TRANSDEV SERVICES, INC.

National Labor Relations Board - Board Decisions

May 12, 2016

363 NLRB No. 188 (N.L.R.B. 2016)

363 NLRB No. 188
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Veolia Transportation Services, Inc., d/b/a Veolia
Transportation and Amalgamated Transit Un-
ion, Local 689, associated with Amalgamated
Transit Union, AFL–CIO, Petitioner. Case 05–
RC–137335
May 12, 2016
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On October 27, 2014, the Regional Director for Re-
gion 5 issued a Decision and Order, in which he found
that the road supervisors and lead road supervisors at the
Employer’s Washington, District of Columbia, and Hy-
attsville, Maryland, facilities did not comprise an appro-
priate unit for bargaining. He concluded, instead, that
the road supervisors and lead road supervisors possess
the authority to discipline and therefore are supervisors
within the meaning of Section 2(11) of the Act. Thereaf-
ter, in accordance with Section 102.67 of the Board’s
Rules and Regulations, the Petitioner filed a timely re-
quest for review. The Petitioner contends that the Re-
gional Director erred in finding that road supervisors and
lead road supervisors are supervisors within the meaning
of Section 2(11). The Employer filed an opposition.
On April 21, 2015, the National Labor Relations Board
granted the Petitioner’s request for review with respect to
whether the road supervisors and lead road supervisors
possess the authority to discipline or to effectively rec-
ommend discipline.1 Thereafter, the Employer and the
Petitioner filed briefs on review.
The Board has delegated this case to a three-member
panel.
The Board has carefully considered the entire record in
this proceeding, including the briefs on review. For the
reasons set forth below, we find, contrary to the Regional
Director and our dissenting colleague, that the Employer
has not established that road supervisors and lead road
supervisors are supervisors within the meaning of Sec-
tion 2(11).
Facts
The Employer is one of several contractors that pro-
vide MetroAccess van service to the Washington Metro-

1 Chairman Pearce and Member Hirozawa; Member Johnson, dis-
senting. The panel unanimously denied the Petitioner’s motion to
consolidate this case with Diamond Transportation Services, Inc., Case
05–RC–134217 (2014) (not reported in Board volumes).
politan Area Transit Authority (WMATA). Pursuant to
its contract with WMATA, the Employer employs about
600 operators (also referred to as drivers) who drive the
MetroAccess vans, and 13 road supervisors and 2 lead
road supervisors (hereafter collectively referred to as
“road supervisors”), among others.2 The operators and
road supervisors work out of two locations, one in Wash-
ington, D.C., and the other in Hyattsville, Maryland. The
road supervisors report to the Employer’s operational
director and operational managers. In at least certain
respects, as described below, the operators report to the
road supervisors. The operators based in Hyattsville are
currently represented by Amalgamated Transit Union
Local 1764 (hereafter Local 1764), and the operators
based in Washington are currently represented by Driv-
ers, Chauffeurs, and Helpers Local Union No. 639 (here-
after Local 639).
The operators pick up, transport, and drop off
WMATA MetroAccess customers using MetroAccess
vans. Road supervisors spend most of their time on the
road, and one of their primary duties is observing opera-
tors to ensure that the operators are complying with the
policies and procedures of both the Employer and
WMATA. In addition, road supervisors investigate acci-
dents (when a van is out of active service due to a colli-
sion) and incidents (when a van is out of active service
for any other reason). When observing operators, road
supervisors fill out road observations reports (RORs),
which contain checklists to guide the road supervisors’
observations.3 The ROR form also contains a space for
written comments. If a road supervisor is summoned to
the scene of an accident, the road supervisor completes
an accident report kit, which similarly guides the road
supervisor through a number of observations, questions,
and considerations. The accident kit ultimately calls on
the road supervisor to determine whether the accident
was preventable, i.e., the fault of the operator, or nonpre-
ventable. If a road supervisor encounters an incident, the
road supervisor may complete an incident report. Inci-
dent reports are less detailed than RORs or accident kits,
and consist largely of a space for the road supervisor’s
narrative description of the incident. In addition, road
supervisors remove operators from service in certain

2 The record provides little evidence differentiating lead road super-
visors from the other road supervisors, aside from the fact that lead
road supervisors have some additional duties that largely consist of
conveying information from management to the other road supervisors.
It is clear from the record that road supervisors do not regard lead road
supervisors as their superiors.
3 For example, there are check boxes to indicate whether an operator
performed satisfactorily or unsatisfactorily when arriving at an intersec-
tion, approaching a railroad crossing, backing up, and conducting pre-
and posttrip actions.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
instances, including when they conclude, based on train-
ing they receive in “reasonable suspicion,” that an opera-
tor should be tested for the presence of drugs or alcohol.
The evidence concerning the road supervisors’ exact role
in completing these various forms, as well as removing
operators for service, is discussed in more detail below.
The two collective-bargaining agreements covering the
operators set forth disciplinary policies. Local 639’s
agreement sets out a four-step policy—oral reprimand,
written reprimand, suspension, discharge—and states
that the Employer “generally” follows those steps for
“most” infractions, but reserves the right “to repeat steps
as necessary or skip steps entirely for more serious in-
fractions.” The agreement includes a nonexhaustive list
of infractions “sure to earn much more than a simple
verbal warning.” Local 1764’s agreement describes dis-
cipline as “progressive” and sets out a similar four-step
system (policy review/documented verbal counseling,
written warning, second written warning, suspension).
Twelve enumerated “serious” infractions, however, are
grounds for immediate discharge, although the Employer
may impose a lesser penalty for such infractions. Local
1764’s agreement further provides that all disciplinary
processes “will be performed by a General Manager or
their designee,” who “shall give a fair and impartial hear-
ing to all employees,” including “corrective interviews
through the disciplinary process.”
Two road supervisors, Brian Jackson and Thomas
Holtz, generally described road supervisors’ role in dis-
cipline. According to Jackson and Holtz, when road su-
pervisors observe operators violating WMATA or Em-
ployer policies and procedures, they counsel the offend-
ing operator. A road supervisor can decide whether to
memorialize a counseling in writing, using an ROR; both
Jackson and Holtz stated that they would consider factors
like the experience level of the operator and the severity
of the misconduct in deciding whether to memorialize a
counseling in writing.4 Both Jackson and Holtz specified
that they would, however, memorialize a counseling if
they witnessed an operator repeating behavior for which
that operator has already been counseled. When road
supervisors document a counseling on an ROR, they turn
the ROR over to the administrative assistant for the Em-
ployer’s operations director. Holtz testified that he did
not know what happens to an ROR after he turns it in,5

4 Jackson elaborated that he only “rarely” memorializes counselings
in writing. Holtz did not indicate how frequently he notes any verbal
discussion he has with an operator on an ROR. He also stated that he
did not have to write up an operator until the second time he witnessed
a particular infraction.
5 Jackson stated that RORs are eventually placed in the operator’s
personnel file.
and both Holtz and Jackson stated that they do not keep
copies of RORs for themselves or otherwise keep track
of discipline. Although Jackson and Holtz characterized
counseling—whether documented or not—as part of
“progressive” discipline, Jackson acknowledged that,
unless documented, verbal counseling has no effect on an
operator’s job status. In addition, Holtz explained that
management provides road supervisors with a document
called the “hot list,” which contains “the top 10 or the top
20 operators out in the field that might have committed a
violation more than once . . . and they ask us to look out
for these specific drivers that have committed these vio-
lations over and over again . . . and they’ll ask us to go
post up at that location [where an operator in question is
expected to be that day] to observe that driver to see if
they commit any infractions.”6
Despite this generalized testimony about RORs, there
is only one specific example of an ROR in the record.
On that ROR, Jackson checked “unsatisfactory” boxes
for “Door-to-Door Performed” and “Wheelchair Secure-
ments Properly Stored”; at the bottom of the form, Jack-
son wrote that he had counseled the operator.7 Jackson
testified that he could not specifically recall what occa-
sioned this counseling, and there was no further testimo-
ny about this incident.
When asked if he recommends discipline, Jackson an-
swered in the affirmative and stated that he has done so
more than 25 times in the past year. He further stated
that his recommendations are “usually” followed, but
that his recommendations may not be followed due to
“other variables.” Jackson did not indicate if these rec-
ommendations were contained in RORs or made by some
other means. Jackson also testified that discipline is
handled on a case-by-case basis and is “a collective effort
sometimes,” particularly with respect to suspensions and
terminations. For his part, Holtz testified that manage-
ment may, depending on the severity of the violation,
conduct further investigation when he memorializes a
counseling on an ROR. Holtz said that he has never rec-
ommended discipline while working for the Employer,
although he has encountered situations where “someone
in safety or operations comes to me and asks me for my
opinion” on whether discipline should be implemented
based on Holtz’ presence at the scene. Neither Jackson
nor Holtz offered a specific example of any of these ac-
tions.
With respect to their role in accident investigations,
once a road supervisor is summoned to the scene of an
accident, he or she gathers as many facts as possible

