This decision addresses a petition filed by the International Organization of Masters, Mates & Pilots seeking to represent a bargaining unit of captains and chief mates employed by Foss Maritime Company, LLC in its Oceans/Project Services Division. The Employer contended that these employees are statutory supervisors and therefore excluded from the protections of the National Labor Relations Act (the Act).

The Regional Director found that the Employer met its burden of proving that the petitioned-for captains and chief mates are statutory supervisors under Section 2(11) of the Act. The analysis focused on whether these individuals possessed the authority to perform any of the enumerated supervisory functions, whether such authority was exercised with independent judgment, and whether it was exercised in the interest of the employer.

Regarding the authority to hire, the Employer presented evidence that captains and chief mates are consistently involved in the interview process and that their recommendations carry significant weight, often leading to hiring decisions without further independent investigation by shoreside management. The Director concluded that this demonstrated their authority to effectively recommend hiring.

Concerning the authority to reward and promote, the record showed that captains' and chief mates' performance evaluations and recommendations directly influenced crew members' eligibility for bonuses, tuition assistance, raises, and promotions. The Director found that this effectively meant they could recommend rewards and promotions.

On the authority to assign and responsibly direct, the Director found sufficient evidence that captains and chief mates designate crew members to various tasks, watch schedules, and overtime assignments, and that they make critical "go or no-go" decisions impacting operations. The Director also noted the supervisors' accountability for the performance of these tasks, evidenced by instances where captains and chief mates were disciplined for failing to enforce safety policies or exercise stop-work authority. The Director distinguished this case from prior Board decisions that found insufficient supervisory authority in situations with smaller crews or where assignments were routine, highlighting the larger crew size and the captains' and chief mates' broader responsibilities in the maritime context. The Director also found that chief mates regularly acted as relief captains and, in some instances, were solely in charge of vessels for extended periods, further supporting their supervisory status.

Regarding the authority to discipline, the Employer demonstrated that captains and chief mates initiate and issue discipline, including written warnings. While shoreside HR conducted a review, it was primarily procedural and did not alter the corrective action proposed by the captain. Furthermore, captains have the discretion to remove crew members from the vessel, which consistently results in corrective action from shoreside management. The Director found this sufficient to establish the authority to discipline or effectively recommend discipline.

However, the Director found insufficient evidence that the captains and chief mates had the authority to suspend or effectively recommend suspension.

The Employer also presented evidence regarding other primary indicia of supervisory status, such as hiring, rewarding, promoting, assigning, responsibly directing, and disciplining. The evidence regarding transferring, laying off, recalling, discharging, or adjusting grievances was deemed insufficient to establish supervisory status based on these specific functions, although captains' input sometimes led to termination recommendations.

Secondary indicia of supervisory status also weighed in favor of a supervisory finding. These included a reasonable supervisor-to-employee ratio aboard the vessels, the absence of other supervisors onboard during voyages, significant differences in job duties compared to the crew, and the exclusion of captains and chief mates from the existing bargaining unit. Additionally, captains' roles in representing the employer to customers and participating in policy development were noted.

Ultimately, the Regional Director concluded that the petitioned-for captains and chief mates possessed sufficient indicia of supervisory authority under Section 2(11) of the Act, as exercised with independent judgment in the interest of the employer. Consequently, the petition was dismissed.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): This case established the three-part test for determining supervisory status: possession of authority for any of the enumerated functions, exercise of independent judgment, and acting in the interest of the employer.
• NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): This Supreme Court case affirmed the Board's interpretation of "independent judgment" in the context of supervisory status, emphasizing that it involves discerning and comparing data and acting free from the control of others.
• DirecTV, 357 NLRB 1747 (2011): This decision clarified that recommendations for supervisory actions are considered "effective" if they are typically followed without independent investigation by a superior.
• Brusco Tug and Barge, Inc., 359 NLRB 486 (2012): This case provided guidance on the meaning of "assignment" and "responsibly direct" within Section 2(11) of the Act, particularly in the maritime industry, and distinguished situations based on crew size and the routine nature of tasks.
• Children’s Farm Home, 324 NLRB 61 (1997): This case reinforced the standard for determining when a recommendation is "effective," stating that recommendations are considered effective if they are usually followed without independent investigation by a superior.

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