Veolia Transportation Services, Inc.

National Labor Relations Board - Board Decisions

Jan 20, 2016

363 NLRB No. 98 (N.L.R.B. 2016)

363 NLRB No. 98
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. and Amalgamat-
ed Transit Union, Local 1637, AFL–CIO, Peti-
tioner. Case 28–RC–071479
January 20, 2016
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On February 2, 2012, the Regional Director for Region
28 issued a Decision and Order, in which he found that a
petitioned-for unit of all full-time and part-time road su-
pervisors at the Employer’s Las Vegas, Nevada facilities
was inappropriate. He concluded that the road supervi-
sors possess the authority to discipline and reward and
therefore are supervisors within the meaning of Section
2(11) of the Act. Thereafter, in accordance with Section
102.67 of the Board’s Rules and Regulations, the Peti-
tioner filed a timely request for review. The Petitioner
contends that the Regional Director erred in finding that
road supervisors are supervisors within the meaning of
Section 2(11). The Employer filed an opposition.
On March 19, 2012, the National Labor Relations
Board granted the Petitioner’s request for review. There-
after, the Employer filed a brief 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 Employer’s brief on re-
view.1 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 supervi-
sors are supervisors within the meaning of Section 2(11).
Facts
The Employer operates a public bus transportation sys-
tem in the greater Las Vegas area that provides fixed-
route transportation services. As part of its operations,
the Employer employs about 750 coach operators on
three shifts. The Petitioner currently represents the coach
operators (operators), and now seeks to represent a unit
of the Employer’s approximately 40 road supervisors.2
The Employer’s Las Vegas operation is overseen by
General Manager Larry Kucera, who reports to the Em-
ployer’s project manager/regional vice president. The

1 The Petitioner did not file a brief on review.
2 Road supervisors have, in the past, been known as transit supervi-
sors and/or transit services supervisors. Road supervisors are also
referred to as yard, gate, or terminal supervisors when they are assigned
to these areas during their shifts.
director of transportation (vacant at the time of the hear-
ing) reports to Kucera. Trevor Halleran, the field super-
vision manager, also reports to Kucera, as does Ryan
Neale, the Bus Operations Center (BOC) manager,3 and
the safety and training manager.4 Neale supervises the
communications senior supervisors (also known as the
senior BOC supervisors), who in turn supervise the radio
operators and dispatchers. Halleran supervises the senior
road supervisors (including Kenneth Green) and the ad-
ministrative senior supervisors (including Barry Gold-
smith and Mark Bailey).5 The senior road supervisors
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).
As one of their primary duties, road supervisors ob-
serve operators in the field and ensure that the operators
are following the Employer’s various rules, policies, and
procedures. When a road supervisor observes a coach
operator committing an infraction, the road supervisor is
expected to fill out an observation notice (OBN); road
supervisors have discretion to forego filling out an OBN
and may simply talk to the operator about the infraction.
In filling out an OBN, the road supervisor records the
operator’s information, as well as the date, time, and lo-
cation of the observed infraction, and provides a brief
narrative of what the road supervisor witnessed. The
road supervisor may or may not obtain the operator’s
signature, depending on the situation. The OBN does not
prompt the road supervisor to recommend that any action
be taken against the operator, nor are there any examples
of road supervisors making such a recommendation.
Further, road supervisors ordinarily have no knowledge
of an operator’s disciplinary history. After filling out an
OBN, the road supervisor submits it to the night opera-
tions assistant manager, who forwards it to an adminis-
trative senior supervisor. The administrative senior su-
pervisor is responsible for administering all discipline to
operators. In making that determination, they consult the
operator’s disciplinary record and—based on that rec-
ord—decide what (if any) level of discipline to impose.
If the OBN is connected to an accident or incident, the

3 The Employer’s organizational chart indicates that the BOC man-
ager is also referred to as the manager of CATCOM, but Neale usually
referred to himself as the BOC manager.
4 The Employer’s organizational chart refers to this position as the
manager of training, but the Employer’s witnesses referred to the posi-
tion as the safety and training manager. As noted below, the safety
department plays an important role in discipline related to accidents.
5 It appears that the administrative senior supervisors and senior road
supervisors are collectively referred to as senior operations supervisors
or just senior supervisors. The senior road supervisors are also referred
to as field senior supervisors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
administrative senior supervisor reviews the associated
accident or incident report.6 The record contains exam-
ples of OBNs that have led to a coaching,7 verbal warn-
ing, written warning, or suspension for the operator in-
volved.8 The administrative senior supervisor can also
choose to discard the OBN.
The administrative senior supervisor meets with the
operator to review each OBN. During these meetings,
operators are allowed to present their version of events,
which the administrative senior supervisor typically rec-
ords on the OBN. At the end of the meeting, the admin-
istrative senior supervisor obtains the operator’s signa-
ture for the OBN (if not already obtained by the road
supervisor). If the OBN results only in a coaching, the
fact that coaching took place is usually noted on the
OBN. If the OBN leads to more than a coaching, the
administrative senior supervisor will generate a discipli-
nary notice and ask the operator to sign it. The discipli-
nary notice indicates the nature of the violation, what
specific work rule or policy was violated, who witnessed
the violation, what and when corrective action must be
taken, the consequences for failing to take corrective
action, and the operator’s previous violations (if any).
The disciplinary notice also contains a series of check
boxes to indicate the disciplinary action being taken (the
OBN does not contain such check boxes). The record
contains 27 examples of disciplinary notices issued over
a 9-year period, and although most of these notices have
similar formats, there are 6 variations with different
check box options for the disciplinary action taken.9

6 The BOC apparently generates these reports. The night operations
assistant manager informs the administrative senior supervisor when
the OBN is connected to an incident or accident.
7 The record contains several OBNs that resulted in “counseling,” as
opposed to coaching. Halleran testified that counseling and coaching
are interchangeable terms. In the absence of any evidence clearly dis-
tinguishing coaching from counseling, we assume, for the purposes of
this decision, that the two terms are in fact interchangeable.
8 As discussed below, an OBN may also lead to a termination, but
there are no examples of an OBN resulting in a termination. (There is
one OBN which indicates that the operator at issue was terminated, but
it does not appear that the termination was based on the OBN in ques-
tion.) In addition to these levels of discipline, operators have received a
“condition of employment,” under which the operator is subject to
termination if he or she commits the same type of infraction within a
certain period of time.
9 The variations are as follows. Version 1 (16 examples): boxes for
verbal warning, written warning, suspension, condition of employment,
and termination. Version 2 (five examples): counseling, written warn-
ing, suspension, condition of employment, termination. Version 3 (two
examples): verbal warning, final warning, suspension, condition of
employment, and termination. Version 4 (two examples): counseling,
final warning, suspension, condition of employment, and termination.
Version 5 (one example): counseling, verbal warning, suspension,
condition of employment, and termination. Version 6 (one example):
verbal warning, written warning, suspension, and final warning.
Significantly, 19 of the forms do not include “counsel-
ing” as a disciplinary option. The record contains no
explanation for these variations, nor does there appear to
be any discernible pattern to when a particular variation
is used.10 There are no examples of disciplinary notices
on which “counseling” has been checked, and Adminis-
trative Senior Supervisor Goldsmith testified that disci-
plinary notices are not issued when an OBN results in
coaching or counseling.
After the administrative senior supervisor meets with
the operator, the administrative senior supervisor com-
pletes a disposition notice, which indicates the outcome
of the OBN. Using a grid, the administrative senior su-
pervisor can indicate that the operator was coached, giv-
en a verbal or written warning, suspended, or terminated.
There is also a space where the administrative senior
supervisor can indicate that the OBN was discarded and
set forth the reasons for discarding the OBN. A com-
pleted disposition notice is sent to the road supervisor
who initiated the OBN. The details of the OBN and its
result are entered into a database,11 and the OBN and
disciplinary notice (if any) are placed in the operator’s
personnel file. There are about 176 examples of inci-
dents that resulted in an OBN and/or a further document
(disciplinary or disposition notice) in the record. Of the-
se, about 113 resulted in counseling; for another 29, the
outcome of the OBN is not clear, but it does not appear
to have resulted in any discipline higher than coaching.
The remaining 44 OBNs resulted in some form of disci-
pline beyond coaching. In addition, the spreadsheet
printed from the OBN database records 1170 OBNs. Of
these, 98 had no recorded outcome, at least 715 resulted
in coaching or counseling, and 260 resulted in a verbal
warning, written warning, or suspension.12
Although the foregoing facts are uncontested (or, in
the case of the variations among disciplinary notices,
unexplained), there is conflicting evidence regarding the
precise role of OBNs in the Employer’s disciplinary sys-

