[00:00:01] Speaker 00: Case number 16, action 1191 at L, Bellagio LLC, doing business, Bellagio Las Vegas Petitioner versus National Labor Relations Board. [00:00:12] Speaker 00: Mr. Trimmer for the petitioners, Mr. Casterly for the respondents. [00:01:14] Speaker 01: Good morning, Mr. Trever. [00:01:15] Speaker 04: Good morning. [00:01:17] Speaker 04: I'm Paul Tremor of Jackson Lewis for the petitioners, and may it please the court. [00:01:21] Speaker 04: This case presents three different issues, but I'd like to focus on the two issues of statutory and regulatory interpretation. [00:01:28] Speaker 05: What's the third one? [00:01:29] Speaker 04: The confidential employee status. [00:01:32] Speaker 04: The first, the regulatory interpretation issue, is the Labor Board's conclusion that Section 102.61A8 allows it to exercise discretion and excuse noncompliance even though the Labor Board has essentially conceded that its interpretation of the regulation is contrary to the rules text and its plain meaning. [00:01:54] Speaker 04: It's our position that that's arbitrary and capricious and contrary to other Board decisions interpreting mandatory language. [00:02:00] Speaker 05: What's the harm you suffer from this? [00:02:04] Speaker 04: Other than the harm inherent in one side not having to play by the rules, none. [00:02:09] Speaker 05: Well, you're informed at the hearing of what the answer would have been, right? [00:02:13] Speaker 04: That's correct. [00:02:14] Speaker 05: So you know what you were deprived of knowing earlier, you knew from the outset of the hearing. [00:02:21] Speaker 04: That's correct. [00:02:22] Speaker 04: We don't deny that. [00:02:23] Speaker 04: We haven't argued that we were prejudiced in any significant way. [00:02:27] Speaker 04: The issue from our perspective is that [00:02:29] Speaker 04: It's an arbitrary and capricious approach to interpretation of the rules. [00:02:34] Speaker 04: The rules are worded in a mandatory way. [00:02:36] Speaker 04: Shall means shall. [00:02:38] Speaker 04: And I believe our argument has gotten much stronger as the board has issued a number of recent decisions interpreting the mandatory provisions and its regulations. [00:02:46] Speaker 04: The first is the case that was cited in our reply brief that was issued in December of 2016, URS Federal Services, where the board explained that if the regulation doesn't contain express language besting either the regional director or the board with discretion to modify or choose not to enforce the rules, then the rules have to be enforced as written. [00:03:09] Speaker 04: And it would be our position that the rules should be interpreted the same way, shall should be interpreted the same way in each one of its provisions. [00:03:18] Speaker 05: The board- Well, since you're not harmed, I guess all you get out of that is delay, right? [00:03:23] Speaker 04: Is it delay? [00:03:23] Speaker 05: Delay, yeah. [00:03:24] Speaker 05: If you prevail on that point, all you get is delay because then they file the paper that's filled out properly. [00:03:29] Speaker 04: That's correct. [00:03:31] Speaker 05: And, of course, Shell and May, it's a lot of history and cases on when a shell is a May and vice versa. [00:03:40] Speaker 05: years ago, we said you don't just tally up the shells and maize and decide which one prevails. [00:03:46] Speaker 05: But this is a bad matter of the agency managing its stock, isn't it? [00:03:52] Speaker 05: It's something where we really don't interfere with their business unless they've done something egregious. [00:03:58] Speaker 04: I think that that's generally correct. [00:04:02] Speaker 04: Our concern is that, especially in the recent decision, URS, where the Labor Board stood on a soap box, beating the table saying, shall we, shall we. [00:04:13] Speaker 04: It is, it's interpreting. [00:04:15] Speaker 04: Pardon me? [00:04:15] Speaker 05: It doesn't really help you. [00:04:17] Speaker 05: In terms of Labor Board precedent, take it as of the time that they ruled against you. [00:04:22] Speaker 04: Well, it does help in the sense that it shows that parallel provisions with similar language should be interpreted in the same way. [00:04:36] Speaker 04: that case has not been appealed as far as I know, but it wouldn't necessarily be appealed. [00:04:43] Speaker 05: That might be the inconsistent case. [00:04:45] Speaker 04: Pardon me? [00:04:45] Speaker 05: That might be the inconsistent case. [00:04:47] Speaker 04: Well, I don't think so, because there are other cases cited in the 28 J letter, Williams and Sonoma, where the board applied its rules as a bright line rule. [00:04:58] Speaker 04: There's another involving Aramark, which is 364 NLRB. [00:05:01] Speaker 05: Were they on this provision, on the 261, is it? [00:05:05] Speaker 04: They're not on that provision, but there's no meaningful way to distinguish those cases in the analysis. [00:05:11] Speaker 02: So is that true of any provision that uses shall? [00:05:15] Speaker 02: Is that your argument that any time the board has a provision that uses the term shall, then the failure to abide by that condition means that the representation election would have to be invalidated? [00:05:28] Speaker 04: According to the board's reasoning in URS, I think the answer is yes. [00:05:32] Speaker 04: The board's decision in URS said that in the absence of an express discretionary provision, [00:05:39] Speaker 04: the rules have to be enforced as written. [00:05:41] Speaker 04: Clearly, the board could have chosen to write its regulations in a different way. [00:05:46] Speaker 04: It could have vested the regional director with a general discretionary authority to excuse noncompliance with the rules. [00:05:54] Speaker 