G4S Government Solutions, Inc., d/b/a WSI Savannah River Site, a/k/a WSI-SRS

National Labor Relations Board - Board Decisions

Feb 10, 2016

363 NLRB No. 113 (N.L.R.B. 2016)

363 NLRB No. 113
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
G4S Government Solutions, Inc., d/b/a WSI Savan-
nah River Site, a/k/a WSI–SRS and Internation-
al Guards Union of America, Petitioner. Case
10–RC–126849
February 10, 2016
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On July 7, 2014, the Board granted in part the Em-
ployer’s Request for Review of the Regional Director’s
Decision and Direction of Election as it raised a substan-
tial issue with respect to whether the Employer’s lieuten-
ants are supervisors within the meaning of Section 2(11)
of the Act based on their asserted authority to assign,
responsibly direct, and discipline.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Having carefully examined the entire record with re-
spect to the issues on review, including the briefs on re-
view, we affirm the Regional Director’s finding that the
Employer did not meet its burden of establishing that its
lieutenants are supervisors.1
The sole question the Board must answer in this case,
as in all cases involving supervisory determinations, is
whether the party asserting supervisory status has met its
burden of proving that the person at issue possesses one
or more of the indicia set forth in Section 2(11). To es-
tablish that the lieutenants at issue in this case are super-
visors, the Employer must show that: (1) the lieutenants
hold the authority to engage in any one of the statutory
supervisory functions, (2) their exercise of such authority
is not routine or clerical, but requires the use of inde-
pendent judgment, and (3) their authority is held in the
interest of the Employer. See Oakwood Healthcare, 348
NLRB 686, 687 (2006). At issue in this case are the
functions of assignment, responsible direction, and disci-

1 In affirming the Regional Director’s findings, we do not rely on
his citations to G4S Regulated Security Solutions, 358 NLRB 1701
(2012), and Brusco Tug & Barge, Inc., 359 NLRB No. 43, slip op. at 6
(2012). Instead, we rely on G4S Regulated Security Solutions, 362
NLRB No. 134, slip op. at 2, 3 (2015), incorporating by reference 358
NLRB 1701, and Brusco Tug & Barge, Inc., 362 NLRB No. 28 (2015),
incorporating by reference 359 NLRB No. 43. We also do not rely on
Alternate Concepts, Inc., 358 NLRB 292 (2012), cited by the Regional
Director for the proposition that conclusory statements are insufficient
to establish supervisory status. Instead, we rely on Lynwood Manor,
350 NLRB 489, 490 (2007). We also correct the issuance date of Di-
recTV, 357 NLRB 1747, cited by the Regional Director. That case
issued in 2011, rather than 2012.
pline. The dissent finds that the Employer has met its
burden of showing that the lieutenants possess the au-
thority to responsibly direct employees using independ-
ent judgment within the meaning of the Act. We disa-
gree. We find, for the reasons set forth by the Regional
Director and those set forth below, that the Employer has
not met its burden with respect to any of the statutory
supervisory functions.
Responsible Direction
For direction to be “responsible,” under the Act, “the
person directing and performing the oversight of the em-
ployee must be accountable for the performance of the
task by the other, such that some adverse consequence
may befall the one providing the oversight if the tasks
performed by the employee are not performed properly.”
Oakwood Healthcare, 348 NLRB at 691–692. To estab-
lish responsible direction, the Employer must show that
the lieutenants are held accountable for the performance
and work of the employees they direct. It is not enough
to show that the lieutenants are accountable for their own
mistakes. Id. at 695; see Entergy Mississippi, Inc., 357
NLRB 2150, 2154–2155 (2011), enfd. in relevant part
___ F.3d ___, 2015 WL 8228998 (5th Cir. Dec. 7, 2015)
(“Every circuit court that has interpreted Oakwood has
read it to require responsibility for others’ actions.” (cita-
tions omitted)).
We find that the record does not establish that the lieu-
tenants are held personally accountable for the perfor-
mance of their subordinates as required to establish re-
sponsible direction under Oakwood Healthcare, 348
NLRB at 691–692. There is only one example purport-
edly establishing that lieutenants are “accountable” for
the performance of their subordinates.2 As the Regional
Director stated, it is not clear from this example (which
involved a tactical training exercise) whether the lieuten-
ant at issue was disciplined due to inadequate perfor-
mance by his subordinates, or due to his own deficient
performance. The disciplinary form largely focuses on
the lieutenant’s failure to notify a shift operations man-
ager that a training exercise he was conducting would
use a security door. The form also faults the lieutenant
for failing to ensure the door was resealed, but refers to
this as a duty of lieutenants and makes no reference to
the lieutenant’s subordinates or a failure to properly di-
rect them. Even though a captain testified that this disci-
pline was based on the inadequate performance of the
lieutenant’s subordinates, this testimony consisted of a

