The Wackenhut Corporation d/b/a G4S

National Labor Relations Board - Administrative Judge Opinions

Jun 27, 2011

12-CA-026644 (N.L.R.B. Jun. 27, 2011)

JD(ATL)–16–11
Miami-Dade County, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
G4S REGULATED SECURITY
SOLUTIONS, A DIVISION OF
G4S SECURE SOLUTIONS (USA) INC.
f/k/a THE WACKENHUT CORPORATION
and CASE 12–CA–26644
THOMAS FRAZIER, an Individual
and CASE 12–CA–26811
CECIL MACK, an Individual
Shelley Plass, Esq.,
for the Acting General Counsel1
Fred Seleman, Esq., for the Respondent.2
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. These are two discharge cases I
heard in Miami, Florida, commencing on April 4, 2011. The cases originate from a charge
filed by Thomas Frazier, an individual (Frazier) on February 22, 2010, in Case 12–CA–26644
and filed by Cecil Mack, an individual (Mack) on July 29, 2010 in Case 12–CA–26811,
against G4S Regulated Security Solutions, a Division of G4S Secure Solutions (USA) Inc.
f/k/a The Wackenhut Corporation (Company). The prosecution of these cases was formalized
on December 29, 2010, when the Regional Director for Region 12 of the National Labor
Relations Board (the Board), acting in the name of the Board’s Acting General Counsel,
issued a complaint and notice of hearing (complaint) against the Company.

1 I shall refer to counsel for the Acting General Counsel as counsel for the Government and to the Acting
General Counsel as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Company and I shall refer to the
Respondent as the Company.
JD(ATL)–16–11
2
It is specifically alleged the Company, on or about February 2, 2010, indefinitely
suspended its employee Mack and thereafter on February 15, 2010, discharged him; and, on
or about February 12, 2010, indefinitely suspended its employee Frazier and thereafter on or
about February 15, 2010 discharged him because the two engaged in protected concerted 5
activities and to discourage employees from engaging in these or other concerted activities It
is alleged the Company’s actions violate Section 8(a)(1) of the National Labor Relations Act
(the Act).
The Company, in a timely filed answer to the complaint, denied having violated the 10
Act in any manner alleged in the complaint. The Company, as one affirmative defense, asserts
Mack and Frazier were supervisors of the Company within the meaning of Section 2(11) of
the Act and thus not protected by the Act.
The parties were given full opportunity to introduce relevant evidence, to examine and 15
cross–examine witnesses, and to file briefs. I carefully observed the demeanor of the
witnesses as they testified and I rely on those observations in making credibility
determinations herein. I have studied the whole record, the posttrial briefs, and the authorities
cited therein. Based on the detailed findings and analysis below, I conclude and find, that at
all times material herein, Frazier and Mack served as supervisors of the Company within the 20
meaning of the Act and outside the Act’s protection. I find the Company did not violate the
Act when it suspended and thereafter discharged Frazier and Mack.
Findings of Fact
25
I. Jurisdiction, Labor Organization Status, and Supervisory/Agency Status
The Company is a Delaware Corporation engaged in the business of providing guard
and security services to clients throughout the United States, including the Florida Power &
Light Company’s powerplant located at Turkey Point in Miami–Dade County, Florida30
(Turkey Point) and other facilities located in the State of Florida. During the 12–month
period ending December 29, 2010, a representative period, the Company purchased and
received at Turkey Point, and at its other facilities located in the State of Florida, goods and
services valued in excess of $50,000 directly from points outside the State of Florida. The
evidence establishes, the parties admit and I find, the Company is an employer engaged in 35
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The parties admit, and I find, International Union, Security, Police and Fire
Professionals of America (SPFPA) (Union) is, and has been, a labor organization within the
meaning of Section 2(5) of the Act.40
It is admitted Security Shift Supervisor Quentin Ferrer, Leadership Development
Coordinator Karen Bower Macdonald, Project Manager Michael Mareth, Security Shift
Supervisor Gonzalo Pedroso, and Operations Manager Juan Rodriquez are supervisors and
agents of the Company within the meaning of Section 2(11) and (13) of the Act.45
JD(ATL)–16–11
3
The first, fundamental and controlling issue is whether security lieutenants Frazier and
Mack, at material times herein, were supervisors for the Company within the meaning of
Section 2(11) of the Act. If they were supervisors they would not be protected by the Act and
the Company’s suspending and discharging them would not violate the Act. In as much as I
find the two to be supervisors the remaining issues need not be addressed, namely, whether 5
Frazier and Mack engaged in concerted activities protected by the Act and whether they were
discharged for doing so. Nor is it necessary to address the Company’s affirmative defense
that Frazier and Mack were discharged for valid considerations not based on unlawful motives
or considerations.
