Iuoe Local 501 v. NLRB

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

INTERNATIONAL UNION OF No. 18-71124
OPERATING ENGINEER LOCAL 501,
AFL-CIO, NLRB No.
Petitioner, 28-CA-214925

v.

NATIONAL LABOR RELATIONS
BOARD,
Respondent,

STATION GVR ACQUISITION, LLC,
d/b/a Green Valley Ranch Resort
Spa Casino,
Respondent-Intervenor.
2 IUOE LOCAL 501 V. NLRB

STATION GVR ACQUISITION, LLC, No. 18-72079
DBA Green Valley Ranch Resort
Spa Casino, NLRB No.
Petitioner, 28-CA-214925

v.

NATIONAL LABOR RELATIONS
BOARD,
Respondent.

NATIONAL LABOR RELATIONS No. 18-72121
BOARD,
Petitioner, NLRB No.
28-CA-214925
v.

STATION GVR ACQUISITION, LLC, OPINION
DBA Green Valley Ranch Resort
Spa Casino,
Respondent.

On Petition for Review of an Order of the
National Labor Relations Board

Argued and Submitted December 3, 2019
San Francisco, California

Filed February 7, 2020
 IUOE LOCAL 501 V. NLRB 3

Before: Eugene E. Siler,* Richard R. Clifton,
and Jay S. Bybee, Circuit Judges.

Opinion by Judge Clifton

SUMMARY**

Labor Law

The panel denied Station GVR Acquisition, LLC, and
International Union of Operating Engineers Local 501, AFL-
CIO’s petitions for review, and granted the National Labor
Relations Board’s cross-application for enforcement of the
Board’s order holding that slot technicians were not “guards”
under section 9(b)(3) of the National Labor Relations Act (the
“Act”).

Station GVR owned and operated a hotel and casino in
Henderson, Nevada, and it employed slot technicians whose
primary responsibilities included installing, repairing, and
maintaining gaming machines. The Union filed a petition
with the Board to represent GVR’s slot technicians. The
Board certified Local 501 as the slot technicians’ bargaining
representative, concluding that the slot technicians were not
guards. When GVR refused to recognize and bargain with
the Union, the Board found that GVR engaged in unfair labor

*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 IUOE LOCAL 501 V. NLRB

practices within the meaning of the Act and ordered various
remedies.

The Act prohibits a union from representing a guard unit
if it also represents non-guard employees. Because it was
undisputed that the Union represented non-guard employees
at the casino, the panel’s inquiry focused on whether a slot
technician was employed as a guard.

The panel agreed with the Board’s determination that the
casino’s slot technicians were not guards under the statute.
The panel held that the slot technicians’ duties differed in
fundamental respects from those of the surveillance
technicians in Bellagio, LLC v. NLRB, 863 F.3d 839 (D.C.
Cir. 2017). The panel rejected GVR’s argument that the slot
technicians were guards because they enforced GVR’s rules
and policies against GVR’s guests and other employees.

The Union sought review of the Board’s decision not to
impose an affirmative remedy ordering GVR to provide
certain information that it had previously requested. The
panel held that the Union did not have standing to bring this
petition because the Board granted it all of the relief that it
had specifically sought in the charge and complaint, and
therefore, the Union was not a “person aggrieved” within the
meaning of 29 U.S.C. § 160(f).

COUNSEL

David A. Rosenfeld (argued) and Thomas I.M. Gottheil,
Weinberg Roger & Rosenfeld, Alameda, California, for
Petitioner International Union of Operating Engineer Local
501, AFL-CIO.
 IUOE LOCAL 501 V. NLRB 5

Stanley J. Panikowski (argued), San Diego, California, for
Respondent-Intervenor, Petitioner, and Respondent Station
GVR Acquisition, LLC.

Heather S. Beard (argued), Washington, D.C., for Respondent
and Petitioner National Labor Relations Board.

OPINION

CLIFTON, Circuit Judge:

Station GVR Acquisition, LLC (“GVR”) owns and
operates a hotel and casino in Henderson, Nevada, known as
Green Valley Ranch Resort. The casino has approximately
2300 gaming machines, including video slot machines, video
reel machines, machines that use a combination of both reel
and video components, and strictly reel machines. Many of
these machines rely on modern electronics and computer-
based technology. The casino employs thirteen slot
technicians whose primary responsibilities include installing,
repairing, and maintaining the gaming machines.

This case raises the question of whether the slot
technicians are “guards” under section 9(b)(3) of the National
Labor Relations Act (the “Act”), 29 U.S.C. § 159(b)(3).
Under the Act, the National Labor Relations Board (“NLRB”
or the “Board”) cannot certify a union to represent “guards,”
as that term is used in the statute, if that union also represents
non-guard employees.1

1
Section 9(b)(3), 29 U.S.C. § 159(b)(3), states that:

[T]he Board shall not . . . (3) decide that any unit is
6 IUOE LOCAL 501 V. NLRB

There are three separate petitions before us. First, GVR
petitions for review of the NLRB’s decision certifying the
International Union of Operating Engineers Local 501, AFL-
CIO (“Local 501” or the “Union”) as the slot technicians’
bargaining representative, based on the NLRB’s
determination that the slot technicians are not guards.
Second, the NLRB seeks enforcement of its order requiring
GVR to bargain with the Union. Third, the Union petitions
for review of the NLRB’s decision not to order an affirmative
remedy requiring GVR to provide the Union with certain
information that it had requested in a letter to the company.
We agree with the NLRB that the slot technicians are not
guards under the statute. We therefore deny GVR’s petition
and grant the cross-application of the NLRB to enforce its
order. We also deny the Union’s petition.

I. Background

In August 2017, the Union filed a petition with the Board
to represent GVR’s slot technicians. The slot technicians
thereafter voted unanimously in favor of Local 501 serving as
their bargaining representative. GVR filed objections to the
representation. It argued that the slot technicians were

appropriate for [collective bargaining] if it includes,
together with other employees, any individual
employed as a guard to enforce against employees and
other persons rules to protect property of the employer
or to protect the safety of persons on the employer’s
premises; but no labor organization shall be certified as
the representative of employees in a bargaining unit of
guards if such organization admits to membership, or is
affiliated directly or indirectly with an organization
which admits to membership, employees other than
guards.
 IUOE LOCAL 501 V. NLRB 7

guards, and that because Local 501 represented other non-
guard employees at the casino, it could not serve as the
bargaining representative of the slot technicians. The NLRB
Regional Director overruled GVR’s objections and certified
Local 501 as the slot technicians’ bargaining representative,
concluding that the slot technicians were not guards. The
NLRB later denied GVR’s request for review of that
determination.

Shortly after the Union was certified, it sent a letter to
GVR including a demand for bargaining and a request to be
provided with certain categories of information. GVR
responded that it would not commence collective bargaining
or produce information, and has since refused to recognize
and bargain with the Union. The NLRB thereafter found that
GVR engaged in unfair labor practices within the meaning of
the Act and ordered various remedies.

II. Discussion

“This court upholds decisions of the NLRB ‘if its findings
of fact are supported by substantial evidence and if the Board
correctly applied the law,’ and defers to any ‘reasonably
defensible’ interpretation of [the Act].” Retlaw Broad. Co. v.
NLRB, 53 F.3d 1002, 1005 (9th Cir. 1995) (quoting NLRB v.
Gen. Truck Drivers, Local No. 315, 20 F.3d 1017, 1021 (9th
Cir.), cert. denied, 513 U.S. 946 (1994)).

A. Guards Under the Statute

The Act’s prohibition on a union representing a guard unit
if it also represents non-guard employees is intended “to
minimize the danger of divided loyalty that arises when a
guard is called upon to enforce the rules of his employer
8 IUOE LOCAL 501 V. NLRB

against a fellow union member.” Drivers, Chauffeurs,
Warehousemen & Helpers, Local 71 v. NLRB, 553 F.2d 1368,
1373 (D.C. Cir. 1977); see also Wells Fargo Alarm Servs. v.
NLRB, 533 F.2d 121, 125 (3d Cir. 1976) (“[T]he Board’s
inquiry must focus on whether the potential conflict in
loyalties which concerned Congress is present.”).

In enacting this section of the Act, Congress
sought to prevent the conflict of interests that
might arise among an employer’s guard
employees when, during a strike by a unit of
nonguard employees represented by the same
union that represents the employer’s guards,
the guards are called upon to enforce the
employer’s security rules against their striking
colleagues.

Boeing Co., 328 N.L.R.B. 128, 130 (1999).

Because it is undisputed that the Union represents non-
guard employees at the casino, our inquiry focuses on
whether a slot technician is an “individual employed as a
guard to enforce against employees and other persons rules to
protect property of the employer or to protect the safety of
persons on the employer’s premises.” 29 U.S.C. § 159(b)(3);
see Bellagio, LLC v. NLRB, 863 F.3d 839, 847–48 (D.C. Cir.
2017).

B. Slot Technicians

In defending its conclusion that the slot technicians are
not guards, the Board points to its decision in Boeing Co.,
where it described the customary responsibilities of guards:
 IUOE LOCAL 501 V. NLRB 9

Guard responsibilities include those typically
associated with traditional police and plant
security functions, such as the enforcement of
rules directed at other employees; the
possession of authority to compel compliance
with those rules; training in security
procedures; weapons training and possession;
participation in security rounds or patrols; the
monitor and control of access to the
employer’s premises; and wearing guard-type
uniforms or displaying other indicia of guard
status.

328 N.L.R.B. at 130. Recognizing that employees might
have different responsibilities, some related to security and
some not, the Board concluded that employees are guards
under the Act “if they are charged with guard responsibilities
that are not a minor or incidental part of their overall
responsibilities.” Id.

In the context of this case, the Board argues that the
casino’s slot technicians do not perform any of the traditional
guard responsibilities identified in Boeing. On the contrary,
it characterizes the slot technicians, as their title implies, as
technicians who install, maintain, and repair the slot
machines, and contend that these duties differ fundamentally
from those of guards.

GVR argues that the Board takes too narrow a view of
what constitutes a guard. It asserts that Boeing’s holding that
only persons who perform traditional police-like functions are
guards is “flawed” and inconsistent with the plain language
of the statute, as well as other Board and appellate-court
precedent. GVR further contends that “a core function of the
10 IUOE LOCAL 501 V. NLRB

slot technician’s duties is to enforce rules against casino
guests and other employees to protect GVR’s property and
assets,” including by “verifying jackpots against fraudulent
payouts.” It alleges that the slot technicians are trained and
instructed to combat the true dangers facing casinos “in the
modern context,” including “unscrupulous individuals who
try to take advantage of all aspects of the employer’s slot
machine operation, ranging from the initial bill validation, to
fraudulent payouts and tampering, to claims of lost credits, to
fraudulent ‘EZ-Pay’ tickets.”

GVR relies principally on the decision of the D.C. Circuit
in Bellagio, where the court held that the Board improperly
determined that a casino’s surveillance technicians were not
guards. 863 F.3d at 852. The Bellagio court described
several aspects of those employees’ responsibilities, including
that they: (1) design, install, and maintain the surveillance
department’s gaming-floor camera system; (2) “oversee the
server room and are solely responsible for the elaborate
computer system that manages basically every aspect of []
digital surveillance, including not only the surveillance
department’s cameras but the security department’s as well”;
(3) “train the operators and officers on how to use the
computers, change camera views and archive video files”;
and (4) “maintain each casino’s electronic access system.”
Id. at 842–43 (internal quotation marks and citations
omitted). The court noted also that, “perhaps most
importantly for our purpose, techs often participate in
targeted investigations of fellow employees suspected of
wrongdoing.” Id. at 844.

Bellagio concluded that the casino surveillance
technicians were guards under the statute because the
evidence “[t]aken as a whole . . . demonstrates that the techs
 IUOE LOCAL 501 V. NLRB 11

perform an essential step in the [] enforcement of rules to
protect the casinos’ property and patrons, including
enforcement against their fellow employees.” Id. at 849
(internal quotation marks omitted). It noted that the Board’s
contrary determination overlooked, among other things:
(1) “that the surveillance operators and security officers in the
monitor rooms cannot properly do their jobs without the
techs”; (2) the context of “ultramodern luxury casinos” with
sophisticated networks “protect[ing] high-end jewelry,
priceless art, stockpiles of cash and the personal safety of
revelrous guests who are not always vigilant regarding their
own wellbeing”; (3) that “techs can control what surveillance
operators and security officers see in the monitor rooms”; and
(4) the “crucial fact that the techs help enforce rules against
their coworkers, most obviously during special operations.”
Id. at 850–52 (emphasis in original).

We agree with the Board’s determination that the casino’s
slot technicians are not guards under the statute. Their duties
differ in fundamental respects from those of the surveillance
technicians in Bellagio. There, the surveillance technicians
were responsible for the system that managed “basically
every aspect of [] digital surveillance,” including the cameras
used by both the security and surveillance departments. Id.
at 843. Moreover, the surveillance technicians “control[led]
access to all sensitive areas of each casino and ha[d] access
to all areas themselves; . . . maintain[ed] alarm systems for
the most valuable property in each casino; and . . . help[ed]
spy on fellow employees suspected of misconduct.” Id.
at 849. Indeed, with respect to helping enforce rules against
coworkers, the court found that “[t]he tech’s duties in a
special operation squarely implicate section 9(b)(3)’s aim of
minimizing the danger of divided loyalty that arises when a
guard is called upon to enforce the rules of his employer
12 IUOE LOCAL 501 V. NLRB

against a fellow union member.” Id. at 852 (internal
quotation marks omitted).

By contrast, the slot technicians are not responsible for
any systems relied upon by the surveillance and security
departments to carry out their core functions. Slot
technicians’ interactions with those departments are limited
to verifying that machines are operating properly and helping
to determine the validity of potentially fraudulent claims of
faulty payouts on gaming machines. Unlike the surveillance
technicians who controlled the access—and themselves had
access—to all sensitive areas of the casino, slot technicians
are not permitted to enter the surveillance room without
permission and do not control access to sensitive spaces in the
casino. Rather, the slot technicians spend 90% of their time
on the gaming floor, primarily installing, maintaining, and
repairing the machines.

Most importantly, while the surveillance technicians in
Bellagio helped “spy on fellow employees suspected of
misconduct,” id. at 849, and engaged in special operations
against other employees, which the court found “squarely
implicat[ed]” section 9(b)(3)’s aim of minimizing the danger
of divided loyalty, id. at 852, slot technicians do not engage
in sting operations to detect malfeasance against employees
or customers. Indeed, they have no involvement in the
investigation of other employees except to the extent that an
inspection of a gaming machine might be required. They
likewise have no obligation to report employee misconduct
beyond that of other employees. The animating purpose of
minimizing divided loyalty between guards and non-guard
employees is not implicated by this representation.
 IUOE LOCAL 501 V. NLRB 13

GVR argues that the slot technicians are guards because
they “enforce GVR’s rules and policies against GVR’s guests
and other employees in order to protect GVR’s property and
assets.” This distended interpretation of guard status would
swallow the definition outright. For example, GVR contends
that the slot technicians “[e]nforce GVR’s rules and policies
against underage gaming and underage drinking, which
protects GVR against both legal liability and the potential
loss of its gaming license,” and also enforce “GVR’s anti-
money laundering rules.” But the Board found that all of the
employees who work on the gaming floor, including slot
technicians, are required to be on the lookout for malfeasance
such as underage drinking and gambling and money
laundering. These employees report any prohibited activity
to security personnel. Critically, the duties of the slot
technicians to detect and report malfeasance at the casino
extends no further than other employees who work on the
gaming floor.

Under GVR’s proffered interpretation of guard status, we
struggle to think of any casino employee who would not fit
the bill. Bartenders surely enforce GVR’s rules against
underage drinking when they check a patron’s ID before
serving alcohol. Likewise, table dealers enforce rules to
protect the property of the casino when they exchange chips
only for the amount of cash received from a prospective
player and look to see that players are not pocketing extra
chips. Just as the slot technicians’ duties include reporting
prohibited activity to security, the bartenders and dealers are
to do the same if they detect a patron presenting fake
identification or stealing chips. We decline to adopt an
interpretation of the Act that would characterize virtually all
employees working on the casino floor as guards.
14 IUOE LOCAL 501 V. NLRB

C. The Union’s Petition

Finally, the Union seeks review of the Board’s decision
not to impose an affirmative remedy ordering GVR to
provide certain information that it had previously requested
in a letter to the company. The Union does not deny that the
Board granted it all of the relief that it had specifically sought
in the charge form and complaint. It therefore does not have
standing to bring this petition, as it is not a “person
aggrieved” within the meaning of 29 U.S.C. § 160(f).2

III. Conclusion

The Board reasonably determined that the slot technicians
are not guards under section 9(b)(3) of the Act. The Board
likewise did not err in failing to provide the Union with an
affirmative remedy that it had not sought. The petition for
review filed by GVR is DENIED, the petition for review
filed by the Union is also DENIED and the Board’s cross-
application for enforcement of its order against GVR is
GRANTED.

2
29 U.S.C. § 160(f) provides, in relevant part:

Any person aggrieved by a final order of the Board
granting or denying in whole or in part the relief sought
may obtain a review of such order in any United States
court of appeals in the circuit wherein the unfair labor
practice in question was alleged to have been engaged
. . . (emphasis added).