Bridgeport & Port Jefferson Steamboat Co.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 542 (N.L.R.B. 1993)

542
313 NLRB No. 63
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complete list is as follows:
1. Failure to follow directives for [sic] Port Jefferson Office.
2. Disregarding or willfully disobeying the Captains [sic]
order.
3. Being under the influence of any substance that impairs
one’s faculties.
4. Not reporting for work on time.
5. Abusiveness to passengers, using profane language within
hearing of passengers or making indecent gestures within pas-
sengers [sic] sight.
6. Wasting or destroying supplies or materials on board.
7. Inability at performing job function.
8. Arguing or fighting aboard.
9. Reporting for duty in a dirty or repugnant condition.
10. Any other act of misconduct.
The Bridgeport and Port Jefferson Steamboat Com-
pany and Local 333, United Marine Division,
International Longshoremen’s Association,
AFL–CIO. Case 29–CA–14930
November 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 2, 1991, Administrative Law Judge Wal-
ter H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent’s grant of su-
pervisory authority to the captains of its boats violated
Section 8(a)(5), (3), and (1) of the Act. He found the
supervisory positions to be a sham. He concluded that
the Respondent bargained to impasse over the non-
mandatory subject of altering the scope of the bargain-
ing unit, and that the Respondent did so in order to
weaken the Union. The Respondent excepted to the
judge’s findings. We find merit in these exceptions.
The Respondent operates boats, the Grand Republic
and the Park City, that carry passengers, automobiles,
and cargo across Long Island Sound from Port Jeffer-
son, New York, to Bridgeport, Connecticut. A one-way
trip takes slightly more than an hour, with daily serv-
ice available throughout the year. Service is more fre-
quent on weekends and in the summer. There are also
charter cruises and moonlight cruises during the sum-
mer months. Each boat carries about 1000 passengers
and about 100 cars. The crew is normally composed
of six or seven members—captain, mate, chief engi-
neer, two able-bodied seamen, one ordinary seaman,
and one oiler. There is also a purser on board with re-
sponsibility for concession operations. Additional per-
sonnel are required if there are more than 500 pas-
sengers aboard or if a boat is operating after 10 p.m.
Crews work 8-hour shifts. Boats leave the dock at 6
a.m. and operate until 9 or 11 p.m. The Respondent
employs dockhands at both ports. The Respondent’s
office is near the dock at Port Jefferson. There, daily
supervision is exercised by Vice President and General
Manager Frederick Hall, Operations Manager or Port
Captain John Alban, and Port Engineer Mario Dezalic.
The three engage in occasional walkarounds on the
boats to check the general cleanliness and safety of the
vessels. They also monitor maintenance such as rust
and buckling problems.
The parties’ collective-bargaining agreement covers
a unit of licensed and unlicensed employees, including
captains, pilots, mates, chief engineers, assistant engi-
neers, oilers, able-bodied seamen, and ordinary sea-
men. Specifically excluded are all other employees, of-
fice clerical employees, professional employees, guards
and supervisors as defined in the Act. The Respondent
has had a series of contracts with the Union, usually
of 3-year duration, for nearly 30 years. The last one
of this length expired on June 15, 1988. Thereafter the
parties concluded a 1-year agreement until June 15,
1989, and a 9-month agreement until April 3, 1990.
On April 14, 1988, the Respondent issued ‘‘Oper-
ational Regulations’’ to its Park City captains to be ef-
fective immediately. The captains were made respon-
sible for the operation, maintenance, and safety of the
vessels and held accountable for their condition and
performance. The senior captain was required to for-
mulate a master plan for the general maintenance of
the vessel. The associate captain was to follow the
plan and captains were to ‘‘submit monthly evaluation
reports of their crews to the Port Jefferson Office.’’ In
addition, the captains were to exercise tighter control
over supplies and machinery malfunctions. The ‘‘Crew
Operation Regulations’’ required the captains to issue
daily orders for the crew’s maintenance activity—deck
maintenance, outside painting, interior maintenance,
and constant trash pickup. The crew was to be engaged
in maintenance work at all times, the only exceptions
being the captain’s designation of a second seaman on
the bridge or some crewmembers on the gangway to
monitor the loading of cars. The regulations instituted
a progressive disciplinary system for infractions which
included ‘‘disregarding or willfully disobeying the cap-
tain’s orders.’’1 Captains received evaluation forms for
each crewmember for the monthly submissions.
On April 18, 1988, the Respondent issued a direc-
tive to the crew of the Grand Republic for the purpose
of providing ‘‘a more pleasing and efficient ferry serv-
ice and . . . a more pleasant and desirable place for
the ferry crews to work in.’’ The Respondent noted
that the Grand Republic was ‘‘in a very sorry condi-
tion . . . dirty, unwashed, unattended and in general in
very poor condition’’ and that crewmembers were
‘‘somewhat to blame.’’ The Respondent therefore insti-
543BRIDGEPORT & PORT JEFFERSON STEAMBOAT CO.
2 The Regional Director’s ‘‘Decision and Order Dismissing Peti-
tion’’ was admitted into evidence as G.C. Exh. 2.
3 There were 10 negotiating sessions between February 28 and
May 3, 1990.
4 The job description proposal stated:
CAPTAINS: All captains employed by the Company shall ex-
ercise all of the authority and responsibility conferred upon them
by maritime custom and law, shall have the authority and re-
sponsibility to hire employees in accordance with the hiring pro-
vision of this agreement, to evaluate employees, to fire or other-
wise discipline employees, to direct and assign all work on their
vessels, and direct the operations of their vessels in the interest
of the Company, and shall be obligated to exercise these respon-
sibilities on behalf of the Company.
MATES: All mates employed by the Company shall have the
authority and responsibility to hire deck department employees
in accordance with the hiring provisions of this agreement, to
evaluate such employees, to fire or otherwise discipline such
employees, to direct and assign the work of such employees in
the interest of the Company, and shall be obligated to exercise
these responsibilities on behalf of the Company.
CHIEF ENGINEERS: All chief engineers employed by the
Company shall have the authority and responsibility to hire en-
gine room employees in accordance with the hiring provisions
of this agreement, to evaluate such employees, to fire or other-
wise discipline such employees, to direct and assign the work
of such employees in the interest of the Company, and shall be
obligated to exercise these responsibilities on behalf of the Com-
pany.
5 The Respondent eliminated hiring authority as to captains and
mates.
6 The compensation for captains was approximately $4 to $5 an
hour more than for the next highest paid employee.
tuted a new ‘‘systematic plan’’ under the supervision
of the captain ‘‘for the complete maintenance and care
for all the deck areas’’ of the vessel. Captains were to
inspect the deck area weekly and submit monthly eval-
uations of all crewmembers to the Port Jefferson of-
fice. These evaluations were to become part of each
employee’s personnel record. The directive noted that
‘‘crew members who will not or are not doing their
share of the work will be subject to disciplinary ac-
tion’’ and that ‘‘[a]nyone in this crew who does not
intend to follow the Captains [sic] orders and do his
share of the work on board this vessel [sic] should
look for employment elsewhere.’’
The captains thereafter ignored the Respondent’s di-
rectives and the Respondent imposed no discipline on
them.
On June 24, 1988, the Respondent filed a unit clari-
fication petition in which it sought to exclude from the
bargaining unit captains, mates, and chief engineers on
the grounds that they were statutory supervisors. On
September 29, 1989, the Regional Director dismissed
the petition. On May 2, 1990, the Board denied the
Respondent’s request for review.2
On February 28, 1990, the parties commenced nego-
tiating for a new contract.3 At that time, the Respond-
ent resubmitted the job description proposal which the
Union had rejected during negotiations for the 9-month
contract which was about to expire. This proposal con-
ferred supervisory authority on captains, mates, and
chief engineers.4 The Respondent also made proposals
on insurance and pensions, holidays, overtime, grub
money, vessel manning, vessel tieups, and crew
changes, and proposed eliminating the exclusive hiring
hall provision in the existing contract.
