Brusco Tug & Barge Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 26, 2001 Decided May 1, 2001

No. 00-1183

Brusco Tug & Barge Co.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Thomas M. Triplett argued the cause for petitioner. With

him on the brief was Karen O'Kasey.

Christopher W. Young, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Leonard R. Page, General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, and Margaret

A. Gaines, Supervisory Attorney.

Before: Williams, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Rejecting petitioner's argument that

mates on its tugboats are supervisors within the meaning of

the NLRA, the National Labor Relations Board found that

petitioner, by interfering with its mates' right to organize,

committed an unfair labor practice. Because the Board failed

adequately to explain its decision, we deny enforcement and

remand for further proceedings.

I

Section 8(a)(1) of the National Labor Relations Act prohib-

its employers from interfering with their employees' right to

organize. 29 U.S.C. s 158(a)(1) (referring to the rights guar-

anteed in id. s 157). The Act's definition of protected "em-

ployee[s]" excludes "any individual employed as a supervisor."

Id. s 152(3). A "supervisor" is:

any individual having authority, in the interest of the

employer, to hire, transfer, suspend, lay off, recall, pro-

mote, discharge, assign, reward, or discipline other em-

ployees, 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 au-

thority is not of a merely routine or clerical nature, but

requires the use of independent judgment.

Id. s 152(11).

Petitioner Brusco Tug & Barge Co. tows and transports

cargo along the West Coast. Brusco tugs tow log, chip and

sand barges, as well as target sleds for the United States

Navy. Approximately twenty-five tugs operate out of Brus-

co's home port in Cathlamet, Washington, performing both

inland and offshore jobs. Manned by a master (also called a

captain) and one deckhand, inland tugs primarily perform day

jobs on the Columbia River. Offshore tugs--the focus of this

case--take thirty-day trips along the Pacific coast, ranging as

far north as Vancouver and as far south as Mexico. Offshore

crews include a master, a mate, an engineer and one (or

sometimes two) deckhands.

While at sea, offshore crews typically work six-hour shifts

assigned by the master. The master and a deckhand or

engineer alternate shifts with the mate and the other crew-

men. Some tasks require participation of the entire crew;

for instance, all crewmen work together to tie a barge to the

tugboat. While the master maneuvers the boat, the mate

directs the crewmen on the deck, coordinating the passing of

the lines. The mate also selects a crewman to board the

barge and pass its towing bridle to crewmen on the tug.

In October 1999, while the International Organization of

Masters, Mates, and Pilots was engaging in an organizing

campaign at Brusco's home port, the company's owner, Bo

Brusco, sent a letter to his masters and mates, stating that

"masters and mates are management" and would be terminat-

ed if they engaged in any organizing activity. Claiming that

the letter interfered with the masters' and mates' right to

organize, the union filed an unfair labor practice charge.

Shortly thereafter, an NLRB hearing officer heard evi-

dence in a different matter regarding Brusco--defining the

collective bargaining unit for the purposes of the upcoming

union election. Brusco Tug & Barge Co. v. Int'l Org. of

Masters, Mates, & Pilots, No. 19-RC-13872 (Nov. 26, 1999).

Over Brusco's objection, the officer ruled that mates should

be included in the bargaining unit. Although recognizing that

mates assign and direct other crewmen during tie-ups, he

thought such actions required no independent judgment with-

in the meaning of NLRA section 2(11) and were therefore not

indicative of supervisory status. Id. at 6-7. He agreed with

Brusco, however, that its masters were supervisors and there-

fore ineligible for inclusion in the bargaining unit. Id. at 6.

A divided Board rejected Brusco's request for review of the

hearing officer's determination.

A few months later, the Board addressed the union's still-

pending charge that Bo Brusco's October 1999 letter amount-

ed to an unfair labor practice. Not disputing that its letter

interfered with the mates' ability to organize, Brusco renewed

its argument that mates are statutory supervisors who lack

the right to organize under the Act. Because the Board had

already determined that Brusco's mates are employees within

the meaning of the statute, it granted summary judgment

against the company. Brusco Tug & Barge Co., 330 N.L.R.B.

No. 169 (April 11, 2000), 2000 WL 420606, at *3.