10 For example, there are seven disciplinary notices from 2011. Of
these, five use version 1, two use version 2, and one uses version 6.
Although version 2 is used on the two most recent disciplinary notices
(dated December 6 and 12, 2011), the remaining examples of its use are
from 2009. The different variations do not appear to be tied to particu-
lar types of violations: a 2009 disciplinary notice for a late pull-out uses
version 2, whereas a 2011 disciplinary notice for a late pull-out uses
version 1.
11 The administrative senior supervisors consult this database to as-
certain an operator’s disciplinary history. The record contains a
spreadsheet printed from this database that shows all OBNs issued in
2010 and 2011.
12 Another 83 resulted in an outcome noted as “D.” None of the wit-
nesses could state what “D” stood for. Of the remaining 15 OBNs, 14
resulted in an outcome recorded as “CL” and one in an outcome rec-
orded as “Sw,” neither of which is explained in the record.
VEOLIA TRANSPORTATION SERVICES 3
tem, as well as the exact nature of the disciplinary system
itself. Regarding OBNs, BOC Manager Neale claimed
that an OBN submitted by a road supervisor constitutes
discipline, but Senior Road Supervisor Green (who, like
Neale, testified for the Employer) stated that an OBN is
not formal discipline, merely documentation of some-
thing that the road supervisor observed. The three cur-
rent road supervisors who testified for the Petitioner all
agreed with Green.13 With respect to coaching, the Em-
ployer’s witnesses testified that coaching is regarded as
discipline and is the first step in a progressive discipli-
nary policy. By contrast, former operator Jeff Raske
claimed that during a coaching session several years be-
fore, Goldsmith told him that coaching was not discipline
and would not lead to discipline. Similarly, operator
William Farmer testified when he has been coached—
including on one occasion about a year before the hear-
ing—he too was advised that coaching and counseling
are not discipline. Consistent with Raske and Farmer’s
testimony, the collective-bargaining agreement that co-
vers the operators states that discipline “is defined as the
issuance of an adverse entry into the personnel record of
the employee of a written warning, suspension or termi-
nation.”14 The collective-bargaining agreement refers to
“counseling” as discipline only with respect to attend-
ance infractions, and it is undisputed that road supervi-
sors are not involved in attendance-based discipline.
Elin Fehr, the Employer’s human resources manager,
also testified that when the Petitioner has requested all
instances of discipline for a particular operator, the Em-
ployer does not turn over OBNs.15
The record contains various references to the Employ-
er’s “progressive” disciplinary policy, both in witness
testimony and in several documents.16 But there is no

13 Road Supervisor Susan Thomas also testified that OBNs are not
used solely for recording operator infractions, but can also be used to
document anything out of the ordinary, such as low hanging branches,
potentially dangerous conditions at a bus stop, or other possible hazards
along a bus route. The transit services supervisor procedures manual,
which applies to the road supervisors, does not use the word “disci-
pline” to describe OBNs, but instead states that an OBN “is a tool for
behavioral change” that is used to “document violations.”
14 This statement is contained in the grievance procedures set forth in
the collective-bargaining agreement.
15 Fehr further testified that “[w]e . . . supplied written suspensions,
[conditions of employment]. . . . We haven’t supplied the observation
notices. I don’t know why. I can’t answer the question why, but we
haven’t supplied that when they have requested” discipline. Fehr stated
that OBNs are turned over when the Petitioner requests an employee’s
personnel file, as opposed to discipline.
16 For example, road supervisors are rated on their understanding of
“progressive discipline” on their performance evaluations. On a self-
assessment, road supervisor Marcella Jackson indicated a desire for
more training in “progressive discipline.” Many of the disciplinary
notices state that an operator’s failure to correct the offending behavior
progressive disciplinary policy set forth in the Employ-
er’s handbook for represented employees, the road su-
pervisor handbook, or the Employer’s policies and pro-
cedures. The operators’ collective-bargaining agree-
ment does contain a progressive policy for attendance
infractions, but this is a stand-alone policy and the road
supervisors do not enforce attendance-based rules. Sig-
nificantly, the collective-bargaining agreement does not
set forth a comparable, progressive system for other
types of infractions. Instead, it simply states—as noted
above—that “[d]iscipline is defined as the issuance of an
adverse entry into the personnel record of the employee
of a written warning, suspension, or termination.” The
employee handbook that applies to operators contains a
list of “serious” offenses and states that all such offenses
“provide cause for immediate discharge.” Among oth-
ers, the handbook lists failure or refusal to follow super-
visor instructions, discourteous or rude conduct, and “vi-
olation or disregard of a posted written, verbal or known
. . . rule, policy, or procedure” as serious offenses. Nev-
ertheless, Neale and Administrative Senior Supervisor
Bailey both stated that discipline is progressive and testi-
fied that upon receiving an OBN, the administrative sen-
ior supervisor simply consults the operator’s disciplinary
history and based on that history issues whatever level of
discipline is appropriate. According to Neale, the steps
in the progressive policy are counseling, verbal warning,
written warning, suspension, and termination. Goldsmith
also testified that discipline is progressive, but he indi-
cated that he has latitude in determining what level to
impose. He stated that when he receives an OBN, he
will “look up where we are at in the computer [with re-
spect to the operator’s disciplinary history], and then
whatever I have decided, whether it is a coaching or a
verbal or a written, then I would issue it” (emphasis add-
ed). Goldsmith provided an example where upon receiv-
ing an OBN and consulting the operator’s history, he
concluded that the operator had engaged in a pattern of
“excessive” violations and that a 1-day suspension was
appropriate, although he could have recommended ter-
mination or imposed a verbal warning.
In addition, there is evidence that discipline is not im-
posed in a consistent fashion. The spreadsheet summa-
rizing OBNs from 2010 and 2011 appears to contain nu-
merous examples of operators committing the same
number of similar infractions, yet receiving different
levels of discipline. For example, there are at least 12
examples of operators receiving coaching for what is
listed as their second late pull-out violation, but there are

will result in “progressive discipline.” And all of the Employer’s wit-
nesses testified that the Employer uses progressive discipline.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
also at least 8 examples of operators receiving verbal
warnings for a second late pull-out and 1 example of an
operator receiving a written warning. Likewise, although
most coach operators appear to have received a verbal
warning for their third late pull-out, there are also exam-
ples of operators receiving a coaching or written warning
for the third late pull-out.17 For other types of violations,
certain operators received only coachings despite repeat-
ed violations: one operator received coachings for her 7th
through 13th fare box policy violations, while another
received coaching for his 10th excessive dwell violation.
There is no testimony explaining these apparent incon-
sistencies in how similarly situated operators were treat-
ed with respect to the level of discipline imposed.18 The
individual OBNs and disciplinary notices in evidence
similarly indicate that discipline is not consistently ad-
ministered in a progressive fashion: for example, there
are multiple instances of an operator receiving a written
warning for what is expressly described as a first viola-
tion. There is also an example of one operator (with no
previous violations) receiving a suspension for using an
electronic device while operating a company vehicle, but
another operator (also apparently with no previous viola-
tions) received a verbal warning for the same type of
infraction.19
There is also inconsistent testimony as to whether ad-
ministrative senior supervisors independently investigate
OBNs submitted by road supervisors. All three current
road supervisors who testified denied that they recom-

