TRANSDEV SERVICES, INC., (2016)

Docket Number:05-RC-137335
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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 Union, 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 Region 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 Hyattsville, Maryland, facilities did not comprise an appropriate 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. Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Petitioner filed a timely request for review. The Petitioner contends that the Regional 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 recommend 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 Section 2(11).

Facts

The Employer is one of several contractors that provide MetroAccess van service to the Washington Metro

1 Chairman Pearce and Member Hirozawa; Member Johnson, dissenting. 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 Washington, 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 Drivers, Chauffeurs, and Helpers Local Union No. 639 (hereafter 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 operators to ensure that the operators are complying with the policies and procedures of both the Employer and WMATA. In addition, road supervisors investigate accidents (when a van is out of active service due to a collision) 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 nonpreventable. If a road supervisor encounters an incident, the road supervisor may complete an incident report. Incident 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 supervisors 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 intersection, approaching a railroad crossing, backing up, and conducting preand posttrip actions.

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

instances, including when they conclude, based on training they receive in “reasonable suspicion,” that an operator 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 infractions.” The agreement includes a nonexhaustive list of infractions “sure to earn much more than a simple verbal warning.” Local 1764’s agreement describes discipline 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 hearing to all employees,” including “corrective interviews through the disciplinary process.”

Two road supervisors, Brian Jackson and Thomas Holtz, generally described road supervisors’ role in discipline. According to Jackson and Holtz, when road supervisors observe operators violating WMATA or Employer policies and procedures, they counsel the offending 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 Employer’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 violations 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 Securements Properly Stored”; at the bottom of the form, Jackson wrote that he had counseled the operator.7 Jackson testified that he could not specifically recall what occasioned this counseling, and there was no further testimony about this incident.

When asked if he recommends discipline, Jackson answered 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,...

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