Wynn Las Vegas, LLC

National Labor Relations Board - Board Decisions

Jul 3, 2012

358 N.L.R.B. 674 (N.L.R.B. 2012)

674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 80
Wynn Las Vegas, LLC and Ronda Larson. Case 28–
CA–022818
July 3, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On December 14, 2010, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, limited cross-
exceptions and a supporting brief, and the Respondent
filed an answering brief to the limited cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s findings that the Respondent violated Sec.
8(a)(1) of the Act by suspending employee David Sackin, we note that
the judge relied on the following facts: (1) several of the Respondent’s
11 articulated reasons for suspending Sackin were demonstrably false;
(2) at least one reason was “makeweight”; (3) other reasons—as well as
the events of August 11, 2009, in their entirety—were greatly exagger-
ated; (4) the Respondent failed to investigate at least one of the reasons;
and (5) the Respondent skipped progressive steps of its disciplinary
procedure in suspending Sackin. These facts demonstrate that the
Respondent’s stated reasons for disciplining Sackin were pretextual.
Given this finding of pretext, we find it unnecessary to pass on the
judge’s additional finding that Sackin’s behavior did not threaten the
safety, security, or integrity of the casino, or on the judge’s finding
regarding the Respondent’s “stitch[ing] . . . together” of security foot-
age.
In adopting the judge’s finding that the Respondent’s discharge of
employee Ronda Larson violated Sec. 8(a)(1) of the Act, we agree with
his finding that the timing of the discharge and the Respondent’s devia-
tions from its usual disciplinary practices evinced animus toward Lar-
son’s protected activity. We further agree with the judge that, contrary
to the Respondent’s assertion, Larson was neither insubordinate to her
Casino Service Team Leader (CSTL) nor rude to the Respondent’s
guests. We find that these circumstances demonstrate that the Re-
spondent’s asserted reasons for discharging Larson were pretextual. In
view of our finding of pretext, we find it unnecessary to pass on the
following: (1) the judge’s characterization of the Respondent’s refusal
to allow Sackin to assist Larson in composing a written statement as a
violation of Larson’s Weingarten rights; (2) his finding that CSTLs
cannot give dealers directions, and that therefore a dealer cannot be
insubordinate to a CSTL; and (3) his finding that an earlier, first written
warning given to Larson, for self correcting her dealing mistakes, devi-
ated from the Respondent’s usual disciplinary practices.
In view of our adoption of the findings that both Sackin’s suspension
and Larson’s discharge violated Sec. 8(a)(1) of the Act, we find it un-
only to the extent consistent with this Decision, and to
adopt the recommended Order as modified and set forth
in full below.3
The judge dismissed the allegation that the Respondent
violated Section 8(a)(1) of the Act by questioning em-
ployee David Sackin about his involvement in a proceed-
ing before the Nevada State Labor Commissioner. For
the reasons explained below, we reverse the judge’s dis-
missal and find that the Respondent violated Section
8(a)(1) by questioning Sackin.
I. RELEVANT FACTS
The Respondent operates a casino in Las Vegas. Since
opening the casino in 2005, the Respondent has em-
ployed Sackin as a table games dealer.
When the casino opened, the Respondent established a
tipping policy pursuant to which all dealers who worked
at a table during a 24-hour period pooled and shared cus-
tomer tips. In 2006, the Respondent created a new posi-
tion, Casino Service Team Lead (CSTL), essentially re-
placing its floor supervisors. Although floor supervisors
had not been included in the dealers’ tipping pools, the
Respondent announced on August 21, 2006, that CSTLs
would henceforth be included. As the Respondent’s
dealers earn minimum wage and rely on tips as a signifi-
cant part of their compensation, this new policy caused
considerable consternation among the dealers. Some
time after the new policy was announced, the Transporta-
tion Workers Union launched an organizing drive among
the table games dealers, and the employees selected the
Union as their collective-bargaining representative.
Employee Sackin had been an open and active union
supporter during the unionization drive. After the Board
certified the Union in May 2007, Sackin became one of
two day-shift union stewards.
In late 2007, several dealers filed claims with the Ne-
vada State Labor Commissioner regarding the Respond-
ent’s changed tip pooling policy. The Labor Commis-
sioner consolidated those claims and eventually conduct-
ed a hearing on the matter in 2009; the dates of the hear-

necessary to pass on the judge’s additional findings that the suspension
and discharge also violated Sec. 8(a)(3), as such findings would not
materially affect the remedy.
2 We have amended the judge’s conclusions of law consistent with
our findings herein.
3 We shall modify the judge’s recommended Order to conform to our
findings and the Board’s standard remedial language and to provide for
the posting of the notice in accord with J. Picini Flooring, 356 NLRB
11 (2010).
We shall also substitute a new notice to conform to the Order as
modified.
WYNN LAS VEGAS, LLC

675
ing were July 7–9, August 18–20, and October 5–8,
2009.4
Before the hearing commenced, Sackin agreed to testi-
fy on behalf of the dealers who had filed the claims with
the Labor Commissioner. The Respondent learned that
Sackin planned to testify when it received a witness list,
dated July 1, 2009, naming Sackin. The witness list also
summarized his anticipated testimony.
On August 10,5 Sackin was at work when he was
“tapped off” his gaming table and summoned to the of-
fice of Assistant Casino Manager for Administration
Peggy Collura.6 Collura and her immediate supervisors
administered disciplinary policies within the table games
department.7 Tyrone Lancaster, Collura’s counterpart at
another casino owned by the Respondent, was present
when Sackin arrived, and he stayed for the duration of
the meeting. Sackin sat in a chair facing Collura; Lan-
caster stood behind him, out of Sackin’s line of sight.
Apprehensive about being called into the office, Sackin
immediately asked Collura whether he needed a
Weingarten representative.8 Collura assured him that the
meeting was unrelated to discipline and, in turn, asked
Sackin if he had a lawyer; Sackin said no. Collura then
asked if he knew he was on the witness list for the Labor
Commissioner’s hearing concerning the tip policy
change, and he answered that he did. After explaining
that she was talking to potential witnesses to help the
Respondent prepare for the hearing, Collura asked
Sackin what he planned to say at the hearing. Sackin
evaded the question, stating that he had not had time to
think about it. Collura then asked if Sackin had ever
received a tip—he said that he had—and if he had ever
seen a CSTL receive a tip—he said he did not think so.
Pressed on the last answer, Sackin said he had seen non-
dealers receive tips, but only rarely. Collura then asked
Sackin if he had signed any forms agreeing to be in-
volved in the litigation before the Labor Commissioner,
but Sackin evaded that question, as well, to avoid bring-

4 Of the dealers named in the consolidated claim, one was a former
dealer and three were current dealers.
5 In his decision, the judge stated that this incident took place on July
13. This inadvertent error does not affect our decision.
6 Collura testified that she called the meeting at the behest of the Re-
spondent’s lawyers, who instructed her to contact the dealers on the list
in order to inquire into their anticipated testimony.
7 At all relevant times, Collura reported to William Westbrook, the
director of casino administration (as well as vice president of opera-
tions), who in turn reported to Charlie Ward, the vice president of table
games. We note that the judge referred to Collura as assistant admin-
istration manager and Westbrook solely as vice president of operations.
These inadvertent errors do not affect our decision.
8 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (employee enti-
tled to union representative at investigatory interview that employee
reasonably believes may result in disciplinary action).
ing “any more questioning upon” himself. The meeting,
which had lasted about 10 minutes, then ended. Contrary
to her statement to Sackin, Collura did not meet with any
other dealers on the witness list.
Ronda Larson had also worked as a table games dealer
at the casino since it opened in 2005. Like Sackin, she
was active in the union organizing drive and became a
union steward after the employees selected union repre-
sentation. Larson was also visibly active in opposing the
Respondent’s tip policy change. Like Sackin, Larson
agreed to testify for the employees and was on their wit-
ness list provided to the Respondent. Larson testified on
August 18; she also assisted the employees’ attorneys at
the hearing. The Respondent suspended Sackin on Au-
gust 21, allegedly for violating a series of employer poli-
cies that day. In mid-September, the Respondent termi-
nated Larson, ostensibly for rudeness to customers and
insubordinate behavior afterwards.9
II. THE JUDGE’S DECISION
The judge found that Collura’s questioning of Sackin
about his anticipated testimony before the Labor Com-
missioner did not violate Section 8(a)(1). The judge rea-
soned that “[a]s a matter of comity,” Collura was not
required to provide Sackin with the safeguards described
in Johnnie’s Poultry Co., 146 NLRB 770 (1964), enf.
denied 344 F.2d 617 (8th Cir. 1965) (setting forth safe-
guards subject to which an employer may question an
employee on matters involving Section 7 rights in prepa-
ration for Board proceedings). The judge did not, how-
ever, address the Acting General Counsel’s contention
that, apart from Johnnie’s Poultry, the questioning was
coercive under the generally applicable totality-of-the-
circumstances test. As explained below, we agree with
the Acting General Counsel that the questioning was
coercive as so alleged.10
III. DISCUSSION
An employer’s coercive questioning of an employee
about employees’ protected concerted activity violates
Section 8(a)(1) of the Act. See, e.g., United Services
Automobile Assn., 340 NLRB 784, 785–786 (2003),
enfd. 387 F.3d 908 (D.C. Cir. 2004). Accordingly, in
response to the Acting General Counsel’s exceptions, we
must determine (1) whether the Respondent’s question-
ing of Sackin concerned protected, concerted activity,
either his own or that of other employees, and, if so, (2)

9 The judge found that the Respondent violated Sec. 8(a)(1) by sus-
pending Sackin and terminating Larson, and we adopt those findings.
See fn. 1, supra.
10 In light of our finding, we find it unnecessary to pass on the
judge’s finding that the Johnnie’s Poultry safeguards are inapplicable
in the context of a non-Board legal proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
whether the questioning was coercive. We answer both
questions in the affirmative.
There can be no question but that the actions of em-
ployees coming together to protest the new tipping policy
and then presenting their case to the state Labor Com-
missioner were concerted. Nor can there be any reason-
able doubt that the employees were engaged in protected
activity. Their claim was effectively about their wages,
arguably the central term and condition of employment.
See Parexel Int’l, LLC, 356 NLRB 516, 519 (2011), and
cases cited. It is legally irrelevant that the employees,
after failing to get satisfaction from their employer,
pressed that claim before a state administrative officer. It
is well settled that such actions, when taken to advance
employment-related goals, constitute protected activity.
See Eastex, Inc. v. NLRB, 437 U.S. 556, 565–566 (1978)
(“the ‘mutual aid or protection’ clause protects employ-
ees from retaliation by their employers when they seek to
improve working conditions through resort to administra-
tive and judicial forums”). Further, an employee’s testi-
mony in the course of administrative proceedings in sup-
port of fellow employees constitutes protected concerted
activity. See, e.g., Pete O’Dell & Sons Steel, 277 NLRB
1358, 1358–1359 (1985), enfd. mem. 803 F.2d 1181 (4th
Cir. 1986) (testimony protected where union filed wage
complaint with Army Corps of Engineers and employee
testified during Corps investigation).11
Turning to the issue of coercion, the Board’s general
test is “whether under all of the circumstances the inter-
rogation reasonably tends to restrain, coerce, or interfere
with” Section 7 rights. Rossmore House, 269 NLRB
1176, 1177 (1984), enfd. sub nom. HERE Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). Among the fac-
tors that may be considered are the background of the
questioning, the position of the questioner within the
employer’s hierarchy, the place and method of question-
ing, the nature of the information sought, and the truth-
fulness of the employee’s reply. See Holiday Inn-JFK
Airport, 348 NLRB 1, 4 (2006). Other factors include
whether the employer gives assurances against reprisal or
provides a reason for questioning the employee. See id.
See generally Bourne Co. v. NLRB, 332 F.2d 47, 48 (2d
Cir. 1964) (setting forth relevant factors for determining
if questioning is coercive).
Applying these considerations to the Respondent’s
questioning of Sackin, we have no doubt that the interro-

11 Collura’s questioning also concerned Sackin’s agreement to testify
on behalf of the dealers. Such an agreement was “preparing for” pro-
tected activity (actually testifying), and therefore was itself protected
concerted activity. See Meyers Industries, (Meyers II), 281 NLRB 882,
887 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988).
gation was coercive and would reasonably tend to inter-
fere with employees’ Section 7 rights. Sackin was sum-
moned to the meeting by being “tapped off” from his
table assignment in the midst of his shift. The question-
ing was conducted by Collura, a relatively high ranking
manager in the Respondent’s hierarchy, in her office.
During the questioning, another of the Respondent’s
managers, someone Sackin did not know, stood behind
Sackin; Sackin, who was seated, was aware of his pres-
ence but unable to see him.
The manner of the questioning that followed, as well
as Sackin’s reaction to both the meeting and the ques-
tioning, also support a finding of coercion. Indeed,
Sackin sensed upon entering the room that he was about
to be disciplined. Although Collura gave him assurances
to the contrary, Sackin remained apprehensive. Sackin
was not informed that his participation in the interview
was voluntary. The questioning was formal and did not
resemble the casual give and take of a conversation.
Finally, after informing him of her intent, Collura ex-
pressly questioned Sackin about his anticipated testimo-
ny and about his own personal involvement in the litiga-
tion. In the circumstances, such a direct inquiry into the
substance and extent of Sackin’s protected activity would
reasonably tend to interfere with his Section 7 rights and
those of other employees, who were counting on him to
advance their cause. See Pete O’Dell & Sons Steel, su-
pra at 1359, 1367 (against background of Army Corps of
Engineers’ investigation into employer’s alleged viola-
tions of Davis-Bacon Act, employer coercively interro-
gated employee scheduled to testify by asking what em-
ployee planned to tell the Corps). The fact that Sackin
answered evasively, attempting to avoid giving Collura
any information about his testimony or his involvement
in the litigation, supports the finding that the interview
was coercive.12
Because Collura’s questioning concerned employees’
protected, concerted activity and was coercive in nature,

12 Evergreen America Corp., 348 NLRB 178, 208 (2006); Town &
Country Supermarkets, 340 NLRB 1410, 1424 (2004); Westwood
Healthcare Center, 330 NLRB 935, 941 (2000).
The Respondent’s reliance on Guess?, Inc., 339 NLRB 432 (2003),
involving questioning of an employee at a deposition, is misplaced.
The Respondent cites that case for the proposition that employer ques-
tioning of an employee about Sec. 7 activity is not unlawful if the ques-
tioning is relevant, if it does not have an illegal object, and if the em-
ployer’s interest in the information outweighs the employee’s confiden-
tiality interests under Sec. 7. See id. at 432–435. Here, however, the
questioning did not occur at a deposition or during the course of any
other formal (on the record) proceeding, and—given that Sackin’s
anticipated testimony was summarized on the witness list—the Re-
spondent has not shown any need for the information, let alone one that
outweighed the Sec. 7 interests that are implicated. See id. at 435 fn. 8.
WYNN LAS VEGAS, LLC

677
we find that the Respondent thereby coercively interro-
gated Sackin in violation of Section 8(a)(1) of the Act.13
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Transportation Workers Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. On or about August 10, 2009, the Respondent vio-
lated Section 8(a)(1) of the Act by interrogating employ-
ee David Sackin concerning his protected concerted ac-
tivities.
4. On or about August 21, 2009, the Respondent vio-
lated Section 8(a)(1) of the Act by suspending employee
David Sackin because he engaged in protected concerted
activity.
5. On or about September 6, 2009, the Respondent vio-
lated Section 8(a)(1) by suspending employee Ronda
Larson and thereafter discharging her because she en-
gaged in protected concerted activity.
6. The above unfair labor practices committed by the
Respondent affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
ORDER
The Respondent, Wynn Las Vegas, LLC, Las Vegas,
Nevada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
protected concerted activities.
(b) Discharging, suspending, or otherwise discriminat-
ing against employees for engaging in protected concert-
ed activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Ronda Larson full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make David Sackin and Ronda Larson whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of the judge’s decision.

13 Although we would find that Sackin’s discipline and Larson’s dis-
charge violated Sec. 8(a)(1) regardless of Sackin’s interrogation, we
note that the interrogation supplies additional evidence of the Respond-
ent’s animus toward Sackin’s and Larson’s protected concerted activi-
ties.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Ronda Larson and the unlawful suspension of David
Sackin, and within 3 days thereafter, notify the employ-
ees in writing that this has been done and that the dis-
charge and suspension will not be used against them in
any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Las Vegas, Nevada casino copies of the attached no-
tice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are note altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since August 10, 2009.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cate of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
Mara-Louise Anzalone and Pablo Godoy, for the General
Counsel.
Gregory J. Kamer and Bryan J. Cohen (Kamer Zucker Abbott),
of Las Vegas, Nevada, for the Respondent.
Ronda Larson, appearing pro se, of Las Vegas, Nevada.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, on May 11, 12, 13, 14, and
June 7, 2010, pursuant to a complaint and notice of hearing
issued on February 26, 2010, by the Regional Director for Re-
gion 28. The complaint is based upon an unfair labor practice
charge filed on December 15, 2009,1 by Ronda Larson, an Indi-
vidual, which she amended on February 26, 2010. The com-
plaint alleges that Wynn Las Vegas, LLC (Wynn or Respond-
ent) has committed certain violations of Section 8(a)(1) and
Section 8(a)(3) of the National Labor Relations Act. Respond-
ent denies the allegations. All parties have filed post-hearing
briefs and they have been carefully considered.
The principal issue is whether Respondent disciplined two
union stewards in violation of Section 8(a)(3) and (1) of the
Act. Respondent concedes that it fired day shift steward Ronda
Larson and suspended alternate day shift steward David Sackin,
but asserts it did so for good cause. The complaint also alleges
that Respondent has interfered with, restrained and coerced its
employees in the exercise of their Section 7 rights by coercive-
ly interrogating employees about their concerted activities,
including denying them union representation during interviews
and disciplinary meetings. Respondent asserts that it did not
deny employees union representation in those circumstances for
they were not entitled to representation under the Weingarten
rule2 in the meetings which the complaint addresses. In addi-
tion it asserts that the questioning was not coercive as defined
in the Act.
Based upon the entire record, including my observation of
the demeanor of the witnesses, I make the following
I. FINDINGS OF FACT
A. Jurisdiction
Respondent admits it has been at all material times a Nevada
limited liability company operating in Las Vegas where it oper-
ates a hotel and casino. During the 12-month period ending
December 12, 2009, Respondent, in conducting its business,
derived gross revenues in excess of $500,000 and purchased
and received at its facility goods valued in excess of $50,000
directly from points outside the State of Nevada. Accordingly,
it admits and I find it is, and has been at all material times, an
employer engaged in commerce within the meaning of Sections
2(2), (6), and (7) of the Act.
B. Background
On April 28, 2005, Respondent began operating a high-end
casino and hotel located on the Strip in Las Vegas, Nevada,

