The Wackenhut Corporation d/b/a G4S

National Labor Relations Board - Board Decisions

Sep 28, 2012

358 N.L.R.B. 1701 (N.L.R.B. 2012)

G4S REGULATED SECURITY SOLUTIONS 1701
358 NLRB No. 160
G4S Regulated Security Solutions, a Division of G4S
Secure Solutions (USA) Inc. f/k/a the
Wackenhut Corporation and Thomas Frazier
and Cecil Mack. Cases 12–CA–026644 and 12–
CA–026811
September 28, 2012
DECISION AND ORDER REMANDING
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND BLOCK
On June 27, 2011, Administrative Law Judge William
N. Cates issued the attached decision. The Acting Gen-
eral Counsel filed exceptions and a supporting brief, the
Respondent filed an answering brief, and the Acting
General Counsel filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order
Remanding.
The Respondent discharged Charging Parties Thomas
Frazier and Cecil Mack, both lieutenants in its security
force at Florida Power & Light’s Turkey Point, Florida
nuclear power plant. The Respondent contends in this
case that Lieutenants Frazier and Mack are statutory su-
pervisors who possess the authority to discipline, to pro-
mote (through evaluations), to assign, and responsibly to
direct. Agreeing with each of these contentions, the judge
concluded that the Respondent did not violate the Act by
discharging them. For the reasons stated below, 1 we
find that Frazier and Mack are statutory employees pro-
tected by the Act. Accordingly, we reverse the judge and
remand the case to him to determine whether their dis-
charges violated Section 8(a)(1) of the Act as alleged in
the complaint.

1 In 2003, the Board certified the International Union, Security, Po-
lice and Fire Professionals of America as the representative of a unit of
Turkey Point sergeants. Shortly thereafter, the Respondent unilaterally
eliminated the newly represented sergeant classification and transferred
some of the work performed by that bargaining unit to nonunit lieuten-
ants. The Board found that these actions violated Sec. 8(a)(5) and (1) in
Wackenhut Corp., 345 NLRB 850 (2005). The Board held that the
newly created lieutenants to whom the Respondent had transferred the
unit work were not statutory supervisors, specifically rejecting the
Respondent’s claim that they disciplined, or directed the work of, the
guards with the requisite independent judgment. To the extent that the
Acting General Counsel argues that the Board is bound by this earlier
decision, we need not pass on that argument because we find that the
Respondent has failed to carry its burden of proving supervisory status
based on the record in the present case.
I. ANALYSIS
A. Applicable Principles
Section 2(11) of the Act defines a “supervisor” as

any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.

To establish that Frazier and Mack are supervisors, the
Respondent must prove by a preponderance of the evi-
dence: (1) that they held authority to engage in any one
of the 12 enumerated supervisory functions listed above;
(2) that their “exercise of such authority [was] not of a
merely routine or clerical nature, but require[d] the use of
independent judgment”; and (3) that their authority was
held “in the interest of the employer.” See, e.g., NLRB v.
Kentucky River Community Care, Inc., 532 U.S. 706,
710–713 (2001); Oakwood Healthcare, Inc., 348 NLRB
686, 687 (2006). The Respondent can prove that they
had the requisite supervisory authority either by demon-
strating that they actually performed a supervisory action
or by showing that they effectively recommended that it
be done. Oakwood, above. Further, “to exercise ‘inde-
pendent judgment’ an individual must at minimum act,
or effectively recommend action, free of the control of
others and form an opinion or evaluation by discerning
and comparing data.” Id. at 692–693. A “judgment is
not independent if it is dictated or controlled by detailed
instructions, whether set forth in company policies or
rules, the verbal instructions of a higher authority, or in
the provisions of a collective-bargaining agreement.” Id.
at 693.
Because the Respondent bears the burden of proving
supervisory status, the Board must hold against the Re-
spondent any lack of evidence on an element necessary
to establish supervisory status. See, e.g., Dean & Deluca
New York, Inc., 338 NLRB 1046, 1048 (2003). The Re-
spondent has not proven supervisory status where the
record evidence is inconclusive or otherwise in conflict.
See, e.g., Phelps Community Medical Center, 295 NLRB
486, 490 (1989). Likewise, “mere inferences or conclu-
sionary statements, without detailed, specific evidence,
are insufficient to establish supervisory authority.” Al-
ternate Concepts, Inc., 358 NLRB 292, 294 (2012); see
also Avante at Wilson, Inc., 348 NLRB 1056, 1057
(2006); Golden Crest Healthcare Center, 348 NLRB
727, 731 (2006). Also, job descriptions, job titles, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1702
similar “paper authority,” without more, do not demon-
strate actual supervisory authority. Golden Crest, supra.
Applying these principles here, we find that the evi-
dence in this case falls well short of meeting the Re-
spondent’s burden of proving that the lieutenants possess
any indicia of supervisory authority.
B. Authority to Discipline
Based on Project Manager Michael Mareth’s testimo-
ny, the judge found that lieutenants can issue any type of
discipline, except termination, without consulting a su-
pervisor.2 The judge further found, based on Mareth’s
testimony, that lieutenants had certain discretion when
issuing discipline. For instance, they can decide not to
issue formal discipline or can choose, for certain infrac-
tions, which level of discipline to issue. The judge also
observed that the Respondent introduced eight discipli-
nary notices issued by lieutenants. The judge acknowl-
edged that none of the eight disciplinary citations was
issued by Frazier or Mack, and that there is no evidence
that either Frazier or Mack ever disciplined a security
officer in their approximately 7 years as lieutenants. In
addition, none of the lieutenants who signed the discipli-
nary forms testified. Nevertheless, the judge concluded
that the lieutenants exercised the authority to discipline
with independent judgment. For the following reasons,
we disagree.
We find that Mareth’s testimony is insufficient to carry
the Respondent’s burden. Mareth, as the most senior
manager in charge of security at the facility, is several
levels removed from the lieutenants in the Respondent’s
hierarchy. And there is no record evidence that he ever
served as a lieutenant. Perhaps not surprisingly,
Mareth’s testimony consists chiefly of conclusory re-
sponses to leading questions by counsel.3 Mareth did not
describe what procedures, protocols, criteria, or other
factors govern lieutenants’ decisions in this area. See,
e.g., Lynwood Manor, 350 NLRB 489, 490 (2007). In
fact, Mareth did not testify to a single specific instance in
which a lieutenant had used discretion or independent

2 The judge generally credited Mareth and discredited Frazier where
the latter’s testimony was contradicted by others or called into question
by documentation. Mack’s testimony was less extensive than Frazier’s
but, in all important respects, was consistent with it. Consequently, in
rejecting Frazier’s testimony as he did, the judge implicitly discredited
Mack’s like testimony as well. See, e.g., Miceli & Oldfield, Inc., 357
NLRB 505, 505 fn. 2 (2011) (decision as a whole shows judge discred-
ited charging party). No party has excepted to the judge’s credibility
findings. Accordingly, we do not rely on those portions of Frazier’s or
Mack’s testimony that the judge discredited.
3 For example: “Q. Do lieutenants have any role in disciplining secu-
rity officers? A. Yes, they do.” ”Q. Do lieutenants have any—exercise
any discretion in issuing discipline under this policy? A. Yeah, they
have the ability to do that, yes.”
judgment regarding discipline. See, e.g., Avante at Wil-
son, Inc., supra, 348 NLRB at 1057 (rejecting claim of
supervisory status absent testimony on specific exam-
ples). Such generalized testimony is insufficient to es-
tablish supervisory status. See Alternate Concepts, su-
pra, 358 NLRB at 294. Accord: Oil, Chemical & Atomic
Workers v. NLRB, 445 F.2d 237, 243 (D.C. Cir. 1971)
(“[W]hat the statute requires is evidence of actual super-
visory authority visibly translated into tangible examples
demonstrating the existence of such authority.”), cert.
denied 404 U.S. 1039 (1972).
Contrary to the judge, we find that the eight discipli-
nary notices admitted into evidence do not shed any ad-
ditional light on the lieutenants’ disciplinary authority.
The notices refer to, and were issued pursuant to, the
Respondent’s attendance and progressive discipline poli-
cies, which spell out in detail the level of discipline to be
imposed for various offenses.4 Moreover, there is simply
no detailed, specific evidence in the record as to what
role the lieutenants who signed those notices played in
making the decision to discipline the security officers.
Such evidence could have been provided by the lieuten-
ants themselves, but the Respondent failed to call any of
them to testify. Thus, the record does not establish, for
example, whether lieutenants themselves decided to dis-
cipline an employee at a certain level and then prepared
and signed the disciplinary notices based on that deci-
sion, or whether they simply signed and delivered al-
ready-prepared notices at the behest of higher-ranking
supervisors. In fact, there is some evidence in the record
that suggests the latter possibility. One of Frazier’s per-
formance evaluations explicitly instructed him to consult
the detailed corporate progressive discipline policy and
to get a captain’s review before issuing discipline.5