2 Cf. Republican Co., 361 NLRB No. 15, slip op. at 8 (2014) (spo-
radic exercise of supervisory authority does not confer supervisory
status (citing Franklin Home Health Agency, 337 NLRB 826, 829
(2002)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
single conclusory statement; the remainder of the cap-
tain’s testimony focused on the lieutenant’s failure to
notify the shift operations manager that the exercise was
going to use the security door.3
We also note, in agreement with the Regional Director,
that the Employer has not established that lieutenants use
independent judgment in directing employees in tactical
and non-tactical situations. For non-tactical direction,
such as conducting daily muster, determining if employ-
ees are fit for duty, performing post checks, and respond-
ing to routine incidents, the record establishes that the
Employer has detailed security orders, post orders,
standard procedures, and other directives and regulations
that govern non-tactical direction. Similarly, for tactical
direction, various witnesses testified that each area and
post had very detailed response plans and standard pro-
cedures governing responses to real or simulated inci-
dents and emergencies. Although there was testimony
about some variables a lieutenant might consider in giv-
ing direction, it is vague and lacks even general examples
of choices lieutenants make in tactical situations.4
As in Buchanan Marine, 363 NLRB No. 58 (2015),
the dissent proposes a new test for supervisory status
based on the “practical realities of running a business,”
specifically, (1) the nature of the employer’s operations;
(2) the work performed by undisputed statutory employ-
ees; and (3) whether it is plausible to conclude that all

