Mon River Towing, Inc. v. NLRB, 17735.

• Decision Date: 22 December 1969
• Docket Number: No. 17735.,17735.
• Citation: 421 F.2d 1
• Parties: MON RIVER TOWING, INC., Petitioner. v. NATIONAL LABOR RELATIONS BOARD, Respondent, National Maritime Union of America, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Third Circuit

421 F.2d 1 (1969)

MON RIVER TOWING, INC., Petitioner. v. NATIONAL LABOR RELATIONS BOARD, Respondent National Maritime Union of America, AFL-CIO, Intervenor.

No. 17735.

United States Court of Appeals Third Circuit.

Argued September 29, 1969.

Decided December 22, 1969.

Jack J. Rosenberg, Rosenberg & Lubow, Pittsburgh, Pa., for petitioner.

Roger Sabo, National Labor Relations Board, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., National Labor Relations Board, on the brief), for respondent.

Abraham E. Freedman, Stanley B. Gruber, Freedman, Borowsky & Lorry, Philadelphia, Pa., for intervenor.

Before STALEY, SEITZ and STAHL, Circuit Judges.

OPINION OF THE COURT

STAHL, Circuit Judge.

Petitioner, Mon River Towing, Inc. (hereinafter Mon River), asks that we set aside the order¹ of the National Labor Relations Board entered pursuant to its finding that petitioner had violated § 8(a) (1) and (2) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (2). These violations arose out of the negotiation of a collective bargaining agreement in late 1967 between petitioner and the certified representative of its employees, International Union of District 50, United Mine Workers of America, and its Local Union No. 14693 (hereinafter District 50). The Board has filed a cross-application for enforcement of the order.

Mon River operates a fleet of tugs engaged in towing coal and petroleum products. Its boats carry a crew of eight men, consisting of a captain, a pilot, normally four deckhands and one tankerman (engine man) and a cook. The boats are away from the home port in Belle Vernon, Pennsylvania, from two to ten days at a time.²

Mon River first recognized District 50 as the representative of its employees, and negotiated a three-year contract with the union, in December, 1964. Shortly thereafter the National Maritime Union (NMU)³ filed a representation petition with the Board, and a consent election was held among Mon River's employees for a unit excluding captains and pilots. The election resulted in District 50's becoming the certified representative for the unit. District 50 also became the representative of the captains and pilots who chose it in a later private election. App. 130a. The December 1964 contract covering all employees, including captains and pilots, was subsequently revised to expire in March 1968.

In July 1967, Mon River's employees selected a committee of four to serve as union negotiators in bargaining for a new contract. Each representative was chosen from a different job classification covered by the existing contract. Since captains were included, one of their number, Archie Cowan, was chosen to serve on the negotiating committee.

Negotiating sessions were held in November and December of that year, and agreement on a new contract was reached December 13, 1967.⁴ The members of the union negotiating committee, including Captain Cowan, almost immediately undertook a boat-by-boat solicitation of the employees to secure ratification of the contract. Ratification had been agreed upon between the employer and the union as a prerequisite to the contract's becoming effective. App. 47a-48a; 229a; 233a. Between December 15 and December 17, the committee boarded each of Mon River's seven boats at various points along the Monongahela and Ohio Rivers, including boats plying the river in Ohio and Kentucky, for the purpose of explaining the contract. This was followed by secret balloting.

After obtaining the vote on two of the boats, the committee was joined in boarding the remaining five boats by Mon River's president, Howard Guttman. On these boats Guttman introduced the negotiating committee to the assembled crew members.⁵ He then urged approval of the proposed contract, declaring that

this was about the best agreement that he could agree on, * * * this was a fair agreement and a just agreement that they had come up with and negotiated, and if they couldn\'t come to a suitable agreement that he would have to more than likely let the coal trade and the gas contracts * * * go * * *.⁶ (Emphasis added.)

Guttman then turned the meeting over to the union committee and departed before the balloting took place. The contract was approved by an overall vote of 37 to 22, and was signed by the negotiating committee on December 19, 1967.