10
II. Alleged unfair Labor Practices
A. Facts
1. Background15
The Company provides guard and security services for Florida Power & Light at its
Turkey Point (Miami/Dade County, Florida) nuclear generating stations. The Company
provides its services pursuant to a written agreement with Florida Light & Power and
provides its services supportive of, and in compliance with, site security programs which in20
turn are in compliance with Nuclear Regulatory Commission requirements, specifically Title
10, Code of Federal Regulations 73.55. Florida Power & Light owns several thousand acres
at its Turkey Point Nuclear Power Plant facility for which various levels of security are
furnished by the Company. Included in Florida Power & Light’s Turkey Point property is an
area referred to as the “owner controlled area” which contains security fences and intrusion 25
detection devices. Within the protected area is a vital area which contains the power block
where the generating stations are that actually produce electrical power. The security
provided in all areas includes, as a applicable, patrols, duty stations and other personnel in
various capacities. The Company has provided its services at Turkey Point for approximately
27 years and the Company’s current contract with Florida Power & Light expires December 30
31, 2011.
The Company’s current name came into effect in 2009, however, prior to that date it,
for an extended time, operated as The Wackenhut Corporation. According to Project
Manager Mareth, the Company’s contract with Florida Power & Light sets forth a description 35
of the type of security services the Company is to perform. The agreement also sets forth the
general staffing requirements and establishes procedures to amend the agreement if it is
necessary to change the staffing requirements. Project Manager Mareth stated that generally
the security officers performing security services at Turkey Point do not change if the contract
is awarded to a different security company. It appears the staffing provisions in the 40
agreement between Florida Power & Light and the Company have remained the same.
The Board in Wackenhut Corp. 345 NLRB 850 (2005), sets forth a somewhat detailed
history of labor relations between the Union and Company herein. A “brief” review of that
history, taken from that Board case, without further referencing that case, is perhaps helpful. 45
Prior to September 1, 2003, the Company employed four categories of employees at its
JD(ATL)–16–11
4
Turkey Point facility, namely; captains, lieutenants, sergeants, and security officers.
Specifically in July 1999, the Board certified the Union as representative of the Company’s
security officers at Turkey Point. The Board noted the category “security officer” included
central and secondary alarm station operators, unarmed security officers/watchmen, and part-
time security officers. Prior to the election that resulted in the above unit being certified the 5
Company stipulated it did not oppose the inclusion of the central and secondary alarm station
operators in the bargaining unit. In 2002, the Union filed a petition seeking to represent the
sergeants at Turkey Point. The Company opposed the petition, asserting the sergeants were
statutory supervisors. The Regional Director of Region 12 of the Board issued a decision and
direction of election, in which she found the sergeants were not supervisors under the Act. 10
The Board denied the Company’s request for a review of the Director’s decision. On March
4, 2003 the Union was certified as the representative of the Company’s sergeants.
On May 28, 2003, Florida Power & Light issued a request for proposals with bid
specifications for a new security contract setting forth staffing provisions which provided that 15
supervisors would be defined as nonbargaining personnel and that all personnel assigned to
operate the central and secondary alarm stations would be supervisors. Further, the new
contract specifications called for four security shifts per day with each shift supervisor trained
and certified to perform duties within the central and secondary alarm stations, as well as to
perform other duties in the owner controlled and protected areas. In June 2003, the Company 20
notified Florida Power & Light that if it was awarded the new contract operations at Turkey
Point it would change its operations in three ways: (1) The part-time program would be
eliminated; (2) The central and secondary alarm station operators would be supervisors, and
(3) The position of sergeant would be eliminated. The Company was thereafter awarded the
new security contract with Florida Power & Light.25
After obtaining the new contract with Florida Power & Light, the Company
announced a posting for new supervisory positions with a requirement that applicants be able
to operate the central and secondary alarm stations. The Company then filled 15 lieutenant
positions by promoting unit employees into the new positions. Starting on September 1, 30
2003, all central and secondary alarm station duties were performed by lieutenants. As a
result of the changes implemented on September 1, 2003, the Company no longer employed
anyone in sergeant positions. The Board found the Company violated the Act by eliminating
the sergeant positions and by eliminating the central and secondary security operators from
the bargaining unit and reclassifying the operators as nonunit lieutenants. The Board also 35
concluded the Company had failed to establish the new lieutenants “assigned to perform
CAS/SAS [central alarm station/secondary alarm station] possessed or exercised supervisory
authority.”
With that brief review, I now turn to the facts surrounding the issues herein. The 40
Company’s highest ranking individual at Turkey Point is Project Manager Mareth. He is
assisted by Operations Coordinator Rodriguez, Training Coordinator Roy McCloud,
Leadership Development Manager Macdonald, and various other administrative personnel.
There are five security officer shifts. Each shift has 1-team shift captain, 7 lieutenants, and
approximately 37 security officers assigned. The security teams are referred to as Alpha, 45
Bravo, Charley, Delta, and Echo. The Echo team is a training team that actually fills in for
JD(ATL)–16–11
5
each of the other four teams as each team must rotate into a week of security training every 5
weeks. There are four teams performing security services and one team in training at all
times. At applicable times herein (February 2010) there were approximately 170 security
officers employed at Turkey Point.
5
The current applicable unit description for security officers follows:
The Company recognizes the International Union, Security, Police, Fire
Professionals of America (SPFPA) and its Amalgamated Local No. 610 as
the exclusive collective bargaining representative for all employees 10
designated by the National Labor Relations Board’s Certification of
Representative issued on July 8, 1999 in case No. 12-RC-8349, including
all security officers, and watchpersons [Unarmed Officers], performing
guard duties as defined in Section 9(b)(3) of the National Labor Relations
Act, as amended, who are employed by the Employer at the Turkey Point 15
Nuclear Power Plant, located in Florida City, Florida; but excluding all
office clerical employees, professional employees and supervisors as
defined in the National Labor Relations Act, as amended.
