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NLRB - National Labor Relations Board |
American
River Transportation Co. and International Organization of Masters, Mates and
Pilots, ILA, AFL–CIO.
Case 14–CA–25753
August 18, 2006
DECISION AND
ORDER
By
Chairman Battista and Members Schaumber and Walsh
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On March 1, 2001, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order. The judge issued his decision before the Supreme Court issued its decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001).2 The judge found that prior to May 1999, the Respondent’s towboat pilots were not supervisors within the meaning of Section 2(11) of the Act because, inter alia, the pilots did not have the supervisory authority to independently assign work and responsibly direct the crew. He also found that the Respondent violated Section 8(a)(1) of the Act by making statements to employees implying that pilots were assigned supervisory duties after May 1999 to discourage their union or protected concerted activity. He further found that the post-May 1999 assignment of supervisory duties to the pilots violated Section 8(a)(1) and (3) of the Act. We reverse the judge’s findings and shall dismiss the complaint in its entirety. As more fully discussed below, the record shows that the pilots were, at all relevant times, statutory supervisors based on their authority to responsibly direct and assign employees.3 We therefore find that the Respondent’s challenged treatment of its supervisor pilots did not violate the Act. Relevant Facts The Respondent uses towboats to
push strings of barges carrying freight along the The pilot is responsible for the safe transport of the vessels, cargo, and the crew during his watch. Like the captain, the pilot navigates the boat and tow from the wheelhouse. As the boat and the tow move along the river, the crew performs a variety of tasks connected with dropping off barges from the tow, adding new barges to the tow, and helping the vessel maneuver locks and bridges—all under the pilot’s control. During the locking process, the pilot will frequently rely on a crew member to serve as a “lookout.” The lookout stands on the tow or boat, and conveys information to the pilot about distances and speed as the lock is approached and entered. The pilot often will require crew members to attach a line to a stationary fitting in the lock and then use the line to pull the tow or boat towards the lock’s wall. In some situations, the pilot has the crew attach an “assist” tugboat to the front of the tow to help direct the tow into the lock. The pilot also often relies on the crew for a lookout or an assist tug to help him safely maneuver the vessel through bridges that span the river. When the crew is working on the tow, the pilot generally uses a radio to transmit, through the mate, his directives to the deck crew. For instance, when coming upon a lock or in connection with tow work, the pilot tells the mate what he expects to be done, and the mate conveys that to the rest of the deck crew and oversees the work of the crew. The pilot can also order the crew members to perform tasks such as repairing lights, cleaning windows, fixing depth finders, or other maintenance tasks. The deck crew is supposed to do what the pilot says—whether directly or through the mate. As part of his authority to require a crew member to perform tasks that affect the navigation of the vessel or tow, the pilot may also change the priority of the crew’s work and instruct the crew to stop work on one assignment in order to perform a navigation assignment for the safety of the boat, tow, and crew. Navigation is a complex and skilled undertaking that requires the pilot to take into account such factors as time of day, weather, speed and direction of the wind, depth and width of the river channel, speed of the current, size and configuration of the tow, barge draft, capabilities and reliability of the vessel and its electronic equipment, the maneuverability of the vessel and tow, the presence or absence of depth finders and other aides to navigation, the number of vessels in the area, and the direction the vessel is traveling. The navigational decisions that the pilot makes determine what tasks the mate and deck crew need to perform. For instance, the pilot has the authority to post a lookout any time he feels it is appropriate to do so. The pilot determines how many lookouts to post and when and where to post them. The pilot’s authority to direct the crew becomes even more critical in the pilot’s handling of emergency situations arising on the after watch. During his work shifts, the pilot is the contact person for communications to the boat from land-based management, fleeting operations, and other boats. The pilot reports to both the captain of the boat and the port captain. The pilot receives officer’s benefits, has better sleeping quarters than the deck crew, and is the second highest paid person on the boat. The pilot must also undergo an extensive 3½-year training program. He is required to have a Coast Guard license to operate uninspected towing vessels, and he must follow the many Coast Guard regulations or else risk losing his license and his pilot’s job. The Respondent’s towboat pilots have never been represented by a union for purposes of collective bargaining. In 1997, a labor organization known as “Pilots Agree” began a campaign to organize captains and pilots working for several river barge companies, including the Respondent. In April 1998, Pilots Agree initiated a strike against those employers. Roughly 1/3 of the captains and 2/3 of the pilots employed by the Respondent at that time participated in the strike. The Respondent discharged the striking captains, but it reinstated the striking pilots after the strike ended. In September 1998, Masters,
Mates and Pilots Union filed a petition seeking to represent a unit
composed of the Respondent’s towboat pilots.
The Regional Director issued a decision and direction of election
rejecting the Respondent’s contention that the pilots were supervisors.
