Next week, the state labor commissioner will hear and decide whether dealers from the Wynn Las Vegas resort get to keep their tips or have to share them with floor personnel and management. The issue of the tip-sharing policy instituted by Steve Wynn Sept. 1, 2006 is at the heart of that case and was an integral part of a 2007 National Labor Relations Board unfair labor practices case brought against Wynn by dealers Cynthia Fields and Tynisia Boone and the Transportation Workers Union, their collective bargaining agent.

Ultimately, Wynn was found in violation of the National Labor Relations Act by a federal judge. In making his decision, Administrative Law Judge Burton Litvack based his findings on the testimony of four aggrieved dealers – Fields, Boone, Tramel McKenzie, and Kanie Kastroll. For the hotel, three dealers testified – Keith
Gazda, Ljilj Cerovina, and Thomas Golly – while William Westbrook, the hotel’s director of casino operations and Andrew Pascal, president of Wynn Las Vegas, also testified as did Wynn.

All were present at a midday October 30 meeting where Wynn, who was not expected to attend but invited himself at the last minute anyway, discussed new hotel policy and discontent among dealers over the new tip-sharing program. While Litvack was not impressed with any of the dealer’s statements and recollections, he was particularly critical of Wynn, saying, “Wynn... 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...”
 

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...

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 [plaintiff parties]. First, Fields testified that Wynn’s opening speech lasted “approximately” 15 minutes and that he began, saying “ ...I know that everybody here is upset about the tip situation. He said that people are talking about it in the break room and he said it had to stop... It is not going to change. I know several of you have hired attorneys and I have nine attorneys of my own and they all say this is not going to change. I have them all on my side.

And he said he checked with the labor commissioner and he is correct.” Continuing, Wynn said “we all need to become a family  again” and mentioned he had spoken to union organizers in Macau. After he explained to them that [the hotel’s] supervisors were earning less than the dealers, they thought his solution was a great idea. Then, Wynn (At various times while he spoke, Wynn would stand up, sit back down, and stand up again) changed the subject to that of union representation, saying “the only thing a union can do for you is allow you to strike,” and mentioning the valet parking employees at the Golden Nugget Hotel,
who had voted to select representation by a union— “ ...all it did for them was allow them to strike and subsequently they all lost their jobs.”

He added, “...those poor guys were represented by the union and now they all lost their jobs and are still trying to get their jobs back, but they were all permanently replaced.” Wynn next mentioned the dealers at the Frontier Hotel “...and said look what happened to them... They went on a strike and they are still striking.” He added that those dealers’ strike was “definitely prolonged” and they “... didn’t get anything out of it other than being allowed to strike.” Wynn then took questions, and the first employee to speak was Thomas Golly.

Referring to the team leads, “he said that [[they]] should have been handled differently ...that there were many, many people ...applying for the jobs and they could have given [[them]] a raise ...paid from the casino.” He added that this would have made the team leads happy and that what really made them unhappy was the thought of having to work six days a week at the Wynn Hotel. When Golly finished, Wynn said to him, “’don’t speak about thing[s] you know nothing about because you have no idea what you’re talking about,’” and, at this point, he “...slammed his fist on the table and said ‘do not talk about anything that you know nothing about.’”

Wynn added that [the hotel] was not being able to hire floor supervisors off the street and, pointing to Arte Nathan, “...said we are having trouble hiring supervisors, right.” Nathan replied, saying “...yes, quality supervisors.” Golly replied that he owned stock in [the hotel], “so he does have an interest in how the casino does. Next, according to Fields, she spoke, saying that she had left a supervisor job at the MGM Hotel after having accumulated five weeks vacation “and that if I had known ...I was going to come here and I was going to have money taken away ...or 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 [Wynn] 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.’” (According to Fields, Wynn made this asserted threat “leaning over me” so that “...I could feel the spit on my face from his mouth.”

She also recalled that, while Wynn spoke, she had a water bottle on the table in front of her and that, “...as he was talking with his hands, he knocked the bottle of water right into me.” During cross-examination, Fields admitted that, to her, being fired and being permanently replaced meant “the same thing.”) 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... 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.’”(She described Wynn as screaming, gesturing wildly, standing up, sitting down, standing up, sitting down. And his hands were everywhere” to the extent that “he knocked a water bottle off the table.”) 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 [the hotel] could have helped the hiring situation for team leads without affecting the dealers’ tips and, as [the hotel] had over 50,000 applicants for jobs, how could there be a problem. To this, Wynn, who had been sitting, suddenly became “very loud and irate,” stood up, and said “...I am the most powerful man in Nevada. My name is on top of the building. I can do whatever it is that I want to do and I can run my business any way I want to run it. If you guys have a problem with the way I am handling things, you can leave.”

