BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WYNN
and Cases 28-CA-21073
28-CA-21197
CYNTHIA FIELDS, an Individual
and 28-CA-21205
TYNISIA BOONE, an Individual
and 28-CA-21363
TRANSPORT WORKERS
OF
Joel C. Schochet, Esq., for the General Counsel.
Gregory J. Kamer, Esq and Bryan J. Cohen, Esq.
of
DECISION
The
original and amended unfair labor practice charges in Case 28-CA-21073 were
filed by Cynthia Fields, an Individual, on November 8 and December 27,
2006, respectively. The original,
amended, and second amended unfair labor practice charges in Case 28-CA-21197
were filed by Fields on January 8, 17, and 27, 2007, respectively. The original and amended unfair labor
practice charges in Case 28-CA-21205 were filed by Tynisia Boone, an Individual,
on January 18 and March 28, 2007. The
original and amended unfair labor practice charges in Case 28-CA-21363 were
filed by Transport Workers Union of America on May 1 and July 2, 2007,
respectively. After investigating each
of the above-described unfair labor practice charges, on July 3, 2007, the
Regional Director of Region 28 of the National Labor Relations Board, herein
called the Board, issued a Second Consolidated Complaint, alleging that Wynn
Las Vegas, LLC, herein called Respondent, engaged in acts and conduct violative
of Section 8(a)(1), Section 8(a)(1) and (3), and Section 8(a)(1) and (4) of the
National Labor Relations Act, herein called the Act. Respondent timely filed an answer, denying
the commission of any of the alleged unfair labor practices. Pursuant to a notice of hearing, as
scheduled, a trial was conducted before the above-named administrative law
judge on July 30 through August 3, 2007 in
At all
material times herein, Respondent, a State of
The second consolidated complaint alleges that Respondent engaged in acts and conduct violative of Section 8(a)(1) of the Act on October 30, 2006 by informing its employees that it would be futile for them to select a union as their bargaining representative, threatening its employees with diminution of their wages if they selected a union as their bargaining representative or engaged in concerted activities to compel Respondent to return to its previous policy regarding payment of tips, threatening its employees that strikes would be inevitable if they selected a union as their bargaining representative, threatening its employees with discharge if they selected a union as their bargaining representative, threatening its employees with unspecified reprisals if they selected a union as their bargaining representative, and disparaging a union as the bargaining representative of its employees in order to discourage them from supporting or assisting a union; on or about January 12, 2007, by promulgating, and since maintaining, a no-talking rule, prohibiting its employees from discussing non-work related issues, including Respondent’s tip policy and newspaper articles regarding said policy, during work time; and, on or about January 13, 2007, by threatening its employees with unspecified reprisals because they engaged in concerted activities, including assisting other employees in the investigation of their unfair labor practice charges filed with the Board. The second consolidated complaint next alleges that Respondent engaged in acts and conduct violative of Section 8(a)(1) and (3) of the Act by issuing its employee Mark Baldino an undeserved and unwarranted written warning. Finally, the second consolidated complaint alleges that Respondent engaged in acts and conduct violative of Section 8(a)(1) and (4) of the Act by initially suspending and then terminating its employee, Cynthia Fields because she filed unfair labor practice charges with and gave testimony to the Board.
Since its public opening in April 2005, Respondent, which is a wholly-owned subsidiary of Wynn Resorts, has operated an opulent hotel, casino, and resort complex in Las Vegas, Nevada and, for the quality of its service to its guests and customers, has received such awards as five diamonds from the American Automobile Association. Steven A. Wynn, for whom Respondent’s facility is named, is the chairman of the board of directors of Wynn Resorts; Andrew Pascal is the president of Respondent; and William Westbrook, Jr. is its director of casino operations. The genesis of the dispute, which resulted in the alleged instant unfair labor practices, were Respondent’s decisions, announced to its casino employees on August 21, 2006 and implemented ten days later on September 1, to revamp the casino’s existing, convoluted “hierarchical” structure[2] and to create a new position, casino service team lead, and permit the individuals in said position to share in the table games dealers’ tips pool.[3] In order to alleviate the first problem, Respondent eliminated the positions of floor supervisor,[4] pit manager, and table games vice president and created the positions of casino manager, assistant casino manager, and casino service team lead, herein called team lead. With regard to the latter position, which it created to replace the floor supervisor position, Respondent’s intent was to involve the team leads, who would work “side by side” with the dealers, in providing the guests’ overall “experience” in the casino, including making the team leads responsible for welcoming players, “the cleanliness of the environment,” and cocktail service, while, at the same time, maintaining the other “typical” responsibilities of the eliminated floor supervisor position.[5] Respondent’s president Pascal testified that Respondent believed it necessary to include the 200 team leads in the dealers’ tip pool for two reasons. While the team leads and the dealers both would be “in the line of service” to the casino guests, a significant pay disparity existed between the floor supervisor position and that of dealer, with the former being paid at $60,000 per year and the dealers earning approximately $100,000 per year in combined wages and tips. Also, Respondent was experiencing difficulty in attracting enough qualified individuals to fill its existing floor supervisor positions and believed that increasing the compensation of the team lead position would lead to an increase in the number of applicants. Including team leads in the dealers’ tips pool along with increasing their hourly rate of pay,[6] according to Pascal, effectively increased the rate of pay for individuals in said position to $95,000 per year.