A Board panel majority denied the Respondent request for review of
the Regional Director’s decision.4
The election was subsequently held, the Beginning in May 1999, the Respondent conducted training sessions for its pilots. John David Cook, the Respondent’s vice-president of operations, spoke at these training sessions, including the one held on June 8, 1999. Cook told the pilots that the Respondent had been forced to make changes in the past to respond to factors such as drought and flood. He stated that the Respondent would be changing again in response to what it had learned during the 1998 Pilots Agree strike. Cook explained that prior to the strike the pilots had been seen as persons with virtually no “say-so” in the management of the boat. Cook said that the Respondent was now giving pilots more “say-so” in management. Cook concluded by stating “[r]est assured,” “we will survive Pilots Agree of ‘98.” At these training sessions, the Respondent informed pilots that new duties were being assigned to them and that these new duties would be effective September 1999. In this connection, the Respondent issued a new written pilot job description in May 1999, which included both some old and new duties for the pilots. Later, the job description was supplemented by the Respondent’s distribution of a written “additional responsibilities” memorandum for pilots in September 1999. Both before and after May 1999, the pilots’ responsibility to make navigational decisions existed, and they exercised their authority to assign and direct a crew member in the performance of tasks involving the navigation of the vessel and tow, as described above. Parties’ Contentions The Respondent argues, contrary
to the judge’s decision, that its pilots possessed supervisory authority
and duties prior to May 1999. It
contends, inter alia, that its pilots were authorized to assign or
responsibly direct work and exercise independent judgment in making work
assignments and directing the crew. The
Respondent asserts that the Supreme Court’s decision in The General Counsel, in agreement with the judge’s decision, argues that the Respondent did not meet its burden of proving supervisory status for the pilots. The General Counsel contends, inter alia, that the Respondent did not historically treat its pilots as supervisors; it never informed its pilots that they had supervisory authority; and the pilots possessed none of the Section 2(11) indicia of supervisory status. The General Counsel maintains that the Supreme Court’s Kentucky River decision does not require any factual or legal findings different than those made by the judge, and that the judge’s findings of violations should be upheld. Discussion Section 2(11) of the Act defines “supervisor” as:
Pursuant to this definition, employees are statutory supervisors if they hold the authority to engage in any of the supervisory functions specified in Section 2(11), their exercise of such authority requires the use of independent judgment, and their authority is held in the interest of the employer. The possession of any one of the indicia specified in Section 2(11) is sufficient to confer supervisory status. The burden of proving supervisory authority is on the party asserting it.5 We find that at all times
relevant the Respondents’ pilots have been supervisors within the
meaning of Section 2(11). They
have authority to responsibly direct the towboat crew in their work and to
assign work. They use
independent judgment in exercising that authority, and they do so in the
interest of the employer. Our
finding that the Respondents’ pilots are statutory supervisors based on
their authority to responsibly direct and assign employees is consistent
with the approach taken by the Board in several similar post-Kentucky
River pilots cases. In
those cases, the Board found that the pilots at issue used independent
judgment in exercising their authority to responsibly direct the towboat
crew in their work and to assign work to the crew. See Ingram
Barge Co., 336 NLRB 1259 (2001); Alter
Barge Line, Inc., 336 NLRB 1266 (2001); and American
Commercial Barge Line Co., 337 NLRB 1070 (2002).
For instance, in American
Commercial Barge Line Co., id. at 1072, the Board considered that,
“[c]onsistent with 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.7 The pilots do not check with others before ordering that action be taken.8 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’.9 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. Our finding of supervisory status for the Respondent’s pilots means that the complaint allegations involving them must be dismissed. An employer may lawfully modify, formalize, or add to the authorities and duties of its supervisors, and it may take action against its supervisors for their participation in union activity. Similarly, the Respondent may make statements to supervisors which might violate Section 8(a)(1) if made to employees. Accordingly, Cook’s statements at the June training session did not violate Section 8(a)(1) of the Act and the Respondent’s distribution of the job description and the “additional responsibilities” memorandum to the pilots and the corresponding assignment of purported new duties to the pilots did not violate Section 8(a)(1) and (3) of the Act. ORDER The complaint is dismissed. Dated,
Peter
C. Schaumber,
Member (seal)
National Labor Relations
Board Member Walsh, concurring in the result. I concur in the result reached by my colleagues, but not in their rationale. In particular, I do not agree that the majority’s analysis of the pilots’ alleged authority to assign and to responsibly direct other employees, or of the pilots’ alleged exercise of independent judgment, 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 U.S. 706 (2001). Nonetheless, I concur in the result based solely on the fact that I acknowledge that the material facts concerning the supervisory status of the Respondent’s pilots cannot be meaningfully distinguished from those in current Board precedent involving the same pilot classification in which supervisory status was found. See Marquette Transportation/Bluegrass Marine, 346 NLRB No. 54 (2006), and cases cited therein. By citing those cases, however, I do not necessarily agree that they were properly decided. Dated, _________________________________ Dennis P. Walsh, Member National
Labor Relations Board Paula B. Givens, Esq., for the General Counsel. Scott V. Rozmus,
Esq., Jerry McInnis, Esq., Darren M. Mungerson, Esq. (Jenner & Block),
of John M. Singleton,
Esq., of DECISION Statement
of the Case Paul
Bogas, Administrative Law Judge.
This case was tried in The Respondent is in the
business of transporting freight by river barge.
