Labor Plus, LLC, and its successor Wynn Las Vegas, LLC

National Labor Relations Board - Board Decisions

Jun 14, 2018

366 NLRB No. 109 (N.L.R.B. 2018)

366 NLRB No. 109
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Labor Plus, LLC, and its Successor Wynn Las Vegas,
LLC and Wynn Las Vegas, LLC
Labor Plus, LLC, and its Successor Wynn Las Vegas,
LLC and International Alliance of Theatrical
Stage Employees and Moving Picture Techni-
cians, Artists and Allied Crafts of the United
States and Canada Local Union 720 (IATSE).
Cases 28–CA–161779 and 28–CA–166890
June 14, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On February 16, 2017, Administrative Law Judge John
T. Giannopoulos issued the attached decision. The
Charging Party filed exceptions and a supporting brief,
and the Respondent filed an answering brief. The Re-
spondent filed a cross-exception and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision1 and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.2

1 In light of NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), we do
not rely on the judge’s reference to the following Board decisions:
Bellagio, LLC, 359 NLRB 1116 (2013), Wynn Las Vegas, LLC, 358
NLRB 690 (2012), and Wynn Las Vegas, LLC, 358 NLRB 674 (2012).
2 In adopting the judge’s dismissal of the complaint, we note that the
correct standard for determining whether Respondent Wynn was a legal
successor to Labor Plus is whether there was a substantial continuity
between the enterprises, and whether, by June 16, 2015, the date the
Respondent employed a substantial and representative complement of
employees, a majority of its work force was comprised of former Labor
Plus bargaining-unit employees. See Publi-Inversiones de Puerto Rico,
Inc., 365 NLRB No. 29, slip op. at 1 fn. 1 (2017), enfd. 886 F.3d 142
(D.C. Cir. 2018). Applying this standard, we agree with the judge that
the Respondent was not a legal successor to Labor Plus.
For the reasons set forth in the judge’s decision, we agree that for-
mer Labor Plus employees hired by Respondent Wynn prior to the May
2, 2015 election resulting in the Union’s certification as representative
of the Labor Plus unit do not count as former unit employees in deter-
mining whether a majority of Wynn’s work force was comprised of
former employees from that unit. We agree with the judge that the
circumstances of this case are distinguishable on factual and policy
grounds from Derby Refining Co., 292 NLRB 1015, 1015 (1989), enfd.
915 F.2d 1448 (10th Cir. 1990). We therefore disagree with our dis-
senting colleague’s reliance on that case in contending that former
Labor Plus stagehand David Weigant should be counted as a former
Labor Plus unit employee in Wynn’s work force, even if he was no
longer working for Labor Plus before the Union attained representative
status in that unit on May 2.
We also reject our colleague’s argument that Weigant should be
counted as a former Labor Plus unit employee based on a postelection
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. June 14, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

determination in the Labor Plus election proceeding that a challenge to
his ballot should be overruled because the testimony of a Labor Plus
official that he had been hired by Wynn before the election was “too
unreliable to be credited.” In this proceeding, however, the General
Counsel entered into evidence, without objection, a stipulation that on
May 1 Wynn hired five former Labor Plus employees, including Wei-
gant. The Union was joined in this all-party stipulation by the General
Counsel and Wynn—neither of which were parties in the Labor Plus
election case. As the judge found, “whatever previous deficiencies that
existed in the representational proceeding regarding Weigant’s hire date
were resolved by the stipulation.” Further, the judge’s reliance on the
stipulation as controlling is consistent with the hearing officer’s deter-
mination in the election case that other employees proved to have been
hired by Wynn on May 1 were not in the bargaining unit at the time of
the election. In fact, there are no exceptions to the judge’s finding that
the parties’ stipulation governs in determining which Labor Plus stage-
hands were hired by the Respondent prior to the election in the Labor
Plus unit.
Rather, the Union argues in exceptions, and our dissenting colleague
agrees, that Weigant remained a Labor Plus unit employee through the
May 2 election day even though he was also a Wynn employee from
May 1. We reject this argument on multiple grounds. First, it is not a
theory of violation advanced by the General Counsel, who is in control
of the complaint. Second, as stated above, it is contrary both to the
hearing officer’s determination in the Labor Plus election case and the
all-party stipulation in this case that the employees hired by Wynn on
May 1 were not in the Labor Plus bargaining unit. Finally, the possibil-
ity that Weigant was a dual employee of Wynn and Labor Plus—an
issue that was neither raised at the unfair labor practice hearing nor
supported by relevant evidence—is wholly speculative. It certainly
draws no support from the fact that Wynn-hired stagehands remained
on the roster of eligible Labor Plus employees awaiting assignment.
Labor Plus is a work force supplier to other employers at multiple
venues. That Wynn-hired stagehands were eligible to seek dispatch by
Labor Plus to other jobs does not demonstrate that they had any rela-
tionship with Labor Plus regarding the Showstopper “unit” work. To
the contrary, the uncontroverted evidence establishes that once Wynn
hired the former Labor Plus unit stagehands, Labor Plus had no in-
volvement in assigning them to work at Showstoppers, nor any role in
determining their employment conditions once they were assigned
there. In sum, our colleague goes to great lengths to make an argument
that the General Counsel could have made, but did not. Even had the
General Counsel done so, we would find the preponderance of record
evidence, as opposed to speculation, weighs against finding that Wei-
gant remained in the Labor Plus unit after May 1.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
The Board’s Supreme Court-approved successorship
doctrine is designed “to promote stability during changes
of ownership and to reduce industrial strife.” Derby Re-
fining Co., 292 NLRB 1015, 1015 (1989), enfd. 915 F.2d
1448 (10th Cir. 1990). Our doctrine presumes that the
employees of a unionized employer continue to support
the union after a new employer takes over, and it requires
the new employer to recognize the union if (among other
things) a majority of its work force came from the prede-
cessor. Id. This successorship case turns on whether
stagehand David Weigant should be counted as a former
employee of predecessor employer Labor Plus, LLC for
purposes of determining whether Wynn Las Vegas, LLC
was a successor employer. The twist here is that as La-
bor Plus stagehands were in the very process of unioniz-
ing, Wynn—which had used stagehands supplied by La-
bor Plus—took the work in-house by hiring certain Labor
Plus employees itself (including, arguably, Weigant).
There are very good reasons, however, to count Wei-
gant toward the Labor Plus-majority in Wynn’s work
force. First, Weigant’s status as a Labor Plus employee,
at the time of the union election, was determined in a
prior Board representation case: Weigant was found to
be an eligible voter in the representation election, and he
voted for the union. Second, even if Weigant’s employ-
ment relationship with Labor Plus had ended just before
the union election, the Board’s case law, and the policies
that inform it, nevertheless support treating Weigant as a
formerly union-represented employee. In contrast, the
majority’s reliance on a stipulation by the parties to de-
termine the correct treatment of Weigant—trumping the
reasons for counting Weigant as a former Labor Plus
employee—is unfounded, for reasons I will explain.
I.
The factual and procedural background here is some-
what complicated. Under a contract, Labor Plus supplied
stagehands to Wynn for a show performed at Wynn’s
theater. On April 15, 2015, the Union filed a representa-
tion petition with the Board, seeking to represent the La-
bor Plus stagehands employed at Wynn’s theater. Two
days after the petition was filed, Wynn—perhaps not
coincidentally—terminated the contract with Labor Plus,
deciding to use its own stagehands. On May 1, the day
before the Board conducted a representation election,
Wynn hired five Labor Plus stagehands—assertedly in-
cluding Weigant. But Labor Plus did not terminate those
stagehands after Wynn hired them, and they remained on
the roster of eligible Labor Plus employees awaiting as-
signment.1
On May 2, the election was held in a bargaining unit
consisting of “[a]ll full-time and regular part-time on-call
stagehand employees in the Wynn Showstoppers Theatre
in Las Vegas, Nevada.” Labor Plus challenged the bal-
lots cast by certain employees, including Weigant, argu-
ing that they were no longer employed by Labor Plus on
the date of the election, but instead had been hired by
Wynn. The Board’s hearing officer found that Weigant
was an eligible voter; his ballot was opened and counted.
The Regional Director adopted the hearing officer’s de-
termination, and the Board, in turn, denied review of the
Regional Director’s decision. See Labor Plus, LLC,
2015 WL 6865885 (Nov. 9, 2015) (unpublished order).
On December 1, the Union was certified as the repre-
sentative of Labor Plus stagehands working at Wynn’s
theater, although by that time Labor Plus was no longer
referring stagehands to Wynn.
In this unfair labor practice case, the General Counsel
alleges that Wynn is a successor employer to Labor Plus
and that it violated Section 8(a)(5) and (1) of the Act by,
among other things, failing to recognize and bargain with
the Union. There is no dispute over one element of the
successorship determination: that there was substantial
continuity of the enterprise between Labor Plus and
Wynn. The issue, rather, is whether at the time Wynn
employed a substantial and representative complement of
employees, a majority of its work force consisted of for-
mer Labor Plus bargaining-unit employees. That issue,
as explained, depends on whether Weigant should be
counted toward the majority.
The administrative law judge concluded that he should
not be. The judge relied on a stipulation entered into by
the parties here (the General Counsel, the Union, and
Wynn), which recited among other things that on May 1,
“Respondent Wynn hired” Weigant and four other stage-
hands, each of whom “was formerly an employee of Re-
spondent Labor Plus working at the Wynn ShowStoppers
Theater.” On the judge’s view, the stipulation meant that
on the day of the Board election, Weigant was not a
member of the Labor Plus bargaining unit and that Wei-
gant could not be treated as a former Labor Plus employ-