17 Further, there is an example of one operator receiving verbal
warnings for his second through fifth late pull-out violations, another
receiving verbal warnings for his second through fourth violations and
written warnings for his fifth through eighth violations, a third receiv-
ing a coaching for his second violation but written warnings for his
third through sixth, and a fourth receiving coachings until receiving a
verbal warning for his sixth. Yet another operator received a suspen-
sion for her fourth late pull-out. And in several instances, operators
were coached for their second late pull-out but received a written warn-
ing for the third.
18 The spreadsheet also seems to contradict several of the Employ-
er’s purported “zero-tolerance” policies. Goldsmith testified that there
is such a policy for cell-phone use; although the spreadsheet indicates
that many violations of this policy often result in suspensions, there are
also examples of less severe discipline imposed for what are listed as
cell-phone violations. Similarly, the handbook for road supervisors
states that there is a zero-tolerance policy for coach operators running
“hot” (i.e., ahead of schedule), but the spreadsheet contains many ex-
amples of running hot violations resulting in coaching, verbal warnings,
or written warnings.
19 The operator who received a verbal warning for using an electron-
ic device received that warning less than 2 months after the operator
received a suspension for the same type of violation. Although both
examples took place in early 2009, the Employer does not contend that
it has modified its disciplinary policy since that time. In 2005, another
operator (again with no prior violations) received a written warning for
using an electronic device.
mend discipline by submitting an OBN. Jackson testi-
fied that she had never recommended discipline and did
not know if her OBNs were independently investigated.
Thomas similarly claimed that she had not used OBNs to
recommend discipline, and stated that OBNs led to disci-
pline only after an administrative senior supervisor in-
vestigated the underlying incident. And Road Supervisor
Ila Myers maintained that her OBNs merely report what
she has seen and that the reviewing administrative senior
supervisors decides whether to impose discipline “100%”
of the time. By contrast, Neale, Goldsmith, and Bailey
stated that they accepted OBNs as written, did not inde-
pendently investigate them, and simply imposed the ap-
propriate level of discipline based on the operator’s dis-
ciplinary history. That said, Neale admitted that he in-
vestigates OBNs that “seem[] a little strange” and that he
might discard an OBN that was incorrectly written or
failed to provide enough data. Neale also stated that
when an operator’s version of events differed from what
was recorded on the OBN, he might take that “into con-
sideration” and might accept the operator’s account if the
OBN was “totally crazy” or “defective.” Similarly, Bai-
ley indicated that he has discarded OBNs, albeit rarely,
and that he will listen to operators’ side of the story when
he meets with them, although he denied having any in-
tention to solicit an operator’s side of the story going into
the meeting. Goldsmith testified that he listens to the
operator’s version of events when offered, that such ex-
planations “matter,” but that he always accepts the road
supervisor’s account and never credits the operators. But
at the same time, Goldsmith also stated that he may devi-
ate from an OBN because there are times when the road
supervisor “does not get the knowledge that I will get
during the course of interacting with” the operator.
Goldsmith said these situations are “very rare” and, like
Bailey, denied actively seeking such additional
knowledge when meeting with operators. Yet Goldsmith
also admitted that he has an “open door” policy and that
one reason for the policy “could be” to gain information
a road supervisor did not have when issuing an OBN.
Also, as noted above, Goldsmith indicated that he exer-
cises some discretion in deciding the outcome of an
OBN.
Aside from issuing OBNs, road supervisors may take
action if they suspect an operator is under the influence
of drugs or alcohol. In such situations, road supervisors
may pull the bus over or call for a substitute bus to take
over the operator’s route. It is not clear, however,
whether a road supervisor requires prior authorization to
take these actions. Thomas and Jackson both stated that
they can pull buses over for unsafe driving, but that they
must first clear this with the BOC. Myers testified that
VEOLIA TRANSPORTATION SERVICES 5
she can pull an operator over, but having done so she
must call the BOC, and at that point either the BOC or
the safety department decides what to do with the opera-
tor. Myers also specified that road supervisors do not
have the independent authority to remove an operator
from a route, and also indicated that when a road super-
visor suspects that an operator is under the influence, a
dispatcher or senior supervisor must confirm the road
supervisor’s suspicion before the operator is removed
from the route. By contrast, Neale claimed that road
supervisors can pull over operators for erratic driving and
put a substitute bus on the route, but Neale also agreed
that road supervisors must contact the BOC when they
suspect an operator is under the influence of alcohol or
drugs. Finally, Green testified that a road supervisor can
“arrange” to have an operator pulled from a route be-
cause of significant safety violations, but he offered no
specifics. None of this testimony indicates how, if at all,
such actions by road supervisors lead to discipline.
The BOC also dispatches a road supervisor whenever a
bus is involved in an accident. Upon arriving at the sce-
ne, the road supervisor ensures that the operator, passen-
gers, and anyone else involved in the accident are safe.
The road supervisor then investigates the accident by
taking witness statements, noting damage to the vehicles
involved, taking measurements, and photographing rele-
vant physical details. As part of the investigation, the
road supervisor completes various forms in an accident
packet, including an accident remediation form and a
substance abuse decision document. According to Neale,
road supervisors are empowered to excuse operators
from drug and alcohol testing, and by virtue of the reme-
diation form a road supervisor also determines whether
the operator was at fault. The substance abuse decision
document, however, contains defined criteria for whether
an operator is subject to drug and alcohol testing.20 The
remediation form allows the road supervisor to advise the
operator on ways to avoid a similar accident in the fu-
ture, but the remediation form does not call on the road
supervisor to determine who was at fault in the accident;
it advises the operator that discipline may follow if the
safety department decides that the accident was prevent-
able. The master checklist for the accident kit contains a
space for deeming the accident preventable or not, but
the checklist specifies that this determination is made by
the safety department. Aside from Neale, the Employ-
er’s witnesses were clear that accidents only result in

20 Although the document calls on the road supervisor to determine
whether the operator contributed to the accident, the document requires
testing only if certain nondiscretionary criteria are present (e.g., the
accident resulted in a fatality, certain types of injury, or a towed vehi-
cle).
discipline if they are deemed preventable. Although
there is testimony suggesting that the safety department
relies on the accident investigation kit completed by the
road supervisor in reaching its preventability determina-
tion, no one from the safety department testified. The
Employer’s witnesses further indicated that the safety
department consults video from the accident (when
available) in reaching its determination. The record also
contains testimony from a prior arbitration hearing in
which Senior Supervisor Kelvin Manzanares stated that
the safety department uses certain criteria to determine
whether the accident was preventable. Goldsmith essen-
tially corroborated this testimony, stating that neither the
road supervisors nor the administrative senior supervi-
sors were “educated” in how to make a preventability
determination.
Although OBNs are most often used to document op-
erator infractions, they also can be used to document
exemplary behavior. A positive OBN is referred to as a
“pat on the back” (POB). A POB uses the same form as
the OBN, and is likewise submitted to the night opera-
tions assistant manager, who forwards it to an adminis-
trative senior supervisor. The administrative senior su-
pervisor discusses the POB with the operator and fills out
a disposition notice indicating on behalf of the particular
road supervisor that the operator was thanked. The POB
is then placed in the operator’s personnel file, but it does
not result in any further reward or recognition.21 POBs
may reflect favorably on operators who apply for a high-
er position within the Company, but POBs do not, by
themselves, lead to any sort of promotion; indeed, there
are no promotions available for operators.22
A POB may, however, double as a nomination for an
“On-the-Spot” (OTS) award. OTS award recipients re-
ceive a certificate, a plaque, and $100. There is a sepa-
rate nomination form for the OTS award, which states
the nominations should be made “on behalf of employees
who demonstrate exemplary execution of personal skills
in line with going above and beyond skills required for
their job in accordance with their job description.” There
is one example of an OTS award in the record. In that
instance, the operator assisted a distressed man wander-
ing in the street; it later turned out that this was a missing
person, and the operator’s actions reunited him with his
family. Road Supervisor Myers issued the operator a
POB, and in doing so recommended that the operator be
considered for an OTS award. A communications senior

