UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 2
NYC BIKE SHARE LLC
Employer
and Case No. 02-RC-131200
TRANSPORT WORKERS UNION LOCAL 100
affiliated with TRANSPORT WORKERS UNION
OF AMERICA, AFL-CIO
Petitioner
DECISION AND DIRECTION OF ELECTION
NYC Bike Share LLC (the Employer) is engaged in the short-term rental of bicycles and
the operation of a bike-share program. Transport Workers Union Local 100, affiliated with
Transport Workers Union of America, AFL-CIO (the Petitioner) filed a representation petition
under Section 9(c) of the National Labor Relations Act seeking to represent a unit of all full-time
and all regular part-time employees at three of the Employer's facilities, two of which are located
in Manhattan and one in Brooklyn, New York, excluding all other employees, including
employees in the Marketing, Finance, and Human Resources departments, guards, professional
employees, and supervisors as defined by the Act.'
Upon a petition filed under Section 9(b) of the National Labor Relations Act (the Act), as
amended, a hearing was held before a hearing officer of the National Labor Relations Board (the
Board).
Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board
has delegated its authority in this proceeding to the Regional Director, Region 2.
Based upon the entire record in this matter2 and in accordance with the discussion above,
I conclude and find as follows:
1. The Hearing Officer's rulings are free from prejudicial error and hereby are affirmed.
At the hearing, the Petitioner amended its petition to exclude employees in the Marketing, Finance, and Human
Resources Departments.
2 The briefs filed by the parties have been duly considered. The Petitioner's citation corrections are hereby admitted,
inasmuch as they do not substantively alter its brief.
2. The parties stipulated, and I find, that the Employer is a limited liability corporation
organized under the laws of the State of New York engaged in the short-term rental of bicycles
and the operation of a bike-share program, with facilities located at 5202 3rd Avenue, Brooklyn,
New York3 (the Sunset Park facility), 8th Avenue and 31St Street, New York, New York (the
Farley Building), and Delancey Street near Bialystoker Street, New York, New York (the
Delancey Street facility). Annually, the Employer, in the course and conduct of its business
operations, derives gross revenues in excess of $500,000, and purchases and receives at its
Manhattan and Brooklyn facilities, goods and services in excess of $5,000, directly from points
outside the State of New York.
Accordingly, I find that the Employer is engaged in commerce within the meaning of
Sections 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert
jurisdiction herein.
3. The parties stipulated, and I find, that the Petitioner is a labor organization within the
meaning of Section 2(5) of the Act.
4. A question affecting commerce exists concerning the representation of certain employees
of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
The Petitioner seeks to represent all full-time and all regular part-time employees,
including seasonal employees, of the Employer, at its Sunset Park facility, its Farley Building
facility, and its Delancey Street facility, excluding all other employees, including employees in
the Marketing, Finance, and Human Resources departments, guards, professional employees, and
supervisors as defined by the Act. In that regard, the Petitioner asserts that the seasonal
employees share a community of interest with permanent employees. The Petitioner further
contends that the seasonal employees have a reasonable expectation of future reemployment.
Finally, the Petitioner submits that the Employer has failed to carry its burden of proving that the
disputed supervisors have the requisite authority under Section 2(11) of the Act, and are eligible
to vote.
The Employer contends that the petitioned-for unit is inappropriate because the seasonal
employees do not share a community of interest with the Employer's permanent employees and
do not have a reasonable expectation of future reemployment with the Employer. The Employer
also contends that certain individuals should be excluded from the unit because they are
supervisors within the meaning of Section 2(11) of the Act. These individuals are: Bike
Mechanic Supervisors Briton Malcolmson, Humberto Facey, William Gaerre, Indio Galarza, and
Carlos Rivera, Bike Checker Supervisor Kelly McGowan, Warehouse Supervisor Jesse Taylor,
3 Consistent with the Petition and the Employer's exhibits, it appears that the reference in the record to 3203 3'
Ave., Brooklyn, NY, is a transcription error.
2
Vehicle Supervisors Aldrick Bramwell, Dyrell Epps, and Carl Johnson, Dispatch Supervisors
Chris Gittens and Jacob Boersma4 , Station Tech Supervisors Angel Bianchi and Murat Coskun,
and Call Center Supervisors Jermaine Clarke, Tiandra Razor, and Selena Brewster. The
Employer relies on the following indicia in support of its position: authority to hire and
discipline; authority to effectively recommend hire, discharge and promotion; and, authority to
assign and responsibly direct. The Employer also relies on secondary indicia, such as differences
in compensation, attendance at meetings designated as "management-only," scheduling and
approving of paid time off, and access to inventory.
I have considered the evidence and the arguments presented by the parties. As discussed
below, I find that the petitioned-for unit is an appropriate unit, because seasonal employees share
a community of interest with permanent employees of the Employer and because they have a
reasonable expectation of future reemployment. Further, I find that the Employer has failed to
carry its burden of proving that the following alleged supervisors possess the requisite
supervisory indicia. Those individuals are Bike Mechanic Supervisors Briton Malcolmson,
Humberto Facey, William Gaerre, Indio Galarza, and Carlos Rivera, Warehouse Supervisor
Jesse Taylor, Vehicle Supervisors Aldrick Bramwell, Dyrell Epps, and Carl Johnson, Dispatch
Supervisor Chris Gittens, Station Tech Supervisors Angel Bianchi and Murat Coskun, and Call
Center Supervisors Jermaine Clarke, Tiandra Razor, and Selena Brewster. Accordingly, those
named employees are eligible to vote. I find that Bike Checker Supervisor Kelly McGowan and
Dispatch Supervisor Jacob Boersma are supervisors within the meaning of Section 2(11) of the
Act and therefore, are ineligible to vote.
I. FACTS
A. BACKGROUND
The Employer operates a bicycle sharing system in New York City. This system allows
annual subscribers and members of the general public to rent bicycles for short-term use. Users
may select and return bicycles at any one of 332 docking stations located throughout the city.
With approximately 6,000 bicycles available for use, the Employer's bicycle sharing system is
the largest in North America. Currently, the Employer employs 24 9 employees, approximately
96 of which are classified as seasonal. Accordingly, the seasonal employees comprise about 30%
of the petitioned-for unit.
Michael Pellegrino serves as the Employer's Director of Operations.5 The five managers
who report directly to Pellegrino are Bicycle Fleet Department Operations Manager Phil
4 At the hearing, the parties stipulated that the status of Dispatch Supervisor Alex Marks is no longer in dispute and
he is hereby excluded from the unit as a supervisor within the meaning of Section 2(11) of the Act.
5 The record does not reveal to whom Pellegrino reports and no further evidence was adduced regarding the
Employer's overall managerial structure.
3
Capezio, Bicycle Redistribution Operations Manager Christopher Lewis, Technical Service
Operations Manager Tyler Justin, and Call Center managers Tina Arniotis and Vera Thompson.
The Bicycle Fleet Department is rgsponsible for the maintenance and repair of the bikes.
The bicycle mechanics work in the Sunset Park facility and the Farley Building. They are
assisted by warehousemen who load and unload bikes for repair and distribution back into the
system. The mechanics' work is complimented by the bike checkers, who work in the field, and
perform light maintenance on bikes.
The Bicycle Redistribution Department is charged with moving and reallocating bicycles
throughout the Employer's citywide system in order to meet usage patterns. This department is
comprised of two divisions. These are fleet/field employees, who are responsible for the
physical transportation of bicycles and dispatch employees, who coordinate the movements of
the field employees. The record indicates that the fleet/field employees work out of the
Delancey Street facility, while the dispatch employees work in the Sunset Park facility.
The Station Technician Department is responsible for maintaining the 332 docking
stations that are located throughout the bike-sharing system. Specifically, the station technicians
ensure the functionality of the payment kiosks and the bicycle docks. The record is unclear
regarding the facility that the technicians report to before starting their field work, but it appears
that the department's operations manager works out of the Sunset Park facility.
The Call Center handles customer service inquiries by phone and email. To assist with
customer service, the Employer also utilizes field employees that it classifies as ambassadors.6
The record does not indicate the exact location of the Call Center.
B. SUPERVISORY STATUS OF CONTESTED INDIVIDUALS
Bicycle Fleet Department
Bicycle Fleet Department Operations Manager Phil Capezio is responsible for the work
of the bike mechanics, bike checkers, and the warehouse employees. Capezio, who is directly
responsible for the department, did not testify regarding the duties and authority of the bike
mechanic supervisors.
Bike Mechanic Supervisors
Lead Supervisor Timur Mukhodinov reports directly to Phil Capezio. In addition to
Mukhodinov, four bike mechanic supervisors, Humberto Facey, Indio Galarza, Will Gaerre and
6
The record is unclear as to the precise departmental classification of the ambassadors.
4
Carlos Rivera, work at the Sunset Park facility with approximately eighteen mechanics. The
fifth bike mechanic supervisor, Briton Malcolmson, works at the Farley Building with
approximately twelve mechanics. The record reveals that bike mechanic supervisors earn $18
per hour, while bike mechanics earn $16.50 per hour.
Director of Operations Michael Pellegrino testified in a general manner about the work
responsibilities of the bike mechanic supervisors. He affirmed the accuracy of the bike mechanic
supervisor job description, but he conceded that he could only generally describe the work of
supervisors. He could not, for example, "tell you what they all did yesterday" or "last month."
The job description states that the "Key Aspects" of the bike mechanic supervisor
position are as follows:
Follow safe work practices and help to create a safe working environment
Ensure all maintenance/repairs are completed to NYCBS [New York City Bike
Share] standards
Maintain and uphold all NYCBS and Bike Shop policies and procedures; reward
or discipline direct reports as necessary
Train and supervise Bike Mechanic staff
Supervise the daily workload of Bike Mechanics and monitor production rates to
ensure compliance
Manage the schedule of Bike Mechanics to ensure full coverage of all shifts
Create End of Shift reports and Productivity Reports
Accurately manage parts consumption and inventory levels
Conduct periodic staff evaluations and provide feedback
Work with Dispatch, Vehicle Fleet, Station Technicians, and other NYCBS staff
on cross training and interdepartmental cooperation
Perform all other, additional duties as assigned.
Regarding the work duties of supervisors, Pellegrino testified that, on average,
supervisors spend less than 50% of their working time performing bicycle repairs. When not
performing repairs, Pellegrino stated that supervisors inspect the mechanics' work in accordance
with the Employer's repair standards. No evidence was adduced, however, regarding these
standards and the consequences of failing satisfy them.
Pellegrino asserted that supervisors have the authority to discipline the bike mechanics.
He testified that "very recently" a bike mechanic supervisor engaged in a "disciplinary
conversation" with an employee. Pellegrino did not provide the identity of the individuals
involved, the date of the conversation, or the subject of the conversation, and the Employer did
not offer any documents into evidence concerning this disciplinary conversation.
