Wynn Las Vegas, LLC

National Labor Relations Board - Board Decisions

May 29, 2020

369 N.L.R.B. 91 (N.L.R.B. 2020)

369 NLRB No. 91
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Wynn Las Vegas, LLC and Keli P. May and Kanie
Kastroll. Cases 28–CA–155984 and 28–CA–
157203
May 29, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On September 26, 2016, Administrative Law Judge
Gerald M. Etchingham issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.1 The Re-
spondent filed cross-exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions only to the extent consistent with
this Decision and Order.
I. INTRODUCTION
The main issue presented in this case is whether an em-
ployee’s act of encouraging a coworker, who was on
working time, to vote for union representation in an up-
coming election constituted prohibited union solicitation.
For the reasons set forth below, we agree with the judge
that the employee’s conduct constituted union solicitation,
and, accordingly, we adopt the judge's dismissal of the al-
legation that the Respondent's discipline of the employee
for violating its lawful solicitation and distribution policy
1 On September 12, 2019, the Board severed allegations in this case
that certain work rules maintained by the Respondent were unlawful un-
der Boeing Co., 365 NLRB No. 154 (2017), and that the Respondent dis-
ciplined Charging Party Keli May for violating one of those rules, and
remanded those allegations to the judge. The Board retained for future
consideration the allegations that the Respondent unlawfully disciplined
Charging Party Kanie Kastroll and committed additional misconduct in
connection with that discipline. All of the allegations that were re-
manded have now been resolved. Specifically, on October 11, 2019, the
judge granted the General Counsel’s unopposed motion to withdraw
rule-maintenance allegations set forth in pars. 5(a)(1)–5(a)(4) of the con-
solidated amended complaint and remand them to the Region. On Feb-
ruary 12, 2020, the Region approved a partial settlement agreement with
respect to the allegations in pars. 5(a)(3), 7(a) through (e), and 8 (insofar
as it covers pars. 5(a)(3) and 7(a) through (e)) of the consolidated
amended complaint. The allegations pertaining to Kastroll remain out-
standing and are at issue here.
2 The General Counsel has excepted to the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
violated the Act. In affirming the judge, we overrule prec-
edent that redefined the term “solicitation” in a manner in-
consistent with established law and the purposes of the
Act. We further clarify Board precedent to make clear
that, although solicitation for a union ordinarily means
that someone is asking an employee to join a union by
signing a union authorization card, the definition of “so-
licitation” also encompasses the act of encouraging em-
ployees to vote for or against union representation.
Finally, the complaint alleges that the Respondent com-
mitted additional violations of the Act arising from its dis-
cipline of the employee for prohibited solicitation. As dis-
cussed below, we agree with the judge’s dismissal of those
allegations as well.
II. FACTS
The Respondent is a hotel and casino located on the Las
Vegas strip. Employee Kanie Kastroll has been a table
games dealer (TGD) since April 2005. The TGDs work
in the Respondent’s Table Games Department and are rep-
resented by the Transport Workers Union of America, Lo-
cal 721, AFL–CIO (the Union). At all material times since
May 13, 2014, the Respondent has maintained a written
Solicitation and Distribution Policy (Solicitation policy).
The purpose of the policy is to promote “a productive, ef-
ficient, and clean work environment, as well as to mini-
mize the potential of any disruption to the Respondent's
guests.” The policy provides in relevant part:
2. All . . . solicitation by employees is prohibited in work
areas during the work time of the employee initiating the
solicitation or the employee being solicited.
. . . .
We have carefully examined the record and find no basis for reversing
the judge’s findings.
In affirming the judge’s credibility determinations, we do not rely on
his statement that Kastroll was not a credible witness based on her be-
havior during the February 5, 2015 meeting in which she was questioned
by the Respondent’s representatives who were investigating whether she
violated the Respondent’s solicitation and distribution policy. It is clear
that the judge implicitly credited Kastroll’s testimony in describing this
meeting and other events. In addition, we do not rely on the judge’s
finding that in-house general counsel for the Respondent Kevin Tourek
was credible based on a statement he made during this meeting because
the evidence shows that someone else made the statement. Rather, we
find that the other reasons stated by the judge sufficiently support his
determination to credit Tourek’s testimony.
At the hearing, the General Counsel withdrew the complaint allega-
tion that the Respondent, by Joshua Browning, engaged in surveillance
of employees to discover their union activities. In his decision, the judge
dismissed this allegation. We agree with the General Counsel that the
judge erred in ruling on this withdrawn allegation. However, we find
that this ruling did not result in prejudice to the General Counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
4. Solicitation is oral communication asking or seeking
a person to take some action, such as buying a product
or service, contributing to a charity, or joining an organ-
ization. It also includes requests for employees to sign
union authorization cards or representation petitions and
the exchange of such documents for signature.
On February 2, 2015,3 Kastroll approached an on-duty
security officer, Johnny Moreno, after she had finished
working her last game for the day. Officer Moreno, who
did not know Kastroll, was stationed at Priority One Post,
which is the highest customer traffic area on the Respond-
ent’s property.4 Security officers working at Priority One
Post are responsible for assisting guests as well as ensur-
ing casino security.
After approaching Officer Moreno, Kastroll began
speaking to him about the upcoming election involving the
Security, Police and Fire Professionals of America
(SPFPA), which at the time was attempting to organize the
Respondent’s security officers.5 Kastroll began the con-
versation by stating: “Hey, I heard you guys are having an
election pretty soon. Good luck on that. We pray for
you.” Officer Moreno responded, “Well, I don't know if
. . . it's going to go through.” After Kastroll asked why,
Officer Moreno stated, “Well, we’ve been going to these
mandatory meetings and the [Respondent’s] president,
Maurice [Wooden], is sitting up there telling us that that’s
the wrong union for us because there was some kind of
embezzlement supposedly and that’s just—that's not a
good union for us.” Kastroll replied as follows:
Well, hey, man, any union is better than no union and
don't worry about it, don't worry about what they're say-
ing because we've been through all kinds of stuff. The
dealers did this, you can do it, too. You guys can do it,
too. We've been through all those captive audience, you
know, mandatory meetings. We've had all this anti-un-
ion propaganda mailed to our homes. We had even these
supervisors that were receiving our tip money would sit
at the bottom of the escalator passing out these union
busting papers to us on the way to our breaks. . . . Don't
listen to all that. Just you guys—you guys need to have
your own voice and don't worry about it . . . just hang in
there.
Numerous guests and other employees walked by Of-
ficer Moreno during Kastroll’s interaction with him,
which lasted approximately 3 minutes. Many guests
3 All dates are in 2015 unless otherwise noted.
4 Priority One Post is located at the intersection of the casino, the B-
Bar, and the host office. It is considered the most important post for
security and guest satisfaction given its location in the casino/hotel; it is
the one place past which everyone will most likely walk when visiting
the Respondent’s premises. Priority One Post provides a panoramic view
of everything that is going on.
appeared to need directions, but because Officer Moreno’s
attention was directed toward Kastroll, they were unable
to talk to him. In one instance, a guest seeking assistance
bypassed Officer Moreno and approached a different se-
curity officer working at Security Post One, Officer
Joshua Browning, specifically because Officer Browning
was not talking to anyone.
After overhearing a part of Kastroll’s interaction with
Officer Moreno, Officer Browning approached the Re-
spondent’s president, Maurice Wooden, to inform him of
the conversation. Wooden subsequently notified Kevin
Tourek, the Respondent’s in-house general counsel, that
Officer Browning had observed a TGD having a conver-
sation with a security officer about the security officer’s
upcoming union vote. Wooden asked Tourek to investi-
gate the incident, noting that, because it was a sensitive
time due to the upcoming SPFPA election, he wanted
someone who would be cognizant of any legal repercus-
sions to conduct the investigation. Because the incident
concerned two different departments—TGDs and security
officers—the Respondent’s employee relations manager,
Courtney Prescott, assisted Tourek in the investigation.
As part of his investigation, Tourek first reviewed the
surveillance video, which showed Kastroll having a one-
sided conversation with an on-duty security officer at Pri-
ority One Post for approximately 3 minutes. Then, on
February 3, Tourek spoke to Officer Browning about the
February 2 incident, asking him what he had observed and
where the incident had taken place. Officer Browning re-
plied that he had witnessed Kastroll speaking to Officer
Moreno at Priority One Post for several minutes about
why Officer Moreno should support the SPFPA. Prescott
and Tourek also met with Officer Moreno during their in-
vestigation, asking whether or not he had a conversation
with a dealer while he was stationed at the Priority One
Post on February 2 and, if so, to describe the substance of
that conversation. Neither Tourek nor Prescott asked Of-
ficer Moreno or Officer Browning how they were going to
vote in the upcoming SPFPA union election.
On February 5, Tourek and Prescott met with Kastroll
and Union Steward Donna Blair in the Employee Rela-
tions office. Prescott asked Kastroll a number of questions
about whether she had engaged in a conversation with a
security guard February 2, but Kastroll consistently main-
tained that she didn't recall the incident.6 Tourek then
5 The SPFPA had filed a petition with the Board, and the election was
to be held February 11.
6 Prescott began the meeting, asking, “Do you remember having a
conversation on Monday [February 2] with a security guard about un-
ions?” Kastroll replied that she speaks about unions all the time with
everyone, including guests sometimes, and she asked Prescott to be more
specific. Prescott answered that it was between 4 and 6 p.m.; Kastroll
WYNN LAS VEGAS, LLC 3
informed Kastroll that another employee had written a
complaint against her regarding the conversation, and
Prescott stated that they had a statement from a security
guard. Tourek also asked Kastroll if she thought her in-
teraction with the security officer had interfered with his
job, reiterating that a guest had to seek assistance from an-
other security officer. Kastroll continued to respond that
she could not remember the incident. At some point in the
meeting, Kastroll left to use the restroom, and, while she
was gone, Blair told Tourek that she “was curious to see
where this entire investigation was going” and asked
“Kevin [Tourek] whether or not this [investigation] was
going to lead to a warning slip.” In response, Tourek in-
dicated that “he just wanted to put her [Kastroll] on no-
tice.” During the meeting, Tourek and Prescott provided
Kastroll with a copy of the Respondent’s Solicitation pol-
icy, and one of them informed her that she had violated
the policy. Following the meeting, Prescott directed
Kastroll as well as Officers Browning and Moreno to pro-
vide written statements regarding the February 2 incident.
On February 12, Prescott issued Kastroll a first written
warning for her February 2 conversation with Officer
Moreno. The warning states:
On February 2, 2015, Kanie [Kastroll] was witnessed
and overheard having a conversation on the casino floor
with a Security Officer regarding union organizing. This
conversation happened while the officer was on duty
(not on break) and in a high traffic, guest facing area.
Kanie has been reminded of the Company’s Solicitation
and Distribution policy. Further violations of Company
policy may lead to discipline up to and including termi-
nation of employment.
At the time of the hearing, the Respondent had only en-
forced its Solicitation policy on two additional occasions
since January 1, 2014. In the first, an employee who had
left Avon makeup catalogs around the property was issued
a second warning for the distribution. In the second, an
employee who had demanded $5 from another employee
in return for assistance in helping her perform certain work
was given a first written warning for selling goods or ser-
vices.
said that didn’t help. After Prescott indicated that it was at the Priority
One Post, Kastroll asked whether it had been a male or female security
officer. When Prescott responded "male," Kastroll stated sarcastically,
“Well, we’re down to 90 percent of the security officers.” Tourek then
intervened and stated, “You were promoting the union.” Prescott further
offered that there was a guest who had required assistance from another
III. DISCUSSION
A. Kastroll’s Written Warning
The judge found that Kastroll’s interaction with on-duty
Officer Moreno constituted union solicitation. The judge
rejected the General Counsel’s argument that Kastroll did
not solicit Officer Moreno but instead engaged in pro-un-
ion work talk that was equivalent to the type of talk she
regularly has with coworkers on the main casino floor.
The judge reasoned that Kastroll’s lengthy conversation
with Officer Moreno at the Priority One Post, which inter-
fered with his duties, was distinguishable from the type of
short, casual prounion conversations that Kastroll had had
in the past. As a result, the judge found that the Respond-
ent lawfully issued Kastroll a written warning for violating
its Solicitation policy in her interaction with Officer
Moreno.
Relying on Wal-Mart Stores, 340 NLRB 637, 639
(2003), enf. denied in relevant part 400 F.3d 1093 (8th Cir.
2005), and ConAgra Foods, Inc., 361 NLRB 944, 945
(2014), enf. denied in relevant part 813 F.3d 1079 (8th Cir.
2016), the General Counsel contends on exception that the
judge incorrectly determined that Kastroll was engaged in
union solicitation subject to the Respondent’s Solicitation
policy in her February 2 conversation with Officer
Moreno, but rather Kastroll was engaged in mere union
talk in support of the SPFPA in the upcoming election.
For the reasons set forth below, we find no merit in the
General Counsel’s exception.
1. The Board’s decisions in Wal-Mart Stores and
ConAgra Foods define “solicitation” too narrowly.
In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797-
798 (1945), the Supreme Court made clear that the Board
is required to balance “the undisputed right of self-organ-
ization assured to employees” with “the equally undis-
puted right of employers to maintain discipline in their es-
tablishments.” The balance between employees’ right to
organize and employers’ property rights “must be ob-
tained with as little destruction of one as is consistent with
the maintenance of the other.” NLRB v. Babcock & Wil-
cox Co., 351 U.S. 105, 112 (1956).7
The Board has long distinguished union solicitation
from other types of employee activities that support union
organizing. See, e.g., W.W. Grainger, 229 NLRB 161,
166 (1977) (“‘[S]olicitation’ for a union is not the same
security officer. Kastroll responded that she still didn't recall the inci-
dent.
7 However, where the property owner’s own employees are already
rightfully on the property, the balance to be struck is that between the
employees’ Section 7 rights and the owner-employer’s managerial inter-
ests rather than its property rights. Hudgens v. NLRB, 424 U.S. 507, 521
fn. 10 (1976).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
thing as talking about a union or a union meeting or
whether a union is good or bad.”), enfd. 582 F.2d 1118
(7th Cir. 1978). The Board has held that in the context of
a union campaign, “‘[s]olicitation’ for a union usually
means asking someone to join the union by signing his
name to an authorization card.” Id.; see also Int’l Signal
& Control Corp., 226 NLRB 661, 665 (1976) (“Solicita-
tion ordinarily means that someone is asking an employee
to join a union by signing a union authorization card.”).
In Wal-Mart and ConAgra, however, the Board took
this well-settled precedent an unprecedented step further.
Specifically, in both cases, the Board held that, in order to
constitute union solicitation, the solicitor’s conduct must
include the contemporaneous tender of a union authoriza-
tion card. Wal-Mart, 340 NLRB at 639; ConAgra, 361
NLRB at 945. In Wal-Mart, the Board found, among other
things, that an employee did not engage in solicitation by
telling a coworker to consider signing an authorization
card where no card was tendered at the time. 340 NLRB
at 639.8 Similarly, in ConAgra, the Board majority found
that an employee’s statement to two coworkers that she
had placed authorization cards in their shared locker did
not constitute solicitation because she did not simultane-
ously present them with cards. 361 NLRB at 945. In our
view, this extremely narrow definition of “solicitation” is
inconsistent with long-standing Board law establishing
that the act of requesting an employee to sign an authori-
zation card constitutes solicitation, even if a card is not
presented at the time of the conversation. We also do not
believe that such a narrow definition accurately reflects
what constitutes union solicitation in the workplace. Ac-
cordingly, we hereby overrule this aspect of the Wal-Mart
and ConAgra decisions.
To begin, it is informative that the United States Court
of Appeals for the Eighth Circuit rejected the Board’s nar-
row definition of solicitation set forth in Wal-Mart and
ConAgra. In both cases, the court found that the act of
requesting an employee to sign an authorization card con-
stitutes solicitation, even if a card is not presented at the
time of the conversation. See Wal-Mart Stores, Inc. v.
NLRB, 400 F.3d 1093, 1099–1100 (8th Cir. 2005);
ConAgra Foods, Inc. v. NLRB, 813 F.3d 1079, 1087-1090
(8th Cir. 2016).
In Wal-Mart, the court explained that, under W.W.
Grainger, 229 NLRB at 166, solicitation includes asking
someone to join a union by signing an authorization card,
and the evidence showed that the employee indicated that
he would “like for [the co-worker] to have a [union
8 The Board majority also found that an employee did not engage in
solicitation when he entered a store while off-duty wearing a T-shirt that
read “Union Teamsters” on the front and “Sign a card. . . [sic] Ask me
how!” on the back and when, while on duty, he had conversations with
authorization] card to sign.” 400 F.3d at 1099. The court
reasoned that, even though there was no evidence that an
authorization card had been placed “directly in front of”
the coworker, there was “little doubt” as to the “intent”
underlying the “words” spoken, and that the coworker
“understood the exchange as a request to sign the card, an
understanding likely to be reached by the average person
in a similar situation.” Id. at 1099–1100.
Likewise, in ConAgra, the court reasoned that
a categorical rule such as [requiring that a card be pre-
sented in order to constitute solicitation] would be con-
trary to the Act’s policy of balancing the rights of em-
ployers and employees. It would tilt that balance toward
employees by providing a road map to organizers on
how to garner support for union membership on working
time and in work areas. Moreover, it would prevent em-
ployers from maintaining production and discipline.
813 F.3d at 1087.
Furthermore, it is clear that the definition of solicitation
set forth in Wal-Mart and ConAgra is not, in fact, sup-
ported by precedent. In W.W. Grainger, for example, the
Board did not say the solicitor had to present an authori-
zation card or have a card physically on her person. The
solicitor only had to ask someone to sign one. 229 NLRB
at 166. Other cases cited in those decisions in support of
their narrowly restrictive definition of solicitation did not
even involve requests to sign authorization cards. See Sa-
hara-Tahoe Corp., 216 NLRB 1039, 1039 (1975) (an em-
ployee’s act of introducing a union representative to a
coworker, and her subsequent statement that the coworker
would go along with the union, did not constitute solicita-
tion), enfd. in relevant part 533 F.2d 1125 (9th Cir. 1976);
Lamar Industrial Plastics, 281 NLRB 511, 513 (1986)
(employee did not engage in conduct lawfully proscribed
by no-solicitation rules when she merely asked a coworker
if she had a union authorization card). Accordingly, de-
spite the assertions in Wal-Mart and ConAgra to the con-
trary, the new definition announced in those cases was cre-
ated out of whole cloth.
As discussed above, in the context of a union campaign,
solicitation for a union ordinarily means that someone is
asking an employee to join a union by signing a union au-
thorization card. However, solicitation is not limited to
this act. We hold that solicitation for or against a union
also encompasses the act of encouraging employees to
vote for or against union representation. Such conduct
constitutes union solicitation because the employee is
coworkers about attending a union meeting. Wal-Mart, 340 NLRB at
638–639. This aspect of the decision was enforced by the Eighth Circuit.
See Wal-Mart Stores, Inc. v. NLRB, 400 F.3d 1093 (8th Cir. 2005).
WYNN LAS VEGAS, LLC 5
selling or promoting the services of the union (or urging
employees to reject those services). This understanding of
solicitation comports both with prior Board precedent and
with the dictionary definition of the word.9 Cf. Home De-
pot, U.S.A., Inc., 317 NLRB 732, 732–733, 736 (1995)
(asking employees if they had complaints about their job
and passing out business cards constituted solicitation).
See also United States v. Kokinda, 497 U.S. 720, 734–735
(1990) (describing solicitation in First Amendment con-
text as disruptive because “one must listen, comprehend,
decide, and act in order to respond to a solicitation”). Ac-
cordingly, defining solicitation to also encompass the act
of encouraging an employee to vote a particular way in a
union election is consistent with the purpose of employ-
ers’ no-solicitation rules, which is to prohibit conduct that
interrupts business operations.
2. The Board’s decisions in Wal-Mart Stores and
ConAgra Foods were based on a construction of “work-
ing time” that was inconsistent with Board law regarding
no-solicitation policies.
The Wal-Mart and ConAgra decisions misapplied prec-
edent by holding that solicitation for a union, although
lawfully prohibited during “working time,” is permitted
when there is only a “brief” interruption of work. In par-
ticular, in Wal-Mart, in finding that the employee’s state-
ment that she would like a coworker to sign an authoriza-
tion card and the employee’s invitations to her coworkers
to attend a union meeting did not violate the employer’s
no-solicitation rule, the Board majority relied on the fact
that there was no evidence that the employee “signifi-
cantly interrupted” the work of the employees with whom
she spoke. 340 NLRB at 639. The Board observed “that
simply informing another employee of an upcoming meet-
ing or asking a brief, union-related question does not oc-
cupy enough time to be treated as a work interruption in
most work settings.” Id. Similarly, in ConAgra, the Board
majority relied in part on the brief duration of an em-
ployee’s statement that she had placed authorization cards
in her fellow employees’ shared locker in finding that the
statement did not constitute solicitation. 361 NLRB at
945–946. The Board majority stated that “a momentary
interruption in work, or even a risk of interruption, [does
not] subject employees to discipline for conveying such
union-related information.” Id.
Significantly, the Eighth Circuit, in reversing the Board
majority’s holding, rejected the rationale that solicitation
9 The Merriam-Webster Online Dictionary defines “solicitation” as
“the practice or act or an instance of soliciting,” and it defines “solicit”
as “to approach with a request or plea” or “to urge (something, such as
one's cause) strongly.” See http:// www.merriam-
requires the presence of an actual disruption of work.