Charges were filed against Mon River by the NMU. After hearing, the trial examiner found⁷ that:

(1) negotiating committee member Cowan, a boat captain, was a supervisor within the meaning of § 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11), and therefore Mon River had violated § 8(a) (1) and (2) by bargaining with the committee and permitting a supervisor to represent employees;

(2) Mon River had violated § 8(a) (1) and (2) in permitting Cowan to participate actively in the union solicitation of approval of the new agreement by the employees; and

(3) Guttman\'s statements amounted to a threat to terminate Mon River\'s business if the employees failed to ratify the contract and constituted conduct which was coercive and which interfered in union affairs in violation of § 8(a) (1) and (2).⁸

The Board adopted the trial examiner's findings and recommended order.⁹ In significant part the order requires that Mon River cease threatening employees, stop interfering in union affairs, and refrain from giving effect to the contract negotiated in December 1967.¹⁰ The last requirement is particularly important because it would eliminate the contract as a barrier to new representation proceedings.

Mon River asserts that its boat captains should not be deemed supervisors under the Act, but its main contention is that even if they are their supervisory role is so minor that the Board may not properly base the finding of unfair labor practices on the union activity of Captain Cowan pertaining to a contract covering his employment. Petitioner also disputes the finding of an unfair labor practice in the statements of its president.

Mon River's claim that the captains of its boats are not supervisors can be disposed of readily. The Act defines a supervisor as an individual who uses independent judgment in the exercise of other than routine authority over the employment or conduct of employees and in the interest of the employer.¹¹ It has been observed that gradations in the degree of authority over fellow employees "are so infinite and subtle that of necessity a large measure of informed discretion is involved in the exercise by the Board of its primary function to determine those who as a practical matter fall within the statutory definition of a `supervisor,'" N. L. R. B. v. Swift & Co., 292 F.2d 561, 563 (1st Cir. 1961). Our review is limited to the determination of whether the conclusion of the trial examiner and the Board here is supported by substantial evidence on the whole record. N. L. R. B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1089 (8th Cir. 1969); Pulley v. N. L. R. B., 395 F.2d 870, 875 (6th Cir. 1968); Warner Co. v. N. L. R. B., 365 F.2d 435, 437 (3d Cir. 1966). In cases of this nature we must give the "usual deference to Board expertise in applying statutory terms to particular facts." Hanna Mining Co. v. District 2, Marine Engineers Beneficial Ass'n, 382 U.S. 181, 190, 86 S.Ct. 327, 332, 15 L.Ed. 2d 254 (1965).

The trial examiner found that Mon River's captains are responsible for the safety of the boat, the crew and the cargo while under way¹² and that they evaluate crew members' work and ability and make corresponding assignments to particular jobs and watches. She also found that the captains had granted employees permission to leave the boat during off-duty hours and had recommended discharge of errant crew members while away from the home port. The company's evidence tended to minimize the actual exercise of authority by the captains and to show that on some matters the authority they did possess was not final.¹³ We believe this was clearly insufficient to overcome the substantial evidence relied on by the examiner and the Board, and we hold that the captains were properly found to be supervisors.¹⁴

As indicated, on the strength of the conclusion that Captain Cowan was a supervisor, the trial examiner and the Board found that Mon River had transgressed upon employees' rights and interfered in union affairs in violation of § 8(a) (1) and (2) by negotiating with a bargaining committee of which Cowan was a member. The rationale upon which this holding is based was originally set forth by the Board in Nassau and Suffolk Contractors' Association, Inc., 118 N.L.R.B. 174 (1957).¹⁵

In that case the Contractors' Association had negotiated a collective bargaining agreement with a union committee which included master mechanics who were found to be supervisors. Although holding that minor supervisory personnel may properly be included in a collective bargaining agreement and that they have some right to participate in the internal affairs of the union to which they belong, the Board found that the Association had violated the Act by allowing supervisors to represent employees in contract negotiations. The Board reached this conclusion in Nassau despite significant union control over the master mechanics, who were required to be union members, who held their positions only with union approval and who served simultaneously as union job stewards.

The question there, as here, was the extent to which supervisory union members may be permitted to participate in union affairs. Section 7 of the Act, 29 U.S.C. § 157, clearly protects the organizational and bargaining rights of employees only, and § 2(3), 29 U.S.C. § 152(3), establishes that this protection does not extend to supervisors,¹⁶ even though there is no legal barrier to their being union members.¹⁷ Supervisors have no statutorily protected right to participate in union affairs,...