3 Therefore, contrary to the dissent the record does not demonstrate
that lieutenants are held accountable if the employees in their units fail
to carry out their responsibilities. As noted above, in the only example
in the record, and both the form and the witness’s testimony indicate
that the lieutenant was disciplined for his own errors and failures, not
those of his subordinates. Similarly, we do not find “on-the-spot”
corrections given by the lieutenants when they observe a subordinate
improperly performing a given task to constitute responsible direction
as there is no evidence in the record that the lieutenants are held ac-
countable for the deficiencies in the subordinates’ performance of these
routine tasks. See Entergy Mississippi, Inc., 357 NLRB 2150, 2155;
Lynwood Manor, 350 NLRB at 490–491.
4 The dissent cites as an example of the lieutenants’ use of inde-
pendent judgment the testimony of one lieutenant that he determined,
“based on his assessment of the variables at play,” that it was appropri-
ate to deviate from a normal response regarding a mailroom inspection.
This incident involved a lieutenant’s decision not to evacuate the build-
ing after a dog responded to a package in the mailroom, but instead to
call in a second dog team. Contrary to the dissent, the lieutenant did
not independently make this determination. Rather the lieutenant testi-
fied, “I made the determination [not to evacuate the building] after
talking to the chief [a statutory supervisor].” (Tr. 352 (emphasis add-
ed).) Additionally, the lieutenant’s decision not to evacuate the build-
ing did not involve direction of other employees. Although the lieuten-
ant’s decision to call in a second dog team involved direction, the lieu-
tenant did not elaborate on why he called in the team that he did or if he
had to choose between teams. Thus, it is unclear whether this example
involved more than one obvious choice. See Oakwood Healthcare, 348
NLRB at 693 (independent judgment is not implicated “[i]f there is
only one obvious and self-evident choice”).
supervisory authority is vested in persons other than the
putative supervisors. Applying this proposed standard to
the instant case, the dissent contends that because a nu-
clear power plant is involved and “the work involves
thwarting or repelling a terrorist attack or other force-
based incursion by armed attackers,” it “strains creduli-
ty” to suggest that the lieutenants do not responsibly di-
rect the security personnel. The dissent further asserts
that it is implausible to suggest in this case that all au-
thority to responsibly direct the protective force “is exer-
cised exclusively by 10 statutory supervisors.”
Contrary to the dissent, however, the question before
us is not whether the nuclear power plant is without suf-
ficient personnel whose commands must be obeyed in
the event of an attack. Obviously, such persons include
the Employer’s statutory supervisors (four majors, one
Law Enforcement chief, and five captains), as well as its
lieutenants, whether or not they are supervisors. But, as
the Board explained in Buchanan Marine, 363 NLRB
No. 58, slip op. at 2, that does not answer the question
posed by the Act. The sole question the Board must an-
swer when making a supervisory determination is wheth-
er the party asserting supervisory status has proved that
the person issuing commands possesses one or more of
the indicia set forth in Section 2(11). Thus, we rely upon
the statute—specifically, the 12 enumerated types of
2(11) authority—and not other considerations the dissent
propounds, such as whether it is plausible to conclude
that all supervisory authority is vested in persons other
than those whose supervisory status is in dispute. As the
Third Circuit has observed, “[t]o do otherwise would be
to usurp Congress’s authority to promulgate the law.”
NLRB v. Attleboro Associates, 176 F.3d 154, 163 fn. 5
(3d Cir. 1999). See Buchanan Marine, 363 NLRB No.
58, slip op. at 2.
The dissent relies heavily on an assumption that if the
Board were to find that the lieutenants are not statutory
supervisors, the security personnel would somehow be
left without direction in the event of a terrorist attack.
But our finding that the Employer’s lieutenants are not
supervisors for purposes of the Act—because they are
not held accountable for the deficient performance of
subordinate employees—does not mean that the lieuten-
ants’ commands need not be obeyed, that the nuclear
power plant would be inadequately protected in the event
of an attack, or that national security would be at risk.
Lieutenants would still be able to direct the security of-
ficers, whether or not they are considered supervisors
under the Act. Our decision today simply permits the
WSI SAVANNAH RIVER SITE 3
lieutenants to vote whether to be represented for the pur-
poses of collective bargaining.5
Assignment
With respect to the lieutenants’ purported authority to
assign, we find that the Employer did not establish that
the lieutenants possess this authority. First, there is no
evidence that approving or adjusting post rotation sched-
ules involves more than routine judgment. Second, in
temporarily reassigning employees to areas where they
are not normally assigned, there is no evidence concern-
ing which factors lieutenants consider apart from wheth-
er the employees have the skill and knowledge to staff a
particular post. Such assessments do not require the use
of independent judgment sufficient to support a supervi-
sory finding. Volair Contractors, Inc., 341 NLRB 673,
675 fn. 10 (2004) (assigning work to employees on the
basis of known job skills does not require use of inde-
pendent judgment). Third, permanent reassignments do
not require independent judgment as they are based on
seniority. Fourth, assuming lieutenants have the authori-
ty to require overtime, they do not exercise independent
judgment in doing so because their judgment is con-
trolled by a detailed procedure set forth in the Employ-
er’s collective-bargaining agreement with its Special
Police Officers (SPOs) and Security Officers. Fifth, the
authority to grant time off is a secondary indicium only,
and the record does not establish that any such authority
is exercised with the use of independent judgment. See
Modesto Radiology Imaging, Inc., 361 NLRB No. 84,
slip op. at 3, fn. 4 (2014).6 Finally, the record fails to
establish that the lieutenants’ role in arranging unsched-
uled training exercises involves the exercise of independ-