ConAgra, 813 F.3d 1088–1089. The court explained:
[A]n employer may censure any discussion—about un-
ions, the weather, or anything else—that is sufficiently
disruptive. But when that discussion solicits union sup-
port it may be subject to a blanket prohibition by an em-
ployer during working time
Id. at 1088.
We agree with the Eighth Circuit that an actual interrup-
tion of work should not be a factor in determining whether
a no-solicitation policy has been violated. Board and court
precedent regarding no-solicitation policies is based on
the principle that union solicitation is likely to disrupt
work. As a result, a rule prohibiting solicitation during
working time is presumed valid, and employers may law-
fully discipline an employee who violates such a rule,
even if the employee has not interrupted work. In our
view, a requirement that there be a significant interruption,
or indeed any interruption, of work to constitute prohib-
ited solicitation interferes with the balance between em-
ployees’ right to organize and “the equally undisputed
right of employers to maintain discipline in their establish-
ments.” Republic Aviation, 324 U.S. at 797–798.
3. Clarification of the proper definition of “solicitation”
For the reasons set forth above, we overrule the Board’s
decisions in Wal-Mart and ConAgra to the extent that they
held that union solicitation takes place only when an au-
thorization card is presented during the conversation and
when there is a significant interruption of work. Going
forward, the Board will not require that an authorization
card be contemporaneously presented for signature or that
a conversation last a certain amount of time in order for an
act to be considered union solicitation.
Our objective in clarifying Board precedent regarding
the definition of solicitation is twofold: to give employees
appropriate protection in exercising their Section 7 rights,
and also to emphasize that Board and court cases establish
that these rights are not absolute during working time be-
cause an employer is entitled to insist that employees work
during working time and refrain from conduct that tends
to interfere with their own work or the work of others. As
the Board said more than 75 years ago, “[w]orking time is
for work.”10 Accordingly, where an employee makes
statements to a coworker during working time that are in-
tended and understood as an effort to persuade the em-
ployee to vote a particular way in a union election, that
webster.com/dictionary/solicitation and http://www.merriam-web-
ster.com/dictionary/soliciting (most recently visited April 2, 2020).
10 Peyton Packing, 49 NLRB 828, 843 (1943), enfd. 142 F.2d 1009
(5th Cir. 1944), cert. denied 323 U.S. 730 (1944).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
employee has engaged in solicitation subject to discipline
under an employer’s validly enacted and applied no-solic-
itation policy.
4. Application of Clarified Definition of Solicitation to
Facts
Applying the principles set forth above, we agree with
the judge that Kastroll engaged in prohibited union solici-
tation on February 2 because she was encouraging another
employee to vote a particular way in a union election dur-
ing that employee’s working time. Such a finding is con-
sistent with the purpose of the Respondent’s Solicitation
policy, which is to foster “a productive . . . work environ-
ment, as well as to minimize the potential of any disrup-
tion to the Respondent’s guests.”
Further, in finding that Kastroll engaged in prohibited
union solicitation, we find that it is not determinative
whether Kastroll’s conduct actually interfered with Of-
ficer Moreno’s work; it is sufficient that the union solici-
tation occurred during Officer Moreno’s working time.
Nonetheless, we observe that the record shows that
Kastroll’s solicitation of Officer Moreno to persuade him
to vote for the SPFPA in the representation election did in
fact interfere with the performance of Officer Moreno's
job duties. Indeed, the evidence showed that another se-
curity officer, Officer Browning, had to assist a hotel guest
during Kastroll’s solicitation of Officer Moreno.
Moreover, we agree with the judge that the Respondent
did not discriminate against Kastroll in violation of Sec-
tion 8(a)(3) and (1) in issuing her a written warning on
February 12. Even assuming the General Counsel met his
initial burden under Wright Line,11 the Respondent has
met its burden of demonstrating that it would have taken
the same action against Kastroll in the absence of her un-
ion activity. Specifically, we find that the Respondent
showed that it issued Kastroll a written warning because
she violated the Respondent’s lawful Solicitation policy.
As the judge found, the Respondent conducted a thorough
investigation in determining whether Kastroll violated the
policy. In this respect, Tourek and/or Prescott held meet-
ings with Officers Browning and Moreno and TGD
Kastroll in which they were all asked about Kastroll’s Feb-
ruary 2 interaction with Officer Moreno. Also, Officers
Browning and Moreno and Kastroll were all required to
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
12 The General Counsel contends on exception that the judge did not
address the complaint allegation that the Respondent overbroadly ap-
plied its Solicitation policy to restrict Kastroll’s Sec. 7 activity in viola-
tion of Sec. 8(a)(1) of the Act. We agree that the judge did not analyze
this complaint allegation in his decision. However, we dismiss this alle-
gation because, as set forth above, the Respondent lawfully applied its
Solicitation policy to Kastroll’s conduct, which constituted prohibited
union solicitation.
provide written statements about the incident. In addition,
Tourek reviewed the surveillance video of Kastroll’s in-
teraction with Officer Moreno, which showed Kastroll en-
gaging in a one-sided conversation for almost 3 minutes
with an on-duty security officer at Priority One Post.
Based on their investigation, Tourek and Prescott deter-
mined that Kastroll’s union solicitation distracted the on-
duty Officer Moreno from performing his job duties while
the security officer was working at the most important se-
curity post. Finally, Kastroll’s written warning confirmed
that she was disciplined because she violated the Respond-
ent’s Solicitation policy. Accordingly, we dismiss the
complaint allegation that the Respondent violated Section
8(a)(3) and (1) of the Act by issuing Kastroll a written
warning.12
B. Alleged Impression of Surveillance
For the reasons set forth below, we agree with the judge
that the Respondent did not create the impression of sur-
veillance of Kastroll’s union activity. The test for deter-
mining “whether an employer has created the impression
of surveillance is whether the employee would reasonably
assume from the employer’s statements or conduct that
their protected activities had been placed under surveil-
lance.” Greater Omaha Packing Co., Inc., 360 NLRB
493, 495 (2014). Here, there was no evidence that would
have caused Kastroll to reasonably assume that her con-
duct had been placed under surveillance. In this respect,
when Tourek and Prescott met with Kastroll and Shop
Steward Blair on February 5, they provided Kastroll with
the source of their information by telling her that someone
had complained about her interaction with the security of-
ficer and that the Respondent had a statement from a se-
curity officer. We find that a reasonable employee in
Kastroll’s position would not believe that her union activ-
ity was under surveillance. Cf. Sysco Grand Rapids, LLC,
367 NLRB No. 111, slip op. at 26 (2019) (supervisor’s
statement to an employee that he knew how the employee
voted unlawfully conveyed the impression of surveillance
where the supervisor did not inform the employee that he
learned the information from another coworker or previ-
ous statements, so the employee could reasonably believe
that the supervisor’s statement was based on information
acquired through surveillance).13
13 We adopt the judge’s dismissal of the allegation that the Respondent
violated Sec. 8(a)(1) by unlawfully interrogating Kastroll, Officer
Browning, and Officer Moreno when it interviewed them about the Feb-
ruary 2 incident. In so doing, we emphasize that the Respondent had a
legitimate basis for conducting an investigation to determine whether
Kastroll violated the Respondent’s Solicitation policy. See Bridgestone
Firestone South Carolina, 350 NLRB 526, 528 (2007) (interrogation of
employee was lawful where it occurred as part of a legitimate investiga-
tion into whether the employee engaged in misconduct). Significantly,
Prescott and Tourek asked Kastroll, Officer Browning, and Officer
WYNN LAS VEGAS, LLC 7
C. Alleged Oral Rule Promulgation and Threat of
Reprisals
The General Counsel argues that, during the February 5
meeting, by linking Kastroll’s union “conversations” and
her “promoting the union” with a violation of company
policy, Tourek promulgated a discriminatory directive
that she could not talk about the union at work, where no
such prohibition applied to other types of conversations.
For the reasons discussed below, we agree with the judge
that the Respondent did not orally promulgate a discrimi-
natory directive that its employees could not talk about the
union while they were on duty. Tourek and Prescott met
with Kastroll on February 5 in order to confirm reports
that her interaction with Officer Moreno at the Priority
One Post violated the Respondent’s Solicitation policy.
During the meeting, Tourek and Prescott gave Kastroll a
copy of the Respondent’s Solicitation policy, and one of
them told her that she was in violation of that policy. Fur-
ther, Tourek asked Kastroll if she believed her conversa-
tion at Priority One Post kept the security officer from do-
ing his job, noting that a guest had to ask another nearby
security officer a question because of her disruption. Tou-
rek also informed Kastroll that the Respondent had sur-
veillance video that showed Kastroll having a conversa-
tion on the floor with a security officer at Priority One
Post. Therefore, we find that it should have been clear to
Kastroll that the purpose of the meeting was not to issue a
directive that she could not discuss the union at work—
something Kastroll admitted doing all the time without
any threat of discipline—but rather to explain the Re-
spondent’s belief that her interaction with a security of-
ficer at the Priority One Post was a violation of the Re-
spondent's Solicitation policy. Accordingly, we dismiss
this allegation.
For the same reasons, we find no merit in the General
Counsel’s contention that Tourek's statement to Blair dur-
ing the February 5 meeting that he wanted to put Kastroll
“on notice” constituted an unlawful threat of unspecified
reprisals. Accordingly, we agree with the judge that Tou-
rek’s statement was intended to inform Kastroll that she
violated the Respondent’s Solicitation policy, and we af-
firm the judge’s dismissal of this allegation.
Moreno narrowly tailored questions to determine whether Kastroll vio-
lated the policy. In this respect, during the February 5 meeting, Prescott
and Tourek did not ask Kastroll any questions related to her union activ-
ity that were unrelated to their investigation. Tourek told Kastroll that
she was “promoting the union” because she refused to cooperate and
acknowledge her interaction with Officer Moreno. Moreover, neither
Tourek nor Prescott discussed the SPFPA with Officer Browning or Of-
ficer Moreno. They did not ask how those security officers intended to
vote in the SPFPA election nor attempt to persuade the security officers
to vote any particular way.
14 The judge failed to address this complaint allegation in his decision.
D. Alleged Disparate Application of Solicitation Policy
The General Counsel contends that the Respondent’s
application of the Solicitation policy to Kastroll on Febru-
ary 12 violated Section 8(a)(3) and (1) because it was se-
lectively and disparately applied.14 We find no merit to
this exception.
The applicable legal standard is well established: rules
prohibiting solicitation on working time are presumptively
lawful, but that presumption is rebutted by evidence
demonstrating that the employer permitted non-union so-
licitations during working time and enforced its rule only
against union solicitation. Verizon Wireless, 349 NLRB
640, 642 (2007). Thus, an employer’s discipline of an em-
ployee based on its unlawful and disparately applied rule
violates Section 8(a)(3). Id.
Here, the General Counsel failed to put forth any evi-
dence that the Respondent has ever failed to discipline an
employee for non-union solicitations during work time
and enforced its rule only against union solicitation. The
General Counsel did not present any evidence that the Re-
spondent has tolerated violations of its Solicitation policy.
Rather, the record demonstrated that the Respondent
evenly enforces its policy when violations are brought to
its attention. Aside from Kastroll’s February 12 written
warning, the Respondent has enforced its Solicitation pol-
icy two other times since January 1, 2014. The Respond-
ent issued a first written warning to an employee after the
employee requested that her coworker pay her to help her
make a duvet. Similarly, the Respondent issued a second
written warning to another employee for attempting to sell
Avon products. See Wal-Mart Stores, 350 NLRB 879, 881
(2007) (finding that General Counsel failed to show that
the employer enforced its no-solicitation rule disparately
against union activity where the evidence showed only
one instance of tolerated solicitation). Accordingly, we
dismiss this allegation.15
ORDER
The complaint is dismissed.
Dated, Washington, D.C. May 29, 2020
15 The General Counsel argues that there is evidence of disparate treat-
ment because Kastroll, Blair, and Security Officer Rick Rankin testified
that they have engaged in a variety of nonwork-related conversations on
the main casino floor and near Priority One Post. However, the General
Counsel failed to show that these nonwork-related conversations consti-
tuted violations of the Solicitation policy. Further, the evidence shows
that the Respondent treats nonwork-related conversations differently on
the main casino floor versus the Priority One Post, which is the busiest
duty location on the Respondent’s entire property and is the number one
post for security.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Julia M. Durkin, for the General Counsel.
Gregory J. Kamer, Esq. and R. Todd Creer, Esq. (Kamer Zucker
Abbott), for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. Kanie
Kastroll, an individual (Charging Party or Kastroll), filed her
original charge in Case 28–CA–157203 on July 31, 2015,1 and
her first amended charge on October 28. Keli P. May, an indi-
vidual (Officer May or May), filed her original charge in Case
28–CA–155984 on July 14 and her first amended charge on Oc-
tober 30. The General Counsel issued the original complaint
against Respondent Wynn Las Vegas, LLC (Respondent or
Wynn) on October 30 and amended it with a consolidated com-
plaint (complaint) in this case on December 1, and at hearing.
The Respondent answered the complaint generally denying the
critical allegations of the complaint, as amended.
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act) by
discriminating against Kastroll and May in regard to their tenure
or terms and conditions of employment by issuing them adverse
discipline by violating one of Respondent’s work rules against
solicitation of employees to join the union or improperly using
profanities at work in violation of an overbroad work rule pro-
hibiting inappropriate conduct.
The complaint also alleges the Respondent violated Section
8(a)(1) of the Act by promulgating and/or maintaining overly
broad rules regarding employee conduct and threatening em-
ployees with reprisal. The complaint further alleges the Re-
spondent violated Section 8(a)(1) by unlawfully surveilling, in-
terrogating, and threatening various employees with unspecified
reprisals because they engaged in union or other protected con-
certed activities. Finally the complaint alleges that Respondent
unlawfully interrogated Officer Moreno on February 3, 2015,
1 All dates in 2015 unless otherwise indicated.
2 The transcripts in this case are generally accurate, but I correct the
transcript (Tr.) as follows: Tr. 449, line (l) 9: “hours” should be “errors.”
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for General Coun-
sel’s Exhibit; “GC Br.” for the General Counsel’s posthearing brief and
and Officer Brown at meetings in further violation of Section
8(a)(1) of the Act.
This case was tried in Las Vegas, Nevada, on February 16–
18, 2016. On the entire record,2 including my observation of the
demeanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it is a limited liability
company with an office and place of business in Las Vegas, Ne-
vada (Respondent’s facility), and that Respondent has been op-
erating a hotel and casino providing gaming, food, lodging, and
entertainment where it annually derives gross revenues in excess
of $500,000 and purchases and receives at its facility goods val-
ued in excess of $50,000 directly from points outside the State
of Nevada. The Respondent also admits, and I further find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. I further find that the
Transport Workers Union of America, Local 721, AFL–CIO (the
Union) is a labor organization within the meaning of Section 2(5)
of the Act. (Tr. at 35; GC Exhs. 1(o) at 2–3 and 1(q) at 1.)3
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations and General Background and
Its Solicitation and Distribution Policy as of February 2015
Respondent Wynn Las Vegas, LLC, is a hotel and casino lo-
cated on the Las Vegas strip. Many of Respondent's employees
are covered by collective-bargaining agreements. For example,
approximately 3500 Respondent employees are covered by a
collective-bargaining agreement between Respondent and the
Local Joint Executive Board of Las Vegas, Culinary Workers
Union, Local 226, and Bartenders Union, Local 165 (“Local
Joint Board”). (Tr. 232–233.)
The table game dealers (TGD’s), which include Kastroll,
work in Respondent’s Table Games Department and are repre-
sented by the Union which was certified as their majority collec-
tive-bargaining representative on May 23, 2007, after an uncon-
tested Board-conducted secret-ballot election. (Tr. 35.) The CBA
between Respondent and the Union extends through 2020.
Respondent hired Kastroll on April 20, 2005, and currently
employs her as a TGD in Respondent's Table Games Depart-
ment. (Tr. 27.) As a TGD, Kastroll is responsible for dealing the
game and all other functions associated with her assigned game,
including providing positive guest interaction. (Tr. 28, 121–
122.) Kastroll typically works the day shift from 12 p.m. to 8
p.m.; however, on February 2, 2015, Kastroll was working ear-
lier hours due to an increase in guests from the Super Bowl week-
end. (Tr. 39.)
“R. Br.” for the Respondent’s posthearing brief. Although I have in-
cluded several citations to the record to highlight particular testimony or
exhibits, I emphasize that my findings and conclusions are based not
solely on the evidence specifically cited, but rather on my review and
consideration of the entire record.
WYNN LAS VEGAS, LLC 9
Respondent maintains a written Solicitation and Distribution
Policy. (GC Exh. 2.) Respondent’s alleged purpose of the policy
is to maintain a productive, efficient, and clean work environ-
ment, as well as to minimize the potential of any disruption to
Respondent's guests. Id.
Respondent has an intranet site called The Wire, which em-
ployees can access from computers at work, or from home, using
a password. (Tr. 141, 325). Employees can use The Wire to look
up personal work information, such as their recorded hours of
work, their vacation days, and their pay stubs. Respondent also
maintains and updates its work rules and policies on The Wire
with the latest revisions available to employees. (Tr. 141, 165–
166, 325–326).
At all material times since May 13, 2014, Respondent has also
maintained a Solicitation and Distribution policy on The Wire.
(Tr. 258; GC Exh. 2). The policy states, among other provisions:
1. Solicitation and/or the distribution of materials anywhere on
Wynn property at anytime that is related to the sale of any
goods or services not offered by Wynn is prohibited at all times
unless approved by the Vice President of Human Resources.
2. All other solicitation by employees is prohibited in work
areas during the work time of the employee initiating the solic-
itation or the employee being solicited.
3. For the purpose of this policy, working time does not include
breaks, lunch periods, or other designated relief periods during
which an employee is not assigned to or expected to perform
job duties, or time before or after work. Work areas do not in-
clude employee break areas, employee cafeteria, parking lots
and areas outside of the facility.
4. Solicitation is oral communication asking or seeking a per-
son to take some action, such as buying a product or service,
contributing to a charity, or joining an organization. It also in-
cludes requests for employees to sign union authorization cards
or representation petitions and the exchange of such documents
for signature.
(GC Exh. 2). The Solicitation and Distribution policy applies to
all Respondent’s employees. (Tr. 168).
Respondent has generally enforced its Solicitation and Distri-
bution Policy when violations are brought to its attention. Since
2014, there have been three (3) incidents that resulted in written
warnings to employees, including the first written warning that
Respondent issued to Kastroll, which is a subject of this case.
(Tr. 281–282; GC Exh. 23; GC Exh. 24.)
Officer Rankin, Respondent’s security officer for 11 years,
explained his understanding of Respondent’s policy for its secu-
rity officers’ job duties when he pointed out that if a Respondent
4 Priority One Post (also known as "the crossroads"), is located at the
intersection of the Casino, the B-Bar, and the Host Office, the highest
customer traffic area on Respondent’s entire property. Tr. 38–40. It is
undisputed that Priority One Post is considered the busiest post at Re-
spondent and is the number one post for security and guest satisfaction
because given its location in the casino/hotel, it is the one place in Re-
spondent where everyone will most likely walk by at one point or another
during their time at Respondent. Tr. 214, 294, 482, and 543. Priority One
Post provides a panoramic view of everything that is going on with sig-
nificant amounts of guest traffic. Tr. 242–243, 442, and 483. In addition
guest is lost or looking for an answer or directions, Respondent’s
security officers should assist the guest and go forward and ap-
proach that guest as part of a security officer’s duties. (Tr. 462.)
Kastroll opined that she frequently has nonwork-related con-
versations on the casino floor but admits that such conversations
depend on how busy the casino is and whether it is interfering
with guest service. (Tr. 75, 77–78, 100.) Kastroll also acknowl-
edges that before February 2, 2015, she has been orally warned
on prior occasions to limit conversations. (Tr. 77–78, 138–140.)
Kastroll also has never reported anyone for soliciting her while
she was on duty. (Tr. 100, 140.)
B. The February 2, 2015 Incident Involving Kastroll’s Three-
Minute Talk to Security Officer Moreno at Respondent’s High
Profile Priority One Post While Officer Moreno was On Duty
On January 16, 2015, the Regional Director of Region 28 di-
rected an election to be held in Case 28–RC–143406 in the fol-
lowing unit of Respondent's employees:
All full-time and regular part-time security officers em-
ployed by Respondent at its facilities in Las Vegas, Nevada,
excluding all other employees, security officers at Trist, Sur-
render, XS, and Encore Beach Club at Respondent's facili-
ties, office clerical employees, and supervisors, as defined by
the Act.
(Tr. 11.)
The former in-house general counsel for Respondent, Kevin
Tourek (Tourek), testified that he became aware that the security
officers’ union known as Security, Police and Fire Professionals
of America (SPFPA) filed a petition with the Board seeking to
represent Respondent's security officers almost immediately,
and that he was also aware that the same election was to be held
in February. (Tr. 171–172, 184–185.) On January 23, the Re-
gional Director issued a further direction that the election in Case
28–RC–143406 was to be conducted at Respondent's facilities
on February 11. (Tr. 11.)
Charging Party Kastroll was aware that Respondent’s security
officers were attempting to organize a union and she testified that
in January and February she had about 40 conversations with se-
curity officers at the Respondent about organizing. She could not
recall each specific conversation, and testified that they ranged
in time, some being only 10 to 30 seconds long. (Tr. 37–38.)
On February 2, just before 5 p.m., Kastroll spoke to Security
Officer Johnny Moreno (Officer Moreno) about the upcoming
SPFPA union election. (Tr. 38, 40.) Kastroll was working as a
TGD on the main casino floor that day. (Tr. 39–40.) She ap-
proached Officer Moreno, who was on-duty, did not know
Kastroll, and was assigned to Priority One Post,4 after she had
to guest traffic, approximately 130 to 150 TGD’s work on the main ca-
sino floor on an average day shift, along with 55 casino service team
leads, and a number of other nongaming employees such as cocktail serv-
ers, engineers, Public Area Department ("PAD") employees, and security
guards. Tr. 32–33. Kastroll admits that her February 2, 2015 talk to Of-
ficer Moreno for almost 3 minutes occurred away from the casino floor
where she usually works and at Priority One Post with “a sea of people
in the larger vicinity" around them. Tr. 46. Security officers assigned to
Priority One Post must be highly vigilant and direct guests and ensure
casino security. Tr. 187, 237–238, 294. Priority One Post is designed to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
been tapped off her last game for the day and was heading down
to the basement to clock out for the day. (Tr. 39–44, 97, 545–
546.)
Kastroll approached Officer Moreno and identified him as a
security officer. (Tr. 40–41.) When she approached him, there
were no other security officers present and he wasn't speaking
with anyone. (Tr. 42.) There were a number of guests and cus-
tomers in the general vicinity. (Tr. 98–99; GC Exh. 11.)
Kastroll struck a one-sided conversation with Officer Moreno
where she did almost all of the talking trying to encourage him
to vote for the SPFPA later in the month. (Tr. 41, 43–44, 97,
545–546, GC Exh. 11.) Among other things, Kastroll said: "Hey,
I heard you guys are having an election pretty soon. Good luck
on that. We pray for you." Officer Moreno responded, "Well, I
don't know if. . . it's going to go through." Kastroll asked why,
and Officer Moreno stated, "Well, we've been going to these
mandatory meetings and the president, Maurice [Wooden], is sit-
ting up there telling us that that's the wrong union for us because
there was some kind of embezzlement supposedly and that's
just—that's not a good union for us." Kastroll responded with an
almost 3-minute talk to Officer Moreno, including the following:
"Well, hey, man, any union is better than no union and don't
worry about it, don't worry about what they're saying because
we've been through all kinds of stuff. The dealers did this, you
can do it, too. You guys can do it, too. We've been through all
those captive audience, you know, mandatory meetings. We've
had all this anti-union propaganda mailed to our homes. We
had even these supervisors that were receiving our tip money
would sit at the bottom of the escalator passing out these union
busting papers to us on the way to our breaks…. Don't listen to
all that. Just you guys -- you guys need to have your own voice
and don't worry about it… just hang in there.
(Tr. 43–44).
Kastroll’s talk to Officer Moreno lasted just shy of 3 minutes.
(Tr. 44.) While Kastroll engaged Officer Moreno, a significant
number of guests and other employees passed by Officer
Moreno's post. (See generally Tr. 45–46, 88, 90, 98–99, 203–
204, 207; GC Exh. 11.) Kastroll described the high traffic as a
“sea of people in the larger vicinity” around them. (Tr. 46.) Some
of the guests appeared to be in need of directions but did not ap-
proach Officer Moreno as he was engaged by Kastroll. (Tr. 207–
213; GC Exh. 11at 16:58:13–25.) At least one guest approached
a different security officer, Officer Joshua Browning (Officer
Browning), for assistance since he was momentarily in the vicin-
ity and not otherwise engaged in conversation. (Tr. 235; GC Exh.
11.)
Officer Browning witnessed the interaction between Kastroll
and Officer Moreno. (Tr. 44–45; GC Exh. 13.) Specifically, Of-
ficer Browning overheard a portion of Kastroll's pitch to Officer
be highly interactive with guests and visitors. Tr. 460–462; R. Exh. 4.
Security officers assigned to Priority One Post must be prepared to an-
swer questions about both Wynn and Encore resorts, give detailed direc-
tions to guests and visitors, and assist guests in any way. Id. In addition
to providing guest services, security officers assigned to Priority One
Post must monitor the following locations for safety hazards, emergen-
cies, guests needing assistance, and suspicious activities: the corridor
Moreno which he confirmed lasted several minutes. (Tr. 176–
177; GC Exh. 13.) Officer Browning observed that the interac-
tion was mainly one-sided, with Kastroll repeatedly telling Of-
ficer Moreno to "vote yes" for the SPFPA and with Officer
Moreno merely responding "yes" when Kastroll asked him if he
understood what she was saying. (GC Exh. 13.) At one point Of-
ficer Browning assists a hotel guest during Kastroll’s talk to Of-
ficer Moreno that arguably Officer Moreno would have handled
if Kastroll and Officer Browning were not present. (GC Exh. 11
at 16:59:09:38.)
Officer Browning immediately informed his supervisor,
Brenda Rawlins of the interaction. (GC Exh. 13.) Additionally,
Officer Browning informed Respondent's president, Maurice
Wooden (Wooden), when Wooden happened to walk past him in
the lobby. Id.
After her conversation with Officer Moreno, Kastroll went
downstairs to the basement to clock out for the day and went
home. She didn't tell anyone about the conversation. (Tr. 46–47.)
Kastroll’s approximate 3-minute talk to Officer Moreno on Feb-
ruary 2 is otherwise known as the February 2 Incident.
Once Kastroll left him alone, Officer Moreno was able to re-
sume his regular duties in observing the casino for security
threats and engaging guests uninterrupted by Kastroll. (Tr.
235237; GC Exh. 11 at 17:01:07, 17:02:04, 17:02:19.) Not once
during the almost 3 minutes that Kastroll was talking to Officer
Moreno did he assist or engage any of Respondent’s guests. That
changed soon after Kastrol left Officer Moreno’s presence. (GC
Exh. 11.)
C. Respondent’s Investigation of the Feb. 2 Incident
Tourek testified that he received a call from Respondent’s
president Wooden, who informed him that Officer Browning
complained to him that Officer Browning had witnessed a dealer
having a conversation with a fellow security officer about the
security union vote. Wooden asked Tourek to investigate the
matter since it was a sensitive time due to the upcoming SPFPA
election and because he wanted someone who would be knowl-
edgeable of any legal repercussions when conducting the inves-
tigation. (Tr. 175, 230–231.)
Tourek explained that it is not unusual for him to be involved
in company investigations and that Wooden had frequently di-
rected him to conduct investigations. (Tr. 175, 229–230.) More-
over, as the alleged conduct involved two (2) different depart-
ments—TGDs and security officers—Respondent's employee
relations manager, Courtney Prescott (Prescott [ aka Courtney
Swanson]), handled the investigation with Tourek rather than the
Table Games Department manager. (Tr. 54.)
On February 3, 2015, Tourek talked to Officer Browning
about the February 2 incident. (Tr. 176.) Tourek asked Officer
Browning what he witnessed, and Officer Browning told him
that he had witnessed a female dealer talking to a security officer
towards Parasol Up; the corridor towards the Respondent Tower Suites,
the corridor towards the Respondent Elevators/Theater; the corridor to-
wards the Buffet and Respondent Pool Elevators; the B-Bar, the Casino
Host Lounge; the area in front of the Main Cage; and the immediate ca-
sino/gaming area. Id. Kastroll knows and understands that security offic-
ers assigned to Priority One Post give directions to guests and answer a
lot of questions. Tr. 41, 99.
WYNN LAS VEGAS, LLC 11
at Priority One Post for a long period of time and that she was
talking about union support and how the officer should support
the SPFPA. (Tr. 176–177,) Officer Browning identified Kastroll
as the dealer involved and Officer Moreno as the security officer
approached by Kastroll. (Tr. 270–271.)
Tourek asked Officer Browning how he came about to know
about the February 2 incident at Priority One Post and Officer
Browning explained that he wasn't a big supporter of the union,
that they had been urging him to participate, so when he saw the
conversation (between Kastroll and Officer Moreno) taking
place he took it upon himself to eavesdrop. (Tr. 177.) According
to Tourek, he asked Officer Browning where it happened and
what he heard. (Tr. 179.)
Also, on February 3, Prescott and Tourek met with Officer
Moreno in an Employee Relations conference room. (Tr. 173,
273.) Prescott acknowledged making note that Officer Moreno
told them that he had heard that before the February 2 incident,
Kastroll had talked to other people at work recommending the
SPFPA union. (Tr. 276–277).
Tourek also asked Officer Moreno about Officer Browning’s
complaint about the February 2 incident, whether or not it oc-
curred, whether or not somebody came up and spoke to him,
what was the substance of the conversation and basically what
was going on. (Tr. 179–180.) Tourek also asked Officer Moreno
whether or not he had a conversation with a dealer while he was
on Priority One Post on a particular day and what was the sub-
stance of the conversation. (Tr. 180.) According to Tourek, the
conversation led to the subject of a discussion regarding unions,
because "eventually [Officer Moreno] got there" and figured out
what Tourek was talking about. (Tr. 181.)
Officer Moreno did not know who Kastroll was without
prompting when she approached him on February 2 to encourage
him to vote for the SPFPA. (Tr. 545–546.) Tourek told Officer
Moreno that the conversation with Kastroll on the floor was not
appropriate because it is a distraction while he's supposed to be
doing his job. (Tr. 251–252.) At no time did Tourek or Prescott
ask Officer Moreno how he was going to vote in the upcoming
SPFPA union election. (Tr. 547.)
Respondent maintains that since Officer Moreno remained at
his post and the surveillance video footage showed that he did
not instigate or encourage the conversation with Kastroll, Officer
Moreno was not formally disciplined or threatened with disci-
pline. (Tr. 252–253, 547.)
As part of its investigation, Tourek and Prescott also met with
Kastroll and Union Steward Donna Blair (Blair) on Thursday,
February 5. (Tr. 47.) That day Kastroll was relieved from her
game and told to go to Employee Relations. (Tr. 47–48.) Once
there, Kastroll met with Prescott and Tourek in a conference
room, along with Blair. (Tr. 47.) Prescott opened the meeting
5 In response, Kastroll requested the prior versions of the solicitation
and distribution policy because she wanted to see "the difference in the
language, where it has changed, and whether [she] was aware of what-
ever changes and modifications there were." Tr. 52–53. However, Re-
spondent’s employees are responsible to know Respondent's current pol-
icies and procedures because they are made available to all employees
on Respondent's intranet system known as the "WIRE," which is acces-
sible both at work and on their personal computers, and which allows
employees to electronically acknowledge receipt of policies. Tr. 126,
with, "Do you remember having a conversation on Monday
[February 2 (3 days earlier)] with a security guard about unions?"
Kastroll responded that she talks about unions all the time with
everybody, including guests sometimes, and she asked Prescott
to be more specific. Prescott responded that it was between 4 and
6 p.m. Kastroll said that didn't help. Prescott stated that it was at
the Priority One Post, B Bar intersection. Kastroll asked if it was
a male or female security officer. When Prescott said male,
Kastroll stated sarcastically, "Well, we're down to 90 percent of
the security officers." Kastroll testified that at that point, Tourek
interjected and stated, "You were promoting the union." (Tr. 49–
51.) According to Kastroll, she then stated, "I know what this is
about. You guys are having a union election, a representation
election soon and now I get what this is all about. I've heard
about a lot of disciplines going on in the security department. I
see what's going on here." (Id.)
Prescott said that there was a guest who needed help from an-
other security officer. Kastroll responded that she still didn't
know what Prescott was talking about. (Tr. 51, 105.) Prescott
also mentioned that someone had made a complaint and Re-
spondent had a statement from a security guard. (Tr. 61.) Union
Steward Blair testified that during the meeting Tourek also told
Kastroll that another employee had written a complaint against
Kastroll regarding the conversation she had had with a security
guard. (Tr. 124–125.)
Tourek also informed Kastroll that Respondent had surveil-
lance video that showed Kastroll having a conversation on the
floor with a security officer at Priority One Post and it was re-
garding unionization. (Tr. 124–125.) Tourek attempted to refresh
Kastroll's recollection of the February 2 incident a number of
times, including describing the date, time, and location of the
conversation. (Id.) Tourek asked Kastroll if she believed her
conversation at Priority One Post kept the security officer from
doing his job and informed Kastroll that a guest had to ask an-
other nearby security officer a question because of her conversa-
tion with the security officer. (Tr. 124–126.) Kastroll indicated
that she could not really recall the interaction. (Tr. 125.)
Blair noted that at some point in the meeting Kastroll excused
herself to use the restroom, and while she was gone, Blair asked
Tourek if this was going to lead to discipline. Specifically, Blair
“was curious to see where this entire investigation was going”
and she “asked Kevin [Tourek] whether or not this [investiga-
tion] was going to lead to a warning slip and he said that he just
wanted to put her [Kastroll] on notice." (Tr. 126–127.)
At the February 5 meeting, Tourek and Prescott gave Kastroll
a copy of Respondent's solicitation and distribution policy last
revised in May 2014 and one of them told her that she's in viola-
tion of that policy.5 (Tr. 52; GC Exh. 2.) Tourek explained that
Kastroll was in violation of Respondent’s solicitation and
141–143, 325, 568, 619–620, 628. Respondent’s policies are only in ef-
fect until a new revision is issued and provided on the WIRE. Tr. 165.
As requested, Respondent subsequently provided copies of its prior ver-
sions of Respondent's Solicitation and Distribution Policy to Kastroll. Tr.
65; GC Exhs. 6–8. The acknowledgment document presented to and
signed by Kastroll was taken from Respondent’s template and was only
provided to memorialize that Respondent provided her with the previous
policy versions she specifically requested. Tr. 67, 284, 287, 307, 309.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
distribution policy. Blair also testified that Tourek "made it seem
that [Kastroll] had violated that policy and [Kastroll] had said
that she didn't feel that she had violated that policy." (Tr. 127.)
Tourek left the February 5 meeting at some point and Prescott
requested that Kastroll provide a written statement regarding the
February 2 incident. (Tr. 53–55.) Kastroll then wrote a statement
in the employee relations office in the presence of Blair which
misstated the length of her talk to Officer Moreno and reads in
relevant part:
… I have been accused of solicitation, on Monday, 2/2/15, be-
tween 4pm-6pm at the intersection of the BBar. I don’t recall
any specific person or instance related to solicitation. Mr. Tou-
rek suggested that I made union promotions. At best, being a
former union officer, I may have wished someone a salutation
such as “Good luck; we are praying for you.” I don’t remember
any lengthy conversation as I don’t have time during my short
break periods. I would never intend to hamper any guest expe-
rience, nor prevent someone from performing his job duties. I
do not believe that has happened in any casual conversation
with any security officer. It is highly unusual to have General
Counsel present during an employee relations interview. I feel
singled out.
(GC Exh. 3.)
Kastroll testified that in the course of acting as a union stew-
ard, she attended approximately 20 investigatory interviews with
other employees, but neither Tourek nor Prescott was present for
any of those meetings. Moreover, the meetings typically took
place in the table games office, not the Employee Relations of-
fice. (Tr. 74.) Blair also testified neither Tourek nor Prescott
were present for any of the 10 to 15 investigatory interviews she
attended in her time as a union steward and that those interviews
occurred in the casino manager’s office. (Tr. 122–123, 129–
130.) I find the reason for this unusual location for an interview
was reasonably explained by Prescott to Kastroll at their Febru-
ary 5 meeting to be: "Because this [Feb. 2 Incident] involves two
departments"—Kastroll being a dealer and Officer Moreno be-
ing a security officer, the meeting took place in the HR confer-
ence room. (Tr. 54.)
Prescott met with Officer Browning on February 6 to have him
create and sign a written statement of the February 2 Incident.
(Tr. 269–270; GC Exh. 13.) Prescott asked Officer Browning
what he witnessed on the casino floor that led him to complain
to a supervisor. Officer Browning told her that he witnessed
Kastroll approach a security officer and initiate a conversation
that lasted several minutes and that she told the officer that he
needed to vote for the SPFPA union and they would protect him
Officer Browning created and signed a written statement de-
scribing the February 2 incident for Prescott. (Tr. 270–271; GC
Exh. 13.)
Officer Moreno was also called down by Prescott to write a
statement on February 9 about everything that was said in
Kastroll’s February 2 talk to Officer Moreno at Priority One Post
while Officer Moreno was on duty. (Tr. 277–279, 547; GC Exh.
12.) Officer Moreno writes:
On Feb. 2 … I was at my post (priority 1) on the casino floor.
A dealer came up to me out of know [siq.] where to talk to me
about the union. I have never talk [siq.] to this worker ever. I
didn’t know her name. Someone had to let me know her name
(Kanie [Kastroll]). She just started to talk to me about how I
should go with the union. That she use to work with the union
back in the day. She told me that no matter what they say to
join the union. She explained to me that it was the best thing
for me to do because we (security) have no say so on anything.
That if the union comes in that we (security) can have more say
so. She was talking to me for about 5-10 min. She just contin-
ued to really repeat herself about joining the union and good it
would be to vote yes. Since this meeting employee relations
lady has reach out to discuss this with me.
(GC Exh. 12.) Officer Moreno also testified that he was not dis-
ciplined for the February 2 incident, he was not threatened with
discipline at any time by Respondent and no one asked him how
he planned to vote in the upcoming union election at the Febru-
ary 9 meeting. (Tr. 547–548.) In addition, Prescott or Tourek told
Officer Moreno that it was his choice whether he wanted to speak
to the NLRB prior to trial where he would likely be called as a
witness to discuss the February. 2 incident and his related state-
ment. (Tr. 557; GC Exh. 12.)
Tourek reviewed the surveillance video of Kastroll’s talk to
Officer Moreno during his investigation. (Tr. 194; GC Exh. 11.)
Tourek explained that when he interviewed employees and
viewed the surveillance footage, he was acting at the request of
Respondent’s president, Wooden, to look into the issue. (Tr.
201.)
D. Respondent Issues Kastroll a First Written Warning Disci-
pline on February 12 as a Result of the February 2 Incident.
On February 12, Prescott issued Kastroll a first written warn-
ing for the February 2 incident. (Tr. 57–59, 262, 307–308; GC
Exh. 4.) The warning states:
On February 2, 2015, Kanie [Kastroll] was witnessed and over-
heard having a conversation on the casino floor with a Security
Officer regarding union organizing. This conversation hap-
pened while the officer was on duty (not on break) and in a high
traffic, guest facing area. Kanie has been reminded of the Com-
pany's Solicitation and Distribution policy. Further violations
of Company policy may lead to discipline up to and including
termination of employment.
(GC Exh. 4.) Prescott drafted the discipline and signed it on Feb-
ruary 12. (Tr. 261–262.) Tourek approved the language of the
discipline before it was issued to Kastroll. (Tr. 173, 247; GC
Exh. 4.)
The surveillance footage of the February 2 incident depicts
Kastroll engaging in a one-sided talk to an on-duty security of-
ficer at Priority One Post, the main thoroughfare at Respondent,
while hundreds of guests constantly walk past them. (GC Exh.
11.) Tourek and Prescott determined that Kastroll distracted the
on-duty Officer Moreno for almost 3 minutes from performing
his job duties while the security officer was posted at the most
important security post given its casino security and guest rela-
tions responsibilities. (Tr. 186–187, 263–265, 293.) The conver-
sation initiated by Kastroll was not work-related and lasted ap-
proximately three (3) minutes. (Tr. 187–188.) Kastroll's conduct
prevented Officer Moreno from performing his job duties while
he was actively on work time. (Tr. 227.)
WYNN LAS VEGAS, LLC 13
Prescott testified that her reason for issuing the discipline was
that Kastroll violated the solicitation and distribution policy as
Kastroll interrupted or disrupted guest or customer services
while talking to Officer Moreno for almost 3 minutes. (Tr. 262.)
Kastroll violated the policy because she had a conversation with
another employee on the floor. (Tr. 263.) She also testified that
the subject matter of the conversation was a factor in issuing the
discipline, because Kastroll was trying to persuade an employee
to vote a certain way in a union election by "encouraging that
person to vote in favor of electing a union … [and] telling that
person all of the reasons why a union would be favorable for that
person to have." (Tr. 264–265.) Prescott testified that Kastroll
violated the solicitation and distribution policy because "she was
having a conversation where she was basically selling the ser-
vices of the union, promoting the services of the union on the
floor not in a break area but in a customer service area while
another employee was on duty." (Tr. 308–309; GC Exhs. 2 and
8.)
Tourek explained that his reason for approving the discipline
was that "[Kastroll] was an off-duty employee engaging in and
distracting an employee who was on duty." (Tr. 186.) Tourek
added that Kastroll was distracting Officer Moreno by having a
conversation with him that took him away from his duties at Re-
spondent’s most important security position, particularly his du-
ties to be observant of the casino floor for security purposes and
provide guest services. (Tr. 186–187.) Tourek also explained that
Kastroll was disciplined for being off-duty and engaging in a
three minute conversation with an employee on duty. Tourek
opined that the length of the conversation and the subject matter
were both factors in deciding to discipline Kastroll. (Tr. 187–
188.) He explained that subject matter was a factor because if
Kastroll had a valid work-related reason for her long talk to Of-
ficer Moreno, she might not have received the warning. Tourek
also opined that the only rule she violated was the solicitation
and distribution policy. (Tr. 189.)
Tourek also admitted that when there is an upcoming union
election approaching, Respondent investigates solicitation viola-
tions with "heightened intensity." He stated that during a union
organizing campaign in February 2015, "there was a heightened
awareness of people having conversations while they're on the
clock" and whether employees are engaged in solicitation or not.
(Tr. 230–231, 248–249.) He also testified that his definition of
solicitation under Respondent's own policy is any discussions
about the union while employees are on duty. (Tr. 249–250.) He
testified that Respondent's policy covers discussions about the
union, even where no union authorization card is at issue. (Tr.
250.)
On the other hand, Tourek distinguished situations where so-
licitations are freely allowed where he believes employees work-
ing on the main casino floor are generally allowed to talk to each
other while they're on duty and that he's not aware of any policies
in existence in February 2015 that broadly prohibited employees
from talking to each other on the main casino floor outside the
Priority One Post. (Tr. 251.) Kastroll admitted that she has en-
gaged in thousands of non-work related conversations with other
employees on the main casino floor. (Tr. 74–75.) She testified
that these types of nonwork-related conversations occur all day
long, depending on how busy they are. She testified that she's
had nonwork-related conversations with other employees, casino
service team leader’s (CSTL’s), casino managers, and assistant
casino managers. She testified that they've had discussions about
sports, movies, concerts, politics, and union stuff (Tr. 76). The
conversations ranged from 30 seconds to 20 minutes, depending
on whether employees are on a dead game or in a dead pit, or if
employees are on the same table game. (Tr. 77.) She testified that
occasionally, an assistant casino manager walking around might
ask employees to limit their conversations while on the main ca-
sino floor, but it did not depend on the subject matter. (Tr. 77–
78.)
Blair also testified that she's had almost daily conversations
with other employees on the main casino floor that do not pertain
directly to her work. (Tr. 130–131.) She testified that she's had
such conversations with dealers, cocktail waitresses, and security
officers. (Tr. 131.) As an example, she recalled a conversation
with a security officer, Joe Tuzleno, sometime in 2015 in Priority
One Post area. She testified that he was in uniform and appeared
to be working at the time and that their conversation lasted one
to two minutes. They talked about "how as a security guard he
should try to get on the floor in the casino itself." (Tr. 131–132).
She was not called into any investigatory interviews or issued
any discipline based on that conversation. (Tr. 132.) She testified
that she's also spoken to other security officers in the K-9 patrol
unit on the main casino floor. She had two or three such conver-
sations in 2015, while both she and the officer were at work, and
the conversations were about dogs. (Tr. 133–134.) The conver-
sations were usually about a minute to two minutes long. She was
never called into any investigatory interviews or issued any dis-
cipline for those conversations. (Tr. 134.) Blair also testified that
sometime in 2015, when she was opening up a game at the be-
ginning of the day, she overheard a conversation between a TGD
on the next game and a CSTL about an eyelash product she was
trying to sell. (Tr. 134–135.)
Aside from Kastroll's February 12 warning, at the time of
hearing Respondent has only enforced its solicitation and distri-
bution policy two other times since January 1, 2014. (Tr. 310–
311; GC Exh. 23 and 24.. One instance involved an employee
leaving Avon makeup catalogs around the property. She was is-
sued a second warning for the distribution. (Tr. 311, GC Exh.
24.) The other instance of a first written warning being issued by
Respondent involved one employee demanding $5 from another
employee before he would help her make up the bedding. The
employee was disciplined for selling goods or services. (Tr. 311;
GC Exh. 23.)
In addition, I further find that Respondent disciplines employ-
ees for personal conversations - regardless of content - when
such conversations distract other employees from performing
their job duties or interfere with guest services and when such
conduct is brought to Respondent's attention. (See. e.g., Tr. 611–
612; R. Exhs. 13–14.) Also in the recent past, Respondent disci-
plined employees for such things as: speaking to coworkers in-
stead of serving guests; ignoring security post duties while talk-
ing with another employee; ignoring the supervision of games
due to conversations with another employee; engaging in a per-
sonal conversation about 1970s and 1980s pornography stars that
was overheard by guests; failing to greet a guest because the em-
ployee was engaged in a conversation with a coworker; failing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
to serve guests due to conversations with a coworker; and ne-
glecting duties while engaged in personal conversations with
coworkers. (R. Exh. 14 at 2–3, 5–8, 12, and 14.) Like Respond-
ent’s discipline of Kastroll here, these other discipline examples
similarly show that Kastroll was not discriminated against due to
her union solicitation but, like Respondent’s employees in the
above examples, Kastroll was disciplined because she distracted
Officer Moreno for almost 3 minutes and interfered with his du-
ties to help and direct Respondent’s guests and monitor the ca-
sino area overlooking Priority One Post.
E. Respondent’s Questioned Work Rules.
At all material times since January 31, 2015, Respondent
has maintained its Code of Personal Conduct on The Wire,
containing the following provisions:
1. Respecting others, which includes but is not limited to:
 Displaying appropriate behavior at work, on Wynn
business, or on property.
 Never engaging in misconduct on or off-duty that (as
determined by Wynn) materially and adversely af-
fects job performance or tends to bring discredit to
Wynn.
 Promoting and respecting the diversity of the Wynn
workforce by avoiding any form of discrimination or
harassment, including:
* Degrading comments or offensive language.
 Refraining from inappropriate conduct or horseplay
[the Inappropriate Conduct Rule].
2. Striving for excellence in job performance, which includes
but i s not limited to:
 Never taking photographs in the public "front-of-
house" area [the No Photographs, PDAs, Messaging,
Calls, or Recording Rule].
3. Know and follow all Wynn policies and procedures,
which include but are not limited to:
 Only using the facilities for the property you are
scheduled to work, with the exception of the em-
ployee dining area.
* When scheduled to work at Wynn you must park in the
employee parking garage and utilize the back of the house
area that pertains to and is exclusive to the property at
which you are working with to and is exclusive to the
property at which you are working with the exception of
the employee dining area. All other exceptions to this rule
can only be made with specific management authorization
and/or written accompanying documentation [the Restricted
Access Rule].
 Complying with copyright, patent, and trademark
laws, which are intended to protect exclusive use of
publications, productions, artistic works, and so
forth.
* Logos may not be used for any purpose aside from those
for which they are intended.
* Logos may not be altered in any way [the Restricted Intel-
lectual Property Rule].
 Protecting the confidentiality of Wynn.
 Never using, accessing, possessing, copying, remov-
ing, or sharing any of Wynn confidential business
information without authorization or for business rea-
sons [the Confidentiality Rule].
 Never using personal communications devices such
as beepers, cellular telephones and personal data as-
sistance ("PDAs"), for incoming and outgoing mes-
saging or calls while on duty, unless prior authori-
zation is obtained from a department manager [the No
Photographs, PDAs, Messaging, Calls, or Recording
Rule].
 Except for off duty or pre-authorized use of personal
communications devices for incoming and outgoing
messaging or calls only, never using any device for
audio, video or data recording/transmission, such as
video and digital cameras, camera and recording
components of cellular telephones/PDAs and digital
recorders, at any time while on company property or
while performing job duties off-company property,
unless prior authorization is obtained from a depart-
ment manager for a company business purpose [the
No Photographs, PDAs, Messaging, Calls, or Record-
ing Rule].
 Never using Wynn property for personal use [the No
Personal Use Rule].
4. Being honest, which includes but is not limited to:
 Reporting any suspicious or improper activity to a
manager or security officer (the Honesty Rule).
 Refraining from any activity in photographing or
recording (either by audio or video means) others in
the work environment, including coworkers, manag-
ers, guests, customers, or vendors, unless specific au-
thorization has been given in advance by all indi-
viduals subject to the intended photography and/or
recording activity or management has otherwise pre-
authorized the activity for company business pur-
poses [the No Photographs, PDAs, Messaging, Calls,
or Recording Rule].
7. Failure to display proper conduct and abide by these
standards may result in disciplinary action up to and includ-
ing termination [the Failure to Obey Rules or Handbook Vio-
lation Rule].
(GC Ex. 1(o) & (q); R Ex. 7 & 12) (bold in original). The code
of personal conduct applies to all employees of Wynn Resorts
and its subsidiaries, including Respondent. (Tr. 167.)
F. May’s General Background as a Security Officer for
Respondent.
The SPFPA union and Respondent stipulated to an election
agreement, an election was held on February 11, 2015, and the
union failed to obtain a majority of votes to secure
WYNN LAS VEGAS, LLC 15
representation. (GC Exh. 21.)
Respondent hired Charging Party Keli May (May) on April
11, 2005, and currently employs her as a security officer in Re-
spondent’s security department. (Tr. 320.) May’s 10 year em-
ployment at Respondent is free of significant discipline other
than one written warning issued against her.
As a security officer, May is responsible for monitoring and
patrolling her assigned area to ensure guest and employee safety,
minimizing potential for loss or damages, and responding to
emergency situations. (Tr. 340.)
Most of Respondent’s security officers working at its Wynn
casino clock in and out of work using Respondent’s Kronos
timekeeping system by swiping their ID badge on time clocks
located outside of the security offices of Respondent’s facility.
(Tr. 322.) The security offices at Respondent’s Wynn facility are
located in the basement underneath the buffet area on casino
level. (Tr. 323.) Anyone going to Respondent’s basement secu-
rity offices must show a valid Id badge to a posted security of-
ficer to get into the basement. (Tr. 324.)
Employees can view their recorded time and worked hours us-
ing Respondent’s intranet Wire with access at Respondent
through kiosks in Respondent’s basement or from an employee’s
home computer or telephone. (Tr. 325.) The Wire shows the
times an employee has clocked in and clocked out. Id.
In May/June 2015 May reported directly to immediate super-
visors Tammy Howell (Howell), Mr. Haire (Haire), and Paul
Roberson (Roberson). (Tr. 326, 378.) These supervisors reported
to Assistant Manager Corey Prowell (Prowell) who reported to
Security Manager Rawlings (Rawlings). (Tr. 326–327.)
G. May’s Assignment’s and Common Pay Issues Stationed at
Respondent’s WDD Flex Building in 2014–2015
In 2014–2015, May was assigned to guard the Respondent De-
sign and Development ("WDD") Flex Building located on Koval
Lane and Sands Avenue. (Tr. 333–335.) Over these years May
worked the dayshift at the WDD Flex Building from either 6 a.m.
to 2 p.m. or 8 a.m. to 4 p.m. depending on the day of the week
with other security officers—Robert Alameda (Alameda),
Lavert Davis (Davis), and Officer Rankin. (Tr. 320–321, 335–
354, 461.)
The WDD Flex Building is Respondent’s satellite office that
does not have a time clock for employees to clock in and out for
their shifts. (Tr. 338-339, 342-343.) Instead, May and all other
officers assigned to the WDD Flex Building either call the man-
ager on duty or a dispatcher to convey start and stop times over
the radio and inform him or her of their arrival, breaks, and their
departure. (Tr. 341-342, 448, 468.)
This timekeeping procedure utilized at the WDD Flex Build-
ing led to a common payroll error with May approximately 15
times and other employees as well in 2014-2015 in which hours
were not properly recorded. (Tr. 345–347, 448.) Each time the
error resulted in lower pay to May and the other security officers
at the WDD Flex Building. (Tr. 345–347.) An employee could
discover an error for missed time recorded by viewing their
missed time on the Wire. (Tr. 345–346, 449.) Errors usually in-
volved whole days missing or overtime pay missing. (Tr. 346–
347.) As a result, many times in 2014–2015 supervisory manag-
ers would forget or omit entry of start and stop times for security
officers working at the WDD Flex Building. (Tr. 345–347, 448–
469.)
May discussed these payroll error issues all the time with her
fellow security officers at the WDD Flex Building at least once
a week. (Tr. 347–351, 449.) Every 2 weeks, Alameda and May
would discuss whether their pay was correct or not for work at
the WDD Flex Building. (Tr. 348.) If Alameda found his pay was
wrong, he would tell May as usually if one security officer’s time
was incorrect then the other security officer on the same shift
would also have an error in their pay. (Tr. 348.)
Officer Rankin worked at WDD Flex with May on Wednes-
days and Thursdays in 2015. (Tr. 446–447, 461.) These pay er-
rors were a constant topic of discussion between May and Of-
ficer Rankin and other security officers at the WDD Flex Build-
ing as the errors were common and conversations usually took
place at lunch with another security officer at WDD Flex Build-
ing. (Tr. 348–349, 461.) Sometimes the errors related to missed
overtime for May and Rankin as the dispatcher would not input
the fact that they left WDD Flex at 4:10 p.m., 4:20, or 4:30 which
are all overtime for their day shift that normally ended at 4 p.m.
(Tr. 469.)
May would try to resolve these frequent pay errors while
working at the WDD Flex Building over her lunch hour by going
to the security offices at the Wynn. (Tr. 351.)
H. May’s Missing Pay Error on Her May 29 Paycheck
On May 29 with her paycheck for time worked from May
11—23, 2015, the matter leading to discipline in this case began
when yet another of Respondent’s frequent payroll errors first
came to May’s attention and she discovered that the entire day
of May 22 was omitted from her paycheck although she worked
8 hours on May 22. (Tr. 354–360; GC Exh. 25.) Consequently,
because the incorrect paycheck was missing an entire 8-hour day
on May 22, her paycheck was also missing May’s overtime and
double overtime hours worked. Id.
On the following Monday, June 1 May informed Prowell of
the hours and pay shortage and Prowell told May that he would
take care of it. (Tr. 357–360.) May gave Prowell her incorrect
pay stub (GC Exh. 25) and a wire screen shot showing her time
worked on payroll from May 11 to 24, 2015, to help him get the
pay error resolved. (Tr. 358–360; GC Exhs. 25 and 26.)
The following day on June 2 May spoke to Howell on May’s
lunchbreak in the security offices about her same paycheck error
and Howell told May that Prowell would correct the problem for
her. (Tr. 362–363.) Also, on June 2, May also spoke to Dudoit
about her unpaid time error and he also told May that Prowell
would correct the mistake. (Tr. 363–364.)
An investigation into May's payroll issue later concluded that
May's work time was not entered correctly by management and
that May was issued a check on May 29, 2015, that mistakenly
did not compensate her for eight (8) hours of overtime and two
(2) hours of double time. (Tr. 355.) May’s paycheck was $291.52
short from the amount she was owed by Respondent. (GC Exh.
31.)
On June 12, 2015, Wynn issued a payroll check to May that
resolved only part of her payroll issue because Prowell mistak-
enly submitted a request to the payroll department to compensate
May for eight (8) hours of regular pay. (Tr. 364–365; GC Exh.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
27.) As a result, May was still owed 6 hours of overtime pay and
2 hours of double-time pay for the week ending on May 24 (col-
lectively referred to as the missing OT/DT pay). Id.
On Monday, June 15 May went to the security offices to ad-
vise that she had still been paid incorrectly. (Tr. 366.) May spoke
to Haire about her continuing paycheck issue for the missing
OT/DT pay and also noticed a new pay issue on the Wire where
May’s work on Tuesday, Wednesday, and Friday, June 9, 10,
and 12 were now missing. (Tr. 367–368.)
Haire looked into Respondent’s Kronos system, saw the miss-
ing dates for May’s work, and manually entered in May’s miss-
ing time for Tuesday and Wednesday, June 9 and 10, but Haire
refused to enter the May’s missing time for Friday, June 12, be-
cause it was his day off and he apparently did not believe what
May was telling him. (Tr. 367–369.)
Haire later on June 15 entered May’s missing Friday June 12
time and May told Haire that her May 29 paycheck was still in-
correct. Id. Haire responded by telling May that she should go
back to Prowell and Howell to get the missing OT/DT pay cor-
rected. (Tr. 369.)
On June 16, 2015 May spoke to Howell in the security offices
on May’s lunchbreak and Howell told May that Howell would
have to get Dudoit and Prowell to take care of the missing
OT/DT pay problem. (Tr. 369–370.)
On June 17 May followed up with Howell at the security of-
fices during May’s break. (Tr. 370–371.) Howell told May that
a check was going to be cut and Dudoit was helping Howell get
a check cut and it was looking like May would receive her cor-
rected pay later that same day on Wednesday, June 17. Id. May
did not receive her corrected paycheck on June 17. (Tr. 371.)
On June 18 May spoke again to Howell at the security offices
during her lunchbreak. (Tr. 371–372.) May told Howell that she
had not received the corrected paycheck yet and Howell re-
sponded that Dudoit was working on it but Howell did not know
the exact details because Dudoit was handling it. Id. May did
not receive her corrected paycheck on June 18.
I. May’s June 19 Incident and Resulting Discipline from
Respondent.
On June 19, during her break May went directly to the payroll
window located in the basement at Respondent’s Wynn facility
just down the hall from the security offices to see if there was a
corrected paycheck there waiting for her. (Tr. 372–373.) There
was no check with May’s name on it waiting for her at the payroll
window during her break. (Tr. 373.) The payroll window clerk
advised May that there was no check for May and that May
should go to her security department to inquire further. Id.
Later on June 19 May went to the security offices and spoke
to Howell again informing her that there was no check waiting
for May at the payroll window. (Tr. 373–374.) Howell went to
her computer to look up her emails and an email she was copied
on from Dudoit showed that Dudoit had filled out an application
or requested one from a Nicole Saito (Nicole) in Payroll and the
email request was dated Thursday June 18 at approximately 5
p.m. (Tr. 374–375.)
Howell told May that the request for May’s missing OT/DT
pay was submitted and Howell did not understand why there was
not a paycheck waiting for May to pick up. Howell
recommended that May go on her lunch break so Howell would
have time to look into the status of the missing OT/DT pay. (Tr.
375.) May left the security offices and went to lunch at the em-
ployee dining room (EDR). Id.
After eating lunch on June 19 May went to the payroll window
again to collect her missing OT/DT paycheck. (Tr. 375.) May
was told by the same payroll clerk as before that there was still
nothing at the payroll window for May. Id. May then told the
clerk that there was an email reflecting from Dudoit to Nicole in
payroll and the clerk picked up the telephone and dialed a num-
ber. (Id.) Eventually, the clerk handed May the telephone and
May explained to Nicole on the telephone why she was waiting
for her paycheck from payroll, the entire sequence of events in-
cluding the missed May 22 time and then the missed OT/DT pay.
(Tr. 375–376.)
After hearing the detailed story, Nicole responded by telling
May that Nicole is canceling the adjustment that had just been
submitted by Dudoit and May was caught off guard by this as
the check May was expecting to pick up was now being canceled
by Nicole. (Tr. 376.) May responded by asking Nicole why she
was canceling the check that May had been waiting to receive
since the error was first discovered and management first began
the process to correct the error on June 1—18 days earlier. (Id.)
Nicole explained that all that had been submitted had been two
regular hours pay and at May’s regular rate of pay those two reg-
ular hours would not resolve the pay issue and add up to be the
missing OT/DT pay amount of approximately $91.10. (Id.) Ni-
cole then tells May that she is canceling the transaction and tells
May to go back to the security offices to see Howell or Dudoit.
(Id.)
Later in the early afternoon of June 19, with the majority of
employees, supervisors, and managers away on lunchbreak or in
closed door meetings in the security department May leaves the
payroll window and heads back to the security offices to try and
resolve the missing OT/DT pay problem. (Tr. 377.) May in-
tended to go directly to Dudoit’s office when she returned to the
security offices, but his door and blinds were closed, and it was
dark inside indicating he was not there. (Tr. 377.) No hotel guests
or customers are around in basement security offices which are
off-limits to hotel guests and customers. (Tr. 453.)
May saw the 2 Ricoh copier repairmen near the printer and
that Respondent investigator Brad Thomison’s (Thomison’s) of-
fice door was open and his lights were on. (Tr. 378.) May also
saw that day shift security manager Romo’s office blinds were
open and Romo was seated at his desk in a meeting with Howell,
Prowell, and Roberson with the door open. Id. May walked up
to Romo’s office and also noticed that the briefing room next
door to Romo’s office had a group of new officers there for train-
ing in a closed-door meeting. (Id.)
May tried to whisper to get Howell’s attention to come out so
as not to disrupt the meeting in Romo’s office as the 4 managers
there were talking amongst themselves and Romo’s door was
open. (Tr. 379.) May said to Howell: “Can I talk to you for just
a moment?” Id. May leaned back and no one responded to May’s
question to Howell and the door closed and it became silent in
the hall where May was standing by herself. (Id.)
Next May walked away from Romo’s office toward the copier
and coffee maker and Thomison’s office. (Tr. 379–380.) May
WYNN LAS VEGAS, LLC 17
walked back to the copier area as the Ricoh repairmen were
packing up to leave and May said “hi” to Thomison who also
said “hi” back to May. (Tr. 380.) May then stood by the copier
for 5–10 minutes waiting for the Romo office meeting to end so
she could talk to Howell about her missing OT and DT pay issue
but the door to Romo’s office remained closed. Id.
