Northeastern University v. NLRB

• Court: Court of Appeals for the First Circuit
• Decided: May 23, 2025
• Docket: 24-1523
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 24-1523, 24-1707

NORTHEASTERN UNIVERSITY,

Petitioner, Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent, Cross-Petitioner,

and

AMERICAN COALITION OF PUBLIC SAFETY,

Intervenor.

PETITIONS FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

Before

Rikelman, Lynch, and Howard, Circuit Judges.

Robert A. Fisher, with whom John P. Phillips and Seyfarth Shaw LLP were on brief, for petitioner.

Eric Weitz, Attorney, National Labor Relations Board, with whom Kira Dellinger Vol, Supervisory Attorney, Micah P.S. Jost, Attorney, William B. Cowen, Acting General Counsel, Peter Sung Ohr, Associate General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, and Meredith Jason, Assistant General Counsel, were on brief, for respondent. May 23, 2025 LYNCH, Circuit Judge. These consolidated cases concern

whether members of an urban university's campus police are

"supervisors" within the meaning of the National Labor Relations

Act (NLRA) and thus are excluded from any police union bargaining

unit. See 29 U.S.C. §§ 152(3), 152(11), 157. The National Labor

Relations Board (the "Board") concluded that the Northeastern

University Police Department's (NUPD) Sergeants and Sergeant

Detectives were not supervisors and included them in a bargaining

unit represented by the intervenor, American Coalition of Public

Safety (ACOPS). When Northeastern refused to bargain with the

unit, arguing that these two categories of employee met the

definition of supervisors, the Board found that Northeastern

committed an unfair labor practice. See id. § 158(a)(1), (5).

Northeastern petitions that the order is error and seeks to vacate

the unfair-labor-practice finding. The Board cross-petitions to

enforce its order.

For the reasons which follow, we deny the Board's

cross-petition for enforcement, vacate its unfair-labor-practice

finding against Northeastern, and remand with instructions to

address any remaining issues in a manner consistent with this

opinion. The Board's conclusion that Sergeants and Sergeant

Detectives are not supervisors deviates from its own precedents

without adequate explanation and is not supported by the record.

And because we hold that substantial evidence supports the

- 3 - conclusion that Sergeants and Sergeant Detectives were supervisors

by virtue of their authority to assign their subordinates and

exercise independent judgment while doing so, we need not and do

not reach the other issues argued by the parties.

I. Background

We recount the background of general facts about the

operation of the NUPD, which are supported by substantial evidence

of record, drawn from testimony and other evidence introduced at

a two-day evidentiary proceeding held before the Regional Director

for Region 1 of the NLRB on March 21 and 22, 2023. We discuss

more particular evidence as to supervisory authority and

independent judgment when we turn to our analysis in Part III,

infra.

Northeastern is a private, non-profit university with

its primary campus located in Boston, Massachusetts. The NUPD 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. NUPD operates twenty-four hours a day, every day of the

year.

The NUPD is commanded by a Chief of Police and a Deputy

Chief. Three Lieutenant Commanders report to the Chief and Deputy

Chief, two of whom oversee the two NUPD divisions relevant to this

case: Patrol and Investigations. The Lieutenant Commander of

- 4 - Patrol oversees eight full-time Patrol Sergeants, forty Officers,

fourteen to twenty unarmed security guards called Community

Service Officers (CSOs), as well as an unspecified number of NUPD

dispatchers with the title of Operators. Patrol Officers and CSOs

in turn report to Sergeants.1 The Lieutenant Commander of

Investigations oversees two Sergeant Detectives, three Detectives,

and a variable number of officers temporarily assigned to detective

duty (TAD).2 Sergeant Detectives oversee Detectives and TAD

officers. There are three different types of police activities

involved in this case: daily patrol shifts, the Incident

Containment Team (ICT), and details.