Frazier was hired as a security officer in 1989 and Mack in 2002. Both were 20
promoted to lieutenant in 2003. Both Frazier and Mack were suspended from work a few
days before they were terminated on February 15, 2010. Frazier’s termination notice reflects
“Failure to meet satisfactory leadership expectations.” Mack’s termination notice reflects
“Cecil was involved in an incident with the client that involved undesired behavior. As a
part of the process management completed a review of Cecil’s personnel file. As a result of 25
the review it is management’s perspective that Cecil’s performance does not meet
satisfactory job performance or behavior standards.”
2. Company’s evidence
30
As noted earlier the Company, asserts as an affirmative defense, that Frazier and Mack
were supervisors within the meaning of Section 2(11) of the Act. With that assertion the
Company assumes the burden of proving their supervisory status. I consider the Company’s
evidence first as it is the party asserting the supervisor status and afterward, I shall consider
evidence presented by the Government bearing on the issue.35
I note the position of lieutenant existed prior to Frazier and Mack applying for and
being promoted to lieutenants in the fall of 2003. Frazier and Mack received pay raises at the
time of their promotions. Project Manager Mareth testified the pay deferential between
security guards, which Frazier and Mack were, and lieutenants, to which they were promoted, 40
was approximately $4 per hour. Lieutenants Frazier and Mack received more life insurance
coverage than the security officers. Project Manager Mareth testified when an employee is
promoted to lieutenant he/she is given additional training not provided to the security officers.
The additional training is designed to, in part; give the lieutenant “a better understanding of . .
. performing oversight and observation of day-to-day activities” a lieutenant will encounter. 45
Mareth further explained the training for lieutenants is at a “higher level” than training for the
JD(ATL)–16–11
6
security officers. Leadership Development Coordinator Macdonald testified she conducts 80
hours of initial leadership training with lieutenants that includes interpersonal and
presentation skills, training which is not provided to the security officers. Lieutenants also
receive, on an ongoing basis, training not provided to the security officers. Lieutenants meet
with upper management at least once per month without security officers being present.5
Newly selected lieutenants, including Frazier and Mack, signed various documents
after becoming lieutenants they had not been required to sign as security officers. One such
form was a “Supervisory Requirements” form. On the “Supervisory Requirements” form
lieutenants are instructed they should use coaching techniques as well as counseling and 10
progressive discipline to correct unprofessional conduct and poor job performances and are to
do so fairly and consistently. On the form lieutenants are instructed to seek management
assistance and input when needed. Frazier and Mack acknowledged, on the signed forms,
they were to “[m]ake those accountable to [them] aware of what [they] expect[ed] from
them”. The two acknowledge on the signed forms they were to “lead by example” and “keep 15
issues discussed between supervisors confidential.” Frazier and Mack specifically understood
the Company viewed them as supervisors. Frazier and Mack each signed a Company
“Leadership Pledge” agreement in which they agreed they would not tolerate inattentiveness
within the ranks of their direct reports; they would be receptive to concerns and questions
raised by their direct reports; they would not tolerate retaliation or peer harassment within the 20
ranks of their direct reports; they would be observant to the work place behaviors of their
direct reports; they would listen effectively and respond appropriately to their direct reports;
they would use a nonthreatening communication style with their direct reports; and, they
would develop, coach, mentor and train their direct reports. In singing the “Leadership
Pledge” both wrote the description of their position as that of “Supervisor.”25
Frazier and Mack also executed “Management Challenge” forms in which they
acknowledged that as part of the “management team” they had an “obligation to operate
above the standard expectations” of their colleagues and being in supervision carried an
accountability on their part for their teams performance. Both acknowledged the Company is 30
committed to supporting them with relevant training to be successful supervisors and they
were aware of what it meant to supervise armed personnel and that management standards for
its supervisors in this type environment had to be exceptionally high.
Local Union 610 President and security officer Timothy Lambert testified regarding 35
the duties of Frazier and Mack, in part, as follows:
As long as I’ve known them and they were supervisors, . . . I went to them
because they cared about what was going on there. I mean they were two
excellent supervisors that really cared about the operations.40
Local Union President Lambert acknowledged that as a security officer his first line
supervisor was the lieutenant.
Project Manager Mareth testified, at length, regarding the position and duties of 45
lieutenants at the Company. There are approximately 170 security officers that report
JD(ATL)–16–11
7
directly to lieutenants according to Mareth. Lieutenants in turn report to shift captains.
