United States Court of Appeals
          For the Eighth Circuit
      ___________________________

              No. 14-3102
      ___________________________

Securitas Critical Infrastructure Services, Inc.

          lllllllllllllllllllllPetitioner

                        v.

       National Labor Relations Board

         lllllllllllllllllllllRespondent
      ___________________________

              No. 14-3216
      ___________________________

       National Labor Relations Board

          lllllllllllllllllllllPetitioner

                        v.

Securitas Critical Infrastructure Services, Inc.

          lllllllllllllllllllllRespondent
                  ____________

       National Labor Relations Board
               ____________

       Submitted: September 23, 2015
          Filed: March 24, 2016
              ____________
Before SMITH, BYE, and KELLY, Circuit Judges.
                           ____________

BYE, Circuit Judge.

       Securitas Critical Infrastructure Services, Inc., (Securitas) petitions for review
of an order of the National Labor Relations Board (NLRB). The order allowed a
certain class of Securitas's workers to seek union representation when the NLRB
determined that Securitas failed to show the workers were supervisors under Section
2(11) of the National Labor Relations Act (the Act), 29 U.S.C. § 152(11). The NLRB
cross petitions for enforcement of its related order determining Securitas unlawfully
refused to bargain with the union as the certified representative of the workers after
a majority of them voted for union representation. We deny Securitas's petition for
review and grant the NLRB's cross petition for enforcement of its order.

                                            I

       Securitas provides security services for nuclear power plants throughout the
United States. On January 1, 2014, Securitas began providing security for Xcel
Energy at a nuclear power plant in Monticello, Minnesota. Shortly after Securitas
took over the security operations at the plant, the union representing the security
officers, United Security Professionals, Local 2, petitioned the NLRB seeking to
represent a group of mid-level security officers called lieutenants.1 The Regional

      1
       The security forces at the Monticello plant use a military style chain of
command. From bottom to top, there are unarmed watchpersons, armed security
officers, lieutenants, captains, an on-site Security Operations Supervisor, an on-site
Project Manager, and finally, an off-site Area Vice President Nuclear. The
Monticello plant has 120 security officers (comprised of both watchpersons and
armed officers), twenty-four lieutenants, five captains, one Security Operations
Supervisor, and one Project Manager (a position which had not been filled at the time

                                          -2-
Director of the region covering Minnesota held a hearing to determine whether the
lieutenants were employees or supervisors, the former eligible for union
representation and the latter not.

       At the hearing, Securitas asserted, among other things, that the lieutenants
exercised independent judgment and thus possessed supervisory authority – the
authority to responsibly direct other employees2 – in their role as "response team
leaders" in the event of a security threat. A response team leader commands the
security force during an attack on the plant or some other contingency event. In a
hostile attack, a response team leader would direct security officers to return fire,
interject themselves between the attackers and the plant, and provide guidance on the
appropriate use of deadly force.

      Only one lieutenant, Michael Stidmon, testified at the hearing. He testified
generally about his duties as a lieutenant, and specifically about his duties as a
response team leader. With respect to his position generally, Stidmon indicated
"every aspect of [his] job" was highly regulated at the local, state and federal level,
as well as by the client, Xcel Energy, and his employer, Securitas. Jt. App. at 314.
Stidmon further testified he did not have any duties that involved independent

of the first NLRB hearing). Securitas provides security twenty-four hours a day,
operating five separate shifts each supervised by one captain, with an average of five
lieutenants working per shift.
       2
        The authority to responsibly direct other employees is one of twelve
specifically enumerated supervisory functions in the Act, the presence of any one of
which disqualifies an employee from union representation and collective bargaining.
See 29 U.S.C. § 152(11). The other eleven enumerated supervisory functions are:
(1) the authority to hire; (2) the authority to transfer; (3) the authority to suspend; (4)
the authority to lay off; (5) the authority to recall; (6) the authority to promote; (7) the
authority to discharge; (8) the authority to assign; (9) the authority to reward other
employees; (10) the authority to discipline other employees; and (11) the authority
to adjust employees’ grievances. Id.

                                            -3-
judgment unless (a) he received approval from a higher authority, (b) the duties were
significantly or predominantly dominated by policies, procedures or regulations, or
(c) his decisions were so routine, clerical or ministerial as to not really warrant
serious judgment. Id. at 327. With respect to his specific duties as a response team
leader in the event of an attack on the plant, Stidmon indicated most of the strategy
used to respond to an attack "has already for the most part been preformulated" as a
result of the many policies, procedures and regulations governing security at a nuclear
power plant. Id. at 340. When challenged on that answer with a question asking,
"but you have important decision-making authority when you're the [response team
leader], as far as deploying and redeploying officers, correct?," the lieutenant
reiterated "Yes. And there again, that also has been for the most part preformulated."
Id.

