Wynn Las Vegas, LLC

690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358 NLRB No. 81 Wynn Las Vegas, LLC and David Sackin. Case 28– CA–023070 July 3, 2012 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK On July 26, 2011, Administrative Law Judge John J. McCarrick issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Acting General Counsel filed an answering brief. 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,1 findings,2 and conclusions 1 We agree with the judge that the Respondent is collaterally es- topped from introducing evidence concerning its discipline of employee David Sackin. We note, however, that the judge misstated the doctrine of collateral estoppel as precluding the litigation of issues that “could have been litigated” in a prior proceeding. For collateral estoppel to apply, the issue must have been actually litigated in the prior proceed- ing. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 fn. 5 (1979). Nevertheless, collateral estoppel applies here. The Respondent ar- gues that, even if the discipline it imposed on Sackin was unlawful, it could have lawfully imposed some lesser discipline, thereby justifying Sackin’s layoff. In effect, the Respondent is seeking to litigate a purely speculative set of facts, which we decline to entertain. The fact remains that the Respondent suspended Sackin and litigated the lawfulness of that suspension in Wynn Las Vegas, LLC (Wynn Las Vegas I), 358 NLRB 674 (2012), also issued today. The Respondent may not reliti- gate that issue in this case. Finally, we note that in Wynn Las Vegas I, the judge ordered the Re- spondent to expunge Sackin’s discipline. Although the Respondent filed a general exception to the judge’s remedy, the Respondent did not brief this exception. In such circumstances, the Board disregards an exception in accordance with Sec. 102.46(b)(2) of the Board’s Rules and Regulations. See Holsum de Puerto Rico, Inc., 344 NLRB 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). The Respondent could, in Wynn Las Vegas I, have argued that the expunction remedy was over- broad, given Sackin’s other misconduct, but it did not do so. Accord- ingly, the Respondent cannot now argue that it should have been al- lowed to impose some level of discipline on Sackin, if not the level it actually imposed. Allowing it to make such an argument would render the judge’s remedy meaningless and would not serve the purposes of the Act. 2 In Wynn Las Vegas I, we adopted an administrative law judge’s finding that the Respondent violated Sec. 8(a)(1) of the Act by suspend- ing Sackin on August 28, 2009, and found it unnecessary to pass on the judge’s finding that the discipline violated Sec. 8(a)(3). The instant case concerns the subsequent layoff of Sackin on July 15, 2010. The parties have stipulated that Sackin was selected for layoff solely be- cause of the August 28, 2009 discipline. We therefore adopt the judge’s finding that the layoff violated Sec. 8(a)(1) of the Act, and similarly find it unnecessary to pass on the judge’s finding that the layoff violated Sec. 8(a)(3), as any such finding would not materially affect the remedy. and to adopt the recommended Order as modified.3 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 June 15, 2010, the Respondent violated Section 8(a)(1) of the Act by laying off employee David Sackin because he engaged in protected concerted activity. 4. The above unfair labor practice committed by Re- spondent affects commerce within the meaning of Sec- tion 2(6) and (7) of the Act. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Wynn Las Vegas, LLC, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). “(a) Laying off or otherwise discriminating against employees for engaging in protected concerted activi- ties.” 2. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT lay off or otherwise discriminate against you for engaging in protected concerted activities. 3 We shall amend the judge’s conclusions of law and modify the judge’s recommended Order to conform to our findings herein and to the Board’s standard remedial language, and we shall substitute a new notice to conform to the Order as modified. WYNN LAS VEGAS, LLC 691 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL, within 14 days from the date of the Board’s Order, if not already done, offer David Sackin full rein- statement to his former job, or, if that job no longer ex- ists, to a substantially equivalent position, without preju- dice to his seniority or any other rights or privileges pre- viously enjoyed. WE WILL make David Sackin whole for any loss of earnings and other benefits resulting from the discrimina- tion against him, less any net interim earnings, plus in- terest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful layoff of David Sackin, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the layoff will not be used against him in any way. WYNN LAS VEGAS, LLC Mara-Louise Anzalone, Esq., for the General Counsel. Gregory J. Kamer, Esq. and Bryan J. Cohen, Esq. (Kamer Zucker