Mareth explained the Company’s supervisory structure is necessary so one individual, such
as the captain, would not be the only one responsible for supervising “30-some officers
assigned to [a] particular shift” with the responsibility of covering the several thousands of
acres to be secured. Project Manager Mareth testified lieutenants provide direct oversight to 5
the security officers in the field including addressing issues that arise on the job. Project
Manager Mareth explained that while the Company is in a “regulated industry” with “a lot of
procedures for what we do, you can’t have a written procedure for absolutely everything that
you do in the field.” Mareth added lieutenants “have to utilize judgment and discretion” in
performing their functions and may not have “a written line item that tells [them] what to do.” 10
Mareth said lieutenants “can either address [the issues] at their level, or if its something that
they cannot address, then they can push it to a higher level and it just continues all the way
up…to my [Project Manager] level . . . ” Mareth said lieutenants oversee security officers in
all geographic areas at the Turkey Point facility and their oversight includes evaluation of the
security officers.15
Florida Power & Light’s Turkey Point Nuclear Plant Security Department, Security
Force Instruction 1106, Revision 9 titled “Field Supervisors” is applicable to the Company
herein and, “provides guidance to Security Field Supervisors for performing supervisory
functions of Security Officers manning security posts and assisting the Security Shift 20
Supervisor in carrying out daily Security Operations.” The title “field supervisor” and
“lieutenant” refers to the same position at the Company. Field supervisors are directed to
ensure; that only qualified security officers are assigned to posts; that security officers
understand the specific requirements of their post; that security officers remain alert, attentive,
and properly perform their duties; that security officers perform their duties in a safe 25
environment; that security officers properly maintain post reports; and, that field supervisors
initiate prompt and appropriate actions to correct any identified deficiencies including
improper behavior, attitude, or inattentiveness to duty.
Project Manager Mareth described, in general terms, a lieutenant’s workday. The day 30
starts with the morning shift briefing conducted by the shift captain with, as appropriate, input
from the lieutenants. Lieutenants ensure the “off-going” security officers are properly
relieved and then issues weapons to the “on-coming” security officers. Lieutenants perform
equipment inventories which includes verifying that the security officers have all required
equipment at their posts and are properly logged in and fit for duty. Lieutenants are 35
responsible for monitoring the central and secondary alarm systems. Lieutenants field
questions from and address issues raised by the security officers and make required security
observation reports. Project Manager Mareth stated lieutenants correct, coach and counsel, as
needed. Lieutenants generally do not perform security officer duties.
40
Project Manager Mareth further explained that lieutenants are the first line supervisors
to whom the security officers’ report, and can issue any type discipline, excluding
termination, without consulting a supervisor. The Company has a three level progressive
disciplinary policy that consists of four steps. Step one is oral counseling; step two is
written disciplinary counseling; step three is written disciplinary counseling and suspension; 45
and step four is termination of employment. Stated somewhat differently level I, the highest
JD(ATL)–16–11
8
level, results in termination. Level II is a documented discipline such as written warnings, an
accumulation of which results in termination. Level III, the lowest level of discipline,
typically starts with a verbal warning or a verbal warning that is documented. The
progressive discipline policy and procedure reflects, “There are three levels of offenses
(Levels I, II, III). These are only guidelines for use by management and supervisor5
personnel.” Mareth explained that if a lieutenant issued a written warning to a security officer
and the security officer committed a similar infraction such would result in a suspension for
the security officer. Project Manager Mareth testified lieutenants may, and do, exercise
discretion when issuing discipline pursuant to the Company’s disciplinary policies. For
example, a lieutenant may decide not to issue formal discipline for an infraction or he/she can 10
decide which level of discipline is appropriate as there is some overlap between offenses
listed at the disciplinary levels. Mareth said a lieutenant may consult with the shift captain to
determine if a past practice has been established for a particular offense but is not required to
do so. According to Mareth lieutenants may, for example, issue a coaching, which is not part
of the formal disciplinary procedure unless documented, for a first offense and if there are 15
other like offenses determine at that time which level of discipline is warranted. According to
Project Manager Mareth, lieutenants do not have to consult with their supervisor (captains)
before issuing discipline. Eight employee disciplinary/corrective action Notices, issued by 6
lieutenants, were received in evidence. Two of the disciplinary actions resulted in written
warnings with 1-day suspensions; two involved written warnings only; and, four involved 20
written disciplinary actions documenting oral warnings. Five of the disciplinary actions
involved attendance infractions, two involved failure to timely report for training, and one
involved a vehicle accident. None of the disciplinary/ccorrective action notices in evidence
was issued by either Frazier or Mack. In fact, neither Frazier or Mack issued any discipline of
record.25
Project Manager Mareth testified lieutenants perform evaluations for their direct
reports. Mareth explained the evaluations are used in the promotional process for the security
officers. Mareth named four security officers whose recent promotions were impacted by
their lieutenant’s evaluations and added there were perhaps eight other like situations, over30
the previous year and half. No one higher in management than a lieutenant regularly
evaluates, in writing, the security officers. The evaluations prepared by the lieutenants are
used in the promotional process in accordance with the Company’s policy manual at
“Promotion Policy and Procedure.” The manual states in part, “the promotion process
consists of several stages. The required stages are as follows . . . . review of performance 35
appraisals.” The portion of the manual covering promotions further states, in part, that the
promotion board shall review the personnel file for each applicant for promotion with specific
attention given to performance appraisals.
According to Mareth, lieutenants can be disciplined, up to and including discharge, if 40
they fail to ensure the quality of performance of the security officers under their command.
Mareth explained that a failure to ensure quality performance by the security officers could
also impact promotional opportunities for lieutenants.
