A. L. Barge Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1972

197 N.L.R.B. 592 (N.L.R.B. 1972)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. L. Barge Lines, Inc. Mechling and Local 47, Great
Lakes and Rivers District , Masters , Mates and
Pilots and Marine Officers Association , Local 54,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
Party to the Contract. Case 13-CA-9894
June 15, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On February 7, 1972, Trial Examiner Marion C.
Ladwig issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, the Charging Party filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner. This case was tried
at Chicago, Illinois, on November 15 and 16, 1971. The
charge was filed on June 10, 1970, (and amended
September 17, 1971) by Local 47, Great Lakes and Rivers
District, Masters, Mates and Pilots, herein called MMP
Local 47, against the Respondent, A. L. Mechling Barge
Lines, Inc., herein called the Company. The complaint was
issued on September 14, 1971, and amended at the trial.
The party to the contract, Marine Officers Association,
Local 54, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called MOA, has been representing all the personnel on the
Company's river towboats-the masters and chief engi-
' The Company's motion to correct the transcript , dated January 7, 1972,
and its motion to amend its answer to admit that MOA is a labor
neers in one bargaining unit and the other crew members
in a separate unit. The primary issues are (a) whether the
masters and chiefs are supervisors and, if they are, (b)
whether the Company interfered with the administration of
MOA by permitting the masters and chiefs to vote in a
MOA election for union officers and by thereafter
recognizing the MOA as the bargaining representative of
the nonsupervisory employees, in violation of Section
8(a)(2) and (1) of the National Labor Relations Act.
Upon the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the excellent briefs filed by the General Counsel, Compa-
ny, MMP Local 47, and MOA, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a Delaware corporation with its principal
place of business in Joliet, Illinois, is engaged in providing
towboat and barge inland waterway transportation services
between Chicago and New Orleans. It annually provides
services valued in excess of $100,000 to out-of-State
businesses which are engaged in interstate commerce. The
Company admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and that MOA is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Prior decisions
This is one of several cases in which the Board has been
called on to apply the Nassau doctrine, Nassau and Suffolk
Contractors' Association Inc, 118 NLRB 174, in the
towboat transportation industry.
In G & H Towing Co., 168 NLRB 589, 590 and 596-597,
the Board adopted Trial Examiner Weil's finding that the
towboat employer violated Section 8(a)(2) and (1) by
dealing with a union negotiating committee which included
a towboat captain and other admitted supervisors. There
the union, IBU (Inland Boatmen's Union, affiliated with
the SIU, AFL-CIO) had for many years represented all the
towboat personnel in a single bargaining unit. (This unit,
including the supervisors, had been certified by the Board
prior to 1947.) I note, however, that in rejecting the
employer's various defenses, Weil found that there were
not separate negotiations for the supervisors and conclud-
ed:
Finally, the argument that supervisors, since they are
covered by the contract, should have a voice in its
negotiation, might have appeal if there were any reason
why supervisors must be covered by the contract, but
there is none. The law envisages the contrary situation
and there is no inherent disability in the concept of a
separate contract for supervisors. [168 NLRB at 597,
emphasis supplied.]
organization are granted
197 NLRB No. 89
A L. MECHLING BARGE LINES , INC. 593
In a later case, Mon River Towing, 173 NLRB 1452,
1453-55 enfd. 421 F.2d I (C.A. 3, 1969), the Board found
that the employer violated Section 8(a)(2) and (1) by
negotiating with a union committee which included a river
towboat captain. Again, the captains were included in the
same contract with the other towboat personnel, and again
in the Trial Examiner's Decision (issued on January 12,
1968, prior to the time MOA began representing the
masters and chief engineers in the present case) there was a
finding that there were not separate negotiations for the
supervisors. (173 NLRB at 1455.)' Thereafter the Third
Circuit, enforcing the Board's Order and applying the
Nassau doctrine, ruled (421 F.2d at 7) that, if negotiation
on the captains' behalf was essential for their protection,
"nothing prevents Mon River from negotiating a separate
contract with them."
