The opinion
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 2004 Decided April 2, 2004
No. 03-1129
EVERGREEN AMERICA CORPORATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO,
INTERVENOR
Consolidated with
03-1146
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Steven M. Swirsky argued the cause for petitioner. With
him on the briefs were Elliot Jay Mandel and Michael F.
McGahan.
Ruth E. Burdick, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Frederick L. Corn-
nell, Jr., Supervisory Attorney.
Herzl S. Eisenstadt argued the cause for intervenor. With
him on the brief were Ernest L. Mathews, Jr. and John P.
Sheridan. Elizabeth A. Alexander entered an appearance.
Before: EDWARDS, GARLAND and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: On June 20, 2002, the Interna-
tional Longshoremen’s Association, AFL-CIO (‘‘Union’’), filed
a representation petition with the National Labor Relations
Board (‘‘NLRB’’ or ‘‘Board’’), pursuant to Section 9(c) of the
National Labor Relations Act (‘‘Act’’), 29 U.S.C. § 159(c)
(2000), seeking an election to become the exclusive bargaining
agent for Port Captains, Assistant Port Captains, and Port
Engineers employed by Evergreen America Corporation
(‘‘Evergreen’’ or ‘‘Employer’’). The Employer opposed the
proposed bargaining unit on the ground that the five persons
in the unit were managerial employees and therefore exclud-
ed from coverage under the Act. Following a hearing, the
Acting Regional Director issued a decision holding that the
disputed employees were not excluded managers and ordered
an election. See Evergreen Am. Corp., N.L.R.B. Case No. 22-
RC-12225 (Aug. 14, 2002) (‘‘Representation Decision’’), re-
printed in Joint Appendix (‘‘J.A.’’) 541-60. The Employer
then sought review by the Board. A secret ballot election
was held on September 10, 2002, and the ballots were im-
pounded pending a decision from the Board. On October 18,
2002, the Board denied the Employer’s request for review.
On November 15, 2002, after the ballots had been counted,
the Acting Regional Director certified the Union as the
3
exclusive bargaining representative of the employees in the
contested unit.
In order to obtain judicial review of the Board’s certifica-
tion decision, Evergreen refused to recognize and bargain
with the Union. Evergreen also refused to provide informa-
tion sought by the Union relating to existing employee benefit
plans. On January 9, 2003, the Union filed an unfair labor
practice charge with the NLRB. A complaint was then
issued, alleging that the Employer’s refusals to bargain and
furnish information violated sections 8(a)(5) and (1) of the Act,
29 U.S.C. § 158(a) (2000). The Employer filed an answer
admitting the refusal to bargain, but challenging the validity
of the Board’s certification. The Board subsequently granted
the General Counsel’s motion for summary judgment, holding
that the Employer had violated sections 8(a)(5) and (1) as
charged. See Evergreen Am. Corp., 338 N.L.R.B. 156, 2003
WL 1963885 (2003). Evergreen petitions this court for re-
view of that order, and the Board cross-applies for enforce-
ment.
The only issues on appeal are whether substantial evidence
supports the Board’s determination that the Port Captains,
Assistant Port Captains, and Port Engineers in the contested
bargaining unit are ‘‘employees’’ under the Act and whether
the Board’s determination is consistent with the Act. On the
record at hand, we find no basis upon which to overturn the
Board’s judgment. We therefore deny Evergreen’s petition
for review and grant the Board’s cross-application for en-
forcement.
I. BACKGROUND
The hearing on the representation petition included testi-
mony from Chia-Lin Chen, Evergreen’s Junior Vice President
and Marine Department head, Charles Meng, an Assistant
Port Captain, Lie-Cheng Yang, a Port Captain, and Johnnie
Chen, Manager of the Marine Section. The facts elicited at
the hearing are largely undisputed. We reprint them here:
4
a. Background
The Employer is a New Jersey corporation, with
its office located in Morristown, New Jersey. The
Employer is a general shipping agent for Evergreen
Marine Corporation (‘‘EMC’’), a company located in
Taipei, Taiwan that owns and operates approximate-
ly 50 ships used to transport cargo in containers for
its customers to various ports around the world. In
the New York City area, EMC’s ships berth at
Maher Terminal, a 400-acre terminal in Elizabeth,
New Jersey.