Insisting that its mates are supervisors, Brusco petitions

for review. The company argues that its mates perform a

wide range of supervisory tasks, and that the Board imper-

missibly departed from precedent in deeming them employ-

ees. The Board cross-applies for enforcement.

II

"Because of its expertise, the Board necessarily has a large

measure of informed discretion" in determining if a worker is

a supervisor. Passaic Daily News v. NLRB, 736 F.2d 1543,

1550 (D.C. Cir. 1984) (internal citation omitted). We will

overturn the Board's finding that Brusco's mates are statuto-

ry employees only if it is contrary to law, inadequately

reasoned, see NLRB v. Health Care & Retirement Corp. of

America, 511 U.S. 571, 576 (1994), or unsupported by sub-

stantial evidence, Passaic Daily News, 736 F.2d at 1550. In

this circuit, moreover, the burden of proving supervisory

status rests on the party that asserts it--here, Brusco. See

Beverly Enters.--Mass., Inc. v. NLRB, 165 F.3d 960, 962

(D.C. Cir. 1999). Unless Brusco demonstrates otherwise, the

Board may thus presume that the mates are employees

rather than supervisors.

Citing Board decisions finding tugboat captains and mates

to be supervisors, Brusco argues that mates, as a category,

may not be considered employees. We disagree. Because

the issue of supervisory status is heavily fact-dependent and

job duties vary, per se rules designating certain classes of

jobs as always or never supervisory are generally inappropri-

ate. See Ky. River Comty. Care, Inc. v. NLRB, 193 F.3d 444,

453 (6th Cir. 1999), cert. granted, 121 S.Ct. 27 (2000). To

meet its burden therefore, Brusco must do more than cite

other cases finding mates to be supervisors; it must prove

that its mates actually perform one or more of the superviso-

ry tasks listed in NLRA section 2(11), and that, in doing so,

they use "independent judgment."

Brusco next relies on its "Responsible Carrier Operation

Plan," a voluntary plan drafted as part of a safety program

sponsored by the American Waterways Association. Accord-

ing to Brusco, because the plan provides that "in [the mas-

ter's] absence, his relief, the mate, is the master," Pet'r Br. at

7, and because the hearing officer found that Brusco's mas-

ters were supervisors (because they use independent judg-

ment in recommending transfer and promotion, as well as

directing and assigning crewmen), its mates are also supervi-

sors. Responding, the Board disputes not only that the

plan's provisions give mates all authority granted to masters,

but also that the plan, which the company intended only as a

"guideline," delegates any authority at all. Hearing Tr. at

163, Brusco Tug & Barge Co., No. 19-RC-13872. In any

event, as the Board points out in its brief, paper authority

alone does not make a worker a supervisor. See Beverly

Enters., 165 F.3d at 962 (citing Food Store Employees Union,

Local 347 v. NLRB, 422 F.2d 685, 690 (D.C. Cir. 1969)).

Brusco must provide specific evidence that its mates actually

exercise supervisory authority.

Before the hearing officer, Brusco proved that its mates

perform two of the supervisory tasks listed in the statute:

"assign[ing]" and "direct[ing]" crewmen during the tie-up.

Brusco Tug & Barge Co., No. 19-RC-13872, at 6. Because

the hearing officer considered these tasks "routine" and not

to "require[ ] the use of independent judgment," 29 U.S.C.

s 152(11), however, he rejected Brusco's argument that the

mates were statutory supervisors. Brusco Tug & Barge Co.,

No. 19-RC-13872, at 6-7.

Direction

The "direction of the 'work force' (two or possibly three

[crewmen])," the hearing officer concluded, "hardly indicates

the need for independent judgment beyond that of an experi-

enced hand." Id. In its brief before us, the Board elabo-

rates: "[t]hose orders simply embody the mates' greater

skills and experience, not managerial prerogatives." Resp't

Br. at 17.