On September 24, 1998, the Subsequent to the election, the Respondent called its pilots together for a series of meetings and issued certain training and administrative documents to them. The complaint alleges that in the course of these activities the Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily assigning supervisory duties to pilots and by making statements to pilots implying that the Respondent had assigned the supervisory duties to discourage union support and membership. The Respondent filed an answer denying the essential allegations of the complaint. The Respondent re-asserted its contention that pilots have always been statutory supervisors within the meaning of Section 2(11)—a contention which, if accepted, would mean that the pilots did not have rights under the Act that could have been violated by the assignment to them of supervisory duties or the statements by the Respondent regarding such assignment. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent,[1] I make the following findings of fact and conclusions of law. Findings
of Fact i.
jurisdiction The Respondent, a ii.
alleged unfair labor practices A. Background 1. Prior Representation Case Decision On January 21, 1999, in a prior proceeding, the Board upheld a decision by the Director of Region 14 that the Respondent’s pilots and pilots-in-training (pilots B/steersman) constituted a unit appropriate for purposes of collective bargaining. GC Exh. 2C. The decision upheld by the Board explicitly rejected the Respondent’s contention that pilots were statutory supervisors under Section 2(11) of the Act. GC Exh. 2B. The decision noted that it is the towboat captain, not the pilot, who is responsible for deciding which crew members will work on which shifts, recommending promotion of watchmen and mates, and recommending promotion (with the mate) of deckhands. The decision found that the Respondent’s pilots did not have authority to perform those activities, nor did they have the authority to transfer, suspend, lay off, recall, promote, assign, or reward members of the crew. The decision observes that although the navigator of the vessel—regardless of whether it is the pilot or the captain—communicates directions to the deck crew during certain procedures, “[i]n practice the navigator and the crew are faced with performing all of these procedures on a regular basis, and that crew members generally need little to no direction.” The decision indicates the directions given to crew by the Respondent’s pilots are “routine in nature” and do not “require the use of independent judgment.” The Regional Director acknowledged that pilots use considerable experience and skill in navigating the boats and tows, but cited Board precedent that when a skilled worker directs his helpers, such direction is not sufficient to make the skilled worker a supervisor. The decision concluded that the “duties and responsibilities of pilots do not reflect the degree of responsible direction or effective recommendation necessary to confer supervisory stat[us] within the meaning of Section 2(11) of the Act.” In addition to rejecting the argument that the pilots were supervisors, the decision rejected the Respondent’s argument that the Union was not a bona fide labor organization, and accepted the Respondent’s argument that pilots in training (known as “pilots B” or “steersmen”) shared a community of interest with the pilots and should be included in the unit with the pilots.[2] 2. The Respondent’s Towboat Operation The Respondent operates
approximately 30 river towboats, also known as “line boats,” on the
Mississippi River and the The Respondent’s towboats
operate 24 hours a day, 7 days a week, and upwards of 350 days a year.
Typically, a crew boards for a 30-day period or “trip” and then
is relieved by another crew which boards for the next 30-day period.
The towboats operating on the “upper” The Respondent’s towboats have five decks and vary in size and horsepower, but one consistent feature is that the uppermost deck of the boat is the “wheelhouse.” The wheelhouse has windows all the way around and contains navigational controls and the displays for navigational equipment such as depth finders.[6] The wheelhouse also contains a facsimile (FAX) machine, telephones, and a radio. These are used for communicating with the land-based component of the Respondent’s operation and with other vessels. The captain navigates the boat from the wheelhouse on the forward watch, and the pilot navigates from the wheelhouse on the after watch. During their shifts the chief engineer and the assistant engineer are usually in the engine room, and the deck crew (which includes the mate, watchman, and deckhands) works on the tow and at various places around the vessel. The members of the deck crew are assigned to the vessels by crew dispatchers, and to a particular watch by the captain or the mate. As the vessel and tow move along the river, the crew performs a variety of types of tasks. One type is called “tow work,” which means dropping off barges from the tow, and adding new barges to the tow. The barges in a tow are held together by a system of cables, called “wires,” that are wrapped around stationary fittings on the barges. Tow work generally takes place in staging areas on the river, known as “fleets.” The configuration of the barges in the tow must sometimes be altered to accommodate the addition or removal of barges, or because of navigational factors. The individual barges themselves must be checked from time to time to determine if they are taking on water or otherwise compromised. The integrity of the tow’s overall structure must also be maintained, sometimes by tightening the wires holding the barges together in order to create a more secure tow. Another kind of work involves attaching the boat itself to the tow. This is accomplished using a variety of types of wires and other equipment and is referred to as “facing up.” As it progresses on the river, the vessel encounters obstacles such as locks and bridges. During the locking process the captain or pilot will frequently rely on a crew member to serve as a “lookout” who stands on the tow or boat, and conveys information to the pilot or captain about distances and speed as the lock is approached and entered.[7] Crew members are also often required to “catch a pin” to help the tow and boat enter the lock safely. “Catching a pin” means attaching a line to a stationary fitting in the lock and then using the line to pull the tow or boat towards the lock’s wall. In some cases an “assist tug”—a boat that attaches to the front of the tow—is used to help direct the tow into the lock. The crew must also safely maneuver through bridges that span the river. Here too, the captain or pilot may rely on a lookout or an assist tug. The deck crew typically performs a variety of maintenance duties on the boat. Among these are scraping and painting surfaces, repairing aides to navigation such as depth finders, replacing or checking the running lights on the boat or tow, sweeping and mopping, and making the beds and cleaning the rooms of the captain, the chief engineer and the pilot. Royce Wilken is the Respondent’s president. John David Cook is the Respondent’s vice-president of operations and reports directly to Wilken. Raymond Hopkins and Bruce Hussell, are the Respondent’s two port captains, and report directly to Cook, as do the Respondent’s port engineers, and various other managers. The Respondent’s towboat captains report to Hopkins and Hussell. Towboat pilots report to both the towboat captains and the port captains. Tr. 51, Tr. 1303. The record is clear that the mate and watchman are the ones primarily responsible for directing and overseeing the work of the deck crew. Whether, and to what extent, the pilot also has been involved in directing the deck crew is a central issue in this case. 3. The Strike and union Election The Respondent’s towboat
pilots have never been represented by a union for purposes of collective
bargaining. On April 3, 1998,
towboat captains and pilots for a number of river barge companies,
including the Respondent, initiated a strike.
