Labor & Employment Law Daily Wrap Up, EMPLOYEE STATUS—11th Cir.: Security guards in position of ‘lieutenants’ were not supervisors; employer required to bargain with them, (May 12, 2026)

By Ronald Miller, J.D.

Disciplinary policies that do not allow for discretionary choices do not show an individual exercises the independent judgment to qualify as a supervisor under the NLRA.

Substantial evidence supported the Board’s decision that security guards in the position of “lieutenants” were not supervisors, so that an employer was required to collectively bargain with them, ruled the Eleventh Circuit in an unpublished decision. The employer’s disciplinary policy provided detailed instructions on enforcing its disciplinary policies, and higher supervisors were constantly involved in the lieutenants’ imposition of discipline. Accordingly, based on the record, the regional director did not err in finding that the employer did not meet its burden of proof to show that the lieutenants exercised independent judgment. Thus, the Board did not err in ordering an election or in finding that the employer’s refusal to bargain was an unfair labor practice (Universal Protection Services, LLC dba Allied Universal Security Services v. NLRB, No. 24-11150 (11th Cir. May 1, 2026, unpublished)).

Nuclear power plant security. The employer provides security services for a nuclear power facility in Florida. It employs roughly 136 security officers, 24 lieutenants, and 4 captains at the facility. The company’s chief official on site is the project manager, who oversees two division heads. The head of the operations division oversees the four captains, who split between two shifts. Each of the four captains is responsible for six lieutenants, each of whom oversees five to eight security officers.

The employer uses a progressive discipline policy for employees, Policy 1308, that outlines three levels of offenses and the potential consequences for infractions ranging from minor violations to dischargeable offenses. Lieutenants enforce some forms of discipline for the guards they oversee. The guidelines charge lieutenants with “[e]nsuring that disciplinary action is justified, objectively documented, and fairly applied.” Lieutenants can administer discipline up to written counseling.

Collective bargaining petition. The union filed a certification of representative petition with the Board to represent a collective bargaining unit of “all full-time and regular part-time armed and unarmed supervisors and lieutenants performing guard duties” at the facility. The NLRB ordered a representation hearing before a Board hearing officer to determine whether the lieutenants were supervisors.

At the hearing, the employer introduced dozens of Employee Discipline/Corrective Action Notices that lieutenants had signed and issued to security officers. The employer’s project manager testified that lieutenants made decisions on which disciplinary tool to use of their own accord, and a captain testified that lieutenants independently investigated violations before administering discipline.

Lieutenants testified about how much discretion they had in administering discipline and how the employer’s policies constrained their actions. They described how they routinely consulted captains and other managers before issuing warnings but that such consultation was not mandatory. The lieutenants also noted that they followed policy guidelines in administering discipline.

Direction of election. A Board regional director granted the petition, approved the bargaining unit as described, and ordered a representation election. The regional director found that the limited discipline issued by lieutenants “appear[ed] to be based on the mechanistic application of the detailed Policy 1308” and that the lieutenants “lack discretion because their decisions... are further significantly restricted by the directives and review of captains and managers.” Accordingly, the regional director found that the evidence was insufficient to establish that the lieutenants were supervisors.

The union won the election. During the election process, the employer filed objections to the regional director’s decision to allow the election, which were overruled. The employer then sought review by the Board. The Board issued an order denying review of the regional director’s decision.

Employer refusal to bargain. After the election and the Board’s denial of further review, the union filed a charge with the Board against the employer for unfair labor practices alleging that the employer was refusing to collectively bargain with the lieutenants. Because the employer did not dispute that it had not collectively bargained with the union, the Board ordered it to do so.

The employer petitioned for review of the Board’s decision, finding it had violated the NLRA in refusing to bargain. The Board cross-petitioned to seek enforcement of its order.

Petition for review. The employer contended that two grounds supported reversal of the Board’s decision. First, it argued that the Board’s structure represents “an unconstitutional usurpation of power and deprives companies of their due process rights.” Second, the employer questioned the Board’s substantive decision, arguing that the appeals court should reject the substantial evidence standard of review traditionally applied to Board proceedings and instead review the Board’s decision de novo.