The parties immediately disagreed on the job de-
scription proposal. The Union stated that it would not
negotiate an issue disposed of in the Board unit-clari-
fication proceeding. The Respondent stated that it
would not sign an agreement without the proposal. At
the fourth meeting, the Respondent eliminated chief
engineers from the proposal. The Respondent contin-
ued, however, to demand that the Union accept the
proposal as to captains and mates,5 stating that the pro-
posal and a 1-year contract duration were essential to
the Respondent’s willingness to sign a contract. The
Union countered with a request for a written stipula-
tion that the Respondent would not file another unit-
clarification petition if the Union accepted the pro-
posal. The Respondent rejected this request.
On May 8, 1990, the Respondent notified the Union
that it was implementing the proposed job duties for
captains at that time and would expect to do so for
mates in the future. The parties stipulated that neither
of them changed position on the job-description pro-
posal after April 25, 1990, the penultimate negotiating
session.
On May 9, 1990, the Respondent sent the following
memo to all captains:
We wish to restate and confirm what the Com-
pany expects of you as the master of its vessels.
As a general proposition, we expect all of our
captains to exercise all of the authority and re-
sponsibility conferred upon them by maritime law
and custom. This, of course, is a weighty respon-
sibility. As supreme commander of the vessel,
you are responsible for directing the operation of
the vessel as a whole. In order for you to be able
to carry out this responsibility, you have the au-
thority and responsibility to evaluate the qualifica-
tions and work of the members of your crew, to
discipline or discharge crew members, and direct
and assign all work performed on your vessel.
We firmly believe that the safe and efficient oper-
ation of the vessels depends upon your fulfillment
of these responsibilities, and we are counting on
you to perform them.
The Respondent also implemented the 4-percent
across-the-board increase in wages that it had pre-
viously proposed. There was no additional compensa-
tion for captains.6
Up to the time of the hearing, which commenced on
March 19, 1991, the captains had declined to perform
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The parties engaged in two additional bargaining sessions on
February 7 and March 5, 1991. However, these meetings produced
no agreement on the issues separating the parties, including the issue
of the captains’ supervisory responsibilities.
8 These proposals were not considered by the Board in the unit
clarification proceeding, Case 29–UC–355.
9 St. Louis Telephone Employees Credit Union, 273 NLRB 625,
626 (1984).
their new duties and the Respondent had taken no dis-
ciplinary measures against them. The Respondent did
not implement its job proposal as to mates. The Re-
spondent testified that it took no action against the
captains because the present litigation was pending.
The Respondent also testified that it wanted the cap-
tains ‘‘to do these duties . . . to ensure that the vessels
were run properly’’ and to obviate the ‘‘problem . . .
[that] nobody considered themselves in charge.’’7
As indicated above, the judge found that the Re-
spondent had violated Section 8(a)(5), (3), and (1) of
the Act by bargaining with the Union to impasse over
assigning supervisory duties to captains, thereby alter-
ing the scope of the bargaining unit, and that the Re-
spondent did this for discriminatory reasons. The judge
further found that the Respondent’s creation of the su-
pervisory positions was a sham. He noted that the
Board’s unit clarification proceeding found that the
captains were not supervisors. The judge held that the
ratio of supervisors to employees either with captains,
mates, and engineers as supervisors, or with captains
and mates as supervisors, was ‘‘preposterous.’’ The
judge also noted that these newly proposed supervisors
were not afforded salaried status with increased com-
pensation for their additional responsibilities but were
hourly rated with the same time-and-a-half for over-
time and across-the-board 4-percent wage increase as
other unit employees.
The judge therefore found that the Respondent had
insisted to impasse on removing job classifications
from the bargaining unit and that this action con-
stituted an insistence on a change in unit scope that
violated Section 8(a)(5) of the Act. While acknowledg-
ing that there was ‘‘no independent evidence of animus
in the case,’’ the judge also found that the Respond-
ent’s conduct was discriminatory in violation of Sec-
tion 8(a)(3). He reasoned that the Respondent was at-
tempting to deprive bargaining unit employees of Sec-
tion 7 rights on the basis of what, as noted above, he
had concluded was a sham proposal to turn them into
supervisors. In his 8(a)(3) analysis, he listed these ad-
ditional factors as support for his ‘‘sham proposal’’
finding: the length of time this bargaining unit had ex-
isted, the lack of any objective justification for making
the change, and the captains’ sanction-free defiance of
the Respondent’s May 9 directive. In finding no objec-
tive justification, the judge noted the absence of such
circumstances as ‘‘rapid expansion of the Company,
the imposition of new and more burdensome regula-
tions,’’ or some kind of natural ‘‘disaster.’’ He mini-
mized the Respondent’s expressed concern over pas-
senger complaints about lack of cleanliness on the
ships and surliness of employees by observing that the
Respondent had evidently felt no compulsion to take
any action on such complaints in the past.
The Respondent excepted to these findings and con-
clusions of the judge. We find merit in these excep-
tions.
We do not agree with the judge that the Respond-
ent’s conferring supervisory responsibilities on the cap-
tains of the Grand Republic and Park City violated
Section 8(a)(5) and (3) of the Act. The Respondent’s
conduct did not violate Section 8(a)(5) and (1) be-
cause, contrary to the conclusions of the judge and our
dissenting colleague, we find that the Respondent’s ef-
forts were 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.
Repeatedly, from April 14 and 18, 1988, onwards,
the Respondent sought to achieve its goal of on-vessel
supervision and responsibility. The Respondent’s April
1988 directives make clear the Respondent’s concern
about vessel maintenance, machinery malfunctions,
supply sufficiency, general cleanliness, and employee
behavior. These directives placed captains in charge of
a system establishing responsibility and authority for
maintenance and crew discipline. In addition, in the
bargaining for the 9-month contract and in the bargain-
ing for a successor to that contract, the Respondent
made new proposals designed to vest the captains with
unmistakable supervisory authority.8 Thereafter, the
Respondent reaffirmed its wish that captains exercise
on-site supervisory responsibilities on the Grand Re-
public and Park City in its May 9, 1990 memo. As
Hall, the Respondent’s vice president and general man-
ager, testified, the Respondent wanted the captains ‘‘to
do these duties . . . to ensure that the vessels were run
properly’’ and to obviate the ‘‘problem . . . [that] no-
body considered themselves in charge.’’
We find no sham. The Respondent’s directives,
memos, job description proposal, and statements, clear-
ly signaled that the duties of the captains who were
promoted to supervisors had changed. The Respondent
did not merely retitle bargaining unit employees who,
despite the classification change, would merely have
continued to perform solely bargaining unit work. In-
stead, the Respondent required the captains to perform
supervisory tasks and imbued them with the authority
of statutory supervisors and managers—powers and re-
sponsibilities that they had not clearly exercised in the
past.9
Further, the Respondent’s conduct reflects legitimate
managerial concern. The evidence is replete with the
545BRIDGEPORT & PORT JEFFERSON STEAMBOAT CO.
10 Hydro Conduit Corp., 254 NLRB 433, 441 (1981); Super Tire
Stores, 236 NLRB 877 fn. 1 (1978).
11 270 NLRB 949, 959–960 (1984).
12 The employer was found to have violated Sec. 8(a)(5) and (1)
of the Act not because of any bad faith in the creation of the super-
visory position but only because it had taken the action unilaterally.
Id. at 960. As explained below, the assignment of supervisory duties
to bargaining unit employees is a mandatory subject of bargaining
whenever the newly created supervisors continue to perform their
former duties as well and the amount of work still within the bar-
gaining unit is thereby reduced.
13 264 NLRB 525 (1982).
14 The Board accordingly found that the employer violated Sec.
8(a)(5) and (1) only because the decision to give bargaining unit
members supervisory duties in addition to their former unit work
was a mandatory subject of bargaining, and the employer had acted
unilaterally. Id. at 525 fn. 2.
15 St. Louis Telephone Employees Credit Union, supra at 627–628.
16 Tesoro Petroleum Corp., 192 NLRB 354, 359 (1971).
17 We note that the judge also found that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by conditioning the acceptance of
a contract on the Union’s agreement to a wage proposal for super-
visors. The judge did not include this matter in his Conclusions of
Law or his recommended Order. However, the Respondent excepted.
This violation is subsumed in our dismissal of the 8(a)(5) complaint.
We find the Respondent lawfully bargained to impasse on the issue
of supervisory promotions which occasioned the loss of bargaining
unit work. Thus the Respondent, in enacting its across-the-board 4-
percent wage increase, was merely lawfully implementing its last
contract offer prior to impasse.
18 Lutheran Home of Kendallville, Indiana, supra at 527–528.
19 Kendall College, 228 NLRB 1083, 1088–1089 (1977), enfd. 570
F.2d 216 (7th Cir. 1978).
Respondent’s apprehension that only constant super-
vision on the vessels could guarantee the maintenance
and orderliness it desired. The general rule is that em-
ployers are entitled to make their own nondiscrim-
inatory decisions as to how best to supervise their op-
erations. As triers of fact we may not simply substitute
our own subjective judgment of what we would have
done were we in the Respondent’s position.10
In situations comparable to that here, we have found
acceptable employers’ reclassification of certain em-
ployees as supervisors because there was a perceived
need for more direct control of the employers’ oper-
ations. For example, in Luther Manor Nursing Home,11
the employer stated that more supervision was needed
on the floor of the home because the existing super-
visors, registered nurses, were busy and could not
complete their other duties as well as their supervisory
duties. The employer therefore assigned supervisory
tasks to licensed practical nurses.12 In Lutheran Home
of Kendallville, Indiana,13 the employer showed that
the only two supervisors were rarely present at the fa-
cility at night or during the weekends. The employer
offered licensed practical nurses a new supervisor-nurs-
ing position in the belief that first-line supervision
‘‘was the key to a good or poor operation.’’14
Similarly, we find that the Respondent here sought
onsite supervision on its boats to ensure quality oper-
ations and conferred supervisory duties on its captains
to achieve this goal. We are not persuaded that the Re-
spondent’s conferral of authority on the captains of the
Grand Republic and the Park City was a sham. The
Respondent promoted these employees into true super-
visory positions.
Neither the decision to create new supervisory posi-
tions nor the selection of individuals to fill these posi-
tions is a mandatory subject of bargaining.15 An em-
ployer, however, may have an obligation to bargain
with a union if its action reduces bargaining unit work.
For instance, if an individual promoted to a super-
visory position continues to perform former bargaining
unit work, that loss of work to the bargaining unit may
be a change in the terms and conditions of employ-
ment that could give rise to a bargaining obligation
under Section 8(d) of the Act.16 That is true here. The
Respondent, however, in our judgment bargained the
issue to impasse with the Union in good faith. The Re-
spondent was thereafter free to implement the pro-
posed change without running afoul of the Act. We
therefore find that the Respondent did not violate Sec-
tion 8(a)(5) and (1) of the Act as alleged and we shall
dismiss the complaint in this respect.17
We also find that the Respondent’s conduct did not
violate Section 8(a)(3) and (1) of the Act. The judge
relied heavily on his finding of a sham in making this
determination, and listed several factors in support—
the long-established bargaining unit, the lack of objec-
tive reasons for the change, past neglect of complaints,
and failure to discipline the wayward captains. As we
have set forth previously, we are not persuaded that
the promotions were a sham. The Respondent’s action
removes only one classification from the unit. Ap-
proximately seven other classifications remain in the
unit. The legitimate managerial concerns discussed
above negate the other factors cited by the judge. The
Respondent determined that it needed onsite super-
vision and provided it by making its captains super-
visors. As the judge noted, there is no independent evi-
dence of animus here. Offering supervisory positions
to bargaining unit employees is not ‘‘inherently dis-
criminatory’’ conduct.18 Indeed, we have found noth-
ing inherently discriminatory when an employer, short-
ly after union certification, promoted certain bargaining
unit employees to the supervisory positions in a reor-
ganization aimed at better management.19 Similarly,
we are not persuaded that the Respondent’s continued
assignment of supervisory duties to its captains from
April 1988 onwards was anything other than what it
appears to be on is face: the provision of onsite super-
vision to manage the operation more effectively.
We, of course, accept the proposition that the cap-
tains were not supervisors as of the time of the hearing
in Case 29–UC–355. The directives of April 1988
were deemed to be insufficient to confer supervisory
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The directive regarding employee evaluations was deemed insuf-
ficient in part because no captain complied with the instructions and,
as of the time of the unit clarification proceeding, the Respondent
had taken no further action to put its evaluation system into effect
(G.C. Exh. 2 at 20). This resulted in a disciplinary system in which
captains took no meaningful role.
We note also that, as the Respondent’s witness Vice President and
General Manager Hall testified, the Respondent had not, as of the
time of the hearing in the present case, required the captains to per-
form the supervisory duties prescribed in the 1990 proposals on
which the Respondent went to impasse. As Hall explained, the Re-
spondent did not wish to force the captains to perform those duties
pending the completion of the instant litigation. Because the instant
case challenges the Respondent’s assignment of supervisory respon-
sibilities, we would not fault the Respondent for not immediately en-
forcing this assignment.
21 The decision in Case 29–UC–355 did not consider these subse-
quent efforts.
22 See Sec. 2(11) of the Act.
23 See, e.g., Regency Manor Nursing Home, 275 NLRB 1261
(1985); Venture Packaging, 294 NLRB 544 (1989), enfd. 923 F.2d
855 (6th Cir. 1991).
1 Sec. 2(11) defines as a ‘‘supervisor’’:
any individual having authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, discharge, as-
sign, reward, or discipline other employees, or responsibly to di-
rect them, or to adjust their grievances, or effectively to rec-
ommend such action, if in connection with the foregoing the ex-
ercise of such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.
2 If the proposal was bona fide, as the majority finds it was, then
the Respondent was required to bargain over the reduction in unit
work that would result from the promotion of the captains out of the
unit, a mandatory subject of bargaining. See Lutheran Home, 264
NLRB 525, 525 fn. 3 (1982). If, however, the promotion was a
authority.20 That conclusion, however, is not disposi-
tive of the issue of whether the Respondent’s subse-
quent efforts were also insufficient to invest the cap-
tains with supervisory authority.21 Nor is the unit clari-
fication decision dispositive of the issue of whether
these subsequent efforts were unlawfully motivated. As
to that issue, we note that our dissenting colleague
concedes that the initial efforts in April 1988 were
lawfully motivated. We fail to see why the subsequent
efforts to achieve the same goal should be deemed un-
lawfully motivated simply because they were success-
ful and the earlier efforts were not. The Respondent at
all times was seeking to achieve the lawful goal of en-
suring that the captains would be an arm of manage-
ment and would use their supervisory authority to
carry out entrepreneurial goals ‘‘in the interests of the
employer.’’22 After the initial efforts of April 1988
failed, the Respondent gave the captains greater and
more specific authority. We see no basis for inferring
that these additional steps to achieve the same lawful
goal were discriminatorily motivated.
In addition, our dissenting colleague makes much of
the fact that, at one time, the Respondent sought to
confer supervisory authority not only on the captains
but also on the chief engineers and mates. Suffice it
to say in response that the General Counsel does not
attack those efforts to confer supervisory authority on
the latter two classifications.
The Respondent’s actions here are not analogous to
those cases where wholesale promotion of bargaining
unit employees to supervisory positions is part of a
pervasive pattern of misconduct clearly evincing an
employer’s animus and attempt to destroy a bargaining
unit.23
We recognize that the captains have never actually
performed their supervisory duties, and thus the Re-
gional Director, affirmed by the Board, found that they
were not in fact supervisors. However, there is an ex-
planation for the fact that captains have not performed
their supervisory duties. The Respondent has said that,
pending the completion of the instant litigation, it will
not force the captains to perform their supervisory re-
sponsibilities. Because the instant case challenges the
Respondent’s assignment of supervisory responsibil-
ities, we would not fault the Respondent for not imme-
diately enforcing this assignment. Accordingly, we do
not believe that the General Counsel has established
that the assignment of responsibilities was a sham.
Accordingly, we find no merit to the 8(a)(3) and (1)
allegation and we shall also dismiss the complaint in
this respect.
ORDER
The complaint is dismissed.
MEMBER DEVANEY, dissenting.