With respect to evaluations for the security officers, Charging Party Mack 45
acknowledged that for 2 years prior to his discharge he evaluated the six security officers that
JD(ATL)–16–11
9
reported directly to him and he did so on a quarterly, as well as, annual basis. Mack said he
was told to perform the evaluations by his immediate shift supervisor. Mack explained the
evaluations were mainly to set goals for the security officers. Mack went over each
evaluation with each security officer involved before he turned the evaluations over to his
superior, the shift captain.5
Frazier also testified he evaluated the security officers that reported to him on a
quarterly and annual basis and was instructed by his immediate supervisor, Captain Ferrer, to
do the evaluations starting some 2 years prior to his discharge. Frazier said he individually
reviewed the evaluations with each security officer and had them sign their evaluation before 10
he turned the evaluations over to Captain Ferrer. Frazier said he sometimes made Captain
Ferrer aware of what he had placed in a security officer’s evaluation in case the officer
questioned the evaluation. Frazier identified some 83 pages of evaluations, which were
received in evidence, he made of certain security officers that reported to him.
15
3. Government’s evidence relating to the supervisory issue
Frazier testified he commenced working for the Company at Turkey Point in May
1989 when it was known as the Wackenhut Corporation. Frazier worked as a security officer
when first hired. Frazier described his security officer duties as protecting the plant from20
radiological sabotage by conducting patrols; standing guard at specific posts; conducting fire
watch; fire watch patrols, checking doors, and equipment; responding to contingencies; doing
vehicle patrols of owner-controlled areas; working at various entry gates; searching vehicles
and materials; and, preventing unauthorized personnel and/or materials from entering the
plant. Frazier said he conducted himself, and carried out his assigned duties in accordance 25
with Security Force Instructions established by Florida Light & Power and the Company
which provided him guidance on his job functions and instructed him how to react in any
given situation. Frazier said that late in his tenure as a security officer he became central and
secondary security alarm certified and monitored computer screens for alarms at vital areas or
fenced zones. As a certified central and secondary alarm security officer Frazier said he 30
would run reports, answer telephones, provide information to the captains and dispatch
officers to alarms in accordance with the Security Force Instructions. Frazier said his overall
security officer duties did not change when he became a certified central and secondary
security alarm officer that he just assumed the extra duties.
35
Frazier testified his position “changed slightly” when he became a lieutenant in
September 2003 and was assigned to the B Team where he worked 7 12-hour shifts every 14
calendar days and reported to Shift Captain Quentin Ferrer. Frazier described his lieutenant
duties as, “ensuring that qualified security officers are manning the various posts, qualified in
the SFI [Security Force Instructions],” “to verify the paperwork, to ensure that the general 40
purpose logs and post or patrol logs are correctly filled out,” and to ,“ensure that the officers
were alert, attentive, are aware of their assigned duties as set forth by the general purpose log
and the SFIS.” Frazier further explained his duties included ensuring the security officers
“equipment was in proper working order and not damaged or been tampered with” and to
ensure the security officers worked in a safe clean environment and conducted their patrols 45
according to the Security Force Instructions. Frazier said his central and secondary alarm
JD(ATL)–16–11
10
system duties remained the same as when he was a security officer. Frazier said he knew
what all of his duties as a lieutenant were because his duties were written out in the Security
Force Instructions, training manuals, administrative directives and by his lengthy experience
at Turkey Point. Frazier added there had been sergeant positions at the Company at the time
he was a security officer but by the time he became a lieutenant in September 2003, the 5
sergeant positions had been eliminated. Frazier explained sergeants “essentially” performed
the same tasks he performed as a lieutenant but after further questioning by Government
Counsel Frazier stated sergeants and lieutenants performed the same job.
Frazier testified he had daily contact with security officers, other lieutenants and at 10
least 1 captain. He said he commenced his work day at the shift briefing attended by those
mentioned above, as well as, on occasion Florida Power & Light security oversight specialists
and other Company management such as Project Manager Mareth and Operations
Coordinator Juan Rodriguez. According to Frazier the shift captain addressed the shift
collectively and disseminated pertinent information for the day, such as the status of the units,15
making note of any fence or door zones that might be out of order or any new posts that had
been established. According to Frazier the shift captain determined post assignments and
reflected those assignments on a post assignment sheet, copies of which were given to the
security officers and lieutenants. Frazier explained that with the assignment sheet he knew
where each of his security officers would be posted and he visited each post during the shift. 20
Frazier said that while he was at each post he verified that the proper security officer was at
his/her assigned post and reviewed the general purpose and inventory logs with the security
officer as well as checked the security officers weapons. According to Frazier the shift
captain never discussed shift rotations with him before issuing them. Frazier said he did not
direct the work of the security officers that reported to him “because the work is defined in the 25
general purpose log,” “[t]he officer reads that. Those are his post instructions.” Frazier
explained his responsibility was just to ensure the security officers understood his/her post
instructions. Frazier stated some security officers preferred some posts over other posts and
added he had the authority to transfer security officers from one post to another during a shift,
under some circumstances but, only after requesting approval from the shift captain. On 30
cross-examination, Frazier acknowledged he had stated in a pretrial affidavit he had the
authority to transfer a security officer from one post to another on his shift for operational
needs and he “did not generally consult with the captain before doing so.”
