NLRB Regional Director Issues Decision on Centerra Group v. International Guards
International Guards Unionof America (Petitioner) seeks to represent a unit of Lieutenants, Range Instructors/Safety Officers, and Range Masters/Safety Officers employed by
The Employer contends that the petition should be dismissed because the individuals in the petitioned-for job classifications are statutory supervisors, and, in addition, the Range Instructors/Safety Officers and Range Masters/Safety Officers are managerial employees.
A hearing officer of the Board held a hearing in this matter and the parties orally argued their respective positions prior to the close of the hearing, and the Employer filed a post-hearing brief. As explained below, based on the record and relevant Board law, I find that Lieutenants are statutory supervisors, and Range Instructors/Safety Officers and the Range Master/Safety Officer are managerial employees, and I am therefore dismissing the petition.
I. FACTS
A. The Employer's Operations at LANL The Employer provides armed and unarmed security services at LANL, where the
The Employer employs a total of 304 individuals at LANL. Its operation at LANL is comprised of three divisions: Protective Force Operations and Training Division, a
Petitioner seeks to represent a total of 37 individuals in the Protective Force Operations and Training Division, including a total of 28 Lieutenants (18 SPO I Lieutenants and10 SPO III Lieutenants) in the Pro Force Subdivision 8 Range Instructor/Safety Officers and 1 Range Master/Safety Officer in the Training Subdivision.
The approximately190 guards in the Pro Force Subdivision (including 34 unarmed SOs, 102 SPO Is, and 54 SPO IIIs) report to 28 SPO I and SPO III Lieutenants, who report to Captains, who, in turn, report to Majors.
Lieutenants are responsible for day-to-day supervision of the guards. SPO I Lieutenants generally supervise SOs and SPO Is, and SPO III Lieutenants generally supervise SPO IIIs. However, when SPO Is or IIIs work outside of the LANL perimeter ("outside the wire"), they report directly to SPO I or III Captains. Guards are generally organized into several teams, each overseen by a Major, an SPO I Captain, an SPO III Captain, two SPO III Lieutenants, and four SPO I Lieutenants.
Lieutenants begin their shifts with a "muster," at which time they perform a roll calland inspect the guards to ensure that they are properly uniformed, equipped with approved gear, and are otherwise prepared for duty. The Lieutenant will ensure that the guard is not already on a restricted duty list, and lieutenant may recommend that a guard be added to the restricted duty list. Captains and Majors may be present at these musters, but the Lieutenants generally make the decision about whether a guard will receive a weapon or vehicle, based on the Lieutenant's judgment about the guard's fitness for duty on a given day. After receiving their equipment, guards then drive to their assigned posts within their zone.
Lieutenants ensure that guards with driving responsibilities possess a valid driver's license and that armed guards have their gun cards. After checking to ensure that the guard is properly credentialed and staffing the post according to the post orders for the location, the Lieutenants ensure that a guard's vehicle has been inspected and a vehicle sheet completed. There are written procedures and "post orders" preplanned to be implemented during security scenarios which could occur in the guards' course of work. Generally, orders contain only initial positioning, and the Lieutenants and Majors must use their discretion to decide how to respond to specific circumstances. Additionally, Lieutenants have the authority to issue ad hoc orders to guards when circumstances require such as when alarms or gates malfunction. Lieutenants have absolute authority to relieve a guard if the Lieutenant perceives a "fitness for duty" issue, such as a notable change in the mental or physical condition of a guard. However, the Lieutenant must inform a Major of the fitness for duty issue.
Lieutenants spend a substantial share of their day traveling from post to post, ensuring that guards are carrying out their duties in a manner consistent with the Employee's policies and orders. During these rounds, the Lieutenants monitor the conduct of the guards and will provide on-the-job training if a guard is new to the post or has performance deficiencies. A check may entail a Lieutenant inspecting the patrol report of a guard to ensure that the guard has patrolled sectors within the designated area. It is incumbent upon Lieutenants to ensure that the guards properly perform their duties in accordance with the post orders. Lieutenants have the authority to independently direct guards to deviate from those orders, if the unforeseen circumstance warrants such a deviate. For example, the record includes evidence of a Lieutenant cancelling a scheduled search due to inclement weather.
Lieutenants direct the guards in the performance of their functions and instruct them to correct perceived deficiencies. SPO I and III Lieutenants issue orders to subordinate guards and require obedience to those orders. Field Lieutenants routinely order guards to adhere to the Employer's work rules and may deviate from written orders by issuing verbal orders/direct orders (VODOs), which must be followed, except in very limited circumstances. For instance, Lieutenants maygive guards VODOs to cover for guards leaving early, to move into vehicles due to cold weather, or to swap posts to minimize exposure to radiation.
SPO IIIs and a SPO III Lieutenant operate as the "
The Employer evaluates the performance of its Lieutenants based, in part, on their accepting responsibility for actions of subordinates; keeping supervision apprised of important matters in a timely fashion; enforcing environmental, safety, and health policies; supporting diversity awareness; following providing effective leadership; exercising sound judgment in decision making; developing team members through coaching, performance, feedback, and training; and treating team members fairly and objectively. The Employer also provided an example of a Performance Observation Report (POR) issued to a Lieutenant for failing to ensure that a guard completed an inspection.
In cases where Lieutenants have concerns about a guard's performance, the Lieutenant may initiate disciplinary action by completing a POR. The POR may result in a letter of warning (LOW) or it may only result in a corrective counseling, which can be issued without a POR. Lieutenants issue PORs to guards who neglect their duties or otherwise have performance issues.
Article 42 of the guards' collective bargaining agreement provides that a "corrective counseling" is "corrective or cautionary in nature" and can be "the appropriate and desired method of correcting employee performance in most circumstances." Article 42 further provides that a "corrective counseling is not discipline."
At the end of the POR process, the Lieutenant ultimately decides what level of discipline is warranted. The Lieutenant may decide to reduce his recommendation to a corrective counseling or may recommend more serious discipline. The record indicates that the Lieutenant's recommendation is routinely followed. Although Lieutenants make the decision to issue LOWs, they do not have the authority to suspend or discharge employees.
For administrative matters, such as scheduling overtime or sick leave, the guards must contact either a Captain or the On Shift Schedulers (OSS). Lieutenants do not handle these administrative functions for SOs, SPO Is, or SPO IIIs. Captains handle the scheduling for SPO IIIs, and the OSS handles such matters for the SOs and SPO Is. Scheduling for the lieutenants is handled in a similar manner. SPO III Lieutenants handle scheduling through SPO III Captains, and SPO I Lieutenants go through the OSS or the major to handle administrative matters like scheduling.
The record evidence shows that only the General Manager is involved in all decisions to terminate employees. However, the Employer uses hiring panels to assist its managers with hiring decisions. During the most recent round of hiring, two panels of three individuals each interviewed candidates, taking turns asking questions and assigning candidates scores based on their answers. One of the most recent panels included a Lieutenant. During the selection process, two candidates had scores within a point of each other, and a Lieutenant gave additional input, recommending the candidate with the slightly lower score over the other candidate. The selection official adopted the Lieutenant's recommendation and chose the candidate that the Lieutenant felt was more qualified.
The record discloses that the base pay of Lieutenants is approximately 15% higher than the pay of SPOs. Lieutenants work 12-hour shifts, while SPOs and SOs work 8 hour shifts. Captains and Lieutenants, unlike SOs and SPOs have their own offices.
C. Range Instructors/Safety Officers and Range Masters/Safety Officers
Range Instructors/Safety Officers receive warning orders, which indicate that a certain type of training needs to be conducted according to DOE Order 473.3A. Upon receiving a warning order, a Range Instructor/Safety Officer will develop operation orders, akin to a lesson plan, which outline training exercises in accordance with
II. Analysis
A. Supervisory Status of Lieutenants
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 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.
Thus, the Board will find individuals to be supervisors if:
(1) they hold the authority to engage in any one of the 12 supervisory functions... listed in Section 2(11);
(2) their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;" and
(3) their authority is held "in the interest of the employer."
Individuals will be found to possess supervisory authority if they can independently take any of the actions enumerated in Section 2(11), or if they can effectively recommend such actions.
To establish that a putative supervisor exercises independent judgment in exercising supervisory authority, a party must show that the individual takes or recommends the relevant actions "free of the control of others" and that he or she "form[s] an opinion or evaluation by discerning and comparing data.
527 (9th Cir. 1986). Thus, "purely conclusory" evidence is not sufficient to establish supervisory status, and a party must present evidence that the individual at issue "actually possesses" supervisory authority to establish supervisory status. Golden Crest Healthcare Center, 348
Applying current Board precedent to record evidence of the duties and responsibilities of the Employer's Lieutenants, I find that lieutenants sought to be represented by Petitioner are supervisors within the meaning of Section 2(11) of the Act based on their authority to responsibly direct and discipline guards.
While the Employer has post instructions for each assignment and trains its guards to handle various contingencies, it cannot provide instructions or train its guard for every possible event. Thus, Lieutenants exercise independent judgment to assign work and issue appropriate orders to subordinates in certain situations. The responsibility entrusted to the Lieutenants calls for them to exercise independent judgment in determining whether written instructions should be followed and in the case of a force-based intrusion or other terror threat may even require a lieutenant to decide whether to place a guard in a position of potential bodily harm.
Lieutenants must assess guard's fitness for duty each day before the guard can report to the post indicated in the Employer's schedule and lieutenants exercise independent judgment in making those assessments. As a part of their responsibilities, Lieutenants provide daily monitoring and direction to security officers and security police officers to ensure that they properly perform their job. Lieutenants ensure that the security officers follow post orders and are responsible if a subordinate does not correctly perform his duties. Lieutenants also assess the feasibility of orders in the case of unforeseen circumstances and may redirect the guards in how to perform. The record is replete with examples of lieutenants independently assessing situations and instructing subordinates to deviate from written orders. Lieutenants may do this by issuing direct verbal orders that must be followed by the guards. Moreover, the record contains an example of a lieutenant being held responsible for a guard not correctly performing his duties. Unlike the employer in G4S, 362 NLRB No. 134 (2015), the Employer has met his burden of demonstrating that lieutenants have the ability to responsibly direct employees.
Additionally, I find that lieutenants have the authority to discipline guards. Lieutenants routinely record their observations of a guard's conduct in a performance observation reports (POR). The POR triggers further investigation, which includes a phase where other parties to indicate whether they concur with the lieutenant's recommendation. A lieutenant, after consultation with human resources and other managers, decides whether a corrective counseling or more serious discipline, such as a LOW, is warranted following the lieutenants investigation. While a corrective counseling is not considered formal discipline, future discipline may be premised on a corrective counseling. In my analysis, even though a corrective counseling is not considered discipline under the collective bargaining agreement, it is a form of discipline because it constitutes a warning that may lead to further discipline. Additionally, a lieutenant may instead find that a LOW is warranted. The record evidence shows that a lieutenant's recommendation to issue a LOW has not been reversed by either human resources or another manager. Therefore, lieutenants have the authority to issue discipline by issuing corrective counseling and effectively recommend formal discipline by recommending issuance of LOWs. See, Giant Food, 252
B. Managerial Status of Range Instructors/Safety Officers and Range Masters/Safety Officers
The Board will find individuals to be managerial employees if they "formulate and effectuate high-level employer policies or... have discretion in the performance of their jobs independent of their employer's established policy."
An employee who instructs or trains other employees is not automatically construed to be a managerial employee under the Act. Instead, the Board has found that employees who train or instruct other employees are not managerial employees unless they not exercise sufficient independent discretion or judgment and carry out those duties in the interest of the employer. See, e.g., Roofing,
I find that Range Instructors/Safety Officers and Range Masters/Safety Officers, unlike the instructors whose status was at issue in
III. Conclusion
Based upon the entire record in this matter and in accordance with the discussion above, I conclude and find as follows:
1. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein.2
3. Petitioner is a labor organization within the meaning of Section 2(5) of the Act and claims to represent certain employees of the Employer.
4. No question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act because the Lieutenants whom Petitioner seeks to represent are statutory supervisors, and Range Instructors/Safety Officers and the Range Master/Safety Officer whom Petitioner seeks to represent are managerial employees, and I am therefore dismissing the petition.
IV. ORDER
IT IS ORDERED that the petition in this matter is dismissed.
V. RIGHT TO REQUEST REVIEW
Pursuant to Section 102.67(c) of the Board's Rules and Regulations, you may obtain a review of this action by filing a request with the Executive Secretary of the
A request for review may be E-Filed through the Agency's website but may not be filed by facsimile. To E-File the request for review, go to www.nlrb.gov, select E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. If not E-Filed, the request for review should be addressed to the Executive Secretary,
Dated at
/s/
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1 At hearing, the parties jointly moved to amend the petition and formal documents to reflect that the Employer's name is
2 I find, based on the record evidence and the stipulations of the parties, that: TheEmployer,
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