6 Jackson did not testify about the “hot list.”
7 The ROR appears to indicate that the operator in question worked
out of the D.C. location.
VEOLIA TRANSPORTATION SERVICES, INC. 3
(through interviewing witnesses, the operator, and physi-
cal evidence) and, based on these facts, determines
whether the accident was preventable. After completing
the accident packet and recording the preventability de-
termination on the cover sheet, the road supervisor turns
the packet in to the safety department. Jackson testified
that sometimes he makes preventability determinations
on his own, but other times it is a collective decision
made with the safety department. Jackson also indicated
that his preventability determination is not final and can
be overruled by the safety department. For example, if
the van’s Drive-Cam was operating, other management
officials view the video and may overrule the road su-
pervisor’s preventability determination on that basis. In
addition, Jackson said that after he turns in the accident
packet, “there’s a discussion with the driver” and “there’s
a lot of things that goes into that to determine kind of
what the final discipline will be.” Jackson stated that his
preventability determination may result in discipline, but
he does not fill out any forms for discipline; instead, the
operations manager handles that. There are two specific
examples of accident investigations in the record. In the
first example, an operator hit a clearance sign and
knocked loose a light on top of the van. The accident kit
indicates that Jackson deemed the accident preventable,
but Jackson admitted that he could only vaguely recall
the accident. That said, he commented that his determi-
nation was “likely” based on the facts he gathered “and
then also in conjunction with the safety supervisor,” who
may have been aware of relevant policies of which Jack-
son was not aware. In the second example, one vehicle
hit another, which in turn rear-ended the operator’s van.
Holtz deemed this accident nonpreventable based on his
investigation of the scene, without management input,
but his determination was later overturned because the
safety department concluded that the operator had been
in an incorrect lane.8
With respect to the authority of road supervisors to
remove operators from service, Jackson testified that if
he observes misconduct egregious enough to warrant it,
he can remove the offending operator from service “with
no questions asked” and send the operator back to base
for any necessary retraining, but the safety director actu-
ally initiates any retraining in such cases. Jackson char-
acterized pulling an operator from service as “recom-
mending” retraining, specifying that the safety director
makes the formal decision on whether the operator will

8 In addition to these two examples, Holtz stated that he once had to
testify at an unemployment hearing in order to defend a preventability
determination he had made that had led to the termination of an opera-
tor. Holtz did not provide any details regarding that preventability
determination, however.
be formally retrained. Door-to-door violations, improper
wheelchair securement, improper attire, U-turns, and the
use of electronic devices may warrant pulling an operator
from service. Jackson said that he uses “judgment” in
deciding whether to pull an operator out of service, and
would consider the type of violation involved, or whether
he believed an operator was able to perform his or her
duties effectively or safely. There are policies and rules,
however, that require an operator to be removed from
service in accident situations, regardless of the road su-
pervisor’s preventability determination. After removing
an operator from service, the road supervisor notifies
dispatch to handle any rescheduling issues arising from
the removal, as well as his or her own supervisor and an
operations manager. Although Jackson reiterated that
there are no questions asked when he decides to remove
an operator from service, Holtz stated that the supervisor
at the dispatch call center has the authority to overrule
his removal determinations. Jackson stated that remov-
ing an operator from service constitutes discipline be-
cause the operator does not earn any more money for the
day when he or she is removed from service, and “9
times out of 10” the associated paperwork goes in the
operator’s personnel file. For all this generalized testi-
mony, however, there are no examples—save perhaps
one discussed below—of a road supervisor’s actually
removing an operator from service while working for the
Employer (as opposed to other WMATA contractors).9
Indeed, Jackson admitted that he has never removed an
operator from service while working for the Employer.
Road supervisors are trained and empowered to initiate
drug and alcohol testing based on “reasonable suspi-
cion,” and in such situations the road supervisor removes
the operator from service. Holtz and Jackson each testi-
fied that making the “reasonable suspicion” determina-
tion requires independent judgment, in that a road super-
visor needs to know what signs to look for and needs to
draw on his or her personal experience. After removing
the operator from service, the road supervisor contacts
the safety department and escorts the operator to a testing
facility. According to Holtz, in the sole incident about
which he testified, he removed an operator from service
based on “reasonable suspicion,” but he did not escort
the operator for testing until an operations manager stat-
ed that there was probable cause for testing. It is unclear
whether this incident took place since Holtz began work-
ing for the Employer or when he was previously working

9 Although it appears, from the testimony of Holtz and Jackson, that
there are similarities between the Employer and the prior contractor for
whom Holtz and Jackson worked, there is no testimony from the Em-
ployer’s management establishing that the Employer follows the same
policies as the prior contractor.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for another WMATA contractor.10 In any event, for
“reasonable suspicion” situations, road supervisors do
not determine if an operator is actually impaired or oth-
erwise accuse the operator of wrongdoing, and although
an operator is administratively suspended until test re-
sults return, if the test comes back negative the operator
is paid for the time he or she was suspended.
In addition to the evidence regarding road supervisors’
role in discipline, there was testimony concerning their
alleged authority to reward operators. Jackson explained
that road supervisors carry out safety incentive programs
developed by the safety department. Jackson testified
about a recent “safety blitz,” for which he was given
three $25 gift cards. A “safety message” was posted
each day during the blitz, and Jackson was instructed to
approach operators on a predetermined route and ask if
they knew the safety message. Jackson said that after
observing an operator on this route, he would, “if I
chose, just approach them based off the safety list,” ask if
they knew the safety message, and if the operator recited
it “correctly or at least to my satisfaction, I will give
them the gift card.” Holtz elaborated on this program
slightly, stating that the week before the hearing, he had
intended to give a card to an operator, but when he ob-
served that the operator was not wearing his safety vest,
that automatically eliminated the operator from eligibility
for the gift card. Holtz explained that the lead road su-
pervisor who had given him the gift cards and safety
message list had instructed him not to give a card to any
operator who failed to follow proper procedures.
THE REGIONAL DIRECTOR’S DECISION
Based on the foregoing facts, the Regional Director
concluded that road supervisors possess the authority to
discipline operators. First, the Regional Director found
that the evidence “clearly establishes” that the Employ-
er’s operators are subject to a progressive disciplinary
system, as set forth in the operators’ two collective-
bargaining agreements. Next, the Regional Director
found that road supervisors can orally counsel, orally
warn, and issue written warnings to operators, all of
which “are explicitly contemplated by the progressive
discipline systems” set forth in the collective-bargaining
agreements. The Regional Director noted that although
some road supervisor decisions require evaluation by, or
collaboration with, higher management, “others begin
and end with” the road supervisors, “who the record in-
dicates have the power to issue disciplinary actions that
are recorded and placed in employee personnel files.”
The Regional Director found that this “gives rise to an

10 This is the only specific example in the record of a road supervi-
sor’s actually removing an operator from service for any reason.
inference that road and lead supervisors are vested with
the power to issue disciplinary actions” under the collec-
tive-bargaining agreements, and thus possess the authori-
ty to discipline operators. While acknowledging that
many road supervisor decisions are dictated by Employer
and WMATA policies, the Regional Director neverthe-
less found that road supervisors exercise independent
judgment because they consider the experience level of
an operator and the severity of the infraction in deciding
whether to memorialize a coaching, and Jackson testified
that “how he routinely approaches his responsibilities
with such flexibility and case-by-case consideration.”
Finally, the Regional Director found that the cases relied
on by the Petitioner are distinguishable from this case
because they did not involve a progressive disciplinary
system, did not involve warnings issued by road supervi-
sors that were placed in personnel files, and involved
clear record evidence that road supervisors were so con-
strained in their decision making to preclude the exercise
of independent judgment. The Regional Director found
it unnecessary to decide whether road supervisors rec-
ommend discipline or reward operators, although on this
last count he stated that the record “contains clear evi-
dence” that road supervisors have exercised the authority
to reward employees, but it was “less clear” that this evi-
dence satisfied the Employer’s evidentiary burden. The
Regional Director also concluded that secondary indicia
supported finding that the road supervisors are statutory
supervisors.11
POSITION OF THE PARTIES
The Petitioner contends that this case is “virtually
identical” to Diamond Transportation Services, Inc.,
Case 05–RC–134217 (2015) (not reported in Board vol-
umes), a case in which the Board denied review of the
Regional Director’s finding that another WMATA con-
tractor had not established that its road supervisors pos-
sess the authority to discipline. Likewise, the Petitioner
argues that this case is “remarkably similar” to Lucky
Cab Co., 360 NLRB No. 43 (2014), a case in which the
Board found that an employer had not shown that its
“road supervisors” possessed the authority to discipline.
In addition, the Petitioner contends that the authority to
remove operators from service does not establish the
road supervisors’ disciplinary authority, because road
supervisors only take such action in response to “truly
egregious violations,” and any discipline is administered
by other individuals at a later time. Similarly, the Peti-
tioner argues that the road supervisors’ role in accident

