Wynn Las Vegas, LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 26, 2016

28-CA-155984 (N.L.R.B. Sep. 26, 2016)

JD(SF)–39–16
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
WYNN LAS VEGAS, LLC
and Cases: 28–CA–155984
28–CA–157203
KELI P. MAY, an individual
and
KANIE KASTROLL, an individual.
Julia M. Durkin, attorney for the General Counsel.
Gregory J. Kamer, Esq. and R. Todd Creer, Esq.
(Kamer Zucker Abbott), for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. Kanie Kastroll, an individual,
(Charging Party or Kastroll), filed her original charge in Case 28–CA–157203 on July 31, 2015,1
and her first amended charge on October 28. Keli P. May, an individual (Officer May or May),
filed her original charge in Case 28–CA–155984 on July 14 and her first amended charge on
October 30. The General Counsel issued the original complaint against Respondent Wynn Las
Vegas, LLC (Respondent or Wynn) on October 30 and amended it with a consolidated complaint
(complaint) in this case on December 1, and at hearing. The Respondent answered the complaint
generally denying the critical allegations of the complaint, as amended.
The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by discriminating against Kastroll and May in regard to their
tenure or terms and conditions of employment by issuing them adverse discipline by violating
one of Respondent’s work rules against solicitation of employees to join the union or improperly
using profanities at work in violation of an overbroad work rule prohibiting inappropriate
conduct.
The complaint also alleges the Respondent violated Section 8(a)(1) of the Act by
promulgating and/or maintaining overly broad rules regarding employee conduct and threatening
employees with reprisal. The complaint further alleges the Respondent violated Section 8(a)(1)

1
All dates in 2015 unless otherwise indicated.
JD(SF)–39–16
2
by unlawfully surveilling, interrogating, and threatening various employees with unspecified
reprisals because they engaged in union or other protected concerted activities. Finally the
complaint alleges that Respondent unlawfully interrogated Officer Moreno on February 3, 2015,
and Officer Brown at meetings in further violation of Section 8(a)(1) of the Act.
This case was tried in Las Vegas, Nevada, on February 16–18, 2016. On the entire 5
record,2 including my observation of the demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Respondent, I make the following.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it is a limited liability company with an office 10
and place of business in Las Vegas, Nevada (Respondent’s facility), and that Respondent has
been operating a hotel and casino providing gaming, food, lodging, and entertainment where it
annually derives gross revenues in excess of $500,000 and purchases and receives at its facility
goods valued in excess of $50,000 directly from points outside the State of Nevada. The
Respondent also admits, and I further find, that it is an employer engaged in commerce within 15
the meaning of Section 2(2), (6), and (7) of the Act. I further find that the Transport Workers
Union of America, Local 721, AFL–CIO (the Union) is a labor organization within the meaning
of Section 2(5) of the Act. (Tr. at 35; GC Exhs. 1(o) at 2–3 and 1(q) at 1.)3
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations and General Background and Its Solicitation and 20
Distribution Policy as of February 2015
Respondent Wynn Las Vegas, LLC, is a hotel and casino located on the Las Vegas strip.
Many of Respondent's employees are covered by collective-bargaining agreements. For example,
approximately 3500 Respondent employees are covered by a collective-bargaining agreement
between Respondent and the Local Joint Executive Board of Las Vegas, Culinary Workers 25
Union, Local 226, and Bartenders Union, Local 165 ("Local Joint Board"). (Tr. 232–233.)
The table game dealers (TGD’s), which include Kastroll, work in Respondent’s Table
Games Department and are represented by the Union which was certified as their majority
collective-bargaining representative on May 23, 2007, after an uncontested Board-conducted
secret-ballot election. (Tr. 35.) The CBA between Respondent and the Union extends through 30
2020.
Respondent hired Kastroll on April 20, 2005, and currently employs her as a TGD in
Respondent's Table Games Department. (Tr. 27.) As a TGD, Kastroll is responsible for dealing

2
The transcripts in this case are generally accurate, but I correct the transcript (Tr.) as follows: Tr. 449, line (l)
9: “hours” should be “errors.”
3
Abbreviations used in this decision are as follows: “Tr.” for transcript; “R. Exh.” for Respondent’s exhibit;
“GC Exh.” for General Counsel’s exhibit; “GC Br.” for the General Counsel’s posthearing brief and “R. Br.” for the
Respondent’s posthearing brief. Although I have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence specifically
cited, but rather on my review and consideration of the entire record.
JD(SF)–39–16
3
the game and all other functions associated with her assigned game, including providing positive
guest interaction. (Tr. 28, 121–122.) Kastroll typically works the day shift from 12 p.m. to 8
p.m.; however, on February 2, 2015, Kastroll was working earlier hours due to an increase in
guests from the Super Bowl weekend. (Tr. 39.)
5
Respondent maintains a written Solicitation and Distribution Policy. (GC Exh. 2.)
Respondent’s alleged purpose of the policy is to maintain a productive, efficient, and clean work
environment, as well as to minimize the potential of any disruption to Respondent's guests. Id.
Respondent has an intranet site called The Wire, which employees can access from 10
computers at work, or from home, using a password. (Tr. 141, 325). Employees can use The
Wire to look up personal work information, such as their recorded hours of work, their vacation
days, and their pay stubs. Respondent also maintains and updates its work rules and policies on
The Wire with the latest revisions available to employees. (Tr. 141, 165–166, 325–326).
15
At all material times since May 13, 2014, Respondent has also maintained a Solicitation
and Distribution policy on The Wire. (Tr. 258; GC Exh. 2). The policy states, among other
provisions:
1. Solicitation and/or the distribution of materials anywhere on Wynn property at anytime 20
that is related to the sale of any goods or services not offered by Wynn is prohibited at all
times unless approved by the Vice President of Human Resources.
2. All other solicitation by employees is prohibited in work areas during the work time of
the employee initiating the solicitation or the employee being solicited.
3. For the purpose of this policy, working time does not include breaks, lunch periods, or 25
other designated relief periods during which an employee is not assigned to or expected
to perform job duties, or time before or after work. Work areas do not include employee
break areas, employee cafeteria, parking lots and areas outside of the facility.
4. Solicitation is oral communication asking or seeking a person to take some action, such
as buying a product or service, contributing to a charity, or joining an organization. It also 30
includes requests for employees to sign union authorization cards or representation
petitions and the exchange of such documents for signature.
(GC Exh. 2). The Solicitation and Distribution policy applies to all Respondent’s employees. (Tr.
168).35
Respondent has generally enforced its Solicitation and Distribution Policy when
violations are brought to its attention. Since 2014, there have been three (3) incidents that
resulted in written warnings to employees, including the first written warning that Respondent
issued to Kastroll, which is a subject of this case. (Tr. 281–282; GC Exh. 23; GC Exh. 24.)40
Officer Rankin, Respondent’s security officer for 11 years, explained his understanding
of Respondent’s policy for its security officers’ job duties when he pointed out that if a
Respondent guest is lost or looking for an answer or directions, Respondent’s security officers
should assist the guest and go forward and approach that guest as part of a security officer’s 45
duties. (Tr. 462.)
JD(SF)–39–16
4
Kastroll opined that she frequently has nonwork-related conversations on the casino floor
but admits that such conversations depend on how busy the casino is and whether it is interfering
with guest service. (Tr. 75, 77–78, 100.) Kastroll also acknowledges that before February 2,
2015, she has been orally warned on prior occasions to limit conversations. (Tr. 77–78, 138–5
140.) Kastroll also has never reported anyone for soliciting her while she was on duty. (Tr. 100,
140.)
B. The February 2, 2015 Incident Involving Kastroll’s Three-Minute Talk to Security
Officer Moreno at Respondent’s High Profile Priority One Post While Officer Moreno was On 10
Duty
On January 16, 2015, the Regional Director of Region 28 directed an election to be held
in Case 28–RC–143406 in the following unit of Respondent's employees:
All full-time and regular part-time security officers employed by Respondent at its
facilities in Las Vegas, Nevada, excluding all other employees, security officers at Trist,15
Surrender, XS, and Encore Beach Club at Respondent's facilities, office clerical
employees, and supervisors, as defined by the Act.
(Tr. 11.)
20
The former in-house general counsel for Respondent, Kevin Tourek (Tourek), testified
that he became aware that the security officers’ union known as Security, Police and Fire
Professionals of America (SPFPA) filed a petition with the Board seeking to represent
Respondent's security officers almost immediately, and that he was also aware that the same
election was to be held in February. (Tr. 171–172, 184–185.) On January 23, the Regional 25
Director issued a further direction that the election in Case 28–RC–143406 was to be conducted
at Respondent's facilities on February 11. (Tr. 11.)
Charging Party Kastroll was aware that Respondent’s security officers were attempting to
organize a union and she testified that in January and February she had about 40 conversations 30
with security officers at the Respondent about organizing. She could not recall each specific
conversation, and testified that they ranged in time, some being only 10 to 30 seconds long.
(Tr. 37–38.)
On February 2, just before 5 p.m., Kastroll spoke to Security Officer Johnny Moreno35
(Officer Moreno) about the upcoming SPFPA union election. (Tr. 38, 40.) Kastroll was working
as a TGD on the main casino floor that day. (Tr. 39–40.) She approached Officer Moreno, who
was on-duty, did not know Kastroll, and was assigned to Priority One Post,4 after she had been

4
Priority One Post (also known as "the crossroads"), is located at the intersection of the Casino, the B-Bar, and
the Host Office, the highest customer traffic area on Respondent’s entire property. Tr. 38–40. It is undisputed that
Priority One Post is considered the busiest post at Respondent and is the number one post for security and guest
satisfaction because given its location in the casino/hotel, it is the one place in Respondent where everyone will most
likely walk by at one point or another during their time at Respondent. Tr. 214, 294, 482, and 543. Priority One Post
provides a panoramic view of everything that is going on with significant amounts of guest traffic. Tr. 242–243,
442, and 483. In addition to guest traffic, approximately 130 to 150 TGD’s work on the main casino floor on an
average day shift, along with 55 casino service team leads, and a number of other nongaming employees such as
JD(SF)–39–16
5
tapped off her last game for the day and was heading down to the basement to clock out for the
day. (Tr. 39–44, 97, 545–546.)
Kastroll approached Officer Moreno and identified him as a security officer. (Tr. 40–41.)
When she approached him, there were no other security officers present and he wasn't speaking 5
with anyone. (Tr. 42.) There were a number of guests and customers in the general vicinity. (Tr.
98–99; GC Exh. 11.)
Kastroll struck a one-sided conversation with Officer Moreno where she did almost all of
the talking trying to encourage him to vote for the SPFPA later in the month. (Tr. 41, 43–44, 97, 10
545–546, GC Exh. 11.) Among other things, Kastroll said: "Hey, I heard you guys are having an
election pretty soon. Good luck on that. We pray for you." Officer Moreno responded, "Well, I
don't know if. . . it's going to go through." Kastroll asked why, and Officer Moreno stated, "Well,
we've been going to these mandatory meetings and the president, Maurice [Wooden], is sitting
up there telling us that that's the wrong union for us because there was some kind of 15
embezzlement supposedly and that's just—that's not a good union for us." Kastroll responded
with an almost 3 minute talk to Officer Moreno, including the following:
"Well, hey, man, any union is better than no union and don't worry about it, don't worry
about what they're saying because we've been through all kinds of stuff. The dealers did 20
this, you can do it, too. You guys can do it, too. We've been through all those captive
audience, you know, mandatory meetings. We've had all this anti-union propaganda
mailed to our homes. We had even these supervisors that were receiving our tip money
would sit at the bottom of the escalator passing out these union busting papers to us on
the way to our breaks…. Don't listen to all that. Just you guys -- you guys need to have 25
your own voice and don't worry about it… just hang in there.
(Tr. 43–44).
Kastroll’s talk to Officer Moreno lasted just shy of 3 minutes. (Tr. 44.) While Kastroll 30
engaged Officer Moreno, a significant number of guests and other employees passed by Officer
Moreno's post. (See generally Tr. 45–46, 88, 90, 98–99, 203–204, 207; GC Exh. 11.) Kastroll
described the high traffic as a “sea of people in the larger vicinity” around them. (Tr. 46.) Some
of the guests appeared to be in need of directions, but did not approach Officer Moreno as he
was engaged by Kastroll. (Tr. 207–213; GC Exh. 11at 16:58:13–25.) At least one guest 35
approached a different security officer, Officer Joshua Browning (Officer Browning), for

cocktail servers, engineers, Public Area Department ("PAD") employees, and security guards. Tr. 32–33. Kastroll
admits that her February 2, 2015 talk to Officer Moreno for almost 3 minutes occurred away from the casino floor
where she usually works and at Priority One Post with “a sea of people in the larger vicinity" around them. Tr. 46.
Security officers assigned to Priority One Post must be highly vigilant and direct guests and ensure casino security.
Tr. 187, 237–238, 294. Priority One Post is designed to be highly interactive with guests and visitors. Tr. 460–462;
R. Exh. 4. Security officers assigned to Priority One Post must be prepared to answer questions about both Wynn
and Encore resorts, give detailed directions to guests and visitors, and assist guests in any way. Id. In addition to
providing guest services, security officers assigned to Priority One Post must monitor the following locations for
safety hazards, emergencies, guests needing assistance, and suspicious activities: the corridor towards Parasol Up;
the corridor towards the Respondent Tower Suites, the corridor towards the Respondent Elevators/Theater; the
corridor towards the Buffet and Respondent Pool Elevators; the B-Bar, the Casino Host Lounge; the area in front of
the Main Cage; and the immediate casino/gaming area. Id. Kastroll knows and understands that security officers
assigned to Priority One Post give directions to guests and answer a lot of questions. Tr. 41, 99.
JD(SF)–39–16
6
assistance since he was momentarily in the vicinity and not otherwise engaged in conversation.
(Tr. 235; GC Exh. 11.)
Officer Browning witnessed the interaction between Kastroll and Officer Moreno. (Tr.
44–45; GC Exh. 13.) Specifically, Officer Browning overheard a portion of Kastroll's pitch to 5
Officer Moreno which he confirmed lasted several minutes. (Tr. 176–177; GC Exh. 13.) Officer
Browning observed that the interaction was mainly one-sided, with Kastroll repeatedly telling
Officer Moreno to "vote yes" for the SPFPA and with Officer Moreno merely responding "yes"
when Kastroll asked him if he understood what she was saying. (GC Exh. 13.) At one point
Officer Browning assists a hotel guest during Kastroll’s talk to Officer Moreno that arguably 10
Officer Moreno would have handled if Kastroll and Officer Browning were not present. (GC
Exh. 11 at 16:59:09:38.)
Officer Browning immediately informed his supervisor, Brenda Rawlins of the
interaction. (GC Exh. 13.) Additionally, Officer Browning informed Respondent's president,15
Maurice Wooden (Wooden), when Wooden happened to walk past him in the lobby. Id.
After her conversation with Officer Moreno, Kastroll went downstairs to the basement to
clock out for the day and went home. She didn't tell anyone about the conversation. (Tr. 46–47.)
Kastroll’s approximate 3 minute talk to Officer Moreno on February 2 is otherwise known as the 20
February 2 Incident.
Once Kastroll left him alone, Officer Moreno was able to resume his regular duties in
observing the casino for security threats and engaging guests uninterrupted by Kastroll. (Tr.
235237; GC Exh. 11 at 17:01:07, 17:02:04, 17:02:19.) Not once during the almost 3 minutes that 25
Kastroll was talking to Officer Moreno did he assist or engage any of Respondent’s guests. That
changed soon after Kastrol left Officer Moreno’s presence. (GC Exh. 11.)
C. Respondent’s Investigation of the Feb. 2 Incident
30
Tourek testified that he received a call from Respondent’s president Wooden, who
informed him that Officer Browning complained to him that Officer Browning had witnessed a
dealer having a conversation with a fellow security officer about the security union vote.
Wooden asked Tourek to investigate the matter since it was a sensitive time due to the upcoming
SPFPA election and because he wanted someone who would be knowledgeable of any legal 35
repercussions when conducting the investigation. (Tr. 175, 230–231.)
Tourek explained that it is not unusual for him to be involved in company investigations
and that Wooden had frequently directed him to conduct investigations. (Tr. 175, 229–230.)
Moreover, as the alleged conduct involved two (2) different departments—TGDs and security 40
officers—Respondent's employee relations manager, Courtney Prescott (Prescott [ aka Courtney
Swanson]), handled the investigation with Tourek rather than the Table Games Department
manager. (Tr. 54.)
On February 3, 2015, Tourek talked to Officer Browning about the February 2 incident. 45
(Tr. 176.) Tourek asked Officer Browning what he witnessed, and Officer Browning told him
JD(SF)–39–16
7
that he had witnessed a female dealer talking to a security officer at Priority One Post for a long
period of time and that she was talking about union support and how the officer should support
the SPFPA. (Tr. 176–177,) Officer Browning identified Kastroll as the dealer involved and
Officer Moreno as the security officer approached by Kastroll. (Tr. 270–271.)