The Employer is responsible for the loading and
unloading of EMC’s vessels at Maher Terminal (‘‘the
Terminal’’). Neither the Employer nor EMC own
the Terminal. Rather, the Employer contracts with
the Terminal for terminal services, meaning that the
Terminal provides a berth for ships owned or char-
tered by EMC as well as stevedore services, mean-
ing that the Terminal provides employees called
‘‘stevedores’’ to unload and load cargo. The steve-
dores are employees of the Terminal. Other ship-
ping companies berth ships at the Terminal. Usual-
ly, three of EMC’s ships arrive at the Terminal each
week. After berthing in Elizabeth, the ship travels
to other ports in Europe or on the East Coast of the
United States, such as Baltimore or Savannah. On
any given day, the Employer stores two or three
thousand containers at Maher Terminal.
The five petitioned-for employees work in the
Employer’s Marine Section, which also includes a
section manager, an assistant manager and a general
staff person. The petitioned-for employees report to
the New York City Marine Section Manager who
reports to the Junior Vice-president who heads the
Marine Department. The Marine Department Jun-
ior Vice-President also supervises the Marine Sec-
tion Manager in Salt Lake City and the Marine
Section Manager in Los Angeles. The Marine De-
partment Junior Vice President reports to the Exec-
utive Vice-president for Marine and Logistics. In
5
its organizational chart, the Employer designates
personnel at the level of Executive Vice-president
and above as ‘‘management.’’
b. The Port Captains
The parties have stipulated that the duties of the
Port Captains and the Assistant Port Captain are
the same. The Port Captains and Assistant Port
Captain are responsible for preparing a schedule for
unloading and loading the ship, preparing a plan for
loading its cargo, acting as a liaison between the ship
and the port, and monitoring the unloading and
loading of cargoTTTT
The Port Captains remain at the Employer’s Mor-
ristown office until a ship comes in. When a ship
arrives, they work in the terminal, monitoring the
loading and unloading of the ship. The Port Cap-
tain’s manager records when the Port Captain leaves
the office and returns from working in the terminal.
The Port Captains have their own desks in Morris-
town, but do not have individual offices at the Mor-
ristown facility. The Port Captains’ manager works
in the Morristown office where he usually remains.
The Port Captains must be available to management
by phone at all times. The Port Captains’ manager
testified that the Port Captains contact him through-
out the day to ‘‘keep [him] informed’’ on situations.
The Port Captains’ manager testified that Port Cap-
tains can handle routine matters, but they consult
with him on non-routine matters or emergencies,
matters involving significant costs and matters not
covered by guidelines previously given to the Port
Captains. The Employer has issued detailed de-
scriptions of the Port Captain’s functions, but con-
cedes that these may not reflect actual practice. A
Port Captain cannot approve payment of checks by
the Employer’s accounting department. In a con-
flict between the Port Captain and the Ship Captain
or the Chief Mate, the ship personnel prevail.
6
i. Preparation of Prospect Reports
Approximately one week before a ship is sched-
uled to arrive at the Terminal, the Port Captain
compiles a projected schedule for the ship’s activity
at the Terminal, called a prospect report. The
prospect report includes the dates the ship will
berth, the estimated time of arrival, the estimated
time the ship will berth, the times that unloading
and loading, referred to as ‘‘cargo activity,’’ will
begin and finish, the total number of container
movements, the number of labor gangs ordered, the
hours they will work and the estimated time of
departure. Some of the information on the prospect
report is supplied from various departments within
the Employer. The Port Captain does not change
the ship’s overall schedule, which has been deter-
mined by the Employer’s Project Department and
cannot be changed without the agreement of the
Port Captain’s manager.
The Port Captain obtains the estimated time of
the ship’s arrival from the Project Department. It
generally takes three and one-half hours after the
ship arrives at the harbor to get to its berth in the
Terminal. The Employer advises the Port Captain
of the total number of containers to be unloaded and
loaded, or container ‘‘movements.’’
The Port Captain adds to the prospect report the
planned times that cargo activity will begin and end.