5 It is worth emphasizing that we share our dissenting colleague’s
appreciation for the vital work of the Employer’s security personnel in
protecting the Savannah River Site nuclear power plant and nuclear
materials. Respectfully, however, we regard his discussion of the
emergency scenarios as melodramatic. We utterly reject any sugges-
tion that the lieutenants’ decision (if they so choose) to exercise their
right to union representation would undermine their ability or their
desire to perform their duties. Equally far-fetched is the suggestion that
the sergeants and security officers would be any less likely, in the event
of an emergency, to obey the lieutenants’ commands owing to the
lieutenants’ possession or exercise of Sec. 7 rights. Cf. Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 182 (1941) (“Protection of the workers’
right to self-organization does not curtail the appropriate sphere of
managerial freedom; it furthers the wholesome conduct of business
enterprise.”).
6 The cases the Employer relies on with respect to the authority to
assign are also distinguishable, as the Regional Director stated. Burns
International Security Services, Inc., 278 NLRB 565 (1986), involved a
supervisory finding that rested on plant guards’ authority to evaluate
and discipline, not their authority to assign. And NLRB v. Quinnipiac
College, 256 F.3d 68 (2d Cir. 2001), involved aspects of the authority
to assign not present here, such as the authority to override predeter-
mined assignments.
ent judgment. There is no evidence as to what factors
lieutenants consider when arranging these exercises.7
Further, some of this unscheduled training, such as
awareness exercises for SPOs,8 pertains to discrete tasks
that are part of the SPO’s regular duties, not significant
overall duties. See Oakwood Healthcare, Inc., 348
NLRB at 689 (assignment of an employee to a certain
department, a certain shift or to certain significant overall
tasks “would generally qualify as ‘assign’ within our
construction.”).
Discipline
We agree with the Regional Director’s finding, for the
reasons he stated, that the Employer has not established
that lieutenants possess the authority to discipline, or that
they effectively recommend discipline.9 We further ob-
serve that the record before us does not establish that the
Employer consistently applies a progressive disciplinary
policy. The policy, along with the Employer’s work
rules, states that the Employer reserves the right to devi-
ate from progressive discipline based on the severity of
the violation, and there are no examples of the Employer
relying on prior discipline to impose a higher level of
progressive discipline. The sole disciplinary notice in
evidence that refers to prior discipline is wholly incon-
sistent with progressive policy as written. That notice
refers to the disciplined employee having received a writ-
ten warning and a written reprimand within the prior 12
months, yet the employee received only a written warn-
ing, rather than a suspension that would have issued had
progressive discipline been imposed. Cf. DirecTV, 357
NLRB 1747, 1749 (2011) (authority to discipline not
established where “[e]mployer did not introduce evi-
dence establishing the existence of a progressive disci-
plinary system or otherwise explain how the verbal or
written warnings contained in [disciplinary notices] in
the record were linked to future disciplinary action”).

7 One lieutenant gave vague testimony regarding his decision to
grant a request to use the site’s helicopter in a training exercise. The
lieutenant’s testimony suggests that his decision was based on routine
factors, such as the helicopter’s flight schedule and maintenance re-
quirements. Therefore, any judgment on this count is also routine.
8 For awareness exercises, lieutenants place a tag or marker on a
gate for the SPOs patrolling the area to spot and report.
9 In addition to the reasons stated by the Regional Director, we find
that lieutenants do not effectively recommend discipline because the
labor relations department reviews all discipline prior to issuance. See
Franklin Home Health Agency, 337 NLRB at 830 (“To confer 2(11)
status, the exercise of disciplinary authority must lead to personnel
action, without the independent investigation or review of other man-
agement personnel.”); see also G4S Regulated Security Solutions, 362
NLRB No. 134, slip op. at 3 (instruction to get a captain’s review be-
fore issuing discipline supported a finding that the lieutenants did not
have the authority to exercise independent judgment in issuing disci-
pline).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Given these considerations, the Employer’s reliance on
Oak Park Nursing Care Center, 351 NLRB 27 (2007), is
misplaced.
In sum, we agree with the Regional Director that the
Employer has not met its burden to establish that its lieu-
tenants possess any of the indicia set forth in Section
2(11). Accordingly, we find, in agreement with the Re-
gional Director, that they are not supervisors within the
meaning of the Act.
ORDER
This proceeding is remanded to the Regional Director
for appropriate action consistent with this Decision and
Order.
Dated, Washington, D.C., February 10, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
This case has several ingredients but presents a single
issue. The ingredients are a nuclear power plant, poten-
tial terrorist raids and other force-based incursions, and
lieutenants who command teams of security officers re-
sponding to those raids and incursions. The issue is
whether these lieutenants are supervisors. Contrary to
my colleagues and the Regional Director, I think the an-
swer is yes, these lieutenants are clearly supervisors
within the meaning of Section 2(11) of the Act based on
their authority to responsibly direct the Employer’s secu-
rity personnel.1
As stated, the lieutenants command teams of security
officers in responding to and repelling force-based incur-
sions into the Savannah River Site nuclear power plant
and during training exercises to prepare for such inci-
dents. Their direction of the security officers under their
command determines whether the tactical response suc-
ceeds or fails and thus serves a critical national security
function. I believe that it defies reason to conclude, as
do my colleagues, that the lieutenants’ authority to direct
security officers in carrying out these tactical responses
is not responsible direction within the meaning of Sec-
tion 2(11) of the Act.