       Based upon the evidence presented at the hearing, the Regional Director
determined Securitas failed to meet its burden of showing the lieutenants were
statutory supervisors. In part, the Regional Director noted that NLRB precedent
requires some showing that a putative supervisor is held accountable for a
subordinate's performance. See Addendum at 17 (citing In re Oakwood Healthcare,
Inc., 348 N.L.R.B. 686, 691-92 (2006)). The Regional Director stated the record did
not contain evidence of specific instances where a lieutenant had been disciplined or
otherwise impacted by the performance of security officers on his or her team,
whether in relationship to the role as a response team leader or otherwise. Id. Having
found that Securitas failed to meet its burden, the Regional Director gave directions
for an election to be conducted by secret ballot to determine whether the lieutenants
wished to be represented by the union.

      Securitas then exercised its right to have the Regional Director's decision
reviewed by the NLRB. On November 5, 2014, a three-member panel of the NLRB
issued an order denying Securitas's request for review, with one member indicating
he would grant review. In the order, the NLRB indicated it was "a close case" on

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whether the lieutenants had the authority to responsibly direct other employees.
Addendum at 29. The NLRB focused on the lieutenants' role as response team
leaders during an attack on the plant, in particular whether lieutenants exercised
independent judgment in carrying out a "battle plan." Id. The NLRB noted the
burden fell on Securitas to prove this point, and said "no examples were given of how
a lieutenant would have to make decisions based on the [situation], not even to the
extent of general examples of choices from among different fire and movement, force
protection, or other security tactics that would not have revealed the details of the
Employer's contingency planning." Id.

        Securitas claimed it could not present evidence of specific examples of a
lieutenant's role in the event of an attack on a nuclear power plant because such
evidence would be considered "safeguards information" not subject to disclosure
under rules and regulations promulgated by the NRC. See 42 U.S.C. §§ 2167, 2168;
10 C.F.R. § 73.22. The NLRB rejected this argument, stating "there are procedures
for protective orders in Board proceedings that extend to documents and testimony."
Id. (citing Overnite Transp. Co., 329 N.L.R.B. 990, 997 (1999); NFL Mgmt. Council,
309 N.L.R.B. 78, 88 (1992); and Pepsi-Cola, 307 N.L.R.B. 1378, 1379 n.1 (1992)).

       Meanwhile, the lieutenants at the Monticello plant voted to be represented by
the union. After the vote, Securitas refused to recognize or negotiate with the union
as the certified representative of the lieutenants. The union then filed a refusal-to-
bargain charge against Securitas. A three-member panel of the NLRB found the
charge meritorious, and entered an order finding that Securitas unlawfully refused to
bargain with the union. Securitas then filed this petition for review with the Eighth
Circuit challenging the determination that it failed to carry its burden of proving the
supervisory status of lieutenants. The NLRB filed a cross petition seeking
enforcement of its refusal-to-bargain order.




                                         -5-
                                          II

      The determination whether an employee is excluded from the protections of the
Act because of supervisory status is a fact-intensive question "which calls upon the
[NLRB's] special function of applying the general provisions of the Act to the infinite
gradations of authority within a particular industry." NLRB v. Chem Fab Corp., 691
F.2d. 1252, 1256 (8th Cir. 1982) (citing NLRB v. Broyhill Co., 514 F.2d 655, 658
(8th Cir. 1975)). As a consequence, the NLRB's factual findings are reviewed "under
the deferential substantial evidence standard of review." NLRB v. Whitesell Corp.,
638 F.3d 883, 890 (8th Cir. 2011) (internal quotation marks and citation omitted).

       Under this deferential standard, "the Board must produce more than a mere
scintilla of evidence; it must present on the record such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, taking into
consideration the record in its entirety including the body of evidence opposed to the
Board's view." Id. (internal quotation marks and citations omitted). But "[w]hen
conflicting evidence is presented to the Board, we may not preempt the Board's
choice between two fairly conflicting views of that evidence." JHP & Assocs., LLC
v. NLRB, 360 F.3d 904, 911 (8th Cir. 2004) (internal quotation marks and citation
omitted).

       Securitas contends the NLRB's conclusion that the lieutenants at the Monticello
plant are not supervisors is unsupported by substantial evidence and is contrary to
law. The NLRB, however, never concluded the lieutenants are not supervisors; it
merely concluded Securitas failed to meet its burden of proving the lieutenants are
supervisors. See NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 711-12
(2001) (indicating the burden of proof is upon the party claiming supervisory status).
The narrow issue before us, then, is whether substantial evidence supports the
NLRB's determination that Securitas failed to carry its burden.



                                         -6-
       In the agency proceedings, Securitas asserted the lieutenants had supervisory
status under several of the specifically enumerated supervisory functions listed in the
Act. In our Court, Securitas focuses on just one – whether the lieutenants had the
authority to responsibly direct other employees when acting as a response team leader
during an attack on the plant. The authority to responsibly direct other employees is
only supervisory under the Act if that authority is exercised with independent
judgment. Kentucky River, 532 U.S. at 713. "[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." Oakwood Healthcare, 348 N.L.R.B. at 693.