The strike was called by a labor organization known as “Pilots
Agree.” At the time of the
strike the Respondent had approximately 60 captains, 20 of whom
participated in the strike. The
Respondent had approximately 56 or 57 pilots, and approximately 36 (25
full-time and 11 fill-in, “trip”, pilots) participated in the strike.
The strike had a severe and deleterious effect on the
Respondent’s operations on the On the day the strike began, the Respondent sent an e-mail message to captains informing them that they were supervisors, had no protected right to strike, and would be terminated unless their ships were underway by 6 p.m. The Respondent terminated twenty captains who defied this warning. The captains are indisputably in overall charge aboard the Respondent’s towboats, and the Board’s Associate General Counsel, Division of Advice, issued a memorandum opining that the Respondent’s captains were statutory supervisors who had authority to discharge, discipline, and effectively recommend promotion. 29 NLRB Advice Memorandum Reporter, Par. 35033 (GC Br., Exh. A). Unlike the striking captains,
striking pilots were not terminated or threatened with termination.
Rather the Respondent sent pilots a letter which acknowledged that
employees had a protected right to strike, and which invited them to
return to work. Robert
Creviston, the ADM labor relations department official who made the
decision to terminate the captains, testified that his intent in doing so
was to “cut[ ] off the head of the snake.”
Tr. 955. Regarding the
decision to terminate captains, but not pilots, Creviston explained,
“you don’t kill the snake by cutting it in the middle; you kill the
snake by cutting the head off.” It is not clear from the record precisely when the strike ended, however it appears to have been sometime prior to September 24, 1998, when the Union[8] filed a petition with the Board asking to be certified as the bargaining representative of a unit composed of “[a]ll full-time and regular part-time wheelhouse pilots, operating vessels of the [Respondent] on the inland waterways.” The Respondent argued that the petition should be dismissed, and contended, contrary to the implication of its letter to pilots during the strike, that pilots were statutory supervisors under Section 2(11) who were precluded from bargaining collectively with the Respondent. The Regional Director rejected this argument, and the Board issued an order denying the Respondent’s subsequent request for review and stating that the request “raise[d] no substantial issues warranting review.” A representation election was
held and, on February 26, 1999,[9]
the results of the election were certified.
The certified results showed that 28 ballots were cast in favor of
the Union and 36 against the After the election, the 4. Pilots Meetings and Job Description Approximately 3 months after the
The pilots meetings were attended not only by the pilots, but also by Wilken, Cook, Hopkins, Hussell, and other officials. At the beginning of each meeting Cook gave an introductory presentation in which he explained the purposes of the meeting. The General Counsel alleges that remarks that Cook made during this presentation on June 8, 1999, violated Section 8(a)(1) by “impl[ying] to employees that Respondent assigned them supervisory duties in order to discourage their support for and/or membership in the Union.” The witness accounts of
precisely what Cook said differ substantially, even among those witnesses
who testified for the same side about the same meeting.
Based on credible testimony, and on Cook’s own notes regarding
what he said at the meeting, R Exh. 15, I find that Cook covered a number
of subjects at the June 8 meeting. First
Cook welcomed the pilots and informed them that this was the first series
of pilots meeting that the Respondent had conducted in 25 years.
Cook then recounted that the Respondent had been required to make
changes in the past to respond to factors such as government regulations,
economics, river conditions, the drought of 1988, and the flood of 1993.
He mentioned the 1998 strike by Pilots Agree, and stated that the
Respondent would now be changing again.
The Respondent had “learned a lot” of things from the strike,
Cook explained, and one of the most important was that pilots were a
valuable resource that ARTCO had never fully utilized.
Cook stated that in the past the pilot had been seen as a person
that drives the boat with virtually no say-so in the management of the
boat. He stated that
pilots were officers of the boat, that they earned over 90 percent of what
captains earned, and that it was from the pilots’ ranks that new
captains were drawn. Cook
then said: “And all of this is why you are here today and tomorrow.
We are changing again. ARTCO
is going to give you the pilot more ‘say-so’ in managing your boat.”
Cook told employees that the strike had really hurt the Respondent
and that he did not want that ever to happened again.
Cook’s talk concluded with the statement “[r]est assured,”
“we will survive Pilots Agree of ‘98.”