5
Tourek asked Officer Browning how he came about to know about the February 2
incident at Priority One Post and Officer Browning explained that he wasn't a big supporter of
the union, that they had been urging him to participate, so when he saw the conversation
(between Kastroll and Officer Moreno) taking place he took it upon himself to eavesdrop. (Tr.
177.) According to Tourek, he asked Officer Browning where it happened and what he heard.10
(Tr. 179.)
Also on February 3, Prescott and Tourek met with Officer Moreno in an Employee
Relations conference room. (Tr. 173, 273.) Prescott acknowledged making note that Officer
Moreno told them that he had heard that before the February 2 incident, Kastroll had talked to 15
other people at work recommending the SPFPA union. (Tr. 276–277).
Tourek also asked Officer Moreno about Officer Browning’s complaint about the
February 2 incident, whether or not it occurred, whether or not somebody came up and spoke to
him, what was the substance of the conversation and basically what was going on. (Tr. 179–20
180.) Tourek also asked Officer Moreno whether or not he had a conversation with a dealer
while he was on Priority One Post on a particular day and what was the substance of the
conversation. (Tr. 180.) According to Tourek, the conversation led to the subject of a discussion
regarding unions, because "eventually [Officer Moreno] got there" and figured out what Tourek
was talking about. (Tr. 181.) 25
Officer Moreno did not know who Kastroll was without prompting when she approached
him on February 2 to encourage him to vote for the SPFPA. (Tr. 545–546.) Tourek told Officer
Moreno that the conversation with Kastroll on the floor was not appropriate because it is a
distraction while he's supposed to be doing his job. (Tr. 251–252.) At no time did Tourek or 30
Prescott ask Officer Moreno how he was going to vote in the upcoming SPFPA union election.
(Tr. 547.)
Respondent maintains that since Officer Moreno remained at his post and the surveillance
video footage showed that he did not instigate or encourage the conversation with Kastroll, 35
Officer Moreno was not formally disciplined or threatened with discipline. (Tr. 252–253, 547.)
As part of its investigation, Tourek and Prescott also met with Kastroll and Union
Steward Donna Blair (Blair) on Thursday, February 5. (Tr. 47.) That day Kastroll was relieved
from her game and told to go to Employee Relations. (Tr. 47–48.) Once there, Kastroll met with 40
Prescott and Tourek in a conference room, along with Blair. (Tr. 47.) Prescott opened the
meeting with, "Do you remember having a conversation on Monday [February 2 (3 days
earlier)] with a security guard about unions?"
Kastroll responded that she talks about unions all the time with everybody, including 45
guests sometimes, and she asked Prescott to be more specific. Prescott responded that it was
JD(SF)–39–16
8
between 4 and 6 p.m. Kastroll said that didn't help. Prescott stated that it was at the Priority One
Post, B Bar intersection. Kastroll asked if it was a male or female security officer. When
Prescott said male, Kastroll stated sarcastically, "Well, we're down to 90 percent of the security
officers." Kastroll testified that at that point, Tourek interjected and stated, "You were promoting
the union." (Tr. 49–51.) According to Kastroll, she then stated, "I know what this is about. You 5
guys are having a union election, a representation election soon and now I get what this is all
about. .I've heard about a lot of disciplines going on in the security department. I see what's
going on here." (Id.)
Prescott said that there was a guest who needed help from another security officer. 10
Kastroll responded that she still didn't know what Prescott was talking about. (Tr. 51, 105.)
Prescott also mentioned that someone had made a complaint and Respondent had a statement
from a security guard. (Tr. 61.) Union Steward Blair testified that during the meeting Tourek
also told Kastroll that another employee had written a complaint against Kastroll regarding the
conversation she had had with a security guard. (Tr. 124–125.) 15
Tourek also informed Kastroll that Respondent had surveillance video that showed
Kastroll having a conversation on the floor with a security officer at Priority One Post and it was
regarding unionization. (Tr. 124–125.) Tourek attempted to refresh Kastroll's recollection of the
February 2 incident a number of times, including describing the date, time, and location of the 20
conversation. (Id.) Tourek asked Kastroll if she believed her conversation at Priority One Post
kept the security officer from doing his job and informed Kastroll that a guest had to ask another
nearby security officer a question because of her conversation with the security officer. (Tr.
124–126.) Kastroll indicated that she could not really recall the interaction. (Tr. 125.)
25
Blair noted that at some point in the meeting Kastroll excused herself to use the restroom,
and while she was gone, Blair asked Tourek if this was going to lead to discipline. Specifically,
Blair “was curious to see where this entire investigation was going” and she “asked Kevin
[Tourek] whether or not this [investigation] was going to lead to a warning slip and he said that
he just wanted to put her [Kastroll] on notice." (Tr. 126–127.)30
At the February 5 meeting, Tourek and Prescott gave Kastroll a copy of Respondent's
solicitation and distribution policy last revised in May 2014 and one of them told her that she's
in violation of that policy.5 (Tr. 52; GC Exh. 2.) Tourek explained that Kastroll was in violation
of Respondent’s solicitation and distribution policy. Blair also testified that Tourek "made it 35

5
In response, Kastroll requested the prior versions of the solicitation and distribution policy because she wanted
to see "the difference in the language, where it has changed, and whether [she] was aware of whatever changes and
modifications there were." Tr. 52–53. However, Respondent’s employees are responsible to know Respondent's
current policies and procedures because they are made available to all employees on Respondent's intranet system
known as the "WIRE," which is accessible both at work and on their personal computers, and which allows
employees to electronically acknowledge receipt of policies. Tr. 126, 141–143, 325, 568, 619–620, 628.
Respondent’s policies are only in effect until a new revision is issued and provided on the WIRE. Tr. 165. As
requested, Respondent subsequently provided copies of its prior versions of Respondent's Solicitation and
Distribution Policy to Kastroll. Tr. 65; GC Exhs. 6–8. The acknowledgment document presented to and signed by
Kastroll was taken from Respondent’s template and was only provided to memorialize that Respondent provided her
with the previous policy versions she specifically requested. Tr. 67, 284, 287, 307, 309.
JD(SF)–39–16
9
seem that [Kastroll] had violated that policy and [Kastroll] had said that she didn't feel that she
had violated that policy." (Tr. 127.)
Tourek left the February 5 meeting at some point and Prescott requested that Kastroll
provide a written statement regarding the February 2 incident. (Tr. 53–55.) Kastroll then wrote 5
a statement in the employee relations office in the presence of Blair which misstated the length
of her talk to Officer Moreno and reads in relevant part:
… I have been accused of solicitation, on Monday, 2/2/15, between 4pm-6pm at the
intersection of the BBar.10
I don’t recall any specific person or instance related to solicitation. Mr. Tourek suggested
that I made union promotions. At best, being a former union officer, I may have wished
someone a salutation such as “Good luck; we are praying for you.” I don’t remember any
lengthy conversation as I don’t have time during my short break periods.
I would never intend to hamper any guest experience, nor prevent someone from 15
performing his job duties.
I do not believe that has happened in any casual conversation with any security officer.
It is highly unusual to have General Counsel present during an employee relations
interview. I feel singled out.
20
(GC Exh. 3.)
Kastroll testified that in the course of acting as a union steward, she attended
approximately 20 investigatory interviews with other employees, but neither Tourek nor Prescott
was present for any of those meetings. Moreover, the meetings typically took place in the table 25
games office, not the Employee Relations office. (Tr. 74.) Blair also testified neither Tourek nor
Prescott were present for any of the 10 to 15 investigatory interviews she attended in her time as
a union steward and that those interviews occurred in the casino manager’s office. (Tr. 122–123,
129–130.) I find the reason for this unusual location for an interview was reasonably explained
by Prescott to Kastroll at their February 5 meeting to be: "Because this [Feb. 2 Incident] 30
involves two departments"—Kastroll being a dealer and Officer Moreno being a security officer,
the meeting took place in the HR conference room. (Tr. 54.)
Prescott met with Officer Browning on February 6 to have him create and sign a written
statement of the February 2 Incident. (Tr. 269–270; GC Exh. 13.) Prescott asked Officer 35
Browning what he witnessed on the casino floor that led him to complain to a supervisor.
Officer Browning told her that he witnessed Kastroll approach a security officer and initiate a
conversation that lasted several minutes and that she told the officer that he needed to vote for
the SPFPA union and they would protect him Officer Browning created and signed a written
statement describing the February 2 incident for Prescott. (Tr. 270–271; GC Exh. 13.) 40
Officer Moreno was also called down by Prescott to write a statement on February 9
about everything that was said in Kastroll’s February 2 talk to Officer Moreno at Priority One
Post while Officer Moreno was on duty. (Tr. 277–279, 547; GC Exh. 12.) Officer Moreno
writes:45
JD(SF)–39–16
10
On Feb. 2 … I was at my post (priority 1) on the casino floor. A dealer came up to me out
of know [siq.] where to talk to me about the union. I have never talk [siq.] to this worker
ever. I didn’t know her name. Someone had to let me know her name (Kanie [Kastroll]).
She just started to talk to me about how I should go with the union. That she use to work
with the union back in the day. She told me that no matter what they say to join the 5
union. She explained to me that it was the best thing for me to do because we (security)
have no say so on anything. That if the union comes in that we (security) can have more
say so. She was talking to me for about 5-10 min. She just continued to really repeat
herself about joining the union and good it would be to vote yes. Since this meeting
employee relations lady has reach out to discuss this with me. 10
(GC Exh. 12.) Officer Moreno also testified that he was not disciplined for the February 2
Iincident, he was not threatened with discipline at any time by Respondent and no one asked him
how he planned to vote in the upcoming union election at the February 9 meeting. (Tr. 547–548.)
In addition, Prescott or Tourek told Officer Moreno that it was his choice whether he wanted to 15
speak to the NLRB or nor prior to trial where he would likely be called as a witness to discuss
the February. 2 incident and his related statement. (Tr. 557; GC Exh. 12.)
Tourek reviewed the surveillance video of Kastroll’s talk to Officer Moreno during his
investigation. (Tr. 194; GC Exh. 11.) Tourek explained that when he interviewed employees and 20
viewed the surveillance footage, he was acting at the request of Respondent’s president,
Wooden, to look into the issue. (Tr. 201.)
D. Respondent Issues Kastroll a First Written Warning Discipline on February 12 as a
Result of the February 2 Incident.25
On February 12, Prescott issued Kastroll a first written warning for the February 2
incident. (Tr. 57–59, 262, 307–308; GC Exh. 4.) The warning states:
On February 2, 2015, Kanie [Kastroll] was witnessed and overheard having a 30
conversation on the casino floor with a Security Officer regarding union organizing. This
conversation happened while the officer was on duty (not on break) and in a high traffic,
guest facing area. Kanie has been reminded of the Company's Solicitation and
Distribution policy. Further violations of Company policy may lead to discipline up to
and including termination of employment.35
(GC Exh. 4.) Prescott drafted the discipline and signed it on February 12. (Tr. 261–262.) Tourek
approved the language of the discipline before it was issued to Kastroll. (Tr. 173, 247; GC Exh.
4.)
40
The surveillance footage of the February 2 incident depicts Kastroll engaging in a one-
sided talk to an on-duty security officer at Priority One Post, the main thoroughfare at
Respondent, while hundreds of guests constantly walk past them. (GC Exh. 11.) Tourek and
Prescott determined that Kastroll distracted the on-duty Officer Moreno for almost 3 minutes
from performing his job duties while the security officer was posted at the most important 45
security post given its casino security and guest relations responsibilities. (Tr. 186–187, 263–
JD(SF)–39–16
11
265, 293.) The conversation initiated by Kastroll was not work-related and lasted approximately
three (3) minutes. (Tr. 187–188.) Kastroll's conduct prevented Officer Moreno from performing
his job duties while he was actively on work time. (Tr. 227.)
Prescott testified that her reason for issuing the discipline was that Kastroll violated the 5
solicitation and distribution policy as Kastroll interrupted or disrupted guest or customer services
while talking to Officer Moreno for almost 3 minutes. (Tr. 262.) Kastroll violated the policy
because she had a conversation with another employee on the floor. (Tr. 263.) She also testified
that the subject matter of the conversation was a factor in issuing the discipline, because Kastroll
was trying to persuade an employee to vote a certain way in a union election by "encouraging 10
that person to vote in favor of electing a union … [and] telling that person all of the reasons why
a union would be favorable for that person to have." (Tr. 264–265.) Prescott testified that
Kastroll violated the solicitation and distribution policy because "she was having a conversation
where she was basically selling the services of the union, promoting the services of the union on
the floor not in a break area but in a customer service area while another employee was on duty." 15
(Tr. 308–309; GC Exhs. 2 and 8.)
Tourek explained that his reason for approving the discipline was that "[Kastroll] was an
off-duty employee engaging in and distracting an employee who was on duty." (Tr. 186.) Tourek
added that Kastroll was distracting Officer Moreno by having a conversation with him that took 20
him away from his duties at Respondent’s most important security position, particularly his
duties to be observant of the casino floor for security purposes and provide guest services. (Tr.
186–187.) Tourek also explained that Kastroll was disciplined for being off-duty and engaging in
a three minute conversation with an employee on duty. Tourek opined that the length of the
conversation and the subject matter were both factors in deciding to discipline Kastroll. (Tr. 187–25
188.) He explained that subject matter was a factor because if Kastroll had a valid work-related
reason for her long talk to Officer Moreno, she might not have received the warning. Tourek also
opined that the only rule she violated was the solicitation and distribution policy. (Tr. 189.)
Tourek also admitted that when there is an upcoming union election approaching, 30
Respondent investigates solicitation violations with "heightened intensity." He stated that during
a union organizing campaign in February 2015, "there was a heightened awareness of people
having conversations while they're on the clock" and whether employees are engaged in
solicitation or not. (Tr. 230–231, 248–249.) He also testified that his definition of solicitation
under Respondent's own policy is any discussions about the union while employees are on duty. 35
(Tr. 249–250.) He testified that Respondent's policy covers discussions about the union, even
where no union authorization card is at issue. (Tr. 250.)
On the other hand, Tourek distinguished situations where solicitations are freely allowed
where he believes employees working on the main casino floor are generally allowed to talk to 40
each other while they're on duty and that he's not aware of any policies in existence in February
2015 that broadly prohibited employees from talking to each other on the main casino floor
outside the Priority One Post. (Tr. 251.) Kastroll admitted that she has engaged in thousands of
non-work related conversations with other employees on the main casino floor. (Tr. 74–75.) She
testified that these types of nonwork-related conversations occur all day long, depending on how 45
busy they are. She testified that she's had nonwork-related conversations with other employees,
JD(SF)–39–16
12
casino service team leader’s (CSTL’s), casino managers, and assistant casino managers. She
testified that they've had discussions about sports, movies, concerts, politics, and union stuff (Tr.
76). The conversations ranged from 30 seconds to 20 minutes, depending on whether employees
are on a dead game or in a dead pit, or if employees are on the same table game. (Tr. 77.) She
testified that occasionally, an assistant casino manager walking around might ask employees to 5
limit their conversations while on the main casino floor, but it did not depend on the subject
matter. (Tr. 77–78.)
Blair also testified that she's had almost daily conversations with other employees on the
main casino floor that do not pertain directly to her work. (Tr. 130–131.) She testified that she's 10
had such conversations with dealers, cocktail waitresses, and security officers. (Tr. 131.) As an
example, she recalled a conversation with a security officer, Joe Tuzleno, sometime in 2015 in
Priority One Post area. She testified that he was in uniform and appeared to be working at the
time and that their conversation lasted one to two minutes. They talked about "how as a security
guard he should try to get on the floor in the casino itself." (Tr. 131–132). She was not called 15
into any investigatory interviews or issued any discipline based on that conversation. (Tr. 132.)
She testified that she's also spoken to other security officers in the K-9 patrol unit on the main
casino floor. She had two or three such conversations in 2015, while both she and the officer
were at work, and the conversations were about dogs. (Tr. 133–134.) The conversations were
usually about a minute to two minutes long. She was never called into any investigatory 20
interviews or issued any discipline for those conversations. (Tr. 134.) Blair also testified that
sometime in 2015, when she was opening up a game at the beginning of the day, she overheard a
conversation between a TGD on the next game and a CSTL about an eyelash product she was
trying to sell. (Tr. 134–135.)
25
Aside from Kastroll's February 12 warning, at the time of hearing Respondent has only
enforced its solicitation and distribution policy two other times since January 1, 2014. (Tr. 310–
311; GC Exh. 23 and 24.. One instance involved an employee leaving Avon makeup catalogs
around the property. She was issued a second warning for the distribution. (Tr. 311, GC Exh.
