Global Marine Development of California, Inc. v. N.L.R.B., 74--3280

• Decision Date: 05 December 1975
• Docket Number: No. 74--3280,74--3280
• Parties: 91 L.R.R.M. (BNA) 2084, 78 Lab.Cas. P 11,187 GLOBAL MARINE DEVELOPMENT OF CALIFORNIA, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 92

528 F.2d 92

91 L.R.R.M. (BNA) 2084, 78 Lab.Cas. P 11,187

GLOBAL MARINE DEVELOPMENT OF CALIFORNIA, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 74--3280.

United States Court of Appeals Ninth Circuit.

Dec. 5, 1975.

Rehearing and Rehearing En Banc

Denied Feb. 4, 1976.

Lee Smith (argued), Dallas, Tex., for petitioner.

William Bernstein (argued), of N.L.R.B., Washington, D.C., for respondent.

Richard H. Markowitz (argued), of Markowitz & Glanstein, New York City, for charging party.

OPINION

Before WALLACE and SNEED, Circuit Judges, and CARR, ^* District Judge.

WALLACE, Circuit Judge:

Global Marine Development of California, Inc. (Global), seeks review of an order of the National Labor Relations Board (Board). The Board cross-applies for enforcement of its order. We affirm and enforce.

Global owns and operates the Hughes Glomar Explorer, a unique vessel designed for deep-sea mining. The crew arrangement is also somewhat distinctive. The ship has two complete crews of 100 to 200 men that alternate operating the ship, one crew being on board while the other is on leave. Each of the crews included an engine department consisting of a chief engineer, a first assistant engineer, a second assistant engineer and three third assistant engineers. All six of these men were licensed officers. Also included in each engine department were three oilers, who were non-licensed seamen.

Each assistant engineer worked a twelve-hour shift each day. His first six hours were spent in the engine control room on watch, monitoring engine room operations. Coast Guard regulations require that a licensed engineer be on watch at all times. During this time the oiler assigned to him made rounds of the engine room, also monitoring various devices. The engineer and oiler spent the last six hours of their shift on maintenance, making various repairs and improvements. Thus, four teams of one engineer and one oiler were needed to man the ship; because each crew had only three oilers, the less experienced third assistant engineers were, at times, assigned to oiler shifts.

On its maiden voyage in 1973, the Explorer was manned by the 'A' crew from the shipyards in Chester, Pennsylvania, to Bermuda. There the 'B' crew replaced the 'A' crew and operated the ship around Cape Horn to Long Beach. Either during the time that the ship was in the shipyards or during the trip to Bermuda, all twelve of the licensed engineers signed authorization cards for the Marine Engineers Beneficial Association (Union). Thereafter, Global's anti-union activity included promises of added benefits and threats of termination. While the Explorer was still at sea with the 'B' crew, engineers from the 'A' crew were summoned to Global's offices in Los Angeles and terminated. The day the Explorer arrived in Long Beach, the 'B' engineers were also terminated.

Unfair labor practice charges were filed against Global by the Union, alleging that Global interfered with, coerced and eventually terminated the twelve men because of their union activities, in violation of sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3). After a full hearing, the administrative law judge found that Global had committed the alleged unfair practices and that a bargaining unit consisting of engineers and oilers was appropriate. His recommended order required Global to cease and desist from such practices, to offer reinstatement to ten of the discharged engineers and, upon request, to bargain with the Union. The Board adopted the administrative law judge's findings and order. 214 N.L.R.B. No. 40 (Oct. 22, 1974).

Global's contentions which merit our attention are: (1) that the Board erred in finding that the engineers were not 'supervisors' as that term is defined by section 2(11) of the Act, 29 U.S.C. § 152(11), and thus outside the protection of section 8; (2) that the Board erred in finding that the authorization cards were valid and not procured through supervisory solicitation; and (3) that a bargaining unit consisting of oilers and engineers is inappropriate.

I

Global's main line of defense is that the twelve licensed engineers were not 'employees' and that therefore Global had no duty to bargain with them. Section 2(2) of the Act excludes 'supervisors' from the definition of 'employees' and thus from the protections of section 8. Section 2(11) defines 'supervisor' as follows:

The term 'supervisor' means 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.

29 U.S.C. § 152(11) (emphasis added). The parties stipulated that the chief engineers were supervisors and the Board's order does not affect them. Applying the test outlined in section 2(11), the Board found that the assistant engineers were not supervisors. Global contends that this determination was error.

The Board's findings can be overturned only if they are not supported by substantial evidence from the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487--91, 71 S.Ct. 456, 95 L.Ed. 456 (1951)....