373 NLRB No. 8
MV Transportation, Inc.
373 NLRB No. 8
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.
MV Transportation, Inc. and Amalgamated Transit
Union Local 1309. Case 21–UC–279131
December 27, 2023
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN
AND PROUTY
On September 30, 2021,1 the Regional Director issued
a Decision and Order Clarifying Unit, in which he clari-
fied the existing unit to exclude maintenance supervisors
based on his conclusion that the maintenance supervisors
do not share a sufficient community of interest with the
employees in the existing unit. In accordance with Sec-
tion 102.67 of the National Labor Relations Board’s
Rules and Regulations, on October 15, the Petitioner
filed a timely request for review, contending that the
maintenance supervisors share a community of interest
with the employees in the existing unit and that the unit
should be clarified to include the maintenance supervi-
sors.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Petitioner’s request for review is granted as it rais-
es substantial issues warranting review. Having carefully
considered the entire record,2 including the request for
review, we find that the maintenance supervisors share a
community of interest with employees in the certified
unit. Accordingly, we reverse the Regional Director and
clarify the bargaining unit to include the maintenance
supervisors.
I. PROCEDURAL HISTORY
On April 22, the Petitioner filed a petition in Case 21–
RC–276059 seeking to represent a unit of “Road Super-
visors, Dispatchers/Radio Dispatchers, Shop Supervisors,
[and] Part Clerks.” The parties subsequently entered into
a stipulated election agreement providing for an election
in a unit including road supervisors, OCC dispatchers,
traffic controllers/radio dispatchers, and maintenance
clerks employed at the
Employer’s
facilities in
Oceanside and Escondido, California. The stipulated
election agreement also provided that the eligibility of
the maintenance supervisors3—whom the Petitioner has
1 All dates hereinafter are in 2021 unless otherwise noted.
2 The Board has exercised its discretion to read the entire record.
See Sec. 102.67(e) of the Board’s Rules and Regulations.
3 The maintenance supervisors are also referred to in the record as
“shop supervisors,” “fleet supervisors,” and “facility supervisors.” For
simplicity, we have followed the Regional Director’s lead in referring
at all times sought to include in the unit—was not re-
solved, and that individuals in that classification could
vote subject to challenge.
A mail-ballot election was conducted, and, out of ap-
proximately 30 eligible voters, 17 voted for the Petition-
er, 0 voted against representation, and 6 ballots were
challenged—a number not sufficient to affect the results
of the election. In the absence of objections or determina-
tive challenges, the Regional Director issued a Certifica-
tion of Representative on June 21; the Certification stated
that the maintenance supervisors were neither included in
nor excluded from the bargaining unit.
On June 25, the Petitioner filed the instant petition
seeking to clarify the unit to include the maintenance
supervisors. The Regional Director directed a hearing, at
which the Employer contended that the maintenance su-
pervisors should be excluded both because they are su-
pervisors within the meaning of Section 2(11) of the Act
and because they do not share a community of interest
with the employees in the existing unit. On September
30, the Regional Director issued his decision in which he
found that the Employer had not established that the
maintenance supervisors are supervisors within the
meaning of Section 2(11), but also concluded that the
maintenance supervisors do not share a community of
interest with employees in the existing unit. He therefore
clarified the unit to exclude the maintenance supervisors.
The Petitioner then timely filed a request for review.4
II. FACTS
The Employer contracts with the North County Transit
District (NCTD) to provide public transportation services
including fixed route transportation, paratransit, mainte-
nance, and facility maintenance services. In performing
these services, the Employer operates from its Escondido
(Division 290) and Oceanside (Division 291) facilities.5
General Manager Peter Leonard oversees both Divisions.
The NCTD operations are subdivided into departments,
including Operations and Maintenance, the two depart-
ments at issue here. The Operations Department is over-
seen by Deputy General Manager (DGM) Curtis Burlin-
game. Two Operations Managers, Robert Silk and
Bre’Ana Jackson, report to DGM Burlingame.6 The
Maintenance Department is overseen by DGM Freddy
to these employees as “maintenance supervisors” throughout this deci-
sion.
4 The Employer has not sought review of the Regional Director’s
findings on the supervisory status issue, nor has it filed an opposition to
the Petitioner’s request for review.
5 Escondido and Oceanside are also referred to as the East and West
Divisions, respectively.
6 It is unclear from the record whether Silk and Jackson are respon-
sible for separate facilities. The Employer’s organizational chart lists
both as “Ops. Mgr. West.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
Jimenez. In theory, two Maintenance Managers—one at
each facility—report to Jimenez. John Larios is currently
the Maintenance Manager at Escondido, but due to a
vacancy Jimenez is currently acting as the Maintenance
Manager at Oceanside. At both facilities, the Operations
and Maintenance Departments have their own separate
buildings.
A. Included Classifications
As previously noted, in the underlying election case
the parties stipulated that the road supervisors, OCC dis-
patchers, traffic controllers/radio dispatchers (hereinafter
“dispatchers”7), and maintenance clerks are appropriately
included in the unit.
The road supervisors work in the Operations Depart-
ment and report to the Operations Managers. Operations
DGM Burlingame testified that they serve as the Em-
ployer’s real-time eyes and ears in the relevant service
area, where they provide support for bus drivers and pas-
sengers. More specifically, their duties include checking
in-service vehicles for compliance with policies (for ex-
ample, cleanliness and wheelchair securement); monitor-
ing street operations for on-time performance and sched-
ule and route adherence; responding to accidents and
other incidents; and ensuring that drivers are fit for duty
and meet uniform, equipment, and licensing require-
ments. In the event of an accident or incident, they assist
dispatch and operations staff to restore service levels,
and they also participate in the investigation of the acci-
dent (including determining whether the accident was
preventable and recommending future training).