11 The Regional Director found that the evidence does not establish
that the road supervisors possess the authority to assign or to responsi-
bly direct operators.
VEOLIA TRANSPORTATION SERVICES, INC. 5
investigations does not amount to discipline. More gen-
erally, the Petitioner asserts that any actions the road
supervisors take are prescribed by WMATA and thus
amount to following instructions without the use of inde-
pendent judgment. Finally, the Petitioner argues that all
road supervisors working for all WMATA contractors
ought to be treated the same way under the Act, and that
because the Board has found that other WMATA con-
tractors’ road supervisors are not statutory supervisors, it
should make that same finding here.
The Employer agrees with the Regional Director’s
conclusions, and offers the following arguments in sup-
port of his disciplinary findings. First, the Employer
asserts that road supervisors discipline operators by
coaching and counseling them in the field and exercising
discretion in deciding whether to memorialize these ac-
tions on RORs—which the Employer asserts are not in-
dependently investigated—as well as by deciding wheth-
er to remove an operator from service, which results in
unpaid suspension. Second, the Employer contends that
road supervisors effectively recommend discipline, as
shown by Holtz’ testimony that management has sought
his input in disciplinary matters, as well as Jackson’s
testimony that he has never been overruled in removing
an operator from service or in submitting an ROR, and
that management regularly follows his recommendations
for retraining operators. The Employer also argues that
because road supervisors’ preventability determinations
are “routinely upheld,” accident reports constitute effec-
tive recommendations (at least when there is no Dash-
Cam video). The Employer adds that incident reports,
accident reports, and RORs “directly and independently
lead” to discipline because higher management always
takes the facts as set forth in these documents as true.
Finally, the Employer argues that road supervisors pos-
sess the authority to reward, as shown by their role in the
“safety blitz.”12

12 In addition, the Employer renews its argument that the road super-
visors possess the authority to responsibly direct. The Employer did
not formally request review of the Regional Director’s finding to the
contrary, but has consistently advanced this argument in each of its
filings, including its opposition to the Petitioner’s request for review.
Assuming, without deciding, that this issue is properly before the
Board, we reject this contention and affirm the Regional Director.
Although the Employer claims that road supervisors would be “held
accountable” for improperly placing an operator back in service, the
record contains no evidence to support this assertion. Further, this
argument involves a road supervisor’s being held accountable for his or
her own job performance, rather than facing adverse consequences for
an operator’s deficient performance, and thus does not meet the
Board’s test for “accountability” as set forth in Oakwood Healthcare,
Inc., 348 NLRB 686 (2006).
The Employer has also consistently advanced, including in its oppo-
sition and brief on review, two procedural arguments that the Regional
Director did not address. First, the Employer asserts that, when the
ANALYSIS
Legal Principles
Section 2(11) of the Act defines a “supervisor” as an
individual who has the authority, inter alia, to discipline,
reward, or effectively recommend such action, so long as
the individual uses independent judgment in doing so.13
The authority to effectively recommend generally means
that “the recommended action is taken without independ-
ent investigation by superiors, not simply that the rec-
ommendation is ultimately followed.” Children’s Farm
Home, 324 NLRB 61, 61 (1997). The burden to prove
supervisory authority rests with the party asserting it.
See Oakwood Healthcare, supra at 694 (citing NLRB v.
Kentucky River Community Care, Inc., 532 U.S. 706,
711–712 (2001)). The party seeking to prove superviso-

Petitioner amended its petition to exclude the classification of safety
trainers, the Regional Director should have issued an order approving
this “partial withdrawal” of the petition. The Employer cites no author-
ity in support of this argument, aside from Sec. 102.60 of the Board’s
Rules and Regulations, which gives no indication that amending a
petition to exclude a previously sought classification should be treated
as a partial withdrawal of the petition. We therefore reject this argu-
ment as meritless. Second, the Employer contends that the Region
erred by failing to provide notice of the proceedings in this case to
Local 639 and Local 1764, whom the Employer asserts are interested
parties who will be affected by the petition. The Employer bases this
assertion on its further claim that if the road supervisors are not statuto-
ry supervisors, they should be covered by the existing collective-
bargaining agreements because they occasionally perform driving work
and the existing agreements apply to “all drivers.” Here too, the Em-
ployer has offered no legal support for this argument. In any event, the
relevant collective-bargaining agreements are defined by classification
(they refer to “drivers” and “operators” interchangeably), not by work
performed, and the Employer proffers no evidence as to how often road
supervisors perform driving work. We therefore also reject this argu-
ment.
13 As in Buchanan Marine, L.P., 363 NLRB No. 58 (2015), the dis-
sent would apply a new test for supervisory status that focuses on the
“practical realities of the workplace” instead of the detailed definition
contained in the Act. For the reasons set forth in Buchanan Marine,
supra, slip op. at 2, we disagree with the dissent’s proposed standard,
which is not grounded in the text of the Act and does not appropriately
consider the indicia of supervisory status enumerated in Sec. 2(11).
See also WSI Savannah River Site, 363 NLRB No. 113 (2016).
The disconnect between the dissent’s approach and the Act is under-
scored by the dissent’s argument that if the road supervisors are not
found to be supervisors for purposes of the Act, then “615 field person-
nel are supervised exclusively by four . . . or . . . 14 people [, and]
such a finding fails the ‘test of common sense.’” One cannot make this
argument except by ignoring a basic legal fact: the finding that the road
supervisors are not statutory supervisors simply means that they “may
vote whether to be represented for purposes of collective bargaining,
and be represented as part of a unit that selects a representative.” Bu-
chanan Marine, supra, slip op. at 2. The finding does not mean that the
road supervisors cannot monitor the performance of other employees or
that they cannot report their findings to the Employer. Nor does it
mean that they cannot issue orders to other employees, or that the Em-
ployer cannot discipline other employees for failure to obey such or-
ders. See id.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ry status must establish it by a preponderance of the evi-
dence. Id. Purely conclusory evidence does not satisfy
that burden. Lynwood Manor, 350 NLRB 489, 490
(2007).14 Lack of evidence is construed against the party
asserting supervisory status. See Dean & Deluca New
York, Inc., 338 NLRB 1046, 1048 (2003). Supervisory
status is not established where the record evidence “is in
conflict or otherwise inconclusive.” Phelps Community
Medical Center, 295 NLRB 486, 490 (1989).
Discipline
To confer supervisory status based on the authority to
discipline, “the exercise of disciplinary authority must
lead to personnel action without the independent investi-
gation or review of other management personnel.” Lucky
Cab, supra, slip op. at 2 (quoting Franklin Home Health
Agency, 337 NLRB 826, 830 (2002)). Warnings that
simply bring substandard performance to the employer’s
attention without recommendations for future discipline
serve nothing more than a reporting function, and are not
evidence of supervisory authority. See Williamette In-
dustries, Inc., 336 NLRB 743, 744 (2001); Loyalhanna
Health Care Associates, 332 NLRB 933, 934 (2000)
(warning merely reportorial where it simply described
incident, did not recommend disposition, and higher au-
thority determined what, if any, discipline was warrant-
ed); Ten Broeck Commons, 320 NLRB 806, 812 (1996)
(written warnings that are merely reportorial and not
linked to disciplinary action affecting job status are not
evidence of supervisory authority). Similarly, authority
to issue verbal reprimands is, without more, too minor a
disciplinary function to constitute supervisory authority.
See Vencor Hospital-Los Angeles, 328 NLRB 1136,
1139 (1999); Ohio Masonic Home, Inc., 295 NLRB 390,
394 (1989). The Board has found that putative supervi-
sors do not possess disciplinary authority where counsel-
ings, warnings, or reports do not constitute an initial step
in a progressive disciplinary system, and thus do not im-
pact job status. See, e.g., Vencor Hospital-Los Angeles,
328 NLRB at 1139. Cf. Jochims v. NLRB, 480 F.3d
1161, 1170 (D.C. Cir. 2007) (write-ups documenting
infractions merely represented the possibility of disci-
pline, given lack of evidence they were prerequisite to
discipline or routinely resulted in discipline), reversing
Wilshire at Lakewood, 345 NLRB 1050 (2005).
“A warning may qualify as disciplinary within the
meaning of Section 2(11) if it ‘automatically’ or ‘routine-
ly’ leads to job-affecting discipline, by operation of a

