Corporate Counsel Daily, Bargaining unit clarified to include maintenance supervisors in unit, (Jan 3, 2024)

By Ronald Miller, J.D.

The factors of functional integration, contact, departmental organization, and supervision all favored including the maintenance supervisors in the unit.

A divided three-member panel of the NLRB granted review of a regional director’s decision clarifying a unit to exclude maintenance supervisors on the basis that they did not share sufficient community of interest with employees in the existing unit. Contrary to the regional director, the Board determined that the maintenance supervisors shared a community of interest with the included employees and therefore may appropriately be included in the unit. The Board found that the factors of functional integration, contact, departmental organization, and supervision all favored including the maintenance supervisors in the unit. As a result, the decision of the regional director was reversed. Member Kaplan filed a separate dissenting opinion (MV Transportation, Inc., December 27, 2023).

The employer contracts with a transit authority to provide public transportation services. Transit authority operations are subdivided into departments, including operations and maintenance, which were the departments at issue here. In an underlying elections case, the parties stipulated that road supervisors, dispatchers, and maintenance clerks were appropriately included in the unit.

Road supervisors. Road supervisors work in the operations department and provide support for bus drivers and passengers, including checking in-service vehicles for compliance with policies; monitoring street operations for on-time performance and schedule and route adherence; responding to accidents and other incidents; and ensuring that drivers are fit for duty and meet uniform, equipment, and licensing requirements. Road supervisors also have contact with maintenance personnel. They “[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.

Dispatchers. Dispatchers also work in the operations department. They make sure that vehicles begin their daily route service as scheduled, including tracking and reporting driver sign-in and sign-out times, ensuring routes are timely, and relaying any service issues to their superiors. They may also assign trips to drivers to ensure adequate distribution of trips among assigned routes.

OCC dispatchers. OCC dispatchers also work in the operations department. They communicate directly with drivers (as well as road supervisors, dispatchers, and other persons) during the course of the day while coordinating bus operations, responding to vehicle breakdowns, managing on-time performance, coordinating emergency responses, and responding to calls from drivers and customers. With respect to maintenance supervisors, OCC dispatchers interact with them regarding issues with vehicles.

Maintenance clerks. Maintenance clerks work in the maintenance department. They are primarily involved in filing paperwork, completed by maintenance supervisors and maintenance technicians, related to bus maintenance. In addition, they deal with payroll, and time and attendance records. There was no indication that maintenance clerks have any contact with road supervisors, dispatchers, or OCC dispatchers.

Maintenance supervisors. The maintenance supervisors, who also work in the maintenance department, coordinate and oversee the repair work done by maintenance technicians and servicers on the employer’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. Maintenance supervisors spend the vast majority of their time—70 to 75 percent—on paperwork related to the completion of work orders. The maintenance supervisor job description states that they maintain “close communications” with the operations department. They similarly interact with the maintenance clerks on a daily basis.

Unit clarification petition. In processing the unit clarification petition in this case, the regional director expressed some uncertainty regarding the legal standard to be applied in these circumstances. The Board clarified 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 standard is the same standard that would have been applied had the issue been litigated prior to the underlying election.

Community of interest. Here, the parties previously stipulated to the inclusion of the road supervisors, dispatchers, OCC dispatchers, and maintenance clerks in the unit, but the employer contended that the petitioned-for unit was inappropriate if it included the maintenance supervisors. Accordingly, the Board inquired into whether the maintenance supervisors and the included employees shared a community of interest.

The Board considers the following factors in determining whether employees share a community of interest: whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.

Applying these factors, the regional director concluded that the maintenance supervisors did not share a community of interest with the included classifications. He therefore clarified the unit to exclude the maintenance supervisor classification.

Functional integration. However, the Board concluded that the maintenance supervisors shared a community of interest with the included employees and therefore may appropriately be included in the unit. According to the Board, there was no dispute that the factors of functional integration and contact favored finding a shared community of interest.

With respect to functional integration, the Board noted that it was clear that the maintenance supervisors and unit employees necessarily depended on each other to accomplish their respective tasks. Thus, the record clearly established that maintenance supervisors were in at least daily contact with OCC dispatchers, dispatchers, road supervisors, and maintenance clerks.

The Board also found that the factor of departmental organization supported finding a community of interest between the maintenance supervisors and the unit employees. There was no dispute that the maintenance supervisors were in the same department as the included maintenance clerks. Additionally, the Board determined that the factor of supervision favored finding a community of interest between maintenance supervisors and included employees. Again, there was no dispute that the maintenance supervisors shared supervision with the maintenance clerks, who were included in the unit.

Remaining factors. With respect to the remaining factors, the Board agreed with the regional director that they did not favor finding a community of interest, but it gave them less weight than the regional director did.

As the Board found that the factors of functional integration, contact, departmental organization, and supervision all favored including the maintenance supervisors in the unit, it determined that the maintenance supervisors shared a community of interest with the included employees. Accordingly, the Board reversed the regional director’s decision clarifying the unit to exclude maintenance supervisors.

Dissent. Member Kaplan disagreed with the Board’s decision to reverse the regional director’s decision excluding the maintenance supervisors. According to the dissent, the regional director got it right. Member Kaplan argued that the regional director found that the maintenance supervisors shared only two of the factors of the Board’s community-of-interest test with employees included in the unit, and that was insufficient to include them. Further, the dissent argued that the Board watered down the community of interest test and effectively gave controlling weight to the union’s extent of organizing.

The slip opinion is 373 NLRB No. 8.

Attorneys: Kerry Martin (Fisher & Phillips) for MV Transportation, Inc. Christopher Bangs, for Amalgamated Transit Union Local 1309.

Companies: MV Transportation, Inc.; Amalgamated Transit Union Local 1309

Cases: Labor OrganizingElections AgencyNews GCNNews