Cook also stated that he felt that ARTCO did not need a Prior to the pilots meetings, the Respondent had never issued a written job description for the pilot position. Around the time the pilots meetings began, the Respondent issued a document entitled “ARTCO Pilot Job Description,” which was dated May 20, 1999. GC Exh. 22. By all accounts, some of the duties listed in this document were new for pilots and some were not; however, the accounts differ substantially regarding how many of the duties, especially how many of the supervisory-type duties, were new. Among the pilot duties outlined in the job description are: responsibility “for the safety of the crew as well as the vessel and all other equipment while on watch;” responsibility to “know[,] follow and enforce all policies, procedures, safety rules, and practices of ARTCO to all crew members on his watch;” responsibility to “assist the Captain in accomplishing all duties in overseeing personnel and delegating duties in accordance with existing conditions and circumstances;” responsibility to “supervise[ ] the deck crew serving on his watch and [be] accountable to the Captain for their assigned task[s];” responsibility to “know and follow the four step disciplinary process;” responsibility to “use the Employee Behavioral Evaluation Form for discipline and the recognition of good work performance, of the deck crew on his watch;” responsibility to “recommend any crew member for promotion;” responsibility to “receive and execute orders and instructions from ARTCO Barge Dispatchers regarding pickup, movement and delivery of barges and cargoes during operations to the assigned vessel and to report progress toward completion of the assignment;” responsibility to “verify barge drafts and ensure that the deck crew checks, pumps or repair[s] leaks to either the wing tanks or the cargo box of any barge in tow requiring attention;” and, responsibility to “ensure that all tows are properly built or made up and that the vessel is properly connected to the tow.” Subsequent to the pilots meetings, the Respondent also provided the pilots with a separate document, this one entitled “The ARTCO Pilot’s Added Responsibilities, Effective 09 Sept. 99.” GC Exh. 23 (emphasis added). This document states: “The full time ARTCO pilot (wheelman on the aft watch) as second-in-command of the vessel and as a company supervisor/manager has the following additional responsibilities: 1. in command of the aft watch; A. to supervise the aft watch deck crew; B. to supervise the entire aft watch crew in accordance with company policies and safety rules; C. to recommend crew members on his watch for promotion, demotion, or probation by completing and signing the appropriate company forms; D. to evaluate the aft watch deck crew utilizing the appropriate company form; E. to discipline as necessary, up to and including termination, the aft watch crew utilizing the appropriate company form; 2. to make a written recommendation to the personnel department for employee hiring; 3. to be familiar with the memo book and capable of updating the same; 4. take overall command of the vessel in the absence of the master (i.e., masters illness or absence).” The General Counsel alleges that the Respondent published the 5/20/99 job description which assigned new duties effective in September of 1999, and the “additional responsibilities” memorandum in order to discourage employees from engaging in concerted and union activities. 5. The Pilot and the Pilot’s Duties Prior to the Alleged Unfair Labor Practices a. The Pilot One of the central questions in this case is whether the Respondent’s pilots already had supervisory functions at the time of the alleged unfair labor practices that began in May of 1999. The record is clear that pilots have always been extremely important persons aboard the Respondent’s towboats. The pilot navigates the boat and tow 12 hours out of each day and a mistake on his or her part can endanger not only valuable cargo and equipment, but also the safety of the crew and other persons on the river. On the after watch, the pilot is also the contact person for communications to the boat from land-based management, fleeting operations, and other boats. The pilot’s status is recognized in numerous ways. Pilots are the second highest paid persons on the Respondent’s boats, after the captain. The pilots receive “officers’ benefits,” along with the captain, the mate, the chief engineer, the assistant engineer, and various land-based personnel. The pilots have desirable sleeping quarters on the vessel. Pilots must undergo extensive training consistent with the high level of responsibility associated with their duties. An individual, usually a mate, who wishes to become a pilot must first find a captain who is willing to teach him to be a pilot. Then, for a year and a half, the prospective pilot, known as a “pilot B,” shadows the captain, who endeavors to teach the pilot B everything necessary to function as a pilot, and evaluates the progress of the pilot B on a regular basis. See GC Exh. 50. The entire training program for pilots generally takes three and a half years. Each of the Respondent’s pilots is required to have a Coast Guard license to operate uninspected towing vessels (“OUTV license”), an endorsement showing that the pilot can use radar for navigation, and a restricted radiotelephone operator’s permit. While it is clear that pilots have always been extremely important persons on the Respondent’s towboats, being extremely important is not the same as having supervisory functions. The testimony regarding whether the pilots had such supervisory functions was contradictory. The General Counsel’s witnesses testified that the pilots’ duties had essentially been limited to driving the boat and conveying information to the mate, crew members, land-based management, and other boats. The testimony of the Respondent’s witnesses was that far from being confined to these duties, pilots had long possessed a panoply of supervisory responsibilities, which included, making recommendations about hiring and promotion, dispensing