Brusco argues that the Board's decision conflicts with two

cases in which the Board found tugboat workers to be super-

visors based on their direction of crewmen: Local 28, Inter-

national Organization of Masters, Mates & Pilots, 136

N.L.R.B. 1175 (1962), enforced, 321 F.2d 376 (D.C. Cir. 1963)

and Bernhardt Bros. Tugboat Serv., Inc., 142 N.L.R.B. 851,

enforced, 328 F.2d 757 (7th Cir. 1963). Neither the hearing

officer nor the Board addressed these two cases. While the

Board need not address every precedent brought to its

attention, it must provide an explanation where its decisions

appear to be "on point." See Gilbert v. NLRB, 56 F.3d 1438,

1448 (D.C. Cir. 1995); see also id. at 1445-48; New England

Grain & Feed Council v. ICC, 598 F.2d 281, 285 (D.C. Cir.

1979) ("While we are somewhat disturbed by the Commis-

sion's failure to explain why [an asserted precedent] is inap-

plicable here, that case is sufficiently distinguishable to as-

sure that the Commission's oversight does not present a

danger that it has arbitrarily departed from its own prece-

dents.").

According to Brusco, Local 28 and Bernhardt Brothers are

both on point because, it claims, the direction given by the

workers in the two cases is similar to that given by Brusco's

mates. In Local 28, the Board found that mates' direction of

crewmen "during locking and docking operations and in

emergency situations ... involve[d] the exercise of indepen-

dent judgment in the issuance of orders to deckhands and

other deck employees." Id. at 1203. The direction provided

by Local 28's mates--coordinating crewmen in passing lines,

id. at 1192--does indeed resemble the direction given by

Brusco's mates. In its appellate brief, the Board attempts to

distinguish Local 28, arguing that the mates in that case "had

authority to issue orders to employees under pain of disci-

pline." Resp't Br. at 24. This is no real distinction. As we

read the hearing officer's findings, surely the crewmen on

Brusco's tugs were not free to ignore mates' commands.

Applying the definition of supervisor in NLRA Section 2(11),

the officer conceded that Brusco's mates "direct[ed]" crew-

men, characterizing them as "boss[es] on deck." Brusco Tug

& Barge Co., No. 19-RC-13872, at 3, 6. He based his

conclusion that Brusco's mates are statutory employees not

on any suggestion that their direction is ineffective, but on his

view that their actions require no independent judgment.

Moreover, the Local 28 Board expressly declined to base its

determination that the mates were supervisors on their power

to implement or recommend discipline. 136 N.L.R.B. at 1203.

In that case, the authority to discipline came solely from the

master: "[o]nly the master may enforce discipline on his

boat." Id. at 1193.

Similarly, in Bernhardt Brothers, the hearing officer found

that Bernhardt's pilots were supervisors because while on

watch they "give[ ] orders to the crew in connection with the

tow, the lookout, and the amount of power needed." 142

N.L.R.B. at 854. Although this, too, appears similar to

Brusco's mates responsibilities, the Board's brief makes no

serious effort to distinguish Bernhardt Brothers. It asserts

only that "all such cases are necessarily fact specific" and that

there is no evidence that Brusco's mates' direction occurs

while they are on watch, Resp't Br. at 21 n.5, giving no reason

why direction on watch should be different from direction

exercised at other times.

Because it is "axiomatic that an agency adjudication must

either be consistent with prior adjudications or offer a rea-

soned basis for its departure from precedent," Conagra, Inc.

v. NLRB, 117 F.3d 1435, 1443 (D.C. Cir. 1997) (internal

citation omitted), we will remand for the Board to explain

why its decision in this case is not inconsistent with Local 28

and Bernhardt Brothers, or, alternatively, to justify its appar-

ent departures.

The Board's approach to the direction issue on remand will

doubtless be affected by the Supreme Court's forthcoming

decision in NLRB v. Kentucky River Community Care, Inc.,

No 99-1815 (argued Feb. 21, 2001). There, the Sixth Circuit

had rejected the Board's argument that nurses are not super-

visors because their direction of nurse's aides arises "by

virtue of their training and expertise, not because of their

connection with 'management.' " Ky. River Comty. Care,

Inc. v. NLRB, 193 F.3d 444, 453 (6th Cir. 1999). The

Supreme Court granted certiorari to consider the viability of

the Board's expert employee approach, NLRB v. Ky. River

Comty. Care, Inc., 121 S.Ct. 27 (2000), precisely the theory

the hearing officer relied on in finding that Brusco's mates'

direction of crewmen involved no independent judgment.

