Ohio River Co.

National Labor Relations Board - Board Decisions

Jul 16, 1991

303 N.L.R.B. 696 (N.L.R.B. 1991)

696
303 NLRB No. 104
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
In agreeing with the judge that the mates’ involvement in the deckhand hir-
ing process is not such as to warrant finding them supervisors under the Act,
we rely on the following interpretation of the facts, which we believe is im-
plicit in the judge’s decision. Based on the unique circumstances described in
the record, we believe the Respondent’s hiring decision is a process com-
mencing with the initial screening, continuing through the orientation and so-
called probationary phases, and culminating only at the end of the so-called
probationary phase. Thus, rather than two separate hiring decisions as the Re-
spondent asserts, we view the hiring decision as a continuum at two stages
of which—the orientation and so-called probationary phases—the Respondent
relies on the mates’ expertise and skill in evaluating candidates for employ-
ment. We emphasize that a port captain does a final review of a candidate
before the hiring decision is made at the end of the so-called probationary
phase.
We find Kansas Milling Co., 97 NLRB 219 (1951), on which the dissent
relies, distinguishable. The Board decided in Kansas Milling that ‘‘temporary
employees’’ who worked beyond a 30-day probationary period were perma-
nent from the date of hire, but employees who did not complete the 30-day
period were not so considered. Clearly, the case does not stand for the propo-
sition that individuals characterized as temporary employees are per se perma-
nent employees. We believe our interpretation of the unique facts of this case
(that the so-called probationary phase of the hiring process here does not con-
stitute a probationary period in the usual sense) is not inconsistent with Kansas
Milling.
2 We shall modify the recommended Order to include a notification provi-
sion and we shall conform the notice with the judge’s recommended Order.
We modify the judge’s remedy to provide that backpay (if any) be paid as
prescribed in Ogle Protection Service, 183 NLRB 682 (1970).
1 My colleagues have stated that the mates’ hiring recommendations result
in new deckhands’ being placed in a probationary phase of employment which
is not a probationary period in the usual sense. They fail to specify, however,
how this probationary phase is to any degree atypical of what one would ex-
pect of a probationary employee’s status, i.e., one in which the employer’s hir-
ing decision is subject to review during an initial period of employment. My
colleagues further declare that the hiring decision is made only at the end of
the so-called probationary phase, but it is not at all apparent what the employ-
ment status of these individuals would then be during this initial phase. It is
settled Board law that a probationary employee’s status as a bargaining unit
employee is premised only on his or her reasonable expectancy of permanent
employment. See Johnson’s Auto Spring Service, 221 NLRB 809 (1975).
There is nothing apparent in the record which would establish that these pro-
bationary employees, as a class, have no expectancy of continued employment.
The Ohio River Company and United Steelworkers
of America, Local Union 14262, AFL–CIO–
CLC. Case 9–CA–26554
July 16, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On November 26, 1990, Administrative Law Judge
Robert G. Romano issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
Ohio River Company, Cincinnati, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Reletter paragraph 2(d) as 2(e), letter the preced-
ing paragraph as 2(d), and insert the following as 2(f).
‘‘(f) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
CHAIRMAN STEPHENS, dissenting.
I cannot join my colleagues in treating the hiring
process for deckhands as one in which no one is actu-
ally hired until after he or she successfully completes
the probationary period. See Kansas Milling Co., 97
NLRB 219, 225–226 (1951) (striker replacements re-
garded as having been hired even before completion of
30-day probationary period). Further, I cannot agree
that the mates’ hiring recommendations prior to the se-
lection of deckhands for probationary employment do
not constitute the exercise of Section 2(11) authority in
that respect.1
Although I believe that the Respondent almost sure-
ly violated Section 8(a)(5) of the Act when it unilater-
ally changed the mates’ work assignments beginning in
1988 (a mandatory subject on which it was required to
bargain with the Union), I do not believe we can pred-
icate an unfair labor practice finding on that conduct.
That is not the theory pursued by the General Counsel
in this case. Accordingly, I would dismiss the com-
plaint.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United Steel-
workers of America, Local Union 14262, AFL–CIO–
CLC as the exclusive collective-bargaining representa-
tive of mates, a classification in the unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
697OHIO RIVER CO.
1 All dates are in 1989, unless otherwise stated.
WE WILL recognize United Steelworkers of America,
Local Union 14262, AFL–CIO–CLC as the collective-
bargaining representative of the mates, a classification
in the unit.
WE WILL henceforth apply the terms and conditions
of employment of unit employees in the current collec-
tive-bargaining agreement to our mates; and WE WILL,
on union demand, bargain collectively with the Union
on pay and other benefits, and put in writing and sign
any agreement reached thereon.
WE WILL make whole, with interest, all the unit
mate employees for any loss of pay or other benefits
(if any) they may have suffered as a result of the re-
fusal to recognize and bargain with the Union as a rep-
resentative of mate employees.
THE OHIO RIVER COMPANY
Damon W. Harrison Jr., Esq., for the General Counsel.
Walter W. Christy and S. Mark Klyza, Esqs. (Kullman,
Inman, Bee, Downing & Banta), of New Orleans, Lou-
isiana, for the Respondent.
Stanley M. Hostler, Esq. (Hostler and Segal), of Charleston,
West Virginia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. I heard
this case in Cincinnati, Ohio, on October 3 and 4, 1989.1
United Steelworkers of America, Local Union 14262, AFL–
CIO–CLC (Steelworkers Local 14262) filed the charge in
Case 9–CA–26554 against The Ohio River Company
(ORCO, or Respondent Employer), on June 15. Complaint
issued on July 27, alleging that Respondent had violated Sec-
tion 8(a)(1) and (5) in that since on or about March 5, Re-
spondent has failed and refused to recognize and bargain
with the Union as the exclusive collective-bargaining rep-
resentative of the classification of ‘‘mates,’’ a classification
alleged as included in a certified unit. By answer filed Au-
gust 9, Respondent Employer admitted the Board’s prior de-
termination in 1962 of an appropriate unit that included
‘‘mates,’’ but otherwise has denied the commission of any
unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the parties on or about December 26, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Jurisdiction is not in issue. Employer operates a barge tow
line on the Ohio River (and its tributaries), where it is en-
gaged in interstate transport of freight, typically dry cargo
that lends itself to bulk hauling, principally coal, but also
stone and other aggregates, and steel products. In the course
and conduct of its above business, Employer presently oper-
ates a fleet of seven towboats which ply primarily between
Pittsburgh, Pennsylvania, and Cairo, Illinois. In material pe-
riod Employer has derived in excess of $50,000 from the
interstate transportation of freight and commodities in the
above business operations.
Complaint alleges, Employer in answer filed admits, and
I find, that The Ohio River Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act; and, that United Steelworkers of America,
Local Union 14262, AFL–CIO–CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Prior Board certification
a. Appropriate unit
On March 29, 1962, the Board’s (then) Regional Director
for Region 9 determined that the following employees of
Employer constituted an appropriate unit for the purposes of
collective bargaining:
All employees of the Employer operating on the
Ohio River and its tributaries, on its boats, docks and
terminals, including all watchmen, fleetmen, mates and
electricians,3 excluding masters, pilots, chief engineers,
assistant engineers, office clerical employees, guards,
professional employees and supervisors as defined in
the Act.
3 All parties have agreed that the unit found appropriate herein
should also properly include the following classifications: strikers, fire-
men, oilers, deckhands, cooks, maids, second maids, daylight men,
steersmen; barber green loaders (2 belt type), general laborers, loco-
motive engineers, conductors (switchmen), car shakeout operators, load-
ers, dock operators, repairmen, barge pullers, crane operators,
derrickboat operators, leaders, dumpmen, car checkers, car records and
tunnelmen. The record shows that these classifications are properly in-
cluded within the unit found appropriate herein. Therefore, in agreement
with the parties, I include them in such unit.
b. Certification; union successorship; and collective-
bargaining history
Certification in the above appropriate unit issued on May
28, 1962, in the name of a predecessor labor organization,
District 50, United Mine Workers of America (District 50).
Since 1972 Steelworkers Local 14262 has been successor to
District 50 as the exclusive collective-bargaining representa-
tive of the employees in the above determined appropriate
unit.
Since 1962, ORCO has been signatory to successive col-
lective-bargaining agreements (with District 50, or it suc-
cessor Steelworkers Local 14262). The most recently expired
agreement covering boat employees (including mates) was
one which was in effect from July 1, 1986, through June 30,
1989 (the 1986–1989 contract). On June 23, the parties en-
tered into a new collective-bargaining agreement now effec-
tive July 1, 1989, through June 30, 1992 (the 1989–1992
contract).
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Employer’s and Union’s representatives
William H. Ferguson is Employer’s vice president of per-
sonnel and labor relations, and spokesman of Employer’s ne-
gotiating committee. Stephen A. Frasher is vice president of
operations, in overall charge of operation and maintenance of
Employer’s line haul vessels. Frasher is also a member of the
Employer’s negotiating committee. W. S. (Scott) Noble is
operations manager, located at Employer’s corporate head-
quarters in Cincinnati. Noble reports directly to Frasher.
B. L. Riegel is ORCO’s manager of crew personnel, and is
located at Cincinnati, along with a ORCO’s personnel depart-
ment, where all hiring is done.
Huntington, West Virginia, is the central point of ORCO’s
boat operations; and Ohio River Terminals Company, an af-
filiated terminal company is located there, as is the office of
Ray Thornton, ORCO’s port (shoreside) captain. Thornton
reports directly to Noble; and ORCO’s captains report on op-
erations to Thornton. David Brown is currently training di-
rector at a Paducah, Kentucky training facility used by Em-
ployer for certain screening of job applicants, or candidates
for employment.
Jim Bowen is a district director of the Union, and Bud
Ward is a staff representative of Steelworkers. Ward was in-
volved in negotiations with ORCO. Employed as a watch-
man, David F. Pauley is vice president of Local 1426, and
a member of the Local’s negotiation and grievance com-
mittee.
3. Contract coverages
Both 1986–1989 and 1989–1992 contracts have the same
recognition clause:
The Company recognizes the Union as the sole collec-
tive bargaining agency for all employees of the Com-
pany and operating on the Ohio River and its tribu-
taries, on its boats, but excluding masters, pilots, chief
engineers, and executives.
4. Business operations
ORCO is a division of Midland Enterprises (ME), which
has a number of similar divisions, including sister companies
to ORCO which provide dispersed transportation (towing)
services on the rivers (apparently as far as the Gulf of Mex-
ico, e.g, Red Circle Transport). In any event, one such ME
divisional company, Orgulf Transport (Orgulf) operates 15–
16 boats, and another Chotian Transport operates 8 boats.
Red Circle and some three other divisions of ME individ-
ually operate seven or fewer towboats, respectively.
In the period of the early 1980s through 1987, ORCO ex-
perienced a period of substantial business depression, its op-
eration shrinking from an operation of 16 boats to 6. During
this same period, ORCO was involved in no hiring at the
deck level. In 1987–1988 business began turning around.
ORCO presently operates seven 4000 horse power, twin en-
gine towboats, each of which is capable of hauling 15 barges
and approximately 22,000 tons of product at a time. In mid-
1988, ORCO began hiring employees again at the deck level.
Other ME divisions experiencing similar upturn in business
had begun their hiring process even earlier.
a. The Paducah, Kentucky facility
In regard to the required deck hiring due to business up-
turn, since sometime in 1987, ME divisions have used a
training facility that is operated at Paducah, Kentucky, where
many of the rivers that ME operates on come together.
(There is also a central supply warehouse company located
at Paducah, Kentucky, that services boat supply needs of all
divisions of ME, including ORCO.)
The Paducah training facility (Paducah facility) has been
used by all divisions of ME in a basic orientation program
conducted there for evaluation of job applicants prior to their
hire. The Paducah facility’s geographically central location
has minimized the effort of getting people to a single loca-
tion for the screening and hiring process conducted there,
one that has materially newly involved mates.
ME divisions are geographically spread out. Certain of the
divisional companies have union contracts, e.g., Orgulf and
Red Circle. Mates apparently came out of those bargaining
units as supervisors just before Frasher was hired (1984).
The record does not reveal whether those units were cer-
tified. In any event, they are not involved in this proceeding.
The screening and hiring program conducted at the Padu-
cah facility appears to have been an outgrowth of a hiring
function (plan) for ME divisions overall. In any event,
Frasher testified that hiring needs of all divisions are handled
there; and, the orientation program conducted there was ap-
proved by Ferguson. (Ferguson did not testify in this pro-
ceeding.) Screening of job applicants by several divisional
companies have taken place there contemporaneously.
Frasher, though employed by Employer, has certain re-
sponsibilities in other divisions, including responsibility over
the personnel of affiliated companies. Though Frasher’s re-
sponsibility arises only when an employee boards a vessel
for an actual tour of duty, Frasher was involved in the plan-
ning of the orientation program. However, Frasher was not
fully versed in certain later developments in the particulars
of the program conducted there.
b. Tours, boat complement, and watches
ORCO’s towboat employees basically work 30 days on,
and then they have 30 days off, though a given tour, or trip
may extend to 35 days. In general, the employees are fre-
quently away from home; and the work is physically de-
manding. Since at least prior to 1984, ORCO’s towboat com-
plement has been 10. (Any earlier reductions in towboat
complement as indicated of record are immaterial to the reso-
lution of the instant issues.) ORCO’s boat complement mate-
rially consists of the master (captain), a pilot, a chief engi-
neer, assistant (relief) engineer, a cook, and five individuals
working in a deck department, namely, a mate, watchman,
and three deckhands (including one deckman identified as
swingman).
c. Forward and after watches
Unit (and nonunit) employees regularly work 12 hours a
day, but they do so on alternating 6-hour watches (i.e., two
shifts of 6 hours on, and 6 hours off), identified as (alter-
nating) forward and after watches. Those on forward watch
work their first forward watch between 6 a.m. to 12 noon,
and (after 6 hours off) work their second forward watch from
6 p.m. to 2 midnight. After watch in turn first works 12 mid-
699OHIO RIVER CO.
night to 6 a.m., and a second after watch from 12 noon to
6 p.m.
Essentially, normally working a 6–12 forward watch is the
captain, chief engineer, a watchman, and two deckhands, one
of whom is the swingman. Normally working a 12 noon to
6 p.m. after watch is the pilot, relief engineer, the mate, an
one deckhand. The cook works no particular shift.
5. Duties of employees
a. The captain and the pilot
The captain has overall responsibility for the boat, its com-
plement, and its operations, including the towboat’s sea-
worthiness, navigation, and security from damage and/or
wreck. The captain is the master of the vessel, and is so clas-
sified. The captain has responsibility for and authority over
everyone who is working on the boat. The captain receives
his orders only from above, and reports most directly to the
port captain.
The captain, and the pilot, who are both supervisors, and
who operate and steer the boat on the alternating forward and
after watches, respectively, are required to be licensed under
Coast Guard regulations. The mate, next in unquestioned
deck line, but contested as in deck line management, is not.
While on their separate watch, the captain, and the pilot
are restricted to the wheelhouse. Nonetheless, the captain ad-
ditionally has management oversight of the deck department.
To the extent certain of Frasher’s testimony would contrarily
indicate that the mate has management responsibility for the
deck, and the captain for everything else, weight of credible
evidence is to the contrary, and the exaggeration is not cred-
ited. The captain is concerned with all tow configurations.
The captain’s limited disciplinary authority
According, to Frasher a captain has the authority to dis-
charge employees. There is some confusion in the evidence
submitted on the captain’s authority to discharge employees
(directly). The current contract appears to provide that an
employee will be first suspended, and not immediately dis-
charged, in order to enable certain applicable provisions of
the grievance and arbitration procedure to be applied, if the
involved employee desires it (G.C. Exh. 8, p. 14).
Sam Murphy has been an ORCO mate for more than 10
years. Murphy achieved mate status with 18 years of prior
deckhand experience. Thus, Murphy was employed as a
deckhand initially in 1960, and worked as such thereafter for
12 years before being promoted to watchman in 1972. Mur-
phy then worked in the watchman classification for another
6 years before he was promoted to the mate classification in
1978. Effectively, Murphy has over 28 years of experience
in ORCO operations.
Called as a witness by Respondent Employer, Murphy
confirmed that captain does not have the authority to imme-
diately, or directly hire or fire, nor to layoff or recall em-
ployees. Detailed provisions governing the layoff and recall
of employees are also contained in the contract. The captain
has authority to discipline, including to (at least) effectively
recommend discharge of employees, but clearly not to lay
off.