He also adds the estimated number of labor gangs
requested. He arrives at these figures by making
mathematical calculations. He is limited by the
ship’s overall schedule. Normally a ship is in port
for about 24 hours. He knows the number of con-
tainers that a crane can move within an hour. Pur-
suant to Terminal procedure, one labor gang works
with each crane. He knows the number of cranes
that can safely be operated on a ship. The number
of container movements and the length of time that
the ship will be berthed determine the number of
7
labor gangs he requests. For example, a Port Cap-
tain may be told that a ship can be in port 20 hours
and will need 2,000 moves. He knows he must move
100 containers an hour and that a crane can move 25
moves per hours [sic], so he will figure on using four
cranes and four labor gangs to move the containers.
The Junior Vice-President testified that in sched-
uling cargo activity, the Port Captain takes into
account the start times of the stevedores, who start
at 7 or 8 AM, 1 PM or 7 PM. He testified that the
Port Captain tries to schedule cargo activity to avoid
paying overtime costs, and to use the stevedores
during the day when it is less expensive to pay them,
as opposed to at night. The Port Captain may
recommend that the Ship Captain speed up to arrive
in the Terminal at a time that is economical for
cargo activity.
The Port Captain’s manager reviews each pros-
pect report. At the beginning of each week, the
Port Captain’s Manager contacts an administrator at
the Terminal to review with him the schedules of
EMC’s ships coming into the terminal that week.
After Terminal personnel learn the schedules of all
of its customers, a Terminal representative will con-
tact the Port Captain to tell him how many cranes
and workers will be available for each ship. If the
Terminal advises that the number of stevedores is
different than that requested by the Employer, the
Port Captain will report this to his manager. If
there is a conflict in which two vessels owned or
chartered by EMC are scheduled to berth at the
same time, the Port Captain’s manager will decide
how many gangs are assigned to each vessel.
The number of gangs assigned to a ship is ulti-
mately decided between the Terminal manager and
the Port Captain’s manager. Subsequently, if a ship
is behind schedule, the Port Captain may, in consul-
tation with his Manager, request that the Terminal
8
provide additional labor to shorten the period of
cargo activity.
ii. Preparation of Stowage Plans
The process of loading cargo is termed ‘‘stowage.’’
Prior to the arrival of a ship, the Port Captain
prepares a stowage plan, which is a diagram showing
the placement of cargo to be loaded onto the ship.
In making the stowage plan, the Port Captain aims
to load the cargo efficiently, and to load the ship to
its maximum capacity while maintaining the ship’s
stability. The Port Captain starts with a computer-
ized floor plan of the bays in the ship where cargo
can be stored. EMC’s ships have ten different floor
plans. The Port Captain looks at the previous stow-
age plan’s designation for the containers to be un-
loaded to determine what space will be available for
loading. He is told the weight of the cargo the ship
can handle. He contacts the Employer’s Export
Department to find out the size and weight of the
cargo to be loaded. The Employer generally uses
three sizes of containers. There may be oversized
cargo to be loaded onto the ship. The Port Captain
considers the sequence of ports in the ship’s route.
He plans to load heavier cargo at the bottom of the
ship. The Port Captain takes into account the num-
ber of cranes available at the port where cargo will
be unloaded. A Port Captain will spread out cargo
to conform with the positioning and number of
cranes at the destination port. The Port Captain
also considers whether cargo is hazardous. He must
follow federal regulations and the International Mar-
itime Code in the manner these containers are han-
dled. He must get approval from his manager if he
deviates from these guidelines. He learns from the
Employer whether containers must be kept refriger-
ated and therefore require access to electricity. The
Port Captain knows where electrical outlets are
located on the various ships. The Export Depart-
ment advises him the day before the ship comes in if
9
military containers will be loaded and if so, the
weight, size and destination of such containers.
The Employer gives the Port Captain specific
guidelines as to how space on the ship is to be used.
The Port Captain uses a computer to superimpose
onto the floor plan a diagram showing where con-
tainers going to the various ports will be placed. He
uses a hydrostatic table to evaluate the ship’s stabili-
ty after cargo is loaded according to the stowage
plan.