1 The uncontradicted testimony of Labor Plus Office Manager Rita
Taratko establishes that Weigant’s employment with Labor Plus was
not terminated following his May 1 hire by Wynn; in fact, Weigant
remained on Labor Plus’ roster of eligible employees. At the original
representation hearing, when asked whether these five employees,
including Weigant, had been terminated, Taratko testified, “No . . . The
relationships are there. Based on what our business does is we provide
stage hands . . . Once that job is done, the employees then go away and
wait for a next assignment. So they are still currently on the books with
Labor Plus awaiting another assignment.”
LABOR PLUS, LLC, AND ITS SUCCESSOR WYNN LAS VEGAS, LLC 3
ee for purposes of the successorship question. Thus,
Labor Plus employees did not constitute a majority of
Wynn’s work force, and Wynn had no duty to recognize
the union that Labor Plus employees (including Weigant)
had chosen. The judge accordingly dismissed the com-
plaint. The majority endorses this result.
II.
The majority errs in adopting the judge’s view of the
parties’ stipulation here and in failing to be guided by the
Board precedent and policy that should govern this case.
A.
If the majority and the judge were correct, of course,
then the General Counsel and the Union willingly en-
tered into a stipulation that gave away the case. This
seems highly unlikely. The alternative explanation, of
course, is that the stipulation was not intended to have—
and does not have—the significance that the majority and
the judge give to it. The stipulation recites that “on May
1, 2015, . . . Wynn hired . . . steady extra stagehand em-
ployee David Weigant” and that “[e]ach of the named
employees [including Weigant] was formerly an employ-
ee of . . . Labor Plus.” The stipulation certainly
acknowledges Weigant’s hiring by Wynn and his status
as a one-time employee of Labor Plus. But it does not,
by its terms, address Weigant’s status as a Labor Plus
employee on the day of the union election or his status as
a member of the Labor Plus bargaining unit created by
the election. Nor does it address the Board’s prior de-
termination that Weigant was, indeed, a member of the
bargaining unit who accordingly was permitted to vote in
the Board election. The judge’s interpretation of the
stipulation—as conclusively establishing that Weigant’s
employment relationship with Labor Plus ended upon his
hiring by Wynn—fails to read the ambiguous language
of the stipulation in the context of the factual and proce-
dural circumstances here.2 Wynn’s hiring of Weigant is
not necessarily incompatible with his status as a Labor
Plus employee (recall that he was not terminated by La-
bor Plus) and as a bargaining-unit member.3

2 The majority asserts that the Board must accept this erroneous in-
terpretation of the stipulation because there are “no exceptions to the
judge’s finding that the parties’ stipulation governs in determining
which Labor Plus stagehands were hired by the Respondent prior to the
election.” This assertion, however, ignores the Charging Party’s argu-
ment on exceptions that the judge fundamentally misinterpreted the
stipulation, by presuming that the fact that Weigant was hired by the
Respondent on May 1 necessarily precluded him from being a Labor
Plus bargaining-unit employee on the date of the election.
3 The majority erroneously argues that the theory that Weigant was
an employee of the predecessor was never advanced by the General
Counsel, who is in control of the complaint. In Paragraph 2(h) of the
Complaint, the General Counsel clearly alleged that Wynn “has em-
ployed as a majority of its employees individuals who were previously
Rather than adopt the judge’s reading, the Board
should interpret the stipulation as consistent with the
Board’s prior determination of Weigant’s status and not
as conflicting with that determination.4 Indeed, it is clear
under Board law that the prior determination (made by
the Regional Director and affirmed by the Board) should
be given preclusive effect. Under the Board’s rules, the
“[d]enial of a request for review shall constitute an affir-
mance of the Regional Director’s action which shall also
preclude relitigating any such issues in any related sub-
sequent unfair labor practice proceeding.”5 Here, the
Board denied review of the Regional Director’s decision
adopting the determination that Weigant was a Labor
Plus employee. Thus, in this related unfair labor practice
proceeding, the Board should give effect to its prior de-
termination by treating Weigant as a member of the La-
bor Plus bargaining unit. As the Board recently ex-
plained in applying preclusion principles, we have a
strong “administrative interest in . . . resolving questions
concerning representation quickly and definitively.”6
This case implicates that interest, inasmuch as the issue
is whether Weigant was ever represented by the union
and, ultimately, whether the union will continue to be the
representative of former Labor Plus stagehands now em-
ployed by Wynn. And there is no indication that by en-
tering into the stipulation, the parties intended to revisit
that issue—and resolve it differently than the Board had.