Employer has a drug and alcohol policy that covers in de-
tail the handling of a situation of a drunk (or otherwise inca-
pacitated) person on the boat. Under that policy, the person
is first to be confined for their own safety. In due course,
shoreside support is called; and the person is either taken to
a hospital, or driven home.
Drug and alcohol incidents are brought to Frasher’s atten-
tion (as are acts of employee insubordination). Under
ORCO’s above drug and alcohol policy, the captain may
(only) suspend an employee who is drunk pending final in-
vestigation, though if there are no other factors, a termination
results. Frasher’s assertions that in related circumstances the
mate could tell the captain to take the boat to the nearest
landing and that he was going to throw the man off the boat
notwithstanding, the above policy governed the procedure in-
volved in the handling of drug and alcohol related incidents.
Indeed, to go shoreside when the boat was running, either the
captain or the pilot (also a clear supervisor) had to be di-
rectly involved in the navigation of the boat there. Frasher
in the end acknowledged that the mate does not order the
captain (nor I find the pilot) in such a matter, which in any
event is governed by detailed company policy. Although dis-
cipline imposed otherwise does not have to have Frasher’s
approval, he has general of oversight of all discipline.
Murphy confirmed that a captain can recommend a sus-
pension to the manager of crew personnel (at Cincinnati).
Murphy recounted similar limitation existed even on the cap-
tain’s imposition of lesser disciplines. Thus, according to
Murphy, while the captain can also write up a written warn-
ing to an employee, the captain does not give the written
warning directly to an employee, but sends it to personnel
(to port captain and/or the manager of crew personnel) who
will review it, and determine if it is to issue. (The mate’s
contended disciplinary authority is more conveniently dis-
cussed and compared late.)
Any indication of record to the contrary notwithstanding,
the captain under the contract does have authority to discuss
and adjust an employee’s complaint or other matter brought
to him for adjustment. (A mate does not.) If the matter can-
not be adjusted satisfactorily in that manner, the matter may
be then treated as a grievance in accordance with the con-
tract’s article 11 grievance and arbitration procedures.
b. Engineers
Frasher recounts that the chief engineer (also a previously
stipulated supervisor, along with the assistant or relief engi-
neer), can not hire and fire, and is primarily a technician.
The chief engineer receives all his assignments directly at the
ship through faxes sent from ORCO’s Cincinnati head-
quarters. The chief (and assistant’s) engineer’s responsibil-
ities are (essentially) limited to the engineroom, and mechan-
ical functions; and, their work has nothing to do with deck
duties, or the mate.
c. The cook
The cook is responsible for meal preparations for the
boat’s complement (and visitors), and reports directly to the
captain. The mate also has no responsibility for the super-
vision of the cook.
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
d. The deck crew
(1) Mate
In general, in the inland river industry, deckhand skill is
learned mainly through work experience on boats, not
through schooling. Mates, having worked their way up over
many years, are very experienced at deck work, which many
respects, at the one time, is both physically demanding and
can require use of considerable skill. It appears as
uncontested that to be a mate you have to have previously
demonstrated certain skills generally obtained as a result of
years of experience at the trade. In material times, ORCO
employed 15–16 mates, though, at time of hearing, ORCO
employed 14 mates, one having recently retired, and one re-
turned to deckhand status, for unstated reason.
Murphy recounted generally that as a mate he is in charge
of the deck force. Murphy thus related that he regularly di-
rects and assigns duties to the watchman and deckhands
(though he has also acknowledged that he has done so for
years). According to Murphy, a mate will regularly assign
the watchman and/or deckhands various duties related to see-
ing to it that the barges are checked for water; that the barge
gunnels (sidewalks) are clean and free of obstacles; that run-
ning lights are in their proper place, and working; and that
lock and various other type lines and other equipment (e.g.,
rigging, ratchets, wires, straps, planks, and etc.) are main-
tained in ready and working order.
(2) Watchman, deckhands, and including swingman
At least in certain other substantial part, deckhand work as
well as watchman work, is skilled work. However, not every
deckhand will necessarily have the ability to become a
watchman. Murphy confirmed that to be promoted to a
watchman, the individual deckhand employee must have over
the years displayed seamanship, navigation, an ability to
work with others, a lot of common sense and teaching skills.
Prior to July 1, under the expired contract, progression in
the deck department was on the basis of seniority from deck-
hand, to watchman, to mate; though promotion was by se-
niority and demonstrated fitness during a probationary pe-
riod. The expired agreement thus provided (G.C. Exh. 5, p.
(4)):
4. Seniority shall be applicable according to the fol-
lowing procedures and qualifications:
(a) Promotions shall be on the basis of department
seniority within the unit, provided an employee pos-
sesses the qualifications for the job.
(b) Progression in the deck department shall be:
1. Deckhand to Watchman to Mate from any classi-
fication, providing always that seniority shall be the
deciding factor;
David F. Pauley has been employed by ORCO for 16
years, currently as a watchman, and within the last year
twice as a temporary mate, for a 3-day period each time.
Pauley confirmed in regard to promotion, that seniority alone
is not enough; you have to show you can do the job during
a subsequent probationary period. The current agreement pro-
vides for the same, except a reference to mate no longer ap-
pears in deck department progression (G.C. Exh. 8, pp. 3–
4).
In general, the watchman and two deckhands on forward
watch (as the mate and the one deckhand on after watch)
continue to do the same basic work below of tieing up, lash-
ing, and pumping of the barges, and maintenance of equip-
ment, and lines when the boat is running. However, one of
the two deckhands on forward watch is designated a
swingman, to whom certain jobs are also normally assigned
when the towboat is engaged in more difficult tasks of land-
ing, or double locking, as discussed next.
(a) Locking
At certain locations along the river, ORCO’s towboat and
barges in tow must pass through locks. The locks are of dif-
ferent sizes. In a single lock, the entire boat and its barges
in tow may pass through the lock at one time. Effectively
boat personnel do not have to dismantle the tow. When it is
otherwise, as in a so-called double lock, passage through the
lock is by partial tow; and it is a lot more complicated, and
requires additional manpower.
It appears that each barge is 195 feet long. In any event,
in the instance of a tow with 9 barges, the tow is well over
a 1000 feet long. If the lock to be passed through is 600 feet,
only three barges will be able to initially enter into the lock’s
chamber. A work force of three deckhands is required. The
captain (or pilot) steers the boat and tow into the lock, and
(essentially) a forward watch regular combination of a
watchman and two deckhands, or a special after watch of
mate and two deckhands (one of whom is normally the
swingman), must break the appropriate barge couplings to
disconnect the three barges, so the boat may then back out
with the six remaining barges, thus effectively leaving three
barges in the lock for initial passage. The three barges left
in the lock chamber are then pulled out of the lock by cable
on a winch; and the procedure is repeated as necessary.
A third man is thus required in double locking, and the
swingman is normally used for that purpose, whether the
double locking is to be on the swingman’s normal forward
watch, or is to be made on an after watch, and the swingman
must work (usually additionally) on that watch.
(b) Landing
The boat may land the tow in a pickup and/or delivery of
barges all up and down the river. Normally a third man is
not required for a pickup of single barge. However, for a
landing to pickup barges, or to deliver a barge(s), a three-
man work force is required, again normally involving the
swingman, either on his own regular forward watch, or re-
quiring him to work in some manner on the afterwatch. (Cer-
tain barge pumping may also require a third man; and the
swingman may also be used for that purpose.)
As might be expected, normally both a double locking or
landing on after watch will involve overtime for the
swingman. The swingman position is not necessarily a desir-
able assignment on that account. Locking and landing may
occur on alternating watches.
Frequently deckhands do not leave a boat (end a tour) at
the same time. Ordinarily a relieving deckhand will take the
watch of the deckhand being relieved. Apparently otherwise,
at least in the past, on arrival of the deckhands on board, the
701OHIO RIVER CO.
captain would assign deckhands (other than the swingman) to
their watches. By contract terms, the swingman deckhand po-
sition is subject to bid on the basis of seniority, with provi-
sion effectively made that if there is no bid on it, the least
senior deckhand has to take the swingman position. In the
case of dispatch of a probationary deckhand employee to a
towboat, the probationary employee (absent bid of more sen-
ior employee), under the contract’s terms, would be assigned
to the swingman position.
When the towboat is locking or landing on after watch
particularly additional help is required. In that instance, cer-
tain varying watch assignments may be assigned the ‘‘Swing
Man’’ as provided for in the agreement. Thus the current
agreement (G.C. Exh. 8, sec. 9(b), p. 11) provides relatedly,
and pertinently:
(b) The ‘‘Swing Man’’ position shall be offered in
[sic, but in context on] the basis of seniority, and shall
be assigned to the least senior Deckhand if no other
Deckhand selects this position. The working hours for
the ‘‘Swing Man’’ will normally be twelve (12) hours
divided into two (2) watches of six (6) hours each from
6:00 a.m. to 12:00 noon and from 6:00 p.m. to mid-
night. This designated twelve (12) hour period may be
varied at the discretion of the captain to meet locking
and dock conditions. Such varied work periods may be
to an earlier or late start time or to a straight twelve
(12) hour watch. Work in excess of twelve (12) con-
secutive hours regardless of whether such hours are
worked during one or more days will be compensated
at double time and one-half. No more than sixteen (16)
hours work will be required in any twenty-four (24)
hour period and a rest period will be minimum of eight
(8) hours. If such eight (8) hour rest period is not grant-
ed, the ‘‘Swing Man’’ will receive overtime payments
for those hours worked in excess of sixteen (16) hours
and also be given compensated time off for an equiva-
lent period after completion of the subsequent eight (8)
hour rest period. An off duty crew member may be
called out at the overtime rate if assistance is needed
during the ‘‘Swing Mans’’ [sic] rest period. [Emphasis
added.]
While it is the responsibility of the mate to see to it that
all deck work is done properly, much of the work is basi-
cally routine work to watchman, and experienced deckhands.
Thus, the mate continues primarily to routinely direct the
watchman and deckhands (as may the watchman routinely di-
rect the deckhand) as to what he wants done, along with
doing the very same work himself.
E.g., cleaning barge gunnels is basically physical work
(shoveling) and is routinely performed by mate, watchman
and all deckhands. Thus, the established practice is that on
first watch out of a landing, though only to be done in day-
light hours, forward watch crew routinely cleans port gun-
nels, and after watch crew cleans starboard gunnels. Nor-
mally the watchman and experienced deckhands will know
what to do in this, and other such routine tasks.
All three will thus regularly check the boat’s running
lights; pump water (when required) from a barge; ensure the
security of all barge couplings tightening them as required;
and ensure that the appropriate lines are in place for any up-
coming locking (or landing); and, all perform routine sea-
sonal maintenance (e.g., chipping, scraping and painting). It
is similarly the responsibility of the captain, the mate, and
the watchman, but also of the deckhands (with the experi-
ence to do so), to make sure that the barge(s) is (are) prop-
erly fastened at a landing in a safe manner.
In the case of a new deckhand who has limited experience,
it is the mate’s responsibility to train the new deckhand to
do the work in a correct manner. According to Murphy the
captain will hold the mate responsible, if he has not. The
mate may give instruction to a watchman in regard to the
training of a new deckhand. An experienced deckhand may
also help train a new deckhand, by direction of the mate (or
watchman), or on his own.
6. The mates
The prior mate dispute and late inclusion
Inclusion of ‘‘mates’’ in the bargaining unit was an issue
first disputed in 1962. While in agreement with the parties
in excluding masters, pilots, chief engineers, and assistant en-
gineers as supervisors, the material facts were then perti-
nently concluded on disputed categories in the Decision and
Direction of Election (DDE) dated March 29, 1962, as fol-
lows:
The record reveals that the mates and watchmen are the
leaders of the deckhands and as such they direct these
employees in the work of tieing up, lashing, and pump-
ing of the barges, and in maintaining the equipment.
The mates and watchmen spend approximately 100 per
cent of their working time in the actual performance of
the same duties as the deckhands. The duties of the
mates and watchmen are the same, except the watch-
men have the additional duties of keeping track of the
broken rigging, pumps and equipment, which involves
some paper work. The record reveals that neither the
mates and watchmen have any authority to hire, fire, re-
call, discipline, or to effectively recommend such ac-
tion. Because of longer years of employment and great-
er experience, the mates and watchmen routinely assign
work but do not responsibly direct the employees by
the use of independent judgment. Accordingly, I find
that the mates and watchmen are not supervisors within
the meaning of the Act and I, therefore, include them
in the unit found appropriate herein. [See Proctor-Silex
Corp., 131 NLRB 57 (1961).]
7. The contended changes in mates’ duties, developing
assignments, and related events
a. The Paducah screening and hiring process
Frasher related that mates from all divisions are now in-
volved in the application, screening, and hiring process at the
Paducah facility. In that regard, Frasher has related that
ORCO enhanced the duties and responsibilities of ORCO’s
mates, by injecting the mates into its hiring procedure, to the
point they (mates) now approve the hiring of employees, in
that the mates now first select the candidates for hire; and
later, through evaluation of probationary employees, the
mates (essentially) determine employees to whom ORCO of-
fers permanent employment.
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Broadly viewed, the (new) role of the mate in the Paducah
facility’s part in ORCO’s hiring process was to evaluate an
applicant for employment as deckhand, who usually was
without any river experience. The initial assessment was
made on the applicant’s: general deckhand attitude; ability to
learn quickly; and to demonstrate (deckhand) skills in a nat-
ural way; or in a way that would indicate the individual
could be trained (in them) further. The mate also became
more formally involved in a later evaluation of probationary
deckhands.
The training of new, or probationary employees occurred
later on the boat. The mate was made more formally in-
volved in that training function, which expectantly involved
training corrections. However, in contrast, the mates are now
also contended to be authorized to engage in discipline of
deckhand with exercise of independent judgment, though
such mate discipline authority is a contention advanced with
little or no evidence offered to support the exercise of it.
Though Frasher has asserted that the captain is not signa-
tory to either a mate’s (newly) assigned authority to evaluate,
and discipline deck department employees, subjects to be dis-
cussed further below, Frasher in that respect has otherwise
acknowledged that he (Frasher) had limited knowledge about
the mate’s use of written documents in ORCO’s screening
candidates for hire. In that regard, a formal hiring evaluation
form to be filled out by the mates did not come into use until
February, though ORCO mates had begun taking part in the
screening and hiring process at the Paducah facility much
earlier, starting in July 1988.
In contrast, the mate’s probationary deckhand evaluations
written in September 1988, and (essentially) up until Sep-
tember 1989, far more often than not had the captain’s signa-
ture along with the mate’s (as well as an occasional watch-
man’s) signature. The deckhand evaluation form that was
used by mates for probationary employees starting in Sep-
tember 1988 and that was in use until September 9, 1989,
was an evaluation form described as in prior use by the cap-
tain for regular deckhands. Seemingly, it even then had pro-
vided a place for a mate’s signature. In contrast, the form
placed in use on September 9, 1989, and thereafter made
provision for an immediate supervisor’s (in lieu of mates)
signature.
b. The March 1988 meeting with mates
In March 1988, Employer held a meeting with all of its
mates at Huntington, West Virginia. Frasher relates that Em-
ployer discussed (generally) at that time the role that ORCO
wanted its mates to thereafter play in its (deckhand) hiring
procedure. According to Frasher’s uncorroborated assertion,
from the time of that first meeting when ORCO introduced
its mates to the orientation concept, ORCO told the mates
that as far as ORCO was concerned, the mates were then su-
pervisors.
All prior expired agreements have traditionally covered
‘‘mates.’’ E.g., there is no question from the face of the
1986–1989 contract in evidence and employer-related con-
cessions, that mates were covered by that collective-bar-
gaining agreement through its expiration on June 30. Indeed,
Employer never (formally) disputed with the Union that
mates were part of the recognized unit, until March (1989),
when Ferguson first notified the Union that it would termi-
nate the existing agreement, and that ORCO would not any
longer bargain for mates who were now (contended) super-
visors, discussed further below. (Murphy confirmed that the
first time that he became aware that the company actually
wanted to eliminate the mate classification from the collec-
tive-bargaining agreement was Ferguson’s letter of March 5.)
Frasher otherwise asserted that after the March 1988 meet-
ing, the mate had the responsibility and authority for the hir-
ing of new employees. Frasher also said, and I conclude and
find he more accurately then recounted, we told them of the
deckhand orientation program; that thereafter they were to go
to the Paducah facility, on a selected basis, and participate
in the screening of deckhand applicants; and the mates were
also told they would be expected to evaluate probationary
employees for permanent employment.