14 See also Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 305
(6th Cir. 2012) (“[g]eneral testimony asserting that employees have
supervisory responsibilities is not sufficient to satisfy the burden of
proof when there is no specific evidence supporting the testimony”
(citations omitted)).
defined progressive disciplinary system.” The Republi-
can Co., 361 NLRB No. 15, slip op. at 7 (2014) (citing
Oak Park Nursing Care Center, 351 NLRB 27, 30
(2007)). It is the Employer’s burden to prove the exist-
ence of such a system, as well as the role warnings issued
by putative supervisors play within it. Id. If an ostensi-
bly progressive system is not consistently applied, pro-
gressive discipline has not been established. See, e.g.,
Ken-Crest Services, 335 NLRB 777, 777–778 (2001)
(verbal warnings not disciplinary, notwithstanding pur-
ported progressive discipline system, because employees
could receive numerous counselings and verbal warnings
without further discipline); The Republican Co., supra,
slip op. at 7 fn. 8 (progressive discipline not established
where, inter alia, testimony indicated employees had
been suspended without prior warning, but other em-
ployees received multiple verbal warnings without any
escalation); Ten Broeck Commons, 320 NLRB at 809
(warnings not disciplinary where no showing of “pre-
meditated discipline based solely on the receipt of a cer-
tain, set number of warnings”).
We find, contrary to the Regional Director and our dis-
senting colleague, that the available evidence is too
vague, limited, and conflicting to establish the role that
the road supervisors’ warnings (in the form of RORs)
play within the Employer’s alleged progressive discipli-
nary system, and other evidence suggests that the system
is not consistently applied. To begin, each collective-
bargaining agreement articulates a slightly different dis-
ciplinary policy, with a different set of steps and a differ-
ent set of conditions under which the Employer reserves
the right to deviate from them.15 Of particular note, Lo-
cal 639’s agreement reserves the right to repeat discipli-
nary steps as necessary, and to skip steps for a nonex-
haustive list of “serious” infractions. Given these quali-
fications, the Employer has not established that this poli-
cy is progressive. Cf. Lucky Cab, supra, slip op. at 3
(progressive disciplinary policy not established where
handbook stated that employer could exercise discretion

15 In this regard, we disagree with the Regional Director’s finding
that road supervisors orally counsel, orally warn, and issue written
warnings, and that each of these levels of discipline is contemplated by
the disciplinary systems set forth in the collective-bargaining agree-
ments. The record does not establish that oral counseling is distinct
from oral warning, and there is no evidence of a road supervisor issuing
a written warning (of which, under Local 1764’s agreement, there are
two types). That said, the Regional Director is correct that both agree-
ments on their face contemplate oral counseling/warning as the initial
disciplinary step (Local 639’s agreement referring to it as “oral repri-
mand” and Local 1764’s agreement referring to it as “policy re-
view/documented verbal counseling”).
VEOLIA TRANSPORTATION SERVICES, INC. 7
in utilizing forms of discipline, no formal order was nec-
essary, and steps could be skipped).16
Although Local 1764’s agreement does not share these
characteristics, further evidentiary problems prevent the
Employer from establishing that its ostensibly progres-
sive disciplinary system is consistently applied, or the
role that RORs play within it. First, the evidence about
road supervisors’ disciplinary authority does not distin-
guish between operators subject to Local 639’s and Local
1764’s agreement. There is accordingly no way to tell
which agreement a road supervisor’s putatively discipli-
nary action implicates. In other words, even though Lo-
cal 1764’s agreement articulates a progressive policy, the
record does not establish that any of the disciplinary ac-
tions in evidence were taken pursuant to that policy, as
opposed to Local 639’s policy, which is not progressive.
Second, even if we assume that the testimony about dis-
cipline refers to actions taken pursuant to a progressive
policy, Road Supervisor Holtz testified that the Employer
provides road supervisors with a “hot list” containing the
names of operators who have committed the same infrac-
tion “over and over again.” This testimony suggests that
operators are being repeatedly warned for the same viola-
tions without discipline escalating, and there is no further
evidence clarifying the nature of the “hot list” or how an
operator’s name appears on it. Significantly, the exist-
ence of the “hot list,” the road supervisors’ orders to
keep a particular eye out for operators who appear on the
list, and the testimony by Jackson and Holtz that they
memorialize counseling on RORs with at least some reg-
ularity indicate that the Employer should have had nu-
merous concrete examples of RORs readily available.
Yet the record contains only a single example of an
ROR—one that recorded only a verbal counseling (the
circumstances of which Jackson could not even recall).
It is at best unclear which of the two collective-
bargaining agreements the operator involved was subject
to, and the record in fact suggests that he was subject to
Local 639’s agreement which, as already discussed, does
not articulate a progressive policy.17 Further, there is no
testimony of any kind concerning what was done with

16 To be clear, our finding that the Employer has not established that
Local 639’s disciplinary policy is progressive does not fully resolve
whether road supervisors possess the authority to discipline, as the road
supervisors also operate under Local 1764’s policy. In any event, the
dissent errs in arguing that we are somehow passing judgment on the
substance of the agreement between the Employer and Local 639 mere-
ly because we have concluded that, contrary to the agreement’s use of
the word “progressive,” the disciplinary policy contained therein is not
in fact progressive.
17 As noted above, the ROR appears to indicate that the operator in
question was based in Washington and covered by Local 639’s agree-
ment.
this ROR once Jackson turned it in. Given Jackson’s
inability to recall this ROR, there is no indication why he
decided to memorialize it, or if he did so because of
some prior infraction by that operator. Moreover, there
is no suggestion that a higher level of discipline was ever
based on this—or any other—ROR. Indeed, there is no
evidence establishing that the operator who was the sub-
ject of Jackson’s ROR actually ever suffered any adverse
consequence as a result of that ROR. Cf. Ohio Masonic
Home, 295 NLRB at 393–394 (although documented oral
reprimands and written warnings were placed in employ-
ee personnel files, the record did not establish that they
automatically led to any further discipline or adverse
action against employees). As there are no examples of
higher levels of discipline referring to prior infractions,
we find that the Employer has not established that it ac-
tually applies a progressive disciplinary policy. See Di-
recTV U.S. DirecTV Holdings LLC, 357 NLRB 1747,
1749 fn. 13 (2011) (progressive system not established
where, inter alia, there were no instances of higher levels
of discipline referring to prior infractions).18 Under these
circumstances, we find that the Employer has not estab-
lished that it consistently applies a progressive discipli-
nary system, nor has it established the role that warnings
play within its disciplinary system.19
As the Employer has not established that it has, or con-
sistently applies, a progressive disciplinary policy, it ac-
cordingly has not shown that RORs are anything more
than counselings, warnings, or reports that make no rec-
ommendation for discipline and do not automatically
lead to discipline. See Vencor Hospital-Los Angeles,
supra at 1139; Ohio Masonic Home, 295 NLRB at 394.
Further, Jackson’s testimony that discipline can be a col-
laborative effort with managers, without any specificity
as to what this collaboration entails or how often it oc-
curs, suggests that road supervisors do not consistently
exercise independent judgment with respect to whatever