4 The attendance policy contains 15 detailed pp. of directives regard-
ing absences and the appropriate discipline for various numbers of
absences. The progressive discipline policy consists of 11 pp. of equal-
ly detailed guidelines covering a wide array of other offenses.
5 As our dissenting colleague observes, some infractions could be
punished at different levels, the unsatisfactory performance provision
of the discipline policy allows for some discretion “in the opinion of
management,” and the policies are characterized as “guidelines.” He
also points to the “Supervisory Requirements” document signed by
Frazier and Mack indicating they had the authority to use progressive
discipline. But such “paper authority,” without more, is insufficient.
See, e.g., Golden Crest, supra. And, as discussed, there is no “more”
here, as the record is devoid of evidence that the lieutenants, in actual
practice, exercise independent judgment in disciplining guards.
Further, our dissenting colleague’s reliance on Oak Park Nursing
Care Center, 351 NLRB 27, 28–29 (2007), is misplaced. In that case,
the putative supervisors testified, and the Board majority found, that
they alone decided whether the misconduct at issue warranted a verbal
warning or written documentation. The record here does not establish
that the lieutenants exercise similar discretion.
G4S REGULATED SECURITY SOLUTIONS

1703
C. Authority to Promote (Through Evaluations)
The judge found that only lieutenants regularly prepare
written evaluations of security officers and that the Re-
spondent utilized these evaluations in its promotion poli-
cy. Specifically, the Respondent’s promotion policy
prescribed a five-stage process leading to promotion: (1)
a written examination; (2) oral questions and an inter-
view by a multimember promotion board; (3) review of
performance appraisals, attendance records, achieve-
ments, and discipline history; (4) review of educational
background; and (5) promotion board review of candi-
dates and selection of a finalist, whose promotion re-
quired the concurrence of the project manager. The
judge further found based on Mareth’s testimony that,
under this policy, at least four unnamed security officers
had their promotions “impacted” by their lieutenant’s
evaluations. He observed that Frazier acknowledged that
a bad evaluation could impact a security officer’s promo-
tion possibilities. Based on this evidence, the judge con-
cluded that the lieutenants independently performed
evaluations of their direct subordinates that led to promo-
tions and, by so doing, exercised the power to promote.
For the reasons stated below, we disagree.
Evaluating employees is not one of the 12 supervisory
functions listed in Section 2(11). Authority to “promote”
is. To tie the lieutenants’ evaluations of the guards to
Section 2(11) authority, the Respondent was required to
establish that lieutenants’ evaluations affected guards’
promotion prospects. In other words, under Board law,
an evaluation is evidence of supervisory status only if the
evaluation, by itself, affects an employment term or con-
dition. See Pacific Coast M.S. Industries, 355 NLRB
1422, 1423 fn. 13 (2010); Elmhurst Extended Care Fa-
cilities, 329 NLRB 535, 536 (1999); Northcrest Nursing
Home, 313 NLRB 491, 498 (1993). The judge failed to
acknowledge or apply this standard.
Applying that standard, we find that the evidence in
this record does not establish that a lieutenant’s evalua-
tion, by itself, affects a guard’s promotion. It is undis-
puted that consideration of evaluations was only one step
in a multilayered formal promotion procedure. That pro-
cedure did not attach any particular weight or signifi-
cance to evaluations. Instead, they were just one piece of
data that had to be assessed in the third step of the pro-
motion board’s review of candidates. Mareth did testify
that, in accordance with the promotion procedures, eval-

Our dissenting colleague also argues that our decision today is out of
step with other decisions finding that individuals with similar job titles
at other nuclear facilities are supervisors. He likewise charges that,
based on our decision, none of the Respondent’s managers could exer-
cise the authority to discipline. We are deciding only this case, howev-
er, and doing so based on the record the parties themselves created.
uations had been “considered” and, in a few cases, had
an “impact” on guard promotions. But the Respondent
failed to clarify this generalized testimony. Similarly,
Frazier’s testimony, under cross-examination by the Re-
spondent’s counsel, that a guard who repeatedly received
poor evaluations “might not” be promoted amounts to
little more than speculation on his part. Accordingly, we
find that the Respondent has failed to carry its burden to
prove that a lieutenant’s evaluation, by itself, affects a
security guard’s promotion.6
D. Authority to Assign
The judge also found that the lieutenants were supervi-
sors based on their alleged authority to make assign-
ments. Again, we disagree. It is undisputed that cap-
tains, not lieutenants, assigned guards to posts at the start
of shifts. Mareth testified, without elaboration, that lieu-
tenants could allow guards to switch such assigned posts
for reasons of personal preference or for “operational
reasons.” Frazier testified that lieutenants could approve
post switches without a captain’s approval. The judge
simply stated, with no supporting analysis, that this was
sufficient to establish the use of independent judgment in
assigning the guards.
Contrary to the judge, Mareth’s and Frazier’s sparse
testimony does not establish that lieutenants exercised
independent judgment in the assignment of unit guards.
The 2(11) authority to “assign” refers to the act of desig-
nating an employee to a place (such as a location, de-
partment, or wing), appointing an employee to a time
(such as a shift or overtime period), or giving an employ-
ee significant overall duties, i.e., tasks. See, e.g.,
Oakwood Healthcare, supra, 348 NLRB at 689. Even
assuming that it has shown something akin to 2(11) as-
signment authority, the Respondent presented no evi-
dence at all that lieutenants used the requisite “independ-
ent judgment” in connection with those assignments.
The lieutenants’ ability to allow post switches for per-
sonal reasons is clearly insufficient. See Children’s
Farm Home, 324 NLRB 61, 64 (1997) (schedule changes
based on employees’ expressed preferences do not
demonstrate “independent judgment” to assign). Moreo-
ver, Mareth’s testimony about post switches for “opera-
tional reasons” was, like much of his testimony, purely
conclusory. He gave no explanation, details, or specifics
about what a switch for “operational reasons” might en-

6 Given our finding, we need not determine whether lieutenants ex-
ercise independent judgment in evaluating security officers.
The Respondent’s reliance on Bayou Manor Health Center, 311
NLRB 955 (1993), and Entergy Systems & Service, 328 NLRB 902
(1999), is misplaced because the evaluations prepared by alleged su-
pervisors in those cases did directly affect employees’ promotions or
wage increases.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1704
tail. Similarly, although the lieutenants could assign
guards to work locations to respond to emergencies, and
one could imagine that making such assignments would
require independent judgment,7 Mareth’s testimony in
this area was wholly conclusory, lacking any specific
examples or details of how lieutenants actually handled
emergencies. See, e.g., Alternate Concepts, supra, 358
NLRB at 294 (detailed, specific evidence needed to show
supervisory authority).
E. Authority Responsibly to Direct
Last, we cannot accept the judge’s finding that the Re-
spondent established that lieutenants responsibly directed
guards. In support of this argument, Mareth testified that
substandard guard performance could lead to discipline
of a lieutenant and that poor quality work by the guards
whom a lieutenant supervised could adversely affect the
lieutenant’s promotion chances. In addition, the Re-
spondent introduced documentary exhibits recording a
few instances in which lieutenants were counseled for
not properly training their subordinates. Despite the lack
of any specific instances in which a lieutenant had in fact
been disciplined for a subordinate’s failings, the judge
found that this evidence demonstrated supervisory au-
thority.
Under Oakwood Healthcare, showing that a putative
supervisor possesses authority “responsibly to direct”
employees requires evidence that the asserted supervisor
is “accountable” for subordinates’ performance. 348
NLRB at 691–692. Among other elements of proof, it
must be shown that “there is a prospect of adverse con-
sequences for the putative supervisor” if he or she does
not properly direct work and take necessary corrective
action. Id. at 692.
Mareth’s rote and conclusory testimony on lieutenant
accountability fell well short of that standard. He stated
that, hypothetically, lieutenants could suffer negative
consequences from poor subordinate performance. He
did not relate, however, any specific instances in which
lieutenants had been disciplined or had their promotion
chances reduced as a result of poor guard performance.
See, e.g., Lynwood Manor, supra, 350 NLRB at 490–491
(no supervisory status absent evidence of specific in-
stances of accountability). The Respondent’s exhibits on
accountability all were warnings in which lieutenants
were counseled for their own mistakes in training guards,
not for the failings of the subordinates themselves. Such
evidence, as a matter of law, does not show the requisite
accountability. See, e.g., Entergy Mississippi, Inc., 357
NLRB 2150, 2155 (2011) (rejecting “responsibly to di-

7 Frazier assumed as much in his testimony.
rect” argument where putative supervisor was disciplined
based on his own failings).8
II. CONCLUSION
We conclude that the Respondent has failed to carry its
burden to prove that the lieutenants at issue were super-
visors within the meaning of Section 2(11) of the Act.
We therefore reverse the judge’s dismissal of the com-
plaint. We shall remand the case for appropriate credi-
bility resolutions, findings of fact, and conclusions of law
on the merits of the complaint allegations that the Re-
spondent violated Section 8(a)(1) by discharging Frazier
and Mack because they engaged in protected, concerted
activities.
ORDER
IT IS ORDERED that this proceeding is remanded to
Administrative Law Judge William N. Cates for further
appropriate action as set forth above.
IT IS FURTHER ORDERED that based on the existing rec-
ord, the judge shall prepare a supplemental decision set-
ting forth credibility resolutions, findings of fact, conclu-
sions of law, and a recommended order regarding solely
the 8(a)(1) discharge allegations. Copies of the supple-
mental decision shall be served on all parties, after which
the provisions of Section 102.46 of the Board’s Rules
and Regulations shall be applicable.

