The Board, in a 2-1 decision, overruled 50 years of precedent establishing in virtually all cases the supervisory status of tugboat pilots and mates, when it found tugboat mates were not statutory supervisors. In a case that started with a representation petition filed in 1999, the Board in Brusco Tug and Barge, Inc., 359 NLRB No. 43 (Dec. 14, 2012) found that the employer failed to meet its burden of proving supervisory status based on the statutory criteria of “assignment” and “responsible direction.”
As to assignments, the Board found that the mates’ assignments to deckhands were merely “ad hoc” instructions and involved neither designating them to a place or time nor giving them significant overall duties. Further, the Board found the requisite independent judgment was absent, even regarding the mate’s instructions to deckhands during emergencies and when assigning overtime to engineers. The Board found that the employer:
- failed to provide any evidence in which a mate required an engineer to address mechanical issues during off-watch time;
- offered no examples of a mate assigning the deckhand to an off-watch shift;
- offered no evidence that a mate chose which deckhand to perform a specific task based on their skills and abilities; and
- offered no evidence suggesting that the mate posting a deckhand to keep watch on the bow “was a regular occurrence.”
As to the criterion of “responsible direction,” the Board found that the employer offered nothing other than conclusory assertions of the mates’ accountability for the deckhands work, and failed to delineate for what or how the mates were actually accountable. This lack of “accountability evidence” prevented the employer from establishing responsible direction.
Member Hayes dissented. He would find that the tugboat mates were statutory supervisors because the employer established that the mates assigned and responsibly directed crew members and had complete authority over the crew during their watch. Moreover, he found the mate’s supervisory status was “clear” because the mates were licensed officers entitled under federal law to exact obedience from crew members under them.
As to assignments, Member Hayes found the mates assigned the engineers overtime when they determined that a mechanical issue with the tugboat required the engineers’ prompt attention when the engineers were off shift. The mates exercised independent judgment, according to Member Hayes, when they determined whether the mechanical issue was urgent enough to rouse the engineer to fix it on the spot or whether it could wait until their regular shift. In these circumstances, Member Hayes found, the mates must evaluate the urgency of the situation and the potential consequences to the cargo and crew of delay and balance those considerations with the financial and regulatory consequences of requiring the engineers to work overtime. Further, Member Hayes found that the mates assessed various employee skills when they assigned deckhands significant overall duties, such as cooking, painting, and working on the barge and thus exercised independent judgment when doing so.
As to responsible direction, Member Hayes found that for 12 hours out of every 24 hours, the mate was responsible for the vessel, tow, and crew and had the same duties and obligations as the captain, including being in charge of the crew during emergencies and directing them during emergency drills and throughout docking procedures, making up the barge, and changing the tow length. In the course of directing deckhands through the docking process, Member Hayes found that the mate must weigh such exigencies as the weather, the size of the barge, the vessel’s approach to the dock, and the number of lines to be tied and where they will be tied.
In sum, the mates described in this case were, according to Member Hayes, virtually identical to those persons that the Board has consistently found to be supervisors, in large part because the mate’s control of the vessel on his watch and his direction of the crew. These tasks, according to Member Hayes, necessarily require independent judgment and such judgment was “complicated by variable changing factors, many of them unforeseeable and that such duties could not fairly be characterized as ‘routine’.” Finally, Member Hayes also found that the testimony conveying the mates’ accountability and the authority the mates possessed and exercised, as well as federal maritime law, established that the mates were accountable for the direction of the deckhands, particularly when the only individual the Board majority found “accountable” for the crew’s action was off-duty 12 hours each day, during the better part of which he was asleep, the mates were licensed officers of the vessel, and federal law required crew members to obey their orders.
As Member Hayes stated “nothing in Oakwood suggest[ed] that the Board contemplated that, it was sweepingly overruling 50 years of precedent establishing the supervisory status of tugboat pilots and mates whose duties and powers were identical to those of the mates here, and whose authority flow[ed] from Federal maritime law.”
Employers should recognize that the Obama Board will closely scrutinize supervisory status claims involving such personnel as “working foremen,” “leads,” and tugboat pilots and mates. Concerned employers should consider conducting supervisory audits, examining not only what authority the putative supervisors possess but, perhaps more importantly, how they exercise the authority and what objective evidence exists to support the conclusion that they possess and exercise such authority. Examples of the putative supervisors evaluating multiple variables when making assignments is especially significant, as is specific “accountability evidence.” Finally, employees must create a record sufficient to convince a court of appeals that the putative supervisors are statutory supervisors, even if the Board disagrees.