18 In cases where the Board has found supervisory authority based on
the operation of a progressive disciplinary system, the record typically
contains evidence of subsequent discipline expressly referencing prior
discipline. See Oak Park, 351 NLRB at 28–29 (counseling form ex-
pressly referenced prior discipline); Progressive Transportation Ser-
vices, Inc., 340 NLRB 1044, 1046 (2003) (two warning notices signed
by putative supervisor referenced in later discipline).
19 In disagreeing with our analysis of the Employer’s disciplinary
system, the dissent incorrectly charges that we are requiring the Em-
ployer to meet its burden by something more than a preponderance of
the evidence. The Board has consistently held that to prove supervisory
status by a preponderance of the evidence, a party must present de-
tailed, specific evidence and cannot rely on conclusory testimony or
evidence that is inconclusive or otherwise in conflict. See G4S Regu-
lated Security Solutions, 362 NLRB No. 134, slip op. at 3 (2015). As
thoroughly explained above, the evidence the Employer has presented
in this case has not met that standard.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discipline results from their RORs. In addition, this gen-
eralized testimony about collaborative discipline, com-
bined with Holtz’ acknowledgement that higher man-
agement independently investigates RORs, prevents the
Employer from establishing that RORs are not inde-
pendently investigated. Again, there is no testimony at
all about what happens to an ROR after a road supervisor
turns it in (aside from Jackson’s statement that the ROR
ends up in the operator’s personnel file), there are no
examples of an ROR actually resulting in adverse conse-
quences for the operator (or being relied on for subse-
quent discipline), and there is no testimony from any
higher management even suggesting that they do not
independently investigate RORs. In fact, Local 1764’s
agreement appears to expressly contemplate independent
investigations by the “General Manager or their design-
ee.” Although Jackson and Holtz stated that their RORs
are not always independently investigated, neither of
them offered any specific examples and, by their own
testimony, they are not in a position to know what tran-
spires after an ROR is submitted to the administrative
assistant to the operations director. These circumstances,
too, prevent the Employer from demonstrating that road
supervisors possess the authority to discipline.
We also reject the Employer’s argument that removing
operators from service constitutes discipline.20 First,
neither collective-bargaining agreement gives any indica-
tion that removal from service is part of discipline. Sec-
ond, there is only one example of a road supervisor’s
actually removing an operator from service, and this was
based on Holtz’ “reasonable suspicion” determination
that the operator was impaired. Aside from the fact that
it is unclear whether Holtz made this determination when
working for the Employer (as opposed to another con-
tractor), the Board has long held that removing an opera-
tor from service for “flagrant” violations—such as being
drunk—does not involve independent judgment. See
Phelps Community Medical Center, 295 NLRB at 492.
Third, although Jackson claimed that there are “no ques-
tions asked” when he decides to remove an operator from
service, he admitted that he has never done so while
working for the Employer, and Holtz stated that dispatch
has the authority to overrule a road supervisor’s decision
to remove an operator from service. Further, by Holtz’
own account, when he removed the operator from service
due to “reasonable suspicion,” he did not actually escort

20 The Regional Director appears to have concluded that the authori-
ty to remove operators from service (with a resultant loss in pay) does
not constitute discipline sufficient to confer supervisory status. For the
reasons discussed below, we need not decide whether removing an
operator from service might, under other circumstances, constitute
disciplinary authority within the meaning of Sec. 2(11).
that operator for testing until a manager determined that
there was probable cause to do so.21 Fourth, without any
further examples of a road supervisor removing an opera-
tor from service, there are no examples of operators actu-
ally suffering adverse consequences for being removed
from service, nor is there any testimony from managers
establishing that they routinely deny pay to removed op-
erators based solely on the road supervisor’s decision to
remove them from service.22 We accordingly find that
the Employer has not established that removal from ser-
vice constitutes discipline, that it involves independent
judgment, or that the removed operators are penalized
without an independent investigation by higher manage-
ment.
We further find that the Employer has not established
that road supervisors possess the authority to effectively
recommend discipline. As already discussed, RORs con-
tain no recommendation of any kind, and in the absence
of a progressive disciplinary policy, these types of doc-
uments are merely reportorial and do not establish the
authority to effectively recommend discipline. See, e.g.,
Illinois Veterans Home at Anna L.P., 323 NLRB 890,
890 (1997); Vencor Hospital-Los Angeles, 328 NLRB at
1139.23 Additionally, as also discussed above, the lack
of evidence concerning what happens to an ROR after it
is submitted, combined with indications that higher man-
agement is involved in deciding whether to issue disci-
pline and has overruled RORs, prevents the Employer
from showing that road supervisors’ “recommendations”
are not independently investigated. With respect to inci-
dent reports, there is no evidence that incident reports
constitute disciplinary recommendations, and the only

21 The record is also clear that in “reasonable suspicion” situations, a
removed operator is nevertheless paid for his or her time if the test
comes back negative.
22 The only evidence that removed operators are not paid is Jack-
son’s testimony that if he removes an operator, that operator will not
earn any more money that day. There are, however, no examples of an
operator actually suffering this adverse consequence, and, as just noted,
there is no testimony from any person with the authority to dock a
removed operator’s pay.
23 Two of the four cases that the Employer cites in support of its ef-
fective recommendation argument involve progressive policies. See
Sheraton Universal, 350 NLRB at 1117; Progressive Transportation,
340 NLRB at 1044. A third does not expressly indicate that it involved
a progressive policy, but it relies on Progressive Transportation. See
Mountaineer Park, Inc., 343 NLRB 1473, 1475 (2004). Further, the
putative supervisors in Mountaineer Park actually wrote specific disci-
plinary recommendations, unlike the road supervisors here. See id.
The fourth case the Employer cites does not support its argument, as it
states that in order to establish the authority to effectively recommend
discipline, the party asserting supervisory status must show, among
other things, that putative supervisors submit actual recommendations.
See ITT Lighting Fixtures, 265 NLRB 1480, 1485 (1982).
VEOLIA TRANSPORTATION SERVICES, INC. 9
incident report in evidence involved no discipline at all.24
With respect to accident investigations, the Employer
asserts that the road supervisors’ preventability determi-
nations are regularly upheld, but there are only two ex-
amples of preventability determinations in the record,
one of which was later overruled, and both Jackson and
Holtz freely admitted that their determinations can be
overruled. The Employer claims that preventability de-
terminations are overruled only when there is Dash-Cam
evidence indicating otherwise, but neither Jackson nor
Holtz offered such testimony, and Jackson expressly
stated that after an accident packet is submitted, there are
discussions with the driver, suggesting that higher level
management in fact routinely conducts additional inves-
tigation beyond the road supervisor’s initial findings,
Dash-Cam or no. As it is, there is no indication that
Jackson’s preventability determination led to discipline;
Holtz’ accident investigation did lead to discipline, but
only because his initial determination that the accident
was nonpreventable was later overruled.25 And accident
investigations do not prompt road supervisors to make
any disciplinary recommendation. The remaining testi-
mony on which the Employer relies is insufficient to
carry its burden. Although Holtz testified that manage-
ment has sought his input in disciplinary matters, he of-
fered no further context for that statement, and elsewhere
he stated that he has never recommended discipline while
working for the Employer. Similarly, although Jackson
testified that he made 25 recommendations in the last
year and has never been overruled, he did not even gen-
erally describe what those recommendations entailed,
how he made these recommendations, how he deter-
mined what to recommend in these instances, or what
disciplinary consequences resulted from his recommen-
dations.26
For all of the foregoing reasons, we reverse the Re-
gional Director and find that the Employer has not estab-

24 This incident report simply describes how the operator and a pas-
senger felt what might have been a sideswipe; when the road supervisor
summoned to the scene could not see any damage, he placed the opera-
tor back in service. The only other detailed testimony about incident
reports is that they might be used to report passengers getting sick.
25 Although Holtz testified at an unemployment hearing that resulted
from another of his preventability determinations, there is no testimony
about the underlying incident, and thus no evidence as to whether his
determination was upheld without further investigation.
26 To the extent that the Employer contends that removal from ser-
vice also constitutes an effective recommendation of discipline, as
discussed above there is no evidence that a removed operator has ever
actually suffered adverse consequences as a result of that removal. The
Employer also refers to recommending retraining as an effective rec-
ommendation of discipline, but there are no specific examples of a road
supervisor actually doing this, nor are there any examples of an opera-
tor suffering an adverse consequence due to retraining.
lished that road supervisors possess the authority to dis-
cipline, and we further find that the Employer has not
established that road supervisors possess the authority to
effectively recommend discipline.27
Reward
As noted above, the Regional Director found it unnec-
essary to decide whether road supervisors possess the
authority to reward operators. He did, however, state
that road supervisors have exercised the authority to re-
ward, although he expressed doubt whether they did so
more than sporadically. The Employer did not request
review of the Regional Director’s findings in this re-
gard.28 Assuming this contention is properly before the
Board, having reviewed the record, we conclude that
there is insufficient evidence to establish that road super-
visors possess the authority to reward. There was some
testimony that road supervisors can record favorable ob-
servations on an ROR, but there was no indication that
this leads to any positive consequences for the operators.
The only other testimony bearing on the road supervi-
sors’ authority to reward is limited to their role in the
recent “safety blitz.” According to Jackson, this program
ended a week before the hearing. Although Jackson and
Holtz vaguely referred to other incentive programs and
safety blitzes, there is no testimony establishing what the
road supervisors’ role was in these other programs, or
whether these other programs took place when they
worked for the Employer or some other WMATA con-
tractor. The only specific evidence of the road supervi-
sors’ authority to reward, then, is limited to events that
took place shortly before the hearing. Thus, even if the
distribution of $25 gift cards is sufficient to constitute a
“reward” within the meaning of Section 2(11)—an issue
we need not decide here—the evidence does not establish
that the road supervisors’ authority to reward is anything
more than isolated, infrequent, or sporadic. See, e.g.,
The Republican Co., supra, slip op. at 8; Shaw, Inc., 350
NLRB 354, 357 and fn. 1 (2007); Franklin Home Health,

