Spentonbush/Red Star Co.

National Labor Relations Board - Board Decisions

Dec 18, 1995

319 N.L.R.B. 988 (N.L.R.B. 1995)

988
319 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s request for oral argument is denied because the
record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
2 The judge inadvertently failed to make statutory jurisdictional
findings. The jurisdictional allegations of the consolidated complaint
are admitted. Thus, the Respondent admits that it has been at all
times material to this proceeding an employer engaged in commerce
within the meaning of Sec. 2(2), (6), and (7) of the Act.
3 The Respondent also points to documents from personnel files,
which contain notations to the effect that a captain disciplined, or
effectively recommended discipline of, a crew member. As the judge
observed, however, the brief notations are conclusory and otherwise
unsupported by testimony or other evidence.
Spentonbush/Red Star Companies and Local 333,
United Marine Division International Long-
shoremen’s Association, AFL–CIO. Cases 2–
CA–22970–2, 2–CA–23249, and 2–CA–23282
December 18, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On March 1, 1994, Administrative Law Judge James
F. Morton issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed briefs in support
of the judge’s decision, the General Counsel filed a
brief in opposition to the Respondent’s exceptions, and
the Respondent filed reply briefs.
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 briefs1 and has
decided to affirm the judge’s rulings, findings as modi-
fied,2 and conclusions and to adopt the recommended
Order as modified and set forth in full below.
1. The judge found that tugboat captains and barge
captains do not hire, transfer, suspend, promote, dis-
charge, assign, reward, or discipline employees, or re-
sponsibly direct them or effectively recommend such
action, or possess any other supervisory authority with-
in the meaning of Section 2(11) of the Act. The Re-
spondent contends in its exceptions, among other
things, that the record ‘‘is replete’’ with examples of
captains exercising disciplinary authority and that cap-
tains also assign and direct work. It is well settled that
the burden of proof of supervisory status rests on the
party alleging that such status exists. St. Alphonsus
Hospital, 261 NLRB 620, 624 (1982). As discussed
below, we find that the Respondent failed to sustain its
burden.
In some of the examples the Respondent cites, cap-
tains have fired or recommended the firing of person-
nel ‘‘off a ship’’ (i.e., transferred) for drinking or dis-
appearing for days without notice. The Board has con-
sistently held that authority to discharge that is limited
to flagrant violation of common working conditions,
such as being drunk, is insufficient to confer super-
visory status. See Loffland Bros. Co., 243 NLRB 74,
75 fn. 4 (1979), and cases cited there.
The other examples on which the Respondent relies
fail to support the assertion that a captain exercised
disciplinary authority. For example, the Respondent
claims Captain Hoyt recommended that Mate Walter
Donoway be removed from his vessel for incom-
petence. Contrary to the Respondent’s contention,
however, Hoyt stated that he did not fire Donoway, but
merely reported to the front office that Donoway had
caused the contamination of gasoline. He ‘‘guess[ed]’’
that the front office investigated the problem. He could
not recall how long Donoway stayed on the boat after
the incident.
The Respondent also claims Captain Mark Cassin
recommended terminating Mate Charles Behrmann.
General Manager Stanley Chelluck testified that after
Cassin brought certain facts to his attention about
Behrmann’s shortcomings, Chelluck made further in-
quiries and ultimately decided to fire Behrmann, hav-
ing determined for himself ‘‘that he [Behrmann]
wasn’t worth suspending or disciplining in any other
manner.’’ Chelluck received input from the port cap-
tain and shoreside terminal personnel. The record does
not show that the Respondent received a recommenda-
tion to fire Behrmann from any captain.
We do not believe either example evidences that the
captains effectively recommended termination.3
In addition, as the judge found, Chelluck’s testi-
mony contradicts the Respondent’s claim that captains
possess supervisory authority. Chelluck admitted that
before any action was taken with regard to certain ter-
minations, an independent investigation was under-
taken. With regard to instances of adverse actions,
Chelluck conceded that he was unable to recall wheth-
er a captain’s recommendation was linked to a later
personnel decision. Chelluck conceded that if he be-
lieved the captain was wrong in wanting an individual
discharged, he would not terminate the person. Indeed,
Captain Daniel Blair testified that he complained to
Chelluck that Mate Chris Rowerick did not belong on
the boat and did not have the kind of experience need-
ed. Chelluck disregarded Blair’s complaint and
Rowerick remained on the boat. Another captain also
testified as to instances when his request to discharge
was not followed.
We find that there is insufficient evidence to support
a finding that captains have authority to discipline or
recommend discipline.
Regarding the claim that captains assign and direct
work, the Respondent points to evidence that the cap-
tains set their vessels’ maintenance schedules (i.e.,
chipping, painting, and cleaning), assign the work to
989SPENTONBUSH/RED STAR COS.
4 The judge found that the Respondent’s withdrawal of recognition
from the Union as representative of the captains also violated Sec.
8(a)(3) of the Act. We find it unnecessary to pass on the judge’s
finding, because it does not significantly affect the remedy in this
case.
5 In view of our finding that the Respondent violated the Act by
insisting on removing captains from the unit, we find it unnecessary
to pass on the judge’s discussion of the Respondent’s geographic
scope proposal.
the crew, and inspect the work; direct the crew how
to ‘‘make up’’ or attach the tug to the barge (i.e.,
which ropes, which side of the vessel, and what equip-
ment are to be utilized); and direct a mate in loading
and unloading operations (i.e., which compartments are
to be filled, which valves opened and closed, and in
which order).
The Board has held that possession of any one of
the indicia specified in Section 2(11) is only sufficient
to confer supervisory status on an individual if the stat-
utory authority is exercised with independent judgment
on behalf of management and not in a routine manner.
See, e.g., John N. Hansen Co., 293 NLRB 63, 64
(1989).
The judge found the painting and chipping work
performed by the deckhands was routinely scheduled
maintenance work and did not require any particular
direction. Barge captains also performed painting and
chipping work with the mate. According to a Respond-
ent witness, painting and chipping assignments were to
‘‘usually try to start at the top and work down. Get so
much done a day.’’ Established daily routines and cus-
tom dictated the performance of this routine function.
We agree with the judge’s finding that the assignment
and direction of maintenance work is routine in nature.
With regard to the direction of personnel in ‘‘mak-
ing up’’ to a barge, the record shows that the decisions
were in the vast majority of cases predetermined and
routine in nature and that the responsibilities were
shared between the mate and the captain, depending on
which one was on watch. In tying the barge to the tug-
boat, the deckhand handled the lines, a task requiring
little or no guidance from the captain or mate. We
agree with the judge that to the extent captains direct
this work, the type of direction involved is not that of
a supervisor but that exercised by a more experienced
employee over one who is less skilled. McAllister
Bros., 278 NLRB 601, 614 (1986).
We find that the evidence on which the Respondent
relies is insufficient to prove that captains exercise
independent judgment in the assignment and direction
of other employees’ work.
Accordingly, we find that captains are not super-
visors within the meaning of Section 2(11) and that the
Respondent unlawfully withdrew recognition from the
Union as the captains’ representative in violation of
Section 8(a)(5).4
2. The Respondent excepts to the judge’s finding
that it violated Section 8(a)(5) by insisting on changing
the unit description. For the following reason, we agree
with the judge’s conclusion.
The Respondent does not dispute that it insisted
throughout bargaining that tugboat captains and barge
captains were supervisors and should be removed from
the bargaining unit. The Union strenuously opposed
the Respondent’s proposal.
It is well settled that the alteration of the bargaining
unit by the elimination of employee classifications is
a permissive subject on which an employer may not
lawfully insist on bargaining. See Facet Enterprises,
290 NLRB 152 (1988), enfd. 907 F.2d 963 (10th Cir.
1990). As explained in the previous section of this de-
cision, we agree with the judge that captains are not
supervisors. It therefore follows that the removal of
captains from the unit is a permissive bargaining sub-
ject and the Respondent’s continued insistence on their
removal from the unit violated Section 8(a)(5).5
3. ‘‘Under established Board law, an unfair labor
practice strike is a strike precipitated in part by an em-
ployer’s unfair labor practice.’’ Boyles Galvanizing
Co., 239 NLRB 530 (1978). Here, the record clearly
establishes that the Respondent’s unlawful insistence
on the removal of the captains from the bargaining unit
was one of the causes of the Union’s February 16,
1988 strike. For this reason, we affirm the judge’s
finding that the strike was an unfair labor practice
strike from its inception.
The Respondent argues that the Union’s ‘‘pooled’’
voting procedure was unlawful under Paperworkers
Local 620 (International Paper), 309 NLRB 44
(1992), and that therefore the strike itself was unpro-
tected. The Respondent raises this argument for the
first time in its reply brief to the Charging Party’s
brief. We therefore find it untimely raised. See Auto
Workers Local 594 v. NLRB, 776 F.2d 1310, 1314 (6th
Cir. 1985), enfg. 272 NLRB 705 (1984); and Operat-
ing Engineers Local 520 (Mautz & Oren), 298 NLRB
768 fn. 3 (1990).
4. The Respondent excepts to the judge’s finding
that it refused to reinstate unfair labor practice strikers
who unconditionally offered to return to work. We
agree with the judge.
On September 2, 1988, employees engaged in an un-
fair labor practice strike offered, through the Union, to
return to work ‘‘under the terms and conditions that
existed under the expired collective bargaining agree-
ment.’’ The Respondent, having implemented new
terms, contends that the offer to return was conditioned
on the Respondent’s restoring the terms and conditions
of the expired collective-bargaining agreement.
The judge found the employees’ offer unconditional
and rejected the Respondent’s contention, finding that
the Respondent had in essence unlawfully conditioned
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In finding that the Union’s offer on behalf of the strikers was
unconditional and that the Respondent was obligated to reinstate the
strikers, we do not rely on the judge’s suggestion that the Respond-
ent had constructively discharged the strikers.