On
August 21, Steven Wynn himself held separate meetings with the casino employees
on each shift and announced the above-described changes, and, after explaining
Respondent’s rationale for the changes, he opined that “this is the right thing
to do;” that “it would make us more of a family . . . .” Nevertheless, according to Cynthia Fields,
given Wynn’s panegyric predictions to dealers at the time Respondent opened its
facility regarding the vast amounts of money they might earn[7] and his announcement that team leads and box
persons would now be included in the tips pool and, after he pejoratively
compared the dealers to “muggers and thieves” for stealing from customers and
lying when calling in sick,[8] the only point the dealers “heard” on
September 21 was that Respondent would be taking tips money, or, in the
vernacular of the dealers, tokes, which they had earned, from them, and many
left the meetings “extremely upset” with Respondent and Wynn personally.[9] Thereafter, according to Fields, the primary
topics for discussion amongst the dealers were the dilution of their tips pool,
their consequent loss of income, and what, if any, actions they could
undertake, including filing lawsuits and organizing a union, to stop Respondent
from implementing Wynn’s announced changes.
In fact, some dealers did directly challenge the legality of
Respondent’s actions by filing a lawsuit in Nevada District Court and by filing
a complaint with the State of
Respondent’s management was well aware of its table games dealers’ discontent resulting from their loss of income. According to Pascal, “. . . we obviously got some feedback that dealers were unhappy about the changes . . . and we heard that there were a number of different things that were being contemplated, one being for them to organize . . . .” Likewise, Wynn understood that there was “dealer consternation” caused by the changes, which Respondent had instituted on September 1, “and a whole bunch of conversation had started around the hotel that can only be characterized as wild exaggeration and falsehoods,” regarding such subjects as the possible firing of dealers, the elimination of tips for dealers, and “we ought to have a union because a union can make them give everything back.” In these circumstances and believing he “. . . had not done a good job of explaining . . . the importance of making the change for everybody’s sake,” Wynn convened meetings with Respondent’s management and labor relations “persuader,” Mark Garrity, with regard to stifling the dissension amongst the dealers, which, Wynn believed, was the machination of “a group of 25 or 30” rabid employees, and the decision was reached to hold meetings with the dealers to further explain the rationale for the September 1 changes and to afford the dealers an opportunity to ask questions and exchange ideas, which Wynn had not permitted on August 21, and vent their perceived frustrations. Wynn and Respondent’s management also decided to limit the number of dealers at each meeting to no more than 15 to 18, a group small enough to enable everyone to fit around a conference table and engage in a “two-way exchange.” During the management discussions, there was no thought that Wynn himself would attend the meetings; rather, the plan was that Pascal and Garrity would conduct them.
The first of the meetings, between Respondent’s management and its casino table games dealers, was scheduled for midday on October 30. According to Pascal and Wynn, inasmuch as the latter desired to learn the extent of the prevalent rumors and falsehoods and to assess the dealers’ “level of . . . awareness of the truth versus the fiction,” sometime during the morning that day, Wynn telephoned Pascal and surprisingly said he wanted to attend and participate in the initial meeting. The said meeting was held in a human resources training room; fifteen dealers, including Cynthia Fields, Tynisia Boone, Thomas Golly, Kanie Kastroll, Tramel McKenzie, Keith Gazda, and Ljilj Ana Cerovina, and several representatives of management, including Wynn, Pascal, Westbrook, Garrity, Arte Nathan, the then- senior vice president for employee relations, and Pat Mosca, a casino manager, attended. As they entered, the employees were instructed to sit in seats, arranged around a conference table located in the center of the room, and the management officials sat in chairs along the walls. The last person to enter the room was Steven Wynn, and he arrived, sporting a set of vampire teeth, which had been given to him by a grandchild as Halloween was the next night, in order to establish a light mood for the meeting. According to Fields, who filed a lawsuit against Steve Wynn and Respondent, seeking damages in the amount of $300,000 as a result of Wynn’s “extreme and outrageous” statements and behavior during this meeting, upon entering, Wynn, who suffers from a degenerative eye disease known as retinitis pigmentosa, announced that he wanted to sit amongst the dealers and “. . . came back around to my side of the table and grabbed my chair,” causing the former to have to move to another chair, which she arranged so that she was the first dealer to Wynn’s left. With regard to what then occurred, all witnesses agreed that Wynn made several opening remarks and then fielded questions and comments from the employees to which he replied.