04: The other part of this is, although we didn't suffer any prejudice, the union, when it petitioned, would have suffered no prejudice just by refiling its petition and completing the petition accurately. [00:06:07] Speaker 04: That wouldn't have led to any significant delay. [00:06:10] Speaker 05: Which just shows that this is a trivial dispute over this issue. [00:06:16] Speaker 05: We don't agree that it's trivial to solve the problem in a trice and the employer doesn't suffer any harm whether they do or don't. [00:06:24] Speaker 04: Well, again, I would agree with that in the sense that that's the normal way to fix technical problems. [00:06:31] Speaker 04: The problem in this case is that the LRB has arbitrarily enforced technical compliance in some situations and excused it in noncompliance in others. [00:06:43] Speaker 04: The URS case, the Aramark case, and the Williams and Sonoma case all involve situations where there was no prejudice whatsoever, yet the board required [00:06:54] Speaker 04: compliance with the Brightline provision and invalidated an election, for example, in URS. [00:07:02] Speaker 04: In URS, the employer had won the election 91 to 58. [00:07:06] Speaker 04: There was no prejudice alleged. [00:07:10] Speaker 04: The union claimed no harm by the failure to receive a voter list on time, yet the board said the language in the regulation is mandatory and must be enforced as written. [00:07:19] Speaker 02: The same situation was in Aramark, where a union failed to include an offer of proof with its objections, and the board- So would that apply to the provision that says in the same regulation that the petition has to name the- has to- shall contain the address of the establishments involved, so if it fails to include one of the addresses, that means you undo the representation election? [00:07:42] Speaker 04: It would mean that the petition should be dismissed. [00:07:44] Speaker 04: It wouldn't be undoing the election. [00:07:46] Speaker 04: This should have been fixed at the regional director level. [00:07:48] Speaker 04: And I would add, although it's not in the record, that is how it's been applied, at least in our region, because I just litigated a case involving a similar issue where... With the address? [00:07:58] Speaker 04: Yes, the union had named the wrong employer and the wrong address and the regional director. [00:08:04] Speaker 04: It was a case involving MGM Resorts and Circus Circus, and the regional director dismissed the petition. [00:08:10] Speaker 04: So it is... [00:08:12] Speaker 04: a situation where the language, the board. [00:08:16] Speaker 05: Excuse me, in that case, at what stage did the RD dismiss it? [00:08:20] Speaker 04: At the initial stage. [00:08:22] Speaker 04: After a hearing. [00:08:22] Speaker 04: After a hearing. [00:08:24] Speaker 04: Yes. [00:08:26] Speaker 04: And I would add, you know, the union did not amend the petition. [00:08:30] Speaker 04: It could have cured the petition with an amendment at the hearing. [00:08:33] Speaker 04: It requested recognition. [00:08:35] Speaker 01: Can you go on to your second argument about the guard? [00:08:37] Speaker 04: Yes, thank you. [00:08:44] Speaker 04: So a guard status is set forth in the act in section 93, and it's our position that the statutory text covers anyone employed for the purpose of enforcing against employers and others rules to protect property or to protect the safety of people on company property. [00:09:00] Speaker 01: Surveillance operators in any bargaining unit. [00:09:05] Speaker 04: Surveillance operators? [00:09:06] Speaker ?: Right. [00:09:08] Speaker 04: No, the surveillance operators are not organized at any property in Las Vegas. [00:09:13] Speaker 04: Surveillance technicians are organized at some casinos in Las Vegas. [00:09:18] Speaker 04: But surveillance operators, that phrase refers to the individuals who monitor the screens. [00:09:25] Speaker 04: They are not currently organized at any casino in Las Vegas. [00:09:31] Speaker 04: They have been petitioned for by the SPFPA, one of the guard unions. [00:09:36] Speaker 04: not recently, but about five or six years ago. [00:09:40] Speaker 04: So they're clearly considered to be guards. [00:09:44] Speaker 04: The MGM case that's cited in our brief involved a situation where the SPFPA sought to, or the International Union of Operating Engineers, sought to organize operators, and the board dismissed that petition because they were guards. [00:09:58] Speaker 04: The in that context, the fact that this is a modern Las Vegas hotel casino is what makes the board's decision in this case unsupportable. [00:10:07] Speaker 04: It used to be when Bugsy Siegel ran the strip that surveillance technicians or surveillance operators walked catwalks above the gaming floor and used binoculars to observe. [00:10:18] Speaker 04: That's not the case anymore. [00:10:19] Speaker 04: And in fact, that wouldn't comply with Nevada law. [00:10:22] Speaker 04: That's a point set forth in our brief. [00:10:23] Speaker 04: Nevada law requires modern hotel casinos to maintain very sophisticated surveillance operations. [00:10:30] Speaker 01: The casino is really like a bank, isn't it? [00:10:33] Speaker 01: In other words, when you walk into a bank, you know that eyes are on you, but you also know that the surveillance cameras are the fail safe. [00:10:45] Speaker 01: They're going to catch what human eyes can't catch or whatever. [00:10:50] Speaker 01: That is exactly right. [00:10:53] Speaker 01: The operators monitor and watch the cameras, but the technicians are essential. [00:11:06] Speaker 01: If they're not guards of the first rank, they're guards of the second rank, it seems to me. [00:11:13] Speaker 01: And particularly in the case of when they aim these cameras, they're the ones who aim the cameras that targeted either employees or patrons. [00:11:25] Speaker 04: That's correct. [00:11:27] Speaker 01: That brings up the potential or the danger of the divided loyalty principle that keeps guards from being unionized to begin with. [00:11:38] Speaker 04: That is exactly correct. [00:11:39] Speaker 04: And one of the things that we think distinguishes our case and our facts from the other installation and maintenance cases cited in the board's brief is the fact that the computer system used at the Mirage and at Bellagio, it's called the Honeywell system, [00:11:55] Speaker 04: These surveillance technicians tend to that system like a gardener would tend to a garden. [00:12:00] Speaker 04: It doesn't require periodic installation and on-call maintenance. [00:12:05] Speaker 04: It requires constant watering, constant tending to every day where they go and ensure access credentials are appropriate and employed. [00:12:14] Speaker 04: Are you talking about the tech students? [00:12:17] Speaker 04: The tech students. [00:12:18] Speaker 04: So we would contend that [00:12:21] Speaker 04: in ensuring that this living and breathing surveillance system survives and operates on a continuous basis. [00:12:27] Speaker 04: They are enforcing the rules of the employer. [00:12:29] Speaker 04: They're certainly enforcing rules with respect to access. [00:12:32] Speaker 01: Well, they're also enforcing the rules of the gaming commission. [00:12:35] Speaker 04: That's exactly right. [00:12:36] Speaker 01: And don't the gaming commission rules, aren't some of them directed specifically to the technicians? [00:12:44] Speaker 04: They are. [00:12:45] Speaker 04: And it would be our contention that, and this is set forth in our brief, that they are gaming employees and they would be treated as security personnel under Nevada law because of their responsibility for handling associated security equipment, which is their surveillance system. [00:13:01] Speaker 04: and you alluded to this earlier, there's nothing more important in a casino than the gaming license, obviously. [00:13:08] Speaker 04: The gaming license and the casino can't operate without its surveillance system. [00:13:12] Speaker 02: It would be shut down. [00:13:13] Speaker 02: I'm a little confused on enforcement. [00:13:14] Speaker 02: I thought the question was whether there's enforcement of rules directed at other employees. [00:13:20] Speaker 04: Well, there are examples in the record of where surveillance technicians are intimately involved in the enforcement of rules against employees. [00:13:28] Speaker 04: First of all, they grant access to surveillance operators, security operators because there are two different monitor rooms. [00:13:36] Speaker 04: And they also grant card key access. [00:13:39] Speaker 04: They control the issuance of electronic card keys to all of the employees in the hotel casino. [00:13:44] Speaker 02: So they might be essential to enabling enforcement by others, but they're not actually doing the enforcing. [00:13:48] Speaker 02: They're part of the physical sequence of events that leads to enforcement. [00:13:51] Speaker 02: That seems definitely true. [00:13:53] Speaker 04: That's certainly true. [00:13:54] Speaker 04: And then they also are actually enforcing the rules of access in the sense that they grant access or deny it. [00:14:03] Speaker 04: If this director of surveillance wishes to run a covert operation on a handful of dealers on a blackjack pit, for example, the surveillance technicians are the only individuals who have the ability to turn off access or lock the camera. [00:14:18] Speaker 04: Operators can't do that. [00:14:19] Speaker 04: I mean, in the record, the direct... So the access you're talking about is access to the cameras? [00:14:24] Speaker 04: Yes, it's the access to the system. [00:14:29] Speaker 04: For example, if you wanted to download a program to your computer here, you'd have to go through a very senior level IT official to get alpha admin access to your computer. [00:14:39] Speaker 04: These surveillance technicians have the same ability, or they have the same authority. [00:14:44] Speaker 04: And although the directors of each department have similar authority, they don't know how to exercise it, they can't actually employ it. [00:14:53] Speaker 04: Only the surveillance technicians have that authority. [00:14:56] Speaker 05: The board has, in its case law, consistently focused on, as we're discussing, enforcing rules. [00:15:05] Speaker 05: But their underlying concern of conflict of interest arises only in [00:15:11] Speaker 05: with respect to or during a labor dispute. [00:15:15] Speaker 05: So how is anything different for these people when there's a labor dispute? [00:15:19] Speaker 05: How does the conflict manifest? [00:15:21] Speaker 04: First, I think that the conflict of interest is broader than just a labor dispute. [00:15:26] Speaker 05: It's about... In the other cases, I don't see it. [00:15:30] Speaker 04: They do focus on divided loyalties when it comes to the enforcement of rules. [00:15:34] Speaker 04: And Laughlin's deal, the original guard cases, talk about [00:15:38] Speaker 04: that's true, but the subsequent board decisions haven't focused so much on a strike. [00:15:48] Speaker 04: They focus on divided loyalties when you have one bargaining unit enforcing rules against another bargaining unit. [00:15:54] Speaker 04: You can't have them [00:15:55] Speaker 04: represented by the same union because unions' internal rules discourage reporting coworkers for misconduct. [00:16:04] Speaker 04: They lead to a lot of tension in the relationship. [00:16:07] Speaker 04: So you're right that the cases, the beginning of the cases talk about strikes. [00:16:13] Speaker 04: We believe it's been expanded. [00:16:15] Speaker 05: And that there are cases to that effect? [00:16:18] Speaker 04: Yes. [00:16:19] Speaker 05: Give me an example if you can. [00:16:20] Speaker 04: The Wells Fargo case and the MGM Grant case certainly talk about enforcement of rules to protect property and to protect safety. [00:16:30] Speaker 04: apart from the context of the labor dispute correct and we believe that the the wording of the statute permits our interpretation that that it would permit employees who are dedicated to protecting property or to protecting the safety of people [00:16:47] Speaker 04: on company property and who would be subject to a conflict of interest. [00:16:51] Speaker 04: We believe that when that language is combined with the congressional history or the legislative history, Congress has spoken clearly. [00:16:59] Speaker 01: Is the MGM granted when you're talking about the 1985? [00:17:02] Speaker 01: It is. [00:17:02] Speaker 01: All right, and there were no tech surveillance technicians then. [00:17:07] Speaker 01: This was the [00:17:08] Speaker 01: The fire and security alarm system. [00:17:10] Speaker 04: That's correct. [00:17:11] Speaker 04: The individuals in MGM Grand wore both hats. [00:17:13] Speaker 04: They were both the technician and the operator. [00:17:15] Speaker 01: Monitor, operator, and... [00:17:17] Speaker 05: OK, so in the latter capacity, they were enforcing rules, not as technicians, but as monitors. [00:17:24] Speaker 04: That's correct. [00:17:25] Speaker 04: I do think it's important to remember, however, that the record contains examples of these surveillance technicians being actively involved in the enforcement of rules. [00:17:37] Speaker 04: And I think it's laid out very well. [00:17:39] Speaker 05: Well, I think, more specifically, in the investigation of potential rule violations, [00:17:44] Speaker 04: That's true, but the problem is because of the way bargaining works, if this unit were certified, the employer would be deprived of the ability to use surveillance technicians to place covert cameras. [00:18:00] Speaker 04: I don't get that. [00:18:05] Speaker 04: It's one of the duties of the job. [00:18:11] Speaker 04: It is, but we wouldn't be able to use anybody else. [00:18:15] Speaker 04: That's the point. [00:18:18] Speaker 04: These gentlemen are certified. [00:18:19] Speaker 04: We could just use security personnel to secretly install our cameras or use operators to install secret cameras. [00:18:27] Speaker 04: We have to continue to use these individuals because it would be bargaining unit work. [00:18:31] Speaker 04: And that's where the conflict of interest arises. [00:18:34] Speaker 04: It's in our view, the natural evolution of the guard position on the strip requires both operators and surveillance technicians working hand in hand in order to satisfy Nevada regulatory requirements and ensure that the assets and patrons are protected. [00:18:53] Speaker 01: So if you thought you had a dirty dealer, you would go first to the technician. [00:18:59] Speaker 04: That's correct. [00:19:00] Speaker 01: And say, aim that camera at that table. [00:19:03] Speaker 04: That's correct. [00:19:04] Speaker 01: And so I say again, if the technician is not the first line guard, he's assisting or the second line guard. [00:19:18] Speaker 01: But he has the same danger of divided loyalty [00:19:23] Speaker 01: If he's in a bargaining unit with that dirty dealer, as the operator would have, who cannot be in that bargaining unit. [00:19:32] Speaker 01: That's correct. [00:19:32] Speaker 01: Because he's a guard. [00:19:33] Speaker 05: That's correct. [00:19:34] Speaker 05: In this particular case, who is in the existing bargaining unit? [00:19:37] Speaker 04: Pardon me? [00:19:39] Speaker 05: Who is in the union that's won the representation election? [00:19:42] Speaker 04: Yes. [00:19:43] Speaker 05: It's already the incumbent union with respect to some other employees, correct? [00:19:46] Speaker 04: Yes, facilities engineers. [00:19:48] Speaker 05: Facilities engineers? [00:19:49] Speaker 04: Yeah, so HVAC employees. [00:19:50] Speaker 05: Not anyone involved in security? [00:19:53] Speaker 04: That's right. [00:19:56] Speaker 05: The guards can be unionized, right? [00:19:59] Speaker 05: They just can't be in a mixed union. [00:20:00] Speaker 04: That's exactly right. [00:20:01] Speaker 04: This isn't denying them the right to have representation and vote for a union. [00:20:05] Speaker 04: It's just preventing them from selecting the operating engineers because, and this is an example from the record, there are situations where surveillance or security will have a surveillance technician place a lipstick camera up in a catwalk where they believe that [00:20:22] Speaker 04: facilities engineers are taking naps, there's clearly a conflict of interest, dual loyalties, when a member of the operating engineer's union is asked to place a secret camera in a place to observe one of the members of his union potentially engaging in misconduct. [00:20:42] Speaker 05: And what you just said is true, regardless of whether they're different bargaining units? [00:20:47] Speaker 04: Yes. [00:20:47] Speaker 04: That's true. [00:20:49] Speaker 01: All right. [00:20:49] Speaker 01: Thank you. [00:20:50] Speaker 01: Thank you. [00:20:51] Speaker 01: Mr. Casserly? [00:21:10] Speaker 03: Good morning and may it please the court. [00:21:12] Speaker 03: I'm Dave Casterly, representing the National Labor Relations Board. [00:21:17] Speaker 03: To find that an employee is a guard, the National Labor Relations Act requires that that employee must enforce work rules against others, either to protect safety or property. [00:21:31] Speaker 03: Here, surveillance technicians install and maintain security cameras. [00:21:41] Speaker 03: They work mornings. [00:21:42] Speaker 03: They don't work all day. [00:21:43] Speaker 03: They only work during the times when they're least likely to be any other employees present. [00:21:50] Speaker 03: During those times, they repair and maintain these cameras. [00:21:54] Speaker 03: They're not responsible for reporting anything that they see if they happen to be looking at footage to see if a camera's working. [00:22:00] Speaker 03: They're not responsible for reporting anything or trained to report anything any more than any other employee. [00:22:07] Speaker 02: Can you address the particular situation that was discussed earlier, which is a circumstance in which there's suspicions about certain employees and then the [00:22:16] Speaker 02: the surveillance technicians are brought into play in order to train the cameras on those employees? [00:22:22] Speaker 02: Yes, your honor. [00:22:23] Speaker 03: Um, first of all, the surveillance technicians at trial or at the hearing in this case testified that in those situations, they didn't actually know who they were aiming the cameras at. [00:22:34] Speaker 03: They were told to set up cameras in a particular area. [00:22:37] Speaker 03: They didn't know that it was even part of an investigation. [00:22:40] Speaker 03: They're not privy to that information. [00:22:42] Speaker 01: They're just told if it's aimed at a table, [00:22:43] Speaker 01: and they know if it's aimed at the catwalk that your colleague told us about. [00:22:51] Speaker 03: Yes, Your Honor. [00:22:53] Speaker 03: They would know where the cameras are aimed. [00:22:55] Speaker 03: But they're not asked just to change cameras for these types. [00:23:01] Speaker 01: They have to know why they're aiming. [00:23:02] Speaker 01: I mean, they're not aiming at the bottom of the table. [00:23:06] Speaker 01: They're aiming where the dealer's hands are moving or whatever. [00:23:09] Speaker 01: I mean, the fact that they don't know that it's one of 10 or 20 [00:23:14] Speaker 01: dealers, it still raises the danger. [00:23:18] Speaker 01: Why doesn't it raise the danger of the divided loyalty that is one of the main principles for keeping guards separate from the rest of the employees? [00:23:27] Speaker 03: Well, first of all, Your Honor, [00:23:29] Speaker 03: The question of divided loyalty is actually as to whether these guards would, say, refuse to cross a picket line or refuse to actually enforce a rule against another employee. [00:23:39] Speaker 03: Here, if the surveillance technicians say, no, I'm not going to aim that camera at that table, the employer can say you're not doing their job and do the same thing it would do to any other employee who doesn't do its job. [00:23:52] Speaker 03: even if that's more likely in this situation, that's not the kind of thing that the act separated guards for. [00:23:58] Speaker 03: Separating guards was so that somebody who's going in there to actively cause damage to the employer's property is not going to be, somebody isn't going to refuse to stop them from doing so. [00:24:11] Speaker 03: It's hard to imagine a surveillance technician being in that situation where they're being asked ahead of time to place a camera, not asked at the actual time that an infraction is happening to stop it or to prevent it from happening. [00:24:25] Speaker 03: So just taking that hypothetical another step, the surveillance technician says, okay, I'm putting the camera there and tips off the dealer, which they can do whether or not they're in the same union, I suppose. [00:24:38] Speaker 03: That doesn't, [00:24:39] Speaker 03: add to more damage to the employer's property. [00:24:43] Speaker 03: It's not like they're refusing to report something that the dealer actually did. [00:24:48] Speaker 05: And to be clear... If they do tip off the subject, the target, then obviously the target doesn't go on violating it while on camera, right? [00:25:00] Speaker 03: Presumably, yes, your honor. [00:25:02] Speaker 03: But that's not the kind of violation that the act is concerned with. [00:25:06] Speaker 03: It's concerned with picket line crossing or stopping somebody from causing damage at the time. [00:25:13] Speaker 05: I thought the concern was conflict of interest. [00:25:16] Speaker 05: And what you just said is, of course, one manifestation of that, but it doesn't seem to be the only one. [00:25:22] Speaker 03: Yes, Your Honor, it's not the only one. [00:25:24] Speaker 03: But again, it's a concern with enforcing rules. [00:25:27] Speaker 03: And here, the surveillance section are not the people actually enforcing the rules. [00:25:30] Speaker 03: All they're doing is placing cameras. [00:25:32] Speaker 03: Somebody else has to look at that camera to enforce the rules. [00:25:35] Speaker 03: Somebody else has to determine that the infraction is happening. [00:25:39] Speaker 03: And even somebody else has to determine where the surveillance put the cameras. [00:25:43] Speaker 03: They have no authority to decide where to put the cameras on their own. [00:25:46] Speaker 05: I have a contrary impression from something in your friend's brief. [00:25:50] Speaker 05: to the effect that the management might say, we want a camera placed on this freezer or refrigerator in the kitchen that wasn't there before. [00:26:00] Speaker 05: I mean, the camera wasn't there before. [00:26:02] Speaker 05: Clearly, they're investigating something. [00:26:05] Speaker 05: And then it's up to the tech to figure out a way and to do that to get the camera in place. [00:26:12] Speaker 05: I think they used an air duct in one instance. [00:26:15] Speaker 05: That's right, Your Honor. [00:26:17] Speaker 05: So the discretion is in how to, in some cases at least, instances, too, how to capture the information that's being sought. [00:26:26] Speaker 03: That's correct, Your Honor. [00:26:27] Speaker 05: And it's pretty clear then that who the target is, or who the targets might be, or where the offense is, potential offense. [00:26:36] Speaker 05: And if tipping off one's fellow union member is a concern, then here it is, conflict of interest. [00:26:45] Speaker 03: Yes, Your Honor, but what I'm saying is tipping off a fellow union member is not the concern contemplated by 93. [00:26:52] Speaker 05: Well, we don't have cases on that. [00:26:54] Speaker 05: It's true. [00:26:55] Speaker 05: All the cases are as you described them, but why isn't the policy equally applicable here? [00:27:02] Speaker 03: Because the policy stems from workplace disputes where an employer is not going to be able to do its business at all because its guards say, no, there's no rules that we're going to end up enforcing here. [00:27:14] Speaker 03: This kind of infraction. [00:27:15] Speaker 05: Wait a minute. [00:27:16] Speaker 05: The cases talk about preventing damage, for instance. [00:27:20] Speaker 05: If there was a strike, you know, somebody doing something harmful to the premises, right? [00:27:26] Speaker 05: It doesn't mean that it's preventing the employer from operating. [00:27:30] Speaker 05: Oh, maybe it's operating with a replacement. [00:27:33] Speaker 05: That's correct, Your Honor. [00:27:34] Speaker 05: It's just to prevent that harm. [00:27:35] Speaker 03: Right. [00:27:35] Speaker 03: It's about preventing that harm, but it's about asking the employees who are in there and faced immediately with that situation to not refuse at the time. [00:27:46] Speaker 03: Here, we're not reaching that situation just with an employee type-tipping another employee off. [00:27:51] Speaker 03: I mean, that would be a very big expansion of the guard. [00:27:54] Speaker 05: So is what you're saying that it's not during the course of a labor dispute? [00:27:59] Speaker 03: Not during the course of a labor dispute or even during the actual infraction that's happening, the actual rule that is happening. [00:28:07] Speaker 03: That is not when the surveillance technician is asked to act. [00:28:10] Speaker 03: They're asked to act before that would possibly happen or after to place a camera. [00:28:15] Speaker 03: And the essential point is that that would expand, allowing anybody who could possibly tip off another employee. [00:28:23] Speaker 03: And there are no evidence in the record that this has ever happened. [00:28:26] Speaker 03: This is all speculation. [00:28:28] Speaker 03: Allowing anybody who could possibly tip off an employee about an investigation would be an immense broadening of the guard. [00:28:36] Speaker 05: You quoted this passage from an old case of ours in 1977. [00:28:41] Speaker 05: It's in your footnote 11 on 23. [00:28:45] Speaker 05: You said in the text that all of this is in order, quote, to minimize the danger of divided loyalty that arises when a guard is called upon to enforce the rules of his employer against a fellow union member. [00:29:00] Speaker 05: Let me just change a few words. [00:29:02] Speaker 05: To minimize the danger of divided loyalty that arises when a guard is called upon to help spy on a fellow union member. [00:29:11] Speaker 03: That does change a few. [00:29:12] Speaker 05: That's what we're dealing with here, really. [00:29:14] Speaker 03: Well, it's to help somebody else spy on a union member, Your Honor. [00:29:18] Speaker 05: It is a little bit... Well, not a fellow union member. [00:29:20] Speaker 05: It's to help spy on... Yeah, help. [00:29:22] Speaker 05: The word help is in there. [00:29:24] Speaker 05: It's helping the employer spy on another union member. [00:29:29] Speaker 03: Yes, Your Honor, that is it. [00:29:30] Speaker 03: But that's a change. [00:29:32] Speaker 03: In other words, if we took that [00:29:34] Speaker 03: reporting issue and said somebody can report anything to another unit member. [00:29:40] Speaker 03: A lot of employees know about investigations. [00:29:43] Speaker 03: A lot of employees see other employees engaged in misconduct and could potentially tip them off. [00:29:49] Speaker 03: The board has never found that simply being able to tip somebody off is enough to make somebody a guard under the act. [00:29:57] Speaker 05: And that would... [00:29:59] Speaker 05: I can see that because that would cast a very wide net because from time to time anyone might be in that position. [00:30:06] Speaker 05: This is their job. [00:30:07] Speaker 03: This is not their job in large part. [00:30:10] Speaker 05: Helping to spy on other employees and patrons. [00:30:14] Speaker 03: It's a small part of their job. [00:30:16] Speaker 03: I mean, the surveillance techs who testified said this was a very rare occurrence. [00:30:21] Speaker 03: They could only think of, there was the restaurant issue, but they could only think of about one or two instances where this kind of thing had ever happened, where they could identify the employer groups of employees being targeted. [00:30:33] Speaker 03: There's a lot of security cameras in both of these hotels and casinos. [00:30:39] Speaker 03: And so the surveillance techs are asked to move a lot of security cameras. [00:30:43] Speaker 03: A lot of times, even if they're asked to do it for a special event, it's not an investigation or something along those lines. [00:30:51] Speaker 03: In fact, about monthly, both of these locations host large events that they need surveillance techs to move a lot of cameras for. [00:30:59] Speaker 03: The idea that this is a big part of their job, that this is the main thing that they do, is setting up these cameras where they know who's on the receiving end of this, is just not supported by the record. [00:31:10] Speaker 01: Let's talk about the main part then, that is enforcing rules guarding the assets and the property of the company. [00:31:20] Speaker 01: Have you ever seen the movie Ocean's Eleven? [00:31:23] Speaker 03: Yes, Your Honor. [00:31:24] Speaker 01: I remember that, and I think it was Bellagio. [00:31:27] Speaker 01: And the surveillance cameras were put on a fake feed so that everybody thought the vault was safe. [00:31:37] Speaker 01: And in fact, they were emptying the vault completely. [00:31:40] Speaker 01: And one of the men, one of the bandits was a [00:31:47] Speaker 01: electronics expert. [00:31:49] Speaker 01: Now, if that technician, are you saying that that technician who would have had the responsibility of making sure those feeds were accurate was not guarding the assets and property of the owner? [00:32:06] Speaker 03: Yes, Your Honor. [00:32:07] Speaker 03: In that situation, [00:32:09] Speaker 03: It's a little, the potential for sabotage isn't enough to make this employee a guard. [00:32:14] Speaker 03: That's not in their regular duties, say cutting a feed or something along those lines. [00:32:19] Speaker 03: I don't even know if that's technologically feasible the way it was presented in that movie, but these operators are- Seems pretty realistic. [00:32:27] Speaker 03: It did, but then again, keep in mind that these technicians would not even be on the premises during that kind of time. [00:32:35] Speaker 03: That would be an operator looking at the feed that the technicians had set up with cameras earlier in the day. [00:32:44] Speaker 03: even if a technician could say during their normal shift somehow alter cameras so that eight hours later they were playing something innocuous and an operator for that entire time wouldn't notice, even assuming that happened, that doesn't rise to the level of the technician enforcing work rules as part of their job. [00:33:03] Speaker 03: Their job [00:33:04] Speaker 03: That's just a sabotage type situation. [00:33:07] Speaker 03: And a lot of employees can sabotage equipment. [00:33:09] Speaker 03: I mean, somebody who isn't a surveillance tech operator could go cut the feeds just as easily as a surveillance tech could. [00:33:17] Speaker 03: So potential for sabotage isn't enough to make these employees guards in and of itself. [00:33:21] Speaker 05: I guess they're certainly part of a team. [00:33:27] Speaker 05: that's enforcing the rules. [00:33:29] Speaker 05: You just want to distinguish within the team who's a guard and who's not, who's a support person. [00:33:36] Speaker 03: Yes, Your Honor, and the board has consistently done that with court approval, such as in the Wells Fargo Third Circuit case. [00:33:45] Speaker 03: The board has said that being part of an integrated unit that does enforce rules is not enough to make a particular employee a guard. [00:33:54] Speaker 03: For instance, alarm technicians who are responsible for repairing and maintaining alarm systems are not generally guards unless there is something else that makes them a guard. [00:34:06] Speaker 01: So there is something else here there is the use of the technicians and only the technicians to guard the property and I guess also the safety of the patrons and the employees when they are aiming those cameras and only they can aim those cameras and and as I said at the beginning it seems to me the cameras are the last resort the failsafe the system that works when [00:34:36] Speaker 01: human eyes don't work or when floor supervisors are somewhere else. [00:34:42] Speaker 03: Well, Your Honor, that effect, the setting up and repairing the cameras, that's pretty similar to the alarm technicians who set up and repair the alarms. [00:34:51] Speaker 03: Other employees might be the ones who respond when the alarm goes off, and those employees might be guards. [00:34:57] Speaker 03: But the employee who sets up the alarm itself has never been considered to be a guard. [00:35:01] Speaker 03: Taking the security officer patrolling on a catwalk, hypothetical, for instance, or that example, these alarm technicians are not replacing that security officer who 30 years ago was walking around with a flashlight and a walkie talkie. [00:35:17] Speaker 03: They're replacing the people who were repairing the walkie talkie. [00:35:22] Speaker 03: So in this situation, these, it's not really, yeah, so the alarm technicians are not actually enforcing these rules. [00:35:31] Speaker 03: They're not actually present for that sort of situation. [00:35:37] Speaker 03: If the court has no further questions on the alarm technician's issue, I guess I will focus briefly on the sufficiency of the petition. [00:35:46] Speaker 03: Just to say that here the board has for more than 70 years now consistently allowed petitioners to not check the box seven on the petition form. [00:35:58] Speaker 03: It's been there, it has not changed in relevant part the board's form in that amount of time. [00:36:03] Speaker 03: And [00:36:05] Speaker 03: There's no reason to believe that because certain other parts of provisions of the board's regulations have been interpreted as mandatory, that that provision is also suddenly mandatory. [00:36:16] Speaker 03: Especially given that the board has consistently interpreted it as a provision that even if mandatory, doesn't carry with it the sanction of dismissing a petition. [00:36:29] Speaker 01: All right. [00:36:29] Speaker 01: Thank you. [00:36:30] Speaker 03: All right. [00:36:30] Speaker 03: Thank you, Your Honor. [00:36:32] Speaker 01: Does Mr. Turmer have any time? [00:36:35] Speaker 01: All right, why don't you take a couple minutes. [00:36:40] Speaker 04: I would like to address a couple of comments. [00:36:42] Speaker 04: First, none of the surveillance technicians in the Petition 4 unit testified in this case. [00:36:48] Speaker 04: The only individuals that testified were management officials about the duties. [00:36:52] Speaker 04: And the record does not bear out a comment that [00:36:56] Speaker 04: the actual investigation or use of cameras and locking out cameras is a rare occurrence. [00:37:03] Speaker 04: The witnesses testified that special investigations with hidden cameras happen once to twice a month, and that they lock cameras to focus on dealers and other specific individuals several times a month, if not more often than that. [00:37:16] Speaker 04: So it's our belief that the record shows that the surveillance technicians [00:37:24] Speaker 04: role in active surveillance secret covert operations is a significant portion of their job duties and it's very not only is it significant in terms of Time spent but it's most important or one of the most important duties that they have [00:37:41] Speaker 04: The other thing I wanted to address. [00:37:43] Speaker 01: I do want to ask you one thing. [00:37:44] Speaker 01: They're not on duty 24 hours. [00:37:46] Speaker 01: Is that right? [00:37:46] Speaker 04: That's correct. [00:37:47] Speaker 04: They're not. [00:37:47] Speaker 01: Are they on call or is it a record? [00:37:49] Speaker 01: They are on call. [00:37:49] Speaker 01: Is that in the record? [00:37:50] Speaker 04: Yes. [00:37:51] Speaker 04: Okay. [00:37:53] Speaker 04: We talked briefly about cases addressing conflicts of interest outside the strike context. [00:38:00] Speaker 04: There are a number of cases cited in pages 46 to 53 of our opening brief. [00:38:05] Speaker 04: Wright Memorial, for example, talks about ambulance drivers performing patrol [00:38:10] Speaker 04: there's several other cases cited therein that talk about just the general enforcement of rules, not necessarily in the strike related context. [00:38:20] Speaker 04: The other thing that I'd like to say about that is, if these surveillance, well, first of all, dispatchers also just sit at a radio and call things in, they don't actively monitor. [00:38:31] Speaker 04: video feeds, they don't actively observe misconduct, but there's never been any question that a security dispatcher is a security guard within the meaning of the Act. [00:38:41] Speaker 04: The board has never taken the position that a dispatcher is uncovered by 93. [00:38:44] Speaker 04: The second thing that I wanted to say is that... Wouldn't they be more analogous to the operator? [00:38:50] Speaker 01: Wouldn't the dispatcher be more analogous to the surveillance operator than the technician? [00:38:56] Speaker 04: You know, not really, because the dispatcher just sits at a radio, receives information from others, and radios guards on the floor to go to a particular place. [00:39:09] Speaker 04: They don't have any eyes. [00:39:11] Speaker 04: They don't actively observe what's going on on the casino floor. [00:39:14] Speaker 04: A dispatcher is just a go-between. [00:39:17] Speaker 04: And there's sort of connective tissue in the security operation the same way that our surveillance technicians are. [00:39:23] Speaker 04: The two other things, if you would grant me time, would be first, the technological Oceans 11 type scenario that is in the record. [00:39:34] Speaker 04: A witness named Edwin Collier described in detail how that could be accomplished by these surveillance technicians to the point of being able to turn off particular cameras, being able to erase the fact that those cameras had been turned off. [00:39:48] Speaker 04: And it's our position that any conflict of interest, any sabotage situation is always hypothetical. [00:39:54] Speaker 04: But the point of the 93 exclusion is to prevent an employer from being subject to that conflict of interest. [00:40:00] Speaker 04: The last comment I wanted to make is that one of the biggest things in board precedent is that partial strikes, partial unit strikes aren't protected. [00:40:09] Speaker 04: And in this kind of situation that's been described, if the security department, for example, were to go on strike, [00:40:18] Speaker 04: these individuals wouldn't be covered by that strike. [00:40:21] Speaker 04: So we would have surveillance technicians, a partial strike of the department, or similarly, if engineers, a bargaining unit of engineers, were to go on strike, yet a group of individuals represented by the same union are responsible for maintaining the cameras [00:40:36] Speaker 04: maintaining the security systems designed to guard the physical plant, the casino, from sabotage or misconduct associated with that strike. [00:40:46] Speaker 04: The potential for a conflict of interest is clear. [00:40:50] Speaker 01: Are any of the security people bonded? [00:40:54] Speaker 04: Yes. [00:40:55] Speaker 01: Who? [00:40:56] Speaker 04: The director of the department and security investigators, I can't speak to all of the guards. [00:41:03] Speaker 04: I know that those individuals are bonded because they carry firearms at Bellagio and Mirage. [00:41:07] Speaker 01: OK. [00:41:07] Speaker 01: And how about the surveillance operators? [00:41:09] Speaker 01: Are they bonded? [00:41:11] Speaker 04: Not to my knowledge. [00:41:12] Speaker 01: And technicians, I assume, are not bonded? [00:41:15] Speaker 04: No. [00:41:16] Speaker 04: They are subject to higher background check requirements. [00:41:21] Speaker 04: Thank you. [00:41:21] Speaker 04: Thank you.