9th Circuit explains who qualifies as a 'guard' under the NLRA

Under the National Labor Relations Act (NLRA), the federal law that regulates union activities and labor-management relations, employees who are "guards" are treated differently than other nonsuperviso-ry employees. Because of concerns about mixed loyalties and possible conflicts of interest, Congress decided that guards shouldn't be represented by a union that represents other types of employees. Consequently, guards may not be included in a bargaining unit with other employees, and they may not be represented by a union that represents nonguard employees who work for their employer or other employers.

The NLRA states that a guard is someone who is employed "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." You probably think of guards as employees whose duties are police-like or who have plant security functions, such as performing security patrols, monitoring and controlling access to the employer's premises, wearing security-guard-like uniforms, and perhaps carrying firearms. However, other employees can also be guards.

As you might imagine, there have been disputes over the years about whether specific employees are "guards" within the meaning of the NLRA. The U.S. 9th Circuit Court of Appeals (whose rulings apply to all Alaska, Arizona, Hawaii, Nevada, Oregon, and Washington employers) recently considered such a dispute that arose in the casino industry.

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