5
Further, Pellegrino maintained that the bike mechanic supervisors are responsible for
drafting written employee performance evaluations. Specifically, he testified that during the
most recent round of seasonal hiring, the supervisors observed the new mechanics over the
course of their initial two-week training. The supervisors made a recommendation to Capezio as
to whether they required additional training. The Employer did not offer any evaluations into the
record, or adduce any further testimony regarding whether the training program continued or the
impact on the mechanic's employment. With respect to permanent staff, Pellegrino claimed that
in about January 2014, bike mechanic supervisors provided "substantive input" to annual
evaluations. He was unable to state whether the "substantive input" was oral or written. As with
the performance evaluations for seasonal hires, Pellegrino failed to provide specific information
regarding the use of the evaluations, and the Employer failed to offer any of these performance
evaluations into evidence.
Finally, Pellegrino noted that supervisors alone have access to the inventory closet and
are responsible for checking the inventory in and out of the closet. Although Pellegrino claimed
that the inventory was valuable, no further details were adduced regarding the implied
importance of such access.
Although Pellegrino has knowledge of the Employer's policies and procedures, he
admitted that he is not involved in the day-to-day operations of the shop. As a result, his
testimony regarding the daily work of the bike mechanic supervisor was very conclusory and
without any specifics. The absence of documentary evidence supporting his assertion that the
supervisors responsibly direct and evaluate employees undercuts his testimony in that regard.
With respect to disciplinary authority, Pellegrino references a single verbal counseling. Again,
no documentary evidence was presented to show that the supervisors have authority to issue
written warnings or the discretion to independently discipline employees.
Lead Supervisor Timur Mukhodinov works at the Sunset Park facility and reports directly
to Operations Manager Phil Capezio. Mukhodinov testified that the bike mechanic supervisors
primary responsibilities include disciplining and rewarding mechanics, tracking time and
attendance, inventory, and general production.
Concerning the authority to discipline, Mukhodinov testified that bike mechanic
supervisors have the authority to give verbal warnings or send mechanics home due to
attendance. He provided hearsay testimony that he heard Capezio tell Facey, Rivera, and
Galarza that they could send individuals home for "[r]epeated poor attendance, severely poor
attendance, potential physical altercation or a need for investigation pertaining to their
performance or their honesty on their reporting of the bikes they repair." Ultimately,
Mukhodinov conceded that, in practice, the supervisors never issue discipline without first
speaking with him and Capezio. Mukhodinov added that, since he became lead supervisor, no
bike mechanic had ever been sent home for disciplinary reasons. I note that Mukhodinov failed
6
to provide any examples of supervisors disciplining mechanics and the record is silent as to the
effect of a verbal warning on the terms and conditions of employment of the recipient.
Regarding the authority to reward employees, the evidence appears to be even weaker.
Although Mukhodinov testified that supervisors can give "shout-outs," which is a type of verbal
performance recognition that enters the recognized employee into a departmental raffle, the
record indicates that the supervisors share this ability with all individuals in the department,
including the bike mechanics, and that supervisors have no role in approving the giving of
"shout-outs."
With respect to assignment and responsible direction, Mukhodinov noted that the
supervisors can assign, in that they determine the order and type of repairs to be completed in a
given time period. Mukhodinov testified that bike mechanics are required to follow directions or
instructions received from the supervisors. He claimed that the supervisors are responsible for
special projects. As an example, Mukhodinov stated that the supervisors can set up production
lines to take useable parts off of broken bikes. In selecting individuals for special projects,
Mukhodinov offered the hypothetical example of a supervisor assigning the repairing of rear
hubs to an individual considered "more knowledgeable about that particular component on the
bicycle."
Mukhodinov admitted that supervisors can spend up to 50% of their time working
alongside the mechanics repairing bicycles. Although the Employer's May 2014 Bicycle Fleet
Production Report and First Quarter Bicycle Fleet Report indicate that the supervisors spent an
average of 30 percent of their working hours repairing bicycles, with individual percentages
ranging from 19 to 38 percent, Mukhodinov noted that these percentages, which are self-
reported, vary from month to month.
Mukhodinov did not state, with any degree of specificity, what the supervisors do when
they are not repairing bicycles. In a general manner, he testified that supervisors are responsible
for maintaining and upholding the Employer's policies and procedures and ensuring that time
and attendance is satisfactory. He also testified that the disputed supervisors are involved in the
creation of daily or weekly reports addressing performance and attendance. He stated that the
reports also relay general questions posed by the mechanics and supervisors and provide an
assessment of morale in the shop. I note, however, that the Employer failed to offer into
evidence any examples of these policies and procedures, the daily and weekly reports,, or
employees with performance deficiencies or serious time-and-attendance issues.
With regard to time and attendance, Mukhodinov noted that supervisors play a role in
scheduling the mechanics. Mukhodinov stated that supervisors "take the availability" of the
mechanics once a month and notify Mukhodinov and Bicycle Fleet Operations Manager Capezio
7
"of any changes in the bike mechanics' weekly or daily schedules." Mukhodinov testified that
bike mechanic supervisors can approve paid time off for mechanics without consulting with him,
although he noted that the supervisors will typically speak with him or Operations Manager
Capezio before granting any such approval.
Mukhodinov estimated that either he or Capezio will meet with the bike mechanic
supervisor at the Farley Building, Briton Malcolmson, every few weeks, and with the four bike
mechanic supervisors at the Sunset Park facility weekly. According to Mukhodinov, at these
meetings they discussed production, behavior, morale, rewards, and inventory needs.
Finally, Mukhodinov testified that bike mechanic supervisors participated in meetings
designated as management-only at which human resources and union issues were discussed.7
Mukhodinov's testimony is based on his first-hand knowledge of the daily activities of
the bike mechanic supervisors. He clearly limited the supervisor's disciplinary authority to
verbal counseling regarding work performance issues, not misconduct. Overall, his testimony
demonstrates that the alleged supervisors act as a liaison between the mechanics and the
departmental manager, and do not possess independent authority to discipline or reward
employees. Similarly, his explanation of work assignments indicates that the supervisors do not
exercise discretion. Rather, the work is routine and matched to an employee's skill set. Most
importantly, with respect to supervisors' time spent performing unit work, Mukhodinov
explained that the proffered production reports are an incomplete sample of the time that
supervisors actually spend performing repair work alongside the mechanics.
Briton Malcomson, the only bike mechanic supervisor to testify, emphasized that his
work duties at the Farley Building are "similar to every other mechanic in the shop." He testified
that he had a work station like all of the other mechanics, and he estimated that he spent, on
average, 50 to 7 5 percent of his day performing repair work. Although this number is
significantly higher than the 19 percent recorded for May 2014 in the Bicycle Fleet Production
Report entered into evidence by the Employer, Malcolmson explained that "[t]here is a lot of
work that is not entered into NetSuite, which is the computer system [used in part to calculate the
amount of repair work performed]... So, for instance, I spent time where it's like I'm at my
workbench for 7 5 percent of the day rebuilding hubs or pulling broken parts out and like
replacing them with new parts. That doesn't get put into NetSuite." Malcolmson further
explained that the estimated 43 percent of time spent performing repair work in the first quarter
of 2014, also entered into evidence by the Employer, undercounted his actual time spent doing
such work, as a lot of the repairs weren't being tracked in any way.
7 Human Resources Manager Pean similarly testified that all supervisors attended management-specific trainings
regarding the unionization campaign and workplace non-discrimination policies.
8
Malcolmson vigorously denied having the supervisory authority to discipline, stating that
he was never told that he could issue verbal or written warnings or send employees home for
disciplinary infractions, and adding that he has never done so. Instead, Malcolmson characterized
his work as bike mechanic supervisor as essentially a middleman between the mechanics and
Capezio and Mukhodinov. He stated that he viewed his job as "relaying what Timor
[Mukhodinov] and Phil [Capezio] set out as the requirements and the results" of the production
reports to the mechanics. Malcolmson testified, for example, that if Mukhodinov and Capezio
"tell me that someone is below or above a [production] metric, I relay that to the employee" and
assist the mechanics in improving his or her performance. He further stated that he has no power
to set the schedules of the mechanics. He also denied having the ability to assign work tasks
within the facility.
Although Malcolmson admitted to participating in employee evaluations in January 2014,
and to authoring the evaluations of three employees, the record is silent as to how these
evaluations affected the terms and conditions of employment of the bike mechanics.
Additionally, I note that the Employer did not enter any employee evaluations into evidence.
Finally, although Malcolmson admitted that he recommended an employee for a
promotion, he clarified that he did so in response to an open solicitation issued to all bike
mechanics at the Farley Building. The record testimony indicates that the Employer did not act
on this recommendation. The record contains no evidence concerning the number of such
promotional recommendations received and the identities of those who made the
recommendations.8
Warehouse Supervisor
In addition to the repair work performed by Malcolmson and the bike mechanics, the
Farley Building also operates as the Employer's warehouse. One of the three warehousemen,
Jesse Taylor, is alleged to be statutory supervisor.
The evidence offered by the Employer in support of Taylor's ineligibility and exclusion
from the unit is scant.9 Director of Operations Pellegrino testified that Taylor "helps with the
loading and unloading [at the Farley Building], and the general upkeep of that facility." The
record further indicates that Taylor works alongside his two coworkers in the warehouse.
Finally, although she did not mention Taylor by name or position, Human Resources 'Manager
8 I note that the Employer alleges that Malcolmson participated in several new employee interviews, a point
conceded by Malcolmson. However, the evidence indicates that Malcolmson did so while serving as bike checker
supervisor, and not in his current position as bike mechanic supervisor. The record does not contain any evidence
indicating that Malcolmson has continued to participate in new employee interviews since becoming bike mechanic
supervisor in approximately October 2013.
9 I note that the Employer's brief does not address the supervisory status of Taylor.
9
Pean testified that all supervisors were required to attend two management-specific training
sessions: the first addressing sexual harassment and related workplace antidiscrimination laws,
and the second involving the unionization effort. The Employer did not provide any additional
testimonial or documentary evidence concerning the supervisory authority of disputed supervisor
Taylor.
Bike Checker Supervisors
For general maintenance of its bike fleet, the Employer dispatches bike checkers to the
field, rather than transporting the bikes to the shop. The bike checkers inspect the bikes and
perform light repairs in the field. Kelly -McGowan is the supervisor of approximately twelve
bike checkers, all of whom are seasonal employees.
As with Mukhodinov, McGowan reports directly to Operations Manager Capezio. The
evidence concerning McGowan's duties was presented through the testimony of Bicycle
Redistribution Operations Manager Christopher Lewis because he served as McGowan's direct
supervisor for a short period of time.1 Notably, Lewis stated several times during his testimony
that he could not provide accurate, current information concerning the present duties of
McGowan, and identified Capezio as the individual best able to provide that information.
Nonetheless, Lewis testified that McGowan hired all of the bike checkers working in the
2014 season. In recounting the hiring process, Lewis stated that McGowan conducted all of the
job interviews himself, with the exception of one interview which Lewis also attended. He
testified unequivocally that McGowan made all of the hiring decisions on his own, stating, for
example: that McGowan was "pretty autonomous in the process and they were his decisions";
that McGowan "didn't collaborate with anyone else" in deciding which bike checkers to hire;
and that McGowan "was the sole person... who had that decision [to hire bike checkers.]"