discipline, evaluating crew member performance, and responsibly directing the work of the mate and deck crew. I have no doubt that witnesses on both sides made efforts to portray the pilots’ duties in the light most favorable to their side. For reasons discussed below, I generally found the General Counsel’s witnesses more credible on these subjects based on their demeanor, the plausibility of the their testimony in light of the totality of the evidence, and other factors. Moreover, the documentary evidence in the case painted a clear and quite consistent picture and tips the scale further in favor of the accounts of the General Counsel’s witnesses. Such documentary evidence is particularly helpful where, as here, the testimonial evidence piles contradiction on disagreement on contradiction. Unlike testimony, pre-existing documentary evidence cannot easily be shaped or shaded to suit the purposes of subsequent litigation. See Oil, Chemical and Atomic Workers Int’l Union, AFL–CIO v. NLRB, 445 F.2d 237, 243 (D.C. Cir. 1971) (in an atmosphere “untainted by live controversies over the statutory status of any particular group of employees, management’s statements conferring responsibilities and allocating duties are likely to be more reliable than similar statements made in the context of union conflict when directives are often addressed as much to the Board as they are to the company’s personnel”), cert. denied, 494 U.S. 1039 (1972). Here, pre-existing documents, which were used, and in most instances created, by the Respondent itself, contain so much to indicate pilots did not possess supervisory responsibilities, that in order to conclude that pilots were supervisors one would almost have to believe that the Respondent was intentionally keeping pilots’ supervisory powers a secret from towboat personnel, including the pilots themselves. b. Documentary Evidence Regarding Pilots’ Status and Functions The Respondent has described its operations and procedures in a number of different documents. Most significantly, the Respondent maintains a collection of memoranda entitled the “American River Transportation Company Line Boat Memo Book” (sometimes called “the bible” by crew members and referred to hereinafter as “the Memo Book”), which contains approximately 123 memoranda or entries. GC Exh. 46. The Respondent has also issued various other memoranda, training materials, and communications to its line boat personnel. In February and March of 1999, prior to the pilots meetings, the Respondent held a series of meetings for mates at which it distributed written training materials. The documents distributed by the Respondent directly contradict its claim here that the pilot supervises the mate and deck crew. For example, the Respondent distributed an “ARTCO Leadership” flow chart to mates that excluded pilots entirely. GC Exh. 80(i). The chart indicates that the deck crew and the watchmen report to the mates, and that the mates report to the captains, and the captains reports to the port captains, and so on all the way up to the CEO of ADM. No role at all is indicated for pilots in this leadership scheme. At the same mates meetings the
Respondent distributed a document entitled “Expectations of the Mate.”
GC Exh. 80(J). This document
states that the mate is the manager of the deck crew and that “as
manager of the deck department, [the mates] report to the Captain.”
It is wholly implausible that if pilots were, as alleged by the Respondent, the supervisors of the mates and deck crews, the Respondent would simply fail to inform mates about the pilots’ supervisory role during these meeting dedicated to “leadership.” These documents are powerful evidence that the mate is the manager of the deck crew and performs those managerial duties under the direction of the captain, not the pilot. The Respondent’s written communications to captains convey the same message—i.e., that the captains, not the pilots, supervise the mates and oversee the mates’ direction of the deckhands. An “all boats” memorandum dated October 2, 1998, states that “[e]ach Captain needs to meet with their Mate each day and discuss what is being done on the vessel and to help the Mate manage his time well in the next 24 hours.” GC Exh. 77. Similarly, the Memo Book states that in order “to coordinate daily activity and projects on the boat,” “[t]he Captain needs to meet with his mate each day,” “[d]iscuss what is scheduled on the vessel for the next 24 hours,” and “[a]id the mate prioritizing his time.” GC Exh. 8, GC Exh. 46. There is no mention in this document of the pilot having meetings with the mate, nor is there is any mention of the mate conferring with the pilot regarding work to be done over the next 24 hours. It is highly unlikely that pilots would not be included in this process if they were, as the Respondent contends, the supervisor of the deck crew. Moreover, while the above-discussed documents explicitly provide that the captain and the mate supervise the deck crew, management officials Wilken and Hopkins conceded that, prior to May of 1999, no document was given to pilots or mates informing either of the pilots’ supposed supervisory function. Tr. 714, Tr. 764, Tr. 1560. Indeed, neither Wilken nor Hopkins is aware of the pilots’ supervisory authority ever being mentioned to mates. Tr. 715–716, Tr. 760, Tr. 1561. The same theme—that the
captain and the mate, not the pilot, supervise the deck crew—is repeated
in a training manual that the Respondent gives to all new deckhands.
GC Exh. 5; Tr. 624.[13]
The section of this
manual entitled “chain of command” states:
“The Captain on your boat is the man in full charge.
He gives orders to the Deck Supervisor, the Mate or Head Deckhand
of the deck department. You
will look to him for orders and instructions about your work.”
The Respondent even communicated this information to guests on its
towboats. A document entitled
“Information For Our Towboat Guests” states that “the Master on
board (Captain) is in complete
command of all phases of
vessel operation at all times.”
GC Exh. 76, Page 2 (emphasis in original).
