Veolia Transportation Services, Inc.

902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 363 NLRB No. 98 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 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 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. 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 administrative senior supervisor reviews the associated 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. VEOLIA TRANSPORTATION SERVICES 903 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 Significantly, 19 of the forms do not include “counsel- 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. 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 these, about 113 resulted in counseling; for another 29, the outcome of the OBN is not clear, but it does not ap- pear to have resulted in any discipline higher than coach- ing. The remaining 44 OBNs resulted in some form of discipline 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- tem, as well as the exact nature of the disciplinary system 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904 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. VEOLIA TRANSPORTATION SERVICES 905 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906 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. VEOLIA TRANSPORTATION SERVICES 907 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 1747 (2011), which it claims the Regional Direc- tor improperly distinguished. The Petitioner also argues that although road supervisors can pull over operators 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 271, 271–272 (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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908 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 523 (2015), the dissent would apply a new test for supervisory status that focuses on the “prac- tical realities of the workplace.” 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 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. VEOLIA TRANSPORTATION SERVICES 909 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 these reasons, the Employer has not established that coaching 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 93, 99 (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). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910 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 coun- selings and verbal warnings without further discipline); Ten Broeck Commons, 320 NLRB at 809 (finding warn- ings 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; Pro- medica 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. VEOLIA TRANSPORTATION SERVICES 911 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 Man- zanares’ arbitration testimony, which states that the safe- 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912 ty department uses certain criteria in determining wheth- er an accident is preventable or not. There is nothing in the record specifying what those criteria are. Indeed, no one from the safety department testified, so there is no direct testimony about how the safety department reaches its preventability determinations. Goldsmith, for his part, admitted that neither administrative senior supervisors nor road supervisors are “educated” in making preventa- bility determinations.36 Accordingly, the available evi- dence fails to establish that the road supervisors’ role in accident investigations constitutes discipline or the effec- tive 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. VEOLIA TRANSPORTATION SERVICES 913 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. 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 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. 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 re- viewed by an administrative senior supervisor, who, rely- ing upon the OBN, determines the appropriate level of discipline to impose. The level of discipline issued by the administrative senior supervisor depends on a num- ber of factors, including whether the operator has been the subject of a prior OBN for the same or similar con- duct, the length of time since the last violation, and the severity of the violation committed. The record demon- strates that administrative senior supervisors routinely accept the road supervisor’s account of the violation as established fact. Additionally, the record 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914 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 523, 527 (2015) (Member Miscimarra, dissenting from majority’s finding that tug-boat captains were not statutory supervisors). 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 su- pervisors, does that produce a ridiculous, ludicrous or illogical result—for example, where nobody has the au- thority to hire, discharge, discipline, assign, or direct employees (or to exercise the other indicia of supervisory authority set forth in Section 2(11)?’”3 In other words, the Board is responsible for applying “the general provi- sions of the Act to the complexities of industrial life.”4 These “complexities” include the reality that most busi- nesses cannot operate, and many business functions can- not be performed, unless a reasonable number of people exercise supervisory authority regarding a particular fa- cility, shift or function. Here, the road supervisors are the Employer’s only agents in the field observing coach operators and polic- ing 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 2 I previously articulated these factors in Cook Inlet Tug & Barge, Inc., 362 NLRB 1153, 1157 fn. 9 (2015) (Member Miscimarra, dissent- ing), 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 523, 532 (Member Miscimarra, dissenting) (emphasis in original). 3 Buchanan Marine, L.P., supra at 537 (Member Miscimarra, dis- senting) (emphasis in original). 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.”). of duty or other misconduct. Acting in the Employer’s interest, the road supervisors make judgments about whether particular misconduct can be adequately ad- dressed 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 disci- pline 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 miscon- duct—defer greatly to the road supervisor’s factual find- ings and determination that an infraction has been com- mitted. In other words, the Employer’s disciplinary sys- tem is one of shared authority in which the road supervi- sors 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 271, 273 (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 disci- plinary 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.” Under the circumstances of this case, I would find that the road supervisors have Section 2(11) disciplinary au- thority. The Employer maintains an electronic spread- sheet of all OBNs issued by road supervisors, and it is undisputed that those OBNs lay the foundation for fur- ther 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 VEOLIA TRANSPORTATION SERVICES 915 statutory supervisors is roughly 100-to-1, a ratio that stands out as disproportionately high.5 See, e.g., Form- co, 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). Under 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. 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 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). 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.