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NLRB Law Memo 08/24/2006
by Ross Runkel at LawMemo

NLRB Law Memo 08/24/2006
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NLRB - Towboat pilots are "supervisors," not "employees."

American River Transportation Co (NLRB 08/18/2006)

A towboat has a crew of 9-10, including a pilot who is second in command to the captain and is in command in the captain's absence. The pilot navigates the boat, and is responsible for the safe transport of the vessel, cargo, and crew during his watch.

A three-Member panel of the NLRB held that pilots are "supervisors" within the meaning of NLRA Section 2(11), and therefore not "employees." The majority opinion (Chairman Battista and Member Schaumber) said: "Here, the Respondent's pilots have the authority to make assignments and reassignments of the crew and order the crew to perform particular tasks such as standing lookout, repairing lights, cleaning windows, and fixing depth finders. During the course of navigation, the pilots use independent judgment to determine that the assignment of certain tasks to the crew is necessary for the safe passage of the boat and tow. The pilots do not check with others before ordering that action be taken. That the pilots' instructions and orders often are routed through the mate does not diminish the pilots' responsible direction inasmuch as the instructions and orders remain those of the pilots'. The pilots are in charge of the after watch and serve as the sole wheelhouse official responsible for the safety of the vessel, crew, and cargo. They have authority over the crew during emergencies. Finally, the pilots also possess the following secondary indicia of supervisory authority; higher pay, better benefits, and better sleeping quarters."

Member Walsh concurred in the result but not the rationale. He did "not agree that the majority's analysis ... is necessarily the proper way to harmonize the result in this case with the concerns expressed by the Supreme Court in NLRB v. Kentucky River Community Care, 532 US 706 (2001)." He concurred based on previous NLRB cases on pilots, but does "not necessarily agree" with those cases.

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