Daily Patrol Shifts

Patrol Officers work in three shifts that run from 8:00

a.m. to 4:00 p.m., 4:00 p.m. to midnight, and midnight to 8:00

a.m. Typically there are five or six Patrol Officers and two to

four CSOs assigned to each shift. Sergeants begin and end their

shifts two hours earlier than officers, and two Sergeants are

typically assigned to each shift. One Sergeant acts as the

district supervisor and remains in the station for the assigned

1 Unless otherwise specified, we use the generic term "officers" to refer to all employees subordinate to a Sergeant. 2 These officers, commonly referred to as "TAD" officers, are "typically . . . police officer[s or] . . . CSO[s]" who are temporarily assigned to the investigations unit "in order to give them experience in that role."

- 5 - shift, performing administrative tasks. The other acts as the

patrol supervisor and may go out on patrol during the shift.

Lieutenants are present on campus only from around 6:00 a.m. to

4:00 or 5:00 p.m., Monday through Friday. When not on campus,

Lieutenants can be reached by cell phone if necessary. After 4:00

or 5:00 p.m. and before 6:00 a.m., as well as on weekends,

Sergeants are the highest ranking NUPD personnel on duty.

NUPD officers are assigned to shifts through a bidding

process. Officers submit a request to work the day shift, evening

shift, or night shift, and those requests are honored in order of

seniority.

Sergeants and Sergeant Detectives are responsible for

assigning duties to their subordinates at each shift. The NUPD

Patrol Deployment Plan establishes the baseline number of officers

to be deployed to the various areas of responsibility on the

Northeastern campus in Boston. The Deployment Plan is typically

prepared annually by the Lieutenant Commander of Patrol. Sergeants

are responsible for monitoring officers' deployment in accordance

with the responsibilities given to them under the terms of the

Deployment Plan. Sergeants select which on-duty officers will be

assigned to a particular location. These initial assignments are

based on the contents of an intelligence report NUPD produces each

day containing information about activity on and off campus, crime

trends, and other information. There are no formal criteria

- 6 - Sergeants must use when assigning officers, and Sergeants may

assign officers as they see fit, which may or may not involve

taking into account a particular officer's strengths and

weaknesses. A Sergeant is authorized, for example, to assign

additional personnel to an area where intelligence reports

indicate they are needed and to instruct those officers as to

locations. A Sergeant is also authorized to assign a bike-trained

officer to patrol a certain sector on a night where there are

expected to be many people outdoors in that area. Sergeants

provide these initial assignments and instructions during roll

call at the start of each shift.

Sergeant Detectives assign overall duties to Detectives

and TAD officers in light of their subordinates' workload and any

specialties they have. Sergeant Detectives set priorities as to

which cases Detectives and TAD officers should investigate first.

Sergeants are authorized to adjust, and do adjust,

assignments throughout a shift. For example, when a report of a

sexual assault is received, the nearest officer responds

initially, but the Sergeant on duty then determines which of the

on-duty officers should be dispatched to take control of the

situation and conduct interviews, particularly of the victim.

Sergeants base this determination on their assessment of the

officers' relevant training. Were an officer taken off their

initial assignment to interview a victim of sexual assault,

- 7 - Sergeants are authorized to then redeploy other officers to cover

the interviewing officer's area of responsibility.

ICT

The NUPD maintains an emergency-response unit known as

the Incident Containment Team. The ICT is comprised of specially

trained personnel and responds to emergency situations such as

active shooters in a manner comparable to a traditional SWAT team.

ICT personnel are selected for the assignment by the Deputy Chief

and can be Patrol Officers, Detectives, or Sergeants.

Sergeants also redeploy officers to respond to a

developing incident. When the incident is serious, such as a

report of an active shooter or armed individual on campus, the

Sergeant is authorized to deploy the ICT after determining that

the incident poses a threat of harm to the community. When

deploying the ICT, Sergeants determine whether to call in

additional, off-duty ICT officers based on the circumstances of

the incident. For incidents that are not routine, but not so

serious as to warrant deployment of the ICT, such as a shooting

that takes place on the edge of campus but does not pose the threat

of an active shooter, a Sergeant is authorized to redeploy multiple

officers to the area until the incident is mitigated or ended.