If a ship will berth between 3:30 AM and 5:30 PM,
the Port Captain must complete the stowage plan
the night before the ship will berth. If the ship is to
be berthed after 5:30 PM, the Port Captain must
complete the plan before noon on that day. The
Port Captain submits the stowage plan to his man-
ager, and to his manager’s supervisor for review.
The Port Captain must review the stowage plan with
the ship’s Chief Mate, who is in charge of the ship’s
cargo, to determine if it is in conflict with a previous
stowage plan.
iii. Liaison Between Ship and Port
The Port Captain notifies the Coast Guard 96
hours before a ship arrives to advise the Coast
Guard of the ship’s estimated time of arrival and
departure. The Employer’s Junior Vice President
characterized this procedure as ‘‘routine.’’ If the
Coast Guard changes the ship’s schedule, then the
Port Captain must notify his manager. The Port
Captain must tell the Coast Guard the names of the
crew, and their date of birth, nationality and position
aboard ship. The Coast Guard usually performs a
safety inspection, during which the Port Captain is
present. During such an inspection, the Coast
Guard typically checks hazardous containers. If the
Coast Guard finds unsafe conditions on the ship, the
Port Captain will ask the Ship Master or Ship
Engineer [to] repair the condition. The Port Cap-
10
tain may arrange for a surveyor, who is a licensed
marine engineer designated by the Employer to
inspect repairs. The Port Captain cannot authorize
a repair. If a repair cannot be completed before the
ship is scheduled to depart, the Port Captain will
contact his manager.
The Employer has contracted with various ven-
dors to supply services to the ship while it is in port,
including a tugboat company to provide tugboats, a
piloting company to provide pilots to maneuver the
boat in the harbor, the Terminal to supply linemen
to tie the ship to the terminal, and a husbandry
agent to assist in clearing customs. The Marine
Department Junior Vice-President, or the Junior
Vice-President in conjunction with his supervisor,
determines with which vendor the Employer con-
tracts. EMC has contracted with a bunker oil sup-
plier to provide bunker oil. The Ship Captain deter-
mines the number of tugboats needed. Each ship
requires two pilots. EMC determines how much
bunker oil will be supplied.
The Port Captain arranges for tugboats, pilots,
linemen, a husbandry agent and bunker oil. These
contacts are, as one of the Employer’s witnesses
acknowledged, routine. If a Port Captain learns
that any vendor with whom the Employer has a
standing arrangement cannot meet the needs of a
particular ship, then the Port Captain notifies his
manager. The Junior Vice-President may consult
with the Port Captains as to the performance of the
various services with whom the Employer contracts.
The Port Captain communicates with the Ship
Captain. If the Ship Captain informs him that any
crew members need medical attention, the Port Cap-
tain works with his manager to arrange this. He
cannot arrange for medical attention on his own. If
a crew member is not able to rejoin the ship, the
Port Captain sees that the Immigration and Natu-
ralization Service is contacted and advises his man-
11
ager of the change so that the manager can deter-
mine if a substitute crew member is needed. The
Ship Captain may tell the Port Captain that he
needs money, charts or maps.
iv. Monitoring Unloading and Loading
The Port Captain monitors the unloading and
loading of the ship by the stevedores. The Port
Captain does not supervise the stevedores who are
supervised by employees of the Terminal. There
was a conflict between the parties’ proffered evi-
dence as to whether a Port Captain can, on his own,
hire a ‘‘reefer,’’ or refrigerator mechanic to assist in
unloading refrigerated containers.
The Port Captain brings any significant errors
involving unloading and loading to the attention of
his manager. He investigates unloaded damaged
containers and reports these to his manager. He
does not make the determination as to whether to
repair these containers. He has the discretion to
determine whether to load a damaged container.
The Port Captain may determine that time con-
straints do not permit loading all of the containers as
planned. In such a case, the Port Captain may
refrain from loading empty containers.
The Port Captain reports unusual incidents such
as a stowaway to his manager. There was testimo-
ny at the hearing about an incident where a crew
member did not show up at the ship’s scheduled
departure time. The Port Captain’s manager decid-
ed that the ship could not sail.