1 I find it unnecessary to pass on whether the lieutenants are Sec.
2(11) supervisors based on their authority to assign or discipline.
DISCUSSION
The Employer is responsible for maintaining the phys-
ical security of the Savannah River Site nuclear power
plant and structure at all times, including nuclear materi-
als that are transported by truck convoys. This secure
site covers an area of 310 square miles. The Employer’s
security responsibilities include what the Regional Direc-
tor described as the “tactical responsibility to respond
and repel a forced or force-based incursion into the plant
by armed individuals.”2
It is worth pausing to consider what we are talking
about here. “Armed individuals” means some unknown
number of terrorists or other attackers equipped with
lethal weapons. “Forced or force-based incursion”
means the terrorists or other attackers are using these
weapons to destroy or take possession of the nuclear
power plant, or to obtain nuclear materials that are in
process of being transported.
To defend against such armed attacks, the Employer
employs a “protective force” that consists of deployed
teams of security police officers and sergeants, com-
manded by a lieutenant. The protective force has a “mili-
tary model chain of command.”3 The chain of command
above the lieutenants is sparse. There are four rotating
shifts, and each rotating shift is headed by a single major.
Law Enforcement is headed by a “chief,” who is equiva-
lent to a major. Thus, the protective force is headed by
five individuals. Below them are five captains, each ded-
icated to one of five protective force functions or areas4
across all four shifts. Consequently, during any single
rotating shift, the entire chain of command consists of
three or four individuals: one major, possibly the Law
Enforcement chief, and one or two captains (since each
of the five captains has responsibilities across all four
rotating shifts). Under them (across all shifts and func-
tions or areas), there are 46 lieutenants; and under the
lieutenants, there are approximately 330 lower-level pro-
tective force personnel, consisting of 30 sergeants and
roughly 300 security police officers (SPOs), security
officers (SOs), and central alarm station operators
(CAS).
To prepare for forced or force-based incursions, lieu-
tenants regularly direct teams under their command in
training exercises practicing responses to various simu-
lated attack scenarios. Lieutenants also command the
truck convoy whenever nuclear material is transported

2 Regional Director’s Decision and Direction of Election (“D&DE”)
at 3.
3 Id.
4 The five designated functions or areas—each assigned to a differ-
ent captain—are H area, K area, PPD (Perimeter Protection Depart-
ment), SRT (Special Response Team), and LE (Law Enforcement).
WSI SAVANNAH RIVER SITE 5
within the site. I believe that the command authority
exercised by lieutenants in tactical situations and during
training exercises sufficiently demonstrates responsible
direction. While the Employer maintains classified re-
sponse plans for various scenarios, those plans cannot
and do not cover all of the contingencies or situations
that could arise. Even when a plan covers a scenario, it
does not dictate every decision a lieutenant must make.
Instead, lieutenants must decide on their own how to
maneuver the force under their command, which tactics
to apply, and whether to order their team to open fire.
This demonstrates that the lieutenants exercise independ-
ent judgment in directing their subordinates. See
Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006)
(“[T]he mere existence of company policies does not
eliminate independent judgment from decision-making if
the policies allow for discretionary choices.”).
My colleagues acknowledge that “there was testimony
about some variables a lieutenant might consider” in tac-
tical responses, but they find that the lieutenants do not
use independent judgment in such situations because the
testimony “is vague” and there are “very detailed re-
sponse plans” and “standard procedures” in place. In my
view, this finding fails to recognize the unpredictable
nature of events that could unfold during an attack on a
nuclear site. Moreover, even though the Employer has
such plans and procedures, the record establishes that
lieutenants exercise independent judgment based on how
they are expected to handle contingencies. To take one
example, a lieutenant testified that he determined, based
on his assessment of the variables at play, that it was
appropriate to deviate from a normal response regarding
a mailroom inspection to reach the result that was appro-
priate in the circumstances. Specifically, the lieutenant
testified that, while he was training a new dog handler by
having the handler observe an on-duty dog and handler
team, the on-duty dog responded to a package. After
analyzing the circumstances of the on-duty dog’s re-
sponse to the package, the lieutenant determined that,
rather than evacuate the building—which would have
been the normal response—it was appropriate, instead, to
deviate from the normal response by calling in a second
dog team to perform an additional search.5