24.) The other instance of a first written warning being issued by Respondent involved one 30
employee demanding $5 from another employee before he would help her make up the bedding.
The employee was disciplined for selling goods or services. (Tr. 311; GC Exh. 23.)
In addition, I further find that Respondent disciplines employees for personal
conversations - regardless of content - when such conversations distract other employees from 35
performing their job duties or interfere with guest services and when such conduct is brought to
Respondent's attention. (See. e.g., Tr. 611–612; R. Exhs. 13–14.) Also in the recent past,
Respondent disciplined employees for such things as: speaking to coworkers instead of serving
guests; ignoring security post duties while talking with another employee; ignoring the
supervision of games due to conversations with another employee; engaging in a personal 40
conversation about 1970s and 1980s pornography stars that was overheard by guests; failing to
greet a guest because the employee was engaged in a conversation with a coworker; failing to
serve guests due to conversations with a coworker; and neglecting duties while engaged in
personal conversations with coworkers. (R. Exh. 14 at 2–3, 5–8, 12, and 14.) Like Respondent’s
discipline of Kastroll here, these other discipline examples similarly show that Kastroll was not 45
discriminated against due to her union solicitation but, like Respondent’s employees in the above
JD(SF)–39–16
13
examples, Kastroll was disciplined because she distracted Officer Moreno for almost 3 minutes
and interfered with his duties to help and direct Respondent’s guests and monitor the casino area
overlooking Priority One Post.
E. Respondent’s Questioned Work Rules.5
At all material times since January 31, 2015, Respondent has maintained its Code of
Personal Conduct on The Wire, containing the following provisions:
1. Respecting others, which includes but is not limited to:10
ï‚· Displaying appropriate behavior at work, on Wynn business, or
on property.
ï‚· Never engaging in misconduct on or off-duty that (as determined
by Wynn) materially and adversely affects job performance or tends to
bring15
discredit to Wynn.
ï‚· Promoting and respecting the diversity of the Wynn workforce
by avoiding any form of discrimination or harassment, including:
* Degrading comments or offensive language.20
ï‚· Refraining from inappropriate conduct or horseplay [the Inappropriate Conduct
Rule].
2. Striving for excellence in job performance, which includes but i s25
not limited to:
ï‚· Never taking photographs in the public "front-of-house" area [the No
Photographs, PDAs, Messaging, Calls, or Recording Rule].
30
3. Know and follow all Wynn policies and procedures, which include but
are not limited to:
ï‚· Only using the facilities for the property you are scheduled to work,
with the exception of the employee dining area.35
* When scheduled to work at Wynn you must park in the employee
parking garage and utilize the back of the house area that pertains to
and is exclusive to the property at which you are working with to
and is exclusive to the property at which you are working with the40
exception of the employee dining area. All other exceptions to this
rule can only be made with specific management authorization and/or
written accompanying documentation [the Restricted Access Rule].
JD(SF)–39–16
14
ï‚· Complying with copyright, patent, and trademark laws, which are intended
to protect exclusive use of publications, productions, artistic works, and
so forth.
* Logos may not be used for any purpose aside from those for which they5
are intended.
* Logos may not be altered in any way [the Restricted Intellectual Property
Rule].
ï‚· Protecting the confidentiality of Wynn.10
Never using, accessing, possessing, copying, removing, or sharing any of
Wynn confidential business information without authorization or for
business reasons [the Confidentiality Rule].
ï‚· Never using personal communications devices such as beepers, cellular 15
telephones and personal data assistance ("PDAs"), for incoming and
outgoing messaging or calls while on duty, unless prior authorization is
obtained from a department manager [the No Photographs, PDAs,
Messaging, Calls, or Recording Rule].
ï‚· Except for off duty or pre-authorized use of personal communications20
devices for incoming and outgoing messaging or calls only, never using
any device for audio, video or data recording/transmission, such as video
and digital cameras, camera and recording components of cellular
telephones/PDAs and digital recorders, at any time while on company
property or while performing job duties off-company property, unless 25
prior authorization is obtained from a department manager for a company
business purpose [the No Photographs, PDAs, Messaging, Calls, or
Recording Rule].
ï‚· Never using Wynn property for personal use [the No Personal Use Rule].30
4. Being honest, which includes but is not limited to:
ï‚· Reporting any suspicious or improper activity to a manager or security
officer (the Honesty Rule).35
ï‚· Refraining from any activity in photographing or recording (either by audio
or video means) others in the work environment, including coworkers,
managers, guests, customers, or vendors, unless specific authorization has
been given in advance by all individuals subject to the intended40
photography and/or recording activity or management has otherwise pre-
authorized the activity for company business purposes [the No Photographs,
PDAs, Messaging, Calls, or Recording Rule].
JD(SF)–39–16
15
7. Failure to display proper conduct and abide by these standards may result in
disciplinary action up to and including termination [the Failure to Obey Rules or
Handbook Violation Rule].
(GC Ex. 1(o) & (q); R Ex. 7 & 12) (bold in original). The code of personal conduct applies to all 5
employees of Wynn Resorts and its subsidiaries, including Respondent. (Tr. 167.)
F. May’s General Background as a Security Officer for Respondent.
The SPFPA union and Respondent stipulated to an election agreement, an election was 10
held on February 11, 2015, and the union failed to obtain a majority of votes to secure
representation. (GC Exh. 21.)
Respondent hired Charging Party Keli May (May) on April 11, 2005, and currently
employs her as a security officer in Respondent’s security department. (Tr. 320.) May’s 10 year 15
employment at Respondent is free of significant discipline other than one written warning issued
against her.
As a security officer, May is responsible for monitoring and patrolling her assigned area
to ensure guest and employee safety, minimizing potential for loss or damages, and responding 20
to emergency situations. (Tr. 340.)
Most of Respondent’s security officers working at its Wynn casino clock in and out of
work using Respondent’s Kronos timekeeping system by swiping their ID badge on time clocks
located outside of the security offices of Respondent’s facility. (Tr. 322.) The security offices at 25
Respondent’s Wynn facility are located in the basement underneath the buffet area on casino
level. (Tr. 323.) Anyone going to Respondent’s basement security offices must show a valid Id
badge to a posted security officer to get into the basement. (Tr. 324.)
Employees can view their recorded time and worked hours using Respondent’s intranet 30
Wire with access at Respondent through kiosks in Respondent’s basement or from an
employee’s home computer or telephone. (Tr. 325.) The Wire shows the times an employee has
clocked in and clocked out. Id.
In May/June 2015, May reported directly to immediate supervisors Tammy Howell 35
(Howell), Mr. Haire (Haire), and Paul Roberson (Roberson). (Tr. 326, 378.) These supervisors
reported to Assistant Manager Corey Prowell (Prowell) who reported to Security Manager
Rawlings (Rawlings). (Tr. 326–327.)
G. May’s Assignment’s and Common Pay Issues Stationed at Respondent’s WDD Flex 40
Building in 2014–2015
In 2014–2015, May was assigned to guard the Respondent Design and Development
("WDD") Flex Building located on Koval Lane and Sands Avenue. (Tr. 333–335.) Over these
years, May worked the dayshift at the WDD Flex Building from either 6 a.m. to 2 p.m. or 8 a.m. 45
JD(SF)–39–16
16
to 4 p.m. depending on the day of the week with other security officers—Robert Alameda
(Alameda), Lavert Davis (Davis), and Officer Rankin. (Tr. 320–321, 335–354, 461.)
The WDD Flex Building is Respondent’s satellite office that does not have a time clock
for employees to clock in and out for their shifts. (Tr. 338-339, 342-343.) Instead, May and all 5
other officers assigned to the WDD Flex Building either call the manager on duty or a dispatcher
to convey start and stop times over the radio and inform him or her of their arrival, breaks, and
their departure. (Tr. 341-342, 448, 468.)
This timekeeping procedure utilized at the WDD Flex Building led to a common payroll 10
error with May approximately 15 times and other employees as well in 2014-2015 in which
hours were not properly recorded. (Tr. 345–347, 448.) Each time the error resulted in lower pay
to May and the other security officers at the WDD Flex Building. (Tr. 345–347.) An employee
could discover an error for missed time recorded by viewing their missed time on the Wire. (Tr.
345–346, 449.) Errors usually involved whole days missing or overtime pay missing. (Tr. 346–15
347.) As a result, many times in 2014–2015 supervisory managers would forget or omit entry of
start and stop times for security officers working at the WDD Flex Building. (Tr. 345–347, 448–
469.)
May discussed these payroll error issues all the time with her fellow security officers at 20
the WDD Flex Building at least once a week. (Tr. 347–351, 449.) Every 2 weeks, Alameda and
May would discuss whether their pay was correct or not for work at the WDD Flex Building.
(Tr. 348.) If Alameda found his pay was wrong, he would tell May as usually if one security
officer’s time was incorrect then the other security officer on the same shift would also have an
error in their pay. (Tr. 348.) 25
Officer Rankin worked at WDD Flex with May on Wednesdays and Thursdays in 2015.
(Tr. 446–447, 461.) These pay errors were a constant topic of discussion between May and
Officer Rankin and other security officers at the WDD Flex Building as the errors were common
and conversations usually took place at lunch with another security officer at WDD Flex 30
Building. (Tr. 348–349, 461.) Sometimes the errors related to missed overtime for May and
Rankin as the dispatcher would not input the fact that they left WDD Flex at 4:10 p.m., 4:20, or
4:30 which are all overtime for their day shift that normally ended at 4 p.m. (Tr. 469.)
May would try to resolve these frequent pay errors while working at the WDD Flex 35
Building over her lunch hour by going to the security offices at the Wynn. (Tr. 351.)
H. May’s Missing Pay Error on Her May 29 Paycheck
On May 29 with her paycheck for time worked from May 11—23, 2015, the matter 40
leading to discipline in this case began when yet another of Respondent’s frequent payroll errors
first came to May’s attention and she discovered that the entire day of May 22 was omitted from
her paycheck although she worked 8 hours on May 22. (Tr. 354–360; GC Exh. 25.)
Consequently, because the incorrect paycheck was missing an entire 8-hour day on May 22, her
paycheck was also missing May’s overtime and double overtime hours worked. Id. 45
JD(SF)–39–16
17
On the following Monday, June 1, May informed Prowell of the hours and pay shortage
and Prowell told May that he would take care of it. (Tr. 357–360.) May gave Prowell her
incorrect pay stub (GC Exh. 25) and a wire screen shot showing her time worked on payroll
from May 11 to 24, 2015, to help him get the pay error resolved. (Tr. 358–360; GC Exhs. 25 and
26.) 5
The following day on June 2, May spoke to Howell on May’s lunchbreak in the security
offices about her same paycheck error and Howell told May that Prowell would correct the
problem for her. (Tr. 362–363.) Also on June 2, May also spoke to Dudoit about her unpaid
time error and he also told May that Prowell would correct the mistake. (Tr. 363–364.) 10
An investigation into May's payroll issue later concluded that May's work time was not
entered correctly by management and that May was issued a check on May 29, 2015, that
mistakenly did not compensate her for eight (8) hours of overtime and two (2) hours of double
time. (Tr. 355.) May’s paycheck was $291.52 short from the amount she was owed by 15
Respondent. (GC Exh. 31.)
On June 12, 2015, Wynn issued a payroll check to May that resolved only part of her
payroll issue because Prowell mistakenly submitted a request to the payroll department to
compensate May for eight (8) hours of regular pay. (Tr. 364–365; GC Exh. 27.) As a result, 20
May was still owed 6 hours of overtime pay and 2 hours of double-time pay for the week ending
on May 24 (collectively referred to as the missing OT/DT pay). Id.
On Monday, June 15, May went to the security offices to advise that she had still been
paid incorrectly. (Tr. 366.) May spoke to Haire about her continuing paycheck issue for the 25
missing OT/DT pay and also noticed a new pay issue on the Wire where May’s work on
Tuesday, Wednesday, and Friday, June 9, 10, and 12 were now missing. (Tr. 367–368.)
Haire looked into Respondent’s Kronos system, saw the missing dates for May’s work,
and manually entered in May’s missing time for Tuesday and Wednesday, June 9 and 10, but 30
Haire refused to enter the May’s missing time for Friday, June 12, because it was his day off and
he apparently did not believe what May was telling him. (Tr. 367–369.)
Haire later on June 15 entered May’s missing Friday June 12 time and May told Haire
that her May 29 paycheck was still incorrect. Id. Haire responded by telling May that she should 35
go back to Prowell and Howell to get the missing OT/DT pay corrected. (Tr. 369.)
On June 16, 2015, May spoke to Howell in the security offices on May’s lunchbreak and
Howell told May that Howell would have to get Dudoit and Prowell to take care of the missing
OT/DT pay problem. (Tr. 369–370.) 40
On June 17, May followed up with Howell at the security offices during May’s break.
(Tr. 370–371.) Howell told May that a check was going to be cut and Dudoit was helping
Howell get a check cut and it was looking like May would receive her corrected pay later that
same day on Wednesday, June 17. Id. May did not receive her corrected paycheck on June 17. 45
(Tr. 371.)
JD(SF)–39–16
18
On June 18, May spoke again to Howell at the security offices during her lunchbreak.
(Tr. 371–372.) May told Howell that she had not received the corrected paycheck yet and
Howell responded that Dudoit was working on it but Howell did not know the exact details
because Dudoit was handling it. Id. May did not receive her corrected paycheck on June 18. 5
I. May’s June 19 Incident and Resulting Discipline from Respondent.
On June 19, during her break, May went directly to the payroll window located in the
basement at Respondent’s Wynn facility just down the hall from the security offices to see if 10
there was a corrected paycheck there waiting for her. (Tr. 372–373.) There was no check with
May’s name on it waiting for her at the payroll window during her break. (Tr. 373.) The payroll
window clerk advised May that there was no check for May and that May should go to her
security department to inquire further. Id.
15
Later on June 19, May went to the security offices and spoke to Howell again informing
her that there was no check waiting for May at the payroll window. (Tr. 373–374.) Howell went
to her computer to look up her emails and an email she was copied on from Dudoit showed that
Dudoit had filled out an application or requested one from a Nicole Saito (Nicole) in Payroll and
the email request was dated Thursday June 18 at approximately 5 p.m. (Tr. 374–375.) 20
Howell told May that the request for May’s missing OT/DT pay was submitted and
Howell did not understand why there was not a paycheck waiting for May to pick up. Howell
recommended that May go on her lunch break so Howell would have time to look into the status
of the missing OT/DT pay. (Tr. 375.) May left the security offices and went to lunch at the 25
employee dining room (EDR). Id.
After eating lunch on June 19, May went to the payroll window again to collect her
missing OT/DT paycheck. (Tr. 375.) May was told by the same payroll clerk as before that there
was still nothing at the payroll window for May. Id. May then told the clerk that there was an 30
email reflecting from Dudoit to Nicole in payroll and the clerk picked up the telephone and
dialed a number. (Id.) Eventually, the clerk handed May the telephone and May explained to
Nicole on the telephone why she was waiting for her paycheck from payroll, the entire sequence
of events including the missed May 22 time and then the missed OT/DT pay. (Tr. 375–376.)
35
After hearing the detailed story, Nicole responded by telling May that Nicole is canceling
the adjustment that had just been submitted by Dudoit and May was caught off guard by this as
the check May was expecting to pick up was now being canceled by Nicole. (Tr. 376.) May
responded by asking Nicole why she was canceling the check that May had been waiting to
receive since the error was first discovered and management first began the process to correct 40
the error on June 1 -- 18 days earlier. (Id.) Nicole explained that all that had been submitted had
been two regular hours pay and at May’s regular rate of pay those two regular hours would not
resolve the pay issue and add up to be the missing OT/DT pay amount of approximately $91.10.
(Id.) Nicole then tells May that she is canceling the transaction and tells May to go back to the
security offices to see Howell or Dudoit. (Id.)45
JD(SF)–39–16
19
Later in the early afternoon of June 19, with the majority of employees, supervisors, and
managers away on lunchbreak or in closed door meetings in the security department, May leaves
the payroll window and heads back to the security offices to try and resolve the missing OT/DT
pay problem. (Tr. 377.) May intended to go directly to Dudoit’s office when she returned to the
security offices but his door and blinds were closed and it was dark inside indicating he was not 5
there. (Tr. 377.) No hotel guests or customers are around in basement security offices which are
off-limits to hotel guests and customers. (Tr. 453.)
May saw 2 Ricoh copier repairmen near the printer and that Respondent investigator
Brad Thomison’s (Thomison’s) office door was open and his lights were on. (Tr. 378.) May also 10
saw that day shift security manager Romo’s office blinds were open and Romo was seated at his
desk in a meeting with Howell, Prowell, and Roberson with the door open. Id. May walked up
to Romo’s office and also noticed that the briefing room next door to Romo’s office had a group
of new officers there for training in a closed door meeting. (Id.)
15
May tried to whisper to get Howell’s attention to come out so as not to disrupt the
meeting in Romo’s office as the 4 managers there were talking amongst themselves and Romo’s
door was open. (Tr. 379.) May said to Howell: “Can I talk to you for just a moment?” Id. May
leaned back and no one responded to May’s question to Howell and the door closed and it
became silent in the hall where May was standing by herself. (Id.)20
Next, May walked away from Romo’s office toward the copier and coffee maker and
Thomison’s office. (Tr. 379–380.) May walked back to the copier area as the Ricoh repairmen
were packing up to leave and May said “hi” to Thomison who also said “hi” back to May. (Tr.
380.) May then stood by the copier for 5–10 minutes waiting for the Romo office meeting to end 25
so she could talk to Howell about her missing OT and DT pay issue but the door to Romo’s
office remained closed. Id.
May remained standing by the copier and coffee maker when Officer Rankin came into
the security offices on his lunchbreak and near May asking her what she was doing there. (Tr. 30
381,450–453.) No one else was standing by May when Officer Rankin spoke to her. (Tr. 451.)
May responded saying to Officer Rankin: “I’m trying to fix my payroll issue.” (Tr. 381,450–
452.) Officer Rankin responds to May asking: “You’re in here again still trying to resolve your
issue?” Id. May responds affirmatively and Officer Rankin asks: “where is everybody?” (Tr.
381–382.) 35
May replies that they are all behind closed doors in a meeting in Romo’s office. (Tr. 382,
452.) Officer Rankin responds next saying to May: “Get you fucking ass over there and demand
your money right now.” (Id.) Officer Rankin denies using the word “fucking” and testified that
he told May that” “it’s bullshit, basically, that you have to go through this over and over and 40
over again.” (Tr. 452–453.) I find May’s testimony more credible and that Officer Rankin’s
common use of profanities is more consistent with other witness testimony of free use of
profanities in the security offices by managers and others, the other references to the June 19
events and because Officer Rankin has received a prior verbal warning for his improper
conversations at work in front of a hotel gust or customer and likely did not want to admit to his 45
added use of profanities. (See Tr. 444–445, 453.)
JD(SF)–39–16
20
May responds to Officer Rankin in a loud voice telling him:
Rick [Officer Rankin], I’ve already gone to four fucking people. How many more
people do I need to go to get this taken care of? I’ve done enough to where I can’t 5
do anything else. I’ve already gone to four different people. How do I go to
anybody else to take care of this? I’ve already gone to two supervisors, an
assistant manager, and an assistant director. These managers are all fucking idiots
and no one knows shit. I don’t know what to do at this point. The girl's [Nicole is]
a fucking idiot as well. I’m just doing what I have to do to resolve it, and today’s 10
the day where they keep telling me I’m getting money, and I haven’t gotten it yet.
So now I’m staying here until we resolve this.
(Tr. 382, 390, 420–421, 453, 469–470, 518, 524–526.) Officer Rankin and May continue to their
elevated discussion of May’s unpaid wages issue, how often this type of error happens and how 15
it should not ever happen let alone occur frequently. (Tr. 452–453.) May repeated this loud
outburst using the same profanities 2–3 times (collectively known as the June 19 Incident).
May admits to a "colorful worded conversation" and using profanities but not directly to
Romo or Howell as they stayed behind closed doors in Romo’s office during the lunch hour. (Tr. 20
382, 390, 528; GC Exh. 28.)
After hanging up “relatively quickly” with a guest so they could not hear in the
background May’s June 19 Incident down the hall, Director’s Assistant, Boguille (Boguille), got
up from her desk, located in a back office outside her supervising director’s empty office down a 25
hallway around the corner from where May and Officer Rankin were standing, and approached
them and asked them if everything was “ok”, “what’s going on”, and “how are you doing?” (Tr.
455, 523, 532–533; R. Exh. 6.) May and Officer Rankin responded to Boguille that “everything
was fine.” (Id. )
30
Boguille next went to Thomison whose office was closest to Boguille’s to ask if he knew
where May’s managers were. (Tr. 454, 530, 537–538.) Thomison was standing up in his office
at this time and he told Boguille that all of the managers were in Romo's office. (Tr. 532, 538.)
Boguille then went to Romo' s office, knocked on the door, and entered. (Tr. 530.) She 35
saw that most of May’s managers were there, Howell, Roberson, Prowell and Romo. (Tr. 530–
531.) Boguille informed Romo that May was loudly cursing, complaining about her payroll
issue, calling management "fucking idiots," and saying that nobody knows what they are doing
about her unpaid wages. (Tr. 524–525, 531.) Boguille told Romo that he needs to address May’s
unpaid wages issue with her because May is being extremely loud in the office. (Tr. 531.) 40
After being informed by Boguille of May's conduct, Romo and Howell met with May to
discuss her payroll issue and loud discussion with Officer Rankin. (Tr. 385, 456–457.) During
that meeting, Romo advised May that she was welcome to come to him in the future if she was
experiencing issues and then he, Howell, and May worked together and calculated that May was 45
JD(SF)–39–16
21
still owed compensation for one straight-time hour and two double-time hours. (Tr. 389.) May
then returned to her station at the WDD Flex Building. (Tr. 390.)
Boguille admitted that she was not offended by the curse words used by May on June 19
but, instead, what bothered Boguille was that May was making the accusation that management 5
somehow did not do their job right in connection with May’s various attempts to have
management correct their unpaid wages situation with May. (Tr. 534.) Boguille admitted that
she heard others use curse words in the security offices in her time there from 2011 to 2015. (Tr.
535.) Stated differently, Boguille was not offended at all by May’s use of profanities in the
security office on June 19 but Boguille was upset that May was speaking loudly when she 10
negatively criticized management for her unpaid wages. (Tr. 534–536.)
Boguille also admitted being inconvenienced by May’s June 19 Incident in her shortening
her call with a guest, having to write a statement about the June 19 Incident, and the incident
causing her “to get up and deal w/[it] completely.” (Tr. 532-–33.) 15
Officer Rankin admitted that Manager Romo also used profanities in the security office
in June 2015 just before a daily briefing in front of other managers, supervisors, and other
security officers. (Tr. 456–458.) In addition, Officer Rankin has heard Manager Romo use
words like “Son of a bitch” and “You guys get your asses in the briefing office.” Id. 20
New Security Human Resources Manager Brian Parker (Parker) also testified that he
could hear May’s conversation with Officer Rankin in the employee hallway off limits to guests
and customers and outside of the closed double-doors leading into the security office suite. (Tr.
504, 509, 513; R. Exh. 6.) 25
Parker was newly transferred to HR in June 2015 by Respondent to be responsible for
overseeing disciplines, suspensions, and investigations in the Security Department. (Tr. 503.) As
a result, then-Security Department Director Karen Hughes (Hughes) asked Parker to investigate
May's June 19 Incident. (Tr. 504.) Parker investigated the incident by speaking with Nicole, 30
reviewing all of the transactions, and seeking statements from witnesses. (Tr. 393, 395; GC
Exhs. 28 and 31.) Parker also overheard the June 19 Incident but being new to the department,
Parker was unaware of the common profane language use in the department.
On June 22, 2015, Parker specifically spoke with May about the June 19 Incident and 35
informed her that she was being suspended pending investigation. (Tr. 396, 505; GC Exh. 29.)
After a five (5) day suspension without pay, May was brought back to work on June 26, 2015.
(Tr. 399, 403–404.) May's discipline also included a second written warning for inappropriate
conduct in violation of Respondent’s Code of Conduct. (Tr. 405; GC Exh. 30.)
40
May’s missing OT/DT pay owed to May from the last week of May 2015, were finally
paid to May’s bank account directly later on June 19, 2015, after the June 19 Incident. (Tr. 418–
419; GC Exh. 31.)
JD(SF)–39–16
22
ANALYSIS
I. Credibility
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or 5
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to 10
believe some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622.
I found Kastroll to be evasive and not credible when she could not recall her almost 3
minute talk to Officer Moreno when interviewed by Tourek and Prescott with Blair on February
5, just 3 days after the February 2 incident. Kastroll’s almost 3 minute length talk to Officer
Moreno was a much longer conversation than the simple 10–30 seconds passing talks Kastroll 15
admitted she had about 40 times in January and February 2015, none of which lead to any
discipline to Kastroll. (Tr. 37–38. 100–101.) Also Kastroll was not believable that she did not
observe any hotel guests or managers around Officer Moreno and her the entire 3 minutes she
spoke to him. In addition, Kastroll’s February 5 written statement describing the February 2
Incident (GC Exh. 3) is inaccurate, not credible, and rejected as a fabrication of facts in contrast 20
to the overwhelming evidence of the February 2 incident.
I reject Officer Rankin’s testimony in Kastroll’s written warning case that while working
at Priority One Post, he's talked to other employees "all day long" as a gross exaggeration, that
the conversations can last several minutes, and that he's never been called into an investigatory
interview to discuss his conversations with other employees on the main casino floor.6 (Tr. 443-25
446). This is inconsistent with Officer Rankin receiving a verbal warning for having such
conversations while on duty at Priority One Post. (Tr. 445–446.) In addition, Officer Rankin
admitted that he never actually timed any of his conversations with coworkers while at Priority
One Post. (Tr. 463.) I also reject his further testimony that the conversations at Priority One Post
can last several minutes because Officer Rankin is a poor estimator of time and some of them 30
pertain to work. (Tr. 444.)
Officer Rankin also testified soon thereafter, however, that he was actually disciplined
once previously for talking to another Respondent employee at Priority One Post. (Tr. 445.)
Officer Rankin further admitted that he received a verbal warning from a supervisor to keep his
conversation short or not talk so long at Priority One Post. (Id.) I find that Officer Rankin’s 35
experiences are distinguishable from the February 2 incident at issue here as they involve
situations either away from Priority One Post, involve situations where the foot traffic from
Respondent’s guests and others at Priority One Post is lesser, the timing is not during Super

6
Another example of Officer Rankin’s exaggerated estimate of passing time is his statement that a typical
traffic light lasts 3 minutes before it changes. Tr. 463. I take administrative notice that a typical traffic light changes
in a much shorter time frame of no more than 30 seconds to 1 minute.
JD(SF)–39–16
23
Bowl weekend from 4–6 p.m., and the fact that Officer Rankin was verbally disciplined on at
least one occasion is consistent and not disparate with Respondent’s discipline of Kastroll here
for her almost 3 minute talk to Officer Moreno.
I also reject portions of Officer Rankin’s testimony concerning the May June 19 Incident
where he denies using as many profanities as other witnesses attribute to him, he denies that use 5
of profanities is commonplace in the security offices, and estimates that his conversation with
May at the copier on June 19, 2015, lasted from 10–15 minutes. (See Tr. 453, 456–459.) As
stated above, Officer Rankin does not estimate the passage of time very accurately and over-
estimates the amount of time having passed. He has also been disciplined before for talking
about pornography with another security officer in front of a guest while at Respondent and his 10
testimony about the common use of profanities at work by managers in the security offices is
inconsistent with May’s and Boguille’s more believable testimony. (See Tr. 471–472.)
Moreover, Officer Rankin admitted that Manager Romo uses profanities in the security office in
June 2015 just before a daily briefing in front of other managers, supervisors, and other security
officers. (Tr. 456–458.) In addition, Officer Rankin has heard Manager Romo use words like 15
“Son of a bitch” and “You guys get your asses in the briefing office.” (Id.)
Tourek testified in a believable straightforward manner without hesitation. Since
Respondent’s president Wooden authorized Tourek to investigate Kastroll’s Feb. 2 Incident, he
is an agent of Respondent under Section 2(13) of the Act. His explanations concerning his
frequent involvement in Respondent employee investigations and why Kastroll’s February 2 20
incident came to his attention rather than directly to Kastroll’s immediate supervisor is
reasonable due to the fact that the matter involved 2 different departments—the unionized
TGD’s department where Kastroll works and the nonunionized security guards department
where Officer Moreno works. Tourek also appeared credible when he described asking Kastroll
at their February 5, 2015 meeting with Snion steward Blair and Prescott if Kastroll believed her 25
February 2 conversation at Priority One Post kept the security officer from doing his job and
Tourek informed Kastroll that a hotel guest had to ask another nearby security officer a question
because of her conversation with the security officer.
May testified in a direct and forthright manner and her testimony did not waver on cross-
examination. For example, May’s testimony was more believable that she tried a multitude of 30
ways to correct her unpaid wage problem with no positive results prior to her June 19 frustrated
outburst in the security office while her managers were in a closed door meeting and most other
employees were at out at lunch.
II. Respondent Lawfully Issued Kastroll a Written Warning in Response to Her
Almost 3 Minute Solicitation Talk to an On Duty Security Guard at Priority 35
One Post in Violation of Respondent’s Solicitation Policy
Paragraphs 5(c), 5(d), 6(a)-6(c), 8, and 9 of the complaint allege that on February 12,
2015, Respondent acted unlawfully in violation of Section 8(a)(1) and Section 8(a)(3) and (1) of
the Act when Respondent selectively and disparately enforced its Solicitation policy rule against
union employee Kastroll and issued her a written warning because Kastroll assisted the Union 40
and engaged in concerted activities and to discourage employees from engaging in these
activities.
JD(SF)–39–16
24
A. The Feb.2 Incident Involves Kastroll’s Prohibited Union Solicitation and Not Merely
Prounion Talk
Respondent’s Solicitation policy, among other things, provides that “[a]ll other
solicitation by employees is prohibited in work areas during the work time of the employee
initiating the solicitation or the employee being solicited…” and “[s]olicitation is oral 5
communication asking or seeking a person to take some action, such as buying a product or
service, contributing to a charity, or joining an organization…” (GC Exh. 2.)
The General Counsel does not allege that Respondent’s Solicitation policy, revised as of
May 13, 2014 (GC Exh. 2), is unlawful but that it was enforced against Kastroll in an unlawful
and discriminatory manner. I find that the General Counsel’s argument lacks merit that Kastroll’s 10
almost 3 minute talk to on-duty Officer Moreno when he was stationed at Respondent’s work
area known as Priority One Post, to urge, allure, entice, and request that he vote in favor of the
SPFPA union in an upcoming election is merely protected “pro-union talk” and somehow not
“union solicitation.” (See GC Br. at 40–41.)
With limited exceptions not applicable here, employees have the protected right under 15
Section 7 of the Act to solicit and distribute literature to fellow employees on behalf of unions or
other common interests dealing with wages, hours, and terms and conditions of employment, so
long as the solicitation is during nonwork time and the distribution is not in work areas. Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 802–805 (1945); and Stoddard Quirk Mfg. Co., 138
NLRB 615, 621 (1962). This includes the right to “engage in persistent union solicitation even 20
when it annoys or disturbs the employees who are being solicited.” Ryder Truck Rental, 341
NLRB 761 (2004), enfd. 401 F.3d 815 (7th Cir. 2005).
The Board has, consequently, held that, “an employer may not generally prohibit union
solicitation ... during nonworking times or in nonworking areas.” Restaurant Corp. of America v.
NLRB, 827 F.2d 799, 806 (D.C. Cir. 1987). Although employers can generally ban solicitation in 25
working areas during working time, such bans cannot extend to working areas during
nonworking time. Food Services of America, Inc., 360 NLRB No. 123, slip op. at 7 (2014).
As stated above, the General Counsel does not challenge Respondent’s Solicitation policy
here, and argues only that Kastroll did not solicit Officer Moreno but, instead, engaged in pro-
union work talk the same as she regularly does without discipline in the course of her time at 30
Respondent.
The General Counsel cites to the Board’s Conagra Foods, Inc. decision, 361 NLRB No.
113, slip op. 2 (2014, enfd. in part, ___ F.3d. ___ , 2016 WL 682979 (8th Cir. 2016), in support
of her argument that the Board has consistently held that solicitation for a union usually means
asking someone to join the union by signing his name to an authorization card at that time. The 35
General Counsel then adds that “the Board has explained that drawing the solicitation line at the
presentation of a card for signature makes sense because it is that act which prompts an
immediate response from the individual or individuals being solicited and therefore presents a
greater potential for interference with employer productivity if employees are supposed to be
working. (internal quotations omitted and citations omitted)” Id.40
JD(SF)–39–16
25
The facts in Conagra Foods, Inc. are distinguishable from the facts here as the interaction
at issue in Conagra Foods, Inc. lasted no more than a few seconds while the disruptive
solicitation here lasted almost 3 minutes and interrupted Respondent’s business operations
including its ability to guard its casino against cheaters and assist its guests with directions at its
busiest casino/hotel location.5
I find that the General Counsel’s citing Conagra Foods, Inc. in support of her position in
this case is too limited in her focus on the lack of authorization cards in this case. Rather, the key
language from the Board in Conagra Foods, Inc. is the balancing between an individual or
individuals being solicited and the potential for interference with employer productivity if
employees are supposed to be working. Here, I find that if you “solicit” an on-duty security 10
guard to vote for the union nonstop for just under 3 minutes while that person is working at a
casino/hotel employer’s busiest duty station for a security guard, you have a disruptive
solicitation for a union that can be regulated by an employer. (See R. Br. at 22–23 and citations
therein.)