The most senior person on the scene serves as the

incident commander when the ICT is deployed. During evening and

night shifts and on weekends, the most senior person on shift is

- 8 - usually a Sergeant. In their role as incident commander, Sergeants

determine how the ICT and its resources are deployed, as well as

where responding units from partner law-enforcement agencies

should be staged based on the resources that are needed. The

incident commander is responsible for directing the ICT as to

setting up a perimeter, establishing a "camp post," and determining

where units will and will not go.

Details

Officers can also be assigned to a "detail," which is a

discrete assignment related to a request from an individual or

organization that is on campus for an event such as a sporting

event, concert, dance, speaking engagement, or construction

project. Events that require a detail occur weekly, and sometimes

more frequently.

Sergeants are responsible for assigning officers to

details, including determining how many staff are required for a

particular detail. Sergeants request that officers volunteer for

the detail, and if more officers volunteer than are needed,

Sergeants select the officers to be assigned based on a priority

list as required by the officers' collective bargaining agreement.

If fewer officers volunteer than are needed, a Sergeant decides

whether to "force" non-volunteers to work the detail. A Sergeant

then determines where in the detail those officers should be

assigned and, when there are multiple events occurring

- 9 - simultaneously, which event should be prioritized for staffing and

to which detail a particular officer should be assigned.

II. History Before the Board

On March 1, 2023, ACOPS filed a petition with Region 1

of the NLRB to represent a bargaining unit comprised of NUPD

Sergeants, Sergeant Detectives, and Detectives. Northeastern

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, 29 U.S.C.

§ 152(11). The Regional Director held a hearing on this issue on

March 21 and 22, 2023.

The Regional Director issued a Decision and Direction of

Election on August 17, 2023, in which she concluded that

Northeastern 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 made three findings, each of which

is challenged by Northeastern. First, she concluded that

Northeastern had met its burden to show as to a limited category

of activities that "[S]ergeants have a significant role in

officers' assignments." Second, she went on to find that as to

that limited category, Northeastern did not make the necessary

showing that "[S]ergeants exercise independent judgment in making

assignments." Third, she found as to the other exercises of

- 10 - authority as to the ICT and details that the authority did not

rise to the level of assignment and should instead be viewed as

authority to direct.3 The Regional Director then ordered an

election be held as to whether the members of the bargaining unit

wished to be represented by ACOPS. Northeastern filed a request

for review of the Regional Director's decision with the Board,

which was denied in a one-page order on March 8, 2024.

The representation election was held on September 11,

2023. While Northeastern's request for review was pending, the

bargaining unit voted that ACOPS would be its representative. The

Regional Director certified the Union as the bargaining

representative for NUPD's Sergeants, Sergeant Detectives, and

Detectives on September 21, 2023.

In response to the Union bargaining demand, Northeastern

stated that it would bargain only as to Detectives because the

Sergeants and Sergeant Detectives were supervisors. The Union

then filed an unfair labor practice charge based on Northeastern's

refusal to bargain, alleging that Northeastern violated

subsections 8(a)(1) and (5) of the NLRA. The Board's General

Counsel issued a complaint and notice of hearing on December 15,

3 The Regional Director also concluded that Sergeants and Sergeant Detectives were not supervisors, contrary to Northeastern's argument, because they did not discipline or have responsibility when directing employees, nor did they adjust employees' grievances. We need not reach these alternate grounds.

- 11 - 2023. Northeastern's answer stated that its refusal to bargain

was lawful because the bargaining unit included Sergeants and

Sergeant Detectives, who were supervisors. The General Counsel

moved for summary judgment on March 25, 2024. The Board

transferred the case from the Regional Director to a three-member

Board panel on March 28, 2024. The panel issued a two-and-a-half-

page decision and order on May 21, 2024, granting summary judgment

to the Board and ordering Northeastern to bargain with ACOPS, but

it did not revisit the issue of whether Sergeants and Sergeant

Detectives were supervisors because it had been litigated and

resolved in the underlying representation hearing before the

Regional Director. Because the Board ratified the Regional

Director's reasoning, we refer to the Board rather than the

Regional Director in our analysis.

