United States Court of Appeals, District of Columbia Circuit
March 7, 2017
Petitions for Review and Cross-Applications for Enforcement
of Orders of the National Labor Relations Board
T. Trimmer argued the cause for the petitioners. Gary C. Moss
was with him on the briefs.
Casserly, Attorney, National Labor Relations Board, argued
the cause for the respondent. Richard F. Griffin, Jr.,
General Counsel, Jennifer Abruzzo, Deputy General Counsel,
John H. Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, Usha Dheenan, Supervisory
Attorney, and Marni Von Wilpert, Attorney, were with him on
Before: Henderson and Srinivasan, Circuit Judges, and
Ginsburg, Senior Circuit Judge.
LECRAFT HENDERSON, CIRCUIT JUDGE
Vegas, everybody's gotta watch everybody else. Since the
players are looking to beat the casino, the dealers are
watching the players. The boxmen are watching the dealers.
The floormen are watching the boxmen. The pit bosses are
watching the floormen. The shift bosses are watching the pit
bosses. The casino manager is watching the shift bosses.
I'm watching the casino manager. And the eye in the sky
is watching us all."
"Ace" Rothstein, Casino (Universal Pictures 1995).
they are luxury casino resorts, petitioners Bellagio and The
Mirage (collectively, casinos) have extraordinary security
needs. Each has a high-end jeweler. Bellagio boasts an art
gallery that has displayed Fabergé eggs and the works
of Picasso. Both casinos house an array of slot machines,
gaming tables, count rooms and cages containing vast amounts
of cash and cash-equivalent gaming chips. To protect all of
that valuable property-not to mention the property and
physical safety of guests who hope to win big or have a good
time trying-each of the casinos relies on a sophisticated
network of surveillance cameras, locks, alarms and computers.
The equipment is essential for deterring, detecting and
recording wrongdoing, including misdeeds at the hands of the
casinos' own employees. And when those employees are
suspected of wrongdoing, the casinos use hidden cameras to
conduct targeted investigations.
decide whether the surveillance technicians (techs) who
control the casinos' surveillance, access and alarm
systems and help to investigate errant employees are
"guards" under section 9(b)(3) of the National
Labor Relations Act (Act), 29 U.S.C. § 159(b)(3).
Designed to avert employee conflicts of interest, section
9(b)(3) precludes the National Labor Relations Board (Board)
from certifying a union to represent "guards" who
"enforce, " against colleagues and other persons,
"rules to protect property of the employer or to protect
the safety of persons on the employer's premises[.]"
Id. The Board's Regional Director found that the
techs do not enforce such rules and so are not guards.
Thereafter, the Board certified the International Union of
Operating Engineers Local 501 (Union)-which represents
several non-guard employees of the casinos-as the exclusive
collective-bargaining representative for a unit of techs at
each casino. The casinos refused to bargain with the Union.
The Board concluded that the casinos thereby violated section
8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1), (5).
two materially identical decisions, it ordered each casino to
recognize and bargain with the Union.
casinos petition for review of the Board's orders. The
Board seeks enforcement. We grant the casinos' petitions,
deny the Board's cross-applications for enforcement and
vacate the Board's decisions and orders, which are
contrary to the record evidence considered as a whole. 29
U.S.C. § 160(e), (f). On our view of the record, the
techs' day-to-day duties-sensitive ones peculiar to the
modern gaming industry-call for them to enforce against
coworkers and others the rules that protect the casinos'
property and guests. Accordingly, under section 9(b)(3), the
techs are guards who can be represented only by an all-guard
status is a "factual question" tied to the
particulars of each case. Burns Int'l Sec.
Servs., 278 NLRB 565, 569 (1986). Whether specific
employees are guards "can be answered only by carefully
examining their duties." Id. We therefore
discuss the techs' duties in detail, drawing our
descriptions from the testimony that casino personnel gave
during representation hearings conducted by a Board hearing
officer. We then summarize the Board proceedings.
Techs' Duties In Context
Resorts International owns and operates several casino
resorts in Las Vegas, Nevada, including petitioners Bellagio
and The Mirage. For the most part we do not differentiate
between the two casinos because their practices, as relevant
to this case, are all but identical.
Surveillance and security
the two casinos has a surveillance department and a security
department. As required by Nevada law-which provides that a
licensed casino must have a "surveillance system . . .
to assist the licensee and the state in safeguarding the
licensee's assets [and] in deterring, detecting and
prosecuting criminal acts, " Nev. Gaming Reg.
5.160(2)-each casino's surveillance department uses a
network of high-tech cameras to oversee slot machines, gaming
tables, count rooms and cashier cages. The cameras transmit
live footage to a monitor room, where two to four
surveillance operators per shift watch the footage in real
time for suspicious activity, and to a server room, where the
footage is stored on a "really fancy"
"s[o]uped-up" computer system for future use.
Mirage Tr. 54. Stored footage is critical because hundreds of
cameras (about 1, 100 at Bellagio and 700 at The Mirage)
canvass the gaming floor; the few on-duty operators cannot
see everything as it happens.
the surveillance department's job is to protect the
casino's property and guests "according to policy
and procedure, " especially by ensuring that dealers and
players do not cheat the games. Mirage Tr. 32. The security
department has the same job but with an additional focus on
non-gaming areas such as the jewelers and art gallery, retail
and recreational areas, hotel towers, parking garages and
employee-only locations. In other words, security officers
patrol the entire resort for potential threats to the
"security of the guests, the employees and the property
itself." Id. at 172. A second camera system,
not subject to gaming regulations, covers the non-gaming
areas. The security officers monitor non-gaming video feeds
in their own monitor room. The officers on patrol respond to
reports from that room and from the surveillance
department's monitor room. In the event of cheating or a
safety threat, the officers take appropriate action such as
restraining a patron or escorting him off the property.
techs work with both the surveillance and security
departments and have wide-ranging duties. They are charged
with designing, installing and maintaining the surveillance
department's gaming-floor camera system in a manner that
complies with Nevada gaming regulations. Maintenance does not
mean merely fixing broken equipment. The gaming-floor setup
is often in flux. On the frequent occasions when slot
machines and table games are moved, the techs must adjust the
camera coverage so that it still captures all of the legally
required information, including the identity of dealers and
players, card ranks and suits, bets, payouts and the like. By
law, the coverage must be adequate to prevent cheating. Thus,
the techs are in frequent and direct contact with both the
surveillance monitor room and Nevada's Gaming Control
Board, proposing coverage, taking pictures, making
submissions on deadline and obtaining the necessary
techs also oversee the server room and are solely responsible
for the elaborate computer system that manages
"[b]asically every aspect of . . . digital surveillance,
" including not only the surveillance department's
cameras but the security department's as well. Bellagio
Tr. 58. No one except the techs and the surveillance director
work on that computer system or on the cameras and related
equipment maintained throughout the casino. And because the
techs and the surveillance director are "the keepers of
the system, " id. at 101, only they can
unilaterally turn video feeds on and off; add and delete
cameras and users; restrict a user's access to particular
views and footage; stop cameras from recording; and delete
footage from the server. The surveillance operators and
security officers have no such authority. In practical terms,
then, a tech can significantly affect what an operator or
officer sees on video at any given moment.
surveillance operators and security officers rely on and
communicate daily with the techs. The operators and officers
report any problem with coverage or equipment so that the
techs can correct it. The techs train the operators and
officers on how to use the computers, change camera views and
archive video files. The techs also help the operators and
officers extract footage from the server for evidentiary use.
And if tampering with a camera is suspected, the techs, not
the operators or officers, are the ones who
the techs' duties reach well beyond everyday camera
coverage. The techs maintain each casino's electronic
access system. The access system consists of code-activated
magnetic locks that control access to "sensitive
area[s]" like the server room, the monitor rooms, the
art gallery, executive offices, count rooms and the main
casino cage - the last of which is subject to especially
restrictive controls because it is "the hub of all
gaming funds" and is much "like [a] bank" in
the amount of money it houses. Mirage Tr. 58; Bellagio Tr.
89, 93. Only the techs and the surveillance director have
electronic control over the access system. Accordingly, and
although they act at the direction of human resources and
other supervisory personnel, only the techs and the
surveillance director can program the codes that limit each
employee's access to specific locations within the
casino. The techs themselves have full access to all areas
because they must tend to cameras and equipment "almost
everywhere." Bellagio Tr. 145.
the access system, the techs install and maintain
computerized alarm systems for jewelry, art displays, count
rooms and cages. No other employees do such work. The techs
have the ability to arm and disarm the alarms. And if a
miscreant defeats an alarm, the techs investigate how he did
and perhaps most importantly for our purpose, techs often
participate in targeted investigations of fellow employees
suspected of wrongdoing. In the typical investigation-known
as an "integrity check, " a "special
operation" or simply a "special, "
Bellagio Tr. 105, 177, 183-the tech either installs a
purpose-built covert camera somewhere in the target
employee's work area or "lock[s]" an existing
camera onto the area without the employee's knowledge.
Mirage Tr. 110-11. Special operations are conducted, on
average, about once or twice per month. Because the tech has
to devise coverage that will capture the suspected
misconduct, he is usually given "[s]pecifics" like
the "nature" of the misconduct and "what kind
of employee" is suspected of it. Id. at 105-06;
see id. at 164, 190, 195 (tech typically knows why
he is setting up coverage in specific area); but see
id. at 106 (tech typically is not given target
a tech's role in a special operation is limited to
ensuring proper coverage and retrieving footage afterward,
his participation is essential: no other employees devise and
install secret cameras. Also, the surveillance and security
personnel conducting the investigation count on the tech to
coordinate with them, especially to maintain secrecy. Just as
"what happens in Vegas stays in Vegas, " see
History of Las Vegas, Las Vegas Convention and Visitors
(noting tagline coined in 2003), the casinos have a
"policy" that "whatever happens in
surveillance doesn't leave, " Bellagio Tr. 139-40.
During a special operation, a tech is not to disclose its
existence to personnel who do not need to know about it.
Indeed, to ensure that the operation is not compromised, the