July 12, 2010 --A controversial tip pooling program instituted by Wynn Resorts Ltd. nearly four years ago does not violate Nevada law, state Labor Commissioner Michael Tanchek wrote in a ruling released Monday.

The opinion dismissed claims filed by several Wynn Las Vegas dealers, who sued the resort soon after a tip pooling program was enacted in August 2006.

Under the policy, table games supervisors were added into the tip pool to share in the tokes earned by dealers. The supervisors were given new positions and titles and higher compensation levels.

"Based on substantial evidence in this case, the Wynn did not retain the tips for its own use nor did it reap a direct benefit due to the increased compensation the (table games supervisors) receive from the tip distribution," Tanchek wrote in the opinion.

The labor commissioner held public hearings on the Wynn tip pooling program between July and October last year. The 18-page decision came after months of deliberation. The policy, first enacted at Wynn Las Vegas, was also instituted at Encore, which opened in December 2008.

"While the Wynn did not necessarily keep the tips themselves, the dealers allege that they did use the tips to generate income to their exclusion," Tancheck wrote. "The dealers argued that this constituted a taking of their tips. The dealers did not present any direct testimony on this issue, but relied on the testimony of two Wynn employees whose testimony was contradictory and inconclusive."

In protest to the new tip pooling program, dealers voted to unionize through the New York-based Transport Workers Union of America in 2008. A collective bargaining agreement, however, has yet to be reached.

Jay Litman, a California-based attorney for the Wynn dealers, said the ruling would be appealed to a Clark County District Court judge.

He said Tanchek didn't address several issues in his ruling, including a claim that Wynn Resorts violated Nevada gaming regulations when it instituted the tip pooling policy. Litman said the job changes for the supervisors would not allow them to issue markers or gambling incentives to customers.

"Obviously, we're disappointed by the ruling, but now we'll be able to address these issues on appeal to the District Court," Litman said. "Some of our arguments were not addressed in the ruling."

A Clark County District Court Judge dismissed the lawsuits in 2007 and the Nevada Supreme Court upheld the decision a year later. Litman said the dismissals were on procedural rules because the employees needed to bring their objections first to the Nevada Labor Commissioner.

After Wynn instituted the tip pooling program, more than 100 dealers filed anonymous complaints with the labor commissioner over the policy. But Tanchek said he couldn't make a formal ruling because names were not associated with the complaints.

A group of Wynn dealers, led by Daniel Baldonado and Joseph Cesarz, filed a class action lawsuit against Wynn Resorts over the tip pooling policy. Another dealer, Meghan Smith, filed an individual claim with the labor commissioner.

The cases were consolidated after the Supreme Court upheld the decision to dismiss the class action lawsuit.

Contact reporter Howard Stutz at [email protected] or 702-477-3871.

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