By Dave Strausfeld, J.D. An NLRB regional director should not have dismissed a representation petition encompassing road supervisors for a van shuttle service because there was no showing that these employees were supervisors under Section 2(11) of the Act. The written reports that they completed in the course of their duties observing van drivers and ensuring that the drivers abided by the local transit authority’s policies and procedures appeared to be nothing more than counselings or warnings. It was not apparent, at least to the Board majority, that the supervisors meaningfully recommended discipline, as the reports were not shown to be part of a true progressive discipline system. Member Miscimarra dissented, pondering: if the road supervisors were not supervising the van drivers, then who was? (Veolia Transportation Services, Inc., May 12, 2016). “Road observation reports.” The employer provided van shuttle services under a contract with the Washington Metropolitan Area Transit Authority, employing about 600 van drivers and 15 road supervisors. The road supervisors spent most of their time on the road, and one of their primary duties was observing van drivers to ensure that they were complying with policies and procedures. They also investigated traffic accidents and other incidents. Road supervisors filled out road observation reports (RORs), which contained checklists to guide their observations. The ROR form also contained a space for written comments. Incident reports were less detailed than RORs and consisted largely of a space for a narrative description of the incident. According to two of the road supervisors, when they observed drivers violating policies and procedures, they would counsel the offending driver and, if appropriate, would memorialize a counseling in writing, using an ROR. Then they turned the ROR over to the administrative assistant of the company’s operations director. From that point on, they did not know what happened to an ROR and did not otherwise keep track of discipline. Disciplinary authority? The issue before the Board was whether the road supervisors were statutory supervisors under Section 2(11). An individual is a supervisor if he or she has authority to discipline or effectively recommend discipline, so long as he or she uses independent judgment in doing so. If an employer has a progressive discipline system, the authority to issue warnings may qualify as a form of disciplinary authority, but only if a warning “automatically” or “routinely” leads to job-affecting consequences. Here, the available evidence was “too vague, limited, and conflicting” to establish that the road supervisors exercised disciplinary authority, the Board found. Not only was it unclear what role the RORs played within the employer’s alleged progressive discipline system, there was also reason to doubt whether progressive discipline was consistently applied. In fact, one of the collective bargaining agreements covering the drivers reserved the right to repeat disciplinary steps as necessary and to skip steps for a non-exhaustive list of “serious” infractions. If progressive discipline was not enforced, it was irrelevant whether the road supervisors had authority to issue first-level disciplinary warnings, because such warnings would not amount to true disciplinary authority. Therefore, under these circumstances, being able to write up drivers in RORs did not establish that the road supervisors were statutory supervisors. Removing impaired drivers. In a separate argument, the employer asserted that the road supervisors exercised disciplinary authority because they could remove a driver from service if he or she appeared to be drunk or under the influence of drugs. But the Board again was not persuaded. For one thing, according to prior Board decisions, removing an employee from service for “flagrant” violations—such as being drunk—does not involve independent judgment. And it was also not clear on the record here that removed drivers were penalized without an independent investigation by higher management. Consequently, the employer did not meet its burden of establishing that the road supervisors were statutory supervisors, the Board held. Dissent. Member Miscimarra, dissenting, posed the question: If the road supervisors were not supervising the van drivers, who was supervising them? He pointed out that above the level of the 15 road supervisors, the company’s management structure “was extremely sparse.” In his view, this question—who else could be the supervisor?—should be considered in determining supervisory status as a matter of policy. For these and other reasons, Miscimarra would have found that the road supervisors were indeed statutory supervisors and, accordingly, he would have upheld the regional director’s dismissal of the election petition.
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