employees of Respondent Labor Plus.” Further, in his posthearing brief
to the judge, the General Counsel argued that “the five stagehands hired
on May 1 should be counted as former employees for purposes of es-
tablishing that Respondent hired a majority of employees from its pre-
decessor Labor Plus.” To the extent that the General Counsel did not
specifically argue that Weigant was simultaneously employed by Wynn
and Labor Plus on the date of the election, the Board is permitted to
consider the clear evidence adduced in the record supporting this factu-
al determination. See W.E. Carlson Corp., 346 NLRB 431, 434 (2006)
(emphasizing that the Board remains free to use its own reasoning in
deciding alleged violations of the Act); Urban Laboratories, 308
NLRB 816, 816 fn. 4 (1992) (explaining that the Board may apply a
legally appropriate theory even when the General Counsel fails to artic-
ulate it clearly); see also Frito Co., Western Division v. NLRB, 330 F.2d
458, 465 (9th Cir. 1964) (observing that General Counsel “cannot limit
the scope of the decision which may be rendered upon the evidence
adduced”).
4 Cf. Inacomp America, Inc., 281 NLRB 271, 271 (1986) (Board not
bound by parties’ stipulation as to employee’s voting eligibility where
stipulation was contrary to statutory policy).
5 Board’s Rules & Regulations, Sec. 102.67(g). See, e.g., The Mi-
rage Casino-Hotel, 364 NLRB No. 1, slip op. at 1 fn. 2 (2016); see also
Wolf Creek Nuclear Operating Corp., 365 NLRB No. 55, slip op. at 1
(2017) (“It is […] clear as a matter of Board law and procedure that a
Regional Director’s decision is final--and thus may have preclusive
effect […] if the Board denies a request for review.”).
6 Wolf Creek Nuclear Operating Corp., above, 365 NLRB No. 55,
slip op. at 2.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B.
In any case, Board precedent and policy confirm that,
under the unusual circumstances of this case, counting
Weigant toward the Labor Plus union majority is the
correct approach—even if Wynn hired Weigant on the
day before the union election (as stipulated by the par-
ties) and that hiring somehow terminated his employ-
ment relationship with Labor Plus (contrary to the record
evidence). The Board’s decision in Derby Refining, su-
pra, explains why.
The issue in Derby Refining was whether to count, to-
ward the union’s majority, predecessor employees who
had retired or who had refused recall before the succes-
sorship transaction and who were then hired by the as-
serted successor. Certain employees had retired in order
to avoid an anticipated loss of pension benefits connected
to the demise of the predecessor employer. Other em-
ployees had refused recall when told by the predecessor
that their job would necessarily be short-term. The suc-
cessor employer described both these categories of work-
ers as “‘new’ . . . employees and not ‘former’ [predeces-
sor] employees.”7 But the Board had no difficulty reject-
ing that description. The Board found that both catego-
ries of employees would have continued to work for the
predecessor, but for the circumstances leading to the suc-
cessorship. The retired employees maintained an “at-
tachment to the unit” and the same “expectations con-
cerning [union] representation . . . as those [workers]
who were able to stay on the payroll.” 292 NLRB at
1016. The employees who refused recall, similarly, did
not thereby demonstrate an “abandonment of interest in
the [bargaining] unit.” Id. It was appropriate, then, to
treat all of these employees as if their employment rela-
tionship with the predecessor had not been severed be-
fore they were hired by the successor. Id. at 1016–1017.
Weigant’s situation in this case was very much like
that of the Derby Refining employees. He was employed
by Labor Plus to work at Wynn’s theater; Wynn termi-
nated its contract with Labor Plus—obviously jeopardiz-
ing Weigant’s job—just as Weigant and his coworkers
were pursuing unionization; and Weigant then accepted
what amounted to the same job with Wynn, while voting
for the union in the Board election. If Weigant severed
his employment relationship with Labor Plus, then clear-
ly it was as a direct consequence of the end of Labor Plus
as a supplier of employees to Wynn (just as the Derby
Refining employees retired, or refused recall, because of
circumstances caused by the demise of the predecessor
employer there).

7 292 NLRB at 1016.
Nothing in this sequence of events suggests that Wei-
gant was abandoning his interest in the bargaining unit,
lacked attachment to the unit, or had a different expecta-
tion concerning union representation than Labor Plus
stagehands who became part of Wynn’s work force only
after the election. Just the opposite is true. It is even
clearer here than it was in Derby Refining that Weigant’s
continuing support for the union should be presumed and
that he should be counted toward the union majority in
Wynn’s work force. Not doing so would frustrate the
reasonable expectation of former Labor Plus employees
that they would continue to be represented by the union
at Wynn, threatening exactly the sort of instability and
labor conflict that the Board’s successorship doctrine
aims to avoid.
III.
Today’s decision might be called the case of Schrö-
dinger’s Employee:8 an employee who is simultaneously
in—and not in—a bargaining unit. The employee was in
the bargaining unit for purposes of the Board election,
but is not in the unit for purposes of the successorship
determination. His vote counted to help elect the union
to represent the predecessor’s employees, and yet he
cannot be counted as union-represented to determine
whether those employees will continue to be represented
at the successor employer. Maybe this result makes
sense as a matter of quantum physics, but it does not
make sense as a matter of labor law. Accordingly, I dis-
sent.
Dated, Washington, D.C. June 14, 2018
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Tony Smith, Esq., for the General Counsel.
Christopher M. Foster, Esq. (DLA Piper, L.L.P.), for the Re-
spondent Labor Plus, L.L.C.
Gregory J. Kamer, Esq., and R. Todd Creer, Esq. (Kamer
Zucker & Abbot, L.L.P.), for the Respondent Wynn Las
Vegas, L.L.C.
Caren P. Sencer, Esq. (Weinberg, Roger & Rosenfeld) for the
Charging Party.

8 “Schrödinger’s Cat” is a thought experiment proposed by physicist
Erwin Schrödinger in 1935, in which he postulated that under the theo-
ry of quantum physics, it would be possible for a cat in a closed box to
be both simultaneously alive and dead until the moment that it is ob-
served. See Erwin Schrödinger, The Present Situation in Quantum
Mechanics, Naturwissenschaften (1935).
LABOR PLUS, LLC, AND ITS SUCCESSOR WYNN LAS VEGAS, LLC 5
DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. This
case was tried before me in Las Vegas, Nevada, on November
3, 2016, based upon charges filed by the International Alliance
of Theatrical Stage Employees and Moving Picture Techni-
cians, Artists and Allied Crafts of the United States and Canada
Local Union 720 (Union or IATSE Local 720) and an Order
consolidating cases, consolidated complaint and notice of hear-
ing dated August 31, 2016 (complaint) issued by the Regional
Director for Region 28 on behalf of the General Counsel. The
complaint alleges that Wynn Las Vegas, L.L.C. (Respondent or
Wynn), violated Section 8(a)(1) and (5) of the National Labor
Relations Act (Act) by: (1) refusing to recognize and bargain
with the Union as the exclusive collective-bargaining repre-
sentative of a unit of stagehands employed by Wynn; refusing
to provide the Union with necessary and relevant information
regarding unit employees; and refusing to bargain with the
Union about a decision to subcontract unit work, or the effects
of that decision. According to the complaint, Wynn’s bargain-
ing obligation is premised upon it being a successor employer
to Labor Plus L.L.C. (Labor Plus), the company that previously
employed the stagehands.1
At the hearing, the General Counsel called three witnesses to
testify. Along with this witness testimony, the parties rely ex-
tensively on a 30 paragraph stipulation of facts and associated
exhibits that were admitted into evidence.2 (JX. 1–20) Based
upon the entire record, including the stipulation of facts, my
observation of the demeanor of the witnesses, and after consid-
ering the briefs filed by the General Counsel, the Union, and
Wynn, I make the following findings of fact and conclusions of
law.
I. JURISDICTION AND LABOR ORGANIZATION
Respondent admits that it is a Nevada limited liability com-
pany, conducting operations in the lodging, gaming, and enter-
tainment industry in Las Vegas, Nevada. It further admits that
it derives gross revenues in excess of $500,000 annually, and
purchases and receives at its Las Vegas facility goods valued in
excess of $50,000 directly from points outside the State of Ne-
vada. Wynn admits, and I find, that it is an employer engaged
in commerce within the meaning of Sections 2(2), (6), and (7)
of the Act. Wynn Las Vegas, LLC, 358 NLRB 690, 691 (2012)
(Board finding jurisdiction). Although not admitted by Re-
spondent, I find that IATSE Local 720 is a labor organization
within the meaning of Section 2(5) of the Act. Stage Employ-
ees IATSE Local 720 (AVW Audio Visuals), 332 NLRB 1, 5