III. Analysis

This court may indirectly review the issue of

certification of the two categories of employees which underlies

the unfair labor practices charge. "[E]mployers cannot obtain

direct review of unfavorable certification decisions." Telemundo

de P.R., Inc. v. NLRB, 113 F.3d 270, 272 (1st Cir. 1997). Instead,

employers who are dissatisfied with the outcome of a representation

proceeding must "refuse to bargain and . . . raise any infirmity

in the certification decision as a defense to the unfair labor

practice charge." Id. The NLRA "makes full provision for judicial

- 12 - review of the underlying certification order by providing that

'such certification and the record of such investigation shall be

included in the transcript of the entire record required to be

filed' in the Court of Appeals." Boire v. Greyhound Corp., 376

U.S. 473, 477 (1964) (quoting 29 U.S.C. § 159(d)).

The Board's factual findings must be supported by

substantial evidence in the record as a whole. See 29 U.S.C.

§ 160(e); Telemundo de P.R., 113 F.3d at 274 (citing Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). "The

substantiality of evidence must take into account whatever in the

record fairly detracts from its weight." Universal Camera, 340

U.S. at 488. "The Board . . . may not distort the fair import of

the record by ignoring whole segments of the uncontroverted

evidence . . . ." Me. Yankee Atomic Power Co. v. NLRB, 624 F.2d

347, 360 (1st Cir. 1980).

"While the substantial evidence standard governs our

review of the facts, we also evaluate the Board's decision for

'mistakes of law . . . and [sic] arbitrary and capricious

reasoning.'" Good Samaritan Med. Ctr. v. NLRB, 858 F.3d 617, 629

(1st Cir. 2017) (quoting Boch Imports, Inc. v. NLRB, 826 F.3d 558,

565 (1st Cir. 2016)). The Board errs when it ignores its own

precedent or departs from its own precedent without articulating

a reason for its departure. See NLRB v. Wang Theatre, Inc., 981

F.3d 108, 112 (1st Cir. 2020).

- 13 - The NLRA excludes from bargaining units "any individual

employed as a supervisor." See 29 U.S.C. §§ 152(3), 157.

Employees are supervisors within the meaning of the statute if:

(1) they "hav[e] authority . . . to hire, transfer, suspend, lay

off, 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." Id. § 152(11); see NLRB v. Ky. River

Cmty. Care, Inc., 532 U.S. 706, 713 (2001). Northeastern bears

the burden of proving the applicability of the supervisory

exception. See Ky. River Cmty. Care, 532 U.S. at 712.

The parties agree that Sergeants and Sergeant Detectives

hold their authority in the interest of their employer and so the

third test is met. As to the first test, the Board agrees that

Sergeants and Sergeant Detectives possess authority to assign in

the limited context of patrol duties and oversight of

investigations, respectively. The questions before us are (1)

whether Sergeants and Sergeant Detectives use independent judgment

when exercising that authority and (2) whether substantial

evidence supports the Board's determination that sergeants lack

the authority to assign altogether as to the ICT and details.

- 14 - On review of the entire record, we conclude the Board's

determination that Sergeants and Sergeant Detectives are not

supervisors is not supported by substantial evidence, the Board

committed errors of law when it deviated from its own precedent

without adequate explanation, and the Board ignored material,

uncontested evidence.4

Assignment as to Patrol Duties and Investigations and Independent Judgment

The Board acknowledged that Sergeants engage in the

supervisory function of "assign" when they assign officers to

patrol a location. It also concluded that this assignment did not

involve the exercise of independent judgment on the grounds that

their exercise of judgment was circumscribed by the NUPD's

Deployment Plan. In doing so, the Board mistook the statutory

requirements and "either ignored completely or downplayed to an

unjustified extent," Me. Yankee, 624 F.2d at 363, substantial

evidence to the contrary. 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." NLRB v. NSTAR Elec. Co., 798 F.3d

1, 13 (1st Cir. 2015) (quoting In re Oakwood Healthcare, Inc., 348

4 Because we address only the assignment function and independent judgment in that context, we do not reach Northeastern's argument that the Board changed its position as to the remaining argued supervisory functions and did so contrary to the text of the NLRA.

