American Commercial Barge Line Company

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1070 (N.L.R.B. 2002)

1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
American Commercial Barge Line Company and Pi-
lots Agree Association, of the Great Lakes and
Rivers Maritime Region Membership Group of
the International Organization of Masters,
Mates and Pilots, ILA, AFL–CIO
Hines American Line and Pilots Agree Association, of
the Great Lakes and Rivers Maritime Region
Membership Group of the International Or­
ganization of Masters, Mates and Pilots, ILA,
AFL–CIO. Cases 26–CA–18659 and 26–CA–
18664
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS COWEN
AND BARTLETT
On September 27, 1999, Administrative Law Judge
Lawrence W. Cullen issued the attached decision find­
ing, among other things, that the pilots at issue were not
supervisors and that the Respondent violated Section
8(a)(3) and (1) by terminating them for participating in a
strike. The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging Party
each filed an answering brief to the Respondent’s excep­
tions. On June 28, 2001, the National Labor Relations
Board issued an order remanding the proceeding to the
judge for further consideration in light of NLRB v. Ken­
tucky River Community Care, 532 U.S. 706 (2001);
Brusco Tug & Barge Co. v. NLRB, 247 F.3d 273 (D.C.
Cir. 2001); and Empress Casino Joliet Corp. v. NLRB,
204 F.3d 719 (7th Cir. 2000).1
On August 16, 2001, the judge issued the attached
supplemental decision on remand finding that the pilots
were supervisors and that, therefore, the Respondent did
not violate the Act by terminating them for participating
in a strike. The General Counsel, the Charging Party,
and the Respondent filed exceptions and supporting
briefs. The General Counsel and the Charging Party
each filed an answering brief to the Respondent’s excep­
tions, and the Respondent filed an answering brief to the
Charging Party’s exceptions.
The Board has delegated its authority in this proceed­
ing to a three-member panel.
The Board has considered the decision, the supplemen­
tal decision, and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find­
ings,2 and conclusions,3 as supplemented below, and to
1 We find that the Respondent’s motion for reconsideration of the
Board’s Order remanding the proceeding to the judge is moot.
2 All of the parties rely, to some extent, on the testimony of wi t­
nesses who were not credited by the judge. The Board’s established
adopt the recommended Order set forth in the judge’s
supplemental decision.
For the following reasons, we agree with the judge’s
supplemental decision that the Respondent’s pilots David
Whitehurst, Charles Blaine, Thomas Dunaway, Bradford
Hudgins, and Dayton Scoggins were supervisors at the
time they were discharged.
Section 2(3) of the Act defines “employee,” and spe­
cifically excludes from that term “any individual em­
ployed as a supervisor[.]” Under Section 2(11),
[t]he term “supervisor” means any individual having
authority, in the interest of the employer, to hire, trans­
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, 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 authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
The Board has held that the possession of any one of
the indicia specified in Section 2(11) is sufficient to con­
fer supervisory status on an individual if the statutory
authority is exe rcised with independent judgment and not
in a routine manner. See, e.g., Health Care & Retire­
ment Corp., 328 NLRB 1056 (1999); and John N. Han­
sen Co., 293 NLRB 63, 64 (1989). As stated by the
United States Court of Appeals for the 11th Circuit,
which considered the question of supervisory status of
docking pilots in Cooper/T. Smith, Inc. v. NLRB, 177
F.3d 1259, 1263 (11th Cir. 1999):
The statutory definition lists the functions of a supervi­
sor in the disjunctive, so Cooper only needs to prove
that docking pilots fulfill one of these functions in order
to succeed in its claim that the pilots are supervisors.
See NLRB v. Dadco Fashions, Inc., 632 F.2d 493, 496
(5th Cir. 1980). As the Supreme Court has noted, three
questions must be answered in the affirmative for an
employee to be deemed a supervisor under section
2(11): “First, does the employee have authority to en-
gage in 1 of the 12 listed activities? Second, does the
policy is not to overrule an administrative law judge’s credibility reso­
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
In addition, the Respondent implies that the judge’s rulings, find­
ings, and conclusions demonstrate bias and prejudice. On careful ex­
amination of the judge’s decisions and the entire record, we are satis­
fied that the Respondent’s contentions are without merit.
3 No exceptions were filed to the judge’s recommended dismissal of
the allegation that the Respondent violated Sec. 8(a)(3) and (1) of the
Act by discharging Relief Captain John Bomer.
337 NLRB No. 168
AMERICAN COMMERCIAL BARGE LINE CO. 1071
exercise of that authority require ‘the use of independ­
ent judgment?’ Third, does the employee hold the au­
thority in the ‘interest of the employer’?” NLRB v.
Health Care & Retirement Corp., 511 U.S. 571, 573–
74, 114 S.Ct. 1778, 1780, 128 L.Ed.2d 586 (1994)[.]
We find, consistent with the judge’s supplemental de­
cision, that the pilots have authority to responsibly direct
the towboat crew in their work and to assign work. They
use independent judgment in exercising that authority,
and they do so in the interest of the employer.
The judge credited the testimony of pilots Whitehurst,
Blaine, Dunaway, Hudgins, and Scoggins. According to
credited testimony of one or more of the pilots, the pilot
and captain rotate 6-hour shifts. The pilot is on duty for
two 6-hour shifts each day for 30 days. The pilot is the
highest ranking official when the captain is off duty. The
pilot is confined to the wheelhouse during his shift.4 The
pilot communicates by radio with the lead deckhand or
calls him to the wheelhouse. When coming upon a lock
or in connection with tow work, the pilot tells the lead
deckhand what he expects to be done and the lead deck-
hand conveys that to the deckhands. The deckhands are
supposed to do what the pilot tells them—whether di­
rectly or through the lead deckhand. The pilot seldom, if
ever, wakes the captain.
The pilot has the authority to post a lookout any time
he feels it is appropriate to do so. The pilot determines
how many lookouts to post and when and where to post
them. Although Coast Guard rules govern the posting of
lookouts in bad weather, limited visibility, and very con­
gested areas, the pilot uses his judgment to determine
whether and when those conditions are met. Coast
Guard rules also provide that a lookout can be posted at
anytime deemed necessary by the wheelhouse navigator
(in this case the captain or the pilot on watch).
The pilot may rectify a staff shortage by waking the
call watch man when he determines that an extra set of
hands is necessary. This can be during, for example, tow
work periods, locking procedures, and tow breakup. The
pilot has the discretion to use the call watch man even if
that incurs overtime. The pilot can change the priority of
the crew’s work and instruct the crew to stop work on
one assignment in order to perform a navigation assign-
ment.5
4 Captains are similarly confined to the wheelhouse when navigating
the vessel on their watch.
5 If the pilot receives last -minute notice of a barge that needs to be
picked up during his watch, the pilot uses his own judgment to deter-
mine where to place the barge in the configuration of the tow. The
judgmental factors he uses to make that decision include the kind of
cargo, where the barge is going to be dropped off, the kind of barge,
and how much time there is to get the barge wired into the tow.
In sum, the pilots assign and responsibly direct the
lookouts and have the discretion to wake the call watch
man. The pilots make navigation decisions based on
their evaluation of nonroutine factors including the river
condition, problems with the boat, a “green” (inexperi­
enced) man on crew, the type of cargo, whether barges
are full or empty, and weather and traffic conditions.
The pilots do not check with others before ordering that
action be taken. Indeed, when the pilot is on watch, he is
the sole wheelhouse official responsible for the safety of
the vessel, crew, and cargo. If a crew member does
something wrong during the pilot’s watch, such as caus­
ing the tow to break loose, the pilot is held responsible.
The consequences of an error in the pilot’s judgment can
be catastrophic, including a collision causing loss of life
or a chemical spill. See Sun Refining & Marketing Co.,
301 NLRB 642, 649 (1991) (the size, complexity, and
cargo carried by a supertanker was a factor in determin­
ing that the disputed licensed officers working aboard the
supertanker exercised responsible direction).
Based on the foregoing, we find that the record estab­
lishes that the pilots responsibly direct and assign the
work of the crew in the navigation of the towboat and
that such direction and assignment involve the exercise
of independent judgment.6 We reject the General Coun­
sel’s reliance on cases such as McAllister Bros. Inc., 278
NLRB 601 (1986), enfd. 819 F.2d 439 (4th Cir. 1987),
which found that pilots or other similar officers did not
exercise independent judgment because, inter alia, their
authority to direct employees was based on their greater
technical expertise and experience rather than supervi­
sory authority.7 In Kentucky River, the U.S. Supreme
Court rejected such a rationale as inconsistent with the
On many routes, the pilot must navigate the tow through locks. All
locks are not the same. Some locks are 1200 feet long; some are 600
feet. If a tow with 15 barges needs to go through a 600-foot lock, it is
too long to make it through at once. Rather, the tow must be broken up
so that nine barges go in first while the other six are tied off until the
crew is able to go back and get them through the lock. Although the
pilot goes through the same locks on various trips, going through those
locks can vary based on a different current, the tow configuration, the
wind, and the time of day.
The pilot also has the authority to stop the vessel anytime he is un­
able to move the vessel or determines that it is unsafe to move the
vessel. The pilot uses his discretion and judgment to evaluate whether
to stop based on factors such as weather, traffic, the size of the tow, the
cargo, a blockage in the river, the way the boat is operating, the river
stage, and the flow of the current. Although Coast Guard rules provide
for stopping the vessel in limited visibility, the pilot uses his own
judgment to decide whether and when that condition exists.
6 T hat the pilots’ directions to the deckhands were routed through the
lead deckhand does not diminish their responsible direction inasmuch
as the directions remain the pilots’.
7 Similarly, in A.L. Mechling Barge Lines, 192 NLRB 1118 (1971),
relied on by the General Counsel, the Board found the pilots were cast
more in the role of leadmen and did not responsibly direct employees.
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act. The Court noted that the statutory term “independ­
ent judgment” was ambiguous with respect to the degree
of discretion required for supervisory status and, thus,
that it falls within the Board’s discretion to determine,
within reason, what scope of discretion qualifies. The
Court found, however, that the Board’s interpretation of
“independent judgment” to exclude individuals who di­
rected less-skilled employees based on professional judg­
ment, technical judgment, or judgment based on greater
experience contradicted the text of the Act.8 The Court
questioned “[w]hat supervisory judgment worth
exercising . . . does not rest on ‘professional or technical
skill or experience?’” Kentucky River, 532 U.S. at 717
(citation omitted).
Consistent with Kentucky River and, as noted above,
we find that the scope of discretion exercised by the pi-
lots to direct and assign the crew involves independent
judgment. Accordingly, we conclude that the pilots re­
sponsibly direct and assign employees in the interest of
the Respondent—two primary indicia of supervisory
authority.
Having found that the pilots possess two primary indi­
cia of supervisory authority, we note that the pilots also
possess many secondary indicia of supervisory authority.
The pilots are paid by salary whereas the deck crew is
paid by the day. The pilots also have better benefits,
such as a paid vacation, and occupy better quarters.
As noted by the judge, the Board has previously found
that pilots and mates who perform virtually the same
duties as the pilots here are supervisors. Bernhardt Bros.
Tugboat Service, 142 NLRB 851, 854 (1963), enfd. 328
F.2d 757 (7th Cir. 1964) (pilots found to be supervisors
where they decide when and where to place a lookout,
determine who to assign as a lookout, give orders to the
crew in connection with the tow, the lookout, and the
amount of power needed, and are responsible for the
tow); Organization of Masters, Local 28 (Ingram Barge
Co.) , 136 NLRB 1175, 1203 (1962), enfd. 321 F.2d 376
(D.C. Cir. 1963) (mates are supervisors where they issue
orders to deckhands during locking and docking opera­
tions which require obedience for the protection of per-
son and property).
Accordingly, we agree with the judge’s conclusion that
the pilots were supervisors within the meaning of Section
8 The General Counsel’s reliance on Chevron Shipping Co., 317
NLRB 379 (1995), is also misplaced. The Court in Kentucky River
accepted the Board’s holding in Chevron Shipping that the disputed
officers were not supervisors because their use of independent judg­
ment and discretion was circumscribed by the master’s standing orders
and the Operating Regulations, which required the watch officer to
contact a superior officer whenever anything unusual occurs or when
problems occur. As explained above, the judgment of the pilots in the
instant case is not similarly circumscribed.
2(11) of the Act. We further agree that, as the pilots
were supervisors, their participation in the strike was not
protected by the Act. Therefore, the Respondent did not
violate Section 8(a)(3) and (1) by discharging them for
participating in the strike.9 Parker-Robb Chevrolet, 262
NLRB 402 (1982), enfd. sub nom. Automobile Sales-
men’s Union Local 1095 v. NLRB, 711 F.2d 383 (D.C.
Cir. 1983).
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.
Rosalind Thomas, Esq., for the General Counsel.

David W. Miller, Esq. and Cynthia K. Springer, Esq. (Baker &

Daniels) for the Respondent.
Samuel Morris, Esq. (Allen, Godwin, Morris, Laurenzi &
Bloomfield), for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on September 1, 2, and 3, 1999 in
Memphis, Tennessee. The complaint as amended at the hearing
is based on a second amended charge filed in Case 26–CA–
18659 and a third amended charge filed in Case 26–CA–18664
by Pilots Agree Association, of the Great Lakes and Rivers
Maritime Region Membership Group of the International Asso­
ciation of Masters, Mates and Pilots, ILA, AFL–CIO (the
Charging Party or the Union) and alleges that American Com­
mercial Barge Line Company (the Respondent or ACBL) and
Hines American Line (the Respondent or Hines) violated Sec­
tion 8(a)(3) and (1) of the National Labor Relations Act (the
Act). The complaint is joined by Respondent’s answer thereto
wherein it denies the commission of any violations of the Act
and asserts certain affirmative defenses thereto.
On the entire record, including my observation of the testi­
mony of the witnesses, and exhibits submitted and after review
of the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondents ACBL and Hines admit
and I find that at all times material herein during the 12-month
period ending October 31, 1998, Respondents ACBL and Hines
have been a corporation with an office and place of business in
Jeffersonville, Indiana where they have been engaged in the
business of providing towboat and barge inland waterway
transportation services and that Respondent Hines has operated
as a division of Respondent ACBL, with an office and place of
business in Jeffersonville, Indiana where it has been engaged in
9 In view of this decision, we need not address the remaining argu­
ments raised by the Respondent as to why it did not violate Sec. 8(a)(3)
and (1) of the Act. Further, to the extent that the Respondent seeks
sanctions for what it asserts was misconduct by Board agents, we find
no such misconduct and we deny the Respondent’s request.
AMERICAN COMMERCIAL BARGE LINE CO. 1073
the business of providing towboat and barge inland waterway
transportation services. The complaint further alleges, Respon­
dents admit and I find that at all times material herein Respon­
dents have each in the conduct of their business, received goods
valued in excess of $50,000 directly from points outside the
state of Indiana. The complaint further alleges Respondents
admit and I find that during the 12-month period ending Octo­
ber 31, 1998, Respondents ACBL and Hines in conducting their
individual business operations have each derived gross reve­
nues in excess of $50,000 for the transportation of freight in
interstate commerce under arrangements with and as agents for
various common carriers, each of which operates between vari­
ous states of the United States and have functioned as an essen­
tial link in the transportation of freight in interstate commerce
and have been a single employer within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent denies and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
III. BACKGROUND
The Union is a labor organization of inland waterway Tug-
boat Pilots and Captains formed to address issues of safety,
working conditions and pay and other terms and conditions of
employment. The employees in this case initially learned of
Pilots Agree in the fall and winter of 1997, through radio and
contact with other pilots and captains and by postings on the
Web as they traveled along the inland waterways in the course
of their duties as river captains and pilots. The President of the
Union, Richard Mathis, testified that in September of 1997, he
posted a letter on the internet inviting captains and pilots of
tugboats operating on the inland waterways to join Pilots
Agree. This group later affiliated in February 1998, with the
Great Lakes and Rivers Maritime Region Membership Group
of the International Organization of Masters, Mates and Pilots,
ILA, AFL–CIO. On March 27, 1998, Mathis directed a letter to
numerous towing companies including Respondents asking
them to meet with Pilots Agree at a Hotel conference room in
Memphis, Tennessee, to discuss recognition and wages and
terms and conditions of employment of the pilots and captains.
Respondent ACBL responded by letter and it declined to meet
with Pilots Agree. This was the only response received by
Pilots Agree. No towing company appeared at the proposed
meeting in Memphis in response to the letter request of Pilots
Agree. Pilots Agree called for a work stoppage of the pilots
and captains throughout the industry for April 3, 1998. A num­
ber of pilots and captains responded to the request by ceasing
work at midnight of April 4, 1998, and in some cases pulling
the towboats and barges they were operating to shore and refus­
ing to proceed further. Respondents’ employees engaged in
this work stoppage including the six alleged discriminatees,
pilots David Whitehurst, Charles Blaine, Thomas Dunaway,
Bradford Hudgins, and Dayton Scoggins and relief captain John
Bomer. Respondents terminated Whitehurst on April 15, 1998,
Blaine on May 12, 1998, Dunaway on October 22, 1998,
Hudgins on October 22, 1998, Scoggins on July 19, 1998, and
Relief Captain Bomer on October 21, 1998. Respondent con-
ceded at the hearing that each of these employees had been
terminated because of their engagement in the strike. At issue
in this case is whether the terminations of those employees
violated Section 8(a)(3) and (1) of the Act. Central to this in­
quiry is whether the employees were employees under the Act
so as to be entitled to the protection of the Act as employees
and whether they were engaged in protected concerted activi­
ties under the Act.
The Respondent contends that each of these pilots was a su­
pervisor and thus their work stoppage was not protected by the
Act. It further contends that captains are supervisors under the
Act, assuming arguendo that pilots are not supervisors and that
the activity of these employees was not protected because Pilots
Agree admits captains who Respondent contends are supervi­
sors to membership and that the strike activity was thus unpro­
tected. Respondent further contends that the strike by its em­
ployees who were on its boats at the time of the strike consti­
tuted mutiny and constituted serious misconduct so as to make
their discharges lawful.
A. Status of the Pilots and Relief Captain
I find that pilots David Whitehurst, Charles Blaine, Thomas
Dunaway, Bradford Hudgins and Dayton Scoggins were at all
times material herein employees within the meaning of Section
2(3) of the Act. I find that relief captain John Bomer was a
supervisor within the meaning of Section 2(11) of the Act.
Respondent has asserted as an affirmative defense that the pi-
lots and relief captain were supervisors within the meaning of
Section 2(11) of the Act so as to exclude them from the protec­
tion accorded employees under Section 7 of the Act to engage
in concerted activities concerning wages, hours, and other
terms and conditions of employment. The burden is on the
Respondent to demonstrate that its employees should be ex­
cluded from the protection of the Act as supervisors. The issue
of supervisory status is to be decided on a case by case basis.
St. Alphonsus Hospital, 261 NLRB 620, 624 (1982); Hicks Oil
& Hickgas, 293 NLRB 84, 91 (1989); Purolater Products, 270
NLRB 694 (1984).
The crew of a towboat is comprised of a captain (or relief
captain) and a pilot who alternate their duties in 6-hour shifts to
steer the boat, an engineer and his assistant who maintain the
engine and operating parts, a mate or lead deckhand who di­
rects the work of the deck crew who maintain the barges as
they are tied together in groups of several barges which are
pushed by the towboat. The deckhands also perform cleaning
duties and chip off old paint from the surface of the towboat
and paint it. There is also a cook who prepares the meals.
While on watch the captain or pilot remain in the wheelhouse to
steer the boat. The pilot reports to the captain as does the mate
or lead deckhand, the engineer, and the cook. The mate or lead
deckhand directs the work of the deckhands. While on his
watch the pilot calls by radio to the mate or lead deckhand to
inform him of upcoming bridges, locks and other structures or
conditions of the river that may require lookouts at the head of
the barges or otherwise to ensure safe navigation. The pilots
also call to the mate or lead deckhand if they observe that there
is a problem with the securement of the barges being towed or
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
if they observe the deckhands are not working. At the start of
each shift the captain and the mate or lead deckhand discuss the
configuration of the tow (the arrangement of the barges) and
other clean up and maintenance work to be performed by the
deckhands. If a serious problem arises, the pilot may wake the
captain for handling at his discretion. All of the pilots who
testified at this hearing testified that they wake up the captain if
there is any serious discipline required at the moment. The
captain evaluates the employees and these evaluations are
turned over to land based management who review the evalua­
tions for determination as to whether to take corrective action
for adverse evaluations such as transferring the employee to
another boat for additional observation, or such as counseling,
suspending, or discharging employees.
At the hearing the pilots replied in the negative to virtually
all of the questions propounded by the General Counsel con­
cerning whether they had authority to and/or performed the
factors set out in Section 2(11) of the Act which define a super-
visor. They testified they do not have the authority to hire,
transfer, suspend, layoff, recall, promote, reward, discharge,
adjust grievances, or discipline employees and have never done
so in the performance of their work. Pilots Whitehurst, Blaine,
Dunaway, Hudgins, and Scoggins all testified they did not
make work assignments or direct employees in the performance
of their work. Rather they call to the mate or lead deckhand for
lookout and other duties connected with going through locks in
the river and if they observe any problems with the tow. The
mate then is expected to handle this and direct the work of the
deck crew. If the mate does not respond or correct a problem,
the pilot will report this to the captain at the change of watch.
Only in case of a serious problem will he wake the captain up.
I credit their testimony.
In addition to his other duties the captain has several admin­
istrative duties and is the sole person in charge of the boat’s
allotted budget and the purchase of food. The captain does not
have the authority to discharge an employee but may put him
off the boat in a case of a serious infraction such as the em­
ployee being intoxicated or the employee engaging in fighting.
All disciplinary problems are reported to land based manage­
ment who decide and administer the appropriate discipline.
The captain has the authority to promote or demote mates or
leadmen while on ship at his discretion which directly affects
their rate of pay. The pilot does not have this authority.
B. Analysis
I find the evidence overwhelmingly supports the conclusion
that the pilots alleged as discriminatees in this case were em­
ployees within the meaning of Section 2(3) of the Act at all
times material herein. Respondent has failed to meet its burden
to establish that they were supervisors. The evidence presented
by Respondent did not rebut the testimony of the discriminatees
concerning their duties and responsibilities. In the case of relief
captain John Bomer, I find the Respondent presented ample
evidence of supervisory authority and duties performed by
captains and relief captains to support the conclusion that they
are supervisors within the meaning of Section 2(11) of the Act.
Although Bomer was subpoenaed by the General Counsel, he
did not appear at the hearing. The evidence presented by the
Respondent of the supervisory status of its captains and relief
captains is thus unrebutted. I thus conclude Bomer was a su­
pervisor and that his engagement in the work stoppage was not
protected by the Act. Spentonbush/Red Star Cos., 319 NLRB
988 (1995), enf. denied 106 F.3d 484 (2d Cir. 1997). See
Parker-Robb Chevrolet, 262 NLRB 402 (1982), Re: supervi­
sors. See also Mississippi Power & Light Co., 328 NLRB 965
(1999), wherein the Board held that the complexity of dispatch­
ers responsibilities and the adverse consequences that might
flow from dispatchers’ misjudgments in their own work does
not necessarily make their judgments supervisory.
C. The Strike
On April 3, 1997, pursuant to a call for a strike by Pilots
Agree at midnight, tugboat captains and pilots of various com­
panies including some of Respondent’s captains and pilots
participated in the strike. Whitehurst, Blaine, and Dunaway
were not on board at the time of the call for the strike but later
refused to board a boat during the strike. Relief Captain Bomer
and Pilots Hudgins and Scoggins were on boats at the time of
the strike and pulled the boats over to await relief. There is no
contention by Respondent that this created a danger or hazard.
In each case when the employees subsequently attempted to
return to work, they were discharged by Respondent.
In addition to its assertion that the tugboat pilots were super-
visors, Respondent also contends that the captains were super-
visors and contends that the action of the pilots in striking for
recognition of a union which represented Respondent’s super-
visors was an act Respondent could not be legally compelled to
undertake. Consequently Respondent concludes that the strike
activity was unprotected, citing Rapid Armored Truck Corp.,
281 NLRB 371 (1986). However, I find this contention has no
merit in view of my finding that Respondent has not carried its
burden of proving its assertion that its pilots were supervisors.
Furthermore as discussed by General Counsel and Charging
Party in their briefs Rapid Armored involved a disqualification
of certification of a bargaining unit under Section 9(b)(3) which
prohibits the certification of a unit of guards and nonguards.
See Sierra Vista Hospital, 241 NLRB 631 (1979), wherein the
Board held that the inclusion of supervisors did not disqualify a
labor organization from representing nonsupervisors. As in this
instance there has been no recognition of the Union or bargain­
ing, there is no showing of a conflict of interest such as to dis­
qualify the labor organization.
D. Analysis of the Strike
This was an economic strike for recognition of Pilots Agree
and to persuade Respondents to engage in bargaining for im­
provements in wages, hours and other terms and conditions of
employment. The rights of employees to engage in a lawful
work stoppage or strike to promote these purposes are protected
by Section 7 of the Act.
In addition Respondent contends that the strike was for rec­
ognition of a minority union and therefore unprotected. The
factual matters regarding this argument were stipulated by the
parties as set out in Joint Exhibit 6 as follows:
AMERICAN COMMERCIAL BARGE LINE CO. 1075
E. Stipulation
The Parties hereto, ACBL/HINES (the Employer), Pilots
Agree / MMP (the Union), and the General Counsel, hereby
agree for the purposes of the hearing in the matter of NLRB
Cases 26–CA–18659 and 26–CA–18664, as follows
(1) Effective June 30, 1998, ACBL Co. was merged
into ACBLLLC. Effective July 1, 1998, ACBL ceased us­
ing the name Hines American Line. Prior to July 1, 1998,
Hines was a division of ACBL.
(2) At no time relevant to this case did the Union rep­
resent a majority of Hines or ACBL pilots and/or captains.
(3) At all times relevant hereto, MMP has been a party
to contracts, some of which included provisions by their
terms for hiring hall administration, and provisions for in­
dustry advancement funds.
(4) The Union engaged in a work stoppage against
Hines/ACBL, as well as other employers, that began on
April 4, 1998.
Respondent also contends that the strike constituted mutiny.
Respondent acknowledges that the work stoppage did not cre­
ate a danger or a hazard. No reports of the work stoppage were
made to the U.S. Coast Guard or any other governmental
agency. While an employee can be permanently replaced for
honoring a picket line or otherwise engaging in an economic
strike, he or she may not lawfully be discharged for doing so.
NLRB v. International Van Lines , 409 U.S. 48, 52–53 (1972);
Lin R. Rogers Electrical Contractors, 328 NLRB 1165 (1999).
I find no merit to Respondents’ argument that the strike was
unprotected because its purpose was to obtain recognition of a
minority union of the International Organization of Masters,
Mates and Pilots, ILA, AFL–CIO. At the time of the strike in
April 1997, the employees were seeking improvements in
wages and hours and other terms and conditions of employ­
ment. These are protected rights under Section 7 of the Act.
Assuming arguendo that they also sought recognition of Pilots
Agree, this did not serve to render the strike unprotected. Mine
Workers Dist. 50 v. Arkansas Oak Flooring Co., 351 U.S. 62
(1956); NLRB v. Drivers Local 639 (Curtis Bros.) 45 LRRM
2975 (1960).
Respondents’ contention that the strike constituted mutiny
and was thus unprotected is without merit. As set out above,
three of the pilots were not on boats at the time of the strike but
refused to board boats when subsequently ordered to do so.
With respect to the Relief Captain and the two pilots who were
on boats at the time of the strike, there was no proof of any
action taken by them except to inform the Respondent of their
intention to support the strike and pull their boats to a landing
and await relief. Respondent’s Vice President conceded at the
hearing that there is no contention that their actions in pulling
the boats over to a landing created a danger or hazard. Nor has
any misconduct on their part been established by the Respon­
dent. I find Southern SS Co. v. NLRB, 316 U.S. 31 (1942), and
18 U.S.C. 2192 cited by Respondent does not apply to the facts
of this case as that case involved engagement by crew members
in conduct violative of a criminal mutiny statute whereas the
instant case involved merely a work stoppage as found pro­
tected in Pantex Towing Corp., 258 NLRB 837, 842 (1981).
I find that General Counsel has established a prima facie
case that the alleged discriminatees were discharged in retalia­
tion for their engagement in concerted activities by participat­
ing in the strike, which was protected activity under Section 7
of the Act. I find Respondent has failed to rebut the prima facie
case with respect to the pilots by the preponderance of the evi­
dence. I find that Respondent has rebutted the prima facie case
with respect to Captain Bomer. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), affirmed in NLRB v.
Transporation Management Corp., 462 U.S. 393 (1983).
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
2. Pilots Agree is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act by
terminating its employees David Whitehurst, Charles Blaine,
Thomas Dunaway, Bradford Hudgins, and Dayton Scoggins.
4. Respondent did not violate the Act by its termination of
Captain John Bomer.
5. The above unfair labor practices in connection with the
business engaged in by Respondent as set out above have the
effect of burdening commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated the Act, it shall
be ordered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the policies and pur­
poses of the Act including the posting of an appropriate notice.
It is recommended that Respondent offer immediate rein-
statement to David Whitehurst, Charles Blaine, Thomas
Dunaway, Bradford Hudgins, and Dayton Scoggins to their
former positions or to substantially equivalent ones if their
former positions no longer exist, and that it make them whole
for all loss of pay and benefits sustained as a result of the dis­
crimination against them, with backpay and benefits to be com­
puted in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and interest as computed in New Horizons for the Re­
tarded, 283 NLRB 1173 (1987). Interest shall be computed at
the short term Federal rate for the underpayment of taxes as set
out in the 1986 amendment to 26 USC, Section 6621.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, American Commercial Barge and Hines
American Line, a single employer, its officers, agents, succes­
sors and assigns shall
1. Cease and desist from
(a) Discharging its employees because of their engagement
in union activities.
1 If no exceptions are filed as provided by §102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in §102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur­
poses.
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, restraining
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec­
tuate the policies of the Act.
(a) Within 14 days of the date of this Order, offer reinstate­
ment to David Whitehurst, Charles Blaine, Thomas Dunaway,
Bradford Hudgins, and Dayton Scoggins to their former posi­
tions or, if those jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or any other rights
or privileges previously enjoyed, discharging if necessary, any
employees in that position.
(b) Make David Whitehurst, Charles Blaine, Thomas
Dunaway, Bradford Hudgins, and Dayton Scoggins whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them in the manner set forth in the
Remedy section of this decision, with interest.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discrimination against
David Whitehurst, Charles Blaine, Thomas Dunaway, Bradford
Hudgins, and Dayton Scoggins and within 3 days thereafter
notify them that this has been done and that the discriminatory
action will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec­
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post copies of
the attached notice marked “Appendix2.” Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being signed by the Respondent's authorized representa­
tive, shall be posted by the Respondent immediately upon re­
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus­
tomarily posted. Reasonable steps shall be taken by the Re­
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. The Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent
at any time since January 1998.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
As to any violations not specifically found, the complaint is
dismissed.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY THE ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid and protection
To choose not to engage in any of these concerted ac­
tivities
WE WILL NOT discharge our employees because of their en­
gagement in union activities.
WE WILL NOT in any like or related manner, interfere with, re-
strain or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of this Order offer
David Whitehurst, Charles Blaine, Thomas Dunaway, Bradford
Hudgins, and Dayton Scoggins full reinstatement to their for­
mer jobs, or if those jobs no longer exist, to substantially
equivalent jobs without prejudice to their seniority or any other
rights previously enjoyed and will make them whole for any
loss of earnings and other benefits resulting from the discrimi­
nation against them, less any net interim earnings, plus interest.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful action
taken against David Whitehurst, Charles Blaine, Thomas
Dunaway, Bradford Hudgins, and Dayton Scoggins and notify
them within 3 days thereafter in writing that this has been done
and that the unlawful discrimination will not be used against
them in any way.
AMERICAN COMMERCIAL BARGE LINE COMPANY AND
HINES AMERICAN LINE
Rosalind Eddins, Esq., for the General Counsel.

David W. Miller, Esq. and Cynthia K. Springer, Esq. for the

Respondent.
Samuel Morris, Esq., for the Charging Party.
SUPPLEMENTAL DECISION ON REMAND
LAWRENCE W. CULLEN, Administrative Law Judge. I issued
my original decision in this case on September 27, 1999. In my
decision I found that Respondents American Commercial Barge
Line Company (ACBL) and Hines American Line (Hines) are
in the business of providing towboat and barge inland waterway
services and that Respondent Hines has operated as a division
of Respondent ACBL and they are a single employer within the
meaning of Section 2(2), (6), and (7) of the National Labor
Relations Act. I also found the Union is a labor organization of
inland waterway Tugboat Pilots and Captains formed to address
issues of safety, working conditions and pay and other terms
AMERICAN COMMERCIAL BARGE LINE CO. 1077
and conditions of employment, within the meaning of Section
2(5) of the Act.
The Union called for a work stoppage of pilots and captains
in the industry for April 3, 1998. A number of pilots and cap­
tains responded to the Union’s call by ceasing work at midnight
on April 4, 1998, and in some cases pulling the towboats and
barges to shore and refusing to proceed further. Certain of
Respondents’ employees engaged in this work stoppage includ­
ing the six alleged discriminatees, pilots David Whitehurst,
Charles Blaine, Thomas Dunaway, Bradford Hudgins and Day-
ton Scoggins, and relief captain John Bomer. Respondent ter­
minated all six employees and conceded at the hearing that
each of these employees had been terminated because of their
engagement in the strike. Respondent’s vice president con-
ceded at the hearing that there is no contention that certain of
the discriminatees’ actions in pulling the boats over to a landing
created a danger or hazard. I also found that no misconduct on
the discriminatees’ part had been established by the Respon­
dent. The issue in this case is whether the terminations of these
employees violated Section 8(a)(3) and (1) of the Act. Central
to this inquiry is whether the pilots and relief captain were em­
ployees under the Act so as to be entitled to the protection of
the Act as employees and whether they were engaged in pro­
tected concerted activities under the Act. Respondent con-
tended at the hearing that the pilots and the relief captain were
supervisors and thus their work stoppage was not protected by
the Act.
I found that the pilots were, at all times material herein, em­
ployees within the meaning of Section 2(3) of the Act. I found
that relief captain John Bomer was a supervisor within the
meaning of Section 2(11) of the Act. I found the burden was
on the Respondent to demonstrate that its employees should be
excluded from the protection of the Act as supervisors.
The factual findings in my decision are as follows:
The crew of a towboat is comprised of a captain (or re-
lief captain) and a pilot who alternate their duties in six
hour shifts to steer the boat, an engineer and his assistant
who maintain the engine and operating parts, a mate or
lead deckhand who directs the work of the deck crew who
maintain the barges as they are tied together in groups of
several barges which are pushed by the towboat. The
deckhands also perform cleaning duties and chip off old
paint from the surface of the towboat and paint it. There is
also a cook who prepares the meals. While on watch, the
captain or pilot remain in the wheelhouse to steer the boat.
The pilot reports to the captain as does the mate or lead
deckhand, the engineer, and the cook. The mate or lead
deckhand directs the work of the deckhands. While on his
watch the pilot calls by radio to the mate or lead deckhand
to inform him of upcoming bridges, locks and other struc­
tures or conditions of the river that may require lookouts at
the head of the barges or otherwise to ensure safe naviga­
tion. The pilots also call to the mate or lead deckhand if
they observe that there is a problem with the securement
of the barges being towed or if they observe the deckhands
are not working. At the start of each shift the captain and
the mate or lead deckhand discuss the configuration of the
tow (the arrangement of the barges) and other cleanup and
maintenance work to be performed by the deckhands. If a
serious problem arises, the pilot may wake the captain for
handling at his discretion. All of the pilots who testified at
this hearing testified that they wake up the captain if there
is any serious discipline required at the moment. The cap­
tain evaluates the employees and these evaluations are
turned over to land based management who review the
evaluations for determination as to whether to take correc­
tive action for adverse evaluations such as transferring the
employee to another boat for additional observation, or
such as counseling, suspending, or discharging employees.
At the hearing the pilots replied in the negative to vir­
tually all of the questions propounded by the General
Counsel concerning whether they had authority to and/or
performed the factors set out in Section 2(11) of the Act
which define a supervisor. They testified they do not have
the authority to hire, transfer, suspend, layoff, recall, pro-
mote, reward, discharge, adjust grievances, or discipline
employees and have never done so in the performance of
their work. Pilots Whitehurst, Blaine, Dunaway, Hudgins,
and Scoggins all testified they did not make work assign­
ments or direct employees in the performance of their
work. Rather they call to the mate or lead deckhand for
lookout and other duties connected with going through
locks in the river and if they observe any problems with
the tow. The mate then is expected to handle this and di­
rect the work of the deck crew. If the mate does not re­
spond or correct a problem, the pilot will report this to the
captain at the change of watch. Only in case of a serious
problem will he wake up the captain. I credit their testi­
mony.
In addition to his other duties the captain has several
administrative duties and is the sole person in charge of
the boat’s allotted budget and the purchase of food. The
captain does not have the authority to discharge an em­
ployee but may put him off the boat in a case of a serious
infraction such as the employee being intoxicated or the
employee engaging in fighting. All disciplinary problems
are reported to land based management who decide and
administer the appropriate discipline. The captain has the
authority to promote or demote mates or leadmen while on
ship at his discretion which directly affects their rate of
pay. The pilot does not have this authority.
Based on the foregoing facts I concluded that the evidence
overwhelmingly supported the conclusion that the pilots alleged
as discriminatees in this case were employees within the mean­
ing of Section 2(3) of the Act at all times material herein and
that Respondent had failed to support its burden to establish
that they were supervisors. I further found that the evidence
presented by Respondent had not rebutted the testimony of the
discriminatees concerning their duties and responsibilities. I
also found, however, that Respondent had presented ample
evidence of supervisory authority and duties performed by
captains and relief captains to support the conclusion that they
were supervisors within the meaning of Section 2(11) of the
Act. Although Bomer was subpoenaed by the General Counsel,
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he did not appear at the hearing. I thus found that the evidence
presented by the Respondent of the supervisory status of its
captains and relief captains was unrebutted and concluded that
Bomer was a supervisor and that his engagement in the work
stoppage was unprotected.
I found that this had been an economic strike for recognition
of Pilots Agree and that the pilots’ engagement in the strike was
protected, that the General Counsel had established a prima
facie case that the pilots were discharged in retaliation for their
engagement in concerted activities by participating in the strike,
which was protected activity under Section 7 of the Act. I
found Respondent had failed to rebut the prima facie case with
respect to the pilots by the preponderance of the evidence and
had violated Section 8(a)(3) and (1) of the Act by terminating
the pilots. I found that Respondent had not violated the Act by
its termination of relief captain John Bomer. The Respondent
has excepted to my findings regarding the status of the pilots.
Subsequent to my decision in this case, the Supreme Court
issued its decision in NLRB v. Kentucky River Community
Care, 121 S.Ct. 1861 (2001). Two Circuit Courts in Brusco
Tug & Barge Co. v. NLRB, 247 F.3d 273 (D.C. Cir. 2001), and
Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719 (7th Cir.
2001), issued decisions denying enforcement of the Board’s
decisions concerning the status of individuals similar to the
pilots in this case. On June 28, 2001, the Board remanded this
case to me for review in light of these three decisions and the
issuance of a supplemental decision. I was also directed to
address the issue of whether the record should be reopened to
take additional evidence on the issue of whether the pilots “as-
sign” and “responsibly direct” employees and on the scope or
degree of “independent judgment” used in the exercise of such
authority.
On July 10, 2001, I issued a Notice and Invitation to File
Briefs with me on July 30, 2001, addressing the issues and
matters setout by the Board’s Order Remanding. On July 30,
the General Counsel and Respondent filed their briefs. I subse­
quently received the Charging Party’s brief which had been
sent to an incorrect address. All briefs have been considered.
With respect to whether the current record contains sufficient
evidence for me to address the issues raised by the Board’s
Order, the General Counsel contends that the two days of testi­
mony and substantial documentation in the record concerning
the authority and job duties of the pilots is sufficient to address
whether the pilots “assign” and “responsibly direct” employees
and the degree of “independent judgment” exercised under such
authority. The General Counsel thus contends that the reopen­
ing of the record is not warranted as the current state of the
record is sufficient for the administrative law judge to issue a
supplemental decision addressing the issues raised by the
Board’s Order. Respondent asserts in its brief that on July 17,
2001, it filed a Motion and Memorandum Requesting Recon­
sideration of the Board’s Order Remanding Proceeding to the
Administrative Law Judge. It asserts that the Motion remains
pending before the Board and that the filing of the instant brief
should not be considered a waiver of that motion. In its brief,
Respondent asserts that since the administrative law judge
(ALJ) found ACBL’s pilots performed none of the 12 indicia of
supervisory status, “it is not necessary nor legally appropriate,
for the ALJ to consider whether the pilots exercise independent
judgment.” Respondent also asserts in brief that “The NLRB
did not invite, and ACBL strongly opposes, any effort by the
ALJ to revisit his Decision on any issue beyond the questions
of ‘independent judgment.’” Respondent asserts that it “is
satisfied to have the NLRB correct those errors already raised
in ACBL’s exceptions.”
After a review of the General Counsel’s and Respondent’s
position and the record as a whole, I find the record contains
sufficient evidence for the undersigned to address the issues
raised by the Board’s Order.
Section 2(3) of the National Labor Relations Act excludes
supervisors from the protection of the Act. 29 USA §152(3).
Section 2(11) of the NLRA defines supervisor as:
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 author­
ity is not of a routine or clerical nature, but requires the
use of independent judgment. [Emphasis added.]
Section 2(11) requires an affirmative answer to three ques­
tions, if an employee is to be deemed a supervisor. NLRB v.
Health Care & Retirement Corp. of America, 114 S.Ct. 1778
(1994). (1) Does the employee have authority to engage in one
of the 12 activities listed in Section 2(11); (2) Does the exercise
of that authority require the use of independent judgment; and
(3) Does the employee hold their authority in the interest of the
employer? For the reasons hereinafter setout in this decision, I
find that each of the above questions should be answered in the
affirmative.
With respect to the Supreme Court’s ruling in Kentucky
River, the Court upheld the Board’s rule that the burden of
proving Section 2(11) supervisory status rests on the party as­
serting it. As I found in my decision that the burden of proving
Section 2(11) supervisory status of the pilots rested on the Re­
spondent, this ruling is consistent with the Supreme Court’s
ruling in Kentucky River. In Kentucky River, the Court rejected
the Board’s interpretation of “independent judgment” in Sec­
tion 2(11)’s definition of the term “supervisor.” The Court
rejected the Board’s interpretation that i.e. registered nurses
will not be deemed to have used “independent judgment” when
they exercise ordinary or professional or technical judgment in
directing less-skilled employees to deliver services in accor­
dance with employer-specified standards. The Court found the
Board’s interpretation of “independent judgment” to be incon­
sistent with the Act. However, the Court recognized that the
Board has discretion to determine what scope or degree of “in-
dependent judgment” meets the statutory threshold. The Court
also left open the question of the interpretation of the 2(11)
definition of supervisors and the 2(12) definition of profession­
als and the question of the interpretation of the 2(11) supervi­
sory function of “responsible direction” noting the possibility
of distinguishing employees who direct other employees from
those who direct them in specific tasks.
AMERICAN COMMERCIAL BARGE LINE CO. 1079
In her brief, the General Counsel contends that the finding in
my decision regarding the status of the pilots withstands the
scrutiny of the recent court decisions and should not be re-
versed. General Counsel notes that the Court, in Kentucky
River, “conceded that the discretion to determine, within rea­
son, what scope of discretion qualifies for supervisory status”
rests with the Board. General Counsel contends that it is thus
“within the discretion of the Board to determine whether the
judgment associated with any enumerated 2(11) authority satis­
fies the statutory threshold to such a degree that it constitutes
independent judgment.” General Counsel contends that “Ac­
cordingly the Court accepted the Board’s analysis and decision
in Chevron Shipping Co., 317 NLRB 739 (1995), that the indi­
viduals at issue were not supervisors.” General Counsel con-
tends, “Moreover, the Court left open the question of the possi­
bility of interpreting the Section 2(11) supervisory function of
‘responsible direction’ by distinguishing employees who direct
the manner of other’s performance of discrete tasks from em­
ployees who direct other employees.”
General Counsel notes: “In the instant matter the Adminis­
trative Law Judge determined that the evidence credibly estab­
lished that the Respondent’s pilots did not engage in any of the
supervisory functions as set forth in Section 2(11) of the Act.
General Counsel contends “the record (sic) reflects that the
pilot’s exercise of judgment in connection with the nominally
supervisory functions of assigning or directing the work of
others falls well below the statutory threshold required by the
Act to constitute independent judgment.” General Counsel
notes that “for the most part the work of the deckhands require
little or no guidance from the pilots, since the mate directly
supervises them and the pilots’ interactions are with the mates
and not other deck crew. The mate is expected to handle prob­
lems and to direct the work of the deck crew.” General Coun­
sel contends that the pilots direction in this case is no different
from that given by the employees in Chevron, where the Board
found this direction was not supervisory in nature but the rela­
tionship of a “more experienced employee over one who is less
skilled.” She also cites A. L. Mechling Barge Lines, 192 NLRB
1118, 1119 (1971).
General Counsel argues also that the Circuit Court decisions
cited in the Board’s Remand Order do not support a reversal of
the finding that the pilots are employees and not statutory su­
pervisors. In Empress, supra the Court found “that the recom­
mendations of the individuals at issue concerning hiring and
firing carried great weight.” The individuals in that case
“played significant roles . . . evaluating employees for salary
hikes and assigning and directing work.” In Empress, the ves­
sels involved were passenger ships with approximately 150 to
200 employees on board and the only supervisor was a shore
based official. In the instant case, it is undisputed that the Re­
spondent’s captains who are on board at all times are statutory
supervisors and the crew consists of less than ten individuals.
In Empress, the direction and assignment of work by its pilots
was not routine. I find Empress is not controlling in the instant
case before me as the magnitude of the responsibility by virtue
of the size of the ship and the large number of crew members
and passengers and the low ratio of supervisors to non-
supervisory employees in Empress is significantly different
from the situation in the instant case.
General Counsel also contends that the decision in Brusco,
supra does not warrant a reversal as the decision in the instant
case was not inconsistent with prior Board precedent. In
Brusco, the Court denied enforcement of the Board’s order and
remanded the case to the Board for an explanation of its deci­
sion as it found the Board had not adequately explained or dis­
tinguished its finding from prior Board precedent, , Interna­
tional Organization of Masters, Local 28, 136 NLRB 1175
(1962), enfd., 321 F.2d 376 (D.C. Cir. 1963); and Bernhardt
Bros. Tugboat Service, 142 NLRB 851, enfd., 328 F.2d 757
(7th Cir. 1963). General Counsel notes that Brusco, involved
the issue of the supervisory status of the mates as opposed to
the pilots involved in this case. The Board in Brusco found that
the mates were not supervisors. In Chevron, supra and Mech­
ling, supra, the Board found similarly situated individuals to be
employees. General Counsel notes that the earlier Board deci­
sions were made when “pilots and mates were perceived by
both management and crew personnel as officers” and “The
term officer had a precise meaning in the industry, as one with
authority to issue orders. Refusal to comply with said orders
resulted in discipline. Evidence in more recent cases fails to
establish such. Moreover, those decisions placed undue weight
on the potential danger involved in the operation of a complex
piece of machinery.” General Counsel also notes that “later
decisions suggest that the Board has become cognizant of the
erosion of the traditional authority of wheelhouse personnel,
particularly pilots,” citing the recent case of Cooper/T. Smith
Inc. v. NLRB, 177 F.3d 1259 (11th Cir. 1999) where the Board
determined that the operation of complex machinery was insuf­
ficient to confer supervisory status upon an individual.
In my decision, I credited the testimony of the pilots who
testified that they did not have the authority and/or perform the
factors set out in Section 2(11) of the Act which define a super-
visor. They testified they do not have the authority to hire,
transfer, suspend, layoff, recall, promote, reward, discharge,
adjust grievances, or discipline employees and have never done
so in the performance of their work. Pilots Whitehurst, Blaine,
Dunaway, Hudgins and Scoggins all testified they did not make
work assignments or direct employees in the performance of
their work but rather call to the mate or lead deckhand for
lookout and other duties connected with going through locks in
the river and if they observe any problems with the tow. The
mate handles this and directs the work of the deck crew. In
Bernhardt Bros. Tugboat Service, 142 NLRB 851 (1963) cited
in Brusco, the trial examiner with Board approval concluded
that the tugboat pilots involved in that case had the authority to
direct crew members other than routinely. Relying on credited
testimony, he cited the pilots responsibility at 854 “on watch,
relying upon his own experience and judgment, decides if the
weather is bad enough to require a lookout against shifting
navigational hazards, and if so when and where to place the
lookout and which crew member should be so assigned.” The
trial examiner concluded at 854 that the pilots had “authority
responsibly to direct the crew members on their watch and that
the exercise of such authority is not merely routine, but on the
contrary requires the use of independent skill and judgment.”
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The trial examiner thus concluded that the pilots were supervi­
sors within the meaning of the Act. Similarly in Local 28 the
ALJ with Board approval found pilots were supervisors for the
same reasons.
In Brusco, the D.C. Circuit Court of Appeals denied en­
forcement and remanded the case to the Board. In its decision
the D.C. Circuit remanded 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 apparent de­
partures.” The Board has directed me to reconsider my deci­
sion in view of Kentucky River, Brusco and Empress. In my
initial decision in this case I found that testimony of the pilots’
assignment of work was merely a direction to the mate or lead
deckhand who carried out the order. However, in the earlier
Bernhardt and Local 28 decision, on similar facts, the trial
examiners concluded and the Board adopted their conclusions
that based on the safety hazards and requirement that pilots
make decisions under loosely constrained conditions, the pilots
did indeed exercise direction over significant matters requiring
the use of independent judgment. My review of Bernhardt and
Local 28 convince me that although I credited the pilots who
testified at the hearing that they did not assign work to the crew
but merely called to the mate or lead deckhand who directed the
work of the crew, it is obvious that the pilots do more than this
in the direction of the operation of the boat and barges as they
are navigated through the inland waterways. The Orders of the
pilot must be followed if the navigation of the tugboat and the
tow are to be successful. It is implicit in the direction of the
operation of the tugboat and barges that the pilots in the instant
case perform the same duties as those in the Bernhardt and
Local 28 cases. I thus modify my credibility resolution with
respect to the assignment of work and find that the pilots in the
instant case direct the work of the crew and do so with the ex­
ercise of significant independent judgment under conditions
that are loosely constrained by Respondent. I find that the pi-
lots have authority in the interest of the employer to assign
work to the crew and to responsibly direct them and that such
authority is not of a routine or clerical nature but requires the
use of independent judgment. Since the Board has directed me
to analyze this case as viewed in light of the above cited prece­
dents, I am constrained to reconsider my conclusion that the
pilots were not supervisors. In so doing and in reliance on the
precedent of Bernhardt and Local 28. I find the pilots were
supervisory employees at the time they engaged in the work
stoppage which was not protected insofar as it affected them. I
accordingly find that the Respondent did not violate the Act by
the discharge of the five pilots as well as by the discharge of
Captain Bomer.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2), (6) and (7) of the Act.
2. Pilots Agree is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times material herein, pilots David Whitehurst,
Charles Blaine, Thomas Dunaway, Bradford Hudgins and Day-
ton Scoggins were supervisors under Section 2(11) of the Act
as was Relief Captain John Bommer.
4. As supervisors their engagement in the economic strike
was unprotected and Respondent did not violate the Act by its
termination of them for their engagement in the strike.
ORDER
The complaint is dismissed in its entirety.