According to Frasher, prior to this, the mates had had no
authority or responsibility in these areas, but after the March
1988 meetings, the mates had both responsibility and author-
ity for the hiring of new deck employees. But Murphy has
recalled that the first time that he evaluated a probationary
employee was 10 years ago; and though he had not done so
again in the interim, Murphy also testified, perhaps even the
more revealingly in regard to the captain’s reliance on the
mate (and watchman), that the captain had thereafter made
out the evaluations of probationary employees, but after re-
ceiving an input from both the mate and watchman on the
employee.
Frasher also related that they had discussed other manage-
ment type topics with the mates in the March 1988 meeting.
The agenda of the meetings held separately with the mates
at Huntington, West Virginia, in March 1988 is in evidence.
The agenda reflects only that there was: (1) a 45-minute talk
by Frasher on safety, operating problems, the (above) subject
of new employees hired, and ORCO’s operating priorities.
(Frasher summarized ORCO priorities were established at
that time, namely: in personal safety; equipment safety; oper-
ating efficiency; and administrative paper handling respon-
sibilities.) There was also: (2) a 45-minute discussion by
Noble on safety programs (including the establishment of a
formal monthly safety program); and (3) a 45-minute deck-
hand orientation program presentment by Reigle. (Neither
Noble or Reigle have testified in this proceeding.)
Frasher described ORCO’s deckhand orientation program
presented by Riegel as encompassing a video presentment of
what they were telling applicants for employment were the
roles the mates were playing. According to Frasher, Riegel
explained the mate’s role, which was to explain to the can-
didates what would be expected of them in terms of hard
work and skills; to see if the candidates would catch on; and,
to assess the candidates physical skills, and general attitude
toward deckhand work and the Company. (The video pre-
sentment itself however, was not produced in evidence.)
There was otherwise (4) a 45-minute EEO program (review
of the law) presented by Ferguson; and (5) a 90-minute gen-
eral panel discussion. A copy of the agenda was given to the
mates, put was not provided to the Union.
Frasher has acknowledged that Employer at the time was
looking at its present and future needs, thus testifying, we
knew opportunities for promotion were going to develop in
our division with many management people retiring, e.g.,
captains and pilots, and even mates. When hiring need accel-
erated, ORCO also recognized that it was important to up-
grade the training skills of its mates. But mate training of
703OHIO RIVER CO.
new employees is not something that was itself new. There
is normally a 15–20-percent employment turnover.
c. A port captain established
In May 1988, ORCO promoted Captain Ray Thornton to
be a port (shoreside) captain, with assigned responsibility to
assist the captains and mates in the educational and training
processes of what ORCO was trying to accomplish. The boat
captains thereafter regularly reported to Thornton, who is lo-
cated at Huntington, West Virginia, which is the center of
ORCO’s river operations.
According to Thornton the captains had complained in the
past at masters meetings of being overwhelmed with in-
creased Federal laws requiring close supervision of the crew,
as in ensuring conformance with pollution control laws and
other type paper work. Thornton asserts that he took his job
of port captain with Employer’s general understanding that
Thornton was going to seek to transfer some of the captains’
duties to the mates.
On promotion, Thornton visited all the captains and mates
in an initial 45-day period, asking the captains what he could
do to help them the most; and where they felt they could use
some help first. Thornton relates that there were already (be-
fore 1988) about four or five mates who had taken over
some of the responsibility for their captains, but quite a few
more mates had told the captain it was not their job. Later
that year, in July, selected ORCO mates (apparently) on
Thornton’s recommendations of being well qualified to do
so, went to the Paducah facility and participated in the
screening and hiring process, in the manner to be next de-
scribed. From the start, Murphy was a principal participant,
as is also made clear below.
d. ORCO mates’ participation in the screening and
hiring process in July 1988
Every applicant or candidate for employment by ORCO
goes through a several step screening process. The screening
process begins with the prospective candidate’s submission
of a written application to ORCO’s personnel department, in
Cincinnati, Ohio. A company recruiter (previously Pam
Pellegrini, and now Terry Yother) in the personnel depart-
ment next reviews and contacts all the applicant’s submitted
references; and, the recruiter then conducts an interview of
the applicant.
The candidate must next successfully complete a medical
examination, including a drug screening test. Before being
actually hired, the applicant is then required to successfully
complete the 2-1/2-day orientation program that is conducted
for all candidates for employment at the Employer’s training
facility at Paducah, Kentucky. Finally, the employee must
successfully complete 60-day probationary period of employ-
ment to obtain permanent employment with ORCO.
At the Paducah facility, there have been 9 and 10 such ori-
entation classes held in the past 2 years, respectively, but not
exclusively for ORCO. The roles of the mates in other divi-
sions were identical with the roles of ORCO mates. The first
deckhand class involving (in part) ORCO mates and appli-
cants for ORCO employment occurred in July 1988.
Several days prior to an orientation class, the recruiter
gives a list of candidates to Brown. In general, a very small
percentage of candidates for employment will have had any
river experience. In the orientation and evaluation phase,
prior to initial hiring, a group of 2–6 candidates are assigned
to a mate, and the mate essentially shows the candidates the
kind of work that will be expected of them.
The mates, who are to participate in the screening process,
have a training session of their own before each orientation
class. At that time they are given detailed instructions as to
what they are to do. The candidates are informed at the out-
set of the orientation program that the mate will be evalu-
ating them for employment.
To the extent Frasher has testified that the mates did not
evaluate candidates for employment in writing, he is correct
in his understanding only through February (1989). Training
director Brown testified (and I find that it has been so at
least since February 8, 1989, when the form first came into
use), that the mates are told they have the responsibility to
make the initial hire decision fairly and justly by use of a
provided candidate evaluation form. Frasher testified signifi-
cantly otherwise, at least as to the initial period of mate par-
ticipation in the orientation program and evaluation of can-
didates for employment, that the (involved ORCO) mates
conveyed their assessment of candidates to each other; that
one mate could have another mate check to see if that mate
saw what the first mate saw; and Brown testified both
credibly and revealingly otherwise that though Brown does
train a mate how to train new deckhands more ably, he does
not train a mate how to evaluate a candidate. Frasher as sig-
nificantly acknowledged (however reluctantly) that a portion
of the mates’ experience was used to assess whether to offer
the candidate employment.
On the first day of the candidate’s orientation, there is
some classroom work in boat safety and deckhand basics at
a small table in a large classroom; and, later that day (or the
next) the mate(s) take the candidates out on a (stationary)
boat and/or barge for more hands-on basic orientation. (Some
mates are just responsible for the readiness of the equipment
for appropriate demonstrations.) Starting on the second day,
and lasting through the third, the mates conduct a tour of the
entire boat, and then provide the candidates with additional
on-the-job demonstration (e.g., with lines), hands-on training
and opportunity for emulation, with gravitation then to a visit
of a barge tow line across the river, for observation of basic
deckhand performances on a running towboat operation.
Although Frasher stressed that the mates’ participation
with applicants at the Paducah facility was not a training pro-
gram but rather (in context, and I find) a continuation in the
applicant screening process in the Employer’s employment
program, there is some limited hands-on training that does
take place. The hands-on training is then functionally ob-
served by the mate both in regard to initial assessment of the
applicant’s demonstrated ability to follow instructions and do
the deckhand work, with indications also being observed of
trainability and attitude as well as physical dexterity and
strength in doing deckhand required tasks. On hire, the suc-
cessful candidates are dispatched to boats as probationary
employees, the first arriving as such on ORCO boats in Au-
gust 1988.
e. Thornton’s letter of August 24, 1988, to captains
and mates
The orientation phase is fairly to be contrasted as involv-
ing minimal training emphasis when compared with the
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
training of probationary employees that occurs on the boat
thereafter. On August 24, 1988, Thornton issued a letter to
captains and mates that summarized: the previous absence of
any hiring over the past 10 years because of the loss of boats
and downsizing of crews in ORCO’s division; the recent re-
versal of those conditions in the addition of another vessel
and hiring of new crew members; the recent discussions he
had with them about problems being experienced in day-to-
day vessel operations; and his intent to address the problems
thereafter through correspondence.
At this time Thornton’s letter urged all the captains, ‘‘to
impress on the mates that they are responsible for managing
Deck Department and reporting to the captain on a daily
basis.’’ Enclosed material covered: on new hires, the mates
responsibility for training new deckhands, with emphasis
placed on safety items, on board orientation, and deckhand
manual study; evaluations, with the captain to initiate them,
the mate to complete the form, consulting with the
‘‘leadman’’ (watchman) when appropriate and notably mate
discussion with the captain to be held before the mate con-
ducted a formal evaluation with the employee, with option of
the captain to attend; and with direction that both the cap-
tain and the mate sign the (probationary) deckhand evalua-
tion form then made available in or use in the evaluation of
probationary employees, as distinguished from candidates for
employment.
The correspondence also covered the mate’s assigned re-
sponsibility in investigating injuries and filling out injury
forms, which Thornton had pushed since hired, because the
mates were, ‘‘more closely associated with some of the area
where injuries may occur,’’ but again (even then) with both
captain and mate asked to sign the injury form. In general
the burden for timely completion of the form fell on the
mate; but the captain remained fully knowledgeable about
the reports that were submitted to crew personnel from the
vessel. In actual practice thereafter, normally the captain
and/or pilot signed the injury forms along with the mate,
though a watchman has also made out an accident report on
an incident on his watch, that was then signed by his supe-
rior, other than a mate. There was no emphasis placed on
mate discipline of deckhands at this time.
During the probationary period, Frasher’s understanding,
and ORCO’s stated existing policy intention was that a pro-
bationary employee would be evaluated at least three times
(once every 20 days), by three different mates. ORCO’s pol-
icy thus anticipated that during an employee’s 60-day proba-
tionary period (which may extend over a 90-day-or-more cal-
endar period) the probationary employee would be dis-
patched to three different vessels, and the probationary deck-
hand thus work under and be evaluated by three different
mates (and captains). However, the required relief and reas-
signment after 20 days, to accomplish the policy of three dif-
ferent mate reviews was (essentially) not provided.
f. The September 1988 meeting
On September 6–7, 1988, the mates attended another meet-
ing at Huntington, West Virginia, at which time they were
given a manual (one revised in February 1989), to assist
them in training the probationary employees on the boat and
to assist them in the evaluation of probationary employees
(revised again in that latter regard in June 1989).
In this meeting, a regular deck and evaluation form (pre-
viously in use by captains in evaluating regular deckhands)
was put on an overhead (projector) and discussed for use by
the mates in their evaluation of the probationary employees.
The form (then) with provision for mate and captain’s signa-
ture, was used as early as September 25, 1988, for about a
year. (On September 9, 1989, the form was changed to pro-
vide for a signature by an ‘‘immediate supervisor’’ in place
of the provision before for a mate’s signature.)
According to Frasher, the preponderance of this meeting’s
time was spent on deckhand training and mate evaluation for
the purpose of the mate’s recommendation on permanent em-
ployment, but notably again delimited, as far as their work-
ing experience, skills, and attitude towards safety. Brown re-
lated that as (then) safety coordinator he was involved in de-
veloping the mates’ training skills so they would be able to
the more effectively implement the on board training of the
new deckhands.
The ‘‘Mate’s Guide to Deckhand Training’’ manual
In September 1988, ORCO (and its divisional) mates were
supplied a ‘‘Mate’s Guide To Deckhand Training’’ manual
that had been developed by ME and/or Brown. Brown can-
didly acknowledged that Employer recognized when it began
to accelerate hiring because of need, that it was important to
upgrade the skills of its mates in training the new deckhands,
who generally had limited, if any river experience. The
manual’s purpose was to serve as an overall guide; to estab-
lish training responsibilities; to plot out a plan for training
the deckhands; to improve supervisory training skills; and to
ensure consistency in deckhand training.
The manual covers various training aspects of, and pro-
vides breakdowns of the particular deckhand job in detail,
e.g., with directions to show the new employee how to, and
then observe the employee perform particular deck tasks;
with subject coverages provided on desirable orientation pro-
cedures; boat tour direction; skills training; use of ratchets
and manual winches; laying wires; facing boat to tow;
unfacing from tow; exposure to tow equipment; emergency
preparedness; line handling; locking; navigation assistance;
and tow work.
The manual also provided rules for a good (probationary)
evaluation that stressed mate evaluation (again) of skills,
knowledge, and attitude, not personality or appearance; and,
at least at this time, specifically provided for a review (of the
evaluation) with the captain before a mate’s review with the
employee was accomplished.
Brown relates that a copy of the manual was not given to
deckhand, or watchman, though Thornton’s prior letter indi-
cates there was deckhand access to a deckhand manual for
study; and, Frasher’s followup letter that month to mates
stated they could have more copies the ‘‘Mate’s Guide to
Deckhand Training’’ manual, if they needed them.
g. Frasher’s followup September letter to mates
On September 19, 1988, Frasher sent a followup letter to
each mate. In the letter Frasher additionally stressed mate
vessel management in terms of safety and the development
(again), of a well trained, skilled work force:
SAFETY is of first importance in the discharge of duty.
A well trained, skilled workforce is the foundation of
705OHIO RIVER CO.
a safe and efficient operation. You, as a vessel man-
ager, have a responsibility for developing a workforce
. . . .
Notably, Murphy related that at the training sessions he at-
tended they were told that they were going to have additional
duties as a mate; but he was not told at that time that he
would get any additional pay or benefits.
h. Mates evaluation of candidates for employment and
the evaluation of probationary employees
The candidates for employment, at the Paducah facility
may be evaluated by a number of mates, but the frequency
with which that may occur is not made apparent of record.
It is clear that Employer intended successful candidates to be
later evaluated as probationary employees by three different
mate during the deckhand’s probationary period, thus with
intended preliminary review by three separate captains, and
a final review by Thornton, as explicated below.
In times prior, all the management burden had apparently
fallen on the master. Presently, though the captain has no ap-
parent role in the initial hiring process of candidates at the
Paducah facility, on the boat, the captain has retained line
authority over the mate, and responsibility for the boat and
its complement. Notwithstanding any Frasher assertion to the
contrary, I credit Thornton’s August 24, 1988 letter as more
accurately depicting the controlling part the captains were
expected to continue to play at this time.
Though according to Frasher, the captain does not now
necessarily sign an evaluation, whenever one was thereafter
written up, as evidence thereof has been submitted in this
record, the captain almost always did, more in keeping with
Thornton’s direction, including mate initial review of evalua-
tion with the captain. The evaluations are then forwarded to
crew personnel in Cincinnati, who forward a copy to Port
Captain Thornton. More precisely, when Crew Dispatcher
Judy Stroh receives a probationary employee evaluation, she
makes copies, and sends a copy to Thornton, who keeps
them on file, along with any discipline records on the proba-
tionary employees that may be sent to him. No such discipli-
nary record(s) from any mate(s) were submitted in evidence.
Frasher was unaware of any instance where the rec-
ommendation of the mate (seemingly) on initial hire of can-
didates for employment was not followed by crew personnel.
Frasher asserted that the crew personnel (approval) was only
a rubber stamp to the recommendation of the mate. In any
event, Brown has confirmed that result as to initial ire of
candidates for employment.
Although Frasher had limited knowledge about written
documents used in the orientation phase of hiring, at that
point in the screening, initial hire of a candidate for employ-
ment is clearly enough based on the mate’s decision. Brown
corroborated that of 60 applicants reviewed by 9 ORCO
mates since they started involvement in the hiring process in
July 1988, all 47 recommended for initial hire by the mates
have been hired, and all those not recommended for hire
have not been. Moreover, Brown confirmed that now (since
February 28), the mate does fill out a company-developed
written form on it, with a recommendation for hire, or not
(albeit with acknowledgment it was deliberately kept simple.)
Brown is currently the training director at Paducah, with
assigned responsibility to implement, monitor, and maintain
programs to fulfill manning requirements. Previously em-
ployed as safety coordinator since 1985, an as such in the
material period of 1988 through February 1989, Brown had
similar oversight responsibility for the orientation program at
Paducah. Brown testified credibly that the formation of a
candidate evaluation form was completed in February 1989,
and it was used thereafter by the mates. Twenty-three such
forms are in evidence, the earliest being dated February 28
(1989), and the last September 12.
Since February 28, an ORCO mate thus presently rates an
applicant (in writing) as good, fair, or poor in nine employer
designated areas: safety practices; desire to learn; interest/-
questions; follow directions/orders; initiative; coordina-
tion/balance; strength; fitness; and promptness. (Brown testi-
fied the form was designed to be simple.) If in doubt, a mate
may discuss an applicant’s evaluation with the port captain
(if there at the time), or a member of crew personnel, or an-
other mate who is there. (The port captain has only been
there twice. Crew personnel is always there.) If an applicant
does not pass orientation, the applicant is merely informed
that the applicant has not passed all of the criteria, and an
offer of employment is not extended. An applicant assigned
to and evaluated by an ORCO mate, is not necessarily al-
ways employed by ORCO. Indeed on one occasion, a suc-
cessful applicant assigned to an ORCO mate for evaluation
was hired by another division.
Murphy recalled that he participated at the Paducah ori-
entations six times, the first occasion being in July 1988.
Since commencement of ORCO mates’ involvement in the
screening and hiring process in July 1988, Brown testified
credibly that 60 candidates have been processed, and 47 have
been hired as probationary employees.
In comparison, Murphy has evauated 24 (of the 60) appli-
cants, deciding 21 (of 47) candidates should be hired, who
were hired (as probationary employees); and, deciding that 3
(of 13) should not be hired, who were not hired. As also
noted, candidate evaluation forms did not come into use until
February (1989). Only 23 have been submitted in evidence,
of which 6 are Murphy evaluations in May and June. On that
occasion Murphy evaluated four for hire and two not. Both
nonhires were effectively self-washouts for travel and other
reason(s), though a mate has washed out a candidate for
safety attitude reason.
In 1989 only five other mates had participated in written
evaluation of the candidates for employment. However, only
mate Richard Thomas had evaluated candidates in writing
before the March notice to the Union, and he only after Em-
ployer’s earlier February meeting, all on February 28. Thom-
as evaluated four for hire and one not. The only other eval-
uations in 1989 for nonhire were from mate Buddy New-
man’s five evaluations made much later on September 12.
Even there, one was because the candidate did not meet a
physical strength standard; another one was effectively a self-
wash because of an inability to read; and the third had exhib-
ited a know-it-all attitude. In two separate instances (by sepa-
rate mates) a candidate was evaluated for hire though there
was initial notice made by the mate of contrary strength and
health considerations.
Even in the broader period for which there are written
evaluations of probationary employees from September 25,
1988, through September 9, 1989, Thornton received and re-
viewed only 23 deckhand evaluation forms submitted on but
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 deckhands, apparently 17 of which recommended employ-
ment of probationary employees. However, 13 of the 18 em-
ployees were evaluated only once in writing; and five em-
ployees were evaluated twice. In contrast with Employer’s
policy expectation, only 18 of 47 hired were evaluated, and
none of these employees had 3 evaluations.
In contrast with his purported letter of July 18 (1989) as-
serting deck crews were fully aware of the supervisory re-
sponsibilities and authority of their mates, Thornton offered
in explanation at hearing that he is in a training mode with
regard to the mates; that some of the mates don’t follow in-
structions. Thornton otherwise acknowledged that most of the
time it does not happen that they have three evaluations of
the probationary employees; and indeed that the 23 deckhand
evaluations in evidence were all that he had (ever) received.
In the end, Thornton conceded the deckhands on probation
weren’t being evaluated by mates (or captains) as often as
they were supposed to be under the procedure ORCO had
initially established.
Nonetheless, Thornton testified that dispatcher Stroh regu-
larly notifies him whenever a probationary employee is about
to be dispatched out to a boat at a time when the employee
will attain permanent status. Thornton testified that he then
reviews the deckhand evaluation forms that he has on file;
and he notifies Stroh whether permanent employment status
is to be extended or not.
The written evaluations in evidence frequently contained
mate remarks, albeit variously stated, on the one hand, on the
employee’s willingness to listen and/or follow instruction
and/or observation that the employee learns fast; and other-
wise, in frequent explanation of low marks that the proba-
tionary employee has received, that the employee had simply
not been exposed to certain work/duty, and/or all the em-
ployee needed was more time, and/or given time the em-
ployee will make a good deckhand, or a good man for the
Company. However, areas of deficiency also do appear
noted.
Though early and frequent general observation was that in
areas marked low the employee needed to work on and/or
improve in all areas, general remarks ranged from observa-
tion that the employee had no desire to work (though the re-
lated evaluation not to hire was one reversed by Thornton in
this instance), to he needs to take more interest in his job;
to more specific evaluations, but notably in July (1989) and
thereafter, that the employee lays back and its for someone
else to do the job, and the employee would not do a job right
unless you stayed with him completely through the job; to
blunt observation the employee is brand new and does not
know anything about rigging, tow equipment, or line han-
dling; to a more definitive training area observation that the
employee has a little trouble laying wires, etc., and is a little
slow catching on in the shifting and picking up of barges;
to an observation that this man has worked 11 days and his
docking skills (are) that of someone who has been here 6
months; that he will make a good deckhand; and that he
needs to work with a mate that will teach him.
Frasher asserted that the mates have responsibility now to
evaluate the watchmen and regular deckhands. Frasher’s
other varied assertions in regard to bits and pieces of a prior
annual review program existing, and being one that was pur-
portedly reintroduced as a company policy in February, fol-
lowed by continued acknowledgements that there were not
then periodic evaluations going on; and mates were not per-
forming them now, was simply too disjointed and strained
for me to credit. Murphy’s related assertions were hardly any
more convincing.
Murphy has related that he evaluated three individuals
who were not probationary employees at the time; though he
could not then recall their names. The claimed circumstances
were that one deckhand had told Murphy that he was due for
an evaluation (in a program which, at best, Frasher had con-
ceded had fallen into disuse); and, another said that he had
never been evaluated. Murphy simply asserts that he pre-
pared the evaluation, showed it to the captain, who signed
it. Murphy acknowledged that the mates’ evaluation of
watchmen was not discussed in September 1988; and also ac-
knowledged that no one had told him to evaluate the regular
deckhands, let alone the watchmen. I did not at the time, nor
do I now on review of the record find this evidence offering
very convincing; and, I do not credit it.
In contrast, Murphy had written a letter with an evaluation
of a deckhand that he had worked with off and on over a
period of 20 years, recommending the individual for pro-
motion to watchman. The recommendation is in evidence; is
unrefuted, and I credit it (as far as it goes). Moreover, the
individual was later promoted.
However, no other evidence appears presented that any
other mate has ever recommended an individual for pro-
motion; let alone that the recommendations were followed.
Indeed, as noted, the contrary is more indicated since by re-
lated contract term (and apparent practice thereunder), a
deckhand’s promotion to watchman, all things considered, is
to be by seniority, with the promoted employee required to
later demonstrate that the employee can do the job during a
probationary period.
Consideration of Murphy’s (and their mates’) effective
recommendation on selection of candidates for probationary
employment; and on permanent hire of probationary deck-
hands (and Murphy’s above recommendation on promotion)
under the above circumstances presently set aside, and re-
served for analysis below, it is clear enough that final deter-
mination on permanent hire of a probationary employee in
each instance is being presently made by port captain Thorn-
ton.
This is most readily observed on occasion where there is
a conflict in the mate’s evaluation recommendations for per-
manent employment. Thornton has called and discussed a
mate’s earlier evaluation not to hire the probationary em-
ployee to determine the degree that the mate was strongly
against permanent employ of the probationary employee.
However, when the mate thereafter held to his evaluation,
Thornton (effectively) reversed that recommendation, and
followed another recommendation (evaluation) for hire, with
which Thornton more agreed.
Moreover, when there was only one evaluation submitted,
as (at best) there far more frequently was (if there was a
written evaluation on a probationary employee at all), and
when Thornton concluded it was appropriate to do so Thorn-
ton called dispatcher Stroh to determine what other mate (if
any) had also had an opportunity to evaluate the probationary
employee. Thornton explained the reason that he frequently
did not have (even) two mate evaluations was usually be-
cause the second mate had had occasion to view the indi-
vidual at work for only 5–10 days. Wholly apart from failing
707OHIO RIVER CO.
to have the anticipated number of diverse evaluations on a
given probationary employee, the fact is, Employer has re-
ceived evaluations on only 18 of the 47 probationary em-
ployees hired, or less than 40 percent.
In any event, Thornton on his own has called another mate
for additional input into the (his) permanent hire decision. In
further explaining his own actions, Thornton revealingly said
that he feels more comfortable with some mates’ evaluations.
Thornton has thereby effectively confirmed that it is his own
exercise of independent judgment on evaluation forms, such
as have been submitted, that is being brought in to play in
the hiring decision process on extending permanent employ-
ment.
Indeed, Thornton will on his own also contact the per-
sonnel department for any additional input that they may
have on a determination to extend permanent employment.
Thornton testified that he has also contacted captains in such
circumstances, though only once or twice. Thornton has
never contacted a watchman. However, in explaining that
was because Thornton expects the mate to have already en-
tered that (input) based on the watchman as lead senior
deckhand, Thornton has effectively revealed the continued
evaluation input of watchmen based on their experience.
(ORCO’s watchmen have more than a 5-year minimum of
experience, and some considerably more.)
Indeed, Thornton acknowledged that a probationary deck-
hand’s evaluation may be, and has been also signed by a
watchman, at a mate’s request. In that regard, Murphy con-
firmed one such occasion when a captain had disagreed with
one of Murphy’s rating as being too high. Murphy had then
asked for the watchman’s participation. When the watchman
agreed with Murphy, the rating was not changed.
In summary, Thornton has acknowledged that he has ob-
tained information from as many sources as he can, though
he particularly does so when he is letting a probationary em-
ployee go. (At that point the Employer has a substantial
process investment in each probationary employee.) Thornton
knew that there were a couple of the probationary employees
who were fired at the end of the probationary period, though
he could not recall their names.
i. The February (1989) meeting(s)
(1) Job descriptions, authority revisions, and
package material
On February 7–8, eight mates attended another meeting at
Huntington, West Virginia, a meeting attended in past years
by the captains and pilots exclusively. Frasher asserted that
the reason they all got together this time was because of the
confusion in the past about what was said.
Eight mates (those on shoreside attended this meeting be-
fore going back on duty. (The seven mates then on duty later
attended a similar meeting held on February 14–15.) During
this meeting the mates received a packet of information, in-
cluding a mate job description. Thornton informed the mates
that the supplied mate job description was a working docu-
ment; and, the needed the mates input on changes they want-
ed to make. (Prior to this time the mates had had no job de-
scription.)
In the February meeting, Thornton reviewed the master’s
job description in relation to the pilot and the mate. The cap-
tain’s job description was shown on a view graph. The pilot
and the mates had their own job descriptions, with which to
follow. The mate’s job description was changed, effectively
(re)formulated as a result of this meeting. Frasher recounts
it had taken a year to evolve the mate’s job description from
the masters’ input. The mate’s job description as revised was
sent out in early March to all captains to review with em-
ployees. (No copy of either mate job description was ever
provided to the Union.)
Notably, a package of material was handed out to the
mates. The package contained a job description for mates,
which as later revised (in March), covered the responsibilities
of the mates in safety, navigation/seamanship, communica-
tions, and supervision. The package also included an effec-
tive discipline guideline sheet; a conversation (discipline)
record form (of which Union was also not informed).
(a) Supervision
Materially, in regard to supervision the mate’s job descrip-
tion now (as revised in March) provides:
IV. SUPERVISION—METHOD
-New employee orientation
-conduct training (job)
-maintain good employee relations
-participate in deck crew discipline
-participate in deck crew evaluations
-support company policies and procedures
-resolve problems
-assist in selection of deck employees for promotions
and or permanent employment
The mates’ job description, as revised, was sent to the cap-
tains, who, according to Frasher, were instructed to review
it with the crew, and then post it. Frasher did not know if
it was ever posted. Thornton’s cover letter of March 3, re-
quested only, ‘‘Please hold meetings with all your crew, and
read to them the attached job descriptions of the captains, pi-
lots, and mates.’’ (A job description has not been formulated
for a watchman, or regular deckhand.)
The revision differences (other than in supervision above),
essentially were: the mate would henceforth conduct safety
drills, training, and certain inspections (that previously fell
on the captain); the mate was made responsible for comple-
tion of the quarterly vessel inspection worksheet, though
other departments (e.g., pilot house, engineering, cook, etc.)
were still responsible for their own substantial informational
inputs. The mate was otherwise made responsible for timely
completion of the form; and for taking any (safety) remedial
action that might be called for by the activity sheet (e.g.,
showing a materiel absence, or deficiency).
The mate was assigned the responsibility for the initial
conduct of investigations of accidents and injuries. The
mates’ responsibility for accident investigations, was to de-
termine why an accident occurred; and to conclude and rec-
ommend how the accident could be prevented in the future.
As noted, a watchman has also filled out the form, without
mate involvement. These changes were otherwise reasonably
shown of record to be primarily an effect of Frasher’s change
in ORCO’s priorities to safety as being number one; and
Thornton’s desire to lift some of the existing paperwork bur-
den off the captains.
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Conflict in the mate’s alleged new authority: in the
assignment of watches and overtime
Under Navigation, mates were assigned responsibility to
‘‘maintain proper deck watches.’’ Frasher asserts this was
stated in recognition of the mate’s responsibility now for as-
signing people to work where they were needed, including
authorizing work to be done on overtime when needed,
things that normally had fallen on the captain.
As noted, aside from the swingman, previously the captain
had occasion to initially assign deckhands to forward and
after watches. Frasher related that the mate now (also) has
some discretion, as when he may have one to two new em-
ployees on board; and he has to assign the remaining deck
force so he would have a mix of new and experienced deck-
hands to get the job done.
Murphy confirmed that prior to 1988, the captain would
assign a deckhand to a watch, and the mate does so now.
However, Murphy then gave an example and explained it in
terms where the contract’s terms clearly come into play.
Murphy asserts that he has assigned a watch to a deck-
hand. Murphy recalled the occasion as one involving a dou-
ble lock on his watch. On that occasion, the boat had two
new, or green hands, one of whom was on Murphy’s after
watch, and the other (necessarily) the swingman on the for-
ward watch, who normally would have been the third man
to work on the locking. Thus, Murphy would have had the
two new, or green hands working on the locking. Murphy re-
counts that on that occasion he picked the (other) forward
deckhand to make the locks because more experienced (and,
necessarily more senior).
In contrast, on this record a watchman has faced the same
circumstance and asked a captain and mate for the more ex-
perienced deckhand, whenever he had an inexperienced deck-
hand on a double lock. However, the record does not reveal
whether on the occasion(s) that the watchman asked the
mate, the mate had made the change on his own, or asked
the captain and was authorized by the captain to do so. The
mate never told the watchman that he had the authority to
change a watch.
Murphy asserted that deckhands, other than the watchman
(who is always on forward watch) have no seniority (e.g., for
selection of their watch). The seniority rules in the agreement
however, at least in substantial part appear to govern the as-
signment of at least certain watches, and duties. E.g., as
noted above, the swingman position is explicitly governed by
the seniority provisions of the contract. Essentially, the
swingman can be worked on another watch, in order to han-
dle locking and landing phases where more manpower is
needed, only with specific authority of the captain to change
a swingman’s watch in the instance of warranting lock and
dock conditions; and seemingly makes provision for use of
other deckhands only in required swingman rest period. Mur-
phy conceded that the mate cannot change the terms of the
contract.
Although Thornton has testified that he hoped the captain
would give the mate his authority to change the shift of a
swingman, as provided in the contract, Thornton also testi-
fied candidly that in the past, a man coming to the boat
would take the watch of the person he was relieving; and if
held to that, they would have to go by the contract.
Seniority provisions also govern the handling of overtime,
which on this record, is shown normally involved in a lock-
ing. Under the apparent terms of the contract, even with use
of a swingman, overtime must be authorized by the captain.
The contract also required it to be first offered to the senior
qualified employee, though not to exceed 6 hours in a shift.
Murphy’s purported selection of the more experienced (sen-
ior) employee in the above described circumstances was thus
in apparent keeping with the contract’s (only) authorized
captain’s power to change a deckhand’s watch in such cir-
cumstances, whether or not it also as usual (by contract term,
or established routine practice thereunder) involved the cap-
tain’s additional required authorization of overtime to the
most senior deckhand under other provision of the contract.
The captain regularly maintains overtime sheets. On re-
quest, an overtime sheet is supplied by the Company to the
individual employee, usually the swingman (and cook), who
may keep track of his (their) own overtime. However, Mur-
phy confirmed that the employee has to present his overtime
sheet weekly to the captain who authorized it (the overtime);
and it also has to be signed by the captain.
It is clear that an authorizing captain still has to sign off
on all the overtime he has authorized, including that nor-
mally to be expected to arise with locking, and it appears
also reasonably clear under the terms of the contract that
(only) the captain still has the related authority to change a
deckhand’s watch in the above locking conditions. There is
no evidence presented that a mate has ever changed any
other deckhand’s watch in other locking or docking condi-
tions, let alone has done so otherwise.
(c) Authority to direct the work force
Frasher was less forthcoming (and consequently least con-
vincing) in his assertions about the manning of watches.
Frasher asserted that the mate assigns the work to be done
in the forward watch, though Frasher then did not know if
the mate supervised a forward watch double docking; nor did
Frasher even answer directly if a mate normally had no
watchman on his own watch, asserting only generally that
the watchman was where the mate told him to be. Employer
has also asserted that during a tow emergency (e.g., a double
locking under any condition, and a single locking under haz-
ardous conditions) there may be as many as three deckhands
working on a watch. Some of Frasher’s assertions as to man-
ning, and in regard to the mate’s supervision of the watch-
man was simply too strained, if not evasive for me to readily
credit.
Thornton was far more candid in this area. Thornton thus
acknowledged that normally working on forwatch is the cap-
tain, and materially, a deck crew consisting of the watchman
and two deckhands, one of whom is the designated
swingman. Similarly, normally working the afterwatch is the
pilot, and working the deck, a mate and one deckhand.
Thornton also testified more candidly that the watchman was
always on forward watch (with the captain), and the mate
was always on after watch (with the pilot), and either, very
rarely on the other’s watch. The mate and the watchman (I
find) normally fill parallel positions over deckhands. Rare
general alarm conditions that will find the mate and watch-
man on duty on the same watch, and the watchman then
working directly under the mate, do not materially change
that basic fact.
Called in rebuttal by the General Counsel, watchman
David Pauley testified credibly that he gives the same kind
709OHIO RIVER CO.
of instructions to deckhands in landings and lockings as does
the mate; and he testified additionally, that in his experience
there never has been a situation in which the three deckhands
have been assigned to work on the same watch at the same
time.
First, on the basis of the above, and other supportive evi-
dence of record, I am persuaded that the three deckhands as-
signed to a boat are not to be found working on one shift
for a locking, or landing. Far more likely to be the one to
be found working on both shifts is the swingman, as pro-
vided for by the contract.
The watchman will take any lawful directions from the
mate as to what the watchman (and deckhands) is (are) to
do on the forward watch. As the General Counsel’s rebuttal
witness, David Pauley readily acknowledged that the mate
has given him instructions about what he should do on an
upcoming watch, etc., but just as a mate had done in the
past.
In that regard, David Pauley testified specifically that the
nature and type of the instructions given and received had
not changed. Indeed, Pauley testified (without contradiction)
that because of his own experience, he has given the same
type directions to deckhands in both lockings and landings
as have the mates.
According to David Pauley the only difference in their
routine is that the mate orders supplies (below), and he does
not. All of ORCO’s watchmen have at least 5 years of river
experience in their own right, and some are with even older
reliability. I find that watchmen also issue routine directions
to the deckhands, as do the mates to both watchman and
deckhands.
During their respective watches the captain and the pilot
are restricted to the pilot house. The captain however is in
overall charge and otherwise establishes what work is to be
done on the boat. Any of the deck crew will do what the
captain individually tells them to do, from scrubbing the
deck, to cleaning a dirty hold, to beginning seasonal mainte-
nance (e.g., painting a given deck level of the boat). The
mate during after watch, as the watchman during forward
watch, will otherwise routinely go all over the boat and tow,
checking lines and couplings, and checking the barges for
water.
A mate may thus have occasion to assign an oncoming
watchman the task of adding an additional barge rigging as
the mate may deemed required, but either may add a re-
quired coupling; as could, and indeed would be expected of
experienced deckhand.
Mates (understandably) will issue more instructions as to
what is to be done to the less experienced deckhands, espe-
cially those who are recent hires without any river experi-
ence. But so also does the watchman, as would even a more
experienced deckhand be expected to do, in that particular
circumstance.
(d) Vessel management appraisals
According to Frasher, they settled at the February (1989)
meeting how the management of the vessel was to be split
(in the future) between master, pilot, and mate; and he as-
serts it had consummated a year’s workshop in identifying
the responsibilities of the vessel’s managers; and, in assign-
ing them (duties). They also developed an evaluation system
that would measure the managers’ performance.
The system was composed essentially of use of an existing
ME program and form, namely, a performance appraisal pro-
gram list of objectives and certain components; a guideline
for the conflict of a performance appraisal interview; and a
Performance Appraisal for Vessel Management form. (There
was a discussion on performance appraisal by Noble and
Thornton.) The related form, however, was to be used by
others (e.g., a captain or pilot who were meeting there) to
evaluate (at best) a mate, not for any anticipated use by a
mate to evaluate another employee.
(e) Contended management of supplies and inventories
and safety vessel inspection
The mate now does all ordering for the wheelhouse, gal-
ley, engine room, and deck, whereas he had ordered before
only for the deck. Though there is mate-expanded ordering,
the mate does not order engine parts, or do food ordering.
Contrary to Murphy understanding, and perhaps even his
personal practice, Frasher testimony establishes that there are
guidelines standardizing the supply of a boat with stores; and
Employer catalogs to supply inventory. The Employer pro-
vides a Vessel Inventory Management System (VIMS). On
weight of more credible evidence of record, I conclude and
find that a mate’s selection of the amounts of stores and/or
supplies to meet those levels is accomplished by routine
order. Moreover, Murphy acknowledged otherwise that: cor-
porate personnel actually contact suppliers; the mate submits
all receipts to ORCO’s corporate office in Cincinnati for ac-
counting; and, otherwise, there is an individual at the central
warehouse to Paducah from which the mate can get supplies,
or who will make arrangements for any necessary (but
unstocked) supplies.
Murphy also testified that as a mate he now completes a
(quarterly) Vessel Safety Inspection (VSI) form. The VSI
form consists of 183 deck question areas and/or items in a
mate section; 128 such in the engine room section; 14 in the
cook’s section; 7 in the pilot’s section; and 6 in the captains
section. The mate’s responsibility is to see that the report
gets completed. However, the mate primarily is responsible
for the maintenance and update of the first 183 safety
items/areas. He will either make any required deck correction
himself, or assign a task to a watchman, or deckhand to do.
Murphy explained he would take care of the replacement of
a deficient life buoy himself, to ensure it was done. Whether
he otherwise directed a deckhand or a watchman to do an
item, he described as a judgment call, but one made on the
basis of his evaluation of how experienced the deckhand
was. Rebuttal witness David Pauley testified that as a watch-
man he (essentially) could do all the vessel safety inspection
report required; though he also conceded that he didn’t have
assigned responsibility to do it.
(f) Scheduling time off or vacations
Mates have no responsibility or authority in granting time
off, or scheduling vacations. With a normal work schedule
being 30 days on and 30 days off, scheduling of vacations
is simply not a factor in this matter. Grant of time off is han-
dled in a manner that is also prescribed by the contract
and/or practice, and does not involve the mate. Thus, an indi-
vidual desiring time off has to write crew personnel and ex-
plain why the time off is needed. If an individual is shore-
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
side and doesn’t want to take a tour, the individual has to
contact the crew dispatcher (Judy Stroh), whatever is the rea-
son.
Nonetheless, Frasher has considered the mates to be super-
visors, and subject to management responsibilities around the
clock. In essential summary, Frasher viewed the mates as su-
pervisors in being responsible for: (1) the initial hiring of
employees; (2) the mates evaluation of employees during
probationary period; (3) involvement with an assignment of
deckhands to their watch; (4) the (increased) deck training of
deckhands; (5) the mates discipline of the deck crew; and (6)
for the mates authority now to conduct (purported) annual
evaluations of the entire deck crew, including watchman,
deckhand, and swingman.
Frasher’s assertion is that their responsibility of the mates
to now conduct annual reviews of watchmen and deckhands
was put into effect in the February (1989) meeting. The Gen-
eral Counsel essentially contends that much of the new au-
thority purportedly granted mates in February and thereafter
is illusory. In recent years past there hadn’t been any peri-
odic (annual) evaluations. To date, the mates had not con-
ducted any periodic evaluations of the deck crew, except for
Murphy, who asserts he did a few, without being told to do
so.
(g) Discipline
Frasher has oversight responsibility for, and authority to,
review all ORCO discipline. ORCO-imposed discipline
doesn’t need Frasher’s (prior) approval. Nonetheless, certain
discharge circumstances are regularly brought to Frasher’s at-
tention. E.g., a violation of Employer’s alcohol and drug pol-
icy, or an instance of an employee’s (gross) insubordination
would be brought to Fisher’s attention.
The ORCO captain’s disciplinary authority is set forth
above. It need not be repeated here, beyond brief note or
comparison with discipline authority urged as now possessed
by the mates, that the captain’s own disciplinary authority is
limited in the sense of being essentially that of an effective
recommendation, but reviewed and authorized by certain
home office personnel, namely, crew personnel manager
Riegel and/or Port Captain Thornton.
According to Frasher, mates have now been made more
responsible for deck discipline in the direction of the work
force; and, for appropriate counseling where necessary.
Frasher initially asserted that if a mate thinks a man should
be suspended for 10 days, the mate may either use a con-
versation document to recommend it, or he can write a letter
on it.
Frasher at one point asserted that it was not necessary that
the captain of the boat have anything to do with a mate’s
discipline. But Frasher then went on to recount a captain is
made aware of a written counseling when one is submitted
by the mate; and it is the captain’s option at that time to go
along with the mate, or not. Frasher then related that a cap-
tain will investigate a serious situation, which Frasher broad-
ly defined as any mate discipline other than a verbal or writ-
ten reprimand. (No written mate discipline is evidenced here-
in.) In summary, in regard to mate discipline Frasher has tes-
tified in certain respects inconsistently, and at least to that
extent, unconvincingly.
j. Mate counseling
On this record it is apparent that oral counseling was the
prevalent form of mate discipline. Otherwise considered, a
written record of a counseling is the next step in ORCO’s
policy of progressive discipline. In connection with written
counseling, the Employer uses a special form, a conversation
document.
A conversation document may be used to record a very
poor employee performance, or a very exemplary one. Cap-
tains had used conversation documents for a couple of years
before the mates were given a copy of the conversation doc-
ument at the February meeting(s).
A conversation document (written counseling) is to be
submitted to crew personnel (Riegel) and a copy of it is
made and sent by the crew dispatcher to Port Captain Thorn-
ton, who keeps it on file, and who would be involved with
any review and appropriate use later made of it. (The written
information also goes to a master record file, for otherwise
unidentified purpose.)
Brown recalled that on February 8, he discussed perform-
ance appraisal with the vessel managers group; and later
(with Reigle), he took part in a small group discussion with
the mates on supervision. Brown gave the group as an exam-
ple of a mate’s effective discipline in oral counseling, what
is clearly in nature a mate’s training advice, or teaching
warning to a new employee, based on the mate’s experience,
namely, that working with back to the river will occasion the
deckhand’s falling into the river.
Brown gave as an example for a conversation document’s
use, either gross insubordination, or a severe act affecting the
safety of the deckhand, the crew. Brown also asserts that he
told the group that they should consider the seriousness of
the event; and, if a (safety/work) rule violation, they should
consider how many times it was violated; and the employee’s
attitude after a counseling. (Murphy confirmed only that in
the presentment that Brown made on effective discipline on
February 7, Brown had said that depending on severity, they
could verbally counsel, or write to the personnel department.)
Brown initially related that on that occasion he told the
mates that they would have to use their own best judgment
when it was necessary to document any disciplinary actions
they took. However, Brown then later acknowledged that a
mate’s authority to pose whatever disciplinary action that
they deemed best in their judgment was not a matter ad-
dressed in Brown’s training presentment, nor at any that he
has been involved in.
Murphy relates that he has only orally counseled; asserting
that he never had to do the other (written warning). Murphy
recalled that he had counseled employees twice, specifically,
one deckhand who did not get out of bed; and another deck-
hand on a safety matter. Murphy conceded that a watchman
or an experienced deckhand could have done the same thing
on the safety matter and that any employee could bring a
deckhand’s delay in relieving a watch to the attention of the
captain; and revealingly, that a mate would not bring it to
the attention of a captain until it became repetitive. Murphy
acknowledged that he has never filled out a conversation
document.
Brown initially asserted that he had seen conversation doc-
uments made out by mates in the crew dispatcher’s box.
There is no documentary evidence presented that any mate
has ever used a conversation document; and seeming affirm-
711OHIO RIVER CO.
ance from Thornton that none had to date. Brown then also
acknowledged severally: that he doesn’t see the conversation
documents in normal course; that he doesn’t know what hap-
pens to them; that it is actually out of his own area whether
an employee is to be terminated for a conversation docu-
ment; and that he had no knowledge what disciplines were
available under the contract, nor even what triggers dis-
cipline. Brown also did not know the routing of the con-
versation document, asserting that Thornton would.
Thornton could add little in this area. Thornton initially
simply asserted that he was having a hard time getting mates
to fill out a conversation document on a regular basis. Thorn-
ton next asserted that the mates could handle most of it
(deckhand discipline) without a conversation document, and
that he went along with that. In the end Thornton acknowl-
edged that he is not receiving conversation documents (from
mates) in normal course. As noted, not one has been pre-
sented in evidence. Weight of more credible evidence con-
vinces me that no mate had ever used a conversation docu-
ment and I specifically and relatedly find that Brown (at
best) was in error on the occasion of asserting that he saw
mate conversation documents in the crew dispatcher’s box.
As noted at the outset, I conclude and find that oral rep-
rimand was the prevalent form of mate discipline; and that
it was of a type not recorded.
k. Thornton’s letter of March 3, 1989, and conflict on
the publication of the revised mate job description
According to Frasher, in early March, Thornton sent a re-
vised mate job description to each boat captain for his review
with the mate, and for posting on the bulletin board main-
tained on each vessel. Frasher did not personally know if a
revised mate job description was actually posted on any
boat’s bulletin board.
By letter dated March 3, 1989, Thornton sent the revised
job description, with direction that the captain read the
mate’s job description to the crew. Materially, the revised
mate’s job description covered a mate’s responsibility: under
safety, to conduct safety drills, and to conduct the
incident/injury investigations; under navigation, to maintain
proper deck watches; and under communications, to utilize
conversation documents. The mates responsibilities under re-
vised supervision have been considered above under ‘‘IV.
SUPERVISION.’’
David F. Pauley testified credibly that he worked the L.
Fiore towboat on March 3, 1989. Though he could not recall
when he left the boat that month, Pauley relates that at no
meeting in 1989 did a captain or a mate read mate’s job de-
scription; nor did Pauley attend any meeting that year in
which the captain or mate discussed it. Neither did he ever
see one posted; nor is it discussed in any manner in after-
math.
According to Thornton, four captains that he later asked
told him they did read the mate’s job description to the crew.
Called in employer rebuttal Harry D. Chambers, captain of
the L. Fiore, confirmed that he read the mates job description
to the crew the early part of April, at a monthly safety meet-
ing, at which time all the crew but the pilot should have
been present. Chambers also then asserted that Pauley was
present when it was read. Chambers did acknowledge that he
did not post it. No record was offered on Pauley’s dispatch
arrival, or departure. I find Captain Chambers did read the
mates job description as he has recalled, but that he is in
error in recalling Pauley was there when it was read to the
crew, because I credit Pauley he was not.
Murphy testified that he posted it (the mates’ new job de-
scription) on his boat (Robert Tibolt), but Murphy did so
(again) on his own. Company rebuttal witness Captain How-
ard Boggs confirmed that though he didn’t see the letter, he
did see the job description posted on the Tibolt when he
boarded that boat sometime in March-April.
l. Ferguson’s letter March 5, 1989, to the Union
On March 5, Ferguson sent a letter to Ward (copy to
Bowen) notifying Steelworkers Local 14262 (for the first
time) that:
[T]he Company will terminate the current collective
bargaining agreement with your union upon its expira-
tion date, June 30, 1989. Negotiations for a new agree-
ment will cover the Watchman, Deckhands and Cooks.
The Mates are supervisors and, therefore, we will not
be bargaining with respect to them, and they will not
be covered by any new agreement reached.
Ferguson’s letter March 8, 1989, to the mates
On March 8, Ferguson wrote each mate, advising of the
Company’s action and advising the mates they were covered
under the contract through June 30; and telling them that
Employer would met with them and their wives in the near
future to discuss what impact it (the Company’s action)
would have on them.
m. The changes in mates’ wages
As before mates receive a day’s pay for each day on the
vessel. However, by letter dated June 29, ORCO informed
the mates that they would receive a $30-a-day increase; a
(30-percent) trip rate increase; a bonus, with a little larger
percentage than unit employee received; (apparently) one ad-
ditional paid holiday; increased insurances and retirement
over that provided unit employees.
Murphy testified that it was earlier, on May 22, 1989, at
a meeting of all mates with the Company at Huntington, that
he first learned of the additional pay and benefits to be paid
mates as supervisors. Murphy related that the Company at
that time orally gave them a wage and benefit package and
the mates wrote it down. Upon being made Charging Party’s
witness, Murphy acknowledged that on February 24, 1989,
Murphy had earlier notified Union Representative Ward that
he was a supervisor.
Murphy offered in explanation at hearing that he had done
so at the time based on his own personal feelings that he has
had ever since he became mate in 1978, that he was a super-
visor, because he has always had the authority to assign du-
ties to watchmen and deckhands. Whether Murphy has al-
ways personally so considered himself a supervisor, or not,
I conclude and find Murphy notified Union of that claimed
status no doubt (at least partly) as a result of the Employer’s
total presentment made on that status to the mates in the
February meeting that Employer held with its supervisory
masters and pilots, and which the mates had then attended
for the first time. However, in the light of Ferguson’s above
March 8 letter, and in absence of any evidence to the con-
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trary, e.g., testimony of any other mate as to earlier notice,
I credit Murphy that he first learned of the increased pay and
benefits to be paid as a supervisor, as he has recalled, on
May 22.
8. June negotiations for a new contract
Negotiations for a new contract commenced on June 5;
and the parties met thereafter on nine different days (3 days
a week, over 3 successive weeks). On the first day, and at
least three times and once a week thereafter, the Union
(Ward) brought up the mates, and several times tried to ne-
gotiate substantive terms and conditions of employment for
the mates. As many times the Company (Ferguson) took the
position that the mates were (now) supervisors; and ORCO
repeatedly refused to bargain about them. Terms and condi-
tions of employment of mates were not (at least in any part
unconditionally) negotiated. None of the above mate-related
documents were ever presented to the Union during the ne-
gotiations (for Union review). Indeed, the Employer said
they weren’t even going to listen to it (in context, I find, the
Union’s attempts at negotiation of wages and terms and con-
ditions of employment for the mates).
On June 22 the Union and the Company entered a separate
agreement (letter of understanding below) as to how they
would proceed on the mates’ issue and on June 23 signed
a new contract applicable to other unit classifications.
9. The interim union charge and the later
complaint allegation
On June 10, after negotiations had started, and before
entry of the letter of understanding on how they would pro-
ceed, the Union filed the instant charge, alleging, inter alia,
an employer 8(a)(1) and (5) violation, ‘‘2. By refusing to ne-
gotiate on behalf of Employees under the Mates Classifica-
tion in the existing Collective Bargaining Agreement.’’ The
Union continuously thereafter did not accept the Employer’s
exclusion of the mates from the bargaining as supervisors,
but the Union’s continued demands for bargaining on the
mates were repeatedly not agreed to by the Employer be-
cause the Employer as firmly contended the ‘‘mates’’ were
now supervisors; they were not appropriately included in the
unit; and that the Employer was not obligated to bargain for
them under the Act.
The complaint allegation
The complaint issued on July 27, 1989, and alleges spe-
cifically:
Since on or about March 5, 1989, Respondent has
failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of the classification of ‘‘mates,’’ a classification in-
cluded in the unit.
10. The interim negotiations
a. The June 22 letter of understanding
After advising the Company that the unfair labor practice
charge had been filed, and after repeated unsuccessful at-
tempts to bargain for the mates, upon the Employer stead-
fastly maintaining its position on the mates, Ward suggested
to Ferguson that they reach agreement on all other issues and
leave the resolution of the mates issue for resolution in this
unfair labor practice proceeding. Prior to entry of their new
(1989–1992) agreement Ferguson and Ward eventually
agreed to terms of a related letter of mutual understanding
dated June 22, which provides:
This letter sets forth the mutual understanding of the
Union and the Company in regard to the bargaining
unit status of the mates. The Union’s position is that
the Company should continue to recognize the Union as
the representative of the Mates in a unit of Mates,
Watchmen, Deckhands and Clerks. The Company’s po-
sition is that the Mates are supervisors and that the
Union should not be recognized as representatives [sic]
of the Mates. In order to expedite the negotiation of a
renewed contract covering the Watchmen, Deckhands
and Cooks, the parties have agreed that they will not
seek to resolve the legal status of the Mates by negotia-
tion, recognizing that this issue may be more appro-
priately determined by applicable legal proceedings.
The Union has filed a charge [Case 9–CA–26554]
before the NLRB in regard to this issue and reserves
the right to pursue that charge to a final legal ruling.
The Company reserves the right to defend that charge
before the NLRB and the appellate courts.
If the position of the Union is upheld in a final judg-
ment following such legal proceedings as the respective
parties pursue as a result of this charge, the Company
will recognize the Union as a bargaining representative
of the Mates. The Mates will be automatically covered
by the existing contract applicable to Watchmen, Deck-
hands and Cooks, which contract shall continue in full
force and effect. The Company and the Union then will
promptly negotiate, in good faith, the wages and bene-
fits to be applicable to the mates under that contract,
with the understanding that, if those negotiations fail to
produce agreement, the Union will have the right to
strike with respect to those issues (and only those
issues). [Emphasis added.]
The above document appears as initially corrected at Ward
request to include a right to strike as had been previously re-
quired by the Union in the absence of an employer agree-
ment to resolve the issues by arbitration. The content of the
letter of understanding was then reviewed by union counsel,
telephonically, before the parties recorded their agreement to
the letter of understanding by signing the document on June
22.
b. The 1989–1992 contract
On June 23, the parties executed a new 1989–1992 agree-
ment covering all the prior unit employees, excepting mates.
On June 29, the Employer sent each mate a letter stating that
as they knew, effective July 1, the mate was now a manage-
ment employee. The letter set forth their higher pay and ben-
efits, as summarized above, and with notice that overtime
pay ceased as of July 1.
713OHIO RIVER CO.
11. Other postcharge correspondence
Thornton’s July 18 letter to watchmen and deckhands,
re mates’ authority
On July 18, Thornton sent a memo (prepared by Noble
and Thornton), to all watchmen and deckhands in regard to
supervisory authority and responsibility of the mates with
purpose to clarify the responsibility of the mates. It was to
be posted. The memo states: the mate is in charge and has
responsibility to see that the work of the deck crew is per-
formed properly; the mate has the supervisory authority to
carry it out; and, ‘‘The safe, skillful and efficient work of the
deck crew is essential to the proper operation of the vessel.’’
Analysis, Conclusions, and Findings
The 1962 unit determination that first explicitly addressed
the disputed mate classification status and then included
mates in an appropriate unit for collective bargaining, and
the more recent (at least) 1986–1989 collective-bargaining
agreement’s (boat unit) coverage of all mates, make out a
strong prima facie case for the General Counsel that a collec-
tive-bargaining unit that has long included mates remains ap-
propriate; and, that the Union was and is the exclusive col-
lective-bargaining agent of an appropriate unit of employees,
which has included all the employees in a classification of
mates.
The General Counsel further established that since (at
least) on or about March 5, 1989, and thereafter, the Em-
ployer announced its intent to, and has in fact since then
failed and refused to continue to bargain with the Union
about the wages, hours, and other working terms and condi-
tions of employment to be applicable to all of its mates, after
the 1986–1989 agreement expired.
Date aside for the moment, the General Counsel has made
out a very strong prima facie case that by the act of the Em-
ployer’s refusing to recognize and bargain with the Union as
the exclusive collective-bargaining representative of the
‘‘mates’’ classification included in the unit, the Respondent
Employer has thereby engaged in conduct in violation of
Section 8(a)(5) and (1) of the Act, as is specifically alleged
in the complaint.
The Employer has centrally defended that as of March 5,
1989, its mates were supervisors. Frasher has asserted he had
considered the mates supervisors even earlier, from the first
time the Employer told them of their involvement in
ORCO’s orientation phase of screening and hire of job appli-
cants (in March 1988. Be that as it may, I am convinced that
Frasher did not tell the mates, or the Union, at that time that
mates were being made statutory supervisors, but rather he
told the mates only what the Employer wanted the mates to
do to assist in ORCO’s screening and hiring process of pri-
marily new employees with no prior river experience in a pe-
riod of substantial hiring that ORCO was about to enter after
a long period of business depression, and retrenchment.
Frasher has more plausibly related that he viewed the
(ORCO) mates to be supervisors as of March 5, 1989, be-
cause by that time he viewed the mates were responsible for:
the (initial) hire of employees; posthire evaluations (of pro-
bationary employees); (regular) evaluations of deck employ-
ees; direction of the work force; assignment of positions, in
overtime conditions; and deck discipline, including any ap-
propriate counseling where necessary. Fraser also relied on
the assigned responsibility of the mates for: the on-board
training (primarily) of new employees; conduct and mainte-
nance of the Employer’s new (on-board) safety campaign;
performance of accident and injury investigations; and for
their managing of cost control programs (supply ordering).
The Employer thus centrally defended (and the General
Counsel and the Union have in turn centrally disputed), that
as of March 5, 1989, all ORCO’s mates were no longer ap-
propriately to be included in the unit because they were then
contended supervisors within the meaning of the Act. More-
over, the Employer urges that by its letter of March 5, 1989,
to the Union, the Employer had notified the Union of the
fact that its mates were now supervisors. The Employer
urges it has thus lawfully stated that it would not bargain
with the Union about the wages, hours, and working terms
and conditions of employment of its mates in the future, nor
would the mates be covered by any new collective-bar-
gaining agreement that was to be negotiated by the parties
to take effect after the expiration of the (then) current agree-
ment.
Section 2(3) of the Act as amended pertinently provides:
‘‘The term ‘employee’ shall include any employee . . . but
shall not include any individual employed . . . as a super-
visor . . . .’’
Section 2(11) of the Act provides:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, layoff, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
Bargaining patterns and position nomenclature are fre-
quently mixed in this particular industry; and, bargaining unit
combinations of employees, and (separately) of supervisors
proliferate as a result of various negotiation, consensual
agreements, or other determinations. See general discussion,
A. L. Mechling Barge Lines, 197 NLRB 592, 593–594
(1972), overruled in other regard, Power Piping Co., 291
NLRB 494, 497 fn. 11 (1988). Board viewpoint appears un-
disturbed that in the end, whether mates are statutory super-
visors, ‘‘depends upon their actual status at their particular
employer,’’ Mechling Barge, supra, 197 NLRB at 594. The
Employer may continue to rely on the generally meritorious
observation that the Board and the courts have examined the
amount of actual authority that an employer has vested in the
mate, and ruled on a case-by-case basis, cf. NLRB v. North
Arkansas Electric Cooperative, 446 F.2d 602, 608 (1971);
but the Employer may not rely heavily on the title given
them, Masters, Mates & Pilots (Local 28), 136 NLRB 1175,
1191 (1962), enfd. 321 F.2d 376 (D.C. Cir. 1963).
In regard to the Employer’s central defense that the mates
are supervisors, in the light of the General Counsel’s strong
prima facie case that the Employer has ceased bargaining for
the classification of mates, a classification long included in
the unit, and as long covered by various successive collec-
tive-bargaining agreements, the Employer had at least a bur-
den of going forward with the evidence. Thus, as the party
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
urging that supervisory status then existed effectively for an
entire classification of employees, mates, the Employer (at
least) had the initial burden of offering some proof of the su-
pervisory status of all employees who occupy the classifica-
tion of mates that would justify (as ORCO has essentially ar-
gued) its refusal to bargain about the entire classification of
mates because now composed entirely of statutory super-
visors, Soil Engineering Co., 269 NLRB 55 (1984); and, see
and compare Ohio Masonic Home, 295 NLRB 390, 393 fn.
7 (1989). Cf. also Rahco, Inc., 265 NLRB 235, 247 (1982);
Tucson Gas & Electric Co., 241 NLRB 181 (1979).
It is seemingly alternatively to have been urged at hearing
and/or in brief, that the mates were at that time properly ex-
cluded from the unit, if not in certain respects as supervisors,
then as managerial employees who are also excluded from
the coverage of the Act. In any event, to the extent the Em-
ployer’s urged defense is to be viewed as resting on manage-
rial claim, the Employer must also offer some proof to estab-
lish all the mates were managerial employees.
As to any separate managerial contention being urged, em-
ployees are to be excluded as managers only if they ‘‘formu-
late and effectuate management policies by expressing and
making operative the decisions of their employer.’’ NLRB v.
Bell Aerospace Co., 416 U.S. 267, 288–289 (1974); or ‘‘have
discretion in the performance of their jobs independent of
their employer’s established policy.’’ General Dynamics
Corp., 213 NLRB 851, 857–859 (1974). See and compare
generally, observation that the required managerial activity
must be outside the scope of the (there professional) employ-
ee’s duties routinely performed, NLRB v. Yeshiva University,
444 U.S. 672, 690 (1980).
Finally, whether a decision is to be made on supervisory
or managerial issue, weighing the applicable factors involves
a matter of ascertainment of the degree of authority actually
possessed and exercised, cf. NLRB v. North Arkansas Elec-
tric Cooperative, supra. It has been relatedly observed that
no matter how formidable the task, a supervisory authority
only sporadically, or infrequently to be found in a nonsuper-
visor, must be distinguished from a supervisor’s constant
possession of supervisory authority, regardless of the fre-
quency of its use, Kern Council Services, 259 NLRB 817,
818 (1981).
At the outset certain concluding findings on the mates
questioned statutory supervisory authority may be readily de-
termined. It is clear that the mates do not have the authority
to lay off, recall, or transfer employees, nor to effectively
recommend the same, let alone to do so with independent
judgment. Rather, these subject matters are substantially and
procedurally covered in the collective-bargaining agreement.
Neither do the mates have any authority to schedule vaca-
tions of employees, or to otherwise grant unit employees
time off. As noted scheduling of vacations is simply an alien
concept to ORCO’s 30-day-on-and-30-day-off work regimen;
and a unit employee’s securement of desired time off is ef-
fectively governed by terms of the contract and resides in the
determination of others. Under the grievance terms of the
contract(s) in evidence, the mate (as opposed to the master
by specific reference), does not have any authority to adjust
grievances.
The evidence that the Employer would rely on to establish
certain supervisory assignment of work tasks and effective
grant of overtime is limited and confused; and appears con-
trary to the terms of both past and existing contracts, and
more regular established practice thereunder. In general, the
mates’ directions and/or assignment of tasks to watchmen
and deckhands are shown on this record to be in the main,
routine, just as they have similarly been determined to be in
the past.
To be sure, the mates have had some new duties assigned
to them, primarily to take the paper load off the captain.
Consideration of those new duties presently set aside, the
mates’ directions and instructions given to watchmen and
deckhands as in the past are clearly the result of the mates’
greater experience and knowledge of what is to be done, and
traditional leaderman position in laying out the work of the
deck crew on their own, or on an upcoming watch. Limited
evidence of a mate’s possible occasional assignment of a
deckhand to a particular watch on reporting to the boat, in
place of the captain, who still continues to do so, is not per-
suasive of the contrary.
At least half the time, a deckhand on dispatch to a boat
regularly takes the watch of the individual deckhand he is re-
lieving. The past practice that the captain will otherwise as-
sign the watch to two deckhands on arrival at the boat, still
continues at least in some unspecified degree. Mere assertion
that mates are empowered to now assign watches independ-
ently, on close analysis is singularly unpersuasive of the as-
sertion being advanced. With limited proof offered, the de-
gree of indefiniteness of such occurrences then becomes only
the more so with additional consideration that either of the
more senior deckhands have contract right to bid, or not bid
the swingman’s normal forward watch. Thus, the weight of
the more credible evidence has wholly convinced me at in
the main the nature of the mates assignment of duties to deck
crew has remained essentially, as it was heretofore deter-
mined to be, basically that of a skilled leaderman laying rou-
tine deck work out, repetitively.
In locking or landing, a regular work situation may be-
come anything but routine in certain sense. But this obvi-
ously hasn’t been of recent development in the Employer’s
operations conducted up and down the river. To the contrary,
it is clear those conditions have preexisted for years, and per-
sist. The skill and years of experience of ORCO’s mates ac-
count for the mates’ superior position in giving instructions
and directions to watchman and deckhands, just as a watch-
man’s skill and experience level accounts for the watchman’s
issuance of directions to other deckhands, in these and other
difficult and dangerous work environs, and which instruc-
tions, when given, are routinely obeyed by less experienced
deckhands. Issuance of instructions in such circumstances
does not by itself constitute an exercise of statutory super-
vision, so much as it portrays a leaderman’s direction of the
work force through skilled and experienced direction.
But it is argued that the hiring of new deckhands who are
now with little or no river experience is a development that
has created much different work conditions for the mate to
supervise. The frequency and detail of the mates’ instructions
given, surely vary with the degree of experience of the work-
ing deck crew, but so do those of the a watchman in like
circumstances, because the river experience of the watchman
is greater in turn than the less experienced deckhand on his
watch. Thus, a deckhand on watch with the watchman regu-
larly obeys the same type instructions and directions given
to him (them) by the watchman, in the same dangerous or
715OHIO RIVER CO.
emergency conditions. Moreover, landing and locking situa-
tions occur as regularly on forward watch, as they do on
after watch; and mates are not regularly present on forward
watch at the time when the same type leadership is required
for the landings and lockings.
There is some degree of confusion if not actual conflict in
the record generated in regard to ORCO’s claim of the
mates’ authority to assign watches to deckhands, particularly
with regard to circumstances resulting in overtime. The Em-
ployer relies on the mate job description’s reference under
navigation to the mate having responsibility now to maintain
proper deck watches. As urged by Frasher, that refers to a
mate’s responsibility for proper distribution of deckhand ex-
perience on the watches. The claim rests on supportive Mur-
phy conduct in selecting on his own a more experienced
deckhand (rather than an inexperienced swingman) to work
with Murphy and another inexperienced deckhand on after
watch in a locking situation.
Conflict therewith arises from certain terms of the con-
tract, and other confirming testimony of two watchmen es-
sentially that the captain may and still does assign initial
watch; and that so far as they know and understand it is the
captain who under the contract authorizes a change in
shiftman watch, and who authorizes overtime.
As earlier noted, at least half the time a deckhand is indi-
vidually relieved. In those instances the dispatched relief
deckhand is routinely assigned to the watch of the deckhand
being relieved. If relief is otherwise, and does not involve as-
signment of the swingman, past practice has been and has at
least in part continued to be that the captain assigns the re-
porting deckhands to either forward or after watch. Only
Murphy appears to have related instance of mate destination
of watch in a locking situation, rather than the captain.
At the outset then, I further note the mate’s job description
under navigation also required that the mate utilize proper
deckhand watch change procedures. I have earlier found that
the evidence did not persuade that the mates now regularly
assign relief deckhands to watches. I now further find that
the evidence offered in support of the Employer’s contention
is too limited in the face of the import of past and present
contract terms to establish supervisory status in mate assign-
ment and/or watch change in landing or docking conditions,
or otherwise in regularly affecting overtime.
On apparently September 26, 1989, regular mate Clinton
Pauley took an extra trip as a deckhand, and, as usual, on
arrival reported to the captain for watch assignment. Clinton
Pauley was then assigned forward watch by the boat captain.
Although on that occasion Clinton Pauley exercised his se-
niority to take the swingman’s position on forward watch
(whom he was relieving), under the contract he could have
equally well have exercised his seniority and not been re-
quired to accept the swingman position that he was relieving.
Significantly, Clinton Pauley has also testified without
contest that on that occasion, the afterwatch deckhand would
have been bumped if Clinton Pauley had exercised his se-
niority right, and personally refused the swingman position
assignment. Clinton Pauley thereby has indicated that the
lesser experienced deckhand was on after watch and would
have had to take the swingman position under (governing)
terms of the contract. Though it does not appear to nec-
essarily follow that an initial watch assignment (not involv-
ing swingman position) is otherwise filled pursuant to bid se-
niority, I find on this record, that in practice, absent the ef-
fect of bid right on swingman position, deckhand on dispatch
normally took the watch of the person being relieved; and
that in the circumstance where two deckhands were being si-
multaneously relieved, the captain has in the past assigned
the watch to the respective deckhands, and generally con-
tinues to do so now. Clinton Pauley, who related that the
mates’ job description was not read to him, confirmed that
his understanding remained that the captain authorized the
shiftman’s watch change. I also credit Clinton Pauley who
confirmed that a change of the swingman’s watch wasn’t
necessarily done on a trip with green deckhands.
The fact is that landings and dockings occur on both
watches, and even watchmen have on occasion asked their
captain (and mate) for use of the more experienced deckhand
if the swingman on (normal) forward watch was too inexpe-
rienced. Reliance then on Murphy relation that on an occa-
sion of two green hands he had selected a more experienced
deckhand on forward watch is unique only in the sense that
Murphy relates that he has picked the experienced deckhand
without prior consultation and authorization from his captain.
Though a watchman has similarly asked a captain and a mate
about the use of a more experienced deckhand, which was
subsequently arranged, there is no evidence presented that
other mate’s have, like Murphy, done so without first check-
ing with their captain. There are other substantial reasons to
conclude that mates regularly do first check with their cap-
tain, particularly since overtime is normally involved and the
captain must authorize it.
In both locking and landing operations, overtime is more
often the normal occurrence than not. Under the governing
terms of the contract, the swingman is the designated posi-
tion normally assigned to perform that work, which carries
the overtime. Though more senior deckhand on arrival is
able to bid for the swingman position, absent doing so, the
least senior deckhand has to perform the position of
swingman, and thus, under the contract, has to work on
landings/lockings as they arise, and work the overtime re-
quired. Indeed certain contract terms declare that the
swingman is required to do such work even through certain
clear maximums to mandatory rest period, only at watch time
does it contractually appear that the captain is authorized to
assign the work and pay overtime to an offduty deckhand to
do the work while the swingman takes mandatory rest. It is
in any event clear of record that the captain on all occasions
still must sign as the Employer official who has authorized
the overtime, and not the mate.
To the extent that Employer would seek to establish mate
assignment of overtime, through Murphy’s picking a more
experienced deckhand from the forward watch to assist him
in a locking or landing in after watch (in lieu of normal
swingman help), normally involving an overtime condition,
Murphy’s act occurred in limited circumstances where both
he other deckhands were inexperienced. The frequency with
which that situation arose on other tours or hitches is not
made apparent of record.
Even crediting Murphy that on such occasion Murphy has
designated the more experienced deckhand on forward watch
to work with him on after watch, I do, and further assuming
that Murphy has continued to do so on other similar occa-
sion, there is no showing that another mate has ever done
so in his own right, let alone that all mates have done so
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with any degree of regularity. Moreover, the captain, in nec-
essarily having to sign off on all authorized overtime, effec-
tively ratified Murphy’s lead action in the matter. The record
otherwise reveals that inexperienced swingmen are still being
regularly used on landings and lockings on both watches in
accordance with the contract’s governing provisions.
Given the above (at best) limited showing of a mate’s ac-
tual involvement in an other than routine captain and/or con-
tract approved watch change and overtime assignment(s), in
agreement with General Counsel, I conclude and find that to
the related extent it is urged that mates regularly change
deckhand watches and/or grant overtime, weight of evidence
of both applicable contract terms and Port Captain Thornton
and Murphy concessions that neither may violate the terms
of the contract, would in the end more effectively persuade
to the contrary.
Under the contract, and continued practice, the captain still
authorizes overtime, and still has to sign off on it, not the
mate. A mate serving as a conduit of any such captain’s re-
petitive authorization order (be it deemed one standing, or to
arise otherwise), or a mate thus designating the deckhand
watch change (and overtime) under circumstances inherently
likely to be authorized and/or necessarily ratified by the cap-
tain, who must authorize the overtime and/or the swingman’s
shift change, does not establish in my view that mates have
been given real, or statutory supervisory authority in such
matters.
It is clear that not only the more experienced deckhand’s
watch is being affected, but a swingman’s contract duty as-
signments are being affected as well. (I am convinced on this
record showing that three deckhands don’t work one watch,
not with a mate, and not with a watchman.) The mates’ addi-
tional job description requirement to follow proper watch
change procedures then would only serve to further confirm
a mates’ subservience to such contract terms, as Thornton
and Murphy on at least certain other occasions have in effect
appeared to concede.
It is in the end concluded that the weight of credible evi-
dence is not sufficient to establish that mates with any degree
of regularity have assigned deckhands to watches in their
own right, let alone that all mates have done so. To the con-
trary, swingman watch changes still frequently occur, at
standard captain direction. They still normally cause over-
time; related contract terms still govern; captains still affect
changes in watches; and a captain’s individual authorization
on overtime still is central to an employee’s payment. Thus,
I specifically find that mates do not under the above cir-
cumstances commonly and responsibly assign overtime, in
any regular statutory supervisory sense.
Rather general finding to the contrary is more warranted
and now made that the captain does, which finding essen-
tially rests on the central facts: the contract still provides that
overtime must be first offered to the most senior deckhand
on board; and that it remains normal for a swingman to work
lockings and landings, which normally involve overtime
hours; that all overtime must be authorized by the captain;
that an authorizing captain must individually sign off on it;
and it is the captain only who is contractually permitted to
change a swingman’s normal assigned watches to accommo-
date the deckhand manpower needs on lockings and landings,
and thus (at best) the captain who is authorized to change
the watches of deckhands other than the swingman on occa-
sion.
In regard to mate deck discipline, the findings made above
on the limited degree and observed nature of the prevalent
form of mate discipline in oral counselings, which are not
shown recorded in any manner in employees’ files; and the
literal dearth of any (written) conversation document
issuance by any mate over a more than substantial 6-month
period following the purported employer authorization of
mate usage, in the end have also convinced me that such dis-
ciplinary authority that the mates really possessed is that
which they have (at best) exercised, namely, oral reprimands,
which were of type which they do not record, and which
were not shown to effect employee status. General Counsel
correctly observes such authority has been held to be too
minor to convey statutory supervisory authority, Ohio Ma-
sonic Home, 295 NLRB at 394 (and see cases cited thereat).
Neither is a mate shown here to have any authority to reward
employees, or to otherwise grant wage increases or other
benefits, all of which are set for unit employees by other
terms of the contract arrived at as a result of negotiations and
party agreement.
The mere training of other employees by a senior and
more experienced employee, or that employee’s evaluating
another employees’ skills in an assignment of routine work
also doesn’t establish supervisory status, Sears, Roebuck &
Co., 292 NLRB 753 (1989). In my view, neither Employer’s
additional act of formalizing the assignment of the mate’s re-
sponsibility for training new deckhands, nor the issuance of
a formal manual or other material for mate guidance and as-
sistance in ensuring complete training, changed the non-
supervisory nature of the basic deckhand training function
here.
General Counsel also observes correctly that the mate’s as-
signed role, or duty, in filling out the vessel safety inspection
report, and in preparation of an incident or accident report,
and the mates’ involvement with ordering supplies for the
entire boat, do not involve listed supervisory powers; or have
the mates performance of those duties (especially as opposed
to others, (e.g., watchmen) been shown to have impacted on
the employment relationship of unit employees in a super-
visory manner.
Neither does the mates’ performance of any of these duties
involve the mates in managerial duties of nature to establish
the mates as the type of managerial employees who are to
be excluded from the coverage of the Act. The mates are to
be excluded as managers only if they ‘‘formulate and effec-
tuate management policies by expressing and making opera-
tive the decisions of their employer,’’ NLRB v. Bell Aero-
space Co., 416 U.S. 267, 288–289 (1974); or are engaged in
managerial activity outside the scope of their unit duties, but
only if each of the mates ‘‘represents management interests
by taking or recommending discretionary actions that effec-
tively control or implement employer policy,’’ NLRB v. Ye-
shiva University, 444 U.S. 672, 690 (1980). The mates here
are not shown to have occupied such executive-type posi-
tions, closely aligned with management, who ‘‘have discre-
tion in the performance of their jobs independent of their em-
ployer’s established policy,’’ General Dynamics Corp., 213
NLRB 851, 857–858.
To the contrary, the mates here are regularly involved in
routine unit work duties (even with regard to clerical and/or
717OHIO RIVER CO.
inventory work in observation and report on deficiencies in
material, and corrections thereof), which follow ORCO’s es-
tablished policy, and which do not involve performance of
any such excluding managerial, or supervisory activities, cf.,
e.g., Ladish Co., 126 NLRB 555, 559 (1960); Auto West
Toyota, 284 NLRB 659, 661–662 (1987).
This case in final analysis comes down to the question of
whether the Employer’s continuing use of certain of its mates
since July 1988 in the evaluation of employees in ORCO’s
initial screening and permanent hiring processes amounts to
an employer deposit of real supervisory hiring authority in
all its mates; or, in reality, constitutes but another specialized
but nonsupervisory use of its mates experience and skills, on
a select basis, to aid the Employer in certain business (hir-
ing) exigencies occasioned by a business upturn, and attrition
from normal causes, after a long period of depressed busi-
ness conditions. In my view that is the real and dispositive
issue presented by this case, and the more difficult one to
resolve.
Employer essentially contends that since July 1988 its
mates have (at least) effectively recommended the hire and
retention of new ORCO employees. An authority to hire, or
to effectively recommend hiring, is clearly a listed super-
visory authority. Section 2(11) is to be interpreted in the dis-
junctive; that is, possession of any one of the above explic-
itly expressed supervisory powers is sufficient to place the
individual within the statutory supervisory definition, Ohio
Power Co. v. NLRB, 176 F.2d 385, 387 (6th Cir. 1949), cert.
denied 338 U.S. 889 (1950); NLRB v. Edward Budd Mfg.
Co., 169 F.2d 571, 579 (6th Cir. 1948), cert. denied 335 U.S.
908 (1949); though only when there is also conjunctive use
of real independent judgment on behalf of management,
Poultry Enterprises v. NLRB, 216 F.2d 798, 802 (5th Cir.
1954); and not judgment exercised that is but routine and
clerical, Sweeney & Co. v. NLRB, 437 F.2d 1127, 1131 (5th
Cir. 1971).
What is then to be the central and controlling factor is the
actual possession of an enumerated authority, and its use
with independent judgment; and not mere conclusory asser-
tions of company officials that may be urged thereon, Ad-
vanced Mining Group, 260 NLRB 486, 507 (1982), enfd.
mem. 701 F.2d 221 (D.C. Cir. 1983). In explication of what
is basely involved, it has been said in Westinghouse Electric
Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970), cert.
denied 400 U.S. 831 (1970):
[T]he Board has a duty to employees to be alert not
to construe supervisory status too broadly because the
employee who is deemed a supervisor is denied em-
ployee rights which the Act is intended to protect.
The principle appears even only then the more warrantedly
applicable to a situation such as here, where effectively an
entire unit classification of all mates is placed in issue. Reso-
lution is then made only the more difficult where, as here,
additionally involved is a required discerning consideration
of the underlying circumstances that all the affected individ-
uals occupy a unit classification held only by employees re-
quired by their employer to possess a high level of deckhand
knowledge, experience, and skill to heretofore perform their
assigned duties routinely. Thus the mates occupy a position
akin to that of skilled tradesmen, only certain of whom how-
ever, have now also been shown made to have interimly
functioned in a regular judgmental manner (I find below)
principally in the area of hire (selection and retention) of
new employees, with mates’ certain evaluations and/or writ-
ten recommendations variously involved therein; and with a
reliance by their Employer explicitly claimed to have been
advanced thereon, with some apparent justification.
Apart from a consideration of the cross-claim of General
Counsel of there actually being an independent employer re-
view made of the mates evaluations of probationary employ-
ees, it is essentially urged by General Counsel that the rec-
ommendations of the mates contained herein are based essen-
tially on the mates’ evaluative judgments made for their Em-
ployer that primarily rest on the mates’ exercise of their
skilled deckhand expertise, but not engagement in actions
connoting possession and exercise of real supervisory author-
ity within the meaning of the Act. There is merit to the con-
tention. Cf. NLRB v. Southern Bleachery & Print Works, 257
F.2d 235, 239 (4th Cir. 1958); and see particularly also the
underlying Board representation case of Southern Bleachery
& Print Works, 115 NLRB 787, 791 (1956), in which the
Board early pertinently said:
Throughout the industry of this nation, there are
highly skilled employees whose primary function is
physical participation in the production or operations
processes of their employer’s plants and who inciden-
tally direct the movements and operations of less
skilled subordinate employees. These artisans have a
close community of interest with their less experienced
coworkers and the amended Act has preserved for them
the right to be represented by a collective-bargaining
agent in dealings with their employers. The Board has
therefore, consistently included in bargaining units such
employees, often craftsmen or persons in comparable
positions, whose authority is based upon their working
skill and experience.
We have no doubt that almost any employer when
told by a skilled craftsman that his helper is incom-
petent and that he needs a new helper if he is properly
to perform his functions, would accept the judgment of
the craftsman. While this may be called effective rec-
ommendation, it is inherent in the craftsman-helper re-
lationship, as Congress obviously knew. [Footnotes
omitted.]
The General Counsel thus contends firstly that none of the
mates have exercised the authority to hire, as personnel has
done all actual hiring of both probationary and permanent
employees. The circumstance that ORCO’s personnel depart-
ment has done all actual hiring, appears not to be contested;
and, in any event, on clear weight of credible evidence of
record bearing thereon, I conclude and find that none of the
mates have actually hired any employees. The issue is
whether they have effectively recommended the same.
In contrast with the Employer’s claim that the mates pos-
sess and have regularly exercised a statutory supervisory au-
thority to effectively recommend (a) the hire of candidates
for employment; and (b) the hire of probationary employees
for permanent employment, the General Counsel further con-
tends that the mates have exercised no real statutory super-
visory authority in their part in selectively recommending
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
certain candidates for employment for hire; and the mates
have neither uniformly, nor consistently evaluated the proba-
tionary employees, and such evaluations as certain mates
have made on probationary employees were not statutorily
effective recommendations in that they are independently re-
viewed.
There is no question the Employer had already done sub-
stantial screening of applicants before (certain) mates ever
became involved. All the applicants, or candidates for em-
ployment, had been already substantially prescreened by the
Employer’s personnel for employment, in that ORCO per-
sonnel had received their submitted applications; had re-
viewed and contacted their references; had interviewed the
candidates; had required them to first take and necessarily
pass a physical examination, and then a drug screening test.
Thus, not without some appreciable record support does the
General Counsel argue that the candidates for employment
when assembled at the Paducah training facility, had already
substantially established (at least) generally to ORCO per-
sonnel satisfaction that they were employable by the Em-
ployer.
The Employer would have noted, the Board has heretofore
adopted a finding that mates’ issuance of instructions to deck
crewmembers, particularly during locking and docking, had
involved exercise of independent judgment, and that those
mates were concluded to be supervisors, Master, Mates &
Pilots Local 28, 136 NLRB at 1203. However there it was
also evidenced and found that the orders of those mates had
to be obeyed at the risk of discharge, e.g., id. at 1199, 1203;
and, unlike the mates’ long employee unit representation
here, those mates had not theretofore been represented in an
employee unit of deckhands and cooks, etc., but rather had
been represented in a unit of other supervisory boat officers,
namely, masters and pilots, id. at 1178.
Where, as was essentially long ago held here, the instruc-
tional or directional relationship, being accomplished by and
under whatever named classification, is determined to be
more team effort in the performance of routine tasks of (even
skilled) employees than a responsible direction of the crew
with independent judgment on behalf of management, and/or
the involved actions, instructions, directions are more to be
accounted for as, or to be likened to, actions, directions, in
instructions imparted merely by individuals with greater skill
to those with less skill (albeit it working occasionally in dan-
gerous conditions and environs), i.e., akin to that of journey-
man to helper, the Board (as earlier herein) has concluded
otherwise, A. L. Mechling Barge Lines, 192 NLRB 1118,
1119–1120 (1971).
Weight of evidence presented herein supports General
Counsel’s contention that the mates are brought to the Padu-
cah training facility to lend the knowledge, skill, and ability
in deck work matters to accomplish an orientation of can-
didates for employment, and to conduct an evaluation of the
indicated deckhand capability of candidates otherwise fully
screened for employment.
Again not without a significant measure of evidence per-
suasion would General Counsel have it concluded from the
above-detailed evidence, that the mates were told what was
expected of them at the Paducah orientation phase, would be
only selectively expected of them. Thus in analyzing the
question of supervisory status of the entire classification of
mates, at least in regard to recommendations made on can-
didates for employment, it is both wholly warranted and sig-
nificant to observe, that to date, at most 9 of 16, or a little
more than half have participated in the orientation and final
prehire screening phase of the candidates for hire; and it ap-
pears in the last year, even less participated in actual evalua-
tion. It is unclear how many mates were there in attendance
to ensure equipment, etc., was ready. In any event, such is
not supervisory activity.
It is similarly warranted to observed that the selected
mates (at best about half) each time received detailed instruc-
tions themselves as to what they are to do and cover. In that
regard the record does establish that certain selected mates
were there to and did explain the Company’s (towboat) poli-
cies and procedures. They were there primarily to dem-
onstrate to the candidates some of the representative duties
and tasks of a deckhand; and to use their own lengthy expe-
rience and skills to test and evaluate if the candidate ap-
peared to them likely to be capable of performing the nec-
essary skill tasks, and the physically demanding work, and/or
work safety in the somtimes dangerous work environment.
To be sure the evaluating mates were eventually directed
(starting in February 1989) to evaluate the candidates for em-
ployment in certain identified work areas, but simply and pri-
marily to evaluate working skill, ability, safety, and general
work and company attitudes, but notably without any effort
made by the Employer otherwise to train the mate in the use
of their own skill and ability to effect an evaluation. It is
clear enough to me that the Employer was relying in substan-
tial measure on what the selected mates brought in deckhand
skill and experience to the evaluation of the already other-
wise selected candidates for employment, as the General
Counsel has contended.
The General Counsel also contends that the mates’ evalua-
tions of probationary employees, such as shown herein, are
also not sufficient to establish that the mates have statutory
supervisory authority to effectively recommend hire of per-
manent employees. There is no evidence presented that all
mates have participated in this evaluative process. To the
contrary, if anything, it would appear to have been less this
last year. Be that as it may, General Counsel contends that
even the participating mates involved are not engaged in stat-
utory effective recommendations or permanent hire, because
the evaluations that they have made are shown to be inde-
pendently reviewed by Port Captain Thornton. Again there is
substantial evidence to support that contention of General
Counsel.
Much of that evidence has been earlier addressed and need
not be remarshaled here, except in summary to observe: the
evaluations are not being turned in by all mates; those that
are turned in were previously directed to be, and generally
have been signed by the captain; the mates are clearly ex-
pected to, and clearly regularly did obtain evaluative input
from watchmen, with whom the deckhands as frequently, if
not more often, work; the watchmen sometimes sign on the
evaluation, indeed a watchman’s evaluation has been sought
and carried the day for a mate over a captain indicated initial
disagreement; and finally, all the evaluations are submitted to
personnel, and a copy of each is sent to the port captain, who
has independently evaluated them; selectively given weight
to some, and not to others; and otherwise exercised clear
independent judgment in supplementing them from a variety
of sources.
719OHIO RIVER CO.
Another factor supporting a conclusion that the mates are
not supervisors is the high ratio of supervisors (3) to deck
crew (4) (including 2 to 1 normally on afterwatch) that other-
wise would result if mates were concluded to be supervisors.
There are other indications that the Employer was enlisting
the expertise of its mates in training and development of new
hires with no river experience. The very memos and cor-
respondence addressed the matter of the mates part in train-
ing a new skilled work force. However, such considerations
do not make the determination more definitively drawn.
Although the matter, in my view, remains a close question,
the mates’ evaluations here, appear to me, on balance, and
on the weight of the evidence above to present circumstances
of an Employer’s specialized reliance on its most skilled em-
ployees, of nature more akin to, and thus controlled by the
considerations of Southern Bleachery, above. Accordingly, I
conclude and find that the mates here are not established to
be statutory supervisors, but rather essentially have remained
as they were, and heretofore determined to be, skilled
leadermen upon whose judgments on candidates for deck-
hand development the Employer has come to rely; and
whose, evaluations on probationary employees, when re-
ceived, the Employer’s port captain has considered, and more
often than not followed, but not without bringing an inde-
pendent review to the reports submitted.
Of this I am reasonably certain in this record, not all the
mates are participating in orientation, nor submitting evalua-
tions of probationary employees; and, even of those that do,
not all have the port captains trust and confidence. This is
not effective recommendation. If the Employer is actually ad-
ditionally training and observing certain mates for super-
visory promotion, that does not warrant that all mates forfeit
their unit status. Accordingly, I conclude and find that the
mates are not statutory supervisors with the power to effec-
tively recommend hire; but employees who because of their
knowledge, skill, and experience are leadermen in whom the
Employer has special confidence.
Since an employer acts at its peril in believing an indi-
vidual is not an employee, let alone does so if it errs as to
an entire classification of employees concerning whom it un-
questionably had a duty to bargain otherwise, NLRB v.
Bardahl Oil Co., 339 F.2d 365, 367–370 (8th Cir. 1981), it
follows that by failing and refusing to bargain with the
Union about the wages, hours, and working terms and condi-
tions of employment of the mates, the Employer has violated
Section 8(a)(5) and (1) of the Act as alleged in the com-
plaint.
But there would appear to be still another reason for con-
cluding that by the Employer’s failure to bargain with the
Union about the classification of mates, the Employer has
here violated Section 8(a)(5) and (1). In the circumstances of
this case the Union was not obligated to bargain about unit
scope, which was a nonmandatory subject of bargaining and
it had not waived its right to bargain for the mates.
The Employer’s position that it could elect to no longer
bargain with the Union about the mates in the upcoming con-
tract because they were statutory supervisors was one that
might be effectively advanced by it were the prior inclusion
of mates an inclusion of theretofore existing statutory super-
visors, and their prior inclusion one by voluntary agreement
of the Employer, cf. Newspapers Drivers Local 372 v.
NLRB, 735 F.2d 169, 971 (6th Cir. 1984), cert. denied 470
U.S. 1051 (1985). But that was clearly not the underlying
circumstance here, independent of the finding that mates are
not statutory supervisors.
To the contrary the mates here were included in an appro-
priate unit after a Board determination was made of their dis-
puted placement; and coverage under successive collective-
bargaining contracts had ensued for years. I need not resolve
whether any certain individual mate may have sufficiently
evidence that he is regularly exercising a supervisory power
of effective recommendation, (e.g., most notably, Murphy),
though again, for the reasons stated, it would appear not.
However, in that very regard, even were the mates super-
visory status to have been concluded otherwise, although it
has been held that an employer’s promoting individuals as
supervisors without bargaining does not violate the Act; it is
otherwise where the promotions result in the elimination of
a unit classification, Pittsburg Metal Processing Co., 286
NLRB 734 fn. 2 (1987).
An employer may not insist to impasse on a contract pro-
posal that alters an established unit description, a nonmanda-
tory subject of bargaining, in violation of Section 8(a)(5) and
(1) of the Act, Standard Register Co., 288 NLRB 1409, 1411
(1988). The Union had no obligation on its part to meet and
bargain with the Employer about the exclusion of mates from
the unit, Buzzoto’s, Inc., 277 NLRB 977 (1985).
The Employer in brief has advanced a number of other ar-
guments, which have considered and conclude not to be per-
suasive. I would only additionally note: First, I have no quar-
rel with the observation of the Employer that the Employer’s
unilateral changes in the duties of its mates made from
March 1988, on through February 1989 are not allegations
of the instant complaint. They are not. Nor, for that matter
is the Employer’s renouncement (captains’ reading to crew)
on the mates’ new job description which occurred in late
March or early April.
However, the Employer’s failure to bargain about the
unit’s classification of mates since March 5, 1989, clearly is
and, to the extent the Employer would seek to raise 10(b)
argument to that allegation, the argument is as clearly with-
out merit. Indeed, there is a question whether the alleged vio-
lation of failing and refusing to bargain about the mates, a
classification in the unit, occurred on March 5 when the Em-
ployer first notified the Union of its intent not to bargain for
wages, hours, terms, and conditions of employment of the
mates in the new contract, or when it actually refused to bar-
gain thereon upon Union’s demand in the start of negotia-
tions in early, June 1989, cf. Howard Electrical & Mechan-
ical, 293 NLRB 472 (1989); and cf. the case cited thereat,
Swift Independent Corp., 289 NLRB 423 fn. 11 (1988).
If the failure to bargain on an entire classification (thus)
scope of the unit were not involved, and it were a simple an-
nouncement of new working conditions as an implementation
of policy, it would then be otherwise, cf. Ciba-Geigy Phar-
maceuticals, 264 NLRB 1013, 1018 (1982), enfd. 722 F.2d
1120 (3d Cir. 1983); as it might be if the Employer’s
changes result in a new classification of employees that in-
volves the scope of the unit, where neither party is obligated
to bargain thereon, cf. United Technologies Corp., 292
NLRB 298 (1989), though not even then necessarily would
the employer avoid a finding of a violation of the Act in re-
fusing to bargain, if it shows no reason for an exclusion of
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
a substantial group from the unit, Bay Shipbuilding Corp.,
263 NLRB 1133 (1982). As noted, promotion of an entire
unit classification of employees to supervisory position is not
such a reason, Pittsburg Metal Processing Co., 286 NLRB
734 fn. 2 (1987).
Here, however, it is otherwise, because there has been
found to have been an employer failure to bargain about the
mates, alleged to be a classification in the unit. The proof
offered established that the Employer refused to bargain on
union demand, on the entire unit mate classification, i.e., all
the mates. An employer’s attempted alteration of a unit’s
scope is a nonmandatory subject of bargaining, Bozzuto’s,
Inc., supra. So would be an employer’s attempted alteration
of a unit without a union’s agreement, as was done here.
Moreover, it has been held that an employer’s exclusion
of a new classification may not only be an acceptable mode
of analysis of an alleged refusal to bargain over the classi-
fication, but is wholly separate from allegation of a failure
to bargain resting on allegations of an employee making uni-
lateral changes as constituting the violation of the Act, cf.
United Technologies Corp., supra.
Finally, the parties letter of understanding of June 22,
1989, clearly does not state a waiver of Union’s statutory
right to bargain collectively for the unit mate classification,
Collateral Control Corp., 288 NLRB 308, 309 (1988). The
Employer’s related argument to the contrary or its argument
that the Employer’s failure to bargain over the scope of
unit’s mate classification was raised sui juris by me do not
pass muster of fair reading of the specific complaint allega-
tion and charge circumstances, nor relatedly, the General
Counsel’s opening statements on the complaint allegation,
and the statement of position on the meaning of the June 22,
1989 (underscored) reference not to try to resolve the dis-
puted matter through negotiation, as not constituting any
waiver by the Union of its right to bargain for the mates, but
as being no more than expression of the parties’ then agree-
ment not to hold up negotiations on other contract matters,
and to resolve their dispute on the mates within the frame-
work of the unfair labor practice charge process sought here.
Not only is the contention plausible, I have credited Ward
that the parties had not been able to reach that accommoda-
tion, there would have been an entire unit work stoppage.
By the time of the agreement the Union had already filed
a very specific charge, full pursuit of which it exempted in
the agreement; which it has pursued; and which in turn the
General Counsel’s equally specific complaint allegation pres-
ently addresses. Unless one is prepared to say that a union’s
right to decline bargaining on a unit classification exclusion,
a nonmandatory subject, is really but a conditional right that
is actually subservient to some earlier employer unilateral ac-
tions in changes of underlying duties, which under my under-
standing of the above-existing Board precedent I am not, the
two allegations, as different causes of action, in my view, re-
main distinct.
CONCLUSIONS OF LAW
1. The Ohio River Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. United Steelworkers of America, Local Union 14262,
AFL–CIO–CLC is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining representa-
tive of the classification of ‘‘mates,’’ a classification in-
cluded in a unit appropriate for collective bargaining, Re-
spondent Employer has engaged in conduct in violation of
Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be offered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the purposes and policies of the Act.
Because I have found that the mates are employees, and
that the Respondent Employer has failed, and continues to
fail to bargain with the Union as the exclusive collective-bar-
gaining representative of its mates, a classification in an ap-
propriate unit, in addition to recommending that it cease its
unlawful refusal to bargain with the Union over the wages,
hours, and working terms and conditions of employment of
its mates, I shall further recommend in keeping with the par-
ties conditional agreement of June 22, 1989, that the Em-
ployer (1) henceforth apply the terms and conditions of em-
ployment of the 1989–1990 contract to mates; and (2) upon
request of the Union, the Employer meet with the Union and
bargain on the wages and other benefits for mates.
It will be further ordered that the Employer make the
mates whole for any loss in pay or benefits they may have
suffered as a result of the unfair labor practices found herein,
but nothing contained herein shall be construed to require the
withdrawal of any pay or benefits that the mates may be
presently receiving. Any amounts due, plus interest, will be
paid as prescribed F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). An appropriate notice to
employees will also be provided.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, The Ohio River Company, Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
the classification of ‘‘mates,’’ a classification included in the
unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize United Steelworkers of America, Local
Union 14262, AFL–CIO–CLC as the exclusive collective-
bargaining representative of its ‘‘mates,’’ a classification in
the unit.
(b) Henceforth apply the current collective-bargaining
agreement to the unit classification of ‘‘mates’’ as provided
721OHIO RIVER CO.
3 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
for in the parties’ agreement of June 22, 1989; and, on union
demand, bargain with the Union about pay and other benefits
for the unit classification of mate employees.
(c) Make whole all the unit mate employees for any loss
of pay or other benefits (if any) they may have suffered as
a result of the refusal to recognize and bargain with the
Union as a representative of mate employees, in the manner
described in the remedy section of this decision.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post on the bulletin boards at the facilities in Cin-
cinnati, Ohio, Paducah, Kentucky, and Huntington, West Vir-
ginia, and on each towboat of The Ohio River Company in
operation on The Ohio River and its tributaries, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.