Brusco Tug & Barge Co. v. Nat'l Labor Relations Bd.

• Decision Date: 01 May 2001
• Docket Number: No. 00-1183,00-1183
• Citation: 247 F.3d 273
• Parties: (D.C. Cir. 2001) Brusco Tug & Barge Co., Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 273

247 F.3d 273 (D.C. Cir. 2001)

Brusco Tug & Barge Co., Petitioner v. National Labor Relations Board, Respondent

No. 00-1183

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 26, 2001

Decided May 1, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Thomas M. Triplett argued the cause for petitioner. With him on the brief was Karen O'Kasey.

Christopher W. Young, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Leonard R. Page, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret A. Gaines, Supervisory Attorney.

Before: Williams, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

Rejecting petitioner's argument that mates on its tugboats are supervisors within the meaning of the NLRA, the National Labor Relations Board found that petitioner, by interfering with its mates' right to organize, committed an unfair labor practice. Because the Board failed adequately to explain its decision, we deny enforcement and remand for further proceedings.

I

Section 8(a)(1) of the National Labor Relations Act prohibits employers from interfering with their employees' right to organize. 29 U.S.C. 158(a)(1) (referring to the rights guaranteed in id. 157). The Act's definition of protected "employee[s]" excludes "any individual employed as a supervisor." Id. 152(3). A "supervisor" is:

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. Id. 152(11).

Petitioner Brusco Tug & Barge Co. tows and transports cargo along the West Coast. Brusco tugs tow log, chip and sand barges, as well as target sleds for the United States Navy. Approximately twenty-five tugs operate out of Brusco's home port in Cathlamet, Washington, performing both inland and offshore jobs. Manned by a master (also called a captain) and one deckhand, inland tugs primarily perform day jobs on the Columbia River. Offshore tugs--the focus of this case--take thirty-day trips along the Pacific coast, ranging as far north as Vancouver and as far south as Mexico. Offshore crews include a master, a mate, an engineer and one (or sometimes two) deckhands.

While at sea, offshore crews typically work six-hour shifts assigned by the master. The master and a deckhand or engineer alternate shifts with the mate and the other crewmen. Some tasks require participation of the entire crew; for instance, all crewmen work together to tie a barge to the tugboat. While the master maneuvers the boat, the mate directs the crewmen on the deck, coordinating the passing of the lines. The mate also selects a crewman to board the barge and pass its towing bridle to crewmen on the tug.

In October 1999, while the International Organization of Masters, Mates, and Pilots was engaging in an organizing campaign at Brusco's home port, the company's owner, Bo Brusco, sent a letter to his masters and mates, stating that "masters and mates are management" and would be terminated if they engaged in any organizing activity. Claiming that the letter interfered with the masters' and mates' right to organize, the union filed an unfair labor practice charge.

Shortly thereafter, an NLRB hearing officer heard evidence in a different matter regarding Brusco--defining the collective bargaining unit for the purposes of the upcoming union election. Brusco Tug & Barge Co. v. Int'l Org. of Masters, Mates, & Pilots, No. 19-RC-13872 (Nov. 26, 1999). Over Brusco's objection, the officer ruled that mates should be included in the bargaining unit. Although recognizing that mates assign and direct other crewmen during tie-ups, he thought such actions required no independent judgment within the meaning of NLRA section 2(11) and were therefore not indicative of supervisory status. Id. at 6-7. He agreed with Brusco, however, that its masters were supervisors and therefore ineligible for inclusion in the bargaining unit. Id. at 6. A divided Board rejected Brusco's request for review of the hearing officer's determination.

A few months later, the Board addressed the union's stillpending charge that Bo Brusco's October 1999 letter amounted to an unfair labor practice. Not disputing that its letter interfered with the mates' ability to organize, Brusco renewed its argument that mates are statutory supervisors who lack the right to organize under the Act. Because the Board had already determined that Brusco's mates are employees within the meaning of the statute, it granted summary judgment against the company. Brusco Tug & Barge Co., 330 N.L.R.B. No. 169 (April 11, 2000), 2000 WL 420606, at *3.

Insisting that its mates are supervisors, Brusco petitions for review. The company argues that its mates perform a wide range of supervisory tasks, and that the Board impermissibly departed from precedent in deeming them employees. The Board cross-applies for enforcement.

II

"Because of its expertise, the Board necessarily has a large measure of informed discretion" in determining if a worker is a supervisor. Passaic Daily News v. NLRB, 736 F.2d 1543, 1550 (D.C. Cir. 1984) (internal citation omitted). We will overturn the Board's finding that Brusco's mates are statutory employees only if it is contrary to law, inadequately reasoned, see NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 576 (1994), or unsupported by substantial evidence, Passaic Daily News, 736 F.2d at 1550. In this circuit, moreover, the burden of proving supervisory status rests on the party that asserts it--here, Brusco. See Beverly Enters.--Mass., Inc. v. NLRB, 165 F.3d 960, 962 (D.C. Cir. 1999). Unless Brusco demonstrates otherwise, the Board may thus presume that the mates are employees rather than supervisors.

Citing Board decisions finding tugboat captains and mates to be supervisors, Brusco argues that mates, as a category, may not be considered employees. We disagree. Because the issue of supervisory status is heavily fact-dependent and job duties vary, per se rules designating certain classes of jobs as always or never supervisory are generally inappropriate. See Ky. River Comty. Care, Inc. v. NLRB, 193 F.3d 444, 453 (6th Cir. 1999), cert. granted, 121 S.Ct. 27 (2000). To meet its burden therefore, Brusco must do more than cite other cases finding mates to be supervisors; it must prove that its mates actually perform one or more of the supervisory tasks listed in NLRA section 2(11), and that, in doing so, they use "independent judgment."

Brusco next relies on its "Responsible Carrier Operation Plan," a voluntary plan drafted as part of a safety program sponsored by the American Waterways Association. According to Brusco, because the plan provides that "in [the master's] absence, his relief, the mate, is the master," Pet'r Br. at 7, and because the hearing officer found that Brusco's masters were supervisors (because they use independent judgment in recommending transfer and promotion, as well as directing and assigning crewmen), its mates are also supervisors. Responding, the Board disputes not only that the plan's provisions give mates all authority granted to masters, but also that the plan, which the company intended only as a "guideline," delegates any authority at all. Hearing Tr. at 163, Brusco Tug & Barge Co., No. 19-RC-13872. In any event, as the Board points out in its brief, paper authority alone does not make a worker a supervisor. See Beverly Enters., 165 F.3d at 962 (citing Food Store Employees Union, Local 347 v. NLRB, 422 F.2d 685, 690 (D.C. Cir. 1969)). Brusco must provide specific evidence that its mates actually exercise supervisory authority.

Before the hearing officer, Brusco proved that its mates perform two of the supervisory tasks listed in the statute: "assign[ing]" and "direct[ing]" crewmen during the tie-up. Brusco Tug & Barge Co., No. 19-RC-13872, at 6. Because the hearing officer considered these tasks "routine" and not to "require[ ] the use of independent judgment," 29 U.S.C. 152(11), however, he rejected Brusco's argument that the mates were statutory supervisors. Brusco Tug & Barge Co., No. 19-RC-13872, at 6-7.

Direction

The "direction of the 'work force' (two or possibly three [crewmen])," the hearing officer concluded, "hardly indicates the need for independent judgment beyond that of an experienced hand." Id. In its brief before us, the Board elaborates: "[t]hose orders simply embody the mates' greater skills and experience, not managerial prerogatives." Resp't Br. at 17.

Brusco argues that the Board's decision conflicts with two cases in which the Board found tugboat workers to be supervisors based on their direction of crewmen: Local 28, International Organization of Masters, Mates & Pilots, 136 N.L.R.B. 1175 (1962), enforced, 321 F.2d 376 (D.C. Cir. 1963) and Bernhardt Bros. Tugboat Serv., Inc., 142 N.L.R.B. 851, enforced, 328 F.2d 757 (7th Cir. 1963). Neither the hearing officer nor the Board addressed these two cases. While the Board need not address every precedent brought to its attention, it must provide an explanation where its decisions appear to be "on point." See Gilbert v. NLRB, 56 F.3d 1438, 1448 (D.C. Cir. 1995); see also id. at 1445-48; New England Grain & Feed Council v. ICC, 598 F.2d 281, 285 (D.C. Cir. 1979) ("While we are somewhat disturbed by the Commission's failure to explain why [an asserted precedent] is inapplicable here, that case is sufficiently distinguishable to assure that the Commission's oversight does not present a danger that...