Assignment

The hearing officer found that the mates' assignment re-

sponsibilities were not indicative of supervisory status, stat-

ing: "[The mates] do assign work, but there is no indication it

requires independent judgment. Their heaviest 'assignment'

option seems to be selecting the more agile of two or three

crewmen to go aboard a barge for the attachment of the

towing bridle." Brusco Tug & Barge Co., No. 19-RC-13872,

at 6. The officer apparently based this conclusion on the

testimony of one of Brusco's masters, who stated that both he

and the mate assign crewmen during tie-up:

Well, we have some deck hands around that--say they

cook really well and they paint really well, but they've

got a bum knee, so that's the deck hand you don't want

to have running up and down the barge. So you keep

him aboard to handle the lines on board. There's other

deck hands that are very athletic, but they can't cook

very well, so those are the ones you send up on the barge

to do the work up there. You know, it's however the job

fits them, that they get the job.

Hearing Tr. at 125, Brusco Tug & Barge Co.,

No. 19-RC-13872. According to the Board, determining who

has a "bum knee" or who cooks well is so simple that

assignment based on these factors requires the exercise of no

independent judgment: "[s]uch an obvious choice falls far

short of the type of assignment of work based on an indepen-

dent assessment of an employee's skills that would require

the Board to find that a mate was a supervisor." Resp't Br.

at 16.

Although this approach may well be permissible, we have

some doubt about the Board's reasoning. Courts typically

consider assignment based on assessment of a worker's skills

to require independent judgment and, therefore, to be super-

visory. See Alois Box Co., Inc. v. NLRB, 216 F.3d 69, 73-75

(D.C. Cir. 2000) (upholding the Board's finding of supervisory

status based in large part on the fact that the worker made

"his own assessments of employees' skills or expertise");

Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259, 1265 (11th

Cir. 1999); American Diversified Foods v. NLRB, 640 F.2d

893, 896 (7th Cir. 1981); NLRB v. Pilot Freight Carriers, Inc.

558 F.2d 205, 209-210 (4th Cir. 1977). But see Providence

Alaska Med. Ctr. v. NLRB, 121 F.3d 548, 552 (9th Cir. 1997)

(finding no independent judgment even though assessment of

skills required). This appears to be the rule in at least one

circuit even where, as here, the assessment rests on quite

simple factors. See Dynamic Mach. Co. v. NLRB, 552 F.2d

1195, 1201 (7th Cir. 1977) (noting that the Board found a

worker a supervisor despite the fact that his assignment

"options were limited and only a few factors needed to be

taken into account in assigning work"); NLRB v. Adam &

Eve Cosmetics, Inc., 567 F.2d 723, 728-729 (7th Cir. 1977)

(overturning the Board's determination that a worker was not

a supervisor, reasoning: "That the choices [the worker] had

in assigning and directing work were severely circumscribed

by the menial nature of the tasks performed and the limited

skills of his coworkers ... does not mean that [he] was not

called upon to use his own judgment in the course of the

job."); American Diversified Foods, 640 F.2d at 896 (over-

turning ALJ determination that worker was not a supervisor,

despite fact that assignment operated within "common sense

limitations") But see NLRB v. Hilliard Development Corp.,

187 F.3d 133, 146 (1st Cir. 1999) (upholding the Board's

determination that "although the nurses consider the needs of

individual residents, the matching of skills to requirements

was essentially routine.")

Brusco cites none of these cases, however, nor does it even

seem to challenge this aspect of the Board's reasoning. Not

only does Brusco devote only two sentences in the fact section

of its brief to assignment (and these do no more than point

out that Brusco's mates "assess the relative ability and physi-

cal capabilities of the deckhands" in assigning employees,

Pet'r Br., at 9-10), but more important, Brusco failed to raise

this issue before the Board. See 29 U.S.C. s 160(e) ("No

objection that has not been urged before the Board ... shall

be considered by the court"). We thus treat this issue as

waived.

III

We deny enforcement and remand to the Board for further

proceedings consistent with this opinion.

So ordered.