7 The Respondent’s reliance on McAllister Bros., 312 NLRB 1121,
1123 (1993), and Industrial Electric Reels, 310 NLRB 1069, 1086
(1993), is misplaced. Although the offers to return to work in those
cases contained wording similar to that used by the Union here, the
Board’s conclusion in McAllister Bros. and Industrial Electric Reels
that the offers were conditional was premised on the Board’s find-
ings that the respondents had lawfully imposed new terms and con-
ditions of employment and were not obligated to reinstate the terms
that existed at the time the strikes began. Here, as stated above, we
have found that the terms and conditions of employment existing at
the time of the Union’s offer were unlawfully imposed and that the
Respondent is obligated to reinstate the terms that existed at the time
the strike began.
Similarly inapposite are cases cited by the Respondent holding in-
valid requests for reinstatement conditioned on the employer rem-
edying the unfair labor practices that caused the strike. E.g., Atlantic
Daily World, 192 NLRB 159 (1971); Flambeau Plastics Corp., 172
NLRB 448, 449 (1968), review denied sub nom. Industrial Workers
Local 380 v. NLRB, 411 F.2d 249 (7th Cir. 1969). We have found
above that the strike was an unfair labor practice strike because it
was caused in part by the Respondent’s unlawful insistence on the
removal of the captains from the bargaining unit. Nothing in the
Union’s September 2, 1988 letter, however, addressed this subject.
The Union did not condition the strikers’ offer to return to work on
the Respondent’s withdrawal of its proposal to change the bargaining
unit. Rather, the Union simply insisted on what the employees were
legally entitled to, i.e., the restoration of the terms and conditions
that existed prior to the Respondent’s unlawful unilateral changes.
the reinstatement of the strikers on accepting the terms
and conditions it had unlawfully imposed. We agree
with the judge that the offer to return to work was un-
conditional. An employer’s offer to reinstate unfair
labor practice strikers based on terms and conditions
that have been unlawfully imposed is not a valid offer.
White Oak Coal Co., 295 NLRB 567, 572 (1989);
PRC Recording Co., 280 NLRB 615 fn. 2 (1986),
enfd. sub nom. Richmond Recording Corp. v. NLRB,
836 F.2d 289 (7th Cir. 1987).6 We have found that the
terms and conditions the Respondent implemented
when the strike commenced were unlawfully imposed.
The remedy in the cases cited in the previous para-
graph was to reinstate the employees at the terms and
conditions in the expired contracts. Similarly, the Re-
spondent in this case was required to return the strikers
to the terms and conditions of employment existing
under the expired contract. Because the Union’s offer
merely stated what the Respondent was legally obli-
gated to do, we cannot agree with the Respondent that
the offer was conditional. To hold otherwise would
allow the Respondent to reinstate strikers at unlawfully
set terms and conditions while tolling its backpay li-
ability.7
The Respondent apparently believes that it is enti-
tled to consider the new terms and conditions the sta-
tus quo until the Board has determined whether the
Respondent’s changes were lawful. The Respondent is
mistaken. The Board has long held that an employer
acts at its peril in making unilateral changes in terms
and conditions of employment. Fugazy Continental
Corp. v. NLRB, 725 F.2d 1416, 1421 (D.C. Cir. 1984).
Having refused to reinstate the strikers who were en-
gaged in an unfair labor practice strike on their uncon-
ditional offer to return to work on September 2, 1988,
the Respondent violated Section 8(a)(3) and (1) of the
Act.
AMENDED REMEDY
We agree with the remedy the judge provided sub-
ject to the following modifications.
First, we will modify the judge’s recommended
Order to make clear that unit employees are to be
made whole for any loss of earnings and other benefits
suffered as a result of the Respondent’s unlawful uni-
lateral changes in their terms and conditions of em-
ployment. Backpay will be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d. 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Second, the judge provided for payments to various
trust funds with ‘‘any interest thereon’’ to be com-
puted under Merryweather Optical Co., 240 NLRB
1213 (1979). We will leave to the compliance stage
the determination of any additional amounts the Re-
spondent owes to the funds to satisfy the make-whole
remedy in accord with Merryweather Optical, supra at
1216 fn. 7.
Third, as part of the make-whole remedy for em-
ployees the Respondent should have reinstated after
September 2, 1988, the judge ordered that the Re-
spondent reimburse the Union for dues the Respondent
did not deduct. The Respondent, however, was not ob-
ligated to deduct dues because the contract had expired
in February 1988, and the obligation to deduct dues
does not survive contract expiration. See, e.g., Beth-
lehem Steel Co., 136 NLRB 1500, 1501, 1502 (1962),
enfd. in pertinent part 320 F.2d 615 (3d Cir. 1963).
We will delete this portion of the recommended Order.
Fourth, we will conform the reinstatement language
of the judge’s recommended Order to the standard re-
instatement language he used in the remedy.
Finally, we will include an affirmative bargaining
obligation in the Order, which the judge inadvertently
omitted. ‘‘For over 50 years, an affirmative bargaining
order has been the standard Board remedy for an em-
ployer’s unlawful refusal to bargain with a union
which, as of the date of refusal, enjoys the status of
a 9(a) collective-bargaining representative.’’ Williams
Enterprises, 312 NLRB 937, 940 (1993), enfd. 50 F.3d
1280 (4th Cir. 1995). Such a remedy restores the status
quo existing prior to the Respondent’s violation of the
statute. The remedy ‘‘does not involve any injustice to
employees who may wish to substitute for the particu-
991SPENTONBUSH/RED STAR COS.
8 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
lar union some other . . . arrangement’’ because a bar-
gaining order does not ‘‘fix a permanent . . . relation-
ship without regard to new situations that may de-
velop.’’ Id.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set out in full below, and orders that the
Respondent, Spentonbush/Red Star Companies, New
York, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing to bargain collectively with the Union,
Local 333, United Marine Division, International
Longshoremen’s Association, AFL–CIO, as the exclu-
sive collective-bargaining representative of all the em-
ployees in the unit described in the 1985–1988 agree-
ment between the Respondent and the Union, including
captains and mates, by insisting on changing the de-
scription of the unit, by withdrawing recognition from
the Union as the exclusive collective-bargaining rep-
resentative of its captains, and by unilaterally changing
the wages, hours of work, and other terms and condi-
tions of the employees in the unit described in the
1985–1988 agreement.
(b) Failing to reinstate unfair labor practice strikers
who applied unconditionally for reinstatement to their
former positions of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Restore, maintain, and give full effect to the
terms and conditions of the 1985–1988 agreement with
the Union, rescinding all changes made on and since
February 16, 1988, and make whole the unit employ-
ees for any loss of earnings and other benefits suffered
as a result of the unlawful unilateral changes, including
making payments on their behalf to the trust funds in
the 1985–1988 agreement, as provided in the judge’s
remedy as modified.
(b) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the unit, as described in the 1985–1988 collec-
tive-bargaining agreement, on terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement.
(c) Offer each of the unfair labor practice strikers,
who applied for reinstatement on September 2, 1988,
immediate and full reinstatement to their former posi-
tions of employment or, if for lawful reasons those po-
sitions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other
rights, privileges, and benefits previously enjoyed, dis-
placing if necessary any employees hired as replace-
ments for them.
(d) Make whole each of these employees for losses
they incurred by reason of their not having been rein-
stated on September 2, 1988, with interest thereon
computed as described in the remedy section of this
decision and by making payments on their behalf to
the trust funds provided for in the 1985–1988 agree-
ment, as provided in the judge’s remedy as modified.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts due under
the terms of this Order.
(f) Post on each of its tugboats and barges and at
its office in New York City, copies of the attached no-
tice marked ‘‘Appendix.’’8 Copies of the notice, on
forms provided by the Regional Director for Region 2
after being signed by the Respondent, shall be posted
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 fail to bargain collectively with the
Union, Local 333, United Marine Division, Inter-
national Longshoremen’s Association, AFL–CIO, as
the exclusive collective-bargaining representative of all
the employees in the unit described in the 1985–1988
agreement we have with the Union, including captains
and mates.
WE WILL NOT unilaterally change the description of
that unit, or withdraw recognition from the Union as
the exclusive collective-bargaining representative of
captains or unilaterally change the wages, hours of
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The letter is made part of the record as ALJ Exh. 1.
work, and other terms and conditions of employees in
that unit.
WE WILL NOT fail or refuse to reinstate unfair labor
practice strikers who apply unconditionally for rein-
statement to their former positions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of our employees in the
exercise of the rights guaranteed them by Section 7 of
the Act.
WE WILL restore, maintain, and give full effect to
the terms and conditions of the 1985–1988 agreement
with the Union, rescinding all changes made on or
after February 16, 1988, and WE WILL make whole unit
employees for any loss of earnings and other benefits
suffered as a result of the unlawful unilateral changes,
including making payments to the trust funds in the
1985–1988 agreement on behalf of each of these em-
ployees.
WE WILL offer each of the unfair labor practice
strikers, who applied for reinstatement on September 2,
1988, immediate and full reinstatement to their former
positions or, if for lawful reasons those positions no
longer exist, to substantially equivalent positions with-
out prejudice to their seniority or other rights and
privileges previously enjoyed, displacing if necessary
any employees hired as replacements for them.
WE WILL make whole, with interest, each of these
employees for losses they incurred by reason of their
not having been reinstated on September 2, 1988, and
WE WILL make payments to the trust funds in the
1985–1988 agreement, on behalf of each of these em-
ployees.
WE WILL bargain in good-faith with the Union as
the exclusive collective-bargaining representative of
the employees in the unit as described in our 1985–
1988 collective-bargaining agreement with the Union.
SPENTONBUSH/RED STAR COMPANIES
Larry Singer, Esq. and Nancy Reibstein, Esq., for the Gen-
eral Counsel.
Aaron Schindel, Esq. and Donald B. Shanin, Esq.
