Seyfarth Synopsis: The D.C. Circuit Court of Appeals applied a broad definition of who constitutes a statutory “guard” under the NLRA, finding that security technicians at two Las Vegas casinos were guards who could not be represented by a non-guard union.

Hotels and other employers may now have an extra layer of security against union intrusions into the workplace: security technicians.

In Bellagio v. NLRB, the DC Circuit Court of Appeals recently held that security technicians at two Las Vegas casinos are “guards” who performed “an essential step in the procedure for the enforcement of the employer’s rules” and could not be represented by a non-guard union under the National Labor Relations Act.

The technicians at each casino were responsible for maintaining comprehensive security camera coverage, controlling access to all sensitive areas, maintaining alarm systems, and assisting with “special operations” to help spy on fellow employees suspected of misconduct. The techs did not, however, carry weapons or handcuffs, patrol the resorts, restrain or physically confront guests or swindlers, or monitor security footage for wrongdoing.

The Board found that the techs did not have sufficient authority to “enforce” company rules required to be “guards” under the Act, stating their duties involve merely installing and maintaining security and surveillance cameras and equipment.

Reversing the Board, the Court found that the Board took “an overly narrow view” of the NLRA’s guard provision. The Court noted that the Board relied too heavily on evidence that techs didn’t “perform traditional functions” like carrying a gun and making rounds, gave too little weight to the critical role the techs play in deterring criminal activity at the casinos, failed to account for security needs of highly-sophisticated casinos that house priceless valuables and protect the safety of “revelrous guests,” and ignored the “crucial fact” that the techs help enforce rules against their coworkers, particularly during special operations.

Employer Takeaway

The ruling could significantly impact the organizing activities of non-guard unions seeking to represent security techs or similar workers at casinos, banks, or other industries utilizing cybersecurity and other modern security measures. Employers should analyze whether any security or surveillance technicians or specialists perform “an essential step” in the procedure for enforcing rules and be prepared to challenge representation petitions by traditionally non-guard unions seeking to include such employees in the bargaining unit.