Lewis also claimed that McGowan has the authority to issue verbal and written warnings,
but he did not provide any specific examples of him having done so. He noted only that
McGowan has discussions with bike checkers regarding their production. Because he is no
longer McGowan's direct supervisor, Lewis emphasized that he could not "provide an answer
that's as detailed as you want" regarding specific instances of McGowan participating in
conversations with checkers concerning their production. In that regard, Capezio generates
production reports which indicate each bike checker's undocking, maintenance, inspection, and
redocking of bikes. The Employer can monitor the field work by tracking the hourly, daily, and
weekly production rates. The Employer failed to offer evidence of any record or personnel file
note of McGowan's conversations with bike checkers regarding their performance. The
10
As noted previously, Capezio did not testify regarding the alleged supervisors within his department.
10
Employer also failed to enter into evidence any examples of verbal or written warnings issued by
McGowan.
Lewis also testified that McGowan is solely responsible for scheduling. He admitted,
however, that McGowan's discretion in scheduling is limited, as employees work Monday
through Friday on "set schedules" of 7 am to 3 pm and 2 pm to 10 pm. He noted that McGowan
frequently interacts with Dispatch Supervisor Alex Marks to determine the times in which the
trailers and checkers will be working in the field.
Bicycle Redistribution Department
Turning to the field work carried out by his own department, Operations Manager
Christopher Lewis described the job duties of the six disputed redistribution department
supervisors. Although this department has two divisions, Field/Fleet and Dispatch, Lewis
testified that the supervisors in both divisions share certain responsibilities.
Lewis claimed that all of the redistribution supervisors have the authority to issue verbal
and written warnings. He admitted that the authority to issue written warnings was not given to
the fleet/field supervisors until the week before the hearing. He noted that the supervisors can
choose between issuing a verbal or written warning, or sending an employee home if the
employee arrives more than fifteen minutes late. Again, the Employer failed to offer into
evidence any documents memorializing verbal or written warnings issued by a supervisor. As
discussed more fully below, stipulated dispatch supervisor Alex Marks denied having any
authority to issue written warnings. In this regard, I note the testimony by Director of Operations
Pellegrino, who similarly stated, "rilf a disciplinary issue bubbles up to the level of a written
warning or a performance improvement plan, often I'll be involved at that point."
Lewis stated that all supervisors are held accountable for the performance of their
employees, testifying, "they're responsible for reporting [employees' performance data], they're
responsible with talking with the employees about it, and they're responsible for escalating it to
the next step," and for ensuring that employees are in compliance with the Employer's standard
operating procedures. Again, the production reports documenting the performance of each
employee are not in evidence. Similarly, the Employer failed to offer into evidence any of the
standard operating procedures the supervisors are charged with enforcing.
Finally, Lewis noted that all of the supervisors attend management-only meetings, with
the fleet/field supervisors meeting with him weekly and the dispatch supervisors more
frequently.
11
The Field/Fleet Division
The fleet/field division is responsible for physically moving bicycles and docking stations
around the system. There are approximately 56 employees in the division, classified either as
drivers or balancers. The record indicates that disputed fleet/field supervisors, Aldrick
Bramwell, Dyrell Epps, and Carl Johnson, earn $19 per hour, while drivers earn $18 per hour
and balancers $14.50 per hour.
Lewis testified that the core responsibility of the fleet/field supervisors, who work out of
the Delancey Street facility, is "being the face supervisors in the field." Elaborating, Lewis
stated that the supervisors, for example, ensure that the drivers and rebalancers arrive for work
on time with the proper safety gear, conduct pre- and post-trip inspections on vehicles, and report
maintenance problems. During their post-trip inspections, the supervisors frequently inform
drivers that they cannot clock out until, for example, they return to the truck to clean up garbage
left in the vehicle.
The record reflects that the supervisors accompany new employees on what the
Employer terms "ride-alongs." These are shifts in which new employees are joined by at least
one supervisor to evaluate the new employees' performance. While the record is unclear, it
appears that these ride-alongs occur for drivers only, and not balancers. Lewis testified that each
employee will have a total of three full-shift ride-alongs in the first three weeks of employment.
On at least two of the ride-alongs, the new employee will be accompanied by a supervisor.
Lewis stated that, after the three weeks, the supervisors will make a recommendation regarding
the abilities of the new employee, and may, for example, recommend that a new employee be
"give[n] more time before they're allowed out on their own," or may "conclude that the driver
shouldn't be driving trucks." Lewis testified that the recommendation of the supervisors is
followed. Lewis did not state if the recommendation is in written or oral form, and the Employer
did not enter any examples of such recommendations into evidence. He also noted that since
January 2014, when he became Operations Manager, the ride-alongs have not resulted in the
termination of any employee.
Lewis added that the supervisors will inform him if they are having a repeated problem
with an employee; he was, however, unable to highlight any specific instance of repeated
problems with an employee, although he noted, "I'm sure they're in my [e-mail] box." No
emails were proffered into evidence.
Finally, Lewis noted that, Aldrick Bramwell, the morning supervisor, is responsible for
deployment operations, which means moving docking stations around the system to
accommodate usage patterns. Lewis stated that Bramwell "will choose his eight or so
individuals" to work on a given deployment operation, but he also noted that he typically
12
chooses more seasoned employees. Further, Lewis testified that Bramwell "will request from
[dispatch supervisor] Jacob [Boersma] and myself as a curtesy [sic], so we're all in the loop,
which individuals will be assisting in the effort for that day..." Additionally, Lewis indicated
that he, in fact, may choose Bramwell's team, noting, "we'll select his staff, based on who is
scheduled to work, who he wants to work with him in the field."
The Dispatch Division
Approximately fourteen dispatchers track the locations of all the field employees. Lewis
testified that the dispatch supervisors, Alex Marks, Jacob Boersma, and Chris Gittens, are each
responsible for discreet operational aspects of the Bicycle Redistribution Department.
Marks is the "logistics coordinator."1 1 He works closely with Bike Checker Supervisor
Kelly McGowan to coordinate the work of dispatchers, valets, and bike checkers. Lewis testified
that Marks hired "pretty much" all of the valet attendants himself. The valets work at heavily-
used stations in the system in order to assist customers with the docking and with loading of
bicycles onto trucks for transport. Lewis stated that Marks determined who he wanted to
interview for the position and conducted all of the interviews himself, with the exception of "two
or three" which Lewis also attended. Lewis emphasized that Marks had "sole discretion on who
he want[ed] to hire," and described an incident in which Marks' overrode Lewis'
recommendation concerning the hiring of a certain individual.
Marks corroborated that he has authority to hire the valets. Marks also stated that he was
involved in the hiring of the seasonal, part-time dispatchers, describing it as "consensus driven
with Chris [Lewis] in terms of who we hired." Concerning the dispatchers, Marks stated that,
following their hire, he was responsible for their training and on-boarding schedule. Marks also
corroborated that he approves paid time off, has the authority to verbally "counsel a dispatcher,"
and can send an employee home for excessive tardiness, although he has never done so. During
his testimony, Marks also offered his belief that "formally [he is] held accountable" for the
performance of dispatchers.
Boersma is the "fleet coordinator." He is responsible for scheduling the 56 drivers and
balancers, fleet maintenance, and "keeping track of what the three field/fleet supervisors report
to him regarding on-time performance, preparedness and any personnel issues." Lewis testified
that Boersma hired all of the drivers in the Bicycle Fleet Department. This testimony is
unrebutted. Further, Boersma formally approves or denies paid time off for all drivers and
balancers and was involved in the Employer's efforts to lease additional trucks for its vehicle
fleet.
1 1 The parties stipulated that Marks is a supervisor within the meaning of Section 2(1 1 ).
1 3
Finally, Gittens is the overnight supervisor and is responsible for "quality control." In
this capacity, Gittens works with the Employer's database, NetSuite, to ensure that "work orders
are being done and the tasks... are being scheduled." As night supervisor, Gittens also "assist[s]
with overnight scheduling" and approves time off for night shift employees.
Lewis testified that approximately three weeks prior to the hearing, Gittens recommended
the termination of an employee suspected of stealing time. After receiving this recommendation,
Lewis conducted his own investigation and verified Gittens' suspicions that the employee was
stealing time. Lewis testified that, following the investigation, "his [Gittens'] write-up
[recommending termination] was forwarded to HR with my signature attached." As of the date
of the hearing, according to Lewis, the employee had not yet been terminated. Notably, the
Employer failed to enter the write-up referenced by Lewis, or any other documents concerning
the termination recommendation into evidence.
Additionally, both Gittens and Marks are charged with summer advertisements and map
placement. In this capacity, Lewis and Marks chose staff based on availability and skill level,
selecting "people that have been around since deployment so that they can troubleshoot and are
able to swap the maps for stations that are a little more finicky."
The record indicates that dispatch supervisors Marks, Boersma, and Gittens earn $18 per
hour, while the dispatchers, with the exception of one, earn $16.50 per hour.12
Station Technician Department
Operations Manager Tyler Justin reports directly to Pellegrino. His department is
responsible for maintenance of the docking stations. Supervisors Angel Bianchi and Murat
Coskun report directly to Justin and they oversee the work of about 2 7 technicians, who are
assigned to various locations in the field by the dispatchers.
Station technicians have three titles: associate, tier 1, and tier 2 technician, depending on
skill level. The associate station technicians focus primarily on power-related issues at the
docking stations. Tier I technicians focus on the stations' docking points. Tier 2 technicians
address issues arising inside the stations' payment kiosks, including problems related to modems
and data links.
According to Justin, the supervisors spend approximately 60% of their time performing
"supervisory work," and the remainder 40% of their time in the field. Discussing what he termed
"supervisory work," Justin testified that the primary task in which supervisors engage is
12 As part of an agreement between her and the Employer upon her transfer from the Washington, DC bike-share
system, the dispatcher who does not earn $16.50 per hour earns $18 per hour.
14
"management of the schedule." As an example, he stated that the supervisors help to ensure
adequate coverage for busy weekends and track down substitutes for employees who call out.
While Justin indicated that supervisors could edit work schedules on their own, it appears that
they in fact consult with him regarding all scheduling issues. Justin characterized his interaction
with the supervisors as "always sort of a constant discussion" concerning technician shift
assignments. He also noted that the supervisors do not have independent authority to grant extra
hours or assign additional employees for a shift.
Regarding assignment and responsible direction, Justin testified that the work
assignments of technicians are "sort of prescribed already, which technician should be headed to
which stations." He further noted that, in order to receive their daily assignments, the
technicians interact directly with the dispatchers in the Bicycle Redistribution Department.
Justin testified, though, that if there is an unusually large amount of repair work needed on a
certain system component, such as touch screens, the supervisors "help [him] determine" the
technicians who will be working on those repairs. 1-le explained that, in the event technicians are
temporarily reassigned from their typical repair work, the dispatchers will be informed and the
technicians will receive their assignments directly from the dispatchers.
Justin testified that the supervisors have the independent authority to issue verbal
disciplines. Justin, however, failed to identify any specific instance in which a supervisor so
issued verbal disciplinary action.
