Wynn Las Vegas, LLC

National Labor Relations Board - Board Decisions

Jul 3, 2012

358 N.L.R.B. 690 (N.L.R.B. 2012)

690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 81
Wynn Las Vegas, LLC and David Sackin. Case 28–
CA–023070
July 3, 2012
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On July 26, 2011, Administrative Law Judge John J.
McCarrick issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Acting
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions

1 We agree with the judge that the Respondent is collaterally es-
topped from introducing evidence concerning its discipline of employee
David Sackin. We note, however, that the judge misstated the doctrine
of collateral estoppel as precluding the litigation of issues that “could
have been litigated” in a prior proceeding. For collateral estoppel to
apply, the issue must have been actually litigated in the prior proceed-
ing. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 fn. 5
(1979).
Nevertheless, collateral estoppel applies here. The Respondent ar-
gues that, even if the discipline it imposed on Sackin was unlawful, it
could have lawfully imposed some lesser discipline, thereby justifying
Sackin’s layoff. In effect, the Respondent is seeking to litigate a purely
speculative set of facts, which we decline to entertain. The fact remains
that the Respondent suspended Sackin and litigated the lawfulness of
that suspension in Wynn Las Vegas, LLC (Wynn Las Vegas I), 358
NLRB 674 (2012), also issued today. The Respondent may not reliti-
gate that issue in this case.
Finally, we note that in Wynn Las Vegas I, the judge ordered the Re-
spondent to expunge Sackin’s discipline. Although the Respondent
filed a general exception to the judge’s remedy, the Respondent did not
brief this exception. In such circumstances, the Board disregards an
exception in accordance with Sec. 102.46(b)(2) of the Board’s Rules
and Regulations. See Holsum de Puerto Rico, Inc., 344 NLRB 694 fn.
1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). The Respondent could, in
Wynn Las Vegas I, have argued that the expunction remedy was over-
broad, given Sackin’s other misconduct, but it did not do so. Accord-
ingly, the Respondent cannot now argue that it should have been al-
lowed to impose some level of discipline on Sackin, if not the level it
actually imposed. Allowing it to make such an argument would render
the judge’s remedy meaningless and would not serve the purposes of
the Act.
2 In Wynn Las Vegas I, we adopted an administrative law judge’s
finding that the Respondent violated Sec. 8(a)(1) of the Act by suspend-
ing Sackin on August 28, 2009, and found it unnecessary to pass on the
judge’s finding that the discipline violated Sec. 8(a)(3). The instant
case concerns the subsequent layoff of Sackin on July 15, 2010. The
parties have stipulated that Sackin was selected for layoff solely be-
cause of the August 28, 2009 discipline. We therefore adopt the
judge’s finding that the layoff violated Sec. 8(a)(1) of the Act, and
similarly find it unnecessary to pass on the judge’s finding that the
layoff violated Sec. 8(a)(3), as any such finding would not materially
affect the remedy.
and to adopt the recommended Order as modified.3
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Transportation Workers Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. On June 15, 2010, the Respondent violated Section
8(a)(1) of the Act by laying off employee David Sackin
because he engaged in protected concerted activity.
4. The above unfair labor practice committed by Re-
spondent affects commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Wynn
Las Vegas, LLC, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Laying off or otherwise discriminating against
employees for engaging in protected concerted activi-
ties.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT lay off or otherwise discriminate against
you for engaging in protected concerted activities.

3 We shall amend the judge’s conclusions of law and modify the
judge’s recommended Order to conform to our findings herein and to
the Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified.

WYNN LAS VEGAS, LLC 691
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, if not already done, offer David Sackin full rein-
statement to his former job, or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make David Sackin whole for any loss of
earnings and other benefits resulting from the discrimina-
tion against him, less any net interim earnings, plus in-
terest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoff of David Sackin, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the layoff will not be used against him in any
way.

