Wynn Las Vegas, LLC

National Labor Relations Board - Board Decisions

Mar 19, 2019

367 NLRB No. 107 (N.L.R.B. 2019)

367 NLRB No. 107
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Wynn Las Vegas, LLC and Nfinite Entertainment, Inc.
and Michael Greenfield. Cases 28−CA−210838
and 28−CA−212152
March 19, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
The General Counsel seeks default judgment against
one of the Respondents, Nfinite Entertainment, Inc. (Re-
spondent Nfinite), on the ground that it failed to file an
answer to the complaint. Upon a charge and an amended
charge filed by Michael Greenfield (Greenfield) in Case
28−CA−212152 against Respondent Nfinite, and upon a
charge filed by Greenfield in Case 28−CA−210838
against Respondent Wynn Las Vegas (Respondent
Wynn), the General Counsel issued a consolidated com-
plaint on February 20, 2018,1 alleging that the Respond-
ents violated Section 8(a)(1) of the Act. On May 25, the
General Counsel issued an amendment to the consolidated
complaint. Respondent Wynn filed an answer, but Re-
spondent Nfinite failed to do so.
On October 9, the General Counsel filed a Motion for
Default Judgment against Respondent Nfinite.2 Thereaf-
ter, on October 12, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion for default judgment should not be
granted. Respondent Wynn and Respondent Nfinite each
filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is shown.
The consolidated complaint stated that unless an answer
was received by March 6, 2018, the Board may find, pur-
suant to a Motion for Default Judgment, that the allega-
tions in the complaint are true. Additionally, the amend-
ment to the consolidated complaint stated that unless an

1 All dates are in 2018 unless noted otherwise.
2 The motion specifically requests default judgment only with respect
to complaint allegations as they relate to Respondent Nfinite. The mo-
tion does not seek default judgment with respect to any allegations as
they relate to Respondent Wynn. Accordingly, the findings of fact made
and conclusions of law reached herein may not be used in any manner
answer was received by June 8, the Board may find, pur-
suant to a motion for default judgment, that the allegations
in the amendment to the complaint are true. Further, the
General Counsel’s motion discloses that the Region, by
letter dated June 22, advised Respondent Nfinite that un-
less its answer was received by June 29, a motion for de-
fault judgment would be filed against it. Respondent Nfi-
nite neither filed an answer nor requested an extension of
time to do so by June 29. It submitted an answer on Oc-
tober 26 together with its response to the Notice to Show
Cause.
Section 102.2(d) of the Board’s Rules and Regulations
provides that answers to a complaint “may be filed within
a reasonable time after the time prescribed by these Rules
only upon good cause shown based on excusable neglect
and when no undue prejudice would result.” Here, Re-
spondent Nfinite did not file an answer until October 26,
17 weeks after the June 29 deadline set forth in the Re-
gion’s June 22 letter.
In its response to the Notice to Show Cause, Respondent
Nfinite states that it did not retain counsel until June 11,
and it further states that at some time after July 23, it con-
tacted the Region and promised that its answer was forth-
coming. We find these statements unavailing. “[M]erely
being unrepresented by counsel does not establish a good-
cause explanation for failing to file a timely answer.”
Sage Professional Painting Co., 338 NLRB 1068, 1068
(2003). Additionally, Respondent Nfinite did not request
an extension of time to file an answer. It is well estab-
lished that the “failure to promptly request an extension of
time to file an answer is a factor demonstrating lack of
good cause.” Day & Zimmerman Services, 325 NLRB
1046, 1047 (1998); see also V. Garofalo Carting, 362
NLRB No. 170, slip op. at 1 (2015); Dong-A Daily North
America, 332 NLRB 15, 16 (2000). Moreover, Respond-
ent Nfinite does not explain its failure to file an answer
promptly after its purported contact with the Region some-
time after July 23.3 Accordingly, we find that Respondent
Nfinite has not demonstrated good cause for failing to file
a timely answer. Therefore, in the absence of good cause,
and as the Respondent was represented by counsel prior to
the filing of the General Counsel’s motion, the Respond-
ent’s untimely answer cannot defeat default judgment and
is therefore rejected. See, e.g., Electra-Cal Contractors,
339 NLRB 370, 371 (2003).
that would prejudice Respondent Wynn in its defense in Case 29-CA-
210838. See generally Brisben Development, Inc., 344 NLRB 400, 400
fn. 1 (2005).
3 Although Respondent Nfinite notes in its response that the hearing
in this case was continued from September 11 until November 14, it does
not state that the continuance impacted its failure to file an answer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Having found that Respondent Nfinite failed to estab-
lish good cause, we grant the General Counsel’s motion
for default judgment on certain allegations as they relate
to Respondent Nfinite. Specifically, we grant default
judgment against Respondent Nfinite as to paragraphs
1(b) and (c), alleging the filing of the charges against Re-
spondent Nfinite; paragraphs 2(e), (f), and (g), alleging
that Respondent Nfinite is an employer engaged in com-
merce; paragraphs 3(b) and (c), alleging that Jason Debor-
ski is Respondent Nfinite’s CEO and supervisor and that
Amy Lee Myers is Respondent Nfinite’s Labor Assistant
and agent; paragraph 4(a), alleging that Respondent Nfi-
nite’s employee Michael Greenfield engaged in protected
concerted activities with other employees of Respondent
Nfinite; paragraph 4(d), alleging that Respondent Nfinite,
by Jason Deborski, threatened to cease dispatching em-
ployees because they engaged in protected concerted ac-
tivities; paragraphs 4(f), (h), and (j), alleging that Re-
spondent Nfinite temporarily and later permanently
ceased dispatching Greenfield to Respondent Wynn’s fa-
cility because he engaged in protected concerted activities
and to discourage employees from engaging in concerted
activities; and paragraphs 5 and 6 insofar as they allege
that Respondent Nfinite’s conduct violated Section 8(a)(1)
of the Act.
However, we deny default judgment with respect to the
allegations in paragraph 4(l), set forth in the amendment
to the consolidated complaint. Paragraph 4(l) alleges that
Respondent Nfinite failed to dispatch Greenfield because
he violated a rule or directive described in paragraph 4(b)
of the consolidated complaint. Paragraph 4(b) alleges that
Respondent Wynn prohibited its employees from talking
about a mass shooting that occurred at a nearby hotel and
casino while permitting them to talk about other nonwork
subjects. Respondent Wynn’s answer to the complaint de-
nied complaint paragraph 4(b), and the General Counsel
does not seek default judgment on paragraph 4(b). Be-
cause the allegations in paragraph 4(l) implicate the alle-
gations in paragraph 4(b), we find that default judgment is
not warranted as to paragraph 4(l), and we shall remand
this allegation to the Regional Director for further appro-
priate action.
Accordingly, in the absence of good cause shown for
Respondent Nfinite’s failure to file a timely answer to the
complaint and amendment to the complaint, we deem the
allegations in paragraphs 1(b), 1(c), 2(e), 2(f), 2(g), 3(b),
3(c), 4(d), 4(f), 4(h), 4(j), 5, and 6 to be admitted as true
as they relate to Respondent Nfinite, and we grant the
General Counsel’s Motion for Default Judgment against