1 The complaint originally alleged, in Case 28–CA–166571, that
Labor Plus also violated Sec. 8(a)(1) and (5) of the Act. At the hearing,
I granted the General Counsel’s motion to amend the complaint by
removing allegations that Labor Plus violated the Act, remove all refer-
ences to Case 28–CA–166571, and amending the caption accordingly.
Thus the complaint, as amended, only alleges that Wynn violated the
Act. (Tr. 19; GC 1(v))
2 Transcript citations are denoted by “Tr.” with the appropriate page
number. Citations to the General Counsel, Joint, and Administrative
Law Judge Exhibits, are denoted by “GC.” “JX.” and “ALJ.” respec-
tively.
(2000) (finding that IATSE Local 720 is a labor organization);
Bellagio, LLC, 359 NLRB 1116 (2013) (directing a second
election for employees to determine whether they desire to be
represented by IATSE Local 720).
II. FACTS
A. Background
Respondent operates a luxury hotel and casino located on the
Las Vegas “strip.” See, e.g., Wynn Las Vegas, LLC, 358 NLRB
674, 678 (2012).3 Along with a hotel and casino, Wynn also
operates two theaters on its property—the Aqua and the En-
core. The Aqua Theater hosts the show Le Rève. Since about
October of 2014, the Encore Theater has been home to a musi-
cal revue called “ShowStoppers.”4 ShowStoppers showcases
classic songs from American theater—the “best of the best.”
(Tr. 86–88, 108, 115)
Monica Marie Coakley is the assistant director of technical
operations for ShowStoppers, and has held that position since
October 2014. Coakley assigns work to the stagehands work-
ing in the Encore Theater who perform the various rigging,
props, carpentry, electrical, lighting, and related work needed to
produce the show.5 (Tr. 75–76, 104–106, 110–111, 115; JX. 5;
GC. 21)
In November 2014, Wynn signed a contract for Labor Plus to
provide stagehands for ShowStoppers.6 The agreement called
for Labor Plus to provide “non-union labor” throughout the run
of the show, unless cancelled by either party.7 Even though the
stagehands were technically employed by Labor Plus, the com-
pany did little more than pay their wages. Coakley directed the
Labor Plus stagehands, assigned their work, and supervised
their day-to-day tasks. She also tracked their hours and then
forwarded them to Labor Plus for payment. (Tr. 43, 49, 80–81,
87, 94–95; GC. 21(a)-(j); JX. 1; JX 7 p. 133; JX 20)
Along with using contract stagehands, Wynn employed three
of its own stagehands for ShowStoppers. Coakley testified that
16 stagehands are needed to produce the show—including both
Wynn and Labor Plus stagehands. She considers a full com-
plement for the show to be 16 full-time stagehands and six
steady-extras.8 Steady-extras are fill-in workers who step in
whenever a full-time stagehand is unavailable to work. They
are an important part of the employee mix and need to be ready
to cover the cues for the show whenever called upon. Because

3 The “Las Vegas strip” encompasses “the four mile area of Las Ve-
gas Boulevard on which many of the city’s most famous casinos and
resorts are located.” Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc.,
55 F. Supp. 2d 1113, 1116, fn. 1 (D. Nev. 1999).
4 The Encore Theater is also referred to as the ShowStoppers Thea-
ter. (Tr. 87)
5 Throughout this decision, the term “stagehands” excludes ward-
robe, hair, and makeup employees.
6 Before Labor Plus, Wynn was using contract stagehands from a
company called Showpay. (Tr. 131–132, 137, 145)
7 The General Counsel does not allege that the contract’s “non-union
labor” provision is a violation of the Act. Compare David Saxe Pro-
ductions, 364 NLRB No. 100, slip op. at 2, 18 (2016) (violation for
maintaining a “non-union” provision in employment agreement requir-
ing employees to acknowledge their employment is not under the juris-
diction of any labor organization).
8 Steady extras are also referred to as “swing” employees. (Tr. 88)
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of turnover, the only time Coakley has had a full complement
of 22 available stagehands was for about 1 month in December
2015. (Tr. 89, 121–122; GC. 21(a); JX. 20)
On April 15, 2015,9 the Union filed a representation petition
in Case 28–RC–150168 for a unit of Labor Plus stagehands
working at the Encore Theater.10 The parties signed a stipulat-
ed election agreement, scheduling the election for May 2.11
Before the election, Labor Plus submitted a voter eligibility list
with 19 stagehands (14 full-time employees and 5 steady-
extras). It also listed two “casual” employees that the parties
stipulated would vote subject to challenge.12 (JX. 2, 4, 5, 20)
Two days after the petition was filed, on April 17, Wynn in-
formed Labor Plus that it was terminating its contract and
bringing the stagehand work for ShowStoppers “in house,”
using exclusively Wynn employees.13 At the same time, Wynn
notified the Labor Plus stagehands that they could apply to
work directly for Wynn. Labor Plus continued providing
stagehands to Wynn through May 9, as Wynn was hiring its
own workers and beginning to operate the show using exclu-
sively Wynn stagehands. (JX. 3, 6(b), 14 p. 9; 20; GC. 21; Tr.
90–91, 127)
There was no hiatus in the show as it transitioned from using
Labor Plus stagehands to using exclusively Wynn stagehands.14
When they were hired by Wynn, the former Labor Plus stage-
hands received a pay increase, along with fringe benefits after
90 days of employment. However, their job duties remained
the same, and Coakley continued giving them their assign-
ments. The day-to-day work for the stagehands, along with the
cue tracks they needed to perform, remained the same after the
transition. Once a stagehand was hired directly by Wynn, they
were no longer assigned to work at the Encore Theater by La-
bor Plus. (Tr. 79, 92–95, 109, 132–133, 141–142)
B. The May 2 election and the R-Case litigation
Sixteen people voted during the May 2 election. Labor Plus
challenged every voter and also filed posthearing objections.
On August 10, a hearing officer resolved the ballot challenges
and election objections.15 The hearing officer found that 10
employees were eligible to vote, as the evidence showed they

