Casino surveillance technicians may have unique power to work covertly with managers to spy on other employees, or even pull off sabotage a la “Ocean's Eleven,” and therefore should not be able to unionize with other workers, attorneys for major Las Vegas casinos argued recently in the U.S. Court of Appeals for the D.C. Circuit.

The Bellagio and Mirage—two of the Las Vegas strip's largest casinos—are asking the court to reverse a National Labor Relations Board decision to grant surveillance technicians the right to join an existing union with other 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 is 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.

A D.C. Circuit panel is now considering the case, which could test the parameters of such a classification if the court overturns the labor board's decision and rules in favor of the casinos.

The casinos argued that the dispute presented a case of divided loyalties. A surveillance technician, for instance, could refuse to spy on a fellow employee or union member to enforce a rule.

Bellagio attorney Paul Trimmer of Jackson Lewis told the court during the hearing in February that these technicians should be considered guards because they are part of a team that enforces the property's rules.

Technology has surpassed the days when guards used binoculars and walked along cat walks to observe and survey patrons and employees on casino floors, and these technicians are part of the evolution of this type of protection, he said.

“The surveillance technicians are the only ones who can turn off access and lock the camera,” Trimmer told the three-judge panel. “It's an issue of access to the system. This is an evolution of the guard position. Guards and surveillance technicians work hand in hand to ensure that patrons and assets are protected.”

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 simply install cameras.

“They are not responsible for reporting anything they see,” Casserly told the panel. “A surveillance technician is not asked at the time if the infraction is happening or prevent it from happening.” He continued: “It's a concern with enforcing rules. They aren't enforcing rules, just placing cameras.”

Photo: Diego M. Radzinschi/NLJ

He said considering this type of work a confidential employee or guard would immensely broaden the definition.

Judge Karen Henderson questioned Casserly and Trimmer about whether the technicians would have access to cameras that could enable a sabotage situation, such as the elaborate one that played out in the 2001 film about a casino robbery Ocean's Eleven. In the film, the cameras are shut off and replaced with a fake feed to help the thieves enter the vault undetected.

“In the movie, one of the bandits was an electronics expert. Are you saying that technician that would have the responsibility to make sure they are accurate is not guarding the assets of the owner?” Henderson asked.

Casserly said the potential for sabotage is not enough of a threshold to consider it a part of the technician's job. He said he did not think that the camera switch pulled off in the movie was even feasible.

“It seemed realistic,” Henderson said. “Cameras are the last resort and fail safe when human eyes don't work.”

Trimmer added in his rebuttal that the technicians have skills and power to turn off cameras and erase parts, and he said the potential for conflict of interest is clear.

The Bellagio declined to comment.

The union's attorney, Adam Stern of Myers Law Group, who argued before the labor board, said the casino's argument was a stretch. He said that casinos are particularly sensitive about union matters, especially in cases with people who count money. But he said the surveillance technicians should be allowed to join the union.

“They tried to fit a square peg in a round hole. They aren't responsible for safeguarding the employer or catching the bad guys,” Stern said. “I understand the employer's concerns but those concerns are not sufficient to change the law.”

Copyright National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Casino surveillance technicians may have unique power to work covertly with managers to spy on other employees, or even pull off sabotage a la “Ocean's Eleven,” and therefore should not be able to unionize with other workers, attorneys for major Las Vegas casinos argued recently in the U.S. Court of Appeals for the D.C. Circuit.

The Bellagio and Mirage—two of the Las Vegas strip's largest casinos—are asking the court to reverse a National Labor Relations Board decision to grant surveillance technicians the right to join an existing union with other 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 is 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.

A D.C. Circuit panel is now considering the case, which could test the parameters of such a classification if the court overturns the labor board's decision and rules in favor of the casinos.

The casinos argued that the dispute presented a case of divided loyalties. A surveillance technician, for instance, could refuse to spy on a fellow employee or union member to enforce a rule.

Bellagio attorney Paul Trimmer of Jackson Lewis told the court during the hearing in February that these technicians should be considered guards because they are part of a team that enforces the property's rules.

Technology has surpassed the days when guards used binoculars and walked along cat walks to observe and survey patrons and employees on casino floors, and these technicians are part of the evolution of this type of protection, he said.

“The surveillance technicians are the only ones who can turn off access and lock the camera,” Trimmer told the three-judge panel. “It's an issue of access to the system. This is an evolution of the guard position. Guards and surveillance technicians work hand in hand to ensure that patrons and assets are protected.”

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 simply install cameras.

“They are not responsible for reporting anything they see,” Casserly told the panel. “A surveillance technician is not asked at the time if the infraction is happening or prevent it from happening.” He continued: “It's a concern with enforcing rules. They aren't enforcing rules, just placing cameras.”

Photo: Diego M. Radzinschi/NLJ

He said considering this type of work a confidential employee or guard would immensely broaden the definition.

Judge Karen Henderson questioned Casserly and Trimmer about whether the technicians would have access to cameras that could enable a sabotage situation, such as the elaborate one that played out in the 2001 film about a casino robbery Ocean's Eleven. In the film, the cameras are shut off and replaced with a fake feed to help the thieves enter the vault undetected.

“In the movie, one of the bandits was an electronics expert. Are you saying that technician that would have the responsibility to make sure they are accurate is not guarding the assets of the owner?” Henderson asked.

Casserly said the potential for sabotage is not enough of a threshold to consider it a part of the technician's job. He said he did not think that the camera switch pulled off in the movie was even feasible.

“It seemed realistic,” Henderson said. “Cameras are the last resort and fail safe when human eyes don't work.”

Trimmer added in his rebuttal that the technicians have skills and power to turn off cameras and erase parts, and he said the potential for conflict of interest is clear.

The Bellagio declined to comment.

The union's attorney, Adam Stern of Myers Law Group, who argued before the labor board, said the casino's argument was a stretch. He said that casinos are particularly sensitive about union matters, especially in cases with people who count money. But he said the surveillance technicians should be allowed to join the union.

“They tried to fit a square peg in a round hole. They aren't responsible for safeguarding the employer or catching the bad guys,” Stern said. “I understand the employer's concerns but those concerns are not sufficient to change the law.”

Copyright National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.