The materials also inform the guests that if “larger problems
occur, feel free to ask the Captain and we’re sure he will accomplish
anything necessary to make your tenure onboard as comfortable as
possible.”[14] When, in documents issued prior to May of 1999, the Respondent discussed some of the specific types of supervisory functions that the Respondent now claims pilots possessed (e.g., evaluating performance, enforcing safety and other rules, overseeing the work of the deck crew) a role is consistently acknowledged for captains and sometimes mates or chief engineers, but not for pilots. For example, during the relevant period, the Memo Book provided that captains, mates, and chief engineers would fill out employee evaluations, but it gave no such authority to pilots. GC Exh. 46 at Section 3.019; see also GC Exh. 6, GC Exh. 30, GC Exh. 31. It was not until September of 1999, after the pilots meetings, that the Respondent modified its employee evaluation forms to permit pilots to sign them. GC Exh. 25. The Respondent contends that, prior to the 1999 pilots meetings, the pilots issued verbal discipline, but its witnesses have conceded that this discipline was not reduced to writing or included in the recipient’s personnel records. The Respondent’s memorandum describing its disciplinary system, however, explicitly states that there are four types of discipline—verbal warning, written warning, probation, and discharge—and that even in case of the verbal warning a written record of the discipline must be placed in the employee’s personnel file. GC Exh. 61, Page 3. The Respondent’s pre-5/99 discipline form indicates that “verbal discipline” is to be recorded even when such discipline is for “information only.” GC Exh. 32. These documents show that the Respondent’s sanctioned forms of discipline did not include the type of unrecorded verbal discipline that it now claims its pilots were authorized to issue. I do not doubt that the Respondent’s pilots have on occasion chastised crew members who they believed were performing poorly, however, the Respondent’s own records indicate that when pilots did so they were not issuing discipline recognized or sanctioned by the Respondent. Documentary evidence regarding the promotion of new, or “green,” deckhands to experienced deckhand entitled to “experienced” pay, also indicates that the pilots were not part of this process. For example, an experienced deckhand evaluation check-off form in the record shows that it was completed by mates, not by the pilot. GC Exh. 33f. Indeed, the Respondent’s witness Hopkins conceded that it was the mate or the captain who filled out the written evaluations relevant to the promotion of deckhands to experienced status. Tr. 1581–1582. The Respondent contends that,
prior to May of 1999, its pilots enforced safety rules and other policies
and procedures, but this claim is belied by its own documents.
A memorandum, dated November 25, 1996, regarding safety awards,
directs “mates” and “captains” to “constantly enforce
all ARTCO safety rules and policies.”
GC Exh. 62 (emphasis added). The
same memorandum does not direct pilots to enforce safety rules and
policies, but rather states that the “Pilot, Chief, Asst./Oiler/Deckineer,
Watchman, Cook, Deckhands” must “[c]omply
with” and “[e]ncourage . .
. shipmates to comply with all ARTCO safety rules and polices.”
The Memo Book also contains many
entries that give authority to the captain and the mates, or even the
watchmen, to oversee the crew and the work of the crew, but do not give
this authority to the pilot. For
example, crew members may disembark only with the permission of the
captain, and must inform the captain if they will need to be excused for a
court date, regardless of which watch the crew member works on or is
boarding during. GC Exh. 46
Memo 6.006 (6/5/92) and Memo 6.007(6/14/90).
When a crew member is injured, regardless of watch, the Memo Book
provides that it is the captain who decides whether the person can
continue working in a modified duty capacity or whether the person must
disembark. Documents regarding the requisition and distribution of supplies give responsibilities to captains, mates, and chief engineers, but not to the pilots. For example, the Memo Book contains an entry that gives the captain responsibility for requisitions and states that in the captain’s absence the chief engineer will sign the requisition forms. GC 46, Memorandum 3.010 (9/30/98). A memorandum, dated October 9, 1996, states that the responsibility for the distribution of safety gloves is “in the hands of the Mates . . . but the overall responsibility still lies with the Captain as it does for everything on Board.” GC Exh. 54 (10/9/96). Documents created by the Respondent at the time of the strike also indicate that it considered pilots to be non-supervisory employees, and did not, as it now contends, always view its pilots as supervisors. During the strike the Respondent sent letters to pilots, over the signature of then-president Craig Fischer (and apparently drafted largely by Creviston), which read in relevant part: Pilots have asked about the procedures to be followed should they desire to return from the strike. We recognize that employees have the protected right to take concerted action by not returning to their jobs during an economic strike. Any pilot who wishes to return to work is welcome to request to do so and, upon receiving an assignment, to return to whichever line boat the pilot may be assigned to by the Company. . . . Those pilots who remain on strike will not earn wages or benefits from ARTCO for the duration of the strike and remain subject to being permanently replaced. GC Exh. 39, Page 2. Captains, on the other hand, received a written communication stating that they were “ARTCO supervisor[s]” and as such had “NO PROTECTED RIGHT TO STRIKE under the National Labor Relations Act” and would be terminated if they participated in the strike. GC Exh. 35a. The Respondent points to documents which it claims support its litigation position that line boat pilots have always been supervisors. The Respondent notes in particular a memorandum, dated August 1, 1990, R. Exh. 8a, which while not addressed to pilots, TR. 1680–1681, states that “you [,the captain,] and the other officers of your boat are management personnel and as such, you are to counsel” problem employees, and complete a counseling form. The Respondent argues that this memorandum applies to pilots since they receive its “officers’ benefits.” However, the evidence showed that officers’ benefits are provided to a number of employees who are not officers, Tr. 1440, including, apparently, assistant