The Port Captains’ manager must approve any
significant change in the stowage plan made after he
has reviewed it. For example, if a customer asks for
change in number of containers to be loaded at a
particular port that will significantly impact upon the
weight of the ship’s cargo, then the Port Captain
must notify his manager, as well as the ship’s Chief
Mate. Or, if the Port Captain determines that the
12
placement of a hazardous container pursuant to the
stowage plan results in a potential unsafe condition,
he consults with his manager to decide whether to
withhold the hazardous container.
The Port Captain evaluates the stability of the
ship with a hydrostatic table once the cargo has been
loaded. The Chief Mate may adjust the ballast, a
tank on the ship that can be filled with water to
balance the ship, in response to the way the vessel is
loaded or unloaded. The Port Captain may make a
recommendation concerning the ballast.
v. Terms and Conditions of Employment
The Port Captain may sleep and take meals on the
ship while it berths. The Port Captain is entitled to
a meal allowance when his manager confirms that he
worked on a shift that entitles him to such allow-
ance.
The Port Captain does not attend management
meetings. The Employer gives a gold lapel pin to
its managers. The Employer does not give the Port
Captains or the Assistant Port Captain these lapel
pins. A Port Captain cannot authorize a visitor to
board a ship, although his manager can give this
permission.
The Port Captain usually works over 40 hours
weekly. He does not get overtime pay. He does
not punch a time clock. If he works a weekend day,
he gets day off. If he works 24 hours straight
through during the week, he gets four hours off.
vi. Education and Work Experience
The Employer requires the Port Captain to have
the equivalent of a bachelor’s degree in navigation.
The Employer prefers that a Port Captain have
experience as a ship captain.
b. The Engineer
The Engineer works in the Marine Section in the
Employer’s Morristown office until a ship arrives,
13
when he goes to the Terminal to see if the ship
needs assistance with a mechanical problem. He
works with the Ship Engineer to repair the ship, and
may arrange for the purchase of parts or obtain the
assistance of a mechanic. He does not actually
perform a repair. He may communicate with the
Coast Guard about an engine room failure or defi-
ciency. He is in charge of updating maritime engi-
neering certificates and insuring that a ship has a
certificate of financial responsibility concerning pol-
lution of the harbor. He reports to the Marine
Section Manager. He does not punch a time clock.
He has the equivalent of a bachelor’s degree in
engineering.
See Representation Decision, slip op at 3-13, J.A. 543-53.
Following the hearing, the Acting Regional Director issued
a decision on August 14, 2002, finding that the Port Captains,
Assistant Port Captains, and Port Engineers are not manage-
rial employees. Id. at 13-18, J.A. 553-58. In reaching this
result, the Acting Regional Director concluded:
I find no evidence that Port Captains formulate the
Employer’s business policies. I note that Port Cap-
tains work under the supervision of their manager
on all but routine matters. The degree to which
their actions are reviewed is inconsistent with mana-
gerial status. The evidence reveals that they lack
the requisite discretion and judgment, independent
of the Employer’s established policies, necessary to
confer managerial status upon them.
Id. at 14-15, J.A. 554-55 (citing NLRB v. Yeshiva Univ., 444
U.S. 672, 682-83 (1980)). The Representation Decision fur-
ther held that,
[w]hile work that is based upon technical and profes-
sional competence must necessarily involve the exer-
cise of discretion and judgment, technical and pro-
fessional employees who exercise such discretion and
judgment are not necessarily managerial employees.
14
General Dynamics Corp., 213 N.L.R.B. 851, 857-58
(1974).
Id. at 14, J.A. 554. In the General Dynamics decision cited
in the Representation Decision, the Board held:
Work which is based on professional competence
necessarily involves a consistent exercise of discre-
tion and judgment, else professionalism would not be
involved. Nevertheless, professional employees
plainly are not the same as management employees
either by definition or in authority, and managerial
authority is not vested in professional employees
merely by virtue of their professional status, or
because work performed in that status may have a
bearing on company direction. Likewise, technical
expertise in administrative functions which may in-
volve the exercise of judgment and discretion does
not confer executive-type status upon the performer.
A lawyer or a certified public accountant working
for, or retained by, a company may well cause a
change in company direction, or even policy, based
on his professional advice alone, which, by itself,
would not make him managerial.
