Securitas Critical Infrastructure Services, Inc. v. National Labor Relations Board, 817 F.3d 1074

Background

Securitas began providing security at Xcel Energy’s Monticello nuclear plant; a unit of lieutenants (mid-level officers, including “response team leaders”) were the subject of a union representation petition.
The NLRB Regional Director held a hearing to determine if the lieutenants were statutory supervisors under NLRA § 2(11) (which would exclude them from collective-bargaining protections).
Securitas relied chiefly on the lieutenants’ role as response team leaders during hostile attacks, asserting they exercise independent judgment to responsibly direct other employees.
Only one lieutenant testified, stating most duties were governed by detailed rules, client and federal regulations (including NRC-approved plans), that non-routine decisions required higher approval, and that many actions were preformulated.
The Regional Director (and later the NLRB) concluded Securitas failed to meet its burden to show supervisory status; an election was held, lieutenants voted for union representation, and Securitas refused to bargain.
The Eighth Circuit denied Securitas’s petition for review and enforced the NLRB’s order finding unlawful refusal to bargain, concluding substantial evidence supports the NLRB’s finding that Securitas did not prove independent judgment by lieutenants.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Securitas proved lieutenants are supervisors under § 2(11) based on authority to responsibly direct employees as response team leaders	Lieutenants exercise independent judgment in emergency response (deploying/redeploying officers, directing use of force) and thus are supervisors	NLRB/union: duties are governed by detailed policies, regulations, and approvals; no independent judgment shown	Held for NLRB: substantial evidence supports that Securitas failed to prove independent judgment; lieutenants not shown to be supervisors for burden purposes
Whether the NLRB improperly required Securitas to present specific examples of exercised independent judgment	Securitas: statute and precedent require only possession of authority, not proof of actual exercise; asking for concrete examples was legal error	NLRB: lack of examples was one evidentiary factor; in dynamic/emergency contexts specific examples are often expected if available	Held for NLRB: Court reads NLRB’s comment as evidentiary, not a strict legal requirement; failure to offer examples weakened Securitas’s case
Whether Securitas could have submitted NRC “safeguards information” under protective order to prove supervisory acts	Securitas: such disclosure is criminal and cannot be done even under protective order, so it was impossible to produce examples	NLRB: protective orders are available in Board proceedings; lack of request for reconsideration forfeits judicial review of that argument	Held for NLRB: Court declines to resolve jurisdictional wrinkle because Securitas could have satisfied burden via non-classified, general examples and failed to do so; therefore no need to decide safeguards-disclosure question

Key Cases Cited

NLRB v. Chem Fab Corp., 691 F.2d 1252 (8th Cir.) (role of NLRB in fact-intensive supervisory determinations)
NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706 (burden on party claiming supervisory status; independent-judgment requirement)
NLRB v. Whitesell Corp., 638 F.3d 883 (8th Cir.) (substantial-evidence standard for NLRB findings)
JHP & Assocs., LLC v. NLRB, 360 F.3d 904 (8th Cir.) (courts defer to the Board when evidence fairly conflicts)
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (reconsideration requirement when Board relies on grounds not argued)
NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385 (exception where Board has “patently traveled outside the orbit of its authority”)
Monson Trucking, Inc. v. NLRB, 204 F.3d 822 (8th Cir.) (preserving objections before the Board for court review)
Multimedia KSDK, Inc. v. NLRB, 303 F.3d 896 (8th Cir.) (discussing possession vs. exercise of supervisory authority)