engineers and office personnel. Tr. 1319, Tr. 1777. Thus, the fact that pilots receive “officers’ benefits” does not mean that they are officers, or that the August 1 memo applied to them. Moreover, even management official Hopkins conceded that being an officer does not equate with any particular authorities. Tr. 1438. Management official Cook stated that he was not aware of a pilot ever completing one of the counseling forms that the memorandum says “officers” are required to complete. The Respondent also notes that the payroll code “101” signifies “ARTCO SUPV”—presumably standing for “ARTCO supervisor”—and that personnel records show that pilots were designated “101.” Respondent’s Brief at 58–59. However, the evidence shows that the “101” payroll code is also applied to the assistant engineer position, R. Exh. 25, even though assistant engineers are, according to the Respondent, not supervisors. Moreover, I consider documentation regarding titles much less significant than the documentation regarding the actual authorities, duties and responsibilities of the crew members. As discussed above, the latter type of documentation reveals that the Respondent repeatedly excluded pilots from the group of persons exercising supervisory responsibilities. The Board has affirmed the view that it is an individual’s actual powers, duties and responsibilities that determine whether he or she is a supervisor, not the individual’s title. Carlisle Engineered Products, Inc., 330 NLRB 1359 (2000); Chevron U.S.A., 309 NLRB 59, 61 (1992) (“[j]ob titles are unimportant”); Walla Walla Union Bulletin, Inc. v. NLRB, 631 F.2d 609, 612–613 (9th Cir. 1980) (“[T]he specific job title of the employees is not controlling.’”) In summary, while the Respondent maintains an extensive collection of organizational and procedural memoranda and documents, and while many of these clearly give supervisory authorities to captains they, without meaningful exception, show that pilots are not possessed of such authority. The documents from the period prior to May of 1999 create a very consistent and clear picture: the mate directs the work of the deck crew and performs this function under the captain’s oversight and direction; the pilot does not supervise the deck crew or anyone else aboard the boat and tow. The supposedly contrary documentary evidence relied on by the Respondent is at best stray droplets of spray from a current of evidence that is flowing powerfully in another direction. c. Credibility of Testimonial Evidence Regarding Pilots’ Status and Functions In general I found the testimony of the General Counsel’s witnesses more credible than that of the Respondent’s witnesses regarding the status and functions of pilots. In partciular, I found the testimony of Lavon R. “Rod” Church (pilot with Respondent), Tony Reames (pilot with Respondent), Thomas Mason (pilot with Respondent), and Jeremiah L. Long, Jr. (former Respondent pilot, recently promoted to probationary captain at time of testimony) very credible on the subject of the functions of the Respondent’s pilots. I base this on the demeanor of each of these witnesses on the stand. Generally, these witnesses appeared to testify in a forthright and cooperative manner. What the Respondent attempts to characterize as instances of self-contradiction or evasiveness during their testimony are, by-and-large, more accurately seen as disagreements over semantics, and do not alter my impression that these witnesses testified truthfully regarding those matters.[15] In addition, I based my conclusion regarding credibility on the plausibility of the testimony of Church, Reames, Mason, and Long in light of the totality of the evidence.[16] The Respondent forwards myriad
arguments regarding the credibility of the General Counsel’s witnesses,
only a few of which warrant discussion.
The Respondent argues repeatedly in its brief that Long cannot be
credited because he gave the “ridiculous” and “outlandish”
testimony that he had never used a lookout on the upper The Respondent also asserts that Long should not be believed because he stated that the captain is not “in command” of the after watch, a view that was contrary to the testimony of other witnesses for the General Counsel. R. Br. at 35, 85. However, Respondent itself has issued a document that corroborates Long’s view that the captain is in command of the after watch. In that document the Respondent emphatically states that the “(Captain) is in complete command of all phases of vessel operation at all times.” GC Exh. 76, Page 2 (emphasis original). Therefore, I do not believe that Long’s statement that the captain, not the pilot, is in command of the vessel on the after watch is incredible, or even necessarily inaccurate. On the other hand, a number of
the Respondent’s most important witnesses had very real credibility
problems. Port captain
Hopkins claimed that pilots had an array of supervisory responsibilities
prior to May of 1999 that were not documented in any way.
I am unwilling to take I did not find Wilken to be a
very credible witness regarding the duties of mates based on his demeanor
and testimony which was evasive on cross examination.
Wilken gave the distinct impression on multiple occasions that he
was relying on feigned confusion and convenient memory lapses to avoid
giving testimony unfavorable to the Respondent.
He also was prone to changing his testimony mid-stream.
For example, he first testified that after the union lost the
election he was aware that there was still “union activity out there”
prior to May of 1999 (and, therefore, before the start of the alleged
unfair labor practices), Tr. 665–666, but then he reversed himself and
asserted that he was not aware of this activity until “June-ish” of
1999, Tr. 666–668 (and, therefore, after the start of the alleged unfair
labor practices). Wilken
claimed that pilots had actually exercised various supervisory functions
prior to May of 1999, but when asked to recount specific instances of such
exercises he was often unable to do so.
Most notably, Wilken testified that it was “not uncommon” for a
pilot to recommend either suspension or termination of a crew member, Tr.
781, but he was unable to recount a single instance where a pilot had done
so. I also found Respondent’s witness Randy Lee Johnsen (captain and former pilot with the Respondent) very lacking in credibility based on his demeanor which was difficult, hostile and unusually uncooperative on cross examination. At times his testimony left no doubt in my mind that he was shading his account liberally to favor the Respondent’s position. For example, during cross examination regarding the pil |