In the present case, as discussed later, the Company and
MOA did negotiate a separate agreement for the masters
and chief engineers. None of the masters or chiefs
participated in the negotiation or ratification of the
agreement covering the remaining towboat personnel. The
complaint, however, alleges that the Company violated
Section 8(a)(2) and (1) by permitting these alleged
supervisors to vote in a MOA election for union officers.
2. Patterns of bargaining in the industry
There has been considerable litigation concerning
appropriate bargaining units for towboat personnel. The
towboat crews are small, yet they perform many of the
same functions as the marine officers and employees
aboard large Great Lakes and deep sea ships.
As indicated by the above-cited cases-as by Material
Service Division, General Dynamics Corp, 144 NLRB 90o,
909, fn. 3, involving an overall unit represented by
MOA-various unions have bargained for all towboat
crew members in single bargaining units, despite the
differences in skills and responsibilities , and despite the
admitted or alleged supervisory status of some members of
the crews . It is argued that inasmuch as they live and work
closely together as a team on the small vessels, performing
interdependent duties , they share common interests which
can best be served without fragmentation of the bargaining
unit. Although the towboat captains (or masters) and
certain other members of the crew have from time to time
been found to be supervisors , some employers continue to
argue to the contrary-as in the present case. In Mon River,
173 NLRB at 1454, fn. 14, where the employer contended
"that the boat captains are in effect only 'leadmen,' with
authority to direct other employees in routine , nondiscre-
tionary matters," it argued , "The operation of a small fleet
of barges on the local rivers is a far cry from the sailing
vessel on the high seas for many months, or military ships.
Furthermore , one must consider that this is the age of
instant communications , changing the amount of on-board
supervision required even on ocean vessels, to say nothing
of river barges." Similarly, in the present case, the
Company contends that all the towboat personnel are
nonsupervisory and argues that "Major decisions ... are
made by shore-based , high ranking management person-
nel, who maintain virtually constant radio contact with all
vessels," and that the discretion and independent judgment
exercised by the masters and chief engineers "are no more
than would ordinarily be expected of experienced and
highly skilled employees, and are insufficient to confer
supervisory status on them." In a fairly recent case, a
finding was made that the entire towboat crew was
nonsupervisory. MOA Local President David Carlton
credibly testified that the NLRB Regional Director in New
Orleans ruled the towboat master , pilot, and chief engineer
at Pearl River Towing Company to be nonsupervisors and
that, later in negotiations, the company president stated
that "he made all the decisions in that company." (The
Board's records show that in Pearl River Towing Co.;
15-RC-4023, the Regional Director issued an unpublished
direction of election on December 20, 1968, finding a unit
of "all employees including captains, mates, deckhands,
and the port engineer" to be appropriate. There were 13
eligible voters.) Carlton also credibly testified, on cross-
examination, that on some of the smaller towboats, he has
seen the master serve "as a tankerman and pumped the
barges off whenever he got to his destination. He was a
common laborer hooking up hoses and running pumps to
discharge cargo."
On the other hand, some unions contend that various
members of the towboat crews are "officers" with
supervisory authority, and insist that they must be
represented separately. Faced with these and differing
employer contentions in river towboat cases, the Board has
examined the amount of actual authority which different
employers have vested in the higher-ranked towboat
personnel and has ruled on a case-by-case basis. In the
above-cited Mon River Towing case, 173 NLRB 1452,
1454-55, enfd. 421 F.2d I (C.A. 3, 1969), THE Board and
the Court rejected the employer's contention that the river
towboat captains were mere leadmen, and found that they
were supervisors. In the recent case , Sioux City and New
Orleans Barge Lines, 193 NLRB No. 55 (TXD, sec. III, B),
the agreed unit in a stipulated consent election excluded
river towboat pilots (along with captains and engineers),
but included mates (along with deckhands, oilers, and
cooks). The unions involved were NMU, MOA, and IBU.
A union not involved in that case, MMP Local 47 (the
Charging Party herein), purports to limit its membership to
supervisory masters, mates, and pilots, and seeks to
represent them separately. It (and presumably other MMP
locals) follows the practice of negotiating-and including in
its bargaining agreements-contract language agreeing
that all towboat masters, mates, and pilots are vested with
certain supervisory authority. In Local 28, International
Organization of Masters, Mates and Pilots, AFL-CIO
(Ingram Barge Co), 136 NLRB 1175, 1195-1205, enfd. 321
F.2d 376 (C.A.D.C., 1963), the Board-upon the testimony
of witnesses from four or five river towboat employers
which had MMP Local 28 agreements containing such
contract language (see 136 NLRB at 1193)-found that
both mates and pilots were supervisory. Recently, in A L.