I do not agree with my colleagues that the Respond-
ent here ‘‘sought on-site supervision on its boats to en-
sure quality operations and conferred supervisory du-
ties on its captains to achieve this goal.’’ (Emphasis
added.) I would adopt the judge’s finding that the Re-
spondent’s goal in proposing to assign Section 2(11)
duties1 to the captains was to exclude them from the
bargaining unit and thus win at the bargaining table
what it lost before the Board in its unit clarification
petition. Consequently, I would adopt the judge’s fur-
ther finding that the Respondent violated Section
8(a)(5) of the Act by insisting to impasse on its bar-
gaining position whose purpose was the alteration of
the scope of the unit, a nonmandatory subject of bar-
gaining.
Although I agree with my colleagues that ‘‘the gen-
eral rule is that employers are entitled to make their
own nondiscriminantory [sic] decisions as to how best
to supervise their operations,’’ that is not the issue be-
fore us. Rather, the issue is whether the Respondent’s
bargainaing proposal to assign supervisory duties to its
captains was bona fide or sham. The resolution of this
issue determines whether the proposal was a manda-
tory or permissive subject of bargaining and whether
the Respondent violated Section 8(a)(5) by bargaining
to impasse over the proposal.2
547BRIDGEPORT & PORT JEFFERSON STEAMBOAT CO.
sham, as the judge found and as I would find, then the Respondent
sought, under the guise of making the captains supervisors, to alter
the scope of the unit, a permissive subject of bargaining. A party
that bargains to impasse over the scope of the bargaining unit com-
mits an unfair labor practice by taking a permissive subject of bar-
gaining to impasse. See, e.g., Facet Enterprises v. NLRB, 907 F.2d
963, 975–976 (10th Cir. 1990).
3 In order to accomplish its goal, the Respondent assigned specific
duties to the captains that required increased ‘‘supervision’’ of the
crews in the performance of maintenance and related duties. Thus,
under the ‘‘Operational Regulations’’ issued to the captains of the
Park City on April 14, 1988, the Respondent augmented the duties
of the captains to include, inter alia, responsibility for the operation,
maintenance, and safety of the vessel and accountability for its con-
dition and performance. The captains were also required to fill out
monthly evaluation reports on the crews and were expected to exer-
cise tighter control over supplies and machinery malfunctions. Simi-
larly, on April 18, 1988, the Respondent issued a directive to the
crew of the Grand Republic that instituted a new ‘‘systematic plan’’
for the complete maintenance and care of the deck areas. The cap-
tains were to oversee this plan by inspecting the deck area weekly
and by submitting monthly evaluations of all crewmembers to the
Port Jefferson office.
4 In its petition and at the bargaining table, the Respondent also
sought to exclude mates and chief engineers from the unit as statu-
tory supervisors. Because the Respondent’s April 1988 directives did
not assign new responsibilities to employees in these classifications,
it is difficult to fathom why the Respondent’s avowed purpose of
improved vessel operation and maintenance would now require the
assignment of supervisory duties to them. Indeed, the Respondent’s
bargaining position reveals that it was not required, for when the at-
tempt to exclude the three classifications did not succeed, the Re-
spondent first dropped the classification of chief engineer from the
proposal, then that of mate (although the Respondent vowed to again
propose the exclusion of the mates once it won the exclusion of the
captains). The majority would confine the discussion here to the cap-
tains alone because the Respondent’s original proposal reveals its ul-
timate goal, the exclusion of three classifications from the unit by
nominally assigning supervisory duties to nearly half the bargaining
unit. In these circumstances, I agree with the judge that the proposed
ratio of supervisors to unit employees would be ‘‘preposterous’’ and
that it is further evidence that the Respondent’s proposal was a
sham.
Finally, because the Respondent dropped its efforts to exclude
chief engineers and mates from the bargaining unit, the lawfulness
of the Respondent’s proposal as it applies to those two classifica-
tions is not at issue here. In these circumstances, there is no reason
why the General Counsel should ‘‘attack’’ the Respondent’s efforts
in this regard.
5 The majority errs when it asserts that the Regional Director
found that the captains were not supervisors because they ‘‘never ac-
tually performed their supervisory duties.’’ In fact, the Regional Di-
rector, affirmed by the Board, found that the captains, mates, and
chief engineers were not supervisors because they did not possess
‘‘authority to exercise substantial independent judgment in carrying
out those actions enumerated as supervisory indicia in Sec. 2(11) of
the Act.’’ In reaching this conclusion, the Regional Director care-
fully considered the evidence presented, including the captains’ ad-
ditional duties set out in the April 1988 directives. In finding that
the captains did not exercise independent judgment, the Regional Di-
rector emphasized several factors, including, inter alia, the close con-
tact between the shipboard crew and the Port Jefferson office, the
‘‘strong and active supervision’’ exercised by the Respondent’s offi-
cials at the Port Jefferson office, the Respondent’s ‘‘tight control’’
of operations and discipline, and the routine nature of the captains’
limited assignment and direction of employees. Because the Re-
spondent’s operations have not changed, these factors continue to
evidence the the captains’ lack of authority to exercise independent
judgment on behalf of the Respondent. Finally, the Regional Direc-
tor also observed that if the Respondent’s position were accepted, it
would result in an ‘‘unrealistic’’ ratio of supervisors to employees
because at the time of the hearing there were approximately 27 indi-
viduals in the bargaining unit and the Respondent proposed to assign
supervisory duties to 10 of them, even while it was carrying on an
effort to reduce the size of the crews. In these circumstances, I agree
with the Regional Director’s characterization of the proposed ratio
as ‘‘unrealistic’’ and, as noted above, with the judge’s characteriza-
tion of it as ‘‘preposterous.’’
6 The Regional Director issued his decision on September 29,
1989. The Respondent first proposed to assign supervisory duties to
the captains, mates, and chief engineers during bargaining for the 9-
month contract that ran from June 15, 1989, to April 3, 1990. The
Respondent did not, however, insist on its proposal at that time. It
was only during the negotiations for the following contract, after the
petition had been dismissed, that the Respondent introduced its pro-
posal and implemented it after bargaining to impasse.
The starting point of my analysis of whether the Re-
spondent’s proposal to assign supervisory duties to its
captains was bona fide or sham is the Respondent’s as-
signment of new duties to the captains and crews of
its two vessels (the Park City and Grand Republic) in
April 1988. Like my colleagues, I would find that the
Respondent’s assignment of new duties to the captains
in April 1988 was bona fide and that the Respondent’s
purpose in making these new assignments was to im-
prove the maintenance and operation of the Park City
and Grand Republic.3
After it promulgated its April 1988 directives, the
Respondent filed its unit clarification petition in which
it sought to exclude the captains from the unit on the
ground that they were statutory supervisors.4 In assert-
ing that the captains were statutory supervisors, the
Respondent relied primarily on the assignment of ‘‘su-
pervisory’’ duties set out in the April 1988 directives.
After considering all the evidence,5 the Regional Di-
rector found that the captains (as well as mates and
chief engineers) were not supervisors because they did
not possess or exercise authority to perform any of the
duties set out in Section 2(11) of the Act. Con-
sequently, he dismissed the petition. The Board af-
firmed. Thus, while the Respondent ‘‘sought onsite su-
pervision on its boats to ensure quality operations,’’
this ‘‘supervision,’’ as defined in the April 1988 direc-
tives and considered by the Regional Director and the
Board, was not sufficient to confer 2(11) supervisory
status on the captains and thus warrant their exclusion
from the bargaining unit.
Even while the unit clarification petition was pend-
ing before the Board, however, the Respondent pro-
posed at the bargaining table to assign to the captains,
mates, and chief engineers the very duties defined in
Section 2(11) of the Act whose omission from the peti-
tion resulted in its dismissal.6 The majority posits that
the Respondent merely ‘‘reintroduced at bargaining the
[April 1988] job description proposal which conferred
statutory supervisory status on the captains.’’ (Empha-
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The majority’s reliance on Luther Manor Nursing Home, 270
NLRB 949 (1984), and Lutheran Home, 264 NLRB 525 (1982), is
misplaced because, contrary to the majority’s assertion, the situations
in those cases are not ‘‘comparable to that here.’’ In Luther Manor
Nursing Home, supra, the Board found that the respondent’s pro-
motion of licensed practical nurses (LPNs) to supervisors was bona
fide where the respondent demonstrated that more supervisors were
needed, the LPNs had previously performed supervisory duties that
would now be included in their job descriptions, and the LPNs re-
ceived a 90-cent-per-hour wage increase to cover the added respon-
sibilities. Id. at 959–960. In Lutheran Home, supra, the Board found
the promotion of LPNs to supervisory positions was bona fide where
the respondent demonstrated a need for increased supervision, the
promoted LPNs would receive a 30-cent-per-hour wage increase, the
LPNs were offered the promotions but not required to take them,
and the promotions resulted in only 4 LPNs leaving a bargaining
unit of 57 employees. Id. at 525–528. In the present case, by con-
trast, the Respondent has failed to demonstrate a need that requires
the promotion of the captains out of the bargaining unit; the captains
have not previously performed supervisory duties; the captains will
receive no increase in wages to compensate them for their additional
duties; and the Respondent’s original proposal would result in 10
employees leaving a bargaining unit of 27 employees.
8 I find it unnecessary to address the judge’s finding that the Re-
spondent violated Sec. 8(a)(5) by bargaining to impasse over the
wages of supervisors, a permissive subject of bargaining. The judge
did not specifically include this issue in his Conclusions of Law and
recommended Order and the resolution of the issue presented does
not require its discussion.
1 The principal docket entries in this case are as follows:
Charge filed by Local 333, United Marine Division, International
Longshoremen’s Association, AFL–CIO (Union) against the Re-
spondent on June 15, 1990, and amended on July 31, 1990, and
again on August 21, 1990; complaint issued by the Regional Direc-
tor for Region 29 against the Respondent on October 12, 1990, Re-
spondent’s answer filed on October 26, 1990; hearing held in Brook-
lyn, New York, on March 19–21, 1991; briefs filed with the me by
the General Counsel and the Respondent on or before June 5, 1991.
2 Respondent admits, and I find, that it is a Connecticut corpora-
tion which maintains its principal office and place of business at
Port Jefferson, New York, where it is engaged, inter alia, in the
transportation by ferry boat of passengers, vehicles, and freight be-
tween Port Jefferson, New York, and Bridgeport, Connecticut. In the
course and conduct of this business, the Respondent performs trans-
portation services valued in excess of $50,000 outside the State of
New York as a link in interstate commerce. Accordingly, the Re-
spondent is an employer engaged in commerce within the meaning
of Sec. 2(2), (6), and (7) of the Act. The Union is a labor organiza-
tion within the meaning of Sec. 2(5) of the Act.
3 Certain errors in the transcript are noted and corrected.
sis added.) The majority’s assumption—that the Re-
spondent’s proposal to assign specific 2(11) duties to
the captains, mates, and chief engineers was merely a
continuation at the bargaining table of its bona fide ef-
forts to improve vessel maintenance and operation as
embodied in the April 1988 directives—is inconsistent
with the Regional Director’s finding that the captains
were not statutory supervisors.
I would find, as did the judge, that the Respondent’s
proposal was not a continuation of bona fide efforts to
improve operations, but a continuation of its effort to
exclude the captains, mates, and chief engineers from
the bargaining unit. Losing before the Board, the Re-
spondent pursued it strategy at the bargaining table by
salting the captain’s, mate’s, and chief engineer’s job
descriptions with specific 2(11) duties, duties it had
not included in either its April 1988 directives or in its
unit clarification petition. For these reasons, I would
find that the Respondent’s proposal was a sham and
that the Respondent Section violated 8(a)(5) by bar-
gaining to impasse over the alteration of the scope of
the unit, a permissive subject of bargaining.7
I also agree with the judge that the Respondent’s
conduct in offering its sham proposal was unlawfully
motivated because its purpose was to reduce and weak-
en the bargaining unit, not to improve operations.
Thus, I would find that it was discriminatory and
therefore violated Section 8(a)(3). I believe that the
judge’s analysis of this issue, including, inter alia, the
long-established bargaining unit that included the cap-
tains, mates, and chief engineers, and the lack of ob-
jective consideration that would now warrant their re-
moval from the unit, requires such a finding. I would
find that the Respondent violated the Act as alleged
and would affirm the judge’s decision.8
Elias Feuer, Esq., for the General Counsel.
Kenneth A. Margolis, Esq., of New York, New York, for the
Respondent.
Albert M. Cornette, of Staten Island, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me on an unfair labor prac-
tice complaint,1 issued by the Regional Director for Region
29, which alleges that Respondent Bridgeport and Port Jef-
ferson Steamboat Company2 violated Section 8(a)(1), (3),
and (5) of the Act. More particularly, the complaint alleges
that the Respondent bargained with the Union to impasse
over a nonmandatory subject of bargaining, namely the as-
signment of supervisory duties to nonsupervisory employees,
ferry boat captains, so that they would be excluded from an
existing collective-bargaining unit, and that it did so for dis-
criminatory reasons which violate Section 8(a)(3) of the Act.
The Respondent admits that it bargained to impasse over the
disputed subject but denies its proposal to assign supervisory
functions to ferry boat captains was a mandatory subject of
bargaining. It insists that its proposal in this regard was
prompted solely by business considerations. The issues here
were joined on these contentions.3
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
For many years the Respondent corporation has operated
a ferry boat or boats which cross Long Island Sound from
Port Jefferson, on the New York side to Bridgeport on the
Connecticut side. Its boats, the Grand Republic and the Park
City, carry automobiles and passengers who want to make a
549BRIDGEPORT & PORT JEFFERSON STEAMBOAT CO.
4 In its brief, the Respondent insisted that it never proposed during
negotiations that either captains or any other designations of com-
pany personnel be taken out of the bargaining unit and placed in
some other unit. It further contended that it was quite amenable to
negotiating with the Union concerning the wages, hours, and terms
and conditions of persons who would, under its other proposals, be-
come statutory supervisors. While true, the contention is also irrele-
vant, since, after becoming statutory supervisors, a class of persons
who were formerly employees can no longer be part of a bargaining
unit over which the Act has any jurisdiction or over which the Board
can take any cognizance. Any bargaining unit subject to the Act can
only be composed of persons who lack indicia of supervisory author-
ity. Any undertaking on the part of an employer or a union to nego-
tiate a contract on behalf of others is wholly voluntary and outside
the purview of collective bargaining, as that term is defined in the
Act.
5 Negotiating sessions took place on February 28, March 13, 20,
and 28; April 2, 9, 17, 19, and 25; and May 3. All meetings, except
the April 19 meeting with the Federal mediator, took place at a
building on Battery Place in lower Manhattan which houses both the
Continued
shortcut from one city to the other, thereby avoiding a 4-hour
automobile trip into and out of New York City. A one-way
trip across Long Island Sound takes slightly more than an
hour. The balance of the crew’s time during each trip is
spent in loading and unloading cars and cargo. Each boat
carries about 1000 passengers and about 100 cars.
The boat service operates each day throughout the year al-
though with much greater frequency in the summer and on
weekends. Until 1986, the Respondent operated only the
Grand Republic. It acquired the Park City in that year. Some
of the time during the winter months one of the two boats
is idle. In addition to the ferry service, the Respondent also
operates charter cruises and moonlight cruises during the
summer months. In the summer months, crews regularly
work a great deal of overtime but in winter only the senior
members of each crew work a full week. Each crew is nor-
mally composed of six or seven members, although addi-
tional personnel are required if there are more than 500 pas-
sengers aboard or if a boat is operating after 10 p.m. Crews
usually work an 8-hour shift each day. Depending on the
season and the day of the week, the first boat leaves the
dock at 6 a.m. Boats operate at least till 9 p.m. and as late
as 11 p.m. In addition to boat crews, the Respondent also
employs dockhands at each port.
Respondent is owned by another shipping company known
as McAllister Brothers, which had long maintained an inter-
est in the Company. It acquired total ownership in 1982. Re-
spondent maintains its office near the dock at Port Jefferson
and operates under day-to-day supervision of Vice President
and General Manager Frederick Hall. His immediate subordi-
nates are Operations Manager or Port Captain John Alban
and Port Engineer Mario Dezalic. Respondent has had a se-
ries of contracts with the Union, normally of 3-year duration,
for nearly 30 years. Until recently, one of the standard provi-
sions of these contracts was an exclusive hiring hall provi-
sion.
On June 24, 1988, the Respondent filed a unit clarification
petition in the Regional Office in Brooklyn in which it
sought to exclude from the bargaining unit captains, mates,
and chief engineers employed on its two vessels. It claimed
that they were statutory supervisors. Following 20 days of
hearings which concluded on November 18, 1988, the Re-
gional Director issued an exhaustive and detailed decision in
which he dismissed the petition. (Case 29–UC–355, dated
September 29, 1989.) His decision was affirmed by the
Board on appeal in a decision dated May 2, 1990. While the
Respondent was attempting to exclude captains, mates, and
chief engineers from the bargaining unit through the proc-
esses of the Board, it was taking unilateral action and also
making collective-bargaining proposals which would have
the same effect.4
The contract between the parties to this proceeding that
was signed in 1985 expired on June 15, 1988, whereupon a
new contract of 1 year’s duration was concluded. At the ex-
piration of this contract on June 15, 1989, a new 9-month
contract was concluded that expired on April 3, 1990. There
has been no contract between the parties since that date. All
the events transpiring in this case took place against this
background.
Shortly after Alban became operations manager in March
1988 and before the filing of the UC petition, Alban issued
several memoranda to captains and crewmembers outlining
the duties that he expected captains to perform. In a message
sent to the crew of the Grand Republic on April 18, 1988,
he stated that he was instituting a new program for the main-
tenance and care of the ferries which he said would be fol-
lowed and executed by the captain of each crew. The pro-
gram was to include a systematic plan for the maintenance
and care of all deck areas. It required a weekly inspection
of the deck area and contained threats to crewmembers who
were not doing their share of the work with unspecified dis-
ciplinary action. Captains would be required to submit to the
office each month a crew evaluation form commenting on
the behavior and performance of each crewmember. These
reports would be kept in each employee’s personnel record.
Crewmembers were informed that any one who did not in-
tend to follow the captain’s orders and do his share of work
on board the vessel ‘‘should look for employment else-
where.’’
A detailed memo was prepared and circulated on April 14,
1988. It stated that the captain of each vessel would be
charged with the overall responsibility for the operation,
maintenance, and safety of his vessel and would be held ac-
countable for its performance and condition. Senior captains
were called on to formulate a master plan for the general
maintenance of each vessel. Captains were also called on to
issue orders each day to the on deck crew regarding daily
maintenance activities. A set of work rules was established,
which carried with them disciplinary sanctions. One ground
for disciplinary action was ‘‘disregarding or willfully dis-
obeying the captains’s order.’’ Fitness report forms for crew-
members were prepared and given to each captain for sub-
mission to the office at the end of each month.
The response by the captains of the two vessels to these
instructions was to ignore them, which they did without suf-
fering any personal sanctions. No master plans for mainte-
nance were prepared, no personnel evaluation forms were
filled out, and no discipline was administered by captains to
errant crewmembers.
Negotiations commenced for a renewal or extension of the
existing 9-month agreement a few months after the Regional
Director dismissed the UC petition. The first of 10 negotiat-
ing sessions took place on February 28, 1990.5 Albert
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent’s corporate offices and the Union’s health and welfare
trust fund office.
6 At a previous meeting, the Company told the Union that it was
contemplating the addition of a third boat and, for that reason, need-
ed the latitude to tie up at night in Bridgeport as well as at Port
Jefferson. Under previous practice, all tieups and crew changes had
taken place at Port Jefferson. No new vessel has yet been acquired.
Cornette was chief spokesman for the Union and Attorney
Kenneth Margolis was chief spokesman for the Respondent.
At the initial meeting, the Respondent submitted a proposal
entitled ‘‘Employees Subject to Orders of Employer’s Ap-
pointee,’’ which came to be known as the job descriptions
proposal. It had been rejected by the Union at the negotiating
sessions in 1989 which lead to the adoption of the 9-month
agreement that was about to expire. At that time, the Re-
spondent did not press its position. During the 1990 negotia-
tions, Respondent took a harder bargaining stance.
The original job descriptions proposal stated:
CAPTAINS: All captains employed by the Company
shall exercise all of the authority and responsibility
conferred upon them by maritime custom and law, shall
have the authority and responsibility to hire employees
in accordance with the hiring provisions of this agree-
ment, to evaluate employees, to fire or otherwise dis-
cipline employees, to direct and assign all work on their
vessels, and direct the operations of their vessels in the
interest of the Company, and shall be obligated to exer-
cise these responsibilities on behalf of the Company.
MATES: All mates employed by the Company shall
have the authority and responsibility to hire deck de-
partment employees in accordance with the hiring pro-
visions of this agreement, to evaluate such employees,
to fire or otherwise discipline such employees, to direct
and assign the work of such employees in the interest
of the Company, and shall be obligated to exercise
these responsibilities on behalf of the Company.
CHIEF ENGINEERS: All chief engineers employed
by the Company shall have the authority and respon-
sibility to hire engine room employees in accordance
with the hiring provisions of this agreement, to evaluate
such employees, to fire or otherwise discipline such
employees, to direct and assign the work of such em-
ployees in the interest of the Company, and shall be ob-
ligated to exercise these responsibilities on behalf of the
Company.
The Respondent admits that if these proposals had been
accepted the three classes of employees involved would have
become statutory supervisors. In addition to this proposals
the Respondent also made a number of other proposals, relat-
ing to such subjects as insurance and pensions, holidays,
overtime, grub money, vessel manning, and a revision of the
existing contractual limitations on vessel tieups and crew
changes. A new proposal advanced by the Respondent at this
time was the elimination of the exclusive hiring hall provi-
sion in the existing contract.
The parties were at loggerheads over the subject of job de-
scriptions from the very outset of negotiations. Cornette told
Margolis that the Union was not going to negotiate some-
thing which had already been decided in the unit clarification
proceeding, namely job descriptions. Margolis replied that he
was not going to sign an agreement which did not contain
the Company’s job descriptions proposal. The subject came
up again at every session. At the March 28 meeting the
Company withdrew its proposal relating to the new job de-
scription for chief engineers, but continued to insist on its
proposal relating to captains and mates. At that, time
Margolis told Cornette that if the Union would agree on the
pending job descriptions proposal other contract items would
fall into place, but he insisted that if the Union failed to do
so there would be no contract.6 This statement turned out to
be correct.
On or about April 9, the Respondent further revised its job
descriptions proposal relative to captains and mates by elimi-
nating the portion authorizing them to hire other personnel.
However, it still retained the section permitting these classi-
fications to discharge employees and to exercise the other
functions set forth in the original proposal. Cornette sug-
gested certain general wording to the effect that captains
would operate vessels in accordance with company policy
but he would go no further.
On May 8, 1990, Margolis wrote Cornette the following
letter:
At our meeting of May 3, 1990, I stated that the
Company is unwilling to make further improvements to
its last proposal, which was set forth in my letters of
April 6 and April 20, 1990. The Union once again re-
jected that proposal. At the conclusion of the meeting,
I requested that you contact us in the event there is any
change in the Union’s position. Thus far, we have not
heard from you.
This is to advise you that, in light of our current
deadlock, the Company intends to implement imme-
diately the following portions of its last proposal:
1. Wages. As you know, our proposal included both
a 4% increase in the hourly rates of all current employ-
ees, and daily wage rates which would be applicable
where the Company elects to operate on an hourly
basis. We will be implementing the 4% increase as of
the week of May 14, 1990.
2. Employees Subject to Orders of Employer’s Ap-
pointee. Our proposal on this subject included job de-
scriptions for both captains and mates. We are imple-
menting the proposed job duties for captains now, and
we expect to do so for mates in the future.
Margolis offered a 2-year contract at this point in ex-
change for agreement to the remaining job descriptions lan-
guage, but Cornette refused. I credit Cornette’s testimony
that when the question came up again at the April 17 nego-
tiations he asked Margolis if he would provide the Union a
written statement to the effect that and if the Union agreed
to the new job descriptions language the Company would not
file a new unit clarification case with the Board seeking to
exclude captains and others from the bargaining unit.
Margolis refused. Other requests by Cornette for written as-
surance in this regard met with a similar refusal.
At the April 25 session, Margolis declared that the parties
were at impasse. At the hearing both parties stipulated that,
during negotiations, neither party changed its position on job
descriptions after April 25, both parties modified their posi-
tions on other issues both before and after that date, and the
551BRIDGEPORT & PORT JEFFERSON STEAMBOAT CO.
7 The Company also implemented its proposal eliminating the ex-
clusive hiring hall provision in the earlier contract.
Respondent insisted, as a condition of reaching an overall
agreement, that there be agreement on the Respondent’s pro-
posal relating to job descriptions as it lay on the bargaining
table on that date.
On May 9, Hall sent a memo to all captains, which read:
We wish to restate and confirm what the Company
expects of you as the master of its vessels.
As a general proposition, we expect all of our cap-
tains to exercise all of the authority and responsibility
conferred upon them by maritime law and custom.
This, of course, is a weighty responsibility. As supreme
commander of the vessel, you are responsible for di-
recting the operation of the vessel as a whole. In order
for you to be able to carry out this responsibility, you
have the authority and responsibility to evaluate the
qualifications and work of the members of your crew,
to discipline or discharge crew members, and direct and
assign all work performed on your vessel.
We firmly believe that the safe and efficient oper-
ation of the vessels depends upon your fulfillment of
these responsibilities, and we are counting on you to
perform them.
The Respondent implemented the 4-percent across-the-
board increase in wages which it had previously proposed,
but no additional money was given to captains to compensate
them for their new supervisory responsibilities.7 Between the
date of the announcement and the hearing in this case, which
took place in April of the following year, the Company did
not implement its proposal relating to the job descriptions of
mates. On receipt of the above-quoted memo, the Respond-
ent’s captains refused to perform their newly assigned duties.
The Respondent did not take any action against them for
their disobedience, stating at the hearing that it did not wish
to press this matter while the present litigation was pending.
With the above-noted exception, the Union’s membership has
continued to work without a contract under the unilaterally
implemented changes. On February 7 and March 5, 1991, ad-
ditional bargaining sessions took place between the Union
and the Respondent. However, these meetings did not
produce agreement on any of the basic differences between
the parties nor did either party modify the previous positions
taken on any matters at issue in this case.
II. ANALYSIS AND CONCLUSIONS
The General Counsel characterizes the dispute in question
as bargaining to impasse over the question of modifying the
scope of a bargaining unit. Because modifying the scope of
a unit is a nonmandatory subject, it is an unfair labor prac-
tice for an employer to condition agreement on a union’s
willingness to agree to such a change. He cites several cases
in support of this proposition. Bozzutto’s, Inc., 277 NLRB
977 (1985); Salt River Valley Water Users, 204 NLRB 83
(1973). On the other hand, the Respondent characterizes the
dispute here in question as bargaining to impasse over the
subject of assigning supervisory duties to bargaining unit
personnel, a move which takes such personnel from the unit
and thereby impacts unit work. Such subjects are mandatory
subjects of bargaining, on which proposals may be made and
lawfully pressed to impasse because the erosion of bargain-
ing unit work affects wages, hours, and terms and conditions
of employment within the unit. It cites several cases to sup-
port this proposition of law. Tesoro Petroleum Corp., 192
NLRB 354 (1971); Kendall College, 228 NLRB 1083
(1977); Fry Foods, 241 NLRB 76 (1979), enfd. 607 F.2d
267 (6th Cir. 1979). Taking work out of a bargaining unit
and reassigning that work either to supervisors or subcontrac-
tors is a mandatory subject of bargaining because of the ob-
vious impact of such actions on job opportunities within the
unit. Long Island Nursing Home, 297 NLRB 47 (1989). The
results of a case should not turn on how legal issues are
framed; especially where, as here, an element of both propo-
sitions of law is involved in what the Respondent in fact did
during the 1990 negotiations.
A proposal to assign supervisory duties to existing bar-
gaining unit personnel has the intended effect of removing
work from the unit because nonunit personnel, namely the
newly created supervisors, will henceforth perform bargain-
ing unit duties in addition to their supervisory functions. Be-
cause the proposal affects unit work, it is a mandatory sub-
ject. Such a proposal must be distinguished from two closely
related situations which involve the negotiation of non-
mandatory subjects of bargaining. Negotiations over the se-
lection of supervisors, where the result is to remove an indi-
vidual from a unit job slot to a preexisting supervisory job
slot—in short, a promotion—is a nonmandatory subject of
bargaining because an employer is wholly free under the Act
to select its own supervisors. KONO-TV Mission Telecasting
Corp., 163 NLRB 1005 (1967); Wincharger Corp., 172
NLRB 83 (1968). The decision to create new supervisory po-
sitions and to staff them by the promotion of individuals
from the bargaining unit, where the eventual if not imme-
diate effect is to hire other employees to replace the pro-
moted supervisors, is not a mandatory subject of bargaining
because the effect of such action does not impinge on unit
work. Such situations, occurring typically when a company
is undergoing rapid and substantial expansion, leaves bar-
gaining unit work intact while providing a new supervisory
superstructure separate and apart from the expanded unit
itself, St. Louis Telephone Employees Credit Union, 273
NLRB 625 (1984); Wincharger Corp., supra. The decisions
in these cases presume, even if they do not articulate, the
legal proposition set forth above. A supervisor cannot be a
part of a statutory bargaining unit even if the parties agree
that he may remain and further agree to bargain over his
wages, hours, and terms and conditions of employment, be-
cause the only bargaining units over which the Board may
take cognizance are those composed exclusively of employ-
ees as defined in Section 2(3) of the Act. Respondent’s ac-
tion in filing a UC petition implicitly acknowledged this
proposition.
In this case, the Respondent tried long and hard to remove
captains, mates, and chief engineers from a long-existing bar-
gaining unit by the contention that their existing duties in
fact made them supervisors and hence ineligible to be a part
of a statutory unit. The Regional Director and the Board
found to the contrary and directed that they remain a part of
the unit because, in fact, they were not supervisors. These
determinations are not subject to collateral attack in this pro-
ceeding and must perforce provide the starting point for any
rationale advanced to resolve the issues here. Highland Ter-
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In a letter to Cornette, dated April 2, 1990, Margolis referred to
the responsibilities of a ship’s captain as ‘‘awesome.’’
9 There is no merit to the Respondent’s contention that it cannot
be found guilty of such a violation because the precise violation was
not specifically alleged in the complaint. The issue was raised at the
hearing and was fully litigated.
race Convalescent Center, 233 NLRB 87 (1977). It is abun-
dantly clear that what the Respondent was attempting to ac-
complish in negotiations during the spring of 1990 was to
win at the bargaining table what it had lost (or was in the
process of losing) before the Board. In determining the exist-
ence, vel non, of a violation of Section 8(a)(5) of the Act,
it is immaterial if a respondent’s motive in taking a position
during bargaining was prompted solely by business consider-
ations or by some underlying discriminatory intent. Rather,
the question presented is whether it may bargain as it did in
this context for any reason at all.
The Respondent’s initial proposal to assign supervisory
duties to unit personnel involved three employees aboard
each of its two vessels. If accepted, its supervisory hierarchy
in each instance would mean that three individuals would be
exercising supervisory authority over four or five rank-and-
file employees, depending on the ship’s complement on any
given day. The effect would be a 1-to-1 or 1-to-2 ratio of
supervisors to employees. Its revised proposal, eliminating
chief engineers from supervisory responsibility, would result
in a 1-to-2 or 1-to-3 ratio of supervisors to unit employees
on each vessel. Such ratios are preposterous, and a long line
of Board precedent would clearly preclude such a result in
determining supervisory status.
Moreover, nothing in the Respondent’s proposal, as origi-
nally made or as eventually implemented, provided for the
removal of supervisors from the ranks of its hourly rated per-
sonnel by the assignment of annual salaries. While salaried
status, as distinguished from hourly rated status, is not a sine
qua non of supervisory rank, the Respondent’s proposal also
provided that all newly created supervisors would continue to
receive time-and-a-half for overtime just as they did as unit
employees. Receipt of overtime premiums is a further indicia
of rank-and-file status. In the case of the Respondent’s em-
ployees, overtime has been and remains an important part of
every seagoing employee’s compensation package, especially
during the busy summer months. More importantly, the Re-
spondent’s proposal did not provide for any increase in com-
pensation to captains and mates, whether by hourly wages or
by salary, for increased supervisory responsibilities, referred
to by Hall in his May 9 memo as the ‘‘weighty responsibil-
ities’’ of the ‘‘supreme commander’’ of the vessels.8 All that
they received was an across-the-board 4-percent wage in-
crease which every other employee received as well. In
KONO-TV Mission Telecasting Corp., supra, the Board
looked to the award of increased compensation for new su-
pervisory duties in order to determine whether the newly cre-
ated classification was truly a supervisory position or wheth-
er a proposed change amounted merely to the retitling of an
old job. No monetary recognition for new responsibilities can
be found in any of the Respondent’s bargaining proposals.
In light of these objective considerations, the Respondent’s
proposal to transform captains and mates into supervisors
was a sham, quite apart from any considerations of motive.
Taken in the context of the still pending UC case, it came
as part of a two-pronged effort to remove these classifica-
tions from the bargaining unit, one effort being made in a
Board proceeding and the other at the bargaining table. Ac-
cordingly, the General Counsel’s framing of the issue in the
case is the accurate one. The Respondent’s proposal was de-
signed to alter the scope of an existing bargaining unit. The
substance of the proposal—to invest unit employees with
new supervisory functions—was merely a means to this end.
Because Respondent’s proposal was so designed, it was
merely a permissive, not a mandatory, subject of bargaining
on which it was not free to insist to impasse and on which
it was not free to act unilaterally and apart from a proceeding
undertaken pursuant to Section 9 of the Act. On April 25,
the Respondent violated Section 8(a)(1) and (5) of the Act
by conditioning approval of a contract on the Union’s accept-
ance of its proposal on this nonmandatory subject.
The Respondent was also bargaining with the Union over
wages, hours, and terms and conditions of supervisory em-
ployees. The amount it offered for captains and mates was
4-percent increase, the same amount it offered to rank-and-
file employees. At the deadlock on April 25, the Respondent
was, in effect, conditioning the acceptance of a contract on
the Union’s agreement to a wage proposal for supervisors, a
subject which is plainly nonmandatory. By conditioning ac-
ceptance of the contract to the Union’s agreement concerning
a wage increase for supervisors, the Respondent again vio-
lated Section 8(a)(1) and (5) of the Act.9
The complaint also alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by attempting to exclude
unit personnel from the bargaining unit through the device of
transforming them into supervisors. The Respondent is quite
correct in contending that there is no independent evidence
of animus in the record of this case, a factor relied on by
the Board in other cases to strike down, as discriminatory,
bargaining proposals aimed at creating supervisory positions.
However, the absence of animus does not foreclose an in-
quiry into whether the Respondent was guilty of discrimina-
tory bargaining. As found above, the bargaining proposal
which gave rise to this litigation was and remains a sham.
Its predominant purpose was and remains to exclude certain
unit employees, who now enjoy the protections of Sections
7 and 8 of the Act, from continuing to enjoy any of those
statutory protections. As supervisors, they would have no
guaranteed right to strike, no legal right to union representa-
tion, and would be available, in the event of a strike, to oper-
ate the Respondent’s business behind a picket line. From the
Union’s standpoint, the removal of captains and mates from
the unit would mean not only a smaller and less powerful
unit; it would also mean that the Union would no longer be
in a position to require their inclusion under the union-secu-
rity clause or to insist that their dues be checked off. This
wholesale change in status of key unit employees was ad-
vanced for the first time in 1988 after these employees had
been part of the bargaining unit for nearly 30 years. The tim-
ing of this proposed change did not coincide with any dis-
cernible objective event or cause, such as the rapid expansion
of the Company, the imposition of new and burdensome gov-
ernment regulations, or a disaster that brought into focus the
inadequacies of its previous supervisory hierarchy. The only
perceptible event which occurred in conjunction with the fil-
ing of the UC petition and the advancement of these new job
553BRIDGEPORT & PORT JEFFERSON STEAMBOAT CO.
description proposals was the hiring of a new operations
manager.
It is not the province of the Board to pass on the wisdom
of business justifications advanced by the Respondent in sup-
port of its bargaining position or to second-guess its judg-
ment, but the Board has every right to inquire into the bona
fides of its assertion that business judgment and not some-
thing else was what prompted its bargaining posture. In this
case, the Respondent relied on a great deal of florid rhetoric
to the effect that the captain is the supreme commander of
the ship and that lives and property are at stake whenever
he takes the helm, but thus it has always been. The Respond-
ent notes that it received about 50 to 60 letters a year from
its more than 600,000 passengers, complaining about either
the cleanliness of the ships or the surliness of an employee,
but it also admits that it has never investigated any of these
complaints. Here, again, complaints of this kind are nothing
new, but the Respondent now relies on them to explain a
bargaining proposal which has been seriously disruptive of
its relations with a union which has represented its employ-
ees for nearly 3 decades. Once it took unilateral action and
directed captains to assume their new supervisory functions,
its captains flatly refused to do so and the Respondent took
no action to enforce its directive, stating that it preferred to
await the outcome of this case before taking disciplinary ac-
tion aimed at forcing compliance with its proposal. Its year-
long declination to risk any adverse reaction in bringing
about assertedly needed supervisory changes is at least some
indication that these changes were not prompted by quite the
degree of necessity that its rhetoric would suggest. In short,
Respondent’s job descriptions proposal and its memos osten-
sibly putting one of them into effect worked a serious and
adverse consequence to the statutory rights of affected em-
ployees, impinged on the Union’s bargaining status, and
were timed to coincide with no objective events necessitating
their implementation. And when push came to shove, the Re-
spondent backed away from forcing them into effect, not-
withstanding the dire necessity it claimed had warranted
making the proposal in the first place.
The business justification for the proposed issue and its
implementation involved considerations which, if they had
any validity, addressed matters which were no different in
kind or degree from those with which the Company had been
faced for 30 years and which it was content, until 1988, to
handle by employing captains, mates, and chief engineers as
rank-and-file union members. In light of these circumstances,
I conclude that the Respondent’s asserted reasons for making
and implementing its job descriptions proposal were not its
real reasons and that its real reason was the revision of the
bargaining unit, the paramount result of which was to strip
several employees of their rights under the Act. Accordingly,
I conclude that by advancing and implementing the proposals
in question, the Respondent here violated Section 8(a)(1) and
(3) of the Act. Because these issues came to deadlock on
April 25 in the context of unfair labor practices, the Re-
spondent was not privileged to implement them unilaterally,
as it did, even if they might be deemed mandatory subjects
of bargaining. Nu-Southern Dye & Finishing Co., 179 NLRB
573 (1969); Cypress Lawn Cemetery Assn., 300 NLRB 609
(1990).
On these findings of fact and on the entire record, consid-
ered as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent Bridgeport and Port Jefferson Steamboat
Company is now and at all times material has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 333, United Marine Division, International Long-
shoremen’s Association, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. All licensed and unlicensed employees, including cap-
tains, pilots, mates, engineers, oilers, able-bodied seamen,
and ordinary seamen, employed by the Respondent on its
vessels operating between Bridgeport, Connecticut, and Port
Jefferson, New York, and on charter and excursion trips op-
erating from those ports, excluding all other employees, of-
fice clerical employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit appro-
priate for collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material, the Union has been and is the ex-
clusive collective-bargaining representative of all employees
in the unit found appropriate in Conclusion of Law 3 for the
purpose of collective bargaining, within the meaning of Sec-
tion 9(a) of the Act.
5. By insisting to impasse on nonmandatory subjects of
bargaining and by unilaterally implementing proposals in
derogation of the integrity of the existing collective-bargain-
ing unit, the Respondent has violated Section 8(a)(5) of the
Act.
6. By the acts and conduct set forth above in Conclusion
of Law 5, undertaken for the purpose of excluding employ-
ees from the bargaining unit and removing from them the
protections of the Act, the Respondent has violated Section
8(a)(3) of the Act.
7. The aforesaid unfair labor practices constitute a viola-
tion of Section 8(a)(1) of the Act and have a close, intimate,
and adverse effect on the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend to the Board that it
be required to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes and
policies of the Act. I will recommend that the Respondent
be required to withdraw its job descriptions proposal from
negotiations and that it rescind any orders or instructions it
has issued implementing those descriptions. I will also rec-
ommend that the Respondent be required to post the usual
notice, informing its employees of their rights and of the re-
sults in this case.
[Recommended Order omitted from publication.]