Four
dealers testified on behalf of the General Counsel. First, Fields testified that Wynn’s opening
speech lasted “approximately” 15 minutes and that he began, saying
“. . . I know that everybody
here is upset about the tip situation.
He said that people are talking about it in the break room and he said
it had to stop. . . . It is not going to change. I know several of you have hired attorneys
and I have nine attorneys of my own and they all say this is not going to
change. I have them all on my side. And he said he checked with the labor
commissioner and he is correct.”
Continuing, Wynn said “we all need to become a family again” and
mentioned he had spoken to union organizers in
Next, according to Fields, she spoke, saying that she had left a supervisor job at the MGM Hotel after having accumulated five weeks vacation “and that if I had known . . . I was going to come here and I was going to have money taken away . . . for nothing I had done, I . . . possibly would not have made the change.” Continuing, she said that she was a single mother with a one and half year old son and that losing $15,000 to $20,000 a year was a “huge financial burden on myself.” Wynn replied, saying “. . . if $15,000 to $20,000 a year makes that big of a difference in your life then you are doing something wrong.” Fields responded, “. . . I probably would not have bought an additional property. I said this has really made a very big strain on me financially. . . . That’s when he got extremely angry and got into my face approximately three to five inches [away] and said, ‘if you think you have financial troubles now, if you picket, you will be automatically terminated.’”[11] According to Fields, as she was on the verge of crying, during the next ten minutes, she concentrated upon composing herself and not upon what Wynn was saying, and the next exchange she remembered was Wynn asking “. . . what can we do to make things better for you here aside from giving you back the tips because that’s not going to happen. We need to become a family again. . . . He said that we can make over $400 million he would be happy to share it with us.” At this, she again spoke, saying that since the dealers made only $6.15 an hour, could they be given a regularly scheduled raise each year? Thereupon, Wynn “. . . lashed back at me and said ‘don’t take me for a dope and don’t put words in my mouth.’”
Tynisia Boone, who, like Fields, filed a lawsuit against Steve Wynn and Respondent, seeking damages in the amount of $300,000 as a result of Wynn’s “extreme and outrageous“ statements and conduct during the October 30 meeting, testified that, after finding his seat, Wynn said “he had a couple of things that he would like to discuss with the dealers . . . . first he started with the tip issue. He said the tip issue would not change. It was a business decision . . . and he [knew] that we’re upset about it, but he had no other choice . . . to redistribute [the dealers’ tips] thorough his management . . . because he had a problem hiring help.” Then, referring to the lawsuit, which had been filed regarding the redistribution of their tips, Wynn said that he would not pay “a dime for the lawsuit” and that he would win in court. He added that he had “30,000 applicants for dealer jobs, ’and if you guys don’t like my tip pooling arrangements, you can leave. You can quit.’” Continuing, Wynn turned to the subject of unions, saying “. . . ‘and if you join [a] union, I can by law replace all 600 of you, and if you picket you will be automatically terminated because those are my sidewalks.’”[12] Boone recalled that, at one point, Wynn mentioned the Golden Nugget Hotel, saying “. . . that he an incident with the valet guys . . . and they wanted to go on strike so he permanently replaced them. He exercised his right and permanently replaced them and they did not return to work.” Finally, “[Wynn] said that the union would get us into trouble and it was not good for us.”
Wynn
next solicited questions, saying there would be no repercussions. Thomas Golly was the first employee to speak,
and he said there were other ways Respondent could have helped the hiring
situation for team leads without affecting the dealers’ tips and, as Respondent
had over 50,000 applicants for jobs, how could there be a problem. To this, Wynn, who had been sitting, suddenly
became “very loud and irate,” stood up, and said “. . . I am the most
powerful man in
Tramel McKenzie
testified that Wynn sat in a chair toward the middle of the conference table[16] and began speaking, saying “. . .
that there is a problem . . . around the casino, the atmosphere
around the casino is no good.” He
identified the problem as being the “tip pool” and the dealers’ complaint that
money had been taken from them by Respondent.