- 15 - NLRB 686, 692-93 (2006)). "[J]udgment 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." Id. (quoting Oakwood Healthcare, 348 NLRB at 693).

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"

because "the assignment is routine or clerical in nature." Id.

(alterations in original) (quoting Oakwood Healthcare, 348 NLRB at

693).

The Deployment Plan did not prevent Sergeants from

exercising independent judgment. "[T]he mere existence of company

policies does not eliminate independent judgment from

decision-making if the policies allow for discretionary choices."

Oakwood Healthcare, 348 NLRB at 693. Here, the Deployment Plan

explicitly provided that Sergeants were to adjust the plan as

circumstances warranted. Lt. Adam Keeling, NUPD's Administrative

Lieutenant, testified at the evidentiary hearing as a witness for

Northeastern that Sergeants were expected to adjust deployment as

necessary before a shift began based on the NUPD's intelligence

reports and that such adjustments did in fact take place.

- 16 - The Deployment Plan establishes a baseline as to how

many officers should be deployed to a particular area each shift,

but Sergeants possess broad authority to redeploy officers in

response to developing events. Sergeants adjust deployment when

an officer's duties are taking longer than expected, when a

particular officer is best suited to respond to a report, and when

emergencies occur that do not require a response from the ICT.

These redeployments move officers from one section of campus to

another and necessarily involve altering an employee's place of

assignment. They also involve the assignment of significant

overall duties, such as preventing an off-campus shooting from

moving onto Northeastern's campus. NUPD Sgt. Mark Washington, who

was presented by the Board's counsel as a witness at the hearing,

testified as to a specific example, in which the Patrol Lieutenant

tasked Sergeants with addressing a rash of bicycle thefts, and

Sgt. Timothy Love developed a plan to deploy officers in

plainclothes to combat those thefts. Unlike directing a nurse "to

immediately give a sedative to a particular patient," NSTAR Elec.,

798 F.3d at 16 (quoting Oakwood Healthcare, 348 NLRB at 689), the

duties being assigned when Sergeants redeploy subordinate officers

are complex, multi-step processes, not discrete tasks. These

redeployments also require the use of independent judgment: Sgt.

Washington testified that when assigning officers to non-ICT

- 17 - incidents, an officer's skills and weaknesses "are factors in

giving [those] officers tasks."

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. This specialty

includes specialized training, but also whether a Detective "has

a propensity to do a very good job" on particular types of cases.

While the Board did discuss this aspect of case assignment, its

conclusion that Sergeant Detectives' assessment of their

subordinates' specialties did not constitute independent judgment

is at odds with the Board's statement in Oakwood Healthcare 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." 348 NLRB at 693; see also id.

("[T]he supervisor determines 'who shall do [the job]' and in

making that determination the supervisor makes '[a] personal

judgment based on personal experience, training, and ability.'"

(alteration in original) (quoting NLRB, Legislative History of the

Labor Management Relations Act of 1947, 1303 (1948))).

The Board committed legal error when it departed from

Oakwood Healthcare without articulating a reason for this

departure. The Board instead relied on a case finding there is no

- 18 - independent judgment involved when a foreman assigns members of a

construction crew based on their specific trade skills because

such assignments are self-evident. See In re Shaw, Inc., 350 NLRB

354, 355-56 & n.9, n.10 (2007) (giving the example of assigning a

fuser to fuse a plastic pipe and a welder to handle a metal pipe).

The record indicates that the detectives are 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 Assignment Authority and Independent Judgment as to the ICT and Details.

The Board also erred as to its finding that the authority

over the ICT and details was not assignment but something lesser.