5 My colleagues concede that the lieutenant’s decision to call in a
second dog team involved direction. However, they contend that the
lieutenant did not “independently make the determination” to bring in a
second dog team instead of evacuating the building because he testified
that he “made the determination [not to evacuate the building] after
talking to the chief [a statutory supervisor].” I respectfully disagree
with my colleagues’ view that this testimony shows that the lieutenant
did not exercise independent judgment. To the contrary, relevant testi-
mony establishes that the lieutenant “made the determination to han-
dle” the situation “the way we did” and decided to bring in a second
As for accountability, the record contains testimony
that lieutenants are subject to verbal correction or written
discipline from higher-ranking officers if the employees
in their units fail to carry out their responsibilities. Lieu-
tenants are responsible for training their subordinates,
and they may be disciplined if the training is deficient.
In one instance, the Employer suspended and demoted a
lieutenant for failing to perform assigned duties relating
to a training exercise. The captain who issued the disci-
pline testified that the discipline was based on the inade-
quate performance of the lieutenant’s subordinates. In
my view, the evidence establishes that lieutenants are
accountable for the performance of their subordinates
and thus responsibly direct them. See Oakwood
Healthcare, 348 NLRB at 691–692; Community Educa-
tion Centers, Inc., 360 NLRB No. 17, slip op. at 2 (2014)
(Member Miscimarra, dissenting in part). My colleagues
reject this evidence as “conclusory” because only a sin-
gle example was provided. To the contrary, the evidence
was sufficient, and I believe it does violence to the pre-
ponderance of the evidence standard to disregard relevant
evidence merely because the majority believes the Em-
ployer should have introduced yet more evidence. G4S
Regulated Security Solutions, 362 NLRB No. 134, slip

dog team to perform a search, “[in] the meantime notifying our man-
agement . . . .”
I also disagree with my colleagues’ position that the lieutenant did
not exercise independent judgment under Oakwood Healthcare, supra,
because “it is unclear whether this example involved more than one
obvious choice.” As to this point, my colleagues state that, even
though the lieutenant’s decision to call in a second dog team involved
direction, the lieutenant did not exercise independent judgment because
he “did not elaborate on why he called in the team that he did or if he
had to choose between teams.” Contrary to my colleagues, the lieuten-
ant described, in detail, how he assessed the variables involved in de-
termining how to proceed—including why he called in a second dog
team—thus establishing that the matter did not involve an “obvious”
reaction. Specifically, the lieutenant testified that the purpose of calling
in a second dog team was to perform an additional search of the pack-
age, based on the information and resources that were available at the
time. The lieutenant further testified that the second dog was needed
because the second dog could determine whether the first dog was, in
fact, responding to “residual,” and the second dog was necessary be-
cause the first dog “is threshold order, meaning he could detect really
small quantities.” Finally, with all due respect to my colleagues, I do
not believe that an alleged lack of elaboration regarding a “cho[ice]
between [dog] teams” is relevant to the analysis here. Simply put, the
example found in the section of Oakwood Healthcare quoted by my
colleagues in support of their contention relates to questions involving
independent judgment involving the assignment of charge nurses to
particular patients—not to a discretionary decision to bring in a second
dog team to determine whether, based on an initial dog’s reaction,
explosives are actually present in a mailroom at a nuclear facility. In
any event, as explained above, the lieutenant testified about why he
decided to bring in a second dog team. In sum, the lieutenant’s deci-
sion to bring in a second dog team for the purpose of conducting an
additional search and not evacuate the building—which deviated from
the normal response—involved independent judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
op. at 6 (2015) (Member Miscimarra, dissenting). More-
over, this evidence was reinforced by other corroborative
testimony indicating that lieutenants are subject to disci-
pline for failing to satisfactorily train subordinate em-
ployees.
This case illustrates a troublesome aspect of many
Board findings regarding supervisory status. Congress
intended that an individual would be deemed a supervi-
sor if he or she possesses just one of the 12 different
types of supervisory authority listed in Section 2(11).
And even if a person lacks authority in any of these 12
categories, he or she is still a supervisor if the person can
“effectively . . . recommend” action in one of the 12 are-
as. However, perhaps because a finding of supervisor
status effectively denies representation to the individuals
in question, the Board has tended to evaluate each Sec-
tion 2(11) factor in isolation, and then construe each fac-
tor so narrowly as to compel a conclusion that nobody is
a supervisor. In this respect, as I indicated in Buchanan
Marine, L.P.,6 the Board’s treatment of supervisor status
has become “increasingly abstract and out of touch with
the practical realities” of many work settings—indeed,
here as in Buchanan Marine, my colleagues paradoxical-
ly find that individuals with command authority do not
have supervisory authority—and the Board has failed to
recognize that many businesses “cannot function, as a
practical matter, without having someone—or some rea-
sonable number of people—exercising supervisory au-
thority at a particular facility, during a particular shift, or
in relation to a particular function.”7
Accordingly, I have outlined three “common sense”
factors that, in my view, the Board must consider in eve-
ry case when evaluating supervisor status under Section
2(11): (i) the nature of the employer’s operations, (ii) the
work performed by undisputed statutory employees (i.e.,
the employees who require supervision by someone), and
(iii) whether it is plausible to conclude that all superviso-
ry authority is vested in persons other than those whose
supervisory status is in dispute.8 In plain English, as I
indicated in Buchanan Marine, the final factor essentially
asks, “If one accepts the Board’s finding that the disput-
ed employees are not supervisors, does that produce a
ludicrous or illogical result—for example, one where
nobody has the authority to hire, discharge, discipline,

