Ingram Barge Co.

National Labor Relations Board - Board Decisions

Dec 14, 2001

336 N.L.R.B. 1259 (N.L.R.B. 2001)

INGRAM BARGE CO. 1259
Ingram Barge Company and Pilots Agree Associa-
tion, of the Great Lakes and Rivers Maritime
Region Membership Group of the International
Organization of Masters, Mates and Pilots, ILA,
AFL–CIO. Case 26–CA–18649
December 14, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On October 14, 1999, Administrative Law Judge Par-
gen Robertson issued the attached decision. The General
Counsel, the Respondent, and the Charging Party filed
exceptions and supporting briefs. In addition, the Gen-
eral Counsel, the Respondent, and the Charging Party
filed answering briefs. Finally, the Respondent filed
reply briefs.
On June 29, 2001, the National Labor Relations Board
issued a Notice and Invitation to File Briefs, which in-
vited the parties to file supplemental briefs on the impact
of the Supreme Court’s decision in NLRB v. Kentucky
River Community Care, 121 S.Ct. 1861 (2001), on the
decision in this case. The General Counsel, the Respon-
dent, and the Charging Party filed supplemental briefs.
The National Labor Relations 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 and
conclusions1 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge, and the
complaint is dismissed.

Rosalind Thomas, Esq., for the General Counsel.
Ernest R. Malone Jr., Esq., of New Orleans, Louisiana, for the
Respondent.
Samuel Morris, Esq. and Florence Johnson, Esq., of Memphis,
Tennessee, for the Charging Party.

1 In his decision, the judge recommended that the 8(a)(1) and (3)
complaint be dismissed in its entirety because he found that the Re-
spondent’s barge pilots were not statutory employees, but were supervi-
sors within the meaning of Sec. 2(11) of the Act. In so finding, the
judge specifically determined that “the pilots’ supervisory duties re-
main essentially as they were in 1962 when the Board decided [in] an
earlier Ingram Barge case” that the Respondent’s pilots were supervi-
sors. See Masters, Mates & Pilots Local 28 (Ingram Barge Co.), 136
NLRB 1175, 1203 (1962) (Ingram Barge I), enfd. 321 F.2d 376 (D.C.
Cir. 1963). In the absence of three votes to overrule Ingram Barge I,
Members Liebman and Walsh agree with Chairman Hurtgen that the
judge correctly applied that precedent here in recommending that the
complaint be dismissed.
DECISION
STATEMENT OF CASE
PARGEN ROBERTSON, Administrative Law Judge. This
hearing was held in Memphis, Tennessee, on June 21 and 22,
1999. The charge was filed on May 11 and amended on June 12,
1998. The complaint issued on November 24, 1998. In considera-
tion of the full record including briefs filed by Respondent,
Charging Party, and General Counsel, I make the following find-
ings.
I. JURISDICTION
Respondent admitted that at material times it has been a corpo-
ration with a place of business in Nashville, Tennessee, where it
has been engaged in the business of providing towboat and barge
inland waterway transportation services; during the 12-month
period ending October 31, 1998, it purchased and received at its
Nashville facility goods and materials valued in excess of
$50,000 from points outside Tennessee, it derived gross revenues
in excess of $50,000 from the transportation of freight in inter-
state commerce under arrangements with and as agent for vari-
ous common carriers each of which operates between various
States of the United States, it performed services valued in
excess of $50,000 in States other than Tennessee and based on
those business operations it functioned as an essential link in
the transportation of freight in interstate commerce. Respondent
admitted that it has been an employer engaged in commerce at
material times.
II. LABOR ORGANIZATION
Respondent denied that Charging Party (Pilots Agree) has
been a labor organization at material times. The evidence re-
vealed that the Charging Party engaged in the functions nor-
mally exercised by a labor organization.1 The outstanding dis-
puted issue involved whether Charging Party acted as a labor
organization for employees. As shown below, Respondent con-
tended that the captains and pilots involved in the organization
and activities of the Charging Party were supervisors. However,
Pilots Agree wrote Respondent on March 27, 1998, stating that
it wished to discuss working conditions of “personnel working
aboard your towboats.” Obviously, some of the personnel
working aboard Respondent’s towboats were employees.2
Despite Respondent’s argument to the contrary, the inclusion of
supervisors does not justify a determination that Pilots Agree is
not a labor organization. I find Pilots Agree was a labor organi-
zation at material times.
1 As noted throughout this decision, the evidence proved that various
captains and pilots working for Respondent engaged in efforts to organ-
ize captains and pilots for the Charging Party. Pilots Agree wrote Re-
spondent on March 27, 1998, seeking discussions regarding safety,
working conditions, living conditions, benefits and wages for personnel
working aboard Respondent’s towboats. Pilots Agree wrote again on
April 20 and asked to be recognized by Respondent.
2 Cf. Masters, Mates & Pilots Local 28 (Ingram Barge Co.), 136
NLRB 1175 (1962), enfd. 321 F.2d 376 (D.C. Cir. 1963), where the
union was found to represent only supervisors.
336 NLRB No. 131
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
III. THE ALLEGED UNFAIR LABOR PRACTICES
The allegations include violations of Section 8(a)(1) and (3).
The initial outstanding disputed issue involves the status of
pilots. Respondent contends and General Counsel disputes that
those people are supervisors.
Steve Crowley is Respondent’s assistant vice president of
operations. At the times material to this proceeding he was its
marine superintendent. Crowley testified that Respondent han-
dles its crewing, warehousing and hiring from its facility in
Paducah, Kentucky. Employees including pilots work from
Paducah.
Respondent operated 58 towboats. Each towboat routinely
pushed a number of barges up and down rivers including the
Mississippi, Ohio, and Tennessee. Testimony showed that a
tow may include 25 or more barges and may be 1/4-mile long.
A crew that includes the wheelhouse officers, a cook,3 a deck
crew4 and one or two engineers5 man each vessel.6 The wheel-
house officers include the captain and a pilot. Both those em-
ployees are licensed7 and they are the only employees that work
in the wheelhouse. In April 1998, Respondent employed ap-
proximately 115 captains and approximately 110 pilots.
The crew of each vessel normally works a 30-day on, 30-day
off schedule.8 While on the vessel, the captain and pilot work
alternate shifts. The captain works the front shift including
hours from 0600 to 1200 and from 1800 to 0001. The pilot is
on at all other times and his is the backshift. The captain is the
highest ranking employee and the ultimate supervisor9 on
board. All crewmembers ultimately report to the captain. He is
responsible for the overall administration as well as the opera-
tion of the vessel including its navigation.
The pilot10 reports directly to the captain.11 During the cap-
tain’s watch the captain mans the wheelhouse. During the pi-