Abbott), of Las Vegas, Nevada, for the Respondent. David Sackin, pro se. DECISION STATEMENT OF THE CASE JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Las Vegas, Nevada, on March 8, 2011, on the complaint issued on August 31, 2010, by the Regional Director for Region 28. The complaint alleges that Wynn Las Vegas, LLC (Re- spondent) violated Section 8(a)(3) and (1) of the Act by laying off Charging Party David Sackin (Sackin) on June 15, 2010, because he engaged in protected concerted and union activity. In its answer Respondent admitted many of the operative alle- gations of the complaint but denied it had violated the Act. FINDINGS OF FACT On the entire record,1 including the briefs from the General Counsel,2 and Respondent, I make the following findings of fact. I. JURISDICTION Respondent admitted it is a Nevada domestic limited liability company with an office and place of business located in Las Vegas, Nevada, where it is engaged in the operation of a casi- no, hotel, and restaurants. Annually, Respondent in the course 1 On September 30, 2009, counsel for the General Counsel filed a motion to correct the record. Good cause having been shown and no opposition filed, the motion is granted. 2 On October 14, 2009, counsel for the General Counsel filed an er- rata to posthearing brief. As the errata corrected a clerical error and there is no opposition, I accept the errata. of its business operations derived gross revenues in excess of $500,000 and purchased and received at its facility goods val- ued in excess of $50,000 in directly from points outside the State of Nevada. Based upon the above, Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondent admitted and I find that the Transport Workers Union of America, Local 721, AFL–CIO (Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background This case originated in a prior unfair labor practice case heard and decided by ALJ James M. Kennedy. Judge Kennedy issued his decision3 in Wynn Las Vegas, LLC, Case 28–CA– 022818, on December 14, 2010. Judge Kennedy heard this case between May 11 and June 7, 2010, and found, inter alia, that Respondent Wynn Las Vegas, LLC, violated Section 8(a)(3) and (1) of the Act on August 26, 2009, by issuing a warning to and suspending David Sackin because he was a union steward and engaged in protected concerted activity. Respondent has filed exceptions with the Board contesting Judge Kennedy’s findings of fact and conclusions of law in Case 28–CA–022818, finding that the discipline issued on Au- gust 28, 2009, Sackin violated Section 8(a)(3) and (1) of the Act. The parties herein entered into Joint Stipulations of the Parties4 where they agreed that Sackin was chosen for lay off on June 15, 2010, solely because of his August 28, 2009 discipline found to be unlawfully discriminatory by Judge Kennedy. The parties also stipulated that Respondent recalled Sackin to work on No- vember 30, 2010. The sole issue to be decided here is whether Respondent should have the opportunity to relitigate the validity of Sackin’s underlying August 28, 2009 discipline or whether the doctrine of collateral estoppel precludes such litigation. Counsel for the Acting General Counsel argues that the issue of Sackin’s discipline was resolved in the trial before Judge Ken- nedy and relitigation of the issue is barred by the doctrine of collateral estoppel. Respondent contends that it should have been allowed the opportunity herein to present evidence that Sackin would have received some lesser form of discipline on or about August 28, 2009, albeit less severe than the discipline he in fact received.5 Respondent argues that Judge Kennedy found that some level 3 JD(SF)–52–10. 4 Jt. Exh.1. 5 On March 8, 2011, counsel for the Acting General Counsel filed a motion in limine to preclude Respondent from offering any evidence at this hearing regarding whether it would have issued Sackin a lesser level of discipline justifying his layoff. At the hearing, after hearing argument from the parties, I granted counsel for the Acting General Counsel’s motion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692 of discipline for Sackin was appropriate, that only the level of discipline in fact issued was inappropriate and that Judge Ken- nedy left the issue of the severity of Sackin’s discipline open when he found in his decision at page 15, lines 36–37, “In that sense, some admonishment or counseling was appropriate, perhaps at the cost of the attendance points he should have incurred.” Respondent argues further than under Miller Brew- ing Co., 254 NLRB 266, 267 (1981), I should have considered whether a lesser form of punishment for Sackin was appropri- ate. The Analysis Judge Kennedy’s Findings In his decision at page 15, lines 29–32, Judge Kennedy found that Respondent’s August 28, 2009 discipline of Sackin was motivated by its hostility towards his union and other pro- tected concerted activity: I find that the degree of punishment in this case was not sup- ported by the underlying facts and instead the discharge