Transdev Services, Inc. v. NLRB ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-3570
___________________________
Transdev Services, Inc.
Petitioner
v.
National Labor Relations Board
Respondent
Amalgamated Transit Union, Local 689
Intervenor
___________________________
No. 20-1057
___________________________
Transdev Services, Inc.
Respondent
v.
National Labor Relations Board
Petitioner
Amalgamated Transit Union, Local 689
Intervenor
____________
National Labor Relations Board
____________
Submitted: January 13, 2021
Filed: March 16, 2021
____________
Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Transdev Services, Inc., (Transdev) petitions for review of an order of the
National Labor Relations Board (the Board). The order allowed a certain class of
Transdev’s workers to seek union representation when the Board determined that
Transdev failed to show the workers were supervisors under Section 2(11) of the
National Labor Relations Act (the Act or the NLRA), 29 U.S.C. § 152(11). The
Board cross-petitions for enforcement of its related order determining that Transdev
unlawfully refused to bargain with the union as the certified representative of the
workers. After a careful review of the record, we deny Transdev’s petition for
review and grant the Board’s cross-petition for enforcement of its order.
I.
Transdev (formerly Veolia Transportation Services) provides transportation
services in the Washington, D.C. metropolitan area pursuant to a contract with the
Washington Metropolitan Area Transit Authority (WMATA). As relevant here,
Transdev employs operators who drive vans, as well as road supervisors and lead
road supervisors (collectively, road supervisors) who observe operators on their
routes to make sure they comply with the policies and procedures of Transdev and
WMATA. The operators and road supervisors work out of two facilities: one in
Hyattsville, Maryland, and one in Washington, D.C. The operators based in
Hyattsville are represented by Amalgamated Transit Union Local 1764 (Local
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1764), and the operators based in D.C. are represented by Amalgamated Transit
Union Local 639 (Local 639).
Amalgamated Transit Union Local 689 (Local 689) petitioned for an election
to represent the road supervisors. The Board’s Regional Director held a hearing to
determine whether the road supervisors were “supervisors” under the Act 1 and thus
exempt from the Act’s coverage and ineligible for union representation. Two road
supervisors, Thomas Holtz and Brian Jackson, testified. 2 They explained that when
road supervisors observe operators violating WMATA or Transdev policies and
procedures, they “counsel” the offending operator either verbally or in writing using
a road observation report (ROR). Road supervisors determine whether to
memorialize a counseling in writing in a ROR; both Jackson and Holtz stated that
they consider factors such as the operator’s experience level and the severity of the
1
The Act defines “supervisor” to be:
any individual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent
judgment.
29 U.S.C. § 152(11).
2
The record contains a written “job description” for road supervisors that was
introduced at the hearing before the Regional Director. However, the record further
reveals that the description was created a month before Local 689’s petition was
filed and was a “revised” version that differed from the version Jackson received
when he first started working at Transdev. The Regional Director acknowledged
that the evidence “suggest[ed] the document was prepared recently” and that many
of the listed responsibilities “contain[ed] conclusory language, such as ‘effectively
recommends.’” Accordingly, the Regional Director gave “little weight” to the
description itself and instead “rel[ied] more heavily on the testimony about the road
supervisors’ duties and responsibilities.” Transdev did not challenge this aspect of
the Regional Director’s decision to the Board or to this Court.
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misconduct in making this determination. They both stated they would memorialize
the counseling in a ROR if they witnessed an operator repeating behavior for which
the operator had previously been counseled. Holtz also testified that Transdev
supplied to the road supervisors a “hot list,” a list of operators who have committed
the same infraction “over and over again,” and ordered road supervisors to “keep an
eye out” for those operators. After documenting a counseling in a ROR, the road
supervisors turn over the ROR to the administrative assistant for Transdev’s
operations director. Holtz said he did not know what happens to a ROR after he
turns it in. Jackson stated that RORs are placed in the offending operator’s personnel
file but admitted that he did not know what impact the RORs have on the operator’s
job. He also acknowledged that purely verbal counseling has no impact on an
operator’s job. Although Jackson and Holtz characterized both verbal and written
counseling as part of a “progressive” discipline process, there was no testimony or
evidence showing that a verbal or written counseling had led to future discipline for
an operator.