He said he understood that the dealers were very angry, but the there
had been a great difference between what the floor supervisors and the dealers
had been earning. He said this situation
was causing a problem in staffing the casino with floor supervisors. Wynn added that tips were as high as they
were because his name was on the side of the building, and he was the most
powerful man in
Kanie Kastroll testified that Wynn began with a “kind of propaganda spiel” about the controversy surrounding the dealers’ tips pool, stating that Respondent’s decision to give a percentage share to the team leads had to do with the disparity between the floor supervisors’ pay and the tips income earned by the dealers-- “. . . I’m not going to change it” and “I’m not giving you back your tips.” He then invited questions from the dealers. Tom Golly spoke first, asking why Respondent did not pay any increase in wages for the team leads out of its profits and why did the team leads’ pay increase have to come out of the dealers’ tip money? Wynn replied that he did not want to discuss the subject any longer, that he was not going to give their tips back to the dealers, and that, if they did not cease complaining, he could implement a no tipping policy in the casino. According to Kastroll, Golly and Wynn continued to speak back and forth, with Wynn becoming “angry and frustrated” that Golly was continuing to pursue the subject. At one point, Golly asked why Wynn had decided not to pay the team leads out of the record profits, about which Wynn previously had bragged. This caused Wynn to stand up, “. . . and you could see . . . spit flying out of his mouth and a lot of pointing . . . . he started belittling Tom because Tom had all these ideas.” Wynn said “. . . oh, you think you’re so smart. You know everything. You’re so smart. You have all the answers.” Cynthia Fields then spoke, saying the new tip policy would result in her losing $15,000 a year in income. To this, Wynn replied by “mocking” her, saying it wasn’t much money to lose.[20] At one point, according to Kastroll, either with a hand or a fist, Wynn “slammed the table” so that everyone heard it.
Kastroll,
who worked as an in-house organizer for the Transport Workers Union, further
testified Wynn also told the employees “that he understood that we were
starting to talk or the topic of a union was coming up amongst the dealers
. . . . “ He said “that
the union is just trying to take your money for dues. Your lawyers are trying to take your
money. They’re all trying to take your
money. They’re all lying to you. Its all about the money. They want your money.” He added that “. . . [unions are]
only good for . . . leverage. Leverage
or striking. That’s all they’re good
for. Striking is your only leverage.” Further, “. . . he said look at when
I had the Golden Nugget downtown. Those
. . . young valet boys there, there about 40 of them . . .
wanted to strike. They were talking
about strikes. And so he ended up
calling some union representatives” and asked what they were doing to those
“poor boys.” According to Wynn, the
valet parkers “persisted” in striking, and he ended up “firing” them-- he
“. . . terminated about 40 of them.”
Then, “. . . he told us . . . ‘when you dealers
strike, you will be permanently terminated.’”[21] Finally, “I remember he was saying he was the
most powerful man in either Vegas or
Three dealers, who were present, testified on behalf of Respondent. Kieth Gazda testified that Wynn spoke first, saying he wanted to address an issue, which was causing “resentment” amongst the dealers—the tips sharing program which had recently been initiated. Wynn said affording the team leads each a percentage share had been implemented because of Respondent’s difficulty in hiring supervisors, and Arte Nathan said something in support. Then, he said he wanted the employees to speak “openly” and no one would be reprimanded for what he or she said. Tom Golly spoke first and said he didn’t believe Respondent was having problems with hiring supervisors and didn’t believe that was the reason for the change in the tipping program. Wynn replied “. . . that was the reason . . . to correct the disparity in income levels to make the floor position more attractive. Then, Golly and Wynn engaged in a five minute dialogue, which was “not heated” but “maybe the emotion level was elevated some . . . .“ Next, he remembered Cynthia Fields commenting that the new arrangement caused “financial hardships” for the dealers and that she had recently started a family and had purchased a house and would face financial issues. While Gazda could not recall exactly, he believed Wynn said that he was “surprised” that the new policy would lead to such financial problems for someone but that the policy would remain as instituted. According to Gazda, Wynn next raised the subject of unions, mentioned the Teamsters Union, and derogatorily said that “. . . the only reason for unionization is that you get the right to ‘carry a stick.’” Wynn then related what occurred at the Golden Nugget Hotel when the valet parking employees lost their jobs because of a threatened work stoppage. Also, while he could not recall the context, Gazda remembered Wynn saying something about “doing away with tipping” but such was not a “practical” possibility. Finally, while recalling that Wynn did knock over a water bottle when he struck the table with his hand, Gazda could not recall Wynn continually standing up and sitting down, sticking his face close to Fields when addressing her, or uttering the words terminated, permanently terminated, or permanently replaced.
Ljilj Ana Cerovina testified that Wynn began talking, saying that he didn’t want dealers speaking about tips being taken from them; that he did not like the rampant rumors; and that no one could trust anyone else. He said the dealers should be happy because they were earning “good money.” Then, a dealer named Tom spoke and tried to give Wynn “advice” on how he should handle things, “. . . and Steve told him that he was wrong, actually.” Arte Nathan interjected that no one wanted to do the floor supervisor job because it did not pay enough, and Tom replied that the reason no one wanted the job was the great amount of overtime. Then, Wynn and Tom spoke back and forth “a little bit louder” but not yelling at each other. Next, Cynthia Fields said many people with houses and cars had not expected this new tips sharing arrangement and it was “tough” with possibly losing money. Wynn replied that he “. . . was going to look into the bonus program and see if he can do anything about that.”[22] Also, while recalling Wynn speaking about unions and saying “he didn’t like the idea of us unionizing,” Cerovina could not recall him mentioning anything about the Golden Nugget Hotel. She recalled that Wynn did gesture with his hands “maybe a little bit” and, after saying she could not recall him banging a hand down on the table, recalled “he did one time” but it was “not really loud. He was just talking about something . . . . I think it was about union. He was talking about he don’t want us to do that. . . .” Finally, the witness could not recall Wynn saying the word terminate but denied him using the word fire-- “I think I would remember that.”