9 All dates are in 2015 unless otherwise noted.
10 Wynn was not named in the petition, and was not involved in the
representation election process. (JX. 11, 14)
11 The stipulated unit includes full-time and part-time stagehands
working in the Encore Theater, excluding guards, supervisors, ward-
robe, hair, and makeup employees.
12 One casual employee voted in the election. (JX. 10, 14) Ultimate-
ly it was ordered that his ballot would not be opened or counted, as
there was insufficient evidence to reach a determination as to his eligi-
bility to vote. (JX 14)
13 There is no allegation that Wynn’s cancelling the Labor Plus con-
tract was unlawfully motivated.
14 As Coakley confirmed, “the show must go on.” (Tr. 94)
15 Labor Plus also filed a motion to dismiss the petition claiming the
unit had ceased to exist. (JX. 8) The objections and motion to dismiss
were dismissed by the Board. See, Labor Plus, LLC, 2015 WL
6865885 (Nov. 9, 2015) (unpublished order) (affirming Regional Direc-
tor’s decision dismissing objections); Labor Plus, LLC, 2015 WL
6865886 (Nov. 9, 2015) (unpublished order) (affirming Regional Direc-
tor’s decision denying motion to dismiss).
were still working at the Encore Theater for Labor Plus as of
May 2.16 The hearing officer found that three voters were not
eligible to vote because they had been hired by Wynn before
the election, and thus were no longer employed by Labor Plus
as of May 2.17 In doing so, she credited the testimony of Labor
Plus Office Manager Rita Taratko that these workers were hired
by Wynn on May 1, and that none had been referred to the
Encore Theater by Labor Plus after April 30. (JX. 11, 14, 20)
As for steady-extra stagehand David Weigant, the hearing
officer found Taratko’s testimony that Weigant was hired by
Wynn on May 1 as “too unreliable to be credited.” Therefore,
she ordered that his ballot be counted, finding there was insuf-
ficient evidence to show Weigant was no longer employed by
Labor Plus in the petitioned-for unit as of the May 2 election.
She similarly found that two other voters, Douglas Tate and
Chris Portzer, were also eligible to vote. (JX. 11)
Labor Plus filed exceptions to the hearing officer’s decision.
The Regional Director agreed with the hearing officer’s rec-
ommendations concerning the challenged ballots, with only one
exception involving Portzer, who was a casual employee.18
Concerning Weigant, affirming the decision that his ballot
should be counted, the Regional Director found that Labor Plus
did not meet its burden to show that he was not eligible to vote
in the election. In sum, the Regional Director ordered that the
ballots of the following 12 employees be counted: Trent Utter-
back, Kendall Zobrist, Eric Shafer, Bret Portzer, Brian Pome-
roy, Eric Fouts, Hector Lugo, Eric Meyers, Luke Cresson,
Debbie Jenson-Miller, David Weigant, and Douglas Tate. (JX
14) Labor Plus sought review with the Board, which denied the
request. Labor Plus, LLC, 2015 WL 6865885 (Nov. 9, 2015)
(unpublished order).
The 12 ballots were opened and counted, and on November
18 a tally of ballots issued showing a 12-0 vote for the Union.
The Board issued its Certification of Representative on Decem-
ber 1. (GC. 23; JX. 15)
C. The Union’s request to bargain
While the election litigation was pending, on June 26 the Un-
ion sent a letter to both Labor Plus and Wynn demanding bar-
gaining and requesting certain information to prepare for bar-
gaining. The letter also warned both companies not to make
any unilateral changes or discipline employees without first
bargaining with the Union. Wynn replied on July 2, question-
ing the Union’s position regarding the company’s bargaining
obligation, and asking the Union for the factual and legal basis
for its assertions in order to further assess the Union’s bargain-

16 The 10 employees were: Trent Utterback, Kendall Zobrist, Eric
Shafer, Bret Portzer, Brian Pomeroy, Eric Fouts, Hector Lugo, Eric
Meyers, Luke Cresson, Debbie Jenson-Miller.
17 The ineligible voters were: James Herlihy, William Stephenson,
and Heather Lewis.
18 The Regional Director found the parties had agreed Portzer would
vote subject to challenge. Because the record evidence was insufficient
to decide Portzer’s eligibility, the Director ordered that his status would
not be resolved unless his ballot was determinative. (JX. 14.) Ulti-
mately, it was not.
LABOR PLUS, LLC, AND ITS SUCCESSOR WYNN LAS VEGAS, LLC 7
ing demand.19 Labor Plus did not reply to the Union’s letter.
(JX. 12; 13; 20)
D. The Frank Sinatra birthday celebration
Four weeks a year the Encore Theater is “dark.” During
these weeks ShowStoppers is not scheduled to perform and
Wynn usually conducts maintenance and other routine work
that cannot be accomplished while the show is performing.
One of the scheduled dark weeks was November 20 to Decem-
ber 7. However, on December 2, Wynn had scheduled a con-
cert celebrating the 100th birthday of Frank Sinatra to play in
the Encore Theater.20 The show, a Grammy all-star concert,
brought together various celebrities including Tony Bennett to
celebrate what would have been Frank Sinatra’s centennial
birthday. The concert was scheduled to be taped for broadcast
on CBS. Therefore, the theater’s bandstand, along with some
theater seats, needed to be reconfigured for the concert. Wynn
stagehands, along with other non-Wynn employees, performed
the work preparing for the show.21 This included hanging
signs, storing extra props, and adjusting the seats and the band-
stand. Also, television camera platforms needed to be built in
the theater to allow for the taping. These platforms were not
built by Wynn stagehands, notwithstanding the fact that some
had the requisite skills to do so. The General Counsel alleges
that the stagehand work associated with the Frank Sinatra show
constitutes a mandatory subject of bargaining, and that Wynn
failed to bargain with the Union regarding this work. Wynn
denies this allegation.22 (GC. 1(g), 1(j); GC. 22; Tr. 96–98,
104–106, 129–130)
III. ANALYSIS
A. Legal Standard
A new employer assumes an obligation to bargain with the
union representing employees of its predecessor if the new

