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

WSI SAVANNAH RIVER SITE 977 363 NLRB No. 113 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- 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- 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 486, 491 (2012). Instead, we rely on G4S Regulated Security Solutions, 362 NLRB 1072, 1073–2074(2015), incorporating by reference 358 NLRB 1701, and Brusco Tug & Barge, Inc., 362 NLRB 257 (2015), incorporating by reference 359 NLRB 486. 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 DirecTV, 357 NLRB 1747, cited by the Regional Director. That case issued in 2011, rather than 2012. 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 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 2 Cf. Republican Co., 361 NLRB 93, 100 (2014) (sporadic exercise of supervisory authority does not confer supervisory status (citing Franklin Home Health Agency, 337 NLRB 826, 829 (2002)). 3 Therefore, contrary to the dissent the record does not demonstrate that lieutenants are held accountable if the employees in their units fail 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 nontactical 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 523 (2015), the dissent proposes a new test for supervisory status based on the “practical realities of running a business,” specifi- cally, (1) the nature of the employer’s operations; (2) the work performed by undisputed statutory employees; and (3) whether it is plausible to conclude that all supervisory authority is vested in persons other than the putative su- pervisors. Applying this proposed standard to the instant case, the dissent contends that because a nuclear power plant is involved and “the work involves thwarting or repelling a terrorist attack or other force-based incursion 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”). by armed attackers,” it “strains credulity” to suggest that the lieutenants do not responsibly direct the security per- sonnel. The dissent further asserts that it is implausible to suggest in this case that all authority to responsibly direct the protective force “is exercised 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 523, 524, that does not answer the question posed by the Act. The sole question the Board must answer when making a supervisory determination is whether 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 stat- ute—specifically, the 12 enumerated types of 2(11) au- thority—and not other considerations the dissent pro- pounds, 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, supra at 524. 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 lieutenants to vote whether to be represented for the pur- poses of collective bargaining.5 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 WSI SAVANNAH RIVER SITE 979 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 888, 890, fn. 4 (2014).6 Finally, the record fails to establish that the lieutenants’ role in arranging unscheduled training exercises involves the exercise of independent judgment. There is no evidence as to what factors lieutenants con- sider when arranging these exercises.7 Further, some of this unscheduled training, such as awareness exercises 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. 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. 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 (assign- ment of an employee to a certain department, a certain shift or to certain significant overall tasks “would gener- ally 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”). 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. 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 1072, 1074 (instruction to get a captain’s review before issuing discipline supported a finding that the lieutenants did not have the authority to exercise independent judgment in issuing discipline). 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER This proceeding is remanded to the Regional Director for appropriate action consistent with this Decision and Order. 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. 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. 1 I find it unnecessary to pass on whether the lieutenants are Sec. 2(11) supervisors based on their authority to assign or discipline. 2 Regional Director’s Decision and Direction of Election (D&DE) at 3. 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 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 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 981 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 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 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 85, 86 (2014) (Member Miscimarra, dissenting in part). My colleagues reject this evidence as “conclusory” because only a single ex- ample was provided. To the contrary, the evidence was sufficient, and I believe it does violence to the prepon- derance 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 1072, 1077 (2015) (Member Miscimarra, dissenting). Moreover, this evidence was reinforced by other corroborative testimo- ny indicating that lieutenants are subject to discipline for failing to satisfactorily train subordinate employees. 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 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. 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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, 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. 6 363 NLRB 523, 525–531 (2015) (Member Miscimarra, dissent- ing). 7 Id., at 531–532 (Member Miscimarra, dissenting). 8 As I explained in Buchanan Marine, supra, at 531, I believe the Board cannot conduct any realistic appraisal of the Section 2(11) indi- cia 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. 9 Id. (emphasis in original). 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 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 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 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). WSI SAVANNAH RIVER SITE 983 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 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. 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.