21 Two witnesses testified that an operator who received a POB may
also receive a pin or a pen, but there is no indication how often or under
what circumstances such tokens are bestowed on POB recipients.
22 The only opportunity for advancement is for an operator to apply
for another position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
supervisor filled out and submitted the OTS nomination
form, and the operator received the award. Myers testi-
fied that she did not know who decided to give the
award, that she did not know how that decision was
reached, and that she had no input beyond her initial rec-
ommendation.23 Neale was the only other witness to
testify about OTS awards in any detail, and although he
claimed that road supervisor recommendations for OTS
awards are “adopted,” he admitted that not every nomi-
nee receives the award. Like Myers, he also testified that
he did not know who decided whether to give the award.
The Regional Director’s Decision
The Regional Director found that road supervisors
possess the authority to effectively recommend discipline
by issuing OBNs because they use independent judgment
in deciding whether or not to complete an OBN, and be-
cause OBNs almost always result in some form of disci-
pline. On this basis, the Regional Director found that
OBNs constitute the “integral first step” in the Employ-
er’s progressive disciplinary policy. The Regional Direc-
tor also found that the OBNs, prepared by the road su-
pervisors, are accepted as true and are not independently
investigated by the administrative senior supervisors,
who determine only the appropriate level of discipline to
impose. The Regional Director further found that road
supervisors possess the authority to discipline operators
because they can remove operators from their routes
without prior authorization from upper management
when they suspect the operator is impaired.
In addition, the Regional Director found that road su-
pervisors possess the authority to effectively recommend
reward by issuing POBs. Specifically, the Regional Di-
rector found that although POBs do not always lead to
OTS awards, road supervisors exercise independent
judgment in issuing POBs, there is a “direct link” be-
tween POBs and OTS awards because POBs are the sole
means by which an operator can be nominated for an
OTS award, and OTS awards “directly affect the wages”
of recipients. The Regional Director also determined
that various secondary indicia of supervisory status sup-
port the conclusion that road supervisors are supervisors
within the meaning of Section 2(11).
Position of the Parties
The Petitioner argues that the road supervisors do not
possess the authority to discipline, reward, or effectively
recommend either discipline or reward. Regarding disci-
pline, the Petitioner contends that coaching and counsel-
ing are not discipline and that the administrative senior

23 Myers also indicated that this OTS nomination is the only such
nomination she has ever made.
supervisors independently investigate OBNs. In this
respect, the Petitioner primarily relies on DirecTV, 357
NLRB No. 149 (2011), which it claims the Regional Di-
rector improperly distinguished. The Petitioner also ar-
gues that although road supervisors can pull over opera-
tors suspected of driving under the influence, the BOC
must approve such actions and also determines what to
do with the operator. More generally, the Petitioner con-
tends that the Regional Director ignored conflicting evi-
dence and accepted conclusory testimony, thereby failing
to hold the Employer to its evidentiary burden. Regard-
ing reward, the Petitioner argues that the OTS award
cannot establish supervisory authority because it does not
affect pay or result in a merit wage increase, and that in
any event there is no “direct connection” between a POB
and OTS award.
The Employer agrees with the Regional Director’s
findings. Regarding discipline, the Employer argues that
several cases support the Regional Director’s determina-
tions. See Sheraton Universal Hotel, 350 NLRB 1114
(2007); Mountaineer Park, Inc., 343 NLRB 1473 (2004);
Progressive Transportation Services, Inc., 340 NLRB
1044 (2003).24 Further, the Employer maintains that
coaching and counseling constitute discipline, that road
supervisors directly discipline operators by issuing
coachings in the field, and that coaching and counseling
are the first step in its progressive disciplinary policy.
The Employer adds that OBNs constitute disciplinary
recommendations and denies that they are independently
investigated. The Employer also asserts that road super-
visors effectively recommend discipline by completing
accident reports. Regarding the road supervisors’ alleged
authority to reward, the Employer agrees with the Re-
gional Director’s findings and contends that the criteria
for establishing the authority to reward is not as narrow
as the Petitioner argues. Finally, the Employer cites a
number of cases in which the Board has found that em-
ployees with the job title of “road supervisor” are statuto-
ry supervisors.25

24 The Employer also cites a decision in which an administrative law
judge found that three “road supervisors” possessed the authority to
discipline. The Board subsequently reversed those findings. See Lucky
Cab Co., 360 NLRB No. 43, slip op. at 1–3 (2014).
25 In its posthearing brief to the Regional Director, the Employer also
argued that road supervisors effectively recommend hiring of operators.
The Regional Director did not address this argument. Although the
Employer’s subsequent filings incorporate the posthearing brief by
reference, the Employer has not specifically renewed this contention to
the Board, so this argument is not before us. But even were the argu-
ment is properly before us, our review of the record demonstrates that
the hiring process that ostensibly involves road supervisor recommen-
dations was instituted shortly before the hearing, and at the time of the
hearing no operators had yet been hired as a result of the sole interview
panel on which a road supervisor participated. Thus, the Employer has
VEOLIA TRANSPORTATION SERVICES 7
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.26
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, Inc., 348 NLRB 686, 694
(2006) (citing NLRB v. Kentucky River Community Care,
Inc., 532 U.S. 706, 711–712 (2001)). The party seeking
to prove supervisory status must establish it by a prepon-
derance of the evidence. Id. Purely conclusory evidence
does not satisfy that burden. Lynwood Manor, 350
NLRB 489, 490 (2007). 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 proven where the record evi-
dence “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 independent investiga-
tion by upper management. See Sheraton Universal,
supra, 350 NLRB at 1116 (“Contrary to the judge’s
speculation, nothing in the record suggests that upper
management conducted an independent investigation
before deciding to impose discipline. . . .”); Beverly
Health & Rehabilitation Services, Inc., 335 NLRB 635,
669 (2001), enfd. in pertinent part 317 F.3d 316 (D.C.
Cir. 2003). Warnings that simply bring substandard per-
formance to the employer’s attention without recommen-
dations for future discipline serve nothing more than a
reporting function, and are not evidence of supervisory
authority. See Williamette Industries, Inc., 336 NLRB

not established that road supervisors effectively recommend hiring,
because there is no way to assess whether any hiring recommendation
was independently investigated. The Employer did not advance any
other contention regarding the remaining indicia of supervisory authori-
ty in Sec. 2(11).
26 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.” For the reasons set forth in Bu-
chanan 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 enumerated indicia of supervisory
status set forth in Sec. 2(11).
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 authority determined what, if any,
discipline was warranted); 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, with-
out more, too minor a disciplinary function to constitute
supervisory authority. See Vencor Hospital-Los Angeles,
328 NLRB 1136, 1139 (1999); Ohio Masonic Home, 295
NLRB 390, 394 (1989).
Contrary to the Regional Director and our dissenting
colleague, we find that the Employer has failed to carry
its burden of proving that road supervisors discipline
operators, or effectively recommend their discipline,
within the meaning of Section 2(11) of the Act. More
specifically, we do not agree with the Regional Direc-
tor’s findings that coaching and counseling constitute
discipline, that the Employer uses a progressive discipli-
nary policy, or that the Employer has established that
OBNs almost always lead to discipline without an inde-
pendent investigation by higher management.
To begin, the Employer has not established that road
supervisors discipline operators. Although Neale
claimed that the mere issuance of an OBN constitutes
discipline, no other witness corroborated this testimony
and several flatly contradicted it, including one of the
Employer’s own witnesses. The conflicting nature of
this testimony alone counsels against a finding that issu-
ing OBNs constitutes discipline. See Phelps Community
Medical Center, supra at 490.27 Moreover, as discussed
fully below, the OBNs are merely reportorial; they con-
tain a description of what the road supervisors observed
and do not contain any recommendation of discipline.
Finally, because the OBNs do not constitute discipline,
we reject the Regional Director’s and the dissent’s con-
tention that the road supervisors’ determination whether
to issue an OBN is evidence of supervisory authority.
Similarly, the Employer has not established that coach-
ing and counseling constitute discipline. Although the
Employer’s witnesses stated that coaching and counsel-
ing are regarded as discipline, both Farmer and Raske
testified they had been told coaching and counseling
were not discipline. The relevant documentary evidence
supports Farmer and Raske. The provision in the collec-
tive-bargaining agreement covering the operators that

