SECURITAS CRITICAL INFRASTRUCTURE SERVICES, INC.

National Labor Relations Board - Board Decisions

Apr 4, 2014

18-RC-120181 (N.L.R.B. Apr. 4, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SECURITAS CRITICAL INFRASTRUCTURE
SERVICES, INC.
Employer
and Case 18-RC-120181
UNITED SECURITY PROFESSIONALS,
LOCAL 2
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1

1Although we find this a close case on the authority to responsibly direct, we deny review. It
was Employer’s burden to show the use of judgment in carrying out Employer’s "battle plan" in
the event of emergency. Although testimony was given about some of the variables in such a
situation, e.g., number, direction, and location of attacking forces, no examples were given of
how a lieutenant would have to make decisions based on the same, not even to the extent of
general examples of choices from among different fire and movement, force protection, or other
security tactics that would not have revealed the details of the Employer’s contingency planning.
Although a reasonable assumption exists that a lieutenant might have to apply judgment in such
situations, assumptions are not evidence, especially not exemplars of judgment and discretion
needed to show section 2(11) status under Oakwood Healthcare, Inc., 348 NLRB 686 (2006).
See, e.g., Barstow Community Hospital, 352 NLRB 1052, 1053 (2008), affirmed by 356 NLRB
No. 15 (2010), enfd. 474 Fed.Appx. 497 (9th Cir. 2012) (unpublished opinion) (evidence lacked
sufficient specificity to show the employees exercised independent judgment, as it was “devoid
of any examples or details of circumstances”). To the extent the Employer felt constrained from
entering such evidence into the record, we note that there are procedures for protective orders in
Board proceedings that extend to documents and testimony. Overnite Transportation Co., 329
NLRB 990, 997 (1999) (Board continues protective order in combined unfair labor practice and
election case regarding certain testimony and sealed exhibits); NFL Management Council, 309
NLRB 78, 88 (1992) (Board continues in force protective order covering certain exhibits and in
camera testimony); Pepsi-Cola, 307 NLRB 1378, 1379 fn. 1 (1992) (judge issued an agreed-to
protective order placing excerpts from the employer’s security manual under seal and requiring
the documents be returned to the employer at the end of the proceedings).
Member Miscimarra would grant review of the Regional Director’s determination that
the Employer’s lieutenants lack authority to responsibly direct its security officers. For example,
the lieutenants are the designated “response team leaders” in the event of terrorist attacks on the
nuclear power plant where they work, which appears to include sufficient discretion to warrant
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER
HARRY I. JOHNSON, III, MEMBER
Dated, Washington D.C., April 4, 2014

reviewing the record to determine whether they are statutory supervisors. See Oakwood, supra,
348 NLRB at 693. As to accountability, the Employer states that the record indicates that
lieutenants are subject to discipline if they do not properly direct security officers. See
Community Educations Centers, Inc., 360 NLRB No. 17, slip op. at 2 (2014) (Member
Miscimarra, concurring in part and dissenting in part).