WYNN LAS VEGAS, LLC

Mara-Louise Anzalone, Esq., for the General Counsel.
Gregory J. Kamer, Esq. and Bryan J. Cohen, Esq. (Kamer
Zucker Abbott), of Las Vegas, Nevada, for the Respondent.
David Sackin, pro se.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, on March 8, 2011, on the
complaint issued on August 31, 2010, by the Regional Director
for Region 28.
The complaint alleges that Wynn Las Vegas, LLC (Re-
spondent) violated Section 8(a)(3) and (1) of the Act by laying
off Charging Party David Sackin (Sackin) on June 15, 2010,
because he engaged in protected concerted and union activity.
In its answer Respondent admitted many of the operative alle-
gations of the complaint but denied it had violated the Act.
FINDINGS OF FACT
On the entire record,1 including the briefs from the General
Counsel,2 and Respondent, I make the following findings of
fact.
I. JURISDICTION
Respondent admitted it is a Nevada domestic limited liability
company with an office and place of business located in Las
Vegas, Nevada, where it is engaged in the operation of a casi-
no, hotel, and restaurants. Annually, Respondent in the course

1 On September 30, 2009, counsel for the General Counsel filed a
motion to correct the record. Good cause having been shown and no
opposition filed, the motion is granted.
2 On October 14, 2009, counsel for the General Counsel filed an er-
rata to posthearing brief. As the errata corrected a clerical error and
there is no opposition, I accept the errata.
of its business operations derived gross revenues in excess of
$500,000 and purchased and received at its facility goods val-
ued in excess of $50,000 in directly from points outside the
State of Nevada.
Based upon the above, Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
Respondent admitted and I find that the Transport Workers
Union of America, Local 721, AFL–CIO (Union) is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
This case originated in a prior unfair labor practice case
heard and decided by ALJ James M. Kennedy. Judge Kennedy
issued his decision3 in Wynn Las Vegas, LLC, Case 28–CA–
022818, on December 14, 2010. Judge Kennedy heard this
case between May 11 and June 7, 2010, and found, inter alia,
that Respondent Wynn Las Vegas, LLC, violated Section
8(a)(3) and (1) of the Act on August 26, 2009, by issuing a
warning to and suspending David Sackin because he was a
union steward and engaged in protected concerted activity.
Respondent has filed exceptions with the Board contesting
Judge Kennedy’s findings of fact and conclusions of law in
Case 28–CA–022818, finding that the discipline issued on Au-
gust 28, 2009, Sackin violated Section 8(a)(3) and (1) of the
Act.
The parties herein entered into Joint Stipulations of the Parties4
where they agreed that Sackin was chosen for lay off on June 15,
2010, solely because of his August 28, 2009 discipline found to
be unlawfully discriminatory by Judge Kennedy. The parties
also stipulated that Respondent recalled Sackin to work on No-
vember 30, 2010.
The sole issue to be decided here is whether Respondent
should have the opportunity to relitigate the validity of Sackin’s
underlying August 28, 2009 discipline or whether the doctrine of
collateral estoppel precludes such litigation.
Counsel for the Acting General Counsel argues that the issue
of Sackin’s discipline was resolved in the trial before Judge Ken-
nedy and relitigation of the issue is barred by the doctrine of
collateral estoppel.
Respondent contends that it should have been allowed the
opportunity herein to present evidence that Sackin would have
received some lesser form of discipline on or about August 28,
2009, albeit less severe than the discipline he in fact received.5
Respondent argues that Judge Kennedy found that some level

3 JD(SF)–52–10.
4 Jt. Exh.1.
5 On March 8, 2011, counsel for the Acting General Counsel filed a
motion in limine to preclude Respondent from offering any evidence at
this hearing regarding whether it would have issued Sackin a lesser
level of discipline justifying his layoff. At the hearing, after hearing
argument from the parties, I granted counsel for the Acting General
Counsel’s motion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692
of discipline for Sackin was appropriate, that only the level of
discipline in fact issued was inappropriate and that Judge Ken-
nedy left the issue of the severity of Sackin’s discipline open
when he found in his decision at page 15, lines 36–37, “In that
sense, some admonishment or counseling was appropriate,
perhaps at the cost of the attendance points he should have
incurred.” Respondent argues further than under Miller Brew-
ing Co., 254 NLRB 266, 267 (1981), I should have considered
whether a lesser form of punishment for Sackin was appropri-
ate.
The Analysis
Judge Kennedy’s Findings
In his decision at page 15, lines 29–32, Judge Kennedy
found that Respondent’s August 28, 2009 discipline of Sackin
was motivated by its hostility towards his union and other pro-
tected concerted activity:

I find that the degree of punishment in this case was not sup-
ported by the underlying facts and instead the discharge was
due to its (Respondent’s) animus against protected conduct-
his union stewardship and his willingness to testify in the la-
bor commission hearing.

At page 16, lines 8–14 of Judge Kennedy’s decision he lists
the factors he considered in concluding Respondent harbored
animus toward Sackin when it disciplined him on August 28:

Both its departure from its policy of progressive discipline
and its abrupt, high level of punishment, the second, last and
final warning resounds as a warning shot. Respondent’s over
weighted conclusion that Sackin violated eleven policies in
running a few minutes late: its statement that it could have
terminated him but would instead give to him the lesser pun-
ishment of time served suspension; at the same time warning
him to remain under the radar; and telling him that he had
been allowed to return to work “by the hair of (his) chin,” all
taken together are evidence of an anti-steward motive.

Judge Kennedy concluded at page 16, lines 19–22:

Based on the totality of the surrounding circumstances, it is
evident that Respondent disciplined Sackin to such an ex-
treme degree because of its animus arising from his two in-
stances of protected conduct, his stewardship and his willing-
ness to testify on behalf of his fellow employees at the Labor
Commission hearing.
As to Respondent’s defense, at page 16, lines 25–27, Judge
Kennedy concluded that Respondent

has not persuaded me that it would have taken the same action
if Sackin had not been a steward or if he had not been sup-
portive of the employee cause before the Labor Commission-
er.

Judge Kennedy’s comments on the degree of discipline that
Respondent imposed relate only to Respondent’s motive in
issuing discipline. Respondent’s contention that Judge Kenne-
dy left open whether a lesser degree of discipline may have
been appropriate is not supported by the record. Further, Judge
Kennedy’s gratuitous remarks that, “some admonishment or
counseling was appropriate,” are dicta as they were not essen-
tial to Judge Kennedy’s finding of Respondent’s antiunion
animus. Judge Kennedy’s central conclusion is that Respond-
ent’s discipline meted out to Sackin was unlawful. A lesser
form of discipline was not meted out. Respondent’s argument
that some lesser form of discipline would have been justified, is
mere speculation.
Respondent’s citation to Miller Brewing Co., 254 NLRB
266, 267 (1981), for the proposition that I should have consid-
ered a lesser form of punishment for Sackin is inapposite to the
facts of this case. The ALJ in Miller Brewing found that more
severe discipline issued to union stewards than to rank and file
employees violated the Act. There was no need to relitigate the
issue of whether any discipline issued to stewards was lawful.
The Board agreed with the ALJ that that imposition of more
severe discipline on union stewards for participating with other
employees in an unlawful walkout violated the Act. The law-
fulness of the discipline issued to rank and file employees was
not in dispute. The issue decided in Miller Brewing was
whether additional discipline imposed because of the steward’s
union activity was unlawful. Here, unlike in Miller Brewing,
Respondent seeks to relitigate the issue of the lawfulness of
Sackin’s discipline. Moreover Respondent’s argument pre-
sumes that some lesser form of punishment issued to Sackin
would have been lawful. Judge Kennedy rejected that conten-
tion when he found Respondent was motivated by anti union
and anti protected concerted activity reasons.
The issue of the lawfulness of Respondent’s August 28, 2009
discipline of Sackin was fully litigated by the same parties be-
fore Judge Kennedy. Judge Kennedy found that Respondent’s
discipline of Sackin violated Section 8(a)(1) and (3) of the Act.
It is well-established Board law that an administrative law
judge may rely on the factual findings in a prior case under the
doctrine of collateral estoppel. See Great Lakes Chemical
Corp., 300 NLRB 1024, 1025 fn. 3 (1990); Planned Building
Services, Inc., 347 NLRB 670, 670 fn. 2 (2006); Stark Electric,
Inc., 347 NLRB 518, 518 fn. 1 (1999).
Under the collateral estoppel doctrine, in the absence of new-
ly-discovered and previously unavailable evidence, a party may
not relitigate issues that were or could have been litigated in a
prior proceeding. Nursing Center at Vineland, 318 NLRB 901,
903 (1995). These principles apply even where the prior case is
still pending before the Board. See Grand Rapids Press of
Booth Newspapers, 327 NLRB 393, 394–395 (1998); Detroit
Newspaper Agency, 326 NLRB 782 fn. 3 (1998), enf. denied
216 F.3d 109 (D.C. Cir. 2000).
Respondent’s opportunity to convince a fact finder that it
would have taken disciplinary action against Sackin absent his
union or protected conduct has passed. The parties had an ade-
quate opportunity to litigate that very issue.
As I noted at the hearing in granting counsel for the Acting
General Counsel’s motion in limine

What counsel is asking me to do [here] is to assess a hypo-
thetical situation that didn’t exist––that hasn’t existed. The in-
dividual––Mr. Sackin––did not receive some lesser discipline.
He was suspended for five days. That’s what I’m dealt with,
that’s what Kennedy decided on. I’m basically going to find
WYNN LAS VEGAS, LLC 693
––I’m going to take notice of Judge Kennedy’s decision and
I’m going to defer to it. I find that for me to parse out some
hypothetical situation based on comparators, is creating some-
thing out of whole cloth. That’s not what happened. Could it
have happened? Well, maybe it could have, but it didn’t. The
man was suspended, he didn’t receive a lesser discipline. And
as such, I find I am bound by Kennedy’s decision and I will
grant General Counsel’s Motion in Limine to preclude any
further evidence on the issue of the discipline that Mr. Sackin
received.

In the interests of advancing judicial efficiency and avoiding
inconsistent results and delays attendant to the Board’s review
of Judge Kennedy’s decision, I will rely on the prior conclu-
sions Judge Kennedy reached regarding Respondent’s August
28, 2009 discipline of Sackin.
Since Sackin was selected for layoff on June 15, 2010, solely
because of his August 28, 2009 discipline found to be unlawful-
ly discriminatory by Judge Kennedy, I conclude that Sackin’s
June 15, 2010 layoff likewise violated Section 8(a)(1) and (3)
of the Act as alleged.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
there from and to take certain affirmative action designed to
effectuate the policies of the Act. As Respondent discriminato-
rily laid off Sackin, it must offer him reinstatement to his pre-
vious job or, if it is not available, to a substantially similar job,
and make him whole for any loss of earnings and other benefits
he may have suffered. Respondent shall take this action with-
out prejudice to his seniority or any other rights or privileges he
may have enjoyed. Backpay for Sackin, if any, shall be com-
puted on a quarterly basis from the date of his layoff to the date
Respondent makes a proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950). Backpay for Sackin shall be based on the
length of his unlawful layoff. Daily compound interest as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010),
shall be added to the net backpay amount. Furthermore, Re-
spondent shall be required to expunge from its personnel files
any reference to Sackin’s illegal layoff. Sterling Sugars, 261
NLRB 472 (1982). The affirmative action shall also require
Respondent to post a notice to employees announcing the re-
medial steps it will undertake. In addition to the physical post-
ing of paper notices, the notices shall be distributed electroni-
cally, by email, posting on an intranet or an internet site, or
other electronic means, if the Respondent customarily com-
municates with its employees by such means. See J. Picini
Flooring, 356 NLRB 11, 13 (2010).
Based on the above findings of fact, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Transportation Workers Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. On June 15, 2010, Respondent laid off its employee, Da-
vid Sackin, because of his activities as a union steward on be-
half of the Union and because he intended to give testimony on
behalf of his fellow employees in a hearing before the State of
Nevada Labor Commissioner; in doing so it violated Section
8(a)(3) and (1) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Wynn Las Vegas, LLC, Las Vegas, Neva-
da, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off employees because they are stewards for the
Transportation Workers Union whose duties are to act for the
mutual aid and protection of fellow employees, including serv-
ing as their representatives during misconduct investigations
and assisting employees in legal proceedings aimed at improv-
ing working conditions.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, if not already
done, offer David Sackin full reinstatement to his former job,
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(b) Make David Sackin whole for any loss of earnings, plus
interest compounded daily, and other benefits suffered as a
result of the discrimination against him, in the manner set forth
in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoff of David Sackin,
and, within 3 days thereafter, notify him in writing that this has
been done and that the layoff will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its ca-
sino in Las Vegas, Nevada, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 28 after being signed by
Respondent's authorized representative, shall be posted by Re-

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694
spondent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In addition
to the physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intra-
net or an internet site, or other electronic means, if the Re-
spondent customarily communicates with its employees by
such means. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Re-
spondent at any time since June 15, 2010.
(f) Within 21 days after service by the Region, Respondent
shall file with the Regional Director a sworn certification of a
responsible official on a form provided by the Region attesting
to the steps that Respondent has taken to comply.