19 The General Counsel asserts that Wynn did not provide the re-
quested information. (GC Br. at 6) However, neither the evidence
introduced at trial nor the stipulation of facts definitively shows this to
be the case. At most, Wynn’s July 2 letter only shows that the infor-
mation was not provided on that date. (JX. 13) Because of my find-
ings, it is unnecessary to reach the issue as to whether the record is
sufficient to prove this allegation.
20 On November 5, Wynn entered into an agreement with AEG Ven-
tures, LLC for the Frank Sinatra Show. Wynn was to provide the stage
production for the concert, while AEG, the show’s producer, was re-
sponsible for the performance itself, including related expenses. (GC.
22)
21 The Wynn stagehands worked during the dark week to prepare for
the Frank Sinatra show, and some worked after December 2 disman-
tling the show. Work was available to any Wynn stagehand that want-
ed to work during the dark week. (Tr. 96–99; GC. 24) Either all of the
Wynn stagehands or “almost all of them” worked for the preparation of
the Frank Sinatra Show. (Tr. 131)
22 Coakley testified that she was not aware of any bargaining with
the Union about the stagehands, and was similarly unaware of any
actions taken by Wynn to recognize the Union. However, Coakley
testified that she could not speak to the question of whether Wynn
recognizes the Union as the bargaining representative of the stage-
hands, as that is an issue her General Manager and Technical Director
deal with, not her. (Tr. 95) I credit Coakley’s testimony in this pro-
ceeding.
employer is a legal successor to the old employer, and hires a
majority of the predecessor’s work force. Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27, 43–46 (1987); Empire
Janitorial Sales & Service, LLC., 364 NLRB No. 138, slip op.
at 10–11 (2016). If the new employer is a successor, the Board
waits until the successor has hired a “substantial and repre-
sentative complement” of its work force to determine whether a
bargaining obligation exists. Empire Janitorial Sales & Ser-
vices, LLC, 364 NLRB No. 138, slip op. at 11 (citing Fall River
Dyeing, 482 U.S. at 46–47). At that point, if the work force
consists of a majority of the predecessor’s workers, then the
successor has an obligation to bargain with the union that rep-
resented those employees. Fall River Dyeing, 482 U.S. at 47.
B. Wynn is a legal successor to Labor Plus
To determine whether a new employer is a legal successor to
the previous employer, the Board considers the “totality of the
circumstances” to determine whether there is a substantial con-
tinuity between the two companies. Empire Janitorial Sales &
Service, LLC., 364 NLRB No. 138, slip op. at 10 (2016) (citing
Fall River Dyeing, 482 U.S. 27, 43 (1987). “Under this ap-
proach, the Board examines a number of factors: whether the
business of both employers is essentially the same; whether the
employees of the new company are doing the same jobs in the
same working conditions under the same supervisors; and
whether the new entity has the same production process, pro-
duces the same products, and basically has the same body of
customers.” Fall River Dyeing, 482 U.S. at 43. In making this
analysis “the Board keeps in mind the question whether ‘those
employees who have been retained will understandably view
their job situations as essentially unaltered.’”23 Id. (quoting
Golden State Bottling, Co. v. NLRB, 414 U.S. 168, 184 (1973)).
Here, the evidence shows that Wynn is a legal successor to
Labor Plus. While Wynn operates a hotel-casino and Labor
Plus provides contract labor, the fact they technically have
separate businesses is not controlling. Indeed, “[i]t is difficult
to imagine a clearer case for the application of the successor-
ship doctrine than the present one, where the change of em-
ployer represents the recapture of an operation previously per-
formed by an independent contractor.” NLRB v. Cablevision
System Development Co., 671 F.2d 737, 739 (2d Cir. 1982),
cert. denied, 459 U.S. 906 (1982).
In Cablevision, the court rejected the employer’s argument
that it was not a legal successor when it terminated a subcon-
tract involving the installation and maintenance of cable receiv-
er units and brought the work in-house. The employer argued
that, because its overall business was “quite different” from that
of the subcontractor, it was not a successor. Id. The Cablevi-
sion court noted that the relevant comparison is not between the
new employer and the previous subcontractor “on a total basis,
but between the specific operations involving the union mem-
bers,” which was the installation and maintenance of the com-
pany’s equipment on Long Island. Id., at 739. The question is

23 This is so, because if “employees find themselves in essentially
the same jobs after the employer transition and if their legitimate ex-
pectations in continued representation by their union are thwarted, their
dissatisfaction may lead to labor unrest.” Fall River Dyeing, 482 U.S.
at 43–44.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether those operations, as they impinge on union members,
remain essentially the same after the transfer to the new em-
ployer; the Cablevision court found they were the same and that
a successorship relationship existed. Id.
Here, the relevant operation affecting union members is the
performance of stagehand work at the Encore Theater. And
this work remained essentially the same after Wynn took over
employment of the stagehands from Labor Plus. For stage-
hands, they took assignments from the same supervisor, their
job duties and day-to-day work assignments remained the same,
as did the cue tracks they needed to perform.24 Also, the transi-
tion from Labor Plus stagehands to Wynn stagehands occurred
without a hiatus in operations.25 As such, I find that after the
transition there was a substantial continuity between Wynn and
Labor Plus and that Wynn is a legal successor to Labor Plus for
the stagehands working at the Encore Theater. Cablevision
System Development Co., 671 F.2d at 739.
C. Determining Wynn’s bargaining obligation
To decide whether Wynn, as a legal successor to Labor Plus,
has an obligation to bargain with the Union, the date upon
which Wynn hired a substantial and representative complement
of stagehands must first be determined. The Board considers
the following factors in establishing the point at which a sub-
stantial and representative complement of employees have been
hired: whether the job classifications designated for the opera-
tion were filled or substantially filled; whether the operation
was in normal or substantially normal production; the size of
the complement on that date; the time expected to elapse before
a substantially larger complement would be at work; and the
relative certainty of any expected expansion plans. Fall River
Dyeing, 482 U.S. at 48; Small v. Avanti Health Systems, LLC,
661 F.3d 1180, 1188–1189 (9th Cir. 2011); Empire Janitorial
Sales & Service, LLC., 364 NLRB No. 138, slip op. at 10–11
(2016).
Here, Wynn asks the Board to adopt a “full complement”
test, by arguing there was no majority when it hired a full com-
plement of stagehands in late 2015. (Wynn Br. at 16) Howev-
er, the Supreme Court has explicitly rejected this test. Fall
River Dyeing, 482 U.S. at 50 (“[P]etitioner’s full complement
proposal must fail.”); Avanti Health Systems, 661 F.3d at 1189.
The General Counsel asserts that the appropriate trigger date
is June 16, arguing that by mid-June most of the job classifica-
tions were filled, the work force was near its normal size, and

