Cooper/T. Smith, Inc. v. N.L.R.B., 97-7024

• Decision Date: 14 June 1999
• Docket Number: No. 97-7024,97-7024
• Citation: 177 F.3d 1259
• Parties: 161 L.R.R.M. (BNA) 2526 COOPER/T. SMITH, INC., Crescent Towing Co., Inc., et al., Petitioners-Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1259

177 F.3d 1259

161 L.R.R.M. (BNA) 2526

COOPER/T. SMITH, INC., Crescent Towing Co., Inc., et al., Petitioners-Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 97-7024.

United States Court of Appeals, Eleventh Circuit.

June 14, 1999.

Benjamin H. Banta, Sidney F. Lewis, William Banta, The Kullman Firm, New Orleans, LA, for Petitioners-Cross-Respondents.

Robert S. Giolito, James D. Fagan, Jr., Stanford, Fagan & Giolito, Atlanta, GA, for Intervenor.

Aileen A. Armstrong, Margaret A. Gaines, Howard E. Perlstein, Susan M. Pavsner, Julie B. Broido, NLRB, Washington, DC, for NLRB.

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

Before BIRCH and BARKETT, Circuit Judges, and HANCOCK ^*, Senior District Judge.

BIRCH, Circuit Judge:

Cooper/T. Smith, Inc. ("Cooper" or "Employer"), and its wholly owned subsidiaries, Crescent Towing Co., Inc. ("Crescent Towing"), and Savannah Docking Pilots Association, Inc. ("Savannah Docking Pilots"), petition for review of an order by the National Labor Relations Board ("NLRB" or "Board") finding that they engaged in unfair labor practices in violation of sections 8(a)(1) and (5) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. §§ 158(a)(1), (5). The Employer acknowledges it refused to bargain with the union certified by the NLRB to serve as the representative for the docking pilots employed by Savannah Docking Pilots. Cooper argues, however, that the NLRB should not have certified the union because the docking pilots are "supervisors" within the meaning of the NLRA. A "supervisor" is not an "employee" for the purposes of the NLRA, and therefore, is not eligible for membership in an NLRB-certified bargaining unit. Because we conclude that the NLRB properly determined that the docking pilots are not supervisors, we deny the Employer's petition and grant the Board's application for enforcement of its order.

I. BACKGROUND

Cooper, along with its subsidiaries, is a stevedoring company in the business of moving ships within the Port of Savannah. Crescent Towing employs approximately twenty-six individuals and owns and operates three tugboats. Savannah Docking Pilots has only five employees--three full-time docking pilots and two relief docking pilots.

When a large ocean-going vessel enters the port, it requires the assistance of tugboats to push, pull, and turn the ship during docking and undocking maneuvers. The docking pilot guides the tugboats and the vessel through this process. On a given day, the docking pilot receives from Cooper's dispatcher a list of ships scheduled to enter and leave the harbor. The schedule identifies the dimensions and location of each ship. The docking pilot considers this information, as well as other factors such as the wind, current, and tide, to determine the number of tugboats needed to perform the docking process for each vessel.

After a ship's pilot directs the ship into the port area from the sea, one of the tugboats delivers the docking pilot to the ship. Once aboard, the docking pilot takes control from the ship's captain and orchestrates the placement of the tugboats to guide the ship to or away from the dock. The docking pilot communicates his instructions to the captain of the tugboat by radio. After the docking pilot has completed the maneuver, he and the tugs move onto the next assignment on the schedule.

On April 8, 1997, the International Organization of Masters, Mates & Pilots, ILA, AFL-CIO ("MM&P" or "the Union") filed a petition with the NLRB seeking to be certified as the representative of a unit including all docking pilots of the Savannah Docking Pilots. At a hearing before the NLRB's Regional Director, Cooper argued that the docking pilots were "supervisors" within § 2(11) of the NLRA, and therefore ineligible for participation in a bargaining unit. After reviewing the responsibilities and duties of the docking pilots employed by Cooper, the Regional Director found that while the pilots' job required skill in docking or undocking a ship, the tasks were routine and did not require the exercise of independent judgment. R3-502. The Regional Director further found that the pilots did not discipline or adjust employee grievances, although they did give their opinions on employees being considered for positions as relief or full-time docking pilots. Id. In concluding, the Regional Director found that the docking pilots employed by Cooper were not supervisors within section 2(11) of the NLRA and issued a Decision and Direction of Election. The Employer's request for review of this decision was denied by the NLRB. An election was held on July 9, 1997, and the docking pilots voted five to zero in favor of the Union. After MM&P was certified by the NLRB as the docking pilots' bargaining representative, the Union attempted to bargain with Cooper. Cooper refused to bargain in order to test the Union's certification. ¹ The Union filed an unfair labor practice charge against Cooper for refusing to bargain in violation of 29 U.S.C. § 158(a)(5). The Board granted summary judgment in favor of the Union. Cooper then filed a petition for review of the Board's determination. We turn now to that petition.

II. STANDARD OF REVIEW

"When reviewing an order of the Board, we are bound by the Board's factual findings if they are supported by substantial evidence on the record as a whole." International Bhd. of Boilermakers v. NLRB, 127 F.3d 1300, 1306 (11th Cir.1997) (internal quotations and citations omitted). To review a factual determination of the NLRB, we analyze the totality of the record and determine whether the conclusion is supported by substantial evidence. See NLRB v. Triple A Fire Protection, Inc., 136 F.3d 727, 734 (11th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 795, 142 L.Ed.2d 657 (1999). So long as the Board has made a plausible inference from the record evidence, we will not overturn its determinations, even if we would have made different findings upon a de novo review of the evidence. See International Bhd. of Boilermakers, 127 F.3d at 1306. We are not, however, "obliged to stand aside and rubber-stamp [our] affirmance of administrative decisions that [we] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Id. (internal quotations and citations omitted). The Board, therefore, "cannot rest its conclusions on a scintilla of evidence or even on any amount of evidence that is less than substantial. Instead, the Board's order can be enforced only if we find in the record such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Northport Health Servs., Inc. v. NLRB, 961 F.2d 1547, 1550 (11th Cir.1992) (internal quotations and citations omitted).

Despite this law, Cooper urges us to undertake de novo review, arguing that the Board should not receive deference in its decisions that certain employees are "supervisors" as defined in § 2(11) of the NLRA. ² Cooper premises this theory on an assumption that the Board has demonstrated inconsistency in past supervisory cases. In light of this inconsistency, Cooper posits that we should employ a more stringent standard of review to the Board's determination than we have in our prior cases. ³

The difficulty with Cooper's argument is that it ignores the statutory basis for the standard of review which states that "the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall ... be conclusive." 29 U.S.C. § 160(f). Rather than make judicial adjustments to this statutory standard of review, we believe the wiser course is a robust application of the standard that has typified review of Board decisions. Stated succinctly, the Board must show that its determinations are supported by substantial evidence. If not, proper review by the court of appeals will reveal erroneous determinations by the Board. As we have noted, "[w]hen the Board misconstrues or fails to consider important evidence, its conclusions are less likely to rest upon substantial evidence." Northport Health Servs., 961 F.2d at 1550.

In proceedings before the NLRB, the burden of establishing the supervisory status of an employee is on the party asserting such a status. See NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307, 1313 (7th Cir.1998).

III. DEFINITION OF "SUPERVISOR" UNDER THE NLRA

Determining whether an employee is a "supervisor" is particularly important because under the statutory structure of the NLRA, "supervisors" are not "employees." As a result, the NLRA's protection of the right of certain employees to unionize, see 29 U.S.C. § 157, does not extend to those employees deemed to be supervisors under § 2(11), see 29 U.S.C. § 152(3) (the "term 'employee' ... shall not include ... any individual employed as a supervisor"). Elucidating the boundaries of the definition of a "supervisor" is an "aging but nevertheless persistently vexing problem" of interpretation under section 2(11) of the NLRA. NLRB v. Security Guard Serv., Inc., 384 F.2d 143, 145 (5th Cir.1967).

Section 2(11) of the NLRA defines a "supervisor" as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in conjunction with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

29 U.S.C. § 152(11). The statutory definition lists the functions of a supervisor in the disjunctive, so Cooper only needs to prove that docking pilots fulfill one of these functions in order to succeed in its claim that the pilots are supervisors. See NLRB v. Dadco Fashions, Inc., 632...