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Arnold M. Knightly

Wynn faces dealer appeal

18 May 2007

LAS VEGAS, Nevada -- Two dealers at Wynn Las Vegas are taking their challenge of the resort's new tip-pooling policy to the Nevada Supreme Court.

Attorneys for Daniel Baldonado and Joseph Cesarz delivered a series of briefs to Wynn Resorts Chief Executive Officer Steve Wynn's attorneys and the Supreme Court on Tuesday, arguing the gaming developer violated state law.

"The legislative intent was clear," said Reno-based labor attorney Mark Thierman, who represents the dealers. "It was not intended to be a subsidy for management employees. Tip sharing is not an excuse for tip taking."

The appeal includes a brief by two former state assemblymen who argue that a state law revision in 1971 used in tip-pooling cases has been misinterpreted by the courts.

Former Assemblymen Donald Mello and Jack Schofield claim in the brief that revisions resulting from an Assembly bill they authored were intended to prevent an employer from taking tips from one group of employees and it giving to another.

The appeal arrives the same week that dealers voted 444-149 to ask the Transport Workers Union of America to represent them in contract negotiations with Wynn Las Vegas officials.

The National Labor Relations Board has until next week to certify the election results.

While losing the fight to stop his 700 dealers from forming a union, Wynn has continued to argue that the new policy is on solid legal ground.

"The company feels the decision (with tip-pooling) was correct and so we have no choice but to go forward," said Greg Kamer, a Las Vegas-based labor attorney representing Wynn Las Vegas. "We did everything lawful and we're going to press on with our defense of their challenge."

The case will probably not be heard until after the summer. Both sides still need to file additional briefs.

On Dec. 6, District Court Judge Douglas Herndon dismissed a lawsuit brought by Baldonado and Cesarz after finding during a 70-minute hearing that dealers are not contract employees and that state law allows casinos to change their tip pooling policies.

The appeal reiterates the plaintiffs' arguments made in District Court: that dealers should be paid what they earn, Wynn Las Vegas is violating state law by withholding earned tips, and sharing tips with supervisors is illegal.

Wynn executives added certain casino managers to the casino's tip-sharing pool on Sept. 1 in an attempt to correct a pay disparity between dealers and their supervisors.

Wynn dealers said they were earning $100,000 or more per year, mostly in tips, but the policy change cut their pay as much as 20 percent.

Critics of the new policy argued that the gaming company should have raised managers' pay, not broadened the tip pool.

Proposed legislation in Carson City by Assemblyman Bob Beers, R-Henderson, that would ban the tip-sharing agreement died in committee. An attempt to revive the bill may have died after a hearing in the state Senate was canceled last week.