6 363 NLRB No. 58, slip op. at 3–10 (2015) (Member Miscimarra,
dissenting).
7 Id., slip op. at 4–5 (Member Miscimarra, dissenting).
8 As I explained in Buchanan Marine, supra, slip op. at 10, I believe
the Board cannot conduct any realistic appraisal of the Section 2(11)
indicia without considering the three factors referenced in the text. I
refer to these as “common sense” factors because they “are meant to
help the Board avoid conclusions regarding supervisory status that fail
the test of common sense.” Id.
assign, or responsibly direct employees (or to exercise
any of the other indicia of supervisory authority set forth
in Section 2(11))?”9
In the instant case, there is no dispute regarding the
first factor, the “nature of the employer’s operations.”
Here, the work involves thwarting or repelling a terrorist
attack or other force-based incursion by an unknown
number of armed attackers seeking to destroy or take
possession of a nuclear power plant or nuclear materials
being transported by convoy.
Nor is there any dispute about the second factor, “the
work performed by undisputed statutory employees.”
The undisputed statutory employees are the 30 sergeants
and approximately 300 security personnel, and the work
they perform is to train for and, if and when necessary,
repel armed attackers using force to destroy or take pos-
session of the nuclear power plant or nuclear materials.
Finally, as to the third factor, if we assume that the
lieutenants are not supervisors, is it plausible to conclude
that all responsible direction of roughly 330 individuals
during a terrorist attack on a nuclear power plant is vest-
ed in four majors (each of whom is assigned to only one
shift), one Law Enforcement chief, and five captains
(each responsible for only one area or function)? For
several reasons, I believe such a conclusion would be
contrary to the record and “fail the test of common
sense.”10
First, given the nature of the Employer’s operations
and the enormous uncertainty associated with any poten-
tial “force-based incursion” by those who seek to destroy
or commandeer a nuclear power plant or nuclear materi-
als, it strains credulity to suggest that the 46 lieutenants,
who undisputedly command the lower-level security per-
sonnel, fail to responsibly direct them and thus exercise
supervisory authority. Indeed, the Regional Director’s
Decision and Direction of Election is replete with find-
ings that lieutenants exercise direct and immediate con-
trol over those underneath them, especially during efforts
to repel “force-on-force” attacks.11

