American River Transportation

National Labor Relations Board - Board Decisions

Aug 18, 2006

347 N.L.R.B. 925 (N.L.R.B. 2006)

AMERICAN RIVER TRANSPORTATION CO.
347 NLRB No. 93
925
American River Transportation Co. and Interna-
tional Organization of Masters, Mates and Pi-
lots, ILA, AFL–CIO. Case 14–CA–25753
August 18, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On March 1, 2001, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge issued his decision before the Supreme
Court issued its decision in NLRB v. Kentucky River
Community Care, 532 U.S. 706 (2001).2 The judge
found that prior to May 1999 the Respondent’s towboat
pilots were not supervisors within the meaning of Sec-
tion 2(11) of the Act because, inter alia, the pilots did not
have the supervisory authority to independently assign
work and responsibly direct the crew. He also found that
the Respondent violated Section 8(a)(1) of the Act by
making statements to employees implying that pilots
were assigned supervisory duties after May 1999 to dis-
courage their union or protected concerted activity. He
further found that the post-May 1999 assignment of su-
pervisory duties to the pilots violated Section 8(a)(1) and
(3) of the Act.
We reverse the judge’s findings and shall dismiss the
complaint in its entirety. As more fully discussed below,
the record shows that the pilots were, at all relevant
times, statutory supervisors based on their authority to
responsibly direct and assign employees.3 We therefore

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 carefully examined the record and find no
basis for reversing the findings.
2 In that decision, the Supreme Court rejected the Board’s interpreta-
tion of the phrase “independent judgment,” which appears in Sec.
2(11)’s definition of the term “supervisor.”
3 The Respondent additionally argues that its pilots have supervisory
status based on their authority to effectively recommend hiring; effec-
tively recommend promotion; effectively recommend layoff and recall
from layoff; reward employees; discipline, and effectively recommend
find that the Respondent’s challenged treatment of its
supervisor pilots did not violate the Act.
Relevant Facts
The Respondent uses towboats to push strings of
barges carrying freight along the Mississippi and Illinois
Rivers. The barges are about 200 feet long and the entire
tow may extend over 1000 feet. Each of the Respon-
dent’s 30 towboats operates with a crew of 9–10 indi-
viduals, 24 hours a day, 7 days a week, for most of the
year. The captain, the chief engineer, a watchman, and a
deckhand generally work the “forward watch” consisting
of two shifts from 6 a.m. to noon and 6 p.m. to midnight.
The mate, the pilot, a deckhand, and the assistant engi-
neer/oiler/deckineer generally work the “after watch”
consisting of two shifts from noon to 6 p.m. and mid-
night to 6 a.m. The cook and a call watchman work ei-
ther shift whenever needed. The members of the deck
crew are assigned to the vessels by crew dispatchers, and
to a particular watch by the captain or the mate. The
captain is in complete command of all phases of the ves-
sel operation at all times, regardless of shift. If the cap-
tain is off the boat for any reason, the pilot is expected to
stand in for the captain as the person in charge of the
entire boat, and pilots have done so. The pilot is the
highest ranking official when the captain is off duty.
The pilot is responsible for the safe transport of the
vessels, cargo, and the crew during his watch. Like the
captain, the pilot navigates the boat and tow from the
wheelhouse. As the boat and the tow move along the
river, the crew performs a variety of tasks connected
with dropping off barges from the tow, adding new
barges to the tow, and helping the vessel maneuver locks
and bridges—all under the pilot’s control. During the
locking process, the pilot will frequently rely on a crew
member to serve as a “lookout.” The lookout stands on
the tow or boat, and conveys information to the pilot
about distances and speed as the lock is approached and
entered. The pilot often will require crew members to
attach a line to a stationary fitting in the lock and then
use the line to pull the tow or boat towards the lock’s
wall. In some situations, the pilot has the crew attach an
“assist” tugboat to the front of the tow to help direct the
tow into the lock. The pilot also often relies on the crew
for a lookout or an assist tug to help him safely maneuver
the vessel through bridges that span the river.
When the crew is working on the tow, the pilot gener-
ally uses a radio to transmit, through the mate, his direc-
tives to the deck crew. For instance, when coming upon

discipline of, employees. In view of our resolution of the case, we find
it unnecessary to pass on these additional arguments and the judge’s
corresponding findings pertaining to them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD926
a lock or in connection with tow work, the pilot tells the
mate what he expects to be done, and the mate conveys
that to the rest of the deck crew and oversees the work of
the crew. The pilot can also order the crew members to
perform tasks such as repairing lights, cleaning windows,
fixing depth finders, or other maintenance tasks. The
deck crew is supposed to do what the pilot says—
whether directly or through the mate. As part of his au-
thority to require a crew member to perform tasks that
affect the navigation of the vessel or tow, the pilot may
also change the priority of the crew’s work and instruct
the crew to stop work on one assignment in order to per-
form a navigation assignment for the safety of the boat,
tow, and crew.
Navigation is a complex and skilled undertaking that
requires the pilot to take into account such factors as
time of day, weather, speed and direction of the wind,
depth and width of the river channel, speed of the cur-
rent, size and configuration of the tow, barge draft, capa-
bilities and reliability of the vessel and its electronic
equipment, the maneuverability of the vessel and tow,
the presence or absence of depth finders and other aides
to navigation, the number of vessels in the area, and the
direction the vessel is traveling. The navigational deci-
sions that the pilot makes determine what tasks the mate
and deck crew need to perform. For instance, the pilot
has the authority to post a lookout any time he feels it is
appropriate to do so. The pilot determines how many
lookouts to post and when and where to post them. The
pilot’s authority to direct the crew becomes even more
critical in the pilot’s handling of emergency situations
arising on the after watch.
During his work shifts, the pilot is the contact person
for communications to the boat from land-based man-
agement, fleeting operations, and other boats. The pilot
reports to both the captain of the boat and the port cap-
tain. The pilot receives officer’s benefits, has better
sleeping quarters than the deck crew, and is the second
highest paid person on the boat. The pilot must also un-
dergo an extensive 3–½-year training program. He is
required to have a Coast Guard license to operate unin-
spected towing vessels, and he must follow the many
Coast Guard regulations or else risk losing his license
and his pilot’s job.
The Respondent’s towboat pilots have never been rep-
resented by a union for purposes of collective bargaining.
In 1997, a labor organization known as “Pilots Agree”
began a campaign to organize captains and pilots work-
ing for several river barge companies, including the Re-
spondent. In April 1998, Pilots Agree initiated a strike
against those employers. Roughly one third of the cap-
tains and two thirds of the pilots employed by the Re-
spondent at that time participated in the strike. The Re-
spondent discharged the striking captains, but it rein-
stated the striking pilots after the strike ended.
In September 1998, Masters, Mates and Pilots Union
filed a petition seeking to represent a unit composed of
the Respondent’s towboat pilots. The Regional Director
issued a decision and direction of election rejecting the
Respondent’s contention that the pilots were supervisors.
A Board panel majority denied the Respondent request
for review of the Regional Director’s decision.4 The
election was subsequently held, the Union failed to ob-
tain a majority of the valid votes counted, and the Board
issued a certification of results on February 26, 1999.
However, the Union’s efforts to organize the pilots con-
tinued.
Beginning in May 1999, the Respondent conducted
training sessions for its pilots. John David Cook, the
Respondent’s vice president of operations, spoke at these
training sessions, including the one held on June 8, 1999.
Cook told the pilots that the Respondent had been forced
to make changes in the past to respond to factors such as
drought and flood. He stated that the Respondent would
be changing again in response to what it had learned dur-
ing the 1998 Pilots Agree strike. Cook explained that
prior to the strike the pilots had been seen as persons
with virtually no “say-so” in the management of the boat.
Cook said that the Respondent was now giving pilots
more “say-so” in management. Cook concluded by stat-
ing “[r]est assured,” “we will survive Pilots Agree of
‘98.” At these training sessions, the Respondent in-
formed pilots that new duties were being assigned to
them and that these new duties would be effective Sep-
tember 1999. In this connection, the Respondent issued
a new written pilot job description in May 1999, which
included both some old and new duties for the pilots.
Later, the job description was supplemented by the Re-
spondent’s distribution of a written “additional responsi-
bilities” memorandum for pilots in September 1999.
Both before and after May 1999, the pilots’ responsibil-
ity to make navigational decisions existed, and they ex-
ercised their authority to assign and direct a crew mem-
ber in the performance of tasks involving the navigation
of the vessel and tow, as described above.
Parties’ Contentions
The Respondent argues, contrary to the judge’s deci-
sion, that its pilots possessed supervisory authority and
duties prior to May 1999. It contends, inter alia, that its
pilots were authorized to assign or responsibly direct
work and exercise independent judgment in making work

4 In his partial dissent, former Member Hurtgen indicated that he
would have granted review as to the pilots’ supervisory status.
AMERICAN RIVER TRANSPORTATION CO. 927
assignments and directing the crew. The Respondent
asserts that the Supreme Court’s decision in Kentucky
River, supra, supports finding supervisory status for the
pilots. The Respondent also argues that Cook’s June
remarks are protected by Section 8(c) of the Act and that
any modification, formalization, and assignment of its
pilots’ supervisory duties in May and September 1999
were lawful.
The General Counsel, in agreement with the judge’s
decision, argues that the Respondent did not meet its
burden of proving supervisory status for the pilots. The
General Counsel contends, inter alia, that the Respondent
did not historically treat its pilots as supervisors; it never
informed its pilots that they had supervisory authority;
and the pilots possessed none of the Section 2(11) indicia
of supervisory status. The General Counsel maintains
that the Supreme Court’s Kentucky River decision does
not require any factual or legal findings different than
those made by the judge, and that the judge’s findings of
violations should be upheld.
Discussion
Section 2(11) of the Act defines “supervisor” as:
[A]ny individual having the authority, in the interest of
the employer, to hire, transfer, 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 ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.
Pursuant to this definition, employees are statutory su-
pervisors if they hold the authority to engage in any of
the supervisory functions specified in Section 2(11), their
exercise of such authority requires the use of independ-
ent judgment, and their authority is held in the interest of
the employer. The possession of any one of the indicia
specified in Section 2(11) is sufficient to confer supervi-
sory status. The burden of proving supervisory authority
is on the party asserting it.5
We find that at all times relevant the Respondents’ pi-
lots have been supervisors within the meaning of Section
2(11). They have authority to responsibly direct the
towboat crew in their work and to assign work. They use
independent judgment in exercising that authority, and
they do so in the interest of the employer. Our finding
that the Respondents’ pilots are statutory supervisors
based on their authority to responsibly direct and assign
employees is consistent with the approach taken by the
Board in several similar post-Kentucky River pilots

5 Kentucky River, 532 U.S. at 711–713.
cases. In those cases, the Board found that the pilots at
issue used independent judgment in exercising their au-
thority to responsibly direct the towboat crew in their
work and to assign work to the crew. See Ingram Barge
Co., 336 NLRB 1259 (2001); Alter Barge Line, Inc., 336
NLRB 1266 (2001); and American Commercial Barge
Line Co., 337 NLRB 1070 (2002). For instance, in
American Commercial Barge Line Co., id. at 1072, the
Board considered that, “[c]onsistent with Kentucky
River, . . . the scope of discretion exercised by the pilots
to direct and assign the crew involves independent judg-
ment.”6
Here, the Respondent’s pilots have the authority to
make assignments and reassignments of the crew and
order the crew to perform particular tasks such as stand-
ing lookout, repairing lights, cleaning windows, and fix-
ing depth finders. During the course of navigation, the
pilots use independent judgment to determine that the
assignment of certain tasks to the crew is necessary for
the safe passage of the boat and tow.7 The pilots do not
check with others before ordering that action be taken.8
That the pilots’ instructions and orders often are routed
through the mate does not diminish the pilots’ responsi-
ble direction inasmuch as the instructions and orders
remain those of the pilots.9 The pilots are in charge of
the after watch and serve as the sole wheelhouse official
responsible for the safety of the vessel, crew, and cargo.
They have authority over the crew during emergencies.
Finally, the pilots also possess the following secondary
indicia of supervisory authority; higher pay, better bene-
fits, and better sleeping quarters.
Our finding of supervisory status for the Respondent’s
pilots means that the complaint allegations involving
them must be dismissed. An employer may lawfully
modify, formalize, or add to the authorities and duties of
its supervisors, and it may take action against its supervi-
sors for their participation in union activity. Similarly,
the Respondent may make statements to supervisors
which might violate Section 8(a)(1) if made to employ-
ees. Accordingly, Cook’s statements at the June training
session did not violate Section 8(a)(1) of the Act and the

6 Our recent adoption of the judge’s supplemental decision in Mar-
quette Transportation/Bluegrass Marine, 346 NLRB No. 54 (2006),
lends further support for the result reached here because the responsi-
bilities, authorities, and duties of the Respondent’s pilots are strikingly
similar to those possessed by the Marquette supervisor pilots.
7 See Alter Barge Line, Inc., supra, at 1271 (supervisor pilots must
judge how best to apply the skills of the crew).
8 That the pilots’ orders are based on their extensive training, experi-
ence, and skill as navigators is not inconsistent with their exercise of
independent judgment in directing and assigning work of the crew. See
American Commercial Barge Line Co., supra, at 1071–1072.
9 See id. at 1071.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD928
Respondent’s distribution of the job description and the
“additional responsibilities” memorandum to the pilots
and the corresponding assignment of purported new du-
ties to the pilots did not violate Section 8(a)(1) and (3) of
the Act.
ORDER
The complaint is dismissed.
MEMBER WALSH, concurring in the result.
I concur in the result reached by my colleagues, but
not in their rationale. In particular, I do not agree that
the majority’s analysis of the pilots’ alleged authority to
assign and to responsibly direct other employees, or of
the pilots’ alleged exercise of independent judgment, is
necessarily the proper way to harmonize the result in this
case with the concerns expressed by the Supreme Court
in NLRB v. Kentucky River Community Care, 532 U.S.
706 (2001). Nonetheless, I concur in the result based
solely on the fact that I acknowledge that the material
facts concerning the supervisory status of the Respon-
dent’s pilots cannot be meaningfully distinguished from
those in current Board precedent involving the same pilot
classification in which supervisory status was found. See
Marquette Transportation/Bluegrass Marine, 346 NLRB
No. 54 (2006), and cases cited therein. By citing those
cases, however, I do not necessarily agree that they were
properly decided.
Paula B. Givens, Esq., for the General Counsel.
Scott V. Rozmus, Esq., Jerry McInnis, Esq., and Darren M.
Mungerson, Esq. (Jenner & Block), of Chicago Illinois, for
the Respondent.
John M. Singleton, Esq., of Linthicum Heights, Maryland, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was
tried in St. Louis, Missouri, over the course of 10 days in May,
July, and September 2000. The initial charge was filed by the
International Organization of Masters, Mates & Pilots, AFL–
CIO (the Union), on September 20, 1999, against American
River Transportation Company (the Respondent or ARTCO).
The Union filed an amended charge on December 27, 1999,
and the complaint was issued on December 30, 1999.
The Respondent is in the business of transporting freight by
river barge. On September 24, 1998, the Union filed a petition
with the Board asking to be certified as the bargaining repre-
sentative of the Respondent’s pilots. The Respondent argued
that the petition should be dismissed and contended that pilots
were statutory supervisors under Section 2(11), and therefore
not “employees” who had the right to bargain collectively. On
November 20, 1998, the Director of Region 14 issued a deci-
sion directing that an election be held, and rejecting the Re-
spondent’s contention that pilots were supervisors. The Re-
spondent asked that the Board review this decision, but the
Board denied that request on January 21, 1999. A representa-
tion election was held, and on February 26, 1999, results were
certified showing the union had failed to garner a majority of
the valid ballots cast.
Subsequent to the election, the Respondent called its pilots
together for a series of meetings and issued certain training and
administrative documents to them. The complaint alleges that
in the course of these activities the Respondent violated Section
8(a)(1) and (3) of the Act by discriminatorily assigning super-
visory duties to pilots and by making statements to pilots im-
plying that the Respondent had assigned the supervisory duties
to discourage union support and membership. The Respondent
filed an answer denying the essential allegations of the com-
plaint. The Respondent re-asserted its contention that pilots
have always been statutory supervisors within the meaning of
Section 2(11)—a contention which, if accepted, would mean
that the pilots did not have rights under the Act that could have
been violated by the assignment to them of supervisory duties
or the statements by the Respondent regarding such assign-
ment.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent,1 I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Delaware corporation with its principal
office in Decatur, Illinois, is engaged in the interstate transpor-
tation of freight by river barge. During the 12-month period
ending November 30, 1999, the Respondent derived gross
revenues in excess of $50,000 for the transportation of freight
from the State of Missouri directly to points outside the State of
Missouri. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Prior representation case decision
On January 21, 1999, in a prior proceeding, the Board up-
held a decision by the Director of Region 14 that the Respon-
dent’s pilots and pilots-in-training (pilots B/steersman) consti-
tuted a unit appropriate for purposes of collective bargaining.
(GC Exh. 2C.) The decision upheld by the Board explicitly
rejected the Respondent’s contention that pilots were statutory
supervisors under Section 2(11) of the Act. (GC Exh. 2B.)
The decision noted that it is the towboat captain, not the pilot,
who is responsible for deciding which crew members will work
on which shifts, recommending promotion of watchmen and
mates, and recommending promotion (with the mate) of deck-
hands. The decision found that the Respondent’s pilots did not
have authority to perform those activities, nor did they have the

1 The Charging Party Union did not file a brief.
AMERICAN RIVER TRANSPORTATION CO. 929
authority to transfer, suspend, lay off, recall, promote, assign,
or reward members of the crew. The decision observes that
although the navigator of the vessel—regardless of whether it is
the pilot or the captain—communicates directions to the deck
crew during certain procedures, “[i]n practice the navigator and
the crew are faced with performing all of these procedures on a
regular basis, and that crew members generally need little to no
direction.” The decision indicates the directions given to crew
by the Respondent’s pilots are “routine in nature” and do not
“require the use of independent judgment.” The Regional Di-
rector acknowledged that pilots use considerable experience
and skill in navigating the boats and tows, but cited Board
precedent that when a skilled worker directs his helpers, such
direction is not sufficient to make the skilled worker a supervi-
sor. The decision concluded that the “duties and responsibili-
ties of pilots do not reflect the degree of responsible direction
or effective recommendation necessary to confer supervisory
stat[us] within the meaning of Section 2(11) of the Act.” In
addition to rejecting the argument that the pilots were supervi-
sors, the decision rejected the Respondent’s argument that the
Union was not a bona fide labor organization, and accepted the
Respondent’s argument that pilots in training (pilots B or
steersmen) shared a community of interest with the pilots and
should be included in the unit with the pilots.2
2. The Respondent’s towboat operation
The Respondent operates approximately 30 river towboats,
also known as “line boats,” on the Mississippi River and the
Illinois River.3 The towboats push groups of from 15 to 48
river barges—called “tows”—which carry grain, grain prod-
ucts, salt, coal, steel, fertilizer, vegetable oils, beverage alcohol,
denatured alcohol, and caustic soda. The Respondent trans-
ports freight primarily for the Archer Daniels Midland Com-
pany (ADM), although approximately 30 percent of the freight
is not ADM-related.4 The barges themselves are quite large—
between 195 and 200 feet long—and the entire tow may be
over 1000 feet in length.
The Respondent’s towboats operate 24 hours a day, 7 days a
week, and upwards of 350 days a year. Typically, a crew