Despite their focus on bus drivers and passengers, road
supervisors also have contact with maintenance person-
nel. In this regard, the job description states that road
supervisors “[a]ssist dispatch and maintenance staff with
vehicle change outs that occur in the field,” and they
provide feedback regarding service needs of buses that
might affect safety and performance. There is no indica-
tion that road supervisors have contact with the mainte-
nance clerks, but they do have contact with the mainte-
nance supervisors. Maintenance DGM Jimenez testified
that road supervisors interact with maintenance supervi-
sors during the daily “morning pull” (which involves
getting the buses ready for daytime routes), as well as
with respect to accidents (both in the field and in the
shop). Similarly, maintenance supervisor Andrew Danz
7
Although referred to as “traffic controllers/radio dispatchers” in
the unit description, this position is, for the most part, referred to simp-
ly as “dispatcher” throughout the record, including in the written job
description. In a few instances, Operations DGM Burlingame referred
to this position as “window dispatcher”; he also indicated that this
position is often referred to as a “vendor dispatcher” in the transit in-
dustry.
stated that he has daily contact with road supervisors,
particularly with respect to reviewing accidents (given
that road supervisors photograph and file accident reports
that the maintenance supervisors review when repairing
buses) and ensuring that necessary buses are “ready to
go.”8
Road supervisors are required to have a high school
diploma or equivalent and some certifications pursuant to
local contract requirements. They are also required to
have passenger transportation or similar experience.9
Although they are expected to have knowledge of pro-
ject-specific vehicles, they are not required to have
maintenance or mechanical training. They are paid hour-
ly (starting at $22/hour) and do not have any required
uniform. The record does not indicate the road supervi-
sors’ specific hours of work.
Like the road supervisors, the dispatchers work in the
Operations Department and report to the Operations
Managers.10 According to Operations DGM Burlingame,
the dispatchers make sure that vehicles begin their daily
route service as scheduled. More specifically, dispatchers
communicate with drivers and the Employer’s clients,
track and report driver sign-in and sign-out times, ensure
routes are timely, and relay any service issues to their
superiors. They also may assign trips to drivers to ensure
adequate distribution of trips among assigned routes.
Although dispatcher duties may include radio use, they
are not radio dispatchers in the traditional sense (the
OCC dispatchers, discussed below, fill that function);
instead, this position dispatches drivers in that they as-
sign vehicles and routes to drivers at the start of the shift.
There is no indication that dispatchers interact with
maintenance clerks, but the record establishes that they
have regular contact with other maintenance personnel.
Maintenance supervisor Jeremy Burrie testified that he
typically interacts with the dispatch office around 1:30
a.m. to discuss upcoming assignments and ensure ade-
quate bus and route coverage. He will also confer with
dispatch as issues arise during pullout or during the
course of repairing a bus; he estimated this took up 5
8 By contrast, Operations DGM Burlingame testified that road su-
pervisors have “minimal interaction” with maintenance supervisors;
even so, he acknowledged the potential for interaction during morning
pull. Burlingame did not address the potential for accident- or incident-
related contact.
9 Operations DGM Burlingame stated that road supervisors must al-
so have a commercial driver’s license, although this requirement is not
explicitly listed in the job description.
10 The dispatchers’ job description states that they report to “Dis-
patch Supervisors,” but Operations DGM Burlingame clarified that this
position no longer exists; his testimony and the Employer’s organiza-
tional chart reflect that dispatchers now report to the Operations Man-
agers.
MV TRANSPORTATION, INC.
3
percent of his work time.11 Similarly, maintenance su-
pervisor Danz stated that he was often on the phone with
dispatchers, and that he speaks with them every morning
before pullout. Operations DGM Burlingame agreed that
dispatchers and maintenance supervisors are in regular
contact, though he estimated such interactions occurred
only “a couple” times each week.12 General Manager
Leonard related a specific example of a dispatcher re-
porting that four additional buses were needed to cover
the day’s routes; Leonard (who was apparently covering
for both Maintenance DGM Jimenez and Operations
DGM Burlingame that day) worked with a maintenance
supervisor to determine which buses could be repaired
quickly enough to ensure coverage. According to Leon-
ard, during this interaction the maintenance supervisor
“was the one who was talking to our dispatcher” to ar-
range for repairs and coverage.13
The dispatchers are required to have a high school di-
ploma or equivalent, experience with Trapeze software,
and a commitment to customer service; the Employer
prefers that dispatchers have 1 year of previous dispatch-
er experience and 2 years of customer service experience.
They are paid hourly (starting at $21/hour) and do not
have any required uniform. The record does not establish
the dispatchers’ specific hours of work.
The OCC dispatchers14 also work in the Operations
Department and report to an Operations Manager.15 They
work in Escondido, but not at the Employer’s facility;
instead, they work at the Sprinter Operating Facility, a
maintenance facility for NCTD’s light rail system which
also houses communications infrastructure for all trains
and buses in NCTD’s service area. OCC dispatchers per-
form traditional radio dispatcher or traffic control func-
tions. As such, they communicate directly with drivers
(as well as road supervisors, dispatchers, and other per-
sons) during the course of the day while coordinating bus
operations, responding to vehicle breakdowns, managing
on-time performance, coordinating emergency responses
11 Burrie indicated that, in addition, dispatchers may contact mainte-
nance supervisors when drivers report issues with their assigned vehi-
cles.
12 Burlingame’s testimony, however, appears to have been limited to
situations where dispatchers contact maintenance supervisors based on
driver-reported issues; his testimony did not address the morning con-
versations discussed by Burrie and Danz.
13 In addition to this testimony, Maintenance DGM Jimenez testified
that “dispatchers” communicate back and forth with maintenance su-
pervisors throughout the day regarding bus availability and the need for
repairs. It is unclear, however, whether he was testifying about this
position or the OCC dispatchers.
14 OCC dispatchers are also referred to as “OCC supervisors” at var-
ious points in the record.
15 Based on the Employer’s organizational chart, it appears that all
OCC dispatchers report to Operations Manager Jackson.
when needed, and responding to calls from drivers and
customers.
The OCC dispatchers are involved in daily communi-
cation with maintenance supervisors, drivers, road super-
visors, and dispatchers. With respect to maintenance su-
pervisors in particular, OCC dispatchers interact with
them regarding issues with vehicles; there is no dispute
that such interactions are frequent, though testimony dif-
fered as to how frequent. Operations DGM Burlingame
stated that OCC dispatchers will contact maintenance
supervisors to help coordinate vehicle repairs, and esti-
mated such interactions take place a dozen times a week.