Jackson also testified that he had recommended discipline for operators more
than 25 times in the past year, stating that his recommendations are “usually”
followed but may not be followed due to “other variables.” He did not indicate if
these recommendations were contained in RORs or made by some other means, nor
did he provide any examples of discipline recommendations he had made. He also
stated that discipline is handled on a case-by-case basis and is “a collective effort
sometimes.” Holtz testified that management may conduct further investigation
when he submits a ROR, depending on the severity of the violation. Holtz said he
has never recommended discipline while working for Transdev.
Jackson and Holtz also testified about their roles in investigating operator
accidents. Once a road supervisor is summoned to the scene of an accident, he or
she gathers as many facts as possible through witnesses, physical evidence, and the
operator. Based on those facts, the road supervisor determines if the accident was
preventable or nonpreventable. The road supervisor fills out a packet of information,
which includes the preventability determination, and turns in the packet to the safety
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department. Jackson testified that sometimes he makes preventability
determinations on his own, and sometimes it is a “collective decision” with the safety
department. Jackson also stated that his preventability determinations are not final
and can be overruled by the safety department if, for example, management officials
view dash-cam video from the operator’s van and then reach a different
determination. Although a preventability determination may result in discipline,
Jackson stated that he does not fill out any forms for discipline, explaining that the
operations manager handles that. Jackson testified regarding one specific example
of an accident investigation he conducted and in which he determined that the
accident was preventable. He could only vaguely recall the details of the accident
but stated that his determination was “likely” based on the facts he gathered “and
then also in conjunction with the safety supervisor.” Similarly, Holtz testified
regarding one accident investigation he conducted and in which he determined the
accident was nonpreventable, but the safety department later overturned his
determination.
Jackson and Holtz also testified regarding road supervisors’ authority to
remove operators from service. Jackson explained that if he observes certain
egregious misconduct, he can pull an operator from service “with no questions
asked” and send that operator back to base for retraining. However, Jackson
admitted that the safety director makes the final decision whether to retrain an
operator. For his part, Holtz stated that his decisions to take an operator out of
service can be overruled by the dispatch supervisor. Jackson claimed that operators
are not paid for the time they are removed from service. Jackson and Holtz also
explained they can remove an operator from service if they have “reasonable
suspicion” to believe the operator is under the influence of drugs or alcohol, for
which they had received special reasonable suspicion training. They explained that
making a reasonable suspicion determination requires independent judgment, in that
they need to know what signs to look for and to rely on their own personal
experience. After removing an operator from service based on reasonable suspicion,
the road supervisor contacts the safety department and takes the operator to a testing
facility. If the test comes back negative, the operator is sent back out on his or her
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route. Although the operator is administratively suspended until test results return,
the operator is ultimately paid for the time he or she was suspended if the test comes
back negative. Holtz testified regarding one incident in which he removed an
operator from service based on reasonable suspicion but did not escort the operator
for testing until a manager determined there was probable cause to do so. The record
is unclear as to whether this incident took place during Holtz’s tenure working for
Transdev or when he was working for another contractor.
Jackson and Holtz also testified about their alleged authority to reward
operators. Jackson explained that road supervisors carry out safety incentive
programs developed by the safety department. He discussed a recent “safety blitz,”
for which he was given three $25 gift cards to distribute. A different safety message
was posted each day during the blitz, and Jackson was “instructed” to approach
operators on a “predetermined” route and ask if they knew the safety message. If
the operator recited the safety message “correctly or at least to [his] satisfaction,”
Jackson gave the operator the gift card. Holtz testified that he had intended to give
a gift card to one operator but ultimately did not when he observed that the operator
was not wearing a safety vest. Holtz said he was instructed not to give a gift card to
any operator who failed to follow proper procedures, which includes wearing a
safety vest.
The Regional Director issued a decision dismissing the petition on the grounds
that the road supervisors are statutory supervisors and thus exempt from coverage
under the NLRA. The Regional Director reasoned that road supervisors have the
authority to discipline and effectively recommend discipline of operators. The
Regional Director declined to reach the issue of whether road supervisors have the
authority to reward operators, and he additionally found that Transdev failed to meet
its burden of showing that road supervisors responsibly direct operators.
The Board granted Local 689’s petition for review, stating that the petition
raised a substantial issue regarding whether the road supervisors have the authority
to discipline or effectively recommend discipline. On review, the Board (with one
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member dissenting) reversed, finding Transdev failed to show that the road
supervisors have the authority to discipline or effectively recommend discipline.