27 The fact that there is a disciplinary notice separate from the OBN,
and the undisputed fact that not every OBN results in a disciplinary
notice, also casts serious doubt on the Employer’s argument.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
defines discipline does not include coaching or counsel-
ing. Counseling only appears as a disciplinary option on
certain variations of the Employer’s disciplinary notice,
and there are no examples of disciplinary notices being
issued in conjunction with coaching or counseling.28 On
this last count, Goldsmith stated that coaching and coun-
seling do not result in disciplinary notices. Fehr testified
that when the Petitioner requests an operator’s discipline,
the Employer does not turn over OBNs.29 For all of the-
se reasons, the Employer has not established that coach-
ing and counseling constitute discipline. As such, the
fact that the road supervisors can issue coaching and
counseling in the field also does not establish that the
road supervisors possess the authority to discipline.30
Next, the Employer has not established that its disci-
plinary system is progressive. The Regional Director
appears to have simply accepted witness testimony de-
scribing the system as progressive, but in doing so he did
not hold the Employer to its evidentiary burden. A warn-
ing may qualify as disciplinary within the meaning of
Section 2(11) if it “automatically” or “routinely” leads to
job-affecting discipline, by operation of a defined pro-
gressive disciplinary system. See Oak Park Nursing
Care Center, 351 NLRB 27, 30 (2007) (finding employ-
ee counseling forms disciplinary, where each form corre-
sponded to a step in the employer’s progressive discipli-
nary process and “routinely result[ed] in actual disci-
pline” including suspension and termination); Ohio Ma-
sonic Home, 295 NLRB at 393–394 (finding warnings
not disciplinary, where employer failed to establish that
it had a “defined progressive disciplinary scheme” under
which the warnings would “automatically affect job sta-
tus or tenure”). The Employer bears the burden of prov-
ing the existence of such a system, and the role that
warnings play within the system. Republican Co., 361
NLRB No. 15, slip op. at 7 (2014).31

28 Nor is there any explanation of why 19 of the 27 disciplinary no-
tices in the record do not present coaching or counseling as a discipli-
nary step.
29 The record does not establish that disposition notices are turned
over when the Petitioner requests discipline, and the OBN spreadsheet
also contains numerous examples of OBNs that apparently did not
result in disposition notices. Thus, there is no evidence that the Peti-
tioner is otherwise made aware of coaching or counseling when it re-
quests an operator’s disciplinary records.
30 The Employer appears to suggest that road supervisors coach and
counsel—and therefore discipline—operators even when they do not
submit an OBN. But in such circumstances, there is no record of the
coaching or counseling having even occurred. Thus, in such circum-
stances there is no personnel action on which to base a finding of disci-
plinary authority.
31 See also Jochims v. NLRB, 480 F.3d 1161, 1169–1170 (D.C. Cir.
2007) (writeups documenting infractions merely represented the possi-
bility of discipline, given lack of evidence they were prerequisite to
discipline or routinely resulted in discipline where employer did not
Although several of the Employer’s witnesses testified
that the Employer has a progressive disciplinary system,
the documentary evidence fails to substantiate it. The
collective-bargaining agreement that covers the operators
does not set forth any progressive disciplinary policy
(except for the attendance policy, which road supervisors
do not enforce). Similarly, neither the road supervisor
handbook, the operator handbook, nor the Employer’s
work rules makes any reference to a progressive discipli-
nary policy. Instead, the operator handbook simply sets
forth a list of “serious” offenses warranting discharge.
The breadth of this list is striking, as it includes viola-
tions of any posted or known rule, policy, or procedure.
The Employer has made no effort to square this list—
which appears to reserve the right to discharge an em-
ployee for virtually any offense—with its supposedly
progressive disciplinary policy. Under these circum-
stances, we find that the Employer has not established
that discipline is, in fact, progressive. Cf. Lucky Cab,
supra, 360 NLRB slip op. at 3 (record did not establish
progressive policy where handbook stated that employer
“may exercise its discretion in utilizing forms of disci-
pline” and that “no formal order or system is necessary”
and steps could be skipped).
Even if the Employer’s disciplinary system is progres-
sive, the documentary evidence shows that it is not con-
sistently applied, in that certain “steps” may be skipped
or repeated. As set forth above, Neale claimed that the
progressive steps consist of counseling, verbal warning,
written warning, suspension, and termination. But the
OBN spreadsheet contains various examples of operators
receiving different forms of discipline for the same of-
fense despite receiving the same number of prior OBNs
for the same type of offense. In several instances, opera-
tors received coaching for their second late pull-out, but
then received a written warning for their third. One op-
erator received verbal warnings for his second through
fourth late pull-out violations, and then written warnings
for his fifth through eighth. By contrast, another opera-
tor was suspended for her fourth late pull-out. If there
are aggravating or mitigating circumstances that explain
these examples of seemingly inconsistent treatment, the
Employer has made no effort to identify them or other-
wise explain the OBN spreadsheet. In any event, the
spreadsheet indicates that there is no fixed relationship
between the OBNs road supervisors issue and the level
of discipline imposed. Accordingly, the Employer has
not established that it utilizes a progressive disciplinary
system. See Republican Co., supra, 361 NLRB slip op.

maintain progressive disciplinary system), reversing Wilshire at Lake-
wood, 345 NLRB 1050 (2005).
VEOLIA TRANSPORTATION SERVICES 9
at 7 fn. 8 (progressive discipline not established where,
inter alia, testimony indicated employees had been sus-
pended without prior warning, but that other employees
received multiple verbal warnings without any escalation
of discipline); Ken-Crest Services, 335 NLRB 777, 777–
778 (2001) (finding verbal warnings not disciplinary,
notwithstanding purported progressive disciplinary sys-
tem, because an employee could receive numerous
counselings and verbal warnings without further disci-
pline); Ten Broeck Commons, 320 NLRB at 809 (finding
warnings not disciplinary, where there was no showing
of “predetermined discipline based solely on the receipt
of a certain, set number of warnings”).
Having found that the issuance of OBNs is not disci-
pline, that coaching and counseling do not constitute
discipline, and that the Employer has not established that
it follows a progressive disciplinary policy, we do not
agree with the Regional Director’s findings that OBNs
almost always result in some form of discipline and are
an “integral first step” in the Employer’s disciplinary
policy or the dissent’s view that OBNs “lay the founda-
tion for further discipline under the Employer’s sys-
tem.”32 The OBN spreadsheet and the OBNs in evidence
indicate that OBNs result in discipline less than a third of
the time.33 Similarly, the Regional Director’s finding
that OBNs are an “integral first step” relies on cases that,
unlike this case, involved progressive disciplinary sys-
tems. See Oak Park Nursing, 351 NLRB at 27;
Promedica Health Systems, Inc., 343 NLRB 1351, 1351
(2004), enfd. in relevant part 206 Fed. Appx. 405 (6th
Cir. 2006), cert. denied 549 U.S. 1338 (2007).34