213 N.L.R.B. at 857-58. Finally, the Representation Decision
concluded that the Port Engineer’s ‘‘[m]ere exercise of discre-
tion’’ did not endow him with managerial status. Representa-
tion Decision, slip op. at 18, J.A. 558. The Acting Regional
Director ordered an election in the disputed unit, id. at 18-19,
J.A. 558-59, and Evergreen filed a timely request for review.
On September 10, 2002, a secret ballot election was held,
but the ballots were impounded pending the resolution of the
Evergreen’s request for review. On October 18, 2002, the
Board denied Evergreen’s request for review. The impound-
ed ballots were then opened on November 13, 2002, and it
was determined that the Union had received a majority of the
votes cast. On November 15, 2002, the Acting Regional
Director certified the Union as the exclusive bargaining rep-
resentative of the employees. The Employer then filed a
15
motion for reconsideration with the Board, which the Board
denied on January 8, 2003.
Evergreen refused to bargain with the Union, and the
Union filed an unfair labor practice charge with the Board on
January 9, 2003. Evergreen filed an answer admitting its
refusal to bargain and attacking the validity of the Board’s
certification of the Union. On February 19, 2003, the NLRB
General Counsel filed a motion for summary judgment, to
which Evergreen responded by again challenging the validity
of the certification. On April 25, 2003, the Board issued a
Decision and Order granting the General Counsel’s motion
for summary judgment. The Board held that Evergreen
violated Section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a),
by failing and refusing to recognize and bargain with the
Union and by failing and refusing to provide the Union with
information it sought from Evergreen. Evergreen, 2003 WL
1963885 at *3.
II. ANALYSIS
A. Standard of Review
In considering Evergreen’s petition for review, we must
ask whether the Board’s determination that the Port Cap-
tains, Assistant Port Captains, and Port Engineers are ‘‘em-
ployees’’ under the Act ‘‘has warrant in the record and a
reasonable basis in law.’’ Seattle Opera v. NLRB, 292 F.3d
757, 761 (D.C. Cir. 2002); see also NLRB v. Hearst Publ’ns,
322 U.S. 111, 131 (1944). As the Supreme Court noted in
NLRB v. Yeshiva University, ‘‘we accord great respect to the
expertise of the Board when its conclusions are rationally
based on articulated facts and consistent with the Act.’’ 444
U.S. at 691. Under the Act, it is clear that ‘‘[t]he findings of
the Board with respect to questions of fact if supported by
substantial evidence on the record considered as a whole shall
be conclusive.’’ 29 U.S.C. § 160(e) (2000). ‘‘Substantial evi-
dence means ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’ ’’ MECO
Corp. v. NLRB, 986 F.2d 1434, 1436 (D.C. Cir. 1993) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Additional-
16
ly, the court will uphold the Board’s decision upon substantial
evidence even if we would reach a different result upon de
novo review. See Perdue Farms, Inc., Cookin’ Good Div. v.
NLRB, 144 F.3d 830, 834-35 (D.C. Cir. 1998). In short, this
court reverses for lack of substantial evidence ‘‘only when the
record is ‘so compelling that no reasonable factfinder could
fail to find’ to the contrary.’’ Lakeland Bus Lines, Inc. v.
NLRB, 347 F.3d 955, 961 (D.C. Cir. 2003) (quoting United
Steelworkers v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993)).
With this standard of review in mind, we turn to the principal
findings supporting the Board’s conclusion that the five em-
ployees are not managerial. We also address Evergreen’s
claim that the Board’s decision cannot be squared with Yeshi-
va.
B. The Managerial Exclusion
The Act only extends its protections and guarantees to
those workers who meet the statutory definition of ‘‘employ-
ee.’’ 29 U.S.C. § 152(3) (2000). In NLRB v. Bell Aerospace
Co., Div. of Textron, Inc., 416 U.S. 267 (1974), the Supreme
Court held that Congress intended to exclude from the pro-
tections of the Act all employees properly classified as ‘‘mana-
gerial.’’ Id. at 275. Employees are properly classified as
‘‘managerial’’ when they ‘‘formulate and effectuate manage-
ment policies by expressing and making operative the deci-
sions of their employer.’’ Id. at 288 (quoting Palace Laundry
Dry Cleaning Corp., 75 N.L.R.B. 320, 323 n.4 (1947)); accord
Yeshiva, 444 U.S. at 682; Gen. Dynamics Corp., 213 N.L.R.B.
at 857. The Supreme Court has made it clear that ‘‘employ-
ees whose decisionmaking is limited to the routine discharge
of professional duties in projects to which they have been
assigned’’ are not managers under the Act. Yeshiva, 444 U.S.
at 690.