3 The cook reports to the captain.
4 Crowley testified that the size of the crew would range from four to
six depending on the size of the vessel. The direct immediate supervisor
of the deck crew is the mate. The mate reports to the captain. Respon-
dent also offered evidence that two–man crews operate some of its
vessels. Those crews would not include a pilot.
5 Each vessel has a chief engineer. Some vessels have a second engi-
neer (i.e., an assistant or a junior engineer) in addition to the chief. The
chief engineer reports directly to the captain.
6 The term vessel, as used herein, oftentimes refers to the powered
towboat that houses the crew but on occasion it also refers to the boat
and its load of barges that constitute the entire operation.
7 Former pilot David Sullivan testified that he has an operator’s li-
cense, which permits him to hold the jobs of captain and pilot.
8 Respondent called David Varvel. Varvel testified that the current
schedule is 28–days on, 28–days off.
9 The evidence is not in dispute as to the supervisory status of the
captain, the mate and on occasion, the chief engineer. The mate is the
immediate supervisor of the deck employees. When there is an assistant
engineer on board, the chief engineer is that employee’s immediate
supervisor. As shown herein there was disputed evidence that the pilot
is supervisor over both the mate and the chief engineer during the pi-
lot’s watch.
10 Respondent uses trip pilots on occasion. Trip pilots are not full-
time employees. Instead trip pilots hold a license and work for various
companies as part-timers. Trip pilots are not included in company
meetings and are not privy to confidential information.
lot’s watch, the captain is off duty and the pilot mans the
wheelhouse. Harley Hall, David Sullivan, Rodger Sholar,
Lavon Church, and Tony Gurley testified that pilots do not
have authority to hire, fire, transfer, suspend, layoff, recall,
promote, discharge, or assign overtime to employees nor do
they have authority to adjust employee grievances. Hall knew
of no instance of a pilot exercising any of those actions. How-
ever, Hall testified that on occasions, recently hired pilots have
attempted to exercise authority over other crewmembers. On
those occasions, Hall acted to stop such activity by the pilot.
Hall testified that the mate is the supervisor during the back
watch12 and the pilot’s responsibilities are limited to driving the
boat.13 Harley Hall admitted on cross-examination that a pilot
might post a lookout when conditions justify such action. Pilots
may direct work of deckhands that affect the safety or naviga-
tion of the towboat and barges. For example a pilot may tell
someone that a line should be tightened. However, the pilot
does not assign a specific deckhand to a project. The mate
makes assignments.
Former senior mate Robert Ward testified that the pilot did
not direct his work. He worked with Captain Harley Hall and
Pilot Ron Church. Ward was told that Harley Hall was his su-
pervisor. During the pilot’s watch, Ward made the work as-
signments to deck personnel. Robert Ward like Harley Hall
before him, testified that pilots have not exercised authority to
hire, fire, transfer, suspend, layoff, recall, promote, discharge,
or assign overtime to employees nor do they have authority to
adjust employee grievances. Pilots have not made work as-
signments nor have pilots granted anyone authority to leave a
vessel. On advice from the pilot, Ward has occasionally worked
on equipment on board including running lights and depth
sounders. However, the pilot did not decide which employee
performed those functions. The mate (Ward in those cases)
made that decision. Ward testified that pilots are paid more than
mates are.14 Respondent called second mate Kenneth Pine. Pine
worked on the vessel with Ron Church. He testified that he was
instructed that he was required to follow Church’s orders and
that Church did give specific orders to him while Church was
on watch.