Mechling Barge Lines, 192 NLRB No. 166, the Board
found that on the present Company's river towboats, the
pilots and also the mates (which the Company calls "head
deckhands" and "watchmen") are nonsupervisors and are
properly included in a bargaining unit with other towboat
employees. (In so finding, the Board considered detailed
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence of the status of the Company 's pilots and mates in
1970-I1 years after the representation hearing in the
Ingram Barge case , which involved pilots and mates
represented by a different union , at different employers,
under different collective-bargaining agreements. The
MOA agreement covering the Company 's pilots and mates
(and other employees) did not assign them any supervisory
authority .) Concerning towboat engineroom personnel at
different employers , the Board found chief engineers to be
nonsupervisors in the above-cited Material Service case,
144 NLRB at 912 , and in Graham Transportation Co., 124
NLRB 960, 962, but found not only chief engineers but
also assistant engineers to be supervisors in Midwest Towing
Co., 151 NLRB 658, and Mississippi Valley Barge Line Co.,
151 NLRB 676, enfd . sub nom District 2, Marine Engineers
Beneficial Assn., AFL-CIO v N L R. B., 353 F.2d 904
(C.A.D.C., 1965).
Thus, there have been several patterns of bargaining for
towboat personnel . There have been single bargaining
units, consisting of all crew members . Sometimes the
"marine engineers" and "deck officers " have been repre-
sented in two separate units. In other instances, there have
been one unit for the employees (e.g., oilers, deckhands,
cooks, and maids or messmen), and a separate unit for the
supervisory "officers" (masters and chief engineers, and
sometimes also the pilots , or pilots and mates, and/or
assistant engineers ). Because of differences in sizes of the
towboat crews and the differences in management-some
employers vesting more authority than others in on-vessel
personnel-the question of whether particular towboat
masters, pilots, mates, chief engineers , and assistant
engineers are supervisors depends upon their actual status
at their particular employer.
3. Prior processing of representation case
Before discussing the merits of the present complaint
case, I note the contentions made by MMP Local 47 in its
brief that "This complaint proceeding is tainted with
irremediable prejudicial error' resulting from the Board's
unlawful and improper determination in, and processing
of, the related representation case."
The representation proceeding, Case 13-RC-12165, was
begun on April 30, 1970, when MEBA ( District 2, Marine
Engineers Beneficial Association, later joined by IBU)
filed a petition seeking a unit of all nonsupervisory
employees, including pilots, head deckhands, and watch-
men. MMP Local 47 intervened at the representation
hearing held on June 1 and 2, 1970, for the purpose of
protesting the inclusion of pilots, head deckhands, and
watchmen (contending that they were supervisors). Shortly
thereafter , on June 10, 1970, MMP Local 47 filed the
original charge herein , alleging that the Company was
violating Section 8(a)(2) by dealing with MOA as exclusive
bargaining agent of supervisory "marine officers , namely,
pilots, head deckhands and watchmen" in the same unit
with towboat employees. Thereafter, exercising his discre-
tion, the General Counsel withheld the complaint herein
until after the Board issued its decision and direction of
election in the representation case, 192 NLRB No. 166,
dated August 27, 1971. The election is now being held in
abeyance, pending the outcome of the present complaint
proceeding.
Without citing any apposite authority, MMP Local 47
contends in its brief that the Board "flouted its own
recognition of the statutory independence of the General
Counsel" and was "usurping the General Counsel's
unfettered initial discretion ," by its "unprecedented, and
arbitrary and capricious" failure to permit the charge in
this complaint case to block the Board's decision in the
representation case. MMP Local 47 argues that the Board's
"unfortunate and imprudent" decision in the representa-
tion case , prejudging the matter and deciding that the
pilots, head deckhands , and watchmen were not supervi-
sors, "directly influenced and controlled" the scope of the
General Counsel 's complaint , and that the Board , in effect,
was "instructing" the General Counsel not to allege in the
complaint that the pilots , head deckhands , and watchmen
are supervisors . The contention obviously lacks merit.
There was no impinging on the statutory independence of
the General Counsel ; it was the General Counsel who, in
the exercise of his own discretion , deferred issuance of the
complaint in the present case until after the Board had
ruled in the representation case.
MMP Local 47 further contends that the , Board was in
error in deciding that the pilots , head deckhands, and
watchmen were not supervisors. However , that issue is still
before the Board in the representation case, upon MMP
Local 47 's motion for rehearing and reconsideration by the
Board en banc and request for oral argument.
B. Alleged Interference with Administration
of MOA
1. History of bargaining
For about 10 years before 1965, all of the Company's
towboat personnel were included in a single bargaimng
unit and were represented by MEU (Maritime Employees
Union), an independent union . In 1965, the MEU masters
and chiefs union was formed to represent the masters and
chief engineers in a separate unit . MEU continued to
represent the remaining members of the towboat crews.
In 1968, MOA defeated MEU in a stipulated consent
election and was certified on April 18, 1968 , for a unit of
all towboat personnel , excluding masters, relief masters,
chief engineers , and relief chief engineers . Negotiations
began in June 1968 and concluded in March 1969, when
the Company and MOA signed an agreement covering the
so-called employee unit for the term , January 1, 1969,
through June 30, 1970.
Meanwhile , in November 1968, a majority of the masters
and chiefs voted for MOA in a private election and MOA
began representing them in a separate unit . The Company
and MOA reached an agreement , covering the masters,
relief masters , chief engineers , and relief chief engineers,
and expiring on June 30, 1970.
As previously mentioned , a petition was filed in the
employee unit on April 30, 1970. An election (now held in
abeyance) was directed by the Board on August 27, 1971,
in an appropriate unit of "All employees including pilots,
assistant engineers , head deckhands, relief head deck-
hands, watchmen , deckhands, oilers, cooks, maids, and
A. L. MECHLING BARGE LINES, INC.
messmen, but excluding all other employees including
captains, relief captains, chief engineers, relief engineers,
shore-based engineers, office clerical employees, guards
and supervisors as defined in the Act." MEBA and IBU
jointly, NMU, and MOA are to be on the ballot.
2. Supervisory status of masters and chiefs
The Company's river towboat crews consist of 11 to 13
persons. The regular and relief crews alternate about every
25 days. When on board, the crew is divided into two
watches. There are five or six persons on the forward watch
(6 a.m. to noon, and 6 p.m. to midnight). The master is
then on duty with the head deckhand and two deckhands,
and the chief engineer works alone in the engineroom, or
with an oiler on about half the boats. On the afterwatch
(the remaining two 6-hour periods of the day), there are
five persons on duty: the pilot and three deck employees
(the watchman and two deckhands), and the assistant
engineers working alone in the engineroom. The cook, and
sometimes a maid or messman, is on duty around meal
times.
In the above-mentioned representation case , 192 NLRB
No. 166, the Board found that the Company's pilots, head
deckhands, watchmen, and assistant engineers were nonsu-
pervisors, but did not rule on the supervisory status of the
masters and chief engineers.
The master, or captain, is in overall charge of the
towboat and the transportation of the barges in its tow as it
proceeds along the waterway. He steers the towboat on the
forward watch and consults with, and gives instructions to,
the pilot who does the steering on the afterwatch. He gives
directions to the head deckhand and the two deckhands on
his watch and decides on which watches the deckhands are
to work. He is in regular contact by radio with the shore,
but has on-vessel responsibility for the discipline and
proper performance of all the crew outside the engineroom.
He authorizes crew members to leave the towboat and has
the authority to hire a crewman in an emergency. He may
put a crewman off the boat for cause and the Company's
usual practice is to discharge any person who has twice
been put off a boat. He makes recommendations concern-
ing promotions, demotions, transfers, and discharges. He
handles certain clerical work, orders supplies over the
radio, and sees that the towboat is kept in good physical
shape. He is on call when off watch.
The chief engineer is in charge of the engineroom, and is
responsible for keeping all mechanical equipment and
systems on board the towboat in good condition. He makes
repairs and performs preventive maintenance on the
forward watch, and gives directions to the assistant
engineer who performs sirmlar work on the afterwatch. On
about half of the Company's towboats, he is assisted on the
forward watch by an oiler, whose work he directs. He is
authorized to assign overtime work to the assistant
engineer and oiler, to grant them time off, and to put either
of them off the boat for cause. He evaluates their work and
recommends their promotion, demotion, transfer, and
discharge. He also makes recommendations concerning the
promotion of a deckhand to oiler. He is in regular contact
by radio with the port engineer, who has overall charge of
all engineers and who schedules the major overhauls.
595
The General Counsel and MMP Local 47 contend that
both the masters and the chief engineers are supervisors.
The Company disputes this, contending that "Major
decisions, such as those involving hiring and firing of
employees; destination of the vessels; type and amount of
barges to be picked up and let off, and scheduling of major
overhauls are made by shore-based, high ranking manage-
ment personnel, who maintain virtually constant radio
contact with all vessels. The discretion and independent
judgment exercised by the employees in the four disputed
classifications are no more than would ordinarily be
expected of experienced and highly skilled employees, and
are insufficient to confer supervisory status on them."
MOA contends that "The duties and authorities of the
masters, relief masters , chief engineers and relief chief
engineers, coupled with the continual close contact of the
vessel with shore based personnel of higher managerial
authority" are such that these "persons are, at most, low-
level, intermediate supervisors who meet the statutory
indicia of supervisors on a very low basis, if at all."
While the responsibilities of the masters and chiefs are
great (the larger towboats being valued between $3 million
and $4 million), the supervisory part of their duties are
limited by the close supervision exercised by shore-based
management personnel. Nonetheless, after considering all
the evidence, including the evidence in the preceding
representation case (introduced into evidence by MMP
Local 47), I find that the masters and chiefs (and their
reliefs) do in fact responsibly direct employees working
under them and effectively recommend promotions,
demotions, transfers, and discharges. I therefore find that
although they are lower level supervisors, the masters,
relief masters , chief engineers, and relief chief engineers do
possess and exercise sufficient supervisory authority,
requiring the use of independent judgment, to be supervi-
sors within the meaning of the Act.
3. Common interests
Between December 1969 and June 1970 (the time
covered by the complaint), the Company operated from
five to six river towboats, the number varying from month
to month. As a result, some of the towboat personnel went
from one bargaining unit to the other, working at times
under the masters and chiefs agreement and at other times
under the employee agreement. For example, engineers
Griffin and Lovekamp would work about half the time as
chief engineers (in the supervisors unit) and the other half
of the time as assistant engineers (in the employee unit). In
past years, when business was slack, a master has stepped
down to pilot, and "if things got tight enough, he'd go
down to head deckhand." Masters (and relief masters)
have frequently earned seniority in the employee bargain-
ing unit as deckhand, head deckhand or watchman, and
pilot. Chief engineers have often earned seniority in the
employee classifications of oiler and assistant engineer.
On board the towboat, the crew works as a team,
performing interdependent duties. Particularly when mak-
ing up or dropping off tow, going through locks, or coping
with bad weather or such emergencies as accidents,
running aground, and engine failure, it is important that
every member of the crew, from deckhand up, have much
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience to be able to assist in the joint effort and to
assure safety for the boat and crew. There is "joint yelling
and screaming and hollering" back and forth between the
wheelhouse and the deck.
The master and the pilot may discuss the proper
placement of the barges in the tow, or they and other
members of the crew , at watch changing time, "will all get
together and thrash it out." There is a lounge chair in the
wheelhouse on most of the boats and various members of
the crew go there to sit and talk with the master or pilot. If
a deckhand has a grievance, he may discuss it with another
deckhand or mention it to someone in the wheelhouse or
engmeroom before taking it to a union official. Crew
members are required to sign a crew separation report
when they are relieved by the relief crew. The book is
countersigned, in their presence, by the master or chief
engineer (persons in the supervisors unit) or by the pilot or
assistant engineer (persons in the employee unit).
In the small quarters aboard the towboat, two crew
members usually sleep in a room. Usua ly the master (in
the supervisors unit) and the pilot (in the employee unit)
have private rooms. On about half the towboats, the chief
engineer (a supervisor) has a private room; on the others,
he shares a room with the assistant engineer (an employee).
The assistant engineer sometimes has a private room.
There is only one cook, and sometimes a maid or messman,
on board to serve all the members of the crew.
Thus, on these river towboats, there is not the same sharp
demarcation between "officers" and "crew" as there is
aboard large ships There is more contact, association,
consultation, interplay, and interchange of duties between
the supervisors and nonsupervisors. Some crew members
go from one bargaining unit to the other as the volume of
business fluctuates. All towboat personnel work, eat, and
sleep in confined areas and work closely together as a
team, performing interdependent duties.
4. Supervisors' intraunion activity
In December 1969, when the Company was recognizing
MOA as the bargaining representative of the supervisory
masters and chief engineers in one unit and the nonsuper-
visory members of the crews in a separate bargaining unit,
MOA held its election for union officers. A total of 15 or
16 of the Company's masters and chief engineers-appar-
ently without any actual knowledge by higher supervision
-cast mail ballots in the election. (MOA had a member-
ship of about 750 persons, about one-sixth of whom were
masters and chief engineers at different towboat employ-
ers. About 98 MOA members worked for the Company.)
Following the election, the Company continued to recog-
nize and deal with MOA as the representative of the
supervisors and nonsupervisors in the two bargaining units.
MOA negotiated separately for the supervisors and
employees. MOA's officials (none of whom worked for the
Company) represented the Union in both sets of negotia-
tions. When bargaining for the masters and chiefs, the
MOA officials were assisted by a committee selected by the
masters and chief engineers. And when bargaining for the
employee unit, the MOA officials were assisted by an
employee committee , consisting of employees in different
employee classifications. None of the Company's masters
and chiefs participated in the selection of the employee
bargaining committee , or in the negotiation or ratification
of the collective -bargaining agreement covering the tow-
boat employees.
The evidence does not reveal any other intraunion
activity on the part of the Company' s masters and chief
engineers.
On board the towboats, neither the masters nor chief
engineers represented the Company in the handling of
grievances. The individual MOA members took their
grievances directly to a MOA official, who processed
them-at the first level of the contractual grievance
procedure-with the Company's director of operating
personnel.
Thus, the evidence shows only that masters and chief
engineers voted in a union election at the same time the
Company recognized MOA as the representative of the
towboat crews in separate bargaining units of supervisors
and employees.
5. Concluding findings
In Nassau and Suffolk Contractors' Association, 118
NLRB 174, 183-184, the Board established different rules
for lower level supervisors (master mechanics), who were in
the bargaining unit, and "company executives and high-
ranking supervisors ," who were outside the bargaining
unit. It ruled that an employer would not be liable for
lower level supervisors voting in union elections unless it
could be shown that the employer "encouraged, author-
ized, or ratified" the intraunion activity or "acted in such
manner as to lead employees to believe" that the
bargaining unit supervisors were acting for and on behalf
of management. On the other hand, it ruled that "company
executives and high -ranking supervisors" could not lawful-
ly "participate in elections to determine who is to
administer the affairs of the union ." The Board also ruled
that the employer could not lawfully permit either the
lower level or high level supervisors to serve on the union's
negotiating committee . (118 NLRB at 187.)
Here, the General Counsel, joined by MMP Local 47,
contends that under the Nassau doctrine , it is a violation of
Section 8(a)(2) and (1) for supervisors (towboat masters
and chief engineers), "not part of the rank-and-file unit, to
vote along with the rank -and-file employees in an election
for union officials." To the contrary, the Company and of
the rank-and-file unit , to vote along with the rank
employees MOA contend that inasmuch as the masters
and chief engineers are, at most , lower level supervisors
with interests which are "virtually identical " or "closely
related" to the interests of those in the employee bargain-
ing unit , their intraunion conduct should bejudged by the
rule applicable to lower level bargaining unit supervisors,
rather than the rule applicable to company "executives and
high-ranking supervisors." MOA further argues that "the
facts of the present case do not give rise to a situation
creating the substantive evils as contemplated by Section
8(a)(1) and (2) of the Act,'t and that its representation of
the masters and chiefs "in a different and separate unit
from the statutory employees is helpful to the insulation of
the statutory employees from interference" with their
Section 7 rights.
A L. MECHLING BARGE LINES, INC.
It is clear that, if the Nassau rule applying to lower level
bargaining unit supervisors is applicable here, there would
be no violation of the Act for the masters and chief
engineers voting in the union election and for the
Company thereafter continuing to recognize and deal with
MOA. The reason is that there is no showing that the
Company was even aware that the masters and chiefs were
voting or that the Company did anything to indicate that
they were acting on its behalf.
The General Counsel contends that the Nassau rule
concerning lower level supervisors is inapplicable because
the masters and chief engineers are outside the employee
bargaining unit. The General Counsel is thus contending,
in effect, that MOA's representation of the masters and
chiefs in a separate bargaining unit automatically places
them under the Nassau rule applying to "company
executives and high-ranking supervisors." Like the Trial
Examiner in Banner Yarn Dyeing Corp, 139 NLRB 1018,
the General Counsel has fallen into error by distinguishing
the Nassau rule concerning lower level supervisors from the
rule concerning "company executives and high-ranking
supervisors," solely on the basis of whether the supervisors
are in or outside the employee bargaining unit. In Banner
Yarn, the Trial Examiner erroneously concluded (139
NLRB at 1024-25) that Anchorage Businessmen 's Assn., 124
NLRB 662, 666-67-where the Board found a violation for
bargaining unit supervisors voting in union elections-was
inconsistent with the Nassau rule permitting bargaining
unit supervisors to vote in union elections-absent proof of
employer responsibility. (In so concluding, the Trial
Examiner relied on Geihch Tanning Co., 128 NLRB 501,
and other cases discussed below.) The Board (139 NLRB
at 1019, In. 1) rejected the Trial Examiner's conclusion that
the Board's decisions in Anchorage and Nassau were
inconsistent and specifically approved the correlation of
those two Decisions in National Gypsum Co., 139 NLRB
916, 920-921. By so ruling, the Board made it clear that it
found a violation in Anchorage, despite the fact that the
supervisors were in the employee bargaining unit, because
they were "higher level supervisors having `managerial
functions' "-that is, they came under the Nassau rule for
"company executives and high-ranking supervisors," not
under the rule for lower level bargaining unit supervisors.
Therefore, inclusion in or exclusion from the employee
bargaining unit is not controlling when determining
whether an employer is to be held liable for supervisors
voting in union elections. The more important basis for the
determination is whether the supervisors are lower level
supervisors-as in Beach Electric Co, 174 NLRB 210, and
Allied Chemical Corp., 175 NLRB 974, 978-or whether the
supervisors are owners, executives, high-ranking supervi-
sors, or management representatives; Anchorage, supra, 124
NLRB 662, 666-667, enfd. 289 F.2d 619 (C.A. 9, 1961),
involving supervisors with managerial functions; Detroit
Assn of Plumbing Contractors, 126 NLRB 1381, 1383, fn. 6,
enfd. in part 287 F.2d 354 (C.A.D.C., 1961), involvingjob
and field superintendents as well as general and job
foremen, and 132 NLRB 658, involving a "high-ranking
supervisor"; Bottfield-Refractories Co, 127 NLRB 188,
189-192, enfd. 292 F.2d 627 (C.A. 3, 1961), involving
officers, owners, and management representatives; and
597
Employing Bricklayers' Assn of Delaware Valley, 134
NLRB 1535, involving the executive secretary of the
employer association.
The basic reasons for this distinction between lower level
supervisors and management is particularly applicable
here. Voting by management in union elections "is plainly
a form of interference with the administration of a labor
organization," and, in a closely divided vote, could result
in placing management "in a position to select the union
dfficials who are to deal with them in their separate
capacity as employer agents." Nassau, 118 NLRB at 184.
But the Company's masters and chief engineers do not
represent management either in negotiations or in the
grievance procedure. They are lower level supervisors,
sharing common interests with the other members of the
towboat crews, as found above
This is not a situation where supervisors "organize
employees into one union in a context of unfair labor
practices and hostility to another union." Nassau, 118
NLRB at 182. The masters and chiefs voted in a private
election for representation by MOA several months after a
large majority of the towboat employees voted in the 1968
Board election for MOA in preference to an independent
or company union which had been representing them.
Instead, the charge herein arose in the context of the 1970
election campaign, and was filed by a competing union,
MMP Local 47, which purports to restrict its membership
to supervisors and which challenges the qualification of
MOA to represent both supervisors and employees. The
real dispute is between MMP Local 47, which believes that
a supervisors' union can best serve the interests of towboat
supervisors, and MOA which believes that the interests of
both towboat supervisors and employees can best be
served by a single union . Such a dispute would ordinarily
be resolved by the employees themselves, when they
express their choice in the Board election.
The General Counsel argues that, even if MOA repre-
sents the supervisory masters and chief engineers in a
separate bargaining unit, the statutory rights of the
towboat employees could be adversely affected by the
masters and chiefs voting in elections for union officers.
Ignoring the low level of these supervisors and their
common interests with the employees, the General Counsel
theorizes that a union official could not "isolate his
decisions from the natural influence of the membership
electorate," that occasions could arise "where the interest
of the rank and file employee may be in direct opposition
to the interest of" the masters and chiefs, that the "mere
power of the supervisors to vote may effect what that
officer will do," and that therefore the Company could,
through its supervisors' votes, exert "undue influence upon
the statutory employees' right of full representation." In
reality, the General Counsel is arguing against the basic
policy determination in Nassau, permitting lower level
supervisors to vote in union elections unless there is proof
of employer responsibility.
Moreover, the Board has already applied the Nassau rule
concerning lower level bargaining unit supervisors to a
supervisory towboat captain's voting in contract ratifica-
tion elections. Mon River Towing, supra, 173 NLRB 1452,
1455-56. The employer was not held responsible, in the
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence of evidence that it encouraged , authorized, or
ratified the captain's voting, or acted in such a manner as
to lead employees reasonably to believe that the captain
was acting for and on behalf of management . It would
certainly appear that if this Nassau rule applies to a
towboat captain who is in the employee bargaining unit
and who votes with the employees on contract ratification,
it should apply here , where the masters and chief engineers
are in a separate bargaining unit , and have no voice in thie
negotiation or ratification of the collective-bargaining
agreement covering the employees . I agree with MOA that
its representation of the masters and chiefs in a separate
unit " is helpful to the insulation of the statutory employees
from interference."
While the Board in Mon River found the employer not
liable for the towboat captain voting in union elections, it
found the employer liable for the Captain's service on the
union negotiating committee-finding employer acquies-
cence to be unlawful interference with the administration
of the union . Upon enforcement , though , the court
strongly suggested that there would have been no unlawful
interference if the towboat captain had been in a separate
supervisors unit and if the union negotiating committee on
which he served had engaged only in bargaining for a
separate contract covering the supervisors (as in the
present case). The court held, Mon River Towing v
N.L.R B., 421 F.2d 1, 7 (C.A. 3 ,1969):
[I ]f negotiations on their own behalf is essential to
adequately protect the captains , nothing prevents Mon
River from negotiating a separate contract with them.
There seems to be no reason , therefore , to overlook the
possibility of even small detriment to the effective
representation of employee interests inherent in having
a supervisor participate as a member of the union
negotiating committee. [Emphasis supplied.]
Here, the Company and MOA have followed this
suggestion (first made in G & H Towing Co., supra, 168
NLRB at 596-597) that the towboat supervisors be placed
in a separate bargaining unit. Applying the Nassau rule
concerning lower level supervisors to these masters and
chief engineers, I find that the Company was not
responsible for their voting in the election for union
officers and that the Company did not violate the Act by
continuing thereafter to recognize and deal with MOA as
the representative of the towboat employees. I, therefore
grant the company motion to dismiss the complaint.
CONCLUSIONS OF LAW
1. The Company's towboat masters, relief masters,
chief engineers, and relief chief engineers are supervisors
within the meaning of the Act.
2. Under the Nassau doctrine, the Company did not
violate Section 8(a)(2) or (1) of the Act by permitting these
lower level supervisors to vote in an election for union
officers and by thereafter recognizing and dealing with
MOA as the representative of the towboat supervisors and
employees in separate bargaining units.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.