Maintenance DGM Jimenez commented that mainte-
nance supervisors’ contact with OCC dispatchers is cur-
rently “frequent,” particularly because OCC dispatchers
have to submit service tickets to the radio vendor when
maintenance supervisors or technicians detect issues with
a vehicle’s radio. Maintenance supervisor Danz, for his
part, testified that he speaks to OCC dispatchers fre-
quently enough that he knows who is calling before he
hears the voice, and that there have been days when he
has spent several hours on the phone with OCC dispatch-
ers.
The OCC dispatcher position requires a high school
diploma or equivalent, 1 year of previous dispatcher ex-
perience, 2 years of customer service experience, and
experience with Orbital software. In addition, OCC dis-
patchers must be at least 21 years old, must have a valid
California driver’s license with 2 years of driving experi-
ence, and must have a commercial bus driver’s license
with appropriate endorsements. The OCC dispatchers are
paid hourly ($23/hour to start) and do not have a required
uniform. As with the road supervisors and the dispatch-
ers, the record does not establish the OCC dispatchers’
specific hours of work.
The maintenance clerks work in the Maintenance De-
partment and report to the Maintenance Managers. They
are primarily involved in filing paperwork, completed by
the maintenance supervisors and maintenance techni-
cians, related to bus maintenance. More specifically, they
review and file various types of work orders that are
completed by technicians and “closed” by maintenance
supervisors. In addition, they deal with payroll and time
and attendance records.16 In filing such paperwork,
maintenance clerks interact with day shift maintenance
supervisors on a daily basis (maintenance supervisor
Burrie, who works on the night shift, commented that he
rarely interacts with the maintenance clerks). There is no
indication that maintenance clerks have any contact with
16 Unlike the other classifications involved in this case, the record
does not include a job description detailing the maintenance clerks’
specific duties and job requirements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
road supervisors, dispatchers, or OCC dispatchers. As
indicated, maintenance clerks work on the day shift.
They do not have required uniforms, and the record con-
tains no information as to their wage rate or their re-
quired skills and qualifications.
B. The Disputed Maintenance Supervisors
The maintenance supervisors17 work in the Mainte-
nance Department and report to the Maintenance Manag-
ers. Generally speaking, the maintenance supervisors
coordinate and oversee the repair work done by mainte-
nance technicians and servicers18 on the company’s fleet
of buses, ensuring that the vehicles are safe and ready for
use and that there are enough of them to meet daily
pullout requirements. Among other things, they priori-
tize, assign, and monitor work orders for vehicle repairs;
manage preventive maintenance inspections (PMIs) per-
formed by the technicians; carry out periodic quality con-
trol inspections to ensure buses are working properly;
perform required monthly “efficiency tests” created by
the Employer’s training manager to gauge the techni-
cians’ skills; monitor time and attendance; and, on occa-
sion, make repairs themselves. Both of the maintenance
supervisors who testified estimated that they spend the
vast majority of their time—70 to 75 percent—on pa-
perwork related to the completion of work orders, PMIs,
accidents or other incidents. In particular, they review
work orders and PMI documents to ensure completion,
and, if further actions are required, will work with the
maintenance technicians to complete the necessary tasks.
Maintenance supervisors give their completed paperwork
to the maintenance clerks, who, as previously indicated,
also review the paperwork for completion prior to filing
it.
The maintenance supervisor job description states that
they maintain “close communications” with the Opera-
tions Department; as indicated above, this stated respon-
sibility is consistent with the testimony that maintenance
supervisors have regular contact with road supervisors,
frequent contact with the dispatchers, and still more fre-
quent (and by some accounts constant) contact with the
OCC dispatchers. As also indicated above, they similarly
interact with the maintenance clerks on a daily basis.
The maintenance supervisors have an office in the
maintenance building at each facility. They are paid a
salary starting at about $65,000.00 annually19 and are not
17 Maintenance supervisors are frequently also referred to as “fleet
supervisors” in the record.
18 The maintenance technicians and servicers are members of a bar-
gaining unit currently represented by the Teamsters.
19 One maintenance supervisor testified that he currently receives
about $69,000.00 a year.
eligible for overtime. They have an optional uniform.20
When at full complement, the maintenance supervisors
generally provide 24/7 coverage, so in a facility with
three maintenance supervisors, they work back-to-back
shifts with a 30-minute overlap.21 They are permitted a
30-minute lunch break, for which they do not have to
“clock out.” If there is no maintenance supervisor on a
shift, a senior technician is designated as a “lead” and
performs the duties of the maintenance supervisor on that
shift. The maintenance supervisors must have a high
school education, relevant computer skills, and mechani-
cal skills, including the ability to perform inspections and
repair work on buses, among other requirements.
III. ANALYSIS
Where employees are permitted to vote under chal-
lenge, but their status is not determinative of the election
results, the Board will certify the union if it received a
majority of the ballots cast. If, as here, the parties cannot
thereafter resolve the status of the nondeterminative chal-
lenged voters, the Board will process a timely filed unit
clarification petition to determine the placement or status
of the contested individuals. See, e.g., Kirkhill Rubber
Co., 306 NLRB 559, 559 (1992).
In processing the instant petition, the Regional Direc-
tor expressed some uncertainty regarding the legal stand-
ard to be applied in these circumstances. We clarify here
that when a unit clarification petition seeks to resolve the
unit placement of a classification that voted subject to
challenge, but whose placement was unnecessary to re-
solve prior to the issuance of the certification of repre-
sentative, the applicable standard is the same standard
that would have been applied had the issue been litigated
prior to the underlying election.22
Here, the parties previously stipulated to the inclusion
of the road supervisors, dispatchers, OCC dispatchers,
and maintenance clerks in the unit, but the Employer
contends that the petitioned-for unit is inappropriate if it
includes the maintenance supervisors. Accordingly, the
20 The job description states that the maintenance supervisors are re-
quired to wear a “standard uniform,” and maintenance supervisor Bur-
rie referred to a gray polo shirt and dark blue pants as the maintenance
supervisor uniform. However, General Manager Leonard testified that
this is not required attire.
21 The specific shifts appear to differ between Escondido and
Oceanside. According to Maintenance Manager Larios, at Escondido
first shift is 12 a.m. to 8:30 a.m., second shift is 8:00 a.m. to 4:30 p.m.,
and swing shift is 4 p.m. to 12:30 a.m. At Oceanside, maintenance
supervisor Burrie currently works a 9:30 p.m. to 6 a.m. shift, and
maintenance supervisor Danz currently works a 5:30 a.m. to 2:00 p.m.
shift. Danz indicated that there were currently only two maintenance
supervisors at Oceanside.
22 The same is true of postelection proceedings when the ballots of
the employees voting subject to challenge are dispositive of the election
results. See, e.g., Odwalla, Inc., 357 NLRB 1608, 1608 (2011).
MV TRANSPORTATION, INC.
5
relevant inquiry is whether the maintenance supervisors
and the included employees share a sufficient community
of interest. See, e.g., Johnson Controls, Inc., 322 NLRB
669, 670 (1996). This inquiry is guided by well-
established, judicially approved principles. We recently
reaffirmed those principles, explaining that “in every unit
determination case, the Board’s inquiry will ‘consider
only whether the requested unit is an appropriate one
even though it may not be the optimum or most appro-
priate unit for collective bargaining.’” American Steel
Construction, Inc., 372 NLRB No. 23, slip op. at 3
(2022) (footnote omitted) (quoting Black & Decker Mfg.
Co., 147 NLRB 825, 828 (1964)). As the Supreme Court
has observed:
Section 9(a) of the Act provides that the representative
“designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit
appropriate for such purposes” shall be the exclusive
bargaining representative for all the employees in that
unit. This section, read in light of the policy of the Act,
implies that the initiative in selecting an appropriate
unit resides with the employees. Moreover, the lan-
guage suggests that employees may seek to organize “a
unit” that is “appropriate”—not necessarily the single
most appropriate unit.
American Hospital Association v. NLRB, 499 U.S. 606, 610
(1991) (emphasis in original; citations omitted).23
The Board considers the following factors in determin-
ing whether employees share a community of interest:
whether the employees are organized into a separate
department; have distinct skills and training; have dis-
tinct job functions and perform distinct work, including
inquiry into the amount and type of job overlap be-
tween classifications; are functionally integrated with
the Employer’s other employees; have frequent contact
with other employees; interchange with other employ-
ees; have distinct terms and conditions of employment;
and are separately supervised.
United Operations, Inc., 338 NLRB 123, 123 (2002).
The Regional Director, applying the factors, concluded
that the maintenance supervisors did not share a commu-
23 Sec. 9(c)(5) of the Act provides that a union’s extent of organiza-
tion “shall not be controlling” with respect to the Board’s unit determi-
nations, but “it is well established that Sec[.] 9(c)(5) does not render
employees’ choice of unit irrelevant (to the contrary, the extent of
organization ‘is always a relevant consideration’).” American Steel
Construction, supra, 372 NLRB No. 23, slip op. at 5 (footnote omitted)
(quoting Marks Oxygen Co., 147 NLRB 228, 229 (1964)); see also
NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 441–442
(1965) (explaining that Sec. 9(c)(5) “was not intended to prohibit the
Board from considering the extent of organization as one factor, though
not the controlling factor, in its unit determination”).
nity of interest with the included classifications. Despite
finding that the factors of functional integration and con-
tact favored finding a community of interest, he found
that all other factors weighed against finding a communi-
ty of interest. He therefore clarified the unit to exclude
the maintenance supervisor classification.
Contrary to the Regional Director and our dissenting
colleague, we conclude that the maintenance supervisors
share a community of interest with the included employ-
ees and therefore may appropriately be included in the
unit.
To begin, there is no dispute that the factors of func-
tional integration and contact favor finding a shared
community of interest. With respect to functional inte-
gration, it is clear that the maintenance supervisors and
unit employees necessarily depend on each other to ac-
complish their respective tasks: the operations employees
rely on the maintenance supervisors to ensure adequate
fleet coverage, the maintenance supervisors rely on the
operations employees to advise them of accidents and
coverage issues, and the maintenance supervisors and
maintenance clerks work together to ensure that work
orders and other paperwork have been properly complet-
ed.24 Regarding contact, we find that this factor strongly
favors finding a community of interest. The record clear-
ly establishes that maintenance supervisors are in at least
daily contact with OCC dispatchers, dispatchers, road
supervisors,25 and maintenance clerks.26
Next, we find that the factor of departmental organiza-
tion supports finding a community of interest between
the maintenance supervisors and the unit employees.
There is no dispute that the maintenance supervisors are
in the same department as the included maintenance
clerks. Although the Regional Director acknowledged as
much, he nevertheless concluded (as does our dissenting
colleague) that this factor weighed against finding a
shared community of interest because the maintenance
24 In so finding, we note that, contrary to the Regional Director’s
overly broad characterization, functional integration exists only where
employees must work together and depend on one another to accom-
plish their tasks. See, e.g., WideOpenWest Illinois, LLC, 371 NLRB No.
107, slip op. at 7 fn. 16 (2022).
25 With respect to the frequency of contact between the maintenance
supervisors and the Operations Department employees, we accord
greater weight to the testimony of the maintenance supervisors, the
Maintenance Manager, and Maintenance DGM Jimenez than we do to
the testimony of Operations DGM Burlingame, who generally offered
more conservative estimates. In particular, the maintenance supervisors
who testified offered more specific and detailed testimony about their
contact with operations employees than did Burlingame.
26 We acknowledge that the contact with the maintenance clerks is
partly limited by the fact that maintenance clerks only work on the day
shift. Even so, the uncontradicted testimony establishes that mainte-
nance supervisors as a group have daily contact with maintenance
clerks, even if not every maintenance supervisor does.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
clerks constitute only a minority of included employees.
We do not agree with this reasoning. The parties stipulat-
ed to a unit that includes three classifications from the
Operations Department and one classification from the
Maintenance Department. There is accordingly no dis-
pute that classifications from both departments may ap-
propriately be included in this unit.27 The maintenance
supervisors are, like the maintenance clerks, part of the
Maintenance Department. The fact that maintenance
clerks constitute a minority of the undisputedly included
employees is not a countervailing consideration; it is
simply indicative of the fact that the parties agreed to a
diverse unit straddling two departments, and the unit
placement of the maintenance supervisors should be as-
sessed in the context of that diversity.28 In addition, we
are unaware of any precedent supporting the Regional
Director’s reasoning that the departmental placement of a
majority of included classifications somehow negates the
fact that the maintenance supervisors undisputedly share
a department with a minority of included classifications.