11 There was disagreement as to the chain of command aboard each
vessel. General Counsel offered evidence that the supervisors include
the captain, the mate and the chief engineer. Respondent offered evi-
dence that the chain of command involved the captain, the pilot and the
engineer (Tr. 241). Respondent witness David Varvel agreed that the
mate is a supervisor but testified that the mate answers to both the
captain and the pilot depending on which one is on watch.
12 The pilot is on duty during the back watch.
13Respondent called Captain David Varvel. Varvel testified that the
pilot maintains a log of events that occur on his watch. On his vessel
the pilot is responsible for sending a copy of the log to Respondent’s
office when he goes off his watch. Varvel testified that the pilot makes
specific work assignments during his watch to all the deckhands includ-
ing the mate. Varvel has instructed his mate that the pilot is the mate’s
supervisor.
14 Alleged discriminatee and former pilot Tony Gurley testified that
a captain’s salary was about $56,000, a pilot’s salary was about
$53,000, and a mate’s salary was about $25,000 per year (Tr. 194).
INGRAM BARGE CO. 1261
Captain David Varvel15 testified that a vessel both drops off
and takes on barges as it moves up or down the river. Varvel
testified that the pilot is responsible for taking on and dropping
off barges during the pilot’s watch and the pilot is responsible
to rearrange the load in order to maintain an efficient and safe
operation. Varvel testified that the pilot handles disputes and
grievances among the crew during the pilot’s watch. If the
grievance is a minor one, the pilot may handle it himself or it
may be necessary to wake the captain.
Those employees involved in these proceedings that were pi-
lots include Lavon Church,16 Tony Gurley,17 Rodger Sholar,18
and David Sullivan.19
Findings
Credibility
I was impressed with David Varvel and Kenneth Pine’s tes-
timony and demeanor. I was not impressed with the demeanor
and testimony of Jeff Cavitt. Cavitt appeared to be evasive and
interested in being as uncooperative as he could on cross-
examination.
I do not credit Jeff Cavitt’s testimony that a pilot may put
someone off the vessel for intoxication or fighting. Cavitt ad-
mitted that he has never witnessed that happening. Despite the
testimony of Kenneth Pine, I am convinced that pilots do not
discipline crewmembers to the extent of any action, which is
reflected in the employees personnel file. The full record failed
to reveal any instance where that has actually occurred.
As to the credibility of the different versions of the pilots’
authority, I have considered a number of factors in addition to
demeanor. As shown herein there was testimony regarding the
nature of the job and the impact of numerous factors contribut-
ing to a higher level of difficulty in handling a vessel towing a
large number of heavily loaded barges. That evidence was con-
sidered in determining which version of the pilots’ duties was
the most likely to be credible. Additionally, I noticed that sev-
eral witnesses including David Sullivan, Rodger Sholar, Tony
Gurley, Lavon Church, Harley Hall Jr., and Steve Crowley
testified about masters’ meetings, which were also referred to
as management or officers meetings. Rodger Sholar testified
that those were annual meetings and he attended two of those
meetings during the time he worked for Respondent. Respon-
dent holds several of those meetings each year in order to in-
clude all the captains and pilots without disrupting operation of
its vessels. It was at the 1998 meetings that Orrin Ingram alleg-
edly made threats that violated Section 8(a)(1). However, as to
my credibility findings on this one issue, those meetings repre-
sented something else. Captains and pilots were included in
those meetings and they were advised that confidential matters

15 David Varvel oftentimes used the term “master.” From his testi-
mony it appeared that term is interchangeable with “captain.”
16 Church was assigned to the vessel John M. Donnally and the cap-
tains were Harley Hall and David Graham.
17 Gurley was assigned to the vessel O. H. Ingram and the captains
were Darrell Hardy and Tom Hayley Jr.
18 Sholar was assigned to the vessel Ilene Bigelow and one of the
captains was Billie Martin.
19 Sullivan was assigned to the vessel Alice I. Hooker one of the cap-
tains was Rich Gilley.
would be discussed. No other vessel employees were included.
Even “trip pilots” were not included in the meetings. Those
meetings were not a recent fabrication created to combat Pilot’s
Agree. That evidence tends to show that Respondent has con-
sistently treated pilots as part of management. Moreover, an
earlier decision established a basis for Respondent’s belief that
pilots were supervisors. In Masters, Mates & Pilots Local 28
(Ingram Barge Co.), 136 NLRB 1175 (1962), enfd. 321 F.2d
376 (D.C. Cir. 1963), the Board upheld the finding that Re-
spondent’s pilots were supervisors. I have considered that evi-
dence in making these credibility determinations.
With those factors, the full record, and the demeanor of the
witnesses in mind, I am convinced that David Varvel’s testi-
mony regarding pilots’ job and duties especially the testimony
regarding whether pilots direct the work of deck employees, is
the most credible of all the witnesses. I shall credit his testi-
mony and to the extent other testimony conflicts I shall dis-
credit that testimony and credit the testimony of Varvel.
Conclusions
The Act extends certain rights and protection to employees
engaged in protected activity. Employee is defined in Section
2(3) of the Act and that section specifically excludes from the
term employee “any individual employed as a supervisor.”
Supervisor is defined in Section 2(11):