Constitutional claims. The employer first argued that the Board’s procedures are unconstitutional because they amount to the Board serving as “prosecutor, judge, and jury” in this dispute and that unfair labor charges are “fundamentally indistinguishable” from suits at common law that implicate the Seventh Amendment right to trial by jury.

The Eleventh Circuit concluded that the employer’s due process claims about its inability to offer live testimony before the final decisionmaker did not render the Board’s procedures unconstitutional. “The Fifth Amendment guarantees no particular form of procedure; it protects substantial rights.”

Opportunity to be heard. The employer took issue with the fact that the hearing officer who presided over the representation hearing was not the regional director who issued the Board’s decision in the representation proceeding. It argued that the Board did not provide the employer with the necessary opportunity to be heard. Not so, determined the appeals court.

Allowing a Board hearing officer to facilitate the creation of a record from which the regional director can decide whether to grant a representation election did not deprive the employer of an opportunity to be heard. Both the employer and the union had the opportunity to develop the factual record, to cross-examine witnesses at the representation hearing, and to challenge the regional director’s decision both to the Board and in the appeals court. That process was sufficient to allow both sides to be heard.

Standard of review. The appeals court next examined the Board’s determination on the merits. It first had to determine the appropriate standard of review for Board decisions, then apply that standard to the facts.

The employer urged the appeals court to review the Board’s determination de novo, arguing that following Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), it owed no deference to the Board’s construction of the NLRA. The appeals court rejected that contention. First, judicial direction to review based on substantial evidence comes from statute, not Board precedent, concluded the appeals court. Second, Loper Bright did not modify the standard of review the appeals court applies to the Board’s findings of fact.

The NLRA allows for appellate court review of Board final orders, 29 U.S.C. § 160(f). The NLRA instructs that “the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall... be conclusive.”

Second, the appeals court considered the Supreme Court’s guidance. The Court cited to the “substantial evidence” standard for factfinding as reflecting the distinction between questions of law and questions of fact. And that distinction applied directly here.

The employer’s challenge centered on the merits of the Board’s findings of fact, not the Board’s legal conclusions. The Board concluded, based on the record, that lieutenants were not supervisors for the purposes of the NLRA. Under Eleventh Circuit precedent, that determination was a question of fact. Because Loper Bright did not alter that standard, the appeals court had to follow both its precedent and the statute in applying the substantial evidence standard of review.

Thus, the appeals court asked whether substantial evidence supported the Board’s decision.

Substantial evidence. In reviewing Board decisions, the appeals court analyzed the totality of the record and determined whether the conclusion was supported by substantial evidence. The employer argued that the Board should have found that lieutenants were supervisors and that it did not have to collectively bargain with them. It contended that lieutenants’ discipline decisions were “fundamentally discretionary” despite the existence of discipline guidelines. It further argued that the role captains played in lieutenants’ decisions about discipline did not mean lieutenants lacked discretion.

The law defines a “supervisor” as someone with the “authority, in the interest of the employer, to... discipline other employees,... or effectively recommend such action.” Independent judgment requires that an individual “must at minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.” Previous Board decisions have found that “judgment is not independent if it is dictated or controlled by detailed instructions.”

The regional director determined that Policy 1308 places some disciplinary authority in lieutenants but concluded that they did not exercise independent judgment. Instead, the policy lays out an extensive list of violations, specifying punishment down to the detail of whether it is oral or written, resulting in a “mechanistic application” of the employer’s guidelines. Further, the regional director found that individuals higher in the chain of command were often involved in lieutenants’ disciplinary decisions. Additionally, captains reviewed each disciplinary action before it was issued, further limiting lieutenant discretion.

Based on the record, the regional director did not err in finding that the employer did not meet its burden of proof to show that lieutenants exercised independent judgment. Thus, the regional director found that recommendations the lieutenants made to higher officials for discipline did not reflect independent judgment.

Accordingly, the Board did not err in ordering an election or in finding that the employer’s refusal to bargain was an unfair labor practice.

The case is No. 24-11150.

Judge: Per curiam.

Attorneys: Matthew Crawford (Martenson Hasbrouck & Simon) for Universal Protection Services, LLC dba Allied Universal Security Services. Ruth E. Burdick for the NLRB.

Companies: Universal Protection Services, LLC; Allied Universal Security Services

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