32 We note that our dissenting colleague does not contend that the
Employer has a progressive disciplinary system. Instead, he states his
disagreement with Board precedent and emphasizes that, under his
proposed standard, the existence of a progressive disciplinary system
would not be essential to a finding that a coaching, counseling, or warn-
ing qualify as discipline. In the dissent’s view, these should be viewed
as discipline if they are issued in connection with a disciplinary system
of “shared authority” and are relied on by employers in imposing disci-
pline for further misconduct. For the reasons stated above, we adhere
to the Board’s traditional analysis, which holds that warnings qualify as
disciplinary only if they routinely lead to job-affecting discipline by
operation of a progressive disciplinary system. See, e.g., Oak Park,
supra at 30.
33 As noted above, the spreadsheet records 1170 examples of OBNs,
of which 715 resulted in counseling and 98 had no recorded outcome.
The spreadsheet shows that only 274—about 23 percent—of the OBNs
recorded on the spreadsheet resulted in discipline (the figure rises to
about 31 percent if the 83 OBNs that resulted in “D” are included). Of
about 176 individual OBNs and related documents in evidence, only
about 44—25 percent—resulted in discipline.
34 The same is true of the cases cited by the Employer. See Sheraton
Universal, supra at 1117; Progressive Transportation, supra at 1044.
The Employer also cites Mountaineer Park, supra. Although Moun-
taineer Park does not expressly state that the disciplinary system at
issue was progressive, the Board relied on Progressive Transportation
Just as the Employer has not shown that OBNs consti-
tute discipline, we find that it has not shown that they
constitute the effective recommendation of discipline.
As noted above, a recommendation is only effective if it
is not independently investigated, but the Employer has
not established that OBNs are not independently investi-
gated. Although the Employer’s witnesses claimed that
administrative senior supervisors always follow road
supervisor recommendations and only rarely discard
them, the current road supervisors understood that OBNs
are independently investigated. The Employer’s own
witnesses gave testimony that indicates an independent
investigation takes place. Thus, Neale admitted that he
takes the operator’s side of the story “into consideration”
and may adopt it over that of the road supervisor on oc-
casion; Goldsmith stated that operator’s explanations
“matter” and that at times he accepts an operator’s ver-
sion of events over what the road supervisor relates on
the OBN because the road supervisor did not have “the
knowledge that I will get during the course of interacting
with the [o]perator”; Goldsmith also admitted that he has
an “open door” policy, one purpose of which “could be”
to gain information not available to road supervisors.
In addition, the fact that the Employer’s disciplinary
policy is not progressive, and that escalation of discipline
is inconsistent, strongly suggests that the administrative
senior supervisors conduct an independent investigation
upon receiving an OBN in order to decide what level of
discipline to impose. That OBNs for the same number
and type of infractions result in different outcomes for
different operators further suggests that administrative
senior supervisors inquire into the particular circum-
stances underlying a given OBN.
But even assuming administrative senior supervisors
do not independently investigate OBNs, we find that
road supervisors’ submission of OBNs does not consti-
tute the effective recommendation of discipline, because
the OBNs are merely reportorial. In this regard, this case
is analytically identical to Illinois Veterans Home at An-
na L.P., 323 NLRB 890 (1997). In that case, the RNs
used forms to document incidents or problems with em-
ployees, but (1) the form did not prompt the RNs to make
any recommendation; (2) there was no evidence that the
RNs otherwise recommended whether discipline should

in finding that the disputed individuals effectively recommended disci-
pline. See id. at 1475. Further, in Mountaineer Park the Board found
that the disputed individuals triggered the disciplinary process by writ-
ing proposed disciplinary recommendations, and that when they turned
in such recommendations, discipline ensued. See id. Here, as just
discussed, perhaps one in four OBNs results in discipline. Thus, the
road supervisors in this case do not, like the individuals at issue in
Mountaineer Park, necessarily trigger discipline by turning in OBNs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
be imposed; and (3) the employer did not follow a pro-
gressive disciplinary system, and there was no evidence
that a particular offense would necessarily lead to any
particular form of discipline. See id. at 890. The RNs
submitted the forms to the director of nursing, who did
not independently investigate the incidents, but who de-
cided based on the employee’s personnel file what if any
level of discipline to impose. See id. The Board there-
fore found that the forms submitted by the RNs were
merely reportorial. Although the director of nursing did
not independently investigate the incidents, the Board
stated that in the absence of an established system, such
as a progressive disciplinary system, the director of nurs-
ing did not decide whether discipline should be imposed
based solely on the RNs’ submissions, but instead based
the decision on her independent assessment of the em-
ployees’ personnel history. See id.
Like the RNs in Illinois Veterans Home, supra, the
road supervisors in this case are not prompted to make
any recommendation on the OBN, nor does the record
establish that they otherwise recommend any particular
level of discipline, or whether to impose discipline at all.
Further, the Employer has not established that it follows
a progressive disciplinary system, or that a particular
offense necessarily leads to a particular form of disci-
pline. As noted above, in a majority of cases OBNs do
not even lead to discipline. Instead, the administrative
senior supervisors, like the director of nursing in Illinois
Veterans Home, decide whether to impose discipline (as
well as what level to impose), and they do so based on
their assessment of the operators’ personnel history, not
solely on the basis of the road supervisors’ submissions.
And like the director of nursing, the administrative senior
supervisors exercise independent judgment in assessing
the operators’ disciplinary history, as demonstrated by
Goldsmith’s testimony that he determined that an opera-
tor’s past violations were “excessive” and elected to give
him a suspension, rather than a verbal warning or a ter-
mination. The road supervisors’ submission of OBNs is
therefore merely reportorial, regardless of whether the
administrative senior supervisors independently investi-
gate the OBNs. See also Jochims, 480 F.3d at 1170 (su-
pervisory authority not established where evidence did
not show that written reports of employee misconduct
“routinely resulted” in discipline or “inevitably resulted
in the initiation of discipline” but created, at most, only
the possibility of discipline).
The remaining arguments for finding that the road su-
pervisors discipline coach operators are easily dealt with.
Regarding the road supervisors’ authority to pull over
operators, we do not agree with the Regional Director’s
finding that road supervisors can do so without prior au-
thorization. The Regional Director appears to have relied
solely on Neale’s testimony that road supervisors need
no prior authorization, but the Regional Director did not
explain why he disregarded conflicting testimony that
road supervisors do in fact require prior authorization
from the BOC. Nor did the Regional Director address
the testimony that once an operator is pulled over, the
BOC or the safety department—not the road supervi-
sor—decides what happens next. Moreover, there was
no testimony as to how, or whether, such actions lead to
discipline. There is no evidence establishing that the act
of pulling an operator over or removing an operator from
a bus is discipline, nor is there any indication that disci-
pline (or any adverse personnel action) inevitably fol-
lows from such actions. In any event, pulling an operator
over out of suspicion that the driver is under the influ-
ence does not involve the exercise of independent judg-
ment. See Phelps Community Medical Center, supra at
492 (“to tak[e] action in response to flagrant violation of
common working conditions, such as being drunk, is
insufficient by itself to establish supervisory status” (in-
ternal quotations omitted)). Thus, even if road supervi-
sors do not require prior authorization to pull over an
operator who they suspect is impaired, they do not exer-
cise independent judgment in doing so.
Similarly, the Employer has not shown that road su-
pervisors exercise disciplinary authority based on their
role in accident investigations. The undisputed testimo-
ny is that an accident results in discipline only if the safe-
ty department deems the accident preventable. There is
no place in the accident investigation packet for a road
supervisor to offer his or her opinion on the matter. The
Employer’s witnesses also stated that the safety depart-
ment routinely consults video of the accident, where
available. In the instances when there is no video of the
accident, the Employer claims that the safety depart-
ment’s determination is based solely on what the road
supervisor has included in the accident investigation kit.
But there is no testimony as to how often video is una-
vailable, and even in these instances, the road supervisors
are still fulfilling only a reportorial function, as the pre-
ventability determination, on which any issuance of dis-
cipline hinges, remains in the hands of the safety depart-
ment.35 Further, the Petitioner introduced Kelvin
Manzanares’ arbitration testimony, which states that the

