Wynn Las Vegas, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 14, 2010

28-CA-022818 (N.L.R.B. Dec. 14, 2010)

JD(SF)-52-10
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA
WYNN LAS VEGAS, LLC
and
RONDA LARSON, an Individual
Case 28–CA–22818
Mara-Louise Anzalone and Pablo Godoy, Phoenix, Arizona,
for the General Counsel.
Gregory J. Kamer and Bryan J. Cohen (Kamer Zucker
Abbott), Las Vegas, Nevada, for Respondent.
Ronda Larson, Las Vegas, Nevada, appearing pro se.
DECISION
Statement of the Case
JAMES M. KENNEDY, Administrative Law Judge. This case was tried in Las Vegas,
Nevada on May 11, 12, 13, 14, and June 7, 2010 pursuant to a Complaint and Notice of Hearing
issued on February 26, 2010 by the Regional Director for Region 28. The complaint is based
upon an unfair labor practice charge filed on December 15, 20091 by Ronda Larson, an
Individual, which she amended on February 26, 2010. The complaint alleges that Wynn Las
Vegas, LLC (Wynn or Respondent) has committed certain violations of Section 8(a)(1) and
Section 8(a)(3) of the National Labor Relations Act. Respondent denies the allegations. All
parties have filed post-hearing briefs and they have been carefully considered.
The principal issue is whether Respondent disciplined two union stewards in violation of
Section 8(a)(1) and (3) of the Act. Respondent concedes that it fired day shift steward Ronda
Larson and suspended alternate day shift steward David Sackin, but asserts it did so for good
cause. The complaint also alleges that Respondent has interfered with, restrained and coerced
its employees in the exercise of their Section 7 rights by coercively interrogating employees
about their concerted activities, including denying them union representation during interviews
and disciplinary meetings. Respondent asserts that it did not deny employees union
representation in those circumstances for they were not entitled to representation under the

1 All dates are 2009 unless stated otherwise.
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Weingarten rule2 in the meetings which the complaint addresses. In addition it asserts that the
questioning was not coercive as defined in the Act.
Based upon the entire record, including my observation of the demeanor of the
witnesses, I make the following:
I. Findings of Fact
a. Jurisdiction
Respondent admits it has been at all material times a Nevada limited liability company
operating in Las Vegas where it operates a hotel and casino. During the twelve-month period
ending December 12, 2009, Respondent, in conducting its business, derived gross revenues in
excess of $500,000 and purchased and received at its facility goods valued in excess of
$50,000 directly from points outside the State of Nevada. Accordingly, it admits and I find it is,
and has been at all material times, an employer engaged in commerce within the meaning of
Sections 2(2), (6), and (7) of the Act.
b. Background
On April 28, 2005, Respondent began operating a high-end casino and hotel located on
the Strip in Las Vegas, Nevada known as “The Wynn.” Respondent’s President is Andrew
Pascal. Reporting to Pascal are William Westbrook, Vice President of Operations, and Charlie
Ward, Vice President of Table Games. Reporting to Westbrook is Assistant Administration
Manager, Peggy Collura, and Tyrone Lancaster who at all material times was employed as
Respondent’s Assistant Casino Administration Manager3 at the Encore.4 Additionally, Anthony
Tyne is employed as the Casino Manager, and Rick Sorani is the Assistant Casino Manager.
Upon opening the Wynn, the casino employed table games dealers, 5 floor supervisors,
pit managers, and shift managers. Dealers are responsible for dealing their games while
maintaining the transparency and integrity of the game. Moreover, dealers are expected to
socialize with customers and to answer questions, while avoiding potentially sensitive topics
such as politics and religion. Dealers are expected to explain the game to new players,
including basic strategy6 and are expected to act as diplomats between players to keep the
game friendly. Until September 2006, floor supervisors directly supervised several dealers

2 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
3 He has since changed positions and now works at the Wynn as an Assistant Casino
Manager of Operations.
4 The Encore is the Wynn’s sister hotel and casino, which opened in December 2008. The
two buildings share a ground floor and there is some overlap in terms of management duties.
As noted below, the Wynn has been organized by the Transportation Workers Union (the TWU);
the Encore remains nonunion.
5 Table Games Dealers deal the games of blackjack, craps, roulette, baccarat, casino war,
and other casino table games.
6 With regard to blackjack, “basic strategy” refers to playing the game by a widely
recognized set of statistical rules. Tables of players often get upset with a player for refusing to
play basic strategy because they believe it will upset the odds and cost money for everyone at
the table.
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during their shifts and completed performance evaluations for the dealers. Pit managers
supervised the floor supervisors and a shift manager floated around the casino supervising all
activities on the casino floor.
It is a common industry practice for patrons to tip dealers. Before opening, the Wynn
established a tip or “toke”7 policy, whereby dealers were required to pool all tips received at
individual tables during a 24-hour period with all the other dealers who worked during that same
24-hour period. Indeed, table games dealers earn only minimum wage, thus most of their
remuneration comes from the toke pool, not the hourly wage. Accordingly, dealers have never
been allowed to retain individual tips, but instead have always been required to drop all tips into
the “toke box”8 attached to the side of each table. This practice is true for tokes handed to the
dealer and to winning bets placed by players intended as tokes for the dealer. At the end of the
shift, all tokes are pooled and distributed to the dealers. As described below, on September 1,
2006, Respondent expanded the tip pool first by redefining the duties of the floor supervisor and
then recasting that job as nonsupervisory. Simultaneously, it renamed that position as “Casino
Service Team Lead” or “CSTL.” This meant that the pool of eligible recipients was significantly
expanded and the pool payouts significantly reduced for each employee.
As part of its business, Respondent maintains an extensive network of over 1000 digital
surveillance cameras throughout the casino that capture 99 percent of what occurs in the
casino. Many of the cameras have the ability to pan, tilt and zoom. Cameras are stationed
above table games, and throughout the casino to maintain security and to ensure that the
games are being played fairly. The video does not include any audio, but does capture body
language and some expressions, depending on the angle of the camera. Respondent also
maintains behavior rules for its employees who are required to behave consistently in most
respects. These rules are enforced to some degree by progressive discipline principles, though
Respondent has reserved the right to deviate.
c. The New Tipping Policy, Connected Litigation and Union Representation
On August 21, 2006, Respondent announced a new tip pooling policy, which became
effective on September 1, 2006. As noted, it created the new position of CSTL which
essentially replaced the position of floor supervisor. Previously, floor supervisors and managers
had been prohibited from accepting tips, but under the new policy CSTLs were placed into the
toke pool, a practice which allowed them to supplement their base pay. Casino Managers and
Assistant Casino Managers continue to be prohibited from accepting tips and from sharing in
the pool. The duties of the newly created CSTL9 were similar to those of a floor supervisor, but
refocused them on customer service. Under the new tip pooling policy CSTLs, box dealers,10
and table games dealers were all required to share the pooled tips which had previously been
reserved solely for table games dealers.

7 Tips are commonly referred to as “tokes” in the casino industry.
8 A “toke box” is a metal box that hangs on the edge of the dealer’s side of the table.
9 Respondent disputes that CSTLs are supervisors within the meaning of the Act.
10 Box dealers are found at the roulette and craps tables. Although the box dealers’ duties
are not described in the record, it is fair to say that the box dealer is the casino worker who
controls the “box” or betting layout. He is the one who accepts the bets, collects the losings and
pays the winners.
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The change resulted in both public and private litigation. In September 2006, some
Wynn dealers anonymously filed complaints with the Nevada State Labor Commissioner. That
agency dismissed the complaints asserting that the evidence was insufficient to warrant any
action. Then, in January 2007, several dealers filed what appears to have been a class action
in state court. The complaint was eventually dismissed by the Nevada Supreme Court on three
grounds: (1) the Labor Commissioner has exclusive jurisdiction over wage matters and the
statute does not afford private litigants the right to enforce the state wage laws; (2) declaratory
relief is not available where an adequate statutory ground exists; and, (3) as the plaintiffs are at-
will employees, there is no contract of employment, implied or otherwise, which can be
enforced. See, Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96 (Nev. 2008).
During the course of that litigation, Respondent’s table games dealers and the
Transportation Workers Union (TWU) began to work toward union representation utilizing the
procedures under the NLRA. On March 30, 2007, the TWU sent a letter to Respondent
announcing that 46 employees, including Charging Party Larson and fellow alleged
discriminatee Sackin, were to serve as in-house union organizers. The TWU filed its
representation petition on April 9, 2007. Five weeks later, on May 13, 2007, the TWU won the
election and the Board’s Regional Director issued a certification of representative to the TWU on
May 23, 2007. Collective bargaining began in August 2007; a tentative agreement was finally
reached on November 17, 2009. It remains unsigned, but partially implemented due to
circumstances not litigated here, said to be related either to the length of the contract term or
because many employees are unhappy with the TWU’s acceptance of the toke policy.
In September 2007, former Wynn table games dealer Megan Smith filed a wage claim
with the Labor Commissioner. Thereafter, several other employees were able to intervene; the
Commissioner, however, aware of the Baldonado case, took no action and awaited its outcome.
After the court’s dismissal of the appeal, the Commissioner consolidated the Smith wage claims
with some additional employee complaints and conducted a hearing which lasted 10 days
between July and October 2009.
On July 1, following the Commissioner’s internal litigation rules, the claimants provided
Respondent with a list of witnesses. Present on the list were the TWU’s two day-shift stewards,
Larson and Sackin. Their appearance on the list seems to have triggered the instant matter.
Beyond that, Larson had previously been visible to Respondent’s management as she had been
outspoken and had taken a leadership role in the toke pool litigation.
d. Larson and Sackin’s Protected Conduct Preceding Turnover of the Witness List
In September 2006, Respondent’s president, Andrew Pascal, conducted a meeting of
the table games dealers to explain the need for the toke policy change. During that meeting
Larson stood up and verbally opposed the policy saying, among other things, that it would have
a negative affect on the dealers’ attitude toward working at the Wynn. She thought the change
was unfair as it diluted the tip pool money and that it sent the message to the staff that they
were not very important. A statement such as this at a meeting is clearly protected Section 7
conduct. See also, Colders Furniture, 292 NLRB 941 (1989), enfd. 907 F.2d 765 (7th Cir.
1990); Bergensons Property Services, 338 NLRB 883, 886 (2003) (employee complaints at a
group meeting are protected conduct); CSK Tool & Engineering, 332 NLRB 1578 (2000);
Dickens, Inc., 352 NLRB 667, 672 (2008).
In that same time frame, as it became clear that legal counsel was required, Larson
became involved in collecting money from fellow employees in order to retain and pay the
attorneys. Using the employee break room she openly and visibly collected about $20,000 for
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the cause. This activity, too, was protected as it was aimed to support Section 7 protected
litigation. See Altex Ready Mixed Concrete, 223 NLRB 696 (1976), enfd. 542 F.2d 295 (5th Cir.
1976), cited with approval by the Supreme Court in Eastex, Inc. v. NLRB, 437 U.S. 556, 565
(1978). The many cases to that general effect include Mojave Electric Cooperative, 327 NLRB
13 (1998), enfd. sub nom. Mohave Elec. Co-op., 206 F.3d 1183 (D.C. Cir. 2000), Nu Dawn
Homes, 289 NLRB 554, 558 (1988), and Riverboat Services of Indiana, 345 NLRB 1286 (2005).
And, as noted, the TWU had announced both Larson and Sackin as two of its in-house
organizers. In addition, sometime in mid-2007, both Larson and Sackin became the day shift
union stewards. Larson took the larger role and frequently served as a Weingarten11
representative of bargaining unit employees who were being investigated for misconduct. That
role is protected by Section 7 as well.
Similarly, but somewhat less visible, Sackin was active as a TWU organizer and on at
least one occasion served picket duty for the Union during the negotiation process, making a
television appearance in the process. Less active than Larson, he nevertheless served as the
Union’s conduit to the employees, provided news and was a source of information to them as
questions came to him. Although he was less active, his Section 7 activity in support of the
Union is clear.
There can be no question that both Larson and Sackin were known to take advantage of
their Section 7 protection. Moreover, as stewards, their leadership skills and roles were well
understood by management.
e. Collura Questions Sackin
David Sackin has 13 years experience as a dealer and has worked for Respondent
since it opened in 2005. Principally a roulette dealer, he serves as one of the day shift union
stewards. His name appeared on the July 1 witness list which the Labor Commissioner
required be submitted to Respondent.
On July 13, assistant casino administration manager Peggy Collura, claiming she was
directed by company attorneys to do so, began calling employees listed as witnesses to her
office for an interview. The first was Sackin and he turned out to be the only employee she
interviewed. She had supposedly been instructed by company counsel to “reach out” to the
listed dealers to find out if they knew they were possible witnesses and to find out what they
would say in their testimony. Collura’s meeting with Sackin took place in her office in the
presence of Tyrone Lancaster, her counterpart at the Encore. Sackin says he was led to
believe that Lancaster, whom he did not know, was a company attorney. In fact, Lancaster
stood behind the seated Sackin taking notes and Sackin could never really look at him.
Sackin had been “tapped off” his table and had no idea why he was being summoned
and harbored some trepidation about the interview. Sackin asked if he needed a Weingarten
representative but Collura assured him that he did not. Collura asked if he was aware that he
was on the list of potential witnesses, which he affirmed. Collura then asked if he was
represented by counsel for the Labor Commissioner hearing. Sackin replied that he was not.
Collura asked if Sackin was aware that he might be called as a witness and asked what he

11 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) established that a union-represented
employee who reasonably believes that an interview might lead to discipline has the right to ask
for representation by the union.
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would testify to if he was called. Sackin evaded the question and told Collura he had not had an
opportunity to think the matter over and that he had not decided whether to testify or not.
Collura then asked Sackin if he had ever received a tip in his capacity as a dealer.
Sackin affirmed that he had. Her next question was whether Sackin had ever witnessed a
CSTL receive a tip from a patron. Sackin stated that he had never seen a CSTL receive a tip.
Collura testified that she questioned further on this point, “I think I asked how many years he
dealt and I think he said fifteen. I said, ‘You’ve never had a customer say, oh, hey put a dollar –
what’s your number – to a CSTL and put a dollar on their favorite number?’” Sackin replied that
he had seen a guest tip someone other than a dealer a couple of times. Next, Collura asked
Sackin if he had signed any forms agreeing to be involved in litigation against Respondent.
Again, Sackin evaded the question. Sackin testified that he withheld information in the interview
because, “I didn’t want to bring any more questioning upon myself.” Collura testified that the
meeting lasted approximately 10 minutes.
Although Collura testified that she intended to meet with other employees listed on the
witness list, she never did. As a result, union steward Sackin was the only employee
interviewed about his involvement in the Labor Commissioner hearing. That fact now seems
most illuminating, given what followed.
f. Respondent’s Discipline Program
Respondent utilizes what it describes as a progressive discipline system to address
employee shortcomings. If a dealer makes small errors, such as accidentally paying a losing
bet, the employee will receive a note to their file. These small errors are usually caught by the
surveillance department which sends a report to Collura. The report is scanned into the
employee’s file, for recordkeeping purposes, but no disciplinary action is taken against the
employee unless that type of error persists. Once a dealer receives two to three of these
warnings, the employee then arrives at the next discipline step, a verbal acknowledgement.
Both the dealer and the manager sign off on the acknowledgement and it is scanned into the
employee’s electronic file. Even so, Respondent does not consider this to be part of the
progressive disciplinary system since these first two steps do not go into the dealer’s human
resources department file, but are instead maintained in the table games department employee
files. Collura explained:
So, a dealer could get just a straight out verbal. If it was a thousand dollar error, you know,
rather than give them a note to file, we might go right to a verbal. Okay? The next step
would be obviously a first written, which is for a violation; just depending on you know, what
the violation is. The next step after that is a second written, and that's considered a second,
last and final. That's to make them aware of you know, this is your last step. The next time
you, you know, make an error in this manner, then it can be suspension and possible
termination.
***
. . . anytime we process a first written, a second written, a suspension, that is done
electronically through our PeopleSoft, which is where you see all the information you have
and then that is electronically processed and is in HR's file, in their system, as well as our
system. [For clarity, paragraphs have been placed in reverse order of her testimony.]
This so-called progressive disciplinary system effectively allows management the
subjective authority to skip any of the steps if it deems the transgressions to be extremely
serious. Thus, the steps shown in the table games department files are not part of the discipline
system unless the error costs a large loss to the house. The first written and the second written
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are more often directed to behavior rule violations. And, as will be seen, the application of the
discipline is frequently uneven.12 Not only are disciplinary levels sometimes ignored, but those
same levels are also sometimes skipped based on someone’s subjective view of the triviality or
the severity of the violation.
Once a violation is reported to the casino manager, the information is reviewed and an
investigation of the situation is initiated. Collura reviews the preliminary information and decides
with Westbrook and Ward whether a suspension is warranted. If a suspension is warranted, the
employee is placed on suspension and management has the opportunity to conduct a more
thorough investigation. Upon the investigation’s completion, the employee is provided a “due
process” meeting, during which he/she may add evidence or statements that may affect
management’s conclusions.
g. The Sackin Incident of August 21
On Friday, August 21, 11 days after his meeting with Collura and Lancaster, Sackin was
running late to work. He had been delayed due to a traffic stop and the friend he was driving
with wanted to shop at the nearby mall. She dropped him on Las Vegas Boulevard across from
the Hotel’s front entrance. This put him on the wrong side of the facility to timely reach the
employee entrance. He knew he could just make it to his pit if he went through the front

12 The General Counsel’s factual recitation in its brief on this issue is instructive on the point.
I quote it at length:
. . . Respondent suspended a male dealer for “hockey-checking” a female dealer after interviewing the two parties
involved and two other witnesses who were on the scene. The male dealer was given a five-day suspension and a
Second, Last & Final Written Warning. Dealer Thomas Canonico made racist remarks to and about fellow
employees, openly discussed the possibilities of the President Obama being assassinated, and was provided the full
progressive disciplinary treatment until he resigned. Another dealer, Ella Choy was openly disrespectful toward a
casino manager and merely received “counseling” for this infraction. Dealer Carlos De Leon openly questioned his
Team Lead twice in front of guests and received his second “First Written Warning.” Dealer Miguel Peralta “failed to
follow the instructions given to him by a Pit Manager” and was only “counseled.” Subsequently arriving to work and
being suspected of being under the influence netted him but a Second Written Warning.
Respondent has repeatedly exercised a great deal of discretion in meting out punishments. Less than a year
following a previous infraction in which her actions were written up as “inappropriate and unprofessional,” dealer
Mary-Noel Whitcomb was cited for “disrespectful and inappropriate conduct toward fellow employees.” Respondent
took statements from numerous team members, and determined that “Mary consistently demonstrates a poor attitude
toward her CSTLs when they are working in her section. Mary’s behavior…is very uncomfortable for her fellow team
members including dealers and CSTLs …. [T]he department will not tolerate Mary talking bad or criticizing any fellow
team member regarding performance …. in front of our guests.” (emphasis added.) For this, Whitcomb was given a
second-within-a-year “Second, Last & Final” Written Warning.
Respondent testified that when a guest complains about an employee, the situation is taken very seriously, and more
serious discipline is considered justifiable. Yet, table games dealer Hue Kim asked a guest for an emergency loan,
offering to pay it back with a $5000 casino chip that he would slip the guest during a game. Not surprisingly, this
elicited a guest complaint, yet Kim received merely a three-day suspension pending investigation and a Second
Written Warning for these infractions. Dealer Dean McClusky was given only a written warning when he was a total
no-call/no-show, and was only terminated after he came to work under the influence and was determined to have
been endangering company assets and potentially alienating customers.
Similarly, dealer Hong Sun received multiple “Second, Last & Final” Written Warnings within a short space of time,
involving separate incidents that resulted in guest complaints. In the most blatant of these Ms. Sun accused a guest
of smelling and asked him to change seats on her game. When the guest inquired as to what type of smell, Ms. Sun
said “body odor, like you haven’t showered.” Ms. Sun then fanned the air several times in front of her face, further
emphasizing an odor. This request totally embarrassed and humiliated the guest. Ms. Sun then in a further
exchange with the guest regarding a game rule, asked the guest, “Can’t you read?” and told the guest, “I know what
I’m doing.” Less than a month later, a customer submitted a comment card, reporting “Ms. Sun’s unprofessionalism
and overall poor attitude towards the guest.” Even so, Respondent continued to employ Sun up through late April
2010, when she left the country unannounced.
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entrance and hurried down the hallway to the casino. He also knew he would not be able to use
the time clock in the break room near the employee entrance and would have to make a
handwritten correction which could be supported by the table’s computer, known as Table
Touch.
As he rushed through the casino, he was straightening his uniform which was not fully in
place as he came through the door, though by the time he arrived at his pit he was properly
attired. He also placed a newspaper he was carrying behind an ATM machine (later retrieved
and disposed of). His hasty path to his workstation is compiled on a video disc which is in
evidence.
Respondent had become aware of his lateness due to a cell phone call made by the
Encore’s casino manager Justin Sprague who had observed Sackin crossing a pedestrian
bridge over Las Vegas Boulevard as he rushed toward the Wynn. The call alerted the
scheduling manager that Sackin would be late. When the manager called the pit to alert it that
Sackin would be late, he was surprised to learn Sackin had already arrived. This led Collura to
investigate what had happened as she suspected Sackin must have used the front entrance.
She advised operations vice president Bill Westbrook who ordered up the surveillance records
for his review.
A review of the surveillance resulted in the conclusion that Sackin had violated eleven
rules including: (1) failure to notify a Casino Manager of his late arrival; (2) entry through an
unauthorized entrance; (3) not in complete dress uniform in the casino area; (4) running in a
guest area; (5) leaving personal property on the floor in the casino area (the newspaper was
described as a “package”); (6) crossing through gaming areas instead of using the main aisles;
(7) entering the pit from the side, not at the end; (8) pushing a coworker; (9) not clocking in;
(10) failure to sign the “Clock In/Out Problem Log;” and (11) failing to maintain current contact
information with Human Resources and the table games department. Some of these
“violations” are clearly overkill, particularly the contention that Sackin had pushed a coworker
and Collura’s testimony that Sackin was “half-undressed.”13 Indeed, much of the description of
the various violations is on the florid side, clearly an effort to characterize Sackin’s conduct as
worse than it was.
Two and a half hours after the incident, Collura and Lancaster (brought over from the
Encore) called Sackin in for a meeting. Collura asked Sackin where he had parked and Sackin
explained that his friend dropped him off because they were running late after a traffic ticket on
the way to work. Sackin completed an employee statement and was informed that he was
being suspended pending the results of the investigation of the incident. Collura told Sackin
they would contact him on Monday after management had determined what had occurred and
what discipline, if any, they were going to impose. Sackin informed Collura that his cell phone
number had changed. Collura made a note of the change and Sackin left the casino. Collura
neglected to advise her secretary of the new number and no one reached him on Monday. On
Tuesday, he called and was asked to come right away to a “due process” meeting where he
could explain what had transpired. He had been to the dentist and was uncomfortable, but
came in anyway, asking for a Weingarten representative. A representative was not available
and the entire meeting was postponed until Wednesday, August 26.

13 What was Collura’s purpose to provide such a description? Why not simply say Sackin
was putting on his uniform jacket or tying his tie as he came through the casino? The video
shows what happened.
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On Wednesday, August 26, Sackin returned to the Wynn for the due process meeting.
Larson served as his Weingarten representative. After being asked if there was any further
information he could provide regarding the incident, Sackin wrote an addendum to his
statement. Westbrook stated he would review all of the information and determine the
appropriate discipline. After reviewing the information, Respondent determined that Sackin
violated 11 casino policies. Respondent returned Sackin to work with a suspension, time
served without compensation, and issued Sackin a second, last and final warning.14 Westbrook
and Collura asserted that the discipline was appropriate due to the number of infractions.
Although Respondent has a policy against employees entering through the front door,
Westbrook admitted that, on occasion, employees do use the front entrance and if they are
caught, it generally results in a discussion or counseling memorandum. Moreover, tardiness
generally results in minimal discipline. Each time an employee is late, s/he garners only a half
of a single disciplinary point.15 Respondent’s accumulation of the infractions to obtain the level
of discipline for suspension seems anomalous, given the fact that Sackin was trying to do the
right thing, get to work on time. Indeed, not only is the employee pushing incident an inaccurate
description, the failure to sign the clock-in problem log and the changed telephone number all
seem to be make-weight. Even the charge that he had failed to report his lateness to the casino
manager is wrong; he wasn’t late. The push description is objectively wrong (and the employee
was never even interviewed), the log correction might well have been made at an appropriate
break, but calling Sackin to the meeting and then sending him home prevented the correction,
and the telephone change was known to the person in charge, Collura, who should have
passed the new number on to the appropriate people. In any event the delay harmed only
Sackin, not the Company, for Sackin still needed to be scheduled for his return. Certainly
Respondent does not claim that it was relying on a specific return date.
h. Ronda Larson’s Termination
Ronda Larson is a table games dealer with 23 years experience. Though hired by
Respondent when it opened in 2005, Larson had previously worked as a dealer for at least one
other Steve Wynn casino, the Bellagio. She had also spent 12 years as a floor supervisor at
Wynn’s Treasure Island.
As mentioned above, she opposed the 2006 change in the toke policy and helped fund
the legal expenses by her fellow employees, raising $20,000 for the attorneys. Larson and five
other dealers spread the word that they were collecting $100 donations from each of the dealers
in order to pay for legal representation. Larson held three “fund raising drives” in order to collect
the money and did so in the dealers’ break room where supervisors were present.
And, of course, she was heavily involved in the 2009 Labor Commissioner’s hearing
even though she was not a named plaintiff. Larson was present for each day of the hearing and
assisted counsel by collecting notes from other dealers. During the hearing, Larson sat both
with and behind counsel and took notes as well as passing notes to the attorneys. In this
regard, both she and union president Connie Castro were seen to be working together in that
endeavor. She attended each day of the hearing.

14 This was not the second written warning in Sackin’s file. Rather, Respondent here
skipped steps to reach the second level of the disciplinary process due to the supposed severity
and number of the infractions.
15 Respondent maintains a policy whereby employees receive “points” for being tardy and
for absences. It is an eight point system and a half point would be minimal discipline.
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On July 13, 4 days after the first session of the Labor Commissioner hearing ended on
July 9, Larson received a written warning for self-correcting three mistakes on a game called
War. According to Collura, she should have called her mistakes to the attention of the CSTL.
She explained:
Well, it's to protect the integrity of the game. Dealers are going to make mistakes. They're
out there dealing hundreds and hundreds of hands a day. So, if Ronda did make an error,
which is very similar to an error on blackjack, giving a card, an extra card, to a player, all she
needed to do is alert the CSTL. If the CSTL is there present, they're accountable for it. It
puts back the cards on the table for surveillance to view to say, hey, this was a mistake, this
is not collusion, this is not anything else involved, and then we'd go ahead and -- the CSTL
instructs her to go ahead and take the money up and lock it back in the bank. It would have
been, you know, end of story.
Due to the mistake, Respondent issued Larson a First Written. It did so despite the fact
that the player knew she had made the mistakes and had acquiesced in the corrections. This
discipline is not part of the complaint, though it did weaken her tenure and was taken into
consideration later when Respondent decided to discharge her. Beyond that, the warning is not
consistent with the small dealer error practice described by Collura, a warning kept in the table
games department, rather than sending the matter up to management and on to Human
Resources.
On September 6, the Sunday of Labor Day weekend, Larson was dealing blackjack at
tables in the swimming pool area. The pool area is outdoors with some overhead covering and
is utilized during the summer months to coincide with warm temperatures. It is a very casual
area, a bit louder than inside and the alcohol consumption is said to be somewhat greater.
Respondent sets a very relaxed attitude at the tables in the pool area; there is even a topless
artificial beach nearby. Larson began her duties at 11 a.m. She was on a rotation (“string”) with
Romilda Sarant and Abegaille Sell in the pool pit. Sell was acting as the relief. Each dealer
works for an hour and then has a half hour break. The dealers alternate so that Sell takes over
the table for the dealer who is on break. She, in turn, also receives a half hour break.
Later that day, Larson was accused of two episodes of misconduct at her blackjack
table. She was entirely unaware of either one since neither seemed to be remarkable or in any
way memorable. Indeed, Respondent has presented video (without sound) of both incidents.
The video is helpful only to the extent that it supports Larson’s contention that nothing occurred
which was out of the ordinary or which might be regarded as eventful. It does show how
mechanical, rote and habitual a blackjack dealer’s movements are. Respondent called
witnesses to describe what led to its decision to discharge Larson.
The first incident involved a group of birthday party celebrants including individuals
named Naishat Mehta and Andrew Salute. They never made any complaints at the time of the
so-called incident, but were overheard by the pool manager griping somewhat later. The
second concerns an almost wordless conversation between Larson and the CSTL for the pit,
Derek Corsaro. She had suggested that her table needed a “fill” of red chips ($5 chips); he did
not agree and her response was regarded as defiant and insubordinate. I suspect that the
second incident would have been ignored if it had not been for the perceived customer
complaint involving the Mehta party. Certainly Corsaro had very little to complain about.
Furthermore, the Mehta incident seems to have been trivial and within the bounds of approved
company behavior. Would these have been of concern had Larson not been a union steward
who had recently received a First Written?
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There are two factors here which are most curious and which tend to support a finding
that at some stage Respondent had begun hunting for a reason to fire Larson. The first is the
manner in which the managers sought out Mehta and Salute to encourage them to file written
complaints, coupled with their too willing acceptance of the customers’ reluctant comments. In
fact, Mehta told them he did not want to fill out a comment card, doing so only after casino
manager Anthony Tyne tracked him to his dinner reservation and pushed him into it. Standing
alone, that seems to be extraordinary. When he testified, Mehta, who works as a manager for a
software company in Santa Monica, said in retrospect he did not believe what he had perceived
Larson to have done amounted to a firing offense. Even at the time it was happening, he
regarded the Casino’s urgency with suspicion, specifically Respondent’s offer of free desserts,
later negotiated to free nightclub passes in exchange for guest comment cards regarding
Larson’s conduct.
The second is what would appear to be a deliberate effort to prevent Larson from having
full access to her Weingarten representative, Sackin, as she was ordered to provide a written
statement about the two events. In that regard, she was summoned to Tyne’s office toward the
end of the day where she met with Tyne and assistant manager Rick Sorani. Sackin was
brought in as the Weingarten representative. They asked her to provide a written statement
concerning what had happened between her and Corsaro. She was then sent to a cubicle
down the hall to write it. When Sackin attempted to accompany her and assist, Sorani barred
him from doing so, even though the company generally allows Weingarten representatives the
opportunity to do so. As a result, Larson wrote her statement without the benefit of discussing it
with her steward. Later, Sackin was permitted to review the statement before Larson turned it
in. However, he had been unable to discuss the incident with Larson in advance and had been
barred from discussing the events as she was composing her statement. Part way through he
was allowed to be with her, but only silently under Sorani’s watchful and foreboding eye.
Afterwards, Larson was suspended pending investigation of the complaints.16
The following day, Tyne called in the other two dealers on the string, Sarant and Sell, to
give written statements about what had occurred between Larson and the Mehta party. Neither
was able to describe what Larson had supposedly done. They could barely recall that the
customers seemed to be grumbling, much less what it was all about. Sell had passed the
matter off as inconsequential.

16 [Witness SACKIN] In the end, [union president] Connie [Castro] was told that I could be in
the meeting. It was the end of her break. She returned to the table, I was allowed to go in
there, but I was told I could not speak at all, that there would have to be either Anthony or Rick
there as a witness also.
So I went into this. [Larson is] three-quarters of the way done with her statement. Rick's there,
I'm there, and she's there. When she was finished with the statement, Ronda and I told Rick
that we didn't feel that was right. That was the first time that there's never been anybody
allowed to speak to someone before or help in the process.
Q [By Ms. ANZALONE] What was his response to that?
A He said, listen, we don't want anybody writing anybody else's statement.
Q Okay.
A At that time, I told him there was no way for me to write the statement, I wasn't there. I just
wanted to aid her if she needed any spelling, some calming down, just to be there beside her
and comforting.
Q What was his response?
A He said we're not going to allow anybody to help another especially if it could endanger the
writing of the statement.
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On September 9, 2009, Larson met with Westbrook and Collura for a due process
meeting and again, Sackin was present as the employee representative. Larson submitted
additional statements and ultimately Westbrook determined that Larson should be terminated
based on the incidents and her prior disciplinary record. Larson was informed on
September 17, 2009 that she was terminated.
II. Analysis and Conclusions
a. Questioning Sackin
The General Counsel’s theories, that Collura’s questions to Sackin regarding whether he
knew he had been named as a witness in the Labor Commissioner hearing, whether he had
counsel, whether he had observed CSTLs receiving tips and what he might be testifying about
are all based upon application of the Board’s Johnnie's Poultry17 rule. That case is designed to
protect witnesses before the NLRB who are being questioned by a respondent who has a
legitimate purpose in doing so. Specifically, the safeguards are that the employer must:
communicate to the employee the purpose of the questioning, must assure the employee that
no reprisal will take place, and must obtain the employee’s participation on a voluntary basis.
The questioning must also occur in a context free from employer hostility to union organization
and must itself not be coercive in nature. Moreover, the questions must not exceed the
necessities of the legitimate purpose by prying into other union (or protected) matters, eliciting
information concerning an employee's subjective state of mind, or otherwise interfering with the
statutory rights of employees. When an employer transgresses the boundaries of these
safeguards, it loses the benefits of the privilege. A failure to provide the safeguards results in
an 8(a)(1) violation.
The obvious difference is that the General Counsel here is not seeking to protect an
NLRB witness being called to testify in an NLRB hearing. Sackin had been listed as a witness
in a state labor commissioner hearing. This raises the immediate question of whether Johnnie’s
Poultry has any application whatsoever. After all, the state labor commission has its own
concerns and rules about the protection of its witnesses. Indeed, while Section 7 rights are its
primary focus, the NLRB has no primary interest in the rights of witnesses as they appear in
other forums, even if Section 7 might be seen as applicable.
The issue of administrative comity was seen relatively early in the Board’s decisions. It
was first hinted in Imperial Garden Growers, 91 NLRB 1034, 1037 (1950) (overruled on a
different issue, Bodine Produce Co., 147 NLRB 832 (1964)) where the Board observed that its
authority over agricultural workers after 1947 differed from that of the Labor Department. It
decided to accept the Labor Department’s definition saying: “We believe it to be our duty to
follow, whenever possible, the interpretation of Section 3(f) adopted by the Labor Department
and its Wage and Hour Division, as that agency, and not this Board, has the responsibility and
the experience of administering the Fair Labor Standards Act.”
Seven years later, this deference became a matter of comity in another Fair Labor
Standards matter. See Olaa Sugar Company, 118 NLRB 1442, 1444 (1957) when the Board
said: “Moreover, considerations of comity between two agencies of the Government make it
desirable that the view of the agency most often concerned with a problem be respected by the
agency to which the problem is relatively incidental. [fn. omitted] This is particularly true where
Congress has singled out the law creating the ‘primary’ agency as the guide to the other.”

17 Johnnie's Poultry Co., 146 NLRB 770 (1964).
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And, of course, the Board has often given comity to state labor relations agencies
concerning unit placement questions so long as the decisions are not “clearly repugnant” to the
policies of the NLRA, e.g., Stand-By One Associates, 274 NLRB 952, 953 (1985). See also, St.
Joseph’s Hospital, 221 NLRB 1253 (1975), enfd. 542 F.2d 495 (8th Cir. 1976), where the Board
said “Contrary to the Administrative Law Judge, it is not a touchstone of comity that the
procedures and policies of a state agency be identical to those of the Board. All that is required
is that the state proceedings violate neither due process nor the specific mandates of the Act.”
Therefore, the fact that a state, rather than federal, agency is involved is not of great
concern.
The Nevada Labor Commissioner in large part stands in the shoes of the Department of
Labor for analytical purposes. As Olaa Sugar says, the DOL (Commissioner here) is the
agency most concerned with witnesses who appear before it. It is also the agency most often
concerned with state wage laws. Indeed, it is the agency where the employees chose to litigate
the toke pool issue, asserting that the Wynn had breached state wage laws when it changed the
make-up of the pool to include individuals who had previously been regarded as supervisory.
Therefore, I have no difficulty in concluding that it is the state agency which has primacy when
dealing with protecting the witnesses who come before it. The Board should provide comity to
the Nevada State Labor Commissioner in the same manner as it provides comity to the
Department of Labor in matters primary to it. Certainly insofar as witness rights are concerned,
the Board’s interest in the Labor Commissioner’s witnesses, in the words of Olaa Sugar, is
“relatively incidental.”
As a matter of comity, I find it is inappropriate of the Board to apply its witness protection
rules to witnesses appearing before other government agencies such as the Nevada State
Labor Commissioner.
Moreover, if the Labor Commissioner’s rules provide for some sort of informal discovery,
as suggested by its directive to turn over witnesses names to the Wynn, an employer’s exercise
of that discovery right would not be coercive, but would instead be privileged under state law.
Even Johnnies’ Poultry recognizes that certain types of inquiries touching on factual matters to
be developed at hearing are proper. Normally, of course, that would be handled by counsel,
though here it was by an assistant administrator. In fact, Collura seemed to be operating under
instructions or oversight from counsel.18 That difference seems to be of little importance here,
as again, it is a matter for the Labor Commissioner, not the NLRB.
Accordingly, I find that the allegations set forth in paragraphs 5(a) and (b) should be
dismissed.

18 To the extent that the General Counsel argues that Sackin was coerced by Collura saying
Lancaster was a company lawyer, I find the argument unpersuasive. Sackin simply made a
mistake, conflating Lancaster’s presence with Collura’s stated purpose that she was assisting
the company lawyers. Lancaster was too well known to pass himself off as a company lawyer.
Even if Sackin did not know him, neither Lancaster nor Collura would have attempted such a
thing. There was no effort to mislead Sackin and therefore no Section 8(a)(1) implication.
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As for paragraphs 5(c), (d) and (e), all of which allege that Sackin was denied a
Weingarten representative at this August 10 meeting, they should be dismissed as well. Sackin
was not called to the meeting for any disciplinary purpose. He was not accused of wrongdoing
and Collura accurately advised him that was so. Once the meeting was established as having
nothing to do with discipline, Weingarten had no application.
b. Disciplining Sackin
The General Counsel asserts that Sackin’s discipline was in violation of Sections 8(a)(1)
and (3) and must therefore present a prima facie case under Wright Line. As the Board
enunciated in Wright Line: 19
“. . . [W]e shall henceforth employ the following causation test in all cases alleging violation
of 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, we shall
require that the General Counsel make a prima facie showing sufficient to support the
inference that protected conduct was a ‘motivating factor’ in the employer’s decision. Once
this is established, the burden will shift to the employer to demonstrate that the same action
would have taken place even in the absence of the protected conduct.”
The General Counsel has the burden of establishing the existence of protected activity,
knowledge of that activity by the employer, and union animus. Donaldson Bros. Ready Mix,
Inc., 341 NLRB 958, 961 (2004). In addition to establishing the listed elements, the General
Counsel must show that the “timing of the alleged reprisals was proximate to the protected
activities and that there was antiunion animus to ‘link the factors of timing and knowledge to the
improper motivation.’” United Federation of Teachers Welfare Fund, 322 NLRB 385, 392 (1996)
citing Hall Construction v. NLRB, 941 F.2d 684 (8th Cir. 1991); Service Employees International
Local 434-B, 316 NLRB 1059 (1995).
In determining whether the conduct in question is unlawfully motivated, the Board relies
on both circumstantial and direct evidence. Fluor Daniel, Inc., 311 NLRB 498 (1993). “Since
motive is critical to a finding of an 8(a)(3) violation, but since direct evidence of motive is rare,
one must look to all of the attendant circumstances to determine whether Respondent acted
improperly or not.” Keller Manufacturing Co., 237 NLRB 712 (1978), enfd. in part, enf. den. in
part without opinion, 622 F.2d 592 (7th Cir. 1980). See also, Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966) and Atlantic Metal Products, Inc., 161 NLRB 919, 922
(1966). Moreover, where the employer’s reason for termination “given is implausible, then that
fact tends to prove an attempt to disguise the true, and unlawful, motive.” Keller Manufacturing
Co., supra, citing Capitol Records, 232 NLRB 228 (1977). See also J.S. Troup Elec., 344 NLRB
1009 (2005) (Board will infer an unlawful motive if the employer’s action is “baseless,
unreasonable, or so contrived as to raise a presumption of unlawful motive”).
Once the General Counsel meets its burden of establishing the prima facie case,
Respondent under Wright Line can rebut it by showing that prohibited motivations did not play a
part in the employment decision. If the employer cannot rebut the prima facia case, the burden
shifts to the employer to “demonstrate that the same action would have taken place in the
absence of the protected conduct.” Wright Line, 251 NLRB at 1089. The employer’s burden is
a burden of evidence and a burden of persuasion. Hunter Douglas, 277 NLRB 1179 (1985),

19 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982) approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
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enfd. 804 F.2d 808 (3d Cir. 1986), cert. den. 481 U.S. 1069 (1987). If the Respondent cannot
present sufficient evidence, the employer will not have met its burden and a violation will be
found. R.E.C. Corp., 296 NLRB 1293 (1989).
As described above, Sackin actively participated in the Union and was identified as an
in-house union organizer. In addition to his steward responsibilities, Sackin was named as a
potential witness at the Labor Commissioner hearing. Collura questioned him about his
testimony and recognized during that meeting that he was someone the other dealers would
“come to” if they had questions. As such, it seems evident that Respondent knew that Sackin
was continuously participating in protected activity in his position as a union steward and in-
house organizer.
Eleven days after being questioned about his testimony, Sackin had the misfortune of
running late to work (due to a traffic ticket) and was subsequently informed that he had broken
eleven rules. While Respondent contends that the General Counsel cannot establish a prima
facie case based on the timing of the events, the temporal proximity of Sackin’s participation to
the Labor Commissioner hearings and his discipline is suspect. Moreover, Sackin’s protected
activity was ongoing. In assessing the other surrounding circumstances regarding timing, it
seems that the General Counsel has met the burden of showing proximity between protected
activity and the resulting discipline.
Whether or not union animus or its equivalent in protected concerted activity cases was
a motivating factor in the decision to terminate Sackin is also in dispute. Even though
Respondent has provided evidence that Respondent and the Union have nearly agreed upon a
first collective-bargaining agreement, one which has been partially implemented, that fact does
not preclude a finding of union animus vis à vis a specific employee.
While Respondent contends it would have terminated Sackin whether or not he was
engaged in protected activity, I find that the degree of punishment in this case was not
supported by the underlying facts and instead the discharge was due to its animus against
protected conduct—his union stewardship and his willingness to testify in the Labor
Commissioner hearing. Respondent characterizes the eleven violations as an anomaly, which
this no doubt was. Sackin’s tardiness resulted in a chain of events that Respondent
unconvincingly claims was an egregious, blatant disregard for the rules. Even so, Sackin was
simply trying to be a good employee and get to his table on time; in doing so, he broke some
minor rules. In that sense, some admonishment or counseling was appropriate, perhaps at the
cost of the attendance points he should have incurred. Certainly, none of these infractions
seriously impacted the health or safety of any patrons, nor did it jeopardize the integrity or
security of the casino. And, there is no showing that customers even noticed, much less that
the Wynn’s decorum concerns were affected. Yet, Respondent chose to suspend Sackin and
skip lesser disciplines, jumping him from admonishment to a second last and final written
warning, the last step short of firing him. Plus, on top of the written warning and suspension he
was verbally warned that his conduct would now be under severe scrutiny.
Moreover, the effort undertaken by Respondent to stitch the video surveillance together
to document Sackin’s numerous violations while at the same time adding these minor violations
together in a geometric fashion to justify its action seems extraordinary, given that his
underlying purpose was simply to get to work on time. Respondent’s justification is extremely
weak at best. Until the day he ran late, Sackin was a seasoned employee who did not have any
outstanding discipline on his record. Yet, Respondent dug as hard as it could to trump up as
many violations as possible in order to subject Sackin to discipline. Indeed, in its zeal,
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Respondent failed to fully investigate the numerous violations, specifically by failing to interview
or get a statement from the employee Sackin allegedly “pushed” on his way to his table. The
Wynn’s response simply does not add up.
Although there is no evidence that Respondent made explicit remarks expressing union
animus, it seems to me that Sackin’s tardiness made him a target of opportunity. It is therefore
appropriate to look to the surrounding circumstances in the absence of direct evidence of union
animus. Both its departure from its policy of progressive discipline and its abrupt, high level of
punishment,20 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 punishment
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.21 The message Respondent was sending was clearly an
effort to neuter one of the Union’s stewards and to let him and his fellow employees know that
he was now operating hobbled; that he was unable to stand up for employees as strongly as he
might otherwise have.
Based on the totality of the surrounding circumstances, it is evident that Respondent
disciplined Sackin to such an extreme degree because of its animus arising from his two
instances of protected conduct, his stewardship and his willingness to testify on behalf of his
fellow employees at the Labor Commissioner hearing. Respondent’s contention that it harbors
no such animus is rejected. The General Counsel has met its initial Wright Line burden in
establishing a prima facie case. Likewise, Respondent has failed to rebut that case or present a
valid justification for the level of discipline applied. Certainly it 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
supportive of the employee cause before the Labor Commissioner. I therefore find that Sackin
was disciplined in violation of 8(a)(1) and (3) of the Act.
c. Termination of Larson
The General Counsel asserts that Larson was disciplined and terminated for engaging in
union and protected concerted activities and that Respondent’s action violated Section 8(a)(3)
and (1). The Wright Line burden-shifting analysis set forth above is also applicable to Larson’s
termination. Therefore, the General Counsel must have established that Larson was engaged
in protected conduct, that Respondent knew about her protected conduct and that union animus
was a motivating factor in Respondent’s decision to terminate Larson.
The record is rich with evidence of Larson’s protected conduct. Larson was widely
known to be a union supporter and early on was identified as a union in-house organizer. Until
she was fired, she served as a union steward, being particularly active and visible as a
Weingarten representative. She has been outspoken on numerous occasions about her
dissatisfaction with the new toke policy, even publicly challenging company president Andrew

20 Keller Manufacturing Co., 237 NLRB 712, 714 (1978) (skipping steps in the progressive
discipline policy and more strictly enforcing rules are evidence of animus.) Also, Fayette Cotton
Mill, 245 NLRB 428 at 438 (1979); Joseph Chevrolet, 343 NLRB 7, 18 (2004).
21 The Board has long held that harsher treatment for stewards, even if the conduct for
which they are being disciplined is not protected, is nonetheless a violation of the Act. See
United Aircraft, 188 NLRB 633 (1971); Precision Castings Co., 233 NLRB 183 (1977); Radisson
Muehlebach Hotel, 273 NLRB 1464 (1985); and Port Plastics, 279 NLRB 362 (1986).
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Pascal over the change. Respondent also knew Larson had actively solicited contributions for
the fund that provided legal representation for the dealers before the Nevada Labor
Commissioner and that she had provided assistance to counsel during the hearing. Clearly,
Respondent was well aware of Larson’s union and protected concerted activity. That
knowledge is so plain that Respondent does not contest that component of the prima facie case.
As with Sackin, the only element of the Wright Line test in dispute is whether there is
evidence of Respondent’s animus. Aside from the animus perceived in Sackin’s case, there is
no direct evidence of a general animus. Again, however, I observe that a general animus is
unnecessary; it is only necessary to find it aimed at a particular employee. Once again, I
consider the surrounding circumstances as Respondent decided to discharge Larson.
In 2007, during the ongoing litigation over the new toke policy, the Union began taking
steps toward representing Respondent’s dealers. Sometime in May, the Union won the
representation election. As an active union organizer, Larson was outspoken in her opinions
and because of her visibility she appeared on Respondent’s radar.
As described above, 4 days after the first session of the Labor Commissioner hearing
concluded, Larson began receiving enhanced discipline. Despite its being a minor infraction,
correcting her own mistakes, Larson was issued a First Written, a departure from its normal
procedure concerning ordinary dealer mistakes. That is not a part of the complaint here, but
nevertheless seems to have been part of Respondent’s effort to hamstring union stewards.
Only 2 months later, on September 6, Respondent’s effort bore fruit, though based on some
very questionable evidence. Significantly, it took extraordinary measures to justify and
corroborate the reasons for the discipline. On that day, Larson was accused of two different
episodes of misconduct even though she had no idea she had committed any rule violation
whatsoever.
The issue involving the Mehta party was clearly overblown. Larson was doing what she
had been instructed to do, trying to get along with the players. She was being playful and
amusing, even going along with their complaints about smoking. All agreed that smoking was
bad; she simply pointed out that it was bad in another sense—workers were heavily exposed to
second-hand smoke. Her remark was no reflection upon Respondent; it was a matter common
to all businesses in Nevada—a public policy issue which impacted employees. Indeed, her
light-hearted comment might be regarded as protected activity—an appeal to out-of-state
customers to complain to the Nevada authorities that smoking was damaging to the health of
Nevada workers. Even her remark that she was just working to pay her mortgage must be
considered as wry, dry humor. After all, paying the mortgage is the goal of much of America. It
was far from being a complaint about her job. Aside from that, however, whatever negativity the
Mehta party may have perceived, there is no reason why Respondent should have taken it as
accurate. The party had lost money at her table and appeared to blame her. Neither her
replacement dealer nor the dealer at the adjacent table noticed anything remarkable at all. The
complaint instead came from Brian Lindaman, the pool area manager that day. Even he did not
witness what Larson had supposedly done or said. He only heard grumbling about her—a
player declined another player’s invitation to join him at Larson’s table, saying that she was
“downright rude.” Lindaman never saw the so-called rudeness himself, so he asked the guests
if they would like to fill out a comment form; both declined. Nevertheless, Lindaman then asked
the other two dealers on the string what they knew. One had heard a guest remark on Larson’s
mortgage comment. He later told the Casino Manager, Tyne, of the so-called incident.
Tyne, of course, went to great lengths to document the matter. Indeed, his
disproportionate efforts have led me to conclude that Respondent had some sort of special
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purpose against Larson, very similar to the undertaking against Sackin. Tyne would not be
deterred in his quest to obtain statements from Salute and Mehta, even going so far as to track
Mehta down at the restaurant where he had reservations for dinner and to offer the Mehta group
ten passes to the casino’s nightclub in exchange for his statement against Larson. Mehta was
astonished by Tyne’s doggedness saying it was “aggressive.” If Tyne’s purpose was to make
certain guests were happy with their experience at Respondent, his pursuit of an employee
seemed to assure that Mehta’s dinner group, at least, was distracted from its enjoyment.
Moreover, Salute, who appears to have grumbled more than Mehta, never provided any
statement whatsoever. Salute was the one who had deliberately chosen to bet oddly and not
follow the standard way of playing blackjack. His play had drawn complaints from the other
players who had asked Larson if he was playing conventionally. She responded that he was
not. Salute did not care for her answer, even though he must have known he was betting
atypically. For that reason did Salute have second thoughts concerning the merits of his
grousing about Larson and decline to provide a statement to Tyne? By the time of the instant
hearing, Mehta certainly had second thoughts.
The second incident is even less remarkable than the first. Here CSTL Corsaro felt
disrespected when Larson disagreed22 (in the mildest of ways) with his decision not to call for a
chip fill, overruling her request. I think she was being perfectly reasonable in asking for the fill;
likewise, he was being perfectly reasonable in assessing the situation and deciding a fill was not
yet necessary. His alternative request, that she “color up” her chips, to him seemed to have
been disregarded as well when she threw a tip into the toke box. In my review of the video, it is
clear that she did not do that defiantly, but from habit. Her move was typically automatic, one
she made frequently; it was not an expression of noncooperation. The upshot of all this is at
least two-fold. First, she has been charged with insubordination. Yet, there was no
insubordinate conduct. The insubordination was mostly in Corsaro’s mind. He, of course, did
not make any decision; he simply told Lindaman that Larson had refused his order to color up
her chips.23 Lindaman had moments before been on her case over the Mehta matter, which by
then had been bucked to Tyne. What was unreasonable was the Lindaman-Tyne response to a
near-silent, slight difference of opinion between veteran coworkers. Tyne too-readily seized
upon it as another justification to get rid of Larson. He undoubtedly knew she was already
under a First Written. From his point of view, it was easy to combine the two matters.
In its defense, Respondent contends that eighteen of the forty-six in house organizers
have received no discipline whatsoever and that those numbers reflect the general statistics of
all employees, Larson was the most active of the stewards, and a leader in the toke dispute.
The level of discipline meted out to her was far greater than warranted. In fact, there is no
evidence that Respondent ever actively solicited and pursued guest complaints about an

22 Corsaro testified that when he asked Larson to “save” the lower denomination chips, she
told him, “I don’t feel like it” later saying “I don't have to do anything I don't feel like doing.” This
version is contradicted by Larson who says she simply said almost under her breath and in a
sing-song, playful way, “No-o-o.” Based on Larson’s generally good-humored personality, I
credit her over Corsaro.
23 Even if she had refused to color up her chips, it is really a minor matter. I do not perceive
that behavior to be a firing offense. After all, Corsaro was not, as Respondent has made clear,
a supervisor who has the authority to issue such orders. He can request, but he cannot order.
An employee’s noncompliance with a CSTL’s request would draw a supervisor who could issue
the order, where a second noncompliance could result in a finding of insubordination. But that
would also allow the dealer to explain his or her side of what had happened. A reasonable
supervisor might support the dealer, particularly one as experienced as Larson.
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employee to the extent it did in this case. Particularly persuasive is the vigor with which
Respondent sought out evidence regarding these two infractions. The harsh treatment of
Larson for her relatively minor infractions was out of the ordinary and highly suspect given the
surrounding circumstances. Indeed, the evidence that Larson had even committed these
infractions is flimsy at best.
Additionally, while not part of this complaint, Respondent denied Larson access to a
Weingarten representative before writing a statement regarding these two infractions. Even
though both Sackin and Larson asserted that they should be able to speak with each other
before or during the time Larson wrote her statement, Larson was refused a representative.
Finally, only after a great deal of resistance, did Respondent allow Sackin to be present while
Larson wrote her statement. However, Respondent insisted that its assistant casino manager,
Sorani, be present at all times and that Larson and Sackin remain silent, thereby precluding any
conversation between them. As stated above, this is not part of the current complaint, however
it does further illustrate Respondent’s union animus, for it was rendered in disregard of Larson’s
Weingarten rights.24 At the very least it is a rejection of a principal employee right. It certainly
qualifies as union animus.
Respondent argues that regardless of Larson’s protected activity, it still would have
discharged her. Respondent points to a number of disciplinary actions against various
employees who were rude to customers or to their supervisor. Here, Larson has been accused
of rudeness and insubordination; however, the evidence does not show that either actually
occurred. Only after tracking down one guest, Mehta, was Respondent able to get any kind of
statement regarding Larson’s comments about smoking by the pool. Mehta testified that he
thought it was suspicious how much effort the Respondent was putting into getting his
statement and testified further that he did not think Larson had done anything to warrant
termination. As for insubordination, Larson merely exchanged a few hushed words with
Corsaro, the severity of which did not warrant the subsequent discipline. Respondent presented
a spate of instances of discipline. However, in most of its termination cases, the conduct of the
employee was far more egregious or the employee had a history of misconduct. Larson did not
have any discipline on her record until after her participation in the Labor Commissioner hearing
and the conduct on which Respondent relies to justify her dismissal is simply insufficiently
persuasive. Certainly the discipline for similar misconduct cited in footnote 12 was far more
lenient than that levied upon Larson. Larson was an experienced dealer and, given the

24 Although not strictly a Weingarten case, in Cook Paint and Varnish, 258 NLRB 1230
(1981), the Board had occasion to review the facts relating to an employer’s demanding that a
union steward tell him what a grievant had said to him and to turn over his notes about the
conversation. The Board found the conduct to violate Section 8(a)(1), saying, “Clearly, the
scope of Respondent's questioning exceeded the permissible bounds outlined by the court and
impinged upon protected union activity. For while questions posed by Nulton may be termed
“factual inquiries,” the very facts sought were the substance of conversations between an
employee and his steward, as well as the notes kept by the steward, in the course of fulfilling his
representational functions. Such consultation between an employee potentially subject to
discipline and his union steward constitutes protected activity in one of its purest forms. To allow
Respondent here to compel the disclosure of this type of information under threat of discipline
manifestly restrains employees in their willingness to candidly discuss matters with their chosen,
statutory representatives.” Id., 1232. Thus Respondent’s placing a high-ranking official in the
room as well as silencing Sackin clearly interfered with Larson and Sackin’s ability to discuss
the matter in confidence. It was a denial of union representation, as Cook says, in its purest
form.
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overzealousness in disciplining her for relatively minor infractions, Respondent cannot
overcome a pretext analysis. The timing, the clear effort to defang stewards (including denying
her access to steward Sackin and issuing the warning to Sackin described, infra), the lesser
discipline taken against other employees who committed equal or greater rule violations and the
surrounding circumstances all support the conclusion that union and concerted activity animus
was the motivating factor in Respondent’s decision to discipline and discharge steward Larson.
Accordingly, I find Respondent violated Section 8(a)(3) and (1) in disciplining and firing her.
Indeed, I reemphasize that Respondent has covertly targeted stewards, first by weakening their
tenure and then by inflating any instance of minor misconduct beyond the reasonable.
The Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. As Respondent discriminatorily discharged Ronda Larson, it
must offer her reinstatement to her previous job, or if it is not available, to a substantially similar
job, and make her whole for any loss of earnings and other benefits she may have suffered.
Respondent shall take this action without prejudice to her seniority or any other rights or
privileges she may have enjoyed.
In addition, as Respondent discriminatorily suspended and warned David Sackin, it shall
be ordered to rescind the suspension and warning and to make him whole for any loss of
earnings and other benefits he may have suffered.
Backpay for Larson, if any, shall be computed on a quarterly basis from the date of her
discharge 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 suspension. In both cases daily compound interest as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (Oct. 22, 2010) shall be added to
the net backpay amounts. Furthermore, Respondent shall be required to expunge from its
personnel files any reference to their illegal discharge or suspension. Sterling Sugars, 261
NLRB 472 (1982).
The affirmative action shall also require Respondent to post a notice to employees
announcing the remedial steps it will undertake. In addition to the physical posting of paper
notices, the notices shall be distributed electronically, by email, posting on an intranet or an
internet site, or other electronic means, if the Respondent customarily communicates with its
employees by such means. See J. Picini Flooring, 356 NLRB No. 9, sl. op. at 3 (Oct. 22, 2010).
Based on the above findings of fact, I hereby 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 August 21, 2009, Respondent suspended its employee David Sackin because of
his activities as a union steward on behalf 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
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Commissioner; in doing so it violated Section 8(a)(3) and (1) of the Act.
4. On September 6, 2009, Respondent suspended its employee Ronda Larson and
thereafter discharged her because of her activities as a union steward and because she
assisted her fellow employees in their complaint to the Nevada State Labor Commissioner as
well as assisting the employees in obtaining counsel for that proceeding and assisting counsel
during the hearing in that matter. It therefore violated Section 8(a)(3) and (1) of the Act.
5. The General Counsel has failed to prove any other violation of the Act.
Based on the above findings of fact and conclusions of law, I hereby issue the following
recommended25
ORDER
Respondent, Wynn Las Vegas, LLC, Las Vegas, Nevada, its officers, agents, and
representatives, shall
1. Cease and desist from:
a. Discharging, suspending or disciplining 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 serving as their representatives during misconduct investigations and
assisting employees in legal proceedings aimed at improving 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 effectuate the policies of the Act:
a. Within 14 days from the date of this Order, offer Ronda Larson full reinstatement to
her former job, dismissing, if necessary, any person hired as a replacement or, if that job no
longer exists, to a substantially equivalent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
b. Make David Sackin and Ronda Larson whole for any loss of earnings, plus interest
compounded daily, and other benefits suffered as a result of the discrimination against them, 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 discharge of Ronda Larson and the suspension of David Sackin, and within 3 days
thereafter notify them in writing that this has been done and that the discharge and suspensions
will not be used against them in any way.

25 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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d. Preserve and, within 14 days of a request, make available to the Board or its agents
for examination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of the records
if stored in electronic form, necessary 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 casino in Las Vegas, Nevada,
copies of the attached notice marked “Appendix.” 26 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 Respondent immediately upon receipt and maintained for 60
consecutive 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
intranet or an internet site, or other electronic means, if the Respondent 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 duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Respondent at any time since
August 21, 2009.
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.
IT IS FURTHER ORDERED that the remainder of the complaint be dismissed.
James M. Kennedy
Administrative Law Judge
Dated, Washington, D.C. December 14, 2010

26 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(SF)-52-10
Las Vegas, NV
“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 violated 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 benefit and protection
 Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discipline you because you are a steward for the
Transportation Workers Union or because you engage in activity protected by law,
including union activity or activities for the mutual aid and protection of your fellow
employees
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights guaranteed you by law.
WE WILL within 14 days from the date of the Board’s order, offer Ronda Larson full
reinstatement to her former job, dismissing, if necessary, any person hired as a
replacement or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make David Sackin and Ronda Larson whole for any loss of earnings, plus interest
compounded daily, and other benefits suffered as a result of the discrimination against
them.
JD(SF)-52-10
Las Vegas, NV
WE WILL remove from our files any reference to the unlawful discharge of Ronda Larson and
the unlawful suspension of David Sackin, and thereafter notify them in writing that we
have done so and that their discharge and suspension will not be used against them in
any way.
Wynn Las Vegas, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue – Suite 1800
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6284.