24 Although the stagehands received a wage increase and permanent
benefits when they were hired by Wynn, this does not affect the in-
quiry. See Van Lear Equipment, Inc., 336 NLRB 1059, 1063–1064
(2001) (finding substantial continuity between the predecessor and
successor notwithstanding the fact the successor provided a different
supervisor, had different pay rates and benefits, and newer buses to
drive, as the employees were performing the same work that they per-
formed for the predecessor).
25 This also supports a finding that there was a substantial continuity
between the two companies. M.S. Management Associates, Inc., 325
NLRB 1154, 1155 (1998), enfd., 241 F.3d 207 (2d Cir. 2001) (substan-
tial continuity exists where successor provided the same services, to the
same set of customers, with the same equipment and no hiatus in opera-
tions).
the production was running normally. (G.C. Br., at 13.) I
agree.
As set forth in Appendix A, by June 16 Wynn employed 20
stagehands, including 16 full time employees and four steady-
extras. It appears that, as of this date, the job classifications
were substantially filled, the show was in normal production,
and no other stagehands were hired until early August. As
such, I find that a substantial and representative complement of
Encore Theater stagehands was hired by June 16.
The next issue is whether Wynn employed a majority of the
former Labor Plus employees. Fall River Dyeing, 482 U.S. at
41 (“[i]f the new employer makes a conscious decision to main-
tain generally the same business and to hire a majority of its
employees from the predecessor, then the bargaining obligation
of § 8(a)(5) is activated.”). Usually, in successorship cases the
bargaining obligation involving the predecessor’s employees
and the incumbent union has been established before the transi-
tion in employers. NLRB v. Burns International Security Ser-
vices, Inc., 406 U.S. 272, 274–275 (1972) (union was certified
3 months before the transition in employers and had already
entered into a collective-bargaining agreement with the prede-
cessor); Fall River Dying, 482 U.S. at 31–32 (union was the
bargaining representative for a period of about 30 years before
the transition); CNN America, Inc., 361 NLRB 439 at 439,
446–448 (2014) (union had been certified since the 1980’s
when successor employer decided to bring unionized work “in
house” in 2003). Thus, there are generally few disagreements
as to which of the predecessor’s employees should be counted
in determining whether a successorship majority exists.
Here, however, the Union’s certification did not occur until
December 2015, about 7 months after Wynn became the suc-
cessor employer, and the transition from Labor Plus to Wynn
stagehands began even before the representation election had
occurred. In these circumstances, the General Counsel argues
that the Board must count all the employees who had ever
worked for Labor Plus at the Encore Theater, regardless of
whether they were eligible to vote in the representation elec-
tion, or whether they were employed by Labor Plus on the date
of the election. (GC Br., at 11–13.) Because an employer’s
bargaining obligation attaches as of the date of the union’s
election victory,26 the General Counsel’s approach would count
some Wynn workers as part of a successorship majority even
though there was never a bargaining obligation between the
Union and Labor Plus regarding those workers.
In support of this novel approach, the General Counsel cites
Coastal Derby Refining Co. v. NLRB, 915 F.2d 1448 (10th Cir.
1990); Stewart Granite Enterprises, 255 NLRB 569, 570
(1981), and Nephi Rubber Products Corp., 303 NLRB 151
(1991), asserting that, in in these cases, when determining
whether a successorship majority existed, the Board counted
employees “even if they were not employed by the predecessor

26 “When a majority of the unit employees have selected the union as
their representative in a Board-conducted election, the obligation to
bargain . . . commences not on the date of certification, but as of the
date of the election.” Alta Vista Regional Hospital, 357 NLRB 326,
327 (2011); Spurlino Materials, LLC v. NLRB, 645 F.3d 870, 879 (7th
Cir. 2011) (employer’s bargaining obligation attaches on the date the
union is validly elected).
LABOR PLUS, LLC, AND ITS SUCCESSOR WYNN LAS VEGAS, LLC 9
immediately prior to the successorship,” including employees
who had been laid off or retired shortly before the transition.
(GC Br., at 11.) However, in each of these cases there was a
long-established bargaining obligation between the incumbent
union and the predecessor employer going back years, even
decades, before the transition to the successor occurred.27
Coastal Derby Refining, 915 F.2d at 1450–1451 (union had
represented unit employees for about 40 years before the transi-
tion to the successor employer); Stewart Granite Enterprises,
255 NLRB 569, 570 fn. 2 (1981) (union represented unit em-
ployees for about 9 years before successor purchased opera-
tions); Nephi Rubber Products Corp., 303 NLRB 151, 154
(1991), enfd., 976 F.2d 1361 (10th Cir. 1992) (Union had rep-
resented manufacturing plant employees for about 13 years
before purchase).28 Thus, there was no question that each em-
ployee that was counted towards a successorship majority had
been represented by the Union as part of an established bar-
gaining unit with the predecessor.
Therefore, these cases do not support the approach urged by
the General Counsel. Instead, they reiterate a principle com-
mon in all successorship cases that only those employees who
had been represented by the incumbent union at the predecessor
employer will be counted in determining whether a successor-
ship majority exists.29 Here, that means that only those em-
ployees who were employed by Labor Plus as of May 2,30 the
date of the representation election and the date upon which the
bargaining obligation between Labor Plus and the Union com-
menced, should be counted for purposes of determining a suc-
cessorship majority.31

27 No party has cited any precedent involving a transition from the
predecessor to the successor commencing prior to the union’s initial
representation election.
28 As for instances cited by the General Counsel where some work-
ers were not employed immediately prior to the successorship, but were
counted as part of the successorship majority, these workers were either
laid off just before the successorship or were urged by the predecessor
to retire for purported preferential treatment. Coastal Derby Refining
Co., 915 F.2d at 1450, 1454 (layoffs occurred as part of predecessor’s
bankruptcy, and three workers retired after being told they would re-
ceive greater pensions if they did so, in lieu of layoff); Stewart Granite
Enterprises, 255 NLRB 569, 570 (1981) (employees were laid off or
transferred to other facilities in preparation for the disposition of manu-
facturing plant); Nephi Rubber Production Corp., 303 NLRB 151
(1991) (employees laid off, and plant shuttered, 2 months before prede-
cessor filed for bankruptcy reorganization). However, it is undisputed
that each employee had been represented by the incumbent union at the
predecessor.
29 My research has found no case where employees, who were never
represented by the incumbent union at the predecessor, were counted as
part of a successorship majority. And no party has cited any such case.
30 The record shows that the stagehands hired by Wynn on May 1
were never referred by Labor Plus to work at the Encore Theater after
they were hired by Wynn. Thus they were not employed by Labor Plus
in the unit as of the election date, and Labor Plus never had an obliga-
tion to bargain with the Union over the terms of employment of those
workers. (Tr. 79; GC. 21(d)-(j); JX. 11)
31 Such an approach also comports with the Board’s general prece-
dent regarding voter eligibility. The Board has long held that an em-
ployee is eligible to vote in a representation election if they were em-
ployed in the bargaining unit during the determined eligibility period,
1. David Weigant should not be counted toward a
successorship majority.
During the representation proceeding the hearing officer, af-
firmed by the Regional Director, found that steady-extra David
Weigant was eligible to vote because the testimony as to
whether Weigant was hired by Wynn on May 1 was too unreli-
able to be credited. In this matter, however, whatever previous
deficiencies that existed in the representational proceeding
regarding Weigant’s hire date were resolved by the stipulation
of facts introduced into evidence by the General Counsel, and
signed by all the parties.32 (JX. 20; Tr. 9) The parties stipulat-
ed that Weigant was hired by Wynn on May 1.33 As such,
Weigant was not an employee of Labor Plus in the certified unit
as of the May 2 election, and Labor Plus never had an obliga-
tion to bargain with the Union over Weigant’s terms and condi-
tions of employment.34 Accordingly, Weigant will not be
counted for purposes of determining whether a bargaining obli-
gation existed based upon Wynn hiring a majority of former
Labor Plus employees.
D. Wynn did not hire a majority of former
Labor Plus employees
As discussed above, the stagehands hired by Wynn on May 1
will not be counted in determining whether a successorship
majority exists, as they were not employed by Labor Plus at the
Encore Theater as of the date of the election, and there was no
bargaining obligation between Labor Plus and the Union re-
garding those workers. The hiring timeline, set forth in Appen-
dix A, shows that, as of June 16, when Wynn had hired a “sub-
stantial and representative complement” of its work force, it