1 All dates are 2009 unless stated otherwise.
2 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
known as “The Wynn.” Respondent’s President is Andrew
Pascal. Reporting to Pascal are William Westbrook, Vice Pres-
ident of Operations, and Charlie Ward, Vice President of Table
Games. Reporting to Westbrook is Assistant Administration
Manager, Peggy Collura, and Tyrone Lancaster who at all ma-
terial times was employed as Respondent’s Assistant Casino
Administration Manager3 at the Encore.4 Additionally, Antho-
ny Tyne is employed as the Casino Manager, and Rick Sorani
is the Assistant Casino Manager.
Upon opening the Wynn, the casino employed table games
dealers,5 floor supervisors, pit managers, and shift managers.
Dealers are responsible for dealing their games while maintain-
ing the transparency and integrity of the game. Moreover,
dealers are expected to socialize with customers and to answer
questions, while avoiding potentially sensitive topics such as
politics and religion. Dealers are expected to explain the game
to new players, including basic strategy6 and are expected to act
as diplomats between players to keep the game friendly. Until
September 2006, floor supervisors directly supervised several
dealers during their shifts and completed performance evalua-
tions for the dealers. Pit managers supervised the floor supervi-
sors and a shift manager floated around the casino supervising
all activities on the casino floor.
It is a common industry practice for patrons to tip dealers.
Before opening, the Wynn established a tip or “toke”7 policy,
whereby dealers were required to pool all tips received at indi-
vidual tables during a 24-hour period with all the other dealers
who worked during that same 24-hour period. Indeed, table
games dealers earn only minimum wage, thus most of their
remuneration comes from the toke pool, not the hourly wage.
Accordingly, dealers have never been allowed to retain individ-
ual tips, but instead have always been required to drop all tips
into the “toke box”8 attached to the side of each table. This
practice is true for tokes handed to the dealer and to winning
bets placed by players intended as tokes for the dealer. At the
end of the shift, all tokes are pooled and distributed to the deal-
ers. As described below, on September 1, 2006, Respondent
expanded the tip pool first by redefining the duties of the floor
supervisor and then recasting that job as nonsupervisory. Sim-
ultaneously, it renamed that position as “Casino Service Team
Lead” or “CSTL.” This meant that the pool of eligible recipi-

3 He has since changed positions and now works at the Wynn as an
assistant casino manager of operations.
4 The Encore is the Wynn’s sister hotel and casino, which opened in
December 2008. The two buildings share a ground floor and there is
some overlap in terms of management duties. As noted below, the
Wynn has been organized by the Transportation Workers Union (the
TWU); the Encore remains nonunion.
5 Table Games Dealers deal the games of blackjack, craps, roulette,
baccarat, casino war, and other casino table games.
6 With regard to blackjack, “basic strategy” refers to playing the
game by a widely recognized set of statistical rules. Tables of players
often get upset with a player for refusing to play basic strategy because
they believe it will upset the odds and cost money for everyone at the
table.
7 Tips are commonly referred to as “tokes” in the casino industry.
8 A “toke box” is a metal box that hangs on the edge of the dealer’s
side of the table.
WYNN LAS VEGAS, LLC

679
ents was significantly expanded and the pool payouts signifi-
cantly reduced for each employee.
As part of its business, Respondent maintains an extensive
network of over 1000 digital surveillance cameras throughout
the casino that capture 99 percent of what occurs in the casino.
Many of the cameras have the ability to pan, tilt and zoom.
Cameras are stationed above table games, and throughout the
casino to maintain security and to ensure that the games are
being played fairly. The video does not include any audio, but
does capture body language and some expressions, depending
on the angle of the camera. Respondent also maintains behav-
ior rules for its employees who are required to behave consist-
ently in most respects. These rules are enforced to some degree
by progressive discipline principles, though Respondent has
reserved the right to deviate.
C. The New Tipping Policy, Connected Litigation
and Union Representation
On August 21, 2006, Respondent announced a new tip pool-
ing policy, which became effective on September 1, 2006. As
noted, it created the new position of CSTL which essentially
replaced the position of floor supervisor. Previously, floor
supervisors and managers had been prohibited from accepting
tips, but under the new policy CSTLs were placed into the toke
pool, a practice which allowed them to supplement their base
pay. Casino Managers and Assistant Casino Managers contin-
ue to be prohibited from accepting tips and from sharing in the
pool. The duties of the newly created CSTL9 were similar to
those of a floor supervisor, but refocused them on customer
service. Under the new tip pooling policy CSTLs, box deal-
ers,10 and table games dealers were all required to share the
pooled tips which had previously been reserved solely for table
games dealers.
The change resulted in both public and private litigation. In
September 2006, some Wynn dealers anonymously filed com-
plaints with the Nevada State Labor Commissioner. That agen-
cy dismissed the complaints asserting that the evidence was
insufficient to warrant any action. Then, in January 2007, sev-
eral dealers filed what appears to have been a class action in
state court. The complaint was eventually dismissed by the
Nevada Supreme Court on three grounds: (1) the Labor Com-
missioner has exclusive jurisdiction over wage matters and the
statute does not afford private litigants the right to enforce the
state wage laws; (2) declaratory relief is not available where an
adequate statutory ground exists; and (3) as the plaintiffs are at-
will employees, there is no contract of employment, implied or
otherwise, which can be enforced. See, Baldonado v. Wynn
Las Vegas, LLC, 194 P.3d 96 (Nev. 2008).
During the course of that litigation, Respondent’s table
games dealers and the Transportation Workers Union (TWU)
began to work toward union representation utilizing the proce-

9 Respondent disputes that CSTLs are supervisors within the mean-
ing of the Act.
10 Box dealers are found at the roulette and craps tables. Although
the box dealers’ duties are not described in the record, it is fair to say
that the box dealer is the casino worker who controls the “box” or bet-
ting layout. He is the one who accepts the bets, collects the losings,
and pays the winners.
dures under the NLRA. On March 30, 2007, the TWU sent a
letter to Respondent announcing that 46 employees, including
Charging Party Larson and fellow alleged discriminatee Sackin,
were to serve as in-house union organizers. The TWU filed its
representation petition on April 9, 2007. Five weeks later, on
May 13, 2007, the TWU won the election and the Board’s Re-
gional Director issued a certification of representative to the
TWU on May 23, 2007. Collective bargaining began in August
2007; a tentative agreement was finally reached on November
17, 2009. It remains unsigned, but partially implemented due
to circumstances not litigated here, said to be related either to
the length of the contract term or because many employees are
unhappy with the TWU’s acceptance of the toke policy.
In September 2007, former Wynn table games dealer Megan
Smith filed a wage claim with the Labor Commissioner.
Thereafter, several other employees were able to intervene; the
Commissioner, however, aware of the Baldonado case, took no
action and awaited its outcome. After the court’s dismissal of
the appeal, the Commissioner consolidated the Smith wage
claims with some additional employee complaints and conduct-
ed a hearing which lasted 10 days between July and October
2009.
On July 1, following the Commissioner’s internal litigation
rules, the claimants provided Respondent with a list of witness-
es. Present on the list were the TWU’s two day-shift stewards,
Larson and Sackin. Their appearance on the list seems to have
triggered the instant matter. Beyond that, Larson had previous-
ly been visible to Respondent’s management as she had been
outspoken and had taken a leadership role in the toke pool liti-
gation.
D. Larson and Sackin’s Protected Conduct Preceding
Turnover of the Witness List
In September 2006, Respondent’s president, Andrew Pascal,
conducted a meeting of the table games dealers to explain the
need for the toke policy change. During that meeting Larson
stood up and verbally opposed the policy saying, among other
things, that it would have a negative affect on the dealers’ atti-
tude toward working at the Wynn. She thought the change was
unfair as it diluted the tip pool money and that it sent the mes-
sage to the staff that they were not very important. A statement
such as this at a meeting is clearly protected Section 7 conduct.
See also, Colders Furniture, 292 NLRB 941 (1989), enfd. 907
F.2d 765 (7th Cir. 1990); Bergensons Property Services, 338
NLRB 883, 886 (2003) (employee complaints at a group meet-
ing are protected conduct); CSK Tool & Engineering, 332
NLRB 1578 (2000); Dickens, Inc., 352 NLRB 667, 672 (2008).
In that same time frame, as it became clear that legal counsel
was required, Larson became involved in collecting money
from fellow employees in order to retain and pay the attorneys.
Using the employee break room she openly and visibly collect-
ed about $20,000 for the cause. This activity, too, was protect-
ed as it was aimed to support Section 7 protected litigation. See
Altex Ready Mixed Concrete, 223 NLRB 696 (1976), enfd. 542
F.2d 295 (5th Cir. 1976), cited with approval by the Supreme
Court in Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). The
many cases to that general effect include Mojave Electric Co-
operative, 327 NLRB 13 (1998), enfd. sub nom. Mohave Elec.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
Co-op., 206 F.3d 1183 (D.C. Cir. 2000), Nu Dawn Homes, 289
NLRB 554, 558 (1988), and Riverboat Services of Indiana, 345
NLRB 1286 (2005).
And, as noted, the TWU had announced both Larson and
Sackin as two of its in-house organizers. In addition, sometime
in mid-2007, both Larson and Sackin became the day shift un-
ion stewards. Larson took the larger role and frequently served
as a Weingarten11 representative of bargaining unit employees
who were being investigated for misconduct. That role is pro-
tected by Section 7 as well.
Similarly, but somewhat less visible, Sackin was active as a
TWU organizer and on at least one occasion served picket duty
for the Union during the negotiation process, making a televi-
sion appearance in the process. Less active than Larson, he
nevertheless served as the Union’s conduit to the employees,
provided news and was a source of information to them as
questions came to him. Although he was less active, his Sec-
tion 7 activity in support of the Union is clear.
There can be no question that both Larson and Sackin were
known to take advantage of their Section 7 protection. Moreo-
ver, as stewards, their leadership skills and roles were well
understood by management.
E. Collura Questions Sackin
David Sackin has 13 years experience as a dealer and has
worked for Respondent since it opened in 2005. Principally a
roulette dealer, he serves as one of the day shift union stewards.
His name appeared on the July 1 witness list which the Labor
Commissioner required be submitted to Respondent.
On July 13, assistant casino administration manager Peggy
Collura, claiming she was directed by company attorneys to do
so, began calling employees listed as witnesses to her office for
an interview. The first was Sackin and he turned out to be the
only employee she interviewed. She had supposedly been in-
structed by company counsel to “reach out” to the listed dealers
to find out if they knew they were possible witnesses and to
find out what they would say in their testimony. Collura’s
meeting with Sackin took place in her office in the presence of
Tyrone Lancaster, her counterpart at the Encore. Sackin says
he was led to believe that Lancaster, whom he did not know,
was a company attorney. In fact, Lancaster stood behind the
seated Sackin taking notes and Sackin could never really look
at him.
Sackin had been “tapped off” his table and had no idea why
he was being summoned and harbored some trepidation about
the interview. Sackin asked if he needed a Weingarten repre-
sentative but Collura assured him that he did not. Collura
asked if he was aware that he was on the list of potential wit-
nesses, which he affirmed. Collura then asked if he was repre-
sented by counsel for the Labor Commissioner hearing. Sackin
replied that he was not. Collura asked if Sackin was aware that
he might be called as a witness and asked what he would testify
to if he was called. Sackin evaded the question and told Collu-