The Board’s finding that Port Captains, the Assistant Port
Captain, and the Port Engineer do not exercise managerial
discretion is clearly supported by substantial evidence in the
record as a whole and is consistent with the Act. The record
shows that, in all but the most routine tasks, the Port
Captains are tethered to the Section Manager. Assistant
17
Port Captain Meng and Port Captain Yang testified, without
contradiction, that Port Captains follow strict policies and
guidelines in performing their jobs, with constant direction
from their manager.
Evergreen argues that the Board ignored evidence of Port
Captains’ discretion and authority over a ship’s regional
schedule. See Petitioner’s Br. at 16. The Employer points to
Junior Vice President Chen’s testimony that, under certain
circumstances, Port Captains may order extra gangs if need-
ed. Hearing Tr. at 101, 178, 195-96. But Assistant Port
Captain Meng’s testimony established that the Employer’s
Project Department sets the ship’s schedule, and that circum-
stances requiring a change of schedule should be reported to
the manager. Id. at 270. Meng testified that he had never
ordered extra gangs, and that he would not do this ‘‘unless
[he had] the approval from the manager.’’ Id. at 386. Meng
also explained that, when a ship arrived behind schedule in
the late evening and was scheduled to sail early the next
morning, he had to consult with his manager about the
additional gangs necessary to get the ship out. Id. at 379-92.
The Section Manager’s close supervision of the Port Cap-
tains’ purported exercise of discretion in the ordering of extra
gangs was confirmed by Port Captain Yang’s testimony.
Yang testified that if two or more EMC ships unexpectedly
berth at the same time, the labor adjustments are made by
the manager in consultation with the terminal. Id. at 473-75.
Yang also stated that he never ordered extra gangs on his
own, and that the manager coordinated such tasks with the
terminal supervisor. Id. at 474.
The record clearly establishes that Port Captains do not set
a ship’s schedule – they merely administer it in consultation
with their manager. The Board considered the evidence that
Port Captains exercise some discretion over a ship’s schedule
and estimate the number of labor gangs needed. See Repre-
sentation Decision, slip op. at 14-15, J.A. 554-55. However,
the Board reasonably concluded that this discretion is profes-
sional, not managerial. Gen. Dynamics Corp., 213 N.L.R.B.
at 857-58.
18
Evergreen also argues that the Representation Decision
failed to recognize the discretionary authority of Port Cap-
tains over stowage plans. See Petitioner’s Br. at 18. Both
Junior Vice President Chia-Lin Chen and Section Manager
Johnnie Chen testified that they need not approve the Port
Captain’s stowage plan before it takes effect, and that they
review the plan after the stowage is completed. Hearing Tr.
at 172, 490. But Meng’s testimony established that, in prac-
tice, Port Captains follow specific guidelines in the prepara-
tion and execution of stowage plans. Meng reports to the
manager after determining the location of reefers, which are
considered special cargo. The manager, not the Port Cap-
tain, determines whether a reefer mechanic should be hired in
such circumstances. Id. at 318. Meng also testified that
when a customer requests a major change in the stowage
plan, such as the shifting of 30 containers, he must report to
his manager, who must approve the change. Id. at 323-24.
According to Meng, Port Captains also receive instructions
for loading or discharging hazardous cargos. The manager,
not the Port Captain, decides when the hazardous cargo can
be shipped. Id. at 330. Meng also stated that Port Captains
are not authorized to fix any cargo problems without first
reporting them to the manager. Id. at 441.