The term “supervisor” means any individual having
authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, re-
ward, or discipline other employees, or responsibly to di-
rect them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the forego-
ing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent
judgment.

The Eleventh Circuit recently considered the question of su-
pervisory status of pilots in Copper/T Smith, Inc. v. NLRB, 177
F.3d 1259 (11th Cir. 1999). There the court stated:

The statutory definition lists the functions of a supervisor in
the disjunctive, so Cooper only needs to prove that docking
pilots fulfill one of these functions in order to succeed in its
claim that pilots are supervisors. See N.L.R.B. v. Dadco Fash-
ions, Inc., 632 F. 2d 493, 496 (5th Cir. Unit A 1980). As the
Supreme Court has noted, three questions must be answered
in the affirmative for an employee to be deemed a supervisor
under section 2(11): “First, does the employee have authority
to engage in 1 of the 12 listed activities? Second, does the ex-
ercise of that authority require ‘the use of independent judg-
ment’? Third, does the employee hold the authority in the ‘in-
terest of the employer?’”

The evidence here proved that pilots as well as captains, lack
authority to hire, transfer, suspend, lay off, recall, promote,
reward, or discipline other employees. The pilots lack the au-
thority to effectively recommend20 any of those actions. Unlike
20 There was evidence that Lavon Church prepared a performance
evaluation on Robert Ward (R. Exh. 8). However, the record proved
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
the pilots, the record shows that the captains have the authority
to effectively recommend those actions.
I am convinced that pilots neither have nor have exercised
the authority to discharge employees. The full record proved
that no one on board vessels including the captain has the au-
thority to discharge. In extreme cases such as obvious intoxica-
tion the captain could put an offending employee off the vessel
and recommend discharge. As shown above, I discredit the
testimony of Jeff Cavitt that a pilot may put someone off the
vessel for fighting or intoxication.
As shown above, I do not credit testimony showing that pi-
lots may adjust grievances nor may a pilot effectively recom-
mend any actions.
Their remains an issue regarding two of the Section 2(11)
supervisory indicia. Those are the direction of work and the
assignment of jobs to deck employees. The Board has held that
the possession of any one of the indicia specified in Section
2(11) is sufficient to confer supervisory status on an individual
if the statutory authority is exercised with independent judg-
ment and not in a routine manner (Spentonbush/Red Star Cos.,
319 NLRB 988 (1995)).
There was no dispute but that the pilots are charged with the
operation of the boats and barges for 12 hours each day while
the captain is off watch. In that respect the pilot is responsible
for the efficient and safe operation of the vessel. The credited
testimony of David Varvel showed that the pilot communicates
with the office during his watch. Those communications may
involve orders from the office “for barges, orders for crew
changes, orders for just, you know, anything that goes on with
the vessel.” The pilot has administrative duties involved with
maintaining the log. Log entries involve “the stuff that he does
while he’s on watch” and he figures the mileage, the fuel and
the lube oil. He makes copies of the log and sends a copy out in
the mornings. The pilot is responsible for the safety of the ves-
sel and crew and he directs the deck crew in the work of “what
barges we’re going to pick up and where they’re going to be
placed in tow, and how they need to, on occasion, wire them in
tow.” The pilot, as well as the captain when he is on duty, is
required to remain in the pilothouse where he has the highest
view of the vessel and the river. The watch-standing officer
uses binoculars in keeping watch over the entire load of barges
and the vessel plus the surrounding area. Other crewmembers
including the mate are assigned at various places on the boat or
barges. The pilot may from time to time direct a change in the
location of crewmembers. Varvel testified that those directions
might include moving a crewmember from a painting job to
tightening a tow or from tightening a tow to making a speaker
check before arriving at a lock. When a captain is off duty and
off the vessel due to illness, vacation, etc. the pilot routinely
serves as acting captain.21
As the vessel moves up or down the Tennessee, Ohio, or
Mississippi, orders require picking up and dropping off barges.

that Church served as captain as well as pilot. Church testified that he
was serving as captain when he evaluated Ward. There was no evidence
disputing that testimony by Church.
21 As shown in the above footnote, Lavon Church served as captain
while the regular captain was off duty.
Varvel testified that a vessel may include 25 loaded and 25
empty or 15 loaded and 15 empty, barges. The cargo may in-
clude coal, sand, some chemicals, some grains and some fertil-
izer. Barges are placed end on end, side by side, wired up with
wires,22 and the boats faced up on the end of them and shoved
ahead. The addition or subtraction of a barge or a number of
barges may result in changing the configuration of the vessel by
rearranging the barges due to such things as weight and height
of the barge and the overall appearance of the mass of barges.
For example a low barge may take in water over its front if
placed in the front of the mass of barges and an uneven or un-
square mass may result in difficulty in steering.
David Varvel testified that the captain and pilot alternate 6–
hour watches with the captain taking the front watch. The front
watch extends from 6 a.m. to noon and from 6 p.m. to mid-
night. The captain is in overall command of the vessel and the
pilot is the highest ranking person on duty during the back
watch. The back watch runs from noon to 6 p.m. and from mid-
night to 6 a.m. During the back watch, the pilot is responsible
for the safety of the entire crew and he directs the watch crew
in their duties. The pilot is the supervisor of the mate and Var-
vel has explained that fact to mates on his vessel.
Varvel testified that pilots direct crew to take action to meet
a change in weather including increment weather. He described
how a pilot would handle operations when the vessel ap-
proaches a lock:

You would ring up the mate and tell him we’ll be at
the lock in 15 or 20 minutes, and you all get suited up, and
he’d let him know what channel he wanted to work on the
walkie-talkies, and tell him to be sure to get his lock ticket
and any pertinent information with the lock, anything spe-
cial going on with the lock, pick up the cook’s mail or put
this package off or anything—anything out of the ordi-
nary, and then as he got closer to the lock, he would holler
at him on the walkie-talking and tell him to go on out, and
send them out early enough to do a speaker check, make
sure all their lines and bumpers and stuff are in place, and
then as he’s coming up on the—coming up on the wall or
down on the wall, whichever it is, the mate would start
giving him distances from the wall and widths off the wall.
Basically talk him into the lock. And then once he gets in,
they close the gates, raise him or lower him, and then he—
when he gets in the lock he tells, you know, the crew tie
me off here, let me run down 20 feet, stop me here, stand
by your line, the lock opens the gates, blows the horn. The
pilot or the captain tells the crew to turn him loose. When
he’s been told he’s all gone, he comes ahead on the en-
gines and pushes out and they ride bumpers through the
gates and talk the head of the tow through the gates, and as
you depart the lock, then the crew coils up the lines and
they have a procedure they go through to put everything
back in place for the next lock, be it move the lines from
one side to the other, what not.
Q. Does unexpected stuff ever happen during that pro-
cedure?
22 The wires are 35 feet long and 1-7/8 inches in diameter.
INGRAM BARGE CO. 1263
A. Sure.
Q. And what is the pilot’s role when he starts seeing
things happen that could affect the tow or the vessel?
A. Well, he has to react to try to correct it.
Q. And how would he react in doing that?
A. You would have to give me a situation to answer
that.
Q. Well, I don’t know. I mean, I guess the best way—
assume that he made some navigational changes; is that
correct?
A. If that’s what needed to be done.
Q. If it involves something with the crew, would he
direct the crew to do certain things?
A. He would have to.

The credited evidence proved that pilots do direct the work
of the deck employees in the operation of the towboat and that
may involve the exercise of independent judgment. As in Coo-
per/T. Smith, I shall consider the three-part query set forth
above. I find as did the Circuit Court in Cooper/T. Smith that
pilots hold authority in the interest of the employer. Two ques-
tions remain:
Does the employee have authority to engage in 1 of the 12
listed activities?
As shown above, I find that pilots do not have authority to
engage in any of the 12 listed activities with the exception of
“assign” and “responsibility direct.”
During his two watch periods each day, the pilot is fully re-
sponsible for the operation of the boat and its load of barges.
The captain is off watch and probably asleep. The captain re-
mains ultimately responsible for the safety and welfare of the
towboat but that does not diminish the responsibility of the
pilot. As found herein, the credited record shows that the pilot
may direct the work of the deck crew including the mate, as
that work relates to the operation of the towboat. In that regard
I credit the testimony of David Varvel that pilots may “assign”
deck employees from one job to another. I have found that the
record shows that the operation of the towboat is of paramount
importance and that work in that regard may of necessity over-
ride other work. That evidence proves that the answer to the
first query is yes. Pilots engage in 2 of the 12 listed activities.
Does the exercise of that authority require “the use of inde-
pendent judgment?”
I am convinced that the credited testimony illustrated that pi-
lots engage in a number of activities that do not require inde-
pendent judgment. For example there was no proof that the
pilots’ communications with the office involved independent
judgment. There was no showing that maintenance and dispatch
of the log involved independent judgment. However, as shown
throughout this decision and throughout the record, the pilot is
the sole wheelhouse officer on watch during 12 hours each day.
Obviously, the operation of a vessel up to a quarter mile long,23
on the Mississippi, Ohio, and Tennessee rivers involves dy-
namic activity. Weather, river traffic, changing currents, float-
ing debris, and whether the towboat itself is operating prop-

23 Alleged discriminatee Rodger Sholar testified that a “tow” may be
a quarter of a mile long.
erly24 are among the factors that may necessitate changes in the
navigation or in the way the towboat is operated. While on
watch, the pilot must make decisions regarding those opera-
tional changes. Those decisions may, in turn, necessitate the
directing of work by the deck crew regarding matters such as
maintaining or tightening the lines securing the barges, naviga-
tion lights maintenance and repair, docking and locking the
vessel, and on occasion, the direction of work to deck employ-
ees must be made in preparation for increment weather.
I find the instant situation differs from the situation in Spen-
tonbush/Red Star Cos., 319 NLRB 988 (1995), where captains
were found not to be supervisors. That case involved tugboat
captains and the Board found their direction of work of crew-
members did not involve independent judgment. Instead those
directions were routine in the vast majority of the cases. Here,
unlike the situation in Spentonbush, the pilots are on duty for 6
consecutive hours twice each day for 30 days. Instead of rou-
tinely tying up to a barge it is the pilots’ job to maintain 1/4-
mile long vessels among other traffic in all kinds of weather
including operations through locks and around dams. I have
credited the testimony of David Varvel. That testimony proved
that the pilots’ direction of the work of the deck crew is not
routine and is not that of a more experienced employee over
one who is less skilled.
The evidence supported a determination that the pilots’ su-
pervisory duties remain essentially as they were in 1962 when
the Board decided an earlier Ingram Barge case.25
IV. SECONDARY INDICIA OF SUPERVISORY
AUTHORITY
Charging Party pointed to The Developing Labor Law Sec-
ond Edition 1611, 1612 (BNA Books 1990), to show that the
Board may consider secondary indicia in borderline cases of
supervisory status. As shown above, Respondent held annual
masters’ meetings. Several witnesses including David Sullivan,
Rodger Sholar, Tony Gurley, Lavon Church, Harley Hall Jr.,
and Steve Crowley testified about masters’ meetings, which
were also referred to as management or officers meetings.
Rodger Sholar testified that those were annual meetings and he
attended two of those meetings during the time he worked for
Respondent. Respondent holds several of those meetings each
year in order to include all the captains and pilots without dis-
rupting operation of its vessels. Captains and pilots were the
only onboard personnel included in those meetings. Confiden-
tial matters including financial matters were discussed. The
evidence showed that those meetings were not a recent fabrica-
tion created to combat Pilot’s Agree. That tends to show that
Respondent has consistently treated pilots as part of manage-
ment.26 The earlier Ingram Barge NLRB decision cited at foot-
note 25 also supports that determination.
In view of the entire credited record I am convinced that pi-
lots exercise authority including work assignments and the
24 See for example Tr. 157–160.
25 In Masters, Mates & Pilots Local 28 (Ingram Barge Co.), 136
NLRB 1175 (1962), enfd. 321 F.2d 376 (D.C. Cir. 1963), the Board
upheld the finding that Respondent’s pilots were supervisors.
26 See Northern Virginia Steel Corp. v. NLRB, 300 F.2d 168 (4th Cir.
1962).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
direction of work and that work oftentimes involves the exer-
cise of independent judgment. For that reason I find that pilots
are supervisors as defined in Section 2(11) of the Act.27
V. THE 8(A)(1) ALLEGATIONS
A. Threatened Loss of Jobs
Steve Crowley admitted that he learned of Pilots Agree
months before April 1998. Crowley learned that some of Re-
spondent’s captains and pilots were involved with Pilots Agree.
He admitted that Respondent was opposed to the captains and
pilots’ efforts to organize a union. Crowley testified that Orrin
Ingram28 told Respondent’s managers including captains and
pilots during officers’ meetings that he started building this
company 50 years ago and “he could not communicate with all
of us, all of the managers for the company; therefore, if it took
the company of going union, the first thing he would probably
do is fire all of us, not fire, but replace us, the senior executives,
senior management was what he basically said, and he con-
veyed that if your don’t like—enjoy working here, you know,
you’re free to leave and go work somewhere else, if you so
desired, but we’re not going to continue to communicate one on
one, that’s the way he wants to run this company.”
Harley Hall Jr., a former captain,29 recalled Steve Crowley
telling him after the captains and pilots meeting with Orrin
Ingram that Crowley was not afraid for himself because there
would always be a place for him with Ingram, but he was afraid
for everyone else. Crowley asked if Hall had thought what it
would be like to change careers at his age and what would hap-
pen to Hall’s family. Hall testified that he and Crowley are
personal friends.
Former pilot Rodger Sholar attended a company meeting at
Respondent’s Paducah facility on March 11, 1998. Orrin In-
gram spoke after lunch. Ingram talked about his father’s feel-
ings about a union. Ingram said, “I am my father’s son, and that
I will sell the company shut the doors and sell the company
before I’ll deal with the union.”
Tony Gurley testified that Orrin Ingram told the employees
more or less that they wouldn’t have a job if they participated
in Pilots Agree. He recalled that was said during a March com-
pany meeting. Ingram also said he would have no part of Pilots
Agree and Respondent would not recognize Pilots Agree.
Lavon Church recalled Orrin Ingram saying his daddy al-
ways told him that if any of the Ingram companies were in-
volved with a union, that they would shut the door, sell the
company, and fire the managers. Ingram said that he was “not
going that far, I’m not going to fire my managers. I’ve got other
places for them to be, but I will shut the doors and sell the
company.” Ingram said that he was not going to recognize any
kind of organized labor. One of the pilots asked what’s going to
happen to the guys that stop your boats and Ingram said they

27 Cooper/T Smith, Inc. v. NLRB, 177 F.3d 1259 (11th Cir. 1999);
Spentonbush/Red Star Cos. v. NLRB, 106 F.3d 484 (2d Cir. 1997); cf.
Spentonbush/Red Star Cos., 319 NLRB 988 (1995).
28 The current assistant vice president of operations Steve Crowley
testified that Orrin Ingram is the owner of Respondent.
29 As shown herein there is no dispute but that captains are supervi-
sors. Therefore, Crowley’s comments to Hall do not constitute an
8(a)(1) threat.
would be fired. Ingram then stepped back and said well they
won’t have a job any more.
B. Expressed Futility of Bargaining
As shown above, former pilot Rodger Sholar testified about
a March 11, 1998 company meeting at Respondent’s Paducah
facility. Orrin Ingram told the employees that, “I am my fa-
ther’s son, and that I will sell the company, shut the doors and
sell the company before I’ll deal with the union.”
Tony Gurley recalled, at a March company meeting, Orrin
Ingram telling the employees that he would have no part of
Pilots Agree and Respondent would not recognize Pilots Agree.
Lavon Church recalled Orrin Ingram saying that he was not
going to recognize any kind of organized labor.
Findings
Credibility
In view of their demeanor and the full record, I credit the tes-
timony of Harley Hall Jr., Robert Ward, David Sullivan,
Rodger Sholar, Tony Gurley, David Varvel, and Kenneth Pine
except as noted herein. I credit the testimony shown above
including the following: Harley Hall testified that Steve Crow-
ley threatened him with the loss of his job; Rodger Sholar testi-
fied that Orrin Ingram threatened to shut the doors and sell the
Company before he would deal with a union; Tony Gurley
testified that Orrin Ingram threatened that employees would not
have a job if they participated in Pilot’s Agree and Ingram said
that he would not recognize Pilots Agree; and Lavon Church
testified that Orrin Ingram threatened to shut the door and sell
the company if he was involved with a union, that anyone that
stopped their boat would be fired and that he was not going to
recognize any kind of organized labor.
Conclusions
But for my determination that pilots are supervisors, I would
find that Respondent engaged in activity in violation of Section
8(a)(1) as alleged in the complaint. However, despite my credi-
bility determinations I find that Respondent did not engage in
activity in violation of Section 8(a)(1). In order to prove a vio-
lation of that section it is necessary to show that the alleged
activity involved one or more employees. Here there was no
showing that anyone other than supervisors was involved in the
alleged unlawful activity.
C. The 8(a)(3) Allegations
As shown above, Steve Crowley admitted learning that some
of Respondent’s captains and pilots were involved with Pilots
Agree. He initially admitted that Respondent was opposed to
captains and plots’ efforts to organize a union.
Lavon Church testified that the Pilots Agree board of direc-
tors voted to initiate a job action against Respondent at 0001
hours on April 4, 1998. The alleged discriminatees with the
exception of Rodger Sholar left their vessels while on duty on
April 4, 1998.30 Those pilots told Respondent of their intention
30 For example David Sullivan left the vessel he was assigned to
work, which was the Alice I. Hooker, at Oceola, Arkansas. The vessel’s
destination was Cairo, Illinois. Sullivan was on watch in the wheel-
house and he stopped the vessel without asking permission of the cap-
INGRAM BARGE CO. 1265
to leave the vessels. Steve Crowley recalled two conversations
with Lavon Church on that day. During the last of those calls
around 5 p.m., Church confirmed to Crowley that he was stop-
ping the vessel to honor Pilots Agree.31 Crowley also talked
with Tony Gurley. Gurley told Crowley that he was stopping
his vessel, the O.H. Ingram. David Sullivan told Crowley that
he was stopping his vessel.32 After stopping their respective
vessels, all those pilots were relieved by other personnel on that
same day. Rodger Sholar was off duty at the time of the work
stoppage and did not participate by stopping and leaving his
vessel. Respondent wrote the alleged discriminatees that their
resignations were being accepted (GC Exh. 2–5). Steve Crow-
ley admitted that the alleged discriminatees that left their ves-
sels told him they were supporting Pilots Agree.
1. Lavon Church
Lavon Church had a phone conversation with Steve Crowley
from his vessel on the day of the strike. He told Crowley that
the strike was on that that he would not be running tonight.
Crowley told him to go ahead and do what he thought was
right. Church stopped his boat that night around 30 minutes
after midnight and sat there until daylight. Crowley phoned that
morning and Church told him that he had stopped the boat.
Crowley said that you know when you stopped the boat you
resigned. Church rode the boat to Blytheville, Arkansas. Re-
spondent wrote Church on April 6 and acknowledged that he
had resigned (GC Exh. 2).
2. David Sullivan
Sullivan engaged in the April 4 work stoppage. As shown
above Sullivan left the vessel at Oceola, Arkansas. The vessel’s
destination was Cairo, Illinois. Sullivan was on watch in the
wheelhouse and he stopped the vessel without asking permis-
sion of the captain. Sullivan left by a fleet boat that came out
and met the Alice I. Hooker. Respondent wrote Sullivan on
April 6 acknowledging his “resignation” (GC Exh. 4).
3. Tony Gurley
Steve Crowley asked Gurley what he would do regarding the
work stoppage. Gurley told Crowley that he needed a relief and
that he was getting off the boat. Gurley did not resign. He ad-
mitted on cross-examination that he told Steve Crowley that he
was getting off the vessel because he feared for his own safety.
He told Crowley that, “I felt it was unsafe to operate during that
strike.” Respondent wrote Gurley on April 6 that his action
constituted job abandonment and that he was terminated (GC
Exh. 3).

tain. Sullivan left by a fleet boat that came out and met the Alice I.
Hooker.
31 The parties agreed that some of the captains also honored the Pi-
lots Agree action. Charges were filed and the allegations regarding the
captains were dismissed on a determination that the captains were
supervisors (R. Exhs. 1 and 2).
32 On April 4, 1998, Kenny White was captain and Rod Church was
pilot of the J.M. Donnally; Darrell Hardy was captain and Tony Gurley
was pilot of the O.H. Ingram; Rich Gilley was captain and David Sulli-
van was pilot of the Alice I. Hooker; and Billie Martin was captain and
Rodger Sholar pilot of the Ilene Bigelow.
4. Rodger Sholar33
Sholar was not on duty aboard his boat, the Ilene Bigelow,
when the strike was called. However, he did not return at the end
of his 30 days off. During a phone conversation with Steve
Crowley Sholar told Crowley that he was taking the Pilots Agree
stand. Rodger Sholar did not resign. Sholar testified that he
wanted to discuss working conditions grievances with manage-
ment. Respondent wrote Sholar on April 13 that it was accepting
his resignation (GC Exh. 5).
Findings
Credibility
As shown above, I credit the testimony of David Sullivan,
Rodger Sholar, and Tony Gurley except as noted herein. The
record proved conclusively that the four alleged discriminatees
supported Pilots Agree by engaging in a work stoppage. Even
though Rodger Sholar was not on duty at the time of the work
stoppage, it is undisputed that he told Respondent that he was
supporting that action and would not return to work during the
work stoppage. I fully credit the evidence in that regard.
Conclusions
But for my determination that pilots are supervisors I would
find that Respondent engaged in activity in violation of Section
8(a)(3) as alleged in the complaint.34 However, despite my credi-
bility determinations, I find that Respondent did not engage in
activity in violation of Section 8(a)(3). In this instance it is neces-
sary to show that the alleged discriminatees were employees. As
shown above, neither pilots nor captains were shown to be em-
ployees. Instead, both were shown to be supervisors. I find that
Respondent did not terminate Lavon Church, David Sullivan,
Tony Gurley, or Rodger Sholar in violation of Section 8(a)(1) or
(3) of the Act.
CONCLUSIONS OF LAW
1. Ingram Barge Company, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Pilots Agree Association, of the Great Lakes and Rivers
Maritime Region Membership Group of the International Or-
ganization of Masters, Mates and Pilots, ILA, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the Act.
3. Respondent did not engaged in conduct in violation of Sec-
tion 8(a)(1) and (3) of the Act.
33 Sholar was not on duty at the time of the strike, which is material
to these proceedings. He was not aboard one of Respondent’s vessels at
that time.
34 In that regard, I specifically reject some of Respondent’s defenses.
Respondent argues that the Charging Party failed to prove its labor
organization status; that charging party was shown to have only minor-
ity employee support and that Charging Party’s April 4 was an illegal
strike for recognition. However, the evidence including R. Exhs. 3 and
4, showed that Charging Party is a labor organization and the remaining
arguments are irrelevant to the issues herein. Regardless of whether
Charging Party was a minority union or whether it was striking for
recognition, the issues of 8(a)(1) and (3) allegations remain unchanged.
Absent my findings that the pilots are supervisors, I would find that
Respondent engaged in the conduct alleged in the complaint as 8(a)(1)
and (3) violations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
ORDER
It is recommended that the complaint be dismissed.