Bellagio, LLC v. National Labor Relations Board
2017 U.S. App. LEXIS 12844
| D.C. Cir. | 2017Background
- Bellagio and The Mirage (MGM Resorts) use sophisticated surveillance, access, and alarm systems to protect high-value casino assets and patrons; surveillance techs design, install, maintain, and reconfigure camera coverage, manage servers, alarm and electronic access systems, and coordinate with Nevada gaming regulators.
- Techs uniquely control the system: only they (and the surveillance director) can add/delete cameras and users, disable recording, extract or delete footage, and program access codes to sensitive areas (cages, count rooms, server/monitor rooms, art gallery).
- Techs run and secure "special operations" (covert investigations of employees), placing or locking cameras, maintaining secrecy, extracting footage, and sometimes cutting off feeds or providing cover stories to others.
- The Union sought certification to represent the techs but also represents non-guard employees; the Board’s Regional Director found techs were not "guards," held elections, and certified the Union; the Board affirmed; casinos refused to bargain and were found to have committed unfair labor practices.
- The D.C. Circuit granted review and held that, on the whole record, techs perform an essential role in enforcing rules to protect property and persons and therefore qualify as "guards" under Section 9(b)(3) of the NLRA, so certification by a union that includes non-guards was invalid.
Issues
| Issue | Union's Argument | Casinos' Argument | Held |
|---|---|---|---|
| Whether failure to state pre-filing recognition request required dismissal of certification petitions | Petitioner’s omission cured at hearing; dismissal unnecessary | "Shall" in reg. requires mandatory compliance and dismissal | Court: omission cured at hearing; dismissal not required (de minimis; no prejudice) |
| Whether surveillance techs are "guards" under 29 U.S.C. § 159(b)(3) (i.e., "employed as a guard to enforce rules to protect property or safety") | Techs are not guards: they do not observe, report, confront, or physically enforce rules; their duties are limited to installation/maintenance | Techs are guards: they perform essential steps of enforcement (control cameras/feeds, access, alarms, conduct covert investigations) creating risk of divided loyalty | Court: Techs are guards; their control over coverage, access, alarms, and role in covert investigations means they "enforce" rules and can be represented only by an all-guard union |
| Whether Board’s contrary precedent and reliance on older cases controlled outcome | Board relied on its long line of cases distinguishing installation/maintenance roles from guard status | Casinos argued modern technology and the casinos’ unique context make the techs materially different from older precedents | Court: Declined to defer where Board ignored unrebutted record showing techs’ essential enforcement role in modern system; distinguished older cases |
| Remedy: Whether Board’s order to compel bargaining should be enforced | Board sought enforcement of its orders finding unfair labor practices | Casinos sought vacatur and review | Court: Vacated Board’s orders and denied enforcement because certification was improper under §9(b)(3) |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (agency interpretation of its own rules entitled to deference)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (substantial-evidence review requires weighing contrary evidence)
- Alabama v. Bozeman, 533 U.S. 146 (ordinary meaning of "shall")
- NLRB v. Superior Cable Corp., 246 F.2d 539 (4th Cir. 1957) (demand-and-refusal established at hearing can cure petition defect)
- Drivers, Chauffeurs, Warehousemen & Helpers v. NLRB, 553 F.2d 1368 (D.C. Cir. 1977) (purpose of §9(b)(3) is to avoid divided loyalty; deference to agency on guard determinations is warranted but limited)
- Local 851, Int’l Bhd. of Teamsters v. NLRB, 732 F.2d 43 (drivers with access/keys were guards)