Spentonbush/Red Star Companies v. N.L.R.B.

Decision Date13 February 1997
Docket NumberNo. 559,I,AFL-CI,D,559
Citation106 F.3d 484
Parties154 L.R.R.M. (BNA) 2545, 65 USLW 2600, 133 Lab.Cas. P 11,764 SPENTONBUSH/RED STAR COMPANIES, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, Local 333, United Marine Division, International Longshoremen's Association,ntervenor. ockets 96-4019(L), 96-4053(XAP).
CourtU.S. Court of Appeals — Second Circuit

Aaron J. Schindel, New York City (Neil H. Abramson, Marc A. Mandelman, Proskauer Rose Goetz & Mendelsohn LLP, New York City, of counsel), for Petitioner-Cross-Respondent.

Robert J. Englehart, National Labor Relations Board, Washington, DC (Frederick L. Feinstein, General Counsel, Paul J. Spielberg, Deputy Assistant General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Washington, DC, of counsel), for Respondent-Cross-Petitioner.

Seymour M. Waldman, New York City (Vladeck, Waldman, Elias & Engelhard, P.C., New York City, of counsel), for Intervenor.

Before: VAN GRAAFEILAND, McLAUGHLIN and JACOBS, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Spentonbush/Red Star Companies (Spentonbush), a tugboat and barge business, has petitioned this Court to review an order of the National Labor Relations Board in favor of Local 333, United Marine Division, International Longshoremen's Association, AFL-CIO (the Union). In a decision reported at 319 NLRB 988, 1995 WL 785733, the Board held that Spentonbush violated section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5), by refusing to bargain collectively with its employees. The NLRB has cross-petitioned for enforcement of its order, and the Union has intervened in support of the order.

The Board found among other things that Spentonbush violated the Act by demanding that its tugboat and barge captains be excluded from the bargaining unit created by its collective bargaining agreement with the Union because, Spentonbush says, they are "supervisors". The Act defines "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 29 U.S.C. § 152(ll). The Act provides further that a "supervisor" is not an "employee" for the purpose of the Act. See 29 U.S.C. § 152(3). Because the captains' status as either supervisors or employees played a major role in the Board's consideration of a § 8(a)(5) violation, we address it first.

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.

During the time at issue herein, Spentonbush operated a fleet consisting of eleven tugboats and eleven barges. Although the company's headquarters were in the New York City area, its operations extended from Norfolk, Virginia to Boston and Chicago. Indeed, in some years one of its tugs left New York in April and did not return from the Chicago area until December. The remaining tugs spent a relatively small portion of their time shepherding large vessels in and about the New York harbor. The bulk of their work was towing or pushing the barges containing petroleum or other liquid products up the Hudson River to storage facilities and refineries.

The tugs varied in length from 75 feet to 125 feet. The barges, which varied in length from 240 feet to 440 feet, carried between 840,000 and 4,620,000 gallons of gasoline. Each tug had a complement of six men consisting of a captain, a mate, a cook, a chief engineer, and two deckhands. Each barge's crew consisted of a captain and a mate.

For many years Spentonbush and Local 333 had been parties to a series of collective bargaining agreements, one of which was scheduled to expire on February 15, 1988. Because this was a period of severe economic hardship for companies such as Spentonbush, it sought concessions from the Union on wages, overtime and manning requirements. A meeting was held on February 14 which did not result in a meeting of the minds on these issues.

The evidence was substantial, indeed well-nigh overwhelming, that the status of Spentonbush's captains as supervisors was not an issue at this meeting. Martin Oppenheimer, Spentonbush's counsel, testified:

CROSS EXAMINATION

Q No specifics were discussed across the bargaining table about the duties and responsibilities of the captains, were they?

A No specific names as far as I can recall, were ever discussed. The principle that supervisors should not be part of the unit was a principle that was discussed with the company, asserting again and again that they should not be and the union asserting that they did not want to diminish the size of the unit. They wanted to include supervisors and that supervisors if eliminated might be terminated and therefore might lose jobs they have right now.