(Proskauer, Rose, Goetz & Mendelsohn), of New York,
New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint in these cases alleges that Spentonbush/Red Star Com-
panies (the Respondent) has engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. The Respondent, in renewal con-
tract negotiations with Local 333, United Marine Division,
International Longshoremen’s Association, AFL–CIO (the
Union) allegedly insisted on changing the geographic scope
of the bargaining unit and on removing employees in certain
job classifications from it. The Respondent is alleged to have
then unilaterally implemented those changes and others. The
complaint alleges further that the Respondent unlawfully
withdrew recognition from the Union as the representative of
employees in two of those classifications, that the unit em-
ployees struck in protest of all these unfair labor practices,
that the Union later made an unconditional offer to return to
work on behalf of about 170 striking employees, and that the
Respondent failed and refused to reinstate these employees.
The Respondent, in its answer, denies those allegations
and avers that Section 10(b) of the Act bars the General
Counsel from proceeding as to one of those allegations.
I heard this case in New York City beginning in April
1991. The hearing was adjourned indefinitely then. It re-
sumed in May 1992. In June 1992, it again was recessed in-
definitely. By letter to the parties on June 1, 1993, the hear-
ing was closed.1
On the entire record, including my observation of the de-
meanor of the witnesses and after consideration of the briefs
and supplemental briefs filed by the General Counsel and the
Respondent, I make the following
FINDINGS OF FACT
I. COMMERCE—LABOR ORGANIZATION
The Respondent transports oil and gasoline and functions
as an essential link in the transportation of freight and com-
modities in interstate commerce.
The Union is a labor organization as defined in Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent, a New York corporation, is a wholly
owned subsidiary of M. Amerada Hess Corp., a fully inte-
grated oil company known as Hess Oil. The Respondent is
comprised of a number of companies that are, essentially, di-
visions of the Respondent, all engaged in the transport of oil
and gasoline by tugboats and barges.
The Union, for many years, represented a unit of all em-
ployees on those vessels, including captains and mates. The
agreement that expired in 1979 covered the Respondent’s
crews performing work ‘‘in New York and vicinity.’’ In ac-
tuality that contract covered a much broader area. According
to one the of General Counsel’s witnesses, an issue arose in
1977–1978 as to how far from New York the contract would
apply in view of the phrase, ‘‘New York and vicinity.’’ In
the 1979 renewal contract negotiations that issue was dis-
cussed. The Union then engaged in a lengthy strike, seeking
to define, with precision, the geographic area in which the
unit employees worked. The end result of the strike was that
‘‘language was hammered out that defined the geographic
scope of the bargaining unit.’’ The agreed-on language was
incorporated into the 1979–1982 contract. It read:
This Agreement applies only to all licensed and unli-
censed Employees, employed on tugboats and self-pro-
pelled lighters and self-propelled and non-self-propelled
tank vessels owned or operated by the [Respondent], a
subsidiary company, an affiliated company or a com-
993SPENTONBUSH/RED STAR COS.
pany division in the Port of New York and vicinity and
as provided below in this Agreement.
(a) The [Respondent], including any subsidiaries or
affiliated companies, will continue to perform the work
in the following areas through employees covered by
this Agreement pursuant to the terms of this Agree-
ment.
1. The Port of New York and vicinity, which is
bounded as follows:
(a) on the south, the north end of Cape May, New
Jersey.
(b) on the north, the upper navigable reaches of the
Hudson River and all navigable tributaries thereto.
(c) on the east, the farthest reaches of the dumping
grounds for dumped materials emanating from the Port
of New York as well as all of the area west of a line
drawn from Montauk Point, Long Island to Watch Hill,
Rhode Island.
(d) on the west, all points on the New York State
barge canal system and including ports on the Great
Lakes reached through the canal system or St. Law-
rence River.
2. Any regular coastwise run having as one of its ter-
minal points a point in or north of Norfolk, Virginia.
(b) Nothing herein shall be construed to prevent a
subsidiary or affiliate (of Respondent) existing as of the
date of this Agreement from performing, pursuant to
any collective bargaining agreements to which it is a
party, the work customarily and traditionally performed
by it.
That language was retained in the succeeding 1982–1985
and 1985–1988 agreements.
The Union’s counsel had advised the Board’s Regional Of-
fice, during its investigation of a case related to the instant
case, that the foregoing language was the result of the strike
in 1979 that had been ‘‘largely over issues of work preserva-
tion.’’
The phrase ‘‘all licensed and unlicensed employees’’ con-
tained in the opening sentence of the clause quoted above re-
ferred to captains, engineers, deckhands, mates, and cooks
employed by the Respondent.
The 1985–1988 agreement contained a number of provi-
sions which the General Counsel asserts were unilaterally
changed by the Respondent on its expiration. Those provi-
sions are discussed separately below.
B. The Negotiations for a Renewal Contract
The agreement entered into in 1985 was due to expire on
February 15, 1988. On January 7, 1988 (all dates hereafter
are for 1988 unless stated otherwise), the Respondent gave
the Union a comprehensive proposal for a renewal contract.
Its proposal included the following language, as a replace-
ment for the paragraph in the 1985–1988 contract quoted
above:
This Agreement applies only to all engineers utilities,
deck engine utilities, and barge mates, employed on
tugboats, and barges owned or operated by Spenton-
bush-Red Star Companies in the port of New York.
(a) on the south, by the Verrazano Bridge.
(b) on the north, by the George Washington
Bridge.
(c) on the east, by the Throgs Neck Bridge.
(d) on the west, by New Jersey.
This Agreement shall apply to employment on all
equipment now covered by the Agreement and all
equipment hereinafter acquired by the employer.
The reference to ‘‘all engineer utilities, deck engine utili-
ties and barge mates’’ pertained to the classifications under
the 1985–1988 contract of engineers, deckhands aboard the
tugboats, and mates aboard the barges. By clear inference,
the Respondent’s proposal would exclude tugboat and barge
captains, tugboat mates, and cooks; those classifications as
noted above, were included in the unit description in the
1985–1988 agreement. In effect, the Respondent was propos-
ing to exclude the captains (and apparently the tugboat
mates) as supervisors and to eliminate the cook’s position so
that the crewmembers on the tugboats would have to buy and
prepare their own meals.
The Respondent’s proposal also sought substantial reduc-
tions in wages and benefits.
There were four negotiating sessions between the Union
and the Respondent prior to the expiration of the 1985–1988
contract. During that same interval, the Union was conduct-
ing separate negotiations with a group of seven other em-
ployers who were engaged in the same type business as the
Respondent.
The individuals negotiating for the Union were its presi-
dent, Albert Cornette, its attorney, Seymour Waldman, its
secretary-treasurer, Peter Gale, and its general organizer,
James Morrissey. Negotiating for the Respondent was Hess’
vice president for marine operations, John Gehegan, and its
attorney, Martin Oppenheimer.
The first session was held on January 7. It was brief. The
Union, on receiving the Respondent’s contract proposals, re-
jected them summarily as ‘‘drastic.’’ It informed the Re-
spondent that there would be a strike if agreement was not
reached by February 15.
At the second session, held on January 29, the Union ad-
vised that any reduction in the manning of the crews would
result in a strike. As to the Respondent’s proposal to limit
the geographical scope of the applicability of the contract, as
set forth above in the quoted language of its proposal, the
Union stated that if the Respondent got all its economic pro-
posals there then would be no need for that ‘‘scope’’ lan-
guage. Gehegan replied that that was ‘‘correct.’’ He added
that if the Respondent got its economic points, it would be
‘‘totally negotiable as far as scope was concerned,’’ that it
would be open ‘‘to discuss scope.’’
The third session took place on February 12. The Union
tendered a package offer which, it represented, would pro-
vide for a 13-percent reduction in the Respondent’s costs. It
stated that its offer was made on the understanding that the
contract changes contemplated there would be the only ones
to be made. The Respondent advised the Union that it would
review this proposal and cost it out. It also advised the
Union that, in any event, it insisted on excluding the captains
from the unit.
The fourth session was held on February 14. The Re-
spondent agreed then that the mates on its tugboats would re-
main in the unit. It also increased its wage rate proposal
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from that contained in its original proposal. The Union said
that it might seek an extension of the contract. The meeting
ended with the Respondent expecting that the Union would
call it to schedule another meeting prior to the contract expi-
ration date; the Union, for its part, awaited a call from the
Respondent. Neither side called.
The Union struck on February 16, 1988. All but 11 of the
approximate 170 individuals in the unit engaged in the strike.
The parties stipulated that, as of the date the strike began,
the Respondent made the following changes:
1. The position of cook was eliminated.
2. Contributions to the insurance and pension fund set
forth in the collective-bargaining agreements were suspended
and employees were covered under (the Respondent’s) health
insurance, pension, and savings/stock bonus plans.
3. On crew change day, the man coming on was paid for
the day.
4. Employees were reimbursed for transportation from the
major airport nearest their home to the vessel and back to
the same airport, provided the employee had worked a mini-
mum of 30 days.
5. Crew changes took place at a minimum of 30-day inter-
vals.
6. Manning on tugs consisted of one captain, one mate,
one engineer utility worker, and one deck engine utility
worker. Manning on barges consisted of one captain and one
mate.
7. Job assignments were made on the basis of merit and
ability.
8. Wages for the engineer utility workers ranged between
$155 and $175 per day. Deck engine utility workers were
paid $112 per day. Barge mates were paid between $125 and
$145 per day.
9. Tug mates were paid on a salary basis with annual sala-
ries ranging between $29,500 and $36,000 and were treated
as supervisors with respect to attendance at management
meetings and the like.
On March 2, the Respondent wrote the Union advising
that it withdrew the proposals it made on February 14 and
that it remains prepared to negotiate for a new contract.
On March 18, the Respondent and the Union met again.
At this meeting, the Respondent alluded to the Union’s pro-
posal of February 12 and stated that that proposal offered
only a 9-percent savings and not the 13-percent savings that
the Union had claimed. No reference was made at this meet-
ing to the geographic scope clause.
On April 29, the Respondent and the Union met for the
last time. The Union presented another offer. The Respond-
ent rejected it as still inadequate. No reference was made at
that meeting to the geographic scope matter.
C. The Geographic Scope Issue
The General Counsel contends that the Respondent’s pro-
posal to change the language describing the area in which the
contract is to be applicable is a permissive, not a mandatory,
subject of bargaining. The General Counsel further contends
that the Respondent unlawfully insisted on that proposal in
its negotiations with the Union and unlawfully implemented
it on the expiration of the 1985–1988 contract.
