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8th Circuit Rules on Another NLRB Employee vs. Contractor Case

By Jonathan R. Tung, Esq. on March 28, 2016 | Last updated on March 21, 2019

Few government agencies make lawyers groan more than the National Labor Relations Board, with possible exception of the IRS. This month, the Eighth Circuit decided to deny a security company's petition for review of an NRLB order against it and grant the agency's enforcement of its slap-down.

Securitas' Situation

Securitas Critical Infrastructure Services Inc. is a company that provides security services for heavy structures in the United States. The company began providing its services for Xcel Energy at a power plant in Monticello, Minnesota.

Soon after Securitas took over security operations at the plant, the local security officers' union group petitioned the NLRB, seeking to represent some mid-level security officers. A hearing was held by the regional director to determine whether or not the men in question either were employees qualified for union representation or supervisors not so qualified. It's another employee / contractor like battle.

Supervisor or Employee?

The regional director eventually sided with the lieutenants and determined that Securitas failed to meet its burden to disprove that the men were supervisors -- that is, not deserving of union representation. The determination partly rested on the testimony of one of the men who said that his duties were highly regulated by state and federal law, and that he and others like him enjoyed "important decision-making authority" as far as deploying and redeploying officers throughout the plant in the event of an attack or disaster.

Substantial Evidence Points to Yes

Securitas petitioned the NLRB to review. Activity bustled about. Securitas refused to play ball with the workers. Eventually NLRB filed a cross-petition.

The Eighth Circuit almost immediately commented that Securitas got their arguments all wrong. The issue was not whether or not substantial evidence pointed to the men being supervisors or not. The issue was whether substantial evidence supported NLRB's determination that Securitas failed to meet its burden of showing that the lieutenants were not employee. Talk about a fine distinction.

But even with that in mind, the Eighth Circuit decided to humor readers of court opinions. The substantial evidence actually indicated that the record supported the NLRB's finding that Securitas failed in its mission to show that the lieutenant's exercised independent judgment in their roles as response team leaders. Securitas pointed to the fact that lieutenants had failed to point to "specific instances" of them exercising independent judgment as a response team leader.

The circuit said, so what? It refused to read the NLRB's decision as specifically imposing such a requirement. If anything, specificity was the responsibility of Securitas, not the other way around. So, the Eighth Circuit closed the door on another NLRB petition, granting the agency's enforcement order.

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