Submitted: September 23, 2015
Before SMITH, BYE, and KELLY, Circuit Judges.
BYE, Circuit Judge.
Securitas Critical Infrastructure Services, Inc., (Securitas) petitions for review of an order of the National Labor Relations Board (NLRB). The order allowed a certain class of Securitas's workers to seek union representation when the NLRB determined that Securitas failed to show the workers were supervisors under Section 2(11) of the National Labor Relations Act (the Act), 29 U.S.C. § 152(11). The NLRB cross petitions for enforcement of its related order determining Securitas unlawfully refused to bargain with the union as the certified representative of the workers after a majority of them voted for union representation. We deny Securitas's petition for review and grant the NLRB's cross petition for enforcement of its order.
Securitas provides security services for nuclear power plants throughout the United States. On January 1, 2014, Securitas began providing security for Xcel Energy at a nuclear power plant in Monticello, Minnesota. Shortly after Securitas took over the security operations at the plant, the union representing the security officers, United Security Professionals, Local 2, petitioned the NLRB seeking to represent a group of mid-level security officers called lieutenants. The Regional Director of the region covering Minnesota held a hearing to determine whether the lieutenants were employees or supervisors, the former eligible for union representation and the latter not.
At the hearing, Securitas asserted, among other things, that the lieutenants exercised independent judgment and thus possessed supervisory authority – the authority to responsibly direct other employees – in their role as "response team leaders" in the event of a security threat. A response team leader commands the security force during an attack on the plant or some other contingency event. In a hostile attack, a response team leader would direct security officers to return fire, interject themselves between the attackers and the plant, and provide guidance on the appropriate use of deadly force.
Only one lieutenant, Michael Stidmon, testified at the hearing. He testified generally about his duties as a lieutenant, and specifically about his duties as a response team leader. With respect to his position generally, Stidmon indicated "every aspect of [his] job" was highly regulated at the local, state and federal level, as well as by the client, Xcel Energy, and his employer, Securitas. Jt. App. at 314. Stidmon further testified 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. Id. at 327. With respect to his specific duties as a response team leader in the event of an attack on the plant, Stidmon indicated most of the strategy used to respond to an attack "has already for the most part been preformulated" as a result of the many policies, procedures and regulations governing security at a nuclear power plant. Id. at 340. When challenged on that answer with a question asking, "but you have important decision-making authority when you're the [response team leader], as far as deploying and redeploying officers, correct?, " the lieutenant reiterated "Yes. And there again, that also has been for the most part preformulated." Id.
Based upon the evidence presented at the hearing, the Regional Director determined Securitas failed to meet its burden of showing the lieutenants were statutory supervisors. In part, the Regional Director noted that NLRB precedent requires some showing that a putative supervisor is held accountable for a subordinate's performance. See Addendum at 17 (citing In re Oakwood Healthcare, Inc., 348 N.L.R.B. 686, 691-92 (2006)). The Regional Director stated the record did not contain evidence of specific instances where a lieutenant had been disciplined or otherwise impacted by the performance of security officers on his or her team, whether in relationship to the role as a response team leader or otherwise. Id. Having found that Securitas failed to meet its burden, the Regional Director gave directions for an election to be conducted by secret ballot to determine whether the lieutenants wished to be represented by the union.
Securitas then exercised its right to have the Regional Director's decision reviewed by the NLRB. On November 5, 2014, a three-member panel of the NLRB issued an order denying Securitas's request for review, with one member indicating he would grant review. In the order, the NLRB indicated it was "a close case" on whether the lieutenants had the authority to responsibly direct other employees. Addendum at 29. The NLRB focused on the lieutenants' role as response team leaders during an attack on the plant, in particular whether lieutenants exercised independent judgment in carrying out a "battle plan." Id. The NLRB noted the burden fell on Securitas to prove this point, and said "no examples were given of how a lieutenant would have to make decisions based on the [situation], not even to the extent of general examples of choices from among different fire and movement, force protection, or other security tactics that would not have revealed the details of the Employer's contingency planning." Id.
Securitas claimed it could not present evidence of specific examples of a lieutenant's role in the event of an attack on a nuclear power plant because such evidence would be considered "safeguards information" not subject to disclosure under rules and regulations promulgated by the NRC. See 42 U.S.C. §§ 2167, 2168; 10 C.F.R. § 73.22. The NLRB rejected this argument, stating "there are procedures for protective orders in Board proceedings that extend to documents and testimony." Id. (citing Overnite Transp. Co., 329 N.L.R.B. 990, 997 (1999); NFL Mgmt. Council, 309 N.L.R.B. 78, 88 (1992); and Pepsi-Cola, 307 N.L.R.B. 1378, 1379 n.1 (1992)).
Meanwhile, the lieutenants at the Monticello plant voted to be represented by the union. After the vote, Securitas refused to recognize or negotiate with the union as the certified representative of the lieutenants. The union then filed a refusal-to-bargain charge against Securitas. A three-member panel of the NLRB found the charge meritorious, and entered an order finding that Securitas unlawfully refused to bargain with the union. Securitas then filed this petition for review with the Eighth Circuit challenging the determination that it failed to carry its burden of proving the supervisory status of lieutenants. The NLRB filed a cross petition seeking enforcement of its refusal-to-bargain order.
The determination whether an employee is excluded from the protections of the Act because of supervisory status is a fact-intensive question "which calls upon the [NLRB's] special function of applying the general provisions of the Act to the infinite gradations of authority within a particular industry." NLRB v. Chem Fab Corp., 691 F.2d. 1252, 1256 (8th Cir. 1982) (citing NLRB v. Broyhill Co., 514 F.2d 655, 658 (8th Cir. 1975)). As a consequence, the NLRB's factual findings are reviewed "under the deferential substantial ...