and on the date of the election. Angotti Health Systems, Inc., 346
NLRB 1311, 1315 (2006); St. Elizabeth Community Hospital v. NLRB,
708 F.2d 1436, 1444 (9th Cir. 1983).
32 It is the Board’s general rule, based upon the principle of res judi-
cata, that a respondent is not entitled to relitigate in a subsequent re-
fusal-to-bargain proceeding representation issues that were or could
have been litigated in the prior representation proceeding. Westwood
One Broadcasting Services, 323 NLRB 1002, 1002 (1997) (citing
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941);
Board’s Rules and Regulations §102.67(g); see also, UFCW, Local 576
v. NLRB, 675 F.2d 346, 353 fn. 7 (D.C. Cir. 1982). Here, however, it
was the General Counsel that introduced the stipulation of facts into
evidence, and there was no objection by any party, including the Union,
which entered into the stipulation. Moreover, where new and relevant
information is introduced in a subsequent unfair labor practice proceed-
ing, and where the previous representation determination is based upon
an incomplete record, a more flexible approach is warranted to correct
“fundamental errors in the disposition of a case.” Burns Electronic
Security Services, Inc. v. NLRB, 624 F.2d 403, 408–410 (2d Cir. 1980);
Burns Electronic Security Services, Inc., 256 NLRB 860 (1981). Such
is the case here.
33 Stipulations of facts voluntarily entered into by the parties are
binding on both trial and appellate courts. FDIC v. St. Paul Fire &
Marine Ins. Co., 942 F.2d 1032, 1038 (6th Cir. 1991); Accord, Vallejos
v. C. E. Glass Co., 583 F.2d 507, 510 (10th Cir. 1978) (“As a general
rule, a stipulation is a judicial admission binding on the parties making
it, absent special considerations.”).
34 Indeed, the evidence shows that Weigant did not work for Labor
Plus at the Encore Theater at any time from April 28 until Labor Plus
stopped referring stagehands on May 9. (GC. 21)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employed 20 stagehands at the Encore Theater. Of those 20, 10
were former unit employees of Labor Plus. “In a tie the union
loses for want of a majority.” C.J. Krehbiel Co. v. NLRB, 844
F.2d 880, 884 (D.C. Cir. 1988); see also, Bauer-Schweitzer
Hop & Malt Co., 79 NLRB 453, 454 (1948) (in the case of a tie
vote, no party has received a majority of the votes cast); Indi-
ana Bridge Co., Inc., 57 NLRB 681, 682 (1944) (where elec-
tion results in a tie vote, no majority bargaining representative
was designated). As such, no bargaining obligation attachedfor
Wynn. Because the complaint allegations are all premised
upon Wynn acquiring a successorship bargaining obligation, I
find that Wynn did not violate Section 8(a)(1) and (5) as al-
leged, and I recommend the complaint be dismissed in its en-
tirety.
CONCLUSIONS OF LAW
The General Counsel failed to prove that Respondent Wynn
violated Section 8(a)(5) and (1) as alleged in the complaint. On
these findings of fact, conclusions of law, and based upon the
entire record, I issue the following recommended35
ORDER
The complaint is dismissed.
Dated, Washington, D.C. February 16, 2017

35 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
LABOR PLUS, LLC, AND ITS SUCCESSOR WYNN LAS VEGAS, LLC 11
APPENDIX A
Encore Theater Stagehands
Hired by Wynn1
Name Status
Date
hired by
Wynn
Former
Labor Plus
Employee
Eligible to
Vote in
Election
Employed
by Labor
Plus on
5/2/15
Employed
by Wynn
on
6/16/15
% Wynn
stagehands
that worked
for Labor
Plus on
5/2/15

Oliver, Lynsey2 Full Time 4/15/2015 1 0 %
Clark, Ben Full Time 4/15/2015 2 0 %
Bober, Gregory3 Full Time 4/15/2015 3 0 %
Lewis, Heather Full Time 5/1/2015 1 4 0 %
Contini, Jonathan4 Full Time 5/1/2015 2 5 0 %
Herlihy, James5 Full Time 5/1/2015 3 6 0 %
Stephenson, William Full Time 5/1/2015 4 7 0 %
Weigant, David Steady Extra 5/1/2015 5 1 8 0 %
Portzer, Brett Full Time 5/5/2015 6 2 1 9 11 %
Jensen-Miller, Deborah Full Time 5/5/2015 7 3 2 10 20 %
Fouts, Eric Full Time 5/5/2015 8 4 3 11 27 %
Meyers, Eric Full Time 5/5/2015 9 5 4 12 33 %
Shafer, Eric Full Time 5/5/2015 10 6 5 13 38 %
Barnes, Collin6 Steady Extra 5/5/2015 11 7 6 14 43 %
White, Matthew7 Steady Extra 5/6/2015 12 15 40 %
Cresson, Luke Full Time 5/8/2015 13 8 7 16 44 %
Zobrist, Kendall Full Time 5/11/2015 14 9 8 17 47 %
Todaro, Anthony8 Steady Extra 5/19/2015 44 %
McMillon, Joel9 Full Time 6/2/2015 18 44 %
Perrill, Joshua Full Time 6/16/2015 15 10 9 19 47 %
Karlsen, Timothy10 Steady Extra 6/16/2015 16 11 10 20 50 %
Bonanno, Robert11 Steady Extra 8/4/2015 48 %
Yorty, Ryan12 Steady Extra 8/4/2015 45 %
McNulty, Bryan Steady Extra 8/4/2015 43 %
Lemon, Samantha13 Full Time 10/13/2015 41 %
Webb, Jason Full Time 11/24/2015 41 %
Anderson, Matthew Steady Extra 3/22/2016 45 %
Igou, Christopher Steady Extra 3/22/2016 43 %
Stransky, Jordin Full Time 5/24/2016 45 %
Rogerson, Brian Steady Extra 5/31/2016 40 %
Tulli, Brandon Full Time 6/7/2016 38 %
Backus, Cameron Full Time 6/21/2016 36 %
Laurent, Gary Full Time 7/12/2016 36 %
Bevacqua, Andrew Steady Extra 10/4/2016 36 %

1 See GX. 20; JX. 11; JX. 24.
2 Oliver transferred to a different department on August 6, 2015. (GX. 20 ¶23)
3 Bober’s employment ended on February 14, 2016. (GX. 20 ¶23)
4 Contini’s employment ended on April 12, 2016. (GX. 20 ¶24)
5 Herlihy’s employment ended on May 3, 2016. (GX. 20 ¶24)
6 Barnes’ employment ended on August 23, 2015. (GC. 20 ¶26)
7 White’s employment ended on August 26, 2016 (GX. 20 ¶27)
8 Todaro’s employment ended on May 26, 2015 (GX. 20 ¶30)
9 McMillon’s employment ended on January 23, 2016. (GX. 20 ¶31)
10 Karlsen’s employment ended on May 26, 2016. (GX. 20 ¶32)
11 Bonanno’s employment ended on October 31, 2015. (GX. 20 ¶33)
12 Yorty’s employment ended on February 14, 2016. (GX. 20 ¶33)
13 Lemon’s employment ended on June 26, 2016. (GX. 20 ¶34)