35 Thus, even if the safety department does not independently inves-
tigate the road supervisors’ accident report, here too the road supervi-
sors fulfill a merely reportorial function because they simply relate the
facts of the accident without making a recommendation, and the safety
department apparently exercises independent judgment in deciding
whether the accident was preventable (and therefore whether discipline
will result). Cf. Illinois Veterans Home, supra.
VEOLIA TRANSPORTATION SERVICES 11
safety department uses certain criteria in determining
whether an accident is preventable or not. There is noth-
ing in the record specifying what those criteria are. In-
deed, no one from the safety department testified, so
there is no direct testimony about how the safety depart-
ment reaches its preventability determinations. Gold-
smith, for his part, admitted that neither administrative
senior supervisors nor road supervisors are “educated” in
making preventability determinations.36 Accordingly,
the available evidence fails to establish that the road su-
pervisors’ role in accident investigations constitutes dis-
cipline or the effective recommendation of discipline.
Finally, the Board’s treatment of similarly titled “road
supervisors” in other cases is of no relevance to the par-
ticulars of this case. See, e.g., Avante at Wilson, Inc.,
348 NLRB 1056, 1057 (2006) (employees are not trans-
formed into supervisors merely by virtue of their job
titles or job descriptions (citing Heritage Hall, E.P.I.
Corp., 333 NLRB 458, 458–459 (2001)).
For all of the foregoing reasons, we reverse the Re-
gional Director and find that the Employer has not estab-
lished that road supervisors possess the authority to dis-
cipline or to effectively recommend discipline.
Reward
We also reverse the Regional Director’s finding that
the Employer has established that road supervisors effec-
tively recommend reward. There appears to be no dis-
pute that the issuance of POBs is insufficient to establish
the authority to reward, and the Employer does not con-
tend otherwise. The Regional Director, however, found
that POBs serve as nominations for OTS awards and are
the only way an operator can be nominated for an OTS
award. The parties differ on whether the OTS award is
sufficient to establish the authority to reward, insofar as
it is a one-time $100 reward. However, it is unnecessary
to resolve this issue because the Regional Director’s
findings regarding the relationship of POBs and OTS
awards are not supported by the record. Thus, it is not

36 In its posthearing brief to the Regional Director, the Employer ar-
gued that the remediation form and the substance abuse decision docu-
ment contained in the accident investigation kit establish that the road
supervisors exercise discretion in determining whether the operator was
at fault (and therefore effectively recommend discipline if they find that
operator was at fault). In the absence of any evidence as to how, if at
all, these forms factor into the safety department’s preventability de-
termination, they do not assist the Employer’s argument that road su-
pervisors effectively recommend discipline based on their role in acci-
dent investigations. Moreover, as explained above, it is not clear how
much discretion road supervisors have in filling out the substance abuse
decision document. As for the remediation form, it contains a space for
suggestions as to how to avoid similar accidents, but it also specifies
that discipline may follow if the safety department—not the road su-
pervisor—determines that the accident was preventable.
clear that every POB serves as an OTS nomination, and
there is no evidence suggesting that POBs are the only
way an operator can be nominated for an OTS award.
Even setting these factual errors aside, it is undisputed—
and the Regional Director in fact found—that not every-
one who is nominated for an OTS award receives it.37
There is no testimony as to how frequently OTS nomina-
tions result in an OTS award.
More importantly, neither witness who testified about
the OTS award was able to identify who determined
whether a nominee would receive the award or how that
determination was made. Under these circumstances,
there simply is no evidence supporting the Regional Di-
rector’s finding of a “direct link” between POBs and the
OTS award.38 Similarly, there is no evidence whatsoever
to support Neale’s conclusory testimony that administra-
tive senior supervisors “adopt” road supervisor recom-
mendations regarding OTS awards. As the evidence
does not indicate who determines whether to grant an
OTS award or how that determination is reached, the
Employer has not established that road supervisors effec-
tively recommend reward without an independent inves-
tigation by whoever actually decides to grant the award.
We therefore reverse the Regional Director and find that
the Employer has not established that road supervisors
possess the authority to reward.
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,
reward, or to effectively recommend discipline or re-
ward. In the absence of such evidence, the secondary
indicia of supervisory authority on which the Regional
Director relied are immaterial. See Ken-Crest Services,
335 NLRB at 779 (secondary indicia are insufficient by
themselves to establish supervisory status). For all these

37 The Employer emphasizes that Road Supervisor Myers admitted
that her OTS recommendations have been followed “100% of the
time.” This testimony carries little significance in view of Neale’s
admission that not every OTS recommendation results in an OTS
award, as well as the fact that Myers testified that she has only ever
made one OTS recommendation.
38 In finding a “direct link” between POBs and OTS awards, the Re-
gional Director cited Elmhurst Extended Care Facilities, Inc., 329
NLRB 535 (1999). Elmhurst, however, explains that in Bayou Manor
Health Center, 311 NLRB 955 (1993), the Board found that charge
nurses were supervisors because the employer allocated merit increases
to LPNs based solely on the charge nurses’ numerical evaluation of the
LPNs’ skills and performance. See Elmhurst, supra at 537. As ex-
plained above, the evidence in this case does not establish that OTS
awards are given out based solely on the action of the road supervisors,
so there is no “direct link” within the meaning of Elmhurst present
here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
reasons, we find that the road supervisors are not super-
visors 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. January 20, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
Unlike my colleagues, I believe the record supports the
Regional Director’s finding that the Employer’s road
supervisors are supervisors under Section 2(11) of the
Act because they have the authority to discipline coach
operators and/or to effectively recommend that they be
disciplined. The road supervisors serve as the Employ-
er’s “eyes and ears” on the ground, tasked with monitor-
ing whether coach operators are adequately performing
their job duties, adhering to bus schedules, driving safe-
ly, and otherwise conforming themselves to the Employ-
er’s panoply of policies. As part of those duties, the road
supervisors play an important and essential role in the
Employer’s disciplinary process. Upon witnessing em-
ployee misconduct, the road supervisors use independent
judgment to decide between orally counseling the coach
operator and taking the more drastic step of issuing a
written observation notice (OBN), which details the em-
ployee’s infraction and initiates the formal disciplinary
process. As found by the Regional Director, the OBNs
“constitute a necessary and integral first step of the dis-
cipline meted out to employees.” Moreover, the OBNs
issued by the road supervisors are retained in employees’
personnel files, and it is undisputed that the Employer
relies on previously issued OBNs when deciding the lev-
el of discipline to mete out for later acts of misconduct
by an employee. Thus, an OBN issued by a road super-
visor functions as a written warning or demerit, which is
retained on file and negatively impacts the recipient.
Based on the Employer’s proof of such disciplinary au-
thority vested in road supervisors, I would affirm the
Regional Director’s dismissal of the election petition.1
The majority opinion sets forth the facts in detail. I
find it necessary to emphasize and comment on a few.
The Employer operates a large public bus transportation
service in the Las Vegas metropolitan area. The Em-
ployer employs approximately 750 coach operators (i.e.,
busdrivers), who are responsible for transporting passen-
gers. The coach operators are dispersed throughout the
metropolitan area during the bulk of their working hours.
The Employer’s Las Vegas operations are overseen by
the general manager. Among those reporting directly to
the general manager is the field supervision manager,
who is responsible for overseeing 4 administrative senior
supervisors, 4 senior road supervisors, and the disputed
classification of approximately 43 road supervisors.
The road supervisors have several responsibilities, in-
cluding disseminating safety and traffic information to
coach operators, making minor repairs to buses and fare
boxes, removing disruptive passengers, and conducting
accident investigations. Importantly, the Employer also
tasks the road supervisors with monitoring the coach
operators to ensure that they are adequately performing
their duties and complying with the Employer’s policies.
Driving vans marked “supervisor,” the road supervisors
follow the buses to determine whether the coach opera-
tors are making timely stops, abiding by speed limits,
and driving safely. As part of these duties, the road su-
pervisors use radar guns to monitor a driver’s speed.
Upon observing an operator violating a company poli-
cy, a road supervisor uses independent judgment to de-
cide whether the situation can be remedied with a simple
verbal counseling session on the spot or whether it is
necessary to complete an OBN. The record indicates that
the road supervisors issue approximately 6 to 12 OBNs
total on a daily basis.
After a road supervisor completes an OBN, it is
reviewed by an administrative senior supervisor, who,
relying upon the OBN, determines the appropriate level
of discipline to impose. The level of discipline issued by
the administrative senior supervisor depends on a
number of factors, including whether the operator has
been the subject of a prior OBN for the same or similar
conduct, the length of time since the last violation, and
the severity of the violation committed. The record
demonstrates that administrative senior supervisors
routinely accept the road supervisor’s account of the
violation as established fact. Additionally, the record