"[T]he power to assign implicates three distinct types

of activities: 'designating an employee to a place (such as a

location, department, or wing),''appointing an employee to a time

(such as a shift or overtime period),' and 'giving significant

overall duties . . . to an employee." NSTAR Elec., 798 F.3d at 12

(emphasis and omission in original) (quoting Oakwood Healthcare,

348 NLRB at 689). 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. See In re Croft Metals, Inc., 348 NLRB 717, 722

(2006). This misreads the record and erroneously minimizes

- 19 - Sergeants' role in those circumstances. Under Board precedent, ad

hoc instructions include activity such as directing a clerk to

"restock[] toasters before coffeemakers" or a nurse "to

immediately give a sedative to a particular patient." Oakwood

Healthcare, 348 NLRB at 689. But "designating a nurse 'to be the

person who will regularly administer medications to a patient or

a group of patients' is an assignment." NSTAR Elec., 798 F.3d at

16 (quoting Oakwood Healthcare, 348 NLRB at 689).

The undisputed evidence also demonstrates 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.

Sergeants are authorized to instruct ICT officers to carry out

discrete tasks, such as clearing a particular building, but they

issue such instructions to effect their decisions to deploy ICT

officers and other personnel. Lt. Chris VonHandorf, the Lieutenant

Commander of Patrol, testified that Sgt. Allison Piantedosi,

acting as the officer in charge of the ICT, responded to a bomb

threat at the campus Student Center by deploying officers to

positions in and around the Student Center, allocating officers to

an inner and outer perimeter, and calling for additional personnel

from the Boston Police Department. The Board also erred in

- 20 - separating out the tasks Sergeants assign to ICT personnel to focus

on only one at a time. See id. (viewing direction as instructing

a nurse to perform a single task, but assignment as instructing a

nurse to perform a group of related tasks).

The Board also committed legal error in concluding that

deploying the ICT does not require independent judgment. Under

Board precedent, "the discretion to determine when an emergency

exists . . . involve[s] the exercise of independent judgment."

Oakwood Healthcare, 384 NLRB at 693-94. The record reflects 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. The

Board's conclusory assertion that "there is no evidence that

deploying the ICT requires independent judgment" is thus contrary

to the record and its caselaw. The same is true of a Sergeant's

decision to call in partner law-enforcement agencies. 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, including

directing other officers "to evacuate buildings, to search

students' rooms, to contact outside assistance such as police or

fire departments, and to deploy additional . . . personnel." NLRB

v. Quinnipiac Coll., 256 F.3d 68, 78 (2d Cir. 2001). Such

emergency situations demand independent judgment because they "do

- 21 - not admit of resolution by rote reference to a policy manual."

Id.

The Board's conclusion that Sergeants do not exercise

independent judgment when assigning officers to details is not

supported by substantial evidence. The Board focused only on the

fact that the collective bargaining agreement governs which

officers can be forced to accept details, but that fact alone

cannot be substantial evidence for its decision when the record

demonstrates that Sergeants determine the number of officers to be

assigned and which assignments require "forcing." Sergeants

determine, in the first instance, whether officers should be

assigned to events for which the organizers have not themselves

requested that officers be present. When officers have been

requested, Sergeants then determine whether the requested number

of officers is appropriate based on information provided by the

requestor as to the nature of the detail. When too few officers

volunteer for the day's details, Sergeants assess which details

are important enough to justify "forcing" non-volunteer officers

to work the assignment and will reassign officers from lower-

priority details if necessary. Record evidence, in the form of an

email from Sgt. Carlos E. Ramirez, demonstrates that Sergeants

did, in fact, exercise this authority as described. Sgt. Ramirez's

email states that there were four details scheduled for March 15,

2023, which were not fully staffed as of March 14, 2023. The email

- 22 - notes that two of those details were "no force" and two were

"force" and states which officers would be forced to work each

detail.

The Board's conclusion that Sergeants and Sergeant

Detectives are not supervisors deviates from its own precedents

without adequate explanation and is not supported by substantial

evidence. Rather, when viewed as a whole, the record shows 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, making

Sergeants and Sergeant Detectives supervisors within the meaning

of the NLRA.

IV. Conclusion

For the foregoing reasons, we deny the Board's

application, vacate its unfair-labor-practices finding against

Northeastern, and remand with instructions, consistent with this

opinion, to address any remaining issues such as, for example,

whether to decertify the bargaining unit and hold a new election

or simply eliminate Sergeants and Sergeant Detectives from the

unit's membership. See id. at 81.

- 23 -