was due to its (Respondent’s) animus against protected conduct- his union stewardship and his willingness to testify in the la- bor commission hearing. At page 16, lines 8–14 of Judge Kennedy’s decision he lists the factors he considered in concluding Respondent harbored animus toward Sackin when it disciplined him on August 28: Both its departure from its policy of progressive discipline and its abrupt, high level of punishment, the second, last and final warning resounds as a warning shot. Respondent’s over weighted conclusion 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 pun- ishment 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 anti-steward motive. Judge Kennedy concluded at page 16, lines 19–22: Based on the totality of the surrounding circumstances, it is evident that Respondent disciplined Sackin to such an ex- treme degree because of its animus arising from his two in- stances of protected conduct, his stewardship and his willing- ness to testify on behalf of his fellow employees at the Labor Commission hearing. As to Respondent’s defense, at page 16, lines 25–27, Judge Kennedy concluded that Respondent 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 sup- portive of the employee cause before the Labor Commission- er. Judge Kennedy’s comments on the degree of discipline that Respondent imposed relate only to Respondent’s motive in issuing discipline. Respondent’s contention that Judge Kenne- dy left open whether a lesser degree of discipline may have been appropriate is not supported by the record. Further, Judge Kennedy’s gratuitous remarks that, “some admonishment or counseling was appropriate,” are dicta as they were not essen- tial to Judge Kennedy’s finding of Respondent’s antiunion animus. Judge Kennedy’s central conclusion is that Respond- ent’s discipline meted out to Sackin was unlawful. A lesser form of discipline was not meted out. Respondent’s argument that some lesser form of discipline would have been justified, is mere speculation. Respondent’s citation to Miller Brewing Co., 254 NLRB 266, 267 (1981), for the proposition that I should have consid- ered a lesser form of punishment for Sackin is inapposite to the facts of this case. The ALJ in Miller Brewing found that more severe discipline issued to union stewards than to rank and file employees violated the Act. There was no need to relitigate the issue of whether any discipline issued to stewards was lawful. The Board agreed with the ALJ that that imposition of more severe discipline on union stewards for participating with other employees in an unlawful walkout violated the Act. The law- fulness of the discipline issued to rank and file employees was not in dispute. The issue decided in Miller Brewing was whether additional discipline imposed because of the steward’s union activity was unlawful. Here, unlike in Miller Brewing, Respondent seeks to relitigate the issue of the lawfulness of Sackin’s discipline. Moreover Respondent’s argument pre- sumes that some lesser form of punishment issued to Sackin would have been lawful. Judge Kennedy rejected that conten- tion when he found Respondent was motivated by anti union and anti protected concerted activity reasons. The issue of the lawfulness of Respondent’s August 28, 2009 discipline of Sackin was fully litigated by the same parties be- fore Judge Kennedy. Judge Kennedy found that Respondent’s discipline of Sackin violated Section 8(a)(1) and (3) of the Act. It is well-established Board law that an administrative law judge may rely on the factual findings in a prior case under the doctrine of collateral estoppel. See Great Lakes Chemical Corp., 300 NLRB 1024, 1025 fn. 3 (1990); Planned Building Services, Inc., 347 NLRB 670, 670 fn. 2 (2006); Stark Electric, Inc., 347 NLRB 518, 518 fn. 1 (1999). Under the collateral estoppel doctrine, in the absence of new- ly-discovered and previously unavailable evidence, a party may not relitigate issues that were or could have been litigated in a prior proceeding. Nursing Center at Vineland, 318 NLRB 901, 903 (1995). These principles apply even where the prior case is still pending before the Board. See Grand Rapids Press of Booth Newspapers, 327 NLRB 393, 394–395 (1998); Detroit Newspaper Agency, 326 NLRB 782 fn. 3 (1998), enf. denied 216 F.3d 109 (D.C. Cir. 2000). Respondent’s opportunity to convince a fact finder that it would have taken disciplinary action against Sackin absent his union or protected conduct has passed. The parties had an ade- quate opportunity to litigate that very issue. As I noted at the hearing in granting counsel for the Acting General Counsel’s motion in limine What counsel is asking me to do [here] is to assess a hypo- thetical situation that didn’t exist––that hasn’t existed. The in- dividual––Mr. Sackin––did not receive some lesser discipline. He was suspended for five days. That’s what I’m dealt with, that’s what Kennedy decided on. I’m basically going to find WYNN LAS VEGAS, LLC 693 ––I’m going to take notice of Judge Kennedy’s decision and I’m going to