Finally, Justin testified that in January 2014, prior to his becoming operations manager,
the supervisors participated in evaluations for the station technicians. This is the last time station
technicians were evaluated. Justin stated that this evaluation considered such areas as time and
attendance, attitude, cleanliness, and neatness. Justin added that the evaluations contained a
section for corrective action. Justin testified that, as far as he was aware, the prior operations
manager and the supervisors spoke with the station technicians about how they could improve
their performance. Justin did not state whether the supervisors independently determined the
corrective action to be taken. Notably, the Employer failed to enter any of these performance
evaluations into evidence.
The Call Center
The Call Center is managed by Tina Arniotis and Vera Thompson. The three disputed
call center supervisors are Jermaine Clarke, Tiandra Razor, and Selena Brewster.
Pellegrino testified to the general accuracy of the call center supervisor job description,
even though he did not know when the job description was created or when he last viewed the
15
job description. I note that Pellegrino was unable to state the number of employees employed in
the Call Center.
The job description states that the primary responsibilities of the call center supervisors
are:
Supervise a team of call center staff Supervisory responsibilities include the
following:
Maintain staff schedules and timesheets.
Prepare bi-weekly payroll in the NYCBS payroll system.
Organize staffing: determine shift patterns and the number of staff
required to meet demand.
Conduct bi-weekly or monthly meetings to keep staff informed or all
service-related updates.
Review the performance of each team member.
Identify training needs and plan training sessions, including phone/email
scripts.
Coach team members by providing detailed feedback about qualitative and
quantitative work performance, attendance, work habits, goals, areas for
improvement, and praise/recognition in order to increase customer service.
Initiate corrective action as appropriate.
Lean to understand the call-center operations as a whole, and become familiar
with the Shoretel, PBSC and NetSuite systems.
Analyze performance trends and maintain daily, weekly, and monthly reports.
Utilize Shoretel (ACD) to monitor telephone inquiries, queue status, and
undertake queue actions.
Investigate the root cause(s) of problems, and handle the most complex customer
complaints or inquiries when escalated.
Optimize the use of call resources (including personnel).
Support strategic plans and objectives.
Effectively communicate ideas, suggestions, and solutions with the Customer
Service Manager1 3 to improve Quality Assurance.
Other duties as assigned.
Human Resources Manager Pean testified that there are 56 employees within the Call
Center. She further stated that the call center supervisors differed from the supervisors found in
other department in that the call center supervisors were hired as supervisors, and not promoted
from within. Pean noted that the call center supervisors attended two management-specific
trainings: one concerning sexual harassment, and another addressing the unionization efforts.
1 3 The record did not disclose the identity, duties, or place in the management hierarchy of the customer service
manager.
1 6
The Employer also presented call center agent Shemell Morgan as a witness. Morgan
stated that her duties included assisting customers, by email and telephone, with billing and
pricing questions and general inquiries like the location of docking stations. When asked who
she reports to, Morgan, however, did not identify any of the three individuals alleged by the
Employer to be supervisors. Instead, Morgan stated that she reported to her "manager," who she
identified as "Tina Rivera."1 4
C. SEASONAL EMPLOYEES
The Employer employs a substantial complement of seasonal employees who work
alongside its permanent staff who are both full-time and part-time employees. While the record
does not contain a precise calculation of the number of seasonal employees employed by the
Employer, the record indicates that approximately 96 employees, out of a total workforce of 24 9,
are designated as seasonal. Seasonal employees are employed in the Employer's Bicycle Fleet,
Bicycle Redistribution, Station Technicians, and Call Center Departments. Additionally, all
employees employed in the Ambassador classification are designated as seasonal. The record
indicates that the Employer's current staffing numbers closely track the Employer's 201 3
employment figures; in the fall of 201 3, the Employer had a workforce of approximately 250
individuals, 1 00 of whom were laid off at the conclusion of the peak bicycle season in October
and November 201 3.1 5
The record demonstrates that terms and conditions of employment of seasonal and
permanent employees are substantially identical. Seasonal employees receive the same rate of
pay of permanent employees in the same job title, and seasonal employees work "side by side"
with permanent employees.
In her testimony, Human Resources Manager Pean highlighted the many common
aspects of employment shared by permanent and seasonal employees. She testified, for example,
that permanent and seasonal employees are covered by same employee handbook terms, have the
same introductory, or probationary period, work under the same supervision, clock-in and clock-
out in the same manner, request time off in the same way, and wear the same uniforms and
badges. Pean also stated that the training of permanent and seasonal employees is identical, with
the exception of seasonal call center agents, who are not trained to process refunds.
Furthermore, Pean noted that while seasonal employees work on overnight and weekend shifts
more often than permanent employees, seasonal employees can be found on all shifts. Pean
stated that seasonal employees share similar skill levels and experience with permanent
employees, with the exception of those working in the associate station technician position.
1 4 Morgan appears to be referring to Tina Arniotis, identified by the Employer as the manager of the Call Center.
1 5 I note that the record indicates that the ambassadors were laid off in August and September 201 3.
1 7
With regard to the latter, Pean noted that employees working in the associate station technician
position have fewer years of experience working with computer systems. Pean also noted that
seasonal employees enjoy access to all of the same facilities as permanent employees. The only
notable difference in terms and conditions is that full-time, permanent employees receive fringe
benefits, seasonal employees and permanent part-time employees do not.
The record indicates that the seasonal employees hired in 2014 signed employment offer
confirmation letters confirming the seasonal nature of their employment. The definition for
seasonal employment contained in the letters differs slightly from that which appears in the
employee handbook, most notably in that the letters permit the Employer to estimate a length of
work season ranging from two to three months, four to five months, six to seven months, or
"other." The record indicates that the employees hired as seasonal prior to July were given
estimated work periods of six to seven months, while those hired after July were given estimated
employment periods of four to five months. Seasonal hires Shemell Morgan and Elena Crotty
testified that they understood seasonal nature of their employment at'the time of the offer and
were never informed about how they could become permanent employees or be rehired in 2015.
Human Resources Manager Pean testified regarding the hiring process for seasonal
employees in 2014. The record indicates that the Employer advertised for seasonal positions on
Craig's List and other job posting websites, and also advertised at area colleges for the
ambassador position and local technical schools for station technician openings. The record
demonstrates that the Employer amassed a workforce heavily dominated by New York City
residents. I note that the sample Craig's List job postings for the Seasonal PT Driver and Station
Technician positions contain references to Brooklyn.
The record contains limited evidence concerning the return in 2014 of the approximately
100 employees who were laid off in October and November 2013. Pean testified that several
laid-off employees reapplied for seasonal positions in 2014 and were rehired. She stated, for
example, that, "three ambassadors, three- or four ambassadors, maybe five," were rehired in
2014, out of approximately 15-20 ambassadors who worked in 2013 and a current Ambassador
workforce of 16. Pean similarly testified that at least one laid off Call Center employee, Chanel
Jones, reapplied in 2014 and was hired. Finally, Pean noted that laid-off station technician
Jonathan Bolarinwa reapplied in 2014 and was hired. In recounting the decision to rehire him,
Pean testified that, before making an offer, representatives of the Employer "pull[ed] his profile
to see what his [2013] performance was like," and spoke with permanent employees of the
Employer regarding his work history. On Bolarinwa's employment offer confirmation form, it
was explicitly noted that he was a "[r]ehire." In his testimony, Operations Director Pellegrino
similarly stated that, in deciding whether to rehire a former seasonal employee, the Employer
would take into account the fact of that the former employee had already been trained by the
18
Employer, and would also look into the applicant's performance and reliability, among other
attributes.
While Pean, several times throughout her testimony, indicated that the Employer was
undecided as to whether it would employ seasonal employees in 2015, Director of Operations
Pellegrino testified that the Employer was likely to hire seasonal employees next year. As
Pellegrino clearly stated in his testimony, "to some extent there is likely to be seasonal hiring
next year." Similarly, at another point in his testimony, Pellegrino, in response to a question
asking whether, "there's an expectation... you're going to have to have these seasonal employees
every season," stated, "Mit some capacity, yes."
Concerning the likelihood of future employment of seasonal workers, I note the record
testimony from Pean discussing some of the factors the Employer may take into account when
determining the size of its 2015 workforce, including weather-related issues and technological
improvements to the bicycle docking stations. Similarly, Technical Service Operations Manager
Justin noted that, in the event of technological improvements to docking station batteries, his
department may not need approximately seven seasonal employees who currently are responsible
solely for swapping batteries. Additionally, Bike Mechanic Lead Supervisor Mukhodinov
testified, hypothetically, that if his department eliminated a current backlog of approximately
1,900 bicycles needing repair, perhaps it could operate with only permanent employees.
Mukhodinov stressed, however, "[w]e don't know if [the bicycles in the warehouse needing
repair] will ever meet zero, because that's something that's fueled by the users every single day."
II. ANALYSIS
A. SUPERVISORS
Section 2(11) of the Act defines supervisors as follows:
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.
To establish that the individuals are supervisors, the party asserting supervisory status
must show: (1) that they have authority to engage in any 1 of the 12 enumerated supervisory
functions; (2) their "exercise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment"; and, (3) that their authority is exercised "in the
19
interest of the employer." Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006). A party can
prove the requisite authority either by demonstrating that the individuals actually exercise a
supervisory function or by showing that they effectively recommend the exercise of a
supervisory function. Id. at 88. Where "putative supervisors are not shown to possess any of the
primary indicia of supervisory status enumerated in Sec. 2(11), secondary indicia are insufficient
to establish supervisory status." Golden Crest Healthcare Center, 348 NLRB 727, 731, n. 10
(2006).
In considering whether the individuals at issue here possess any of the supervisory
authority set forth in Section 2(11) of the Act, I am mindful that in enacting this section of the
Act, Congress emphasized its intention that only supervisory personnel vested with "genuine
management prerogatives" should be considered supervisors and not "straw bosses, leadmen,
set-up men and other minor supervisory employees." Chicago Metallic Corp., 273 NLRB 1677,
1688 (1985). Thus, the ability to give "some instructions or minor orders to other employees"
does not confer supervisory status. Id. at 1689. Indeed, such "minor supervisory duties" should
not be used to deprive such individual of the benefits of the Act. NLRB v. Bell Aerospace Co.,
416 U.S. 267, 280-81 (1974) (quoting Sen. Rep. No. 105,
80th
Cong. 1st Sess., at 4). In this
regard, it is noted that the Board has frequently warned against construing supervisory status too
broadly because an individual deemed to be a supervisor loses the protections of the Act. See,
e.g., Vencor Hospital Los Angeles, 328 NLRB 1136, 1138 (1999); Bozeman Deaconess
Hospital, 322 NLRB 1107, 1114 (1997).
The party asserting that an individual has supervisory authority has the burden of proof
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 713 (2001); Dean & Deluca New
York, Inc., 338 NLRB 1046 (2003). "[W]henever the evidence is in conflict or otherwise
inconclusive on a particular indicia of supervisory authority, [the Board] will find that
supervisory status has not been established, at least on the basis of those indicia." Phelps
Community Medical Center, 295 NLRB 486, 490 (1989); see also Brusco Tug & Barge, Inc.,
359 NLRB No. 43 (2012). Purely conclusory evidence is not sufficient to establish supervisory
status; rather the party must present evidence that the employee actually possesses the Section
2(11) authority at issue. Alternate Concepts, Inc., 358 NLRB No. 38, slip op. at 3 (2012)
("[M]ere inferences or conclusory statements, without detailed, specific evidence are insufficient
to establish supervisory authority.").
