Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—1st Cir.: Police sergeants and detective sergeants were supervisors improperly included in bargaining unit, (May 27, 2025)

By Ronald Miller, J.D.

To exercise independent judgment, “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.”

Substantial evidence did not support the NLRB’s determination that sergeants and detective sergeants employed by the campus police department at Northeastern University were supervisors, ruled the First Circuit. In so holding, the court denied the NLRB’s application for enforcement of its order finding that the employer committed unfair labor practices by refusing to bargain with a unit including them. The record showed that sergeants and sergeant detectives have authority to assign subordinates, exercise independent judgment while doing so, and hold that authority for the benefit of Northeastern. Thus, the Board’s conclusion that sergeants and detective sergeants were not supervisors deviated from its own precedents without adequate explanation and was not supported by substantial evidence (Northeastern University v. NLRB, Nos. 24-1523 and 24-1707 (1st Cir. May 23, 2025)).

University police department. Northeastern is a private, non-profit university with its primary campus located in Boston, Massachusetts. The university’s police department is responsible for the safety and security of students, faculty, staff, facilities, and visitors on property owned, occupied, or leased by Northeastern as well as the areas surrounding that property.

The command structure of the police department includes a chief of police, deputy chief, three lieutenant commanders, eight patrol sergeants, and two detective sergeants. Patrol officers work in three shifts, and two sergeants are typically assigned to each shift. Sergeants and sergeant detectives are responsible for assigning duties to their subordinates at each shift. Sergeants provide assignments and instructions to patrol officers during roll call at the start of each shift. Sergeant detectives assign overall duties to detectives and temporary detectives. The department maintains an emergency response unit known as the Incident Containment Team (ICT). Sergeants also redeploy officers to respond to a developing incident.

Bargaining unit. On March 1, 2023, the union filed a petition with an NLRB regional director to represent a bargaining unit comprising NUPD sergeants, sergeant detectives, and detectives. The employer objected to the inclusion of sergeants and sergeant detectives in the unit on the grounds that those individuals were supervisors within the meaning of Subsection 2(11) of the NLRA.

On August 17, 2023, the regional director concluded that the employer had failed to carry its burden of proving that sergeants and sergeant detectives satisfied the statutory test for determining whether an employee is a supervisor. The regional director then ordered an election be held as to whether the members of the bargaining unit wished to be represented by the union.

Bargaining demand. After the bargaining unit voted for the union to represent them, the regional director certified the union as bargaining representative for the university’s sergeants, sergeant detectives, and detectives on September 21, 2023.

In response to the union’s bargaining demand, the employer stated that it would bargain only as to detectives because the sergeants and sergeant detectives were supervisors. The union filed an unfair labor practice charge based on the employer’s refusal to bargain. Ultimately, on May 21, 2024, the NLRB granted summary judgment and ordered the employer to bargain with the union but did not revisit the issue of whether sergeants and detective sergeants were supervisors.

Supervisors. The NLRA excludes from bargaining units “any individual employed as a supervisor.” Employees are supervisors within the meaning of the statute if: (1) they “hav[e] authority... to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances”; (2) their exercise of that authority “is not of a merely routine or clerical nature, but requires the use of independent judgment”; and (3) they hold that authority “in the interest of the employer.”

Independent judgment. The parties agreed that sergeants and sergeant detectives hold their authority in the interest of their employer, and so the third test was met. As to the first test, the Board agreed that sergeants and sergeant detectives possess authority to assign in the limited context of patrol duties and oversight of investigations. The question before the First Circuit was (1) whether sergeants and sergeant detectives use independent judgment when exercising that authority and (2) whether substantial evidence supported the Board’s determination that sergeants lack the authority to assign altogether as to the department’s incident containment team and special event details.

To exercise independent judgment, “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.” Judgment is not independent if it is dictated or controlled by detailed instructions. Even if a judgment is made free of the control of others, it still does not involve the exercise of independent judgment “[i]f there is only one obvious and self-evident choice... or if the assignment is made solely on the basis of equalizing workloads.”

Emergency situations. The employer’s deployment plan for emergency situations did not prevent sergeants from exercising independent judgment, according to the court. Here, the deployment plan explicitly provided that sergeants were to adjust the plan as circumstances warranted. The deployment plan established a baseline as to how many officers should be deployed to a particular area each shift, but sergeants possessed broad authority to redeploy officers in response to developing events.

The Board erred in determining that sergeant detectives likewise lack independent judgment when assigning cases to detectives. Each day, sergeant detectives take into account a detective’s “specialty” when assigning cases. The Board’s conclusion that sergeant detectives’ assessment of their subordinates’ specialties did not constitute independent judgment was at odds with its statement in Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006), which stated that “if the registered nurse weighs the individualized condition and needs of a patient against the skills or special training of available nursing personnel, the nurse’s assignment involves the exercise of independent judgment.”

Thus, the Board committed legal error when it departed from Oakwood Healthcare without articulating a reason for this departure. The appeals court determined that the detectives were more comparable to nurses in that they can investigate various incidents or crimes but may be assigned to a specific case based on their training when such a case arises.

Exercise of authority. The Board also erred as to its finding that the sergeants’ authority over the emergency response team and special event details was not assignment but something lesser. The power to assign implicates three distinct types of activities: “designating an employee to a place,” “appointing an employee to a time” and “giving significant overall duties... to an employee.” The Board stated that redeployment of officers and ICT deployment were “ad hoc instruction[s] that the employee perform a discrete task,” making it more like direction than assignment.

The appeals court determined that this conclusion misread the record and erroneously minimized sergeants’ role in those circumstances. The undisputed evidence also demonstrated that sergeants assign the ICT to a particular location and to carry out significant overall duties. Sergeants determine when and whether to deploy the ICT, determine whether it is necessary to call in off-duty ICT officers, designate where the ICT will deploy, and instruct them in the way they will carry out their duties. The Board also erred in separating out the tasks sergeants assign to ICT personnel to focus on only one at a time.

Additionally, the Board committed legal error in concluding that deploying the ICT does not require independent judgment, said the court. Under Board precedent, “the discretion to determine when an emergency exists... involve[s] the exercise of independent judgment.” The record reflected both that sergeants have the authority to decide whether to deploy the ICT and that a sergeant did in fact exercise that authority based on the belief that there was an armed individual on campus. Once the decision has been made to deploy the ICT, sergeants continue to exercise independent judgment in the instructions they give to ICT officers and partner agencies as the incident unfolds.

Accordingly, the appeals court denied the Board’s application for enforcement of its order finding that the employer committed unfair labor practices by refusing to bargain with a bargaining unit including sergeants and detective sergeants.

The cases are Nos. 24-1523 and 24-1707.

Judge: Lynch, S.

Attorneys: Robert Alan Fisher (Seyfarth Shaw) for Northeastern University. Eric Weitz for NLRB.

Companies: Northeastern University

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