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March 24 — The National Labor Relations Board properly determined that a class of security officers could seek union representation because the employer failed to show the workers had supervisory authority that rendered them ineligible for representation, the U.S. Court of Appeals for the Eighth Circuit ruled March 24.
Denying a petition for review by Securitas Critical Infrastructure Services Inc., the federal appeals court said the company failed to meet its burden of proving that mid-level security officers called lieutenants were supervisors under Section 2(11) of the National Labor Relations Act.
Although the lieutenants served as response team leaders during security threats, the response strategy was mostly “preformulated” and lieutenants didn't engage in independent judgment, according to a lieutenant's testimony.
Furthermore, “Securitas failed to present any specific exemplar evidence of a lieutenant exercising independent judgment as a response team leader,” the court said.
This ruling emphasizes that it is the employer's burden to show the workers are supervisors. The employer must produce some evidence that the purported supervisors are held accountable for their subordinates' performance.
Securitas began providing security services for an Xcel Energy nuclear power plant in Minnesota in January 2014, according to the court.
Shortly thereafter, the United Security Professionals Local 2 sought to represent the lieutenants. But Securitas argued that the lieutenants had supervisory authority, which made them ineligible for union representation.
The plant had 120 security officers, 24 lieutenants, five captains and one security operations supervisor, according to the court.
Securitas said the lieutenants practiced independent judgment and had supervisory authority in emergency situations. During a security threat to the plant, the lieutenants served as response team leaders and directed the security officers on the use of force.
Michael Stidmon was the only lieutenant to provide testimony before an NLRB regional director. Stidmon said his general duties were controlled by local, state and federal regulations and by Xcel and Securitas policies.
Furthermore, he claimed his duties as a response team leader were mostly “preformulated” by policies, procedures and regulations that govern nuclear power plant security.
Siding with the lieutenants, the regional director held that Securitas failed to meet its burden of showing the workers were supervisors.
The record didn't reveal any specific incidences in which a lieutenant was disciplined or otherwise affected by a security officer's performance, the regional director had found.
In a 2-1 decision, an NLRB panel denied Securitas's petition for review. But when the lieutenants voted to be represented by the union, Securitas refused to negotiate.
The NLRB found that the company's refusal to bargain with the union was unlawful.
Thereafter, the company asked the Eighth Circuit to review the determination on the lieutenants' supervisory status, and the NLRB filed a cross-petition to enforce its “refusal-to-bargain order.”
On appeal, Securitas argued that the board erroneously concluded that the lieutenants were not supervisors.
“The NLRB, however, never concluded the lieutenants are not supervisors; it merely concluded Securitas failed to meet its burden of proving the lieutenants are supervisors,” the appeals court said.
Stidmon testified that his job duties were controlled by rules and regulations, that he needed approval from superiors for some actions, and that other duties were too routine to merit independent judgment, the court said.
The court rejected the company's argument that the board impermissibly required it to provide specific examples of the lieutenants' independent judgment.
Securitas wasn't required to provide examples, the appeals court said. Rather, this was just one factor in the board's determination that the company failed to meet its burden, it said.
The company could have satisfied its burden without disclosing classified information, but it didn't, the court said in denying the company’s petition and granting the board’s cross-petition.
Judge Kermit E. Bye wrote the opinion, joined by Judges Jane Kelly and Lavenski R. Smith.
Thomas L. Henderson of Ogletree, Deakins, Nash, Smoak & Stewart PC in Memphis, Tenn., argued for Securitas. NLRB attorney Gregoire Sauter in Washington argued for the board.
To contact the reporter on this story: Lisa Nagele-Piazza in Washington at firstname.lastname@example.org
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Securitas_Critical_Infrastructure_Services_Inc_Petitioner_v_Natio.
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