27 In reversing the Regional Director, however, we reiterate—as we
did in denying the Petitioner’s motion to consolidate in the April 21,
2015, order—that the facts of this case are not, as the Petitioner asserts,
“virtually identical” to Diamond Transportation, supra, nor do we
agree with the Petitioner’s contention that all road supervisors working
for WMATA contractors must be treated the same for the purposes of
Sec. 2(11). We also find it unnecessary to pass on the Petitioner’s
assertion that none of the purportedly disciplinary actions taken by road
supervisors involves any independent judgment.
28 In the order granting review, we stated that the Petitioner had
raised substantial and material issues with respect to discipline and
effective recommendation thereof. Although the order does not refer to
the road supervisors’ purported authority to reward, the Regional Direc-
tor made no ultimate finding on this issue, and the Employer has, since
the hearing, consistently argued—including in its opposition and brief
on review—that the road supervisors have the authority to reward.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
337 NLRB at 829; Chevron U.S.A., 309 NLRB 59, 61
(1992). In addition, the evidence is too limited and
vague to establish that road supervisors exercised inde-
pendent judgment even during the “safety blitz.” There
is no indication that road supervisors used discretion in
approaching an operator to ask him or her to recite the
safety message, and Holtz stated that an operator who
recited the message would receive the card, but that he
could not award a gift card to an operator if he observed
the operator committing an infraction. Jackson testified
that he would award the card if the safety message was
recited to his “satisfaction,” but he made no attempt to
explain how he would decide whether he was satisfied.
CONCLUSION
In view of the foregoing, we reverse the Regional Di-
rector and find that the Employer has not established that
its road supervisors possess the authority to discipline.
We also find that the Employer has not shown that the
road supervisors possess the authority to effectively rec-
ommend discipline or reward, and we affirm the Region-
al Director’s finding that the road supervisors do not pos-
sess the authority to responsibly direct. In the absence of
such evidence, the secondary indicia of supervisory au-
thority on which the Regional Director relied are imma-
terial. See Ken-Crest Services, 335 NLRB at 779 (sec-
ondary indicia are insufficient by themselves to establish
supervisory status). For all these reasons, we find that
the Employer’s road supervisors are not supervisors
within the meaning of Section 2(11) of the Act.
ORDER
The Regional Director’s finding that road supervisors
are supervisors within the meaning of Section 2(11) of
the Act is reversed. This proceeding is remanded to the
Regional Director for further appropriate action con-
sistent with this Decision and Order.
Dated, Washington, D.C. May 12, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
Unlike my colleagues, I would affirm the Regional Di-
rector’s Decision and Order dismissing the election peti-
tion. I believe the record supports the Regional Direc-
tor’s finding that the Employer’s road supervisors and
lead road supervisors (collectively “road supervisors”)
are statutory supervisors under Section 2(11) of the Na-
tional labor Relations Act (NLRA or Act). Specifically,
I believe the record establishes that the road supervisors,
who work out of the Employer’s facilities in Washing-
ton, D.C., and Hyattsville, Maryland, possess the authori-
ty to discipline operators (i.e., drivers of MetroAccess
vans) who are their subordinates. Thus, because supervi-
sors are excluded from the Act’s definition of “employ-
ee,”1 the Regional Director properly dismissed the peti-
tion seeking to represent the road supervisors.
This case is similar to a recent decision—Veolia
Transportation Services, 363 NLRB No. 98 (2016) (“Ve-
olia I”)—that involved the Employer’s “road supervi-
sors” in the metropolitan Las Vegas area. In Veolia I, the
Board majority found that the Las Vegas road supervi-
sors were not statutory supervisors. However, I dissent-
ed in Veolia I on the basis that the road supervisors had
the authority to discipline bus drivers or to effectively
recommend discipline. Id., slip op. at 12–14. Here,
similar to Veolia I, the Employer operates a large pas-
senger transportation operation, with approximately 600
van operators who spend most of their workday driving
vans on routes dispersed throughout the Washington DC
metropolitan area (which includes portions of Maryland).
The Employer has 15 road supervisors—consisting of
two lead road supervisors and thirteen road supervi-
sors—who are tasked with observing the 600 operators to
ensure they adequately perform their job duties, drive
their assigned routes, operate safely, and otherwise com-
ply with a host of policies. Above the level of the 15
road supervisors, in relation to the operations at issue
here, the Employer’s management structure is extremely
sparse, consisting of only four people: a project manager
(Michael Staley), an operational director (Melvin Bar-
kley), and two operational managers (Larry Worthy and
Shandell Hassan). The Employer also has approximately
ten “safety and training supervisors,” whose supervisory
status under Section 2(11) has not been established, and
who the Regional Director found were the only other
“individuals to whom operators can be said to report.”
The road supervisors—in addition to making their own
observations—have responsibility for investigating inci-

1 Sec. 2(3) states that the term “employee” shall not include “any in-
dividual employed as a supervisor.” The term “supervisor” is defined
in Sec. 2(11) as encompassing “any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.”
VEOLIA TRANSPORTATION SERVICES, INC. 11
dents and accidents. Similar to Veolia I, the evidence
here reveals that the road supervisors play an essential
role in the Employer’s disciplinary process. They make
independent judgments about whether particular miscon-
duct should be addressed by administering informal
counseling or whether it warrants a written warning that
is retained on file and used when the Employer deter-
mines the appropriate future discipline to be imposed for
subsequent policy violations.
Specifically, in this case, Road Supervisor Brian Jack-
son testified without contradiction that he takes factors
such as an operator’s experience level and the severity of
his misconduct into account when deciding what level of
discipline to apply in a given situation. More generally,
the record establishes that road supervisors are responsi-
ble for following operators on their assigned van routes
and monitoring their compliance with various employ-
ment policies. As found by the Regional Director, road
supervisors possess authority to orally counsel and write
up operators who violate company policy. Road supervi-
sors exercise independent judgment in deciding whether
a particular violation may be handled informally or
whether it warrants being documented in a road observa-
tions report (ROR) that is retained in an operator’s per-
sonnel file for future disciplinary reference.
In two respects, the record provides stronger support
here for a finding that road supervisors have “discipline”
authority than existed in Veolia I.
First, in Veolia I—like the instant case—the employer
had “senior road supervisors” and regular “road supervi-
sors.”2 However, in Veolia I, it was undisputed that the
“senior road supervisors” were statutory supervisors, and
the petitioned-for bargaining unit sought to encompass
only the regular “road supervisors.”3 By comparison, the
petitioned-for unit in the instant case encompasses the
two “lead road supervisors” and the thirteen regular
“road supervisors.” Thus, unlike Veolia I, the Board
majority here essentially finds that the Employer has 615
statutory employees whose work involves driving disa-
bled customers throughout the Washington DC metropol-
itan area,4 and nobody in the field exercises any supervi-
sory authority, except perhaps for the ten “safety and