2 Despite the prior decision, affirmed by the Board, in the Represen-
tation case, the Respondent is entitled to relitigate the issue of the su-
pervisory status of pilots in this unfair labor practice case alleging
violations of Sec.8(a)(1) and (3). Brusco Tug & Barge Co., 330
NLRB 1188, 1189 (2000). However, the Board may give the prior
decision a “certain persuasive relevance” or a “kind of administrative
comity” in this unfair labor practice case, “subject to the reconsidera-
tion and to any additional evidence adduced in the unfair labor practice
case.” Id.
3 The Respondent also has operations in South America, which are
not relevant here.
4 Although the precise relationship between the Respondent and
ADM is not clear from the record, documentary evidence indicates that
the Respondent’s president reports to ADM’s vice president of trans-
portation. GC Exh. 80(i). It is also plain that ADM controls the labor
relations activities of the Respondent. Robert Creviston, manager of
labor relations for ADM, testified that he was the one responsible for
coordinating the response to the unionizing campaign affecting the
Respondent and that he was the one who made the decision to termi-
nate the Respondent’s striking captains.
boards for a 30-day period or “trip” and then is relieved by
another crew which boards for the next 30-day period. The
towboats operating on the “upper” Mississippi (north of St.
Louis) and the Illinois River have crews of 10—the captain
(also known as the “master” of the vessel), the watchman, the
chief engineer, the mate, the pilot, two deckhands, an assistant
engineer/oiler/deckineer, a call watchman, and a cook. Each
day is divided into four shifts of 6 hours each. The shifts from
6 a.m. to noon, and from 6 p.m. to midnight are known as the
“forward watch.” The captain, the chief engineer, a watchman,
and one deckhand, generally work on the forward watch. The
shifts from noon to 6 p.m. and from midnight to 6 a.m., are
known as the “after watch” or “aft watch.” The mate, the pilot,
one deckhand, and the assistant engineer/oiler/deckineer gener-
ally work on the after watch. The call watchman works when
an additional deckhand is needed, regardless of shift, but he or
she is not permitted to work more than 12 hours during a 24-
hour period. The captain and the mate decide whether to wake
the call watchman. (Tr. 83, 85, 416, 556–557, 1726–1727.)5
The cook works based on when meals are prepared and served.
On the lower Mississippi (south of St. Louis) the towboats have
a crew of nine persons. The crew members and the shifts
worked are the same as on the upper Mississippi, except that
there is no assistant engineer/oiler/deckineer. The captain is in
complete command of all phases of vessel operation at all
times, regardless of shift. (GC Exh. 76, p. 2.)
The Respondent’s towboats have five decks and vary in size
and horsepower, but one consistent feature is that the upper-
most deck of the boat is the “wheelhouse.” The wheelhouse
has windows all the way around and contains navigational con-
trols and the displays for navigational equipment such as depth
finders.6 The wheelhouse also contains a facsimile (FAX)
machine, telephones, and a radio. These are used for commu-
nicating with the land-based component of the Respondent’s
operation and with other vessels. The captain navigates the
boat from the wheelhouse on the forward watch, and the pilot
navigates from the wheelhouse on the after watch. During their
shifts, the chief engineer and the assistant engineer are usually
in the engine room, and the deck crew (which includes the
mate, watchman, and deckhands) works on the tow and at vari-
ous places around the vessel. The members of the deck crew
are assigned to the vessels by crew dispatchers, and to a par-
ticular watch by the captain or the mate.
As the vessel and tow move along the river, the crew per-
forms a variety of types of tasks. One type is called “tow
work,” which means dropping off barges from the tow, and
adding new barges to the tow. The barges in a tow are held
together by a system of cables, called “wires,” that are wrapped
around stationary fittings on the barges. Tow work generally
takes place in staging areas on the river, known as “fleets.”
The configuration of the barges in the tow must sometimes be

5 The pilot is involved to the extent of giving the mate sufficient ad-
vance notice that certain types of work is coming up so that the mate
can, if he chooses, wake the call watchman in time to perform the
work.
6 Depth finders are apparently also referred to by a variety of other
names, including “fathometers,” “transducers,” and “sounders.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD930
altered to accommodate the addition or removal of barges, or
because of navigational factors. The individual barges them-
selves must be checked from time to time to determine if they
are taking on water or otherwise compromised. The integrity
of the tow’s overall structure must also be maintained, some-
times by tightening the wires holding the barges together in
order to create a more secure tow. Another kind of work in-
volves attaching the boat itself to the tow. This is accom-
plished using a variety of types of wires and other equipment
and is referred to as “facing up.”
As it progresses on the river, the vessel encounters obstacles
such as locks and bridges. During the locking process the cap-
tain or pilot will frequently rely on a crew member to serve as a
“lookout” who stands on the tow or boat, and conveys informa-
tion to the pilot or captain about distances and speed as the lock
is approached and entered.7 Crew members are also often re-
quired to “catch a pin” to help the tow and boat enter the lock
safely. “Catching a pin” means attaching a line to a stationary
fitting in the lock and then using the line to pull the tow or boat
towards the lock’s wall. In some cases an “assist tug”—a boat
that attaches to the front of the tow—is used to help direct the
tow into the lock. The crew must also safely maneuver through
bridges that span the river. Here, too, the captain or pilot may
rely on a lookout or an assist tug.
The deck crew typically performs a variety of maintenance
duties on the boat. Among these are scraping and painting
surfaces, repairing aides to navigation such as depth finders,
replacing or checking the running lights on the boat or tow,
sweeping and mopping, and making the beds and cleaning the
rooms of the captain, the chief engineer, and the pilot.
Royce Wilken is the Respondent’s president. John David
Cook is the Respondent’s vice president of operations and re-
ports directly to Wilken. Raymond Hopkins and Bruce Hussell
are the Respondent’s two port captains and report directly to
Cook, as do the Respondent’s port engineers, and various other
managers. The Respondent’s towboat captains report to Hop-
kins and Hussell. Towboat pilots report to both the towboat
captains and the port captains. (Tr. 51, Tr. 1303.) The record is
clear that the mate and watchman are the ones primarily re-
sponsible for directing and overseeing the work of the deck
crew. Whether, and to what extent, the pilot also has been
involved in directing the deck crew is a central issue in this
case.
3. The strike and union election
The Respondent’s towboat pilots have never been repre-
sented by a union for purposes of collective bargaining. On
April 3, 1998, towboat captains and pilots for a number of river
barge companies, including the Respondent, initiated a strike.
The strike was called by a labor organization known as “Pilots
Agree.” At the time of the strike the Respondent had approxi-
mately 60 captains, 20 of whom participated in the strike. The
Respondent had approximately 56 or 57 pilots, and approxi-
mately 36 (25 full-time and 11 fill-in, “trip,” pilots) partici-

7 The wheelhouse is a superior vantage point for many purposes, but
does not always provide the captain or pilot with an adequate view to
navigate at close quarters, particularly with respect to the tow, portions
of which may be over 1000 feet from the vessel.
pated in the strike. The strike had a severe and deleterious
effect on the Respondent’s operations on the Mississippi and
Illinois rivers. Sixty to seventy percent or more of its boats
ceased operating for a time and the Company was not fully
operational again until the fall of 1998 at the earliest.
On the day the strike began, the Respondent sent an e-mail
message to captains informing them that they were supervisors,
had no protected right to strike, and would be terminated unless
their ships were underway by 6 p.m. The Respondent termi-
nated 20 captains who defied this warning. The captains are
indisputably in overall charge aboard the Respondent’s tow-
boats, and the Board’s Associate General Counsel, Division of
Advice, issued a memorandum opining that the Respondent’s
captains were statutory supervisors who had authority to dis-
charge, discipline, and effectively recommend promotion. 29
NLRB Advice Memorandum Reporter, Par. 35033 (GC Br.,
Exh. A).
Unlike the striking captains, striking pilots were not termi-
nated or threatened with termination. Rather, the Respondent
sent pilots a letter which acknowledged that employees had a
protected right to strike, and which invited them to return to
work. Robert Creviston, the ADM labor relations department
official who made the decision to terminate the captains, testi-
fied that his intent in doing so was to “cut[ ] off the head of the
snake.” (Tr. 955.) Regarding the decision to terminate cap-
tains, but not pilots, Creviston explained, “[Y]ou don’t kill the
snake by cutting it in the middle; you kill the snake by cutting
the head off.” Id.
It is not clear from the record precisely when the strike
ended, however, it appears to have been sometime prior to
September 24, 1998, when the Union8 filed a petition with the
Board asking to be certified as the bargaining representative of
a unit composed of “[a]ll full-time and regular part-time wheel-
house pilots, operating vessels of the [Respondent] on the
inland waterways.” The Respondent argued that the petition
should be dismissed, and contended, contrary to the implication
of its letter to pilots during the strike, that pilots were statutory
supervisors under Section 2(11) who were precluded from bar-
gaining collectively with the Respondent. The Regional Direc-
tor rejected this argument, and the Board issued an order deny-
ing the Respondent’s subsequent request for review and stating
that the request “raise[d] no substantial issues warranting re-
view.”
A representation election was held and, on February 26,
1999,9 the results of the election were certified. The certified

8 By this time, Pilots Agree had affiliated with the Union.
9 During the trial, the Respondent objected to a line of questioning
by the General Counsel regarding the Respondent’s tactics and themes
in opposing the Union during the organizational campaign, and I re-
served ruling on the objection subject to briefing. See, e.g., Tr. 134–
138. Specifically, the Respondent objected that Sec. 8(c), 29 U.S.C.
Sec. 158(c), precluded testimony regarding the Respondent’s pre-
election appeal that the pilots “give us a year” to improve before decid-
ing to support the Union. In its brief, the Respondent broadens its
argument and contends that “the General Counsel may not use evidence
of Cook’s expressing any views, argument, or opinion at the pilots
meetings that did not contain any threats of reprisal or force of promise
of benefits.” R. Br. at 65. The Respondent’s extremely broad reading
AMERICAN RIVER TRANSPORTATION CO. 931
results showed that 28 ballots were cast in favor of the Union
and 36 against the Union, and that there were 8 challenged
ballots.
After the election, the Union continued in its efforts to or-
ganize the Respondent’s pilots. The Union sent newsletters to
pilots, generally on a monthly basis, counting down the time
until another representation election could be held, and remind-
ing pilots of promises the Respondent had allegedly failed to
keep. One would expect that such activity would not escape
the Respondent’s notice and indeed, the Respondent was aware
that there was continued union activity.10
4. Pilots Meetings and Job Description
Approximately 3 months after the Union lost the election,
the Respondent began a series of 2-day “leadership” training
meetings for its pilots.11 The meetings were held in Decatur,

of Sec. 8(c) has previously been rejected by the Board, which has held
that such statements, while not themselves violations of the Act, may
be evidence of antiunion animus or motivation, Affiliated Foods, Inc.,
328 NLRB 1107 (1999); Lampi, L.LC, 327 NLRB 222 (1998); Gen-
corp, 294 NLRB 717 fn. 1 (1989), citing General Battery Corp., 241
NLRB 1166, 1169 (1979). I am, of course, bound by the Board prece-
dent on this issue. At any rate, I find that the evidence regarding the
Respondent’s use of the “give us a year” slogan was not probative
regarding any issue in this case given Creviston’s undisputed testi-
mony, corroborated by documentary evidence, that he routinely used
the same slogan to respond to other unionizing campaigns. Therefore, I
afford the testimony regarding the “give us a year” slogan no weight in
making my decision. I reject the Respondent’s broader argument,
raised for the first time in its brief, that I may not rely on evidence of
any of Cook’s expressions of views, arguments, or opinions. The Re-
spondent itself called Cook and questioned him extensively about his
statements during the talk. Moreover, the Respondent did not raise
objections at trial to most of the testimony regarding Cook’s presenta-
tion and the Respondent’s brief does not specify what portions of such
testimony the Respondent now maintains I must disallow. The Respon-
dent waived any objection to testimony or other evidence along these
lines to which no objection was lodged at trial. Moreover, as noted
above, the Board has held that such statements may be considered as
evidence of animus.
10 Royce Wilken, the Respondent’s president since March 1999, tes-
tified that prior to May 1999 he had been informed by the labor rela-
tions department that there was still union activity “out there.” Tr.
665–666.
11 Wilken testified that the planning that led to the pilots meetings
began in early 1997 when he and Hopkins “recogniz[ed] that we
needed to . . . provide our people with the skills to manage our vessels.”
Tr. 1292–1293. However, Wilken did not state what caused him and
Hopkins to “recognize” this, and did not even claim that he had decided
at that point to provide pilots with training or new duties. Hopkins
testified about discussions in 1997 or 1998 regarding leadership meet-
ings for captains, but did not state that new duties for pilots were con-
templated at that time. Tr. 1411–115. Moreover, at the mates meet-
ings in March 1999, the mates were provided with documents stating
that mates managed the deck crew under the direction of the captain.
No current or future role for pilots in this was mentioned. I conclude
that the testimony by Wilken and Hopkins is not credible evidence that
in 1997 or 1998 the Respondent was already considering new duties for
pilots.
The first documentary evidence that gives any indication that the
Respondent might be considering training on a management role for
pilots is a proposed meeting agenda for captains meetings from Sep-
Illinois, on May 18 to 19, May 25 to 26, June 8 to 9, and July
20 to 21. Each pilot attended only one of the 2-day sessions.
This was the first time the Respondent brought pilots together
in this fashion for training, although in the past the Respondent
had held training meetings for captains at regular intervals, as
well as for mates. Port captain Hussell sent pilots an e-mail
message on May 13, 1999, which informed them about the
meetings and explained that the Respondent would be “intro-
duc[ing] some new expectations of ARTCO pilots.” (GC Exh.
17.) The message stated that while the Respondent would “in-
troduce some changes at the meetings, the change w[ould] take
place at a later date after all meetings [we]re completed.” Id.
The pilots meetings were attended not only by the pilots, but
also by Wilken, Cook, Hopkins, Hussell, and other officials.
At the beginning of each meeting Cook gave an introductory
presentation in which he explained the purposes of the meeting.
The General Counsel alleges that remarks that Cook made dur-
ing this presentation on June 8, 1999, violated Section 8(a)(1)
by “impl[ying] to employees that Respondent assigned them
supervisory duties in order to discourage their support for
and/or membership in the Union.”
The witness accounts of precisely what Cook said differ sub-
stantially, even among those witnesses who testified for the
same side about the same meeting. Based on credible testi-
mony, and on Cook’s own notes regarding what he said at the
meeting, (R Exh. 15), I find that Cook covered a number of
subjects at the June 8 meeting. First Cook welcomed the pilots
and informed them that this was the first series of pilots meet-
ing that the Respondent had conducted in 25 years. Cook then
recounted that the Respondent had been required to make
changes in the past to respond to factors such as government
regulations, economics, river conditions, the drought of 1988,
and the flood of 1993. He mentioned the 1998 strike by Pilots
Agree, and stated that the Respondent would now be changing
again. The Respondent had “learned a lot” of things from the
strike, Cook explained, and one of the most important was that
pilots were a valuable resource that ARTCO had never fully
utilized. Cook stated that in the past the pilot had been seen as
a person that drives the boat with virtually no say-so in the
management of the boat. He stated that pilots were officers of
the boat, that they earned over 90 percent of what captains
earned, and that it was from the pilots’ ranks that new captains
were drawn. Cook then said, “And all of this is why you are
here today and tomorrow. We are changing again. ARTCO is
going to give you the pilot more ‘say-so’ in managing your
boat.” Cook told employees that the strike had really hurt the
Respondent and that he did not want that ever to happened
again. Cook’s talk concluded with the statement “[r]est as-
sured,” “we will survive Pilots Agree of ‘98.” Cook also stated

tember 1998 (after the strike, and just days before the representation
petition was filed by the Union), which states that the captains were to
be trained on the “role and expectations of Captains/Pilots as Manag-
ers.” R. Exh. 26. However, even that document does not state that
pilots would attend meetings or what the pilots’ role in management
was to be. The first document indicating that pilots meetings involving
new duties were planned is the e-mail notice to pilots dated May 13,
1999 (after the strike, representation petition, and Board decision that
pilots were not supervisors). GC Exh. 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD932
that he felt that ARTCO did not need a union as long as there
were good communications between the boats and the land side
management. (Tr. 869–870).12
Prior to the pilots meetings, the Respondent had never issued
a written job description for the pilot position. Around the time
the pilots meetings began, the Respondent issued a document
entitled “ARTCO Pilot Job Description,” which was dated May
20, 1999. (GC Exh. 22). By all accounts, some of the duties
listed in this document were new for pilots and some were not;
however, the accounts differ substantially regarding how many
of the duties, especially how many of the supervisory-type
duties, were new. Among the pilot duties outlined in the job

12 Witnesses for the General Counsel testified that Cook made addi-
tional, harsher statements. For, example, Lavon R. Church, who at-
tended the June 8–9 pilots meeting, testified that Cook’s final statement
during his introductory remarks was “gentlemen, make no mistake
about it, there will be no more Pilots Agree at ARTCO.” Church’s
account regarding this statement was contradicted by a pilot, and sev-
eral management officials who were present at the meeting and who
testified on behalf of the Respondent. Tom Mason, a witnesses who
attended the May 25–26 pilots meeting, testified that Cook said that
the only reason for the meeting was because of Pilots Agree. Mason
testified that he asked Cook what effect making pilots supervisors
would have on Pilots’ Agree, since supervisors cannot be in a union,
and, according to Mason, Cook responded that the Respondent had
taken a hard hit during the strike and did not want that to ever happen
again. This account was substantially corroborated by Tony Reames, a
pilot who was also present at the meeting. However, the account was
contradicted by Sammy Hutton, another pilot who attended the meet-
ing, as well as by various management officials who were present.
Larry Long, a probationary captain, who attended the July 20–21 pilots
meeting as a pilot, testified that Cook’s remarks included the statement
“we’re making the pilots supervisors; there will be no union at
ARTCO.” John Phelps, a pilot who attended the same meeting, testi-
fied that Cook said that “ARTCO is not union,” “has never been un-
ion,” and will “never be union, and warned that the Respondent would
“do anything in [its] power to prevent it from happening.” These re-
ports by Long and Phelps were contradicted by a number of witnesses
who attended the meeting, including two of the Respondent’s pilots and
various management officials. The question is close, but I find that the
General Counsel has not established that Cook made the additional,
harsher, statements. As I discuss below, I generally found Church,
Mason, Reames, and Long to be credible witnesses, especially with
respect to testimony regarding their duties as pilots, and believe that
they were testifying to the best of their ability regarding the statements
made by Cook at the meetings. However, unlike the pilots’ statements
regarding the nature of their own duties—a subject to which pilots have
ongoing, intensive, and intimate exposure—their recollections regard-
ing the precise wording of remarks they once heard Cook make at a
meeting over a year earlier are susceptible to memory lapses and un-
conscious distortion. Based on the testimony of all the witnesses, as
well as on Cook’s own notes regarding his remarks, I find that the
General Counsel has not established that Cook made the additional
statements, although I have found the testimony of the pilots who testi-
fied for the General Counsel reliable in most other respects. See
American Pine Lodge Nursing, 325 NLRB 98 fn. 1 (1997) (A trier of
fact is not required to accept the entirety of a witness’ testimony, but
may believe some and not all of what a witness says.), enforcement
granted in part, denied in part, 164 F.3d 867 (4th Cir. 1999); Excel
Containers, Inc., 325 NLRB 17 (1997) (nothing is more common in all
kinds of judicial decisions than to believe some and not all, of a wit-
ness’ testimony).
description are: responsibility “for the safety of the crew as
well as the vessel and all other equipment while on watch”;
responsibility to “know[,] follow and enforce all policies, pro-
cedures, safety rules, and practices of ARTCO to all crew
members on his watch;” responsibility to “assist the Captain in
accomplishing all duties in overseeing personnel and delegating
duties in accordance with existing conditions and circum-
stances;” responsibility to “supervise[ ] the deck crew serving
on his watch and [be] accountable to the Captain for their as-
signed task[s];” responsibility to “know and follow the four
step disciplinary process;” responsibility to “use the Employee
Behavioral Evaluation Form for discipline and the recognition
of good work performance, of the deck crew on his watch;”
responsibility to “recommend any crew member for promo-
tion;” responsibility to “receive and execute orders and instruc-
tions from ARTCO Barge Dispatchers regarding pickup, move-
ment and delivery of barges and cargoes during operations to
the assigned vessel and to report progress toward completion of
the assignment;” responsibility to “verify barge drafts and en-
sure that the deck crew checks, pumps or repair[s] leaks to
either the wing tanks or the cargo box of any barge in tow re-
quiring attention;” and, responsibility to “ensure that all tows
are properly built or made up and that the vessel is properly
connected to the tow.”
Subsequent to the pilots meetings, the Respondent also pro-
vided the pilots with a separate document, this one entitled
“The ARTCO Pilot’s Added Responsibilities, Effective 09
Sept. 99.” (GC Exh. 23) (Emphasis added). This document
states:
The full time ARTCO pilot (wheelman on the aft
watch) as second-in-command of the vessel and as a com-
pany supervisor/manager has the following additional re-
sponsibilities: 1. in command of the aft watch; A. to su-
pervise the aft watch deck crew; B. to supervise the entire
aft watch crew in accordance with company policies and
safety rules; C. to recommend crew members on his watch
for promotion, demotion, or probation by completing and
signing the appropriate company forms; D. to evaluate the
aft watch deck crew utilizing the appropriate company
form; E. to discipline as necessary, up to and including
termination, the aft watch crew utilizing the appropriate
company form; 2. to make a written recommendation to
the personnel department for employee hiring; 3. to be
familiar with the memo book and capable of updating the
same; 4. take overall command of the vessel in the ab-
sence of the master (i.e., masters illness or absence).

The General Counsel alleges that the Respondent published
the May 20, 1999 job description which assigned new duties
effective in September of 1999, and the “additional responsi-
bilities” memorandum in order to discourage employees from
engaging in concerted and union activities.
5. The pilot and the pilot’s duties prior to the alleged unfair
labor practices
a. The pilot
One of the central questions in this case is whether the Re-
spondent’s pilots already had supervisory functions at the time
AMERICAN RIVER TRANSPORTATION CO. 933
of the alleged unfair labor practices that began in May 1999.
The record is clear that pilots have always been extremely im-
portant persons aboard the Respondent’s towboats. The pilot
navigates the boat and tow 12 hours out of each day and a mis-
take on his or her part can endanger not only valuable cargo
and equipment, but also the safety of the crew and other per-
sons on the river. On the after watch, the pilot is also the con-
tact person for communications to the boat from land-based
management, fleeting operations, and other boats. The pilot’s
status is recognized in numerous ways. Pilots are the second
highest paid persons on the Respondent’s boats, after the cap-
tain. The pilots receive “officers’ benefits,” along with the
captain, the mate, the chief engineer, the assistant engineer, and
various land-based personnel. The pilots have desirable sleep-
ing quarters on the vessel.
Pilots must undergo extensive training consistent with the
high level of responsibility associated with their duties. An
individual, usually a mate, who wishes to become a pilot must
first find a captain who is willing to teach him to be a pilot.
Then, for a year and a half, the prospective pilot, known as a
“pilot B,” shadows the captain, who endeavors to teach the
pilot B everything necessary to function as a pilot, and evalu-
ates the progress of the pilot B on a regular basis. (See GC
Exh. 50). The entire training program for pilots generally
takes 3-1/2 years. Each of the Respondent’s pilots is required
to have a Coast Guard license to operate uninspected towing
vessels (OUTV license), an endorsement showing that the pilot
can use radar for navigation, and a restricted radiotelephone
operator’s permit.
While it is clear that pilots have always been extremely im-
portant persons on the Respondent’s towboats, being extremely
important is not the same as having supervisory functions. The
testimony regarding whether the pilots had such supervisory
functions was contradictory. The General Counsel’s witnesses
testified that the pilots’ duties had essentially been limited to
driving the boat and conveying information to the mate, crew
members, land-based management, and other boats. The testi-
mony of the Respondent’s witnesses was that far from being
confined to these duties, pilots had long possessed a panoply of
supervisory responsibilities, which included, making recom-
mendations about hiring and promotion, dispensing discipline,
evaluating crew member performance, and responsibly direct-
ing the work of the mate and deck crew. I have no doubt that
witnesses on both sides made efforts to portray the pilots’ du-
ties in the light most favorable to their side. For reasons dis-
cussed below, I generally found the General Counsel’s wit-
nesses more credible on these subjects based on their de-
meanor, the plausibility of the their testimony in light of the
totality of the evidence, and other factors. Moreover, the
documentary evidence in the case painted a clear and quite
consistent picture and tips the scale further in favor of the ac-
counts of the General Counsel’s witnesses. Such documentary
evidence is particularly helpful where, as here, the testimonial
evidence piles contradiction on disagreement on contradiction.
Unlike testimony, pre-existing documentary evidence cannot
easily be shaped or shaded to suit the purposes of subsequent
litigation. See Oil Workers v. NLRB, 445 F.2d 237, 243 (D.C.
Cir. 1971) (in an atmosphere “untainted by live controversies
over the statutory status of any particular group of employees,
management’s statements conferring responsibilities and allo-
cating duties are likely to be more reliable than similar state-
ments made in the context of union conflict when directives are
often addressed as much to the Board as they are to the com-
pany’s personnel”), cert. denied 494 U.S. 1039 (1972). Here,
preexisting documents, which were used, and in most instances
created, by the Respondent itself, contain so much to indicate
pilots did not possess supervisory responsibilities, that in order
to conclude that pilots were supervisors one would almost have
to believe that the Respondent was intentionally keeping pilots’
supervisory powers a secret from towboat personnel, including
the pilots themselves.
b. Documentary evidence regarding pilots’ status and functions
The Respondent has described its operations and procedures
in a number of different documents. Most significantly, the
Respondent maintains a collection of memoranda entitled the
“American River Transportation Company Line Boat Memo
Book” (the bible by crew members and the memo book), which
contains approximately 123 memoranda or entries. (GC Exh.
46). The Respondent has also issued various other memoranda,
training materials, and communications to its line boat person-
nel.
In February and March 1999, prior to the pilots meetings, the
Respondent held a series of meetings for mates at which it dis-
tributed written training materials. The documents distributed
by the Respondent directly contradict its claim here that the
pilot supervises the mate and deck crew. For example, the
Respondent distributed an “ARTCO Leadership” flow chart to
mates that excluded pilots entirely. (GC Exh. 80(i)). The chart
indicates that the deck crew and the watchmen report to the
mates, and that the mates report to the captains, and the cap-
tains reports to the port captains, and so on all the way up to the
CEO of ADM. No role at all is indicated for pilots in this lead-
ership scheme.
At the same mates meetings the Respondent distributed a
document entitled “Expectations of the Mate.” (GC Exh. 80(J)).
This document states that the mate is the manager of the deck
crew and that “as manager of the deck department, [the mates]
report to the Captain.” Id. (Emphasis Added.) The document
continues that: “if you cannot solve a problem yourself, ask the
Captain for advice and assistance. Utilize other resources, such
as Crew Dispatch, when necessary. Always keep the Captain
informed so there are no surprises.” Id. The document in-
forms the mates that as managers of the deck crew, they are
responsible for “assigning watches and work, directing work as
it is being performed, training new deckhands, creating and
maintaining a safe work environment, giving reprimands and
implementing corrective discipline, and evaluating employees
for the purpose of recommending promotions.” Id. The docu-
ment states that mates and watchmen perform various functions
under the direction of the captain, but never once informs them
that any activity is performed under the direction of the pilot.
For example, the document states that the mate is to: “create a
safety culture for the crew” “under the direction of the Cap-
tain”; “comply with the confined space entry program as im-
plemented by the Captain”; “administer the hazard communi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD934
cation program under the Captain’s direction”; “administer the
respiratory protection program under the Captain’s direction”;
and “prepare and lead a weekly safety meeting under the Cap-
tain’s direction.” Id. (Emphasis added.)
It is wholly implausible that if pilots were, as alleged by the
Respondent, the supervisors of the mates and deck crews the
Respondent would simply fail to inform mates about the pilots’
supervisory role during these meeting dedicated to “leader-
ship.” These documents are powerful evidence that the mate is
the manager of the deck crew and performs those managerial
duties under the direction of the captain, not the pilot.
The Respondent’s written communications to captains con-
vey the same message—i.e., that the captains, not the pilots,
supervise the mates and oversee the mates’ direction of the
deckhands. An “all boats” memorandum dated October 2,
1998, states that “[e]ach Captain needs to meet with their Mate
each day and discuss what is being done on the vessel and to
help the Mate manage his time well in the next 24 hours.” (GC
Exh. 77.) Similarly, the memo book states that in order “to
coordinate daily activity and projects on the boat,” “[t]he Cap-
tain needs to meet with his mate each day,” “[d]iscuss what is
scheduled on the vessel for the next 24 hours,” and “[a]id the
mate prioritizing his time.” (GC Exh. 8, GC Exh. 46.) There
is no mention in this document of the pilot having meetings
with the mate, nor is there is any mention of the mate confer-
ring with the pilot regarding work to be done over the next 24
hours. It is highly unlikely that pilots would not be included in
this process if they were, as the Respondent contends, the su-
pervisor of the deck crew. Moreover, while the above-
discussed documents explicitly provide that the captain and the
mate supervise the deck crew, Management Officials Wilken
and Hopkins conceded that, prior to May of 1999, no document
was given to pilots or mates informing either of the pilots’ sup-
posed supervisory function. (Tr. 714, Tr. 764, Tr. 1560.) In-
deed, neither Wilken nor Hopkins is aware of the pilots’ super-
visory authority ever being mentioned to mates. (Tr. 715–716,
Tr. 760, Tr. 1561.)
The same theme—that the captain and the mate, not the pi-
lot, supervise the deck crew—is repeated in a training manual
that the Respondent gives to all new deckhands. (GC Exh. 5;
Tr. 624.)13 The section of this manual entitled “chain of com-
mand” states: “The Captain on your boat is the man in full
charge. He gives orders to the Deck Supervisor, the Mate or
Head Deckhand of the deck department. You will look to him
for orders and instructions about your work.” The Respondent
even communicated this information to guests on its towboats.
A document entitled “Information For Our Towboat Guests”
states that “the Master on board (Captain) is in complete com-
mand of all phases of vessel operation at all times.” (GC Exh.
76, p. 2) (Emphasis in original.) The materials also inform the
guests that if “larger problems occur, feel free to ask the Cap-

13 The deckhand’s manual was not created by the Respondent, how-
ever, the Respondent does issue it to new deckhands and requires them
to sign a statement that they have received a copy for their “use and
reading.” GC Exh. 29.
tain and we’re sure he will accomplish anything necessary to
make your tenure onboard as comfortable as possible.”14
When, in documents issued prior to May 1999, the Respon-
dent discussed some of the specific types of supervisory func-
tions that the Respondent now claims pilots possessed (e.g.,
evaluating performance, enforcing safety and other rules, over-
seeing the work of the deck crew) a role is consistently ac-
knowledged for captains and sometimes mates or chief engi-
neers, but not for pilots. For example, during the relevant pe-
riod, the memo book provided that captains, mates, and chief
engineers would fill out employee evaluations, but it gave no
such authority to pilots. (GC Exh. 46 at Sec. 3.019; see also
GC Exh. 6, GC Exh. 30, GC Exh. 31.) It was not until Septem-
ber of 1999, after the pilots meetings, that the Respondent
modified its employee evaluation forms to permit pilots to sign
them. (GC Exh. 25.)
The Respondent contends that, prior to the 1999 pilots meet-
ings, the pilots issued verbal discipline, but its witnesses have
conceded that this discipline was not reduced to writing or
included in the recipient’s personnel records. The Respon-
dent’s memorandum describing its disciplinary system, how-
ever, explicitly states that there are four types of discipline—
verbal warning, written warning, probation, and discharge—
and that even in case of the verbal warning a written record of
the discipline must be placed in the employee’s personnel file.
(GC Exh. 61, p. 3.) The Respondent’s pre-5/99 discipline form
indicates that “verbal discipline” is to be recorded even when
such discipline is for “information only.” (GC Exh. 32.)
These documents show that the Respondent’s sanctioned forms
of discipline did not include the type of unrecorded verbal
discipline that it now claims its pilots were authorized to issue.
I do not doubt that the Respondent’s pilots have on occasion
chastised crew members who they believed were performing
poorly, however, the Respondent’s own records indicate that
when pilots did so they were not issuing discipline recognized
or sanctioned by the Respondent.
Documentary evidence regarding the promotion of new, or
“green,” deckhands to experienced deckhand entitled to “ex-
perienced” pay, also indicates that the pilots were not part of
this process. For example, an experienced deckhand evaluation
checkoff form in the record shows that it was completed by
mates, not by the pilot. (GC Exh. 33f.) Indeed, the Respon-
dent’s witness Hopkins conceded that it was the mate or the
captain who filled out the written evaluations relevant to the

14 The Respondent points out that the document advises guests not to
go onto the tow without the captain’s or pilot’s permission, and argues
that this indicates that the pilots are supervisory employees. I disagree
that any such inference is appropriate. First the portion relied on by
the Respondent describes a relationship between pilots and nonem-
ployee guests, and therefore is not relevant to the question of whether
the pilots supervise the Respondent’s employees. This is especially
true given the prior statement in the same memo that the captain is “in
complete command of all phases of the vessel operation at all times.”
In addition, the captain and the pilot are the persons easiest to contact
about entry to the tow since the captain or pilot can always be found in
the wheelhouse on their respective shifts, whereas the mate, watchman,
and deckhands may be almost anywhere on the boat or tow.
AMERICAN RIVER TRANSPORTATION CO. 935
promotion of deckhands to experienced status. (Tr. 1581–
1582.)
The Respondent contends that prior to May 1999 its pilots
enforced safety rules and other policies and procedures, but this
claim is belied by its own documents. A memorandum, dated
November 25, 1996, regarding safety awards, directs “mates”
and “captains” to “constantly enforce all ARTCO safety rules
and policies.” (GC Exh. 62) (Emphasis added.) The same
memorandum does not direct pilots to enforce safety rules and
policies, but rather states that the “Pilot, Chief,
Asst./Oiler/Deckineer, Watchman, Cook, Deckhands” must
“[c]omply with” and “[e]ncourage . . . shipmates to comply
with all ARTCO safety rules and polices.” Id. (Emphasis
added). In another memorandum, this one dated September 25,
1990, the Respondent states that it is “the duty of the Master . .
. to see that [safety rules] are enforced,” and the duty of the
other crew members to know and follow safety rules. (GC
Exh. 63.) Here, again, the pilot is not given responsibility to
enforce the safety rules. Similarly, the memo book contains an
entry dated December 6, 1995, stating that injuries of deck
crew members should be investigated by the mate because he is
“their front-line supervisor” and that “it is the responsibility of
the Captain to ensure that there is a thorough investigation.”
(GC Exh. 46, Memo 4.018 (12/6/95).) A separate entry in the
memo book, this one dated October 4, 1998, directs that all acts
of violence be reported to the captain or the Respondent’s St.
Louis operations office, but does not require that pilots be in-
formed of such transgressions, regardless of which watch they
occur on. (GC Exh. 46, Memo 6.011 (10/4/98).) A section in
the memo book states that captains must be trained in the ad-
ministration of regulations every year, but does not require
pilots to undergo the training in administration. (GC Exh. 46,
Memo 6.010 (12/25/97).)
The memo book also contains many entries that give author-
ity to the captain and the mates, or even the watchmen, to over-
see the crew and the work of the crew, but do not give this
authority to the pilot. For example, crew members may disem-
bark only with the permission of the captain, and must inform
the captain if they will need to be excused for a court date,
regardless of which watch the crew member works on or is
boarding during. (GC Exh. 46 memo 6.006 (6/5/92) and memo
6.007(6/14/90).) When a crew member is injured, regardless of
watch, the memo book provides that it is the captain who de-
cides whether the person can continue working in a modified
duty capacity or whether the person must disembark. Id.
Memo 6.009 (12/2/96). If the captain determines that the per-
son must disembark, it is also “the captain” who “should make
sure for the person’s financial situation” regardless of watch.
Id. Memo 6.008 (11/3/93). Another section of the memo book
gives the captain, mate, and watchmen all responsibilities re-
garding the pumping of compromised wing tanks, but does not
give the pilot any responsibilities, regardless of watch. Id.
Memo 1.007 (9/29/98). A memorandum, this one dated July
19, 1995, and directed to “all captains/mates/watchmen,” in-
forms the captains, mates, and watchmen that they are respon-
sible for barge maintenance and inspection, and for the docu-
mentation of the same. (GC Exh. 56 (7/19/95).) The memoran-
dum provides that the required forms “must be signed by the
mate/watchman on duty,” and that the captain must also sign
them, without regard to whether it is the captain or the pilot
who is on duty.
Documents regarding the requisition and distribution of sup-
plies give responsibilities to captains, mates, and chief engi-
neers, but not to the pilots. For example, the memo book con-
tains an entry that gives the captain responsibility for requisi-
tions and states that in the captain’s absence the chief engineer
will sign the requisition forms. (GC 46, memorandum 3.010
(9/30/98).) A memorandum, dated October 9, 1996, states that
the responsibility for the distribution of safety gloves is “in the
hands of the Mates . . . but the overall responsibility still lies
with the Captain as it does for everything on Board.” (GC Exh.
54 (10/9/96).)
Documents created by the Respondent at the time of the
strike also indicate that it considered pilots to be non-
supervisory employees, and did not, as it now contends, al-
ways view its pilots as supervisors. During the strike the Re-
spondent sent letters to pilots, over the signature of then-
President Craig Fischer (and apparently drafted largely by Cre-
viston), which read in relevant part:
Pilots have asked about the procedures to be followed
should they desire to return from the strike. We recognize
that employees have the protected right to take concerted
action by not returning to their jobs during an economic
strike. Any pilot who wishes to return to work is welcome
to request to do so and, upon receiving an assignment, to
return to whichever line boat the pilot may be assigned to
by the Company. . . . Those pilots who remain on strike
will not earn wages or benefits from ARTCO for the dura-
tion of the strike and remain subject to being permanently
replaced.
(GC Exh. 39, p. 2.) Captains, on the other hand, received a
written communication stating that they were “ARTCO super-
visor[s]” and as such had “NO PROTECTED RIGHT TO
STRIKE under the National Labor Relations Act” and would
be terminated if they participated in the strike. (GC Exh. 35a.)
The Respondent points to documents which it claims support
its litigation position that line boat pilots have always been
supervisors. The Respondent notes in particular a memoran-
dum, dated August 1, 1990 (R. Exh. 8a), which while not ad-
dressed to pilots (Tr. 1680–1681), states that “you [the captain,]
and the other officers of your boat are management personnel
and as such, you are to counsel” problem employees, and com-
plete a counseling form. The Respondent argues that this
memorandum applies to pilots since they receive its “officers’
benefits.” However, the evidence showed that officers’ bene-
fits are provided to a number of employees who are not offi-
cers, (Tr. 1440), including, apparently, assistant engineers and
office personnel. (Tr. 1319, Tr. 1777.) Thus, the fact that
pilots receive “officers’ benefits” does not mean that they are
officers, or that the August 1 memo applied to them. More-
over, even Management Official Hopkins conceded that being
an officer does not equate with any particular authorities. (Tr.
1438.) Management Official Cook stated that he was not aware
of a pilot ever completing one of the counseling forms that the
memorandum says “officers” are required to complete.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD936
The Respondent also notes that the payroll code “101” signi-
fies “ARTCO SUPV”—presumably standing for “ARTCO
supervisor”—and that personnel records show that pilots were
designated “101.” (R. Br. at 58–59.) However, the evidence
shows that the “101” payroll code is also applied to the assis-
tant engineer position, (R. Exh. 25), even though assistant en-
gineers are, according to the Respondent, not supervisors.
Moreover, I consider documentation regarding titles much less
significant than the documentation regarding the actual authori-
ties, duties, and responsibilities of the crew members. As dis-
cussed above, the latter type of documentation reveals that the
Respondent repeatedly excluded pilots from the group of per-
sons exercising supervisory responsibilities. The Board has
affirmed the view that it is an individual’s actual powers, duties
and responsibilities that determine whether he or she is a su-
pervisor, not the individual’s title. Carlisle Engineered Prod-
ucts, Inc., 330 NLRB 1359 (2000); Chevron U.S.A., 309 NLRB
59, 61 (1992) (“[j]ob titles are unimportant”); Walla Walla
Union Bulletin v. NLRB, 631 F.2d 609, 612–613 (9th Cir. 1980)
(“[T]he specific job title of the employees is not controlling.’”)
In summary, while the Respondent maintains an extensive
collection of organizational and procedural memoranda and
documents, and while many of these clearly give supervisory
authorities to captains, without meaningful exception, show
that pilots are not possessed of such authority. The documents
from the period prior to May 1999 create a very consistent and
clear picture: the mate directs the work of the deck crew and
performs this function under the captain’s oversight and direc-
tion; the pilot does not supervise the deck crew or anyone else
aboard the boat and tow. The supposedly contrary documen-
tary evidence relied on by the Respondent is at best stray drop-
lets of spray from a current of evidence that is flowing power-
fully in another direction.
c. Credibility of testimonial evidence regarding pilots’ status
and functions
In general, I found the testimony of the General Counsel’s
witnesses more credible than that of the Respondent’s wit-
nesses regarding the status and functions of pilots. In partciu-
lar, I found the testimony of Lavon R. “Rod” Church (pilot
with Respondent), Tony Reames (pilot with Respondent),
Thomas Mason (pilot with Respondent), and Jeremiah L. Long
Jr. (former Respondent pilot, recently promoted to probationary
captain at time of testimony) very credible on the subject of the
functions of the Respondent’s pilots. I base this on the de-
meanor of each of these witnesses on the stand. Generally,
these witnesses appeared to testify in a forthright and coopera-
tive manner. What the Respondent attempts to characterize as
instances of self-contradiction or evasiveness during their tes-
timony are, by and large, more accurately seen as disagree-
ments over semantics, and do not alter my impression that these
witnesses testified truthfully regarding those matters.15 In addi-

15 These witnesses testified that as pilots they lacked certain respon-
sibilities or powers, and that the Respondent had never informed them
that they did have these responsibilities or powers. On cross-
examination, Respondent’s counsel elicited testimony that the Respon-
dent had never explicitly told them that pilots did not have these re-
sponsibilities or powers, and that they therefore could not “be sure” that
tion, I based my conclusion regarding credibility on the plausi-
bility of the testimony of Church, Reames, Mason, and Long in
light of the totality of the evidence.16
The Respondent forwards myriad arguments regarding the
credibility of the General Counsel’s witnesses, only a few of
which warrant discussion. The Respondent argues repeatedly
in its brief that Long cannot be credited because he gave the
“ridiculous” and “outlandish” testimony that he had never used
a lookout on the upper Mississippi River. (R. Br. at 35; 74; 85;
93 fn.19.) Long has 10 years of experience with the Respon-
dent as a pilot, and at the time he testified had recently been
promoted to probationary captain. Moreover, although Long
had previously been a pilot and a member of Pilots Agree, he
did not participate in the strike. With respect to the matter of
Long’s testimony about the use of lookouts, I did not while
observing him at trial, and do not now after carefully reviewing
the trial transcript, understand Long’s testimony in the way
counsel for the Respondent suggests that I should. Long did
not state that he had never needed lookout assistance, but rather
that when he needed such assistance he had relied on the mate
to stand lookout for him, and that he had never directed or des-
ignated a deckhand to be a lookout. (See Tr. 589–590, Tr.
605–608.) The record does not, in my view, establish that this
statement by Long is untrue, much less that it is, as Respondent
contends, so ridiculous or outlandish as to warrant discrediting
all of Long’s testimony.17
The Respondent also asserts that Long should not be be-
lieved because he stated that the captain is not “in command”

they lacked them. I do not consider it particularly telling that the Re-
spondent did not enumerate to pilots all the duties that they did not
possess. As a general matter, new personnel are told what their job is,
not what it is not, and are told what their duties are, not what their
duties are not. See Chevron U.S.A., 309 NLRB at 62 (“the evidence
must ‘fairly’ show . . . ‘that the alleged supervisor knew of his authority
to exercise’ the supervisory power”) (quoting NLRB v. Tio Pepe, Inc.,
629 F.2d 964, 969 (4th Cir. 1980)).
16 My credibility findings with respect to these witnesses are made
independently of the fact that they were working for the Respondent at
the time they testified. I nevertheless note that these findings are con-
sistent with the Board’s view that the testimony of a current employee
that is adverse to his employer is “given at considerable risk of eco-
nomic reprisal, including loss of employment . . . and for this reason
not likely to be false.” Shop-Rite Supermarket, 231 NLRB 500, 505 fn.
22 (1977); see also Flexsteel Industries, 316 NLRB 745 (1995), enfd.
83 F.3d 419 (5th Cir. 1996).
17 The Respondent also claims that Long was “identifi[ed] by other
witnesses as an individual with a reputation for falsity.” R. Br. at 93 fn.
19. However, the claim that witnesses testified to this is itself of ques-
tionable veracity since the portions of the record relied on by the Re-
spondent include the testimony of only one such witness, port captain
Bruce Hussel. Moreover, Hussell’s testimony made clear that he did
not have a basis for testifying about Long’s general “reputation” in the
community, but rather was simply stating his own personal view that
Long had not been honest with him. Indeed, while Hussell claimed that
port captain Hopkins, a management witness, was aware of Long’s
supposed reputation for dishonesty, Hopkins himself denied this and
stated that he was not aware of Long having a reputation for dishon-
esty. Similarly, management witness Ernest Mathes, Jr., who described
himself as “100% ADM man,” stated that Long had no reputation for
dishonesty.
AMERICAN RIVER TRANSPORTATION CO. 937
of the after watch, a view that was contrary to the testimony of
other witnesses for the General Counsel. (R. Br. at 35, 85.)
However, Respondent itself has issued a document that cor-
roborates Long’s view that the captain is in command of the
after watch. In that document the Respondent emphatically
states that the “(Captain) is in complete command of all phases
of vessel operation at all times.” (GC Exh. 76, p. 2 (emphasis
original).) Therefore, I do not believe that Long’s statement
that the captain, not the pilot, is in command of the vessel on
the after watch is incredible, or even necessarily inaccurate.
On the other hand, a number of the Respondent’s most im-
portant witnesses had very real credibility problems. Port cap-
tain Hopkins claimed that pilots had an array of supervisory
responsibilities prior to May 1999 that were not documented in
any way. I am unwilling to take Hopkins’ “word” regarding
these undocumented matters since he revealed himself to be a
facile historian. Indeed, some of Hopkins testimony regarding
significant matters was so utterly impeached that I hesitate to
credit his statements regarding any disputed matter, and in
general have given his testimony very little weight.
Hopkins was forced to admit on more than one occasion that
as far as he knew no pilot had ever exercised a supervisory
function he claimed pilots had, (Tr. 1581–1583), and when
Hopkins did claim knowledge about the specifics of a pilot’s
exercise of supervisory functions his testimony was shown in
some cases to be simply false. For example, in an effort to
substantiate the contention that pilots effectively recommended
hiring, Hopkins testified that pilot Ray Standridge recom-
mended that Hopkins hire Charlie Marshall and Bill Upchurch
as pilots. Hopkins testified that he had conversations with
Standridge about Marshall’s and Upchurch’s respective candi-
dacies and Hopkins even went so far as to recount some details
of those conversations. Hopkins said that he remembered see-
ing a note he had written to himself stating that Standridge
recommended Marshall and Upchurch. The problem with this
testimony is that both Marshall and Upchurch were hired be-
fore Standridge. This rendered it impossible that Standridge,
when an ARTCO pilot, recommended that Marshall and
Upchurch be hired, and also highly impropable that Hopkins
had had the conversations with Standridge that he claimed to
have had or wrote himself the note that he claims to have writ-
ten.
Hopkins’ trial testimony was at that point interrupted for
over a month because of a medical emergency suffered by one
of the participants in the trial. When Hopkins resumed the
witness stand he became yet more entangled. He indicated that
he became aware of the employment connections between
Standridge, Marshall, and Upchurch during an effort to revive
his memory about instances where pilots had effectively rec-
ommended hiring. He explained that when he testified previ-
ously he merely got the parties “backwards” and that it was
Marshall and Upchurch who had recommended Standridge, not
the other way around. This account was itself impeached by
documentary evidence that both Marshall and Upchurch were
captains—and therefore recognized supervisors—at the time
that Standridge was hired. Thus, there would have been no
reason for Hopkins to make note of, or plan to testify about,
their supposed recommendations of Standridge as preparation
for this proceeding about the supervisory functions of pilots.
Furthermore, a number of the other specific examples that
Hopkins gave of pilots recommending hiring were not men-
tioned by him when he testified on the same subject in the prior
hearing regarding the status of the Respondent’s pilots, even
though that hearing was held much closer in time to the alleged
events.
Hopkins’ testimony was even contradicted regarding an im-
portant matter by another management witness. Hopkins
claimed that when Dragon recommended Gary for a position as
a pilot they discussed that Gary had good “leadership qualities”
—a claim that, if true, would lend some support to the Respon-
dent’s claim that it viewed pilots as supervisors. (Tr. 1327–
1328.) However, Dragon, a management witness, stated that he
had “no knowledge” of Gary’s leadership qualities, that “lead-
ership wasn’t a concern” in the hiring of pilots at that time, and
that the Respondent was simply “looking for people to be able
to run boats up and down the river.” (Tr. 1743–1744.) Be-
cause Hopkins testimony was at odds with the documentary
evidence and the other testimony, and because he exhibited, to
an unusual degree, an ability to recollect events—even details
of events—that certainly did not occur, I conclude that his tes-
timony should be given very little weight regarding disputed
matters.
I did not find Wilken to be a very credible witness regarding
the duties of mates based on his demeanor and testimony which
was evasive on cross-examination. Wilken gave the distinct
impression on multiple occasions that he was relying on
feigned confusion and convenient memory lapses to avoid giv-
ing testimony unfavorable to the Respondent. He also was
prone to changing his testimony mid-stream. For example, he
first testified that after the union lost the election he was aware
that there was still “union activity out there” prior to May 1999
(and, therefore, before the start of the alleged unfair labor prac-
tices), Tr. 665–666, but then he reversed himself and asserted
that he was not aware of this activity until “June-ish” of 1999,
Tr. 666–668 (and, therefore, after the start of the alleged unfair
labor practices). Wilken claimed that pilots had actually exer-
cised various supervisory functions prior to May of 1999, but
when asked to recount specific instances of such exercises he
was often unable to do so. Most notably, Wilken testified that
it was “not uncommon” for a pilot to recommend either sus-
pension or termination of a crew member (Tr. 781), but he was
unable to recount a single instance where a pilot had done so.
Id. Even Hopkins stated that it was false to say that it was not
uncommon for a pilot to recommend suspension or termination,
and that he was not aware of a single instance when a pilot
recommended suspension or termination. (Tr. 1578–1579.)
I also found Respondent’s witness Randy Lee Johnsen (cap-
tain and former pilot with the Respondent) very lacking in
credibility based on his demeanor which was difficult, hostile
and unusually uncooperative on cross-examination. At times
his testimony left no doubt in my mind that he was shading his
account liberally to favor the Respondent’s position. For ex-
ample, during cross-examination regarding the pilot’s role in
tow work he repeatedly evaded questioning, then denied that
“most of the time” the captain, not the pilot, decided which
barges would be dropped from the tow if the tow orders did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD938
specify. (Tr. 1022.) When subsequently pressed for a specific
percentage of the time when the captain decided which barges
would be dropped, Johnsen said that the captain decided
“probably ninety percent” of the time. (Tr. 1023.) Johnsen’s
refusal to admit that “ninety percent of the time,” was “most of
the time” is representative of his uncooperative and evasive
stance during cross-examination. Another example relates to
his testimony that, as a pilot, he once called a fire drill. (Tr.
1708-1709.) The General Counsel asked Johnsen if the captain
had actually told him to have the fire drill on the pilot’s watch.
At first Johnsen refused to directly answer. When the General
Counsel asked whether the captain had told Johnsen to hold the
fire drill on the pilot’s watch, Johnsen responded that the cap-
tain “just discussed having a drill that day.” Tr. 1709. When
the General Counsel asked if it was not true that he had previ-
ously testified that the captain told him to have the drill on the
pilot’s watch, Johnsen answered equivocally again, stating
“Yeah, we talked about having a drill.” Id. The General
Counsel asked again whether Johnsen “recalled testifying that
the captain said that the drill was going to be on the pilots’
watch?” Id. At this point, Johnsen finally conceded that he
“believe[d]” that the captain had told him to have the drill on
the pilot’s watch. Id.
Johnsen’s exaggerated claims about his authority as a pilot
were even contradicted by the Respondent’s own witness,
George Bergman, a mate who had worked with Johnsen when
Johnsen was a pilot. Johnsen testified unequivocally that when
he was an ARTCO pilot he had made the decision that the call
watchman was needed every time the call watchman was awak-
ened for tow work on the after watch. (Tr. 1023.) However,
Bergman testified that in some cases he, as the mate working
with Johnsen, had decided whether the call watchman was
required (Tr. 1727), and that in other situations the call watch-
men always had to get up, without direction from Johnsen or
anyone else (Tr. 1726). Similarly, Johnsen claimed that as a
pilot he sometimes made the decision to use an inexperienced
deckhand to serve as a lookout in order to give the deckhand
experience. (Tr. 976–977.) However, Bergman said that it was
generally up to the mate to decide who would serve as lookout
(Tr. 1723), and that he would have told Johnsen that a deck-
hand was not ready for the task if he had believed that to be the
case (Tr. 1720). When pressed, Johnsen conceded that while
he claimed it was his decision to decide to use an inexperienced
deckhand, he would always defer to the mate’s conclusion that
an inexperienced was not ready for the job. (Tr. 1044–1045.)
I also found Steve Wolfe (captain and former pilot with the
Respondent) a less than credible witness based on his de-
meanor, testimony, and the totality of the evidence. Wolfe
appeared highly suggestible during questioning by counsel for
the Respondent, changing or retracting his testimony on more
than one occasion when counsel expressed some doubt about
his answer. (See Tr. 1125, ll. 3–11) (Wolfe reverses testimony
regarding whether the pilot issues instructions to the crew dur-
ing the process of stopping the boat in foul weather); (Tr. 1125
l. 25, to Tr. 1126 l. 8) (Wolfe reverses testimony about the
pilot’s authority to start the vessel running again when the cap-
tain has stopped it). In one instance Wolfe inadvertently re-
vealed that as a pilot he had merely “asked” the mate to per-
form a certain task, but then palpably strained on the witness
stand to re-cast the request as an order. He stated that “when
the mate told me that . . . the tow was ready to depart, I asked
him to go and prepare for departure by ordering him to throw
off all the shore cables.” (Tr. 1094.) (Emphasis added.) In
another case he made the patently false claim that the mate
could not tell the deck crew to take a break without asking the
pilot, but he then was forced to retreat from that claim and ad-
mit that the mate could, and did, give the crew breaks without
clearing it with the pilot. (Tr. 1165–1167.) Indeed, Wolfe had
to concede, in stark contrast to his original testimony, that most
of the time it was the mate that gave the deck crew a break. Id.
Port Captain Hussell, who began working with the Respon-
dent in July 1998, was also a less than credible witness based
on his demeanor, evasiveness and other factors. He seemed
eager to exaggerate or deny facts in order to support the Re-
spondent’s position. For example, Hussell stated that the Re-
spondent’s pilots had the authority to terminate a deckhand (Tr.
1907), a claim that has not been made by the Respondent and
which was denied even by management witness Hopkins (Tr.
1601). When pressed Hussell himself conceded that he had no
reason to believe that pilots knew of their supposed authority to
terminate. (Tr. 1909–1910.) Hussell also exaggerated the role
of the Respondent’s pilots in recommending the hiring of new
pilots. Hussell claimed that after pilot Benny Ainsworth rec-
ommended Church, Church was hired as a regular pilot, and
that he had not been hired first as a fill-in, or “trip” pilot.
However, the Respondent’s records show that Church was, in
fact, hired first as a trip pilot. (Tr. 1844–1845; R. Exh. 35.)
Hussell also evidenced an eagerness to deny established facts
that would harm the Respondent’s position. To cite just one
example, he denied that at the pilots meetings Cook had stated
that the pilot was seen in the past as someone who just drove
the boat with virtually no say-so in management. Tr. 1854.
However, management witness Cook admitted that he had
made this statement in his presentations at the meetings, Tr.
894–895, and this is corroborated by the outline for his presen-
tations. (R. Exh. 15.) I might be disposed to consider this an
innocent memory lapse on Hussell’s part if Hussell had at-
tended only one pilots meeting. However, Hussell attended all
four pilots meetings, and therefore would have heard this
statement by Cook repeatedly. (Tr. 1829.) Given that, I be-
lieve that Hussell’s denial was an intentional deception. I
found Hussell’s testimony lacking in credibility and have given
it virtually no weight regarding disputed matters. See also,
supra, footnote 17.
d. Pilot’s duties prior to May 1999
Although much about a pilot’s authorities, responsibilities,
and duties prior to May 1999 are in dispute, some facts about
pilot’s work during that period are clear. First, the pilot navi-
gated the vessel and tow during the two, 6-hour, after watch
shifts each day. Navigation is a complex and skilled undertak-
ing that requires the pilot to take into account such factors as
time of day, weather, speed and direction of the wind, depth
and width of the river channel, speed of the current, size and
configuration of the tow, barge draft, capabilities and reliability
of the vessel and its electronic equipment, the maneuverability
AMERICAN RIVER TRANSPORTATION CO. 939
of the vessel and tow, the presence or absence of depth finders
and other aides to navigation, the number of vessels in the area,
and the direction the vessel is traveling. The pilot also had
responsibility for communicating with the Respondent’s land-
based management, and the personnel of approaching boats and
fleeting operations. This was accomplished by means of the
FAX machine, telephones, and radio in the wheelhouse.
Among the communications that the pilot routinely received
from land-based management were tow orders (barge dis-
patches) which stated that certain barges, or a certain number of
barges, were to be removed from, or added to, the tow. The
pilot also received information such as whether there was a
delay at the fleeting operation (for example because fleeting
personnel were on break), or whether the crew of a passing
vessel had noticed that one of the pilot’s running lights had
blown out. In addition, the pilot performed certain record
keeping functions, such as completing the daily log and inci-
dent reports regarding any accidents18 on the after watch. In
the unlikely event that a captain became incapacitated or had to
leave the vessel, it would have been the pilot’s responsibility to
serve as acting captain on an interim basis until a new captain
was assigned to the vessel, but the pilot’s pay and his job title
for purposes of the Respondent’s personnel records, would not
change. In such instances the chief engineer, not the pilot act-
ing as captain, would perform some or all of the captain’s req-
uisition duties.
During the relevant timeframe, the Respondent’s pilots
helped the Respondent to recruit new pilots by referring candi-
dates with whom they were familiar professionally and some-
times personally. The Respondent was especially interested in
referrals from pilots during the strike, and the period following
it, since the Respondent’s decision to terminate all 20 striking
captains had left it desperately short of wheelhouse personnel.
After such a referral was made, the port captain would inter-
view the candidate, either in person or by telephone, and would
determine whether the candidate had the necessary license,
certification, and other qualifications to work as a pilot with the
Respondent. Generally the individual would also submit an
application naming three persons as references. The final deci-
sion about whether someone would be hired as a pilot was
made by the port captain, who would not hire the candidate
until he confirmed that the prospective pilot operated the type
of boats used by the Respondent, pushed the size of tows used
by the Respondent, and worked on the rivers where the Re-
spondent operated. The recommendations of pilots were given
some weight regarding the abilities of prospective pilots with
whom they were familiar. The Respondent also would give
weight to recommendations of experienced deckhands who
referred prospective deckhands. (Tr. 1874.) Applicants re-
ferred to the Respondent by pilots were not always hired. (Tr.
323.) There was no credible evidence that the Respondent’s
pilots ever recommended pilot candidates about whom they did

18 Pilots merely reported the circumstances of the accidents. They
did not recommend personnel action regarding any crew members who
caused the accidents. The pilots were not held personally accountable
for, or disciplined because of, the errors of other crew members in-
volved in the accident.
not have personal knowledge, that they reviewed the applica-
tions of candidates unknown to them, or that they were asked to
review competing applications and make a recommendation
about who should be hired.
The Respondent’s pilots did not prepare evaluations or pre-
evaluation reports for crew members, nor did they participate in
any official or systematic way in crew member evaluation.
When a captain or other official did not have sufficient experi-
ence with a crew member to assess his or her performance or to
determine suitability for promotion, but a pilot did have such
experience, the official would sometimes informally ask the
pilot to relate factual information about the crew member’s
performance. The pilot was not asked to submit any type of
formal evaluation.
Prior to May of 1999, the Respondent’s pilots did not have
authority to issue written discipline to any employee, nor did
they have the authority to create “information only” reports
regarding verbal discipline. Pilots would occasionally chastise
crew members who they believed had failed to perform their
jobs properly, however, this was not one of the forms of disci-
pline recognized or sanctioned by the Respondent. Such dis-
plays of displeasure by pilots were not recorded in the crew
member’s personnel file and no personnel action resulted from
them. When the layoff of a mate was being contemplated,
Cook might ask the pilot who worked with the mate for factual
information about how the mate was performing, but Cook
would not even tell the pilot that the mate was being considered
for layoff, and would not ask for the pilot’s opinion about
whether the mate should be laid off. (Tr. 888–890.) The final
decision regarding the layoff of the mate was made by Cook.
Id.19 Mates could discipline deckhands, and when they did
their action was reviewed by the captain, even if the deckhand
worked on the same watch as the pilot.
During the period prior to May 1999, the Respondent never
informed its pilots in writing or verbally that pilots had the
authority to reward employees. However, some pilots would
occasionally take it upon themselves to invite a hard working
crew member to the wheelhouse for coffee, or allow such a
crew member to steer the vessel briefly. These opportunities to
steer were viewed as a “nice ego trip” (Tr. 1338), but there was
no credible evidence that they assisted the individual to obtain
a promotion or a raise or any other personnel benefit. Indeed, it
appears likely that the Respondent did not even know when a
pilot allowed a crew member to steer. (Tr. 1165.)20 If the pilot

19 In one instance, pilot Jasper Bryant called Cook to tell him that he
believed a mistake had been made when the Respondent laid off mate
Rick Fisk. Tr. 881–882. Cook checked with the captain of the vessel
to which Fisk had been assigned, and the captain agreed that a mistake
had been made. Id. Fisk was recalled from lay off. Cook stated that
this was the only case he was aware of in which the Respondent had
acted on a pilot’s recommendation that an individual be recalled from
layoff, Tr. 882–884. In that case, the Respondent did not solicit Bry-
ant’s recommendation, did not take the recommendation in writing, and
did not recall Fisk until after a captain opined that Fisk should not have
been laid off.
20 In an effort to portray these brief steering opportunities as a sig-
nificant reward, the Respondent states that steering “is among the most
prestigious experiences for any river employee” and that allowing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD940
knew of no pressing work, and believed that the deck crew
deserved a break, the pilot might suggest to the mate that it was
a good time for the deck crew to take a break. (Tr. 420–421, Tr.
562). However, it was up to the mate to decide whether the
crew actually took the break. Id. The Respondent did not tell
pilots that they had the authority to give employees breaks.
(Tr. 97–100, Tr. 328 ff.)
During much of pilots’ two daily shifts they were unable to
observe the work of the deck crew from their vantage, and they
spent very little time communicating with the mates or the
deckhands about work-related matters. On some shifts a pilot
might not communicate with the mate about work at all, and
generally a pilot spent something on the order of 3 percent of
his or her time during each shift communicating with the mate
and deck crew about work. The pilot was, and is, able to com-
municate with the mate using a radio, but prior to May 1999 the
rest of the deck crew on the after watch did not have radios. If
a crew member was in certain rooms on the vessel, the pilot
could communicate with him or her by using an intercom sys-
tem. When the crew members were working on the tow it was
sometimes impossible for the pilot to directly communicate
with them at all. In general, the pilot’s work-related commu-
nications to the deck crew were made to the mate, using the
radio. The mate would then make any necessary communica-
tions to the rest of the deck crew.
As suggested by the above, the mates, not the pilots, had the
primary responsibility for overseeing the work of the deck
crew. The mates were responsible for assigning watches and
work, directing work as it was being performed, training new
deckhands, creating and maintaining a safe work environment,
giving reprimands and implementing corrective discipline, and
evaluating employees for the purpose of recommending promo-
tions. (GC Exh. 80 (J).) In some cases, a list of deckhand du-
ties was created by the mate and posted on the boat. The mates
performed their duties regarding the work of the deck crew
under the direction of the captains. Id.
Although the mate managed the deck crew, and did so under
the direction of the captain, the pilot would also communicate
information and sometimes directions to the mate and deck
crew. When the pilot informed the mate that something needed
to be done, it would be the mate who then decided which mem-
ber of the deck crew would perform any necessary task. For
example, when a pilot was told by the crew of a passing boat
that one of the running lights on the vessel or tow had blown,
the pilot would inform the mate that one of the lights needed to
be replaced, and the mate would replace the bulb or assign
someone to do so. When the pilot’s instrument displays indi-
cated that a necessary depth finder was not functioning, the
pilot would inform the mate that the depth finder required re-
pair. The pilot also would inform the mate if the windows of
the wheelhouse need to be cleaned in order to allow the pilot to
see well enough to navigate safely. Similarly, if the pilot knew
that the vessel was being painted, the pilot would inform the
mate when the painting of the wheelhouse could proceed (and

someone to steer “assists employees in obtaining promotion to the
wheelhouse.” R. Br. at 14 and 44. However, the record does not sup-
port either proposition.
the wheelhouse view be partially obstructed) without compro-
mising the pilot’s ability safely to navigate the vessel. How-
ever, if the mate believed that other tasks were more important
than painting the wheelhouse at that time, he was not required
to accept the pilot’s invitation. The pilot would also relay tow
orders to the mate when the pilot received these from land
based management. When the vessel was approaching a fleet
for tow work, the pilot would inform the mate so that the mate
could ready the crew. Similarly, if fleet personnel informed the
pilot that there would be a delay before tow work could begin
due to a crew change in the fleeting operation or another factor,
the pilot would inform the mate of the expected delay.
Depending on the personality of the particular pilot, these
communications might be cast as the mere conveyance of in-
formation, or as a request, or as a directive. Regardless of what
type of language the pilot used, he or she had no authority from
the Respondent to compel the mate or deck crew to perform a
task, and no authority from the Respondent to discipline any
crew member who failed to perform a task. If the mate and
deck crew refused to take action that the pilot believed was
necessary, the pilot’s recourse would be to complain to the
captain or, perhaps, another supervisory/management official.
At any rate, as one would expect, the mate and deck crew gen-
erally performed tasks that the pilot said were necessary for the
navigation of the vessel. However, the same would be true
when a deckhand serving as a lookout told the pilot that he
needed to slow down as he approached an obstacle such as a
lock or a bridge. The pilot would be expected to comply with
such direction based on the deckhand’s superior information or
vantage even though the deckhand had no authority to compel
or discipline the pilot.
The navigational decisions that the pilot makes based on his
experience, training, and expertise sometimes dictated certain
aspects of how the mate and deck crew performed their duties.
For example, based on how a pilot decided to approach a lock
or bridge and other navigational factors, the pilot would tell the
mate that he needed someone to serve as a lookout at a specific
location on the tow. Based on the same or similar types of
factors, the pilot would direct the mate and deck crew to
“catch” a particular pin on the lock. In certain instances, vari-
ables affecting navigation, such as the weather, would cause a
pilot to pull the boat over and hold position, and the pilot would
inform the mate that he or she was doing this, which side he or
she was pulling over to, and whether the vessel needed be tied
off to shore. Under certain conditions a pilot would decide
that, in the interests of safe navigation, it was necessary to re-
configure the barges in the tow, or to run the vessel’s engines at
above the usual RPM level, and the pilot would inform the
crew of this. Here again, regardless of whether pilots cast the
communications to the crew as the conveyance of information,
a request, or a directive, the pilot had no authority to compel
the deck crew to perform any task, nor did the pilots have au-
thority to issue discipline for noncompliance. However, as
expected, the crew generally responded to the pilots’ concerns
regarding safe navigation of the vessel and tow.
During the relevant timeframe, the Respondent directed its
pilots to “encourage” shipmates to comply with the Company’s
safety rules and policies. (GC Exh. 62.) However, cooks,
AMERICAN RIVER TRANSPORTATION CO. 941
deckhands, and oilers were also directed to do this. Id. As
more than one witness credibly testified, a mate, or even a
deckhand, could “tell” a captain to comply with established
safety rules. (Tr. 281, Tr. 522.) Similarly, if a mate violated
the Respondent’s policy of protecting tank barges (also known
as “chemical” barges) against damage by positioning them in
the interior of the tow, the pilot could “tell” the mate that he
needed to comply with that policy. However, the Respondent
gave the power to enforce safety rules exclusively to the cap-
tain and the mate. (GC Exh. 62.) Thus, if the captain refused
to comply when the deckhand advised him to wear a life vest,
or if the mate refused when the pilot told him to comply with
the Respondent’s policy regarding tank barges, neither the
deckhand nor the pilot would be empowered to compel compli-
ance or issue discipline.21 In the case of the pilot, his recourse
would be to tell the captain about the mate’s refusal to comply
with the Respondent’s policy. (Tr. 234, Tr. 273, Tr. 469.)
In emergency situations, the captain retains the pre-eminent
status as master of the vessel, even if the emergency occurs on
the after watch. A memorandum issued by the Respondent in
1995, directs that the “captain be contacted immediately” in the
case of an emergency involving a barge. (GC Exh. 56.) (July
19, 1995).22 The memorandum does not state that the pilot must
be contacted, even if the emergency occurs on the after watch.
Certain emergencies that may occur on the after watch may
require action before the captain can be informed. An example
of this is a barge break away, where a barge comes loose from
the tow. In these situations the pilot is expected to provide
some direction to the crew. Such emergencies may not occur at
all during a particular pilots’ tenure, and do so, at most, rarely.
Moreover, an emergency creates a special situation where per-
sonnel who do not usually give directions may do so. For ex-
ample, the Respondent’s written policy explicitly provides that
during an emergency a deckhand will “instruct [crewmembers]
to report to the galley” and make sure that the crew members
show up in the reporting area. (GC Exh. 9.) To the extent that
a pilot directs the crew during a barge breakaway, he does so
based on his experience and training as a navigator and his
superior vantage point and access to information. In these
situations, the crew members will be doing the same types of
activities (catching lines, wiring barges to the tow), and using
the same types of techniques and equipment that they use rou-
tinely.
6. New duties given to pilots effective September 1999
At the pilots meetings beginning in May 1999, the Respon-
dent informed pilots that new duties were being assigned to
them and that these new duties would be effective in September

21 The communication of standard safety rules dictated by estab-
lished procedure (such as the Respondent’s procedure with respect to
chemical barges) lacks the type of independent judgment contemplated
by 2(11). See First Western Bldg. Services, 309 NLRB 591, 601
(1992).
22 This memorandum regarding barge maintenance is directed to
captains, mates, and watchmen. GC Exh. 56. Although a pilot might
inform the mate if he observes a potential problem with a barge, barge
maintenance is the duty of the mates and watchmen under the direction
of the captain.
1999. A job description detailing their duties—some old and
some new—was distributed to the pilots at these meetings.
(GC Exh. 22.) Subsequent to the pilots meetings, the Respon-
dent distributed a document entitled “The ARTCO Pilot’s
Added Responsibilities, Effective 09 Sept. 99” (GC Exh. 23),
which also listed a number of new duties.
If find that the new pilots’ duties stated in these documents
included: to enforce all of the Respondent’s policies, proce-
dures, safety rules, and practices on the after watch; to assist
the captain in overseeing personnel and delegating duties; to
supervise the deck crew serving on the after watch and be ac-
countable to the captain for the deck crew’s assigned duties; to
know and follow the four-step disciplinary process; to use the
employee behavioral evaluation form for discipline and recog-
nition of good work performance of the deck crew; to recom-
mend crew members for promotion; to recommend crew mem-
bers on the after watch for promotion, demotion, or probation
by completing and signing the appropriate company forms; to
ensure that the deck crew checks, pumps, or repairs leaks to
either the wing tanks or the cargo box of any barge in tow re-
quiring attention; to ensure that the tow was properly built and
attached to the tow; to sign the daily vessel log for the watch; to
supervise the entire crew serving on the after watch in accor-
dance with company policies and safety rules; to evaluate the
deck crew serving on the after watch using the appropriate
company form; to discipline as necessary, up to and including
termination, the crew serving on the after watch and using the
appropriate company form; to make a written recommendation
to the personnel department for employee hiring; and to update
the memo book.
Although these documents purported to give the pilots mul-
tiple new duties, no duties were taken away from the captains
or mates who were already performing many of these func-
tions. In September 1999, following the pilots meetings, pilots
were required, for the first time ever, to complete a number of
written employee evaluations. (GC Exh. 24.) The Respondent
allowed the pilots 5 days to complete the evaluations and in
many cases the pilots responded that they had insufficient or
very little experience with the crew members they were asked
to evaluate. (GC Exh. 78(c) and (f)-(m).) At the time of the
trial (May to September 2000), pilots testified credibly that
they had not been asked to complete any additional written
evaluations after the spate required of them following the pilots
meetings. The pilots had not been called on to perform a num-
ber of the new duties at all.
B. The Complaint Allegations
The complaint alleges that the Respondent interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act at the pilots meeting on June 8, 1999, when
its agent, Cook, implied to employees that the Respondent had
assigned them supervisory duties in order to discourage their
support for and/or membership in the Union. The complaint,
as amended, further alleges that the Respondent discriminated
in regard to the hire or tenure or conditions of employment of
its employees in violation of Section 8(a)(1) and (3) of the Act,
when it published an ARTCO pilot job description which as-
signed supervisory duties to its pilots effective about Septem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD942
ber of 1999,23 and assigned additional supervisory duties to its
pilots effective September 9, 1999, because its employees had
engaged in union and concerted activities, and with the purpose
of discouraging such activities.
Analysis and Discussion
I. STATUS OF TOWBOAT PILOTS
A. Supervisory Status Under the Act
Section 7 of the Act provides that “employees” have the
right, inter alia, to form, join, or assist labor organizations, and
to engage in concerted activity for the purpose of collective
bargaining. Section 7, 29 U.S.C. Sec. 157. The Act’s definition
of “employee” excludes from coverage “any individual em-
ployed as a supervisor,” Section 2(3), 29 U.S.C. Sec. 152(3),
and thus the Act does not extend the rights described in Section
7 to “supervisors.” Section 2(11) of the Act defines “supervi-
sor” as follows:
The term “supervisor” means any individual having
authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, re-
ward, or discipline other employees, or responsibly to di-
rect them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the forego-
ing the exercise of such authority is not of a merely rou-
tine or clerical nature, but requires the use of independent
judgment.
Section 2(11), 29 U.S.C. Sec. 152(11). The supervisory au-
thorities are listed in the disjunctive, meaning that if an indi-
vidual possesses even one of the authorities listed in the man-
ner described by Section 2(11), that individual is a “supervisor”
who does not have the rights provided to “employees” by Sec-
tion 7. However, Section 2(11) also contains the conjunctive
requirement that the power be exercised with “independent
judgment,” not in a “routine” or “clerical fashion.” Chevron
U.S.A., 309 NLRB at 61.
The Respondent argues that at the time of the conduct al-
leged to be unlawful in this case, its pilots had long been “su-
pervisors,” who exercised not just one, but many, of the super-
visory functions described in Section 2(11). According to the
Respondent, its pilots had the authority to: effectively recom-
mend hiring; effectively recommend promotion; effectively
recommend layoff and recall from layoff; reward employees;
discipline, and effectively recommend discipline of, employ-
ees; assign work; and responsibly direct the crew. In this case,
the alleged unfair labor practices alleged involve rights that the
Act grants to employees, but not supervisors. Therefore, if the
Respondent is correct in its assertion that its pilots were already
supervisors at the time of the alleged unfair labor practices, the
complaint would have to be dismissed even if the Respondent
engaged in the conduct alleged. For this reason, I will turn first

23 The complaint originally stated that “[o]n about May 20, 1999,
Respondent assigned supervisory duties to its pilots.” Complaint par.
6A. At trial I granted the General Counsel’s request to amend the
complaint to clarify that the allegation was that the Respondent pub-
lished the new duties in a job description on about May 20, but that
these duties were not effective until about September of 1999.
to the question of whether the Respondent’s pilots were already
supervisors prior to May 1999.
B. Pilots and Supervisory Activities Listed in Section 2(11)
The U.S. Supreme Court has stated that an individual may
not be deemed a supervisor under Section 2(11) unless the
following questions are answered in the affirmative: “First,
does the employee have the authority to engage in 1 of the 12
listed activities? Second, does the exercise of that authority
require ‘the use of independent judgment’? Third, does the
employee hold the authority in the ‘interest of the employer?”
NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 573–
574 (1994) (internal citations omitted); see also John N. Han-
sen Co., 293 NLRB 63, 64 (1989). The party asserting super-
visory status, in this case the Respondent, bears the burden of
proving that these requirements are met. Vencor Hospital-Los
Angeles, 328 NLRB 1136, 1138 (1999); Chevron U.S.A., 309
NLRB at 62; Quadrex Environmental Co., 308 NLRB 101, 102
(1992); St. Alphonsus Hospital, 261 NLRB 620, 624 (1982),
enfd. 703 F.2d 577 (9th Cir. 1983). The Board has stated that
caution should be exercised before finding supervisory status
since supervisors are excluded from the protections of Section
7 of the Act. King Broadcasting Co., 329 NLRB 378, 381
(1999). “In light of this, the Board must guard against constru-
ing supervisory status too broadly to avoid unnecessarily strip-
ping workers of their organizational rights.” Beverly Enter-
prises-Massachusetts, Inc. v. NLRB, 165 F.3d 960, 963 (D.C.
Cir. 1999); see also Chevron U.S.A., 309 NLRB at 62; William-
son Piggly Wiggly v. NLRB, 827 F.2d 1098, 1100 (6th Cir.
1987); McDonnell Douglas Corp. v. NLRB, 655 F.2d 932, 936
(9th Cir. 1981), cert denied 455 U.S. 1017. For the reasons
discussed below, I conclude that the Respondent has failed to
meet its burden of establishing that pilots had any of the listed
authorities under the terms required by Section 2(11).
1. Effectively recommend hiring
I reject the Respondent’s contention that, prior to May
1999, its pilots “effectively recommended hiring.” It is not
unusual for companies to consider word-of-mouth referrals
from its experienced work force as a way of recruiting new
employees. See NLRB v. Adco Electric, Inc., 6 F.3d 1110,
1117 (5th Cir. 1993) (“recommend[ing] someone for hire . . . is
nothing more than what [the employer] would expect from
experienced employees”). The Respondent in this case consid-
ered such referrals from its experienced work force, including,
at a minimum, its captains, pilots, and deckhands. An empha-
sis was placed on this form of recruitment for captains and
pilots during the period following the strike, when the Respon-
dent was desperately in need of wheelhouse personnel. When
current pilots referred pilot candidates, such referrals were
given some weight since the current pilots were familiar with
the abilities of other pilots who they encountered on the river
and knew the skills required to work as a pilot for the Respon-
dent.
Something more than an employer’s accepting referrals from
its work force, and placing some reliance them, is necessary to
constitute a supervisory recommendation. Otherwise an em-
ployer’s generalized use of word-of-mouth referrals could con-
fer supervisory status on its entire work force. Indeed, in the
AMERICAN RIVER TRANSPORTATION CO. 943
instant case, even the Respondent’s deckhands, who the Re-
spondent admits are nonsupervisory, could refer other deck-
hands, and their referrals would be given some weight by the
Company. The Board has indicated that whether referring
applicants constitutes “effectively recommending hiring” for
purposes of Section 2(11) depends on the amount of weight
that the employer gives to the referral. In F.A. Bartlett Tree
Expert Co., 325 NLRB 243, 245 (1997), the Board upheld a
decision that crew foremen who “inform the general foreman
when they learn of individuals who are interested in being
hired, and at times . . . recommend an applicant’s hire” are not
supervisors even though these recommendations had “some
influence on the general foreman’s hiring decisions,” since “the
extent” of such influence was “not known.” See also Empress
Casino Joliet Corp., 204 F.3d 719, 721 (7th Cir. 2000) (critical
question is the weight that is given to the alleged supervisor’s
recommendation to hire or fire). The standard that the Board
has applied to determine whether recommendations for person-
nel action are given enough weight to render them supervisory
is that such recommendations are “insufficient to satisfy the
statutory standard for supervisors unless . . . management is
prepared to implement the recommendation without an inde-
pendent investigation of the relevant circumstances.” Chevron
U.S.A., 309 NLRB at 65 (emphasis added); see also Speton-
bush/Red Star Co., 319 NLRB 988 (1995), enf. denied 106
F.3d 484 (2d Cir. 1997) (the Board recognizes that an em-
ployer’s claim that a person has authority to effectively rec-
ommend a personnel action is undercut where the evidence
shows that the employer routinely conducts an independent
investigation before making a decision).
In the instant case, candidates referred by current pilots were
never hired until after the port captain interviewed the candi-
date and determined that the candidate had the required license
and certifications and was able to operate the types of boats
used by the Respondent, push the size of tows that the Respon-
dent used, and navigate on the rivers where the Respondent
operated. The Respondent also required candidates referred by
pilots to complete applications on which they were directed to
list three persons familiar with their capabilities or training.
Even during the period when the Respondent was in desperate
need of wheelhouse personnel, the port captains continued to
perform independent investigations prior to retaining pilot can-
didates who had been referred to it by current pilots. Since the
port captains routinely performed independent investigations
into the qualifications of candidates who were referred for em-
ployment by current pilots, these referrals do not rise to the
level of “effective recommendations” to hire for purposes of
Section 2(11), under the standards stated in Bartlett, Chevron
U.S.A., and Spetonbush.24

24 The Respondent cites Thriftaway Supermarket, 276 NLRB 1450
(1985), enfd. 808 F.2d 835 (4th Cir. 1986), as support for its contention
that pilots effectively recommended hiring. In Thriftaway the Board
stated, in dicta, that an individual was a supervisor based on “numerous
instances” of his “disciplining, assigning, and responsibly directing
employees, and effectively recommending their hire and discharge, in
the interests of the Respondent.” Id. Regarding hiring, the Board noted
that the individual had referred two candidates and told the company’s
president that they were good workers, and that the company had hired
Moreover, an individual’s influence on hiring decisions is
not supervisory in nature unless that influence is based on
“delegated authority to participate in the hiring process,” and
not merely on the employer’s respect for the judgment of the
individual making the recommendation. Plumbers Local 195,
237 NLRB 1099, 1102 (1978). The facts present in this case
lead me to conclude that whatever weight was given to referrals
made by pilots was based on the Respondent’s trust in the pi-
lot’s expertise and judgment, not on delegated authority to
participate in the hiring process. The Respondent did not ask
its pilots to evaluate applications or to submit evaluations in
any systematic way as one would expect if such activities were
part of pilots’ job duties. Rather, pilots’ involvement was lim-
ited to referring candidates about whom they had personal
knowledge. Furthermore, there was no evidence that any pi-
lots were ever informed that they were not performing their
duties because they did not refer candidates, or because their
referrals were of insufficient number or quality. Based on the
evidence in this case, I conclude that while some pilots referred
prospective employees, doing so was not one of their job duties
and did not involve the exercise of delegated authority to par-
ticipate in the hiring process.
Under the circumstances present in this case, I conclude that
pilots were doing no more than what experienced employees at
all levels do in many companies—referring acquaintances to
their employer for possible hire. To elevate this type of referral
to a supervisory activity would likely transform the entire line
boat crew in supervisors, and contravene the admonitions in
King Broadcasting and Beverly Enterprises, that supervisory
status not be construed broadly. I find that the Respondent has
failed to show that pilots effectively recommended hiring.
2. Effectively recommend promotion
“An employee does not become a supervisor if his or her
participation in personnel actions is limited to a reporting func-
tion and there is no showing that it amounts to an effective
recommendation that will affect employees’ job status.” Chev-
ron USA, 309 NLRB at 61; see also Ohio Masonic Home, 295
NLRB 390, 393–394 (1989) (factual accounts that do not in-
clude any recommendation are not supervisory); Chevron Ship-
ping Co., 317 NLRB 379, 381 (1995) (individuals do not pos-
sess supervisory authority with respect to hiring, firing, evalu-
ating, promoting, or granting wage increases, or with respect to
recommending these actions, when the individuals’ involve-
ment is limited to a reporting function); see also Beverly Enter-
prises v. NLRB, 148 F.3d 1042, 1046–1047 (8th Cir. 1998)
(individuals did not exercise power to “promote” where
“[t]heir evaluatory function was . . . primarily a reporting func-
tion”). Prior to May of 1999, the Respondent’s captains some-
times asked pilots to verbally convey their observations regard-

both candidates. In Thriftaway, unlike the instant case, there was no
mention of the employer performing any independent investigation or
evaluation of the employees who had been referred before hiring them.
Under the Board’s subsequent rulings in Bartlett, Spetonbush, and
Chevron U.S.A., the fact that the Respondent in this case always per-
formed an independent investigation into the qualifications of the can-
didates referred by its pilots is very significant and warrants a different
result that was reached in Thriftaway.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD944
ing the performance of crew members, especially inexperienced
deckhands on the after watch who were being considered for
promotion to experienced status. Such reports were helpful
because the pilot, not the captain, stood watch on that shift.
However, the decision to promote deckhands to experienced
status was made by the personnel department based on forms
that were completed by the captain or the mate, not by the pilot.
Similarly, captains, mates, and chief engineers, but not pilots,
had the authority to complete the evaluation forms for employ-
ees. In the case of mates who wished to be promoted to pilot,
such promotion was only possible if a captain decided that the
mate was ready and offered to train the mate through the
steersman program. A mate could not gain access to the
steersman program by convincing a current pilot to agree to
train him or her. The port captain made the final decision about
whether a mate would become a pilot.
Under these circumstances, I conclude that the Respondent
has failed to show that the pilots’ participation in the promotion
process went beyond a “reporting function.” Therefore, this
participation was not supervisory in nature pursuant to the deci-
sions in Chevron USA, Ohio Masonic Home, and Chevron
Shipping.
3. Effectively recommend layoff and recall from layoff
I also conclude that the Respondent has not shown that pilots
had the authority to recommend layoff and recall from layoff.
Pilots were not advised that they had the authority to recom-
mend layoff, and generally were under the impression that they
did not have this authority. Chevron U.S.A., 309 NLRB at 62
(“the evidence must ‘fairly’ show . . . ‘that the alleged supervi-
sor knew of his authority to exercise’ the supervisory power”).
Nevertheless, the Respondent’s witness, Operations Manager
Cook, testified that when he was considering laying off an em-
ployee he would sometimes solicit factual information from a
pilot who worked with the employee. Cook conceded, how-
ever, that during these conversations he would not advise the
pilot that the information sought related to a potential lay off,
and would not ask the pilot’s opinion. Cook explained that he
“did not want to put the pressure” on “the pilot, to let them
know what was going [on], that this person was being consid-
ered for permanent layoff.” (Tr. 890.) This suggests that Cook
was actively trying to insulate the pilots from the supervisory
component of the process. The Respondent’s attempt to char-
acterize this as “effectively recommending layoff” is frivolous.
The pilots were not asked to make any recommendation at all
regarding layoff, much less an effective one. Indeed, the pilots
did not even know that their conversations with Cook had any-
thing to do with a possible layoff. Rather, the Respondent was
simply soliciting factual reports from pilots about other crew
members. Pursuant to Board precedent, see, e.g., Chevron
U.S.A., supra, and Ohio Masonic Home, supra, this type of
reporting activity is not supervisory. See George C. Foss Co.
v. NLRB, 752 F.2d 1407, 1411 (9th Cir. 1985) (prudent em-
ployers seek advice of foremen in evaluating employees; this
does not elevate foreman to supervisor status).
The Respondent also contends that pilots recommended re-
call from layoff. It cites a single case in which a pilot, Jasper
Bryant, complained to Cook that a mistake had been made in
laying off mate Rick Fisk because Fisk “was a good man and
everybody got along with him, he kept the boat good and clean,
towed good and tight.” After Bryant made this statement,
Cook talked the captain on the vessel about Fisk. The captain’s
opinion was consistent with Bryant’s, and Fisk was recalled.
Bryant did not exercise supervisory authority in this instance.
First, the Respondent, even under the account of its own wit-
ness, was unwilling to accept the pilot’s recommendation with-
out further investigation. It was not until the captain on the
vessel, a statutory supervisor, made the same recommendation
as Bryant that the Respondent recalled Fisk. Thus the Respon-
dent has not shown that it ever accepted a pilot’s recommenda-
tion to recall someone from layoff without further investigation
as is required pursuant to create supervisory status under the
Board precedent discussed above. See, e.g., Spetonbush, supra,
and Chevron U.S.A., supra.
Moreover, the Respondent has not shown that, to the extent
that the pilot’s opinion influenced the decision, such influence
was based on any authority delegated to the pilot to participate
in a personnel decision rather than on the Respondent’s respect
for the pilot’s judgment. Indeed the evidence that was pre-
sented indicated that the pilot’s influence was based on the
latter. Bryant’s input was volunteered by him, not sought by
the Respondent. There is no evidence of pilots recommending
recall in any systematic or written way or of pilots participating
in recall decisions regarding employees about whom they did
not have first-hand knowledge. The action by Bryant, even
assuming it could somehow be construed to be of a supervisory
character, was an isolated incident. Other pilots testified credi-
bly that they had never been informed that they had the author-
ity to recommend recall from layoff, that they did not believe
they had such authority, and that they had never, in fact, rec-
ommended that anyone be recalled from layoff. Chevron USA,
309 NLRB supra, at 61 (“isolated and infrequent incidents of
supervision do not elevate a rank-and-file employee to a super-
visor level”). I conclude that the Respondent has failed to
show that pilots effectively recommended recall.
4. Reward
The Respondent contends that its pilots had the authority to
reward crew members. However, multiple pilots testified credi-
bly that they never rewarded crew members, and that the Re-
spondent never told them that they had the authority to do so.
See Chevron U.S.A., 309 NLRB at 62 (alleged supervisors must
know their supposed supervisory authority). What the Respon-
dent apparently means by its claim that pilots rewarded crew
members is that certain pilots sometimes invited crew members
to have coffee with them in the wheelhouse, or permitted a
crew member to steer the vessel briefly. The Respondent’s
effort to elevate these friendly gestures into expressions of
supervisory authority is frivolous. The Respondent’s pilots
would also sometimes inform mates that it was a good time for
the crew to take a break. However, these instances were gener-
ally limited to cases where the pilot had information that tow
work or other activity was not imminent, or had been delayed.
Even when the pilot conveyed such information it was up to the
mate to decide whether the crew would be “rewarded” with a
break at that time, or whether there was maintenance or other
AMERICAN RIVER TRANSPORTATION CO. 945
work that required them to continue working. Under these
circumstances the pilot’s role was essentially limited to report-
ing on upcoming work, and therefore was not supervisory.
Beverly Enterprise v. NLRB, 148 F.3d at 1046–1047 (individu-
als did not have power to “reward” where “[t]heir evaluatory
function was . . . primarily a reporting function”). The Board
has held that allowing employees to take breaks during periods
when their assistance is not needed is a routine, nonsupervisory
act. Greenspan, D.D.S., P.C., 318 NLRB 70, 75–76 (1995)
(dentists exercise routine, nonsupervisory, authority when they
allow dental assistants to take breaks during the performance of
procedures for which the assistants are not needed), enfd. 101
F.3d 107 (2d Cir. 1996), cert. denied 519 U.S. 817 (1996).
Even if one were to conclude that these actions by pilots
constituted “rewards,” the Respondent’s argument still fails
because it has not made the necessary showing that the rewards
were dispensed with any authority held in the interest of the
employer, as is required by the Supreme Court’s decision in
NLRB v. Health Care & Retirement Corp., 511 U.S. at 573–
574. Indeed, the evidence indicated that the Respondent did
not even know when pilots rewarded employees by allowing
them to steer or suggesting a break, and the pilots’ actions did
not change the recipients’ personnel status in any way.
5. Discipline
Pilots did not have authority to discipline, or effectively rec-
ommend discipline of, crew members during the relevant time-
frame. I do not doubt that pilots would occasionally scold crew
members who they believed had failed to perform properly, but
these episodes did not result in any personnel action and, in
fact, were not even recorded. The Board has held that it is not
discipline for purposes of Section 2(11) when an individual
merely discusses an employee’s shortcomings or mistakes with
him. Hausner Hard-Chrome of KY, Inc., 326 NLRB 426, 427
(1998). The ability to give oral reprimands that do not auto-
matically affect job status or tenure does not constitute supervi-
sory authority. Ohio Masonic Home, 295 NLRB at 394.
Moreover, as noted above, in order for a responsibility to
qualify as supervisory for purposes of Section 2(11), that re-
sponsibility must involve authority held in the interest of the
employer. NLRB v. Health Care & Retirement Corp., 511 U.S.
at 573–574. In the instant case, the Respondent’s own written
description of its disciplinary process shows that any undocu-
mented scoldings given by pilots were not considered disci-
pline by the Respondent. The Respondent was not even made
aware of these incidents of alleged discipline by pilots in any
official way, and there was no credible evidence of any person-
nel action ever being taken based on such an incident. The
credible evidence was that pilots were not told that they had
authority to discipline prior to the pilots meetings in May 1999.
Indeed, pilots did not even have the authority—possessed by
captains, the mates, and chief engineers—to complete em-
ployee evaluations. The Respondent’s effort to characterize
scolding remarks by its pilots as an exercise of supervisory
authority under Section 2(11) is without merit.
6. Effectively recommend discipline
When an adverse personnel action against an employer was
being contemplated by the Respondent, a pilot who worked
with the crew member would sometimes be asked to report on
the crew member’s work. However, the evidence did not indi-
cate that pilots were told about the personnel action that was
being contemplated or that their opinions were requested. Dur-
ing the relevant, pre-5/99, timeframe pilots were without au-
thority to complete the written employee evaluations that were
used by captains, mates, and chief engineers to comment on the
performance of employees. Since the information requested
from pilots amounted to, at best, a report of factual information,
it did not constitute an effective recommendation regarding
discipline. See Chevron USA, 309 NLRB supra at 61; Ohio
Masonic Home, 295 NLRB at 393–394.
7. Assign employees
The pilot did not assign other employees prior to May of
1999. The members of the deck crew were assigned to the
vessels by crew dispatchers, and to a particular watch by the
captain or the mate.The Respondent contends that pilots as-
signed employees because they had the authority to wake the
call watchman and require him or her to work. However, I
credit the testimony of multiple witnesses that it was the mate
and the captain, not the pilot, who had the responsibility to
decide if the call watchman would be awakened. (Tr. 83, 85,
234, 416, 556–557, 589, 1726–1727.)25 The pilot’s responsibil-
ity was limited to giving the mate sufficient advance notice that
tow work was coming up so that the mate could, if he or she
chose, wake the call watchman in time to perform the tow
work.
The Respondent also asserts that pilots “assign employees”
by ordering crew members to perform tasks such as standing
lockout, repairing lights, cleaning windows, and fixing depth
finders. The credible evidence in this case showed, however,
that the pilot did not assign employees to these tasks. Rather
the pilot informed the mate that the work was necessary, and
the mate selected the member of the deck crew who would
perform the task. The pilot was not called upon to take into
account the skill, experience, or fatigue level of the individual
selected by the mate. “[F]or an assignment of function to in-
volve independent judgment, the putative supervisor must se-
lect employees to perform specific tasks on the basis of a judg-
ment about the individual employee’s skills.” Cooper/T. Smith
Inc. v. NLRB, 177 F.3d 1259, 1265 (11th Cir. 1999).
Even if one assumes, contrary to my own conclusion, that
that pilots did direct particular deckhands to perform the tasks
enumerated by the Respondent, pilots would still not “assign
employees” as required by Section 2(11). The members of the
deck crew are assigned to the vessels by crew dispatchers and
to a particular watch by the captain or the mate. The tasks cited
by the Respondent are within a deckhand’s already-assigned
routine duties. Under these circumstances, the pilot could not
reasonably be seen as “assigning” employees.
8. Responsibly direct work
Prior to May of 1999, the Respondent’s mates oversaw the
work of the deck crew under the direction of the captain of the

25 For the reasons given in the credibility discussion above, I do not
credit Captain Johnsen’s testimony that the pilot decides whether the
call watchman will be awakened on the after watch.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD946
vessel. The deckhands and watchmen reported to the mate,
who in turn reported to the captain. The mate was responsible
for selecting the particular member of the deck crew who
would perform a task on the after watch, and the mate and the
captain worked together to prioritize the deck crew’s work.
That being said, it is clear that in the course of navigating the
vessel the captain would make determinations that certain work
by the crew was necessary. For example, the pilot would de-
termine: that the wheelhouse windows needed to be cleaned so
that he or she could see clearly enough to navigate; that a bro-
ken depth finder needed to be repaired or replaced to permit
safe navigation; that the boat needed to be tied off due to
weather conditions; that he or she needed someone to stand
lookout when negotiating a bridge or other obstacle; that he or
she needed a particular pin to be caught when entering a lock;
that the tow configuration needed to be altered to allow safe
navigation. The pilot would also sometimes determine that
wheelhouse maintenance, such as painting, needed to be de-
layed so as not to interfere with his or her ability to see or hear
well enough to navigate safely. The pilot also conveyed infor-
mation to the deck crew based on his or her superior vantage
and access to communications from land-based management,
passing vessels, fleeting operations, and navigational instru-
ments. For example, a pilot would relay tow orders received
from land-based management and communications from pass-
ing crews that one of the vessel’s running lights was out. The
pilot generally communicated with the mate, who in turn de-
cided who on the deck crew would perform any necessary
work. On occasion the pilot would determine that safe naviga-
tion required that the engines of the vessel run at above their
normal RPM level (an “engine overload”), and this information
would be communicated to engine room personnel. Depending
on the personality of the pilot, his or her communications could
be cast either as the conveyance of information, a request for
help, or a directive. Regardless of how the particular pilot cast
the communication, he had no authority to compel the action or
to discipline nonperformance or poor performance.
I conclude the Respondent’s pilots did not possess the type
of supervisory judgment required to “responsibly direct” within
the meaning of Section 2(11). In many of the instances that the
Respondent is attempting to characterize as responsible direc-
tion the pilot was really only conveying information from off-
vessel sources or his navigational equipment. In other in-
stances it is true that the pilot was making complex decisions
that sometimes resulted in directions being issued to crew
members. However, these decisions were based on the pilots’
extensive training, experience, and skill as navigators—in other
words, on their status as expert/experienced employees—not on
the possession of management prerogative, and the directions
only required employees to perform their routine duties. The
Board recently discussed this distinction in Mississippi Power
& Light:
A professional, technical, expert or experienced em-
ployee is often required, as part of the employee’s own
job, to make detailed and complex decisions. The judg-
ment required in making those decisions does not, how-
ever, “transform” that employee into a supervisor. And,
the mere communication of that information to other em-
ployees does not mean that the alleged supervisor uses su-
pervisory judgment in assigning and directing others, es-
pecially when such assignments and direction flow from
professional or technical training and do not independently
affect the terms and conditions of employment of anyone.
328 NLRB 965, 970 (1999); see also Providence Hospital, 320
NLRB 717, 728 (1996) (where nurse uses substantial profes-
sional judgment to create treatment plan, but the resulting di-
rections that the nurse gives to staff are wholly routine, the
nurse does not exercise supervisory independent judgment),
enfd. sub nom. Providence Alaska Medical Center v. NLRB,
121 F.3d 548 (9th Cir. 1997); see also Westinghouse Electric
Corp., 424 F.2d 1151, 1156 (7th Cir. 1970) (engineers who
“give directions” as “necessary incidents of their technical
know-how” do not responsibly direct), cert. denied 400 U.S.
831 (1970). The pilots’ decisions in response to river condi-
tions, and at locks, bridges, during tow work, and while facing
up are all decisions made based on navigational standards and
expertise, and are not decisions based on management concerns
such as business norms and profit maximizing objectives.
Under such circumstances the issues of divided loyalties that
Section 2(11) addresses, are not raised. NLRB v. GranCare,
170 F.3d 662, 666–667 (7th Cir. 1999) (en banc).
The legislative history of Section 2(11) indicates that “re-
sponsible direction” was meant to refer to the authority of an
individual who “determines under general orders what job shall
be undertaken next and who shall do it” and “gives instruction
for its proper performance.” Mississippi Power & Light Co.,
328 NLRB at 12 (dissenting opinion of Members Hurtgen and
Brame) (quoting Congressional Record, Senate, March 7, 1947
(remarks of Senator Flanders)). Prior to May 1999, the Re-
spondent’s pilots bore little if any resemblance to that descrip-
tion of a supervisory employee. It was up to the mate, not the
pilot, to determine which member of the deck crew would per-
form a particular task, even if the pilot was the one who deter-
mined that the action was necessary. “[F]or an assignment
function to involve independent judgment, the putative supervi-
sor must select employees to perform specific tasks on the basis
of a judgment about the individual employee’s skills” and the
Respondent’s pilots did not do that. Cooper/T. Smith, 177 F.3d
at 1265.26

26 The Respondent cites Bernhardt Bros. Tugboat Service, 142
NLRB 851 (1963), enfd. 328 F.2d 757 (7th Cir. 1964), in support of its
contention that its pilots responsibly directed crew members. In that
case, a trial examiner found that an employer’s pilots did have the
authority to responsibly direct for purposes of Sec. 2(11). The Board
adopted the trial examiner’s decision, but it is not clear how much
consideration it gave to the question of the supervisory status of pilots
since its decision did not discuss this issue and noted that exceptions
were not filed to the trial examiner’s dismissal of certain allegations,
and that such findings were “adopted pro forma.” Id. at 851 fn. 1. In
any case, the facts found in Bernhardt Bros., while in many respects
similar to those present here, differ in the significant respect that the
pilots decided which crew member would be assigned to a task. Id. at
854. As noted above, in the instant case the Respondent’s pilots were
not involved in selecting which crew member would perform a task.
This distinction is significant, as discussed in Cooper/T. Smith, 177
F.3d at 1265, and the legislative history of Sec. 2(11). Moreover, the
AMERICAN RIVER TRANSPORTATION CO. 947
In addition, the pilot did not “give instruction in [the task’s]
proper performance.” Indeed, from his duty station in the
wheelhouse, the pilot often could neither converse with the
crew member about the tasks nor observe the crew member’s
performance. When the pilot did communicate with the crew,
these communications almost always fell into one of two,
sometimes overlapping categories. The first category consisted
of communications of information that the pilot had because of
his special vantage and access to off-vessel communications.
The pilot would tell the mate, for example, how many barges
the tow order said would be picked up or dropped off, that a
depth finder was not working, that a light had blown, that a
barge appeared to be compromised, or that tow work was im-
minent or delayed. The Board has held that the conveyance of
information from management does not show independent
judgment for purposes of Section 2(11), see Fleming Co., 330
NLRB 277 (1999) (role as conduit of management information
is insufficient evidence of independent judgment within mean-
ing of Sec. 2(11)); Mayfield Produce Co., 290 NLRB 1083,
1084 (1988) (role as conduit for relaying instructions and poli-
cies of management insufficient to render individual a supervi-
sor, but can be sufficient to render him or her an agent). Simi-
larly, communications do not involve independent judgment for
purposes of Sec. 2(11) when they are the mere conveyance of
information regarding problems that the pilot gathers from
passing vessels, navigational instruments, or his own superior
vantage point in the wheelhouse. See Exxon Pipeline Co v.
NLRB, 596 F.2d 704, 706 (5th Cir. 1979) (individual does not
responsibly direct when he “does little more than notify the
field that a certain problem has occurred and requests assis-
tance in remedying it”). The second category consisted of the
communication by pilots of their needs ancillary to navigation
of the vessel—for example, that a particular pin be caught so
that he or she could steer safely into the lock, that a crew mem-
ber serve as look out, or that the deck crew tie off the tow when
the vessel and tow were pulled over due to weather conditions.
These communications are of the same character as those in-
volved in A.L. Mechling Barge Lines, 192 NLRB 1118, 1119
fn.7 (1971). There the Board held that instructions such as
“untie that line,” “catch a line,” “get down there,” “get that
barge over in line,” or “get that boat” did not “reflect the degree
of responsible direction” necessary to confer supervisory status
under Section 2(11), and the same conclusion is warranted
here. See also NLRB v. Security Guard Service, 384 F.2d 143,
151 (5th Cir. 1967) (“Every order-giver is not a supervisor.
Even the traffic director tells the president of a company where
to park his car.”).
The Respondent’s pilots were also excluded from the man-
agement procedure for deciding “what job shall be undertaken
next.” Mississippi Power & Light Co., 328 NLRB at 12; see
also Hausner Hard-Chrome of KY, Inc., 326 NLRB 426 (indi-

decision in Bernhardt Bros., was issued almost 40 years ago, and its
continued viability is called into question by the recent decision in
Mississippi Power & Light Co., where the Board recognized a distinc-
tion between supervisory employees whose direction “share[s] man-
agement’s power,” and those nonsupervisory employees whose direc-
tion is based on “superior training, experience, or skill.” 328 NLRB
965, 970.
viduals do not assign or direct within the meaning of Section
2(11) when they do not have any role in planning and control-
ling their departments’ operation). The Respondent’s operating
procedures required the captain and the mate to meet daily to
prioritize all work on the vessel, but the pilots were not in-
cluded in these meetings. At most, the pilot would have incon-
sequential involvement in scheduling a tiny proportion of the
deck crew’s work—for example, telling the mate when it was,
or was not, a good time to perform wheelhouse maintenance
(e.g., scraping and painting) based on navigational concerns
such as whether the stretch of river and weather conditions
permitted the pilot to steer safely even with his or her view
partially obstructed. Certainly, if the pilot told the mate that, in
the interests of safe navigation, it was urgent that the wheel-
house windows be cleaned or that an aid to navigation be re-
paired, one would expect that the mate would set a high priority
on those tasks, but there was no evidence that this was so be-
cause of any supervisory authority possessed by pilots, rather
than because of the mate’s understandable desire to cooperate
with the pilot in order to avoid accidents or mishaps. The Re-
spondent’s training materials stated that it was the mate who
would be responsible for “directing work as it is being per-
formed.” Individuals are not supervisory even though they
make an independent judgment that a problem must be cor-
rected immediately and request assistance from employees in
remedying it, where the individual has no further authority to
direct personnel in the performance of their remedial duties.
See Exxon Pipeline Co. v. NLRB, 596 F.2d at 706.27
Because the Respondent has not shown that its pilots deter-
mined what job would be undertaken next or who would do it,
or that pilots gave significant instruction on proper perform-
ance, I conclude that the pilots did not have the authority to
“responsibly direct.”
Even if one were to conclude that the Respondent’s pilots di-
rected employees on behalf of the employer in non-routine
tasks, those pilots would still not be statutory supervisors be-
cause such direction was not “responsible” within the meaning
of Section 2(11). Pilots were not held accountable in any
meaningful way for the performance and work product of the
crew. The Respondent did not prove a single instance when
any pilot had been warned, counseled, suspended, or disci-
plined in any way because of the mistake or poor performance
of one of the crew members he or she allegedly supervised.28

27 One pilot who testified for the General Counsel said that he could
“insist” that work necessary for safe navigation (e.g., the cleaning of
windows, repair of an aid to navigation) be performed by the deck
crew. Tr. 461–467. In the unlikely even that the deck crew refused to
perform a task that was necessary to safe navigation, one would expect
that the pilot would “insist” in no uncertain terms that the task be done.
However, it is one thing to insist, and another to have the authority to
compel such actions. Certainly one would expect that if a deckhand
standing lookout observed a small boat in the path of the tow, he would
“insist” that the pilot take action to avoid a collision, but this would not
mean that the deckhand was the pilot’s supervisor or had authority to
compel the pilot to follow directions. The Respondent has not shown
that, prior to May 1999, the pilot had authority or power from the Re-
spondent to compel any crew member to do anything.
28 Pilots did complete incident reports on any accidents that occurred
during the after watch. This reporting function does not show that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD948
At least five United States Courts of Appeals have indicated
that an individual does not responsibly direct employees unless
he or she is held responsible in the sense of being fully ac-
countable or answerable for the performance and work product
of the employees he or she directs. Schnurmacher Nursing
Home, 214 F.3d 260, 267 (2d Cir. 2000); Cooper/T. Smith, Inc.
v. NLRB, 177 F.3d at 1265–1266 (11th Cir.); Spetonbush/Red
Star Cos. v. NLRB, 106 F.3d at 490 (2d Cir.); Northeast Utili-
ties Corp. v. NLRB, 35 F.3d 621, 625 (1st Cir. 1994), cert. de-
nied, 514 U.S. 1015 (1995); Kaiser Engineers v. NLRB, 538
F.2d 1379, 1383 (9th Cir. 1976); NLRB v. Fullerton Publishing
Co., 283 F.2d 545, 549 (9th Cir. 1960); Ohio Power Co. v.
NLRB, 176 F.2d 385, 387 (6th Cir.), cert. denied 338 U.S. 899
(1949). The Board has not expressly stated whether it adheres
to this definition of the word “responsibly” in Section 2(11),
but it has approved at least one decision by an administrative
law judge that relied on it , see Asheville Steel Co., 202 NLRB
146, 147 fn. 11 (1973), enfd. 487 F.2d 1398 (4th Cir. 1973). In
my view, it is reasonable that the inquiry into whether an indi-
vidual “responsibly” directs work should focus on whether the
alleged supervisor is held responsible for the performance and
work product of the employees he directs. In this case, pilots
are not only not held fully accountable for the performance and
work product of crew, but they are not held accountable at all
in any meaningful sense. This buttresses the conclusion that
pilots did not “responsibly” direct within the meaning of Sec-
tion 2(11).29

pilot was held responsible for the performance of the crew during the
accident, but only that he or she was held responsible for making the
report regarding the accident. The Respondent contends that the pilot
was held responsible insofar as he or she could lose his or her Coast
Guard license in the event of an accident, or in the event that a crew
member failed to comply with Coast Guard regulations. There was no
evidence, credible or otherwise, that a pilot had ever lost his or her
license because of an accident that was caused by a crew member’s
mistake, or because of a crew member’s violation of Coast Guard regu-
lations. Even if this had happened, it would only indicate that the Coast
Guard considered the pilot responsible, not that the Respondent consid-
ered the pilot responsible, or that the pilot actually was responsible
under the Respondent’s policies and procedures.
29 Another possible test of whether an alleged supervisor “responsi-
bly” directs employees is to ask if the alleged supervisor has been
“charged,” with doing so. Mississippi Power & Light, 328 NLRB No.
965, 979 fn. 23 (1999) (dissenting opinion of Members Hurtgen and
Brame). The result is the same under that test. The Respondent’s own
documents show that it charged the mate with managing the deck crew
under the direction of the captain. The pilot was not charged with
directing or management of the deck crew or mate. Cook, the vice-
president of the Respondent’s operations, admitted that he had told
pilots that prior to May of 1999, they were viewed as a “person that
drives the boat with virtually no say-so in the management of the boat.”
Moreover, the credible testimony of pilots was that, prior to May of
1999, the Respondent had never told them that they managed the crew
on their watch or that they had the authority to direct or oversee work.
Indeed pilots were generally unable to observe the work of the deck-
hands, and were sometimes unable to communicate with them.
The Respondent contends that the pilot’s direction is responsible be-
cause he is “in command” of the “inherently dangerous” line boat op-
erations during the after watch. This argument fails both factually and
legally. The Respondent’s captains are “in complete command of all
phases of vessel operation at all times.” GC Exh. 76, p. 2 (emphasis in
The Respondent argues that pilots are statutory supervisors
because they are expected to direct the crew during emergen-
cies and because they assume the captain’s duties in the event
that the captain is incapacitated or absent. These incidents
occur on a very isolated and infrequent basis and are insuffi-
cient to confer supervisory status. Chevron USA, 309 NLRB at
61 (“isolated and infrequent incidents of supervision do not
elevate a rank-and-file employee to a supervisor level”). Re-
cently, the Board stated that the “appropriate test for determin-
ing the status of employees who substitute for supervisors is
‘whether they spend a regular and substantial portion of their
working time performing supervisory tasks.’” Carlisle Engi-
neered Products, Inc., 330 NLRB 1359 (2000). In Hexacomb
Corp., 313 NLRB 983, 984 (1994), the Board held that an em-
ployee who substituted for a supervisor 8 to 10 percent of the
time was still not himself a supervisor because he assumed the
supervisor’s duties on too sporadic a basis. See also McDon-
nell Douglas Corp v. NLRB, 655 F.2d at 937 (where airplane
pilot exercised supervisory authority over crew five percent of
the time, such authority was too infrequent to render him a
supervisor). The record here does not indicate that anywhere
near eight percent of a pilot’s time was spent acting as cap-
tain.30 Pilots’ substitution for captains was sporadic and
clearly did not occupy a “regular and substantial portion of
their working time.” Such substitution does not confer supervi-
sory status.
Regarding the pilot’s actions during emergencies, these inci-
dents are not only sporadic, but, by their nature, create special
circumstances where personnel at various levels may give di-
rections to others and expect them to comply. See Bay Area-
Los Angeles Express, 275 NLRB 1063, 1076 (1985) (an em-
ployee does not become a supervisor because he or she gives
common sense direction in response to an isolated emergency

original). Even if pilots did exercise some limited sort of “command”
function, it is not clear that this would implicate any of the supervisory
functions listed in Section 2(11). In addition, the Board has rejected
the argument that the danger inherent in an operation establishes that
individuals are supervisors. See Mississippi Power and Light Co., 328
NLRB 965, 969 (1999) Chevron Shipping Co., 317 NLRB at 382. A
number of United States Courts of Appeals have also rejected the idea
that the inherent danger of an activity renders persons inovlved in it
supervisors. In Cooper/T.Smith, the Eleventh Circuit recognized that
docking pilots directed others in work that was complex and potentially
dangerous, but held that this did not elevate the pilots to supervisory
status. 177 F.3d at 1266. In McDonnell Douglas Corp. v. NLRB, the
Ninth Circuit held that an airplane pilot who exercised “the authority
needed to insure the safety of the airplane, passengers, and crew,” was
not a supervisor since such authority stemmed from his “professional
expertise,” and was “an intrinsic part of any pilot’s job.” 655 F.2d at
937; see also See Providence Hospital, 320 NLRB 717, 725–726
(1996) (when a nurse directs others in matters of life and death, the
nurse exercises professional, not supervisory judgment), enfd. sub nom.
Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir.
1997).
30 In one instance a pilot assumed a captain’s duties for a somewhat
lengthy period of time, but this was when the vessel was not underway.
The evidence did not show that other pilots had acted as captains with
any frequency at all, nor did it show that any pilot had assumed a cap-
tain’s duties for an extended period of time on a vessel that was under-
way.
AMERICAN RIVER TRANSPORTATION CO. 949
situation). For example, if a deckhand standing lookout on the
forward watch were to observe a small boat immediately in the
path of the tow one would expect the deckhand to tell the cap-
tain to avoid the craft, and for the captain to endeavor to do so.
Indeed, the Respondent’s own written policies provide that a
deckhand tells other crew members where to gather during an
emergency. (GC Exh. 9.) Furthermore, during emergencies,
like other times when the pilot communicates with crew, the
pilot is not exercising the supervisory responsibilities of the
Respondent, but rather is acting in accordance with the exper-
tise as a navigator In Empress Casino Joliet Corporation v.
NLRB, 204 F.3d at 722, the Seventh Circuit observed that
“[w]hen a ship’s captain orders the helmsman to steer the ship
to starboard in order to avoid an iceberg, he is exercising pro-
fessional judgment rather than shouldering one of the supervi-
sory responsibilities of the ship owner’s managers,” even when
such “exercise of professional judgment” has “an irreducible
supervisory component.” Id. When, in emergency situations,
a pilot instructs others about what needs to be done, this does
not render the pilot a supervisor even though the pilot used his
or her judgment as an experienced navigator in deciding what
instructions to give.
9. Secondary indicia of supervisory status
The Respondent contends that pilots should be considered
supervisors because they receive officer’s benefits and are the
second highest paid person on the vessel after the captain.
Some decisions have discussed “secondary indicia” of su-
pervisory status, see, e.g., Laser Tool, Inc., 320 NLRB 105, 108
(1995), however, such indicia cannot establish supervisory
status unless the disputed employee possesses at least one of
the types of authority listed in Section 2(11), see GRB Enter-
tainment, Inc., 331 NLRB 320 (2000), Carlisle Engineered
Products; supra, Chrome Deposit Corp., 323 NLRB 961 fn. 9
(1997), Bay Area-Los Angeles Express, 275 NLRB at 1080,
quoting Memphis Furniture Mfg. Co., 232 NLRB 1018, 1020
(1977), enfd. 616 F.2d 964 (6th Cir. 1980). Since the Respon-
dent has failed to meet its burden of showing that pilots pos-
sessed any of the types of authority specified in Section 2(11),
the argument based on secondary indicia fails. At any rate, the
Respondent’s contention that officer’s benefits and pay level
correlate directly with supervisory status is undermined by the
evidence that assistant engineers, who management witnesses
conceded were not supervisors, received officer’s benefits, Tr.
1319, and higher pay than the mate (GC Exh. 59), even though
management witnesses agree that the mate is a supervisor. See
Chevron Shipping Co., 317 NLRB 379 (second and third mates
aboard oil tanker are not supervisors even though they are offi-
cers); see also Bay Area-Los Angeles Express, 275 NLRB at
1080 (fact that senior employee receives greater compensation
than other employees is not inconsistent with non-supervisory
status).
The most telling of the secondary indicia in this case is the
improbable supervisory ratio that would result from acceptance
of the Respondent’s contentions. According to management
witness Hopkins, five members of the line boat crew are super-
visors—the captain, the pilot, the mate, the watchman, and the
chief engineer. (Tr.1433–1435.)31 This would leave, as su-
pervised employees, only four crew members on the lower
Mississippi River, and five crew members on the upper Missis-
sippi River. In other words, acceptance of the Respondent’s
view would result in a supervisory ratio of five supervisors to
every four or five non-supervisory employees. In NLRB v.
Grancare, Inc., the Seventh Circuit, sitting en banc, observed
that under the employer’s theory the supervisory ratio would be
59 supervisors to 90 nonsupervisors and remarked that “[s]uch
a highly improbably ratio of bosses to drones ‘raises a warning
flag.’” 170 F.3d at 667; see also Northcrest Nursing Home, 313
NLRB 491, 498–499 (1993) (discussing that significance has
been given to supervisory ratio, but stating that it is not disposi-
tive of supervisory status). In the instant case, the ratio of su-
pervisors to non-supervisors that would result from acceptance
of the Respondent’s view is even higher and even more unreal-
istic than in Grancare, and raises an even brighter warning
flag.
Conclusion
For the reasons discussed above, I reject the Respondent’s
contention that its pilots were already statutory supervisors at
the time of the alleged unfair labor practices. The Respondent
has failed to show that its pilots exercised a single one of the
supervisory authorities listed in Section 2(11) prior to May
1999. The Respondent’s argument is contradicted not only by
the evidence regarding pilots’ duties, but also by its own prior
statement in a letter to striking pilots which indicated that it
viewed pilots as employees who had the right to engage in
concerted activity, and by Cook’s statement that pilots had
been viewed as having “virtually no say-so in management.”
II. ALLEGEDLY UNLAWFUL STATEMENTS OF COOK ON
JUNE 8, 1999
The General Counsel alleges that remarks made by the Re-
spondent’s vice president of operations, Dave Cook, at the
pilots meeting on June 8, 1999, violated Section 8(a)(1) be-
cause they implied that the new supervisory duties were being
assigned to discourage union and protected activity. The test
for such a violation is “whether the employer engaged in con-
duct which, it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act.” American
Freightways Co., 124 NLRB 146, 147 (1959). At the time of
the pilots meetings the Respondent was aware that the union
organizing campaign was ongoing. During his June 8 talk to
pilots, Cook stated that the Respondent had been forced to
make changes in the past to respond to factors such as drought
and flood. He stated that the Respondent would be changing
again in response to what it had learned during the Pilots Agree
Strike of 1998. Prior to the strike, Cook explained, the pilots
had been seen as persons with virtually no “say-so” in the man-
agement of the boat. Now the Respondent, Cook said, was
giving pilots more “say-so” in management.32 Cook con-

31 Wilken stated that the captain, pilot, mate, and chief engineer were
supervisors, but excluded the watchman from the group.
32 The General Counsel alleges that Cook also said “gentleman,
make no mistake about it, there will be no more Pilots Agree at
ARTCO,” however, for reasons discussed in the statement of facts, I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD950
cluded by stating “[r]est assured,” “we will survive Pilots
Agree of ‘98.”
I conclude that these remarks by Cook tended to interfere
with the free exercise of the pilots’ rights under the Act, in
violation of Section 8(a)(1). The Respondent essentially stated
that the Company was assigning management duties to em-
ployees in reaction to concerted activity, i.e., the strike. More-
over, since supervisory employees do not have the right under
the Act to engage in concerted activities, the implication of
these statements was clear. The Respondent was telling the
pilots that any further organizational activity would be futile
because the Company was making pilots supervisors. An em-
ployer violates Section 8(a)(1) when it acts to discourage or-
ganizational activity by stating that such activities will be fu-
tile. See, e.g., Overnite Transportation Co., 296 NLRB 669,
671 (1989), enfd. 938 F.2d 815 (7th Cir. 1991); Uniroyal Tech-
nician Corp., 324 NLRB 429, 432 (1997), enfd. 151 F.3d 666
(7th Cir. 1998).
III. ALLEGEDLY UNLAWFUL ASSIGNMENT OF
SUPERVISORY DUTIES
In May 1999, the Respondent issued a job description that
assigned new supervisory duties to its pilots, and in September
1999 the Respondents issued a document to pilots entitled “The
ARTCO Pilot’s Added Responsibilities, Effective 09 Sept. 99,”
which also listed a number of new supervisory duties.33 The
General Counsel alleges that these actions violated Section
8(a)(1) and (3) of the Act because the Respondent acted in
response to the pilots’ union and concerted activities, and with
the purpose of discouraging such activities. The Board has
held that the assignment of supervisory functions violates Sec-
tion 8(a)(3) if it is done to discourage support for the union and
to avoid the possibility of a representation election. Matson
Terminals, 321 NLRB 879 (1996), enfd. 114 F.3d 300 (D.C.
Cir. 1997).
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Corp., 462 U.S. 393
(1983), the Board set forth the standards for determining
whether an employer has discriminated against an employee on
the basis of union or protected activity. Under the Wright Line
standards, the General Counsel bears the initial burden of
showing that the Respondent’s actions were motivated, at least
in part, by antiunion considerations. The General Counsel
meets this burden by showing that: (1) the employees engaged
in union or other protected activity, (2) the employer knew of
such activities, and (3) the employer harbored animosity to-

conclude that the General Counsel did meets its burden of proving that
this remark had been made.
33 The witnesses for the General Counsel and the Respondent dis-
agree about how many of the responsibilities assigned to pilots in the
May 1999 pilot’s job description, and the September 1999 statement of
“Pilot’s Added Responsibilities,” were “new,” but by all accounts some
the responsibilities had not been possessed by pilots previously. As
indicated by the preceding discussion of pilots’ status prior to May
1999, I have concluded that the pilots did not previously possess any of
the supervisory authorities mentioned in the job description or “Added
Responsibilities” memorandum.
wards the union or union activity. Senior Citizens Coordinat-
ing Council, 330 NLRB 1100, 1105 (2000); Regal Recycling,
Inc., 329 NLRB 355, 356 (1999). If the General Counsel estab-
lishes discriminatory motive, the burden shifts to the employer
to demonstrate that it would have taken the same action absent
the protected conduct. Senior Citizens, 330 NLRB 1105.
The Respondent in this case was aware that many of its pi-
lots had participated in a strike in 1998 that hobbled the Com-
pany for many months. In addition, the Respondent was aware
that the Union was engaged in a campaign to organize its pilots
and that this campaign was continuing at the time of the alleged
unfair labor practices. The General Counsel has shown that the
Respondent’s pilots engaged in union and other protected activ-
ity, and that the Employer knew of such activities.
The evidence also shows that the Employer harbored ani-
mosity towards the union activity. I believe Cook’s statement
to pilots that the Respondent was changing the pilots duties as a
result of what the Company had “learned” during the strike, is
evidence enough of this. The Respondent’s anti-union animus
is seen again in the testimony of Creviston, the labor relations
manager who had responsibility for the Company’s response to
the organizing campaign. Creviston compared Pilots Agree
and its concerted activity to a “snake” that he had tried to “kill”
by “cutting the head off.” These remarks drip with animosity
towards Pilots Agree.
Timing is an important factor in assessing motivation in
cases alleging discrimination based on union or protected ac-
tivity. See, e.g., Detroit Paneling Systems, 330 NLRB 1170
(2000); Bethlehem Temple Learning Center, 330 NLRB 1177
(2000); American Wire Products, 313 NLRB 989, 994 (1994).
The Respondent had historically viewed its pilots as nonsuper-
visory personnel with “virtually no say-so in management.” As
late as the strike of 1998, the Respondent sent pilots a letter
recognizing that they were nonsupervisory employees with
Section 7 rights. Then, in response to the election petition filed
on September 24, 1998, the Respondent for the first time con-
tended that its pilots were not employees, but statutory supervi-
sors. This contention was rejected by the Regional Director,
and the Board upheld that decision on January 21, 1999. The
Union lost the representation election, but the Respondent
knew that the organizing effort was continuing. On May 13,
1999—less than 4 months after the Board ruled that the pilots’
existing duties were nonsupervisory—port captain Hussell sent
an e-mail message to pilots stating that the Respondent would
be holding meetings for pilots at which the assignment of new
duties would be discussed. This was the first credible evidence
that the Respondent was intending to assign new duties to pi-
lots. See, infra footnote 11. There was no credible evidence
that the Respondent had even contemplated such a change be-
fore the Board ruled that their existing duties were nonsupervi-
sory. This smacks of an effort by the Respondent to negate the
Board’s decision by giving pilots, at least on paper, new au-
thorities that would render them supervisors and preclude fur-
ther organizational efforts.
The view that the assignment of the new functions was de-
signed to thwart the organizational effort, not for any legitimate
business purpose, is further supported by the Respondent’s
conduct after those duties were assigned. The credible testi-
AMERICAN RIVER TRANSPORTATION CO. 951
mony showed that the Respondent had not called upon pilots to
exercise many of the new duties it gave them on paper. 34
Moreover, captains and mates had long been exercising a num-
ber of these duties and continued to do so without any change
to accommodate the pilots’ supposed new role in management.
Immediately after the pilots meetings, the Respondent required
pilots to complete evaluations of deck crew members. Pilots
testified credibly that since that round of evaluations, they had
not been called upon to complete evaluations ever again. The
mates continued to complete their own deck crew evaluations,
which where were reviewed by the captains, as they had been
prior to the assignment of new duties to the pilots. This evi-
dence supports the view that the assignment of new duties to
the pilots was a sham. See New York Univ. Med. Ctr. NLRB,
156 F.3d 405, 414 (2d Cir. 1998) (Theoretical or paper power
does not a supervisor make.), Beverly Enters.—Mass., Inc. v.
NLRB, 165 F.3d at 963 (“[A]bsent exercise, there must be other
affirmative indications of authority. Statements by manage-
ment purporting to confer authority do not alone suffice.”),
North Miami Convalescent Home, 224 NLRB 1271, 1272
(1976) “[T]he mere . . . giving of ‘paper authority’ which is not
exercised does not make an employee a supervisor.”
The statements of Cook and Creviston, the timing of the Re-
spondent’s assignment of the new duties, the failure of the Re-
spondent to call upon pilots to exercise their new supervisory
authorities in a meaningful way, and the record as a whole
persuade me that the Respondent’s decision to assign the new
duties was motivated, at least in part, by antiunion considera-
tions.35 Therefore, the burden shifts to the Respondent to dem-
onstrate that it would have taken the same action absent the
unlawful motive.
The Respondent contends that it had legitimate reasons for
assigning supervisory duties to pilots, and that these reasons
would have caused it to take the same action even absent any
antiunion motive. Specifically, the Respondent says it needed:
to have a management representative on the vessel at all times;
to provide management training to pilots; and to obtain “re-
sponsible carrier” certification. None of these alleged motives
for the assignment of supervisory functions to pilots withstands
scrutiny.
Regarding the contention that the Respondent needed to have
a management representative on the vessel at all times, the

34 The Respondent’s pilots did exercise some new duties that were
not supervisory in nature, e.g., signing the daily log for the after watch.
35 The Respondent argues that one cannot reasonably conclude that
it had antiunion animus because it hired known union sympathizers as
wheelhouse personnel after the strike. I disagree. To refuse to hire
these individuals because of their protected activity would have been a
violation of Sec. 8(a)(3) of the Act. Although it is commendable that
the Respondent did not choose to violate the Act in this respect, the fact
that an employer does not violate the Act in every way possible does
not prove that it complied in all others. Moreover, after the strike the
Respondent was desperately short of wheelhouse personnel and this
could explain the Respondent’s decision to hire pilots it might other-
wise consider undesirable. This is particularly true since the strike had
affected other towboat operations who would presumably be competing
for the same experienced wheelhouse personnel. Both Hopkins and
Dragon testified to the Respondent’s unusual need for new wheelhouse
personnel following the strike.
evidence showed that the Respondent did have such a represen-
tative—the captain. According to its own written statement the
captain is in complete command of all phases of vessel opera-
tion at all times.” (GC Exh. 76, p. 2) (Emphasis in original.)
Moreover, the Respondent’s contention that the training was
motivated by a need to have a management representative on
the vessel at all times is contrary to its claim that it already
considered pilots to be supervisors and managers.
It is not unreasonable that the Respondent would want to
provide training in its policies and procedures to pilots, espe-
cially to the many new pilots who it hired after the strike.
However, this motive would only explain the Respondent’s
desire to provide training in existing duties. It is no explanation
at all for the Respondent’s decision to assign a host of new
supervisory duties to its pilots. Similarly, although the issuance
of a job description for pilots may have been required in order
to obtain responsible carrier program certification,36 that would
not necessitate the assignment of new supervisory authorities to
pilots. The Respondent could have met any requirement that a
job description be issued by creating one that reflected the pi-
lots’ actual and existing duties. The desire for responsible car-
rier program certification in no way explains the Respondent’s
decision to issue a job description that purported to assign nu-
merous new supervisory functions to pilots.37
The Respondent argues that under the Board’s decision in
Bridgeport & Port Jefferson Steamboat, 313 NLRB 542
(1993), an employer is permitted to assign supervisory duties to
employees with the intent of making them statutory supervi-
sors, even where the employer knows the action will deprive
the employees of Section 7 rights. In that case, the Board held
that it was not a violation to assign supervisory duties to the
captains of its vessels, even though the Board had previously

36 The responsible carrier program was established by the American
Waterways Operators, an industry group, as a code of practice for
member companies.
37 I found Wilken’s testimony that the assignment of supervisory
functions was motivated by a desire to comply with the requirements of
the responsible carrier program to be lacking in credibility for the same
reasons, discussed above, that I found his testimony generally lacking
in credibility. Moreover, I believe that the totality of the evidence
makes his statements about motive implausible. The Respondent states
that the program requires that pilots be trained in supervisory skills.
However, the provision cited, indicates that supervisory skills training
is for the “master,” not the pilot. GC Exh. 48 at p. V-2. Moreover, the
document is dated “1/00,” which is after the Respondent assigned the
supervisory duties to pilots. Even if pilots required some supervisory
training to prepare them to serve as acting captains on rare occasions,
that would not explain why the Respondent decided to issue documents
making the supervisory authorities a permanent part of the pilots’ job at
times when the pilots were not substituting for the captain. Lastly, the
timing of the Respondent’s action does not support the claim that it was
motivated by the responsible carrier program. That program was im-
plemented in December 1994, GC Exh. 48 at p. I-1. One would expect
that if that program was the reason for the assignment of new supervi-
sory duties to pilots, then the Respondent would have assigned the
duties closer in time to when the program was implemented. The fact
that the Respondent waited over 4 years—until after the strike and the
Board’s decision in the representation case—before assigning the new
supervisory duties undermines the Respondent’s claim that its action
was motivated by the responsible carrier program.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD952
held that captains were not statutory supervisors. However, the
Board explicitly stated that the reason that the assignment of
new supervisory duties was lawful was that the employer’s
action was “not a sham aimed at undermining the Union but a
sincere effort to provide onsite supervision of its vessels
through the performance of supervisory duties by its captains.”
313 NLRB at 544. Indeed in Bridgeport there was credible
evidence including written directives and memoranda, showing
that the employer was having serious problems with the opera-
tion of its vessels due to a complete lack of on-board supervi-
sion. The evidence showed that the Bridgeport’s recognition of
these problems, and its desire to remedy them, pre-dated the
Board’s ruling that the Bridgeport’s captains were non-
supervisory employees. The evidence also showed that Bridge-
port had not merely assigned the new supervisory tasks, but
“required the captains to perform” them. Id.
The facts of the instant case stand in stark contrast to those in
Bridgeport, and, as noted above, show that the Respondent’s
assignment of supervisory functions to pilots was “a sham
aimed at undermining the Union” and therefore a violation of
the Act, consistent with the Board’s decision in Matson Termi-
nals, 321 NLRB 879. In the instant case, unlike Bridgeport,
there is no credible evidence that the Respondent contemplated
assigning supervisory duties to pilots prior to the strike and the
organizing campaign. On Bridgeport’s vessels there had been
a true supervisory vacuum in which no one on board, not even
the captains, had been considered supervisors. There was no
such vacuum on the Respondent’s boats here. The Respon-
dent’s captains were recognized supervisors who the Respon-
dent stated were “in complete command of all phases of vessel
operation at all times.” (GC Exh. 76 at p. 2.) Moreover, ac-
cording to the testimony of the Respondent’s witness, the mate,
the watchman and the chief engineer also had supervisory au-
thority. Lastly, the evidence in this case indicates that, unlike
the disputed employees in Bridgeport, the pilots in this case
were not called upon to exercise their new supervisory duties in
a meaningful way.
I conclude that, as the General Counsel alleges, the Respon-
dent assigned the new supervisory duties to pilots because of
their protected and union activity and in an effort to preclude
such activity in the future. Therefore such assignment violated
Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. American River Transportation Company is an employer
within the meaning of Section (2)(2), (6), and (7) of the Act.
2. The International Organization of Masters, Mates & Pi-
lots, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. By making statements to employees implying that it had
assigned supervisory duties to them in order discourage union
or protected activity, the Respondent interfered with its em-
ployee’s Section 7 rights in violation of Section 8(a)(1).
4. By publishing the ARTCO pilot job description in May
1999 that assigned supervisory duties to its pilots, and the sub-
sequent document in September 1999 that assigned additional
supervisory duties to pilots, and by putatively assigning super-
visory duties to pilots, all because of the pilots’ union and pro-
tected activity and in order to discourage such activity by pilots
in the future, the Respondent discriminated in regard to hire,
tenure, and conditions of employment of its employees in vio-
lation of Section 8(a)(1) and (3) of the Act.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I will recommend to the Board that it be
required to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act. I will rec-
ommend to the Board that the Respondent be ordered to cease
and desist from assigning supervisory duties to statutory em-
ployees because of their union or protected activities, or to
discourage such activities.
I will recommend that the Respondent be required to with-
draw the job description for pilots published in May 1999, and
rescind any orders or instructions it has issued implementing
that description. In addition, I will recommend that the Re-
spondent be required to withdraw the memorandum, entitled
“The ARTCO Pilot’s Added Responsibilities, Effective 09
Sept. 99,” and to rescind any orders or instructions that it has
issued implementing that document.
[Recommended Order omitted from publication.]