       Substantial evidence in the record supports the NLRB's determination that
Securitas failed to show lieutenants exercised independent judgment in their role as
response team leaders. Lieutenant Stidmon testified that essentially every aspect of
his job was controlled by company and client rules, policies and procedures, as well
as local, state, and federal regulations. As to any duties not significantly or
predominantly dominated by policies, procedures, or regulations, Stidmon testified
that he either would receive approval from a higher authority, or that his decisions
were so routine, clerical or ministerial as to not warrant serious judgment. The record
also establishes that a lieutenant must follow applicable procedures – some dictated
by the physical security plan approved by the NRC – when acting as a response team
leader in the event of a hostile attack at the plant. This is enough evidence to satisfy
the substantial evidence standard, and to support the NLRB's determination that
Securitas failed to carry its burden of proving the lieutenants were supervisors under
29 U.S.C. § 152(11).

      Securitas contends the agency decision is contrary to law inasmuch as the
NLRB required Securitas to provide specific examples of the lieutenants' independent
judgment in their role as response team leaders. To support this contention, Securitas
argues NLRB precedent only requires the possession of authority to engage in any of

                                          -7-
the functions listed under § 152(11), not the actual exercise of that authority, see, e.g.,
Multimedia KSDK, Inc. v. NLRB, 303 F.3d 896, 899 (8th Cir. 2002), and thus it was
error to require Securitas to offer specific examples of a lieutenant's actual exercise
of independent judgment as a response team leader. We do not, however, read the
NLRB's decision as imposing a specific requirement on Securitas to offer examples
of a lieutenant's exercise of independent judgment as a response team leader. Instead,
we read the NLRB's reference to the lack of examples as a general comment on the
overall quality of Securitas's evidence, and merely one factor it considered when
determining Securitas failed to carry its burden. The NLRB has commented on the
lack of specific examples in other situations akin to the emergency/dynamic situation
involved here, where an employer who has the opportunity to offer specific examples
of independent judgment, but fails to do so, is determined not to have carried its
burden of proving supervisory status. See Pro-Tec Fire Servs. v. Int'l Ass'n of Fire
Fighters, Local 1-61, Case 31-RC-133248, 2014 WL 5388832, at *1 n.1 (N.L.R.B.
Oct. 22, 2014) (noting "independent judgment and discretion would reasonably be
expected from Fire Captains in emergency situations," but holding the employer
failed to carry its burden of proving fire captains were supervisors where the record
lacked evidence of specific examples of a fire captain exercising independent
judgment in such situations, because "assumptions based on the nature of emergency,
fire, and rescue work cannot replace the specific evidence of independent judgment
and discretion required under [NLRB precedent]").

       Securitas also contends it could not offer specific examples of a lieutenant
exercising independent judgment as a response team leader because such information
would be classified "safeguards information," and the NLRB erred by stating
Securitas could have submitted "safeguards information" in the agency proceedings
under a protective order. Securitas argues the disclosure of safeguards information
is a criminal act, even when disclosure would be pursuant to a court or agency
protective order.



                                           -8-
       In response, the NLRB contends we lack jurisdiction to address this issue under
29 U.S.C. § 160(e), which provides that "[n]o objection that has not been urged
before the Board . . . shall be considered by the court[.]" The NLRB argues Securitas
was obligated to move the Board to reconsider its protective order reasoning pursuant
to 29 C.F.R. § 102.48(d)(1), and its failure to do so deprives our court of jurisdiction
to consider the issue. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,
666 (1982) (noting that when the NLRB bases its decision on a ground not raised by
the parties, a petitioner's failure to move the NLRB for reconsideration or rehearing
"prevents consideration of the question by the courts"); see also NLRB v. Monson
Trucking, Inc., 204 F.3d 822, 825-26 (8th Cir. 2000) ("In order for this Court to
consider a party's objection, the party must have apprised the Board 'that [it] intended
to press the question now presented' to us.") (quoting Marshall Field & Co. v. NLRB,
318 U.S. 253, 255 (1943)).

       In reply, Securitas argues the claim that classified "safeguards information"
could not be divulged was specifically addressed at the representation hearing and
therefore it was not required to move for reconsideration. In the alternative, Securitas
contends that even if it should have moved for reconsideration, the NLRB's
protective order reasoning falls within the exception that allows a court to exercise
jurisdiction where the NLRB has "patently traveled outside the orbit of its authority
so that there is, legally speaking, no order to enforce." NLRB v. Cheney Cal. Lumber
Co., 327 U.S. 385, 388 (1946).

       We find it unnecessary to even determine whether we have jurisdiction to
address this issue, because the disclosure of "safeguards information" was not the
exclusive means by which Securitas could have satisfied its burden of proof in any
event. As the NLRB noted, and we agree, Securitas failed to present any specific
exemplar evidence of a lieutenant exercising independent judgment as a response
team leader, "not even to the extent of general examples of choices from among
different fire and movement, force protection, or other security tactics that would not

                                          -9-
have revealed the details of the Employer's contingency planning [i.e., safeguards
information]." Addendum at 29 (emphasis added). Our conclusion that Securitas
could have satisfied its burden of proof through means other than the disclosure of
safeguards information, but failed to do so, makes it unnecessary to address whether
the NLRB erred by stating Securitas could have submitted safeguards information
under a protective order.

                                        III

    For the reasons stated, we deny Securitas's petition for review and grant the
NLRB's cross petition for enforcement of its order.
                      ______________________________




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