2 Veolia I, 363 NLRB No. 98, slip op. at 1 and fn. 5; id., slip op. at
12 (Member Miscimarra, dissenting).
3 Id. The Board majority in Veolia I stated: “The senior road super-
visors oversee the road supervisors. It appears undisputed that all of
these positions—except, of course, the disputed road supervisors—are
supervisors within the meaning of Section 2(11).” Id., 363 NLRB No.
98, slip op. at 1.
4 The Board majority here finds that the Employer has approximate-
ly 615 statutory employees, consisting of approximately 600 van opera-
tors plus the two senior road supervisors and the thirteen regular road
supervisors.
training supervisors,” whose supervisory status under
Section 2(11) remains unclear.5 In either case, my col-
leagues’ findings mean that the 615 field personnel are
supervised exclusively by four people (a Project Manag-
er, an Operational Director, and two Operational Manag-
ers) or by 14 people (if the foregoing individuals are con-
sidered along with the ten “safety and training supervi-
sors”). As explained below, I believe such a finding fails
the “test of common sense.”6
Second, in the instant case, the two applicable collec-
tive-bargaining agreements establish progressive disci-
plinary policies that explicitly identify “policy re-
view/documented verbal counseling” or “oral reprimand”
as the first level of discipline as part of a four-step disci-
plinary process. See Oak Park Nursing Care Center,
351 NLRB 27, 28 (2007) (finding that “counseling forms
are a form of discipline because they lay a foundation,
under a progressive disciplinary system, for future disci-
pline against an employee.”). In reversing the Regional
Director’s decision, my colleagues here disregard unre-
butted documentary and testimonial evidence regarding
the Employer’s progressive disciplinary policies, charac-
terizing that evidence as “too vague, limited, and con-
flicting” to establish that road supervisors actually mete
out discipline specified in the collective-bargaining
agreements’ progressive disciplinary policies. I disagree
with my colleagues’ characterization of this evidence.7
To establish that the road supervisors are statutory su-
pervisors, the Employer must show by a preponderance
of evidence that (1) the road supervisors hold the authori-
ty to engage in any one of the 12 different supervisory
functions enumerated in Section 2(11) (including the
authority to discipline or to effectively recommend disci-
pline), (2) their exercise of the authority requires inde-
pendent judgment and is not routine or clerical, and (3)
their authority is exercised in the interest of the employ-
er. Sec. 2(11) (quoted in fn. 1 supra); Oakwood
Healthcare, Inc., 348 NLRB 686, 687 (2006). Section
2(11) requires only that a supervisor possess “authority”
to carry out or effectively recommend a supervisory
function, even if there is no proof that the authority has
been exercised. See, e.g., Sheraton Universal Hotel, 350
NLRB 1114, 1118 (2007).

5 The petitioned-for bargaining unit initially encompassed the lead
and regular road supervisors and the “safety and training supervisors,”
but the latter were amended out of the petition at the hearing, and the
Regional Director made no finding regarding the 2(11) status of the
“safety and training supervisors.”
6 Buchanan Marine, 363 NLRB No. 58, slip op. at 10 (Member
Miscimarra, dissenting). See also text accompanying fns. 14–18 infra.
7 Because I find that the road supervisors are Sec. 2(11) supervisors
based on their authority to discipline operators, I need not and do not
pass on whether they also have the authority to reward employees.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regarding the authority to discipline or effectively to
recommend discipline, the Board has issued a number of
cases holding that, even though an alleged supervisor has
the authority to coach, counsel, and/or warn an employee
for misconduct or dereliction of duty, this does not in-
volve “discipline” unless the coaching, counseling, or
warning is a documented step in a rigid and inflexible
progressive disciplinary policy. See, e.g., Lucky Cab
Co., 360 NLRB No. 43, slip op. at 3 (2014); The Repub-
lican Co., 361 NLRB No. 15, slip op. at 7 (2014). As
explained in Veolia I, I disagree with these cases, be-
cause I believe the term “discipline” in Section 2(11) was
intended to encompass coaching, counseling, and warn-
ings whenever the evidence reveals that these actions
influence subsequent disciplinary decisions. See Veolia
I, 363 NLRB No. 98, slip op. at 13 (2016) (Member
Miscimarra, dissenting). In any event, as explained be-
low, the Employer in this case maintains collectively-
bargained progressive discipline policies, and road su-
pervisors are unquestionably authorized to administer
first-step discipline under these policies.
The Employer maintains two progressive discipline
policies. The policy governing operators in Washington,
DC, is set forth in a collective-bargaining agreement be-
tween the Employer and The Drivers, Chauffeurs, and
Helpers Local Union No. 639:
Progressive Discipline
Any violation of posted and/or written Company rules,
policies and/or procedures may result in disciplinary
action. With the exception as listed under ‘Serious In-
fractions’ below, and the attendance policy, any posted
and/or written Company rules, policies and/or Proce-
dures may result in the following disciplinary action.
First Violation:Policy review/documented verbal coun-
seling.
Second Violation: First Written Warning Notice
Third Violation: Second Written Warning Notice
Fourth Violation: Suspension or May Result in Dis-
charge From Company
. . .
Serious Infractions.
The following violations of Company policies and
rules are considered serious infractions and may be just
cause for immediate discharge of the employee, alt-
hough the Company may impose a lesser penalty.
Theft or deliberate destruction, defacing or damaging
of Company or Client property or property of another
employee or passenger.
Physical violence or fighting on Company premises or
vehicles or any time while on duty. Self Defense, as
supported by local authorities, would not be considered
a violation of this section.
Possession of firearms, weapons or explosives and sim-
ilar devices on Company premises or vehicles or any
time while on duty.
. . . .8
The progressive discipline policy governing operators
in Hyattsville, Maryland, is set forth in a collective-
bargaining agreement between the Employer and Local
1764, Amalgamated Transit Union:
Disciplinary measures shall be taken in the following
order:
• Oral reprimand
• Written reprimand
• Suspension, not to exceed five (5) days (notice to
be given in writing).
• Discharge.
The Company will generally follow this four-step process
for most rule or policy infractions. The Employer’s focus
will be to improve the employee’s performance and retain
a qualified, trained and valuable employee. The Compa-
ny reserves the right, however, to repeat steps as neces-
sary or skip steps entirely for more serious infractions.
For example, some of the serious infractions sure to earn
much more than a simple verbal warning, up to and in-
cluding termination include, but are not limited to:
• Violations of the drug/alcohol policy.
• Gross misconduct or gross insubordination.
• Theft of fares or company property.
• Use of Electronic Device while in revenue service
• Failure to properly report an accident
. . . 9
Because the road supervisors possess authority to issue
first-step discipline under both progressive policies, ex-
tant law compels the conclusion that they are statutory
supervisors under Section 2(11), which means they are
excluded from the Act’s definition of “employee,” and
the Regional Director properly dismissed the representa-
tion petition encompassing them. Lucky Cab Co., 360
NLRB No. 43, slip op. at 3, and Oak Park Nursing Care
Center, 351 NLRB at 28.
My colleagues contend that the policy in Local 639’s
agreement is not truly “progressive,” and hence that any
documented verbal counseling conducted by road super-
visors does not constitute 2(11) “discipline,” because the
policy permits the Employer to repeat disciplinary steps
as necessary and to skip steps for “serious” infractions,
citing Lucky Cab, supra, slip op. at 3. Again, I disagree

8 Er. Ex. 1 at 8.
9 Er. Ex. 2 at 9.
VEOLIA TRANSPORTATION SERVICES, INC. 13
with the notion that flexibility in a progressive policy
means that remedial actions taken pursuant to its express
provisions are not “discipline” within the meaning of
Section 2(11). The fact that a policy may permit some
discretion to accommodate exceptional circumstances
does not preclude first-step corrective action from laying
a foundation for future discipline, the touchstone of the
analysis. See Oak Park Nursing Care Center, 351
NLRB at 28–29 (finding that employer’s policy was pro-
gressive and that counseling forms completed by LPNs
constitute 2(11) discipline despite the fact that the em-
ployer had repeated a step in the progression); Progres-
sive Transportation Services, Inc., 340 NLRB 1044,
1046 (2003) (rejecting contention that discipline is su-
pervisory only if there is “a rigid and inflexible system
under which discipline always leads to a precise impact
on employment”).10 Board findings must be supported
only by the “preponderance” of the record evidence,11
which means the Board cannot reasonably insist on a
more exacting standard when evaluating supervisory
status. I believe it is unrealistic and oversimplistic for
the Board to find, in effect, that “discipline” does not
constitute “discipline” unless it is part of an uncompro-
mising “one-size-fits-all” progressive discipline process
that permits no flexibility and no exceptions. By adopt-
ing such an approach in the instant case, the Board ma-
jority is effectively imposing its own views regarding the
appropriateness of the parties’ collectively bargained
contract provisions concerning discipline. However,
passing judgment on the substance of the disciplinary
provisions in the parties’ collective-bargaining agree-
ments exceeds the Board’s authority under the Act.12
I likewise disagree with my colleagues’ complaint that
the record fails to include testimony regarding how the