In fact, in an analogous context the Board has found that
this factor supported finding a community of interest
where the classification in question shared a department
with only a minority of unit employees. See Public Ser-
vice Co. of Colorado, supra, 365 NLRB No. 104, slip op.
at 1 fn. 4.29 In short, the maintenance supervisors share a
27 We also note that the fact that a unit combines employees from
different departments does not, by itself, render a unit inappropriate.
See e.g., The Phoenician, 308 NLRB 826, 826–828 (1992) (after find-
ing a separate unit of golf course maintenance employees inappropriate,
the Board found appropriate a unit of golf course maintenance employ-
ees and landscaping employees notwithstanding their placement in
separate departments).
28 The Board has observed that although the diversity of an existing
unit is not a traditional community-of-interest factor, such diversity
“may be relevant to consider generally.” Public Service Co. of Colora-
do, 365 NLRB No. 104, slip op. at 1 fn. 4 (2017). Our colleague faults
us for describing the stipulated unit as diverse because “there is no
community-of-interest analysis of the stipulated unit” (insofar as “the
shared and disparate interest among the included classifications were
not a subject of litigation”). The record, however, contains ample evi-
dence bearing on the community-of-interest factors as they pertain to
the included classifications, and that evidence demonstrates that the
stipulated unit is diverse. We do not agree with our colleague’s addi-
tional suggestion that this unit is not diverse simply because the
maintenance clerks and Operations Department classifications are all
paid hourly.
29 Public Service Co. of Colorado involved a self-determination elec-
tion where the petitioner sought to add a classification (planners) to an
existing unit. See id. In finding that the planners shared a community of
interest with unit employees, the Board observed that “most of the
planners work in the same departments as unit maintenance employees,
and all of the planners are more broadly part of the energy supply area,
along with approximately 500 of the 2000 unit employees.” Id. As this
quote makes clear, the planners shared a department (and larger “area”)
with only a minority of unit employees, yet the Board found that the
shared department supported finding a community of interest.
department with included maintenance clerks, and this
factor therefore favors finding a community of interest.
For similar reasons, we also find, contrary to the Re-
gional Director and our dissenting colleague, that the
factor of supervision favors finding a community of in-
terest between maintenance supervisors and included
employees. Here too, there is no dispute that the mainte-
nance supervisors share supervision with the mainte-
nance clerks, who are undisputedly included in the unit.
Here, too, the Regional Director nevertheless found (and
our dissenting colleague would also find) that this factor
weighed against finding a community of interest because
the maintenance clerks constitute only a minority of in-
cluded employees. And here, too, the minority status of
the maintenance clerks simply reflects the multidepart-
mental unit to which the parties stipulated. Minority or
not, the parties agree the maintenance clerks belong in
the unit, and the maintenance supervisors share common
supervision with the maintenance clerks.30
With respect to the remaining factors, we agree with
the Regional Director that they do not favor finding a
community of interest, but we give them less weight than
the Regional Director did. With respect to job functions,
we note that there is at least some overlap between
maintenance supervisors and maintenance clerks, in that
they both review the same paperwork to ensure comple-
tion; we find that this factor is accordingly entitled to less
weight. Similarly, with respect to terms and conditions of
employment, we observe that none of the classifications
at issue have required uniforms, and although evidence
regarding specific hours of work is limited to the mainte-
nance supervisors, the evidence of contact establishes
that there is at least some overlap in the included classifi-
cations’ and maintenance supervisors’ hours of work.
These similarities at least partly reduce the significance
of the differences in terms and conditions.31 Finally, as
previously noted, we are, as an overall matter, mindful
that the parties have previously agreed to a diverse unit.
Significant differences among included employees are
therefore to be expected but must be considered in the
context of the diverse unit. For this reason, we agree with
30 In analyzing this factor, we note that Executive Resources Associ-
ates, 301 NLRB 400, 402 (1991), and NCR Corp., 236 NLRB 215
(1978), cited by the Regional Director, both involved an analysis of
supervision in the context of analyzing whether a party has rebutted the
presumptive appropriateness of a petitioned-for single-facility unit, an
issue that is not present here.
31 To be clear, we agree with the Regional Director and our dissent-
ing colleague that job functions and terms and conditions of employ-
ment do not support finding that the maintenance supervisors share a
community of interest with the included employees. We merely observe
that there are countervailing considerations that reduce the weight of
these factors.
MV TRANSPORTATION, INC.
7
the Petitioner that the lack of evidence of interchange
between maintenance supervisors and included classifi-
cations is entitled to little weight given that there is no
evidence of interchange between any of the included
classifications.
Our dissenting colleague asserts that we have given
controlling weight to the Union’s extent of organization.
We reject that assertion. As noted, it is well established
that a union’s extent of organization is always an appro-
priate consideration, but our analysis here should make
clear that we do not give it controlling weight. Rather, as
the foregoing analysis makes clear, we have fully as-
sessed the relevant community of interest factors in light
of the available evidence. Our colleague offers no prece-
dential support, meanwhile, for his claims that our analy-
sis represents an “unprecedented watering down” or “dis-
tortion” of the community-of-interest test. Consistent
with Board precedent—which is clear that the diversity
of a preexisting unit is a relevant consideration, if not
itself a community-of-interest factor—we have consid-
ered the nature of the unit to which the parties stipulated
in the course of our community-of-interest analysis. Fi-
nally, under well-established principles already cited, we
need not find that a unit including the maintenance su-
pervisors is the only appropriate unit or the most appro-
priate unit, only that it is an appropriate unit.
