Security Lieutenants Are Not Supervisors under the NLRA Where They Had Authority But Did Not Exercise It: NLRB

Practical Law Legal Update 0-521-6387 (Approx. 4 pages)

Security Lieutenants Are Not Supervisors under the NLRA Where They Had Authority But Did Not Exercise It: NLRB

by PLC Labor & Employment

Key Litigated Issues

In G4S Regulated Security Solutions, the NLRB considered whether two security lieutenants at a Florida nuclear power plant were supervisors as defined by the NLRA. Key litigated issues included whether the lieutenants had the authority to discipline, promote, assign or responsibly direct subordinates.

Background

G4S Regulated Security Solutions provided guard and security services to the Florida Power & Light Company's power plant at Turkey Point in Florida and had four categories of employees: captains, lieutenants, sergeants and security officers. Thomas Frazier and Cecil Mack, who were both promoted from officers to lieutenants in 2003, were terminated in 2010, Frazier for failing to meet satisfactory leadership expectations and Mack for failing to perform to required standards. Frazier and Mack filed charges against G4S, complaining their terminations violated the NLRA. As one affirmative defense, G4S claimed the lieutenants were supervisory employees and therefore were not protected by the NLRA.

An NLRB administrative law judge (ALJ) found the lieutenants were supervisors and concluded G4S did not violate the NLRA by discharging them. The NLRB's Acting General Counsel filed exceptions with the four-member panel (Board) heading the NLRB's judicial functions.

Outcome

On September 28, 2012, a three-member panel of the Board issued an opinion in the case, reversing the ALJ's decision and remanding the case to determine whether G4S's discharge of the lieutenants violated the NLRA.

Section 2(11) of the NLRA defines a supervisor as any person with the authority to engage in any one of 12 enumerated supervisory functions, including promoting, discharging and assigning employees and responsibly directing them. Under the Board's prior decision in Oakwood Healthcare, Inc., to establish supervisory status, an employer must show by a preponderance of the evidence that:

The employee had the authority to engage in any one of the enumerated supervisory functions.
The employee's exercise of that authority required independent judgment, and was not merely routine or clerical in nature.
The employee's authority was held in the interest of the employer.

The ALJ found that Frazier and Mack had the authority to discipline, promote, assign and responsibly direct subordinate employees, based in part on the testimony of Project Manager Michael Mareth, the highest ranking G4S employee at Turkey Point, and Frazier's admissions about the functions he and other lieutenants performed. The Board, however, found:

Mareth's testimony was insufficient to establish the lieutenants' authority to discipline, since he did not:
- describe what procedures, protocols, criteria or other factors govern lieutenants' disciplinary decisions; or
- testify to a single instance in which a lieutenant had used independent judgment regarding discipline.
Although G4S introduced eight disciplinary notices issued by other lieutenants into evidence, there was no evidence as to what role the lieutenants who signed those notices played in deciding to discipline the security officers at issue.

Similarly, the Board found that:

While the lieutenants regularly prepared written evaluations of security officers that could impact promotion decisions, evaluating employees is not one of the supervisory functions listed in the NLRA, and could only be evidence of supervisory status if the evaluation by itself affected an employment term or condition. Mareth's testimony that evaluations were "considered" and in a few cases had impacted promotions was insufficient to carry G4S's burden to prove lieutenants had the authority to promote through evaluations.
Captains at G4S assigned guards to their posts at the start of shifts, not lieutenants, and Mareth's testimony that lieutenants could allow guards to switch their assigned posts for personal or operational reasons did not establish that lieutenants exercised independent judgment in assigning guards.

Finally, the ALJ found lieutenants responsibly directed guards, as Mareth testified that a guard's substandard performance could lead to discipline of the guard's lieutenant and adversely affect the lieutenant's promotion changes. However, the Board found Mareth's testimony was conclusory and hypothetical, since he could not show any specific instance in which a lieutenant had been disciplined or not promoted because of a guard's poor performance.

Member Hayes dissented, stating G4S established the lieutenants were supervisory employees by a preponderance of the evidence, and that in finding otherwise, the Board majority effectively imposed an unjustified higher standard of proof on employers. In particular, the majority:

Required exercise of a lieutenant's authority to discipline, evaluate for promotions, reassign and responsibly direct.
Ignored evidence of independent judgment to refrain from exercising that authority, including Frazier's testimony about how he chose not to exercise his authority to discipline.

Member Hayes also noted the Board previously found that lieutenants overseeing nuclear power plant security were supervisors.

Practical Implications

In G4S Regulated Security Solutions, the Board narrowed its analysis of supervisory status under the NLRA. In light of this decision, employers should be aware that the Board will focus not only on whether ostensible supervisors have the authority to act, but whether they have exercised that authority in the past using their independent judgment.

Security Lieutenants Are Not Supervisors under the NLRA Where They Had Authority But Did Not Exercise It: NLRB | Practical Law