10 Lucky Cab, 360 NLRB No. 43, cited by the majority, is distin-
guishable. The discipline policy at issue there, which the Board found
was not progressive, emphasized the employer’s discretion to choose
any discipline it thought appropriate in a given circumstance and stated
that “no formal order or system is necessary.” Here, in contrast, the
policy in Local 639’s agreement provides that “[d]isciplinary measures
shall be taken in the following order” (emphasis added), states that the
company “will generally follow this four-step process for most rule or
policy infractions,” and only thereafter reserves some discretion to
deviate for exceptional circumstances.
11 Sec. 10(c) of the Act requires that the Board base its decisions on
“the preponderance of the testimony” presented in a given case.
12 Sec. 8(d) of the Act states that the duty to bargain “does not com-
pel either party to agree to a proposal or require the making of a con-
cession.” See also H. K. Porter Co., Inc. v. NLRB, 397 U.S. 99, 107–
108 (1970) (“While the parties’ freedom of contract is not absolute
under the Act, allowing the Board to compel agreement when the par-
ties themselves are unable to agree would violate the fundamental
premise on which the Act is based—private bargaining under govern-
mental supervision of the procedure alone, without any official compul-
sion over the actual terms of the contract.”).
Employer typically handles ROR forms after road super-
visors submit them to an administrative assistant, that the
record only includes a single ROR that was admitted into
evidence, and that the record fails to include evidence
regarding the higher levels of discipline that were based
on prior infractions. Relying on these alleged defects,
the majority concludes that the Employer’s evidence is
“too vague, limited, and conflicting” to establish that the
Employer actually maintains progressive disciplinary
policies and the road supervisors’ role in implementing
those policies. Here as well, I believe my colleagues’
findings are irreconcilable with the Act’s “preponder-
ance” standard. Questions involving supervisory status
turn on whether an alleged supervisor is vested with suf-
ficient “authority” to perform or effectively recommend
one of the actions specified in Section 2(11) of the Act.
In the instant case, the record contains detailed and spe-
cific evidence demonstrating the Employer’s and Un-
ion’s mutual understandings regarding what constitutes
“discipline.” Along these lines, the Employer introduced
into evidence the two collectively-bargained progressive
discipline policies, which were part of the collective-
bargaining agreements; the record includes an ROR doc-
umenting an instance of counseling imposed as progres-
sive discipline; and two road supervisors testified about
the progressive discipline policies and their authority to
impose progressive discipline. For example, in response
to a question about whether disciplinary counseling is
part of a progressive discipline policy, Road Supervisor
Jackson testified:
Yeah, it’s something we can exercise judgment on and
it can be because, for instance, me being a supervisor
and that’s how I’m viewed from a driver, when I go
out, say I see that driver again . . . then the next situa-
tion wouldn’t be a verbal. It would be something I
would write down, you know, and that would go into
their file.13
As I have previously explained, the Board should not
disregard unrebutted evidence “merely because it could
have been stronger, more detailed, or supported by more
specific examples.” Buchanan Marine, 363 NLRB No.
58, slip op. at 9 (Member Miscimarra, dissenting); see
also WSI Savannah River Site, 363 NLRB No. 113 slip
op. at 5 (2016) (Member Miscimarra, dissenting).
Among other things, this practice creates the appearance
that the Board may be “rejecting evidence that does not
support the Board’s preferred result.” Id. (quoting Spen-
tonbush/Red Star Cos. V. NLRB, 106 F.3d 484, 490 (2d
Cir. 1997)). The Employer’s unrebutted evidence, de-

13 Tr. at 78.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scribed above, establishes that the road supervisors im-
pose discipline on employees in accordance with pro-
gressive disciplinary policies maintained by the Employ-
er. Accordingly, because the road supervisors are statu-
tory supervisors, I believe the Regional Director properly
dismissed the representation petition.
As a final matter, I have previously criticized the
Board’s application of the framework for analyzing su-
pervisory issues as increasingly abstract and out of touch
with the practical realities of the workplace. Buchanan
Marine, L.P., 363 NLRB No. 58, slip op. at 4 (2015)
(Member Miscimarra, dissenting from majority’s finding
that tug boat captains were not statutory supervisors).
See also Veolia I, 363 NLRB No. 98, slip op. at 13–14
(Member Miscimarra, dissenting); G4S Government So-
lutions, Inc., 363 NLRB No. 113, slip op. at 6–7 (2016)
(Member Miscimarra, dissenting). As indicated in Bu-
chanan Marine and other cases (including Veolia I), I
believe the Board in every situation involving disputed
supervisor status should take into account three common
sense factors: (i) the nature of the employer’s operations,
(ii) the work performed by undisputed statutory employ-
ees, and (iii) whether it is plausible to conclude that all
supervisory authority is vested in persons other than
those whose supervisory status is in dispute.14 I have
explained: “In plain English, this final factor essentially
asks ‘if one accepts the Board’s finding that the disputed
employees are not supervisors, does that produce a ridic-
ulous, ludicrous or illogical result—for example, where
nobody has the authority to hire, discharge, discipline,
assign, or direct employees (or to exercise the other indi-
cia of supervisory authority set forth in Section
2(11)?’”15 In other words, the Board is responsible for
applying “the general provisions of the Act to the com-
plexities of industrial life.”16 These “complexities” in-
clude the reality that most businesses cannot operate, and
many business functions cannot be performed, unless a

14 I first articulated these factors in Cook Inlet Tug & Barge, Inc.,
362 NLRB No. 111, slip op. at 5 fn. 9 (2015) (Member Miscimarra,
dissenting), in which the Board majority held, over my dissent, that
tugboat captains failed to qualify as statutory supervisors. As I ex-
plained in my dissent in Buchanan Marine, these factors do not com-
prise a new test for supervisory status, but rather constitute a guide to
how the Board should apply the indicia of supervisory status that Con-
gress listed in Section 2(11). Buchanan Marine, L.P., 363 NLRB No.
58, slip op. at 10 (Member Miscimarra, dissenting) (emphasis in origi-
nal). See also Veolia I, 363 NLRB No. 98, slip op. at 13–14 (Member
Miscimarra, dissenting); G4S Government Solutions, Inc., 363 NLRB
No. 113, slip op. at 6–7 (2016) (Member Miscimarra, dissenting).
15 Buchanan Marine, L.P., 363 NLRB No. 58, slip op. at 10 (Mem-
ber Miscimarra, dissenting) (emphasis in original).
16 NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963) (citation
omitted). See also NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266–267
(1975) (“The responsibility to adapt the Act to changing patterns of
industrial life is entrusted to the Board.”).
reasonable number of people exercise supervisory au-
thority regarding a particular facility, shift or function.
I believe the above factors reinforce the other record
evidence that establishes the existence of 2(11) authority
for the road supervisors in the instant case. Regarding
the first and second factors—the “nature of the employ-
er’s operations” and the “work performed by undisputed
statutory employees”—there is no dispute: the employer
is responsible for van operations that include approxi-
mately 600 van operators who drive throughout the met-
ropolitan Washington DC area, which also encompasses
portions of Maryland. Regarding the third factor—
”whether it is plausible to conclude that all supervisory
authority is vested in persons other than those whose
supervisory status is in dispute”—I believe the majority’s
finding fails the “test of common sense.”17 As noted
previously, a finding that none of the road supervisors
possess 2(11) authority means the Employer has approx-
imately 615 employees whose jobs involve driving
throughout a large metropolitan area, and nobody in the
field has any authority regarding “discipline” (nor do
they exercise any of the other types of Section 2(11) su-
pervisory authority), except perhaps for ten “safety and
training supervisors” whose 2(11) supervisory status re-
mains in question.18 Based on my colleagues’ findings,
the roughly 615 statutory employees would be super-
vised exclusively by four people (the Project Manager,
the Operational Director, and two Operational Managers,
producing a ratio of more than 150 employees per super-
visor) or by 14 people (the foregoing individuals plus the
10 “safety and training supervisors,” producing a ratio of
more than 40 employees per supervisor). In either case,
as the Regional Director properly found, a finding that
the road supervisors are statutory employees “would ap-
pear to leave operators with little if any oversight
throughout the day,” which I believe is unreasonable
considering the record evidence in this case. See also
Formco, Inc., 245 NLRB 127, 128 (1979) (finding that
ratios of 30-to-1 and 70-to-1 were disproportionately
high and supported a finding that disputed leadmen were
statutory supervisors ineligible to vote in election).
For these reasons, I believe the record supports the
Regional Director’s finding that the lead road supervisors

17 Buchanan Marine, 363 NLRB No. 58, slip op. at 10 (Member
Miscimarra, dissenting).
18 See fn. 5 supra.
VEOLIA TRANSPORTATION SERVICES, INC. 15
and road supervisors are statutory supervisors under Sec-
tion 2(11), and I believe the Board should affirm the Re-
gional Director’s dismissal of the election petition. Ac-
cordingly, I respectfully dissent.
Dated, Washington, D.C. May 12, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD