Wynn Las Vegas, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 31, 2007

28-CA-021073 (N.L.R.B. Dec. 31, 2007)

JD(SF)–39–07
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES SAN FRANCISCO OFFICE
WYNN LAS VEGAS, LLC
and Cases 28-CA-21073
28-CA-21197
CYNTHIA FIELDS, an Individual
and 28-CA-21205
TYNISIA BOONE, an Individual
and 28-CA-21363
TRANSPORT WORKERS UNION
OF AMERICA, AFL-CIO
Joel C. Schochet, Esq., for the General Counsel.
Gregory J. Kamer, Esq and Bryan J. Cohen, Esq.
of Las Vegas, NV, for the Respondent.
DECISION
Burton Litvack, Administrative Law Judge
Statement of the Case
The original and amended unfair labor practice charges in Case 28-CA-21073 were filed
by Cynthia Fields, an Individual, on November 8 and December 27, 2006, respectively. The
original, amended, and second amended unfair labor practice charges in Case 28-CA-21197
were filed by Fields on January 8, 17, and 27, 2007, respectively. The original and amended
unfair labor practice charges in Case 28-CA-21205 were filed by Tynisia Boone, an Individual,
on January 18 and March 28, 2007. The original and amended unfair labor practice charges in
Case 28-CA-21363 were filed by Transport Workers Union of America on May 1 and July 2,
2007, respectively. After investigating each of the above-described unfair labor practice
charges, on July 3, 2007, the Regional Director of Region 28 of the National Labor Relations
Board, herein called the Board, issued a Second Consolidated Complaint, alleging that Wynn
Las Vegas, LLC, herein called Respondent, engaged in acts and conduct violative of Section
8(a)(1), Section 8(a)(1) and (3), and Section 8(a)(1) and (4) of the National Labor Relations Act,
herein called the Act. Respondent timely filed an answer, denying the commission of any of the
alleged unfair labor practices. Pursuant to a notice of hearing, as scheduled, a trial was
conducted before the above-named administrative law judge on July 30 through August 3, 2007
in Las Vegas, Nevada. During the course of the trial, all parties were afforded the right to
examine and cross-examine witnesses, to offer into the record any relevant documentary
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evidence, to orally argue points of law, and to file post-hearing briefs. Both Counsel for the
General Counsel and Respondent’s attorneys filed post-hearing briefs and each has been
carefully considered. Accordingly, based upon the entire record herein,1 including my
observation of the testimonial demeanor of the several witnesses and the post-hearing briefs, I
make the following:
Findings of Fact
I. Jurisdiction
At all material times herein, Respondent, a State of Nevada corporation, with an office
and place of business located at 3145 Las Vegas Boulevard South, Las Vegas, Nevada, herein
called Respondent’s facility, has been engaged in the operation of a hotel and casino. During
the 12-month period ending November 8, 2006, Respondent, in conducting its business
operations described above, derived gross revenues in excess of $500,000 and purchased and
received at its facility goods valued in excess of $50,000 directly from points outside the State of
Nevada. Respondent admits that, at all times material herein, it has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. The Issues
The second consolidated complaint alleges that Respondent engaged in acts and
conduct violative of Section 8(a)(1) of the Act on October 30, 2006 by informing its employees
that it would be futile for them to select a union as their bargaining representative, threatening
its employees with diminution of their wages if they selected a union as their bargaining
representative or engaged in concerted activities to compel Respondent to return to its previous
policy regarding payment of tips, threatening its employees that strikes would be inevitable if
they selected a union as their bargaining representative, threatening its employees with
discharge if they selected a union as their bargaining representative, threatening its employees
with unspecified reprisals if they selected a union as their bargaining representative, and
disparaging a union as the bargaining representative of its employees in order to discourage
them from supporting or assisting a union; on or about January 12, 2007, by promulgating, and
since maintaining, a no-talking rule, prohibiting its employees from discussing non-work related
issues, including Respondent’s tip policy and newspaper articles regarding said policy, during
work time; and, on or about January 13, 2007, by threatening its employees with unspecified
reprisals because they engaged in concerted activities, including assisting other employees in
the investigation of their unfair labor practice charges filed with the Board. The second
consolidated complaint next alleges that Respondent engaged in acts and conduct violative of
Section 8(a)(1) and (3) of the Act by issuing its employee Mark Baldino an undeserved and
unwarranted written warning. Finally, the second consolidated complaint alleges that

1 In his post-hearing brief, counsel for the General Counsel moved to withdraw paragraph
5(d) of the second consolidated complaint, and said motion is granted. Also, while not moving
to amend the second consolidated complaint, counsel for the General Counsel notes that the
alleged unlawful “no cross-fire” policy set forth in paragraph 5(e) should “more correctly” be
termed a no-talking rule. Finally, I note that, while paragraph 3 of the second consolidated
complain alleges three entities, including Transport Workers Union of America, AFL-CIO, as
being labor organizations within the meaning of the Act, Respondent denied the allegations, and
counsel for the General Counsel offered no proof as the labor organization status of any of the
named entities. Accordingly, I shall recommend that paragraph 3 of the second consolidated
complaint me dismissed.
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Respondent engaged in acts and conduct violative of Section 8(a)(1) and (4) of the Act by
initially suspending and then terminating its employee, Cynthia Fields because she filed unfair
labor practice charges with and gave testimony to the Board.
III. The Alleged Unfair Labor Practices
Since its public opening in April 2005, Respondent, which is a wholly-owned subsidiary
of Wynn Resorts, has operated an opulent hotel, casino, and resort complex in Las Vegas,
Nevada and, for the quality of its service to its guests and customers, has received such awards
as five diamonds from the American Automobile Association. Steven A. Wynn, for whom
Respondent’s facility is named, is the chairman of the board of directors of Wynn Resorts;
Andrew Pascal is the president of Respondent; and William Westbrook, Jr. is its director of
casino operations. The genesis of the dispute, which resulted in the alleged instant unfair labor
practices, were Respondent’s decisions, announced to its casino employees on August 21,
2006 and implemented ten days later on September 1, to revamp the casino’s existing,
convoluted “hierarchical” structure2 and to create a new position, casino service team lead, and
permit the individuals in said position to share in the table games dealers’ tips pool.3 In order to
alleviate the first problem, Respondent eliminated the positions of floor supervisor,4 pit manager,
and table games vice president and created the positions of casino manager, assistant casino
manager, and casino service team lead, herein called team lead. With regard to the latter
position, which it created to replace the floor supervisor position, Respondent’s intent was to
involve the team leads, who would work “side by side” with the dealers, in providing the guests’
overall “experience” in the casino, including making the team leads responsible for welcoming
players, “the cleanliness of the environment,” and cocktail service, while, at the same time,
maintaining the other “typical” responsibilities of the eliminated floor supervisor position.5
Respondent’s president Pascal testified that Respondent believed it necessary to include the
200 team leads in the dealers’ tip pool for two reasons. While the team leads and the dealers
both would be “in the line of service” to the casino guests, a significant pay disparity existed
between the floor supervisor position and that of dealer, with the former being paid at $60,000
per year and the dealers earning approximately $100,000 per year in combined wages and tips.
Also, Respondent was experiencing difficulty in attracting enough qualified individuals to fill its

2 Prior to September 1, 2006, Respondent’s table games dealers reported to floor
supervisors, who, in turn, reported to pit managers, who, in turn, reported to assistant shift
managers, who, in turn, reported to shift managers, who, in turn, reported to operations
directors, who, in turn, reported to a vice president of table games.
3 Rather than each dealer retaining any tips received during a shift, all dealer tips are pooled
and divided equally among all of Respondent’s dealers depending upon the number of hours
worked during a pay period. On September 1, 2006, Respondent employed 588 dealers.
4 According to the job description, Respondent’s floor supervisors, who were responsible for
from two to six tables in a pit area, were responsible for issuing credit markers to guests, settling
minor disputes involving mistakes on a table game, documenting the required information for
complimentary “comps,” protecting Respondent’s assets from cheating or scams, and “. . .
continually monitor[ing] and direct[ing] dealers to maintain conformity of established policies and
procedures.” Prior to September 1, 2006, Respondent employed approximately 200 floor
supervisors.
5 According to the job description for a team lead, said individual is assigned to a “dealing
team,” and the team lead and his dealers “. . . must strive [to] develop excellent long-term
relationships with new and existing guests through the delivery of flawless guest services.” In
addition, the team lead remained responsible for ensuring that “… proper procedures are
followed by dealers in games within unit” and protecting the “integrity” of the games.
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existing floor supervisor positions and believed that increasing the compensation of the team
lead position would lead to an increase in the number of applicants. Including team leads in the
dealers’ tips pool along with increasing their hourly rate of pay,6 according to Pascal, effectively
increased the rate of pay for individuals in said position to $95,000 per year.
On August 21, Steven Wynn himself held separate meetings with the casino employees
on each shift and announced the above-described changes, and, after explaining Respondent’s
rationale for the changes, he opined that “this is the right thing to do;” that “it would make us
more of a family . . . .” Nevertheless, according to Cynthia Fields, given Wynn’s panegyric
predictions to dealers at the time Respondent opened its facility regarding the vast amounts of
money they might earn7 and his announcement that team leads and box persons would now be
included in the tips pool and, after he pejoratively compared the dealers to “muggers and
thieves” for stealing from customers and lying when calling in sick,8 the only point the dealers
“heard” on September 21 was that Respondent would be taking tips money, or, in the
vernacular of the dealers, tokes, which they had earned, from them, and many left the meetings
“extremely upset” with Respondent and Wynn personally.9 Thereafter, according to Fields, the
primary topics for discussion amongst the dealers were the dilution of their tips pool, their
consequent loss of income, and what, if any, actions they could undertake, including filing
lawsuits and organizing a union, to stop Respondent from implementing Wynn’s announced
changes. In fact, some dealers did directly challenge the legality of Respondent’s actions by
filing a lawsuit in Nevada District Court and by filing a complaint with the State of Nevada Labor
Commission.
Respondent’s management was well aware of its table games dealers’ discontent
resulting from their loss of income. According to Pascal, “. . . we obviously got some feedback
that dealers were unhappy about the changes . . . and we heard that there were a number of
different things that were being contemplated, one being for them to organize . . . .” Likewise,
Wynn understood that there was “dealer consternation” caused by the changes, which
Respondent had instituted on September 1, “and a whole bunch of conversation had started
around the hotel that can only be characterized as wild exaggeration and falsehoods,” regarding
such subjects as the possible firing of dealers, the elimination of tips for dealers, and “we ought
to have a union because a union can make them give everything back.” In these circumstances
and believing he “. . . had not done a good job of explaining . . . the importance of making the
change for everybody’s sake,” Wynn convened meetings with Respondent’s management and
labor relations “persuader,” Mark Garrity, with regard to stifling the dissension amongst the
dealers, which, Wynn believed, was the machination of “a group of 25 or 30” rabid employees,
and the decision was reached to hold meetings with the dealers to further explain the rationale

6 Unlike dealers, the team leads did not receive a full share of tips. Rather, each team lead
was given a 40 percent of a share as his or her share of the tips pool. In addition to the team
leads, Respondent also gave individuals in the box person position, the employees, who are
responsible for controlling the money at the craps tables, a share in the tips pool at a rate of 20
percent of a share.
7 According to Fields, Wynn had assured the dealers they would earn so much money they
would be taking it home “in wheelbarrows,” and, in fact, they did earn “an awful lot of money”--
more than their counterparts at any other Las Vegas casino.
8 Wynn failed to deny Fields’ testimony with regard to what he said on August 21.
9 In fact, there is no dispute that including 200 team leads and approximately 40 box
persons diminished the shares of the dealers in their tips pool. According to Andrew Pascal,
including the team leads and the box persons “. . . added somewhere around 88 additional
shares . . . into the pool of 600, resulting in a fifteen percent dilution . . . .”
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for the September 1 changes and to afford the dealers an opportunity to ask questions and
exchange ideas, which Wynn had not permitted on August 21, and vent their perceived
frustrations. Wynn and Respondent’s management also decided to limit the number of dealers
at each meeting to no more than 15 to 18, a group small enough to enable everyone to fit
around a conference table and engage in a “two-way exchange.” During the management
discussions, there was no thought that Wynn himself would attend the meetings; rather, the plan
was that Pascal and Garrity would conduct them.
A. October 30, 2006 Meeting and Respondent’s Alleged Unfair Labor Practices Attributed
by Steven Wynn
The first of the meetings, between Respondent’s management and its casino table
games dealers, was scheduled for midday on October 30. According to Pascal and Wynn,
inasmuch as the latter desired to learn the extent of the prevalent rumors and falsehoods and to
assess the dealers’ “level of . . . awareness of the truth versus the fiction,” sometime during the
morning that day, Wynn telephoned Pascal and surprisingly said he wanted to attend and
participate in the initial meeting. The said meeting was held in a human resources training
room; fifteen dealers, including Cynthia Fields, Tynisia Boone, Thomas Golly, Kanie Kastroll,
Tramel McKenzie, Keith Gazda, and Ljilj Ana Cerovina, and several representatives of
management, including Wynn, Pascal, Westbrook, Garrity, Arte Nathan, the then- senior vice
president for employee relations, and Pat Mosca, a casino manager, attended. As they entered,
the employees were instructed to sit in seats, arranged around a conference table located in the
center of the room, and the management officials sat in chairs along the walls. The last person
to enter the room was Steven Wynn, and he arrived, sporting a set of vampire teeth, which had
been given to him by a grandchild as Halloween was the next night, in order to establish a light
mood for the meeting. According to Fields, who filed a lawsuit against Steve Wynn and
Respondent, seeking damages in the amount of $300,000 as a result of Wynn’s “extreme and
outrageous” statements and behavior during this meeting, upon entering, Wynn, who suffers
from a degenerative eye disease known as retinitis pigmentosa, announced that he wanted to
sit amongst the dealers and “. . . came back around to my side of the table and grabbed my
chair,” causing the former to have to move to another chair, which she arranged so that she was
the first dealer to Wynn’s left. With regard to what then occurred, all witnesses agreed that
Wynn made several opening remarks and then fielded questions and comments from the
employees to which he replied.
Four dealers testified on behalf of the General Counsel. First, Fields testified that
Wynn’s opening speech lasted “approximately” 15 minutes and that he began, saying “. . . I
know that everybody here is upset about the tip situation. He said that people are talking about
it in the break room and he said it had to stop. . . . It is not going to change. I know several of
you have hired attorneys and I have nine attorneys of my own and they all say this is not going
to change. I have them all on my side. And he said he checked with the labor commissioner
and he is correct.” Continuing, Wynn said “we all need to become a family again” and
mentioned he had spoken to union organizers in Macau. After he explained to them that
Respondent’s supervisors were earning less than the dealers, they thought his solution was a
great idea. Then, Wynn10 changed the subject to that of union representation, saying “the only
thing a union can do for you is allow you to strike,” and mentioning the valet parking employees
at the Golden Nugget Hotel, who had voted to select representation by a union-- “. . . all it did for
them was allow them to strike and subsequently they all lost their jobs.” He added, “. . . those