9 Id. (emphasis in original).
10 Id.
11 The Regional Director found that an SRT lieutenant “is the re-
sponse force leader during any incident involving a[n] SRT team or
teams and thus directs the movements of all deployed personnel and
equipment,” and that “SRT teams are redirected to other area locations
by the sergeant or lieutenant as the tactical situation dictates” (D&DE
at 8). “Each shift lieutenant is responsible for preparing and command-
ing a set number of shift exercises per month and annually,” and “[t]he
shift lieutenant in command of the exercise is the incident commander”
(id. at 9). During a “force-on-force” training exercise, which usually
involves the “entire shift” for a particular area, the “area lieutenant is
designated the response team leader and directs the response to the
incident” (id.). During a simulated attack during the movement of
nuclear materials, an “SRT lieutenant is commander of the convoy, its
WSI SAVANNAH RIVER SITE 7
Second, I am not persuaded by my colleagues’ sugges-
tion that lieutenants fail to exercise independent judg-
ment in responsibly directing subordinates because (as
characterized by the majority) there are “detailed security
orders, post orders, [and] standard procedures,” and “var-
ious witnesses testified that each area and post had very
detailed response plans and standard procedures govern-
ing responses to real or simulated incidents and emer-
gencies.” Considering the magnitude of the threat and
the dire consequences that could result from lack of pre-
paredness, one would expect the Employer to have a
plethora of security plans for a host of contingencies.
However, no amount of planning can anticipate every-
thing. Given the enormous uncertainty regarding types
of threats that might materialize, the mere existence of
contingency plans does not detract from the obvious role
played by lieutenants who direct lower-level employees
on every shift and with respect to every area or function.
Indeed, the requirement that lieutenants adhere to an ar-
ray of detailed contingency plans while simultaneously
confronting actual threats as they emerge in real time
makes their role more rather than less important in di-
recting sergeants and other lower-level security person-
nel.
Third, I believe the record and the Regional Director’s
findings—combined with the size and complexity of the
Savannah River Site nuclear facility—make it implausi-
ble to suggest that all authority to responsibly direct 330
lower-level protective force personnel is exercised exclu-
sively by 10 statutory supervisors: five captains (each
responsible for a single protective function or area), four
majors (each assigned to a single rotating shift), and one
Law Enforcement chief. In my view, it is not reasonable
to conclude that the Employer’s extensive security opera-
tions contemplate that “detailed response plans” and
“standard procedures” will thwart unknown numbers of
armed attackers who seek to destroy or take possession

movement, and the security of the movement to insure protection of the
materials” (id. at 10). “Lieutenants have sergeants who, in turn, report
to them” (id. at 4). At the beginning of each protective force area shift,
there is a formal “muster,” during which “the shift lieutenants relay
pertinent information” to sergeants and other security officers, includ-
ing “safety matters and alphanumeric codes for identification between
friend and foe” (id.). On each shift, during the issuance of weapons and
ammunition, the lieutenants “observe the loading of ammunition of the
incoming shift and the unloading of ammunition from the outgoing
shift” (id. at 5). The “SRT SPOs in H area and K area report to SRT
sergeants who, in turn, report to SRT lieutenants” (id. at 6). The securi-
ty personnel include canine teams, including nine explosives teams and
one narcotics team; the “canine shift lieutenants are assigned to work
on one of the four twelve-hour shifts insuring that a canine team is
always on site,” and “[s]hould a team handler have questions or an
unusual situation arise, then the shift lieutenant is contacted” (id. at 7–
8).
of the nuclear power plant or nuclear materials, without
having responsible direction provided by a reasonable
number of supervisory personnel on each rotating shift
and in every area or function. Nor does the record rea-
sonably support a finding that all responsible direction is
provided by the five captains, four majors and the Law
Enforcement chief. In this particular work setting, and
consistent with the “military model chain of com-
mand,”12 responsible direction necessarily must also be
provided by the lieutenants.13 Moreover, I believe the
record compels a conclusion that the lieutenants do pro-
vide such responsible direction, which warrants a finding
that they are statutory supervisors.
CONCLUSION
For the reasons set forth above, I would find that the
lieutenants are Section 2(11) supervisors because, at a
minimum, they possess authority to responsibly direct
sergeants and other subordinate security officers and
exercise independent judgment in doing so. According-
ly, I respectfully dissent.
Dated, Washington, D.C. February 10, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

12 D&DE at 3.
13 My colleagues acknowledge that the Employer’s security person-
nel perform “vital work . . . in protecting the Savannah River Site nu-
clear power plant and nuclear materials[,]” but they dismiss my “dis-
cussion of the emergency scenarios” that may occur at the Site as “mel-
odramatic.” With respect, I do not believe it is “melodramatic” to
consider that attacks on the Site could take a variety of forms, and that
lieutenants would be required to exercise independent judgment in
unpredictable and life-threatening circumstances. My colleagues also
state that they “reject any suggestion that the lieutenants’ decision (if
they so choose)” to unionize “would undermine their ability or their
desire to perform their duties[,]” and that it is “far-fetched” to suggest
that sergeants and security officers “would be any less likely, in the
event of an emergency, to obey the lieutenants’ commands” as a result
of today’s decision. If by these statements my colleagues mean to
imply that I hold such views, I do not, nor do I believe that such views
may reasonably be inferred from this dissent. I have no doubt that
lieutenants would, of course, fulfill their duties in any event. I simply
believe my colleagues’ determination that the lieutenants lack authority
to responsibly direct subordinates under their command fails the test of
common sense.