4 All dates hereafter are in 2017 unless noted otherwise.
Respondent Nfinite as to these paragraphs of the com-
plaint.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Nfinite has been a Ne-
vada corporation with an office and place of business in
Las Vegas, Nevada, and has been engaged in providing
audio-visual services in the entertainment industry to cli-
ents, including Respondent Wynn. During the 12-month
period ending December 26, 2017,4 Respondent Nfinite,
in conducting its operations described above, purchased
and received at its Las Vegas, Nevada facility goods val-
ued in excess of $50,000 directly from points outside the
State of Nevada.
We find that Respondent Nfinite is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Jason Deborski held the position
of Respondent Nfinite’s chief executive officer and has
been a supervisor of Respondent Nfinite within the mean-
ing of Section 2(11) of the Act and an agent of Respondent
Nfinite within the meaning of Section 2(13) of the Act. In
addition, at all material times, Amy Lee Myers held the
position of Respondent Nfinite’s Labor Assistant and has
been an agent of Respondent Nfinite within the meaning
of Section 2(13) of the Act.
From about October 1 through about October 28, Re-
spondent Nfinite’s employee Michael Greenfield engaged
in concerted activities with other employees for the pur-
pose of mutual aid and protection by raising concerns with
other employees and through the news media and social
media about terms and conditions of employment, includ-
ing a mass shooting that occurred while he was working
for another employer and retaliation against him for his
communication through the news media.
About October 26, Respondent Nfinite, by Jason
Deborski, via text message, threatened to cease dispatch-
ing its employees to jobs because they engaged in pro-
tected concerted activities.
Also about October 26, Respondent Nfinite temporarily
ceased dispatching Greenfield to Respondent Wynn’s fa-
cility.
About October 28, Respondent Nfinite permanently
ceased dispatching Greenfield to Respondent Wynn’s fa-
cility.
Respondent Nfinite engaged in the conduct described
above because Greenfield engaged in protected concerted
WYNN LAS VEGAS, LLC 3
activities and to discourage employees from engaging in
these or other concerted activities.
CONCLUSION OF LAW
By threatening to cease dispatching employees to jobs
because they engaged in protected concerted activities and
by temporarily and later permanently ceasing to dispatch
Greenfield to Respondent Wynn’s facility because he en-
gaged in protected concerted activities and to discourage
employees from engaging in these or other concerted ac-
tivities, Respondent Nfinite has been interfering with, re-
straining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) of the Act. Respondent Nfinite’s unfair
labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent Nfinite has engaged in
certain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that Respondent Nfinite violated Section 8(a)(1) by
failing to dispatch Greenfield because of his protected
concerted activities, we shall order Respondent Nfinite to
offer to resume dispatching him to his former job5 or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or any other rights
or privileges previously enjoyed, and to make him whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against him.6 Backpay shall
be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). In accordance with our decision in King
Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent
part 859 F.3d 23 (D.C. Cir. 2017), we shall also order Re-
spondent Nfinite to compensate Greenfield for his search-
for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-
for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest

5 Because the allegations against Respondent Wynn are not the sub-
ject of this motion for default judgment, we leave to compliance the de-
termination -- upon the conclusion of the proceedings against Respond-
ent Wynn in Case 28−CA−210838 -- of the specifics of any obligation
to resume dispatching Greenfield to his former position at Respondent
Wynn.
6 Because none of the findings herein are binding on Respondent
Wynn, we do not pass on any issues of joint and several liability for
Greenfield’s backpay, search-for-work, or other make-whole relief, as
any such determination is dependent on the outcome of the allegations
against Respondent Wynn. See Local 225, United Security Guards of
at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.7
In addition, we shall order Respondent Nfinite to com-
pensate Greenfield for any adverse tax consequences of
receiving a lump-sum backpay award and to file a report
with the Regional Director for Region 28 allocating back-
pay to the appropriate calendar year(s). AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016). Respondent Nfi-
nite shall also be required to remove from its files any and
all references to the unlawful refusal to dispatch Green-
field and to notify him in writing that this has been done
and that the unlawful conduct will not be used against him
in any way.
ORDER
Respondent Nfinite Entertainment, Inc., Las Vegas, Ne-
vada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to cease dispatching employees to jobs
because they engaged in protected concerted activities.
(b) Failing to dispatch or otherwise discriminating
against employees because of their protected concerted
activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to
resume dispatching Michael Greenfield 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 Michael Greenfield whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him in the manner set forth in the rem-
edy section of this decision.
(c) Compensate Michael Greenfield for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 28,
within 21 days of the date the amount of backpay is fixed,
America (Planned Building Services, Inc.), 345 NLRB No. 18, slip op.
at 1 fn. 4 (2005), and cases cited therein.
7 The General Counsel seeks a make-whole remedy that includes rea-
sonable consequential damages incurred as a result of Respondent Nfi-
nite’s unfair labor practices. The relief sought would require a change in
Board law. Having duly considered the matter, we are not prepared at
this time to deviate from our current remedial practice. Accordingly, we
decline to order this relief at this time. See, e.g., Omnisource Corp., 366
NLRB No. 23, slip op. at 1 fn. 2 (2018); Laborers' International Union
of North America, Local Union No. 91 (Council of Utility Contractors),
365 NLRB No. 28, slip op. at 1 fn. 2 (2017).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful failure to dis-
patch Greenfield, and within 3 days thereafter, notify him
in writing that this has been done and that the unlawful
actions will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
October 26, 2017.
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 28 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the General Counsel’s mo-
tion for default judgment is denied with respect to the al-
legations concerning Respondent Nfinite in paragraph 4(l)
of the amendment to the consolidated complaint, and that
this allegation is remanded to the Regional Director for
Region 28 for further appropriate action.

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
IT IS FURTHER ORDERED that all complaint allegations as
they relate to Respondent Wynn are remanded to the Re-
gional Director for Region 28 for further appropriate ac-
tion.
Dated, Washington, D.C. March 19, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated 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 ac-
tivities.
WE WILL NOT threaten to cease dispatching you to jobs
because you engaged in protected concerted activities.
WE WILL NOT fail to dispatch or otherwise discriminate
against you because of your protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer to resume dispatching Michael Greenfield to
his former job or, if that job no longer exists, to a
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
WYNN LAS VEGAS, LLC 5
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Michael Greenfield whole for any loss
of earnings and other benefits resulting from our unlawful
refusal to dispatch him, less any net interim earnings, plus
interest, and WE WILL also make Michael Greenfield
whole for reasonable search-for-work and interim em-
ployment expenses, plus interest.
WE WILL compensate Michael Greenfield for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Direc-
tor for Region 28, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
failure to dispatch Greenfield, and WE WILL within 3 days
thereafter, notify him in writing that this has been done
and that our unlawful actions will not be used against him
in any way.
NFINITE ENTERTAINMENT, INC.
The Board’s decision can be found at
https://www.nlrb.gov/case/28-CA-212152 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.