10 At various times while he spoke, Wynn would stand up, sit back down, and stand up
again.
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poor guys were represented by the union and now they all lost their jobs and are still trying to
get their jobs back, but they were all permanently replaced.” Wynn next mentioned the dealers
at the Frontier Hotel “. . . and said look what happened to them. . . . They went on a strike and
they are still striking.” He added that those dealers’ strike was “definitely prolonged” and they
“. . . didn’t get anything out of it other than being allowed to strike.” Wynn then took questions,
and the first employee to speak was Thomas Golly. Referring to the team leads, “he said that
[they] should have been handled differently . . . . that there were many, many people . . .
applying for the jobs and they could have given [them] a raise . . . paid from the casino.” He
added that this would have made the team leads happy and that what really made them
unhappy was the thought of having to work six days a week at the Wynn Hotel. When Golly
finished, Wynn said to him, “’don’t speak about thing[s] you know nothing about because you
have no idea what you’re talking about,’” and, at this point, he “. . . slammed his fist on the table
and said ‘do not talk about anything that you know nothing about.’” Wynn added that
Respondent was not being able to hire floor supervisors off the street and, pointing to Arte
Nathan, “. . . said we are having trouble hiring supervisors, right.” Nathan replied, saying “. . .
yes, quality supervisors.” Golly replied that he owned stock in Respondent, “so he does have
an interest in how the casino does.
Next, according to Fields, she spoke, saying that she had left a supervisor job at the
MGM Hotel after having accumulated five weeks vacation “and that if I had known . . . I was
going to come here and I was going to have money taken away . . . for nothing I had done, I . . .
possibly would not have made the change.” Continuing, she said that she was a single mother
with a one and half year old son and that losing $15,000 to $20,000 a year was a “huge financial
burden on myself.” Wynn replied, saying “. . . if $15,000 to $20,000 a year makes that big of a
difference in your life then you are doing something wrong.” Fields responded, “. . . I probably
would not have bought an additional property. I said this has really made a very big strain on
me financially. . . . That’s when he got extremely angry and got into my face approximately three
to five inches [away] and said, ‘if you think you have financial troubles now, if you picket, you will
be automatically terminated.’”11 According to Fields, as she was on the verge of crying, during
the next ten minutes, she concentrated upon composing herself and not upon what Wynn was
saying, and the next exchange she remembered was Wynn asking “. . . what can we do to make
things better for you here aside from giving you back the tips because that’s not going to
happen. We need to become a family again. . . . He said that we can make over $400 million he
would be happy to share it with us.” At this, she again spoke, saying that since the dealers
made only $6.15 an hour, could they be given a regularly scheduled raise each year?
Thereupon, Wynn “. . . lashed back at me and said ‘don’t take me for a dope and don’t put
words in my mouth.’”
Tynisia Boone, who, like Fields, filed a lawsuit against Steve Wynn and Respondent,
seeking damages in the amount of $300,000 as a result of Wynn’s “extreme and outrageous“
statements and conduct during the October 30 meeting, testified that, after finding his seat,
Wynn said “he had a couple of things that he would like to discuss with the dealers . . . . first he
started with the tip issue. He said the tip issue would not change. It was a business decision
. . . and he [knew] that we’re upset about it, but he had no other choice . . . to redistribute [the

11 According to Fields, Wynn made this asserted threat “leaning over me” so that “. . . I could
feel the spit on my face from his mouth.” She also recalled that, while Wynn spoke, she had a
water bottle on the table in front of her and that, “. . . as he was talking with his hands, he
knocked the bottle of water right into me.”
During cross-examination, Fields admitted that, to her, being fired and being permanently
replaced meant “the same thing.”
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dealers’ tips] thorough his management . . . because he had a problem hiring help.” Then,
referring to the lawsuit, which had been filed regarding the redistribution of their tips, Wynn said
that he would not pay “a dime for the lawsuit” and that he would win in court. He added that he
had “30,000 applicants for dealer jobs, ’and if you guys don’t like my tip pooling arrangements,
you can leave. You can quit.’” Continuing, Wynn turned to the subject of unions, saying “. . .
‘and if you join [a] union, I can by law replace all 600 of you, and if you picket you will be
automatically terminated because those are my sidewalks.’”12 Boone recalled that, at one point,
Wynn mentioned the Golden Nugget Hotel, saying “. . . that he an incident with the valet guys
. . . and they wanted to go on strike so he permanently replaced them. He exercised his right
and permanently replaced them and they did not return to work.” Finally, “[Wynn] said that the
union would get us into trouble and it was not good for us.”
Wynn next solicited questions, saying there would be no repercussions. Thomas Golly
was the first employee to speak, and he said there were other ways Respondent could have
helped the hiring situation for team leads without affecting the dealers’ tips and, as Respondent
had over 50,000 applicants for jobs, how could there be a problem. To this, Wynn, who had
been sitting, suddenly became “very loud and irate,” stood up, and said “. . . I am the most
powerful man in Nevada. My name is on top of the building. I can do whatever it is that I want
to do and I can run my business any way I want to run it. If you guys have a problem with the
way I am handling things, you can leave.’” After Golly, Cynthia Fields spoke and “. . . told
[Wynn] that she has to sell one of her houses because of the 20 percent decrease in her tips.”
In response, Wynn stood up and started screaming. “He said if you think you have money
problems now, if you join [a] union, if we picket, we will be automatically terminated. And then
he started getting up and down and slamming his hand and fist on the table.” He then repeated
he was the most powerful man in Nevada, pointed to Fields’ face, and told her “. . . if you guys
vote [a] union in, you will be automatically terminated. And if you think you have money
problems now . . . . He said that he cold put no tipping on the table. It was his right to [do so]
. . . have us drop the tips and place us on salary and keep the tips for himself.”13 Then, Golly
spoke again and told Wynn that he couldn’t do anything about this because “that’s illegal.”14
Wynn responded “. . . that his name was on the building . . . and he can do anything he wants to
do.” According to Boone, at this point, she had become so scared that she had to leave the
room and go to a restroom,15 and, when she returned, Wynn had already finished speaking.
Tramel McKenzie testified that Wynn sat in a chair toward the middle of the conference
table16 and began speaking, saying “. . . that there is a problem . . . around the casino, the
atmosphere around the casino is no good.” He identified the problem as being the “tip pool” and

12 She described Wynn as screaming, gesturing wildly, standing up, sitting down, standing
up, sitting down. And his hands were everywhere” to the extent that “he knocked a water bottle
off the table.”
13 Asked to describe what Wynn did while answering Fields, Boone said “she was sitting
right next to him. . . . And she made the comment she had to sell one of her houses and that
really upset him. . . . He started pointing and screaming and basically spitting in her face.”
According to Boone, Wynn had moved so that his face was no more than “a foot” from her face
because “they were sitting very close together.”
14 Boone believed Golly was referring to Wynn’s comment that he could deny tips to the
dealers. During cross-examination, she said that Wynn said this was “something that he could
do if we were to join a union.”
15 Westbrook corroborated Boone that she left the room at one point.
16 McKenzie confirmed that another dealer had been sitting in the chair in which Wynn
eventually sat.
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the dealers’ complaint that money had been taken from them by Respondent. He said he
understood that the dealers were very angry, but the there had been a great difference between
what the floor supervisors and the dealers had been earning. He said this situation was causing
a problem in staffing the casino with floor supervisors. Wynn added that tips were as high as
they were because his name was on the side of the building, and he was the most powerful man
in Nevada. “He said that . . . it was a business move . . . . and . . . we were making too much
money and he had to do something about it.” Then, Tom Golly “. . . told him that word around
town was that you are not paying your supervisors enough money and that you work them too
hard.” At this, Wynn became “very upset’” slammed his hand down on the table, asked Golly
what he meant, and said the problem was he could not get any supervisors to come and work
for him because of the money. Then, Cynthia Fields spoke, saying that, if she had known of the
changed tips practice, “. . . ‘I wouldn’t have left the MGM to come over here to work to have
money taken out of my pocket and lose vacation time.’ . . . “ Wynn looked at Fields and
replied,17 “. . . You think you have money problems now? I assure you, if you bring in [a] union
. . . . you will all be terminated.’” He added that “. . . ‘[a union] will not help you,’” and “. . . ‘if you
vote the union in, all 600 of you guys will be replaced.’” Continuing, Wynn first mentioned the
valet parking employees at the Golden Nugget Hotel, saying “. . . they had formed a union and
they [were all fired]. The union didn’t do anything for them.”18 Then he pointed to the dealers at
the Frontier Hotel and said that “. . . they picketed for years and nothing has happened over
there.” Further, Wynn mentioned that he had the right to take away tips and could prohibit them
entirely and the tips were really his money because the money was going into drop boxes under
the tables.19 Finally, Wynn told the employees that they were free to organize for a union but
that his mind was made up. He added that the only real leverage a union has is to call a strike
and that if a union calls a strike, he has the right to permanently replace those employees. He
said that if the 600 dealers struck, he would permanently replace the strikers and that there
were plenty of people in Las Vegas who wanted their jobs.
Kanie Kastroll testified that Wynn began with a “kind of propaganda spiel” about the
controversy surrounding the dealers’ tips pool, stating that Respondent’s decision to give a
percentage share to the team leads had to do with the disparity between the floor supervisors’
pay and the tips income earned by the dealers-- “. . . I’m not going to change it” and “I’m not
giving you back your tips.” He then invited questions from the dealers. Tom Golly spoke first,
asking why Respondent did not pay any increase in wages for the team leads out of its profits
and why did the team leads’ pay increase have to come out of the dealers’ tip money? Wynn
replied that he did not want to discuss the subject any longer, that he was not going to give their
tips back to the dealers, and that, if they did not cease complaining, he could implement a no
tipping policy in the casino. According to Kastroll, Golly and Wynn continued to speak back and
forth, with Wynn becoming “angry and frustrated” that Golly was continuing to pursue the
subject. At one point, Golly asked why Wynn had decided not to pay the team leads out of the
record profits, about which Wynn previously had bragged. This caused Wynn to stand up, “. . .
and you could see . . . spit flying out of his mouth and a lot of pointing . . . . he started belittling
Tom because Tom had all these ideas.” Wynn said “. . . oh, you think you’re so smart. You
know everything. You’re so smart. You have all the answers.” Cynthia Fields then spoke,
saying the new tip policy would result in her losing $15,000 a year in income. To this, Wynn

17 McKenzie recalled Wynn pointing at Fields with his finger no more than two or three
inches from her face.
18 During cross-examination, McKenzie contradicted herself, agreeing that Wynn said, after
the employees had gone on strike, they all had been replaced.”
19 The witness was certain that Wynn mentioned withholding the tip money “. . . when he
was talking about unions.”
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replied by “mocking” her, saying it wasn’t much money to lose.20 At one point, according to
Kastroll, either with a hand or a fist, Wynn “slammed the table” so that everyone heard it.
Kastroll, who worked as an in-house organizer for the Transport Workers Union, further
testified Wynn also told the employees “that he understood that we were starting to talk or the
topic of a union was coming up amongst the dealers . . . . “ He said “that the union is just trying
to take your money for dues. Your lawyers are trying to take your money. They’re all trying to
take your money. They’re all lying to you. Its all about the money. They want your money.” He
added that “. . . [unions are] only good for . . . leverage. Leverage or striking. That’s all they’re
good for. Striking is your only leverage.” Further, “. . . he said look at when I had the Golden
Nugget downtown. Those . . . young valet boys there, there about 40 of them . . . wanted to
strike. They were talking about strikes. And so he ended up calling some union
representatives” and asked what they were doing to those “poor boys.” According to Wynn, the
valet parkers “persisted” in striking, and he ended up “firing” them-- he “. . . terminated about 40
of them.” Then, “. . . he told us . . . ‘when you dealers strike, you will be permanently
terminated.’”21 Finally, “I remember he was saying he was the most powerful man in either
Vegas or Nevada. . . . You don’t mess with me.” At this point, Kastroll interjected that Wynn
previously had spoken to the dealers, telling them to make all the money they could and I’ll
make all the money with you. We’ll roll it in wheelbarrows. . . . And I told him that the dealers
were the most valuable . . .” employees because of their “interaction” with the guests. Wynn did
not directly answer her comment; rather, he continued saying there existed a “disparity”
between the dealers and the supervisors.
Three dealers, who were present, testified on behalf of Respondent. Kieth Gazda
testified that Wynn spoke first, saying he wanted to address an issue, which was causing
“resentment” amongst the dealers—the tips sharing program which had recently been initiated.
Wynn said affording the team leads each a percentage share had been implemented because
of Respondent’s difficulty in hiring supervisors, and Arte Nathan said something in support.
Then, he said he wanted the employees to speak “openly” and no one would be reprimanded
for what he or she said. Tom Golly spoke first and said he didn’t believe Respondent was
having problems with hiring supervisors and didn’t believe that was the reason for the change in
the tipping program. Wynn replied “. . . that was the reason . . . to correct the disparity in
income levels to make the floor position more attractive. Then, Golly and Wynn engaged in a
five minute dialogue, which was “not heated” but “maybe the emotion level was elevated some
. . . .“ Next, he remembered Cynthia Fields commenting that the new arrangement caused
“financial hardships” for the dealers and that she had recently started a family and had
purchased a house and would face financial issues. While Gazda could not recall exactly, he
believed Wynn said that he was “surprised” that the new policy would lead to such financial
problems for someone but that the policy would remain as instituted. According to Gazda,
Wynn next raised the subject of unions, mentioned the Teamsters Union, and derogatorily said
that “. . . the only reason for unionization is that you get the right to ‘carry a stick.’” Wynn then

20 Asked about Wynn’s conduct while he spoke to Fields, Kastroll said “he was seated next
to her. And he would stand up and then . . . sit down and yell. He pounded the table.” At one
point, Wynn was “. . . leaning forward toward her” until he was “under a foot” from her,”
21 This remark upset Kastroll because she had been a long-time union member. She added
that she was “stunned” by and “in shock” over what Wynn said, and “I couldn’t believe that he
had the audacity to say that because I . . . had known it was illegal.”
During cross-examination, Kastroll said she understood the meaning of the words
“permanently replaced” and equated them to “fired.” However, she insisted that Wynn’s words
on October 30 were “permanently terminated.”
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related what occurred at the Golden Nugget Hotel when the valet parking employees lost their
jobs because of a threatened work stoppage. Also, while he could not recall the context, Gazda
remembered Wynn saying something about “doing away with tipping” but such was not a
“practical” possibility. Finally, while recalling that Wynn did knock over a water bottle when he
struck the table with his hand, Gazda could not recall Wynn continually standing up and sitting
down, sticking his face close to Fields when addressing her, or uttering the words terminated,
permanently terminated, or permanently replaced.
Ljilj Ana Cerovina testified that Wynn began talking, saying that he didn’t want dealers
speaking about tips being taken from them; that he did not like the rampant rumors; and that no
one could trust anyone else. He said the dealers should be happy because they were earning
“good money.” Then, a dealer named Tom spoke and tried to give Wynn “advice” on how he
should handle things, “. . . and Steve told him that he was wrong, actually.” Arte Nathan
interjected that no one wanted to do the floor supervisor job because it did not pay enough, and
Tom replied that the reason no one wanted the job was the great amount of overtime. Then,
Wynn and Tom spoke back and forth “a little bit louder” but not yelling at each other. Next,
Cynthia Fields said many people with houses and cars had not expected this new tips sharing
arrangement and it was “tough” with possibly losing money. Wynn replied that he “. . . was
going to look into the bonus program and see if he can do anything about that.”22 Also, while
recalling Wynn speaking about unions and saying “he didn’t like the idea of us unionizing,”
Cerovina could not recall him mentioning anything about the Golden Nugget Hotel. She
recalled that Wynn did gesture with his hands “maybe a little bit” and, after saying she could not
recall him banging a hand down on the table, recalled “he did one time” but it was “not really
loud. He was just talking about something . . . . I think it was about union. He was talking about
he don’t want us to do that. . . .” Finally, the witness could not recall Wynn saying the word
terminate but denied him using the word fire-- “I think I would remember that.”
Thomas Golly testified that Wynn began speaking about the “current situation” with the
general topic being “let’s get over it, let’s go beyond it,” and, during the next 25 to 30 minutes, “it
evolved from the tip situation to the union and the court case.” Wynn said “. . . the union isn’t
going to do anything for you. They can’t do anything for you. No one is going to get a
penny. . . . He made a series of statements. Number one, the only leverage a union has is a
work stoppage.” Wynn then related the Golden Nugget Hotel story, saying that a “gentleman”
approached him and said that the valet parking employees were going to strike, and Wynn told
him they have no leverage and a strike would only hurt his people. Later, “[The valet parking
employees] went on strike,” and “they were immediately replaced. At that point . . . Mr. Wynn
stopped . . . . looked around the room at every dealer counter clockwise . . . . he said if you
strike, you’ll be replaced.”23 Wynn added that, if the dealers organized a union, “. . . you’re not
going to get anything. There’s a union across the street.” After Wynn invited comments, Golly
spoke first, saying that Wynn operated his hotel and casino “under an archaic value system, one
that says the suit must make more than the uniform. That’s the reason you took the tokes.”
According to Golly, Wynn claimed that one reason for giving the team leads a share of the
dealers’ tips was that he had not been able to hire competent “floor staff because of the pay
disparity,” and Golly challenged him, saying their lack of benefits equal to other casinos was the
real reason. Then, referring to Wynn’s comment that they would get nothing with a union, a

22 Cerovina, who sat next to Fields, did not believe Wynn leaned into Fields as he spoke.
23 Golly described Wynn’s tone of voice as being “general” but there were times “when it
wasn’t typical.” He denied that Wynn ever shouted at the dealers but said the latter’s voice was
“elevated” at times.
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woman to Wynn’s right asked “how do we know unless we try?”24 According to Golly, at this
point, he was not looking at Wynn, and, suddenly, “I hear a loud noise. Bam! I look over. Mr.
Wynn’s fist is clinched on the table . . . .” Golly reiterated that the noise “. . . was loud. Anybody
who tells you it wasn’t loud is lying. It was not unlike if you’re in a room and something falls and
you look towards the sound . . . . It left an indelible on my mind.”25 Finally, as to Wynn’s act,
Golly added, rather than in response to anything, he was certain “[Wynn] was hitting [the table]
in reply to the girl’s remark.” Golly next recalled that Cynthia Fields made a comment to Wynn
about her property and having to sell a second property because of the loss of income. “And
Mr. Wynn made a comment that if $15,000 a year means that much to you, well then I’m sorry
. . . .” Golly added that Wynn said more but that he can not recall what the former said. Finally,
although he could not place the statement chronologically, Golly recalled Wynn making “. . . a
comment that I could put up a sign on the table, no tokes. And I made a comment you wouldn’t
do that.” At this point, Wynn asked if Golly was serious, and Golly offered an explanation as to
why it was not economically feasible for Wynn to abolish tipping for the dealers.
Besides the three dealers, Westbrook, Pascal, and Wynn testified on behalf of
Respondent regarding what the latter said during the October 30 meeting. According to Andrew
Pascal, who testified he arrived late, Wynn was speaking about Respondent’s decision to give a
percentage share of the dealers’ tips pool to the team leads and, “for the most part, he
explained the rationale, explained that he understood that . . . they are upset by it and that they
don’t necessarily agree with it. He explained that he has an obligation to explain the rationale
. . . and that he wasn’t going to change the program.” At that point, dealers began making
comments. Tom Golly spoke and said they understood the problem but did not agree with the
solution. He described “alternatives,” which, he believed, accomplished the same purpose.
Golly then mentioned how Wynn had to be concerned about “the overall performance of the
resort” including its stock performance. When he finished, Wynn remarked that Golly seemed to
be speaking “from the position of authority like you know absolutely everything that is going on
related to this issue, and it clearly has an influence on other people and that can be
destructive.”26 Pascal was able to recall other dealers making comments, and “. . . they
generally shared some of their stories or their issues. . . . [Wynn] acknowledged them . . . but
. . . he was pretty resolved . . . we implemented the program for a reason and we are going to
see it through.” Pascal also recalled that Wynn discussed the Golden Nugget Hotel situation
during which he “drew the parallel” to the instant situation. Wynn wanted “. . . to make sure that
the dealers understood, if ultimately that was their choice, that they were going to walk off or
abandon their jobs then he would be left with no other choice than to replace them.” Wynn said
“. . . if you abandon your jobs, and you choose to strike, then it will leave him with no other
choice but to replace them.” While he further recalled that Wynn may have remarked that a “no
tipping” policy had been “contemplated, he could not recall if such arose before, during, or after
Wynn discussed the dealers possibly organizing a union. Pascal specifically denied that Wynn
continually stood up, sat down, and stood up while he spoke or that Wynn said he was the most
powerful man in Las Vegas or uttered the word, terminated.

24 Golly believed the woman was referring to Wynn’s warning that the dealers would be
replaced if they engaged in a work stoppage.
25 Golly believed this was an example of Wynn’s “bad temper” as “. . . he was adamant that
he did not want a union there.”
26 While conceding that Wynn may have been “animated” in answering Golly and that he
moves his arms when he talks and raises and lowers the volume of his voice, Pascal denied
that Wynn was either aggressive or yelling, Further, while denying that Wynn pounded the
table angrily and, while stating he could not recall such an act, Pascal conceded “to make a
point, I can see how he may have pounded the table.”
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William Westbrook, who corroborated Fields that, when Wynn moved to sit at the table,
he took a chair already occupied by a dealer, who could have been Fields, testified that Wynn
began speaking, saying he was there to open up a dialog with the dealers and everyone was
free to express his or her opinion with “immunity.” He then acknowledged that some dealers
were dissatisfied with the new tips pool arrangements but, notwithstanding how unpopular the
changes were, they reflected a business decision and would not be changed. At that point, he
became involved in a discussion with Tom Golly, who said he had ideas about a “couple” of
alternative ways Wynn might have solved Respondent’s problems. After Golly concluded,
Wynn responded, explaining “. . . that there a lot of other decision making . . . that [occurred]
that Mr. Golly wasn’t aware of that wouldn’t allow [Golly’s ideas] to take place.”27 Asked if
Wynn, at one point, slammed his fist or hand down on the table, Westbrook replied that “he did
not slam his fist down on the table, ever. . . . What he did was put his down like this or he will
make a point . . . .” Westbrook recalled that Wynn did reference to a situation at the Golden
Nugget Hotel, during which the valet parking employees had voted for union representation, and
said “. . . if it were to happen here, just like it happened at the Golden Nugget, if they choose to
go on strike, then they will be replaced and it could be some time before positions open up that
would allow them to come back to work even if a settlement was reached.” Also, at a later
point, Wynn remarked about his dealers’ “dissatisfaction” regarding the “climate” at
Respondent’s facility with the tips policy changes and their exploration of union representation.
“And he was saying that the union wouldn’t get them what they wanted; the union would not be
able to provide them much or anything by leverage . . . should they not get what they wanted in
a contract negotiation, that they would have the leverage of a strike . . . standing on the
sidewalk . . . and he had a business to run. . . . And if they chose to do that . . . they would have
to be replaced . . . on the tables.” Westbrook also recalled Cynthia Fields speaking about being
a single mother, about the financial impact of reduced tips, “. . . and that she would have to be
selling one of her homes to offset what the impact was to her.” However, he could not recall
Wynn’s response “. . . because that didn’t stay with me.”28 Further, Westbrook, while confirming
that Wynn said it was “within his right” to place a “no tipping” sign on each table but that such
would not be a good idea, denied that the latter uttered this statement while speaking about a
union.29
Steven Wynn testified he began by informing the listening dealers that he understood
they had come to work for Respondent expecting that tips would be divided in a certain way and
that now, as the procedure had been changed, they were “angry” and “frustrated.” Continuing,
he stated that, historically, the casino “bosses” had earned more than the dealers but with, the
advent of his three “mega-resorts,” the dealers tips had become “astronomically large” to the
point they now earned more than the supervisors. He told the dealers that Respondent’s team
leads were upset at the disparity in earnings between themselves and the dealers and, as they

27 Westbrook denied that Wynn yelled at any point during the meeting, and, as to whether
the dealers, who stated that Wynn had, in fact, shouted at them, were truthful, he proclaimed “I
deal with the dealers . . . every day. You and I right now are yelling according to the way they
interpret a discussion.”
28 Nevertheless, he was able to specifically deny Wynn saying if she thinks she has
problems now . . . they will be permanently terminated.” He also denied that Wynn leaned
directly into her when he spoke.
29 Westbrook denied that Wynn said he was the most powerful man in Las Vegas, and he
said Wynn never uttered the words, terminate, will terminate, or fire while he spoke. Finally,
while denying any dealer cried during Wynn’s presentation, “I do remember Ms. Boone leaving
to use the restroom . . . .”
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worked side-by-side with the dealers in serving customers, at their lack of participation in the
dealers’ tips pool. In these circumstances, according to Wynn, Respondent believed it was
rectifying a bad situation and felt it had made the “right” decision. According to Wynn, he next
dealt with the rumors, which had been circulating amongst the dealers. He told them they could
be as angry as they wanted, but “nobody is getting fired. I have never been firing anybody
except for severe cause. My reputation has been that the hardest place to get fired is . . . at one
of my hotels. And that’s been true for forty years here. . . . You could put an army of people in
this room. And I said nobody is getting fired. This is a ridiculous rumor” unless “. . . somebody
takes this up on the floor and disrupts the business at the table.”30 Wynn next told the dealers a
second ridiculous rumor was that Respondent intended to take away all of their tips. He said
that he could have given the team leads and the box people full shares in the tip pool but had
not, and “the system that we had adopted was deliberately designed to minimize the impact on
the dealers.”
Then, Wynn testified, he discussed a third rumor-- that a union can change everything.
He said a company is at a disadvantage when confronted by union organizing because a “union
and [its] friends call people at home” and “intimidate” them during unrecorded conversations;
while an employer speaks “. . . on the record . . . publicly.” He added that it would be false for
anyone to say a union could force Respondent to change a policy, which is a sound business
practice. Rather, “I said the only thing that a union can do to management is to deprive us of
your employment. That is to say they can call you off the job in a strike.” Wynn told the dealers
that a strike would be “an outrageous and terrible response” and “heartbreaking” from his point
of view as they would be trading marching on the sidewalk for earning more in tips than dealers
at any other hotel/casino in Las Vegas. Moreover, he told the dealers, if they did strike, “. . . I
would be forced to replace and see to it that if dealers weren’t at the table . . . other dealers
were at the table. And that means replacement.” During cross-examination, asked if he told the
employees that the only leverage a union has is a strike, Wynn embellished and altered his
direct examination testimony, stating “the only leverage that the union has ultimately, if they
believe one thing and we believe another, we reach what’s known as a [good faith impasse]. . . .
And at the end of that impasse, the Union can walk away . . . . they can deprive us of your labor.
Those were the words I used. That’s how I expressed myself.” He then related to the
employees what had occurred at the Golden Nugget Hotel to the striking valet parking
employees, and told the dealers “So if they walked off the job, we would be in the same position
we were at the Golden Nugget to do permanent replacements. And that’s a permanent
replacement instigated and made necessary by an action of the union in calling out the
employees.” Wynn then concluded his remarks, saying the employees’ future and his were tied
to Respondent’s facility, they were all doing better than dealers at any other casino, and they
should all settle down.
According to Wynn, at this point, he solicited questions and comments from the dealers,
and “one fella” complained about Respondent’s “shopping” system, saying he did not need a
“shopper”31 telling him how he was doing. Wynn replied, saying what the employee thought
was not “persuasive” and everyone was treated the same by the shoppers. Then, pointing to
Cynthia Fields sitting at a counsel table, Wynn testified, “this gal” spoke and lectured to him that
her income had been impacted to the point “. . . she had to sell one of her three homes.
Apparently [she was in the real estate business]. And I thought that was an incredible

30 According to Wynn, he meant that “I didn’t want people criticizing the company to the
customers,” which act, he told the dealers, was “inappropriate” behavior.
31 As will be discussed infra, Respondent utilizes a so-called shopping service to perform
quarterly performance evaluations for each its approximately 600 table games dealers.
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statement because the . . . program had only been in existence for a few weeks. . . . She was a
little teary . . . . Well, I didn’t understand . . . and I thought that was an incredible statement. . . . I
said I’m sorry that that’s happened, but it doesn’t make much sense to me.”32 Finally, Wynn
conceded banging his fist on the table (“Yes. . . . that’s the way I speak. I tend to be an
emphatic person and a little historical”) and specifically denied saying that once employees
picket, they will be automatically terminated (“absolutely not” and “. . . not only did I not say that,
why would I when I knew that not to be true?”)33 or shouting at the employees.
As set forth above, the second consolidated complaint alleges that, during his remarks to
the fifteen dealers, with whom he met on October 30, 2006, Steven Wynn, acting on
Respondent’s behalf, informed the employees it would be futile for them to select a union,
threatened them with diminished wages, threatened them that strikes would be inevitable,
threatened them with discharge, threatened them with unspecified reprisals, and disparaged a
union as a bargaining representative if they selected a union as their bargaining representative
and that, as a result of said acts and conduct, Respondent violated Section 8(a)(1) of the Act.
In his post-hearing brief, without specifying to which of the complaint paragraphs they refer and
without offering any legal theories or citing any decisions of the Board in support,34 counsel for
the General Counsel merely identified Wynn’s threat of termination if they voted for a union, his
threat to implement a no-tipping policy if the dealers voted for a union, and his comment that the
only thing a union could do for the dealers would be to call for a strike as the alleged unlawful
acts committed by Respondent. Regarding these alleged unfair labor practices, I believe that
Wynn’s statements and actions during the meeting must be viewed in the context of his desire
to frighten and intimidate the assembled dealers from supporting a perceived nascent union
organizing campaign. Thus, both Andrew Pascal and Wynn testified that a reason, underlying
Respondent’s decision to hold a series of meetings with its dealers, was its knowledge that the
said employees were engaging in discussions about organizing for a union, and, according to
Thomas Golly, whose demeanor, while testifying, was that of a veracious witness and whose
account of the meeting I shall credit, when he raised and discussed the dealers possible desire
for representation by a union, Wynn exhibited “a bad temper,” clearly revealed to the dealers he
was “adamant” in his opposition to their representation by a union,35 and, at one point, obviously
demonstrating the intensity of his opposition to a union, banged his fist down hard on the
conference table, making a conspicuously “loud” sound in doing so.36

32 Wynn added that another woman also seemed to be teary. Asked what he might have
said to make the women cry, Wynn said “the reason they were teary is because I made the
change in the program. They came in to the room teary in my view. . . . I’m certain it wasn’t
anything that I said. . . .”
Wynn was unable to recall saying to Fields that, if $15,000 is an issue for you, you have
bigger problems, and noted that her comment was “inherently unbelievable” as the new policy
on tips had been in effect for just a month.
33 Answering a question from me, Wynn said he was well aware of the legal distinction
between firing and permanently replacing a striking employee. “Of course, I know that, your
honor, and that’s why I would never make such a ridiculous statement.”
34 Counsel commented only that Wynn’s cited comments are “plainly unlawful.”
35 Kieth Gazda described Wynn as speaking derogatorily about union organizing.
36 The four dealers, who testified on behalf of the General Counsel, and Thomas Golly all
recalled Wynn slamming the table with his hand, an act which caused a loud noise. On the
other hand, while Wynn conceded that he banged down on the table with his fist, Pascal and
Westbrook, neither of whom impressed me as being a candid witness, deceitfully denied that he
did so.
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In this context, I consider the General Counsel’s allegation that Wynn threatened the
dealers with termination if they voted for a union. As to this, I note that this contention is based
upon the testimony of Cynthia Fields, Tynisia Boone, Tramel McKenzie, and Kanie Kastroll,
each of whom testified to a variant of the alleged unlawful threat-- the dealers would be
automatically terminated (Fields and Boone), permanently terminated (Kastroll), or terminated
(McKenzie) if they picketed (Fields and Boone), joined a union (Boone), voted in a union
(Boone), brought in a union (McKenzie), or engaged in a strike (Kastroll). I further note that,
while Wynn, Pascal, and William Westbrook denied that Wynn uttered the alleged warning,
none of the dealers, who testified on Respondent’s behalf (Keith Gazda, Ljilj Cerovina, and
Thomas Golly), specifically denied the asserted threat.37 With regard to credibility, while neither
Fields nor Boone impressed me as being a particularly honest witness,38 both were
corroborated by Golly, Westbrook, and Wynn regarding aspects of their respective testimony
regarding Wynn’s statements during the October 30 meeting.39 Also, while McKenzie and
Kastroll impressed me as being basically truthful witnesses, as both offered dubious testimony
regarding Wynn’s comments about the Golden Nugget Hotel’s valet parking employees,40 I
have difficulty accepting the entirety of the testimony of each as to the above meeting. Wynn,
who specifically denied the alleged threat and averred that he never would have uttered such a
“ridiculous” statement, exhibited a haughty and insolent attitude while testifying, and, as a result,
did not impress me with his demeanor. In particular, I note his sardonic and disingenuous
testimony that, notwithstanding having admittedly informed the listening dealers that a union’s
only leverage is “a strike” and that, if they do strike, he would be “forced” to replace them just as
he had previously done at the Golden Nugget to the valet parking employees, he believed the
two women, whom, he noticed, were crying, had become “teary” before they entered the
meeting room and “. . . I’m sure it wasn’t anything that I said. . . .” Nevertheless, while I am
irresolute to credit Wynn’s denial, in view of the incandescently inconsistent testimony of Fields,
Boone, McKenzie, and Kastroll on this issue, I am not comfortable crediting, and do not credit,
any of them that Wynn used the word “terminate” in discussing his reaction if the dealers were
to organize a union or engage in a strike.
Counsel for the General Counsel next asserts that Steven Wynn’s threat to extirpate
guest tipping for the casino table games dealers was violative of Section 8(a)(1) of the Act, and
there is no dispute that Steven Wynn raised this subject during the October 30 meeting. Thus,
Boone, McKenzie, Kastroll, Gazda, Pascal, Golly, and Westbrook recalled Wynn mentioning
this, and I rely upon Golly, who recalled Wynn making “. . . a comment that I could put up a sign

37 Gazda and Cerovina could not recall whether Wynn uttered the words, and Respondent’s
counsel failed to ask Golly.
38 As I shall discuss infra, both in the events surrounding her discharge and while testifying
at the instant hearing, Fields exhibited a proclivity for dissembling. Moreover, given their
respective lawsuits against Respondent involving the October 30 meeting, Fields and Boone
harbored obvious bias against Respondent.
39 Golly corroborated Fields as to Wynn’s rather sarcastic remark regarding her perceived
loss of at least $15,000 resulting from the change in the tips policy; Westbrook corroborated
Fields regarding Wynn taking her chair from her in order to sit at the table on October 30;
Westbrook corroborated Boone that she left the meeting in order to go the restroom; and Wynn
corroborated both women that each was crying during the meeting.
40 Before contradicting herself during cross-examination, McKenzie had initially testified that
Wynn said the Golden Nugget valet parking employees had formed a union and “they were all
fired.” Likewise, Kastroll quoted Wynn as saying that the valet parkers had “persisted” in
striking and he retaliated by “firing” them-- he “. . . terminated about 40 of them.” This latter
testimony was, of course contradicted by Golly, Fields, and Boone.
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on the table, no tokes. And I made a comment you wouldn’t do that.” Of course, the issue
herein concerns the timing of Wynn’s asserted threat; did he raise the issue while discussing the
new tips pool arrangements or while discussing the possibility of union representation for the
dealers? As to this, the record evidence is uncertain and contradictory. Thus, while neither
Gazda, Golly, Pascal, or Westbrook was able to recall when, during his remarks, Wynn raised
the matter and Boone and McKenzie each asserted that Wynn made his alleged threat while
discussing the dealers’ possible union organizing efforts, Kastroll recalled Wynn uttering the
comment while she and the other dealers questioned and complained to him about having to
share their tips with the team leads. Undoubtedly aware of the dubious state of the record, in
his post-hearing brief, counsel for the General Counsel enigmatically suggests that Wynn
uttered his threat twice-- “in the context of both the dealers’ dissatisfaction with the tip-sharing
plan and any ideas they may have had about bringing in a union;” however, I am unable to find
anything in the record to support his assertion. In these circumstances, as the record evidence
is manifestly uncertain as to the timing of Wynn’s alleged threat, I am unable to conclude that
such was violative of Section 8(a)(1) of the Act.
As to whether, during his remarks on October 30, he unlawfully told the listening dealers
that the only thing a union could do for them is to call a strike, before astuciously altering his
testimony during cross-examination, Wynn admitted saying that not only could a union never
force a company to change a policy but also the only thing a union could do is “to call you off the
job in a strike.” Further, Golly credibly quoted Wynn as warning “. . . that the union isn’t going to
do anything for you. They can’t do anything for you. No one is going to get a penny. . . . the
only leverage a union has is a work stoppage.” As stated above, without offering any legal
argument or case support, counsel for the General Counsel labels Wynn’s comments unlawful;
while the attorneys for Respondent argue that anything Wynn said to the employees was
opinion privileged by Section 8(c) of the Act, which provision privileges an employer to express
any arguments or opinions as long as said expressions contain neither threats of reprisals or
force nor promises of benefit. Although counsel failed to offer any rationale, the General
Counsel must believe that, by his comment, Wynn threatened the dealers that supporting a
union as their bargaining representative would be futile. While in Weldon, Williams & Lick, 348
NLRB No. 45 at slip. op 4 (2006), the Board held that “an employer violates Section 8(a)(1) by
threatening employees that attempts to secure union representation would be futile [and an]
unlawful threat of futility is established when an employer states or implies that it will ensure its
nonunion status by unlawful means,” the Board has also held that “it is a violation of Section
8(a)(1) of the Act for an employer to warn employees that there will be strikes . . . if they choose
to be represented by a union.” Gold Kist, Inc., 341 NLRB 1040, 1041 (2004). In Gold Kist, the
employer warned employees that a strike was the union’s “only weapon” to force it to agree to
their union’s contract proposals. Id. Likewise, I find herein Wynn warned the employees that a
union would be unable to do anything for them and that the only leverage a union has is a strike.
In these circumstances, I find that Wynn’s remark constituted a threat of the futility of union
representation to the listening dealers, was not privileged by Section 8(c) of the Act, and,
therefore, was patently violative of Section 8(a)(1) of the Act. Gold Kist, Inc., supra; Federated
Logistics & Operations, 340 NLRB 255, 256 (2003); AP Automotive Systems, 333 NLRB 581
(2001).
Finally, with regard to the October 30 meeting, besides his above unlawful threat of the
futility of union representation and other legal, but derisive, comments about said subject,
several witnesses, including Golly and Pascal, recalled that Steven Wynn threatened to replace
the dealers if they chose to “strike,” and Wynn himself admitted that he told the employees that,
if they engaged in a strike, exactly as what happened to the valet parking employees at the
Golden Nugget, such would necessitate “permanent replacement” for them. The attorneys for
Respondent are quite correct that an employer does not unlawfully threaten employees with
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discharge by informing them, in the event of an economic strike, they may be subject to
permanent replacement without also fully detailing the protections, which are afforded to
economic strikers, enumerated in Laidlaw.41 Eagle Comtromics, 263 NLRB 515 (1982).42
Clearly, the scenario, contemplated under Eagle Comtronics, is an economic strike, which is
initiated by a labor organization for its members’ gain, and not an unfair labor practice strike,
which is undertaken to protest the unlawful acts of the employer. Unifirst Corp., 335 NLRB 707,
707 (2001). Herein, there is no dispute, and Wynn conceded, that he used the word “strike”
without identifying the type of strike-- economic or unfair labor practice-- about which he spoke.
This is significant, for the reinstatement rights of unfair labor strikers are significantly greater
than those of economic strikers. Thus, unlike an economic striker, upon an unconditional offer
to return to work, an employer must immediately reinstate an unfair labor practice striker
(Nortech Waste, 336 NLRB 559, 565 (2001); Mauka, Inc., 327 NLRB 803 (1999)), and, in my
view, warning a potential unfair labor practice striker that he or she may be permanently
replaced is a misstatement of Board law tantamount to a threat of discharge. Moreover, in the
context of the rights of strikers, the use of the word “strike” alone is fraught with ambiguity, and,
clearly, “. . . any ambiguity should be resolved against the employer.” Unifirst Corp., supra;
L.S.F. Transportation, Inc., 330 NLRB 1054, 1066 (2000). I recognize that the rationale,
underlying the Board’s decision in Eagle Comtronics, was that “an unwarranted burden” would
be placed upon an employer to explicate all the possible consequences of being an economic
striker, and the Board specifically did not adopt the view of the administrative law judge that the
permitted half-truth might lead listening employees to erroneously believe that their jobs would
be permanently forfeited, a misconception held by, at least, two of Respondent’s dealers.
Nevertheless, while it may increase the burden upon an employer to define the type of strike
when speaking to its employees about the consequences of withholding their services, I think
such must be balanced against the resulting damage to a listening employee, who may refrain
from engaging in a strike against the employer to protest an unfair labor practice, a Section 7
right, for fear of forfeiting his employment. I believe that this is especially true in the context of
an employer’s speech, such as Steven Wynn’s, warning employees about the possible adverse
consequences of union organization rather than in the context of an employer’s remarks when
confronted with an imminent or on-going economic strike. Accordingly, I find that, in the course
of derisive comments about the effects of union representation at a time when no strike was
imminent, by discussing the consequences for Respondent’s employees of engaging in a
“strike” without defining the term, Wynn crossed over the Eagle Comtronics line, sufficiently
confusing the issue to the point that his warning constituted a threat of discharge, which coerced
and restrained the listening employees in violation of Section 8(a)(1) of the Act.43

41 The Laidlaw Corporation, 171 NLRB 1366 (1968).
42 The Board, in Eagle Comtronics affirmed that, pursuant to Laidlaw, even if permanently
replaced, economic strikers retain the right to make unconditional offers to return to work and to
be reinstated upon such offers if positions are available and to be placed on a preferential hiring
list if positions are not available at the time of the offer to return to work. Eagle Comtronics,
supra, at 515
43 The Board, in George L. Mee Memorial Hospital, 348 NLRB No. 15 at slip. op. 2 (2006),
did state that “an employer may lawfully inform employees that they would be permanently
replaced if they went on strike.” However, the Board cited to Chromalloy American Corp., 286
NLRB 868 (1987) as support; and, in the cited decision, the statement, regarding permanent
replacement, was written in letters to economic strikers.
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B. The Alleged Unlawful Suspension and Subsequent Discharge of Cynthia Fields
Notwithstanding Steven Wynn’s assurances to the dealers during the October 30
meeting that none of the dealers would be fired except for “severe” cause and that “the hardest
place,” from which to be fired, is one of his facilities, Respondent initially suspended and
subsequently terminated Cynthia Fields on January 12, 2007, acts, which the General Counsel
alleges, were in violation of Section 8(a)(1) and (4) of the Act.
On November 8, 2006, nine days after the above meeting, Fields filed the original unfair
labor practice charge in Case 28-CA-21073, which concerned Wynn’s unlawful threats during
the said meeting. On December 28, the Regional Director of Region 28 issued a complaint,
alleging that Respondent, through Wynn, had engaged in unfair labor practices violative of
Section 8(a)(1) of the Act. According to Fields, neither subsequent to the filing of the unfair
labor practice charge nor after the issuance of the complaint, did any supervisors or
management officials speak to her regarding her involvement with the Board. Thereafter, on
January 4, 2007, a local Las Vegas daily newspaper, the Las Vegas Review-Journal, published
an article, entitled “NLRB Files Complaint Against Wynn Las Vegas,” which detailed the
allegations of the complaint and specifically named Fields, Tynisia Boone, and Tramel
McKenzie as assisting during the investigation of the unfair labor practice charge.
Two days later, in the afternoon on Saturday, January 6, while she was dealing
blackjack, Fields was “tapped off” by a replacement and instructed to report to the baccarat
room and meet with “three headhunters,” an employee term for casino managers. Arriving at
the baccarat room, she noticed Pat Mosca standing outside an office. He invited her inside the
room in which Anthony Tyne, another casino manager, Vincent Collura, an assistant casino
manager, who was seated behind a desk, and Debra Rollins, a team lead, were waiting. Fields
sat in front of the desk, and Collura announced that they were there to give her a “shopper’s
report.” He then “. . . pulled out the shopper’s report and what he said was you scored . . .
below the acceptable rate of 80 percent.”44 He continued, explaining that she scored perfect on
appearance, game procedures, and game protection; however, regarding customer relations,
“. . . I was uninviting to the customer. I did not smile. I did not welcome them to the table.”
According to the shopper, “. . . he did not feel invited or welcome at the table. . . .” Collura then
said that, inasmuch as she scored below 80 percent, she needed to show improvement over the
next two weeks. He said she would be shopped again within that time period, “. . . and if you do
not show any improvement . . . I would be given a written warning after that.” At this point,

44 Respondent contracts with a shopping service to perform quarterly evaluations of each of
its approximately 600 dealers. Basically, a “shopper,” who acts the role of a typical customer,
sits or stands at a gaming table and pretends to play the game, utilizing money supplied by
Respondent, while performing an evaluation of the dealer. Upon completing his or her
evaluation, utilizing a performance criteria form, which covers such points as greeting/first
interaction, appearance, body language, game dialogue, and game protection, and awards
maximum point totals for each one, the shopper is tasked to score the dealer on each criterion,
awarding points up to the maximum. The maximum point total is, of course, 100, and a dealer
is expected to score a minimum of 80 percent. According to Westbrook, meetings are held with
each dealer to go over the shopper’s report, but, given the large number of dealers, employed
by Respondent, there are significant delays between the completion of a report and the meeting
with the employee. According to Collura, who is the assistant manager responsible for meeting
with dealers to discuss the shopping reports, he may be up to three months behind in receiving
shopper reports from the vendor; at the time of the hearing (the first week of August), “. . . I am
going over reports . . . that were done in April. Just finishing those.”
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aware that Respondent normally issues a “counseling notice” to an employee prior to a written
warning, Fields asked to see the counseling notice, and Collura gave her the said document,
which, on its face, states December 12, 2006 as the preparation date, states that her score on
the shopper’s report was 77.78 percent and that the counseling report was for her “failure to
meet standards, and, for corrective action, states “Ms. Fields will make immediate
improvements to performance in order to bring up future reports scores.” Upon reading the
counseling report, and the shopper’s report, Fields told Collura “. . . that’s not me. That’s way
out of my character. I am an extremely friendly person with all the guests. I’ve never had any
issues with anyone.” She then told Collura she would refuse to sign the counseling report but
requested a copy. Collura said she could not receive a copy unless she signed the document.
According to Fields, becoming emotionally upset over the negative counseling report and the
counseling notice, she began crying uncontrollably, and she complained to Collura, saying that
she had never before experienced a customer complaining to a supervisor about her job
performance and that she believed the basis for the shopper’s report and the counseling notice
was the Board finding merit to her unfair labor practice charge. Collura replied “. . . we know
nothing about that and . . . this is a simple counseling notice over shopper’s report.” Then, as
Fields continued to cry, Collura abruptly ended the meeting, saying to Fields “’since you’re so
upset, go downstairs and compose yourself and then when you’re done with that, come back
upstairs and return to your game.’”45
Claiming she was “crying in hysterics,” Fields walked out of the small office46 and
through the casino, went downstairs, stopped in a bathroom in order to calm herself, and then
walked to the dealers’ lounge. Once there, she immediately called the Board agent, who had
investigated her unfair labor practice charge, as “. . . I perceived it as I am going to be fired
because I made the charges with the NLRB.” However, the Board agent was unavailable to
speak to her, and, while others attempted to console her, one dealer handed Fields a phone
and told her to speak to his father, who is “a really big advocate for the tip policy.” She spoke to
this person for a few minutes but was unable to stop crying. At this point, given her emotional
state and appearance from crying, Fields decided she could not return to her blackjack table.

45 There is no dispute regarding what occurred during this meeting. Thus, according to
Vincent Collura, on, at least, six occasions between December 12 and January 6, he attempted
to meet with Fields regarding the shopper’s report; however, due to her having left work early or
not having reported for work, he was unable to do so. Finally, he met with the alleged
discriminatee on January 6 because she “happened” to be at work and he had an extra dealer
to work as a substitute. During the meeting, he read verbatim from the shopper’s report,
including the shopper’s comments, and told Fields that her 77.78 percent “barely missed” the
required 80 percent. He added that she had only “a couple errors” and suggested some
improvements. As he read from the report, Fields began acting “visibly irritated or agitated, and
“she became teary-eyed and started to cry.” She accused Respondent of deliberately targeting
her because of her affiliation with a union which, Collura told her, was untrue. At the end of the
meeting, Collura testified, he told Fields that she should go downstairs in order to compose
herself, take a break, and return to her table.
During cross-examination, Collura conceded that Fields demanded he produce a counseling
report. As to why said document was dated December 12, Collura said that he did not receive
the shopper’s report until early December 2006, that, as is his practice for every dealer, who
receives a failing shopper’s report, he prepared a counseling notice with the intent of
immediately meeting with Fields and giving the notice to her.
Fields conceded that she missed work on, at least, two occasions in December because her
child was ill.
46 According to Fields, it was approximately 4:30 p.m.
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Accordingly, she left the lounge and walked towards Respondent’s scheduling window, which is
located down a hallway, approximately 100 yards from the lounge.47
Arriving at the scheduling window, Fields testified, she found Jeff Maheu, a team lead,
who was, at the time, the acting scheduler for Respondent, behind the window. “I went up to
him and I was crying and hyperventilating, and said to him, ‘I’m so sorry, but I really need to go
home.’ I said, ‘I cannot work like this.’ I said, ‘I’m crying and crying and crying, and I can’t
stop.’” Maheu replied, “’I understand,’” and Fields responded, “’I’m too embarrassed to go back
to upstairs and clock out and sign out because I don’t want to [be seen by customers with red,
teary eyes].’” Maheu then asked Fields for her employee number, which game she had been
working on, and whether someone was then working at her table. Fields replied that there was
a substitute but that she did not know how long her replacement was supposed to continue on
her game. Insisting that Maheu seemed to be “doing something” at that point, she began
“babbling to myself” that she had to pick up her son but couldn’t drive in her agitated state of
mind, that she had just been in a meeting which shouldn’t have occurred, and that she had just
spoken to her attorney who said she shouldn’t be working in her condition. According to Fields,
she “. . . was just pretty much rambling.” Then, asked by counsel for the General Counsel
whether Maheu said anything else, she replied “I just looked at him and he was like, okay, you
can go.” At this point, I interjected and asked Fields to just state Maheu’s words, and Fields
replied, “He basically just looked at me like-- and said okay.” Then, after she apologized several
more times, Fields turned and walked away from the scheduling window.48
Asked why she went to the scheduling window, Fields replied, “Well, when I do call in
sick . . . that’s where I call for an okay to call in sick. . . . I went [there] because that’s where I felt
that I should be going to. There wasn’t a casino manager . . . downstairs, and I didn’t feel I
could go upstairs. So, it was my understanding of the policy that that’s where you go.”
Continuing, Fields said that she knew of no written policy regulating what an employee should
do if he or she found it necessary to leave work early and that Maheu never told her she had to
speak to an assistant casino manager or a casino manager or that he had to check with a
casino manager or an assistant casino manager. Finally, asked if she had considered
telephoning a casino manager or assistant casino manager, Fields replied, “It never occurred in
my mind.”
Upon leaving the scheduling window, according to Fields she went to the uniform room
and exchanged her uniform for her next day’s uniform, then went to the bathroom, and returned
to the dealers’ lounge and to her locker. She saw Jeff Maheu there, told him she was leaving
the facility, and said “I just don’t want to be on the clock and taking . . . Mr. Wynn’s money while
I’m trying to calm down to drive my car. . . . He just said okay.”49 Fields then left the lounge,

47 Employees speak to the scheduler through a glass window, which is akin to a bank teller’s
window. Behind the scheduling window is the scheduling office in which Respondent’s
scheduler works. The record establishes that said individual is the person to whom the dealers
call if unable to work on any given day. Further, the scheduler prepares the daily “road map,”
which sets forth on which gaming table dealers are working on each shift, and maintains the
early out list, which is the list of employees, who inform Respondent they will be unable to finish
their work shift and must leave early. Said list is administered on a first on-first out basis. Also,
the scheduler is responsible for the weekly dealer schedule and for employee vacations.
48 Asked, by me, did she explicitly tell Maheu she needed to leave and go home, Fields
replied, “I said I needed to leave.” I then asked if Maheu understood she wanted to leave and
said, okay, and Fields answered “yes” to both questions.
49 Again, according to Fields, Maheu said nothing about her having to speak to a manager.
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spoke briefly to Tynisia Boone in a hallway, and departed Respondent’s facility at approximately
5:15pm. Thereafter, Fields picked up her son from day care, arrived at her home, and, at
approximately 6:00pm, received a telephone call from William Westbrook on her cell phone.
“He said we are placing you on a SPI,” and he explained what that meant.50 Continuing,
Westbrook explained that her suspension was “. . . for walking off the job without
permission. . . .” She replied, “’No, I talked to Jeff Maheu. I told Jeff Maheu that I needed to
leave because I was so upset.’” Westbrook responded that she could not obtain permission to
leave from a team leader, and Fields replied that she didn’t know that and “if I had known I
needed to go to somebody else, I certainly would have.” Westbrook replied “. . . that he would
be contacting me in the next couple of days for my SPI meeting.”51
On the following Monday or Tuesday, Fields received a telephone call from
Respondent’s office, instructing her to report the next day for her suspension interview, and, the
next day, she went to Westbrook’s office where she met with Westbrook and Peggy Collura.
During the interview, Fields explained to Westbrook her understanding of what she was required
to do in order to leave work early and mentioned two other individuals who had followed the
exact same procedure and had not been disciplined-- Sandra Holton and another employee,
whom Fields was able to describe but not identify. To this, Westbrook said that “we’re not
looking at anyone else. We’re only looking at you.” Nevertheless, Westbrook said he would
speak to any witnesses and do an investigation. The meeting lasted for no more than 10 or 15
minutes. Westbrook next telephoned Fields on January 11 and told her to come to his office the
next day. She followed his instructions, and, inside Westbrook’s office, he explained “. . .
according to our policies and procedures, you left the property without permission, without the
proper authority, and we are going to separate you from the property.” Continuing, Westbrook
explained “. . . that I cold only go home through a casino manager or table games supervisor.
And he used the supervisor word all the time during this. He never [said team lead].” She
responded that Maheu was a supervisor, and Westbrook replied that “he was not acting in that
capacity at the time.” According to Fields, Westbrook never disputed that she told Maheu she
wanted to leave and he said, okay.
During cross-examination, with regard to the events of January 6, questioned about her
meeting with Vincent Collura about the shoppers’ report, Fields conceded that Collura never
actually showed her the shopper’s report but only read from it. Asked why she became so
emotional when her score was just a little more than two points below acceptable, she averred
that “. . . I have never ever been in trouble at work before, ever taken into the office and
reprimanded. And the RJ article had just come out, and I had just received in the mail that the
NLRB found merit in my charges. . . . So I’m thinking uh-oh . . . this is the beginning of the end
for me.” Further, upon leaving Collura’s office and while on her way to the dealers’ lounge,
notwithstanding crying “uncontrollably,” Fields admitted stopping and speaking to several other
dealers, telling them she had received a “terrible” shopper’s report and she didn’t think she
could continue working that day. She added that 20 to 25 minutes elapsed between her leaving
the meeting with Collura and going to the scheduling window.
As to her conversation with Jeff Maheu, Fields stated that no one was standing behind
her during their exchange and that, while “crying uncontrollably,” she told Maheu she was sorry

50 In Respondent’s terminology, this acronym means suspended pending investigation and
is the disciplinary step preceding termination.
51 Fields stated that, if Maheu had not said okay, she would not have left for the day and that
Westbrook failed to dispute her. He said only that Maheu had no authority to permit a dealer to
leave the facility early.
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and had to go home because she could not stop crying. “And then he is like, ‘Oh, I
understand.’” She then said she could not stop crying, and was sorry for that, and had to leave
to pick up her son. “And he said, ‘Okay, I understand.’” She again apologized and said she
could not go upstairs to clock out because she would be too embarrassed to do so. “And he
said, ‘I understand, ‘I understand. What is your employee number?’” After denying saying to
Maheu her attorney advised her she did not have to return to work, Fields stated that she did tell
him that her attorney had advised her not to work in her condition and then conceded she
actually was not represented by an attorney at the time.52 Then, after stating she could not
recall telling Maheu that Respondent was not supposed to have any meetings with her during
the pendency of the NLRB matter, upon being shown her pretrial affidavit, in which these words
appear, she conceded she “possibly” could have said this to Maheu-- “. . . but I was mumbling
and rambling because I was so upset that it could have been something more or less that I was
thinking as opposed to saying.”
Two major tenets of the General Counsel’s theory underlying the instant alleged violation
of Section 8(a)(1) and (4) of the Act are that, while a dealer must seek and obtain permission
before leaving Respondent’s facility prior to the end of his or her work shift,53 Respondent
maintained no work rule or policy, written or oral, setting forth exactly from whom a dealer must
obtain such permission and that other employees have received permission from the scheduler
to leave early and have not been terminated. In these regards, table games dealers Donna
Blair, Sandra Holton, and Kanie Kastroll each corroborated Fields, and, with regard to the initial
contention, William Westbrook conceded, that no such written rule or policy existed. Thus,
corroborating Fields, Sandra Holton testified that on October 23, 2006, while in the dealer’s
lounge, she became ill and, after being unable to reach an assistant casino manager or casino
manager,54 she then noticed that Jeff Maheu, who was the acting scheduler, had entered the
lounge. She approached, and “I told him I was very sick and I didn’t know what to do.” Maheu
replied, “’Well, go home. I need to know what table you’re on’ so that he could put somebody
back up there. And I asked him if I should clock out, and he said, ‘I’ll take care of it’” and asked
for Holton’s identification number. At that point, according to Holton, she left Respondent’s
facility and never received any discipline for leaving without permission. Likewise, Tynisia
Boone testified that, on a “few” occasions, she approached Maheu, “[who] was in the scheduling
office at the time,” and asked permission to leave the facility early and that he permitted her to
leave. Finally, Blair testified that, in February 2007, subsequent to the discharge of Fields,
Nancy Martinez, an assistant manager of employee relations, requested that she come to her
office. As instructed, Blair went to the former’s office and, upon arriving,55 Martinez told Blair
that “she wanted to gather information about unscheduled early outs” and, after Blair gave her

52 Compounding her falsehood to Maheu, subsequent to her discharge, Fields wrote a letter
to Andrew Pascal, seeking to be reinstated. In said letter, she wrote that, after her meeting with
Collura on January 6, “my face was red and puffy from crying and I had been hyperventilating
as well. I had called my attorney and they recommended I go home because I would be in more
trouble if I went in on the game hysterical.” Fields admitted this claim was a fabrication and that
she never had called a lawyer on January 6.
53 Pursuant to Respondent’s progressive discipline policy, “walking off the job at any point
after the shift has commenced without express permission from a supervisor” is grounds for
termination.
54 Holton stated she did this because no one was in the lounge, and she did not know what
she should do in order to leave.
55 According to Blair, when she arrived, a woman, working as a transcriber, was also inside
Martinez’ office.
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consent to questions, asked the latter to explain what an early-out is.56 Then, Martinez asked
about unscheduled early outs, and “I said that when someone gets sick, if they’re on a game . . .
and they have to go home, they tell a supervisor that they have to go home and then they go
home.” Blair then gave Martinez an example-- “I also told her that if for instance . . . I was
downstairs and I got sick, if I had to leave, if I got an emergency phone call or if I had to go
home . . . because I was ill . . . . I told her I would . . . stop at the scheduler’s office and let them
know that I had to go home . . .” At the end of the meeting, according to Blair, Martinez “. . . told
me that the purpose of the meeting was try to get employees and management on the same
page about EOs.”57 During cross-examination, Blair agreed that, pursuant to Respondent’s
termination policy, walking off the job at any point after the commencement of a shift without
express permission from a supervisor, is grounds for termination.
William Westbrook testified that Cynthia Fields, who had never previously been
disciplined,58 was first suspended, pending investigation, on January 6, 2007 and later
discharged for leaving Respondent’s facility without permission and for no other reason59 and
that he made the decision to terminate her. According to Westbrook, he learned that Fields had
left early that day when he received a telephone, and the person, whom Westbrook does not
recall, “. . . kind of described the situation that had led up to it, the meeting with Fields, that she
needed a few minutes so they gave her 20 minutes to compose herself and that she went down
and just told the scheduler that she was leaving and that her lawyer said . . . she didn’t have to
work under these conditions and that she was leaving.” Admitting that he spoke to no one else,
Westbrook then telephoned Fields and informed her she was being suspended pending
investigation.60 During the next two days, Westbrook testified, he collected statements from
witnesses and surveillance tapes, and he then telephoned Fields and asked her to come to his
office for her due process meeting. During this meeting, he stated, Fields changed her version
of what occurred at the scheduling window-- “she changed it and said that when she talked to

56 Blair testified that “the early out list is a list that a dealer will sign when they either come
into work or sometime during the course of the day. And if [there are] extra dealers, the people
on the list will be allowed to leave if their name is on the list.”
57 General Counsel’s Exhibit No. 10, the transcriber’s notes of the meeting corroborate
Blair’s testimony. Thus, according to the exhibit, Martinez asked Blair what she would do if she
got sick during a work shift, and Blair replied, “if she was downstairs and she got sick then she
would stop by the scheduler’s office to be considerate and let them know, but she would not
clock out. . . . she would say there is no way I am going to be able to finish my shift, I have to go
home. . . . she takes the scheduler for granted and believes they would do the right thing and
call her team lead or pit boss and tell them she had to leave.”
58 Apparently, she was the subject of discipline in August 2006 but Westbrook cancelled it.
59 Westbrook testified that there are two methods for leaving early. First, a dealer may place
his or her name on the early out list, which is kept in the scheduler’s office, and, if the dealer,
whose name is on the list, is told he or she can leave, the dealer clocks out and leaves. The
names go in a first on-first out order. Also, “if someone needs to leave in the middle of their shift
. . . they must gain permission . . . directly from a casino manager or an assistant casino
manager or they can go through a team lead to . . . convey the message to a casino manager or
assistant casino manager.”
60 According to Westbrook, he informed Fields that she was being placed on SPI for walking
off the job, and she said that she had gone to the scheduling window and told “them” she was
leaving. Westbrook testified he said, “I understand you told him you were leaving ‘because you
had spoken with your attorney, and you are not working under these conditions, and you turned
around and walked away. She did not deny that” and never said she told Maheu she was
leaving and he said okay.
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her attorney, she meant that she could not work under the conditions of her being upset and
crying. She said that by Mr. Maheu expressing okay while listening to her story, that that was
permission. I explained to her that he had no authority to grant permission and that she had the
duty and the obligation to go back to the pit where Mr. Collura had said that she was to go back
to. She had the team lead waiting there . . . and she never, during the almost an hour that she
remained on property, reached out to either my office, the casino manager’s, or an assistant to
gain permission to leave.” Also, Fields gave him the names of three other employees who had
left early after informing the scheduler but not a manager; Westbrook recalled two of the
employees were Donna Blair and Sandra Holton.
According to Westbrook, after meeting with Fields, he met with Holton but was unable to
substantiate her story inasmuch as, while maintaining she did ask the scheduler for permission
to leave, Holton did not know whether the scheduler had contacted a manager. In any event, he
believed Fields’ situation was different, for she had not requested permission to leave-- “she
declared she was leaving and no permission was implied or granted.” Further, Westbrook noted
that Maheu refuted Fields’ story-- “I think critical elements of it,” including “what he said.”61
Also, after speaking to Fields, Westbrook spoke to Kathy Femia, an official in Respondent’s
human resources department, to ascertain Respondent’s exact policy regarding an employee,
who is not on the early out list, leaving the facility as . . . I wanted to be sure what the procedure
has been and what their interpretation was . . . .” On this, he discovered, “anybody in the
scheduling office can not unilaterally grant anyone the permission to leave . . . . they always
have to get authority from an assistant casino manager or a casino manager,” and,
notwithstanding that he was acting as the scheduler, Maheu is a team lead and individuals in
said classification are not authorized to permit employees to leave early.62 With regard to his
former point, Westbrook testified that, if a dealer, who has not placed his name on the early out
list, becomes ill while in the lounge, he or she must telephone a manager for permission to
leave. Asked if this procedure is in writing, Westbrook averred that it always has been
“standard policy” and, while perhaps not in wring, it was “. . . verbal, by communication back to
the shift manager.” Also, during cross-examination, asked why he thought Fields went to speak
to Maheu if her intent was just to walk off the job, Westbrook opined, “I felt that Ms. Fields was
upset at . . . being given a shopper’s report. She didn’t like the score. . . . I think she felt
powerless. She wanted to express to someone without going back to the floor that she was
leaving, and that her attorney told her to leave, and she was leaving . . . .” 63 In the foregoing

61 Westbrook added that, even if Maheu had assented, he would nevertheless have
terminated Fields, for [Maheu’s] okay does not grant permission. His okay is an
acknowledgement that he understands what she is saying.” Also, asked if Fields could know
Maheu was not authorized to grant permission, he said, “It is common practice, and she has
been there since day one, that only casino management can give you permission to leave the
property, period.” Asked if Fields would have known Maheu was not a manager, Westbrook
said “Yes, sir,” and added that, while Maheu had been a floor supervisor, he denied that the
phrase, “without the express permission of a supervisor,” referred to a floor supervisor.
62 On the latter point, Westbrook testified, without contradiction, that “individually, a team
lead . . . does not have permission to send someone home . . . They have to get authorization
from either an assistant casino manager or casino manager.”
63 Westbrook testified that Fields admitted she never contacted her team lead to say she
needed to leave and never contacted casino management.
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circumstances, according to Westbrook, he decided to terminate Fields and did so at their
termination meeting on January 12.64
Jeff Maheu testified that, while classified as a team lead, he was working as a table
games scheduler for Respondent on January 6, 2007 and had been acting in that capacity for
several months. Maheu, who admitted having authority to send dealers home early off of the
early out list but specifically denied having authority to permit dealers, who were not on the said
list, to leave Respondent’s facility early, testified that, on January 6, at approximately 5:00 p.m.,
Cynthia Fields, with whom he was acquainted, appeared at the scheduling window, and “she
was emotional, teary-eyed, and seemed a little distraught.” He left his desk chair, walked over
to the window, and asked if he could help her. “She said ‘I can not work under these
conditions,’ and I said, ‘Okay, what do you want me to tell Mosca,’ who is our casino manager.
She said, ‘Tell him that I just got off of the phone with my lawyer, and that my lawyer said . . .
You do not have to work under these conditions.’ To go ahead and go. I said, ‘Okay.’ At that
time, I picked up the phone, and she walked away.” During cross-examination, Maheu admitted
that, before she walked away, he asked Fields for her employee identification number.65 As
Fields walked away, Maheu telephoned Pat Mosca and informed the casino manager of his
conversation with Fields; Mosca just replied, “Okay.” A few minutes later, according to Maheu,
he passed by Fields in the hallway but nothing was said by either. During cross-examination,
asked if he knows of any written policy that dealers have to contact a casino manager or
assistant casino manager in order to obtain permission to leave Respondent’s facility prior to the
end of a shift, he answered, “No.” Also, asked if he believed Fields did anything wrong that day,
Maheu said, “She basically came to my window and said she was leaving regardless of what I
had said that day . . . .” He believed this “because of her attitude. Because of the way she
spoke to me. She said, ‘I am leaving. I can’t work under these conditions.’ I assumed she was
leaving.” Finally, while conceding he was not oblivious to her physical condition, Maheu
pondered, “What am I supposed to say?”66
While Fields testified that no one was behind her while she was at the scheduler’s
window, speaking to Maheu, Marian Rizan, another table games dealer, contradicted her,
testifying that, in fact, he came to the window and stood behind Fields as she spoke to Maheu.
A surveillance tape, Respondent’s Exhibit No. 13, corroborated Rizan in this regard. Rizan, who

64 Westbrook conceded that, during this meeting, he told Fields that she was required to
seek permission of a supervisor in order to leave prior to the end of her shift; that Fields stated
Maheu is a supervisor; and that he said Maheu was not functioning as one when working as the
acting scheduler. He averred that, if he used the word supervisor, it was merely “semantical.”
Westbrook testified Fields was the first dealer, whom he had ever terminated for walking off
of the job.
65 According to Maheu, he did so in order to place her name in the “sick log” to delineate
“when somebody goes home, what time they are leaving at.”
66 Maheu gave two statements to Respondent with regard to the incident. In the first, dated
January 6, he wrote “Cynthia Fields came to me and said she has to leave and that she cannot
work under these conditions. I asked her what do you want me to tell Pat Mosca. She said that
she spoke to her lawyer and her lawyer said to go home and not work under those conditions.”
Subsequently, asked by Westbrook to give another statement, Maheu did so on January 9,
adding that after Fields said her lawyer said she should not work under these conditions, “I said
o.k. because I was under the assumption she was leaving no matter what I said,” and he was
not granting her permission to leave. He added that he had no authority to do so. Finally, with
regard to his second statement, while admitting that Westbrook said it should be more
“elaborate,” Maheu denied that Westbrook told him what to write.
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was acquainted with Fields, testified that he was able to overhear part of the conversation
between the alleged discriminatee and Maheu. According to him, “. . . Cynthia was really
emotional in her voice, and she was almost crying. . . . And she said, ‘I just come back from the
office . . . because of the shopper’s report’ . . . and she said then ‘Because of who I am here,
between dealers and a casino and I am out’ and she said, ‘I spoke with my lawyer’ and . . . ‘I
don’t even supposed to work in these conditions. I am out ‘ . . . . And then, she actually said
that ‘there is a dealer in my game, a replacement in my game.’” Maheu asked her what he
should tell Mosca as to her leaving, and Fields replied, “I cannot say.” Asked if Maheu ever said
o.k. to her, Rizan replied, “No, he didn’t say anything.” During cross-examination, Rizan
conceded he heard Fields say, “I’m sorry, I can’t stay.”
All parties recognize the importance of the conversation between Cynthia Fields and Jeff
Maheu. While I earlier expressed my belief that the former’s testimony exhibited a clear bias
against Respondent, my main problem with Fields is that she demonstrated a distressing
proclivity for dissembling in order to buttress her legal or factual positions. Thus, she admitted
that her comment, regarding having just had a conversation with her lawyer who advised her not
to work in her condition, to Maheu during their January 6 conversation and her similar
statement, in her subsequent letter to Andrew Pascal, in which she requested reinstatement to
her job, were fabrications. Further, Fields’ deceit extended to her testimony during the trial. In
this regard, in response to counsel for the General Counsel’s question, whether Maheu said
anything in response to her “babbling” and “rambling” about her excuses for having to leave
work early, Fields said “I just looked at him and he was like, okay, you can go.” In my view, she
certainly was aware, if credited, such a calculated response would remove any ambiguity from
what Maheu said to her, and only after I admonished her to state Maheu’s exact words did she
concede he said only, “okay.” In these circumstances, I have scant, if any, confidence as to the
reliability of her account of this conversation. Unfortunately, I have the same bitter taste with
regard to the respective testimony of Maheu and Rizan. The most significant aspect of the
former’s account of his conversation with Fields is, of course, his assertion that, rather than
asking permission to leave, she began, saying she could not work under these conditions, and,
after Maheu asked what he should tell Pat Mosca, Fields said her attorney told her she did not
have to work in those circumstances and “’to go ahead and go.’” Contradicting Maheu, during
his direct examination, Rizan testified that Fields merely said “’I am out;’” however, during cross-
examination, he changed his testimony, stating that she actually said “I’m sorry, I can’t stay.”
Moreover, Rizan corroborated Fields that she said a replacement dealer was working at her
table. Nevertheless, having assessed the demeanor of the three witnesses, while testifying, I
believe that Maheu and Rizan were each surpassingly more forthright than Fields, and I shall
rely upon their respective accounts for what was said between Fields and Maheu.
In light of my foregoing credibility resolutions and the record as a whole, I find that, late
in the afternoon of January 6, 2007, Vincent Collura summoned for Cynthia Fields to come to
his office in Respondent’s baccarat game area in order to discuss the most recent shopper’s
report regarding her work;67 that, during their meeting, Collura read the shopper’s comments

67 In his post-hearing brief, counsel for the General Counsel’s position as to the timing of the
meeting regarding the shopper’s report is that, while “curious,”there is no record evidence that
the timing was unlawful. Contrary to counsel, I view the timing as coincidental. In this regard, I
note that the dating of the counseling notice indicates that Respondent intended to meet with
Fields in mid-December. Collura stated that he just was unable to find a day and time to meet
with Fields prior to January 6, and the latter stated she missed work for a couple of days in
December to care for her sick child. Moreover, there is no record evidence that Respondent
deliberately delayed the meeting until after Region 28 issued its complaint on December 28.
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about her work to Fields, said she had scored slightly more than two points below the
acceptable score of 80 percent, discussed how she could improve her work, said she would be
shopped again within two weeks, warned her, if she did not improve, she would be given a
written warning, and gave Fields a counseling notice, dated December 12. Further, I find that
Fields become extremely agitated and emotionally upset at what Collura said and began crying;
that Collura observed Fields’ emotional distress and told her, before returning to her table, to go
downstairs and compose herself; and that, crying uncontrollably, Fields left the meeting with
Collura, went downstairs to the dealers’ lounge, spoke to other dealers about what had just
occurred, spoke on her cell phone with the father of a dealer, but remained emotionally upset
and crying.
Next, I find that, given her emotional state and appearance, resulting from her crying,
Fields decided that she could no longer work that day; that she, therefore, walked to
Respondent’s scheduling office, located approximately 100 yards from the dealers’ lounge, and
that, at the scheduling office window, she spoke to the acting scheduler, Jeff Maheu.68
Crediting Maheu, I further find that he immediately observed Fields to be crying and emotionally
distraught; that he asked if the could help her; that Fields said she was sorry, but she could not
work under these conditions and could not stay; that he said “okay” and asked what she wanted
him to tell Pat Mosca, the casino manager; that she replied she had just talked with her lawyer
on the telephone and he told her she did not have to work under these conditions, the lawyer
said to go ahead and go,”69 and there already was a substitute dealer working on her game;70
that Maheu said “okay” and asked Fields for her employee identification number. Finally, I find
that Fields then left the scheduler’s window; exchanged her work clothes; and, after talking to
other dealers and walking by but not speaking to Maheu, left Respondent’s facility.
The parties agree that a determination as to whether Respondent’s termination of Fields
was violative of Section 8(a)(1) and (4) of the Act must be analyzed pursuant to the burden-
shifting framework set forth in the Board’s Wright Line decision. American Gardens
Management Co., 338 NLRB 644, 645 (2002); McKesson Drug Co., 337 NLRB 935, 936 (2002).
Thus, under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983), “. . . the General Counsel has the initial burden of proving that the employee’s
protected activity was a motivating factor in the employer’s action. If the General Counsel
meets the initial burden, the burden shifts to the employer to prove that it would have taken the
adverse employment action even in the absence of the employee’s protected activity.”
McKesson Drug Co., supra, at 936. Two points are relevant to this analytical approach. First, a
pretextual discharge should be viewed as one in which “. . . the defense of business justification
is wholly without merit” (Wright Line,supra, at 189, n. 5), and the “burden shifting” analysis of

68 I do believe Fields that she went to speak to Maheu about leaving work early because
employees must telephone the scheduler if they do not intend to report for work any day. In this
regard, while Respondent’s written policy is to terminate employees who walk off the job and
leave Respondent’s facility without permission and employees may not leave work prior to the
completion of their shift without permission, I believe and find that, at no material time herein,
did Respondent maintain any written or oral rule or policy regarding from whom dealers must
receive permission to leave work early.
69 Specifically, I do not believe Fields that, while speaking to Maheu, she babbled, rambled,
mumbled, prattled, or, in any other way, trivialized a feigned conversation with her attorney as
her excuse for leaving work early.
70 While Maheu did not recall Fields making the latter statement, Rizan corroborated Fields
that she did mention that a substitute was working at her table.
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Wright Line need not be utilized. Arthur Young & Co., 291 NLRB 39 (1998). Also, regarding the
latter point, “it is . . . well settled . . . when a respondent’s stated motive for its actions is found to
be false, the circumstances warrant the inference that the true motive is an unlawful one that the
respondent desires to conceal.” Flour Daniel, Inc., 304 NLRB 970 at 970.
At the outset, there does not appear to be any dispute and there is clear record evidence
regarding the first three elements necessary to establish the General Counsel’s initial burden
under Wright Line. Thus, Fields engaged in protected concerted activates by filing the unfair
labor practice charge in Case 28-CA-21073 and assisting the Board during its investigation.
McKesson Drug Co., supra. Moreover, inasmuch as Fields’ name appeared on the unfair labor
practice charge and the subsequent complaint in the above-captioned matter, Respondent was
clearly aware of her actions. Next, of course, Respondent suspended and subsequently
terminated Fields. The controversy herein revolves around the fourth element necessary for the
General Counsel to establish a prima facie violation of Section 8(a)(1) and (4) of the Act--
whether a “motivational link or nexus” exists between Fields’ protected concerted activities and
her discharge by Respondent. American Gardens Management Co., supra, at 645. I do not
believe that the General Counsel has established the existence herein of the required unlawful
animus.
Counsel concedes that there exists no direct record evidence herein of discriminatory
motivation but argues two alternative theories with regard to the existence of such-- that there is
circumstantial record evidence establishing unlawful motivation underlying the termination of
Fields or that her discharge was pretextual in order to disguise Respondent’s true, unlawful
motive. As to the first, while also pointing out that Fields was the first dealer terminated by
Respondent, counsel essentially argues that the timing of Respondent’s suspension of Fields,
the precursor of her discharge, occurring just nine days after Region 28 issued its complaint in
Case 28-CA-21073 and two days after the newspaper article regarding the complaint,
demonstrates that Respondent’s adverse employee actions were unlawfully motivated. It is, of
course, well settled Board law that “. . . the timing of an employer’s action in relation to known
union activity can supply reliable and competent evidence of unlawful motivation.” Davey
Roofing, Inc., 341 NLRB 222, 223 (2004). However, close analysis of the record evidence, as
to the events of January 6, demonstrates the fallacious nature of counsel for the General
Counsel’s assertion. Thus, while counsel avers that the timing of the intervening January 6
meeting, initiated by Collura in order to discus Fields’ negative shopper’s report, is “curious,” the
General Counsel alleged neither the shopper’s report itself nor the meeting, regarding said
report, as being unlawful. Further, I note that the counseling notice, concerning the shopper’s
report, was dated December 12, Vincent Collura was uncontroverted that he attempted, but was
unable, to meet with Fields on, at least, six occasions in December, and Fields was absent from
work a few days in December in order to care for her sick child and that these militate against
inferring anything nefarious from the scheduling of the above meeting. Moreover, of course, it
strains credulity that Respondent was prescient enough to have foretold Fields becoming
hysterical as a result of the negative shopper’s report and the resulting counseling notice,
initiating the conversation between herself and Maheu, and leaving Respondent’s facility prior to
the end of her work shift. In these circumstances, I believe there is insufficient record evidence
to warrant the inference that, rather than being merely coincidental, the timing of Respondent’s
suspension and discharge of Fields was somehow directly related to her involvement with the
Board.
The General Counsel next asserts that Respondent’s stated reason for its discharge of
Fields-- that she left Respondent’s facility prior to the end of her shift without permission-- was
pretextual. In my view, this is the more troubling contention, for accepting its validity
necessitates finding that Respondent sought to conceal its actual, motive for discharging Fields.
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In this regard, William Westbrook’s demeanor, while testifying, was that of an utterly
disingenuous witness, and I am loath to accept significant aspects of his account of the events
herein or of his disciplinary decision-making rationale. Thus, while Respondent undoubtedly did
maintain a policy, requiring dealers to seek permission from a supervisor in order to leave work
prior to the end of their work shift, there is no dispute that it maintained no written policy
delineating exactly from which supervisors dealers were required to seek such permission, and I
do not believe Westbrook that any oral policy had ever been disseminated amongst the dealers,
specifying the management officials who must grant such permission. That this is true, of
course, is seen from the conversation between Donna Blair, and Nancy Martinez, an assistant
employee relations manager, during which the latter interrogated Blair as to her understanding
as to the procedure for leaving early. Martinez’ questions to Blair not only establish that the
dealers were unaware of the putative procedure, outlined by Westbrook, but also that
Respondent itself had not yet devised or published such a policy. Further, I do not believe
Westbrook that Respondent’s scheduler is not authorized to permit dealers to leave work early.
However, whether the individual working in said capacity was explicitly authorized to grant such
permission is not the issue, for I believe that Fields reasonably believed the scheduler
possessed such authority. Thus, I note that, slightly less than three months earlier, Sandra
Holton71 had requested and received permission from acting scheduler Maheu to leave early,
an incident about which Fields was aware, and that Respondent required dealers, who intended
to be absent from work for any reason, to telephone the scheduler on the day of the absence.
Notwithstanding that Westbrook may have been deceitful regarding aspects of
Respondent’s rationale for its suspension and subsequent termination of Fields, I do not believe
that Respondent’s stated reason for her discharge was a sham. Thus, the record establishes,
and counsel for the General Counsel concedes, that, pursuant to Respondent’s progressive
discipline procedure, leaving its facility prior to the end of the work shift without the express
permission of a supervisor constitutes grounds for termination. Contrary to counsel, I believe
that, on January 6, while inside the dealers’ lounge subsequent to her meeting with Vincent
Collura, Fields decided that, under no circumstances, would she continue to work that day and
that she left Respondent’s facility prior to the end of her work shift without explicit permission to
do so. Thus, there is no dispute that, prior to her conversation with the acting scheduler, Jeff
Maheu, Fields was in a highly agitated emotional state and distraught over the negative
shopper’s report and, given her emotional and physical condition caused by her hysteria,
desirous of leaving work early. I have previously concluded that, during her conversation with
Maheu, Fields, at most, apologized for being unable to work in her present condition and said
she could not stay; that, when Maheu asked her what the reason he should give to Pat Mosca,
she dissembled, telling Maheu her attorney said she did not have to work under these
conditions and advised her to leave; that Maheu replied, o.k.; and that Fields then left the
scheduler’s window. Certain points are, I believe, readily apparent. First, Fields never actually
requested permission to leave, and, given her choice of words, not only did she have no
intention of remaining on the job that day as she approached the scheduling window but also
she made her attitude explicitly clear to Maheu, who rightly assumed she was leaving no matter
what he said. Second, Fields’ fabrication was clearly designed to induce an affirmative
response from Maheu. Given her emotional state, which was obvious to Maheu, why else
would she prevaricate a nonexistent conversation with a lawyer? Next, and of utmost
importance, inasmuch as she was untruthful to Maheu, noting the ambiguous nature of his
response, “okay,” which likely was meant merely as an acknowledgement of her excuse, I do

71 Holton impressed me as testifying in a candid manner, and, noting that such was not
controverted by Maheu, I credit her version of events. I do not rely upon the testimony of
Tynisia Boone, who seemingly always corroborated the dubious testimony of Fields.
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not believe she honestly believed Maheu had assented to her leaving work early. Finally, I
previously stated my view that, prior to speaking to Maheu, Fields assuredly had made up her
mind to leave work. and, as the former did not respond negatively to her, she did so. I think
Maheu justifiably believed her intent was to leave, and, therefore, contrary to counsel, I do not
draw any negative implication from his failure to advise her not to leave or to seek permission
from a casino manager. In the above circumstances, notwithstanding that, in order to buttress
Respondent’s position, Westbrook undoubtedly puffed regarding Respondent’ work rules and
dissembled regarding what Maheu said to Fields, I believe he was being truthful in stating that
Respondent discharged Fields for leaving work prior to the end of her work shift without
permission. Accordingly, the General Counsel failed to establish that Respondent’s reason for
suspending and subsequently terminating Fields was a mere pretext, disguising an unlawful
motive.
Accordingly, pursuant to Wright Line, supra, as I do not believe that the General Counsel
has met its prima facie burden of establishing the existence of unlawful animus, the necessary
“motivational link” between Cynthia Fields’ filing of an unfair labor practice charge against
Respondent and the Board’s subsequent issuance of a complaint based upon said unfair labor
practice charge and Respondent’s suspension and discharge of Fields, I shall recommend
dismissal of the second consolidated complaint insofar as such alleges that Respondent
suspended and subsequently discharged her in violation of Section 8(a)(1) and (4) of the Act.
C. Respondent’s Alleged Publication of An Unlawful Work Rule and Alleged Unlawful
Written Warning Issued to Mark Baldino
Mark Baldino, who worked for Respondent as a table games dealer from the opening of
its facility in April 2005 until April 24, 2007, testified that the January 4, 2007 Las Vegas Review
Journal article, regarding the Board’s complaint in Case 28-CA-21073, caused “fervent”
discussion amongst Respondent’s dealers on a daily basis “. . . because one of our own . . .
was in the newspaper, and it was big news for this industry.” In this regard, according to
Baldino, he participated in such conversations in the break room while off duty and “inside the
pits at times” during working time, and these conversations involved both dealers and team
leads. Baldino added that, whenever he worked at Respondent’s craps tables, the dealers
would engage in conversations about such subjects as sports, politics, and “whatever was
common news at that time,” and “a lot of time, it would be discussion with the customers . . .
because [they] participated . . . in various conversations.” Baldino further testified that, one day
in January, he was working at a roulette table, and, while the table was “dead,” meaning no
customers were at the table, he and another dealer working at the table, whose name is J.R.,
engaged in a conversation regarding the above newspaper article. Baldino recalled that J.R.
“. . . had asked me a question . . . because I knew Cynthia . . . because it was very big news . . .
inside the Wynn that a dealer . . . made a complaint to the [NLRB] about the current policy that
exists now in the hotel. . . . I was giving him a brief description of what happened with Cynthia
. . . . We were . . . pretty much standing there side by side.” Suddenly, Jerry Jackson, a team
lead, approached and told them to “knock it off,” and they stopped talking.
Baldino testified that, about a week later, an assistant casino manager “removed” him
from the floor and escorted him upstairs to the casino office and that, inside the office waiting for
him were Pat Mosca, Vincent Collura, and another assistant casino manager. Upon arriving,
Collura handed him a counseling notice, dated January 12 and executed by Collura and William
Westbrook, and asked him to sign it. Baldino did so. The counseling notice, General Counsel’s
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Exhibit No. 5, states,72 as to the details of the incident, “On 1/04/07 in Pit 8 while performing
mucking duties on a live Roulette game, Mr. Baldino was witnessed by [team lead] talking to the
dealers on the wheel about an article written in the local paper regarding certain employees and
Wynn Las Vegas. This caused disruption in the pit with both employees and customers” and,
regarding corrective action, states “Mr. Baldino will need to make immediate improvements
towards following all policies and procedures. He must maintain a professional dialogue while
on the casino floor with all employees and customers. Any further infractions of this nature will
result in counseling up to and including termination.” Regarding what is stated in the counseling
notice, while denying that any customers were at the roulette table, Baldino admitted that “. . .
there was a customer that wondered onto the game” just when Jackson told them to stop
talking. Further, he denied the conversation disrupted a game and said there was no more than
the one customer at any point during the conversation, and “. . . we were dead for a while. . . . It
was . . . pretty quiet, so we were just talking amongst ourselves.” Finally, according to Baldino,
he had never previously been told by Jackson or any supervisor to stop talking about any other
subject, and he had never before received discipline for engaging in such conduct.
The record establishes that, upon ordering Baldino and J.R. to stop talking at the roulette
table that day, the team lead, Jerry Jackson, who failed to testify at the hearing, wrote a “note to
file” as to what had occurred. He wrote, “Mark Baldino was scheduled to muck in Pit 8. As
soon as he got into the pit he started talking about what was in the paper about the Wynn
situation. This is not the first time this has happened. I was just about to say something to him
when he asked to go to the restroom. . . . He never returned to the pit and I saw him going to his
next game at 1:20pm in Pit 9. He is a constant bother to my team dealers, who feel threatened
when he is in Pit 8. I have asked that he not be placed in Pit 8 and Do Not want him in here
anymore.” While conceding that Baldino may have engaged in conversations with dealers on
numerous occasions without receiving discipline “because it was never brought to my attention,”
William Westbrook testified that Respondent maintains a policy absolutely prohibiting any
conversations between dealers on the casino floor-- the policy is “they should not have it--“and
that no distinction is made between the types of dialogue-- “it is personal dialogue.”73 According
to Westbrook, who also conceded that “not many” dealers have been disciplined for talking in
the pit areas since Respondent opened for business,74 “. . . I have had several conversations
with [Mark Baldino] over a short period of time prior to this and cautioned [him] on his behavior
and his language. . . . I had personally talked to him about . . . not to interact into dialogue with
others.” Also, he testified, Baldino had been previously suspended “. . . for rude and
discourteous behavior and vulgar language. And so, when [the instant situation occurred] . . .

72 As to the level of discipline involved, the counseling notice bears an “x” in the box next to
the words “verbal warning.” As will be discussed infra, William Westbrook denied that the
counseling notice signified any discipline.
73 While there does not appear to be a written rule prohibiting such dialogue, among the
criteria for rating the dealers, used by Respondent’s shopping service, is whether they engage
in conversations with fellow employees. Dealers, who engage in such conversations, are
negatively rated.
74 According to Westbrook, there have not been many disciplines for talking because many
team leads “. . . just let it go. The ones that come to me are the ones that are either from the
diligent people who report it or conversations that actually impair guest service where they are
actually ignoring a guest.” Westbrook conceded that dealers do talk amongst themselves;
however, he believes Jackson told Baldino to stop as “I think it was knowledge that the [team
leads] and casino managers had regarding [his] prior disciplines and the cautionary state that he
was in that generated that report. . . . Not because it was just him but because they knew that
he had been warned about his behavior prior and several times in a short period of time.”
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he had already reached a fairly high level of progressive discipline,”75 and “. . . I had a choice of
either taking . . . and putting him two feet out the door or having a conversation with him, rolling
back and documenting that conversation with just a verbal . . . .” Westbrook, who testified that
he authored the counseling notice and obtained the information, which formed the basis of the
notice, from Jerry Jackson’s “oral” statement and from casino managers, said he decided upon
the latter course and did so with a warning to “stop it.” Westbrook denied that the counseling
notice, which was given to Baldino, constituted discipline as “a verbal . . . is not part of
[Respondent’s] progressive discipline.”76 During cross-examination, Westbrook said he did not
know whether the dealer, with whom Baldino was talking, had received a counseling notice and
testified that the language in the counseling notice came from team lead Jackson’s note to file.
Finally, I note that Respondent offered no explanation for Jackson’s failure to appear to testify.
In deciding what occurred, initially, I note that Mark Baldino impressed me as a
straightforward witness, testifying in a frank manner, and I shall rely upon his version of the
instant events. In contrast, as stated above, Westbrook was an unconvincing and dishonest
witness, and I place no reliance upon his testimony except when corroborated. In this regard,
his asservation, directly contradicted by Respondent’s own document, that verbal counseling is
not considered a step in Respondent’s progressive discipline system, was preposterous. Also,
Respondent offered no corroboration for his claim that Baldino had previously reached a high
level of progressive discipline, and I give this assertion no credence. Further, of course, team
lead Jackson failed to testify. Thus, as Westbrook conceded the information for the counseling
notice came from Jackson, whatever the former wrote in said document must be considered
uncorroborated hearsay, and, therefore, I shall afford it no weight. Accordingly, based upon the
foregoing and the record as a whole, I find that, in early January, at a time when no customers
were playing at the roulette game, at which they were working, Baldino and another dealer were
discussing the January 4 Las Vegas Review Journal newspaper story, Cynthia Fields’ role in the
case before the Board, and the effect of the Board case upon the recently implemented
changes in the dealers’ tips pool policy; that team lead, Jerry Jackson, approached and
demanded that they stop talking; that Jackson was aware of the subject about which Baldino
and the other employee were talking; that, a week later, Respondent disciplined Baldino with a
counseling notice, marked as a verbal warning; and that the counseling notice was based upon
Baldino having been observed “. . . talking to the dealers on the wheel about an article written in
the local paper regarding certain employees and Wynn Las Vegas” and warned Baldino “any
further infractions of this nature will result in counseling up to and including termination;” and
that, while pursuant to Respondent’s shopper’s guideline, dealers should not engage other
dealers in conversations, as Baldino testified and Westbrook admitted, they regularly engage in
nonwork-related conversations while working at the gaming tables.
Using the January 12, 2007 counseling notice as the basis, the General Counsel alleges
that Respondent violated Section 8(a)(1) of the Act by promulgating a “no talking” policy
concerning the dealers’ terms and conditions of employment and Section 8(a)(1) and (3) of the
Act by issuing the counseling notice itself to Baldino. Regarding the first, as the said counseling

75 Respondent offered no corroboration for Westbrook’s assertion.
76 In the document, which sets forth Respondent’s progressive discipline policy, the first step
in the procedure is “verbal counseling/coaching. As to this, Westbrook claimed that “. . . this
particular process was never in place . . . and the company did not adopt the verbal counseling
as a step of progressive discipline.”
During cross-examination, Westbrook said there is no magic number of verbals an
employee may receive before he or she is disciplined-- “they can have numerous verbal
warnings. It depends on what the infraction is and whether it justifies progressive discipline.”
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notice describes Baldino’s discussion of the local newspaper’s article concerned the Board’s
complaint in Case 28-CA-21073, which involved a meeting during which Respondent discussed
its recently implemented changes in the dealers’ tips sharing pool as the asserted misconduct
and warns of possible termination for future such “infractions,” the said counseling notice clearly
prohibits Respondent’s dealers from discussing subjects germane to their terms and conditions
of employment. While I agree with counsel for Respondent that their client does have a valid
interest in ensuring that its table games are well run, I note that no customers were present
while Baldino and the other dealer engaged in their discussion and I do not believe that any
“disruption” of service occurred. Moreover, notwithstanding being the subject of a shopper’s
guideline, no record evidence exists that Respondent maintains a work rule, explicitly prohibiting
conversations among dealers while working, and, in fact, such conversations, involving a variety
of subjects, regularly occur. In these circumstances, it appears that, upon becoming aware of
Baldino’s acts and conduct, Respondent selectively prohibited discussion of a subject about
which it apparently had a sensitive self-interest. Board law is well settled that, while an
employer may prohibit its employees from discussing matters pertaining to their terms and
conditions of employment during working time if said prohibition also extends to other subjects
not associated with their work, such a prohibition violates Section 8(a)(1) of the Act when
employees are forbidden to discuss matters, pertaining to their terms and conditions of
employment, but are free to discuss other non-work related issues, particularly when said
prohibition is announced directly in response to specific protected concerted acts. Jensen
Enterprises, Inc., 339 NLRB 877, 878 (2003). Accordingly, I find that, by disciplining Baldino
with the above-described counseling notice, Respondent, in effect, published a rule, prohibiting
its employees from discussing matters, pertaining to their terms and conditions of employment,
during their working time while, at the same time, permitting them to discuss other nonwork-
related matters, and, therefore, engaged in conduct violative of Section 8(a)(1) of the Act.
As to whether Respondent engaged in acts and conduct, violative of Section 8(a)(1)
and (3) of the Act, by issuing the counseling notice to Baldino, I note at the outset that there is
no record evidence or contention by the General Counsel that he engaged in any union
activities prior to the alleged unlawful discipline. In any event, while once again counsel
neglected either to set forth an underlying legal theory for the alleged violation or to cite any
supporting Board decisions, I think that the merits of this allegation must be considered under
the legal framework, set forth by the United States Supreme Court in NLRB V. Burnup & Sims,
379 U.S. 21 (1964). Therein, the Court concluded that Section 8(a)(1) of the Act is violated if
the General Counsel establishes that the employee was, at the time, engaged in protected
activity, that the employer was aware of said activity, that the basis for the adverse employment
action was an alleged act of misconduct arising in the course of said protected activity, and that
the employee was not guilty of the alleged misconduct. Id. at 23. Herein, Baldino clearly
engaged in protected concerted activity by discussing the local newspaper article, which
concerned the Board’s complaint against Respondent, the subject matter of which involved a
term and condition of employment-- the dealers’ tips sharing pool, with a fellow employee.
Further, given the wording of team lead Jerry Jackson’s note to file and of the disciplinary
counseling notice, which Respondent gave to Baldino, it is clear that Respondent was aware
Baldino had been discussing the newspaper article prior to Jackson ordering him to cease doing
so. Moreover, while, given the wording of the disciplinary counseling notice, Respondent
claimed that, as a result of this conversation, Baldino caused a “disruption in the pit with both
employees and customers,” contrary to Respondent, inasmuch as I have found that no
customers were present at the roulette table while Baldino and his fellow dealer discussed the
newspaper article, I am at a loss to understand how, and do not believe that, any sort of
disruption of work resulted from Baldino’s acts. Accordingly, I further find that, essentially,
Baldino was disciplined because he engaged in acts, protected by Section 7 of the Act, and
that, therefore, Respondent’s discipline of him was violative of Section 8(a)(1) of the Act.
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D. The Alleged Unlawful Threat To Tynisia Boone
Tynisia Boone testified that, subsequent to the publication of the Las Vegas Review
Journal newspaper article, in which she was identified as having assisted Cynthia Fields in the
filing of the unfair labor practice charge in Case 28-CA-21073, on January 14, 2007 at
approximately 1:30 in the afternoon, while she was working at a craps table, a team lead, Steve
Johnson, “. . . told me they are watching me closely, Tynisia. Don’t hawk the dice. You’re doing
a horrible job hawking the dice. . . . I just said who is they . . . . the customers? He just said that
they’re watching every move I make.” Respondent failed to call Johnson as a witness regarding
what Boone attributed to him. Asserting that the position of team lead is a supervisory position
within the meaning of Section 2(11) of the Act, counsel for the General Counsel argues that,
occurring just 10 days after publication of the newspaper article, Johnson’s comment should be
construed as a threat violative of Section 8(a)(1) of the Act. Contrary to counsel, while Boone’s
testimony was uncontroverted, Johnson’s comment is fraught with ambiguity and also can be
reasonably understood as a statement of fact-- that she was engaging in an act contrary to
Respondent’s procedures for dealing craps and Respondent’s overhead surveillance had
observed her violation of policy. While the Board has found statements, similar to that of
Johnson, violative of the Act, given the entirely of his comments and noting the existence of no
record evidence that Johnson was aware of the newspaper article or of the reference therein to
Boone, I agree with counsel for Respondent that the team lead was more likely commenting
upon a perceived procedural error rather than threatening her because of her assistance to
Fields. Accordingly, I find that Respondent did not violate Section 8(a)(1) of the Act by
Johnson’s comments to Boone and, therefore, shall recommend dismissal of paragraph 5(g) of
the second consolidated complaint.77
Conclusions of Law
1. At all times material herein, Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. By threatening its employees with the futility of representation by a union,
Respondent engaged in acts and conduct violative of Section 8(a)(1) of the Act.
3. At a time when no strike was imminent, without defining the type of strike, by
threatening its employees, if they engaged in a “strike,” they would be permanently replaced,
Respondent threatened its employees with discharge in violation of Section 8(a)(1) of the Act.
4. By promulgating a rule, prohibiting its employees from discussing matters, pertaining
to their terms and conditions of employment during their working time, while, at the same time,
permitting them to discuss other non-work related matters during their working time,
Respondent engaged in acts and conduct violative of Section 8(a)(1) of the Act.
5. By issuing a disciplinary counseling notice to an employees because he engaged in
protected concerted activities, Respondent engaged in acts and conduct violative of Section
8(a)(1) of the Act.
6. Unless specified above, Respondent engaged in no other unfair labor practices.

77 In these circumstances, of course, I need not decide whether Respondent’s team leads
are statutory supervisors.
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7. Respondent engaged in unfair labor practices within the meaning of Section 2
(6) and (7) of the Act.
The Remedy
Having found that Respondent engaged in serious unfair labor practices within the
meaning of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist
from said unlawful acts and conduct and to take certain affirmative actions designed to
effectuate the purposes and policies of the Act. Also, I shall recommend that Respondent be
ordered to post a notice, setting forth its unlawful acts and obligations in order to effectuate the
purposes and polices of the Act.78
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended79
ORDER
The Respondent, Wynn Las Vegas LLC, its officers, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Threatening its employees with the futility of being represented by a union in order to
induce them to forego organizing for a union;
(b) At a time when no strike is imminent and without defining the type of strike,
threatening its employees with discharge by warning them, if they engage in a strike, they will
be permanently replaced;
(c) Promulgating a rule, prohibiting its employees from discussing their terms and
conditions of employment during working time while permitting them to discuss other non-work
related matters during their working time;
(d) Issuing disciplinary counseling notices to its employees because they engaged in
protected concerted activities;
(e) In any like or related manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.

78 Inasmuch as there is no record evidence that Respondent’s rule, prohibiting dealers from
discussing their terms and conditions of employment while working, was ever disseminated
beyond the counseling notice, which was issued to Mark Baldino, and as I shall order said
document to be expunged from Respondent’s records, there is no need for any additional
affirmative remedy with regard to the unlawful rule.
79 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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2. Take the following affirmative action necessary to effectuate the policies and
purposes of the Act.
(a) Within 14 days from the date of this Order, expunge from its files any reference to
the unlawful counseling notice, which was issued to its employee, Mark Baldino, and, within 3
days thereafter, notify Baldino, in writing, that this has been done and that the warning notice
will not be used against him in any way;
(b) Within 14 days after service by the Region, post at its hotel/casino facility in Las
Vegas, Nevada, copies of the attached notice marked “Appendix.”80 Copies of the notice, on
forms provided by the Regional Director for Region 28, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. 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 October 30, 2006.
(c) 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.
IT IS FURTHER ORDERED that the second consolidated complaint be, and the same
hereby is, dismissed insofar as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. December 31, 2007
____________________
Burton LItvack
Administrative Law Judge

80 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten our employees with the futility of being represented by a union in order to
induce them not to engage in organizing for union representation.
WE WILL NOT threaten our employees with discharge by warning them, at a time when no strike
is imminent and without defining the type of strike, if they engage in a strike, they will be
permanently replaced.
WE WILL NOT promulgate a rule, prohibiting our employees from discussing their terms and
conditions of employment during working time, while, at the same time, permitting them to
discuss other non-work related subjects during working time.
WE WILL NOT issue disciplinary counseling notices to our employees because they engage in
protected concerted activities.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful counseling notice, which we issued to Mark Baldino, and, within 3 days thereafter,
notify Baldino, in writing, that this has done and that the unlawful counseling notice will not used
against him in any way.
WYNN LAS VEGAS
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, 602-640-2146.
JD(SF)-39-07
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES SAN FRANCISCO OFFICE
WYNN LAS VEGAS, LLC
and Cases 28-CA-21073
28-CA-21197
CYNTHIA FIELDS, an Individual
and 28-CA-21205
TYNISIA BOONE, an Individual
and 28-CA-21363
TRANSPORT WORKERS UNION
OF AMERICA, AFL-CIO
Table of Contents
Statement of the Case ...................................................................................................... 1
Findings of Fact ................................................................................................................ 2
I. Jurisdiction ............................................................................................................. 2
II. The Issues ............................................................................................................. 2
III. The Alleged Unfair Labor Practices....................................................................... 3
A. October 30, 2006 Meeting and Respondent’s Alleged
Unfair LaborPractices Attributed by Steven Wynn ........................................... 5
B. The Alleged Unlawful Suspension and Subsequent Discharge
of Cynthia Fields ............................................................................................ 18
C. Respondent’s Alleged Publication of An Unlawful Work Rule
and Alleged Unlawful Written Warning Issued to Mark Baldino ...................... 30
D. The Alleged Unlawful Threat To Tynisia Boone .............................................. 34
Conclusions of Law........................................................................................................... 34
The Remedy ..................................................................................................................... 35
ORDER............................................................................................................................. 35
APPENDIX........................................................................................................................ 37