1 Consequently, I find it unnecessary to pass on the Regional Direc-
tor’s finding that the road supervisors are Sec. 2(11) supervisors by
virtue of their authority to reward employees or to effectively recom-
mend reward.
VEOLIA TRANSPORTATION SERVICES 13
shows that only in rare circumstances, e.g., where an
OBN is challenged by the operator with convincing
evidence or where the OBN is inadequately completed,
does the issuance of an OBN by a road supervisor not
result in a counseling, warning, suspension, or
termination.
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 supervisory functions
enumerated in Section 2(11) (which include the authority
to discipline and to effectively recommend discipline);
(2) their exercise of such authority was not routine or
clerical, but required independent judgment; and (3) their
authority was held in the interest of the employer. See,
e.g., Oakwood Healthcare, Inc., 348 NLRB 686, 687
(2006). Section 2(11) requires only possession of au-
thority to carry out a supervisory function, not its actual
exercise. See, e.g., Sheraton Universal Hotel, 350
NLRB 1114, 1118 (2007).
I have previously criticized the Board’s application of
that analytic framework 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 supervi-
sors). As I explained in Buchanan Marine, when
evaluating supervisor status under Section 2(11), I
believe the Board in every case should take into account
(i) the nature of the employer’s operations; (ii) the work
performed by undisputed statutory employees; 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.2 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 ridiculous, ludi-
crous or illogical result—for example, where nobody has
the authority to hire, discharge, discipline, assign, or di-
rect employees (or to exercise the other indicia of super-
visory authority set forth in Section 2(11)?’”3 In other

2 I previously 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 explained in my dissent in Buchanan Marine, these factors do not
comprise a new test for supervisory status, but rather constitute a guide
to how the Board should apply the indicia of supervisory status that
Congress listed in Section 2(11). Buchanan Marine, L.P., 363 NLRB
No. 58, slip op. at 10 (Member Miscimarra, dissenting) (emphasis in
original).
3 Buchanan Marine, L.P., 363 NLRB No. 58, slip op. at 10 (Member
Miscimarra, dissenting) (emphasis in original).
words, the Board is responsible for applying “the general
provisions of the Act to the complexities of industrial
life.”4 These “complexities” include the reality that most
businesses cannot operate, and many business functions
cannot be performed, unless a reasonable number of
people exercise supervisory authority regarding a
particular facility, shift or function.
Here, the road supervisors are the Employer’s only
agents in the field observing coach operators and
policing the Employer’s policies. The Employer has
shown that the road supervisors possess and exercise
authority to issue written OBNs to coach operators for
dereliction of duty or other misconduct. Acting in the
Employer’s interest, the road supervisors make
judgments about whether particular misconduct can be
adequately addressed with an informal counseling
session or whether further action needs to be taken via
issuance of an OBN. As noted by the majority, the road
supervisors do not themselves decide the particular level
of additional discipline that an operator will receive.
That decision is made by the administrative senior
supervisors. However, the record shows that the
administrative senior supervisors—who have not
witnessed the coach operator’s misconduct—defer
greatly to the road supervisor’s factual findings and
determination that an infraction has been committed. In
other words, the Employer’s disciplinary system is one
of shared authority in which the road supervisors play a
critical role.
Currently, the Board finds that a putative supervisor’s
authority to coach, counsel, and/or warn an employee for
misconduct or dereliction of duty constitutes Section
2(11) disciplinary authority only when such coaching,
counseling, or warning is a step in a rigid progressive
disciplinary policy, thereby laying the foundation for
further disciplinary action against an employee. See,
e.g., Lucky Cab Co., 360 NLRB No. 43, slip op. at 3
(2014); Oak Park Nursing Care Center, 352 NLRB 27,
28 (2007). I disagree with that line of precedent. In my
view, the Board has too narrowly construed the word
“discipline” in Section 2(11) to exclude these forms of
punishment where an employer lacks an inflexible, lock-
step disciplinary policy, at least where an employer
proves that it relies on such warnings when imposing
discipline for further instances of misconduct. In my
view, the Board’s current requirements are incongruent
with a common sense understanding of the term
“discipline.”

4 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.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Under the circumstances of this case, I would find that
the road supervisors have Section 2(11) disciplinary
authority. The Employer maintains an electronic
spreadsheet of all OBNs issued by road supervisors, and
it is undisputed that those OBNs lay the foundation for
further discipline under the Employer’s system. Cf. Pro-
gressive Transportation Services, Inc., 340 NLRB 1044,
1045 (2003) (finding that disputed individual effectively
recommended discipline by bringing rule infractions and
misconduct to the employer’s attention, thereby initiating
the discipline process). Thus, the nature of the Employ-
er’s operations include a shared system of disciplinary
authority (between the 43 road supervisors and 4 admin-
istrative senior supervisors), necessitated by the fact that
the 750 coach operators are spread throughout the Las
Vegas metropolitan area driving buses outside the pres-
ence of the 4 administrative senior supervisors. Under
the majority’s view, the ratio of statutory employees to
statutory supervisors is roughly 100-to-1, a ratio that
stands out as disproportionately high.5 See, e.g.,
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). Un-
der the circumstances, I find it implausible to conclude
that all Section 2(11) disciplinary authority is vested in
persons (eight senior supervisors) other than the road
supervisors.

5 Under the majority’s view there are approximately 793 statutory
employees (the 750 coach operators and the 43 road supervisors), and
only 8 statutory supervisors (the 4 administrative senior supervisors and
the 4 senior road supervisors).
Congress exempted supervisors from the Act based on
its judgment that “an employer is entitled to the undivid-
ed loyalty of its representatives.” NLRB v. Yeshiva Uni-
versity, 444 U.S. 672, 682 (1980). It is noteworthy that
the Petitioner already represents the 750 coach operators,
and now it seeks to represent the 43 road supervisors
who are vested with significant disciplinary authority
over them. If the Petitioner prevails in the election di-
rected by my colleagues, and if a collective-bargaining
dispute occurs between the coach operators and the Em-
ployer, would the 43 road supervisors turn a blind eye to
a concerted slowdown committed by their union brothers
and sisters? Or, can the Employer rest assured, even
during heated negotiations, that is has the undivided loy-
alty of the road supervisors and that they will continue
issuing OBNs if and when operators fail to adhere to bus
schedules or violate other policies? In my view, the ma-
jority’s ruling that the road supervisors are statutory em-
ployees creates a risk that the Employer’s first-line disci-
plinarians, feeling divided loyalties, may not be counted
on to adequately perform their duties.
For these reasons, I would affirm the Regional Direc-
tor’s dismissal of the election petition.
Dated, Washington, D.C. January 20, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD