By Ronald Miller, J.D. Substantial evidence on the record supported an NLRB finding that mid-level security officers (security guard lieutenants) were employees, not supervisors, and eligible for union representation, ruled the Eighth Circuit. The employer failed to show the lieutenants exercised independent judgment in their role as response team leaders. Moreover, the Board’s decision was not contrary to law because it required the employer to provide specific examples of the lieutenants’ independent judgment in their role as response team leaders (Securitas Critical Infrastructure Services, Inc. v. NLRB, March 24, 2016, Bye, K.). The employer provided security services to nuclear power plants throughout the country. Shortly after it took over the security operations at the plant in question, the union representing security officers petitioned the NLRB to represent a group of security guard lieutenants—mid-level officers. At a hearing to determine whether the lieutenants were employees or supervisors, the employer asserted that they exercised independent judgment and possessed supervisory authority—the authority to responsibly direct other employees in the event of a security threat. The employer petitioned for review of a Board order finding the lieutenants were not supervisors and allowing them to seek union representation. Independent judgment lacking. Testimony from one lieutenant indicated that every aspect of the job was highly regulated at the local, state, and federal level, as well as by the client and the employer. He testified that he did not have any duties that involved independent judgment unless: (a) he received approval from a higher authority; (b) the duties were significantly or predominantly dominated by policies, procedures, or regulations; or (c) his decisions were so routine, clerical, or ministerial as to not really warrant serious judgment. Based upon the evidence presented at the hearing, the NLRB regional director (RD) determined that the employer failed to meet its burden of showing the lieutenants were statutory supervisors. In part, the RD noted that NLRB precedent requires some showing that a putative supervisor is held accountable for a subordinate’s performance. Because there was no such showing here, the RD issued a direction of election among the lieutenants. Finding that the employer offered no examples of a lieutenant’s role in the event of an attack on a nuclear plant, particularly whether they exercised independent judgment in carrying out a “battle plan,” a divided NLRB denied a request to review the RD’s order in what it deemed “a close case.” Meanwhile, the lieutenants voted for the union, the employer refused to recognize and bargain with the union, and the union filed a refusal-to-bargain charge. Thereafter, the Board found that the employer unlawfully refused to bargain, and the employer sought review of the Board’s order. Specifically, the employer challenged the determination that it failed to carry its burden of proving the lieutenants’ supervisory status. Burden of proof. On review before the Eighth Circuit, the employer contended that the NLRB’s conclusion that the lieutenants were not supervisors was not supported by substantial evidence and was contrary to law. However, the appeals court observed that the Board never concluded the lieutenants are not supervisors; it merely concluded that the employer failed to meet its burden of proving the lieutenants are supervisors. Thus, the narrow issue before the appeals court was whether substantial evidence supported the Board’s determination that the employer failed to carry its burden. Responsibly direct other employees. On appeal, the employer focused on just one of the enumerated supervisory functions listed in the NLRA: whether the lieutenants had the authority to responsibly direct other employees when acting as response team leaders during an attack on the plant. The authority to responsibly direct other employees is only supervisory under the Act if that authority is exercised with independent judgment. A judgment is not independent if it is dictated or controlled by detailed instructions. Here, the record established that a lieutenant must follow applicable procedures when acting as a response team leader in the event of a hostile attack at the plant. This was enough to support the NLRB’s determination that the employer failed to show the lieutenants exercised independent judgment in their role as response team leaders, and to support the Board’s determination that the employer failed to carry its burden of proving the lieutenants were supervisors under the substantial evidence standard, concluded the appeals court. The Board’s decision was not contrary to law because it required the employer to provide specific examples of the lieutenants’ independent judgment in their role as response team leaders, the appeals court said. However, it did not read the Board’s decision as imposing a specific requirement on the employer to offer examples of a lieutenant’s exercise of independent judgment as a response team leader. Rather, it read the Board’s reference to the lack of examples as a general comment on the overall quality of the employer’s evidence. Safeguards information. The appeals court also rejected the employer’s contention that it could not offer specific examples of a lieutenant exercising independent judgment as a response team leader because such information would be classified as “safeguards information.” The disclosure of “safeguards information” was not the exclusive means by which the employer could have satisfied its burden of proof, the appeals court noted.
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