Thomas Golly testified that Wynn began speaking about the “current situation” with the general topic being “let’s get over it, let’s go beyond it,” and, during the next 25 to 30 minutes, “it evolved from the tip situation to the union and the court case.” Wynn said “. . . the union isn’t going to do anything for you. They can’t do anything for you. No one is going to get a penny. . . . He made a series of statements. Number one, the only leverage a union has is a work stoppage.” Wynn then related the Golden Nugget Hotel story, saying that a “gentleman” approached him and said that the valet parking employees were going to strike, and Wynn told him they have no leverage and a strike would only hurt his people. Later, “[The valet parking employees] went on strike,” and “they were immediately replaced. At that point . . . Mr. Wynn stopped . . . . looked around the room at every dealer counter clockwise . . . . he said if you strike, you’ll be replaced.”[23] Wynn added that, if the dealers organized a union, “. . . you’re not going to get anything. There’s a union across the street.” After Wynn invited comments, Golly spoke first, saying that Wynn operated his hotel and casino “under an archaic value system, one that says the suit must make more than the uniform. That’s the reason you took the tokes.” According to Golly, Wynn claimed that one reason for giving the team leads a share of the dealers’ tips was that he had not been able to hire competent “floor staff because of the pay disparity,” and Golly challenged him, saying their lack of benefits equal to other casinos was the real reason. Then, referring to Wynn’s comment that they would get nothing with a union, a woman to Wynn’s right asked “how do we know unless we try?”[24] According to Golly, at this point, he was not looking at Wynn, and, suddenly, “I hear a loud noise. Bam! I look over. Mr. Wynn’s fist is clinched on the table . . . .” Golly reiterated that the noise “. . . was loud. Anybody who tells you it wasn’t loud is lying. It was not unlike if you’re in a room and something falls and you look towards the sound . . . . It left an indelible on my mind.”[25] Finally, as to Wynn’s act, Golly added, rather than in response to anything, he was certain “[Wynn] was hitting [the table] in reply to the girl’s remark.” Golly next recalled that Cynthia Fields made a comment to Wynn about her property and having to sell a second property because of the loss of income. “And Mr. Wynn made a comment that if $15,000 a year means that much to you, well then I’m sorry . . . .” Golly added that Wynn said more but that he can not recall what the former said. Finally, although he could not place the statement chronologically, Golly recalled Wynn making “. . . a comment that I could put up a sign on the table, no tokes. And I made a comment you wouldn’t do that.” At this point, Wynn asked if Golly was serious, and Golly offered an explanation as to why it was not economically feasible for Wynn to abolish tipping for the dealers.
Besides
the three dealers, Westbrook, Pascal, and Wynn testified on behalf of Respondent
regarding what the latter said during the October 30 meeting. According to Andrew Pascal, who testified he
arrived late, Wynn was speaking about Respondent’s decision to give a
percentage share of the dealers’ tips pool to the team leads and, “for the most
part, he explained the rationale, explained that he understood that
. . . they are upset by it and that they don’t necessarily agree with
it. He explained that he has an
obligation to explain the rationale . . . and that he wasn’t going to
change the program.” At that point,
dealers began making comments. Tom Golly
spoke and said they understood the problem but did not agree with the solution. He described “alternatives,” which, he
believed, accomplished the same purpose.