The record therefore supports the Board’s finding that,
‘‘[a]s to the Port Captain’s function of making arrangements
for the ship in port TTT these functions are wholly routine and
therefore do not characterize a managerial employee.’’ Rep-
resentation Decision, slip op. at 17, J.A. 557. Similarly, the
Board reasonably determined that the Port Engineer does
not exercise managerial discretion. Id. at 18. Nothing in
the testimony of the Junior Vice President or the Section
Manager undermines these conclusions.
We also reject the Employer’s argument that Yeshiva
compels reversal of the Board decision in this case. Yeshiva
held that a university’s full-time faculty members were mana-
gerial employees who were excluded from the protections of
the Act. The Employer contends that, pursuant to Yeshiva,
‘‘ ‘managerial employee’ TTT encompass[es] not just those who
have authority to formulate policies, or to act independently
19
of them, but also those who represent management interests
by taking or recommending discretionary action that effec-
tively implement those policies.’’ Petitioner’s Br. at 15 (em-
phasis in the original). Yeshiva says no such thing. The
Yeshiva decision acknowledges that the exercise of discretion
is among the factors to be weighed in determining manage-
ment status. However, the Court goes on to say:
The controlling consideration in this case is that
the faculty of Yeshiva University exercise authority
which in any other context unquestionably would be
managerial. Their authority in academic matters is
absolute. They decide what courses will be offered,
when they will be scheduled, and to whom they will
be taught. They debate and determine teaching
methods, grading policies, and matriculation stan-
dards. They effectively decide which students will
be admitted, retained, and graduated. On occasion
their views have determined the size of the student
body, the tuition to be charged, and the location of a
school. When one considers the function of a uni-
versity, it is difficult to imagine decisions more
managerial than these. To the extent the industrial
analogy applies, the faculty determines within each
school the product to be produced, the terms upon
which it will be offered, and the customers who will
be served.
Yeshiva, 444 U.S. at 686.
The work of Port Captains, Assistant Port Captains, and
Port Engineers does not come close to satisfying Yeshiva’s
description of a ‘‘manager.’’ The record in this case makes it
clear that the Evergreen employees in question do not have
‘‘absolute authority’’ over anything – not even a ship’s sched-
ule. These employees exercise professional discretion in a
few matters affecting the ships, but their decisions are closely
monitored by and subject to the direction of the Section
Manager. This is not analogous to the discretion exercised
by the university professors in Yeshiva.
20
Finally, Evergreen argues that if the Union is allowed to
represent the Port Captains, Assistant Port Captains, and
Port Engineers, there will be a conflict of interest between
the contested Evergreen employees and terminal stevedores,
because the stevedores are represented by the same union as
the employees in this case. Petitioner’s Br. at 18. One
rationale for excluding managerial employees from the Act’s
coverage is ‘‘[t]o ensure that employees who exercise discre-
tionary authority on behalf of the employer will not divide
their loyalty between employer and union.’’ Yeshiva, 444
U.S. at 687-88. Evergreen claims that Port Captains’ discre-
tion over the number of stevedoring gangs used by Ever-
green impacts the income of the stevedores, thus creating a
conflict of interest. Petitioner’s Br. at 18. This contention is
meritless.
The stevedores work for a different employer, Maher Ter-
minal, and they are in a different bargaining unit. We are
aware of no authority, and Evergreen cites to none, support-
ing the proposition that such a purported cross-unit conflict
may be relied upon to defeat the representational rights of
employees who are not otherwise managers under the Act.
Indeed, in an analogous situation, the Board has held that the
potential for divided loyalty between inspectors and contrac-
tors working for two different employers did not render the
inspectors managerial, even though the inspectors would be
‘‘represented by the same union which represents the employ-
ees whose work they inspect.’’ Bechtel, Inc., 225 N.L.R.B.
197, 198 (1976).
In light of the record as a whole, the Board reasonably
rejected Evergreen’s claim that its Port Captains, Assistant
Port Captain, and Port Engineer are managerial employees.
Accordingly, the Acting Regional Director properly directed
the representational election leading to the Union’s certifica-
tion. And the Board did not err when it determined that
Evergreen violated the Act in refusing to recognize and
bargain with the Union and in refusing to provide information
sought by the Union.
21
III. CONCLUSION
For the foregoing reasons, we deny Evergreen’s petition
for review and grant the Board’s cross-application to enforce
its order.