Q The company did not offer any specific instances, evidence, examples to show that tug captains were not supervisors.

A That was never put into issue by the union. The union never asserted they weren't supervisors.

* * * * * *

BY THE JUDGE:

Q Mr. Oppenheimer, did you sense that the union in the negotiations never said that the captains were not supervisors, is that correct?

A That's correct.

Q Did they ever concede that they were?

A Yes. Indeed they addressed them as supervisors.

Q They used that term?

A Absolutely.

Q And in what particulars did they do it.

A Whenever the matter was addressed the company took the position supervisors should not be part of the unit. The union asserted that by excluding supervisors from the unit, a, the numbers we represent diminish and b, you will then have a right to discharge them and in a sense they are losing the protection they now have. The union never claimed that the tug captains or barge captains were not supervisors. That was not an issue in dispute.

Q How about the mates?

A They weren't specifically addressed. The legal issue was not addressed. They never questioned our legal right to do so. What they said is they would not--any more than they questioned our legal right to eliminate the cooks. But they simply said that was unacceptable to them as a bargaining matter.

Q Are you saying in essence that by their conduct they conceded that these captains are supervisors but they did not expressly refer to them as supervisors?

A They expressly referred to them as supervisors.

Union delegate James Morrissey testified that the issue of the supervisor status of the tug captains and barge captains was not a strike issue for the Union. Union delegate Peter Gale and Spentonbush's vice president Joseph Gehegan agreed. On August 12, 1988, the Union filed an unfair labor charge which included no allegation with respect to the supervisory status of Spentonbush's captains. General Counsel conceded to the ALJ, "Never said it included it, your Honor." The Union's first reference to this issue was contained in its third charge, made almost a year after the Union went on strike.

Our reading of the record convinces us that, during the negotiations that preceded the strike, the Union did not make an issue of the captains' status as supervisors. The Union's position was, supervisors or not, the captains should remain employee members of the bargaining unit. This, the law does not permit. The Board nevertheless elected to treat the captains' supervisory status as if it was a pivotal issue in the parties' pre-strike negotiations, and we perforce must follow suit. However, we part company from the Board in the result that it reached through this warped interpretation of the facts.

In 1971, Spentonbush or its predecessor corporate entity issued a "Manual of Operating Procedures and Regulations" for use by its "Tugboat Operation," to be considered the "primary fleet operating order." The Manual, which was to be carried aboard ship at all times, contained the following provisions relating to the captains of its tugs:

The master has absolute command of the vessel and has full authority over all phases of its operation at all times, both in port and at sea.

* * * * * *

The master has full authority over all persons on board the vessel, and his authority must be maintained.

Masters must require that their orders be carried out, and any neglect or refusal to do so must be met with appropriate disciplinary action.

* * * * * *

The master may rely on the company and its representatives for support in the lawful and proper execution of their duties and the maintenance of discipline.

* * * * * *

The master has full authority to dismiss from his vessel any officer or crew member. It is expected that this power will be used judiciously and only for proper cause.

Dismissal from a vessel is subject to review by the Personnel Department prior to dismissal from the company.

Causes for dismissal can vary from infringement of regulations to consistently substandard performance.

* * * * * *

Masters are the direct representatives of the company, and as such, their decisions and actions are usually binding on the company. They should carry out the responsibilities of the office with this in mind using best judgment at all times.

Company shore management are at all times ready to advise and assist masters in the performance of their duties.

The foregoing provisions did not establish new rules of conduct and authority for the company's tug captains; they simply restated general rules and regulations that had been in existence for many years. Pursuant to this long-standing tradition, a ship's captain is the ship's master. See Coastal Iron Works, Inc. v. Petty Ray Geophysical, 783 F.2d 577, 582 (5th Cir.1986); Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1155 (2d Cir.1978), cert. denied, 440 U.S. 959 99 S.Ct. 1499, 59 L.Ed.2d...

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