Golly then mentioned how Wynn had to be concerned about “the overall
performance of the resort” including its stock performance. When he finished, Wynn remarked that Golly
seemed to be speaking “from the position of authority like you know absolutely
everything that is going on related to this issue, and it clearly has an
influence on other people and that can be destructive.”[26] Pascal was able to recall other dealers
making comments, and “. . . they generally shared some of their
stories or their issues. . . . [Wynn] acknowledged them
. . . but . . . he was pretty resolved . . . we
implemented the program for a reason and we are going to see it through.” Pascal also recalled that Wynn discussed the
Golden Nugget Hotel situation during which he “drew the parallel” to the
instant situation. Wynn wanted
“. . . to make sure that the dealers understood, if ultimately that
was their choice, that they were going to walk off or abandon their jobs then
he would be left with no other choice than to replace them.” Wynn said “. . . if you abandon
your jobs, and you choose to strike, then it will leave him with no other
choice but to replace them.” While he
further recalled that Wynn may have remarked that a “no tipping” policy had
been “contemplated, he could not recall if such arose before, during, or after
Wynn discussed the dealers possibly organizing a union. Pascal specifically denied that Wynn
continually stood up, sat down, and stood up while he spoke or that Wynn said
he was the most powerful man in
William Westbrook, who corroborated Fields that, when Wynn moved to sit at the table, he took a chair already occupied by a dealer, who could have been Fields, testified that Wynn began speaking, saying he was there to open up a dialog with the dealers and everyone was free to express his or her opinion with “immunity.” He then acknowledged that some dealers were dissatisfied with the new tips pool arrangements but, notwithstanding how unpopular the changes were, they reflected a business decision and would not be changed. At that point, he became involved in a discussion with Tom Golly, who said he had ideas about a “couple” of alternative ways Wynn might have solved Respondent’s problems. After Golly concluded, Wynn responded, explaining “. . . that there a lot of other decision making . . . that [occurred] that Mr. Golly wasn’t aware of that wouldn’t allow [Golly’s ideas] to take place.”[27] Asked if Wynn, at one point, slammed his fist or hand down on the table, Westbrook replied that “he did not slam his fist down on the table, ever. . . . What he did was put his down like this or he will make a point . . . .” Westbrook recalled that Wynn did reference to a situation at the Golden Nugget Hotel, during which the valet parking employees had voted for union representation, and said “. . . if it were to happen here, just like it happened at the Golden Nugget, if they choose to go on strike, then they will be replaced and it could be some time before positions open up that would allow them to come back to work even if a settlement was reached.” Also, at a later point, Wynn remarked about his dealers’ “dissatisfaction” regarding the “climate” at Respondent’s facility with the tips policy changes and their exploration of union representation. “And he was saying that the union wouldn’t get them what they wanted; the union would not be able to provide them much or anything by leverage . . . should they not get what they wanted in a contract negotiation, that they would have the leverage of a strike . . . standing on the sidewalk . . . and he had a business to run. . . . And if they chose to do that . . . they would have to be replaced . . . on the tables.” Westbrook also recalled Cynthia Fields speaking about being a single mother, about the financial impact of reduced tips, “. . . and that she would have to be selling one of her homes to offset what the impact was to her.” However, he could not recall Wynn’s response “. . . because that didn’t stay with me.”[28] Further, Westbrook, while confirming that Wynn said it was “within his right” to place a “no tipping” sign on each table but that such would not be a good idea, denied that the latter uttered this statement while speaking about a union.[29]
Steven Wynn testified he began by informing the listening dealers that he understood they had come to work for Respondent expecting that tips would be divided in a certain way and that now, as the procedure had been changed, they were “angry” and “frustrated.” Continuing, he stated that, historically, the casino “bosses” had earned more than the dealers but with, the advent of his three “mega-resorts,” the dealers tips had become “astronomically large” to the point they now earned more than the supervisors. He told the dealers that Respondent’s team leads were upset at the disparity in earnings between themselves and the dealers and, as they worked side-by-side with the dealers in serving customers, at their lack of participation in the dealers’ tips pool. In these circumstances, according to Wynn, Respondent believed it was rectifying a bad situation and felt it had made the “right” decision. According to Wynn, he next dealt with the rumors, which had been circulating amongst the dealers. He told them they could be as angry as they wanted, but “nobody is getting fired. I have never been firing anybody except for severe cause. My reputation has been that the hardest place to get fired is . . . at one of my hotels. And that’s been true for forty years here. . . . You could put an army of people in this room. And I said nobody is getting fired. This is a ridiculous rumor” unless “. . . somebody takes this up on the floor and disrupts the business at the table.”[30] Wynn next told the dealers a second ridiculous rumor was that Respondent intended to take away all of their tips. He said that he could have given the team leads and the box people full shares in the tip pool but had not, and “the system that we had adopted was deliberately designed to minimize the impact on the dealers.”
Then, Wynn testified, he discussed a third
rumor-- that a union can change everything.
He said a company is at a disadvantage when confronted by union
organizing because a “union and [its] friends call people at home” and
“intimidate” them during unrecorded conversations; while an employer speaks
“. . . on the record . . . publicly.” He added that it would be false for anyone to
say a union could force Respondent to change a policy, which is a sound
business practice. Rather, “I said the
only thing that a union can do to management is to deprive us of your
employment. That is to say they can call
you off the job in a strike.” Wynn told
the dealers that a strike would be “an outrageous and terrible response” and
“heartbreaking” from his point of view as they would be trading marching on the
sidewalk for earning more in tips than dealers at any other hotel/casino in
According to Wynn, at this point, he solicited questions and comments from the dealers, and “one fella” complained about Respondent’s “shopping” system, saying he did not need a “shopper”[31] telling him how he was doing. Wynn replied, saying what the employee thought was not “persuasive” and everyone was treated the same by the shoppers. Then, pointing to Cynthia Fields sitting at a counsel table, Wynn testified, “this gal” spoke and lectured to him that her income had been impacted to the point “. . . she had to sell one of her three homes. Apparently [she was in the real estate business]. And I thought that was an incredible statement because the . . . program had only been in existence for a few weeks. . . . She was a little teary . . . . Well, I didn’t understand . . . and I thought that was an incredible statement. . . . I said I’m sorry that that’s happened, but it doesn’t make much sense to me.”[32] Finally, Wynn conceded banging his fist on the table (“Yes. . . . that’s the way I speak. I tend to be an emphatic person and a little historical”) and specifically denied saying that once employees picket, they will be automatically terminated (“absolutely not” and “. . . not only did I not say that, why would I when I knew that not to be true?”)[33] or shouting at the employees.
As set forth above, the second consolidated complaint alleges that, during his remarks to the fifteen dealers, with whom he met on October 30, 2006, Steven Wynn, acting on Respondent’s behalf, informed the employees it would be futile for them to select a union, threatened them with diminished wages, threatened them that strikes would be inevitable, threatened them with discharge, threatened them with unspecified reprisals, and disparaged a union as a bargaining representative if they selected a union as their bargaining representative and that, as a result of said acts and conduct, Respondent violated Section 8(a)(1) of the Act. In his post-hearing brief, without specifying to which of the complaint paragraphs they refer and without offering any legal theories or citing any decisions of the Board in support,[34] counsel for the General Counsel merely identified Wynn’s threat of termination if they voted for a union, his threat to implement a no-tipping policy if the dealers voted for a union, and his comment that the only thing a union could do for the dealers would be to call for a strike as the alleged unlawful acts committed by Respondent. Regarding these alleged unfair labor practices, I believe that Wynn’s statements and actions during the meeting must be viewed in the context of his desire to frighten and intimidate the assembled dealers from supporting a perceived nascent union organizing campaign. Thus, both Andrew Pascal and Wynn testified that a reason, underlying Respondent’s decision to hold a series of meetings with its dealers, was its knowledge that the said employees were engaging in discussions about organizing for a union, and, according to Thomas Golly, whose demeanor, while testifying, was that of a veracious witness and whose account of the meeting I shall credit, when he raised and discussed the dealers possible desire for representation by a union, Wynn exhibited “a bad temper,” clearly revealed to the dealers he was “adamant” in his opposition to their representation by a union,[35] and, at one point, obviously demonstrating the intensity of his opposition to a union, banged his fist down hard on the conference table, making a conspicuously “loud” sound in doing so.[36]
In this context, I consider the General Counsel’s allegation that Wynn threatened the dealers with termination if they voted for a union. As to this, I note that this contention is based upon the testimony of Cynthia Fields, Tynisia Boone, Tramel McKenzie, and Kanie Kastroll, each of whom testified to a variant of the alleged unlawful threat-- the dealers would be automatically terminated (Fields and Boone), permanently terminated (Kastroll), or terminated (McKenzie) if they picketed (Fields and Boone), joined a union (Boone), voted in a union (Boone), brought in a union (McKenzie), or engaged in a strike (Kastroll). I further note that, while Wynn, Pascal, and William Westbrook denied that Wynn uttered the alleged warning, none of the dealers, who testified on Respondent’s behalf (Keith Gazda, Ljilj Cerovina, and Thomas Golly), specifically denied the asserted threat.[37] With regard to credibility, while neither Fields nor Boone impressed me as being a particularly honest witness,[38] both were corroborated by Golly, Westbrook, and Wynn regarding aspects of their respective testimony regarding Wynn’s statements during the October 30 meeting.[39] Also, while McKenzie and Kastroll impressed me as being basically truthful witnesses, as both offered dubious testimony regarding Wynn’s comments about the Golden Nugget Hotel’s valet parking employees,[40] I have difficulty accepting the entirety of the testimony of each as to the above meeting. Wynn, who specifically denied the alleged threat and averred that he never would have uttered such a “ridiculous” statement, exhibited a haughty and insolent attitude while testifying, and, as a result, did not impress me with his demeanor. In particular, I note his sardonic and disingenuous testimony that, notwithstanding having admittedly informed the listening dealers that a union’s only leverage is “a strike” and that, if they do strike, he would be “forced” to replace them just as he had previously done at the Golden Nugget to the valet parking employees, he believed the two women, whom, he noticed, were crying, had become “teary” before they entered the meeting room and “. . . I’m sure it wasn’t anything that I said. . . .” Nevertheless, while I am irresolute to credit Wynn’s denial, in view of the incandescently inconsistent testimony of Fields, Boone, McKenzie, and Kastroll on this issue, I am not comfortable crediting, and do not credit, any of them that Wynn used the word “terminate” in discussing his reaction if the dealers were to organize a union or engage in a strike.