May remained standing by the copier and coffee maker when
Officer Rankin came into the security offices on his lunchbreak
and near May asking her what she was doing there. (Tr. 381,450–
453.) No one else was standing by May when Officer Rankin
spoke to her. (Tr. 451.) May responded saying to Officer Rankin:
“I’m trying to fix my payroll issue.” (Tr. 381,450–452.) Officer
Rankin responds to May asking: “You’re in here again still try-
ing to resolve your issue?” Id. May responds affirmatively and
Officer Rankin asks: “where is everybody?” (Tr. 381–382.)
May replies that they are all behind closed doors in a meeting
in Romo’s office. (Tr. 382, 452.) Officer Rankin responds next
saying to May: “Get you fucking ass over there and demand your
money right now.” (Id.) Officer Rankin denies using the word
“fucking” and testified that he told May that” “it’s bullshit, basi-
cally, that you have to go through this over and over and over
again.” (Tr. 452–453.) I find May’s testimony more credible and
that Officer Rankin’s common use of profanities is more con-
sistent with other witness testimony of free use of profanities in
the security offices by managers and others, the other references
to the June 19 events and because Officer Rankin has received a
prior verbal warning for his improper conversations at work in
front of a hotel gust or customer and likely did not want to admit
to his added use of profanities. (See Tr. 444–445, 453.)
May responds to Officer Rankin in a loud voice telling him:
Rick [Officer Rankin], I’ve already gone to four fucking peo-
ple. How many more people do I need to go to get this taken
care of? I’ve done enough to where I can’t do anything else.
I’ve already gone to four different people. How do I go to any-
body else to take care of this? I’ve already gone to two super-
visors, an assistant manager, and an assistant director. These
managers are all fucking idiots and no one knows shit. I don’t
know what to do at this point. The girl's [Nicole is] a fucking
idiot as well. I’m just doing what I have to do to resolve it, and
today’s the day where they keep telling me I’m getting money,
and I haven’t gotten it yet. So now I’m staying here until we
resolve this.
(Tr. 382, 390, 420–421, 453, 469–470, 518, 524–526.) Officer
Rankin and May continue to their elevated discussion of May’s
unpaid wages issue, how often this type of error happens and
how it should not ever happen let alone occur frequently. (Tr.
452–453.) May repeated this loud outburst using the same pro-
fanities 2–3 times (collectively known as the June 19 Incident).
May admits to a "colorful worded conversation" and using
profanities but not directly to Romo or Howell as they stayed
behind closed doors in Romo’s office during the lunch hour. (Tr.
382, 390, 528; GC Exh. 28.)
After hanging up “relatively quickly” with a guest so they
could not hear in the background May’s June 19 Incident down
the hall, Director’s Assistant, Boguille (Boguille), got up from
her desk, located in a back office outside her supervising direc-
tor’s empty office down a hallway around the corner from where
May and Officer Rankin were standing, and approached them
and asked them if everything was “ok”, “what’s going on”, and
“how are you doing?” (Tr. 455, 523, 532–533; R. Exh. 6.) May
and Officer Rankin responded to Boguille that “everything was
fine.” (Id.)
Boguille next went to Thomison whose office was closest to
Boguille’s to ask if he knew where May’s managers were. (Tr.
454, 530, 537–538.) Thomison was standing up in his office at
this time and he told Boguille that all of the managers were in
Romo's office. (Tr. 532, 538.)
Boguille then went to Romo' s office, knocked on the door,
and entered. (Tr. 530.) She saw that most of May’s managers
were there, Howell, Roberson, Prowell and Romo. (Tr. 530–
531.) Boguille informed Romo that May was loudly cursing,
complaining about her payroll issue, calling management "fuck-
ing idiots," and saying that nobody knows what they are doing
about her unpaid wages. (Tr. 524–525, 531.) Boguille told Romo
that he needs to address May’s unpaid wages issue with her be-
cause May is being extremely loud in the office. (Tr. 531.)
After being informed by Boguille of May's conduct, Romo
and Howell met with May to discuss her payroll issue and loud
discussion with Officer Rankin. (Tr. 385, 456–457.) During that
meeting, Romo advised May that she was welcome to come to
him in the future if she was experiencing issues and then he,
Howell, and May worked together and calculated that May was
still owed compensation for one straight-time hour and two dou-
ble-time hours. (Tr. 389.) May then returned to her station at the
WDD Flex Building. (Tr. 390.)
Boguille admitted that she was not offended by the curse
words used by May on June 19 but, instead, what bothered
Boguille was that May was making the accusation that manage-
ment somehow did not do their job right in connection with
May’s various attempts to have management correct their unpaid
wages situation with May. (Tr. 534.) Boguille admitted that she
heard others use curse words in the security offices in her time
there from 2011 to 2015. (Tr. 535.) Stated differently, Boguille
was not offended at all by May’s use of profanities in the security
office on June 19 but Boguille was upset that May was speaking
loudly when she negatively criticized management for her un-
paid wages. (Tr. 534–536.)
Boguille also admitted being inconvenienced by May’s June
19 Incident in her shortening her call with a guest, having to
write a statement about the June 19 Incident, and the incident
causing her “to get up and deal w/[it] completely.” (Tr. 532-–
33.)
Officer Rankin admitted that Manager Romo also used pro-
fanities in the security office in June 2015 just before a daily
briefing in front of other managers, supervisors, and other secu-
rity officers. (Tr. 456–458.) In addition, Officer Rankin has
heard Manager Romo use words like “Son of a bitch” and “You
guys get your asses in the briefing office.” Id.
New Security Human Resources Manager Brian Parker (Par-
ker) also testified that he could hear May’s conversation with
Officer Rankin in the employee hallway off limits to guests and
customers and outside of the closed double-doors leading into
the security office suite. (Tr. 504, 509, 513; R. Exh. 6.)
Parker was newly transferred to HR in June 2015 by Respond-
ent to be responsible for overseeing disciplines, suspensions, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
investigations in the Security Department. (Tr. 503.) As a result,
then-Security Department Director Karen Hughes (Hughes)
asked Parker to investigate May's June 19 Incident. (Tr. 504.)
Parker investigated the incident by speaking with Nicole, re-
viewing all of the transactions, and seeking statements from wit-
nesses. (Tr. 393, 395; GC Exhs. 28 and 31.) Parker also over-
heard the June 19 Incident but being new to the department, Par-
ker was unaware of the common profane language use in the de-
partment.
On June 22, 2015, Parker specifically spoke with May about
the June 19 Incident and informed her that she was being sus-
pended pending investigation. (Tr. 396, 505; GC Exh. 29.) After
a five (5) day suspension without pay, May was brought back to
work on June 26, 2015. (Tr. 399, 403–404.) May's discipline also
included a second written warning for inappropriate conduct in
violation of Respondent’s Code of Conduct. (Tr. 405; GC Exh.
30.)
May’s missing OT/DT pay owed to May from the last week
of May 2015, were finally paid to May’s bank account directly
later on June 19, 2015, after the June 19 Incident. (Tr. 418–419;
GC Exh. 31.)
Analysis
I. CREDIBILITY
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’ de-
meanor, the weight of the respective evidence, established or ad-
mitted facts, inherent probabilities and reasonable inferences that
may be drawn from the record as a whole. Double D Construc-
tion Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335
NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516
(D.C. Cir. 2003). Credibility findings need not be all-or-nothing
propositions—indeed, nothing is more common in all kinds of
judicial decisions than to believe some, but not all, of a witness’
testimony. Daikichi Sushi, 335 NLRB at 622.
I found Kastroll to be evasive and not credible when she could
not recall her almost 3 minute talk to Officer Moreno when in-
terviewed by Tourek and Prescott with Blair on February 5, just
3 days after the February 2 incident. Kastroll’s almost 3 minute
length talk to Officer Moreno was a much longer conversation
than the simple 10–30 seconds passing talks Kastroll admitted
she had about 40 times in January and February 2015, none of
which lead to any discipline to Kastroll. (Tr. 37–38. 100–101.)
Also Kastroll was not believable that she did not observe any
hotel guests or managers around Officer Moreno and her the en-
tire 3 minutes she spoke to him. In addition, Kastroll’s February
5 written statement describing the February 2 Incident (GC Exh.
3) is inaccurate, not credible, and rejected as a fabrication of facts
in contrast to the overwhelming evidence of the February 2 inci-
dent.
I reject Officer Rankin’s testimony in Kastroll’s written warn-
ing case that while working at Priority One Post, he's talked to
other employees "all day long" as a gross exaggeration, that the
6 Another example of Officer Rankin’s exaggerated estimate of pass-
ing time is his statement that a typical traffic light lasts 3 minutes before
it changes. Tr. 463. I take administrative notice that a typical traffic light
conversations can last several minutes, and that he's never been
called into an investigatory interview to discuss his conversa-
tions with other employees on the main casino floor.6 (Tr. 443-
446). This is inconsistent with Officer Rankin receiving a verbal
warning for having such conversations while on duty at Priority
One Post. (Tr. 445–446.) In addition, Officer Rankin admitted
that he never actually timed any of his conversations with
coworkers while at Priority One Post. (Tr. 463.) I also reject his
further testimony that the conversations at Priority One Post can
last several minutes because Officer Rankin is a poor estimator
of time and some of them pertain to work. (Tr. 444.)
Officer Rankin also testified soon thereafter, however, that he
was actually disciplined once previously for talking to another
Respondent employee at Priority One Post. (Tr. 445.) Officer
Rankin further admitted that he received a verbal warning from
a supervisor to keep his conversation short or not talk so long at
Priority One Post. (Id.) I find that Officer Rankin’s experiences
are distinguishable from the February 2 incident at issue here as
they involve situations either away from Priority One Post, in-
volve situations where the foot traffic from Respondent’s guests
and others at Priority One Post is lesser, the timing is not during
Super Bowl weekend from 4–6 p.m., and the fact that Officer
Rankin was verbally disciplined on at least one occasion is con-
sistent and not disparate with Respondent’s discipline of Kastroll
here for her almost 3 minute talk to Officer Moreno.
I also reject portions of Officer Rankin’s testimony concern-
ing the May June 19 Incident where he denies using as many
profanities as other witnesses attribute to him, he denies that use
of profanities is commonplace in the security offices, and esti-
mates that his conversation with May at the copier on June 19,
2015, lasted from 10–15 minutes. (See Tr. 453, 456–459.) As
stated above, Officer Rankin does not estimate the passage of
time very accurately and over-estimates the amount of time hav-
ing passed. He has also been disciplined before for talking about
pornography with another security officer in front of a guest
while at Respondent and his testimony about the common use of
profanities at work by managers in the security offices is incon-
sistent with May’s and Boguille’s more believable testimony.
(See Tr. 471–472.) Moreover, Officer Rankin admitted that
Manager Romo uses profanities in the security office in June
2015 just before a daily briefing in front of other managers, su-
pervisors, and other security officers. (Tr. 456–458.) In addition,
Officer Rankin has heard Manager Romo use words like “Son of
a bitch” and “You guys get your asses in the briefing office.”
(Id.)
Tourek testified in a believable straightforward manner with-
out hesitation. Since Respondent’s president Wooden authorized
Tourek to investigate Kastroll’s Feb. 2 Incident, he is an agent of
Respondent under Section 2(13) of the Act. His explanations
concerning his frequent involvement in Respondent employee
investigations and why Kastroll’s February 2 incident came to
his attention rather than directly to Kastroll’s immediate super-
visor is reasonable due to the fact that the matter involved 2 dif-
ferent departments—the unionized TGD’s department where
changes in a much shorter time frame of no more than 30 seconds to 1
minute.
WYNN LAS VEGAS, LLC 19
Kastroll works and the nonunionized security guards department
where Officer Moreno works. Tourek also appeared credible
when he described asking Kastroll at their February 5, 2015
meeting with Union steward Blair and Prescott if Kastroll be-
lieved her February 2 conversation at Priority One Post kept the
security officer from doing his job and Tourek informed Kastroll
that a hotel guest had to ask another nearby security officer a
question because of her conversation with the security officer.
May testified in a direct and forthright manner and her testi-
mony did not waver on cross-examination. For example, May’s
testimony was more believable that she tried a multitude of ways
to correct her unpaid wage problem with no positive results prior
to her June 19 frustrated outburst in the security office while her
managers were in a closed door meeting and most other employ-
ees were at out at lunch.
II. RESPONDENT LAWFULLY ISSUED KASTROLL A WRITTEN
WARNING IN RESPONSE TO HER ALMOST 3 MINUTE SOLICITATION
TALK TO AN ON DUTY SECURITY GUARD AT PRIORITY ONE POST IN
VIOLATION OF RESPONDENT’S SOLICITATION POLICY
Paragraphs 5(c), 5(d), 6(a)-6(c), 8, and 9 of the complaint al-
lege that on February 12, 2015, Respondent acted unlawfully in
violation of Section 8(a)(1) and Section 8(a)(3) and (1) of the
Act when Respondent selectively and disparately enforced its
Solicitation policy rule against union employee Kastroll and is-
sued her a written warning because Kastroll assisted the Union
and engaged in concerted activities and to discourage employees
from engaging in these activities.
A. The February 2 Incident Involves Kastroll’s Prohibited Un-
ion Solicitation and Not Merely Prounion Talk
Respondent’s Solicitation policy, among other things, pro-
vides that “[a]ll other solicitation by employees is prohibited in
work areas during the work time of the employee initiating the
solicitation or the employee being solicited . . .” and “[s]olicita-
tion is oral communication asking or seeking a person to take
some action, such as buying a product or service, contributing to
a charity, or joining an organization . . .” (GC Exh. 2.)
The General Counsel does not allege that Respondent’s Solic-
itation policy, revised as of May 13, 2014 (GC Exh. 2), is unlaw-
ful but that it was enforced against Kastroll in an unlawful and
discriminatory manner. I find that the General Counsel’s argu-
ment lacks merit that Kastroll’s almost 3 minute talk to on-duty
Officer Moreno when he was stationed at Respondent’s work
area known as Priority One Post, to urge, allure, entice, and re-
quest that he vote in favor of the SPFPA union in an upcoming
election is merely protected “pro-union talk” and somehow not
“union solicitation.” (See GC Br. at 40–41.)
With limited exceptions not applicable here, employees have
the protected right under Section 7 of the Act to solicit and dis-
tribute literature to fellow employees on behalf of unions or other
common interests dealing with wages, hours, and terms and con-
ditions of employment, so long as the solicitation is during non-
work time and the distribution is not in work areas. Republic Avi-
ation Corp. v. NLRB, 324 U.S. 793, 802–805 (1945); and
Stoddard Quirk Mfg. Co., 138 NLRB 615, 621 (1962). This in-
cludes the right to “engage in persistent union solicitation even
when it annoys or disturbs the employees who are being
solicited.” Ryder Truck Rental, 341 NLRB 761 (2004), enfd. 401
F.3d 815 (7th Cir. 2005).
The Board has, consequently, held that, “an employer may not
generally prohibit union solicitation ... during nonworking times
or in nonworking areas.” Restaurant Corp. of America v. NLRB,
827 F.2d 799, 806 (D.C. Cir. 1987). Although employers can
generally ban solicitation in working areas during working time,
such bans cannot extend to working areas during nonworking
time. Food Services of America, Inc., 360 NLRB 1012, 1018
(2014).
As stated above, the General Counsel does not challenge Re-
spondent’s Solicitation policy here, and argues only that Kastroll
did not solicit Officer Moreno but, instead, engaged in pro-union
work talk the same as she regularly does without discipline in the
course of her time at Respondent.
The General Counsel cites to the Board’s Conagra Foods, Inc.
decision, 361 NLRB 944, 945 (2014, enfd. in part, ___ F.3d. ___
, 2016 WL 682979 (8th Cir. 2016), in support of her argument
that the Board has consistently held that solicitation for a union
usually means asking someone to join the union by signing his
name to an authorization card at that time. The General Counsel
then adds that “the Board has explained that drawing the solici-
tation line at the presentation of a card for signature makes sense
because it is that act which prompts an immediate response from
the individual or individuals being solicited and therefore pre-
sents a greater potential for interference with employer produc-
tivity if employees are supposed to be working. (internal quota-
tions omitted and citations omitted)” Id.
The facts in Conagra Foods, Inc. are distinguishable from the
facts here as the interaction at issue in Conagra Foods, Inc.
lasted no more than a few seconds while the disruptive solicita-
tion here lasted almost 3 minutes and interrupted Respondent’s
business operations including its ability to guard its casino
against cheaters and assist its guests with directions at its busiest
casino/hotel location.
I find that the General Counsel’s citing Conagra Foods, Inc.
in support of her position in this case is too limited in her focus
on the lack of authorization cards in this case. Rather, the key
language from the Board in Conagra Foods, Inc. is the balancing
between an individual or individuals being solicited and the po-
tential for interference with employer productivity if employees
are supposed to be working. Here, I find that if you “solicit” an
on-duty security guard to vote for the union nonstop for just un-
der 3 minutes while that person is working at a casino/hotel em-
ployer’s busiest duty station for a security guard, you have a dis-
ruptive solicitation for a union that can be regulated by an em-
ployer. (See R. Br. at 22–23 and citations therein.)
Moreover, the Webster’s Dictionary defines “solicitation” as:
“the act of soliciting; entreaty, urging, or importunity; a petition
or request; enticement or allurement.” I am unaware of any
Board case authority that limits “solicitation for a union,” for the
purposes of disciplinary action, to only attempts to secure the
signing of a union card. The whole point of such rules is that
these activities are a distraction or interruption of productive
work, which the employer has a right to limit, so whether the
solicitation involves the passing out of a card, or literature, or
lengthy verbal enticement, it is still a solicitation.
The 3 minute talk in this case is to be distinguished from a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
short, casual prounion talk conversation that Kastroll and the
General Counsel attempt to paint her almost 3 minute talk on
February 2, 2015, to on-duty Officer Moreno at his on-duty sta-
tion known as Priority One Post where the video evidence shows
that Kastroll distracted Officer Moreno from performing his du-
ties for just shy of 3 minutes. This 3-minute talk is certainly not
the quick 10 second nonwork related (“what did you think of the
game last night?” or even “go, union”) said while passing by,
which is not intrusive or distracting or solicitation. Kastroll’s 177
second (almost 3 minutes) solicitation for a union to Officer
Moreno, at Respondent’s busiest (Priority One Post) work duty
location, while Officer Moreno is supposed to be on alert to catch
casino cheaters while proactively providing directions and cus-
tomer service to Respondent’s guests and caught on regular ca-
sino video is also “solicitation for a union” in every common
sense of the words.
In sum, the General Counsel’s position characterizing
Kastroll’s February 2 incident the same as talks during a dead
poker game table on the casino floor or as a brief offhand com-
ment at Priority One Post is unsupported by Board precedent—
or a common understanding of the English language. Officer
Browning assists a Respondent hotel guest while Kastroll dis-
rupts Officer Moreno and interferes with Respondent’s business
operations and soon after Kastroll leaves, Officer Moreno is seen
on video assisting another Respondent hotel guest. While draw-
ing a line somewhere between 10 seconds and almost 3 minutes
would seem appropriate in deciding when a lengthy interference
changes from nonsolicitation to solicitation that can be prohib-
ited, I find that the line is drawn well before almost 3 minutes
when the talk occurs at Priority One Post.
Consequently, I find that Kastroll’s almost 3-minute talk to
Officer Moreno on February 2, 2015, while he was on-duty at
Respondent’s Priority One Post was prohibited solicitation for a
union and not merely prounion work talk. As such, I further find
that Kastroll’s February 2 2015 union solicitation talk to Officer
Moreno while he was on duty is not protected under Section 7
because it interfered with Officer Moreno’s job duties and Re-
spondent’s business operations at Priority One Post and is sub-
ject to Respondent’s prohibition based on the facts of this case.
Respondent made a justifiable showing with its surveillance
video that Kastroll’s almost 3-minute talk to Officer Moreno
while he was on-duty at Priority One Post interfered with Officer
Moreno’s work and casino operations. Kastroll’s warning was,
accordingly, lawful under Section 8(a)(1) of the Act.
B. Kastroll’s February 12, 2015 Written Warning Is Justified
and Not Discriminatory
As stated above, Kastroll’s February 2, 2015 union solicita-
tion talk to Officer Moreno while he was on duty is not protected
under Section 7 because it is subject to Respondent’s Solicitation
policy prohibition based on the facts of this case. Alternatively,
if the February 2 incident involved protected concerted activity,
a Wright Line analysis is appropriate to determine whether the
General Counsel has proven Respondent’s discriminatory moti-
vation in disciplining Kastroll on February 12, 2015.
The Supreme Court-approved analysis in 8(a)(1) and (3) cases
turning on employer motivation was established in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 395 (1983) (approving Wright
Line analysis). Under the Wright Line framework, as subse-
quently developed by the Board, the elements required in order
for the General Counsel to satisfy its burden to show that an em-
ployee’s protected activity was a motivating factor in an em-
ployer’s adverse action, “are union or protected concerted activ-
ity, employer knowledge of that activity, and union animus on
the part of the employer.” Adams & Associates, Inc., 363 NLRB
No. 193, slip op. at 6 (2016); Libertyville Toyota, 360 NLRB
1298, 1301 (2014); enfd. 801 F.3d 767 (7th Cir. 2015). Such
showing proves a violation of the Act subject to the following
affirmative defense: the employer, even if it fails to meet or neu-
tralize the General Counsel's showing, can avoid the finding that
it violated the Act by “demonstrat[ing] that the same action
would have taken place in the absence of the protected conduct.”
Wright Line, supra at 1089.