MEMBER HAYES, dissenting.
The Board has previously recognized that lieutenants
overseeing nuclear power plant security are statutory
supervisors.1 As first-line supervisors in a military-type
security force charged with protecting these plants, they
must have the authority to issue orders and to discipline
subordinates who fail to carry them out. Maine Yankee
Atomic Power Co. v. NLRB, 624 F.2d 347, 357 (1st Cir.

8 The Respondent contends that various secondary indicia support a
finding of supervisory authoritya position the dissent also advances.
But Board law is clear that, without sufficient proof of 2(11) primary
indicia, secondary indicia do not establish supervisory authority. See,
e.g., Pacific Coast M.S. Industries, supra, 355 NLRB at 1423 fn. 13.
And, as demonstrated above, the Respondent’s conclusory, unspecific
proof of primary indicia was wholly inadequate.
1 Burns Security Services, 278 NLRB 565 (1986) (lieutenants and
sergeants at the Connecticut Yankee nuclear power plant were statutory
supervisors). While not binding on the Board, several Regional Direc-
tor decisions reach the same conclusion. See Pinkerton Government
Services, Case 10–RC–015511 (May 2, 2005) (sergeants at the Watts
Bar, Tennessee nuclear power plant were statutory supervisors); Fluor
Hanford, Inc., Case 19–RC–015019 (November 6, 2007) (lieutenants
working for a private contractor at a Department of Energy nuclear site
were statutory supervisors); G4S Regulated Security Solutions, Case
01–RC–064709 (October 25, 2011) (sergeants at the Seabrook, New
Hampshire nuclear site were 2(11) supervisors based on their authority
to issue oral counselings and written warnings under a progressive
disciplinary system).
G4S REGULATED SECURITY SOLUTIONS

1705
1980) (stating that it is “desirable and perhaps often es-
sential that someone be in charge to call the shots”). In
this case, the Respondent plainly expected Charging Par-
ties Thomas Frazier and Cecil Mack, as lieutenants in its
security force at the Turkey Point, Florida nuclear power
plant, to exercise that authority. Frazier and Mack just as
plainly did not do so and even denied possessing that
authority—denials the judge refused to credit. Contrary
to my colleagues, I would affirm the judge’s determina-
tion that Frazier and Mack possess 2(11) supervisory
authority to discipline employees and his resulting rec-
ommendation that the complaint, alleging that their dis-
charges were unlawful, be dismissed.2
Frazier and Mack were 2(11) supervisors if (1) they
held authority to engage in one of the 12 supervisory
functions listed in that provision; (2) their “exercise of
such authority [was] not of a merely routine or clerical
nature, but require[d] the use of independent judgment;”
and (3) their authority was held “in the interest of the
employer.” See, e.g., NLRB v. Kentucky River Commu-
nity Care, Inc., 532 U.S. 706, 710–713 (2001); Oakwood
Healthcare, Inc., 348 NLRB 686, 687 (2006). Because
discipline is one of the powers enumerated in Section
2(11), holding (in the interest of the Respondent) the
authority to discipline with independent judgment was,
by itself, enough to make Frazier and Mack statutory
supervisors.
Along with 13 other guards, Frazier and Mack were
promoted from the bargaining unit to lieutenant in 2003.
The Respondent’s project manager, Michael Mareth,
testified that lieutenants could impose all forms of pro-
gressive discipline, except termination, without advance
approval of a captain or other higher-ranking officer. He
also explained that lieutenants, on their own, could de-
cide whether or not to issue discipline, to let an offense
go unpunished, or to use the incident as a “coaching”
opportunity. Additionally, Mareth testified that, where
offenses were listed at two levels of progressive disci-
pline, lieutenants had discretion to impose discipline at
either level. This credited testimony established all ele-
ments of Frazier’s and Mack’s 2(11) disciplinary authori-
ty, including independent judgment. See Oak Park Nurs-
ing Care Center, 351 NLRB 27, 28–29 (2007) (authority
to issue employee counseling forms evinces 2(11) super-
visory status, where disputed individuals had discretion
to decide whether to document infraction).3

2 I find it unnecessary, therefore, to pass on the majority’s reversal of
the judge on the other three supervisory indicia at issue here—the au-
thority to promote (through performance evaluations), to assign, and
responsibly to direct.
3 Although the judge credited Mareth’s testimony, the majority nev-
ertheless disregards it on the theory that, as the senior Turkey Point
The majority, however, rejects Mareth’s testimony as
too conclusory and unspecific. I do not. As shown
above, Mareth’s testimony was clear and specific regard-
ing the extent of lieutenants’ authority to discipline and
the circumstances under which they could exercise statu-
tory “independent judgment.” Further, Mareth’s testi-
mony has ample support from other quarters. Frazier
admitted that, as a lieutenant, he “had the authority to
issue oral and written warnings” and that he “had the
authority to issue discipline at least at certain levels.”
Both he and Mack acknowledged that they had signed a
“Supervisory Requirements” document confirming that
their job duties included imposing “progressive disci-
pline.” Frazier also conceded that he could have exer-
cised disciplinary “independent judgment,” but he never
saw the need to issue discipline. This was more than
enough to establish the authority to discipline with inde-
pendent judgment. See, e.g., Oak Park Nursing Center,
supra, 351 NLRB at 29.4
In addition, the Respondent presented eight Employee
Disciplinary/Corrective Action Notices recording various
forms of discipline by various lieutenants. These disci-
plinary notices covered a wide range of offenses—
tardiness, absenteeism, training failure, and the inherent-
ly discretionary “unsatisfactory performance in the opin-
ion of management.” Seven different lieutenants im-
posed discipline on five bargaining-unit guards, and the
levels II and III sanctions included oral warnings, written
reprimands, and 1-day suspensions. Thus, the Charging
Parties themselves and unchallenged documents supplied
first-hand corroboration of Mareth’s testimony.
My colleagues dismiss this evidence on the basis that
the Respondent’s progressive discipline policy was so
inflexible that lieutenants could not exercise disciplinary
independent judgment. This misconstrues the record.
The progressive discipline policy expressly states that its
three levels of offenses “are only guidelines.” It also
recognizes that there may be instances in which a guard

security manager, he was too far removed from the lieutenants to pro-
vide sufficient testimony as to their disciplinary authority. The record
shows otherwise. Only two managerial levels (an operations manager
and five captains) separated the lieutenants and Mareth, who had been
“in charge” of Turkey Point security for 3 years and had worked for the
Respondent for 28 years. Mareth testified at length regarding the posi-
tion and duties of the lieutenants and his testimony on disciplinary
authority was corroborated by Frazier and Mack themselves and by
discipline notices drafted by other lieutenants. The judge relied on
Mareth’s testimony in these circumstances, and so would I.
4 As noted above, the judge found that Frazier made an effort to min-
imize his authority as a lieutenant, and discredited his testimony “where
[it was] contradicted by the testimony of others or called into question
by documentation.” Consistent with this ruling, I have relied on Fra-
zier’s admissions to possessing supervisory authority that are consistent
with Mareth’s testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1706
could commit an unlisted offense or in which following
the guidelines would not be practical. There is an of-
fense listed at two levels—“[f]ailure to meet satisfactory
job performance or behavior standards in the opinion of
management”—that explicitly requires supervisory
judgment (emphasis added). And, as the Board cau-
tioned in Oakwood Healthcare, “the mere existence of
company policies does not eliminate independent judg-
ment from decision-making if the policies allow for dis-
cretionary choices.” 348 NLRB at 693. The progressive
discipline policy here expressly does so.5
Concededly, the Board found that the Respondent did
not establish that certain Turkey Point lieutenants pos-
sessed 2(11) supervisory authority to discipline in
Wackenhut Corp., 345 NLRB 850, 855 (2005). But much
has changed since the Wackenhut record was compiled in
2004. Lieutenants personally signed the “Supervisory
Requirements” document described above in 2006, con-
firming their authority to impose progressive discipline.
Additionally, the Board in Wackenhut found that the
lieutenants at issue there did not use independent judg-
ment in issuing discipline in large part because lieuten-
ant-signed discipline documents all cited “specific, enu-
merated regulations” that were not in the record in that
case. 345 NLRB at 854. The lieutenant-issued employ-
ee discipline/corrective action notices here, however,
refer to either the progressive discipline policy or absen-
teeism policy. Those policies are in this record and, as
discussed above, they are not so detailed as to eliminate
lieutenant discretion. As such, independent judgment was
established on the record in this case.
Finally, lieutenants are paid more than security guards,
receive additional training not given to guards, are in-
cluded in management meetings that guards did not at-
tend, and perform little actual guard work. The Board
has regarded such evidence as persuasive “secondary
indicia” of supervisory status. See, e.g., American River
Transportation Co., 347 NLRB 925, 927 (2006) (higher
pay and better benefits); Burns Security, supra, 278
NLRB at 570 (sergeants and lieutenants attended month-
ly management meetings). Additionally, all Turkey Point
security constituencies viewed Frazier and Mack as su-
pervisors.6 And if the lieutenants were not supervisors,

5 The progressive discipline and attendance policies also apply to
disciplinary decisions by all levels of the Respondent’s management,
from lieutenants on up. If those policies preclude independent judg-
ment, the Respondent (and many other employers with like policies)
would have no statutory supervisors possessed of 2(11) disciplinary
authority.
6 The Respondent itself, as Frazier conceded, treated them as super-
visors. Frazier and Mack likewise viewed themselves as supervisors.
And Timothy Lambert, who had been the union president since May
2009 and a Turkey Point guard for over 10 years, stated that Frazier and
each captain would be responsible for supervising over
30 security guards—an implausibly large number given
the size, complexity and security sensitivity of the Tur-
key Point site. See, e.g., Burns Security, supra, 278
NLRB at 571 (finding lieutenants and sergeants to be
statutory supervisors with 2 to 1 guard-to-supervisor ra-
tio at nuclear power plant).
Under the preponderance of the evidence standard, the
Respondent established all elements of the lieutenants’
2(11) disciplinary authority. In finding otherwise, the
majority effectively imposes a higher standard of proof
on employers than is appropriate. My colleagues also
deprive the Respondent of its established right to the
undivided loyalty of those who command its security
force in securing the Turkey Point nuclear power plant
and responding to emergencies of any kind. Because this
step is not justified by precedent or the facts of this case,
I respectfully dissent.

Shelley Plass, Esq., for the Acting General Counsel.1
Fred Seleman, Esq., for the Respondent.2
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. These are
two discharge cases I heard in Miami, Florida, commencing on
April 4, 2011. The cases originate from a charge filed by
Thomas Frazier, an individual (Frazier), on February 22, 2010,
in Case 12–CA–026644 and filed by Cecil Mack, an individual
(Mack) on July 29, 2010, in Case 12–CA–026811, against G4S
Regulated Security Solutions, a Division of G4S Secure Solu-
tions (USA) Inc. f/k/a The Wackenhut Corporation (Company).
The prosecution of these cases was formalized on December
29, 2010, when the Regional Director for Region 12 of the
National Labor Relations Board (the Board), acting in the name
of the Board’s Acting General Counsel, issued a complaint and
notice of hearing (complaint) against the Company.
It is specifically alleged the Company, on or about February
2, 2010, indefinitely suspended its employee Mack and thereaf-
ter on February 15, 2010, discharged him; and, on or about
February 12, 2010, indefinitely suspended its employee Frazier
and thereafter on or about February 15, 2010, discharged him
because the two engaged in protected concerted activities and
to discourage employees from engaging in these or other con-
certed activities It is alleged the Company’s actions violate
Section 8(a)(1) of the National Labor Relations Act (the Act).
The Company, in a timely filed answer to the complaint, de-
nied having violated the Act in any manner alleged in the com-
plaint. The Company, as one affirmative defense, asserts Mack

Mack “were supervisors.” Lambert further testified that a lieutenant
would be his “first line of reporting” and “first line of supervision.”
1 I shall refer to counsel for the Acting General Counsel as counsel
for the Government and to the Acting General Counsel as the Govern-
ment.
2 I shall refer to counsel for the Respondent as counsel for the Com-
pany and I shall refer to the Respondent as the Company.
G4S REGULATED SECURITY SOLUTIONS

1707
and Frazier were supervisors of the Company within the mean-
ing of Section 2(11) of the Act and thus not protected by the
Act.
The parties were given full opportunity to introduce relevant
evidence, to examine and cross-examine witnesses, and to file
briefs. I carefully observed the demeanor of the witnesses as
they testified and I rely on those observations in making credi-
bility determinations herein. I have studied the whole record,
the posttrial briefs, and the authorities cited therein. Based on
the detailed findings and analysis below, I conclude and find,
that at all times material herein, Frazier and Mack served as
supervisors of the Company within the meaning of the Act and
outside the Act’s protection. I find the Company did not violate
the Act when it suspended and thereafter discharged Frazier
and Mack.
FINDINGS OF FACT
I. JURISDICTION, LABOR ORGANIZATION STATUS, AND
SUPERVISORY/AGENCY STATUS
The Company is a Delaware corporation engaged in the
business of providing guard and security services to clients
throughout the United States, including the Florida Power &
Light Company’s power plant located at Turkey Point in Mi-
ami-Dade County, Florida (Turkey Point), and other facilities
located in the State of Florida. During the 12-month period
ending December 29, 2010, a representative period, the Com-
pany purchased and received at Turkey Point, and at its other
facilities located in the State of Florida, goods and services
valued in excess of $50,000 directly from points outside the
State of Florida. The evidence establishes, the parties admit,
and I find the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The parties admit, and I find, International Union, Security,
Police and Fire Professionals of America (SPFPA) (the Union)
is, and has been, a labor organization within the meaning of
Section 2(5) of the Act.
It is admitted Security Shift Supervisor Quentin Ferrer,
Leadership Development Coordinator Karen Bower Macdon-
ald, Project Manager Michael Mareth, Security Shift Supervisor
Gonzalo Pedroso, and Operations Manager Juan Rodriquez are
supervisors and agents of the Company within the meaning of
Section 2(11) and (13) of the Act.
The first, fundamental and controlling issue is whether Secu-
rity Lieutenants Frazier and Mack, at material times herein,
were supervisors for the Company within the meaning of Sec-
tion 2(11) of the Act. If they were supervisors they would not
be protected by the Act and the Company’s suspending and
discharging them would not violate the Act. In as much as I
find the two to be supervisors the remaining issues need not be
addressed, namely, whether Frazier and Mack engaged in con-
certed activities protected by the Act and whether they were
discharged for doing so. Nor is it necessary to address the
Company’s affirmative defense that Frazier and Mack were
discharged for valid considerations not based on unlawful mo-
tives or considerations.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
The Company provides guard and security services for Flor-
ida Power & Light at its Turkey Point (Miami/Dade County,
Florida) nuclear generating stations. The Company provides its
services pursuant to a written agreement with Florida Light &
Power and provides its services supportive of, and in compli-
ance with, site security programs which in turn are in compli-
ance with Nuclear Regulatory Commission requirements, spe-
cifically Title 10, Code of Federal Regulations 73.55. Florida
Power & Light owns several thousand acres at its Turkey Point
Nuclear Power Plant facility for which various levels of securi-
ty are furnished by the Company. Included in Florida Power &
Light’s Turkey Point property is an area referred to as the
“owner controlled area” which contains security fences and
intrusion detection devices. Within the protected area is a vital
area which contains the power block where the generating sta-
tions are that actually produce electrical power. The security
provided in all areas includes, as a applicable, patrols, duty
stations, and other personnel in various capacities. The Com-
pany has provided its services at Turkey Point for approximate-
ly 27 years and the Company’s current contract with Florida
Power & Light expires December 31, 2011.
The Company’s current name came into effect in 2009, how-
ever, prior to that date it, for an extended time, operated as The
Wackenhut Corporation. According to Project Manager
Mareth, the Company’s contract with Florida Power & Light
sets forth a description of the type of security services the
Company is to perform. The agreement also sets forth the gen-
eral staffing requirements and establishes procedures to amend
the agreement if it is necessary to change the staffing require-
ments. Project Manager Mareth stated that generally the secu-
rity officers performing security services at Turkey Point do not
change if the contract is awarded to a different security compa-
ny. It appears the staffing provisions in the agreement between
Florida Power & Light and the Company have remained the
same.
The Board in Wackenhut Corp., 345 NLRB 850 (2005), sets
forth a somewhat detailed history of labor relations between the
Union and Company herein. A “brief” review of that history,
taken from that Board case, without further referencing that
case, is perhaps helpful. Prior to September 1, 2003, the Com-
pany employed four categories of employees at its Turkey Point
facility, namely; captains, lieutenants, sergeants, and security
officers. Specifically in July 1999, the Board certified the Un-
ion as representative of the Company’s security officers at Tur-
key Point. The Board noted the category “security officer”
included central and secondary alarm station operators, un-
armed security officers/watchmen, and part-time security offic-
ers. Prior to the election that resulted in the above unit being
certified the Company stipulated it did not oppose the inclusion
of the central and secondary alarm station operators in the bar-
gaining unit. In 2002, the Union filed a petition seeking to rep-
resent the sergeants at Turkey Point. The Company opposed
the petition, asserting the sergeants were statutory supervisors.
The Regional Director for Region 12 of the Board issued a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1708
Decision and Direction of Election, in which she found the
sergeants were not supervisors under the Act. The Board de-
nied the Company’s request for a review of the Regional Direc-
tor’s decision. On March 4, 2003, the Union was certified as
the representative of the Company’s sergeants.
On May 28, 2003, Florida Power & Light issued a request
for proposals with bid specifications for a new security contract
setting forth staffing provisions which provided that supervisors
would be defined as nonbargaining personnel and that all per-
sonnel assigned to operate the central and secondary alarm
stations would be supervisors. Further, the new contract speci-
fications called for four security shifts per day with each shift
supervisor trained and certified to perform duties within the
central and secondary alarm stations, as well as to perform
other duties in the owner controlled and protected areas. In
June 2003, the Company notified Florida Power & Light that if
it was awarded the new contract operations at Turkey Point it
would change its operations in three ways: (1) The part-time
program would be eliminated; (2) The central and secondary
alarm station operators would be supervisors; and (3) The posi-
tion of sergeant would be eliminated. The Company was there-
after awarded the new security contract with Florida Power &
Light.
After obtaining the new contract with Florida Power &
Light, the Company announced a posting for new supervisory
positions with a requirement that applicants be able to operate
the central and secondary alarm stations. The Company then
filled 15 lieutenant positions by promoting unit employees into
the new positions. Starting on September 1, 2003, all central
and secondary alarm station duties were performed by lieuten-
ants. As a result of the changes implemented on September 1,
2003, the Company no longer employed anyone in sergeant
positions. The Board found the Company violated the Act by
eliminating the sergeant positions and by eliminating the cen-
tral and secondary security operators from the bargaining unit
and reclassifying the operators as nonunit lieutenants. The
Board also concluded the Company had failed to establish the
new lieutenants “assigned to perform CAS/SAS [central alarm
station/secondary alarm station] possessed or exercised super-
visory authority.”
With that brief review, I now turn to the facts surrounding
the issues herein. The Company’s highest ranking individual at
Turkey Point is Project Manager Mareth. He is assisted by
Operations Coordinator Rodriguez, Training Coordinator Roy
McCloud, Leadership Development Manager Macdonald, and
various other administrative personnel. There are five security
officer shifts. Each shift has 1-team shift captain, 7 lieutenants,
and approximately 37 security officers assigned. The security
teams are referred to as Alpha, Bravo, Charley, Delta, and
Echo. The Echo team is a training team that actually fills in for
each of the other four teams as each team must rotate into a
week of security training every 5 weeks. There are four teams
performing security services and one team in training at all
times. At applicable times herein (February 2010), there were
approximately 170 security officers employed at Turkey Point.
The current applicable unit description for security officers
follows:

The Company recognizes the International Union, Security,
Police, Fire Professionals of America (SPFPA) and its Amal-
gamated Local No. 610 as the exclusive collective bargaining
representative for all employees designated by the National
Labor Relations Board’s Certification of Representative is-
sued on July 8, 1999 in case No. 12–RC–008349, including
all security officers, and watchpersons [Unarmed Officers],
performing guard duties as defined in Section 9(b)(3) of the
National Labor Relations Act, as amended, who are employed
by the Employer at the Turkey Point Nuclear Power Plant, lo-
cated in Florida City, Florida; but excluding all office clerical
employees, professional employees and supervisors as de-
fined in the National Labor Relations Act, as amended.

Frazier was hired as a security officer in 1989 and Mack in
2002. Both were promoted to lieutenant in 2003. Both Frazier
and Mack were suspended from work a few days before they
were terminated on February 15, 2010. Frazier’s termination
notice reflects “Failure to meet satisfactory leadership expecta-
tions.” Mack’s termination notice reflects “Cecil was involved
in an incident with the client that involved undesired behavior.
As a part of the process management completed a review of
Cecil’s personnel file. As a result of the review it is manage-
ment’s perspective that Cecil’s performance does not meet
satisfactory job performance or behavior standards.”
2. Company’s evidence
As noted earlier the Company, asserts as an affirmative de-
fense, that Frazier and Mack were supervisors within the mean-
ing of Section 2(11) of the Act. With that assertion the Com-
pany assumes the burden of proving their supervisory status. I
consider the Company’s evidence first as it is the party assert-
ing the supervisor status and afterward, I shall consider evi-
dence presented by the Government bearing on the issue.
I note the position of lieutenant existed prior to Frazier and
Mack applying for and being promoted to lieutenants in the fall
of 2003. Frazier and Mack received pay raises at the time of
their promotions. Project Manager Mareth testified the pay
deferential between security guards, which Frazier and Mack
were, and lieutenants, to which they were promoted, was ap-
proximately $4 per hour. Lieutenants Frazier and Mack re-
ceived more life insurance coverage than the security officers.
Project Manager Mareth testified when an employee is promot-
ed to lieutenant he/she is given additional training not provided
to the security officers. The additional training is designed to,
in part; give the lieutenant “a better understanding of . . . per-
forming oversight and observation of day-to-day activities” a
lieutenant will encounter. Mareth further explained the training
for lieutenants is at a “higher level” than training for the securi-
ty officers. Leadership Development Coordinator Macdonald
testified she conducts 80 hours of initial leadership training
with lieutenants that includes interpersonal and presentation
skills, training which is not provided to the security officers.
Lieutenants also receive, on an ongoing basis, training not pro-
vided to the security officers. Lieutenants meet with upper
management at least once per month without security officers
being present.
Newly selected lieutenants, including Frazier and Mack,
signed various documents after becoming lieutenants they had
G4S REGULATED SECURITY SOLUTIONS

1709
not been required to sign as security officers. One such form
was a “Supervisory Requirements” form. On the “Supervisory
Requirements” form lieutenants are instructed they should use
coaching techniques as well as counseling and progressive
discipline to correct unprofessional conduct and poor job per-
formances and are to do so fairly and consistently. On the form
lieutenants are instructed to seek management assistance and
input when needed. Frazier and Mack acknowledged, on the
signed forms, they were to “[m]ake those accountable to [them]
aware of what [they] expect[ed] from them.” The two
acknowledge on the signed forms they were to “lead by exam-
ple” and “keep issues discussed between supervisors confiden-
tial.” Frazier and Mack specifically understood the Company
viewed them as supervisors. Frazier and Mack each signed a
company “Leadership Pledge” agreement in which they agreed
they would not tolerate inattentiveness within the ranks of their
direct reports; they would be receptive to concerns and ques-
tions raised by their direct reports; they would not tolerate retal-
iation or peer harassment within the ranks of their direct re-
ports; they would be observant to the work place behaviors of
their direct reports; they would listen effectively and respond
appropriately to their direct reports; they would use a non-
threatening communication style with their direct reports; and,
they would develop, coach, mentor, and train their direct re-
ports. In singing the “Leadership Pledge” both wrote the de-
scription of their position as that of “Supervisor.”
Frazier and Mack also executed “Management Challenge”
forms in which they acknowledged that as part of the “man-
agement team” they had an “obligation to operate above the
standard expectations” of their colleagues and being in supervi-
sion carried an accountability on their part for their teams per-
formance. Both acknowledged the Company is committed to
supporting them with relevant training to be successful supervi-
sors and they were aware of what it meant to supervise armed
personnel and that management standards for its supervisors in
this type environment had to be exceptionally high.
Local Union 610 president and security officer, Timothy
Lambert, testified regarding the duties of Frazier and Mack, in
part, as follows:

As long as I’ve known them and they were supervisors, . . . I
went to them because they cared about what was going on
there. I mean they were two excellent supervisors that really
cared about the operations.

Local Union President Lambert acknowledged that as a secu-
rity officer his first line supervisor was the lieutenant.
Project Manager Mareth testified, at length, regarding the
position and duties of lieutenants at the Company. There are
approximately 170 security officers that report directly to lieu-
tenants according to Mareth. Lieutenants in turn report to shift
captains. Mareth explained the Company’s supervisory struc-
ture is necessary so one individual, such as the captain, would
not be the only one responsible for supervising “30-some of-
ficers assigned to [a] particular shift” with the responsibility of
covering the several thousands of acres to be secured. Project
Manager Mareth testified lieutenants provide direct oversight to
the security officers in the field including addressing issues that
arise on the job. Project Manager Mareth explained that while
the Company is in a “regulated industry” with “a lot of proce-
dures for what we do, you can’t have a written procedure for
absolutely everything that you do in the field.” Mareth added
lieutenants “have to utilize judgment and discretion” in per-
forming their functions and may not have “a written line item
that tells [them] what to do.” Mareth said lieutenants “can
either address [the issues] at their level, or if its something that
they cannot address, then they can push it to a higher level and
it just continues all the way up . . . to my [Project Manager]
level.” Mareth said lieutenants oversee security officers in all
geographic areas at the Turkey Point facility and their oversight
includes evaluation of the security officers.
Florida Power & Light’s Turkey Point Nuclear Plant Securi-
ty Department, Security Force Instruction 1106, Revision 9
titled “Field Supervisors” is applicable to the Company herein
and, “provides guidance to Security Field Supervisors for per-
forming supervisory functions of Security Officers manning
security posts and assisting the Security Shift Supervisor in
carrying out daily Security Operations.” The title “field super-
visor” and “lieutenant” refers to the same position at the Com-
pany. Field supervisors are directed to ensure; that only quali-
fied security officers are assigned to posts; that security offic-
ers understand the specific requirements of their post; that secu-
rity officers remain alert, attentive, and properly perform their
duties; that security officers perform their duties in a safe envi-
ronment; that security officers properly maintain post reports;
and, that field supervisors initiate prompt and appropriate ac-
tions to correct any identified deficiencies including improper
behavior, attitude, or inattentiveness to duty.
Project Manager Mareth described, in general terms, a lieu-
tenant’s workday. The day starts with the morning shift brief-
ing conducted by the shift captain with, as appropriate, input
from the lieutenants. Lieutenants ensure the “off-going” securi-
ty officers are properly relieved and then issues weapons to the
“on-coming” security officers. Lieutenants perform equipment
inventories which includes verifying that the security officers
have all required equipment at their posts and are properly
logged in and fit for duty. Lieutenants are responsible for mon-
itoring the central and secondary alarm systems. Lieutenants
field questions from and address issues raised by the security
officers and make required security observation reports. Pro-
ject Manager Mareth stated lieutenants correct, coach, and
counsel, as needed. Lieutenants generally do not perform secu-
rity officer duties.
Project Manager Mareth further explained that lieutenants
are the first line supervisors to whom the security officers’
report, and can issue any type discipline, excluding termination,
without consulting a supervisor. The Company has a three-
level progressive disciplinary policy that consists of four steps.
Step one is oral counseling; step two is written disciplinary
counseling; step three is written disciplinary counseling and
suspension; and step four is termination of employment. Stated
somewhat differently level I, the highest level, results in termi-
nation. Level II is a documented discipline such as written
warnings, an accumulation of which results in termination.
Level III, the lowest level of discipline, typically starts with a
verbal warning or a verbal warning that is documented. The
progressive discipline policy and procedure reflects, “There are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1710
three levels of offenses (levels I, II, III). These are only guide-
lines for use by management and supervisor personnel.”
Mareth explained that if a lieutenant issued a written warning to
a security officer and the security officer committed a similar
infraction such would result in a suspension for the security
officer. Project Manager Mareth testified lieutenants may, and
do, exercise discretion when issuing discipline pursuant to the
Company’s disciplinary policies. For example, a lieutenant
may decide not to issue formal discipline for an infraction or
he/she can decide which level of discipline is appropriate as
there is some overlap between offenses listed at the disciplinary
levels. Mareth said a lieutenant may consult with the shift cap-
tain to determine if a past practice has been established for a
particular offense but is not required to do so. According to
Mareth lieutenants may, for example, issue a coaching, which
is not part of the formal disciplinary procedure unless docu-
mented, for a first offense and if there are other like offenses
determine at that time which level of discipline is warranted.
According to Project Manager Mareth, lieutenants do not have
to consult with their supervisor (captains) before issuing disci-
pline. Eight employee disciplinary/corrective action notices,
issued by six lieutenants, were received in evidence. Two of
the disciplinary actions resulted in written warnings with 1-day
suspensions; two involved written warnings only; and, four
involved written disciplinary actions documenting oral warn-
ings. Five of the disciplinary actions involved attendance in-
fractions, two involved failure to timely report for training, and
one involved a vehicle accident. None of the discipli-
nary/corrective action notices in evidence was issued by either
Frazier or Mack. In fact, neither Frazier nor Mack issued any
discipline of record.
Project Manager Mareth testified lieutenants perform evalua-
tions for their direct reports. Mareth explained the evaluations
are used in the promotional process for the security officers.
Mareth named four security officers whose recent promotions
were impacted by their lieutenant’s evaluations and added there
were perhaps eight other like situations, over the previous year
and half. No one higher in management than a lieutenant regu-
larly evaluates, in writing, the security officers. The evalua-
tions prepared by the lieutenants are used in the promotional
process in accordance with the Company’s policy manual at
“Promotion Policy and Procedure.” The manual states in part,
“the promotion process consists of several stages. The required
stages are as follows . . . review of performance appraisals.”
The portion of the manual covering promotions further states,
in part, that the promotion board shall review the personnel file
for each applicant for promotion with specific attention given to
performance appraisals.
According to Mareth, lieutenants can be disciplined, up to
and including discharge, if they fail to ensure the quality of
performance of the security officers under their command.
Mareth explained that a failure to ensure quality performance
by the security officers could also impact promotional opportu-
nities for lieutenants.
With respect to evaluations for the security officers, Charg-
ing Party Mack acknowledged that for 2 years prior to his dis-
charge he evaluated the six security officers that reported di-
rectly to him and he did so on a quarterly, as well as, annual
basis. Mack said he was told to perform the evaluations by his
immediate shift supervisor. Mack explained the evaluations
were mainly to set goals for the security officers. Mack went
over each evaluation with each security officer involved before
he turned the evaluations over to his superior, the shift captain.
Frazier also testified he evaluated the security officers that
reported to him on a quarterly and annual basis and was in-
structed by his immediate supervisor, Captain Ferrer, to do the
evaluations starting some 2 years prior to his discharge. Frazier
said he individually reviewed the evaluations with each security
officer and had them sign their evaluation before he turned the
evaluations over to Captain Ferrer. Frazier said he sometimes
made Captain Ferrer aware of what he had placed in a security
officer’s evaluation in case the officer questioned the evalua-
tion. Frazier identified some 83 pages of evaluations, which
were received in evidence, he made of certain security officers
that reported to him.
3. Government’s evidence relating to the supervisory issue
Frazier testified he commenced working for the Company at
Turkey Point in May 1989 when it was known as the
Wackenhut Corporation. Frazier worked as a security officer
when first hired. Frazier described his security officer duties as
protecting the plant from radiological sabotage by conducting
patrols; standing guard at specific posts; conducting fire watch;
fire watch patrols, checking doors and equipment; responding
to contingencies; doing vehicle patrols of owner-controlled
areas; working at various entry gates; searching vehicles and
materials; and, preventing unauthorized personnel and/or mate-
rials from entering the plant. Frazier said he conducted him-
self, and carried out his assigned duties in accordance with
Security Force Instructions established by Florida Light &
Power and the Company which provided him guidance on his
job functions and instructed him how to react in any given situ-
ation. Frazier said that late in his tenure as a security officer he
became central and secondary security alarm certified and mon-
itored computer screens for alarms at vital areas or fenced
zones. As a certified central and secondary alarm security of-
ficer Frazier said he would run reports, answer telephones,
provide information to the captains and dispatch officers to
alarms in accordance with the Security Force Instructions.
Frazier said his overall security officer duties did not change
when he became a certified central and secondary security
alarm officer that he just assumed the extra duties.
Frazier testified his position “changed slightly” when he be-
came a lieutenant in September 2003 and was assigned to the B
team where he worked seven 12-hour shifts every 14 calendar
days and reported to Shift Captain Quentin Ferrer. Frazier
described his lieutenant duties as, “ensuring that qualified secu-
rity officers are manning the various posts, qualified in the SFI
[Security Force Instructions],” “to verify the paperwork, to
ensure that the general purpose logs and post or patrol logs are
correctly filled out,” and to, “ensure that the officers were alert,
attentive, are aware of their assigned duties as set forth by the
general purpose log and the SFIS.” Frazier further explained
his duties included ensuring the security officers “equipment
was in proper working order and not damaged or been tam-
pered with” and to ensure the security officers worked in a safe
G4S REGULATED SECURITY SOLUTIONS

1711
clean environment and conducted their patrols according to the
Security Force Instructions. Frazier said his central and sec-
ondary alarm system duties remained the same as when he was
a security officer. Frazier said he knew what all of his duties as
a lieutenant were because his duties were written out in the
Security Force Instructions, training manuals, administrative
directives, and by his lengthy experience at Turkey Point. Fra-
zier added there had been sergeant positions at the Company at
the time he was a security officer but by the time he became a
lieutenant in September 2003, the sergeant positions had been
eliminated. Frazier explained sergeants “essentially” per-
formed the same tasks he performed as a lieutenant but after
further questioning by Government Counsel Frazier stated ser-
geants and lieutenants performed the same job.
Frazier testified he had daily contact with security officers,
other lieutenants, and at least one captain. He said he com-
menced his workday at the shift briefing attended by those
mentioned above, as well as, on occasion Florida Power &
Light security oversight specialists and other company man-
agement such as Project Manager Mareth and Operations Co-
ordinator Juan Rodriguez. According to Frazier the shift cap-
tain addressed the shift collectively and disseminated pertinent
information for the day, such as the status of the units, making
note of any fence or door zones that might be out of order, or
any new posts that had been established. According to Frazier
the shift captain determined post assignments and reflected
those assignments on a post assignment sheet, copies of which
were given to the security officers and lieutenants. Frazier
explained that with the assignment sheet he knew where each
of his security officers would be posted and he visited each post
during the shift. Frazier said that while he was at each post he
verified that the proper security officer was at his/her assigned
post and reviewed the general purpose and inventory logs with
the security officer as well as checked the security officers’
weapons. According to Frazier the shift captain never dis-
cussed shift rotations with him before issuing them. Frazier
said he did not direct the work of the security officers that re-
ported to him “because the work is defined in the general pur-
pose log,” “[t]he officer reads that. Those are his post instruc-
tions.” Frazier explained his responsibility was just to ensure
the security officers understood his/her post instructions. Fra-
zier stated some security officers preferred some posts over
other posts and added he had the authority to transfer security
officers from one post to another during a shift, under some
circumstances but, only after requesting approval from the shift
captain. On cross-examination, Frazier acknowledged he had
stated in a pretrial affidavit he had the authority to transfer a
security officer from one post to another on his shift for opera-
tional needs and he “did not generally consult with the captain
before doing so.”
Frazier testified he had given security officers “coachings”
which he considered to be “peer checking.” A “coaching,”
according to Frazier, may involve instructing a security officer
to sit up straight instead of slouching, or to be a little more
vigilant in the area where he/she was assigned. Frazier said
coaching is not a form of discipline. Frazier said he had never
issued discipline to security officers reporting to him because
they all knew their jobs. Frazier on direct examination, said he
could issue oral or written discipline to his security officers for
not doing their job duties or being inattentive or not following
guidelines in the general purpose log only after first bringing it
to the attention of his shift captain to ascertain the appropriate
disciplinary action. Frazier acknowledged on cross-examination
that specific supervisory requirements applicable to him di-
rected him to not only use coaching techniques but to utilize
counseling and progressive discipline to correct unprofessional
conduct or poor job performance by the security officers.
Frazier testified that about 2 years before his discharge he
began to evaluate, on a quarterly and annual basis, those securi-
ty officers reporting to him. Prior to that time evaluations were
performed by the captain. The quarterly evaluations designated
as “one-on-one” reviews were, according to Frazier, for the
purpose of bringing about improvement in the security officers
attendance, communication skills, and knowledge of the Securi-
ty Force Instructions. After preparing the quarterly and annual
reviews for his security officers Frazier gave them to his shift
captain or Operations Coordinator Rodriguez. Frazier ex-
plained he reviewed each evaluation with the applicable securi-
ty officer before giving them to the captain and, on occasion,
would speak with his shift captain about a specific evaluation in
case “the officer came back and was questioning it.” Frazier
testified, on direct examination, that as far as he knew the eval-
uations were used only to “improve the deficiencies that the
officers may have.” When asked on cross-examination if a bad
evaluation could affect a security officers future promotional
opportunities, Frazier testified, “[A]s far as I know, the one-on-
ones and the evaluations were not used for promotion. They
were used . . . to get the officer to improve his performance. I
do not know if it was used . . . to promote.” However, after
being given an opportunity to review his pretrial affidavit, Fra-
zier acknowledged that if a security officer continually received
bad evaluations or reviews the officer “may not be considered
for a promotion.” Frazier did not know of any security officer
being promoted based on his evaluation of the security officer.
Frazier acknowledged he had recommended security officers
receive meal tickets or “a letter incentive award” but added
even other security officers could recommend a fellow security
officer for a meal or small incentive award.
Mack’s testimony, regarding his duties and authority as a
lieutenant, though in less detail, was for the most part, the same
as Frazier’s testimony. Mack testified that everything he did
every minute of every day as a lieutenant was explicitly cov-
ered in detail by written policies. Mack likewise believed eve-
rything security officers did was covered and/or governed by
written policies and the security officers simply had to follow
the policies. Mack testified the captain would issue discipline
and the lieutenant who was in the area of the security officer
disciplined would simply deliver the discipline to that security
officer.
III. CREDIBILITY COMMENTS, ANALYSIS, AND CONCLUSIONS
I am persuaded Frazier while testifying made an effort to
minimize the authority he had and/or exercised as a lieutenant.
For example, he testified some officers preferred some posts
over other posts and that he had the authority to transfer securi-
ty officers from one post to another during a shift, but only after
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1712
requesting approval from his shift captain. However, after
being confronted with his pretrial affidavit, he acknowledged
he had the authority to transfer a security officer from one post
to another on his shift for operational needs and did not gener-
ally consult with his captain before doing so. Frazier first testi-
fied he could issue oral or written discipline to his assigned
security officers for not properly performing their jobs duties,
being inattentive, or not following guidelines but, only after
first bringing such to the attention of his shift captain. Howev-
er, Frazier acknowledged, during cross-examination, that spe-
cific supervisory requirements applicable to him, called for him
to use coaching techniques, as well as, counseling and progres-
sive discipline to correct unprofessional conduct, or poor job
performance by his security officers. Frazier testified on direct
examination that evaluations he prepared for the security offic-
ers reporting to him were utilized to improve deficiencies the
security officers may have, however, on cross-examination, and
after reviewing his pretrial affidavit, he acknowledged that if a
security officer continually received bad reviews or evaluations
he/she may not be considered for promotion.
It is in light of this and other testimony by Frazier and par-
ticularly my observation of him as he testified, I am unable to
fully credit his testimony regarding his duties and authority
where contradicted by the testimony of others or, called into
question by documentation. Thus, I have relied, to a great ex-
tent, on the testimony of Project Manager Mareth, which I cred-
it, with respect to the duties and authority of lieutenants at the
Turkey Point facility.
Under Board and Supreme Court precedent, in order to be a
statutory supervisor, an individual must have the authority to
effectuate or effectively recommend at least one of the supervi-
sory indicia enumerated in Section 2(11) of the Act, using in-
dependent judgment in the interest of the employer. Oakwood
Healthcare, Inc., 348 NLRB 686, 687 (2006) (citing NLRB v.
Kentucky River Community Care, 532 U.S. 706 (2001)). It is
well established that the party asserting supervisory status bears
the burden of proof on the issue, Oakwood Healthcare, Inc.,
supra at 686. The burden must be carried as to each particular
individual who is alleged to be a supervisor. Section 2(11) of
the Act provides that a supervisor is one who possesses, “au-
thority, in the interest of the employer, to hire, transfer, sus-
pend, layoff, recall, promote, discharge, assign, reward, or dis-
cipline other employees, or responsibly direct them, or to adjust
their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use of
independent judgment.”
Such statutory indicia must, as noted earlier, be exercised
with independent judgment on behalf of management, in the
interest of management and not simply in a routine manner.
The Board noted in Oakwood Healthcare Inc., supra, citing
Chevron Shipping Co., 317 NLRB 399, 381 (1995), that as a
general principle, it has exercised caution not to construe su-
pervisory status too broadly because the employee deemed a
supervisor is denied rights the Act is intended to protect. The
Board in Oakwood Healthcare, Inc., supra, adopted definitions
for the terms “assign,” “responsibly to direct”, and “independ-
ent judgment” as those terms are used in Section 2(11) of the
Act. It is helpful to briefly highlight those definitions.
The Board noted the terms “assign” and “responsibly to di-
rect” were not intended to be synonymous and would ascribe
distinct meanings to both terms. The Board construed “assign”
to refer to the act of designating an employee to a place, a time
or giving significant overall duties or tasks to an employee.
The Board noted the place, time and work of employees are
part of their terms and conditions of employment and decisions,
or effective recommendations, to affect one of those can be
supervisory functions. The Board construed “responsibly to
direct” as where the putative supervisor is answerable for the
performance and work product of the employees he/she directs.
That is, there must be some adverse consequence for the one
providing oversight if the tasks performed by the employees are
not performed properly. The Board specifically stated, “Thus,
to establish accountability for purposes of responsible direction,
it must be shown that the employer delegated to the putative
supervisor the authority to direct the work and the authority to
take corrective action, if necessary. It must be shown that there
is a prospect of adverse consequences for the putative supervi-
sor if he/she does not take these steps.”
The Board in ascertaining the contours of “independent
judgment” looked at the ordinary meaning of the two words.
“Independent” means “not subject to control of others” and
“judgment” the action of judging or the mental or intellectual
process of forming an opinion or evaluation by discerning and
comparing. The Board used, as a starting point, that for one to
exercise “independent judgment” “an individual must at a min-
imum act, or effectively recommend action, free of control of
others and form an opinion or evaluation by discerning and
comparing data.” The Board noted it was interpreting “inde-
pendent judgment” in light of the contrasting statutory lan-
guage, “not of an merely routine or clerical nature.” The Board
stated, “It may happen that an individual’s assignment or re-
sponsible direction of another will be based on independent
judgment within the dictionary definition of those terms, but
still not rise above the merely routine or clerical.” The Board
stated that its view, as well as the Supreme Court’s view was
that actions fall into a spectrum between the extremes of com-
pletely free actions and completely controlled ones, “and the
degree of independence necessary to constitute a judgment as
‘independent’ under the Act lies somewhere in between these
two extremes.” The Board said it would find “a judgment is
not independent if it is dictated or controlled by detailed in-
structions, whether set forth in company policies or rules, the
verbal instructions of a higher authority, or in the provisions of
a collective-bargaining agreement.” (Footnote omitted.) How-
ever, the Board went on to state, “On the other hand, the mere
existence of company policies does not eliminate independent
judgment from decision making if the policies allow for discre-
tionary choices. [Footnote omitted.]” The Board summarized
as follows:

Section 2(11) contrasts “independent judgment” with actions
that are “of a merely routine or clerical nature.” Thus, the
statue itself provides a base line for the degree of discretion
required to render the exercise of any of the enumerated func-
G4S REGULATED SECURITY SOLUTIONS

1713
tions of 2(11) supervisory. The authority to effect an assign-
ment, for example, must be independent, it must involve a
judgment, and the judgment must involve a degree of discre-
tion that rises above the “routine or clerical.” [Footnote omit-
ted.]

In deciding whether the two lieutenants herein are supervi-
sors within the meaning of the Act I am mindful the security of
nuclear facilities is highly regulated. I take guidance from
Oakwood Healthcare, Inc., 348 NLRB 686 (2006), a case
where the Board refined the analysis to be applied in assessing
supervisory status and set forth clear broadly applicable guid-
ance for situations like those herein.
First, I find the lieutenants are supervisors under Section
2(11) of the Act based on the fact they prepare evaluations of
the security officers that, in part, are considered in determining
whether the security officers are promoted. Lieutenants Frazier
and Mack both, for some 2 years prior to their discharge, pre-
pared quarterly and annual reviews or evaluations for the secu-
rity officers reporting to them. In fact, no one higher than a
lieutenant at the Company regularly prepares written evalua-
tions of security officers. Both Frazier and Mack reviewed the
evaluations they prepared with the security officers involved
before the evaluations were turned over to higher management.
I note Frazier first explained the evaluations he made of the
security officers that reported to him were simply to have the
security officers improve their performance, but, he acknowl-
edged bad evaluations could impact a security officer’s consid-
eration for promotion. The record evidence establishes evalua-
tions created by lieutenants are specifically utilized in the pro-
motional process. The Company’s policy manual at “Promo-
tion Policy and Procedure” requires, among the several stages
in the promotion process, that a review of applicable perfor-
mance appraisals be conducted by the promotion panel. More
specifically, the promotion policy and procedures manual re-
quires the Company’s promotion board to review the personnel
file of each applicant for promotion and to specifically review
performance appraisals. Project Manager Mareth specifically
stated evaluations made by lieutenants at the Company are
utilized in the promotional process for security officers.
Mareth even recalled four security officers whose recent pro-
motions were impacted by their lieutenant’s evaluations and he
indicated there were perhaps eight other like situations where
security officers’ promotions were impacted by their lieuten-
ant’s evaluations in the previous year to year and half. I note
Frazier and Mack did not need to consult with their superiors
before evaluating their direct reports, nor did they need to dis-
cuss with their supervisors the content of evaluations before
preparing and going over the evaluations with those evaluated.
Frazier and Mack performed evaluations free from the control
of others in management and made their evaluations and
formed their opinions, it appears, by their own discernment and
comparisons. It is clear evaluations impact promotions of the
work force and are performed in the interest of the Company.
In summary, Lieutenants Frazier and Mack independently per-
formed evaluations for their direct reports which lead to per-
sonnel actions (namely promotions) affecting the security
guards involved and by doing so engaged in one (promote) of
the enumerated supervisory functions within the meaning of
Section 2(11) of the Act.
Lieutenants, as first line supervisors, have the authority to
and do issue discipline. The Company’s progressive discipline
policy and procedure “provides guidance on the administration
of discipline” for its supervisors who “are responsible for ad-
ministering this policy as it applies to employees under their
supervision.” As Project Manager Mareth explained, lieuten-
ants can issue any type discipline, except termination, without
consulting with a supervisor. Lieutenants are generally the
individuals issuing the initial step(s) in the Company’s progres-
sive disciplinary process. The evidence establishes lieutenants
have certain discretion when issuing discipline pursuant to the
Company’s policies. As Project Manager Mareth explained, a
lieutenant may decide not to issue formal discipline at all, or to
chose which level of discipline an infraction will be placed
because of some overlap between levels. It is clear lieutenants
exercise independent judgment by deciding whether to initiate
the progressive disciplinary process in the first place and lay a
foundation for future discipline against their direct reports. The
Company presented, in evidence, examples of lieutenants issu-
ing discipline to security officers. Two of the disciplines re-
sulted in written warnings with a 1-day suspension in each.
While none of the eight examples where initiated by Frazier or
Mack it appears they clearly had the authority to do so. Frazier,
for example, explained he never issued any discipline for the
security officers that reported to him because each knew and
performed their job duties. In summary, lieutenants have the
authority to issue security officers discipline and have in fact
issued discipline up to and including suspension without the
necessity of consulting with or obtaining approval of their supe-
riors. I find such to establish that lieutenants of the Company
are supervisors within the meaning of Section 2(11) of the Act.
It is clear shift captains prepare shift post assignments which
are then disseminated to the lieutenants and security officers
which reflect the initial post assignments for security officers
on any given day. However, as Frazier testified, he had the
authority to transfer security officers from one post to another
for operational needs during a shift. Frazier, first stated he had
to request approval from the shift captain, but then acknowl-
edged he generally did not consult with the captain before mak-
ing such changes in post assignments. Frazier explained some
security officer’s preferred one post assignment over other
assignments during a shift. Thus, in designating a place, a time,
and tasks to be performed when he transferred a security officer
from one post to another, Frazier engaged in a supervisory
function within the meaning of the Act. The discretion Frazier,
or other lieutenants, utilized in transferring security officers
from one post assignment to another, in my opinion, involves a
degree of discretion rising above the level of routine or clerical
and is done in the interest of the Company.
Lieutenants provide direct oversight to security officers in
the field and address issues that arise on the job. Lieutenants
are directed to ensure that security officers assigned to them
understand the specific requirements of their post, that they
remain alert, attentive and perform their duties in a proper and
safe manner, and that they properly maintain post reports. The
lieutenants are to initiate prompt and appropriate action to iden-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1714
tify and correct any deficiencies in the security officers includ-
ing improper behavior, attitude, or inattentiveness to duty.
Project Manager Mareth explained lieutenants can be disci-
plined, up to and including discharge, if they fail to ensure the
quality of the performance of the security officers assigned to
them. Likewise, Mareth further explained, a failure on a lieu-
tenant’s part to ensure quality performance by the security of-
ficers could impact promotional opportunities for the lieuten-
ant. Here lieutenants direct the work of security officers and
have authority to take corrective action as appropriate and are
subject to adverse consequences if they fail to properly direct
the security officers that report to them. I find lieutenants re-
sponsibly direct the work of security officers within the mean-
ing of Section 2(11) of the Act.
All the above establishes lieutenants are supervisors within
the meaning of the Act. In addition to the above findings there
are secondary indicia that further support my conclusion the
lieutenants are supervisors. Lieutenants are paid more, provid-
ed additional insurance not provided to security officers, given
additional training not given to security officers, attend man-
agement meetings that security officers do not attend, and, the
Company views them as supervisors. The secondary indicia
most compelling is if the lieutenants are not supervisors then
each captain is responsible for 30 plus security officers with
assigned duties at various locations on the thousands of acres at
a nuclear facility.
In summary, I find the Company established that Thomas
Frazier and Cecil Mack were supervisors within the meaning of
Section 2(11) of the Act at all times material herein, and not
protected by the Act. I find the Company did not violate the
Act when it suspended and, thereafter, discharged Frazier and
Mack on February 15, 2010.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of the Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Thomas Frazier and Cecil Mack were, at applicable times,
supervisors within the meaning of Section 2(11) of the Act.
4. The Company has not violated the Act in any manner al-
leged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.