After Golly, Cynthia Fields spoke and “...told [Wynn] that she has to sell one of her houses because of the 20 percent decrease in her tips.” In response, Wynn stood up and started screaming. “He said if you think you have money problems now, if you join [[a]] union, if we picket, we will be automatically terminated. And then he started getting up and down and slamming his hand and fist on the table.” He then repeated he was the most powerful man in Nevada, pointed to Fields’ face, and told her “ ...if you guys vote [a] union in, you will be automatically terminated. And if you think you have money problems now... He said that he could put no tipping on the table.

It was his right to [[do so]]... have us drop the tips and place us on salary and keep the tips for himself.” (Asked to describe what Wynn did while answering Fields, Boone said “she was sitting right next to him... And she made the comment she had to sell one of her houses and that really upset him... He started pointing and screaming and basically spitting in her face.” According to Boone, Wynn had moved so that his face was no more than “a foot” from her face because “they were sitting very close together.”) Then, Golly spoke again and told Wynn that he couldn’t do anything about this because “that’s illegal." Boone believed Golly was referring to Wynn’s comment that he could deny tips to the dealers.

During cross-examination, she said that Wynn said this was “something that he could do if we were to join a union.”) Wynn responded “...that his name was on the building ...and he can do anything he wants to do.” According to Boone, at this point, she had become so scared that she had to leave the room and go to a restroom, (Westbrook corroborated Boone that she left the room at one point.) and, when she returned, Wynn had already finished speaking. Tramel McKenzie testified that Wynn sat in a chair toward the middle of the conference table (McKenzie confirmed that another dealer had been sitting in the chair in which Wynn eventually sat) 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 [the hotel]. He said he understood that the dealers were very angry, but the there had been a great difference between what the floor supervisors and the dealers had been earning. He said this situation was causing a problem in staffing the casino with floor supervisors. Wynn added that tips were as high as they were because his name was on the side of the building, and he was the most powerful man in Nevada. “He said that... it was a business move... and ...we were making too much money and he had to do something about it.”

Then, Tom Golly “...told him that word around town was that you are not paying your supervisors enough money and that you work them too hard.” At this, Wynn became “very upset’” slammed his hand down on the table, asked Golly what he meant, and said the problem was he could not get any supervisors to come and work for him because of the money. Then, Cynthia Fields spoke, saying that, if she had known of the changed tips practice, “ ...‘I wouldn’t have left the MGM to come over here to work to have money taken out of my pocket and lose vacation time.’ ...“Wynn looked at Fields and replied, (McKenzie recalled Wynn pointing at Fields with his finger no more than two or three inches from her face. ) “...You think you have money problems now? I assure you, if you bring in [[a]] union ...you will all be terminated.’”

He added that “...‘[[a union]] will not help you,’” and “...‘if you vote the union in, all 600 of you guys will be replaced.’” Continuing, Wynn first mentioned the valet parking employees at the Golden Nugget Hotel, saying “...they had formed a union and they [[were all fired]]. The union didn’t do anything for them." During cross-examination, McKenzie contradicted herself, agreeing that Wynn said, after the employees had gone on strike, they all had been replaced.”) Then he pointed to the dealers at the Frontier Hotel and said that “...they picketed for years and nothing has happened over there.” Further, Wynn mentioned that he had the right to take away tips and could prohibit them entirely and the tips were really his money because the money was going into drop boxes under the tables. (The witness was certain that Wynn mentioned withholding the tip money “...when he was talking about unions.”)

Finally, Wynn told the employees that they were free to organize for a union but that his mind was made up. He added that the only real leverage a union has is to call a strike and that if a union calls a strike, he has the right to permanently replace those employees. He said that if the 600 dealers struck, he would permanently replace the strikers and that there were plenty of people in Las Vegas who wanted their jobs. Kanie Kastroll testified that Wynn began with a “kind of propaganda spiel” about the controversy surrounding the dealers’ tips pool, stating that [the hotel’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 [the hotel] 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. (Asked about Wynn’s conduct while he spoke to Fields, Kastroll said “he was seated next to her. And he would stand up and then ...sit down and yell. He pounded the table.”

At one point, Wynn was “...leaning forward toward her” until he was “under a foot” from her,”) 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. It’s 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.’” (This remark upset Kastroll because she had been a long-time union member. She added that she was “stunned” by and “in shock” over what Wynn said, and “I couldn’t believe that he had the audacity to say that because I ...had known it was illegal.”

During cross-examination, Kastroll said she understood the meaning of the words “permanently replaced” and equated them to “fired.” However, she insisted that Wynn’s words on October 30 were “permanently terminated.”) Finally, “I remember he was saying he was the most powerful man in either Vegas or Nevada... You don’t mess with me.” At this point, Kastroll interjected that Wynn previously had spoken to the dealers, telling them to make all the money they could and I’ll make all the money with you. We’ll roll it in wheelbarrows... And I told him that the dealers were the most valuable...” employees because of their “interaction” with the guests.

Wynn did not directly answer her comment; rather, he continued saying there existed a “disparity” between the dealers and the supervisors. Three dealers, who were present, testified on behalf of [the hotel]. 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 [the hotel’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 [the hotel] 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.”

(Cerovina, who sat next to Fields, did not believe Wynn leaned into Fields as he spoke.) 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.” [Westbrook and Pascal also testified as did Steve Wynn.]

Steven Wynn testified he began by informing the listening dealers that he understood they had come to work for [the hotel] 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 [the hotel’s] team leads were upset at the disparity in earnings between themselves and the dealers and, as they worked side-byside with the dealers in serving customers, at their lack of participation in the dealers’ tips pool.

In these circumstances, according to Wynn, [the hotel] 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.” (According to Wynn, he meant that “I didn’t want people criticizing the company to the customers,” which
act, he told the dealers, was “inappropriate” behavior.)

Wynn next told the dealers a second ridiculous rumor was that [the hotel] 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 [the hotel] to change a policy, which is a sound business practice. Rather, “I said the only thing that a union can do to management is to deprive us of your employment. That is to say they can call you off the job in a strike.” Wynn told the dealers that a strike would be “an outrageous and terrible response” and “heartbreaking” from his point of view as they would be trading marching on the sidewalk for earning more in tips than dealers at any other hotel/casino in Las Vegas. Moreover, he told the dealers, if they did strike, “...I would be forced to replace and see to it that if dealers weren’t at the table other dealers were at the table.

And that means replacement.” During cross-examination, asked if he told the employees that the only leverage a union has is a strike, Wynn embellished and altered his direct examination testimony, stating “the only leverage that the union has ultimately, if they believe one thing and we believe another, we reach what’s known as a [[good faith impasse]] ...And at the end of that impasse, the Union can walk away ...they can deprive us of your labor. Those were the words I used. That’s how I expressed myself.” He then related to the employees what had occurred at the Golden Nugget Hotel to the striking valet parking employees, and told the dealers “So if they walked off the job, we would be in the same position we were at the Golden Nugget to do permanent replacements.

And that’s a permanent replacement instigated and made necessary by an action of the union in calling out the employees.” Wynn then concluded his remarks, saying the employees’ future and his were tied to [the hotel’s] facility, they were all doing better than dealers at any other casino, and they should all settle down. According to Wynn, at this point, he solicited questions and comments from the dealers, and “one fella” complained about [the hotel’s] “shopping” system, saying he did not need a “shopper” (...[The hotel] utilizes a socalled shopping service to perform quarterly performance evaluations for each its approximately 600 table games dealers.) 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.” (Wynn added that another woman also seemed to be teary.

Asked what he might have said to make the women cry, Wynn said “the reason they were teary is because I made the change in the program. They came in to the room teary in my view... I’m certain it wasn’t anything that I said...” Wynn was unable to recall saying to Fields that, if $15,000 is an issue for you, you have bigger problems, and noted that her comment was “inherently unbelievable” as the new policy on tips had been in effect for just a month.)

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" sic]) 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?”) (Answering a question from me, Wynn said he was well aware of the legal distinction between firing and permanently replacing a striking employee. “Of course, I know that, your honor, and that’s why I would never make such a ridiculous statement.”) or shouting at the employees.                   [up]