In this case, I find that all of the elements of Wright Line, su-
pra, are not met here. Even if Kastroll’s behavior in the February
2 incident is considered protected concerted activity, there is no
evidence Respondent exhibited antiunion animus or that Kastroll
was discriminatorily targeted by Respondent. Instead, it was Of-
ficer Browning, a nonsupervisory security guard and nonagent
of Respondent who simply disliked the union and complained
about his observing Kastroll’s conduct that triggered Respond-
ent’s investigation of the February 2 incident.
Even if Officer Browning espoused antiunion animus, this
cannot be imputed to Respondent in the instant case. Kastroll
testified that she freely solicited union members while on-duty
at her quiet card table outside the Priority One Post without being
disciplined or briefly recommending a union vote while going on
break in other work areas. No disparate treatment by Respondent
has been shown by the General Counsel as no credible evidence
has been provided that union solicitation conversations in the
Priority One Post lasting as long as just under 3 minutes are al-
lowed to occur without any discipline being issued. The video in
this case shows that during Kastroll’s almost 3-minute talk to
Officer Moreno, he was distracted by Kastroll and his work in-
terrupted so he could not complete his regular work duties in a
competent manner.
I further find that Respondent properly investigated Officer
Browning’s complaint against Kastroll’s February 2 incident by
interviewing Officers Browning and Moreno and later Kastroll.
They returned to obtain written statements from Officers Moreno
and Browning. I do not find any of Tourek’s or Prescott’s ques-
tions as part of the investigation inappropriate. Inquiring about
the subject matter of the 3-minute talk is appropriate to deter-
mine as Tourek said whether the conversation involved job-re-
lated customer service or casino security or prohibited union so-
licitation. I also find it reasonable that Tourek would be on higher
alert around the time of a union election as that is the expected
time period when improper union solicitation is most likely to
occur in working areas while employees are on-duty.
In addition, I further find that Respondent disciplines its em-
ployees for personal conversations—regardless of content—
when such conversations distract other employees from perform-
ing their job duties or interfere with guest services and when such
conduct is brought to Respondent's attention, as done here. (See.
WYNN LAS VEGAS, LLC 21
e.g., Tr. 611–612; R. Exhs. 13–14.) Also, Respondent has previ-
ously disciplined employees for such things as: speaking to
coworkers instead of serving guests; ignoring security post du-
ties while talking with another employee; ignoring the supervi-
sion of games due to conversations with another employee; en-
gaging in a personal conversation about 1970s and 1980s por-
nography stars in the presence of a guest or customer; failing to
greet a guest because the employee was engaged in a conversa-
tion with a coworker; failing to serve guests due to conversations
with a coworker; and neglecting duties while engaged in per-
sonal conversations with coworkers (R. Exh. 14 at 2–3, 5–8, 12,
and 14.)
Like Respondent’s discipline of Kastroll for her almost 3 mi-
nute talk to Officer Moreno which I find interfered with his abil-
ity to help and direct Respondent’s guests while at Priority One
Post, these other discipline examples similarly show that Kastroll
was not targeted or discriminated against due to her union solic-
itation but, like Respondent’s employees in the above examples,
Kastroll was disciplined because she distracted Officer Moreno
for almost 3 minutes and interfered with his duties to help and
direct Respondent’s guests and monitor the casino area in Prior-
ity One Post.
As a consequence, I further find that Respondent has met its
burden under Wright Line of demonstrating that it would have
taken the same action against Kastroll in the absence of union
activity. As stated above, if Kastroll had, instead, attempted to
solicit a charity donation from Officer Moreno for almost 3
minutes, she would have received the same written warning as
she did on February 12, 2015.
Accordingly, I find that the General Counsel has not proven
that Respondent violated Section 8(a)(3) and (1) of the Act when
it issued a written warning against Kastroll on February 12,
2015.
III. RESPONDENT, THROUGH OFFICER BROWNING, DID NOT
UNLAWFULLY ENGAGE IN SURVEILLANCE OF EMPLOYEES TO
DISCOVER THEIR UNION ACTIVITIES
Paragraphs 5(e) and 8 of the complaint allege that on February
2, 2015, Respondent, by Joshua Browning, at Respondent’s fa-
cility, by standing beside employees and eavesdropping on their
conversation, engaged in surveillance of employees to discover
their Union activities in violation of Section 8(a)(1)of the Act.
The General Counsel argues that Officer Browning is an agent
of Respondent under Section 2(13) of the Act. There was no ev-
idence provided by the General Counsel that satisfies its burden
to prove that Officer Browning is Respondent’s agent for sur-
veillance purposes. In fact, the General Counsel did not call Of-
ficer Browning as a witness to support her allegations and did
not show him to be unavailable and I draw an adverse inference
that he would have testified against being Respondent’s agent
and also against unlawfully engaging in surveillance of Kastroll
for Respondent on February 2, 2015. See Int’l Automated Ma-
chines, 285 NLRB 1122, 1123 (1987) (When a party fails to call
a witness who may reasonably be assumed to be favorably dis-
posed to the party, an adverse inference may be drawn regarding
any factual question on which the witness is likely to have
knowledge).
“The Board considers the position of the employee in addition
to the context in which the behavior occurred” to determine
whether the alleged agent had the apparent authority to make the
act in question. Pessoa Construction Co., 356 NLRB 1253, 1255
(2011) (quoting Pan -Oston, 336 NLRB 305 (2001)). Here, the
alleged conduct occurred when Officer Browning was acting as
a non-supervisory fellow security officer on February 2, 2015,
and stood close enough to Officer Moreno to eavesdrop on
Kastroll’s almost 3-minute talk to Officer Moreno to determine
what was said. There is no evidence that Officer Browning, in
his position as security officer on February 2, was acting for Re-
spondent and authorized to represent Respondent in interactions
between a card dealer on break (Kastroll) and another security
officer (Officer Moreno) on behalf of Respondent. Like Officer
Moreno, Officer Browning was not a supervisor or agent of Re-
spondent and he too was eligible to vote in the upcoming SPFPA
union election.
Under these circumstances, I find that as of February 2, 2015,
neither Kastroll nor Officer Moreno could reasonably perceive
that Officer Browning was an agent of management and Officer
Browning’s antiunion animus, if any, cannot be imputed to Re-
spondent in this case. Officer Browning simply complained to
management about the February 2 incident and he did not sup-
port the Union. As a result, I further find that on February 2,
2015, despite Officer Browning, at Respondent’s facility, stand-
ing beside employees and eavesdropping on their conversation,
Respondent did not engage in surveillance of employees to dis-
cover their union activities in violation of Section 8(a)(1)of the
Act.
IV. RESPONDENT DID NOT UNLAWFULLY INTERROGATE KASTROLL,
OFFICER BROWNING OR MARENO
The complaint also alleges incidents of interrogation (com-
plaint paragraphs 5(f)(1)) occurring from February 2 and 12,
wherein Prescott alone or with Tourek interrogated Officers
Browning and Moreno about the February 2 incident and also
interrogated Kastroll about the same incident on February 5,
2015. (Tr. 312, 317–318; GC Exh. 1(o).) On brief (GC Br. at 41–
44), the General Counsel argues that Kastroll, Officer Browning,
and Officer Moreno were unlawfully interrogated during their
February 3 through February 9, 2015 meetings with Prescott
alone or with Prescott and Tourek when they were all asked
about the February 2 incident as part of Respondent’s investiga-
tion in response to Officer Browning’s complaint to manage-
ment.
It is well established that not every interrogation is unlawful
under the Act. Whether the questioning of an employee consti-
tutes an unlawful coercive interrogation must be considered un-
der all the circumstances and there are no particular factors "to
be mechanically applied in each case." Rossmore House, 269
NLRB 1176, 1178 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985);
Westwood Health Care Center, 330 NLRB 935, 939 (2000).
While the Board has identified a number of factors that are “use-
ful indicia” in determining whether the questioning of an em-
ployee constitutes an unlawful interrogation, the Board has ex-
plained that "[i]n the final analysis, our task is to determine
whether under all the circumstances the questioning at issue
would reasonably tend to coerce the employee at whom it is di-
rected so that he or she would feel restrained from exercising
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
rights protected by Section 7 of the Act." Westwood, supra at
940; Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
The Board has recognized that employers have a legitimate
business interest in investigating facially valid complaints of em-
ployee misconduct. See Fresenius USA Mfg., Inc., 362 NLRB
1065, 1065 (2015) (discussing an investigation of alleged em-
ployee harassment); Bridgestone Firestone South Carolina, 350
NLRB 526, 528 (2007) (interrogation of employee was lawful
where it occurred as part of a legitimate investigation into
whether the employee engaged in misconduct); and Consoli-
dated Diesel Co., 332 NLRB 1019, 1020 (2000) (noting that the
employer’s initial investigation of harassment charges was per-
missible).
That basic premise is understandable, since the alleged em-
ployee misconduct may not implicate the employee’s Section 7
rights. Moreover, even if the alleged misconduct does relate to
the accused employee’s Section 7 rights, Board law establishes
that an employer nonetheless may discipline or discharge an em-
ployee if the employee engages in conduct that could have qual-
ified as protected activity, but involved misconduct that was suf-
ficiently egregious to remove the employee’s activities from the
Act’s protection. See Stanford Hotel, 344 NLRB 558 (2005) (cit-
ing Atlantic Steel Co., 245 NLRB 814, 816 (1979)).
In light of those possibilities, it makes sense to afford employ-
ers some leeway to conduct an initial investigation and make an
informed decision about whether the employee’s alleged mis-
conduct warrants disciplinary or other action, taking into account
the employee’s right to engage in Section 7 activity and other
factors. On the other hand, the employer’s right to investigate is
not unlimited. Where it is apparent from an initial investigation
that the employee engaged in activity that is protected by the Act,
the employer may not disregard that fact and forge ahead with
the investigation as a precursor to possible discipline. See Con-
solidated Diesel Co., 350 NLRB at 1020 (finding that an em-
ployer’s initial investigation of alleged employee misconduct
while distributing union literature was permissible, but once that
initial investigation showed that the alleged misconduct was pro-
tected by the Act, it was unlawful for the employer to continue
the investigation before a committee that had the power to im-
pose discipline).
Respondent claims that the questioning of Kastroll, Officer
Browning, and Officer Moreno was warranted because
Kastroll’s unprotected almost 3-minute talk to Officer Moreno
was prohibited by Respondent’s Solicitation policy and
Kastroll’s conduct interfered with Officer Moreno’s job duties. I
find that this rule is lawful, as maintained, applied, and enforced
in this instance. Indeed, that is not seriously contested. Here, Re-
spondent’s questioning of Kastroll, Officer Browning, and Of-
ficer Moreno was justified as part of Respondent’s investigation
to determine whether Kastroll had a legitimate work-related rea-
son to interfere with Officer Moreno’s job duties for almost 3
minutes or whether Kastroll violated Respondent’s lawful Solic-
itation policy.
The questioning took place at the HR office with Prescott and
Tourek asking the questions because 2 different departments
were involved in the Feb. 2 Incident and Prescott and Tourek
frequently were asked to investigate these types of matters.
Kastroll was allowed her union representative Blair for the
February 5, 2015 meeting. Prescott and Tourek asked Kastroll
general questions about the February 2 incident as no reasonable
employee would deny specific knowledge and memory of an al-
most 3-minute talk to Officer Moreno that occurred just 3 days
before at the end of Kastroll’s work shift. They were merely test-
ing Kastroll’s ability to tell the truth about the February 2 inci-
dent and she, instead, falsely stated that she did not recall the
almost 3-minute talk and tried to brush it off as a mere 3–10 sec-
ond prounion talk. All of the meetings were justified given all
activities that go on at Priority One Post and given the large vol-
ume of traffic at the casino’s busiest location—Priority One Post,
which overlooks the casino floor where large sums of money are
present for use by customers and many guests travel in need of
direction or answers from security officers. Thus, the “justifica-
tion” for the questioning was to determine the subject matter of
the February 2 talk and whether or not Kastroll interfered with
Officer Moreno’s job duties in violation of Respondent’s Solici-
tation policy.
After Prescott and Tourek met with Kastroll and Blair and saw
that Kastroll was not willingly accepting the consequences for
her actions in the February 2 incident, it was reasonable that
Prescott would call Officer Browning in again on February 6 to
have him create and sign a written statement about the February
2 incident. Officer Moreno did the same thing by writing his own
statement about the February 2 incident. Because of the Priority
One Post location and the common presence of surveillance
tapes at this busy location to monitor activities, Respondent rea-
sonably anticipated that anyone who interrupts a security officer
at this location for almost 3 minutes as Kastroll did, should be
investigated and should receive discipline if the talk was not
work-related. After Officer Browning complained to manage-
ment and brought the February 2 incident to their attention, the
investigation followed, including a review of a common surveil-
lance video, and minor discipline—a written warning against
Kastroll.
Under the circumstances of this case where Kastroll’s unpro-
tected talk to Officer Moreno lasted almost 3 minutes when he
was on duty at Priority One Post, I find that the questioning of
Kastroll, Officer Moreno, and Officer Browning in response to
Officer Browning’s complaint to management of the February 2
incident, a complaint confirmed by Respondent’s surveillance
tape, was not coercive or unlawful but was a proper response to
the February 2 incident. Thus, based on the guidance drawn
from the Board’s case law, I find that Respondent did not unlaw-
fully interrogate its employees or violate the Act when it inter-
viewed Kastroll, Officer Browning, or Officer Moreno about the
Feb. 2 Incident. The questioning of Kastroll, Officer Browning,
and Officer Moreno was reasonably justified and did not violate
Section 8(a)(1) of the Act.
V. NO UNLAWFUL ORAL RULE PROMULGATION OR THREAT TO
EMPLOYEES TO NOT PROMOTE THE UNION WHILE ON DUTY AT
RESPONDENT
Paragraphs 5(g)(1) and 8 of the complaint allege that on Feb-
ruary 5, 2015, Respondent, by its in-house counsel Tourek at Re-
spondent’s facility (1) orally promulgated a discriminatory di-
rective that its employees could not promote the Union while
they were on duty; and (2) threatened its employees with
WYNN LAS VEGAS, LLC 23
unspecified reprisals because they engaged in union and other
concerted activities in violation of Section 8(a)(1) of the Act.
A. Tourek Did Not Orally Promulgate a Discriminatory Di-
rective that Respondent’s Employees Could not Promote the
Union While They Were on Duty
The General Counsel argues that Respondent, by its in-house
counsel Tourek at Respondent’s facility, orally promulgated a
discriminatory directive that its employees could not promote the
Union while they were on duty in violation of Section 8(a)(1) of
the Act. With this allegation, the General Counsel confuses pro-
union talk “on the gaming floor” from an almost 3 minute solic-
itation of the union to an on duty security officer at Priority One
Post.
At their February 5 meeting, Tourek was explaining Respond-
ent’s solicitation policy to Kastroll and Blair and acknowledged
that prounion conversations on the casino gaming floor have
been allowed to occur without discipline as there is no real inter-
ference with Respondent’s business operations when this occurs
unless an on duty employee is distracted from performing their
job duties, a guest complains or the prounion talk contains un-
protected matters as well. The February 2 incident is different
from this prounion talk on the gaming floor during a dead game
or a brief 10 second “vote for the union” utterance.
Tourek also explained to Kastroll and Blair that Respondent’s
solicitation policy applies to on duty employees and in this in-
stance, to the February 2 incident where Officer Moreno was dis-
tracted by Kastroll’s almost 3-minute solicitation of the union
and Officer Moreno was unable to assist Respondent’s guests
and customers. As stated above, I further find that Respondent
disciplines employees for personal conversations—regardless of
content—when such conversations distract other employees
from performing their job duties or interfere with guest services
and when such conduct is brought to Respondent's attention.
(See. e.g., Tr. 611–612; R. Exhs. 13–14.) As a result, I find that
Respondent, by its in-house counsel Tourek at Respondent’s fa-
cility, did not orally promulgate a discriminatory directive that
its employees could not promote the Union while they were on
duty in violation of Section 8(a)(1) of the Act.
B. Tourek Did Not Threaten Respondent’s Employees with Un-
specified Threat of Reprisals Because They Engaged in Union
and Other Concerted Activities
An employer violates Section 8(a)(1) if it communicates to
employees that they will jeopardize their job security, wages, or
other working conditions if they support the union. Metro One
Loss Prevention Services, 356 NLRB 89, 89 (2010). In addition,
the Board has found that “be careful” warnings to an employee
convey the threatening message that union activities would place
an employee in jeopardy. Gaetano & Associates Inc., 344 NLRB
531, 534 (2005) (finding that telling an employee to “be careful”
was an unlawful threat). See also, e.g., St. Francis Medical Cen-
ter, 340 NLRB 1370, 1383–1384 (2003) (“be careful” statement
by supervisor in context of union activity held unlawful); Jordan
Marsh Stores Corp., 317 NLRB 460, 462 (1995) (supervisor’s
statements such as “watch out” are unlawful implied threats).
Further, the Board in Hall Construction adopted a finding of
an unlawful threat of blacklisting where employees were told
that unionizing would mean “all of us guys would be blackballed
from any work in the [the respective employers’ field]. . . .” Fla-
mingo Hilton-Laughlin, 324 NLRB 72, 116 (1997). As stated
above, Tourek, as Respondent’s agent, gave Kastroll an expla-
nation of Respondent’s Solicitation policy and differentiated al-
lowed and protected pro-union talk on the casino floor where
Kastroll works when there is a dead table or brief pro-union ut-
terances from unprotected almost 3 minute talks at the Priority
One Post that interfere with on duty security officer’s job duties.
Under the totality of circumstances here, Tourek’s statements to
Kastroll and Blair at the February 5, 2015 investigatory meeting
were not unlawful threats but, instead, notice to Kastroll that she
would receive some discipline from her unprotected activities on
February 2, 2015, in connection with her almost 3 minute talk to
Officer Moreno which interfered with his duties while he was on
duty at Priority One Post. As a result, I find that Respondent, by
its in-house counsel Tourek at Respondent’s facility, did not
threaten its employees with unspecified reprisals because they
engaged in union and other concerted activities in violation of
Section 8(a)(1) of the Act.
VI. NO UNLAWFUL IMPRESSION OF SURVEILLANCE OF KASTROLL
Paragraph 5(f)(2) of the complaint alleges that on or about
February 5, 2015, Respondent through Prescott and Tourek, by
asking Kastroll if she remembered talking to a security officer
about the importance of unionization, created an impression
among its employees that their union activities were under sur-
veillance in violation of Section 8(a)(1) of the Act. (GC Exh.
1(o).)
The test for determining whether an employer has created an
impression that its employees’ protected activities have been
placed under surveillance is “whether the employees would rea-
sonably assume from the employer’s statements or conduct that
their protected activities had been placed under surveillance.”
Greater Omaha Packing Co., Inc., 360 NLRB 493, 495 (2014);
Rood Industries, 278 NLRB 160, 164 (1986). When an employer
tells employees that it is aware of their protected activities, but
fails to tell them the source of that information, it violates Sec-
tion 8(a)(1) “because employees are left to speculate as to how
the employer obtained the information, causing them reasonably
to conclude the information was obtained through employer
monitoring.” (Id.)
In determining whether an employer has unlawfully created
the impression of surveillance of employees’ union activities, the
test is whether under all the relevant circumstances, reasonable
employees would assume from the statement in question that
their union or other protected activities had been placed under
surveillance. Frontier Telephone of Rochester, Inc., 344 NLRB
1270, 1276 (2005). The essential focus has always been on the
reasonableness of the employees’ assumption that the employer
was monitoring their union or protected activities. Id. As with all
conduct alleged to violate Section 8(a)(1), the critical element of
reasonableness is analyzed under an objective standard. Id.
Here, Prescott and Tourek did not create the impression of
surveillance by asking Kastroll general questions about the Feb-
ruary 2 incident as no reasonable employee would deny specific
knowledge and memory of an almost 3-minute talk to Officer
Moreno that occurred just 3 days before at the end of Kastroll’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
work shift. They were merely testing Kastroll’s ability to tell the
truth about the February 2 incident and she, instead, falsely
stated that she did not recall the almost 3-minute talk and tried to
brush it off as a mere 3–10 second prounion talk. As a result, I
find that Respondent did not create an impression of surveillance
of union or concerted activities in violation of Section 8(a)(1) of
the Act as alleged in the complaint.
VII. MAY’S SUSPENSION AND WRITTEN WARNING IN RESPONSE TO
THE JUNE 19 INCIDENT
Respondent suspended May in response to the June 19 inci-
dent and issued her a second warning. The complaint alleges that
these actions violated Section 8(a)(1) of the Act.
A. May Was Unlawfully Suspended by Respondent in Violation
of Section 8(a)(1) of the Act for the June 19 Incident
Complaint paragraphs 7 and 8 allege that from on or about
June 19, 2015, Officer May engaged in protected concerted ac-
tivity when she complained to Officer Rankin regarding yet an-
other delay in payment of wages in the normal course of working
as a security officer at Respondent’s WDD Flex Building. Con-
certed activity includes not only activity that is engaged in with
or on the authority of other employees, but also activity where
individual employees seek to initiate or to induce or to prepare
for group action, as well as individual employees bringing truly
group complaints to the attention of management. Fresh & Easy
Neighborhood Market, 361 NLRB 151, 153 (2014).7 If the em-
ployee or employees who are acting in concert are seeking to
improve terms and conditions of employment, their actions are
for mutual aid and protection of all employees within the mean-
ing of Section 7. (Id., slip op. at 3, 5–6.)
Thus, on June 19 when Officers May and Rankin met during
their lunch breaks at the security office to discuss with manage-
ment the frequent problems experienced by all security officers
working at Respondent’s WDD Flex Building—unpaid wages—
they were acting in concert to try to improve their terms and con-
ditions of employment on behalf of themselves and other secu-
rity officer employees. Respondent has denied this and argues
that the employees were not engaged in activity protected by the
Act on June 19, 2015.
It is well established that wage discussions are “inherently
concerted.” Automatic Screw Products Co., 306 NLRB 1072,
1072 (1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992). I find that
Officer’ May’s comments on June 19 with Officer Rankin during
their lunch breaks, though containing profanities, were protected
conduct involving a group grievance from security officers
working at the WDD Flex Building regarding frequent under-
payments of wages and reporting to management that yet another
officer’s paycheck (May’s) was inaccurate, underpaid, and
needed correction.
The issue raised by Respondent is whether Officer May’s con-
duct by her adding profanities to the group grievance somehow
took the concerted activity outside the Act’s protection. I find
that May’s comments were not so egregious as to exceed the
7 See also Meyers Industries, 268 NLRB 493, 497 (1984), remanded
sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474
U.S. 971 (1985), supplemented Meyers Industries, 281 NLRB 882, 887
(1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
Act’s protection especially given the common usage of profani-
ties in the security department. I do not rely on the application of
the four-factor test in Atlantic Steel Co., 245 NLRB 814 (1979),
given that, here, the comments in question were made loudly to
other employees and overheard by others during a lunch hour
break for most employees and did not occur during direct com-
munications between an employee and a manager or supervisor
which would have brought in the 4-part criteria set forth in At-
lantic Steel Co., 245 NLRB 814 (1979). See generally Triple
Play Sports Bar & Grille, 361 NLRB 308, 310 (2014) (“as a gen-
eral matter, the Atlantic Steel framework is not well suited to ad-
dress issues . . . involving employees’ off-duty, offsite use of so-
cial media to communicate with other employees or with third
parties”). Rather, I find that May’s June 19 outburst did not lose
its protected character under the totality of the circumstances.
See, e.g., Richmond District Neighborhood Center, 361 NLRB
833, 834 fn. 6 (2014) (in the absence of exceptions, the Board,
without deciding the appropriateness of the judge’s test for ana-
lyzing private Facebook conversations, examined the egregious-
ness of the conduct under all the circumstances). See also Pier
Sixty, LLC, 362 NLRB 505, 506–507 (2015) (Same).
In evaluating Officer May’s June 19 Incident under the totality
of the circumstances, I consider the following factors: (1)
whether the record contained any evidence of the Respondent’s
antiunion hostility; (2) whether the Respondent provoked May’s
conduct; (3) whether Officer May’s conduct was impulsive or
deliberate; (4) the location of May’s June 19 outburst; (5) the
subject matter of the outburst; (6) the nature of the outburst; (7)
whether the Respondent considered language similar to that used
by Officer May to be offensive; (8) whether the employer main-
tained a specific rule prohibiting the language at issue; and (9)
whether the discipline imposed upon Officer May was typical of
that imposed for similar violations or disproportionate to her of-
fense. I find that an objective review of the evidence under the
foregoing factors establishes that an analysis of them weighs in
favor of not finding that May’s June 19 Incident comments were
so egregious as to take them outside the protection of the Act.
Two of the first three factors do not weigh in favor of finding
that Officer May’s June 19 comments lost the Act’s protection.
There is no evidence that the Respondent demonstrated its hos-
tility toward any employees’ union activity (the first factor). Of-
ficer May clearly found her managers’ disinterested and unsuc-
cessful efforts lacking to correct her unpaid May 2015 wages
from June 1 through 19 to the point that management provoked
Officer May’s frustrations to her impulsive comments on June
19 (the second and third factors), and Officer May’s comments
reflected her exasperated frustration and stress after months of
concertedly protesting disrespectful treatment by managers with
frequent examples of underpaid wages to security officers work-
ing at the WDD Flex Building—activity protected by the Act. I
find it egregious that Respondent’s arcane and unreliable time-
keeping system for its security officers stationed at its WDD Flex
Building go unchecked from 2014 and 2015 to culminate in
supplemented, Meyers Industries, 281 NLRB 882, 887 (1980), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988).
WYNN LAS VEGAS, LLC 25
Officer May’s June 19 Incident.
The location and subject matter of May’s June 19 incident
(factors four and five) also do not weigh in favor of finding that
Officer May’ comments lost the protection of the Act. She made
her comments while seemingly alone with Officer Rankin, on
lunchbreak, while her managers were in a closed-door meeting
and the security department was mostly empty due to lunch.
There is very little evidence that her comments interrupted the
Respondent’s work environment or its relationship with its cus-
tomers other than Boguille’s minor shortened telephone conver-
sation. Further, Officer May’s comments echoed previous com-
plaints about management’s lax timekeeping methods that fre-
quently underpaid its security officer employees at the WDD
Flex Building.
Regarding factors six and seven, the overwhelming evidence
establishes that, while distasteful, the Respondent tolerated the
widespread use of profanity in the workplace, including the
words “fucking ass,” “son of a bitch,” and “get your asses in the
briefing office.” Considered in this setting, Officer May’s re-
peated use of those words in her June 19 incident would not
cause her to lose the protection of the Act.
Also, evidence of the Respondent’s policies and practices re-
lating to the discipline of employees who use the type of lan-
guage that Officer May used in her June 19 incident (factors
eight and nine) does not persuade me that Officer May’s June 19
incident comments were unprotected. I further find that the Re-
spondent’s “Code of Personal Conduct” policy, which it cited as
the basis for suspending Officer May and issuing her a second
written warning, neither specifically prohibits vulgar or profane
language though it does say to avoid using “offensive language”
in the context of promoting and respecting diversity of Respond-
ent’s workforce by avoiding any form of discrimination or har-
assment. (GC Exh. 1(o) & (q): R. Exh12.) Respondent does not
allege that Officer May’s June 19 Incident was directed at any
protected classification listed in that policy or any member of
Respondent’s workforce. Further, prior to the June 19 Incident,
little evidence was produced at trial showing that Respondent is-
sued similar suspensions and written warnings to employees who
had used profane language under the same circumstances here
where the incident occurred outside the presence of Respond-
ent’s customer or guest areas during a lunchbreak where most
employees were absent, the incident did not occur between an
employee and their supervisor/manager, and profane language
was common in the area it was uttered by the disciplined em-
ployee. As a matter of fact, there was no evidence that Officer
Rankin was disciplined for his part of uttering similar profanities
on June 19, 2015.
Moreover, as found below, Respondent’s “inappropriate con-
duct” rule used to discipline May is overbroad in violation of the
Act. To defend a suspension and written warning based on a rule
that even “has a tendency to inhibit [protected] activity,” an em-
ployer must show “legitimate and substantial business justifica-
tion” for the rule. Jeanette Corp. v. NLRB, 532 F.2d 916, 918
(3rd Cir. 1976) (quoting NLRB v. Fleetwood Trailer Co., 389
U.S. 375, 378 (1967)). Respondent failed to make such a show-
ing here as to its Inappropriate Conduct Rule. In addition, Re-
spondent never alleged that May’s June 19 incident was the re-
sult of her failure to promote and respect the diversity of the
Respondent’s workforce and involved her discrimination or har-
assment, including the questioned degrading comments or offen-
sive language.
I further find that the particular facts and circumstances pre-
sented in this case weigh in favor of finding that Officer May’s
conduct did not lose the Act’s protection. Accordingly, I find that
the Respondent violated Section 8(a)(1) by unlawfully suspend-
ing Officer May for her protected concerted activity on June 19.
B. May’s Second Written Warning for the June 19 Incident
also Violated the Act Under Section 8(a)(1)
May’s second written warning for inappropriate conduct in vi-
olation of Respondent’s Code of Conduct also violated the Act.
(Tr. 405; GC Exh. 30.) The Board has held that discipline im-
posed pursuant to an unlawful rule is invalid under the following
circumstances:
Discipline imposed pursuant to an unlawfully overbroad rule
violates the Act in those situations in which an employee vio-
lated the rule by (1) engaging in protected conduct or (2) en-
gaging in conduct that otherwise implicates the concerns un-
derlying Section 7 of the Act. Nevertheless, an employer will
avoid liability for discipline imposed pursuant to an overbroad
rule if it can establish that the employee's conduct actually in-
terfered with the employee's own work or that of other employ-
ees or otherwise actually interfered with the employer's opera-
tions, and that the interference, rather than the violation of the
rule, was the reason for the discipline. It is the employer's bur-
den, not only to assert this affirmative defense, but also to es-
tablish that the employee's interference with production or op-
erations was the actual reason for the discipline. In this regard,
an employer's mere citation of the overbroad rule as the basis
for discipline will not suffice to meet its burden. Rather, assum-
ing that the employer provides the employee with a reason (ei-
ther written or oral) for its imposition of discipline, the em-
ployer must demonstrate that it cited the employee's interfer-
ence with production and not simply the violation of the over-
broad rule.
Continental Group, Inc., 357 NLRB 409, 412 (2011) (citations
omitted). See also Dish Network, LLC., 363 NLRB No. 141, slip
op. at 12–13 (March 3, 2016) (Same).
Officer May received discipline under Respondent’s unlawful
Inappropriate Conduct Rule for engaging in protected concerted
activity (i.e. complaining to other employees about manage-
ment’s continued inability over 2 weeks to timely pay her earned
wages and benefits). Respondent made no showing that Officer
May’s June 19 activities interfered with her own work, the work
of others, or the security department in any material way. Officer
May was disciplined specifically for violating Respondent’s
overbroad “inappropriate conduct” rule and not for insubordina-
tion or interference with Respondent’s production. Her second
written warning was also, accordingly, unlawful in violation of
Section 8(a)(1) of the Act.
VIII. THE CHALLENGED HANDBOOK RULES
As detailed below, the complaint alleges that various em-
ployer rules violate Section 8(a)(1) of the Act. The General
Counsel has the burden to prove that a rule or policy violates the
Act. In determining whether a work rule violates Section 8(a)(1),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
the appropriate inquiry is whether the rule would reasonably tend
to chill employees in the exercise of their Section 7 rights. Lafa-
yette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52
(D.C. Cir. 1999); Hills & Dales General Hospital, 360 NLRB
611, 615 (2014).
As the Board stated in its T-Mobile USA, Inc. decision, 363
NLRB No. 171, slip op. at 1–2 (April 29, 2016), applicable here
when analyzing an employer’s work rules handbook:
The consolidated complaint alleges that numerous provisions
in written work rules and policies applicable to the Respond-
ent’s employees are unlawful. An employer violates Section
8(a)(1) of the Act if it maintains workplace rules that would
reasonably tend to chill employees in the exercise of their Sec-
tion 7 rights. See Lafayette Park Hotel, 326 NLRB 824, 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The analytical
framework for assessing whether maintenance of rules violates
the Act is set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004). Under Lutheran Heritage, a work rule is
unlawful if “the rule explicitly restricts activities protected by
Section 7.” Id. at 646 (emphasis in original). If the work rule
does not explicitly restrict protected activities, it nonetheless
will violate Section 8(a)(1) if “(1) employees would reasonably
construe the language to prohibit Section 7 activity; (2) the rule
was promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7 rights.” Id.
at 647.
The rules at issue before us are not alleged to explicitly restrict
protected activities or to have been promulgated in response to
or applied to restrict Section 7 activities. Thus, the relevant in-
quiry is whether employees would reasonably construe the
challenged rules to prohibit Section 7 activity. In construing
rules, Lutheran Heritage teaches that they are to be given a rea-
sonable reading, and are not to be considered in isolation. Id. at
646. Further, any ambiguity in the rule must be construed
against the drafter—here, the Respondent. Lafayette Park,
above at 825.
Id. (Footnotes omitted.)
A. The Inappropriate Conduct Rule
The first questionable rule from Respondent’s handbook
reads:
Respecting others, which includes but is not limited to:
 Displaying appropriate behavior at work, on Wynn
[Respondent] business, or on property. Never engag-
ing in misconduct on or off-duty that (as determined
by Wynn [Respondent]) materially and adversely af-
fects job performance or tends to bring discredit to
Wynn. Promoting and respecting the diversity of the
Wynn workforce by avoiding any form of discrimina-
tion or harassment, including degrading comments or
offensive language;
 and refraining from inappropriate conduct or horse-
play.
I find the rule does not expressly restrict Section 7 activity. I
find, however, that employees would construe the requirement
to refrain from “[n]ever engaging in misconduct on or off-duty
that (as determined by Wynn [Respondent]) materially and ad-
versely affects job performance or tends to bring discredit to
Wynn” and “inappropriate conduct” as restrictions on employ-
ees’ Section 7 rights under current Board law. “Never engaging
in misconduct on or off-duty that (as determined by Wynn [Re-
spondent]) materially and adversely affects job performance or
tends to bring discredit to Wynn” and “…[I]nappropriate con-
duct”covers everyone, and would apply to supervisors and man-
agers. In fact, the reference to “as determined by Wynn [Re-
spondent]” is highly suggestive of subjective interpretation by
supervisors and managers, although it may apply to other
coworkers as well. That prohibition would reasonably be con-
strued by employees to bar them from discussing supervisory
and managerial decisions, thereby chilling them from engaging
in protected activities.
Moreover, the rule “Never engaging in misconduct on or off-
duty that . . . materially and adversely affects job performance
or tends to bring discredit to Wynn” and “inappropriate conduct”
contains a “patent ambiguity” in these phrases as employees
“would reasonably construe the rule” as limiting their communi-
cations concerning employment. See 2 Sisters Food Group, Inc.,
357 NLRB 1816, 1817 (2011).
In addition, the rule “never engaging in misconduct on or off-
duty that materially and adversely affects job performance or
tends to bring discredit to Wynn.” The Board has found that rules
prohibiting “negative” speech and behavior are unlawful. For ex-
ample, in Roomstore, 357 NLRB 1690, 1690 fn. 3 (2011), the
Board found a rule prohibiting “any type of ‘negative’ energy or
attitudes” to be unlawful. In Hills & Dales General Hospital, su-
pra, the Board found a rule prohibiting “negative comments
about fellow team members,”“engag[ing] in or listen[ing] to neg-
ativity, and requiring employees to “represent [the Respondent]
in the community in a positive and professional manner” was
overly broad. On the other hand, the Board has found rules to be
lawful when the conduct they aim to prohibit clearly falls outside
the Act’s protection, such as conduct that is abusive, injurious,
threatening, intimidating, coercing, and/or profane. See, e.g. Lu-
theran Heritage, supra; Palms Hotel and Casino, supra. Here,
the rule “never engaging in misconduct on or off-duty that ma-
terially and adversely affects job performance or tends to bring
discredit to Wynn [Respondent]” is broad and vague, and easily
interpreted to include protected concerted activities protesting
working conditions. As such, the rule would reasonably be inter-
preted to apply to attendance at a union event when the employee
identifies himself or herself as an employee and complains about
working conditions.
Therefore, I find the specific language I mention here of the
Inappropriate Conduct Rule is overly broad as to the specific lan-
guage prohibiting “Never engaging in misconduct on or off-duty
that … materially and adversely affects job performance or tends
to bring discredit to Wynn” and “inappropriate conduct” and in
violation of Section 8(a)(1) of the Act. See also First Transit,
Inc., 360 NLRB 619, 621 ((2014). (Same) and Claremont Resort
& Spa, 344 NLRB 832 (2005) (finding rule prohibiting “negative
conversations” about coworkers and managers unlawful).
B. The No Photographs, PDAs, Messaging, Calls, or
Recordings Rule
The next rule for analysis reads:
 Striving for excellence in job performance, which
WYNN LAS VEGAS, LLC 27
includes but is not limited to never taking photographs
in the public "front-of-house" area.
 Never using personal communications devices such as
beepers, cellular telephones and personal data assis-
tance ("PDAs"), for incoming and outgoing messaging
or calls while on duty, unless prior authorization is ob-
tained from a department manager.
 Except for off duty or pre-authorized use of personal
communications devices for incoming and outgoing
messaging or calls only, never using any device for au-
dio, video or data recording/transmission, such as
video and digital cameras, camera and recording com-
ponents of cellular telephones/PDAs and digital re-
corders, at any time while on company property or
while performing job duties off-company property,
unless prior authorization is obtained from a depart-
ment manager for a company business purpose.
Being honest, which includes but is not limited to:
 Refraining from any activity in photographing or re-
cording (either by audio or video means) others in the
work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authori-
zation has been given in advance by all individuals
subject to the intended photography and/or recording
activity or management has otherwise pre-authorized
the activity for company business purposes.
As stated above, under Lutheran Heritage Village-Livonia,
343 NLRB supra at 647, an employer violates Section 8(a)(1)
when it maintains a work rule that employees would reasonably
construe to prohibit Section 7 activity. Here, this set of related
rules prohibit employees from using their own cellphones and
other communications devices to talk to each other, record safety
concerns, and other protected concerted activity for the entire
time they are on duty, break times, or on Respondent’s property,
including nonwork areas like the EDR, parking lots and garages
and parts of the casino while off duty. Employees have a right to
photograph and make recordings in furtherance of their protected
concerted activity. See Hawaii Tribune-Herald, 356 NLRB No.
63, slip op. at 1 (2011), enfd sub nom. Stephens Media, LLC v.
NLRB, 677 F.3d 1241 (D.C. Cir. 2012). Photography is pro-
tected by Section 7 if employees are acting in concert for their
mutual aid and protection and no overriding employer interest is
present. Whole Foods, 363 NLRB No. 87, slip op. at 3 (2015);
Rio All-Suites Hotel & Casino, 362 NLRB 1690, 1693 (2015).
See also White Oak Manor, 353 NLRB 795, 795 fn. 2 (2009)
(photography was part of the res gestae of employee’s protected
concerted activity), reaffirmed and incorporated by reference at
355 NLRB 1280 (2010), enfd. 452 Fed. Appx 374 (4th Cir.
2011).
Such protected conduct may include, for example, recording
images of protected picketing, documenting unsafe workplace
equipment or hazardous working conditions, documenting and
8 “Of course, the fact that these prohibitions are subject to discretion-
ary exemptions by the Respondent does not make them any less unlaw-
ful. [citation omitted].” Rio All-Suites Hotel & Casino, 362 NLRB supra
at 4, fn. 10; see also Brunswick Corp., 282 NLRB 794, 795 (1987) (Any
publicizing discussions about terms and conditions of employ-
ment, documenting inconsistent application of employer rules,
or recording evidence to preserve it for later use in administrative
or judicial forums in employment related actions. The rule does
not differentiate between photography, PDAs, messaging, calls,
and recordings that are protected by Section 7 and those that are
not, and includes in its prohibition recordings made during non-
work time and in nonwork areas.
In considering the legality of a rule prohibiting photography
in Flagstaff Medical Center, 357 NLRB 659, 662–663 (2011),
enf. granted in part, denied in part on other grounds 715 F.3d 928
(D.C. Cir. 2013), the Board emphasized the “weighty” privacy
interests of the patients and the hospital’s “significant interest in
preventing the wrongful disclosure of individually identifiable
health information,” as required by Federal law. The Board con-
cluded that the rule in Flagstaff was lawful, finding that employ-
ees would understand the rule as a “legitimate means of protect-
ing the privacy of patients and their hospital surroundings.” Id.
Here, the rule is silent as to whether any “weighty” privacy in-
terests, such as the privacy of its patrons, are the focus of Re-
spondent’s No Photographs, PDAs, Messaging, Calls, or Re-
cordings Rule which include no indication that they are designed
to protect privacy or other legitimate interests. Respondent ar-
gues this is the case that patrons have Nevada state privacy rights
but does not limit its rules sufficiently.
I further find that the recording prohibition is not narrowly
tailored to any legitimate business interest. As a result, I find that
Respondent’s employees would not reasonably interpret the No
Photographs, PDAs, Messaging, Calls, or Recording Rule as re-
lated to the protection of patron privacy. Without such a limiting
principle, the Respondent’s employees are left to draw the rea-
sonable conclusion that these prohibitions would prohibit their
use of audio-visual devices in furtherance of their protected con-
certed activities.8 See Rio All-Suites Hotel and Casino, 362
NLRB supra at 4. Based on the foregoing, I find that Respond-
ent’s employees would reasonably interpret Respondent’s No
Photographs, PDAs, Messaging, Calls, or Recording Rules to in-
fringe on their protected concerted activity. Thus, these rules vi-
olate Section 8(a)(1) of the Act.
C. The Restricted Access Rule
The third rule for analysis is related to a limited access rule.
The rule reads:
4. Know and follow all Wynn policies and procedures, which
include but are not limited to
 Only using the facilities for the property you are sched-
uled to work, with the exception of the employee din-
ing area [EDR].
 When scheduled to work at Wynn you must park in the
employee parking garage and utilize the back of the
house area that pertains to and is exclusive to the prop-
erty at which you are working with to and is exclusive
to the property at which you are working with the
rule that requires employees to obtain an employer’s permission before
engaging in protected concerted activity on the employee’s free time and
in nonwork areas is unlawful.).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
exception of the employee dining area. All other ex-
ceptions to this rule can only be made with specific
management authorization and/or written accompany-
ing documentation.
The Board evaluates the Respondent’s access rule under the
well-established test of Tri-County Medical Center, 222 NLRB
1089 (1976). In Tri-County, the Board held that an employer’s
rule barring off-duty employees from access to its facility is valid
only if it: (1) limits access solely with respect to the interior of
the plant and other working areas; (2) is clearly disseminated to
all employees; and (3) applies to off-duty employees seeking ac-
cess to the plant for any purpose and not just to those employees
engaging in union activity. Id. at 1089.
Respondent argues that the rule applies to “on-duty” employ-
ees but ignores the fact that these same employees are actually
“off-duty” when parking their vehicles and walking to clock-in
and returning to their vehicles after clocking-out.
Under Tri-County, as applied in Saint John’s Health Center,
357 NLRB No. 170 (2011), the Respondent’s Restricted Access
Rule is unlawful under the first and third prongs of the Tri-
County test because it does not limit access solely with respect
to Respondent’s interior work areas and also includes nonwork
areas and also “uniformly prohibit access to off duty employees
seeking entry to the property for any purpose.” Id., slip op. at 6
(emphasis added). Thus, outside the facilities and employee
parking garage closest to where an employee is scheduled to
work, employees are denied access to other portions of Respond-
ent’s property (other parking garages, a public walkway at Re-
spondent’s Encore facility when scheduled to work at Respond-
ent’s Wynn facility, or the other casino or the WDD Flex Build-
ing. Moreover, it provides for any additional access solely with
management’s approval. This last exception effectively vests
management with unlimited discretion to expand or deny off-
duty employees’ access for any reason it chooses. See Piedmont
Gardens, 360 NLRB 813, 814 (2014); see also Saint John’s
Health, above, slip op. at 5 (“In effect, the [r]espondent is telling
its employees, you may not enter the premises after your shift
except when and where we say you can.”). The Respondent’s
policy thus clearly fails the first and third prongs of the Tri-
County test.9
Consequently, I find that Respondent’s Restricted Access
Rule is overbroad and in violation of Section 8(a)(1) of the Act.
D. The Restricted Intellectual Property Rule
The fourth rule to analyze reads:
 Complying with copyright, patent, and trademark
laws, which are intended to protect exclusive use of
publications, productions, artistic works, and so forth.
* Logos may not be used for any purpose aside from those for
which they are intended.
* Logos may not be altered in any way [the Restricted Intellec-
tual Property Rule].
9 For similar reasons, the rule fails to pass muster under a Lutheran-
Heritage analysis, because employees would reasonably construe the
broad managerial-approval exception as requiring them to disclose their
intent to engage in protected activity when seeking such approval, a
The special circumstances test reflects a balancing of the em-
ployer’s interests and the employees’ Section 7 rights. “The
Board has long recognized that an employer has a legitimate in-
terest in preventing the disparagement of its products . . . .” Tri-
ple Play Sports Bar, 361 NLRB No. 31, slip op. at 4 (2014). See
also Valley Hospital Medical Center, Inc., 351 NLRB 1250,
1252–1253 (2007) (discussing distinction between disparage-
ment of products and communications related to labor disputes),
enfd. sub nom. Nevada Service Employees Local 1107 v. NLRB,
358 Fed. Appx. 783 (9th Cir. 2009). Employers have no such
legitimate interest in preventing employees’ discussion of their
terms and conditions of employment. Accordingly, it is reasona-
ble for the Board to treat the two kinds of cases differently and
to require more proof from an employer who seeks to restrain
employee speech concerning working conditions.
Medco Health Solutions of Las Vegas, 364 NLRB No. 115,
slip op. at 5 (Aug. 27, 2016).
The Respondent’s rule does not define what constitutes
“Logos may not be used for any purpose aside from those for
which they are intended.” Most of the section pertains to confi-
dentiality and does not explain in what respect use of the Re-
spondent’s name or trademarks may intended to protect exclu-
sive use. Nor does the rule explain any uses of the Respondent’s
logo that are permissible. On its face, then, it chills employees
from using the Respondent’s logo. Although employees who use
the logo for any purpose aside from those for which they are in-
tended, is vague and uncertain and may prohibit employees from
using the logo while engaged in Section 7 activities, I find that
prohibiting such use is an unreasonable restriction on Section 7
activity. In addition, barring employees from using the Respond-
ent’s name and logo is unlawful as it is often necessary for em-
ployees to identify their employer when they are engaged in Sec-
tion 7 activities and the Respondent presented no evidence to
support the need for such a restriction. Since I find that employ-
ees would reasonably interpret any nonwork-related use of Re-
spondent’s name to be improper, I conclude that this portion of
the rule violates Section 8(a)(1).
E. The Confidentiality Rule
The fifth rule to analyze reads:
 Protecting the confidentiality of Wynn.
Never using, accessing, possessing, copying, removing, or shar-
ing any of Wynn confidential business information without au-
thorization or for business reasons.
I find the language of the Respondent’s Confidentiality Rule
here to be analogous to the rule at issue in Super K-Mart, 330
NLRB 263, 263–264 (1999). In that case, the Board found that
employees would reasonably understand a rule stating that
“company business and documents are confidential” as limiting
the dissemination of proprietary information, rather than limiting
employees’ ability to discuss wages and working conditions. (Id.
at 263.) See also G4S Secure Solutions (USA) Inc., 364 NLRB
No. 92, slip op. at 4 (Aug. 26, 2016) (Same). Therefore, I find
compelled disclosure that would certainly tend to chill the exercise of
Sec. 7 rights. See Casino San Pablo, 361 NLRB 1350, 1353 fn. 6 (2014)
(Same).
WYNN LAS VEGAS, LLC 29
Respondent’s Confidentiality Rule lawful and not in violation of
Section 8(a)(1) of the Act.
F. The No Personal Use Rule
The sixth rule reads:
 Never using Wynn property for personal use.
Respondent points out that the General Counsel put forth no
evidence in support of her argument that this rule is unlawfully
overbroad. (GC Br. at 37.) I agree and find that Respondent has
a separate rule addressing employees’ internet, intranet, and
email use of Respondent’s property that is inapplicable to get
lumped into this rule. In addition, I further find in agreement with
Respondent that it is a luxury resort and a reasonable interpreta-
tion of this rule is that employees should not help themselves to
food items intended for guest consumption or take advantage of
any of Respondent’s other personal property not already covered
by other rules. Therefore, I find Respondent’s No Personal Use
rule lawful and not in violation of Section 8(a)(1) of the Act.
G. The Honesty Rule
The seventh rule reads:
4. Being honest, which includes but is not limited to:
 Reporting any suspicious or improper activity to a
manager or security officer.
Respondent also points out that the General Counsel put forth
no evidence in support of her argument that this rule is unlaw-
fully overbroad. (GC Br. at 39.) I agree with Respondent that it
has put forward its reasonable business justification that this rule
is necessary as hotels, casinos and guests, including celebrities,
are more and more targets of danger and mischief and reminding
employees to be vigilant to report suspicious and improper ac-
tivity while at Respondent is a lawful rule and does not restrict
or prohibit an employee’s Section 7 rights. (R. Br. at 51–52.)
Therefore, I find Respondent’s Honesty Rule lawful and not in
violation of Section 8(a)(1) of the Act.
H. The Failure to Obey Rules or Handbook Violation Rule
Finally, the last challenged rule in Respondent’s handbook
reads:
7. Failure to display proper conduct and abide by these stand-
ards may result in disciplinary action up to and including ter-
mination.
The General Counsel argues that since many of the challenged
rules referenced above are unlawfully overbroad, “this statement
constitutes a threat of discipline for engaging in any protected
behavior” banned by an unlawful rule and, thus, this statement
violates Section 8(a)(1) of the Act. (GC Br. at 39.) I find that the
questioned rule is mere boilerplate handbook language common
to most employer’s handbooks and is not unlawful as written and
it does not constitute an unlawful threat of discipline.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By suspending and issuing a second written warning letter
to employee Keli P. May because of her protected concerted
activities involving her mentioning to her fellow employee that
she had still not received her earned wages after giving Respond-
ent management notice of this underpayment more than 2 weeks
in advance with consistent follow up, the Respondent violated
Section 8(a)(1) of the Act.
3. By maintaining an employee handbook with rules that state
that Respecting others, which includes but is not limited to:
 Displaying appropriate behavior at work, on Wynn
[Respondent] business, or on property. Never engag-
ing in misconduct on or off-duty that (as determined
by Wynn [Respondent]) materially and adversely af-
fects job performance or tends to bring discredit to
Wynn. Promoting and respecting the diversity of the
Wynn workforce by avoiding any form of discrimina-
tion or harassment, including degrading comments or
offensive language;
 and refraining from inappropriate conduct or horse-
play.
 Striving for excellence in job performance, which in-
cludes but is not limited to never taking photographs
in the public "front-of-house" area.
 Never using personal communications devices such as
beepers, cellular telephones and personal data assis-
tance ("PDAs"), for incoming and outgoing messaging
or calls while on duty, unless prior authorization is ob-
tained from a department manager.
 Except for off duty or pre-authorized use of personal
communications devices for incoming and outgoing
messaging or calls only, never using any device for au-
dio, video or data recording/transmission, such as
video and digital cameras, camera and recording com-
ponents of cellular telephones/PDAs and digital re-
corders, at any time while on company property or
while performing job duties off-company property,
unless prior authorization is obtained from a depart-
ment manager for a company business purpose.
Being honest, which includes but is not limited to:
 Refraining from any activity in photographing or re-
cording (either by audio or video means) others in the
work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authori-
zation has been given in advance by all individuals
subject to the intended photography and/or recording
activity or management has otherwise pre-authorized
the activity for company business purposes.
Know and follow all Wynn policies and procedures, which in-
clude but are not limited to
 Only using the facilities for the property you are sched-
uled to work, with the exception of the employee din-
ing area [EDR].
 When scheduled to work at Wynn you must park in the
employee parking garage and utilize the back of the
house area that pertains to and is exclusive to the prop-
erty at which you are working with to and is exclusive
to the property at which you are working with the ex-
ception of the employee dining area. All other excep-
tions to this rule can only be made with specific
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
management authorization and/or written accompany-
ing documentation.
 Logos may not be used for any purpose aside from
those for which they are intended,”
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of 8(a)(1) of the Act.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The Respondent did not unlawfully issue Respondent em-
ployee Kanie Kastroll a written warning in response to her con-
duct on February 2, 2015, as alleged in the complaint.
REMEDIES
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that they must cease and desist such
practices and take certain affirmative action designed to effectu-
ate the policies of the Act. In a typical case involving unlawful
workplace rules, the promulgator of the rules is ordered to re-
scind the unlawful provisions and post an appropriate notice.
Specifically, having concluded that the Respondent is respon-
sible for the unlawful suspension and second written warning of
employee Keli P. May, Respondent must make May whole, with
interest, for any loss of earnings and other benefits or seniority
she may have suffered as a result of the unfair labor practice
against her. Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB No. 8 (2010). In addition, the Respondent shall com-
pensate May for the adverse tax consequences, if any, of receiv-
ing a lump-sum backpay award, and file a report with the Social
Security Administration allocating the backpay award to the ap-
propriate calendar quarters. Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014). The Respondent shall also
be required to expunge from its files any and all references to the
suspension and second written warning, and to notify May in
writing that this has been done and that the suspension and sec-
ond written warning will not be used against her in any way. The
Respondent shall also post the notice in accord with J. Picini
Flooring, 356 NLRB 11 (2010).
On these findings of fact, conclusions of law, and upon the
entire record, pursuant to Section 10(c) of the Act, I hereby issue
the following recommended.10
ORDER
The Respondent, Wynn Las Vegas, LLC, Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining the following unlawful Employee Handbook
rules that state that: “Respecting others, which includes but is not
limited to:
 Displaying appropriate behavior at work, on Wynn
[Respondent] business, or on property. Never engag-
ing in misconduct on or off-duty that (as determined
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
by Wynn [Respondent]) materially and adversely af-
fects job performance or tends to bring discredit to
Wynn. Promoting and respecting the diversity of the
Wynn workforce by avoiding any form of discrimina-
tion or harassment, including degrading comments or
offensive language;
 and refraining from inappropriate conduct or horse-
play.
 Striving for excellence in job performance, which in-
cludes but is not limited to never taking photographs
in the public "front-of-house" area.
 Never using personal communications devices such as
beepers, cellular telephones and personal data assis-
tance ("PDAs"), for incoming and outgoing messaging
or calls while on duty, unless prior authorization is ob-
tained from a department manager.
 Except for off duty or pre-authorized use of personal
communications devices for incoming and outgoing
messaging or calls only, never using any device for au-
dio, video or data recording/transmission, such as
video and digital cameras, camera and recording com-
ponents of cellular telephones/PDAs and digital re-
corders, at any time while on company property or
while performing job duties off-company property,
unless prior authorization is obtained from a depart-
ment manager for a company business purpose.
Being honest, which includes but is not limited to:
 Refraining from any activity in photographing or re-
cording (either by audio or video means) others in the
work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authori-
zation has been given in advance by all individuals
subject to the intended photography and/or recording
activity or management has otherwise pre-authorized
the activity for company business purposes.
Know and follow all Wynn policies and procedures, which in-
clude but are not limited to
 Only using the facilities for the property you are sched-
uled to work, with the exception of the employee din-
ing area [EDR].
 When scheduled to work at Wynn you must park in the
employee parking garage and utilize the back of the
house area that pertains to and is exclusive to the prop-
erty at which you are working with to and is exclusive
to the property at which you are working with the ex-
ception of the employee dining area. All other excep-
tions to this rule can only be made with specific man-
agement authorization and/or written accompanying
documentation.
 Logos may not be used for any purpose aside from
those for which they are intended,” Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of 8(a)(1) of the Act.”
(b) Unlawfully suspending and issuing a written warning to
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 purposes.
WYNN LAS VEGAS, LLC 31
or otherwise unlawfully treating employees because they engage
in protected concerted activities and mention to coworkers that
they have not received payment of earned wages and that man-
agement has been asked to correct this nonpayment but has not
corrected the problem for more than 2 weeks; and
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the right guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind the following provisions located in Respondent’s
Employee Handbook:
“Respecting others, which includes but is not limited to:
 Displaying appropriate behavior at work, on Wynn
[Respondent] business, or on property. Never engag-
ing in misconduct on or off-duty that (as determined
by Wynn [Respondent]) materially and adversely af-
fects job performance or tends to bring discredit to
Wynn. Promoting and respecting the diversity of the
Wynn workforce by avoiding any form of discrimina-
tion or harassment, including degrading comments or
offensive language;
 and refraining from inappropriate conduct or horse-
play.
 Striving for excellence in job performance, which in-
cludes but is not limited to never taking photographs
in the public "front-of-house" area.
 Never using personal communications devices such as
beepers, cellular telephones and personal data assis-
tance ("PDAs"), for incoming and outgoing messaging
or calls while on duty, unless prior authorization is ob-
tained from a department manager.
 Except for off duty or pre-authorized use of personal
communications devices for incoming and outgoing
messaging or calls only, never using any device for au-
dio, video or data recording/transmission, such as
video and digital cameras, camera and recording com-
ponents of cellular telephones/PDAs and digital re-
corders, at any time while on company property or
while performing job duties off-company property,
unless prior authorization is obtained from a depart-
ment manager for a company business purpose.
Being honest, which includes but is not limited to:
 Refraining from any activity in photographing or re-
cording (either by audio or video means) others in the
work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authori-
zation has been given in advance by all individuals
subject to the intended photography and/or recording
activity or management has otherwise pre-authorized
the activity for company business purposes.
Know and follow all Wynn policies and procedures, which in-
clude but are not limited to
 Only using the facilities for the property you are
11 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
scheduled to work, with the exception of the employee
dining area [EDR].
 When scheduled to work at Wynn you must park in the
employee parking garage and utilize the back of the
house area that pertains to and is exclusive to the prop-
erty at which you are working with to and is exclusive
to the property at which you are working with the ex-
ception of the employee dining area. All other excep-
tions to this rule can only be made with specific man-
agement authorization and/or written accompanying
documentation.
 Logos may not be used for any purpose aside from
those for which they are intended,”
and remove such rules from any and all employee publications or
documents to which it is a party.
(b) Within 14 days from the date of this Order, the Respond-
ent shall publish on its WIRE intranet and furnish in writing to
all employees with inserts for the current employee handbook
that (1) advise that the unlawful provisions have been rescinded,
or (2) provide lawfully worded provisions on adhesive backing
that will cover the unlawful provisions; or publish and distribute
to employees revised employee handbooks that (1) do not con-
tain the unlawful provisions, or (2) provide lawfully worded pro-
visions.
(c) Make employee Keli P. May whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against him, as set forth in the remedy section of this decision.
(d) Compensate employee Keli P. May for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and submit the appropriate report to the Social Security Admin-
istration so that when backpay is paid to May, it will be allocated
to the appropriate calendar quarters.
(e) Within 14 days from the date of this Order, remove from
its files any reference to the suspension and written warning, and
within 3 days thereafter, notify employee May in writing that this
has been done and that neither the suspension nor the written
warning will not be used against her in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(g) Within 14 days from the date of this order, post at its fa-
cilities in and around Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”11 Copies of the notice, on forms pro-
vided by the Regional Director for Region 28, after being signed
by the Respondent’s authorized representative, shall also be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In addition to physi-
cal posting of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an internet site,
and/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, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since Feb-
ruary 12, 2015.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. September 26, 2016
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
YOU HAVE THE RIGHT to discuss wages, hours, and working
conditions with other employees and
WE WILL NOT do anything to interfere with your exercise of
that right.
WE WILL NOT maintain the following rules in our Code of Per-
sonal Conduct, or anywhere else, that can be construed to pro-
hibit you from talking to each other about your wages, hours, and
other terms and conditions of employment, or otherwise restrict
you from engaging in protected activities:
At Pages 1-6
: “Respecting others, which includes but is not limited to:
 Displaying appropriate behavior at work, on Wynn
[Respondent] business, or on property. Never engag-
ing in misconduct on or off-duty that (as determined
by Wynn [Respondent]) materially and adversely af-
fects job performance or tends to bring discredit to
Wynn. Promoting and respecting the diversity of the
Wynn workforce by avoiding any form of discrimina-
tion or harassment, including degrading comments or
offensive language;
 and refraining from inappropriate conduct or horse-
play.
 Striving for excellence in job performance, which in-
cludes but is not limited to never taking photographs
in the public "front-of-house" area.
 Never using personal communications devices such as
beepers, cellular telephones and personal data assis-
tance ("PDAs"), for incoming and outgoing messaging
or calls while on duty, unless prior authorization is ob-
tained from a department manager.
 Except for off duty or pre-authorized use of personal
communications devices for incoming and outgoing
messaging or calls only, never using any device for au-
dio,video or data recording/transmission, such as
video and digital cameras, camera and recording com-
ponents of cellular telephones/PDAs and digital re-
corders, at any time while on company property or
while performing job duties off-company property,
unless prior authorization is obtained from a depart-
ment manager for a company business purpose.
Being honest, which includes but is not limited to:
 Refraining from any activity in photographing or re-
cording (either by audio or video means) others in the
work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authori-
zation has been given in advance by all individuals
subject to the intended photography and/or recording
activity or management has otherwise pre-authorized
the activity for company business purposes.
Know and follow all Wynn policies and procedures, which in-
clude but are not limited to
 Only using the facilities for the property you are sched-
uled to work, with the exception of the employee din-
ing area [EDR].
 When scheduled to work at Wynn you must park in the
employee parking garage and utilize the back of the
house area that pertains to and is exclusive to the prop-
erty at which you are working with to and is exclusive
to the property at which you are working with the ex-
ception of the employee dining area. All other excep-
tions to this rule can only be made with specific man-
agement authorization and/or written accompanying
documentation.
 Logos may not be used for any purpose aside from
those for which they are intended,”
WE WILL NOT suspend employees or issue employees written
warnings because they exercise their right to discuss wages,
hours and working conditions with other employees.
WE WILL NOT discipline you because of your protected con-
certed activities.
WE WILL NOT in any like or related manner interfere with your
rights under Section 7 of the Act.
WE WILL rescind the Code of Personal Conduct rules set forth
above the rules set forth above, and either WE WILL (1) furnish
all current employees with inserts for our Code of Personal Con-
duct that (a) advise that the overly-broad provisions or require-
ments have been rescinded, or (b) provide language of the lawful
WYNN LAS VEGAS, LLC 33
provisions or requirements; or (2) publish and distribute revised
Code of Personal Conduct that (a) do not contain the overly-
broad provisions or requirements, or (b) provide language of the
lawful provisions or requirements.
WE WILL, within 14 days, remove from our files any and all
records of the June 19, 2015 suspension and the June 26, 2015
second written warning issued to KELI P. MAY (MAY), and
WE WILL, within 3 days thereafter, notify MAY in writing that
we have taken these actions and that the materials removed will
not be used as a basis for any future personnel action against her
or referred to in response to any inquiry from any employer, em-
ployment agency, unemployment insurance office, or reference
seeker, or otherwise used against her.
WE WILL make whole KELI P. MAY for any wages and other
benefits she lost because we issued her a suspension on June 19,
2015.
WYNNLAS VEGAS, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-155984 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.