In applying the above-mentioned case law, and based on the record evidence, I conclude
that the evidence is insufficient to establish that the following individuals are supervisors within
the meaning of Section 2(11) of the Act: Bike Mechanic Supervisors Briton Malcolmson,
Humberto Facey, William Gaerre, Indio Galarza, and Carlos Rivera, Vehicle Supervisors
Aldrick Bramwell, Dyrell Epps, and Carl Johnson, Dispatch Supervisor Chris Gittens, and
Station Tech Supervisors Angel Bianchi and Murat Coskun.
20
With regard to Call Center Supervisors Jermaine Clarke, Tiandra Razor, and Selena
Brewster, the Employer has presented only paper authority. See Golden Crest Healthcare, 348
NLRB at 731 ("Job descriptions or other documents suggesting the presence of supervisor
authority are not given controlling weight. The Board insists on evidence supporting a finding of
actual as opposed to mere paper authority.").
Finally, with respect to Warehouse Supervisor Taylor, I note that the Employer has failed
to provide any specific evidence addressing his supervisory status. Furthermore, the Employer's
brief is entirely silent regarding Taylor. Accordingly, I hereby find that Taylor is an employee
within the meaning of the Act. See Golden Crest Healthcare, 348 NLRB at 728 ("The burden of
proving supervisory status rests on the party asserting that such status exists.")
The Employer, however, has established that Bike Checker Supervisor Kelly McGowan
and Dispatch Supervisor Jacob Boersma are supervisors as defined by Section 2(11) of the Act.
Accordingly, supervisors McGowan and Boersma are ineligible to vote and are hereby excluded
from the unit.
1. Authority to Hire and to Effectively Recommend Hire
The exercise of hiring authority demonstrates supervisory status. See, e.g., Kenosha
News Publishing Corp., 264 NLRB 270, 271 (1982) (individual found to be a supervisor where
he "hired all the part-time employees who work for him"). Supervisory status may also be
established where an individual effectively recommends hiring. See, e.g., IC. Penney Corp.,
347 NLRB 127 (2006) (explaining that "Nile power to effectively recommend a hire, as used in
Section 2(11), contemplates more than the mere screening of applications or other ministerial
participation in the interview and hiring process"). Evidence indicating that disputed supervisors
participate in the evaluation of probationary employees, and have the authority to determine
whether the probationary employees are retained for further training or terminated, will not, on
its own demonstrate supervisory authority. See Harbor City Volunteer Ambulance Squad, Inc.,
318 NLRB 764 (1995).
The Employer presented uncontradicted testimony that Bike Checker Supervisor Kelly
McGowan and Dispatch Supervisor/Fleet Coordinator Jacob Boersma hired some of the
employees who work in their respective departments. Accordingly, I find that the Employer has
met its burden in establishing that McGowan and Boersma are statutory supervisors under
Section 2(11) of the Act. Although the evidence suggests that fleet/field supervisors Bramwell,
Epps, and Johnson conduct evaluations of probationary employees, it is insufficient to establish
21
that they exercise the authority to effectively recommend the hire of the probationary workers.1 6
Accordingly, I do not exclude fleet/field ,supervisors Bramwell, Epps, and Johnson from the unit
on this basis.
Bike Checker Supervisor Kelly McGowan
Operations Manager Lewis testified that Bike Checker Supervisor McGowan was alone
responsible for the hiring of all bike checkers employed during the 201 4 season. The Union did
not present any evidence rebutting this assertion. In fact, the only Union witness, Bike Mechanic
Supervisor Malcolmson, testified that he, too, participated in the hiring process while serving as
bike checker supervisor in 201 3. While Malcolmson characterized his involvement as a personal
favor to Operations Manager Capezio, his testimony supports Lewis' claim that McGowan has
hiring authority as the bike checker supervisor. Although the Employer failed to present any
documentary evidence supporting its assertion, I find Lewis' uncontradicted testimony sufficient
to establish that McGowan has exercised his authority to hire and is therefore a supervisor within
the meaning of the Act.
Dispatch Supervisor/Fleet Coordinator Jacob Boersma
Operations Manager Lewis similarly provided uncontradicted testimony concerning the
hiring authority of Dispatch Supervisor/Fleet Coordinator Boersma. In his testimony, Lewis
stated that Boersma hired all of the drivers in the department. The Union failed to provide any
evidence rebutting Lewis' representation. I note that the only other individual in the department
with a coordinator title, Dispatch Supervisor/Dispatch Logistics Coordinator Marks, testified that
he, too, has hiring authority, having hired all valet attendants employed during the 201 4 season
and having participated in the hiring of seasonal, part-time dispatchers. As with McGowan,
although the Employer failed to present any documentary evidence supporting its assertion
regarding the hiring authority of Boersma, I find that the evidence is sufficient to establish that
Boersma is a supervisor within the meaning of the Act.
Field/Fleet Supervisors Aldrick Bramwell, Dyrell Epps, and Carl Johnson
Although the evidence suggests that field/fleet supervisors Bramwell, Epps, and Johnson
evaluate probationary employees, the testimonial evidence offered by Operations Manager Lewis
is too vague to establish that the field/fleet supervisors effectively recommend the hiring of
probationary employees. Lewis testified that the supervisors can determine that probationary
drivers require more ride-alongs, rides in which they are accompanied by a supervisor or more
experienced driver, before they are allowed to drive on their own. He also testified that a
16
I note that Pellegrino offered vague testimony suggesting that the bike mechanic supervisors also evaluate
probationary employees. However, Pellegrino did not suggest that the bike mechanic supervisors have the authority
to effectively recommend the hire or termination of probationary bike mechanics.
22
supervisor could "recommend that a driver is not suited to drive certain vehicles," and stated,
hypothetically, that the driver could then "be asked to... step down or they , would be terminated
if, you know ." Lewis noted, however, that no probationary driver has ever been terminated on
the recommendation of a field/fleet supervisor. Lewis also did not state what, if any, effect a
positive evaluation would have on the probationary status or pay of a new driver, and did not
explain the effect of a recommendation to continue ride-alongs.
In this regard, the authority of the field/fleet supervisors is similar to that of the field
training officers in Harbor City Volunteer Ambulance Squad, supra. In that case, the Employer
argued that the field training officers should be excluded from the unit as statutory supervisors
because they "evaluate new paramedics and make recommendations regarding whether the
paramedic is to be retained for further training, advanced to solo status, or terminated." 318
NLRB at 764. As an initial matter, the Board discounted any alleged authority to effectively
recommend termination, noting that "there have been no actual recommendations for termination
made." Id. The Board then analyzed the impact of the recommendations for continued training
or advancement to "solo status" on the continued employment of the probationary paramedics.
The Board wrote:
Here, there is no evidence that the recommendations to advance the
paramedics to solo status signal the end of their probationary status; there
is no evidence that advancing to solo status necessarily leads to permanent
employment or a change in pay status; and there is no evidence
establishing what, if any, impact a recommendation for further training has
on the employees' job status.
Id. Although the Board acknowledged that there was no dispute regarding the effectiveness of
the recommendations, it concluded that "the ability to make recommendations for extended
training or advancement to solo status... does not constitute the kind of personnel decision that
establishes supervisory authority." Id.
As in Harbor City Volunteer Ambulance Squad, the Employer has failed to present any
evidence regarding the effect of a recommendation to continue ride-alongs or advance to
unaccompanied rides. Further, because there has never been a recommendation to terminate, any
testimony in that regard is hypothetical. In this regard, I note the testimony of Director of
Operations Pellegrino, who stated that he is involved in any decision to terminate. Accordingly,
I conclude that the evidence is insufficient to establish that Field/Fleet Supervisors Bramwell,
Epps, and Johnson have the authority to effectively recommend the hiring of drivers and I will
not exclude them from the unit on this basis.
23
2. Authority to Assign
The authority to assign also demonstrates supervisory status. The Board has defined
"assign" to mean the "designating of an employee to a place (such as a location, department, or
wing), appointing an individual to a time (such as a shift or overtime period), or giving
significant overall duties, i.e., tasks, to an employee." Golden Crest Healthcare, 348 NLRB at
728, citing Oakwood Healthcare, Inc., 348 NLRB 686 (2006). "[A]d hoc instruction that [an]
employee perform a discrete task" is insufficient to establish supervisory status. Id. Further, in
order to establish authority to assign, the disputed supervisor must have "the ability to require
that a certain action be taken." Golden Crest Healthcare, 348 NLRB at 729. The Board will not
find supervisory status where the assignments are "routine" and not "based on anything other
than the common knowledge, present in any small workplace, of which employees have certain
skills and which employees work well together." Armstrong Machine Co., Inc., 343 NLRB
1149, 1150 (2004). Regarding scheduling, "the Board has observed that if the putative
supervisor's 'role in processing time-off requests was limited to assessing staffing adequacy,' it
constituted 'a routine task that did not involve independent judgment." AD Conner, 357 NLRB
No. 154 (2011), citing Pacific Coast MS. Industries Co., 355 NLRB No. 226, slip op. at fn. 13
(2010).
As discussed in full below, the Employer failed to establish that the disputed supervisors
possess the authority to assign.
Bike Mechanic Supervisors Malcolmson, Facey, Gaerre, Galarza, and Rivera
The evidence is insufficient to establish that Bike Mechanic Supervisors Briton
Malcolmson, Humberto Facey, Will Gaerre, Indio Galarza, and Carlos Rivera possess the
authority to assign. Lead Supervisor Mukhodinov testified that the bike mechanic supervisors
can determine the order of repairs to be performed and can also designate certain individuals to
perform discrete tasks, like rebuild bike wheels, as the need arises. However, rather than
demonstrating that the supervisors possess the authority to assign within the meaning of Section
2(11) of the Act, this testimony indicates that the supervisors engage in the very type of non-
discretionary, ad hoc instruction that the Board has found to be insufficient to establish
supervisory authority.
Further, the evidence does not indicate that the supervisors possess the authority to set the
schedules of mechanics. Malcolmson stated explicitly that he does not have the authority to
adjust employee schedules. While Mukhodinov testified that the supervisors "take the
availability" of the mechanics and "notify [Mukhodinov] and [Capezio] of any changes in the
bike mechanics' weekly or daily schedules," this testimony is ambiguous and does not establish
that the bike mechanic supervisors are responsible for the scheduling of the mechanics.
24
Dispatch Supervisor Gittens
Similarly, the evidence is insufficient to establish that Dispatch Supervisor Christopher
Gittens has the authority to assign within the meaning of Section 2(11) of the Act. Contrary to
the Employer's representations, the evidence does not establish that Gittens is responsible for
overnight scheduling in the department. Additionally, to the degree that Gittens is involved in
assigning individuals for "special tasks" like replacing ads or maps with stipulated supervisor
Alex Marks, the evidence suggests that Gittens has little or no discretion and merely engages in
ad hoc instruction, selecting individuals based on their willingness to work extra hours and on
"the common knowledge, present in any small workplace, of which employees have certain
skills and which employees work well together." Armstrong Machine Co., Inc., 343 NLRB at
1150. Further, Operations Manager Lewis' testimony that dispatch supervisors assign
dispatchers to coordinate vehicle pickups when the vehicles are ready is vague and does not
reflect any independent judgment on the part of Gittens or any other dispatch supervisor.
Field/Fleet Supervisor Bramwell
The evidence is also insufficient to establish that Field/Fleet Supervisor Aldrick
Bramwell assigns within the meaning of Section 2(11). Although Lewis initially testified that
Bramwell "will choose his eight or so individuals" to work on a given deployment operation,
Lewis later clarified that he, in fact, selects Bramwell's team, "based on who is scheduled to
work, [and] who [Bramwell] wants to work with him in the field." Thus, the evidence indicates
that it is Lewis, not Bramwell, who has the authority to assign individuals to deployment jobs.
Accordingly, the Employer has failed to establish that Bramwell is a supervisor within the
meaning of the Act based on his alleged authority to assign.
Station Technicians Coskun and Bianchi
Finally, the Employer has failed to establish that Station Technician Supervisors Murat
Coskun and Angel Bianchi are supervisors because they schedule station technicians and assign
them to repair projects. The testimony of Operations Manager Justin indicates that Coskun and
Bianchi do not have independent discretion to adjust the schedule of technicians or to grant
technicians extra hours. Furthermore, although the supervisors solicit individuals to volunteer
for extra hours when the department is short-staffed, there is no evidence suggesting that they
have the authority to compel someone to come in to work. Additionally, although the Employer
endeavored to argue that Coskun and Bianchi assign individuals to certain types of work, the
evidence indicates that Coskun and Bianchi, working closely with Justin, exercise little or no
discretion and merely engage in ad hoc instruction on those occasions where there is a "large
number" of one type of repair that must be completed.
25
The Employer has thus failed to establish that Bike Mechanic Supervisors Malcolmson,
Facey, Gaerre, Galarza, and Rivera, Dispatch Supervisor Gittens, and Station Technician
Supervisors Coskun and Bianchi exercise supervisory authority in assigning employees.
3. Responsibly Direct
The Board defines "responsibly to direct" as: "If a person on the shop floor has men
under him, and if that person decides that job shall be undertaken next or who shall do it, that
person is a supervisor, provided that the direction is both 'responsible'... and carried out with
independent judgment." Golden Crest Healthcare, 348 NLRB at 730, citing Oakwood
Healthcare, 348 NLRB at 691. The Board has held that, for the direction to be "responsible,"
the person directing the performance must be held accountable for the performance. Golden
Crest Healthcare, 348 NLRB at 730. Regarding this accountability element, the Board has
explained:
[T]o establish accountability for purposes of responsible direction, it must
be shown that the employer delegated to the putative supervisor the
authority to direct the work and the authority to take corrective action, if
necessary. It also must be shown that there is a prospect of adverse
consequences for the putative supervisor if he/she does not take these
steps.
Id., citing Oakwood Healthcare, 348 NLRB at 692. Even if a putative supervisor is found to
direct the performance of others, the employer will not be able to establish supervisory status
absent evidence that "the putative supervisor's rating for direction of subordinates may have,
either by itself or in combination with other performance factors, an effect on that person's terms
and conditions of employment." Id. at 731.
The Employer has failed to establish that any of the disputed supervisors responsibly
direct employees within the meaning of the Act. Even assuming that the putative supervisors
direct employees, the Employer has failed to present any specific evidence indicating that the
putative supervisors are held accountable for their direction. As in Golden Crest Healthcare, the
Employer has failed to demonstrate that any supervisor "has experience any material
consequences to her terms and conditions of employment, either positive or negative, as a result
of her performance in directing," and has not established that there is even "a prospect" of such
material consequences. Id. (italics in original). In this regard, I note that conclusory testimony,
including that of stipulated supervisor Alex Marks, who stated, "I think formally I am held
accountable" for the performance of the dispatchers, is insufficient to establish responsible
direction under the Act. Accordingly, as the record does not contain any probative evidence
concerning potential or actual consequences for supervisors as a result of any direction they may
engage in, I find that the Employer has failed to establish that any of the disputed supervisors
responsibly direct within the meaning of the Act.
26
4. Discipline
The Employer may also establish supervisory status by showing that disputed supervisors
have the authority to discipline employees. The Board has held, however, that the "authority to
issue verbal reprimands is, without more, too minor a disciplinary function to constitute
supervisory authority." The Republican Company, 361 NLRB No. 15, slip opinion at 8 (Aug. 7,
2014). Furthermore, "the mere factual reporting of oral reprimands and the issuance of written
warnings that do not alone affect job status or tenure do not constitute supervisory authority."
Passavant Health Center, 284 NLRB 887, 889 (1987); see DirecTV, 357 NLRB No. 149, slip
opinion at 4 (employer failed to establish authority to discipline where it "did not introduce
evidence establishing the existence of a progressive disciplinary system or otherwise explain
how the verbal or written warnings.., in the record were linked to future disciplinary action.").
The Board has also found that the authority to send an employee home for arriving late for work
is insufficient to establish supervisory status. See Alternate Concepts, Inc., 358 NLRB No. 38
(Apr. 27, 2012) ("An 'on time and fit for duty' assessment is a routine matter: the individual is
either on time or not.").
Although the evidence indicates that supervisors can verbally counsel employees, the
record is silent regarding the effect of such verbal counseling, if any, on the terms and conditions
of employment of the counseled employees. The record is also silent regarding any specific
instances of such verbal counseling. Absent some evidence regarding the ways in which verbal
counseling affects the terms and conditions of employment, I do not find that the ability to
participate in such counseling demonstrates supervisory authority.
The evidence is insufficient to establish that any of the purported supervisors have the
ability to issue written warnings. In this regard, I note that both stipulated supervisor and
Employer witness Marks and disputed supervisor Malcolmson denied having any authority to
issue written disciplines, and that the Employer failed to point to a single instance in which a
supervisor issued a written warning. Furthermore, the testimony of Marks and Malcolmson was
corroborated by Director of Operations Pellegrino, who stated, "[i]f a disciplinary issue bubbles
up to the level of a written warning or a performance improvement plan, often I'll be involved at
that point."17
Although the supervisors may have the ability to send employees home for tardiness, I
find, based on well-settled Board precedent, that this power is routine and does not establish
supervisory status. I also find that the Employer failed to establish that the bike mechanic
supervisors have the independent authority to send employees home for "any kind of
misconduct, or in case there needs to be an investigation done for a variety of matters." I note
17 I note that disputed supervisor Gittens' recommendation to terminate an individual for stealing time- with an
intermediate investigation by Operations Manager Lewis and the involvement of Human Resources- demonstrates
the involvement of superiors in disciplinary action greater than verbal counselings.
27
that the only evidentiary support for this additional authority is hearsay testimony from Lead
Supervisor Mukhodovic, who clarified his statement by stating that this authority had never been
exercised and that, furthermore, only three of the five purported supervisors in his department
were even informed that they had this authority.
Accordingly, I find that the Employer failed to establish that the disputed supervisors
discipline employees within the meaning of Section 2(11) of the Act.
5. Secondary Indicia
As the Board noted in Golden Crest Healthcare, lilt is well established where, as here,
putative supervisors are not shown to possess any of the primary indicia of supervisory status
enumerated in Sec. 2(11), secondary indicia are insufficient to establish supervisory status."
Golden Crest Healthcare, 348 NLRB at 731, n. 10. In the instant case, the Employer has pointed
to certain secondary indicia of supervisory status, including differences in compensation,
attendance at meetings designated as management-only, authority to approve paid time off,
participation in employee evaluations, and, for the bike mechanic supervisors, access to
inventory. Although the record may in fact indicate that disputed supervisors have secondary
indicia of supervisory status, these secondary indicia, on their own, are insufficient to establish
that the individuals are statutory supervisors. Id. Having found thate the Employer has
established that only two individuals, Bike Checker Supervisor Kelly McGowan and Dispatch
Supervisor/Fleet Coordinator Jacob Boersma, have primary indicia of supervisory status, I find
that any evidence regarding secondary indicia of supervisory status concerning the remaining
supervisors insufficient to establish their supervisory authority within the meaning of Section
2(11) of the Act. Accordingly, I find that all purported supervisors, with the exception of
McGowan and Boersma, are employees under the Act and are thus properly included in the
petitioned-for unit.
B. SEASONAL EMPLOYEES
The party seeking to exclude employees from voting in a representation election bears the
burden of establishing that those employees are inappropriately included in the petitioned-for
unit. See Sweetener Supply Corp., 349 NLRB 1122 (2007) ("the burden of proof rests on the
party seeking to exclude a challenged individual from voting"). The Board will include seasonal
employees in a unit of permanent full- and part-time employees where "seasonal employees...
share sufficient interests in employment conditions with the other employees to warrant their
inclusion in the unit." Kelly Bros. Nurseries, Inc., 140 NLRB 82, 85-86 (1962), cited in Winkie
Mfg. Co. Inc., 348 F.3d 254 (7th Cir. 2003). As the Board noted in L&B Cooling, Inc., the
"resolution of this issue turns upon whether those [seasonal] employees had a reasonable
expectation of reemployment" with the Employer in the future. 267 NLRB 1, 2 (1983).
28
Seasonal employees with a reasonable expectation of future employment with the Employer will
be included in the unit. See Maine Apple Growers, Inc., 254 NLRB 501 (1981).
The record establishes that the petitioned-for seasonal employees share a community of
interest with the Employer's full-time and part-time permanent employees. Furthermore, the
record establishes that the seasonal employees have a reasonable expectation of future
reemployment with the Employer. Accordingly, the seasonal employees of the Employer are
properly included in the petitioned-for unit.
1. Community of Interest:
The Board will include seasonal employees in a unit of permanent full- and part-time
employees where "seasonal employees.., share sufficient interests in employment conditions
with the other employees to warrant their inclusion in the unit." Kelly Bros. Nurseries, Inc., 140
NLRB at 85-86. In determining whether seasonal and permanent employees share a sufficient
community of interest, the Board will consider such factors as: wages and compensation;
benefits; supervision; qualifications, training, and skills; difference in job functions; degree of
contact with other employees; and the degree of integration with the work functions of other
employees or interchange between them. See Kalamazoo Paper Box Corp., 136 NLRB 134, 137
(1962). The Board will, however, exclude employees who, because of the casual or temporary
nature of their employment, do not share a community of interest with permanent employees.
See Owens-Corning Fiberglass Corp., 140 NLRB 1323 (1963) (employees excluded as
temporary where they were hired from an employment service for "irregular intervals" ranging
from less than one day to four weeks to complete discrete production tasks for the employer);
E. F. Drew & Co., 133 NLRB 155 (1961) (employees excluded as temporary where they hired
from employment agency for one production job estimated to last ten-to-twelve weeks); Indiana
Bottled Glass Co., 128 NLRB 1441, fn. 4 (1960) (employees excluded as temporary where they
hired for busy season of November through January or February, for periods of one or two weeks
at a time, where record contained no evidence of recall); Sealite, Inc., 125 NLRB 619 (1959)
(construction employees excluded as temporary where they were hired for single jobs only); see
also See's Candy Shops, Inc., 202 NLRB 538 (1973) (salespeople hired only for busy holiday
seasons excluded as casual employees if they worked less than 350 hours in the year preceding
the election); Georgia Highway Express, 150 NLRB 1649 fn. 4. (1965) (day laborers hired
during peak periods excluded as casual employees).
The record establishes that the petitioned-for seasonal employees share a community of
interest with the Employer's permanent full-time and part-time employees. The evidence
indicates that there are few, if any, differences between the relevant terms and conditions of
employment of seasonal and permanent employees. The record demonstrates that seasonal and
permanent employees earn the same wages and work, side by side, in the same work locations,
29
on the same shifts, under the same supervisors. Seasonal and permanent employees also receive
the same training and have the same skills, with the exceptions of seasonal Call Center Agents,
who do not receive training in providing customer refunds, and seasonal Assistant Station Techs,
who have less computer experience than seasonal and permanent Station Techs. Furthermore,
seasonal and permanent employees are covered by the same employee handbook, have access to
the same facilities, and have the same introductory, or probationary period.
I have considered the Employer's position that seasonal employees do not share a
community of interest with its permanent employees, because they are casual or temporary hires.
However, the cases cited by the Employer in support of its position that its seasonal hires are
temporary or casual employees, and therefore improperly included in the unit, are distinguishable
on their facts. Additionally, as discussed more fully below, the Employer's reliance on the
temporal language contained in its job postings and in the Employment Confirmation forms
signed by seasonal hires is insufficient to disqualify seasonal employees as temporary or casual
employees. See, e.g. Winkie Mfg. Co. Inc. v. NLRB, 348 F.3d 254 (7th Cir. 2003) (seasonal
employees hired for set employment period of December-February through May properly
included in unit). Accordingly, I find that the seasonal employees hired by the Employer are not
temporary or casual employees who must be excluded from the petitioned-for unit.
Based on the information contained in the record, I conclude that the Employer has failed
to demonstrate that the seasonal employees do not share a community of interest with the
permanent employees of the Employer. J will next consider whether the seasonal employees
have a reasonable expectation of future reemployment with the Employer.
2. The Evidence Indicates that the Seasonal Employees have a Reasonable
Expectation of Future Reemployment
"The principle test as to whether seasonal employees are eligible to vote is whether they
have a reasonable expectation of reemployment in the foreseeable future." Flat Rate Movers,
Ltd., 357 NLRB No. 112, 20 (2011), citing L&B Cooling, Inc., 267 NLRB 1(1983). In assessing
the expectation of future employment for seasonal employees for purposes of voting eligibility
and unit placement, the Board considers factors such as: "the size of the labor force from which
the seasonal employees are recruited, the stability of the employer's labor requirements and the
extent to which the employer is dependent upon seasonal labor, the actual season-to-season
reemployment, and the employer's preference or recall policy regarding reemployment of
seasonal employees." L&B Cooling, 267 NLRB at 2. The Board's analysis of these factors is
flexible and focuses on the totality of an employer's actual hiring practices, with a positive
finding for each factor not required to establish a reasonable expectation of future reemployment.
Winkie Mfg. Co., Inc. v. NLRB, 358 F.3d at 259; see Maine Apple Growers, 254 NLRB at 503.
30
The record demonstrates that the Employer's seasonal employees have a reasonable
expectation of future reemployment. Accordingly, I find that the Employer's seasonal
employees are properly included in the proposed unit.
a. The Size of Labor Force from which Seasonal Employees are Drawn
Weighs in Favor of a Reasonable Expectation of Future Reemployment
In determining whether seasonal employees have a reasonable expectation of future
reemployment, the Board will analyze the size, stability, and geographic scope of the labor pool
from which those employees are drawn. A labor force drawn "from a static and definable pool"
of individuals in a given geographic area weighs in favor of a reasonable expectation of future
reemployment. Winkie Mfg. Co., Inc. v. NLRB, 358 F.3d at 258. However, a seasonal labor
force made up of an "indefinable" number of migratory workers, as commonly found in
industries with ties to agriculture, will indicate that seasonal employees do not have a reasonable
expectation of future reemployment. L&B Cooling, 267 NLRB at 2. Even a labor pool
numbering several hundred thousand individuals can weigh in favor of a finding of a reasonable
expectation of future employment. See Winkie Mfg. Co., Inc. v. NLRB, 358 F.3d at 256; 258
(labor pool estimated at 385,500 persons, drawn from the Spanish-speaking community of
greater Chicago); Baumer Foods, Inc., 190 NLRB 690 (1971) (employer had annual seasonal
workforce of "mostly women from the New Orleans area").
The record is silent concerning the size of the labor pool from which the seasonal
employees are drawn. However, Human Resources Manager Pean testified that the Employer's
seasonal workforce consists of "one person in Jersey, but everyone is from the five boroughs."
Pean's testimony further indicates that the Employer targeted its hiring in New York City, as
Pean testified that the Employer sought station technicians from New York City technical
colleges like Polytech, City Tech, and NYIT, and ambassadors from unnamed local schools.
Additionally, the sample job postings entered into evidence by the Employer contain references
to Brooklyn, although the record is unclear as to whether the Employer deliberately sought to
recruit Brooklyn residents for the open positions.
The Employer's job postings and related testimony further demonstrate that the Employer
sought employees with specialized skills for at least some positions. The job description for the
Station Technician position, for instance, states that applicants must have a minimum of 1 year
of experience in the repair of electronic equipment and/or a degree from an accredited electronic
school or college. Similarly, Operations Manager Lewis stated that drivers must have a
commercial driver's license in order to be hired. In so seeking individuals with specialized
skills, the Employer further reduced the size of the labor pool.
31
Because the evidence indicates that the Employer draws its seasonal labor force from
residents of the New York City area, and seeks individuals with specialized skills and advertises
for vacant positions accordingly, I find that this factor weighs in favor of a reasonable
expectation of future reemployment.
b. The Stability of the Employer's Labor Requirements and Extent to which
it is Dependent upon Seasonal Labor Weigh in Favor of a Reasonable
Expectation of Future Reemployment
The Board will next analyze the stability of the Employer's labor requirements and the
degree to which it is reliant on seasonal labor to conduct its business operations. A "regular
need" for a relatively stable number of seasonal employees will weigh in favor of a reasonable
expectation of future employment. Winkie Mfg. Co., Inc. v. NLRB, 358 F.3d at 258; see Kelly
Bros. Nurseries, Inc., 140 NLRB 82, 85 (1962) ("Under all the circumstances, and particularly
since the regularity of their employment indicates a relatively stabilized demand for, and
dependence on, such employees by the Employer, inclusion in the unit [is warranted]"). If the
Employer is a new entity, the absence of evidence concerning its season-to-season use of
seasonal employees may weigh against a finding of a reasonable expectation of reemployment.
See L&B Cooling, Inc., 267 NLRB at 2-3. In determining dependence upon seasonal labor, the
Board will not defer to an employer's job classification titles where the evidence demonstrates
that the disputed employees are seasonal hires. See, e.g., California Spray-Chem. Corp.
(Elizabeth, NJ.), 86 NLRB 453, 454 (1949) (finding that "the employees classified as 'casual'
are seasonal employees of the type which the Board customarily includes in the same unit with
regular production and maintenance employees").
The record indicates that the size of the Employer's labor force has remained stable
between 2013 and 2014. The evidence establishes that during the 2013 and 2014 peak seasons-
identified in testimony as the warm-weather months of approximately April through October- the
Employer employed approximately 250 workers. The evidence further demonstrates that, after
laying off approximately 100 temporary employees in October and November 2013, the
Employer returned to its peak season employment levels by hiring approximately 96 seasonal
employees in 2014. Thus, the record demonstrates that the size of the Employer's workforce has
remained stable over the first two years Of its operations, and that its seasonal workforce has
remained a consistent percentage of the Employer's total labor force.
The record also demonstrates that the Employer is dependent upon seasonal labor. While
the Employer appears to contend that its classification of employees as temporary in 2013 should
be accorded great weight, the evidence establishes that the Employer has relied upon
approximately 100 seasonal employees during the first two years of its operations. Further, the
Employer's employee handbook and employment offer confirmation letters, both of which
32
contain references to seasonal employment, demonstrate the institutionalization of the
classification in the operations of both the Employer and in the Employer's parent company, Alta
Bike Share. Although the record does not contain evidence regarding the employment practices
of other bike-share companies related to Alta, the presence of the seasonal classification in the
handbook indicates that seasonal employment is an industry-wide norm.
The testimony of Director of Operations Pellegrino highlighted the Employer's
dependence upon seasonal labor in coming years. Pellegrino testified, "to some extent there is
likely to be seasonal hiring next year," and further added that there was an "expectation" that
seasonal employees would be hired "[i]n some capacity" next year. Although Human Resources
Manager Pean highlighted some of the factors the Employer may take into account in
determining staffing levels for 2015, including weather and technological improvements, her
testimony did not establish that the Employer would not rely on seasonal labor in 2015.
Similarly, the speculative testimony of Technical Service Operations Manager Justin and Bike
Mechanic Lead Supervisor Mukhodinov, concerning hypothetical ways in which their respective
departments could reduce their dependence on seasonal labor, did not establish that the Employer
would not be relying on seasonal workers in the future.
Based on the foregoing, I conclude that the stability of the Employer's labor requirements
and its reliance on seasonal labor weigh in favor of a reasonable expectation of reemployment.
c. The Actual Season-to-Season Reemployment Weighs in Favor of a
Reasonable Expectation of Future Reemployment
The Board will also analyze the actual levels of season-to-season reemployment to
determine if seasonal employees have a reasonable expectation of future reemployment. If a
"substantial portion" of seasonal employees are rehired, the Board may find that the employees
have such a reasonable expectation. Kelly Bros. Nurseries, Inc., 140 NLRB at 85. The Board
does not require the Employer to hire a certain percentage of employees season-to-season in
order to make such a finding. See Winkie Mfg. Co., Inc. v. NLRB, 358 F.3d at 258 (comparing
cases in which the Board has found a reasonable expectation of reemployment despite different
season-to-season return rates of 27 and 29 percent). If the Employer is a new entity with no past
experience of seasonal employment, the absence of evidence concerning actual season-to-season
reemployment may weigh against a finding that employees have a reasonable expectation of
return. See L&B Cooling, Inc., 267 NLRB at 3.
The record is silent regarding the total number of employees who, after being laid off in
October and November 2013, sought, and were accepted for, reemployment in 2014. Within the
Ambassador classification, however, the record establishes that nearly a third of the 2014 hires,
up to five employees, in a classification numbering sixteen individuals, worked for the Employer
33
during its 2013 peak season. As this classification is the only classification for which any such
evidence was adduced, I must base my findings on the limited evidence available. As noted
above, I have rejected the Employer's reliance on its classification of 2013 employees as
temporary, and conclude that the employees laid off at the end of 2013 should be viewed as
seasonal workers. Accordingly, because the evidence demonstrates that the Employer has a
season-to-season return rate of over thirty percent in the one classification for which any such
evidence was adduced, I find that seasonal employees have a reasonable expectation of
reemployment.
