects employees’ rights “to self-organization, to form, join, or assist

labor organizations, to bargain collectively through representatives of their own choosing, and to

engage in other concerted activities for the purpose of collective bargaining or other mutual aid or

protection.” 29 U.S.C. § 157.

Section 8(a)(1) makes it an “unfair labor practice” to “interfere with, restrain, or coerce

employees in the exercise of” their Section 7 rights. Id. § 158(a)(1). An employer violates Section

8(a)(1) by promising or conferring benefits if the employer’s “purpose” is to “induc[e] employees

to vote against the union.” NLRB v. Exch. Parts Co., 375 U.S. 405, 409 (1964). An employer also

“violates section 8(a)(1)’s bar on interfering with employees’ exercise of their Section 7 rights

when it makes ‘coercive statements that threaten employees with job loss . . . in retaliation for

protected union activities.’” Care One at Madison Ave., LLC v. NLRB, 832 F.3d 351, 360 (D.C.

Cir. 2016) (quoting Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 544 (D.C. Cir. 2006)). Section

8(a)(3) makes it an “unfair labor practice” to “discriminat[e] in regard to hire or tenure of

employment or any term or condition of employment to encourage or discourage membership in

any labor organization.” 29 U.S.C. § 158(a)(3).

As an initial matter, Red Rock forfeited its challenges to many of what it refers to in its

Opening Brief as “miscellaneous” violations. Op. Br. 47. These “miscellaneous” violations

include the Board’s findings that Red Rock violated the Section 8(a)(1) and (3) of the Act by:

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(1) threatening to withhold or withdraw benefits if employees selected the Union, (2) implicitly

threatening that supporting the Union would be futile, (3) posting photographs of employees on an

anti-union website without their consent, (4) serving free steaks branded with the words “Vote No”

in the Red Rock employee dining room, and (5) issuing discriminatory work assignments to union

supporter Maria Gutierrez. Board Order, 2024 WL 3063775, at *1. In its opening brief, Red Rock

challenges each of these “miscellaneous” violations with a short conclusory statement asserting

that the Board “erroneously found” the violation. See Op. Br. 47–53. Red Rock does not, however,

explain how the Board erred, provide any substantive legal argument, or cite to the parts of the

record on which it relies to support its challenge to the Board’s findings. See Dunkin’ Donuts Mid–

Atlantic Distrib. Ctr., Inc. v. NLRB, 363 F.3d 437, 441 (D.C. Cir. 2004) (“[The] argument portion

of an appellant’s opening brief ‘must contain’ the ‘appellant’s contentions and the reasons for them,

with citations to the authorities and parts of the record on which the appellant relies.’” (quoting

Fed. R. App. P. 28(a)(9)(A))); Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019)

(“A party forfeits an argument by mentioning it only ‘in the most skeletal way, leaving the court

to do counsel’s work, create the ossature for the argument, and put flesh on its bones.’” (quoting

Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005)). Because we conclude that Red

Rock forfeited its challenges to the foregoing unfair labor practice violations, we affirm the

Board’s findings without expressing an opinion on the merits.

As for Red Rock’s other challenges, it has not shown that any of the Board’s factual

findings supporting its determination that Red Rock violated Section 8(a)(1) and (3) are

unsupported by “substantial evidence in the record as a whole,” Oak Harbor Freight Lines, 855

F.3d at 440, or that the ALJ’s credibility determinations are “patently insupportable,” Traction

Wholesale Ctr., 216 F.3d at 99. We agree with the Board that substantial evidence supports the

factual findings underlying its conclusions that: (1) Red Rock’s primary purpose and motive in

seeking to implement improved employee benefits was to combat the Union’s campaign; (2) Red

Rock timed its announcement of the new employee benefits in order to undermine the Union

election scheduled for the following week; (3) Red Rock implicitly threatened employees with job

loss by repeatedly warning that if employees selected the Union and the Union was dissatisfied

with the bargaining process, the Union could call for an economic strike and Red Rock could then

permanently replace striking employees; (4) the final written warning issued to employee Claudia

Montano was motivated, at least in part, by Montano’s union activity and not by her having

committed the alleged infractions or pursuant to Red Rock’s established practice; (5) Red Rock’s

purported reasons for not recalling Teresa Powers were pretextual and aimed at ensuring there

would be fewer union leaders in the voting unit in the event that a new election was ordered; and

(6) Red Rock interrogated long-time active Union supporter Luz Gomez about her support for the

Union. 5 The Board, in reaching these conclusions, relied on numerous witnesses’ testimonies,

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Red Rock objects to the Board’s adoption of the ALJ’s finding that Red Rock engaged in

objectionable conduct by excluding certain pro-union employees from captive audience meetings.

By not providing any legal argument to that effect in its opening brief, however, Red Rock forfeited

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extensive record evidence, and the ALJ’s credibility determinations based on the same. That

evidence was “substantial” in that it constituted “such relevant evidence as a reasonable mind

might accept as adequate to support [the Board’s] conclusion[s].” See DHSC, LLC v. NLRB, 944

F.3d 934, 937 (D.C. Cir. 2019) (“Substantial evidence is not a high bar.”).

Because Red Rock either forfeited its arguments or the Board’s unfair labor practice

determinations were supported by substantial evidence, we reject Red Rock’s arguments on this

score.

B.

We turn next to Red Rock’s challenges to various aspects of the Board’s remedial order.

We address and reject each challenge in turn.

Section 10(c) of the Act grants the Board the power to remedy unfair labor practices by

ordering an employer to “take such affirmative action . . . as will effectuate the policies of [the

Act].” 29 U.S.C. § 160(c). The Board, “[i]n fashioning its remedies . . . draws on a fund of

knowledge and expertise all its own, and its choice of remedy must therefore be given special

respect by reviewing courts.” Gissel, 395 U.S. at 612 n.32. As the reviewing court, our “essential

task” is “to assure ourselves that the Board has considered the factors which are relevant to its

choice of remedy, selected a course that is remedial rather than punitive, and chosen a remedy

which can fairly be said to effectuate the purposes of the Act.” RAV Truck & Trailer Repairs, Inc.

v. NLRB, 997 F.3d 314, 329 (D.C. Cir. 2021) (quoting Traction Wholesale Ctr., 216 F.3d at 104).

If the Board has done all this, then we will not disturb its decision. See Traction Wholesale Ctr.,

216 F.3d at 104.

To start, Red Rock argues that the Board’s issuance of a remedial bargaining order under

NLRB v. Gissel Packing Co., which directed Red Rock to bargain with the Union, was

unreasonable. See 395 U.S. 575. “[A]bsent ‘outrageous and pervasive [unfair labor practices],’”

Skyline Distribs. v. NLRB, 99 F.3d 403, 410 (D.C. Cir. 1996), a remedial Gissel bargaining order

is warranted if: (1) “the Union, at some time, . . . had majority support within the bargaining unit;”

(2) “the employer’s unfair labor practices . . . had the tendency to undermine majority strength and

impede the election process;” and (3) “the possibility of erasing the effects of past practices and of

ensuring a fair rerun election by the use of traditional remedies is slight” and “employee sentiment

once expressed in favor of the Union would be better protected by a bargaining order.” St. Francis

this argument. See Dunkin’ Donuts, 363 F.3d at 441 (enforcing rule that “argument portion of an

appellant’s opening brief ‘must contain’ the ‘appellant’s contentions and the reasons for them, with

citations to the authorities and parts of the record on which the appellant relies.’” (quoting Fed. R.

App. P. 28(a)(9)(A))); e.g., Laurel Bay Health, 666 F.3d 1365 at n.2 (applying Dunkin’ Donuts).

In finding Red Rock forfeited its objection, we express no opinion on the merits of the alleged

unfair labor practice.