The Board noted that Transdev had not sought, and the Board had not granted,
review on the issues of whether road supervisors have the authority to responsibly
direct or the authority to reward operators. The Board opined that even assuming
those issues were properly before it, Transdev failed to meet its burden of proof.
Therefore, the Board found Transdev failed to establish that the road supervisors
were statutory supervisors exempt from the NLRA’s coverage and remanded for an
election.
Following an election, the Board certified Local 689 as the exclusive
collective bargaining representative for the road supervisors. After Transdev refused
to bargain, Local 689 commenced a refusal-to-bargain proceeding, and the Board
issued a decision ordering Transdev to bargain with the union. Transdev filed a
petition for review in this Court, 3 and the Board filed a cross-petition for
enforcement. We also granted Local 689 leave to intervene in support of the Board.
II.
The NLRA provides employees certain rights, including the right to “bargain
collectively through representatives of their own choosing,” that do not extend to
supervisors. See 29 U.S.C. §§ 152(3), 157. The Act’s definition of “supervisor” has
three components. See NLRB v. Mo. Red Quarries, Inc., 853 F.3d 920, 924 (8th
Cir. 2017) (citations omitted). “First, the individual must have the authority to
accomplish or effectively to recommend one or more of the twelve supervisory
actions listed in § 152(11) . . . .” Id. at 925 (citing Multimedia KSDK, Inc. v. NLRB,
303 F.3d 896, 899 (8th Cir. 2002) (en banc)). These actions include disciplining,
3
The NLRA allows both the Board and an aggrieved person to file a petition
in any United States Court of Appeals where the alleged unfair labor practice
occurred or where “such person resides or transacts business.” See 29 U.S.C.
§ 160(e)-(f). The parties agree that Transdev is a nationwide corporation who
“transacts business” within the Eighth Circuit.
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rewarding, and responsibly directing other employees. See 29 U.S.C. § 152(11).
“Second, ‘the authority must involve the use of independent judgment and be more
than routine or clerical in nature.’ Third, the authority must be held in the interest
of the employer.” Mo. Red Quarries, Inc., 853 F.3d at 925 (quoting Multimedia
KSDK, Inc., 303 F.3d at 899).
The party asserting supervisory status—here, Transdev—bears the burden of
establishing that status by a preponderance of the evidence. See Oakwood
Healthcare, Inc., 348 N.L.R.B. 686, 694 (2006); see also Mo. Red Quarries, Inc.,
853 F.3d at 925 (citing NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711
(2001)). Conclusory evidence does not satisfy that burden. See Lynwood Manor,
350 N.L.R.B. 489, 490 (2007); see also Frenchtown Acquisition Co. v. NLRB, 683
F.3d 298, 305 (6th Cir. 2012) (“General testimony asserting that employees have
supervisory responsibilities is not sufficient to satisfy the burden of proof when there
is no specific evidence supporting the testimony.”).
“The determination whether an employee is excluded from the protections of
the Act because of supervisory status is a fact-intensive question ‘which calls upon
the [Board’s] special function of applying the general provisions of the Act to the
infinite gradations of authority within a particular industry.’” Securitas Critical
Infrastructure Servs., Inc. v. NLRB, 817 F.3d 1074, 1078 (8th Cir. 2016) (citation
omitted). Accordingly, the Board’s “factual findings are reviewed ‘under the
deferential substantial evidence standard of review.’” Id. (citation omitted). “Under
this deferential standard, ‘the Board must produce more than a mere scintilla of
evidence; it must present on the record such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,’” considering the entire record
“including the body of evidence opposed to the Board’s view.” Id. (citation
omitted). “When conflicting evidence is presented to the Board, ‘we may not
preempt “the Board’s choice between two fairly conflicting views” of that
evidence.’” JHP & Assocs., LLC v. NLRB, 360 F.3d 904, 911 (8th Cir. 2004)
(citation omitted).
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In its petition for review, Transdev asserts that road supervisors are statutory
supervisors because they (1) discipline and effectively recommend discipline of
operators; (2) reward operators; and (3) responsibly direct operators, and that
Transdev met its burden to prove supervisory status. Additionally, Transdev
contends that the Board’s decision was unreasonable; inconsistent with the NLRA;
the product of ad-hoc decision-making reflecting a pro-union bias; and arbitrary and
capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 706 (APA).
A.
Transdev first argues that the Board’s conclusion that Transdev failed to prove
road supervisors have disciplinary authority was not supported by substantial
evidence. Transdev complains that the Board ignored “undisputed” evidence that
road supervisors discipline operators by (1) issuing verbal counseling and written
RORs, both of which constitute discipline under the purportedly progressive
discipline systems of both collective bargaining agreements (CBAs) applicable to
operators; and (2) removing operators from service. Transdev also asserts that it
presented sufficient evidence demonstrating that road supervisors effectively
recommend discipline of operators by (1) filling out and submitting RORs, and
(2) investigating and reporting operator accidents.
1.
We first consider whether substantial evidence supports the Board’s
determination that the road supervisors’ issuance of counseling or warnings to
operators was not part of a progressive discipline policy and thus was not discipline
for purposes of the Act. “To confer [statutory supervisor] status, the exercise of
disciplinary authority must lead to personnel action, without the independent
investigation or review of other management personnel.” Lucky Cab Co., 360
N.L.R.B. 271, 272 (2014) (citation omitted) (stating that “[r]eporting on incidents of
employee misconduct is not supervisory if the reports do not always lead to
discipline, and do not contain disciplinary recommendations” (alteration in
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original)). “Where oral and written warnings simply bring to an employer’s
attention substandard performance by employees without recommendations for
future discipline, the role of those delivering the warnings is nothing more than a
reporting function, which is not supervisory authority.” Williamette Indus., Inc.,
336 N.L.R.B. 743, 744 (2001). Additionally, Transdev bears the burden of proving
the existence of a progressive discipline system and the role warnings issued by
putative supervisors play within it. See The Republican Co., 361 N.L.R.B. 93, 99
(2014). Progressive discipline is not established where an ostensibly progressive
system is not actually applied. See, e.g., Ken-Crest Servs., 335 N.L.R.B. 777, 777-
78 (2001) (finding verbal warnings were not disciplinary, notwithstanding a putative
progressive discipline system, because employee could receive multiple verbal
warnings without further discipline and there was “no clear connection” between
verbal warnings and other disciplinary measures); The Republican Co., 361
N.L.R.B. at 99 & n.8 (finding verbal warnings were not disciplinary because there
was no evidence of any “fixed relationship” between such warnings and “later,
actual discipline”).
Substantial evidence supports the Board’s conclusions that neither CBA sets
forth a progressive discipline policy and that Transdev’s evidence was “too vague,
limited, and conflicting to establish the role that the road supervisors’ warnings”
played within the purportedly progressive discipline system. See Pet’r’s Addendum
6. In Local 639’s CBA, the disciplinary policy is not labeled a progressive policy.
The policy states that Transdev will “generally” follow a four-step process for rule
violations, but it reserves the right to repeat disciplinary steps as necessary or to skip
steps for a nonexhaustive list of “serious” infractions. Given these qualifications,
the Board concluded Transdev failed to establish that the discipline policy was
progressive. This conclusion is supported by Board precedent. See Lucky Cab Co.,
360 N.L.R.B. at 273 (concluding that employer did not have progressive discipline
policy because handbook stated that employer “may exercise its discretion in
utilizing forms of discipline”).
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Regarding Local 1764, the Board opined that Transdev’s evidence about road
supervisors’ disciplinary authority did not distinguish between operators subject to
Local 639’s CBA and those subject to Local 1764’s CBA. So “even though Local
1764’s agreement articulates a progressive policy, the record does not establish that
any of the disciplinary actions in evidence were taken pursuant to that policy” as
opposed to Local 639’s non-progressive policy. Pet’r’s Addendum 7. The Board
further stated that even assuming the relevant testimony referred to actions taken
pursuant to an ostensibly progressive policy, the evidence did not establish that
Transdev actually applies a progressive policy or the role that road supervisors’
warnings played within it: (1) Transdev produced no evidence about what happens
to a written ROR after submission, including whether or to what extent management
relies on RORs to make disciplinary decisions; and (2) Transdev produced no
evidence of higher levels of discipline referring to prior infractions, even though
road supervisors were provided with a “hot list” of operators who have committed
the same infraction “over and over again.” Based on this evidence, the Board
reasonably concluded that Transdev failed to meet its burden of proving the
existence of a progressive discipline system.
Moreover, the Board reasonably concluded that Transdev failed to show
RORs are anything more than reports that make no recommendation for discipline
and do not automatically lead to discipline. See Lucky Cab Co., 360 N.L.R.B. at
272. The record supports the Board’s observation that RORs do not contain
discipline recommendations. Additionally, although Jackson testified that written
RORs are placed in operators’ personnel files, Transdev cites no authority for the
proposition that merely placing a report in an employee’s personnel file, without
more, constitutes discipline. Jackson admitted that he did not know whether written
RORs were even considered during an operator’s evaluation. Finally, Jackson’s
testimony that discipline can be a “collective effort,” as well as Holtz’s testimony
that management investigates RORs, supports the Board’s conclusion that Transdev
failed to demonstrate road supervisors have the authority to discipline within the
meaning of the NLRA.
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Transdev asserts that the Board imposed an improper evidentiary burden by
requiring Transdev to provide examples of counseling that led to later forms of
discipline. It claims that this requirement conflicts with precedent, which requires
the employer to show only that the putative supervisors have the authority to
discipline, not that they actually exercise it. See Multimedia KSDK, Inc., 303 F.3d
at 899. We agree with the Board that Transdev misconstrues the evidentiary burden
placed upon it. Such examples informed whether the purportedly progressive
discipline system was in fact progressive, see, e.g., Ken-Crest Servs., 335 N.L.R.B.
at 777-78, and went to the ultimate issue of whether Transdev met its burden of
showing the existence of disciplinary authority. Thus, we view the Board’s
“reference to the lack of examples as a general comment on the overall quality of
[Transdev’s] evidence” and not as imposing a specific requirement on Transdev to
provide examples. See Securitas Critical Infrastructure Servs., Inc., 817 F.3d at
1079. Accordingly, the Board did not improperly require proof that road supervisors
actually exercise the authority to discipline. Finally, although Jackson and Holtz
testified that their warnings were steps in a progressive discipline system, the Board
reasonably discounted this conclusory testimony. See, e.g., Avante at Wilson, Inc.,
348 N.L.R.B. 1056, 1057 (2006) (concluding that employer failed to meet its burden
of establishing supervisory authority in part because testimony was “utterly lacking
in specificity”). To the extent there was conflicting evidence on this issue, “we may
not preempt ‘the Board’s choice between two fairly conflicting views’ of that
evidence.” See JHP & Assocs., LLC, 360 F.3d at 911 (citation omitted).
Transdev next asserts that the road supervisors have disciplinary authority
because they can remove operators from service. The Board did not err in rejecting
Transdev’s argument for three reasons. First, neither CBA defines removal from
service as discipline. Second, at least some of the decisions to remove operators
from service were followed by independent investigation. Jackson and Holtz both
testified that if they remove an operator based on reasonable suspicion that the
operator is impaired, that operator is removed and then sent for testing. If the testing
revealed the operator was not impaired, the operator was sent back out on their route.
Additionally, Holtz described an incident which he removed an operator from
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service based on reasonable suspicion but did not escort the operator for testing until
a manager determined there was probable cause to do so. In that sense, the road
supervisors’ removal decisions are not final and can be overruled. Finally,
substantial evidence supports the Board’s conclusion that Transdev did not show
operators suffer any adverse consequences based on their removals. Although
Jackson testified that operators do not get paid for the time they are removed, the
Board did not credit this testimony, observing that no operators testified that their
pay was docked, and no managers with the authority to dock pay testified that this
happened. Additionally, for removals from service based on reasonable suspicion,
the Board found that operators who ultimately test negative are paid for the time they
were pulled out. Accordingly, we find that substantial evidence supports the Board’s
conclusion that Transdev failed to prove road supervisors have the authority to
discipline operators.
2.
Transdev next argues that the road supervisors have the authority to
effectively recommend discipline by (1) completing and submitting RORs and
(2) investigating and reporting operator accidents. To show authority to effectively
recommend discipline, putative supervisors must make actual discipline
recommendations, not merely “report incidents.” See Ill. Veterans Home at Anna
L.P., 323 N.L.R.B. 890, 890 (1997). Additionally, “[t]he Board has consistently
applied the principle that authority effectively to recommend generally means that
the recommended action is taken without independent investigation by superiors.”
Mo. Red Quarries, Inc., 853 F.3d at 926 (quoting Children’s Farm Home, 324
N.L.R.B. 61, 61 (1997)).
As stated above, the record supports the Board’s observation that the RORs
do not contain discipline recommendations and that Transdev produced no evidence
about what happens to a ROR after it is submitted. And although Jackson testified
that he had recommended discipline “more than 25 times,” he provided no
description of what those recommendations entailed, how he made them, or what
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disciplinary consequences resulted. His testimony is “utterly lacking in specificity”
and therefore insufficient to establish supervisory authority. See Avante at Wilson,
Inc., 348 N.L.R.B. at 1057. Additionally, Holtz testified that he had never
recommended discipline while working for Transdev. Finally, Jackson and Holtz
testified that management was involved in deciding whether to discipline operators
and has “overruled” their RORs, which supports the conclusion that any
recommendations were followed by an “independent investigation by superiors” and
are therefore insufficient to establish supervisor status. See Mo. Red Quarries, Inc.,
853 F.3d at 926 (emphasis omitted). Thus, we find that substantial evidence supports
the Board’s conclusion that Transdev failed to show road supervisors have the
authority to effectively recommend discipline based on the completion and
submission of RORs.
Regarding the road supervisors’ roles as accident investigators, the record
reveals that accident investigations do not prompt road supervisors to make
discipline recommendations. Moreover, Jackson and Holtz both testified that their
preventability determinations are not final, and Jackson testified that sometimes the
determination is a collective decision by the department, all of which suggests a lack
of “independent judgment” in this area. See id. at 925. Transdev supplied only two
specific examples of accident investigations: one by Holtz, whose nonpreventable
determination was later overturned, and one by Jackson, who could only vaguely
recall the incident and said his determination was likely based on facts he gathered
“and then also in conjunction with the safety supervisor.” This evidence reasonably
supports the conclusion that road supervisors do not use independent judgment.
Thus, we find that substantial evidence supports the Board’s conclusion that
Transdev failed to show road supervisors have the authority to effectively
recommend discipline based on their roles as accident investigators.
Accordingly, we conclude that substantial evidence supports the Board’s
determination that Transdev failed to sufficiently prove road supervisors have the
authority to discipline or effectively recommend discipline, and therefore Transdev
failed to prove road supervisors are statutory supervisors on this basis.
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B.
Transdev alternatively argues that the road supervisors have the authority to
reward operators, thereby satisfying the NLRA’s definition of supervisor. The
Board argues to this Court that Transdev forfeited the “reward” argument by not first
presenting it to the Board. On review of the Regional Director’s decision, the Board,
assuming the issue was properly before it, addressed the issue on the merits because
Transdev “consistently argued—including in its opposition and brief on review—
that the road supervisors have the authority to reward.” Pet’r’s Addendum 9 n.28.4
Because Transdev argued the authority to reward in the proceedings below, we are
not convinced that the argument is forfeited, and we will address it on the merits.
The Board has found authority to reward where there was “a direct correlation
between evaluations [by putative supervisors] and the . . . occasional . . . bonuses
awarded.” See Bayou Manor Health Ctr., 311 N.L.R.B. 955, 955 (1993). Here, the
Board concluded that Transdev’s evidence did not show that the authority to reward
was anything more than isolated, infrequent, or sporadic, or that the road supervisors
exercised independent judgment in “rewarding.” Upon our review of the evidence,
we find that the Board reasonably concluded that the one-time distribution of gift
cards under the circumstances described by Jackson and Holtz was insufficient to
show that road supervisors have the authority to reward. See Franklin Hosp. Med.
Ctr., 337 N.L.R.B. 826, 829 (2002) (noting that sporadic exercise of supervisory
authority does not confer supervisory status); cf. Public Serv. Co. of Col. v. NLRB,
405 F.3d 1071, 1078 (10th Cir. 2005) (affirming the Board’s finding that utility
investigators lacked independent judgment in rewarding other employees because
their decisions were guided primarily by objective criteria).
4
The Board noted that it granted review of the Regional Director’s decision
solely on the issue of discipline, and Transdev did not seek review of the Regional
Director’s findings that road supervisors had exercised the authority to reward but
probably not more than sporadically.
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C.
Transdev also alternatively argues that road supervisors have the authority to
responsibly direct other employees. The Board again argues that Transdev forfeited
this argument by not seeking review from the Board on this basis. Similar to the
reward argument discussed above, the Board noted in its decision that Transdev
“consistently advanced this [responsible direction] argument in each of its filings,”
including its opposition to the request for review. Pet’r’s Addendum 5 n.12.
Because the issue was argued before the Board, we will address it on the merits.
Direction is responsible if “the person directing and performing the
oversight . . . [is] accountable for the performance of the task by the other.” See
Oakwood Healthcare, Inc., 348 N.L.R.B. at 691-92. Transdev contends that road
supervisors are held accountable for improperly placing an operator back in service,
but it points to no record evidence to support this contention. More importantly,
Transdev’s argument hinges on the road supervisor’s own performance, not on him
or her facing adverse consequences for the operator’s performance as Board
precedent requires. See id.; cf. STP Nuclear Operating Co. v. NLRB, 975 F.3d 507,
518-19 (5th Cir. 2020) (reversing the Board’s decision and concluding that unit
supervisors responsibly directed other employees based in part on evidence that unit
supervisors’ bonuses were impacted by the performance of their crew). In its brief
to this Court, Transdev never argues or explains how road supervisors are
accountable for the operators’ performance. Accordingly, we find the Board’s
decision that Transdev failed to show road supervisors responsibly direct other
employees was supported by substantial evidence. 5
5
We need not consider Transdev’s argument that “secondary indicia” suggest
the road supervisors have supervisory authority because the secondary indicia are
relevant only upon a showing that an employee performs a supervisory function.
See Mo. Red Quarries, Inc., 853 F.3d at 928 (“In cases such as this—where there is
substantial evidence the individual has authority to exercise independent judgment
in performing at least one supervisory function, but the question is a close one—
‘courts often look to secondary factors.’” (citation omitted)).
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The dissenting Board member opined that if the road supervisors were not
found to be supervisors under the Act, then “615 [operators] would be supervised
exclusively by four . . . or . . . 14 people,” and that such a “finding fails the ‘test of
common sense.’” Pet’r’s Addendum 14 (citation omitted). However, this position
mistakenly assumes that the lay definition of “supervisor” is the same as the Act’s.
As the Board majority explained, this position ignores a “basic legal fact: the finding
that the road supervisors are not statutory supervisors simply means that they ‘may
vote whether to be represented for purposes of collective bargaining, and be
represented as part of a unit that selects a representative.’” Pet’r’s Addendum 5 n.13
(citation omitted). Such a finding “does not mean that the road supervisors cannot
monitor the performance of other employees or that they cannot report their findings
to [Transdev]. Nor does it mean that they cannot issue orders to other employees,
or that [Transdev] cannot discipline other employees for failure to obey such orders.”
Pet’r’s Addendum 5 n.13.
D.
Finally, Transdev argues that the Board’s decision was unreasonable,
inconsistent with the NLRA, the product of ad-hoc decision-making reflecting a pro-
union bias, and arbitrary and capricious in violation of the APA. We view these
arguments as merely different articulations of the argument that the Board’s decision
was not supported by substantial evidence. It is true that we have previously
acknowledged inconsistent Board decisions regarding supervisory status. See
Beverly Enters. v. NLRB, 148 F.3d 1042, 1046 (8th Cir. 1998). But despite
acknowledging the inconsistencies, we have simply said that “a close and thorough
examination of the record is called for to ensure that the Board’s findings are
supported by substantial evidence and that its decision is not arbitrary and
capricious,” and we continue to apply the substantial evidence standard. See id.Additionally, because we find that the Board’s decision was supported by
substantial evidence, we need not consider the Intervenor’s additional argument that
Transdev failed to meet its burden of proof because the road supervisors acted in the
interest of WMATA rather than Transdev.
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(“The standard, as we have reiterated many times, is whether substantial evidence
on the record as a whole supports the [B]oard’s determinations.”); accord Mo. Red
Quarries, Inc., 853 F.3d at 925-26. We conclude that the Board’s decision here was
supported by substantial evidence, and it did not act arbitrarily or capriciously in
finding that Transdev failed to show road supervisors were statutory supervisors,
certifying the union, and finding that Transdev committed an unfair labor practice.
III.
For the foregoing reasons, we deny Transdev’s petition for review and grant
the Board’s cross-petition for enforcement.
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