By Lisa Milam-Perez, J.D.
Security guard lieutenants lacked authority to “responsibly direct” other guards using independent judgment, a divided NLRB panel held. Nor did they have authority to assign work or impose discipline under the framework set forth in the Board’s Oakwood Healthcare
decision. As such, they were not supervisors within the meaning of Section 2(11) of the NLRA. Affirming a regional director’s decision and direction of an election, the Board majority was unswayed by Member Miscimarra’s “melodramatic” plea that, as the front-line commanders charged with fending off a potential terroristic attack on the nuclear plant under their protection, the lieutenants must
possess such indicia of authority (G4S Government Solutions, Inc.
, February 10, 2016).
To satisfy the “responsible direction” prong of the Oakwood Healthcare
test, the employer had to show that the lieutenants were held accountable for the performance and work of the employees that they direct, not merely that they were held accountable for their own mistakes. But the employer could point to only one instance, involving a tactical training exercise, and the disciplinary form in evidence was hazy as to whether the lieutenant had been disciplined for his own deficient performance during the incident in question or because his subordinates fell short. Moreover, the employer could not establish that its lieutenants used independent judgment in directing employees, in both tactical and non-tactical situations. For non-tactical direction, the employer has detailed orders, standard operating procedures, and other regulations that governed the lieutenants’ exercise of direction. Likewise, for tactical direction, credited testimony indicated that each post had very detailed response plans and procedures governing the guards’ responses to real or simulated incidents and emergencies.
Authority to assign, discipline.
Nor did the employer establish that the lieutenants had authority to assign. Their role in reassigning or adjusting schedules involved merely routine judgment, or was controlled by a detailed procedure set forth in a collective bargaining agreement. As for their authority to discipline, there was little evidence the lieutenants effectively recommended discipline since the employer did not consistently apply a progressive discipline policy. It reserved the right to deviate from progressive discipline, and there was no example that it ever relied on past discipline in meting out a higher level of discipline. The majority also noted that the employer’s labor relations department reviewed any disciplinary measure before it would be imposed.
Member Miscimarra painted the picture: “The ingredients are a nuclear power plant, potential terrorist raids and other force-based incursions, and lieutenants who command teams of security officers responding to those raids and incursions.” Noting the guards’ “critical national security function,” he argued that the very success of the security team’s tactical response depends on the lieutenants’ direction of the guards under their command. In his view, then, it “defies reason” to conclude that the lieutenants did not exercise “responsible direction” within the meaning of Section 2(11).
While he squabbled over the facts, and his colleagues’ application of those facts to the “responsible direction” test, Miscimarra contended further that the case at hand illustrates the folly of the Board’s approach to issues of supervisory status. Congress provided that, to be a supervisor, one need possess just one of the 12 different types of supervisory authority. “However, perhaps because a finding of supervisor status effectively denies representation to the individuals in question, the Board has tended to evaluate each Section 2(11) factor in isolation, and then construe each factor so narrowly as to compel a conclusion that nobody is a supervisor,” he argued.
A new test?
Instead, Miscimarra once again (as he did in Buchanan Marine, L.P
.) urged the Board to adopt a more realistic model for determining supervisory status—one based, in his view, on the “practical realities” of running a business. He suggested a three-part analysis, taking into account: (1) the nature of the employer’s operations; (2) the work performed by employees; and (3) “whether it is plausible to conclude that all supervisory authority is vested in persons other than the putative supervisors.” Were this test applied here, it would “strain credulity” to find the lieutenants were not supervisors. However, the majority was not swayed, choosing to rely on the 12 enumerated types of authority set forth in Section 2(11) rather than the “other considerations” set forth by the dissent.
The majority did not think that the nuclear power plant would be insufficiently protected in the event of an attack simply because it has held that the lieutenants are not accountable for the deficient performance of subordinate employees. “Lieutenants would still be able to direct the security officers, whether or not they are considered supervisors under the Act. Our decision today simply permits the lieutenants to vote whether to be represented for the purposes of collective bargaining,” the majority responded. “Equally far-fetched is the suggestion that the sergeants and security officers would be any less likely, in the event of an emergency, to obey the lieutenants’ commands owing to the lieutenants’ possession or exercise of Sec. 7 rights.”
The majority took issue with the perceived implication that the lieutenants’ ability or desire to perform their duties would be undermined were they allowed to exercise the right to union representation, if they so choose. For the record, Miscimarra made it clear he intended no such insinuation.