11 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), established that
a union-represented employee who reasonably believes that an inter-
view might lead to discipline has the right to ask for representation by
the union.
ra he had not had an opportunity to think the matter over and
that he had not decided whether to testify or not.
Collura then asked Sackin if he had ever received a tip in his
capacity as a dealer. Sackin affirmed that he had. Her next
question was whether Sackin had ever witnessed a CSTL re-
ceive a tip from a patron. Sackin stated that he had never seen
a CSTL receive a tip. Collura testified that she questioned
further on this point, “I think I asked how many years he dealt
and I think he said fifteen. I said, ‘You’ve never had a custom-
er say, oh, hey put a dollar—what’s your number—to a CSTL
and put a dollar on their favorite number?’” Sackin replied that
he had seen a guest tip someone other than a dealer a couple of
times. Next, Collura asked Sackin if he had signed any forms
agreeing to be involved in litigation against Respondent.
Again, Sackin evaded the question. Sackin testified that he
withheld information in the interview because, “I didn’t want to
bring any more questioning upon myself.” Collura testified
that the meeting lasted approximately 10 minutes.
Although Collura testified that she intended to meet with
other employees listed on the witness list, she never did. As a
result, union steward Sackin was the only employee inter-
viewed about his involvement in the Labor Commissioner hear-
ing. That fact now seems most illuminating, given what fol-
lowed.
F. Respondent’s Discipline Program
Respondent utilizes what it describes as a progressive disci-
pline system to address employee shortcomings. If a dealer
makes small errors, such as accidentally paying a losing bet, the
employee will receive a note to their file. These small errors
are usually caught by the surveillance department which sends
a report to Collura. The report is scanned into the employee’s
file, for recordkeeping purposes, but no disciplinary action is
taken against the employee unless that type of error persists.
Once a dealer receives two to three of these warnings, the em-
ployee then arrives at the next discipline step, a verbal
acknowledgement. Both the dealer and the manager sign off on
the acknowledgement and it is scanned into the employee’s
electronic file. Even so, Respondent does not consider this to be
part of the progressive disciplinary system since these first two
steps do not go into the dealer’s human resources department
file, but are instead maintained in the table games department
employee files. Collura explained:

So, a dealer could get just a straight out verbal. If it was a
thousand dollar error, you know, rather than give them a note
to file, we might go right to a verbal. Okay? The next step
would be obviously a first written, which is for a violation;
just depending on you know, what the violation is. The next
step after that is a second written, and that’s considered a se-
cond, last and final. That’s to make them aware of you know,
this is your last step. The next time you, you know, make an
error in this manner, then it can be suspension and possible
termination.

. . . .

. . . anytime we process a first written, a second written, a sus-
pension, that is done electronically through our PeopleSoft,
which is where you see all the information you have and then
WYNN LAS VEGAS, LLC

681
that is electronically processed and is in HR’s file, in their sys-
tem, as well as our system. [For clarity, paragraphs have been
placed in reverse order of her testimony.]

This so-called progressive disciplinary system effectively al-
lows management the subjective authority to skip any of the
steps if it deems the transgressions to be extremely serious.
Thus, the steps shown in the table games department files are
not part of the discipline system unless the error costs a large
loss to the house. The first written and the second written are
more often directed to behavior rule violations. And, as will be
seen, the application of the discipline is frequently uneven.12

12 The General Counsel’s factual recitation in its brief on this issue is
instructive on the point. I quote it at length:
. . . Respondent suspended a male dealer for “hockey-checking” a fe-
male dealer after interviewing the two parties involved and two other
witnesses who were on the scene. The male dealer was given a five-
day suspension and a Second, Last & Final Written Warning. Dealer
Thomas Canonico made racist remarks to and about fellow employ-
ees, openly discussed the possibilities of the President Obama being
assassinated, and was provided the full progressive disciplinary treat-
ment until he resigned. Another dealer, Ella Choy was openly disre-
spectful toward a casino manager and merely received “counseling”
for this infraction. Dealer Carlos De Leon openly questioned his
Team Lead twice in front of guests and received his second “First
Written Warning.” Dealer Miguel Peralta “failed to follow the in-
structions given to him by a Pit Manager” and was only “counseled.”
Subsequently arriving to work and being suspected of being under the
influence netted him but a Second Written Warning.
Respondent has repeatedly exercised a great deal of discretion
in meting out punishments. Less than a year following a previous
infraction in which her actions were written up as “inappropriate
and unprofessional,” dealer Mary-Noel Whitcomb was cited for
“disrespectful and inappropriate conduct toward fellow employ-
ees.” Respondent took statements from numerous team members,
and determined that “Mary consistently demonstrates a poor atti-
tude toward her CSTLs when they are working in her section.
Mary’s behavior . . . is very uncomfortable for her fellow team
members including dealers and CSTLs. . . . [T]he department will
not tolerate Mary talking bad or criticizing any fellow team mem-
ber regarding performance . . . in front of our guests.” (emphasis
added.) For this, Whitcomb was given a second-within-a-year
“Second, Last & Final” Written Warning.
Respondent testified that when a guest complains about an
employee, the situation is taken very seriously, and more serious
discipline is considered justifiable. Yet, table games dealer Hue
Kim asked a guest for an emergency loan, offering to pay it back
with a $5000 casino chip that he would slip the guest during a
game. Not surprisingly, this elicited a guest complaint, yet Kim
received merely a three-day suspension pending investigation and
a Second Written Warning for these infractions. Dealer Dean
McClusky was given only a written warning when he was a total
no-call/no-show, and was only terminated after he came to work
under the influence and was determined to have been endangering
company assets and potentially alienating customers.
Similarly, dealer Hong Sun received multiple “Second, Last
& Final” Written Warnings within a short space of time, involv-
ing separate incidents that resulted in guest complaints. In the
most blatant of these Ms. Sun accused a guest of smelling and
asked him to change seats on her game. When the guest inquired
as to what type of smell, Ms. Sun said “body odor, like you ha-
ven’t showered.” Ms. Sun then fanned the air several times in
front of her face, further emphasizing an odor. This request total-
Not only are disciplinary levels sometimes ignored, but those
same levels are also sometimes skipped based on someone’s
subjective view of the triviality or the severity of the violation.
Once a violation is reported to the casino manager, the in-
formation is reviewed and an investigation of the situation is
initiated. Collura reviews the preliminary information and
decides with Westbrook and Ward whether a suspension is
warranted. If a suspension is warranted, the employee is placed
on suspension and management has the opportunity to conduct
a more thorough investigation. Upon the investigation’s com-
pletion, the employee is provided a “due process” meeting,
during which he/she may add evidence or statements that may
affect management’s conclusions.
G. The Sackin Incident of August 21
On Friday, August 21, 11 days after his meeting with Collura
and Lancaster, Sackin was running late to work. He had been
delayed due to a traffic stop and the friend he was driving with
wanted to shop at the nearby mall. She dropped him on Las
Vegas Boulevard across from the Hotel’s front entrance. This
put him on the wrong side of the facility to timely reach the
employee entrance. He knew he could just make it to his pit if
he went through the front entrance and hurried down the hall-
way to the casino. He also knew he would not be able to use
the time clock in the break room near the employee entrance
and would have to make a handwritten correction which could
be supported by the table’s computer, known as Table Touch.
As he rushed through the casino, he was straightening his
uniform which was not fully in place as he came through the
door, though by the time he arrived at his pit he was properly
attired. He also placed a newspaper he was carrying behind an
ATM machine (later retrieved and disposed of). His hasty path
to his workstation is compiled on a video disc which is in evi-
dence.
Respondent had become aware of his lateness due to a cell
phone call made by the Encore’s casino manager Justin Spra-
gue who had observed Sackin crossing a pedestrian bridge over
Las Vegas Boulevard as he rushed toward the Wynn. The call
alerted the scheduling manager that Sackin would be late.
When the manager called the pit to alert it that Sackin would be
late, he was surprised to learn Sackin had already arrived. This
led Collura to investigate what had happened as she suspected
Sackin must have used the front entrance. She advised opera-
tions vice president Bill Westbrook who ordered up the surveil-
lance records for his review.
A review of the surveillance resulted in the conclusion that
Sackin had violated eleven rules including: (1) failure to notify
a Casino Manager of his late arrival; (2) entry through an unau-
thorized entrance; (3) not in complete dress uniform in the ca-
sino area; (4) running in a guest area; (5) leaving personal