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Fed’n of Nurses & Health Pros. v. NLRB, 729 F.2d 844, 854–55 (D.C. Cir. 1984). The Board

reasonably determined, based on substantial evidence, that Red Rock’s conduct resulting in dozens

of unfair labor practices was so “pervasive and egregious” as to “warrant[] a remedial affirmative

bargaining order under [Gissel].” Board Order, 2024 WL 3063775, at *6. And besides, the Board

found that the record in this case satisfied all three Gissel requirements.

First, as Red Rock concedes, substantial evidence supports the Board’s findings that the

Union had the support of a majority of employees in the bargaining unit at one time.

Second, substantial evidence supports the Board’s determination that Red Rock’s pervasive

unfair labor practices had the “tendency to undermine majority strength and impede the election

process.” St. Francis, 729 F.2d at 854. As the Board found, the new benefits Red Rock announced

were extensive; Red Rock specifically crafted the new benefit plan to counteract the Union; details

about the new benefits and associated messaging were disseminated to all or nearly all unit

employees; Red Rock’s announcement of the new benefits the week before the election “worked

as intended” by “inducing many unit employees to visibly and publicly renounce the Union”; the

grant of new benefits was accompanied by dozens of unfair labor practices committed by high-

ranking executives, managers, and supervisors; and Red Rock’s unlawful conduct continued even

after the Union lost the election. Board Order, 2024 WL 3063775, at *6–7.

Third, the Board reasonably concluded that the “possibility of erasing the effects” of Red

Rock’s violations and “ensuring a fair rerun election” using “traditional remedies” was “slight.”

Board Order, 2024 WL 3063775, at *7. As the Board explained, unlawfully granted benefits are

capable of having “a particularly longlasting [sic] effect on employees and are difficult to remedy

by traditional means not only because of their significance to the employees, but also because the

Board’s traditional remedies do not require [an employer] to withdraw the benefits from

employees.” Id. (citing Evergreen Am. Corp., 348 NLRB 178, 180 (2006), enforced 531 F.3d 321

(4th Cir. 2008)). Additionally, as the Board concluded, Red Rock had “intentionally designed” the

benefits plan to “interfere with employees’ free choice whether or not to select the Union as their

collective-bargaining representative” and executed their plan through a “coordinated unlawful

campaign.” Id. at *6–7. This intentional and coordinated effort indicated “a strong likelihood of

a recurrence of unlawful conduct in the event of another organizing effort.” Id. (quoting Garney

Morris, Inc., 313 NLRB 101, 103 (1993), enforced mem. 47 F.3d 1161 (3d Cir. 1995)). Under

such circumstances, the Board reasonably concluded that traditional remedies were ill-suited for

“erasing the effects” of the unlawful benefits and “ensuring a fair rerun election.” St. Francis, 729

F.2d at 854.

More to that point, the Board’s bargaining order here is consistent with our precedent. See,

e.g., St. Francis, 729 F.2d at 855 (enforcing Gissel bargaining order where Board “emphasized the

pervasiveness of the [employer]’s unlawful conduct when it explained why a bargaining order

would better protect employee sentiment previously expressed through authorization cards” and

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“relied upon the whole litany of unfair labor practices that characterized the [employer]’s anti-

Union campaign—interrogations, threats, and promises of benefits—in deciding that a bargaining

order was appropriate”); cf. Skyline, 99 F.3d at 410 (declining to enforce the Board’s Gissel

bargaining order where the unfair labor practices were “far from serious”). We thus hold that the

Board was justified in determining that a Gissel bargaining order was warranted. 6

Next, Red Rock challenges various discrete aspects of the Board’s remedial order. Red

Rock asserts that two of the ordered remedies—the cease-and-desist order and the explanation-of-

rights notice requirement—are unreasonable because its conduct was not so “egregious or

widespread” to warrant such remedies. Op. Br. 55. This argument contravenes the Board’s

findings. As discussed above, the Board found, based on substantial evidence, that Red Rock’s

conduct was “pervasive and egregious.” Board Order, 2024 WL 3063775, at *6; see also id. at

*1. And we have previously recognized that cease-and-desist orders and explanation-of-rights

notice requirements are appropriate to remedy such conduct. See Federated Logistics &

Operations v. NLRB, 400 F.3d 920, 929–30 (D.C. Cir. 2005) (enforcing broad cease-and-desist

order and notice requirement to remedy “persistent and widespread” conduct).

Red Rock also asserts that the Board abused its discretion by requiring the notice be read

to employees by Red Rock’s Vice President of Human Resources or by a Board agent in their

presence. 7 Yet “a public reading may be appropriate where, as here, upper management has been

directly involved in multiple violations of the Act.” Veritas Health Servs., Inc. v. NLRB, 895 F.3d

69, 86 (D.C. Cir. 2018). Such remedies fall within the Board’s broad discretionary power, and we

see no reason to interfere with this aspect of the Board’s remedial order. 8

6

Alternatively, the Board ruled that the remedial bargaining order was warranted under its recent

decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (Aug. 25, 2023).

Because we affirm the Board’s imposition of the bargaining order under Gissel, we need not

consider whether the bargaining order is separately warranted under Cemex.

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Red Rock also asserts that the Board “erroneously ordered” Red Rock to require that its Chief

Operating Officer “attend at least one meeting; that the Union be permitted to attend the meetings;

and that the meetings be scheduled so that supervisors and managers attend alongside the

employees that they supervise/manage.” Op. Br. 55–56. But Red Rock forfeited this argument by

not providing a substantive “legal argument” in support of its assertion that the Board erred in

ordering these particular remedies. Laurel Bay Health, 666 F.3d at 1367 n.2. We accordingly do

not reach the merits.

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We lack jurisdiction under Section 10(e) of the Act to consider Red Rock’s challenge to the

Board’s order directing Red Rock to compensate employees affected by Red Rock’s unilateral

cancellation of a table-swap settlement agreement with the Union because Red Rock did not raise

this challenge in its exceptions to the Board. See 29 U.S.C. § 160(e); e.g., Alden Leeds, Inc. v.

NLRB, 812 F.3d 159, 166–68 (D.C. Cir. 2016) (declining to exercise jurisdiction over a challenge

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C.

Finally, Red Rock attempts to challenge the entire proceeding by advancing a series of

constitutional arguments, none of which succeed.

First, Red Rock asserts that the Board’s wielding of both prosecutorial and adjudicative

powers violated its due process rights. But we have already “join[ed] other circuits” and held that

“the Board’s authority under the Act to seek preliminary injunctive relief against an employer in

the district court does not deprive the employer of a neutral decisionmaker in subsequent

proceedings before the Board.” Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1174 (D.C.

Cir. 1998).

Second, Red Rock asserts that the Board is structurally unconstitutional because ALJs and

members of the Board are insulated from removal. Because Red Rock did not raise this argument

before the Board and has not attempted to justify its failure to do so, we lack jurisdiction to consider

it. See 29 U.S.C. § 160(e) (“No objection that has not been urged before the Board, its member,

agent, or agency, shall be considered by the court, unless the failure or neglect to urge such

objection shall be excused because of extraordinary circumstances.”); e.g., Alden Leeds, Inc. v.

NLRB, 812 F.3d 159, 166 (D.C. Cir. 2016) (declining to address arguments not first presented to

the Board).

Third, Red Rock lists in the issue section of its opening brief, “[w]hether the Board’s

adjudication of private rights without a jury trial violated the Seventh Amendment.” Op. Br. 3.

But Red Rock has forfeited this argument because it failed to provide a “legal argument” on this

issue in its opening brief. Laurel Bay Health & Rehab. Ctr. v. NLRB, 666 F.3d 1365, 1367 n.2

(D.C. Cir. 2012).

IV.

Because we find all of Red Rock’s arguments are either barred or without merit, we deny

Red Rock’s petition for review and grant the Board’s and the Union’s cross-applications for

enforcement.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is

directed to withhold issuance of the mandate herein until seven days after resolution of any timely

petition for rehearing or petition for hearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.

Per Curiam

not raised before the Board). The Board notes Red Rock’s failure to raise this argument below and

Red Rock does not address this preservation error in its Reply Brief.

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FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

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