Counsel for the General Counsel next asserts that Steven Wynn’s threat to extirpate guest tipping for the casino table games dealers was violative of Section 8(a)(1) of the Act, and there is no dispute that Steven Wynn raised this subject during the October 30 meeting. Thus, Boone, McKenzie, Kastroll, Gazda, Pascal, Golly, and Westbrook recalled Wynn mentioning this, and I rely upon Golly, who recalled Wynn making “. . . a comment that I could put up a sign on the table, no tokes. And I made a comment you wouldn’t do that.” Of course, the issue herein concerns the timing of Wynn’s asserted threat; did he raise the issue while discussing the new tips pool arrangements or while discussing the possibility of union representation for the dealers? As to this, the record evidence is uncertain and contradictory. Thus, while neither Gazda, Golly, Pascal, or Westbrook was able to recall when, during his remarks, Wynn raised the matter and Boone and McKenzie each asserted that Wynn made his alleged threat while discussing the dealers’ possible union organizing efforts, Kastroll recalled Wynn uttering the comment while she and the other dealers questioned and complained to him about having to share their tips with the team leads. Undoubtedly aware of the dubious state of the record, in his post-hearing brief, counsel for the General Counsel enigmatically suggests that Wynn uttered his threat twice-- “in the context of both the dealers’ dissatisfaction with the tip-sharing plan and any ideas they may have had about bringing in a union;” however, I am unable to find anything in the record to support his assertion. In these circumstances, as the record evidence is manifestly uncertain as to the timing of Wynn’s alleged threat, I am unable to conclude that such was violative of Section 8(a)(1) of the Act.
As to
whether, during his remarks on October 30, he unlawfully told the listening
dealers that the only thing a union could do for them is to call a strike,
before astuciously altering his testimony during cross-examination, Wynn
admitted saying that not only could a union never force a company to change a
policy but also the only thing a union could do is “to call you off the job in
a strike.” Further, Golly credibly
quoted Wynn as warning “. . . that the union isn’t going to do
anything for you. They can’t do anything
for you. No one is going to get a penny. . . .
the only leverage a union has is a work stoppage.” As stated above, without offering any legal
argument or case support, counsel for the General Counsel labels Wynn’s
comments unlawful; while the attorneys for Respondent argue that anything Wynn
said to the employees was opinion privileged by Section 8(c) of the Act, which
provision privileges an employer to express any arguments or opinions as long
as said expressions contain neither threats of reprisals or force nor promises
of benefit. Although counsel failed to
offer any rationale, the General Counsel must believe that, by his comment,
Wynn threatened the dealers that supporting a union as their bargaining
representative would be futile. While in
Weldon, Williams & Lick, 348 NLRB
No. 45 at slip. op 4 (2006), the Board held that “an employer violates Section
8(a)(1) by threatening employees that attempts to secure union representation
would be futile [and an] unlawful threat of futility is established when an
employer states or implies that it will ensure its nonunion status by unlawful
means,” the Board has also held that “it is a violation of Section 8(a)(1) of the Act for an employer to
warn employees that there will be strikes . . . if they choose to be
represented by a union.” Gold Kist, Inc., 341 NLRB 1040, 1041
(2004). In Gold Kist, the employer warned employees that a strike was the
union’s “only weapon” to force it to agree to their union’s contract
proposals.
Finally, with regard to the October 30 meeting, besides his above unlawful threat of the futility of union representation and other legal, but derisive, comments about said subject, several witnesses, including Golly and Pascal, recalled that Steven Wynn threatened to replace the dealers if they chose to “strike,” and Wynn himself admitted that he told the employees that, if they engaged in a strike, exactly as what happened to the valet parking employees at the Golden Nugget, such would necessitate “permanent replacement” for them. The attorneys for Respondent are quite correct that an employer does not unlawfully threaten employees with discharge by informing them, in the event of an economic strike, they may be subject to permanent replacement without also fully detailing the protections, which are afforded to economic strikers, enumerated in Laidlaw.[41] Eagle Comtromics, 263 NLRB 515 (1982).[42] Clearly, the scenario, contemplated under Eagle Comtronics, is an economic strike, which is initiated by a labor organization for its members’ gain, and not an unfair labor practice strike, which is undertaken to protest the unlawful acts of the employer. Unifirst Corp., 335 NLRB 707, 707 (2001). Herein, there is no dispute, and Wynn conceded, that he used the word “strike” without identifying the type of strike-- economic or unfair labor practice-- about which he s