defer to it. I find that for me to parse out some hypothetical situation based on comparators, is creating some- thing out of whole cloth. That’s not what happened. Could it have happened? Well, maybe it could have, but it didn’t. The man was suspended, he didn’t receive a lesser discipline. And as such, I find I am bound by Kennedy’s decision and I will grant General Counsel’s Motion in Limine to preclude any further evidence on the issue of the discipline that Mr. Sackin received. In the interests of advancing judicial efficiency and avoiding inconsistent results and delays attendant to the Board’s review of Judge Kennedy’s decision, I will rely on the prior conclu- sions Judge Kennedy reached regarding Respondent’s August 28, 2009 discipline of Sackin. Since Sackin was selected for layoff on June 15, 2010, solely because of his August 28, 2009 discipline found to be unlawful- ly discriminatory by Judge Kennedy, I conclude that Sackin’s June 15, 2010 layoff likewise violated Section 8(a)(1) and (3) of the Act as alleged. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist there from and to take certain affirmative action designed to effectuate the policies of the Act. As Respondent discriminato- rily laid off Sackin, it must offer him reinstatement to his pre- vious job or, if it is not available, to a substantially similar job, and make him whole for any loss of earnings and other benefits he may have suffered. Respondent shall take this action with- out prejudice to his seniority or any other rights or privileges he may have enjoyed. Backpay for Sackin, if any, shall be com- puted on a quarterly basis from the date of his layoff to the date Respondent makes a proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). Backpay for Sackin shall be based on the length of his unlawful layoff. Daily compound interest as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010), shall be added to the net backpay amount. Furthermore, Re- spondent shall be required to expunge from its personnel files any reference to Sackin’s illegal layoff. Sterling Sugars, 261 NLRB 472 (1982). The affirmative action shall also require Respondent to post a notice to employees announcing the re- medial steps it will undertake. In addition to the physical post- ing of paper notices, the notices shall be distributed electroni- cally, by email, posting on an intranet or an internet site, or other electronic means, if the Respondent customarily com- municates with its employees by such means. See J. Picini Flooring, 356 NLRB 11, 13 (2010). Based on the above findings of fact, I make the following 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 June 15, 2010, Respondent laid off its employee, Da- vid Sackin, because of his activities as a union steward on be- half 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. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 ORDER The Respondent, Wynn Las Vegas, LLC, Las Vegas, Neva- da, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off employees because they are stewards for the Transportation Workers Union whose duties are to act for the mutual aid and protection of fellow employees, including serv- ing as their representatives during misconduct investigations and assisting employees in legal proceedings aimed at improv- ing working conditions. (b) In any like or related manner interfering with, restraining, 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 effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, if not already done, offer David Sackin full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make David Sackin whole for any loss of earnings, plus interest compounded daily, and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoff of David Sackin, and, within 3 days thereafter, notify him in writing that this has been done and that the layoff will not be used against him in any way. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records, including an electronic copy of the records if stored in electronic form, nec- essary 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 ca- sino in Las Vegas, Nevada, copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by the Regional Director for Region 28 after being signed by Respondent's authorized representative, shall be posted by Re- 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 7 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 694 spondent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In addition to the physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intra- net or an internet site, or other electronic means, if the Re- spondent customarily communicates with its employees by such means. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed the facility involved in these proceedings, Respondent shall dupli- cate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Re- spondent at any time since June 15, 2010. (f) Within 21 days after service by the Region, Respondent shall file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply.