P.E.R.C. No. 2002-9, NJ Transit

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEW JERSEY TRANSIT, Public Employer, -and- Docket No. RO-H-2000-95 CWA, LOCAL 1032, Petitioner. ¶

AppearancesAppearances: ¶

For the Public Employer John J. Farmer, Jr., Attorney General (David S. Griffiths, Deputy Attorney General) ¶

For the Petitioner Weissman & Mintz, attorneys ¶

(Judiann Chartier, of counsel) ¶

DECISION ¶

On March 14, 2000, the Communications Workers of America, Local 1032 (CWA) petitioned to represent a unit of all permanent full-time regional supervisors employed by New Jersey Transit Bus Operations (NJT). 1/ NJT has refused to consent to an election. It alleges that regional supervisors are not employees under the New Jersey Public Transportation Act (NJPTA), N.J.S.A. 27:25-14 et seq . The NJPTA incorporates the definition of "employee" in the National Labor Relations Act (NLRA), as amended by the Labor Management Relations Act (LMRA), 29 U.S.C. § 141 et seq . NJT alleges that, under that definition, regional supervisors are statutory supervisors precluded from organizing. ¶

Note1/ Chief regional supervisors are not subjects of the representation petition. ¶

On June 20, 2000, a Notice of Hearing issued. On July 27; August 3 and 9; September 7 and 15; and October 11, 2000, Hearing Officer Patricia Taylor Todd conducted a hearing. The parties examined witnesses and introduced exhibits. CWA filed a post-hearing brief. ¶

On February 15, 2001, the Hearing Officer recommended dismissing the petition. H.O. No. 2001-1, 27 NJPER 134 (¶32051 2001). She concluded that the regionals were supervisors within the meaning of 29 U.S.C. § 152(11) of the NLRA and LMRA because they exercised independent judgment in suspending bus drivers; responsibly directing their work; and disciplining them. 2/ ¶

On March 16, 2001, after receiving an extension of time, CWA filed exceptions to the Hearing Officer's legal analysis and some of her factual findings. It argues that she erred in interpreting the NJPTA as depriving regional supervisors of their rights under the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq .; and in finding that regionals exercise independent judgment in directing, suspending, and disciplining bus operators. It maintains that any direction by regional supervisors involves routine work governed by detailed NJT regulations. ¶

Note2/ The Hearing Officer noted that the duties found to be supervisory were performed mostly by regionals assigned to road rather than control functions. However, she found that regionals are subject to reassignment from road to control and vice versa ; that the two groups are not clearly demarcated; and that control supervisors must therefore be considered supervisors. 27 NJPER at 143. ¶

On June 4, 2001, we invited the parties to address the relevance of NLRB v. Kentucky River Community Care, Inc., 121 S.Ct . 1861 (2001). On June 11, CWA responded, urging that the decision pertains only to the NLRB's application of the supervisory status test to nurses. On June 13, NJT replied that Kentucky River supports the Hearing Officer's recommendation.3 / ¶

Findings of Facts ¶

We incorporate the Hearing Officer's comprehensive findings of fact, with some minor additions. We reject CWA's factual exceptions. ¶

The Hearing Officer found that regional road supervisors may issue employee incident reports, or violations, when they observe a bus operator violating NJT rules and procedures. 27 NJPER at 137. We add that R-20, a list of service violations reported by road regionals in 1999 and 2000, shows that the number of violations reported each month in the central and northern divisions ranged from 58 to 132. ¶

With respect to these violation notices, CWA argues that the Hearing Officer erred in stating that "[t]he issuance of a violation activates a course of discipline up to and including discharge according to the steps set forth in the collective agreement." 27 NJPER at 137. Read in context, the gravamen of that statement is not, as CWA suggests, that the forms completed by road regional supervisors always result in discipline or that ¶

3/ CWA has also requested oral argument. We deny that request. ¶

any discipline imposed is always upheld if grieved. Instead, we believe the Hearing Officer intended to emphasize, as does CWA, that while road regional supervisors report violations which may trigger negotiated disciplinary procedures, they do not assess penalties. ¶

CWA also cites testimony by David McDaid, Director of Operations, to the effect that the violation forms completed by regional supervisors are sometimes removed at the hearing officer level. McDaid explained that this may occur, not because the reports are "unfounded," but because a hearing officer learns additional facts which lead him or her to conclude that discipline should not be imposed (T106). This testimony does not undermine the challenged finding and is insignificant given the Hearing Officer's conclusion that regional supervisors do not decide what penalty to impose. ¶

Three exceptions center on the relationship between road regional supervisors and chief regional supervisors. CWA maintains that regionals require the approval of chief regionals before giving bus operators direct orders; removing them from service for a suspected drug or alcohol violation; or finding that reasonable suspicion warrants a drug or alcohol test. ¶

The Hearing Officer described a "direct order" as an instruction repeated up to three times, followed by an explanation that, if the operator does not comply, he or she will face discipline by the garage supervisor. 27 NJPER at 144 n.13. The record supports her finding that regional supervisors may issue ¶

"direct orders" to bus operators to correct a violation or do extra work in an emergency. CWA relies on testimony in which regional supervisors acknowledged that, although they can direct operators, they can do nothing beyond issuing a violation if they do not comply. The Hearing Officer's findings are consistent with this testimony, which goes to the nature or scope of regionals' authority to discipline operators, not their ability to issue orders. ¶

We also agree with the Hearing Officer's finding that road regional supervisors make an "initial determination" whether reasonable suspicion exists for drug or alcohol testing and report that decision to a chief regional. 27 NJPER at 138. We add that once a regional makes this determination, he must "immediately relieve" the operator of his duties (J-5). The operator is then transferred to the garage for a further investigation by the garage supervisor and possible drug or alcohol tests (J-5). ¶

CWA contends that a May 2000 memorandum from Chief Regional Supervisor Richard Deubel shows that, from April or May 2000 forward, Department of Transportation (DOT) regulations required chief regionals to approve drug or alcohol testing. However, the Hearing Officer credited Deubel's testimony that his memorandum was partially wrong and that it is only post-accident testing that requires chief regional approval. That testimony is supported by R-30, an April 5, 2000 memorandum from NJT's Director of Medical Services to Deubel and other chief regionals explaining the DOT regulations. R-30 clarifies that regional supervisors will no longer perform reasonable suspicion or post-accident drug or alcohol tests and further requires that chief regionals must, based on a regional supervisor's recommendation, determine if an accident meets post-accident testing criteria. However, R-30 also states that, in a non-accident situation, regional supervisors decide whether reasonable suspicion exists for a drug or alcohol test. They then report that determination to the chief regional. ¶

While one road regional supervisor testified that the chief had to decide whether to approve his recommendation that there was reasonable suspicion for a drug test, he continued that he "could not imagine" that the chief, who works in a control center, would disagree with his field assessment (5T1002). This testimony is consistent with a finding that a road regional supervisor makes an "initial" determination and "reports" it to a chief. ¶

CWA also cites testimony on the related issue of whether a regional supervisor requires his or her chief's approval to remove an operator from service for a suspected violation of NJT's drug and alcohol policy. While CWA relies on Chief Regional Fred Shandler's testimony, Shandler stressed that a regional supervisor "absolutely" does not require permission before taking that action, although the removal must be reported to his or her chief (4T465-4T466). Similarly, while one regional supervisor testified that his chief could disagree with his recommendation to remove an operator for a suspected drug or alcohol violation, he added that that had never happened (5T940). This testimony does not provide a basis for disturbing the Hearing Officer's finding, particularly since the NJT Operator Fatigue Policy requires a regional to remove an operator from duty and does not specify that the regional obtain his chief's approval (J-5). ¶

Further, we reject CWA's exceptions to the Hearing Officer's findings that road regional supervisors may assign operators to replace absent employees and may overrule a mechanic's judgment on whether a bus can be safely operated. These findings of fact are well supported. ¶

Similarly, the record supports the Hearing Officer's finding that a "position description questionnaire" (PDQ) for regional supervisor is an official NJT document. Further, we are not persuaded that a regional supervisor evaluation form better reflects the position's job responsibilities. The key difference between the documents appears to be that the PDQ refers to regional supervisors' responsibility to monitor "agreement employees'" performance, while the evaluation form does not. However, regional supervisors indisputably monitor bus operators' adherence to NJT rules. ¶

Finally, CWA contends that the Hearing Officer should not have credited the testimony of regional supervisor Joseph Butterfield because his wife works for the Director of Service Supervision. The Hearing Officer found Butterfield credible and noted that his testimony was consistent with that of other regional supervisors. We have no grounds to disturb that judgment. ¶

ANALYSIS ¶

CWA argues that regional supervisors are not "supervisors" under the NLRA and LMRA and that, even if they are, we must then analyze their rights under our Act. We disagree on both points and endorse the Hearing Officer's analysis. ¶

The NJPTA was enacted in 1979 and created NJT, a public corporation, to convert New Jersey's mass transit system from one of private enterprise to one owned and operated by the State. In re New Jersey Transit Bus Operations, 125 N.J . 41, 43 (1991). NJT became the employer for the workforce of the mass transit companies it acquired with federal funds. Id. at 44; N.J.S.A . 27:25-14(a). The NJPTA empowers us to enforce the rights and obligations of NJT Bus Operations and its employees, and directs that we be guided by the federal or State labor law and practices developed under the LMRA. N.J.S.A. 27:25-14(c). ¶

In re New Jersey Transit Bus Operations addressed "whether NJT employees' labor rights are identical (except for explicit statutory differences) and limited to those granted to all other public employees." Id . at 44. In approving our holding that the NJPTA allowed a broader scope of negotiations for NJT employees than for other public employees, the Court commented: ¶

We hold that the Legislature intended to confer such rights on these employees as would place them in the same position they had in the private sector, subject only to the overriding responsibility and power of government to accomplish the goals of the Act. [125 N.J. at 45] ¶

The issue in this case is whether the NJPTA confers broader representation rights on supervisory employees than they would have had in the private sector. The answer is no. ¶

N.J.S.A . 27:25-14b provides that employees of bus companies acquired by NJT "shall have and retain their rights to form, join, or assist labor organizations and to negotiate collectively through exclusive representatives of their own choosing." However, that section is limited by N.J.S.A . 27:25-14a(2), providing that the term "employee" does not include "supervisors" as defined under the LMRA. We are not persuaded that individuals deemed not to be "employees" under NJPTA and the LMRA must have their rights analyzed anew under N.J.S.A. 34:13A-5.3. That construction would make N.J.S.A . 27:25-14a(2) superfluous and is inconsistent with the principle that the rights of NJT employees are the same as private sector employees, subject to those restrictions imposed by NJT's responsibility to accomplish its statutory mission. We thus turn to an analysis of the NLRA, as amended by the LMRA. ¶

29 U.S.C. § 152(3) excludes supervisors from the definition of employee. 29 U.S.C . § 152(11) in turn defines a "supervisor" as: ¶

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 conjunction with the foregoing the exercise of such authority is not of merely routine or clerical nature, but requires the use of independent judgment. ¶

Employees are statutory supervisors if: (1) they have authority to engage in one of the listed supervisory functions; (2) their exercise of such authority is not routine or clerical, but requires independent judgment; and (3) their authority is held in the employer's interest. Kentucky River, 121 S.Ct. at 1867; NLRB v. Health Care & Retirement Corp. of America, 511 U.S . 571, 573-574 (1994). Assessment of supervisory status is fact-intensive, Caremore, Inc. v. NLRB, 129 F .3d 365, 371 (6th Cir. 1997), and the burden of proof is on the party asserting that an employee is a supervisor. Kentucky River. ¶

The parties stipulated that regional supervisors do not hire, transfer, layoff, recall or promote employees. Further, NJT does not except to the Hearing Officer's conclusions that regional supervisors have no authority to discharge or reward employees or to adjust their grievances. The Hearing Officer made no recommendation as to whether regional supervisors assign employees. Therefore, we focus on whether, under the applicable private sector case law, regional supervisors use independent judgment in disciplining, suspending, or responsibly directing the work of other NJT employees. ¶

Regional Supervisors' Authority to Responsibly Direct Others ¶

The "responsible direction" prong of § 152(11) has been the subject of much litigation, with the United States Supreme Court twice holding that the NLRB's interpretation of the term was too narrow and inconsistent with the statute. Kentucky River; Health Care & Retirement Corp . We start by outlining how the most recent of those decisions, Kentucky River, shapes our analysis. ¶

Kentucky River rejected the NLRB's approach to assessing whether employees use independent judgment in responsibly directing other employees. The NLRB had held, often in cases involving nurses, that employees do not exercise independent judgment when their direction to less-skilled employees is based on their professional or technical training, skills or experience. See, e.g., Providence Hosp., 320 NLRB No. 49, 151 LRRM 1177 (1996), enf'd Providence Alaska Medical Ctr. v. NLRB , 121 F .3d 548 (9th Cir. 1997). In rejecting this interpretation, the Court reasoned that by contrasting independent with routine or clerical judgments, the statute focused on the degree of discretion exercised by an employee, but did not authorize the categorical exclusion of certain kinds of judgments. The Court also criticized the NLRB for applying its limiting interpretation of independent judgment just to the "responsible direction" element of § 152(11). Id. at 1869. ¶

However, the Court did not disapprove of all aspects of the NLRB's Kentucky River decision. The Court noted that the term "independent judgment" is ambiguous as to the degree of discretion required for supervisory status. Accordingly, it agreed that many nominally supervisory functions may be performed without the degree of discretion required to qualify for statutory supervisor status. Further, it agreed that "the degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by detailed orders and regulations issued by the employer." Id. at 1867. ¶

Given the quoted language, Kentucky River does not foreclose CWA's argument that regional supervisors do not fall within the ambit of § 152(11) because their direction of bus operators is routine and controlled by NJT procedures. However, while Kentucky River does not articulate a bright-line test for assessing when an employee responsibly directs others, it suggests that the focus should be on carefully applying the statutory language to the facts. ¶

Within this framework, we endorse the Hearing Officer's comprehensive analysis and conclude that NJT has established that regional supervisors responsibly direct others. Regional supervisors are charged with overseeing bus operations and ensuring safe and on-time service. In that role, they have a duty to monitor operators' adherence to work rules. They patrol assigned districts; correct operators when they observe an infraction; and, if they deem it warranted, issue violation notices which will be sent to the garage supervisor and the head of the service supervision division. When they observe serious violations, they may also complete forms requiring an operator to meet with his garage supervisor before being allowed to return to service. 27 NJPER at 136-137. ¶

When making service adjustments to ensure on-time performance, they may alter schedules or routes and instruct operators accordingly. They may reassign an operator from one bus line to another when the original operator cannot continue due to sickness or mechanical problems with the bus. Where necessary to prevent an interruption in service, a regional road supervisor may order an operator pulling into a terminal to complete another trip. Ibid. ¶

A regional supervisor may also remove an operator from service if he or she reasonably suspects that the operator is in violation of NJT's drug and alcohol policy or impaired. While a regional supervisor is not a bus operator's chain-of-command supervisor for matters such as payroll, imposing discipline, or authorizing overtime, ibid ., one CWA witness and regional supervisor described himself as the "overseer" of bus operators (T977). ¶

The NLRB has held that similarly situated employees were statutory supervisors. See San Diego Transit Corp., 182 NLRB No. 66, 74 LRRM 1145 (1970); United Transit Co., 106 NLRB No. 149, 32 LRRM 1602 (1953); New York City Omnibus Corp., 104 NLRB No. 83, 32 LRRM 1179 (1953). All of these cases stressed the supervisors' authority to warn operators of driving infractions and issue violation reports. United Transit and New York City Omnibus also held that the employees exercised discretion in detouring buses or adjusting routes and instructing drivers. Moreover, we agree with the Hearing Officer that regional supervisors "responsibly direct" operators when they order them to stop driving because of suspected impairments. Compare Fairfield Tp., P.E.R.C. No. 92-115, 18 NJPER 299, 300 n.1 (authority to prevent an unfit employee from working goes with the responsibility to see that assigned work is performed correctly and safely). ¶

Further case law support for our conclusion is provided by decisions involving utility company dispatchers or coordinators. These employees, like regional supervisors, oversee the service provided by their employer and, in that role, direct other employees. See Entergy Gulf State, Inc. v. NLRB, 253 F .3d 203 (5th Cir. 2001) (electricity corporation's operations coordinators exercised independent judgment in supervising others where they issued individualized switching orders to field workers and, in emergencies, prioritized repairs; directed field workers to move from one project to another; and called up workers to address after-hours power outages); NLRB v. Prime Energy Ltd. Partnership, 224 F .3d 206 (3rd Cir. 2000) (shift supervisors at power co-generation plant were statutory supervisors where they monitored and directed plant operations; had authority to hold plant operators over at the end of a shift; and stabilized plant operations in emergencies without prior plant manager approval). See also Southern Indiana Gas & Electric Co. v. NLRB , 657 F.2d 878 ¶

(7th Cir. 1981); Maine Yankee Atomic Power Co., 624 F.2d 347 (1st Cir. 1980); NLRB v. Detroit Edison Co., 537 F.2d 239 (6th Cir. 1976); Arizona Public Service Co. v. NLRB, 453 F.2d 228 (9th Cir. 1971); 4/ ¶

While regional supervisors are guided by NJT policies and a Standard Operating Procedure (SOP) manual, those procedures are not so detailed or comprehensive as to eliminate the need for independent jugment and discretion. For example, NJT's "operator fatigue" policy incorporates a "reasonable suspicion" checklist of observations to help a regional supervisor gauge whether an operator is impaired. That document tries to guide what is often a subjective decision that is of great importance to NJT, the operator, and the public. But it does not eliminate judgment and discretion from this critical on-the-spot decision. ¶

Similarly, the manual advises that a regional supervisor must immediately correct "unsafe acts" by an operator but leaves it to the regional supervisor's discretion to determine whether it is "necessary" to complete a violation report. And an assessment of some operator violations requires judgment -- e.g., "conduct unbecoming an employee" (J-20, "Rule Violations"). ¶

Note4/ In Mississippi Power & Light Co., 328 NLRB No. 146, 161 LRRM 1241 (1999), the NLRB held that utility systems coordinators and dispatchers were not supervisors. However, that holding was based in part on the analysis that Kentucky River disapproved. See Entergy, 253 F .3d. at 211. ¶

Finally, with respect to service adjustments, the northern division manual advises supervisors to consider passenger convenience and choose the most logical adjustment (J-20, "Delays in Service"). But it does not direct the alterations that must be made, and thus supervisors must exercise discretion both in making adjustments and in instructing operators. The southern division procedures are even less detailed (J-16). ¶

In sum, under private sector case law, regional supervisors' direction of bus operators is not routine in the sense that their instructions are effectively dictated by NJT procedures. Nor is it routine because the operators require little guidance given the nature of their work. Contrast J.C. Brock Corp., 314 NLRB No. 34, 146 LRRM 1193 (1994) (production line coordinator did not exercise independent judgment where line changes she directed were a function of which product was being processed and employees "automatically" knew when to switch); Tri-City Motor Co., Inc., 284 NLRB No. 77, 125 LRRM 1247 (1987) (auto parts manager did not direct work and work was routine and did not need supervision). ¶

Regional Supervisors' Authority to Suspend Bus Operators ¶

Regional supervisors may remove bus operators from service for suspected violation of NJT's drug and alcohol policy or other misconduct and operators may not return to service until their garage supervisors permit. Therefore, regional supervisors have the literal authority to suspend employees. ¶

We also conclude, as did the Hearing Officer, that this authority entails independent judgment. Regional supervisors judge the fitness of operators and do not require their chief's approval before removing an operator from service. While they are guided by NJT procedures and a "reasonable suspicion" checklist, those aids do not make this function routine or clerical. Instead, they guide a subjective and important judgment. ¶

We recognize that the NLRB has held that the ability to suspend an employee for a flagrant violation, such as being intoxicated, does not confer supervisory status. See Beverly Enterprises, 304 NLRB No. 111, 138 LRRM 1218, 1222 (1991); Board of Social Ministry, 327 NLRB No. 57, 160 LRRM 1017 (1998). However, federal courts of appeal, including the Third Circuit encompassing New Jersey, have held that the power to suspend an employee for any violation confers supervisory status. See, e.g., Passavant Retirement & Health Center, 149 F .3d 243, 248 (3rd Cir. 1998); NLRB v. Gray Line Tours, Inc., 461 F .2d 763, 764 (9th Cir. 1972). In circumstances very similar to those here, the Sixth Circuit held that bus dispatchers were supervisors, in part because they could temporarily suspend drivers for misconduct pending review by a higher authority. Eastern Greyhound Lines v. NLRB, 337 F .2d 84, 88 (6th Cir. 1964). As an indicator of the correct analysis of supervisory status under private sector case law, the Third Circuit opinion and the other higher-level court decisions are entitled to more weight than the NLRB's decisions. ¶

Regional Supervisors' Authority to Discipline ¶

In interpreting this element of § 152(11), we ask whether, under private sector cases, the regional supervisors' authority to write up violations constitutes the power to discipline employees or effectively recommend the same, even though they do not recommend or assess penalties. The answer is yes. ¶

Glenmark Assocs., Inc., 147 F .3d 333, 341-341 (4th Cir. 1998) is instructive. The Court considered the status of RNs and LPNs who were responsible for correcting patient aides when they did not properly care for a patient or follow facility procedures. 147 F .3d at 336-337. The nurses could choose to counsel the aide; file a written "verbal correction notice" with the Director of Nursing; or do both. Ibid . The Court rejected the NLRB's position that the nurses did not effectively recommend discipline because they did not have the final word on what action would be taken. ¶

Glenmark reasoned that by filing a report that triggered an investigation - and by deciding that that step was necessary -- the nurses used independent judgment in effectively recommending discipline. Id . at 342. It stressed that the nurses were the highest-ranking employees at the facility for long periods, and that they were often the only witnesses to whether aides were properly performing their duties. Ibid.; compare Attleboro Assocs. v. NLRB, 176 F .3d 154, 165 (3rd Cir. 1999); Caremore, 129 F .3d at 370 (nurses effectively recommended discipline where they issued disciplinary notices to aides, some of which included penalty recommendations); see also Camden Cty., D.R. No. 88-3, 13 NJPER 663 (¶18251 1987) (employees effectively recommended discipline where they were expected to bring incidents to a general supervisor's attention and had authority to issue oral warnings; and where their recommendations were given weight). ¶

On the other hand, some court and NLRB decisions hold that an employee who issues warnings does not effectively recommend discipline if he or she does not impose sanctions and the warnings do not automatically result in discipline. See, e.g., NLRB v. Hilliard, 187 F .3d 133, 147 (1st Cir. 1999); Brown & Root, Inc., 314 NLRB No. 4, 146 LRRM 1227, 1233 (1994); Lakeview Health Center , 308 NLRB No. 14, 141 LRRM 1232 (1992); Board of Social Ministry , 160 LRRM at 1017. However, under all of the circumstances here, we believe the Glenmark analysis is a more persuasive predictor of the result under private sector case law. ¶

Regional supervisors' violation reports are the primary means by which operator performance is monitored and disciplinary proceedings initiated for poor road performance. Regional supervisors frequently write up violations and, as the Hearing Officer observed, their violation reports may be the only eyewitness account of an operator's performance, given that garage supervisors do not monitor road performance. 5/ ¶

The record also shows that regional supervisors' violation reports are given weight; are an integral part of the disciplinary process; and often result in discipline. For example, an operator must be given a copy of a violation report within 72 hours; an informal hearing is held; and an operator's garage supervisor determines what action will be taken. The violation reports in evidence show that some sanction --ranging from a warning to a 30-day suspension - was imposed in every instance. 6/ In these circumstances, we conclude that regional supervisors effectively recommend discipline. Moreover, the regional supervisors' regular role in monitoring performance and issuing violations distinguishes this case from other cases cited by CWA. See NLRB v. Meenan Oil, 139 F .3d 311, 322 (2d Cir. 1998) (oil company dispatchers did not monitor performance and simply brought customer complaints or employee absenses to management's attention); Lakeview (verbal warnings issued by LPNs had no clear ¶

Note5/ While other employees may file a report when they observe a violation of NJT procedures, they file observation reports only, not the employee incident reports that regional supervisors and other managers file upon observing a violation (J-5). ¶

6/ P-1, a list of hearings scheduled in March 2000, includes a "results" column. Out of 63 violations, 16 resulted in "no action." ¶

connection with disciplinary process); Brown & Root (safety inspectors' citations were independently investigated by supervisors). ¶

For all these reasons, we adopt the Hearing Officer's recommendations that regional supervisors are supervisors under § 152(11) because they use independent judgment in responsibly directing, suspending, and effectively recommending discipline of bus operators. With respect to the final element of the § 152(11) analysis, there is no dispute that regional supervisors perform these functions in the interest of NJT. Finally, while not part of the statutory test, we note that if regional supervisors are not deemed statutory supervisors, bus operators would function without any supervision on the street. Compare Glenmark, 147 F .3d. at 341-342. We therefore dismiss the petition. ¶

OrderORDER ¶

The representation petition is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Madonna, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. Commissioner Buchanan voted against this decision. ¶

DATED: September 26, 2001 ¶

Trenton, New Jersey ¶

ISSUED: September 27, 2001 ¶