The National Labor Relations Board (NLRB) denied Leo Marine Services, Inc.'s Request for Review of the Regional Director’s Decision and Direction of Election. The employer argued that certain captains should be classified as statutory supervisors under Section 2(11) of the National Labor Relations Act.

The Board affirmed the Regional Director's finding that the captains are not statutory supervisors, specifically addressing two key areas: the authority to responsibly direct employees and the authority to effectively recommend discipline, hire, or promotion.

Regarding the authority to responsibly direct employees, the Board did not rely on the Regional Director's reasoning concerning the captains' use of independent judgment. Instead, the Board found that the employer failed to meet its burden of proving that the captains are held accountable for the performance of engineers, tankermen, and deckhands. Consequently, the employer did not establish that the captains possess the authority to responsibly direct employees. The Board noted that the Regional Director's conclusions regarding direction and assignment were consistent with Cook Inlet Tug and Barge, Inc.

Concerning the authority to effectively recommend hire/promotion or discipline, the Board agreed with the Regional Director that the employer failed to establish such authority. The employer did not provide sufficient evidence that the captains' recommendations are routinely or almost always followed without independent investigation by superiors. The employer's request for review lacked specific details about its hiring, promotion, and disciplinary processes and the role of the captains' recommendations within them. The Board reiterated its precedent that "authority to effectively recommend" means the recommended action is taken without independent investigation, not simply that the recommendation is eventually followed, as established in Children’s Farm Home and DirectTV U.S. DirecTV Holdings, LLC.

The Board rejected the employer's argument that the captains must be supervisors because they "set policy." The Board stated that setting policy is not a primary indicator of supervisory status under Section 2(11) of the Act.

Furthermore, the Board upheld the Regional Director's decision not to evaluate the captains' status as managerial employees under NLRB v. Yeshiva Univ. The Board found that the employer waived this argument because it was not included as a disputed issue in the parties' pre-election stipulation, nor was it raised by the employer when the Hearing Officer outlined the issues to be litigated.

Finally, the Board agreed with the Regional Director that a community of interest exists between the petitioned-for captains and the employees in the existing unit due to frequent contact, functional integration, shared supervision and department, and some similarities in terms and conditions of employment. The Board clarified that functional integration requires employees to work together and depend on each other to accomplish duties, not simply work in the same field. While acknowledging that the limited evidence of interchange weighed against finding a community of interest, the Board stated that interchange is not a critical factor in the self-determination context, referencing Walt Disney Parks and Resorts, U.S., Inc. The Board also referenced Brusco Tug & Barge Co.. Chairman Murphy and Member Mayer applied Brusco Tug & Barge and Cook Inlet Tug and Barge for institutional purposes without opining on their correctness.

Significant Cases Cited

• Cook Inlet Tug and Barge, Inc., 362 NLRB 1153 (2015): This case supports the Regional Director's conclusions regarding direction and assignment of employees in relation to supervisory status.
• Children’s Farm Home, 324 NLRB 61 (1997): This case establishes that the authority to effectively recommend means the recommended action is taken without independent investigation by superiors.
• DirectTV U.S. DirecTV Holdings, LLC, 357 NLRB 1747 (2011): This case illustrates the Board's stance on declining to find effective recommendation when the record does not establish the weight accorded to recommendations or the extent of independent analysis by superiors.
• NLRB v. Yeshiva Univ., 444 U.S. 672 (1980): This Supreme Court case outlines the criteria for determining if employees are managerial and therefore excluded from the protections of the National Labor Relations Act.
• Brusco Tug & Barge Co., 359 NLRB 486 (2013): This case was incorporated by reference and enforced, and is noted for its relevance to the legal framework being applied.

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