The facts of L&B Cooling, Inc., cited by the Employer in its brief, are distinguishable
from those of the instant case. In L&B Cooling, Inc., the employer sought to avoid its bargaining
obligation by arguing that the unit was improperly constituted. 267 NLRB at 1. The employer
argued that the unit, which was made up of approximately fourteen seasonal employees, should
have included approximately thirteen "extra seasonal employees" who were hired to work for
short periods in 1980, the year before the disputed election, for the first time. Id. The Board,
however, concluded that because the Employer had never before hired extra seasonal employees,
it could not find that the extra seasonal employees had a future expectation of reemployment at
the time of the election. Although the employer again hired extra seasonal employees after the
election, the Board wrote, "since the focus of our analysis is upon whether the 1980 extra
seasonal employees should have been included in the unit at the time of the election, evidence
pertaining to employment subsequent to the election is not relevant, and we do not rely upon it."
Id. at 3. Accordingly, because the evidence indicated that, at the time of the election, the
Employer hired extra seasonal employees for a single season, the Board concluded that "there is
no pattern of extra seasonal employment from which we could extrapolate Respondent's labor
requirements with respect to extra seasonal employees." Notably, the employer did not argue
that its regular seasonal employees were not eligible for representation; at the time of the
election, the employer had been in existence for nearly three years, and the record evidence
indicated that it had hired regular seasonal employees for at least the previous two. Id. 2-3.
Although the Employer argues that it, like the Employer in L&B Cooling, Inc., has no
pattern of season-to-season reemployment, the evidence adduced during the investigation
indicates that it does, in fact, have such a pattern. The evidence shows that, over the first two
years of its existence, it has relied upon a consistent complement of seasonal employees
numbering close to one hundred individuals, or nearly forty percent of its total workforce, during
its peak operational season. Furthermore, the evidence demonstrates that, within the
Ambassador classification, the season-to-season return rate may be higher than thirty percent.
Consequently, I conclude that this factor weighs in favor of a finding that seasonal employees
have a reasonable expectation of future reemployment.
34
d. The Absence of a Preference or Recall Policy Regarding Reemployment
of Seasonal Employees Does Not Weigh Against a Reasonable
Expectation of Future Reemployment
Finally, the Board will determine whether the Employer has a preference or recall policy
regarding seasonal employees, with a positive finding weighing in favor of a finding of a
reasonable expectation of future reemployment. The absence of a formal recall policy, a practice
of notifying former employees of new seasonal openings, and of a hiring preference given to
former seasonal employees are factors indicating that seasonal employees do not have a
reasonable expectation of future reemployment. See Winkie Mfg. Co., Inc. v. NLRB, 358 NLRB
at 258. Similarly, if the Employer "simply hires whoever is available" and does not
"encourage[]... seasonal employees to reapply for employment," the Board may find that
seasonal employees have no reasonable expectation of reemployment. L&B Cooling, 267 NLRB
at 3. However, the Board has stated that "if other factors are favorable, the record need establish
only that the seasonal employees are permitted to reapply the next season and that some of them
are in fact rehired" in order to establish a reasonable expectation of future reemployment. Maine
Apple Growers, 254 NLRB at 503, citing Kelly Bros. Nurseries, Inc., 140 NLRB at 85
("[a]lthough the Employer has no formal policy concerning recall, a substantial portion of the
employees do come back to work"). The Board has also found that the absence of preferential
hiring lists for former seasonal employees does not, on its own, indicate the absence of a
reasonable expectation of reemployment by seasonal employees. See Baumer Foods, Inc., 190
NLRB at 690.
The record suggests that the Employer does not have a formal preference or recall policy
for seasonal employees. No evidence was presented during the hearing indicating that the
Employer maintains recall lists or reaches out to former temporary or seasonal employees
concerning position openings. The record, for example, is silent regarding the circumstances
surrounding the rehiring of several ambassadors in 2014. There is also no evidence in the record
suggesting that the Employer offers any preference to former employees, although I note that
Director of Operations Pellegrino stated that, in evaluating applicants, one of the factors the
Employer would take into account in deciding to hire the individual is whether the applicant was
a former employee and thus had already received training.
The record clearly demonstrates, however, that former employees can apply, and will be
considered, for vacant positions. Although the record does not discuss in any detail the
circumstances surrounding the rehiring of several ambassadors and call center agent Chanel
Jones, with regard to station technician Bolarinwa, Human Resources Manager Pean testified
that he "on his own accord, applied for the position," and that the Employer became aware that
he was a former employee when he appeared for his interview. Upon learning that Bolarinwa
35
was a former employee, the Employer reviewed his work history and decided, following a
positive interview, to rehire him.
Thus, although the evidence is insufficient to establish that the Employer has a formal
preference or recall policy for formal employees, the evidence clearly demonstrates that former
employees are permitted to reapply and will be considered for vacant positions. Because the
other factors weigh in favor of a reasonable expectation of future reemployment, I find that the
seasonal employees are properly included in the petitioned-for unit.
In conclusion, I am directing an election in the petitioned-for unit, at which time
employees will decide whether or not they desire representation by the Union.
5. I find that the following unit is appropriate within the meaning of Section 9(b) of the Act:
INCLUDED: All full-time and regular part-time employees, including seasonal
employees, at the Employer's Sunset Park facility, Farley Building facility, and Delancey
Street facility.
EXCLUDED: All other employees, including the employees in the Marketing, Finance,
and Human Resources departments, guards, and professional employees, and supervisors
as defined in the Act.
V. DIRECTION OF ELECTION
The National Labor Relations Board will conduct a secret ballot election among the
employees in the unit found appropriate above. The employees will vote whether or not they
wish to be represented for purposes of collective bargaining by Transport Workers Union Local
100, affiliated with Transport Workers Union of America, AFL-CIO. The date, time, and
manner of the election will be specified in the notice of election that the Board's Regional Office
will' issue subsequent to this Decision.
Voting Eligibility
Eligible to vote in the election are those in the unit who were employed during the payroll
period ending immediately before the date of this Decision, including employees who did not
work during that period because they were ill, on vacation, or temporarily laid off Employees
engaged in any economic strike, who have retained their status as strikers and who have not been
permanently replaced are also eligible to vote. In addition, in an economic strike which
commenced less than 12 months before the election date, employees engaged in such strikes,
who have retained their status as strikers but who have been permanently replaced, as well as
their replacements are eligible to vote. Unit employees in the military services of the United
States may vote if they appear in person at the polls.
36
Ineligible to vote are (1) employees who have quit or been discharged for cause since the
designated payroll period; (2) striking employees who have been discharged for cause since the
strike began and who have not been rehired or reinstated before the election date; and (3)
employees who are engaged in an economic strike that began more than 12 months before the
election date and who have been permanently replaced.
Employer to Submit List of Eligible Voters
To ensure that all eligible voters may have the opportunity to be informed of the issues in
the exercise of their statutory right to vote, all parties to the election should have access to a list
of voters and their addresses, which may be used to communicate with them. Excelsior
Underwear, Inc., 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Company, 394 U.S. 759
(1969).
Accordingly, it is hereby directed that within seven days of the date of this Decision, the
Employer must submit to the Regional Office an election eligibility list, containing the full
names and addresses of all the eligible voters. North Macon Health Care Facility, 315 NLRB
359, 361 (1994). This list must be of sufficiently large type to be clearly legible. To speed both
preliminary checking and the voting process, the names on the list should be alphabetized
(overall or by department, etc.). Upon receipt of the list, I will make it available to all parties to
the election. To be timely filed, the list must be received in the Regional Office, National Labor
Relations Board, Region 2, 26 Federal Plaza, Room 3614, New York, New York 10278, on or
before August 27, 2014. No extension of time to file this list will be granted except in
extraordinary circumstances, nor will the filing of a request for review affect the requirement to
file this list. Failure to comply with this requirement will be grounds for setting aside the
election whenever proper objections are filed. The list may be submitted by facsimile
transmission at (212). 264-2450. Since the list will be made available to all parties to the
election, please furnish a total of two copies, unless the list is submitted by facsimile, in which
case no copies need be submitted. If you have any questions, please contact the Regional Office.
Notice of Posting Obligations
According to Section 103.20 of the Board's Rules and Regulations, the Employer must
post the Notices to Election provided by the Board in areas conspicuous to potential voters for a
minimum of 3 working days prior to the date of the election. Failure to follow the posting
requirement may result in additional litigation if proper objections to the election are filed.
Section 103.20(c) requires an employer to notify the Board at least 5 full working days prior to
12:01 a.m. of the day of the election if it has not received copies of the election notice. Club
Demonstration Services, 317 NLRB 349 (1995). Failure to do so estops employers from filing
objections based on non-posting of the election notice.
RIGHT TO REQUEST REVIEW
Right to Request Review: Pursuant to the provisions of Section 102.67 of the National
Labor Relations Board's Rules and Regulations, Series 8, as amended, you may obtain review of
this action by filing a request with the Executive Secretary, National Labor Relations Board,
37
1099 14th Street, N.W., Washington, DC 20570-0001. This request for review must contain a
complete statement setting forth the facts and reasons on which it is based.
Procedures for Filing a Request for Review: pursuant to the Board's Rules and
Regulations, Sections 102.111 102.114, concerning the Service and Filing of Papers, the
request for review must be received by the Executive Secretary of the Board in Washington, DC
by close of business on September 3, 2014 at 5 p.m. Eastern Time, unless filed electronically.
Consistent with the Agency's E-Government initiative, parties are encouraged to file a
request for review electronically. If the request for review is filed electronically, it will be
considered timely if the transmission of the entire document through the Agency's website is
accomplished by no later than 11:59 p.m. Eastern Time on the due date. Please be advised
that Section 102.114 of the Board's Rules and Regulations precludes acceptance of a request for
review by facsimile transmission. Upon good cause shown, the Board may grant special
permission for a longer period within which to file.I8 A copy of the request for review must be
served on each of the other parties to the proceeding, as well as on the undersigned, in
accordance with the requirements of the Board's Rules and Regulations.
Filing a request for review electronically may be accomplished by using the E-filing
system on the Agency's website at www.nlrb.gov. Once the website is accessed, select File
Case Documents, enter the NLRB Case Number, and follow the detailed instructions. The
responsibility for the receipt of the request for review rests exclusively with the sender. A failure
to timely file the request for review will not be excused on the basis that the transmission could
not be accomplished because the Agency's website was off line or unavailable for some other
reason, absent a determination of technical failure of the site, with notice of such posted on the
website.
Elbert F. Tellem, Actir6 Regional Director
National Labor Relations Board, Region 2
26 Federal Plaza, Room 3614
Dated: August 20, 2014

New York, New York 10278

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A request for extension of time, which may also be filed electronically, should be submitted to the Executive
Secretary in Washington, and a copy of such request for extension of time should be submitted to the Regional
Director and to each of the other parties to this proceeding. A request for an extension of time must include a
statement that a copy has been served on the Regional Director and on each of the other parties to this proceeding in
the same manner or a faster manner as that utilized in filing the request with the Board.
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