Frazier testified he had given security officers “coachings” which he considered to be 35
“peer checking.” A “coaching”, according to Frazier, may involve instructing a security
officer to sit up straight instead of slouching, or to be a little more vigilant in the area where
he/she was assigned. Frazier said coaching is not a form of discipline. Frazier said he had
never issued discipline to security officers reporting to him because they all knew their jobs.
Frazier on direct examination, said he could issue oral or written discipline to his security 40
officers for not doing their job duties or being inattentive or not following guidelines in the
general purpose log only after first bringing it to the attention of his shift captain to ascertain
the appropriate disciplinary action. Frazier acknowledged on cross-examination that specific
supervisory requirements applicable to him directed him to not only use coaching techniques
but to utilize counseling and progressive discipline to correct unprofessional conduct or poor 45
job performance by the security officers.
JD(ATL)–16–11
11
Frazier testified that about 2 years before his discharge he began to evaluate, on a
quarterly and annual basis, those security officers reporting to him. Prior to that time
evaluations were performed by the captain. The quarterly evaluations designated as “one-on-
one” reviews were, according to Frazier, for the purpose of bringing about improvement in 5
the security officers attendance, communication skills and knowledge of the Security Force
Instructions. After preparing the quarterly and annual reviews for his security officers Frazier
gave them to his shift captain or Operations Coordinator Rodriguez. Frazier explained he
reviewed each evaluation with the applicable security officer before giving them to the
captain and, on occasion, would speak with his shift captain about a specific evaluation in 10
case “the officer came back and was questioning it.” Frazier testified, on direct-examination,
that as far as he knew the evaluations were used only to “improve the deficiencies that the
officers may have.” When asked on cross-examination if a bad evaluation could affect a
security officers future promotional opportunities, Frazier testified “. . . as far as I know, the
one-on-ones and the evaluations were not used for promotion. They were used . . . to get the 15
officer to improve his performance. I do not know if it was used . . . . to promote.” However,
after being given an opportunity to review his pretrial affidavit, Frazier acknowledged that if a
security officer continually received bad evaluations or reviews the officer “may not be
considered for a promotion.” Frazier did not know of any security officer being promoted
based on his evaluation of the security officer. Frazier acknowledged he had recommended 20
security officers receive meal tickets or “a letter incentive award” but added even other
security officers could recommend a fellow security officer for a meal or small incentive
award.
Mack’s testimony, regarding his duties and authority as a lieutenant, though in less 25
detail, was for the most part, the same as Frazier’s testimony. Mack testified that everything
he did every minute of every day as a lieutenant was explicitly covered in detail by written
policies. Mack likewise believed everything security officers did was covered and/or
governed by written policies and the security officers simply had to follow the policies. Mack
testified the captain would issue discipline and the lieutenant who was in the area of the 30
security officer disciplined would simply deliver the discipline to that security officer.
III. Credibility Comments, Analysis and Conclusions
I am persuaded Frazier while testifying made an effort to minimize the authority he 35
had and/or exercised as a lieutenant. For example, he testified some officers preferred some
posts over other posts and that he had the authority to transfer security officers from one post
to another during a shift, but only after requesting approval from his shift captain. However,
after being confronted with his pretrial affidavit, he acknowledged he had the authority to
transfer a security officer from one post to another on his shift for operational needs and did 40
not generally consult with his captain before doing so. Frazier first testified he could issue
oral or written discipline to his assigned security officers for not properly performing their
jobs duties, being inattentive, or not following guidelines but, only after first bringing such to
the attention of his shift captain. However, Frazier acknowledged, during cross-examination,
that specific supervisory requirements applicable to him, called for him to use coaching 45
techniques, as well as, counseling and progressive discipline to correct unprofessional
JD(ATL)–16–11
12
conduct, or poor job performance by his security officers. Frazier testified on direct
examination that evaluations he prepared for the security officers reporting to him were
utilized to improve deficiencies the security officers may have, however, on cross-
examination, and after reviewing his pretrial affidavit, he acknowledged that if a security
officer continually received bad reviews or evaluations he/she may not be considered for 5
promotion.
It is in light of this and other testimony by Frazier and particularly my observation of
him as he testified; I am unable to fully credit his testimony regarding his duties and authority
where contradicted by the testimony of others or, called into question by documentation. 10
Thus, I have relied, to a great extent, on the testimony of Project Manager Mareth, which I
credit, with respect to the duties and authority of lieutenants at the Turkey Point facility.
Under Board and Supreme Court precedent, in order to be a statutory supervisor, an
individual must have the authority to effectuate or effectively recommend at least one of the 15
supervisory indicia enumerated in Section 2(11) of the Act, using independent judgment in
the interest of the employer. Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006) (citing
NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001)). It is well established that
the party asserting supervisory status bears the burden of proof on the issue, Oakwood
Healthcare, Inc. at 686. The burden must be carried as to each particular individual who is 20
alleged to be a supervisor. Section 2(11) of the Act provides that a supervisor is one who
possesses, “authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall,
promote, discharge, assign, reward, or discipline other employees, or responsibly 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 25
requires the use of independent judgment.”
Such statutory indicia must, as noted earlier, be exercised with independent judgment
on behalf of management, in the interest of management and not simply in a routine manner.
The Board noted in Oakwood Healthcare Inc., supra citing Chevron Shipping Co., 317 NLRB 30
399, 381 (1995), that as a general principle, it has exercised caution not to construe
supervisory status too broadly because the employee deemed a supervisor is denied rights the
Act is intended to protect. The Board in Oakwood Healthcare, Inc., supra, adopted
definitions for the terms “assign,” “responsibly to direct”, and “independent judgment” as
those terms are used in Section 2(11) of the Act. It is helpful to briefly highlight those 35
definitions.
The Board noted the terms “assign” and ‘responsibly to direct” were not intended to
be synonymous and would ascribe distinct meanings to both terms. The Board construed
“assign” to refer to the act of designating an employee to a place, a time or giving significant 40
overall duties or tasks to an employee. The Board noted the place, time and work of
employees are part of their terms and conditions of employment and decisions, or effective
recommendations, to affect one of those can be supervisory functions. The Board construed
“responsibly to direct” as where the putative supervisor is answerable for the performance and
work product of the employees he/she directs. That is, there must be some adverse 45
consequence for the one providing oversight if the tasks performed by the employees are not
JD(ATL)–16–11
13
performed properly. The Board specifically stated; “Thus, to establish accountability for
purposes of responsible direction, it must be shown that the employer delegated to the
putative supervisor the authority to direct the work and the authority to take corrective action,
if necessary. It must be shown that there is a prospect of adverse consequences for the
putative supervisor if he/she does not take these steps.”5
The Board in ascertaining the contours of “independent judgment” looked at the
ordinary meaning of the two words. “Independent” means “not subject to control of others”
and “judgment” the action of judging or the mental or intellectual process of forming an
opinion or evaluation by discerning and comparing. The Board used, as a starting point, that 10
for one to exercise “independent judgment” “an individual must at a minimum act, or
effectively recommend action, free of control of others and form an opinion or evaluation by
discerning and comparing data.” The Board noted it was interpreting “independent judgment”
in light of the contrasting statutory language, “not of an merely routine or clerical nature.”
The Board stated; “It may happen that an individual’s assignment or responsible direction of 15
another will be based on independent judgment within the dictionary definition of those
terms, but still not rise above the merely routine or clerical.” The Board stated that its view,
as well as the Supreme Court’s view was that actions fall into a spectrum between the
extremes of completely free actions and completely controlled ones, “and the degree of
independence necessary to constitute a judgment as ‘independent’ under the Act lies 20
somewhere in between these two extremes.” The Board said it would find “a judgment is not
independent if it is dictated or controlled by detailed instructions, whether set forth in
company policies or rules, the verbal instructions of a higher authority, or in the provisions of
a collective-bargaining agreement.” (Footnote omitted.) However, the Board went on to state;
“On the other hand, the mere existence of company policies does not eliminate independent 25
judgment from decision making if the policies allow for discretionary choices. [footnote
omitted]” The Board summarized as follows:
Section 2(11) contrasts “independent judgment” with actions that are “of a merely
routine or clerical nature.” Thus, the statue itself provides a base line for the 30
degree of discretion required to render the exercise of any of the enumerated
functions of 2(11) supervisory. The authority to effect an assignment, for
example, must be independent, it must involve a judgment, and the judgment
must involve a degree of discretion that rises above the “routine or clerical.”
[footnote omitted]35
In deciding whether the two lieutenants herein are supervisors within the meaning of
the Act I am mindful the security of nuclear facilities is highly regulated. I take guidance
from Oakwood Healthcare, Inc., 348 NLRB 686 (2006), a case where the Board refined the
analysis to be applied in assessing supervisory status and set forth clear broadly applicable 40
guidance for situations like those herein.
First, I find the lieutenants are supervisors under Section 2(11) of the Act based on the
fact they prepare evaluations of the security officers that, in part, are considered in
determining whether the security officers are promoted. Lieutenants Frazier and Mack both,45
for some 2 years prior to their discharge, prepared quarterly and annual reviews or evaluations
JD(ATL)–16–11
14
for the security officers reporting to them. In fact, no one higher than a lieutenant at the
Company regularly prepares written evaluations of security officers. Both Frazier and Mack
reviewed the evaluations they prepared with the security officers involved before the
evaluations were turned over to higher management. I note Frazier first explained the
evaluations he made of the security officers that reported to him were simply to have the 5
security officers improve their performance, but, he acknowledged bad evaluations could
impact a security officer’s consideration for promotion. The record evidence establishes
evaluations created by lieutenants are specifically utilized in the promotional process. The
Company’s policy manual at “Promotion Policy and Procedure” requires, among the several
stages in the promotion process, that a review of applicable performance appraisals be 10
conducted by the promotion panel. More specifically, the promotion policy and procedures
manual requires the Company’s promotion board to review the personnel file of each
applicant for promotion and to specifically review performance appraisals. Project Manager
Mareth specifically stated evaluations made by lieutenants at the Company are utilized in the
promotional process for security officers. Mareth even recalled four security officers whose 15
recent promotions were impacted by their lieutenant’s evaluations and he indicated there were
perhaps eight other like situations where security officers’ promotions were impacted by their
lieutenant’s evaluations in the previous year to year and half. I note Frazier and Mack did not
need to consult with their superiors before evaluating their direct reports, nor did they need to
discuss with their supervisors the content of evaluations before preparing and going over the 20
evaluations with those evaluated. Frazier and Mack performed evaluations free from the
control of others in management and made their evaluations and formed their opinions, it
appears, by their own discernment and comparisons. It is clear evaluations impact promotions
of the work force and are performed in the interest of the Company. In summary, Lieutenants
Frazier and Mack independently performed evaluations for their direct reports which lead to 25
personnel actions (namely promotions) affecting the security guards involved and by doing so
engaged in one (promote) of the enumerated supervisory functions within the meaning of
Section 2(11) of the Act.
Lieutenants, as first line supervisors, have the authority to and do issue discipline. The 30
Company’s progressive discipline policy and procedure “provides guidance on the
administration of discipline” for its supervisors who “are responsible for administering this
policy as it applies to employees under their supervision.” As Project Manager Mareth
explained, lieutenants can issue any type discipline, except termination, without consulting
with a supervisor. Lieutenants are generally the individuals issuing the initial step(s) in the 35
Company’s progressive disciplinary process. The evidence establishes lieutenants have
certain discretion when issuing discipline pursuant to the Company’s policies. As Project
Manager Mareth explained, a lieutenant may decide not to issue formal discipline at all, or to
chose which level of discipline an infraction will be placed because of some overlap between
levels. It is clear lieutenants exercise independent judgment by deciding whether to initiate 40
the progressive disciplinary process in the first place and lay a foundation for future
discipline against their direct reports. The Company presented, in evidence, examples of
lieutenants issuing discipline to security officers. Two of the disciplines resulted in written
warnings with a one day suspension in each. While none of the eight examples where
initiated by Frazier or Mack it appears they clearly had the authority to do so. Frazier, for 45
example, explained he never issued any discipline for the security officers that reported to him
JD(ATL)–16–11
15
because each knew and performed their job duties. In summary, lieutenants have the
authority to issue security officers discipline and have in fact issued discipline up to and
including suspension without the necessity of consulting with or obtaining approval of their
superiors. I find such to establish that lieutenants of the Company are supervisors within the
meaning of Section 2(11) of the Act.5
It is clear shift captains prepare shift post assignments which are then disseminated to
the lieutenants and security officers which reflect the initial post assignments for security
officers on any given day. However, as Frazier testified, he had the authority to transfer
security officers from one post to another for operational needs during a shift. Frazier, first 10
stated he had to request approval from the shift captain, but then acknowledged he generally
did not consult with the captain before making such changes in post assignments. Frazier
explained some security officer’s preferred one post assignment over other assignments
during a shift. Thus in designating a place, a time, and tasks to be performed when he
transferred a security officer from one post to another, Frazier engaged in a supervisory 15
function within the meaning of the Act. The discretion Frazier, or other lieutenants, utilized
in transferring security officers from one post assignment to another, in my opinion, involves
a degree of discretion rising above the level of routine or clerical and is done in the interest of
the Company.
20
Lieutenants provide direct oversight to security officers in the field and address issues
that arise on the job. Lieutenants are directed to ensure that security officers assigned to them
understand the specific requirements of their post, that they remain alert, attentive and
perform their duties in a proper and safe manner, and that they properly maintain post reports.
The lieutenants are to initiate prompt and appropriate action to identify and correct any 25
deficiencies in the security officers including improper behavior, attitude or inattentiveness to
duty. Project Manager Mareth explained lieutenants can be disciplined, up to and including
discharge, if they fail to ensure the quality of the performance of the security officers assigned
to them. Likewise, Mareth further explained, a failure on a lieutenant’s part to ensure quality
performance by the security officers could impact promotional opportunities for the 30
lieutenant. Here lieutenants direct the work of security officers and have authority to take
corrective action as appropriate and are subject to adverse consequences if they fail to
properly direct the security officers that report to them. I find lieutenants responsibly direct
the work of security officers within the meaning of Section 2(11) of the Act.
35
All the above establishes lieutenants are supervisors within the meaning of the Act. In
addition to the above findings there are secondary indicia that further support my conclusion
the lieutenants are supervisors. Lieutenants are paid more; provided additional insurance not
provided to security officers, given additional training not given to security officers, attend
management meetings that security officers do not attend, and, the Company views them as 40
supervisors. The secondary indicia most compelling is if the lieutenants are not supervisors
then each captain is responsible for 30 plus security officers with assigned duties at various
locations on the thousands of acres at a nuclear facility.
In summary, I find the Company established that Thomas Frazier and Cecil Mack 45
were supervisors within the meaning of Section 2(11) of the Act at all times material herein,
JD(ATL)–16–11
16
and not protected by the Act. I find the Company did not violate the Act when it suspended
and thereafter, discharged Frazier and Mack on February 15, 2010.
Conclusions of Law
5
1. The Company is an employer engaged in commerce within the meaning of the
Section 2 (2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of the of Section 2(5) of
the Act.10
3. Thomas Frazier and Cecil Mack were, at applicable times, supervisors within
the meaning of Section 2(11) of the Act.
4. The Company has not violated the Act in any manner alleged in the complaint.15
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER20
The complaint is dismissed.
Dated Washington, D.C., June 27, 2011.
25
______________________________
William N. Cates
Associate Chief Judge30

3 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.