Moreover, the Webster’s Dictionary defines “solicitation” as: “the act of soliciting; 15
entreaty, urging, or importunity; a petition or request; enticement or allurement.” I am unaware
of any Board case authority that limits “solicitation for a union,” for the purposes of disciplinary
action, to only attempts to secure the signing of a union card. The whole point of such rules is
that these activities are a distraction or interruption of productive work, which the employer has a
right to limit, so whether the solicitation involves the passing out of a card, or literature, or 20
lengthy verbal enticement, it is still a solicitation.
The 3 minute talk in this case is to be distinguished from a short, casual prounion talk
conversation that Kastroll and the General Counsel attempt to paint her almost 3 minute talk on
February 2, 2015, to on-duty Officer Moreno at his on-duty station known as Priority One Post
where the video evidence shows that Kastroll distracted Officer Moreno from performing his 25
duties for just shy of 3 minutes. This 3 minute talk is certainly not the quick 10 second nonwork
related (“what did you think of the game last night?” or even “go, union”) said while passing by,
which is not intrusive or distracting or solicitation. Kastroll’s 177 second (almost 3 minutes)
solicitation for a union to Officer Moreno, at Respondent’s busiest (Priority One Post) work duty
location, while Officer Moreno is supposed to be on alert to catch casino cheaters while 30
proactively providing directions and customer service to Respondent’s guests and caught on
regular casino video is also “solicitation for a union” in every common sense of the words.
In sum, the General Counsel’s position characterizing Kastroll’s February 2 incident the
same as talks during a dead poker game table on the casino floor or as a brief offhand comment35
at Priority One Post is unsupported by Board precedent—or a common understanding of the
English language. Officer Browning assists a Respondent hotel guest while Kastroll disrupts
Officer Moreno and interferes with Respondent’s business operations and soon after Kastroll
leaves, Officer Moreno is seen on video assisting another Respondent hotel guest. While drawing
a line somewhere between 10 seconds and almost 3 minutes would seem appropriate in deciding 40
when a lengthy interference changes from nonsolicitation to solicitation that can be prohibited, I
find that the line is drawn well before almost 3 minutes when the talk occurs at Priority One
Post.
JD(SF)–39–16
26
Consequently, I find that Kastroll’s almost 3 minute talk to Officer Moreno on February
2, 2015, while he was on-duty at Respondent’s Priority One Post was prohibited solicitation for a
union and not merely prounion work talk. As such, I further find that Kastroll’s February 2 2015
union solicitation talk to Officer Moreno while he was on duty is not protected under Section 7
because it interfered with Officer Moreno’s job duties and Respondent’s business operations at 5
Priority One Post and is subject to Respondent’s prohibition based on the facts of this case.
Respondent made a justifiable showing with its surveillance video that Kastroll’s almost 3
minute talk to Officer Moreno while he was on-duty at Priority One Post interfered with Officer
Moreno’s work and casino operations. Kastroll’s warning was, accordingly, lawful under
Section 8(a)(1) of the Act.10
B. Kastroll’s February 12, 2015 Written Warning Is Justified and Not Discriminatory
As stated above, Kastroll’s February 2, 2015 union solicitation talk to Officer Moreno
while he was on duty is not protected under Section 7 because it is subject to Respondent’s
Solicitation policy prohibition based on the facts of this case. Alternatively, if the February 2
incident involved protected concerted activity, a Wright Line analysis is appropriate to determine 15
whether the General Counsel has proven Respondent’s discriminatory motivation in disciplining
Kastroll on February 12, 2015.
The Supreme Court-approved analysis in 8(a)(1) and (3) cases turning on employer
motivation was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management Corp., 462 20
U.S. 393, 395 (1983) (approving Wright Line analysis). Under the Wright Line framework, as
subsequently developed by the Board, the elements required in order for the General Counsel to
satisfy its burden to show that an employee’s protected activity was a motivating factor in an
employer’s adverse action, “are union or protected concerted activity, employer knowledge of
that activity, and union animus on the part of the employer.” Adams & Associates, Inc., 363 25
NLRB No. 193, slip op. at 6 (2016); Libertyville Toyota, 360 NLRB No. 141, slip op. at 4
(2014); enfd. 801 F.3d 767 (7th Cir. 2015). Such showing proves a violation of the Act subject to
the following affirmative defense: the employer, even if it fails to meet or neutralize the General
Counsel's showing, can avoid the finding that it violated the Act by “demonstrat[ing] that the
same action would have taken place in the absence of the protected conduct.” Wright Line, supra 30
at 1089.
In this case, I find that all of the elements of Wright Line, supra, are not met here. Even if
Kastroll’s behavior in the February 2 incident is considered protected concerted activity, there is
no evidence Respondent exhibited antiunion animus or that Kastroll was discriminatorily
targeted by Respondent. Instead, it was Officer Browning, a nonsupervisory security guard and 35
nonagent of Respondent who simply disliked the union and complained about his observing
Kastroll’s conduct that triggered Respondent’s investigation of the February 2 incident.
Even if Officer Browning espoused antiunion animus, this cannot be imputed to
Respondent in the instant case. Kastroll testified that she freely solicited union members while
on-duty at her quiet card table outside the Priority One Post without being disciplined or briefly 40
recommending a union vote while going on break in other work areas. No disparate treatment by
Respondent has been shown by the General Counsel as no credible evidence has been provided
that union solicitation conversations in the Priority One Post lasting as long as just under 3
JD(SF)–39–16
27
minutes are allowed to occur without any discipline being issued. The video in this case shows
that during Kastroll’s almost 3 minute talk to Officer Moreno, he was distracted by Kastroll and
his work interrupted so he could not complete his regular work duties in a competent manner.
I further find that Respondent properly investigated Officer Browning’s complaint
against Kastroll’s February 2 incident by interviewing Officers Browning and Moreno and later 5
Kastroll. They returned to obtain written statements from Officers Moreno and Browning. I do
not find any of Tourek’s or Prescott’s questions as part of the investigation inappropriate.
Inquiring about the subject matter of the 3 minute talk is appropriate to determine as Tourek said
whether the conversation involved job-related customer service or casino security or prohibited
union solicitation. I also find it reasonable that Tourek would be on higher alert around the time 10
of a union election as that is the expected time period when improper union solicitation is most
likely to occur in working areas while employees are on-duty.
In addition, I further find that Respondent disciplines its employees for personal
conversations—regardless of content—when such conversations distract other employees from
performing their job duties or interfere with guest services and when such conduct is brought to 15
Respondent's attention, as done here. (See. e.g., Tr. 611–612; R. Exhs. 13–14.) Also, Respondent
has previously disciplined employees for such things as: speaking to coworkers instead of
serving guests; ignoring security post duties while talking with another employee; ignoring the
supervision of games due to conversations with another employee; engaging in a personal
conversation about 1970s and 1980s pornography stars in the presence of a guest or customer; 20
failing to greet a guest because the employee was engaged in a conversation with a coworker;
failing to serve guests due to conversations with a coworker; and neglecting duties while
engaged in personal conversations with coworkers (R. Exh. 14 at 2–3, 5–8, 12, and 14.)
Like Respondent’s discipline of Kastroll for her almost 3 minute talk to Officer Moreno
which I find interfered with his ability to help and direct Respondent’s guests while at Priority 25
One Post, these other discipline examples similarly show that Kastroll was not targeted or
discriminated against due to her union solicitation but, like Respondent’s employees in the above
examples, Kastroll was disciplined because she distracted Officer Moreno for almost 3 minutes
and interfered with his duties to help and direct Respondent’s guests and monitor the casino area
in Priority One Post. 30
As a consequence, I further find that Respondent has met its burden under Wright Line of
demonstrating that it would have taken the same action against Kastroll in the absence of union
activity. As stated above, if Kastroll had, instead, attempted to solicit a charity donation from
Officer Moreno for almost 3 minutes, she would have received the same written warning as she
did on February 12, 2015. 35
Accordingly, I find that the General Counsel has not proven that Respondent violated
Section 8(a)(3) and (1) of the Act when it issued a written warning against Kastroll on February
12, 2015.
40
JD(SF)–39–16
28
III. Respondent, Through Officer Browning, Did Not Unlawfully Engage in
Surveillance of Employees to Discover Their Union Activities
Paragraphs 5(e) and 8 of the complaint allege that on February 2, 2015, Respondent, by
Joshua Browning, at Respondent’s facility, by standing beside employees and eavesdropping on
their conversation, engaged in surveillance of employees to discover their Union activities in 5
violation of Section 8(a)(1)of the Act.
The General Counsel argues that Officer Browning is an agent of Respondent under
Section 2(13) of the Act. There was no evidence provided by the General Counsel that satisfies
its burden to prove that Officer Browning is Respondent’s agent for surveillance purposes. In
fact, the General Counsel did not call Officer Browning as a witness to support her allegations10
and did not show him to be unavailable and I draw an adverse inference that he would have
testified against being Respondent’s agent and also against unlawfully engaging in surveillance
of Kastroll for Respondent on February 2, 2015. See Int’l Automated Machines, 285 NLRB
1122, 1123 (1987) (When a party fails to call a witness who may reasonably be assumed to be
favorably disposed to the party, an adverse inference may be drawn regarding any factual 15
question on which the witness is likely to have knowledge).
“The Board considers the position of the employee in addition to the context in which the
behavior occurred” to determine whether the alleged agent had the apparent authority to make
the act in question. Pessoa Construction Co., 356 NLRB 1253, 1255 (2011) (quoting Pan -
Oston, 336 NLRB 305 (2001)). Here, the alleged conduct occurred when Officer Browning was 20
acting as a non-supervisory fellow security officer on February 2, 2015, and stood close enough
to Officer Moreno to eavesdrop on Kastroll’s almost 3 minute talk to Officer Moreno to
determine what was said. There is no evidence that Officer Browning, in his position as security
officer on February 2, was acting for Respondent and authorized to represent Respondent in
interactions between a card dealer on break (Kastroll) and another security officer (Officer 25
Moreno) on behalf of Respondent. Like Officer Moreno, Officer Browning was not a supervisor
or agent of Respondent and he too was eligible to vote in the upcoming SPFPA union election.
Under these circumstances, I find that as of February 2, 2015, neither Kastroll nor Officer
Moreno could reasonably perceive that Officer Browning was an agent of management and
Officer Browning’s antiunion animus, if any, cannot be imputed to Respondent in this case. 30
Officer Browning simply complained to management about the February 2 incident and he did
not support the Union. As a result, I further find that on February 2, 2015, despite Officer
Browning, at Respondent’s facility, standing beside employees and eavesdropping on their
conversation, Respondent did not engage in surveillance of employees to discover their union
activities in violation of Section 8(a)(1)of the Act. 35
IV. Respondent did not unlawfully interrogate Kastroll, Officer Browning or Marino
The complaint also alleges incidents of interrogation (complaint paragraphs 5(f)(1))
occurring from February 2 and 12, wherein Prescott alone or with Tourek interrogated Officers
Browning and Moreno about the February 2 incident and also interrogated Kastroll about the
same incident on February 5, 2015. (Tr. 312, 317–318; GC Exh. 1(o).) On brief (GC Br. at 41–40
44), the General Counsel argues that Kastroll, Officer Browning, and Officer Moreno were
unlawfully interrogated during their February 3 through February 9, 2015 meetings with Prescott
JD(SF)–39–16
29
alone or with Prescott and Tourek when they were all asked about the February 2 incident as part
of Respondent’s investigation in response to Officer Browning’s complaint to management.
It is well established that not every interrogation is unlawful under the Act. Whether the
questioning of an employee constitutes an unlawful coercive interrogation must be considered
under all the circumstances and there are no particular factors "to be mechanically applied in 5
each case." Rossmore House, 269 NLRB 1176, 1178 (1984), enfd. 760 F.2d 1006 (9th Cir.
1985); Westwood Health Care Center, 330 NLRB 935, 939 (2000). While the Board has
identified a number of factors that are “useful indicia” in determining whether the questioning of
an employee constitutes an unlawful interrogation, the Board has explained that "[i]n the final
analysis, our task is to determine whether under all the circumstances the questioning at issue 10
would reasonably tend to coerce the employee at whom it is directed so that he or she would feel
restrained from exercising rights protected by Section 7 of the Act." Westwood, supra at 940;
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
The Board has recognized that employers have a legitimate business interest in
investigating facially valid complaints of employee misconduct. See Fresenius USA Mfg., Inc., 15
362 NLRB No. 130, slip op. at 1 (2015) (discussing an investigation of alleged employee
harassment); Bridgestone Firestone South Carolina, 350 NLRB 526, 528 (2007) (interrogation
of employee was lawful where it occurred as part of a legitimate investigation into whether the
employee engaged in misconduct); and Consolidated Diesel Co., 332 NLRB 1019, 1020 (2000)
(noting that the employer’s initial investigation of harassment charges was permissible). 20
That basic premise is understandable, since the alleged employee misconduct may not
implicate the employee’s Section 7 rights. Moreover, even if the alleged misconduct does relate
to the accused employee’s Section 7 rights, Board law establishes that an employer nonetheless
may discipline or discharge an employee if the employee engages in conduct that could have
qualified as protected activity, but involved misconduct that was sufficiently egregious to 25
remove the employee’s activities from the Act’s protection. See Stanford Hotel, 344 NLRB 558
(2005) (citing Atlantic Steel Co., 245 NLRB 814, 816 (1979)).
In light of those possibilities, it makes sense to afford employers some leeway to conduct
an initial investigation and make an informed decision about whether the employee’s alleged
misconduct warrants disciplinary or other action, taking into account the employee’s right to 30
engage in Section 7 activity and other factors. On the other hand, the employer’s right to
investigate is not unlimited. Where it is apparent from an initial investigation that the employee
engaged in activity that is protected by the Act, the employer may not disregard that fact and
forge ahead with the investigation as a precursor to possible discipline. See Consolidated Diesel
Co., 350 NLRB at 1020 (finding that an employer’s initial investigation of alleged employee 35
misconduct while distributing union literature was permissible, but once that initial investigation
showed that the alleged misconduct was protected by the Act, it was unlawful for the employer
to continue the investigation before a committee that had the power to impose discipline).
Respondent claims that the questioning of Kastroll, Officer Browning, and Officer
Moreno was warranted because Kastroll’s unprotected almost 3 minute talk to Officer Moreno 40
was prohibited by Respondent’s Solicitation policy and Kastroll’s conduct interfered with
Officer Moreno’s job duties. I find that this rule is lawful, as maintained, applied, and enforced
in this instance. Indeed, that is not seriously contested. Here, Respondent’s questioning of
JD(SF)–39–16
30
Kastroll, Officer Browning, and Officer Moreno was justified as part of Respondent’s
investigation to determine whether Kastroll had a legitimate work-related reason to interfere with
Officer Moreno’s job duties for almost 3 minutes or whether Kastroll violated Respondent’s
lawful Solicitation policy.
The questioning took place at the HR office with Prescott and Tourek asking the 5
questions because 2 different departments were involved in the Feb. 2 Incident and Prescott and
Tourek frequently were asked to investigate these types of matters. Kastroll was allowed her
union representative Blair for the February 5, 2015 meeting. Prescott and Tourek asked Kastroll
general questions about the February 2 incident as no reasonable employee would deny specific
knowledge and memory of an almost 3 minute talk to Officer Moreno that occurred just 3 days 10
before at the end of Kastroll’s work shift. They were merely testing Kastroll’s ability to tell the
truth about the February 2 incident and she, instead, falsely stated that she did not recall the
almost 3 minute talk and tried to brush it off as a mere 3–10 second prounion talk. All of the
meetings were justified given all activities that go on at Priority One Post and given the large
volume of traffic at the casino’s busiest location—Priority One Post, which overlooks the casino 15
floor where large sums of money are present for use by customers and many guests travel in
need of direction or answers from security officers. Thus, the “justification” for the questioning
was to determine the subject matter of the February 2 talk and whether or not Kastroll interfered
with Officer Moreno’s job duties in violation of Respondent’s Solicitation policy.
After Prescott and Tourek met with Kastroll and Blair and saw that Kastroll was not 20
willingly accepting the consequences for her actions in the February 2 incident, it was reasonable
that Prescott would call Officer Browning in again on February 6 to have him create and sign a
written statement about the February 2 incident. Officer Moreno did the same thing by writing
his own statement about the February 2 incident. Because of the Priority One Post location and
the common presence of surveillance tapes at this busy location to monitor activities, Respondent 25
reasonably anticipated that anyone who interrupts a security officer at this location for almost 3
minutes as Kastroll did, should be investigated and should receive discipline if the talk was not
work-related. After Officer Browning complained to management and brought the February 2
incident to their attention, the investigation followed, including a review of a common
surveillance video, and minor discipline—a written warning against Kastroll. 30
Under the circumstances of this case where Kastroll’s unprotected talk to Officer Moreno
lasted almost 3 minutes when he was on duty at Priority One Post, I find that the questioning of
Kastroll, Officer Moreno, and Officer Browning in response to Officer Browning’s complaint to
management of the February 2 incident, a complaint confirmed by Respondent’s surveillance
tape, was not coercive or unlawful but was a proper response to the February 2 incident. Thus, 35
based on the guidance drawn from the Board’s case law, I find that Respondent did not
unlawfully interrogate its employees or violate the Act when it interviewed Kastroll, Officer
Browning, or Officer Moreno about the Feb. 2 Incident. The questioning of Kastroll, Officer
Browning, and Officer Moreno was reasonably justified and did not violate Section 8(a)(1) of the
Act.40
JD(SF)–39–16
31
V. No Unlawful Oral Rule Promulgation or Threat to Employees to Not Promote the
Union While on Duty at Respondent
Paragraphs 5(g)(1) and 8 of the complaint allege that on February 5, 2015, Respondent,
by its in-house counsel Tourek at Respondent’s facility (1) orally promulgated a discriminatory
directive that its employees could not promote the Union while they were on duty; and (2) 5
threatened its employees with unspecified reprisals because they engaged in union and other
concerted activities in violation of Section 8(a)(1) of the Act.
A. Tourek Did Not Orally Promulgate a Discriminatory Directive that Respondent’s
Employees Could not Promote the Union While They Were on Duty
The General Counsel argues that Respondent, by its in-house counsel Tourek at 10
Respondent’s facility, orally promulgated a discriminatory directive that its employees could not
promote the Union while they were on duty in violation of Section 8(a)(1) of the Act. With this
allegation, the General Counsel confuses prounion talk “on the gaming floor” from an almost 3
minute solicitation of the union to an on duty security officer at Priority One Post.
At their February 5 meeting, Tourek was explaining Respondent’s solicitation policy to 15
Kastroll and Blair and acknowledged that prounion conversations on the casino gaming floor
have been allowed to occur without discipline as there is no real interference with Respondent’s
business operations when this occurs unless an on duty employee is distracted from performing
their job duties, a guest complains or the prounion talk contains unprotected matters as well. The
February 2 incident is different from this prounion talk on the gaming floor during a dead game 20
or a brief 10 second “vote for the union” utterance.
Tourek also explained to Kastroll and Blair that Respondent’s solicitation policy applies
to on duty employees and in this instance, to the February 2 incident where Officer Moreno was
distracted by Kastroll’s almost 3 minute solicitation of the union and Officer Moreno was unable
to assist Respondent’s guests and customers. As stated above, I further find that Respondent 25
disciplines employees for personal conversations—regardless of content—when such
conversations distract other employees from performing their job duties or interfere with guest
services and when such conduct is brought to Respondent's attention. (See. e.g., Tr. 611–612; R.
Exhs. 13–14.) As a result, I find that Respondent, by its in-house counsel Tourek at
Respondent’s facility, did not orally promulgated a discriminatory directive that its employees 30
could not promote the Union while they were on duty in violation of Section 8(a)(1) of the Act.
B. Tourek Did Not Threaten Respondent’s Employees with Unspecified Threat of
Reprisals Because They Engaged in Union and Other Concerted Activities
An employer violates Section 8(a)(1) if it communicates to employees that they will
jeopardize their job security, wages, or other working conditions if they support the union. Metro 35
One Loss Prevention Services, 356 NLRB No. 20, slip op. at 1 (2010). In addition, the Board has
found that “be careful” warnings to an employee convey the threatening message that union
activities would place an employee in jeopardy. Gaetano & Associates Inc., 344 NLRB 531, 534
(2005) (finding that telling an employee to “be careful” was an unlawful threat). See also, e.g.,
St. Francis Medical Center, 340 NLRB 1370, 1383–1384 (2003) (“be careful” statement by 40
JD(SF)–39–16
32
supervisor in context of union activity held unlawful); Jordan Marsh Stores Corp., 317 NLRB
460, 462 (1995) (supervisor’s statements such as “watch out” are unlawful implied threats).
Further, the Board in Hall Construction adopted a finding of an unlawful threat of
blacklisting where employees were told that unionizing would mean “all of us guys would be
blackballed from any work in the [the respective employers’ field]. . . .” Flamingo Hilton-5
Laughlin, 324 NLRB 72, 116 (1997). As stated above, Tourek, as Respondent’s agent, gave
Kastroll an explanation of Respondent’s Solicitation policy and differentiated allowed and
protected pro-union talk on the casino floor where Kastroll works when there is a dead table or
brief pro-union utterances from unprotected almost 3 minute talks at the Priority One Post that
interfere with on duty security officer’s job duties. Under the totality of circumstances here, 10
Tourek’s statements to Kastroll and Blair at the February 5, 2015 investigatory meeting were not
unlawful threats but, instead, notice to Kastroll that she would receive some discipline from her
unprotected activities on February 2, 2015, in connection with her almost 3 minute talk to
Officer Moreno which interfered with his duties while he was on duty at Priority One Post. As a
result, I find that Respondent, by its in-house counsel Tourek at Respondent’s facility, did not 15
threaten its employees with unspecified reprisals because they engaged in union and other
concerted activities in violation of Section 8(a)(1) of the Act.
VI. No Unlawful Impression of Surveillance of Kastroll
Paragraph 5(f)(2) of the complaint alleges that on or about February 5, 2015, Respondent
through Prescott and Tourek, by asking Kastroll if she remembered talking to a security officer 20
about the importance of unionization, created an impression among its employees that their
union activities were under surveillance in violation of Section 8(a)(1) of the Act. (GC Exh.
1(o).)
The test for determining whether an employer has created an impression that its
employees’ protected activities have been placed under surveillance is “whether the employees 25
would reasonably assume from the employer’s statements or conduct that their protected
activities had been placed under surveillance.” Greater Omaha Packing Co., Inc., 360 NLRB
No. 62, slip op. at 3 (2014); Rood Industries, 278 NLRB 160, 164 (1986). When an employer
tells employees that it is aware of their protected activities, but fails to tell them the source of
that information, it violates Section 8(a)(1) “because employees are left to speculate as to how 30
the employer obtained the information, causing them reasonably to conclude the information was
obtained through employer monitoring.” (Id.)
In determining whether an employer has unlawfully created the impression of
surveillance of employees’ union activities, the test is whether under all the relevant
circumstances, reasonable employees would assume from the statement in question that their 35
union or other protected activities had been placed under surveillance. Frontier Telephone of
Rochester, Inc., 344 NLRB 1270, 1276 (2005). The essential focus has always been on the
reasonableness of the employees’ assumption that the employer was monitoring their union or
protected activities. Id. As with all conduct alleged to violate Section 8(a)(1), the critical element
of reasonableness is analyzed under an objective standard. Id. 40
Here, Prescott and Tourek did not create the impression of surveillance by asking
Kastroll general questions about the February 2 incident as no reasonable employee would deny
JD(SF)–39–16
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specific knowledge and memory of an almost 3 minute talk to Officer Moreno that occurred just
3 days before at the end of Kastroll’s work shift. They were merely testing Kastroll’s ability to
tell the truth about the February 2 incident and she, instead, falsely stated that she did not recall
the almost 3 minute talk and tried to brush it off as a mere 3–10 second prounion talk. As a
result, I find that Respondent did not create an impression of surveillance of union or concerted 5
activities in violation of Section 8(a)(1) of the Act as alleged in the complaint.
VII. May’s Suspension and Written Warning in Response to the June 19 Incident
Respondent suspended May in response to the June 19 incident and issued her a second
warning. The complaint alleges that these actions violated Section 8(a)(1) of the Act.
A. May Was Unlawfully Suspended by Respondent in Violation of Section 8(a)(1)of the 10
Act for the June 19 Incident
Complaint paragraphs 7 and 8 allege that from on or about June 19, 2015, Officer May
engaged in protected concerted activity when she complained to Officer Rankin regarding yet
another delay in payment of wages in the normal course of working as a security officer at
Respondent’s WDD Flex Building. Concerted activity includes not only activity that is engaged 15
in with or on the authority of other employees, but also activity where individual employees seek
to initiate or to induce or to prepare for group action, as well as individual employees bringing
truly group complaints to the attention of management. Fresh & Easy Neighborhood Market,
361 NLRB No. 12, slip op. at 3 (2014).7 If the employee or employees who are acting in concert
are seeking to improve terms and conditions of employment, their actions are for mutual aid and 20
protection of all employees within the meaning of Section 7. (Id., slip op. at 3, 5–6.)
Thus, on June 19 when Officers May and Rankin met during their lunch breaks at the
security office to discuss with management the frequent problems experienced by all security
officers working at Respondent’s WDD Flex Building—unpaid wages—they were acting in 25
concert to try to improve their terms and conditions of employment on behalf of themselves and
other security officer employees. Respondent has denied this and argues that the employees were
not engaged in activity protected by the Act on June 19, 2015.
It is well established that wage discussions are “inherently concerted.” Automatic Screw 30
Products Co., 306 NLRB 1072, 1072 (1992), enfd. mem. 977 F.2d 582 (6th Cir. 1992). I find
that Officer’ May’s comments on June 19 with Officer Rankin during their lunch breaks, though
containing profanities, were protected conduct involving a group grievance from security officers
working at the WDD Flex Building regarding frequent underpayments of wages and reporting to
management that yet another officer’s paycheck (May’s) was inaccurate, underpaid, and needed 35
correction.
The issue raised by Respondent is whether Officer May’s conduct by her adding
profanities to the group grievance somehow took the concerted activity outside the Act’s

7
See also Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 971 (1985), supplemented Meyers Industries, 281 NLRB 882, 887 (1986),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), supplemented, Meyers Industries, 281 NLRB 882,
887 (1980), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
JD(SF)–39–16
34
protection. I find that May’s comments were not so egregious as to exceed the Act’s protection
especially given the common usage of profanities in the security department. I do not rely on the
application of the four-factor test in Atlantic Steel Co., 245 NLRB 814 (1979), given that, here,
the comments in question were made loudly to other employees and overheard by others during a
lunch hour break for most employees and did not occur during direct communications between 5
an employee and a manager or supervisor which would have brought in the 4-part criteria set
forth in Atlantic Steel Co., 245 NLRB 814 (1979). See generally Triple Play Sports Bar & Grille,
361 NLRB No. 31, slip op. at 3 (2014) (“as a general matter, the Atlantic Steel framework is not
well suited to address issues . . . involving employees’ off-duty, offsite use of social media to
communicate with other employees or with third parties”). Rather, I find that May’s June 19 10
outburst did not lose its protected character under the totality of the circumstances. See, e.g.,
Richmond District Neighborhood Center, 361 NLRB No. 74, slip op. at 2 fn. 6 (2014) (in the
absence of exceptions, the Board, without deciding the appropriateness of the judge’s test for
analyzing private Facebook conversations, examined the egregiousness of the conduct under all
the circumstances). See also Pier Sixty, LLC, 362 NLRB No. 59, slip op. at 2–3 (2015)(Same).15
In evaluating Officer May’s June 19 Incident under the totality of the circumstances, I
consider the following factors: (1) whether the record contained any evidence of the
Respondent’s antiunion hostility; (2) whether the Respondent provoked May’s conduct; (3)
whether Officer May’s conduct was impulsive or deliberate; (4) the location of May’s June 19
outburst; (5) the subject matter of the outburst; (6) the nature of the outburst; (7) whether the 20
Respondent considered language similar to that used by Officer May to be offensive; (8) whether
the employer maintained a specific rule prohibiting the language at issue; and (9) whether the
discipline imposed upon Officer May was typical of that imposed for similar violations or
disproportionate to her offense. I find that an objective review of the evidence under the
foregoing factors establishes that an analysis of them weighs in favor of not finding that May’s 25
June 19 Incident comments were so egregious as to take them outside the protection of the Act.
Two of the first three factors do not weigh in favor of finding that Officer May’s June 19
comments lost the Act’s protection. There is no evidence that the Respondent demonstrated its
hostility toward any employees’ union activity (the first factor). Officer May clearly found her
managers’ disinterested and unsuccessful efforts lacking to correct her unpaid May 2015 wages 30
from June 1 through 19 to the point that management provoked Officer May’s frustrations to her
impulsive comments on June 19 (the second and third factors), and Officer May’s comments
reflected her exasperated frustration and stress after months of concertedly protesting
disrespectful treatment by managers with frequent examples of underpaid wages to security
officers working at the WDD Flex Building—activity protected by the Act. I find it egregious 35
that Respondent’s arcane and unreliable timekeeping system for its security officers stationed at
its WDD Flex Building go unchecked from 2014 and 2015 to culminate in Officer May’s June
19 Incident.
The location and subject matter of May’s June 19 incident (factors four and five) also do
not weigh in favor of finding that Officer May’ comments lost the protection of the Act. She 40
made her comments while seemingly alone with Officer Rankin, on lunchbreak, while her
managers were in a closed-door meeting and the security department was mostly empty due to
lunch. There is very little evidence that her comments interrupted the Respondent’s work
environment or its relationship with its customers other than Boguille’s minor shortened
JD(SF)–39–16
35
telephone conversation. Further, Officer May’s comments echoed previous complaints about
management’s lax timekeeping methods that frequently underpaid its security officer employees
at the WDD Flex Building.
Regarding factors six and seven, the overwhelming evidence establishes that, while
distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including 5
the words “fucking ass,” “son of a bitch,” and “get your asses in the briefing office.” Considered
in this setting, Officer May’s repeated use of those words in her June 19 incident would not
cause her to lose the protection of the Act.
Also, evidence of the Respondent’s policies and practices relating to the discipline of
employees who use the type of language that Officer May used in her June 19 incident (factors 10
eight and nine) does not persuade me that Officer May’s June 19 incident comments were
unprotected. I further find that the Respondent’s “Code of Personal Conduct” policy, which it
cited as the basis for suspending Officer May and issuing her a second written warning, neither
specifically prohibits vulgar or profane language though it does say to avoid using “offensive
language” in the context of promoting and respecting diversity of Respondent’s workforce by 15
avoiding any form of discrimination or harassment. (GC Exh. 1(o) & (q): R. Exh12.)
Respondent does not allege that Officer May’s June 19 Incident was directed at any protected
classification listed in that policy or any member of Respondent’s workforce. Further, prior to
the June 19 Incident, little evidence was produced at trial showing that Respondent issued similar
suspensions and written warnings to employees who had used profane language under the same 20
circumstances here where the incident occurred outside the presence of Respondent’s customer
or guest areas during a lunchbreak where most employees were absent, the incident did not occur
between an employee and their supervisor/manager, and profane language was common in the
area it was uttered by the disciplined employee. As a matter of fact, there was no evidence that
Officer Rankin was disciplined for his part of uttering similar profanities on June 19, 2015.25
Moreover, as found below, Respondent’s “inappropriate conduct” rule used to discipline
May is overbroad in violation of the Act. To defend a suspension and written warning based on a
rule that even “has a tendency to inhibit [protected] activity,” an employer must show “legitimate
and substantial business justification” for the rule. Jeanette Corp. v. NLRB, 532 F.2d 916, 918
(3rd Cir. 1976) (quoting NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967)). Respondent 30
failed to make such a showing here as to its Inappropriate Conduct Rule. In addition, Respondent
never alleged that May’s June 19 incident was the result of her failure to promote and respect
the diversity of the Respondent’s workforce and involved her discrimination or harassment,
including the questioned degrading comments or offensive language.
I further find that the particular facts and circumstances presented in this case weigh in 35
favor of finding that Officer May’s conduct did not lose the Act’s protection. Accordingly, I find
that the Respondent violated Section 8(a)(1) by unlawfully suspending Officer May for her
protected concerted activity on June 19.
JD(SF)–39–16
36
B. May’s Second Written Warning for the June 19 Incident also Violated the Act
Under Section 8(a)(1)
May’s second written warning for inappropriate conduct in violation of Respondent’s
Code of Conduct also violated the Act. (Tr. 405; GC Exh. 30.) The Board has held that discipline
imposed pursuant to an unlawful rule is invalid under the following circumstances:5
Discipline imposed pursuant to an unlawfully overbroad rule violates the Act in those
situations in which an employee violated the rule by (1) engaging in protected conduct or
(2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of
the Act. Nevertheless, an employer will avoid liability for discipline imposed pursuant to
an overbroad rule if it can establish that the employee's conduct actually interfered with 10
the employee's own work or that of other employees or otherwise actually interfered with
the employer's operations, and that the interference, rather than the violation of the rule,
was the reason for the discipline. It is the employer's burden, not only to assert this
affirmative defense, but also to establish that the employee's interference with production
or operations was the actual reason for the discipline. In this regard, an employer's mere 15
citation of the overbroad rule as the basis for discipline will not suffice to meet its
burden. Rather, assuming that the employer provides the employee with a reason (either
written or oral) for its imposition of discipline, the employer must demonstrate that it
cited the employee's interference with production and not simply the violation of the
overbroad rule.20
Continental Group, Inc., 357 NLRB 409, 412 (2011) (citations omitted). See also Dish Network,
LLC., 363 NLRB No. 141, slip op. at 12–13 (March 3, 2016)(Same).
Officer May received discipline under Respondent’s unlawful Inappropriate Conduct
Rule for engaging in protected concerted activity (i.e. complaining to other employees about
management’s continued inability over 2 weeks to timely pay her earned wages and benefits). 25
Respondent made no showing that Officer May’s June 19 activities interfered with her own
work, the work of others, or the security department in any material way. Officer May was
disciplined specifically for violating Respondent’s overbroad “inappropriate conduct” rule and
not for insubordination or interference with Respondent’s production. Her second written
warning was also, accordingly, unlawful in violation of Section 8(a)(1) of the Act.30
VIII. The Challenged Handbook Rules
As detailed below, the complaint alleges that various employer rules violate Section 8(a)(1)
of the Act. The General Counsel has the burden to prove that a rule or policy violates the Act. In
determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is whether the
rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette 35
Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999); Hills & Dales
General Hospital, 360 NLRB No. 70, slip op at 5 (2014).
As the Board stated in its T-Mobile USA, Inc. decision, 363 NLRB No. 171, slip op. at 1–2
(April 29, 2016), applicable here when analyzing an employer’s work rules handbook:
The consolidated complaint alleges that numerous provisions in written work rules and 40
policies applicable to the Respondent’s employees are unlawful. An employer violates
JD(SF)–39–16
37
Section 8(a)(1) of the Act if it maintains workplace rules that would reasonably tend to chill
employees in the exercise of their Section 7 rights. See Lafayette Park Hotel, 326 NLRB 824,
825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The analytical framework for assessing
whether maintenance of rules violates the Act is set forth in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004). Under Lutheran Heritage, a work rule is unlawful if “the 5
rule explicitly restricts activities protected by Section 7.” Id. at 646 (emphasis in original). If
the work rule does not explicitly restrict protected activities, it nonetheless will violate
Section 8(a)(1) if “(1) employees would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7 rights.” Id. at 647.10
The rules at issue before us are not alleged to explicitly restrict protected activities or to have
been promulgated in response to or applied to restrict Section 7 activities. Thus, the relevant
inquiry is whether employees would reasonably construe the challenged rules to prohibit
Section 7 activity. In construing rules, Lutheran Heritage teaches that they are to be given a
reasonable reading, and are not to be considered in isolation. Id. at 646. Further, any 15
ambiguity in the rule must be construed against the drafter—here, the Respondent. Lafayette
Park, above at 825.
Id. (Footnotes omitted.)
A. The Inappropriate Conduct Rule
The first questionable rule from Respondent’s handbook reads:20
Respecting others, which includes but is not limited to:
ï‚· Displaying appropriate behavior at work, on Wynn [Respondent] business,
or on property. Never engaging in misconduct on or off-duty that (as
determined by Wynn [Respondent]) materially and adversely affects job
performance or tends to bring discredit to Wynn. Promoting and respecting the 25
diversity of the Wynn workforce by avoiding any form of discrimination or
harassment, including degrading comments or offensive language;
ï‚· and refraining from inappropriate conduct or horseplay.
I find the rule does not expressly restrict Section 7 activity. I find, however, that employees
would construe the requirement to refrain from “[n]ever engaging in misconduct on or off-30
duty that (as determined by Wynn [Respondent]) materially and adversely affects job
performance or tends to bring discredit to Wynn” and “inappropriate conduct” as restrictions on
employees’ Section 7 rights under current Board law. “Never engaging in misconduct on or
off-duty that (as determined by Wynn [Respondent]) materially and adversely affects job
performance or tends to bring discredit to Wynn” and “…[I]nappropriate conduct”covers 35
everyone, and would apply to supervisors and managers. In fact, the reference to “as
determined by Wynn [Respondent]” is highly suggestive of subjective interpretation by
supervisors and managers, although it may apply to other coworkers as well. That prohibition
would reasonably be construed by employees to bar them from discussing supervisory and
managerial decisions, thereby chilling them from engaging in protected activities.40
JD(SF)–39–16
38
Moreover, the rule “Never engaging in misconduct on or off-duty that … materially and
adversely affects job performance or tends to bring discredit to Wynn” and “inappropriate
conduct” contains a “patent ambiguity” in these phrases as employees “would reasonably
construe the rule” as limiting their communications concerning employment. See 2 Sisters Food
Group, Inc., 357 NLRB No. 168, slip op. at 2 (2011). 5
In addition, the rule “never engaging in misconduct on or off-duty that materially and
adversely affects job performance or tends to bring discredit to Wynn.” The Board has found
that rules prohibiting “negative” speech and behavior are unlawful. For example, in
Roomstore, 357 NLRB 1690, 1690 fn. 3 (2011), the Board found a rule prohibiting “any type of
‘negative’ energy or attitudes” to be unlawful. In Hills & Dales General Hospital, supra, the 10
Board found a rule prohibiting “negative comments about fellow team
members,”“engag[ing] in or listen[ing] to negativity, and requiring employees to “represent
[the Respondent] in the community in a positive and professional manner” was overly broad.
On the other hand, the Board has found rules to be lawful when the conduct they aim to prohibit
clearly falls outside the Act’s protection, such as conduct that is abusive, injurious, threatening,15
intimidating, coercing, and/or profane. See, e.g. Lutheran Heritage, supra; Palms Hotel and
Casino, supra. Here, the rule “never engaging in misconduct on or off-duty that materially
and adversely affects job performance or tends to bring discredit to Wynn [Respondent]” is
broad and vague, and easily interpreted to include protected concerted activities protesting
working conditions. As such, the rule would reasonably be interpreted to apply to attendance at a 20
union event when the employee identifies himself or herself as an employee and complains about
working conditions.
Therefore, I find the specific language I mention here of the Inappropriate Conduct Rule is
overly broad as to the specific language prohibiting “Never engaging in misconduct on or off-
duty that … materially and adversely affects job performance or tends to bring discredit to 25
Wynn” and “inappropriate conduct” and in violation of Section 8(a)(1) of the Act. See also First
Transit, Inc., 360 NLRB No. 72, slip op at 3 ((2014). (Same) and Claremont Resort & Spa, 344
NLRB 832 (2005) (finding rule prohibiting “negative conversations” about coworkers and
managers unlawful).
B. The No Photographs, PDAs, Messaging, Calls, or Recordings Rule30
The next rule for analysis reads:
ï‚· Striving for excellence in job performance, which includes but is not limited to
never taking photographs in the public "front-of-house" area.
ï‚· Never using personal communications devices such as beepers, cellular
telephones and personal data assistance ("PDAs"), for incoming and outgoing 35
messaging or calls while on duty, unless prior authorization is obtained from a
department manager.
ï‚· Except for off duty or pre-authorized use of personal communications devices for
incoming and outgoing messaging or calls only, never using any device for audio,
video or data recording/transmission, such as video and digital cameras, camera 40
JD(SF)–39–16
39
and recording components of cellular telephones/PDAs and digital recorders, at
any time while on company property or while performing job duties off-company
property, unless prior authorization is obtained from a department manager for a
company business purpose.
Being honest, which includes but is not limited to:5
ï‚· Refraining from any activity in photographing or recording (either by audio or
video means) others in the work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authorization has been given in
advance by all individuals subject to the intended photography and/or recording
activity or management has otherwise pre-authorized the activity for company 10
business purposes.
As stated above, under Lutheran Heritage Village-Livonia, 343 NLRB supra at 647, an
employer violates Section 8(a)(1) when it maintains a work rule that employees would
reasonably construe to prohibit Section 7 activity. Here, this set of related rules prohibit
employees from using their own cellphones and other communications devices to talk to each 15
other, record safety concerns, and other protected concerted activity for the entire time they are
on duty, break times, or on Respondent’s property, including nonwork areas like the EDR,
parking lots and garages and parts of the casino while off duty. Employees have a right to
photograph and make recordings in furtherance of their protected concerted activity. See Hawaii
Tribune-Herald, 356 NLRB No. 63, slip op. at 1 (2011), enfd sub nom. Stephens Media, LLC v. 20
NLRB, 677 F.3d 1241 (D.C. Cir. 2012). Photography is protected by Section 7 if employees are
acting in concert for their mutual aid and protection and no overriding employer interest is
present. Whole Foods, 363 NLRB No. 87, slip op. at 3 (2015); Rio All-Suites Hotel & Casino,
362 NLRB No. 190, slip op. at 4 (2015). See also White Oak Manor, 353 NLRB 795, 795 fn. 2
(2009) (photography was part of the res gestae of employee’s protected concerted activity), 25
reaffirmed and incorporated by reference at 355 NLRB 1280 (2010) enfd. 452 Fed. Appx 374
(4th Cir. 2011).
Such protected conduct may include, for example, recording images of protected picketing,
documenting unsafe workplace equipment or hazardous working conditions, documenting and
publicizing discussions about terms and conditions of employment, documenting inconsistent 30
application of employer rules, or recording evidence to preserve it for later use in administrative
or judicial forums in employment related actions. The rule does not differentiate between
photography, PDAs, messaging, calls, and recordings that are protected by Section 7 and those
that are not, and includes in its prohibition recordings made during nonwork time and in
nonwork areas.35
In considering the legality of a rule prohibiting photography in Flagstaff Medical Center, 357
NLRB 659, 662–663 (2011), enf. granted in part, denied in part on other grounds 715 F.3d 928
(D.C. Cir. 2013), the Board emphasized the “weighty” privacy interests of the patients and the
hospital’s “significant interest in preventing the wrongful disclosure of individually identifiable
health information,” as required by Federal law. The Board concluded that the rule in Flagstaff40
was lawful, finding that employees would understand the rule as a “legitimate means of
protecting the privacy of patients and their hospital surroundings.” Id. Here, the rule is silent as
JD(SF)–39–16
40
to whether any “weighty” privacy interests, such as the privacy of its patrons, are the focus of
Respondent’s No Photographs, PDAs, Messaging, Calls, or Recordings Rule which include no
indication that they are designed to protect privacy or other legitimate interests. Respondent
argues this is the case that patrons have Nevada state privacy rights but does not limit its rules
sufficiently. 5
I further find that the recording prohibition is not narrowly tailored to any legitimate
business interest. As a result, I find that Respondent’s employees would not reasonably interpret
the No Photographs, PDAs, Messaging, Calls, or Recording Rule as related to the protection of
patron privacy. Without such a limiting principle, the Respondent’s employees are left to draw
the reasonable conclusion that these prohibitions would prohibit their use of audio-visual devices 10
in furtherance of their protected concerted activities.8 See Rio All-Suites Hotel and Casino, 362
NLRB supra at 4. Based on the foregoing, I find that Respondent’s employees would reasonably
interpret Respondent’s No Photographs, PDAs, Messaging, Calls, or Recording Rules to infringe
on their protected concerted activity. Thus, these rules violate Section 8(a)(1) of the Act.
C. The Restricted Access Rule15
The third rule for analysis is related to a limited access rule. The rule reads:
4. Know and follow all Wynn policies and procedures, which include but are not
limited to
ï‚· Only using the facilities for the property you are scheduled to work, with the
exception of the employee dining area [EDR].20
ï‚· When scheduled to work at Wynn you must park in the employee parking garage
and utilize the back of the house area that pertains to and is exclusive to the
property at which you are working with to and is exclusive to the property at
which you are working with the exception of the employee dining area. All other
exceptions to this rule can only be made with specific management authorization 25
and/or written accompanying documentation.
The Board evaluates the Respondent’s access rule under the well-established test of Tri-
County Medical Center, 222 NLRB 1089 (1976). In Tri-County, the Board held that an
employer’s rule barring off-duty employees from access to its facility is valid only if it: (1) limits
access solely with respect to the interior of the plant and other working areas; (2) is clearly30
disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant
for any purpose and not just to those employees engaging in union activity. Id. at 1089.
Respondent argues that the rule applies to “on-duty” employees but ignores the fact that
these same employees are actually “off-duty” when parking their vehicles and walking to clock-
in and returning to their vehicles after clocking-out. 35

8
“Of course, the fact that these prohibitions are subject to discretionary exemptions by the Respondent does not
make them any less unlawful. [citation omitted].” Rio All-Suites Hotel & Casino, 362 NLRB supra at 4, fn. 10; see
also Brunswick Corp., 282 NLRB 794, 795 (1987) (Any rule that requires employees to obtain an employer’s
permission before engaging in protected concerted activity on the employee’s free time and in nonwork areas is
unlawful.).
JD(SF)–39–16
41
Under Tri-County, as applied in Saint John’s Health Center, 357 NLRB No. 170 (2011),
the Respondent’s Restricted Access Rule is unlawful under the first and third prongs of the Tri-
County test because it does not limit access solely with respect to Respondent’s interior work
areas and also includes nonwork areas and also “uniformly prohibit access to off duty employees
seeking entry to the property for any purpose.” Id., slip op. at 6 (emphasis added). Thus, outside5
the facilities and employee parking garage closest to where an employee is scheduled to work,
employees are denied access to other portions of Respondent’s property (other parking garages, a
public walkway at Respondent’s Encore facility when scheduled to work at Respondent’s Wynn
facility, or the other casino or the WDD Flex Building. Moreover, it provides for any additional
access solely with management’s approval. This last exception effectively vests management 10
with unlimited discretion to expand or deny off-duty employees’ access for any reason it
chooses. See Piedmont Gardens, 360 NLRB No. 100, slip op. 2 (2014); see also Saint John’s
Health, above, slip op. at 5 (“In effect, the [r]espondent is telling its employees, you may not
enter the premises after your shift except when and where we say you can.”). The Respondent’s
policy thus clearly fails the first and third prongs of the Tri-County test.915
Consequently, I find that Respondent’s Restricted Access Rule is overbroad and in
violation of Section 8(a)(1) of the Act.
D. The Restricted Intellectual Property Rule
The fourth rule to analyze reads:
• Complying with copyright, patent, and trademark laws, which are intended to protect 20
exclusive use of publications, productions, artistic works, and so forth.
* Logos may not be used for any purpose aside from those for which they are intended.
* Logos may not be altered in any way [the Restricted Intellectual Property Rule].
The special circumstances test reflects a balancing of the employer’s interests and the
employees’ Section 7 rights. “The Board has long recognized that an employer has a legitimate 25
interest in preventing the disparagement of its products . . . .” Triple Play Sports Bar, 361
NLRB No. 31, slip op. at 4 (2014). See also Valley Hospital Medical Center, Inc., 351 NLRB
1250, 1252–1253 (2007) (discussing distinction between disparagement of products and
communications related to labor disputes), enfd. sub nom. Nevada Service Employees Local
1107 v. NLRB, 358 Fed. Appx. 783 (9th Cir. 2009). Employers have no such legitimate interest 30
in preventing employees’ discussion of their terms and conditions of employment. Accordingly,
it is reasonable for the Board to treat the two kinds of cases differently and to require more proof
from an employer who seeks to restrain employee speech concerning working conditions.
Medco Health Solutions of Las Vegas, 364 NLRB No. 115, slip op. at 5 (Aug. 27, 2016).

9
For similar reasons, the rule fails to pass muster under a Lutheran-Heritage analysis, because employees
would reasonably construe the broad managerial-approval exception as requiring them to disclose their intent to
engage in protected activity when seeking such approval, a compelled disclosure that would certainly tend to chill
the exercise of Sec. 7 rights. See Casino San Pablo, 361 NLRB No. 148, slip op. at 4, fn. 6 (2014) (Same).
JD(SF)–39–16
42
The Respondent’s rule does not define what constitutes “Logos may not be used for any
purpose aside from those for which they are intended.” Most of the section pertains to
confidentiality and does not explain in what respect use of the Respondent’s name or trademarks
may intended to protect exclusive use. Nor does the rule explain any uses of the Respondent’s
logo that are permissible. On its face, then, it chills employees from using the Respondent’s logo.5
Although employees who use the logo for any purpose aside from those for which they are
intended, is vague and uncertain and may prohibit employees from using the logo while engaged
in Section 7 activities, I find that prohibiting such use is an unreasonable restriction on Section 7
activity. In addition, barring employees from using the Respondent’s name and logo is unlawful
as it is often necessary for employees to identify their employer when they are engaged in 10
Section 7 activities and the Respondent presented no evidence to support the need for such a
restriction. Since I find that employees would reasonably interpret any nonwork-related use of
Respondent’s name to be improper, I conclude that this portion of the rule violates Section
8(a)(1).
E. The Confidentiality Rule15
The fifth rule to analyze reads:
• Protecting the confidentiality of Wynn.
Never using, accessing, possessing, copying, removing, or sharing any of Wynn confidential
business information without authorization or for business reasons.
I find the language of the Respondent’s Confidentiality Rule here to be analogous to the 20
rule at issue in Super K-Mart, 330 NLRB 263, 263–264 (1999). In that case, the Board found
that employees would reasonably understand a rule stating that “company business and
documents are confidential” as limiting the dissemination of proprietary information, rather
than limiting employees’ ability to discuss wages and working conditions. (Id. at 263.) See also
G4S Secure Solutions (USA) Inc., 364 NLRB No. 92, slip op. at 4 (Aug. 26, 2016) (Same).25
Therefore, I find Respondent’s Confidentiality Rule lawful and not in violation of Section
8(a)(1) of the Act.
F. The No Personal Use Rule
The sixth rule reads:
ï‚· Never using Wynn property for personal use.30
Respondent points out that the General Counsel put forth no evidence in support of her
argument that this rule is unlawfully overbroad. (GC Br. at 37.) I agree and find that Respondent
has a separate rule addressing employees’ internet, intranet, and email use of Respondent’s
property that is inapplicable to get lumped into this rule. In addition, I further find in agreement
with Respondent that it is a luxury resort and a reasonable interpretation of this rule is that 35
employees should not help themselves to food items intended for guest consumption or take
advantage of any of Respondent’s other personal property not already covered by other rules.
Therefore, I find Respondent’s No Personal Use rule lawful and not in violation of Section
8(a)(1) of the Act.
JD(SF)–39–16
43
G. The Honesty Rule
The seventh rule reads:
4. Being honest, which includes but is not limited to:
ï‚· Reporting any suspicious or improper activity to a manager or security officer.
Respondent also points out that the General Counsel put forth no evidence in support of her 5
argument that this rule is unlawfully overbroad. (GC Br. at 39.) I agree with Respondent that it
has put forward its reasonable business justification that this rule is necessary as hotels, casinos
and guests, including celebrities, are more and more targets of danger and mischief and
reminding employees to be vigilant to report suspicious and improper activity while at
Respondent is a lawful rule and does not restrict or prohibit an employee’s Section 7 rights. (R.10
Br. at 51–52.) Therefore, I find Respondent’s Honesty Rule lawful and not in violation of
Section 8(a)(1) of the Act.
H. The Failure to Obey Rules or Handbook Violation Rule
Finally, the last challenged rule in Respondent’s handbook reads:15
7. Failure to display proper conduct and abide by these standards may result in disciplinary
action up to and including termination.
The General Counsel argues that since many of the challenged rules referenced above are
unlawfully overbroad, “this statement constitutes a threat of discipline for engaging in any
protected behavior” banned by an unlawful rule and, thus, this statement violates Section 8(a)(1) 20
of the Act. (GC Br. at 39.) I find that the questioned rule is mere boilerplate handbook language
common to most employer’s handbooks and is not unlawful as written and it does not constitute
an unlawful threat of discipline.
CONCLUSIONS OF LAW25
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By suspending and issuing a second written warning letter to employee Keli P. May
because of her protected concerted activities involving her mentioning to her fellow employee
that she had still not received her earned wages after giving Respondent management notice of 30
this underpayment more than 2 weeks in advance with consistent follow up, the Respondent
violated Section 8(a)(1) of the Act.
3. By maintaining an employee handbook with rules that state that Respecting others,
which includes but is not limited to:
ï‚· Displaying appropriate behavior at work, on Wynn [Respondent] business, or 35
on property. Never engaging in misconduct on or off-duty that (as
JD(SF)–39–16
44
determined by Wynn [Respondent]) materially and adversely affects job
performance or tends to bring discredit to Wynn. Promoting and respecting the
diversity of the Wynn workforce by avoiding any form of discrimination or
harassment, including degrading comments or offensive language;
ï‚· and refraining from inappropriate conduct or horseplay.5
ï‚· Striving for excellence in job performance, which includes but is not limited to
never taking photographs in the public "front-of-house" area.
ï‚· Never using personal communications devices such as beepers, cellular
telephones and personal data assistance ("PDAs"), for incoming and outgoing
messaging or calls while on duty, unless prior authorization is obtained from a 10
department manager.
ï‚· Except for off duty or pre-authorized use of personal communications devices for
incoming and outgoing messaging or calls only, never using any device for audio,
video or data recording/transmission, such as video and digital cameras, camera
and recording components of cellular telephones/PDAs and digital recorders, at 15
any time while on company property or while performing job duties off-company
property, unless prior authorization is obtained from a department manager for a
company business purpose.
Being honest, which includes but is not limited to:
ï‚· Refraining from any activity in photographing or recording (either by audio or 20
video means) others in the work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authorization has been given in
advance by all individuals subject to the intended photography and/or recording
activity or management has otherwise pre-authorized the activity for company
business purposes.25
Know and follow all Wynn policies and procedures, which include but are not limited
to
ï‚· Only using the facilities for the property you are scheduled to work, with the
exception of the employee dining area [EDR].
ï‚· When scheduled to work at Wynn you must park in the employee parking garage 30
and utilize the back of the house area that pertains to and is exclusive to the
property at which you are working with to and is exclusive to the property at which
you are working with the exception of the employee dining area. All other
exceptions to this rule can only be made with specific management authorization
and/or written accompanying documentation.35
ï‚· Logos may not be used for any purpose aside from those for which they are
intended,”
JD(SF)–39–16
45
Respondent has engaged in unfair labor practices affecting commerce within the
meaning of 8(a)(1) of the Act.
4. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
5. The Respondent did not unlawfully issue Respondent employee Kanie Kastroll a written 5
warning in response to her conduct on February 2, 2015 as alleged in the complaint.
REMEDIES
Having found that the Respondent has engaged in certain unfair labor practices, I find
that they must cease and desist such practices and take certain affirmative action designed to 10
effectuate the policies of the Act. In a typical case involving unlawful workplace rules, the
promulgator of the rules is ordered to rescind the unlawful provisions and post an appropriate
notice.
Specifically, having concluded that the Respondent is responsible for the unlawful
suspension and second written warning of employee Keli P. May, Respondent must make May15
whole, with interest, for any loss of earnings and other benefits or seniority she may have
suffered as a result of the unfair labor practice against her. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010). In addition, the Respondent shall compensate May for 20
the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file a report
with the Social Security Administration allocating the backpay award to the appropriate calendar
quarters. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). The
Respondent shall also be required to expunge from its files any and all references to the
suspension and second written warning, and to notify May in writing that this has been done and 25
that the suspension and second written warning will not be used against her in any way. The
Respondent shall also post the notice in accord with J. Picini Flooring, 356 NLRB No. 9 (2010).
On these findings of fact, conclusions of law, and upon the entire record, pursuant to
Section 10(c) of the Act, I hereby issue the following recommended.10
ORDER30
The Respondent, Wynn Las Vegas, LLC, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Maintaining the following unlawful Employee Handbook rules that state that:
“Respecting others, which includes but is not limited to:35

10
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.
JD(SF)–39–16
46
ï‚· Displaying appropriate behavior at work, on Wynn [Respondent] business, or
on property. Never engaging in misconduct on or off-duty that (as
determined by Wynn [Respondent]) materially and adversely affects job
performance or tends to bring discredit to Wynn. Promoting and respecting the
diversity of the Wynn workforce by avoiding any form of discrimination or 5
harassment, including degrading comments or offensive language;
ï‚· and refraining from inappropriate conduct or horseplay.
ï‚· Striving for excellence in job performance, which includes but is not limited to
never taking photographs in the public "front-of-house" area.
ï‚· Never using personal communications devices such as beepers, cellular 10
telephones and personal data assistance ("PDAs"), for incoming and outgoing
messaging or calls while on duty, unless prior authorization is obtained from a
department manager.
ï‚· Except for off duty or pre-authorized use of personal communications devices for
incoming and outgoing messaging or calls only, never using any device for audio, 15
video or data recording/transmission, such as video and digital cameras, camera
and recording components of cellular telephones/PDAs and digital recorders, at
any time while on company property or while performing job duties off-company
property, unless prior authorization is obtained from a department manager for a
company business purpose.20
Being honest, which includes but is not limited to:
ï‚· Refraining from any activity in photographing or recording (either by audio or
video means) others in the work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authorization has been given in
advance by all individuals subject to the intended photography and/or recording 25
activity or management has otherwise pre-authorized the activity for company
business purposes.
Know and follow all Wynn policies and procedures, which include but are not
limited to
ï‚· Only using the facilities for the property you are scheduled to work, with the 30
exception of the employee dining area [EDR].
ï‚· When scheduled to work at Wynn you must park in the employee parking garage
and utilize the back of the house area that pertains to and is exclusive to the
property at which you are working with to and is exclusive to the property at which
you are working with the exception of the employee dining area. All other 35
exceptions to this rule can only be made with specific management authorization
and/or written accompanying documentation.
JD(SF)–39–16
47
ï‚· Logos may not be used for any purpose aside from those for which they are
intended,” Respondent has engaged in unfair labor practices affecting commerce
within the meaning of 8(a)(1) of the Act.”
(b)Unlawfully suspending and issuing a written warning to or otherwise unlawfully 5
treating employees because they engage in protected concerted activities and mention to
coworkers that they have not received payment of earned wages and that management has been
asked to correct this nonpayment but has not corrected the problem for more than 2 weeks; and
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the right guaranteed them by Section 7 of the Act.10
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Rescind the following provisions located in Respondent’s Employee Handbook:
: “Respecting others, which includes but is not limited to:
ï‚· Displaying appropriate behavior at work, on Wynn [Respondent] business, or
on property. Never engaging in misconduct on or off-duty that (as 15
determined by Wynn [Respondent]) materially and adversely affects job
performance or tends to bring discredit to Wynn. Promoting and respecting the
diversity of the Wynn workforce by avoiding any form of discrimination or
harassment, including degrading comments or offensive language;
ï‚· and refraining from inappropriate conduct or horseplay.20
ï‚· Striving for excellence in job performance, which includes but is not limited to
never taking photographs in the public "front-of-house" area.
ï‚· Never using personal communications devices such as beepers, cellular
telephones and personal data assistance ("PDAs"), for incoming and outgoing
messaging or calls while on duty, unless prior authorization is obtained from a 25
department manager.
ï‚· Except for off duty or pre-authorized use of personal communications devices for
incoming and outgoing messaging or calls only, never using any device for audio,
video or data recording/transmission, such as video and digital cameras, camera
and recording components of cellular telephones/PDAs and digital recorders, at 30
any time while on company property or while performing job duties off-company
property, unless prior authorization is obtained from a department manager for a
company business purpose.
Being honest, which includes but is not limited to:
ï‚· Refraining from any activity in photographing or recording (either by audio or 35
video means) others in the work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authorization has been given in
JD(SF)–39–16
48
advance by all individuals subject to the intended photography and/or recording
activity or management has otherwise pre-authorized the activity for company
business purposes.
Know and follow all Wynn policies and procedures, which include but are not
limited to5
ï‚· Only using the facilities for the property you are scheduled to work, with the
exception of the employee dining area [EDR].
ï‚· When scheduled to work at Wynn you must park in the employee parking garage
and utilize the back of the house area that pertains to and is exclusive to the
property at which you are working with to and is exclusive to the property at which 10
you are working with the exception of the employee dining area. All other
exceptions to this rule can only be made with specific management authorization
and/or written accompanying documentation.
ï‚· Logos may not be used for any purpose aside from those for which they are
intended,” 15
and remove such rules from any and all employee publications or documents to which
it is a party.
(b) Within 14 days from the date of this Order, the Respondent shall publish on its
WIRE intranet and furnish in writing to all employees with inserts for the current employee
handbook that (1) advise that the unlawful provisions have been rescinded, or (2) provide 20
lawfully worded provisions on adhesive backing that will cover the unlawful provisions; or
publish and distribute to employees revised employee handbooks that (1) do not contain the
unlawful provisions, or (2) provide lawfully worded provisions.
(c) Make employee Keli P. May whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, as set forth in the remedy section of this 25
decision.
(d) Compensate employee Keli P. May for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and submit the appropriate report to the Social Security
Administration so that when backpay is paid to May, it will be allocated to the appropriate
calendar quarters.30
(e) Within 14 days from the date of this Order, remove from its files any reference to
the suspension and written warning, and within 3 days thereafter, notify employee May in
writing that this has been done and that neither the suspension nor the written warning will not
be used against her in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional 35
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
JD(SF)–39–16
49
(g) Within 14 days from the date of this order, post at its facilities in and around Las
Vegas, Nevada, copies of the attached notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 28, after being signed by the Respondent’s
authorized representative, shall also be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are 5
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 addition to physical posting of
paper notices, notices shall be distributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respondent customarily communicates
with its employees by such means. In the event that, during the pendency of these proceedings, 10
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 February 12,
2015.
(h) Within 21 days after service by the Region, file with the Regional Director a 15
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C.: September 26, 2016
20
Gerald M. Etchingham
Administrative Law Judge

11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the 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 a representative 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 do anything to prevent you from exercising the above rights.
YOU HAVE THE RIGHT to discuss wages, hours, and working conditions with other
employees and
WE WILL NOT do anything to interfere with your exercise of that right.
WE WILL NOT maintain the following rules in our Code of Personal Conduct, or anywhere
else, that can be construed to prohibit you from talking to each other about your wages, hours,
and other terms and conditions of employment, or otherwise restrict you from engaging in
protected activities:
At Pages 1-6
: “Respecting others, which includes but is not limited to:
ï‚· Displaying appropriate behavior at work, on Wynn [Respondent] business, or
on property. Never engaging in misconduct on or off-duty that (as
determined by Wynn [Respondent]) materially and adversely affects job
performance or tends to bring discredit to Wynn. Promoting and respecting the
diversity of the Wynn workforce by avoiding any form of discrimination or
harassment, including degrading comments or offensive language;
ï‚· and refraining from inappropriate conduct or horseplay.
ï‚· Striving for excellence in job performance, which includes but is not limited to
never taking photographs in the public "front-of-house" area.
ï‚· Never using personal communications devices such as beepers, cellular
telephones and personal data assistance ("PDAs"), for incoming and outgoing
messaging or calls while on duty, unless prior authorization is obtained from a
department manager.
ï‚· Except for off duty or pre-authorized use of personal communications devices for
incoming and outgoing messaging or calls only, never using any device for audio,
ï‚· video or data recording/transmission, such as video and digital cameras, camera
and recording components of cellular telephones/PDAs and digital recorders, at
any time while on company property or while performing job duties off-company
property, unless prior authorization is obtained from a department manager for a
company business purpose.
Being honest, which includes but is not limited to:
ï‚· Refraining from any activity in photographing or recording (either by audio or
video means) others in the work environment, including coworkers, managers,
guests, customers, or vendors, unless specific authorization has been given in
advance by all individuals subject to the intended photography and/or recording
activity or management has otherwise pre-authorized the activity for company
business purposes.
Know and follow all Wynn policies and procedures, which include but are not limited to
ï‚· Only using the facilities for the property you are scheduled to work, with the
exception of the employee dining area [EDR].
ï‚· When scheduled to work at Wynn you must park in the employee parking garage
and utilize the back of the house area that pertains to and is exclusive to the
property at which you are working with to and is exclusive to the property at which
you are working with the exception of the employee dining area. All other
exceptions to this rule can only be made with specific management authorization
and/or written accompanying documentation.
ï‚· Logos may not be used for any purpose aside from those for which they are
intended,”
WE WILL NOT suspend employees or issue employees written warnings because they exercise
their right to discuss wages, hours and working conditions with other employees.
WE WILL NOT discipline you because of your protected concerted activities.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL rescind the Code of Personal Conduct rules set forth above the rules set forth above,
and either WE WILL 1) furnish all current employees with inserts for our Code of Personal
Conduct that (a) advise that the overly-broad provisions or requirements have been rescinded, or
(b) provide language of the lawful provisions or requirements; or 2) publish and distribute
revised Code of Personal Conduct that (a) do not contain the overly-broad provisions or
requirements, or (b) provide language of the lawful provisions or requirements.
WE WILL, within 14 days, remove from our files any and all records of the June 19, 2015
suspension and the June 26, 2015 second written warning issued to KELI P. MAY (MAY), and
WE WILL, within 3 days thereafter, notify MAY in writing that we have taken these actions
and that the materials removed will not be used as a basis for any future personnel action against
her or referred to in response to any inquiry from any employer, employment agency,
unemployment insurance office, or reference seeker, or otherwise used against her.
WE WILL make whole KELI P. MAY for any wages and other benefits she lost because we
issued her a suspension on June 19, 2015.
WYNN LAS VEGAS, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-155984 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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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.