Briley Marine

National Labor Relations Board - Board Decisions

Mar 30, 1984

269 N.L.R.B. 697 (N.L.R.B. 1984)

BRILEY MARINE
Briley Marine and Michael A. Fuller. Case 15-CA-
7875
30 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 November 1981 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed 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, 2
and conclusions only to the extent consistent with
Decision and Order.
The judge found that the Respondent unlawfully
discharged employee Michael Fuller because Fuller
had filed a lawsuit under the Jones Act, 46 U.S.C.
§ 688, to recover compensation for a chemical poi-
soning injury he sustained while working for a
former employer. Citing the Board's decision in
Krispy Kreme Doughnut Corp., 245 NLRB 1053
(1979), enf. denied 635 F.2d 304 (4th Cir. 1980), the
judge reasoned that Fuller engaged in protected
concerted activity when he filed his individual
claim because "the matter of compensation under
the Jones Act arises out of the employment relation-
ship and it is a matter of common interest to other
employees" in the oil and gas related marine trans-
portation industry. We do not agree with the
judge's finding.
In Meyers Industries, 268 NLRB 493, 497 (1984),
we held that "[i]n general, to find an employee's
activity to be 'concerted,' we shall require that it
be engaged in with or on the authority of other
employees, and not solely by and on behalf of the
employee himself." In so doing, we overruled the
precedent on which the judge relied in this case.
The record establishes that Fuller acted alone
and solely on his own behalf when he pressed his
claim under the Jones Act. Thus, the facts of the
case do not support a finding that Fuller engaged
t The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
269 NLRB No. 122
in concerted activity as defined in Meyers. Accord-
ingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Morgan City, Louisiana, on
July 31, 1981. The proceeding is based on a charge filed
September 29, 1980, by Michael A. Fuller, an individual.
The General Counsel's complaint alleges that Respond-
ent Briley Marine violated Section 8(aX1) of the National
Labor Relations Act by discharging Fuller because of his
concerted activities.
Briefs were filed by the General Counsel and Re-
spondent. Upon a review of the entire record in this case
and from my observation of the witnesses and their de-
meanor, I make the following findings.
1. JURISDICTION
Respondent engages in the offshore marine transporta-
tion industry and performs services valued in excess of
S50,000 for customers outside of Louisiana. It admits that
at all times material herein it is and has been an employer
engaged in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
1i. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent operates a number of vessels engaged in
transporting supplies and equipment to the offshore oil
and gas industry in the Gulf of Mexico. On September 3,
1980, Charging Party Fuller sought employment with
Respondent. He filled out an application form which in-
cluded a question regarding his physical condition and
"other" ailments. In response to the latter question he
wrote "chemical poison on job with Offshore Logistics."
John Caviness, Respondent's personnel manager, then
asked Fuller when he was ready to go to work. After re-
plying "right awpay," Fuller was given a physical exam.
A few minutes later he was hired as a mate and told to
report to Captain Drummond aboard the "Misty Briley."
While Fuller was getting his physical, Caviness called
an employment service in New Orleans. This service
caters to the marine transportation industry and provides
a cross-check of the information contained in employ-
ment applications (especially with regard to the appli-
cant's last or most recent past employer and information
on whether past employers would rehire them). Informa-
tion also is given regarding lawsuits involving former
employers, and Caviness was informed that Fuller had
filed a suit against Offshore Logistics. He was given the
case number but he personally' checked no further.
Fuller worked under Captain Drummond for 7 days at
which time Drummond was replaced by Captain Weeks.
All of Respondent's personnel were on an alternating
schedule working 14 days and getting 7 days off. Fuller
was on duty 6 hours and off 6 hours. His duties involved
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handling the boat when the Captain was off duty. The
rest of the crew was made up of an engineer, cook, and
two deckhands. Fuller relayed orders from the Captain.
Fuller was never told he had the authority to hire, disci-
pline, or fire employees. He never exercised these func-
tions and did not understand that he had such authority.
If a problem arose while he was on duty he would wake
the Captain.
Fuller completed his 14-day tour. He received no com-
plaints regarding his work during this period and a ter-
mination was not mentioned at the time he went ashore.
About September 23, 1980, after his 7 days off, he con-
tacted Keith Freeman, who replaced Caviness as Re-
spondent's personnel manager, and asked if he was going
back to the same boat at Intercoastal City. Freeman re-
plied that the dispatcher did not want him back on the
boat and that he was fired. Fuller said he did not under-
stand why, as he thought every one had liked him.
Fuller testified that he then called Captain Weeks, who
in turn indicated he would call Bailey, Respondent's
president. Fuller was given the impression that the call
was made and that things would be straightened out.
Fuller later called Bailey, who was not in, and was re-
ferred to Richard Hill who was Respondent's Marine su-
perintendent. Fuller testified that Hill told him he did
not know too much about the matter and would call
Fuller back. Hill did not call back and Fuller again
called Freeman. Fuller testified that Freeman then told
Fuller that "he hated to be the one to tell me but that I
was fired because of the lawsuit I filed with Offshore
Logistics, back in 1977." Fuller again contacted Captain
Weeks and told him of the reason given by Freeman.
Fuller then testified that Weeks returned the call and
told him, "They did do it. They fired you because of
that."
Freeman admitted that he prepared Fuller's termina-
tion form and that he had rated Fuller's service as "ex-
cellent." When asked if he ever spoke with Fuller after
termination he answered, "no sir." Upon further ques-
tioning, he remembered that he thought he talked to
Fuller about what rehiring recommendation was to be
made. Freeman stated he could not remember just exact-
ly when because he dealt with quite a number of people.
When asked if he told Fuller he was fired because of the
lawsuit he answered, "no." He then recalled that the
reason he had given Fuller was: "failure to pump calci-
um bromide and the boat was in run down condition."
Freeman then testified that Hill told him Fuller was ter-
minated because of "incompetent as a boat captain and
recommended replacement by the company official."
The latter statement was not explained further. Freeman
testified that he thought the calcium bromide incident
took place at the end of Fuller's tour; that Fuller and
Drummond were notified of their termination about the
same time at the end of their tour; and that Fuller and
Drummond were together for the entire 14-day tour.
Hill was Respondent's marine superintendent during
September 1980, but is no longer employed by the Re-
spondent. He testified that it was his decision to fire the
Charging Party and that he did so because one of Re-
spondent's port captains had informed him that a custom-
er had called to complain that the Misty Briley had re-
fused to carry calcium and that "Fuller said the boat was
not able to handle it." Hill testified that he checked the
capabilities of the boat "and then got back in touch with
him and told him to carry it and he refused to." Hill as-
sertedly made the decision to fire Fuller at the time the
boat was called and told to carry the calcium bromide,
but refused to do so. Hill had no idea when in Fuller's
14-day tour this incident took place. Hill further testified
that he did not know of Fuller's lawsuit against Offshore
Logistics until after this complaint was filed even though
Hill was employed as a captain for Offshore Logistics
during 1976 and 1977. Hill testified that "if I'm not mis-
taken, he [Fuller] alternated as mate and relief captain."
He asserted that Fuller had the responsibility to see that
the boat was kept up, but that nothing was ever done on
the boat. Hill also testified that he "fired the other man
who was also on the boat with him." This was Captain
Drummond, but Hill did not remember his name, al-
though he knew Drummond.
Although the Respondent indicated that it was a
common practice to rotate those hired as captains and
mates into status as captain, it is not shown that Fuller
was employed other than as a mate. Respondent has a
job list which includes a description of the captain's
duties but not those of mates. The job list states that "a
vessel has only one boss, and that is the Captain." It also
states that "the engineer is in charge of taking on or dis-
charging-bulk materials."
On rebuttal, Fuller testified that he played no role in
the decision to reject the calcium bromide, that he knew
nothing of the incident until told about it by Captain
Drummond and the engineer, and that the incident took
place during the first week of his 2-week hitch. Fuller
was not on duty at the time of the incident and it was his
understanding that the engineer was responsible for the
loading of the chemical. Fuller also testified that, since
September 1980, he has participated in the transportation
of other chemicals for other employers without incident.
III. DISCUSSION
The issues in this proceeding are whether the Charg-
ing Party was employed as a supervisor within the mean-
ing of the Act and thereby excluded from coverage
under Section 2(11) of the Act; whether he was terminat-
ed because he had filed a lawsuit arising under the Jones
Act, 46 U.S.C. § 688; and whether the latter activity was
a protected concerted activity that would warrant a find-
ing that Fuller's discharge was an unfair labor practice.
A. Supervisory Status
Section 2(11) of the Act defines a supervisor as "any
individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees,
or responsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment."
Although first mates properly may be found to be su-
pervisors, Joint Employers at the Port of Abbeville, 175
698
BRILEY MARINE
NLRB 502 (1969), circumstances may justify a conclu-
sion that a mate's functions actually are those of an em-
ployee. Contrary to the Respondent's contention that a
mate is essentially a relief captain, I cannot find on this
record that Fuller was employed in such a capacity. The
Respondent did testify that it was its practice to rotate as
captains those hired as either captains or mates; however,
there is no indication that Fuller was made aware of this
practice or that he was ever given the opportunity to
assume the role of captain. If in fact Fuller was hired
under those expectations, it appears that he would have
been told so or that he would have taken over as captain
after his first week aboard the Misty Briley when Cap-
tain Drummond completed his tour. Instead, Captain
Weeks was brought aboard. Here, I find that Fuller's
employment as a mate with the Company gave him the
prospect of being promoted to captain but that it was not
indicative of actual supervisory status, compare Fred
Rogers Co., 226 NLRB 1160 (1976).
As a matter of maritime custom a mate often enjoy a
status as supervisor, however, the record here otherwise
shows that Fuller had no apparent authority to hire, fire,
or discipline employees and that he never exercised such
authority to hire, fire, or discipline employees and that
he never exercised such authority during his tour of
duty. His direction of other crew members did not go
beyond routine operating orders and the relaying of in-
structions from the captain. When any problem arose,
Fuller called the captain, who was readily available,
rather than exercising independent judgment and I find
that the fact that Fuller held a captain's license and the
title of mate is not controlling. The duties and authority
possessed and actually exercised by Fuller were not
those that are compatable with the Act's definition of su-
pervisor and it is concluded that the Respondent has not
shown that Fuller was a supervisor within the meaning
of Section 2(11).
B. Reason for Termination
When Fuller applied for employment he disclosed that
he had "chemical poison on job with Offshore Logis-
tics." Personnel Director Caviness also obtained informa-
tion from an employment service company that specifi-
cally identified Fuller's lawsuit against Offshore Logis-
tics. Fuller then worked a full 14-day tour under two
captains. He experienced no problems or complaints but
after the customary 7-day period ashore he returned to
receive the word that he was not wanted back. Although
he initially was not given a reason, I credit Fuller's
recollection that Freeman, the new personnel director,
told Fuller that the firing was because of the lawsuit
against Offshore Logistics.
Although questions designed to discredit his remem-
berance of events were asked of Fuller, I find that he
was able to respond in a forthright manner and I credit
his testimony regarding his impression of actions taken
and statements made during the course of his employ-
ment and termination. Moreover, although Freeman
denied telling Fuller that the lawsuit was the reason
behind the firing, he also incorrectly identified the time
when the alleged calcium bromide incident took place
and the extent of Captain Drummond's tour of duty. I
also credit Fuller's recollection of having Captain Weeks
confirm that the lawsuit was the reason behind the firing.
Accordingly, I find that the General Counsel has met
his initial burden of making a prima facie showing that
Fuller's lawsuit activity was a motivating factor in the
employer's termination decision.
Clearly, the Respondent is chargeable with knowledge
of the lawsuit based on Fuller's disclosure on his applica-
tion for employment and on the information the Re-
spondent obtained from its employment service compa-
ny. While this information did not keep Caviness from
hiring Fuller (the company was experiencing a shortage
of qualified captains and mates), it may be inferred that
after Fuller's immediate hiring (90 minutes after apply-
ing), some other person or persons in management
became aware of Fuller's employment and of his past in-
volvement in the Offshore Logistics lawsuit. I find that
Hill, the Respondent's marine superintendent also must
be considered to have had both actual and constructive
knowledge of the lawsuit at the time he ordered that
Fuller be fired. On direct examination by the Respond-
ent, Hill was asked: "were you in a position when you
were with Offshore Logistics to know about each and
every lawsuit that may have been filed with Offshore
Logistics at that time?" Hill's nonresponsive answer to
this question was to the effect that the only thing he
knew was that he drew a paycheck, spent 14 days on a
boat, and was off for 7 days. This avoidance of acknowl-
edgement must be viewed in the light of the otherwise
pretextual nature of the reason given by the Respondent
for Fuller's discharge as noted below and, accordingly, I
find that Hill had knowledge of the lawsuit based on his
employment with Offshore Logistics during 1977 and
knowledge based on his position as superintendent with
access to company records and information.
The Respondent has attempted to show that Fuller's
discharge was justifiably based on an incident in which
the Misty Briley refused to take on a load of calcium
bromide. I credit Fuller's testimony that he was not on
duty when the incident occurred, that he only heard
about it after the fact, and that it occurred during his
first week of duty. I further find that it was the engi-
neer's responsibility to take on and discharge chemicals.
There is no indication that the Respondent made any at-
tempt to investigate Fuller's part in the incident and their
is no reason given why the mate would be charged with
responsibility when the Respondent's own job descrip-
tions clearly direct such responsibilities to the engineer
and captain. Also, Fuller was allowed to serve another
full week of his 14-day tour under a new captain after
the incident occurred and at the end of his tour he was
not appraised of any complaint regarding the chemical-
loading incident or any other problem.
Under these circumstances, I find that the Respondent
seized on the chemical-loading incident as a reason to
discharge Fuller because of the possibility that he would
be inclined in the future to pursue a lawsuit against
Briley Marine if some chemical loading accident or other
incident occurred. This conclusion is buttressed by the
Respondent's failure to investigate the incident and its
failure to notify Fuller of any problems near the time of
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the occurrence, at the end of Captain Drummond's tour,
or the end of Fuller's 14-day tour, as well as the Re-
spondent's failure to cite the loading reason when Fuller
first sought to come back to duty, by the run around he
received when he attempted to find out the reason for
his discharge; by my conclusion that Fuller truthfully
testified that he was informed by Freeman and Weeks
that his prior lawsuit had been the reason behind his ter-
mination; and by my further conclusion that Superin-
tendent Hill did not testify in an open and candid manner
regarding the circumstances leading up to Fuller's dis-
charge.
Under the circumstances, I find that the preponder-
ance of the evidence supports a conclusion that the Re-
spondent's asserted reason behind the discharge is pretex-
tual and that the discharge would not have taken place
in the absence of Fuller's action in pursuing his Jones
Act lawsuit.
C. Nature of the Charging Party's Activity
The alleged unfair labor practice necessarily is related
to the Charging Party's having been engaged in a pro-
tected concerted activity. Here, the critical activity was
the filing of a lawsuit under the Jones Act against a
former employee. Although the Board in Hunt Tool Co.,
192 NLRB 145 (1971), found this type of activity not to
be protected, this decision specifically was overruled in
Krispy Kreme Doughnut Corp., 245 NLRB 1053 (1979),
enf. denied 635 F.2d 304 (1980). The General Counsel
persuasively argues that the rationale of Self Cycle &
Marine Distributor Co., 237 NLRB 75 (1978), relied on
by the Board in Krispy Kreme, supra, is controlling.
Here, I find that the matter of compensation under the
Jones Act arises out of the employment relationship and it
is a matter of common interest to other employees.
The Respondent, however, argues that the instant
matter is distinguishable because the lawsuit involved
here was against a prior employer and not the Respond-
ent. I find that both employers are engaged in the same
offshore marine transportation industry serving oil and
gas operations in the Gulf of Mexico and that this indus-
try is shown to be characterized by a large number of
companies and a high rate of turnover and transfer by
crewmembers. Moreover, the industry itself maintains a
special interest in the past activities of prospective em-
ployees and their participation in lawsuits against fellow
employers. This special interest is shown to exist by
virtue of the information maintained and given out by
employment service companies, which services apparent-
ly are designed to provide a clearing house type service
for much of the industry. I conclude that an individual's
action in pursuing a Jones Act claim has a potential effect
on matters related to the safety and compensation of all
crewmembers in the industry, regardless of which boat
or company they work for. I further find that to allow
an employer the opportunity to deny employment to em-
ployees who pursue compensation claims would create a
coercive climate that would inhibit other prospective
claimants from pursuing such claims. I believe that infor-
mation regarding such actions would be communicated
in one way or another among the numerous crews serv-
ing the Gulf area and, accordingly, I conclude that pros-
ecution of a Jones Act lawsuit is a protected concerted
activity within the framework of the Board's policies.
Under these circumstances and on a review of the
briefs and the entire record, I am pursuaded that the
General Counsel's position is supported by a preponder-
ance of the evidence, see Wright Line, 251 NLRB 1083
(1980), and I find that the Respondent's discharge of
Fuller on September 23, 1980, violated Section 8(a)(l) of
the Act as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By discharging Michael A. Fuller on September 23,
1980, the Respondent engaged in an unfair labor practice
in violation of Section 8(a)(l).
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it is recommended that the
Respondent be ordered to cease and desist therefrom and
to take the affirmative action described below which is
designed to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is
recommended that the Respondent be ordered to offer
Michael A. Fuller immediate and full reinstatement to his
former position or, if that position no longer exists, to a
substantially equivalent position without prejudice to his
seniority or any other rights or privileges he previously
enjoyed. It is also recommended that the Respondent be
ordered to make Michael A. Fuller whole for the losses
which he suffered as a result of his termination in ac-
cordance with the method set forth in F. W Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed by
the Board in Florida Steel Corp., 231 NLRB 651 (1977).
Moreover, in view of the nature of the Respondent's
business and the fact that its employees are dispersed on
numerous boats rather than being employed at a central
location, it is considered to be necessary to order that a
copy of the notice be posted aboard each boat in order
to allow effective communication of the Board's policies
to all of the Respondent's employees.
[Recommended Order omitted from publication.]
700