The house wins again.
A divided federal appellate court ruled yesterday that employees involved in operating video-surveillance equipment in “ultramodern luxury casinos” can’t be in the same union as co-workers they might have to investigate. In Bellagio v. National Labor Relations Board, a panel of the D.C. Circuit Court, by a 2–1 vote, determined the technicians who run the “eye in the sky” surveillance systems at the Bellagio and Mirage casinos in Las Vegas are “guards” within the meaning of the National Labor Relations Act.
The statute prohibits guards from joining co-workers’ unions, based on conflict-of-interest concerns. Guards are those employees whose work is deemed essential to workplace-enforcement actions.
In opinion authored by Judge Karen LeCraft Henderson and joined by Judge Douglas Ginsburg, the court overruled the National Labor Relations Board, which had certified the International Union of Operating Engineers Local 501 (which represents other Bellagio and Mirage employee) as the exclusive collective-bargaining representative for surveillance technicians at the casinos. The majority opinion agreed with the casinos that the surveillance technicians’ work was essential to actions that “protect the casinos’ property and patrons, including enforcement against their fellow employees.”
The court detailed the surveillance technicians’ work in producing, maintaining and observing conduct in the casino through the use of secret video cameras. As recounted by the court, evidence showed the surveillance technicians “maintain comprehensive camera coverage of each resort, including the ever-changing gaming floor; they control access to all sensitive areas of each casino and have access to all areas themselves; they maintain alarm systems for the most valuable property in each casino; and they help spy on fellow employees suspected of misconduct.”
“The camera coverage protects the players’ property and safety,” Henderson wrote. “This commonsense observation applies similarly to the casinos’ property: the existence of the camera coverage discourages dealer dishonesty and encourages dealer accuracy, just as the presence of the alarm system deters robbery.
“The techs are critical to the deterrence because they are critical to the technology.”
The court faulted the NLRB for not adequately considering the casinos’ special characteristics and citing outdated or inapplicable precedent in concluding the surveillance technicians aren’t guards. The board gave too much weight to evidence they didn’t “perform traditional functions” like carrying a gun and making rounds, the court said.
“The casinos’ networks protect high-end jewelry, priceless art, stockpiles of cash and the personal safety of revelrous guests who are not always vigilant regarding their own wellbeing,” the court said. “In that regard, the casinos are nigh sui generis (almost unique).
“The closest analog we can think of is a bank. But even a bank does not have to contend with scores of live transactions every instant in a charged entertainment atmosphere.
“In this unusual setting, all-encompassing surveillance is the paramount protector.”
In dissent, Judge Sri Srinivasan agreed it could be reasonably argued the surveillance technicians weren’t guards, but the NLRB’s opposite conclusion was also reasonable. He would’ve deferred to the board’s expertise in choosing between two viable options.
“Whatever else the techs’ duties entail, their responsibilities undisputedly do not encompass observing, reporting, or restraining infractions of the Casinos’ rules,” Srinivasan wrote. “I would sustain the Board’s conclusion that employees who lack those duties do not ‘enforce rules’ and thus do not qualify as statutory guards.”
(A version of this post appeared earlier today at medium.com.)