ly embarrassed and humiliated the guest. Ms. Sun then in a fur-
ther exchange with the guest regarding a game rule, asked the
guest, “Can’t you read?” and told the guest, “I know what I’m do-
ing.” Less than a month later, a customer submitted a comment
card, reporting “Ms. Sun’s unprofessionalism and overall poor at-
titude towards the guest.” Even so, Respondent continued to em-
ploy Sun up through late April 2010, when she left the country
unannounced.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
property on the floor in the casino area (the newspaper was
described as a “package”); (6) crossing through gaming areas
instead of using the main aisles; (7) entering the pit from the
side, not at the end; (8) pushing a coworker; (9) not clocking in;
(10) failure to sign the “Clock In/Out Problem Log;” and (11)
failing to maintain current contact information with Human
Resources and the table games department. Some of these
“violations” are clearly overkill, particularly the contention that
Sackin had pushed a coworker and Collura’s testimony that
Sackin was “half-undressed.”13 Indeed, much of the descrip-
tion of the various violations is on the florid side, clearly an
effort to characterize Sackin’s conduct as worse than it was.
Two and a half hours after the incident, Collura and Lancas-
ter (brought over from the Encore) called Sackin in for a meet-
ing. Collura asked Sackin where he had parked and Sackin
explained that his friend dropped him off because they were
running late after a traffic ticket on the way to work. Sackin
completed an employee statement and was informed that he
was being suspended pending the results of the investigation of
the incident. Collura told Sackin they would contact him on
Monday after management had determined what had occurred
and what discipline, if any, they were going to impose. Sackin
informed Collura that his cell phone number had changed.
Collura made a note of the change and Sackin left the casino.
Collura neglected to advise her secretary of the new number
and no one reached him on Monday. On Tuesday, he called
and was asked to come right away to a “due process” meeting
where he could explain what had transpired. He had been to
the dentist and was uncomfortable, but came in anyway, asking
for a Weingarten representative. A representative was not
available and the entire meeting was postponed until Wednes-
day, August 26.
On Wednesday, August 26, Sackin returned to the Wynn for
the due process meeting. Larson served as his Weingarten
representative. After being asked if there was any further in-
formation he could provide regarding the incident, Sackin
wrote an addendum to his statement. Westbrook stated he
would review all of the information and determine the appro-
priate discipline. After reviewing the information, Respondent
determined that Sackin violated 11 casino policies. Respondent
returned Sackin to work with a suspension, time served without
compensation, and issued Sackin a second, last and final warn-
ing.14 Westbrook and Collura asserted that the discipline was
appropriate due to the number of infractions.
Although Respondent has a policy against employees enter-
ing through the front door, Westbrook admitted that, on occa-
sion, employees do use the front entrance and if they are
caught, it generally results in a discussion or counseling memo-
randum. Moreover, tardiness generally results in minimal dis-
cipline. Each time an employee is late, s/he garners only a half

13 What was Collura’s purpose to provide such a description? Why
not simply say Sackin was putting on his uniform jacket or tying his tie
as he came through the casino? The video shows what happened.
14 This was not the second written warning in Sackin’s file. Rather,
Respondent here skipped steps to reach the second level of the discipli-
nary process due to the supposed severity and number of the infrac-
tions.
of a single disciplinary point.15 Respondent’s accumulation of
the infractions to obtain the level of discipline for suspension
seems anomalous, given the fact that Sackin was trying to do
the right thing, get to work on time. Indeed, not only is the
employee pushing incident an inaccurate description, the failure
to sign the clock-in problem log and the changed telephone
number all seem to be make-weight. Even the charge that he
had failed to report his lateness to the casino manager is wrong;
he wasn’t late. The push description is objectively wrong (and
the employee was never even interviewed), the log correction
might well have been made at an appropriate break, but calling
Sackin to the meeting and then sending him home prevented
the correction, and the telephone change was known to the
person in charge, Collura, who should have passed the new
number on to the appropriate people. In any event the delay
harmed only Sackin, not the Company, for Sackin still needed
to be scheduled for his return. Certainly Respondent does not
claim that it was relying on a specific return date.
H. Ronda Larson’s Termination
Ronda Larson is a table games dealer with 23 years experi-
ence. Though hired by Respondent when it opened in 2005,
Larson had previously worked as a dealer for at least one other
Steve Wynn casino, the Bellagio. She had also spent 12 years
as a floor supervisor at Wynn’s Treasure Island.
As mentioned above, she opposed the 2006 change in the
toke policy and helped fund the legal expenses by her fellow
employees, raising $20,000 for the attorneys. Larson and five
other dealers spread the word that they were collecting $100
donations from each of the dealers in order to pay for legal
representation. Larson held three “fund raising drives” in order
to collect the money and did so in the dealers’ break room
where supervisors were present.
And, of course, she was heavily involved in the 2009 Labor
Commissioner’s hearing even though she was not a named
plaintiff. Larson was present for each day of the hearing and
assisted counsel by collecting notes from other dealers. During
the hearing, Larson sat both with and behind counsel and took
notes as well as passing notes to the attorneys. In this regard,
both she and union president Connie Castro were seen to be
working together in that endeavor. She attended each day of
the hearing.
On July 13, 4 days after the first session of the Labor Com-
missioner hearing ended on July 9, Larson received a written
warning for self-correcting three mistakes on a game called
War. According to Collura, she should have called her mis-
takes to the attention of the CSTL. She explained:

Well, it’s to protect the integrity of the game. Dealers are go-
ing to make mistakes. They’re out there dealing hundreds and
hundreds of hands a day. So, if Ronda did make an error,
which is very similar to an error on blackjack, giving a card,
an extra card, to a player, all she needed to do is alert the
CSTL. If the CSTL is there present, they’re accountable for
it. It puts back the cards on the table for surveillance to view

15 Respondent maintains a policy whereby employees receive
“points” for being tardy and for absences. It is an eight point system
and a half point would be minimal discipline.
WYNN LAS VEGAS, LLC

683
to say, hey, this was a mistake, this is not collusion, this is not
anything else involved, and then we’d go ahead and—the
CSTL instructs her to go ahead and take the money up and
lock it back in the bank. It would have been, you know, end
of story.

Due to the mistake, Respondent issued Larson a First Writ-
ten. It did so despite the fact that the player knew she had made
the mistakes and had acquiesced in the corrections. This disci-
pline is not part of the complaint, though it did weaken her
tenure and was taken into consideration later when Respondent
decided to discharge her. Beyond that, the warning is not con-
sistent with the small dealer error practice described by Collura,
a warning kept in the table games department, rather than send-
ing the matter up to management and on to human resources.
On September 6, the Sunday of Labor Day weekend, Larson
was dealing blackjack at tables in the swimming pool area. The
pool area is outdoors with some overhead covering and is uti-
lized during the summer months to coincide with warm temper-
atures. It is a very casual area, a bit louder than inside and the
alcohol consumption is said to be somewhat greater. Respond-
ent sets a very relaxed attitude at the tables in the pool area;
there is even a topless artificial beach nearby. Larson began
her duties at 11 a.m. She was on a rotation (“string”) with Ro-
milda Sarant and Abegaille Sell in the pool pit. Sell was acting
as the relief. Each dealer works for an hour and then has a half
hour break. The dealers alternate so that Sell takes over the
table for the dealer who is on break. She, in turn, also receives
a half hour break.
Later that day, Larson was accused of two episodes of mis-
conduct at her blackjack table. She was entirely unaware of
either one since neither seemed to be remarkable or in any way
memorable. Indeed, Respondent has presented video (without
sound) of both incidents. The video is helpful only to the ex-
tent that it supports Larson’s contention that nothing occurred
which was out of the ordinary or which might be regarded as
eventful. It does show how mechanical, rote and habitual a
blackjack dealer’s movements are. Respondent called witness-
es to describe what led to its decision to discharge Larson.
The first incident involved a group of birthday party cele-
brants including individuals named Naishat Mehta and Andrew
Salute. They never made any complaints at the time of the so-
called incident, but were overheard by the pool manager grip-
ing somewhat later. The second concerns an almost wordless
conversation between Larson and the CSTL for the pit, Derek
Corsaro. She had suggested that her table needed a “fill” of red
chips ($5 chips); he did not agree and her response was regard-
ed as defiant and insubordinate. I suspect that the second inci-
dent would have been ignored if it had not been for the per-
ceived customer complaint involving the Mehta party. Certain-
ly Corsaro had very little to complain about. Furthermore, the
Mehta incident seems to have been trivial and within the
bounds of approved company behavior. Would these have
been of concern had Larson not been a union steward who had
recently received a First Written?
There are two factors here which are most curious and which
tend to support a finding that at some stage Respondent had
begun hunting for a reason to fire Larson. The first is the man-
ner in which the managers sought out Mehta and Salute to en-
courage them to file written complaints, coupled with their too
willing acceptance of the customers’ reluctant comments. In
fact, Mehta told them he did not want to fill out a comment
card, doing so only after casino manager Anthony Tyne tracked
him to his dinner reservation and pushed him into it. Standing
alone, that seems to be extraordinary. When he testified, Me-
hta, who works as a manager for a software company in Santa
Monica, said in retrospect he did not believe what he had per-
ceived Larson to have done amounted to a firing offense. Even
at the time it was happening, he regarded the Casino’s urgency
with suspicion, specifically Respondent’s offer of free desserts,
later negotiated to free nightclub passes in exchange for guest
comment cards regarding Larson’s conduct.
The second is what would appear to be a deliberate effort to
prevent Larson from having full access to her Weingarten rep-
resentative, Sackin, as she was ordered to provide a written
statement about the two events. In that regard, she was sum-
moned to Tyne’s office toward the end of the day where she
met with Tyne and assistant manager Rick Sorani. Sackin was
brought in as the Weingarten representative. They asked her to
provide a written statement concerning what had happened
between her and Corsaro. She was then sent to a cubicle down
the hall to write it. When Sackin attempted to accompany her
and assist, Sorani barred him from doing so, even though the
company generally allows Weingarten representatives the op-
portunity to do so. As a result, Larson wrote her statement
without the benefit of discussing it with her steward. Later,
Sackin was permitted to review the statement before Larson
turned it in. However, he had been unable to discuss the inci-
dent with Larson in advance and had been barred from discuss-
ing the events as she was composing her statement. Part way
through he was allowed to be with her, but only silently under
Sorani’s watchful and foreboding eye. Afterwards, Larson was
suspended pending investigation of the complaints.16
The following day, Tyne called in the other two dealers on
the string, Sarant and Sell, to give written statements about
what had occurred between Larson and the Mehta party. Nei-

16 [Witness SACKIN] In the end, [union president] Connie [Castro]
was told that I could be in the meeting. It was the end of her break.
She returned to the table, I was allowed to go in there, but I was told I
could not speak at all, that there would have to be either Anthony or
Rick there as a witness also.
So I went into this. [Larson is] three-quarters of the way done with
her statement. Rick’s there, I’m there, and she’s there. When she was
finished with the statement, Ronda and I told Rick that we didn’t feel
that was right. That was the first time that there’s never been anybody
allowed to speak to someone before or help in the process.
Q. [BY MS. ANZALONE]: What was his response to that?
A. He said, listen, we don’t want anybody writing anybody
else’s statement.
Q. Okay.
A. At that time, I told him there was no way for me to write
the statement, I wasn’t there. I just wanted to aid her if she need-
ed any spelling, some calming down, just to be there beside her
and comforting.
Q. What was his response?
A. He said we’re not going to allow anybody to help another
especially if it could endanger the writing of the statement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684
ther was able to describe what Larson had supposedly done.
They could barely recall that the customers seemed to be grum-
bling, much less what it was all about. Sell had passed the
matter off as inconsequential.
On September 9, 2009, Larson met with Westbrook and Col-
lura for a due process meeting and again, Sackin was present as
the employee representative. Larson submitted additional
statements and ultimately Westbrook determined that Larson
should be terminated based on the incidents and her prior disci-
plinary record. Larson was informed on September 17, 2009,
that she was terminated.
II. ANALYSIS AND CONCLUSIONS
A. Questioning Sackin
The General Counsel’s theories, that Collura’s questions to
Sackin regarding whether he knew he had been named as a
witness in the Labor Commissioner hearing, whether he had
counsel, whether he had observed CSTLs receiving tips and
what he might be testifying about are all based upon application
of the Board’s Johnnie’s Poultry17 rule. That case is designed
to protect witnesses before the NLRB who are being questioned
by a respondent who has a legitimate purpose in doing so.
Specifically, the safeguards are that the employer must: com-
municate to the employee the purpose of the questioning, must
assure the employee that no reprisal will take place, and must
obtain the employee’s participation on a voluntary basis. The
questioning must also occur in a context free from employer
hostility to union organization and must itself not be coercive in
nature. Moreover, the questions must not exceed the necessi-
ties of the legitimate purpose by prying into other union (or
protected) matters, eliciting information concerning an employ-
ee’s subjective state of mind, or otherwise interfering with the
statutory rights of employees. When an employer transgresses
the boundaries of these safeguards, it loses the benefits of the
privilege. A failure to provide the safeguards results in an
8(a)(1) violation.
The obvious difference is that the General Counsel here is
not seeking to protect an NLRB witness being called to testify
in an NLRB hearing. Sackin had been listed as a witness in a
state labor commissioner hearing. This raises the immediate
question of whether Johnnie’s Poultry has any application
whatsoever. After all, the state labor commission has its own
concerns and rules about the protection of its witnesses. In-
deed, while Section 7 rights are its primary focus, the NLRB
has no primary interest in the rights of witnesses as they appear
in other forums, even if Section 7 might be seen as applicable.
The issue of administrative comity was seen relatively early
in the Board’s decisions. It was first hinted in Imperial Garden
Growers, 91 NLRB 1034, 1037 (1950) (overruled on a different
issue, Bodine Produce Co., 147 NLRB 832 (1964)) where the
Board observed that its authority over agricultural workers after
1947 differed from that of the Labor Department. It decided to
accept the Labor Department’s definition saying: “We believe
it to be our duty to follow, whenever possible, the interpretation
of Section 3(f) adopted by the Labor Department and its Wage

17 Johnnie’s Poultry Co., 146 NLRB 770 (1964).
and Hour Division, as that agency, and not this Board, has the
responsibility and the experience of administering the Fair La-
bor Standards Act.”
Seven years later, this deference became a matter of comity
in another Fair Labor Standards matter. See Olaa Sugar Com-
pany, 118 NLRB 1442, 1444 (1957), when the Board said:
“Moreover, considerations of comity between two agencies of
the Government make it desirable that the view of the agency
most often concerned with a problem be respected by the agen-
cy to which the problem is relatively incidental. [fn. omitted]
This is particularly true where Congress has singled out the law
creating the ‘primary’ agency as the guide to the other.”
And, of course, the Board has often given comity to state la-
bor relations agencies concerning unit placement questions so
long as the decisions are not “clearly repugnant” to the policies
of the NLRA, e.g., Stand-By One Associates, 274 NLRB 952,
953 (1985). See also St. Joseph’s Hospital, 221 NLRB 1253
(1975), enfd. 542 F.2d 495 (8th Cir. 1976), where the Board
said, “Contrary to the Administrative Law Judge, it is not a
touchstone of comity that the procedures and policies of a state
agency be identical to those of the Board. All that is required is
that the state proceedings violate neither due process nor the
specific mandates of the Act.”
Therefore, the fact that a state, rather than federal, agency is
involved is not of great concern.
The Nevada Labor Commissioner in large part stands in the
shoes of the Department of Labor for analytical purposes. As
Olaa Sugar says, the DOL (Commissioner here) is the agency
most concerned with witnesses who appear before it. It is also
the agency most often concerned with state wage laws. Indeed,
it is the agency where the employees chose to litigate the toke
pool issue, asserting that the Wynn had breached state wage
laws when it changed the make-up of the pool to include indi-
viduals who had previously been regarded as supervisory.
Therefore, I have no difficulty in concluding that it is the state
agency which has primacy when dealing with protecting the
witnesses who come before it. The Board should provide comi-
ty to the Nevada State Labor Commissioner in the same manner
as it provides comity to the Department of Labor in matters
primary to it. Certainly insofar as witness rights are concerned,
the Board’s interest in the Labor Commissioner’s witnesses, in
the words of Olaa Sugar, is “relatively incidental.”
As a matter of comity, I find it is inappropriate of the Board
to apply its witness protection rules to witnesses appearing
before other government agencies such as the Nevada State
Labor Commissioner.
Moreover, if the Labor Commissioner’s rules provide for
some sort of informal discovery, as suggested by its directive to
turn over witnesses names to the Wynn, an employer’s exercise
of that discovery right would not be coercive, but would instead
be privileged under state law. Even Johnnies’ Poultry recog-
nizes that certain types of inquiries touching on factual matters
to be developed at hearing are proper. Normally, of course,
that would be handled by counsel, though here it was by an
assistant administrator. In fact, Collura seemed to be operating
WYNN LAS VEGAS, LLC

685
under instructions or oversight from counsel.18 That difference
seems to be of little importance here, as again, it is a matter for
the Labor Commissioner, not the NLRB.
Accordingly, I find that the allegations set forth in para-
graphs 5(a) and (b) should be dismissed.
As for paragraphs 5(c), (d), and (e), all of which allege that
Sackin was denied a Weingarten representative at this August
10 meeting, they should be dismissed as well. Sackin was not
called to the meeting for any disciplinary purpose. He was not
accused of wrongdoing and Collura accurately advised him that
was so. Once the meeting was established as having nothing to
do with discipline, Weingarten had no application.
B. Disciplining Sackin
The General Counsel asserts that Sackin’s discipline was in
violation of Sections 8(a)(1) and (3) and must therefore present
a prima facie case under Wright Line. As the Board enunciated
in Wright Line:19

[W]e shall henceforth employ the following causation test in
all cases alleging violation of 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation. First, we shall re-
quire that the General Counsel make a prima facie showing
sufficient to support the inference that protected conduct was
a ‘motivating factor’ in the employer’s decision. Once this is
established, the burden will shift to the employer to demon-
strate that the same action would have taken place even in the
absence of the protected conduct.

The General Counsel has the burden of establishing the exist-
ence of protected activity, knowledge of that activity by the
employer, and union animus. Donaldson Bros. Ready Mix,
Inc., 341 NLRB 958, 961 (2004). In addition to establishing
the listed elements, the General Counsel must show that the
“timing of the alleged reprisals was proximate to the protected
activities and that there was antiunion animus to ‘link the fac-
tors of timing and knowledge to the improper motivation.’”
United Federation of Teachers Welfare Fund, 322 NLRB 385,
392 (1996) citing Hall Construction v. NLRB, 941 F.2d 684
(8th Cir. 1991); Service Employees International Local 434-B,
316 NLRB 1059 (1995).
In determining whether the conduct in question is unlawfully
motivated, the Board relies on both circumstantial and direct
evidence. Fluor Daniel, Inc., 311 NLRB 498 (1993). “Since
motive is critical to a finding of an 8(a)(3) violation, but since
direct evidence of motive is rare, one must look to all of the
attendant circumstances to determine whether Respondent act-

18 To the extent that the General Counsel argues that Sackin was co-
erced by Collura saying Lancaster was a company lawyer, I find the
argument unpersuasive. Sackin simply made a mistake, conflating
Lancaster’s presence with Collura’s stated purpose that she was assist-
ing the company lawyers. Lancaster was too well known to pass him-
self off as a company lawyer. Even if Sackin did not know him, neither
Lancaster nor Collura would have attempted such a thing. There was
no effort to mislead Sackin and therefore no 8(a)(1) implication.
19 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982)
approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
ed improperly or not.” Keller Mfg. Co., 237 NLRB 712 (1978),
enfd. in part, enf. den. in part without opinion, 622 F.2d 592
(7th Cir. 1980). See also, Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966), and Atlantic Metal
Products, Inc., 161 NLRB 919, 922 (1966). Moreover, where
the employer’s reason for termination “given is implausible,
then that fact tends to prove an attempt to disguise the true, and
unlawful, motive.” Keller Mfg. Co., supra, citing Capitol Rec-
ords, 232 NLRB 228 (1977). See also J. S. Troup Elec., 344
NLRB 1009 (2005) (Board will infer an unlawful motive if the
employer’s action is “baseless, unreasonable, or so contrived as
to raise a presumption of unlawful motive”).
Once the General Counsel meets its burden of establishing
the prima facie case, Respondent under Wright Line can rebut it
by showing that prohibited motivations did not play a part in
the employment decision. If the employer cannot rebut the
prima facia case, the burden shifts to the employer to “demon-
strate that the same action would have taken place in the ab-
sence of the protected conduct.” Wright Line, 251 NLRB at
1089. The employer’s burden is a burden of evidence and a
burden of persuasion. Hunter Douglas, 277 NLRB 1179
(1985), enfd. 804 F.2d 808 (3d Cir. 1986), cert. denied 481 U.S.
1069 (1987). If the Respondent cannot present sufficient evi-
dence, the employer will not have met its burden and a viola-
tion will be found. R.E.C. Corp., 296 NLRB 1293 (1989).
As described above, Sackin actively participated in the Un-
ion and was identified as an in-house union organizer. In addi-
tion to his steward responsibilities, Sackin was named as a po-
tential witness at the Labor Commissioner hearing. Collura
questioned him about his testimony and recognized during that
meeting that he was someone the other dealers would “come
to” if they had questions. As such, it seems evident that Re-
spondent knew that Sackin was continuously participating in
protected activity in his position as a union steward and in-
house organizer.
Eleven days after being questioned about his testimony,
Sackin had the misfortune of running late to work (due to a
traffic ticket) and was subsequently informed that he had bro-
ken eleven rules. While Respondent contends that the General
Counsel cannot establish a prima facie case based on the timing
of the events, the temporal proximity of Sackin’s participation
to the Labor Commissioner hearings and his discipline is sus-
pect. Moreover, Sackin’s protected activity was ongoing. In
assessing the other surrounding circumstances regarding tim-
ing, it seems that the General Counsel has met the burden of
showing proximity between protected activity and the resulting
discipline.
Whether or not union animus or its equivalent in protected
concerted activity cases was a motivating factor in the decision
to terminate Sackin is also in dispute. Even though Respondent
has provided evidence that Respondent and the Union have
nearly agreed upon a first collective-bargaining agreement, one
which has been partially implemented, that fact does not pre-
clude a finding of union animus vis à vis a specific employee.
While Respondent contends it would have terminated Sackin
whether or not he was engaged in protected activity, I find that
the degree of punishment in this case was not supported by the
underlying facts and instead the discharge was due to its ani-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686
mus against protected conduct—his union stewardship and his
willingness to testify in the Labor Commissioner hearing. Re-
spondent characterizes the eleven violations as an anomaly,
which this no doubt was. Sackin’s tardiness resulted in a chain
of events that Respondent unconvincingly claims was an egre-
gious, blatant disregard for the rules. Even so, Sackin was
simply trying to be a good employee and get to his table on
time; in doing so, he broke some minor rules. In that sense,
some admonishment or counseling was appropriate, perhaps at
the cost of the attendance points he should have incurred. Cer-
tainly, none of these infractions seriously impacted the health
or safety of any patrons, nor did it jeopardize the integrity or
security of the casino. And, there is no showing that customers
even noticed, much less that the Wynn’s decorum concerns
were affected. Yet, Respondent chose to suspend Sackin and
skip lesser disciplines, jumping him from admonishment to a
second, last, and final written warning, the last step short of
firing him. Plus, on top of the written warning and suspension
he was verbally warned that his conduct would now be under
severe scrutiny.
Moreover, the effort undertaken by Respondent to stitch the
video surveillance together to document Sackin’s numerous
violations while at the same time adding these minor violations
together in a geometric fashion to justify its action seems ex-
traordinary, given that his underlying purpose was simply to get
to work on time. Respondent’s justification is extremely weak
at best. Until the day he ran late, Sackin was a seasoned em-
ployee who did not have any outstanding discipline on his rec-
ord. Yet, Respondent dug as hard as it could to trump up as
many violations as possible in order to subject Sackin to disci-
pline. Indeed, in its zeal, Respondent failed to fully investigate
the numerous violations, specifically by failing to interview or
get a statement from the employee Sackin allegedly “pushed”
on his way to his table. The Wynn’s response simply does not
add up.
Although there is no evidence that Respondent made explicit
remarks expressing union animus, it seems to me that Sackin’s
tardiness made him a target of opportunity. It is therefore ap-
propriate to look to the surrounding circumstances in the ab-
sence of direct evidence of union animus. Both its departure
from its policy of progressive discipline and its abrupt, high
level of punishment,20 the second, last, and final warning, re-
sounds as a warning shot. Respondent’s over weighted conclu-
sion that Sackin violated eleven policies in running a few
minutes late; its statement that it could have terminated him but
would instead give to him the lesser punishment of time-served
suspension; at the same time warning him to remain under the
radar; and telling him that he had been allowed to return to
work “by the hair of [his] chin,” all taken together are evidence
of an antisteward motive.21 The message Respondent was

20 Keller Mfg. Co., 237 NLRB 712, 714 (1978) (skipping steps in the
progressive discipline policy and more strictly enforcing rules are evi-
dence of animus). Also Fayette Cotton Mill, 245 NLRB 428 at 438
(1979); Joseph Chevrolet, 343 NLRB 7, 18 (2004).
21 The Board has long held that harsher treatment for stewards, even
if the conduct for which they are being disciplined is not protected, is
nonetheless a violation of the Act. See United Aircraft, 188 NLRB 633
sending was clearly an effort to neuter one of the Union’s stew-
ards and to let him and his fellow employees know that he was
now operating hobbled; that he was unable to stand up for em-
ployees as strongly as he might otherwise have.
Based on the totality of the surrounding circumstances, it is
evident that Respondent disciplined Sackin to such an extreme
degree because of its animus arising from his two instances of
protected conduct, his stewardship and his willingness to testify
on behalf of his fellow employees at the Labor Commissioner
hearing. Respondent’s contention that it harbors no such ani-
mus is rejected. The General Counsel has met its initial Wright
Line burden in establishing a prima facie case. Likewise, Re-
spondent has failed to rebut that case or present a valid justifi-
cation for the level of discipline applied. Certainly it has not
persuaded me that it would have taken the same action if
Sackin had not been a steward or if he had not been supportive
of the employee cause before the Labor Commissioner. I there-
fore find that Sackin was disciplined in violation of 8(a)(3) and
(1) of the Act.
C. Termination of Larson
The General Counsel asserts that Larson was disciplined and
terminated for engaging in union and protected concerted activ-
ities and that Respondent’s action violated Section 8(a)(3) and
(1). The Wright Line burden-shifting analysis set forth above is
also applicable to Larson’s termination. Therefore, the General
Counsel must have established that Larson was engaged in
protected conduct, that Respondent knew about her protected
conduct and that union animus was a motivating factor in Re-
spondent’s decision to terminate Larson.
The record is rich with evidence of Larson’s protected con-
duct. Larson was widely known to be a union supporter and
early on was identified as a union in-house organizer. Until she
was fired, she served as a union steward, being particularly
active and visible as a Weingarten representative. She has been
outspoken on numerous occasions about her dissatisfaction
with the new toke policy, even publicly challenging company
president Andrew Pascal over the change. Respondent also
knew Larson had actively solicited contributions for the fund
that provided legal representation for the dealers before the
Nevada Labor Commissioner and that she had provided assis-
tance to counsel during the hearing. Clearly, Respondent was
well aware of Larson’s union and protected concerted activity.
That knowledge is so plain that Respondent does not contest
that component of the prima facie case.
As with Sackin, the only element of the Wright Line test in
dispute is whether there is evidence of Respondent’s animus.
Aside from the animus perceived in Sackin’s case, there is no
direct evidence of a general animus. Again, however, I observe
that a general animus is unnecessary; it is only necessary to find
it aimed at a particular employee. Once again, I consider the
surrounding circumstances as Respondent decided to discharge
Larson.

(1971); Precision Castings Co., 233 NLRB 183 (1977); Radisson
Muehlebach Hotel, 273 NLRB 1464 (1985); and Port Plastics, 279
NLRB 362 (1986).
WYNN LAS VEGAS, LLC

687
In 2007, during the ongoing litigation over the new toke pol-
icy, the Union began taking steps toward representing Re-
spondent’s dealers. Sometime in May, the Union won the rep-
resentation election. As an active union organizer, Larson was
outspoken in her opinions and because of her visibility she
appeared on Respondent’s radar.
As described above, 4 days after the first session of the La-
bor Commissioner hearing concluded, Larson began receiving
enhanced discipline. Despite its being a minor infraction, cor-
recting her own mistakes, Larson was issued a First Written, a
departure from its normal procedure concerning ordinary dealer
mistakes. That is not a part of the complaint here, but neverthe-
less seems to have been part of Respondent’s effort to ham-
string union stewards. Only 2 months later, on September 6,
Respondent’s effort bore fruit, though based on some very
questionable evidence. Significantly, it took extraordinary
measures to justify and corroborate the reasons for the disci-
pline. On that day, Larson was accused of two different epi-
sodes of misconduct even though she had no idea she had
committed any rule violation whatsoever.
The issue involving the Mehta party was clearly overblown.
Larson was doing what she had been instructed to do, trying to
get along with the players. She was being playful and amusing,
even going along with their complaints about smoking. All
agreed that smoking was bad; she simply pointed out that it was
bad in another sense—workers were heavily exposed to se-
cond-hand smoke. Her remark was no reflection upon Re-
spondent; it was a matter common to all businesses in Neva-
da—a public policy issue which impacted employees. Indeed,
her light-hearted comment might be regarded as protected ac-
tivity—an appeal to out-of-state customers to complain to the
Nevada authorities that smoking was damaging to the health of
Nevada workers. Even her remark that she was just working to
pay her mortgage must be considered as wry, dry humor. After
all, paying the mortgage is the goal of much of America. It was
far from being a complaint about her job. Aside from that,
however, whatever negativity the Mehta party may have per-
ceived, there is no reason why Respondent should have taken it
as accurate. The party had lost money at her table and appeared
to blame her. Neither her replacement dealer nor the dealer at
the adjacent table noticed anything remarkable at all. The
complaint instead came from Brian Lindaman, the pool area
manager that day. Even he did not witness what Larson had
supposedly done or said. He only heard grumbling about her—
a player declined another player’s invitation to join him at Lar-
son’s table, saying that she was “downright rude.” Lindaman
never saw the so-called rudeness himself, so he asked the
guests if they would like to fill out a comment form; both de-
clined. Nevertheless, Lindaman then asked the other two deal-
ers on the string what they knew. One had heard a guest re-
mark on Larson’s mortgage comment. He later told the Casino
Manager, Tyne, of the so-called incident.
Tyne, of course, went to great lengths to document the mat-
ter. Indeed, his disproportionate efforts have led me to con-
clude that Respondent had some sort of special purpose against
Larson, very similar to the undertaking against Sackin. Tyne
would not be deterred in his quest to obtain statements from
Salute and Mehta, even going so far as to track Mehta down at
the restaurant where he had reservations for dinner and to offer
the Mehta group ten passes to the casino’s nightclub in ex-
change for his statement against Larson. Mehta was astonished
by Tyne’s doggedness saying it was “aggressive.” If Tyne’s
purpose was to make certain guests were happy with their expe-
rience at Respondent, his pursuit of an employee seemed to
assure that Mehta’s dinner group, at least, was distracted from
its enjoyment. Moreover, Salute, who appears to have grum-
bled more than Mehta, never provided any statement whatsoev-
er. Salute was the one who had deliberately chosen to bet odd-
ly and not follow the standard way of playing blackjack. His
play had drawn complaints from the other players who had
asked Larson if he was playing conventionally. She responded
that he was not. Salute did not care for her answer, even
though he must have known he was betting atypically. For that
reason did Salute have second thoughts concerning the merits
of his grousing about Larson and decline to provide a statement
to Tyne? By the time of the instant hearing, Mehta certainly
had second thoughts.
The second incident is even less remarkable than the first.
Here CSTL Corsaro felt disrespected when Larson disagreed22
(in the mildest of ways) with his decision not to call for a chip
fill, overruling her request. I think she was being perfectly
reasonable in asking for the fill; likewise, he was being perfect-
ly reasonable in assessing the situation and deciding a fill was
not yet necessary. His alternative request, that she “color up”
her chips, to him seemed to have been disregarded as well
when she threw a tip into the toke box. In my review of the
video, it is clear that she did not do that defiantly, but from
habit. Her move was typically automatic, one she made fre-
quently; it was not an expression of noncooperation. The up-
shot of all this is at least two-fold. First, she has been charged
with insubordination. Yet, there was no insubordinate conduct.
The insubordination was mostly in Corsaro’s mind. He, of
course, did not make any decision; he simply told Lindaman
that Larson had refused his order to color up her chips.23 Lin-
daman had moments before been on her case over the Mehta
matter, which by then had been bucked to Tyne. What was
unreasonable was the Lindaman-Tyne response to a near-silent,
slight difference of opinion between veteran coworkers. Tyne
too-readily seized upon it as another justification to get rid of
Larson. He undoubtedly knew she was already under a First

22 Corsaro testified that when he asked Larson to “save” the lower
denomination chips, she told him, “I don’t feel like it” later saying “I
don’t have to do anything I don’t feel like doing.” This version is con-
tradicted by Larson who says she simply said almost under her breath
and in a sing-song, playful way, “No-o-o.” Based on Larson’s general-
ly good-humored personality, I credit her over Corsaro.
23 Even if she had refused to color up her chips, it is really a minor
matter. I do not perceive that behavior to be a firing offense. After all,
Corsaro was not, as Respondent has made clear, a supervisor who has
the authority to issue such orders. He can request, but he cannot order.
An employee’s noncompliance with a CSTL’s request would draw a
supervisor who could issue the order, where a second noncompliance
could result in a finding of insubordination. But that would also allow
the dealer to explain his or her side of what had happened. A reasona-
ble supervisor might support the dealer, particularly one as experienced
as Larson.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688
Written. From his point of view, it was easy to combine the
two matters.
In its defense, Respondent contends that eighteen of the for-
ty-six in house organizers have received no discipline whatso-
ever and that those numbers reflect the general statistics of all
employees, Larson was the most active of the stewards, and a
leader in the toke dispute. The level of discipline meted out to
her was far greater than warranted. In fact, there is no evidence
that Respondent ever actively solicited and pursued guest com-
plaints about an employee to the extent it did in this case. Par-
ticularly persuasive is the vigor with which Respondent sought
out evidence regarding these two infractions. The harsh treat-
ment of Larson for her relatively minor infractions was out of
the ordinary and highly suspect given the surrounding circum-
stances. Indeed, the evidence that Larson had even committed
these infractions is flimsy at best.
Additionally, while not part of this complaint, Respondent
denied Larson access to a Weingarten representative before
writing a statement regarding these two infractions. Even
though both Sackin and Larson asserted that they should be
able to speak with each other before or during the time Larson
wrote her statement, Larson was refused a representative. Fi-
nally, only after a great deal of resistance, did Respondent al-
low Sackin to be present while Larson wrote her statement.
However, Respondent insisted that its assistant casino manager,
Sorani, be present at all times and that Larson and Sackin re-
main silent, thereby precluding any conversation between them.
As stated above, this is not part of the current complaint, how-
ever it does further illustrate Respondent’s union animus, for it
was rendered in disregard of Larson’s Weingarten rights.24 At
the very least it is a rejection of a principal employee right. It
certainly qualifies as union animus.
Respondent argues that regardless of Larson’s protected ac-
tivity, it still would have discharged her. Respondent points to
a number of disciplinary actions against various employees
who were rude to customers or to their supervisor. Here, Lar-
son has been accused of rudeness and insubordination; howev-
er, the evidence does not show that either actually occurred.

24 Although not strictly a Weingarten case, in Cook Paint & Varnish,
258 NLRB 1230 (1981), the Board had occasion to review the facts
relating to an employer’s demanding that a union steward tell him what
a grievant had said to him and to turn over his notes about the conversa-
tion. The Board found the conduct to violate Sec. 8(a)(1), saying,
“Clearly, the scope of Respondent’s questioning exceeded the permis-
sible bounds outlined by the court and impinged upon protected union
activity.” For while questions posed by Nulton may be termed “factual
inquiries,” the very facts sought were the substance of conversations
between an employee and his steward, as well as the notes kept by the
steward, in the course of fulfilling his representational functions. Such
consultation between an employee potentially subject to discipline and
his union steward constitutes protected activity in one of its purest
forms. To allow Respondent here to compel the disclosure of this type
of information under threat of discipline manifestly restrains employees
in their willingness to candidly discuss matters with their chosen, statu-
tory representatives.” Id. 1232. Thus Respondent’s placing a high-
ranking official in the room as well as silencing Sackin clearly inter-
fered with Larson and Sackin’s ability to discuss the matter in confi-
dence. It was a denial of union representation, as Cook says, in its
purest form.
Only after tracking down one guest, Mehta, was Respondent
able to get any kind of statement regarding Larson’s comments
about smoking by the pool. Mehta testified that he thought it
was suspicious how much effort the Respondent was putting
into getting his statement and testified further that he did not
think Larson had done anything to warrant termination. As for
insubordination, Larson merely exchanged a few hushed words
with Corsaro, the severity of which did not warrant the subse-
quent discipline. Respondent presented a spate of instances of
discipline. However, in most of its termination cases, the con-
duct of the employee was far more egregious or the employee
had a history of misconduct. Larson did not have any disci-
pline on her record until after her participation in the Labor
Commissioner hearing and the conduct on which Respondent
relies to justify her dismissal is simply insufficiently persua-
sive. Certainly the discipline for similar misconduct cited in
footnote 12 was far more lenient than that levied upon Larson.
Larson was an experienced dealer and, given the overzealous-
ness in disciplining her for relatively minor infractions, Re-
spondent cannot overcome a pretext analysis. The timing, the
clear effort to defang stewards (including denying her access to
steward Sackin and issuing the warning to Sackin described,
infra), the lesser discipline taken against other employees who
committed equal or greater rule violations and the surrounding
circumstances all support the conclusion that union and con-
certed activity animus was the motivating factor in Respond-
ent’s decision to discipline and discharge steward Larson. Ac-
cordingly, I find Respondent violated Section 8(a)(3) and (1) in
disciplining and firing her. Indeed, I reemphasize that Re-
spondent has covertly targeted stewards, first by weakening
their tenure and then by inflating any instance of minor mis-
conduct beyond the reasonable.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. As Respondent discriminato-
rily discharged Ronda Larson, it must offer her reinstatement to
her previous job, or if it is not available, to a substantially simi-
lar job, and make her whole for any loss of earnings and other
benefits she may have suffered. Respondent shall take this
action without prejudice to her seniority or any other rights or
privileges she may have enjoyed.
In addition, as Respondent discriminatorily suspended and
warned David Sackin, it shall be ordered to rescind the suspen-
sion and warning and to make him whole for any loss of earn-
ings and other benefits he may have suffered.
Backpay for Larson, if any, shall be computed on a quarterly
basis from the date of her discharge to the date Respondent
makes a proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950). Backpay for Sackin shall be based on the length of his
unlawful suspension. In both cases daily compound interest as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010), shall be added to the net backpay amounts. Further-
more, Respondent shall be required to expunge from its per-
WYNN LAS VEGAS, LLC

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sonnel files any reference to their illegal discharge or suspen-
sion. Sterling Sugars, 261 NLRB 472 (1982).
The affirmative action shall also require Respondent to post
a notice to employees announcing the remedial steps it will
undertake. In addition to the physical posting of paper notices,
the notices shall be distributed electronically, by email, posting
on an intranet or an internet site, or other electronic means, if
the Respondent customarily communicates with its employees
by such means. See J. Picini Flooring, 356 NLRB 11, 13
(2010).
Based on the above findings of fact, I hereby make the fol-
lowing
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Transportation Workers Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. On August 21, 2009, Respondent suspended its employee
David Sackin because of his activities as a union steward on
behalf of the Union and because he intended to give testimony
on behalf of his fellow employees in a hearing before the State
of Nevada Labor Commissioner; in doing so it violated Section
8(a)(3) and (1) of the Act.
4. On September 6, 2009, Respondent suspended its em-
ployee Ronda Larson and thereafter discharged her because of
her activities as a union steward and because she assisted her
fellow employees in their complaint to the Nevada State Labor
Commissioner as well as assisting the employees in obtaining
counsel for that proceeding and assisting counsel during the
hearing in that matter. It therefore violated Section 8(a)(3) and
(1) of the Act.
5. The General Counsel has failed to prove any other viola-
tion of the Act.
[Recommended Order omitted from publication.]