Photo: Diego M. Radzinschi/NLJ
Judge Karen LeCraft Henderson started her ruling with the quote from Sam “Ace” Rothstein in the movie “Casino.” During the argument of the case in February, Henderson asked about another casino-related movie, questioning whether technicians would have to ability to pull off a heist a la “Ocean’s Eleven.”
“It does not require a screenwriter’s imagination to appreciate the risks of sabotage: the record is replete with testimony about how a dishonest tech might realistically abuse his position at the expense of his employer,” Henderson wrote Tuesday.
The Bellagio and Mirage—two of the Las Vegas strip’s largest casinos—asked the court to reverse the NLRB’s decision to grant surveillance technicians the right to join an existing union with other non-guard employees.
The technicians, represented by the International Union of Operating Engineers 501, AFL-CIO, claimed in a complaint to the board that the Bellagio refused their right to bargain.
At the crux of the case was whether the surveillance technicians, who have special skills to install cameras in often secret places on casino property to survey both patrons and employees, should fall under an exception to the National Labor Relations Act that considers certain employees “confidential.”
These employees—a key example is a security guard—assist management with implementing policies or handle confidential information that could create a conflict of interest in labor disputes. The nature of their assignment would have the potential to divide loyalties if a union member were asked to spy on another or have access to management information.
The majority of the three-judge panel of the D.C. Circuit agreed with the casinos’ lawyer, Paul Trimmer of Jackson Lewis, that these workers are guards and that they play “an essential role in enforcement.”
“The techs 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 opinion states.
NLRB attorney David Casserly defended the board’s decision, arguing that for an employee to be considered a guard, under the National Labor Relations Act, he must enforce rules. Technicians, he said, simply install cameras. He told the judges that considering this type of work a confidential employee or guard would immensely broaden the definition.
Henderson was not convinced. “In short, camera coverage protects the players’ property and safety. 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,” she wrote. “The techs are critical to the deterrence because they are critical to the technology. The techs, not the surveillance operators and security officers, investigate any tampering with the cameras—which are themselves casino property.”
She also noted that the technicians may be asked to covertly install cameras and spy on other employees.
Judge Sri Srinivasan dissented from the majority, in part. He argued that the technicians do not “enforce rules,” as stipulated by the guard definition in the National Labor Relations Act.
“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.”