IV. CONCLUSION
Taking the foregoing considerations together, we find
that the maintenance supervisors share a community of
interest with the included employees. The factors of
functional integration, contact, departmental organiza-
tion, and supervision all favor including the maintenance
supervisors. Based on the circumstances of this case, the
absence of interchange evidence is entitled to limited
weight, and the considerations discussed above reduce
the significance of the differences in job functions and
terms and conditions of employment. Accordingly, on
balance the relevant factors support including the
maintenance employees in the unit. Cf. K&N Engineer-
ing, Inc., 365 NLRB No. 141, slip op. at 4 (2017) (find-
ing that including maintenance tech classifications in a
stipulated unit of janitors and productions employees
“effectively tie[d] the unit together” and was therefore
appropriate where the maintenance techs worked in the
same department as and shared supervision with the jani-
tors, while also being functionally integrated and having
contact with the production employees); Public Service
Co. of Colorado, supra, 365 NLRB No. 104, slip op. at 1
fn. 4 (finding community of interest based on functional
integration, contact, departmental organization, and skills
and functions).32 We therefore reverse the Regional Di-
rector’s decision clarifying the unit to exclude mainte-
nance supervisors and shall instead clarify the unit to
include the maintenance supervisors.33
ORDER
The National Labor Relations Board clarifies the col-
lective-bargaining unit represented by Amalgamated
Transit Union Local 1309 specifically to provide that the
classification of maintenance supervisor is included.
Dated, Washington, D.C. December 27, 2023.
______________________________________
Lauren McFerran, Chairman
________________________________________
David M. Prouty, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER KAPLAN, dissenting.
I disagree with my colleagues’ decision to grant re-
view and to reverse the Regional Director's decision ex-
cluding the Maintenance Supervisors because, to put it
succinctly, the Regional Director got it right. As he
found, the disputed Maintenance Supervisors share only
two of the factors of the Board’s community-of-interest
test with the stipulated unit, which is insufficient to in-
clude them. My colleagues’ decision to the contrary is
the result of an unprecedented watering down of the
community-of-interest test and effectively gives control-
ling weight to the Union’s extent of organizing, which is
prohibited by Section 9(c)(5) of the Act.1 Accordingly, I
would deny review.
32 We therefore do not agree with the Regional Director’s comment,
embraced by our dissenting colleague, that the result would be the same
if the factors of departmental organization and supervision were found
to favor a community-of-interest finding. We observe that neither the
Regional Director nor our dissenting colleague offer any analysis or
case law in support of this assertion. Although our dissenting colleague
attempts to distinguish Public Service Co. of Colorado and K&N Engi-
neering on various grounds, the fact remains that the overall balance of
the relevant community-of-interest factors in those cases is comparable
to our balancing of the factors here.
33 Given that the maintenance supervisors are properly included in
the unit under community-of-interest principles, we need not address
the Petitioner’s argument—raised for the first time in its request for
review—that the inclusion of maintenance supervisors in the unit re-
sults in or perfects a “residual” unit.
1 Sec. 9(c)(5) provides: “[i]n determining whether a unit is appropri-
ate for the purposes specified in subsection (b) [of this section] the
extent to which the employees have organized shall not be controlling.”
I note that my colleagues complain that I have “offer[ed] no prece-
dential support” for my assertion that their decision constitutes an “un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
Background
The Employer provides public transportation services
under contracts with various government entities, includ-
ing the North County Transit District in San Diego
County, California. The Petitioner filed a petition for
certification of a unit operating out of the Employer’s
facilities in Oceanside and Escondido. Thereafter, the
parties stipulated to a unit of all non-represented, hourly
wage-earning employees in the Employer’s Operations
and Maintenance departments. The stipulated Operations
Department employees comprise twelve Road Supervi-
sors, five Operations Control Dispatchers, and eight
Traffic Controllers/Radio Dispatchers; the stipulated
Maintenance Department employees are two Mainte-
nance Clerks. In addition, the Petitioner seeks to include
the six Maintenance Supervisors, who are also in the
Maintenance Department.2 If included, they would be the
only salaried employees in the unit. Disagreeing on
whether the Maintenance Supervisors belong in the unit,
the parties agreed to allow the Maintenance Supervisors
to vote, with the understanding that the Employer would
challenge their ballots. The Union prevailed in the elec-
tion and filed the instant unit-clarification petition to
clarify the certified unit to include the Maintenance Su-
pervisors.3
Regional Director’s Decision
In reviewing the Petitioner’s unit-clarification petition,
the Regional Director considered the Board’s traditional
community-of-interest factors for determining whether a
petitioned-for unit is appropriate for bargaining. Under
this analysis, the Board considers:
whether the employees are organized into a separate
department; have distinct skills and training; have dis-
tinct job functions and perform distinct work, including
inquiry into the amount and type of job overlap be-
tween classifications; are functionally integrated with
the Employer's other employees; have frequent contact
with other employees; interchange with other employ-
precedented watering down” of the community-of-interest test. This is a
strange criticism; by definition, it is impossible to offer precedent sup-
porting something that is unprecedented. Indeed, the only way to estab-
lish that my colleagues’ decision is not unprecedented is to show that
the Board has previously applied the community-of-interest test in the
manner in which it is being applied in this case. However, I have not
found any case in which the Board has done so and, for the reasons set
forth in this dissent, I do not believe that my colleagues have been
successful in their attempt to identify such a case.
2 The Maintenance Supervisors oversee the work of maintenance
technicians and servicers, who are also in the Maintenance Department
in a separate bargaining unit, which is represented by a different union
from the Petitioner.
3 The challenged ballots were not determinative of the results of the
election.
ees; have distinct terms and conditions of employment;
and are separately supervised.
United Operations, Inc., 338 NLRB 123, 123 (2002).
The Regional Director found that, with the exception
of the factors of functional integration and contact, the
community-of-interest factors weigh against finding that
the Maintenance Supervisors share a community-of-
interest with the employees in the stipulated unit. With
regard to departmental organization and supervision, the
Regional Director noted that the Maintenance Supervi-
sors and the two Maintenance Clerks are organized in the
Maintenance Department and share the same supervisors.
He found, however, that the fact that the Maintenance
Supervisors share these interests with only two of the
employees in the stipulated unit—who only represent
approximately 7 percent of the unit—weighs against
their inclusion. As for skills and training, the Regional
Director found that the Maintenance Supervisors possess
technical mechanical skills for the purpose of performing
inspections and maintenance on vehicles, familiarity with
laws and regulations associated with the safe operation of
a maintenance facility, and numerous other technical
qualifications required for their duties of overseeing the
Employer's technicians and maintenance of vehicles. By
contrast, no other employees possess similar skills or
training. With regard to job function, the Regional Direc-
tor found that Maintenance Supervisors oversee preven-
tative maintenance and compliance and sign off on re-
pairs, and have numerous related functions that no other
unit employees perform. Those functions that they alone
perform include handling, reviewing, and verifying work
orders; reviewing preventative maintenance inspections
sheets for accuracy; completing accident-related paper-
work and estimates; and performing preventative
maintenance inspections. Because no other employees
perform similar functions, this factor also weighs against
their inclusion in the unit.
Further, the Regional Director found no evidence of
interchange among the unit classifications, and also
found that the critical factor of terms and conditions of
employment weighed against including the Maintenance
Supervisors in the unit. As noted above, the Maintenance
Supervisors are the only petitioned-for employees who
are paid on a salaried basis and are exempt from over-
time, while all others are paid an hourly wage. Mainte-
nance Supervisors work daytime and nighttime shifts
covering 24 hours. The work shifts of other employees
are not in the record, although it appears that the Mainte-
nance Clerks do not work nights and only have contact
with the day-shift Maintenance Supervisors. The Re-
gional Director concluded that none of the above factors
MV TRANSPORTATION, INC.
9
weigh in favor of including the Maintenance Supervisors
in the unit.
Indeed, he found that the only community-of-interest
factors shared by the Maintenance Supervisors and the
other employees are functional integration and contact,
which, as he found, is not enough to include them in the
unit.4
Analysis
The Regional Director correctly applied the traditional
community-of-interest standard and correctly found that
the interests shared by the petitioned-for employees here
are too disparate to form a community of interest within
the stipulated unit.5 As he found, although two factors
supported inclusion, the differences between the Mainte-
nance Supervisors and the other employees far out-
weighed the similarities.6
My colleagues, however, reject the Regional Direc-
tor’s conclusion and rely instead on novel grounds that
are inconsistent with the Board’s traditional community-
of-interest analysis.7 To begin, my colleagues conclude
that because the Employer agreed to include the two
Maintenance Clerks, the stipulated unit is “diverse.”
From there they seem to conclude that the parties’ stipu-
lation to the so-called “diverse” unit justifies their failure
to adequately apply the community-of-interest test in
determining the appropriateness of the Maintenance Su-
pervisors’ inclusion. To be precise, they make this sug-
gestion with respect to the factors that the employees do
not share, arbitrarily minimizing the importance of those
factors while elevating the importance of the few factors
that they do share. To the extent that they attempt to jus-
tify their interpretation of the community-of-interest
standard because the unit at issue is “diverse,” Board law
establishes that, even for “diverse” units, the traditional
community-of-interest analysis is controlling.8 Our in-
4 The Regional Director also found, and I agree, that even assuming
arguendo that the limited shared departmental organization and super-
vision with the two Maintenance Clerks weighed in favor of finding a
shared community of interest with the unit, that would not warrant
clarifying the Maintenance Supervisors into the unit.
5 E.g., Bergdorf Goodman, 361 NLRB 50, 53 (2014).
6 For the reasons he states, I agree with the Regional Director that
the Maintenance Supervisors share the factors of functional integration
and contact with all unit employees, but that these do not warrant in-
cluding them in the unit.
7 I agree with my colleagues that when a unit clarification petition
seeks to resolve the unit placement of a classification that voted subject
to challenge, but whose placement was unnecessary to resolve prior to
the issuance of the certification of representative, the applicable stand-
ard is the same standard that would have been applied had the issue
been litigated prior to the underlying election—namely, whether the
disputed classification shares a sufficient community of interest with
the existing unit.
8 My colleagues’ reliance on Public Service Company of Colorado,
365 NLRB No. 104 (2017), is misplaced. The Board there expressly
quiry is whether the Maintenance Supervisors share a
sufficient community of interest with the unit based on
the traditional community-of-interest factors. It is not
whether the lack of mutual interests can be excused
based on the so-called “diversity” of the unit or some
other strategically applied label.9
Further, this “diverse” unit label itself is misplaced.
Although the unit includes one classification of employ-
ees outside of the Operations Department—the Mainte-
nance Clerks—it is telling that the Maintenance Clerks
are hourly wage earners like the rest of the agreed-upon
employees. And it is further telling that the Maintenance
Clerks are the only other hourly wage earners left unrep-
resented in their department.10 The fact that that the Em-
ployer included these hourly employees in a unit with
other hourly employees does not justify shoehorning an
additional classification with substantially disparate in-
terests into the unit, let alone claiming that they share
sufficient interests with the unit as a whole, or that the
lack of shared interests is of less importance. Further-
more, labeling the unit “diverse” is unwarranted in light
of the fact that there is no community-of-interest analysis
of the stipulated unit. Rather, consistent with the parties’
arguments, the Regional Director focused on the Mainte-
nance Supervisors’ supervisory status and on their inter-
ests in relation to those of the other employees.11
declined to rely on the diversity of the existing unit in place of a show-
ing of a shared community of interest. Id., slip op. at 1 fn. 4. In contrast,
my colleagues rely on the so-called diversity of the stipulated unit to
justify glossing over the lack of relevant shared interests between the
disputed Maintenance Supervisors and the unit employees. But, as my
colleagues acknowledge, the Board in Public Service Company empha-
sized that “diversity” is not one of the traditional community-of-interest
factors. Id.
9 My colleagues offer no compelling justification why less weight
should be applied to three of the community-of-interest factors that do
not favor inclusion—namely interchange, job function, and terms and
conditions of employment—but not to the rest of the factors. For exam-
ple, they contend that the lack of interchange should be given less
weight because there is no evidence of interchange among other stipu-
lated employees. No surprise there: there was no need for a community-
of-interest analysis among the stipulated employees to determine
whether there was interchange among them. Moreover, the Regional
Director properly refuted the same argument made by my colleagues
when he said, “[t]o the extent that Petitioner argues that there is limited
to no evidence of interchange between any of the positions, I do not
find this persuasive, as it does not establish that interchange exists
between maintenance supervisors and positions in the existing unit.”
10 Now that the majority clarifies the unit to include the Maintenance
Supervisors, what may have been a simple matter of bargaining a single
wage scale for a unit of hourly employees may be far more complicated
with the inclusion of a salaried, overtime-exempt job classification that
lacks sufficient shared interests with more than 90 percent of the unit.
11 Although my colleagues contend that there is “ample evidence
bearing on the community-of-interest factors as they pertain to the
included classifications,” the shared and disparate interests among the
included classifications were not a subject of litigation, and neither the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10
As discussed, my colleagues’ analysis is based on an
incorrect—and strikingly skewed—interpretation of the
community-of-interest factors. Significantly, because the
Maintenance Supervisors are in the same department and
share supervision with the two Maintenance Clerks, my
colleagues find that the factors of departmental organiza-
tion and supervision support finding a community of
interest between the Maintenance Supervisors and the
whole unit. In so finding, they pass over the fact that the
other twenty-five employees—more than 90 percent of
the unit—are in the Operations Department and separate-
ly supervised. They find that the commonalities are
shared with a stipulated classification, and, further, that
the fact that there are only two employees in this classifi-
cation should not matter in the analysis. This conclusion
is a distortion of the purpose of the community-of-
interest test. Our responsibility is “to group together only
employees who have substantial mutual interests in wag-
es, hours, and other conditions of employment.”12 Alt-
hough our test does not require a formula by which a
particular number of factors must be shared among em-
ployees, the fact that more than 90 percent of the unit is
in a different department under different supervision than
the Maintenance Supervisors does not establish “substan-
tial mutual interests” and cannot weigh in favor of inclu-
sion as my colleagues find.13
With regard to the job function and terms and condi-
tions of employment factors, my colleagues point to in-
significant similarities between the Maintenance Super-
visors and the two Maintenance Clerks. They note that
Maintenance Supervisors and Maintenance Clerks re-
view the same paperwork to ensure job completion. The
evidence in fact shows that the majority of the paperwork
handled by the Maintenance Supervisors relates to work
orders, inspections, accidents, efficiency, and quality
limited evidence nor the cases my colleagues rely on justify their wa-
tered-down application of the community-of-interest test and the result-
ing inclusion of the maintenance supervisors in the unit.
12 Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157,
172–73 (1971).
13 My colleagues’ reliance on Public Service Company of Colorado,
365 NLRB No. 104, for the proposition that a job classification may be
included in a unit even if it shares interests with a minority of that unit
is irrelevant to this case. Public Service Company involved an Armour-
Globe election of employees in a job classification that was in a de-
partment with other unit employees and was “more broadly part of the
energy supply area, along with approximately 500 of the 2000 unit
employees.” Id., slip op. at 1 fn. 4. The 2000-employee unit was spread
throughout dozens of facilities across the state of Colorado and was
divided among three “areas.” Sharing substantial interests with the unit
as a whole and being organized in a functional “area” with 500 em-
ployees is not comparable to the current case, in which the disputed
employees share minimal interests with the unit as a whole and share
two additional factors with only 7 percent of the unit, thus weighing
against, not for, inclusion.
control of work performed by the technicians and ser-
vicers who report to them and are in a different bargain-
ing unit. The Maintenance Clerks file work orders and
deal with payroll and time and attendance records. As the
Regional Director found, “[w]hile the maintenance su-
pervisor completes a significant amount of paperwork
and the maintenance clerk files that paperwork, their
actual job duties in relation to the paperwork are distinct,
as the supervisor’s role is substantive in nature, and the
clerk’s role is clerical in nature.” The lack of substantive
overlap in what the Maintenance Supervisors and Clerks
do with the department paperwork highlights the lack of
similarity in their respective job functions. Moreover, the
Maintenance Supervisors, unlike the Maintenance
Clerks, work in designated offices, and the night-shift
Maintenance Supervisors have no contact with Mainte-
nance Clerks, who only work day shifts. My colleagues
also essentially ignore the differences in terms and condi-
tions of employment—notably the fact that, as noted
above, the stipulated unit comprises all hourly wage
earners in the two departments, while the Maintenance
Supervisors are salaried. In light of these factors, and in
particular the different method of providing wages, there
is no basis for finding that the Maintenance Supervisors
share a community of interest with the employees in the
unit.14
14 K&N Engineering, Inc., 365 NLRB No. 141 (2017), cited my col-
leagues, is inapposite, as my colleagues omit numerous community-of-
interest factors shared by disputed and stipulated employees in citing
that decision. There, the Board determined that a stipulated unit of 641
production employees in more than thirty classifications was not ap-
propriate under the traditional community-of-interest test because of a
lack of shared interests between the stipulated janitors and the other
stipulated employees. Id., slip op. at 4. However, the Board found that
disputed maintenance tech employees should be included in the unit. Id.
The stipulated employees and the disputed maintenance tech employees
were all hourly employees; had the same health and welfare, 401(k),
and leave benefits; were subject to the same employee handbook, at-
tendance policies, disciplinary policies, and parking and clock-in pro-
cedures; and had contact with janitors as well as with the other produc-
tion employees. Id. In addition, the maintenance techs shared a depart-
ment and supervision with the janitors and attended the same meetings.
Id. Their work was functionally integrated with that of the other pro-
duction employees; they repaired and maintained production employ-
ees’ machines and, in testing repairs, manufactured products that were
counted toward production employees’ quotas. Id. The Board conclud-
ed that the maintenance techs should be included. In contrast, the
Maintenance Supervisors here have no such breadth of shared interests
with the unit.
Accordingly, contrary to my colleagues’ assertion, the manner in
which the Board balanced the community-of-interest factors in K&N
Engineering, as well as in the above-described Public Service Company
of Colorado, is not at all comparable to the manner in which my col-
leagues are balancing the community-of-interest factors here.
MV TRANSPORTATION, INC.
11
Conclusion
For the above reasons, I would not piggyback the six
Maintenance Supervisors into the unit on the backs of the
two Maintenance Clerks based on two factors that the
Clerks themselves do not share with the other 93 percent
of the unit. Nor would I rely on the so-called diversity of
the unit to minimize the importance of the traditional
community-of-interest test, which my colleagues do here.
Accordingly, because the Regional Director correctly
determined that the Maintenance Supervisors should be
excluded from the existing unit, and the Petitioner has
failed to establish grounds for granting review, I would
deny review.
Dated, Washington, D.C. December 27, 2023
______________________________________
Marvin E. Kaplan, Member
NATIONAL LABOR RELATIONS BOARD