Securitas Critical Infrastructure Services, Inc., Board Case No. 18-CA-130606 (reported at 361 NLRB No. 38) (8th Cir. decided March 24, 2016)
In a published opinion, the court enforced the Board’s bargaining order against this provider of security services for nuclear power plants after a unit of lieutenants employed at the Monticello Nuclear Generating Plant in Minnesota voted in 2014 to be represented by United Security Professionals Local 2.The court upheld the Board’s finding that the Employer had not carried its burden of proving its claim that the employees were supervisors within the meaning of Section 2(11).
After a hearing was held in the underlying representation case, the Regional Director issued a decision rejecting the Employer’s claim of supervisory status.On review, the Board (Members Hirozawa and Johnson, Member Miscimarra dissenting) affirmed the specific finding that the lieutenants do not exercise responsible direction. In doing so, the Board rejected the Employer’s claim that, because the lieutenants can become response team leaders if a contingency event compromises plant security—and that was when they responsibly directed security officers—the Employer could not present specific examples of their exercise of responsible direction because they would be subject to NRC non-disclosure regulations. The Board, however, noted that the Employer did not avail itself of its opportunity to provide even “general examples of [independent judgment] that would not have revealed the details of [the Employer]’s contingency planning.” The Board commented that parties who feel constrained from entering particular evidence into the record in Board proceedings can request a protective order.In dissent, Member Miscimarra would have granted the request for review based on the lieutenants’ role as response team leaders, and the Employer’s claim that the lieutenants are held accountable if they fail to properly direct security officers.
The court held that substantial evidence supported the Board’s determination that the Employer failed to show that its lieutenants exercised independent judgment in their role as response team leaders. The court explained that record evidence established that “a lieutenant must follow applicable procedures – some dictated by the physical security plan approved by the NRC – when acting as a response team leader in the event of a hostile attack at the plant.” That, the court stated, “is enough evidence to satisfy the substantial evidence standard, and to support the NLRB’s determination that Securitas failed to carry its burden of proving the lieutenants were supervisors under 29 U.S.C. § 152(11).” Further, the court rejected the Employer’s contention that it could not provide specific examples without violating NRC regulations that safeguard nuclear power plant security.The court explained that disclosure of such information “was not the exclusive means by which [the Employer] could have satisfied its burden of proof.”Finally, the court rejected the notion that the Board erred by imposing a requirement that specific examples must be provided.Rather, the court stated, it read the Board’s statement as “a general comment on the overall quality of [the Employer]’s evidence, and merely one factor it considered when determining [the Employer] failed to carry its burden.”
The court’s opinion is here