The Respondent asserts that its proposal was a mandatory
bargaining subject in that it was aimed at getting an accord
on the Respondent’s right to subcontract unit work and as it
was not aimed at changing the scope of the unit. The Re-
spondent further asserts that it did not bargain to impasse
thereon and that there is no evidence that it implemented this
proposal.
Permissive subjects of bargaining are those not involving
wages, hours of work, or other terms and conditions of em-
ployment of the employees in the bargaining unit. The sub-
contracting of work done by unit employees in a subject over
which the parties must bargain; the removal of employees
from the bargaining unit is a permissive subject. Compare
Western Publishing Co., 269 NLRB 355 (1984), with News-
paper Printing Corp., 232 NLRB 291 (1977).
Recently, the Board observed that distinguishing between
a proposal that would change the unit scope, i.e., a permis-
sive bargaining subject, and one that would change the work
to be assigned to unit employees, i.e., a mandatory subject,
sometimes triggers a ‘‘semantic debate.’’ The Board then de-
cided to abandon the attempt to draw such a distinction in
favor of an approach which would accommodate both inter-
ests. See Antelope Valley Press, 311 NLRB 459 (1993). In
that case, the Board stated that it would look at whether an
employer insists on a change in the unit description. Bargain-
ing to that end is unlawful. An employer may lawfully insist
on an addition to the unit description that would grant it the
right to transfer work out of the unit, provided that the union
is not deprived of the right to contend that the employees
performing the transferred work are to be included in the
unit.
The Respondent’s proposal obviously involves a change in
the unit description, and not an addition thereto. In the 1979–
1982 contract and subsequent contracts, subparagraph (b) in
the unit description permitted the Respondent to continue to
subcontract work but only to the extent that it had done so
prior to 1979. If the Respondent were seeking in the 1988
renewal negotiations, as it contends it was, to expand its
right to subcontract, it could have proposed an addition to
subparagraph (b). Such a proposal would have been perfectly
lawful under the rationale in Antelope Valley Press, supra.
The next issue to be considered is whether the Respondent
had insisted on bargaining thereon. The principle governing
this issue is clear. It is lawful to insist on matters within the
scope of mandatory bargaining and unlawful to insist on mat-
ters without. NLRB v. Borg-Warner Corp., 356 U.S. 342, 349
(1957).
The Union had, at the first bargaining session in 1988,
summarily rejected the totality of the Respondent’s proposal.
That proposal, on its face, reopened the unit scope con-
troversy that had led to a 2-month strike in 1979; it would
also reduce the unit complement by one-third and wages and
benefits materially.
At the second session, the Respondent’s vice president
made it clear that its scope proposal would be negotiable,
and possibly abandoned, if the Union met the Respondent’s
economic demands. In the remaining bargaining session, the
Union presented economic concessions to the Respondent in
an effort to satisfy its demands. At no time in those sessions
did the Respondent indicate that its bargaining position had
changed, vis-a-vis its scope proposal. I therefore find that the
Respondent, throughout the bargaining, had insisted on its
proposal to modify the unit description.
The Respondent seeks dismissal of this allegation on the
ground that there is no evidence that it implemented its geo-
995SPENTONBUSH/RED STAR COS.
graphic scope proposal. The gravamen, however, of the al-
leged violation is, as found above, the insistence in bargain-
ing on a permissive subject. In any event, the evidence, both
as noted in sections above and as discussed in sections
below, disclose such a pervasive abnegation of the 1985–
1988 contract by the Respondent as to compel a finding that
it, de facto, has indeed implemented, inter alia, its scope pro-
posal. Virtually nothing has been left of that contract to be
applied to the unit employees, whatever side of the waters
under the George Washington bridge its vessels are moving.
I find that the Respondent, by having in essence demanded
that the Union accede to its economic proposals before it
would consider dropping its geographic scope proposal, has
unlawfully insisted in bargaining on a permissive subject.
See Bremerton Sun Publishing, 311 NLRB 467 (1993);
Greensboro Coca-Cola Bottling Co., 311 NLRB 1022
(1993).
D. Alleged Unlawful Withdrawal of Recognition
The complaint alleges that, on and since February 16,
1988, the Respondent unlawfully withdrew recognition from
the Union as the bargaining representative of the Respond-
ent’s tugboat captain and barge captains by insisting that
they are supervisors. Initially, the Respondent contends that
Section 10(b) of the Act bars litigation of this allegation.
The unfair labor practice charge filed by the Union in
Case 2–CA–23282 on January 19, 1989 (i.e., a date more
than 6 months after the date of the alleged violation), states
as its basis, inter alia, that the Respondent withdrew recogni-
tion of the Union as the captains’ representative. The initial
charge in this proceeding was filed by the Union on August
3, 1988, in Case 2–CA–22970–2; it charged that the Re-
spondent has unlawfully failed to bargain with the Union by
having made unilateral changes in the terms and conditions
of employment of the unit employees. It is undisputed that
the Respondent has, since mid-February, insisted that its cap-
tains are supervisors as defined in the Act and that the Union
thus cannot represent them.
The Board has traditionally held that a late charge may be
timely filed if it is ‘‘closely related’’ to a timely filed charge.
See Redd-I, Inc., 290 NLRB 1115 (1988). In that case, the
Board stated:
In applying the traditional ‘‘closely related’’ test in
this case, we will look at the following factors. First,
we shall look at whether the otherwise untimely allega-
tions are of the same class as the violations alleged in
the pending timely charge. This means that the allega-
tions must all involve the same legal theory and usually
the same section of the Act (e.g., 8(a)(3) reprisals
against union activity). Second, we shall look at wheth-
er the otherwise untimely allegations arise from the
same factual situation or sequence of events as the alle-
gations in the pending timely charge. This means that
the allegations must involve similar conduct, usually
during the same time period with a similar object (e.g.,
terminations during the same few months directed at
stopping the same union organizing campaign). Finally,
we may look at whether a respondent would raise the
same or similar defenses to both allegations, and thus
whether a reasonable respondent would have preserved
similar evidence and prepared a similar case in defend-
ing against the otherwise untimely allegations as it
would in defending against the allegations in the timely
pending charge.
The charges filed in Cases 2–CA–22970–2 and 2–CA–
23282 involve substantially the same alleged conduct insofar
as the captains are concerned, i.e., the changing of their em-
ployment status to supervisors and thereby removing them
from the unit represented by the Union. They involve the
same time period and the same object. Also, there is no basis
to find that the Respondent was in any way prejudiced in liti-
gating these allegation. Thus, the August 1988 charge and
the January 1989 charge are closely related within the mean-
ing of Redd-I, supra. In that regard, see United States Can
Co., 305 NLRB 1127 (19892), and cases cited there. Accord-
ingly, I find no merit to the Respondent’s contention that this
matter is time-barred.
The substance of the allegation is now considered and its
merits turn on whether the captains are statutory supervisors.
As noted above, the Respondent had proposed in early
1988 that the renewal contract would apply only to all engi-
neer utilities, deck engine utilities, and barge mates working
on its vessels. Employees so to be classified were referred
to respectively in the record as engineers, deckhands, and
barge mates. In the 1985–1988 contract, the unit was com-
prised of employees in those classifications and also of the
tugboat captains, the barge captains, and the tugboat mates.
As earlier noted, the Respondent’s proposal in 1988 would
remove from the unit the latter three classifications. The
complaint alleges, and the Respondent’s answer admits, that
since on about February 16, 1988, the Respondent withdrew
recognition of the Union as the representative of the Re-
spondent’s tugboat captains and barge captains. As to the
tugboat mates whom the Respondent’s proposed contract
would also exclude from the unit, on February 14 the Re-
spondent had offered to agree that they would remain in the
unit. It was, however, stipulated at the hearing that, as of
February 16, the Respondent has treated its tugboat mates as
supervisors. The evidence pertaining to the alleged super-
visory status of the captains and, incidental thereto, of the
tugboat mates is discussed next.
As of early 1988, there were 11 tugboats and 11 barges
operated by the Respondent, each with 2 crews. Thus, the
Respondent then had 22 tugboat captains, 22 barge captains,
and 22 tugboat mates in a unit of about 176.
The barges are not self-propelled; they cost from $2 to $10
million each and are from 200 to 400 feet long and 40 to
75 feet wide. They can hold up to 110,000 barrels of gaso-
line or oil and are equipped with pumping and related ma-
chinery. The tugboats, which push or pull the barges, cost
from $2 to $6 million each and are from 75 to 115 feet long
and 24 to 34 feet wide.
The Respondent’s office is in New York City. In 1988, Jo-
seph Gehegan was the Respondent’s vice president in overall
charge of its operations. Reporting to him then was its gen-
eral manager, Stanley Chelluck, who was responsible for
day-to-day operations. Under Chelluck were an overall man-
ager of operations, a barge operations manager, a tug oper-
ations manager, and a group of seven dispatchers. The Re-
spondent, since prior to 1988, also had a facility in Brooklyn,
New York. That facility has been supervised by the Re-
spondent’s manager of engineering and safety. Under him
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were two port captains and three port engineers. The port
captains and port engineers visit terminals to ensure that the
Respondent’s vessels are operating properly, safely, and in
compliance with U.S. Coast Guard procedures.
As noted above, each of these vessels have two crews. In
early 1988, one crew was aboard usually for a 2-week pe-
riod; the second crew met the vessel at a terminal on its
route and relieved the first crew for the next 2-week period.
On a barge, a captain and a mate comprised one crew and
they alternated 6-hour watches during their 2-week stint. A
tugboat crew was comprised of a captain and a mate who al-
ternated 6-hour watches, two deckhands who also alternated
their 6-hour watches; an engineer who worked two 6-hour
watches daily; and a cook whose hours are not contained in
the record.
The composition of the respective crews were fairly stable
over the years; their wages and other terms of employment
were governed by the provisions of the collective-bargaining
agreement between the Respondent and the Union. For ex-
ample, hiring was done via the Union’s referral hall; senior-
ity regulated job transfers; captains received $5 a day more
than mates.
The captain, or the mate, depending on which one was on
watch, was in regular daily telephone contact with the dis-
patchers at the Respondent’s office concerning destinations,
shipboard needs, and related matters, referred to below.
The testimony offered by the parties respecting the status
of the captains was, not infrequently, adduced by hypo-
thetical questions and was conclusory. To put the evidence
in proper perspective, a detailed review of the accounts given
by the witnesses is necessary. Set out below are summaries
of those accounts.
The General Counsel called four witnesses, named below.
The respective accounts they gave respecting the duties of
the captains as of early 1988 are contained under each of
their names.
1. James Gillespie’s account
He began working for the Respondent in 1971 as a chief
engineer and was so employed as of February 15, 1988. He
maintained the tugboat’s diesel engines, and its electrical,
pneumatic, and hydraulic systems. He dealt directly with a
port engineer as to those matters, sending him the engineer-
ing logs he kept. The tugboat captain gave him no orders.
Whenever he determined that overtime work was required,
he performed it on his own initiative and later informed ei-
ther the captain or the mate, whichever one was on watch,
of his overtime hours, for transmission to a dispatcher in
New York for pay purposes. He had never been told that the
tugboat captain was his supervisor or that the captain had
any authority to discharge or discipline a crewmember. In
only 1987 and 1988 did the Respondent hold shoreside meet-
ings for chief engineers and captains. For the most part, safe-
ty concerns were discussed at those two meetings. He ob-
served over his 17 years in the Respondent’s employ that an
inexperienced deckhand was basically trained by the other
deckhand. On one occasion in about 1972, he and other
crewmembers had complained to the Respondent’s office that
their captain, who was a notoriously heavy drinker, had put
their lives in danger. They were told to put their complaints
in writing. They did so; their captain was discharged.
2. Daniel Blair’s account
Blair worked for 7 years as tugboat mate for the Respond-
ent before being promoted in 1978 to captain, a position he
held until the strike in 1988, discussed below.
There was only one occasion when he expressed his view
as to whether an individual should be hired. On that occa-
sion, he and another captain were told that the Respondent
was looking to hire a mate and they informed the Respond-
ent that they knew of a mate who was out of work. The
record does not disclose anything further as to that individ-
ual. Blair never prepared job evaluations for crewmembers.
On two occasions, Blair complained to the Respondent
concerning deckhands working with him. One was aboard on
a temporary basis. Blair complained that he was incompetent.
The Respondent’s personnel manager told Blair that he
would have to put up with that deckhand as no replacement
could be found. Blair complained also about another deck-
hand whom Blair believed ‘‘was definitely on drugs.’’ When
his complaint to the Respondent’s personnel manager proved
fruitless, Blair prevailed on the deckhand to quit.
In about 1985, Blair told the Respondent’s general man-
ager, Chelluck, that his mate, Rowerick, was incompetent
and should be let go. Chelluck told Blair that Rowerick had
worked on bigger boats; Rowerick stayed on as mate until
the strike in 1988.
On a third occasion, Blair called the Respondent’s office
to report that a deckhand, whenever he had a little too much
to drink, wanted to beat the mate up. A couple of days later,
the Respondent’s personnel manager called Blair to inform
him that that deckhand was being transferred to another tug-
boat.
Blair, as captain, had no authority over the engineer. As
to the cook, Blair turned over to him the food money that
was transmitted to him by the Respondent’s office. The cook
then purchased food and prepared the meals. The deckhand
on duty, when he was on watch, performed routine painting
and chipping work, in addition to handling towlines. When-
ever the deckhand had to work with a heavy hawser, that
deckhand would ‘‘break out’’ his counterpart who was off
duty and together they would be able to work with the haw-
ser. Similarly, the mate could ‘‘break out’’ the captain when
he felt that ‘‘another pair of eyes’’ was needed on deck.
The captain signs the log in which entries are made by
him and the mate. The captain also signs the timesheet that
lists any overtime hours worked by members of the crew as
a result of being ‘‘broken out.’’ He does the navigating of
the tugboat, a function that Blair characterized as ‘‘a rote
type thing.’’ When pulling or pushing a passenger ship, a
harbor pilot aboard the ship instructed the captain or mate on
the tugboat as to what to do. In the 1970’s, no license was
required to serve as a mate; one needed only ‘‘to learn to
steer.’’
None of the crew called him ‘‘captain.’’ The crew, includ-
ing the captain, has sat down with union representatives who
came aboard to talk over any problems that they might have.
Blair had attended meetings held once a year by the Re-
spondent for captains and engineers and at which they were
informed as to any changes in proceedings, e.g., changing a
fuel supplier. Labor relations matters were not discussed at
those meetings.
997SPENTONBUSH/RED STAR COS.
3. David Haggert’s account
In 1972, he began work for the Respondent as a deckhand.
In 1980, he was promoted to a mate’s position; in 1985, to
captain. A dispatcher told him, on his promotion to captain,
that he had been recommended by a captain and a former
captain.
When he first began working for the Respondent, he and
other crewmembers wrote to the Respondent’s office to re-
port that the captain of their tugboat was jeopardizing lives
because he was intoxicated. The record is silent as to what,
if any, action was taken by the Respondent respecting that
report.
On one occasion in about 1986, he recommended that a
deckhand, sent from the Union’s referral hall, be hired. He
did this by telling ‘‘the office that this deckhand . . . was
doing his job the way it should be done.’’ The record is si-
lent as to whether that deckhand was retained in the Re-
spondent’s employ.
An experienced deckhand does not have to be told which
cleat on a barge is the one to which a line is to be placed
on as the procedure is standardized. It takes a good deckhand
a couple of years to learn his job as he is always learning.
Haggert felt that he was responsible for overseeing ‘‘ev-
erything that is going on with the boat’’ but noted too that
everything he did, the mate did. Haggert acknowledged that
he had the authority to take the wheel away from the mate
if he thought it was necessary. The record does not disclose
the basis for this statement or that he ever did relieve the
mate of the wheel.
4. Raymond Schaeffer’s account
Schaeffer was hired by the Respondent 20 years ago. He
began as a barge mate and has been a barge captain for the
last 18 years. His prehearing affidavit notes that he was told
once, by someone whom he does not recall and whom he
thinks was not one of the Respondent’s managers, that if he
was unhappy with his mate, he could fire him. As captain,
he signs the logbook and payroll sheets and forwards over-
time pay requests to the Respondent’s office for review. He
and the barge mate handle lines; they also paint and clean
the barge. The Respondent’s general manager has inspected
his barge and told him what things had to be done. In 1985,
Schaeffer was sent a letter that was critical of the barge’s
condition. He wrote the Respondent’s general manager to
protest that ‘‘the vessel was in a satisfactory manner prior to
assuming responsibility for the vessel.’’ Schaeffer felt ambiv-
alent as to whether he was in charge of the barge as he took
his orders from a dispatcher.
The General Counsel placed in evidence various memo-
randa signed by the Respondent’s officials. One, dated De-
cember 29, 1981, was addressed to all captains under the
subject, overtime. This memorandum spelled out in detail the
circumstances in which the Respondent will pay for over-
time. For example it states that ‘‘if a deckhand is broken out
and a man is required to ride the barge, the deckhand who
is broken out and is [thus] on overtime will ride the barge.’’
The record indicates that a deckhand on watch who ‘‘rides
a barge’’ could claim overtime while on the barge; the fore-
going directive apparently was aimed as stopping such a
practice.
On August 19, 1981, the then newly hired marine super-
intendent, Chelluck, sent all captains and chief engineers a
detailed memorandum on the subject, operating procedures.
It states in general their responsibilities, e.g., maintaining the
appearance and upkeep of the vessel. It also notes that port
engineers will be visiting each vessel frequently to handle
problems and to ‘‘minimize the opportunity for disparities in
performance’’ among the two crews aboard. The memoran-
dum informed the captains and engineers of the detailed re-
sponsibilities of the port engineers and provided each of
them with a lengthy checklist to be filled out and submitted
to the respective port engineer assigned to their vessel.
On August 4, 1987, Chelluck wrote to a barge captain and
a barge mate to criticize them about the loading sequence
used that commingled products and warned them that ‘‘any
repeat of a similar disaster will be dealt with proportionate
disciplinary action.’’
On January 9, 1986, Chelluck wrote ‘‘All Hands’’ aboard
a barge to instruct them to cooperate with all terminal per-
sonnel and to direct them in specific areas as to how lines
are to be handled and hoses rigged. They were told to call
a port captain if they had any questions.
The Respondent called five witnesses whose respective ac-
counts follow:
5. Paul Allen’s account
Allen has been a tugboat captain in the Respondent’s em-
ploy since 1977.
A typical voyage for his vessel began in the Port of New
York, proceeded through the Long Island Sound to a destina-
tion in Massachusetts. When severe weather was encoun-
tered, the tugboat was put at anchor in one of several bays
on that route.
As captain, Allen is responsible for the safety and welfare
of his crew. In that regard, he can take the wheel from his
mate in a storm.
Prior to February 16, he had not been told by the Re-
spondent as to what authority he had as captain. Rather, he
understood from his work experience what his authority was.
He had been asked by the Respondent to give oral evalua-
tions as to the job performances of crewmembers. His rec-
ommendations as to whether a crewmember should or should
not be retained in the Respondent’s employ were followed
about 50 percent of the time.
On one occasion a cook on his tugboat had been drinking
and had to be carried by two crewmembers. Allen had him
discharged. The record contains no details as to how that
cook’s discharge was effected. On another occasion, his rec-
ommendation that an engineer be transferred from his tug-
boat was honored.
His tug does ‘‘ship work’’ and it also moves barges. In
doing ‘‘ship work,’’ he follows the directions given by the
harbor pilot who is aboard the ship being moved by his tug-
boat. His tugboat pulls or pushes barges. He instructs deck-
hands unfamiliar with the procedures in moving barges as to
their duties. When they became familiar with the process,
they would do it routinely.
When Allen was assigned to a different tugboat, he asked
that the members of the crew he had worked with also be
assigned to that boat and they were.
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Allen assigned deckhands to painting and chipping work.
The collective-bargaining agreement between the Respondent
and that Union specified the hours during which this work
was to be done. Allen could ‘‘break out’’ the cook to paint
his galley; the cook spent about 18 hours a year on that task.
Allen has no recollection of having seen, prior to 1988, a
copy of a manual of operating procedures issued by the Re-
spondent.
6. William Serba’s account
Serba has worked for the Respondent since 1962, pro-
gressing in that period from deckhand to tugboat captain. His
tugboats have gone as far, from the New York harbor, as
Boston and the Great Lakes. His responsibilities are to over-
see the crew, to account for expense moneys, to ensure that
the vessel is properly stored and that it is safely navigated.
He can refuse an assignment if weather conditions are not
right, but has no specific recollection of ever having done so.
On two occasions, the Respondent’s general manager
asked him for his opinion as to individuals who were being
considered for promotion to captain. The individuals he
named were promoted. Serba could not recall the details as
to how one of those individuals was promoted. The com-
ments he gave respecting that individual were based on that
person’s reputation and on those occasions when Serba ob-
served him while he was working on a vessel which was not
captained by Serba. As to the other individual, Serba was
asked for his ‘‘input’’ and he advised the Respondent that
the individual ‘‘could handle the job.’’
On two occasions, crewmembers on his tugboat were ter-
minated. One, a cook who was under the influence of liquor,
was discharged at the end of the voyage. The second, a mate,
had grounded the tugboat while on watch. Serba gave con-
flicting accounts as to what he reported to Respondent as to
that mate’s qualifications.
Serba assigned painting and chipping duties to the deck-
hands.
At one time, the cook aboard his tugboat had a grievance.
Serba was not involved in adjusting that grievance.
7. Colby Hoyt
Hoyt has been a barge captain in the Respondent’s employ
for the last 10 years. Previously, he had been a mate for over
2 years.
His barge contains tanks, pump engines, locker systems,
lines, a windless, and living quarters. It is 328 feet by 61 feet
and can carry 65,000 barrels of oil.
Hoyt maintained a logbook, kept overtime records, had to
ensure that the barge was kept on an even keel during load-
ing and unloading and performed painting and chipping work
along with the mate. Hoyt also trained newly hired barge
mates.
In 1977 (apparently at a time when he may not have been
in the Respondent’s employ), a mate who had been drinking
disappeared for a couple of days. That individual later left
the barge during the course of a voyage. Hoyt told personnel
that he did not want to work with that individual. Hoyt never
saw that man again.
Another mate, who had been on the job for only 1-1/2
weeks had opened the wrong valve, causing a spillage. Hoyt
requested that that mate not be sent back to his barge. Hoyt
never saw him again.
Hoyt had ‘‘suggested’’ to the Respondent that another
mate was not very competent but that individual stayed on
the barge.
The Respondent’s manual of operating procedures refers to
the captain of a barge as ‘‘Master.’’ Hoyt had not familiar-
ized himself with that manual.
A port captain examined his barge at periods varying from
four to five times a week to, at times, only once a month.
It is the Respondent’s policy to investigate any complaint
made by a captain to determine if it has merit, before any
crewmember is discharged.
8. Stanley Chelluck’s account
Chelluck started working for the Respondent in 1981. He
began as its marine superintendent and became its general
manager in about 1985. As marine superintendent, he was re-
sponsible for the maintenance and repair of the Respondent’s
vessels. As general manager, he has taken on various admin-
istrative duties.
Respecting the Respondent’s hiring process, Chelluck re-
lated that when boat personnel were referred from the
Union’s hall, he would check with ‘‘senior tug people’’ on
barge captains ‘‘to see if they knew’’ the individuals re-
ferred.
Captains had ‘‘full authority in [terminating employees]
certainly within the guidelines of company policy.’’
When requests for overtime pay were received, questions
thereon were directed by Chelluck to the captains. The Re-
spondent’s guidelines govern overtime pay. As to employee
evaluations, the captains’ input was sought.
Chelluck recalled an instance where a captain fired an em-
ployee who then complained to Chelluck. Chelluck inves-
tigated the complaint. As a result, the employee was rein-
stated; the captain quit.
Chelluck has instructed the operations managers to check
with crewmembers whenever any captain reports that he has
a problem with a crewmember.
In 1986, Chelluck had been informed that the crew on one
barge had been uncooperative. He sent a memoranda ad-
dressed to ‘‘All Hands’’ on that barge respecting that matter.
He gave directions as to how they are to deal with suppliers
and customers, how lines are to be received and when they
are to be slacked off and when they are to be doubled, and
how the cargo hose boom is to be rigged. They were in-
structed to let their port captain know if they have any ‘‘dif-
ficulty in accommodating [these] procedures.’’
Respecting the Respondent’s policy as to alcohol or drug
use, everyone on board has an obligation to notify the Re-
spondent’s office of any violation.
9. Joseph Gehegan’s account
In 1988, he was the Respondent’s vice president for ma-
rine operations. He made the final decisions as to promotions
and transfers of crewmembers and did so based on his own
observations and on the views he solicited from managers
and captains. He transferred Captain Edward Kessler to a
larger vessel after giving ‘‘strong weight’’ to recommenda-
tions he received from Captain Serba and ‘‘one or two other
masters.’’ Gehegan does not know if Kessler ever had
worked with Serba. Gehegan also was familiar with Kessler
as he had checked out the equipment on his boat, and as he
999SPENTONBUSH/RED STAR COS.
had ‘‘talked to the people’’ and had examined records in
order to get an understanding of Kessler’s abilities.
Gehegan had similarly transferred Captain Wills when
Captains Serba and Kessler recommended him. Gehegan
could not recall the details as to those recommendations. The
Respondent’s ‘‘operation people’’ were also familiar with
Wills’ qualifications.
Gehegan did not promote a barge mate after Captain
Clebolt, Captain Olson, and Port Captain Dewer indicated
that that mate had a problem with alcohol.
In 1980, 1981, and 1982, he held meetings with the cap-
tains to inform them of the Respondent’s operations, to dis-
cuss safety issues, and to ‘‘reinforce’’ the idea that they were
the Respondent’s ‘‘managers afloat.’’
In January 1988, Gehegan wrote to the captains to inform
them that they were the Respondent’s ‘‘managers afloat.’’
In January 1988, Gehegan wrote to the captains to inform
them they could choose to ‘‘[come] ashore as part of . . .
management and having no union representation’’ and to ad-
vise them that the Respondent’s structure at that time did not
permit its supervisory personnel to act as front line manage-
ment.’’
The Respondent’s personnel manager developed informa-
tion on any situation which might involve an adverse deci-
sion concerning a crewmember. Chelluck and Gehegan re-
viewed that information before making a decision on that
matter.
The Respondent’s office reviews overtime vouchers ap-
proved by captains to ensure that they meet the guidelines
set up by Gehegan in a December 1981 memorandum. Those
guidelines specify which deckhand is to ‘‘ride the barge’’;
they require that timecards which contain overtime hours
must state the specific work done during those overtime
hours; and they provide that overtime for maintenance and
repair work in excess of 12 hours must first be cleared with
the marine superintendent.
The Respondent placed in evidence documents from which
the following excerpts have been extracted.
1. Written evaluations prepared by 14 of the captains in
1979 and 1980.
2. Respondent’s operations manuals for its personnel that
state:
(a) that the captain has absolute command of the ves-
sel and has full authority over all phases of its oper-
ation at all times, both in port and at sea.
(b) that the captain shall take prompt steps to adjust
equitably complaints from ship’s personnel and that
suitable procedures . . . in accordance with . . . collec-
tive-bargaining agreements, shall be followed as far as
practicable.
(c) that captains are the direct representatives of the
Respondent.
3. Cover sheets of the personnel folders of 16 crew-
members that reflect their employment status. Chelluck had
identified these folders but had no recollection as to the nota-
tions. The folders contained comments such as ‘‘Chris Weiss
highly recommends him’’ and handwritten notes, such as a
letter from a captain complaining about two crewmembers.
4. Ten more cover sheets, with notations that most of these
crewmembers were discharged by captains for drinking alco-
hol or refusing to work. Chelluck also had no recollection as
to the circumstances alluded to on those cover sheets. He
stated that certain notes reflect that he made his own inde-
pendent investigation.
5. A June 6, 1982 memorandum by Gehegan to all cap-
tains directing them to post it in the galley for all hands to
read and advising that any member on board who is under
the influence of drugs or alcohol will be terminated and that
the captain is responsible for enforcing this policy.
6. A memorandum to captains and engineers designed to
define their respective functions, inasmuch as they involve
‘‘a very sensitive subject especially in dealing with two men
in the same union, with the same pay . . . .’’ They were in-
formed that port engineers were assigned specific vessels that
they will visit frequently to handle problems.
10. Analysis
The Respondent, as the party asserting that the captains
are supervisors not protected by the Act, bears the burden of
proving that they are supervisors. Health Care & Retirement
Corp., 306 NLRB 63 fn. 1 (1992).
The Respondent and the General Counsel have pointed to
various nonstatutory factors that pertain to the status of the
captains. The Respondent, on the one hand, offered evidence
that its barges and tugboats were very expensive to build, are
large and complex, and require skillful handling to avoid se-
rious environmental damage resulting from an oil spillage.
Those considerations appeared to be significant in a decision
finding that captains were supervisors; the Board adopted it,
relying, however, on findings as to certain of the statutory
criteria in Section 2(11) of the Act. See Sun Refining & Mar-
keting Co., 301 NLRB 642 fn. 2 (1991). The General Coun-
sel, on the other hand, has alluded to the abnormally low
ratio of supervisors to barge mates, should the barge captains
be supervisors. The barge captains, port captains, port engi-
neers, and others would readily outnumber the barge mates.
The supervisory-employee ratio would be a little different for
the tugboat captains. While a tugboat captain is on his 6-hour
watch, there is but one deckhand on that same watch; the
cook and the engineer work for the most part on their own
while the mate and the other deckhand are off-duty except
for an occasional breakout. The Board, however, has ob-
served that the supervisor-employee ratio may be a useful in-
dication but it is not a definitive factor. See Phelps Commu-
nity Center, 295 NLRB 486, 492 fn. 16 (1989).
Again, the Respondent showed that its vessels sail long
distances from their home port. In Mon River Towing, 173
NLRB 1452, 1455 (1969), then Trial Examiner Klein stated,
in finding a boat captain to be a supervisor, that it is incon-
ceivable that employees on an around-the-clock operation for
several days or even weeks at a time would be left without
present supervision. The General Counsel’s brief suggests
that none of the Respondent’s crew is left without super-
vision at any time in view of the regular communications
that the captains and mates have with the office, a factor
noted in McAllister Bros., 278 NLRB 601 fn. 3 (1986). Ob-
viously, if distance were controlling, the status of the cap-
tains need not have been litigated but would have been dis-
posed of summarily. The Respondent also relies on the testi-
mony that its captains are responsible for the safety of the
vessels. That does not confer supervisory status on them. See
Graham Transportation Co., 124 NLRB 960, 962 (1959).
There were other secondary factors in the record as to the
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
captains’ status, e.g., nomenclature, the crews’ perception of
the captains, comparison of their functions with others, the
bargaining history, and pay differentials. Suffice it to state
that, while all the secondary indicia lend color, the evidence
respecting the statutory criteria is paramount.
For that matter, analogies to prior cases involving similar
issues, while helpful, are not dispositive. In A. L. Mechling
Barge Lines, 197 NLRB 592 (1972), captains of tugboats op-
erating on inland waterways, each with a crew of three deck-
hands, were found to be supervisors. Compare that case with
Bridgeport & Port Jefferson Steamboat Co., 313 NLRB 542
(1993), in which the Board noted that, in a prior representa-
tion case, it had found that captains of a six-man crew on
ferryboats operating in Long Island Sound, each with 1000
passengers aboard, were employees. See also NLRB v. Bilker
Towing Co., 284 F.2d 118 (5th Cir. 1960), in which the court
deferred to the Board’s exclusion of six tugboat captains
from the unit found appropriate in that case; the court also
stated, ‘‘clearly, the Board here might properly have included
these captains . . . but [the court refrained] from interfering
with the Board’s determination that the unit without the cap-
tains is an appropriate unit.’’
Recently, the Board reviewed in depth the precedential
background of Section 2(11) of the Act. Its determination as
to the status of certain charge nurses in that case was based
on a detailed review of the evidence relating to specific stat-
utory indicia. See Mortuaries Nursing Home, 313 NLRB 491
(1993). That is the approach used below.
Section 2(11) of the Act sets forth the statutory definition
of supervisor by enumerating certain authorities in the dis-
junctive as follows:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such 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.
The collective-bargaining agreement between the Union
and the Respondent circumscribed many of those functions,
insofar as they pertained to the captains. The agreement pro-
vided that crewmembers shall be hired via referral from the
Union; transfers and layoffs were governed by seniority; dis-
ciplinary measures were spelled out as were relevant griev-
ance procedures; and job assignments were specified in many
aspects.
The basic issue is whether the Respondent has proved that
its barge captains and its tugboat captains had the authority
to effectively recommend the hire or the transfer or the sus-
pension, etc., of employees or that they had the authority to
responsibly direct them. The Respondent must show that any
such authority required the use of independent judgment and
was not a routine matter.
The testimony of the Respondent’s witnesses, Gehegan
and Chelluck, indicates that they conduct independent exam-
ination of all complaints they received from captains or other
crewmembers before they took any action that may be ad-
verse or to any crewmember, whether it be to discharge,
transfer, suspend, layoff, or otherwise discipline. Similarly,
while Gehegan sought out the advice of some of senior tug-
boat captains when he considered promotions to better posi-
tions or transfers to larger vessels, he took their advice in
context with his own observations, and those by port captains
and other supervisory personnel. The testimony of another of
the Respondent’s witnesses, Tugboat Captain Allen, is that
his recommendations were followed 50 percent of the time.
The General Counsel’s witnesses offered testimony to the
same effect. It is clear, from the foregoing, that the rec-
ommendations made by the captains had been independently
examined by their supervisors and thus cannot be said to
have been effective recommendations as contemplated by
Section 2(11) of the Act. See Scranton Tribune, 294 NLRB
692 (1989). For the same reason, I attach no probative
weight to the many and varied conclusory materials proffered
by the Respondent, including personnel folder notations, oth-
erwise unsupported, that some captains had disciplined crew-
members or recommended discipline, and including operation
manual provisions, which apparently went unread and which
stated that its tugboat captains had full responsibility over the
other crewmembers. I find that the Respondent has not met
its burden of proving that the tugboat captains, or the barge
captains for that matter, possessed the authority, prior to the
1988 strike, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, reward, or discipline other employees or to
adjust their grievances or effectively to recommend any such
actions.
As the 2(11) criteria are written in the disjunctive, there
remains for consideration the issue as to whether the captains
possessed the authority, in the interest of the Respondent, to
responsibly direct employees, provided that the exercise of
such authority is not of a routine nature but requires the use
of independent judgment. The duties they exercise, while
many serve the employees’ interests in having a safe, clean
vessel, clearly are performed in the Respondent’s interests.
Cf. Olin Masonic Home, 295 NLRB 390, 395 (1989). The
issue turns rather on whether directions given to the crew are
more than routine in nature.
It appears that the tugboat captains may not even articulate
directions to the mates. The mates routinely steer the vessels
along established routes. Thus, as one captain described it,
his vessel goes up on one side of the Long Island Sound and
returns via the other side. The mate routinely maintains the
vessel’s log while on watch. The painting and chipping work
by the deckhands has been described as but involving their
starting at the top and working their way downwards. The
persuasive evidence is that these deckhands, after initial on-
the-job training by experienced deckhands and other crew-
members, perform their work in accordance with procedures
long in existence. A deckhand’s handling of hawsers and the
need to break out the second deckhand to assist them are
standardized functions; assignments to painting and chipping
work are in relevant part controlled by provisions in the col-
lective-bargaining agreement and are ongoing duties per-
formed respectively by the deckhands; overtime work has
been defined very precisely to the crews by the Respondent
and timecards submitted by captains for approval thereof are
closely scrutinized; the securing of lines to cleats on the
barges obviously cannot be done haphazardly without risk
but experienced deckhands secure those lines on a regular,
recurring basis, according to the credited accounts of General
1001SPENTONBUSH/RED STAR COS.
Counsel’s witnesses, which at least one of the captains, who
testified for the Respondent, has corroborated. The Respond-
ent has shown that the tugboat captains, in handling the
wheel, possess and exercise a considerable level of skills.
The exercise of those skills in performing their own job is
not what is contemplated by the Act insofar as the issue of
supervisory status is concerned. More must be shown than
that the captains were skilled workers directing helpers. See
Soil Engineering & Exploration Co., 269 NLRB 55 (1984).
More importantly, a tugboat captain’s laying out the route on
which the vessel is to be steered by himself and the mate,
while on their respective watches, is based on his skills and
experience. It does not involve the exercise of independent
judgment in assigning work among employees as con-
templated by Section 2(11) of the Act and thus is not an in-
dicium of supervisory authority. Cf. Beverly Enterprises,
supra at 4. Further, the mate on one of the Respondent’s tug-
boats is the only crewmember aboard who can relieve a cap-
tain at the wheel. Clearly then, the selection of the route to
be followed does not call for the use of any discretion in as-
signing work among unit employees. In that regard, cf. Delta
Mills, 287 NLRB 367, 371 (1987).
Some of the Respondent’s own actions demonstrate that it
itself had an ambivalent view as to whether its captains were
supervisors, e.g., its long-term recognition of them as unit
employe. Gehegan’s January letter to the captains that they
were not then ‘‘front line management,’’ its stated willing-
ness to consider waiving its demand to change the descrip-
tion of the unit (which, inter alia, excluded the captains and
mates) if the Union met its economic demands, and its later
concession as to the mates while pressing these economic de-
mands. Further, the Respondent had never told the captains
prior to the 1988 strike that they were supervisors whereas,
after the strike began, it did so and provided them with train-
ing as supervisors.
The evidence, as recounted by both the General Counsel’s
and the Respondent’s witnesses, demonstrates that the Re-
spondent has failed to meet its burden of proving that the
tugboat captains or the barge captains responsibly direct the
other crewmembers.
To summarize, while there are considerations that strongly
suggest supervisory status—the traditions of the sea whereby
captains are viewed as masters of their vessels when on voy-
age, the size and cost of the tugboats each with a crew of
six, the nature of the cargo, which must be protected against
an environmentally damaging spillage, and the long distances
traversed—and while there are countervailing considerations,
the evaluation of the factors directly bearing as to the essen-
tial issue, the nature of the authority possessed by the cap-
tains in the Respondent’s interest as to the exercise of the
indicia set out in Section 2(11) of the Act demonstrates that
the Respondent has not met its burden of proving that these
captains were supervisors.
The complaint alleges that the Respondent withdrew rec-
ognition from the Union as the captains’ bargaining rep-
resentative not only in violation of its duty to bargain collec-
tively but also in order to discourage unit employees from
supporting the Union. A failure to bargain in good faith does
not, by itself, establish the animus essential to prove unlaw-
ful discrimination. See Outboard Marine Corp., 307 NLRB
1333, 1337 (1992). A failure to bargain collectively, how-
ever, may also constitute a violation of Section 8(a)(3) when
supported by independent evidence. Venture Packaging, 294
NLRB 544, 550–556 (1989). In the instant case, the Re-
spondent, in January, asked its captains to become part of
management and to give up the Union. On February 15, it
purported to make that choice for them. There was no show-
ing of any changed circumstances there which could explain
its action, other than a wish to undermine the unit employ-
ees’ support of the Union. If the Respondent genuinely felt
that it was desirable to clarify the captains’ status, it could
have had recourse to the Board’s unit clarification proce-
dures. Instead, by its preemptive conduct, it forced its em-
ployees to choose either to abandon a significant part of the
unit complement or to strike. It takes no sophisticate to real-
ize the element of risk the employees faced in such a
strike—were the captains found to be supervisors, a strike to
compel their inclusion in the unit might well be unprotected
and the jobs of the strikers forfeit. The solicitation of the
captains by the Respondent to join management, the Re-
spondent’s later unilateral decision to absorb the captains
into its management structure, the absence of any compelling
reason why the Respondent acted then after so many years
of peaceful negotiations respecting the captains’ unit place-
ment, and the finding below as to the Respondent’s failure
to reinstate the striking employees all warrant a clear infer-
ence that the Respondent’s withdrawal of recognition was
motivated in part by a desire to weaken its employees as to
their supporting the Union. There is no evidence in the
record which would rebut that inference. In these cir-
cumstances, I find that the Respondent’s withdrawal of rec-
ognition was not only in derogation of its duty to bargain
collectively with the Union but also was violative of Section
8(a)(3) of the Act.
E. The Strike-Changes in Wages and
Working Conditions
On February 15, the Union held a meeting, attended by
about 2000 of its members, for a strike vote against the Re-
spondent and other companies engaged in the same type
business and with whom the Union had contracts which ex-
pired that same date. At the meeting, the Union’s president
discussed the proposals that had been made by the Respond-
ent and other companies. In particular, he referred to the
clause, discussed above, which changed the description of
the unit. He stated that, under that clause, employees on a
vessel that goes beyond the George Washington bridge may
no longer be covered by a collective-bargaining agreement.
He spoke also of the reductions in manning the vessels and
the various economic proposals made by the Respondent and
the other employees. The Union’s secretary-treasurer spoke
next. He noted that the Union had struck in 1979 for 60 days
to obtain the language describing the unit as it appeared in
contracts signed since then. The members voted unanimously
to strike. It began on February 16. Of the approximately 176
employees in the Respondent’s employ then, all but 11
struck.
The captains who continued to work for the Respondent
on and since February 16 were told by the Respondent that
they were now part of management and they were required
to attend supervisory training courses. The Respondent also
put into effect the changes as noted above, e.g., the cook’s
position was eliminated, tugboat mates were treated as super-
visors, and new benefit plans were substituted. As these
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
changes were made after the Respondent had unlawfully in-
sisted on changing the description of the bargaining unit and
after having withdrawn recognition from the Union as the
bargaining representative of its captains who were employees
under the Act, I find that the implementation of those
changes by the Respondent as of February 16 was in deroga-
tion of its duty to bargain collectively with the Union. See
Bradford Coca-Cola Bottling Co., 307 NLRB 647 (1992). I
further find that the strike against the Respondent was caused
and prolonged by the foregoing unfair labor practices.
F. The Offer to Return to Work
On September 2, the Union wrote the Respondent as fol-
lows:
By this letter [the Union] makes an unconditional
offer, on behalf of all members of the bargaining units
covered by the expired collective-bargaining agree-
ments, to return to work under the terms and conditions
that existed under the expired collective bargaining
agreement. As you know, [the Union] believes that, as
a result of your unfair labor practices, any changes in
the terms and conditions that existed under the expired
agreements are unlawful. Please contact us immediately
to arrange for an orderly return to work.
On September 8, the Respondent’s counsel replied as fol-
lows:
We write on behalf of [the Respondent] in response
to your letter dated September 2, 1988. [The Union’s]
offer, on behalf of its members, to return to work under
the terms that existed in the expired collective-bargain-
ing agreement is not acceptable in light of the fact that
the [Respondent] has changed the wage rates for its em-
ployees following your union’s strike and the bargain-
ing impasse over the new contract’s economic terms.
On September 20, the Union wrote the Respondent as fol-
lows:
This is in response to your letter dated September 8,
1988. The offers of reinstatement contained in our Sep-
tember 2, 1988 letter are unconditional under the appli-
cable law. That we expect the employees to return
under the terms and conditions of the expired agree-
ments merely states the obligation of the [Respondent]
to return the employees to work under the terms and
conditions of employment that would have existed but
for the employers’ unlawful conduct; in this case, the
terms and conditions that existed before the expiration
of the contracts.
On September 28, the Respondent answered that letter, as
follows:
[The Union’s] offer, on behalf of its members, to return
to work continues to be conditioned on the [Respond-
ent] changing existing terms and conditions of employ-
ment. The [Respondent] has not engaged in any unlaw-
ful conduct and, therefore, your conditional offer to re-
turn to work is not acceptable.
In the exchange of the letters set out above, the Union had
offered, on behalf of the striking employees to return to work
under the conditions as they were just prior to the start of
the strike. The Respondent rejected the offer as a conditional
one and contends that the offer thereby did not obligate the
Respondent to reinstate any of its striking employees.
The Board, however, has ordered an employer to offer re-
instatement to unfair labor practice strikers who have been
denied reinstatement as a consequence of its failure to rein-
state them to their former or substantially equivalent jobs,
without prejudice to their seniority or other rights. See Wa-
terbury Hospital, 300 NLRB 992, 1011 (1990), enfd. 950
F.2d 849 (2d Cir. 1991). In essence, the Respondent itself
had unlawfully conditioned the reinstatement of the strikers
to their accepting the terms and conditions it itself had un-
lawfully imposed. In so doing, the Respondent effectively
had constructively discharged the striking employees. Cf.
Control Services, 303 NLRB 481, 485 (1991). The Respond-
ent’s contention would have merit if the striking employees
had sought redress of an unfair labor practice other than one
which materially changed their own conditions of employ-
ment from those that existed when the strike began. This
principle was established in the earliest days of the Board,
as well as the very one controlling the issue in this case.
Thus, an employer need not honor a request by strikers to
be reinstated where they condition this request on his em-
ployer’s reinstating an unlawfully discharged employee or
who are unwilling to return to work under conditions exist-
ing at the time the strike was called. Fansteel Metallurgical
Corp., 5 NLRB 930 (1938). Where an employer required
striking employees to accept unlawful conditions it imposed,
however, it thereby has treated them as discharged employ-
ees. See American Mfg. Co., 5 NLRB 443, 467 (1938). In
a more recent case, Honda of Hayward, 307 NLRB 340
(1992), the Board ordered the employer there to rescind uni-
lateral working conditions and to offer jobs to applicants
who had been unlawfully denied employment. This is the
course that the Respondent should have followed, rather than
require its captains and tugboat mates to be unrepresented,
rather than have its engineers come back as deckhands and
perhaps its cooks as well, and rather than require the striking
employees to accept the other changes it had unilaterally im-
posed.
I therefore find that the Respondent, since September 2,
has unlawfully failed and refused to reinstate the approxi-
mately 165 of its employees who were engaged in an unfair
labor practice strike and for whom the Union had uncondi-
tionally requested their reinstatement to their former jobs.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. At all times material, the Union has been the exclusive
collective-bargaining representative of all employees of the
Respondent referred to in the unit as described in the 1985–
1988 collective-bargaining agreement between the Respond-
ent and the Union, including tugboat captains, barge captains,
tugboat mates, barge mates, deckhands, engineers, and cooks.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act as
1003SPENTONBUSH/RED STAR COS.
it failed to bargain collectively with the Union respecting the
employees in the unit described above by having insisted on
changing the description of that unit, by having withdrawn
recognition from the Union as the collective-bargaining rep-
resentative of its captains and by having unilaterally imposed
on the employees in the unit described above changes in
their wages, hours of work, and other terms and conditions
of their employment.
5. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act by
having withdrawn recognition from the Union as bargaining
representative of its captains in order to discourage crew-
members from supporting the Union, and by having failed to
honor the unconditional offer made on behalf of its employ-
ees, engaged in an unfair labor practice strike, for reinstate-
ment to their positions of employment as they existed when
the strike began.
6. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has committed viola-
tions of Section 8(a)(1), (3), and (5) of the Act, I shall rec-
ommend that it be required to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act. I shall recommend that the Respondent
be ordered to restore and to maintain and give full effect to
the terms and conditions of the 1985–1988 agreement until
a new agreement is reached or until a lawful bargaining im-
passe exists. I shall recommend that the Respondent offer
each of its employees, for whom the Union sought reinstate-
ment on September 2, 1988, immediate and full reinstate-
ment to their former positions of employment or, if for law-
ful reasons those positions no longer exist, to substantially
equivalent positions without prejudice to their seniority or
other rights, privileges and benefits previously enjoyed, dis-
placing if necessary any employees hired as replacements for
them. I shall also recommend that the Respondent make
whole these employees for any losses in wages and benefits
that they incurred by reason of the Respondent’s failure to
honor the request to reinstate them to their former positions
of employment, to be calculated in accordance with the for-
mula set out in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest thereon as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). The Respondent shall be
ordered to make payments on behalf of these employees, as
of and since the date they had offered and been denied rein-
statement, to the various trust funds established by the terms
of the 1985–1988 agreement, the amount of any interest
thereon to be determined in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In making
these employees whole, with interest, respecting their lost
benefits, the reimbursement shall include, among any other
losses, medical and dental bills they have paid to health care
providers that the contractual policies would have covered,
for any premiums they may have paid to third-party insur-
ance companies to continue medical and dental coverage in
the absence of the Respondent’s required contributions, and
for contributions they themselves may have made for the
maintenance of the contractual trust funds after the Respond-
ent unlawfully discontinued or failed to make contributions
to those funds. Kraft Plumbing Co., 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981). Reimbursement
shall be with interest in the manner prescribed in New Hori-
zons, supra. The Respondent shall also be required to reim-
burse the Union for any dues which, pursuant to dues-check-
off authorizations, they failed to deduct or would have been
required to deduct from those employees’ paychecks and to
transmit those moneys to the Union as required by contract,
insofar as the Union has not obtained such dues directly from
employees, with interest under New Horizons, supra.
[Recommended Order omitted from publication.]