Chevron Shipping Co.

379 317 NLRB No. 53 CHEVRON SHIPPING CO. 1 We note that the Employer filed a motion requesting that the Board reconsider its denial of review with respect to the supervisory status of the licensed engineers aboard gas turbine vessels. In its mo- tion, the Employer raised the same issues it raised in its request for review. As the Employer has not provided any reason to reconsider the status of the licensed engineers, we deny the motion for recon- sideration as both lacking in merit and not raising anything not pre- viously considered. 2 The Employer filed a motion to strike a portion of the Union’s brief, on the ground that the Union improperly relied on unpublished precedent. We deny the Employer’s motion. The Union cited an un- published memorandum opinion of the Ninth Circuit enforcing a Board opinion. See Chevron U.S.A., 309 NLRB 59 (1992), enfd. by unpublished mem. 28 F.3d 107 (9th Cir. 1994). The Board may, of course, take cognizance of its own decisions, which remain prece- dent for it. That a court of appeals may have enforced such an opin- ion by unpublished order does not detract from the precedential value of the Board’s opinion. 3 The Employer employs approximately 134 licensed officers (ap- proximately 17 each of first mates, second mates, first assistant engi- neers, and second assistant engineers, and 33 each of third mates and third assistant engineers). 4 The master, chief engineer, and first mate are statutory super- visors. Chevron Shipping Co. and Marine Engineers Bene- ficial Association, District No. 1-Pacific Coast District. Case 32–UC–292 May 10, 1995 DECISION ON REVIEW AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND TRUESDALE On May 12, 1993, the Regional Director for Region 32 issued a Decision and Order in which he found that the licensed mates employed on the Employer-Petition- er’s United States flag fleet and the licensed assistant engineers working on steam tankers were statutory su- pervisors. The Employer-Petitioner (Employer) and the Union filed timely requests for review of the Regional Director’s Decision. By Order dated September 2, 1994, the Board granted the Union’s request for review with respect to the supervisory status of the second and third mates, and the assistant engineers on steam tank- ers, denied the Union’s request for review in all other respects, and denied the Employer’s request for re- view.1 The Board has delegated its authority in this pro- ceeding to a three-member panel. Having carefully considered the entire record, in- cluding the briefs on review,2 for the reasons set forth below the Board finds that the second and third mates, and the assistant engineers on steam tankers, are not, contrary to the Regional Director, statutory supervisors and, therefore, that they are properly included in the collective-bargaining unit. I. The Employer operates seagoing oil tankers that transport petroleum products in domestic and inter- national markets. The Employer’s flag fleet is com- posed of two steam-driven tankers (steamers) and five gas-turbine tankers (GTs). Since 1960, the Union has represented a unit of all licensed mates and assistant engineers employed by the Employer on its domestic fleet;3 the most recent contract expired on March 31, 1993. Each tanker is staffed by a master (Captain), a chief engineer, and 8–10 officers, including a first mate, two second and third mates, and three assistant engineers.4 Each steamer is also staffed by a crew of unlicensed employees, including a boatswain, three oil- ers, six able-bodied seamen (ABs), one utility, one pumper, and the stewards. The crew on a gas tanker includes a boatswain, six ABs, a steward, a messman, and one or two utility employees. The training of the second and third mates and assistant engineers in- volves a high level of technical expertise and they are specifically trained to deal with very complex situa- tions. Master Reynolds testified that deck officers are highly trained competent professionals. When at sea, the Employer’s tankers operate 24 hours per day, with a workday for employees of six 4- hour watches. Each mate and assistant engineer works two watches per day, and when on watch are referred to as the ‘‘Watch Officer.’’ The master and chief engi- neer do not stand watch. The second and third mates, and assistant engineers, when acting as watch officers, have charge of the safety of the ship, crew, and cargo, and the crew on watch reports to the watch officer. The watch officer is responsible for posting a proper lookout; is able to call additional unlicensed crew on watch; may, on his or her own initiative, suspend all work on deck in situations involving bad or potentially dangerous weather; directs the deck crew; and assigns duties to the ABs. The watch officer determines how to respond to navigational hazards and may order the vessel to change course. The watch officer is respon- sible for cargo operations during his or her watch. The engineering watch officer is responsible for the engineroom and its crew, directs the work of those as- signed to the engineroom, and trains unlicensed crew. The engineering watch officer may take immediate ac- tion to address problems. If the watch officer can ad- dress the problem and does not believe that severe damage or a breakdown will occur, the watch officer need not notify the chief engineer. The first assistant engineer also assigns work to employees, oversees all overtime work, and distributes work among engineers after consulting with the chief engineer. In addition to the navigation of the ship, licensed personnel perform various tasks, including loading and unloading of cargo, ballasting, mooring, anchoring, tank cleaning, and maintenance. The first mate plans the loading and unloading of cargo, and then instructs 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the mates and crew regarding how it is to be accom- plished. If the first mate is unavailable, the watch offi- cer takes the role, following the first mate’s plans. During tank cleaning, which can be very dangerous be- cause of potential exposure to toxic gases, the watch officer monitors the precleaning flushing of the tanks and decides when conditions are safe enough for the cleaning process to begin; however, it is generally the first mate who enters the tank first to ensure the safety of the crew. Ballasting is the process by which the level of sea water is maintained in the tanks to balance the vessel. On steamers, the watch officer directs the unlicensed crew during this procedure. On gas turbines, however, the process is mechanized, and the watch officer con- trols ballasting from the control room. During the an- choring of the ship, the master or pilot gives the watch officer instructions, which are then passed down to the ABs. The watch officer must decide whether to release or take up the anchor chain to avoid either straining it or allowing it to trail under the hull. Mooring is the most difficult and most dangerous task, and is either done alongside the dock by a tugboat or offshore by tying the ship to a buoy with lines. During mooring and unmooring, the first mate and master are on the bridge, the second mate is at the bow, and the third mate is at the stern. The second and third mates each have charge of three to four deckhands, and they in- struct them, for example, how to manage the lines, or whether to tie the ship to the tugboat. The mates’ in- structions are critical as the line can get caught in the ship’s propellers if thrown at the wrong time. The first mate is in charge of, and plans, all deck maintenance, and the boatswain, also known as the maintenance foreman, supervises the maintenance work. First Mate Janks-Reichhold testified without contradiction that the crew essentially works for the boatswain, an unlicensed officer, when performing maintenance, which appears to constitute a large com- ponent of the crew’s duties. Each master issues standing orders for the officers, which lay out in detail the duties and tasks for each position. Master Reynolds testified that under his standing orders, a watch officer is to summon him whenever an emergency or even a doubtful situation occurs, and also is to notify him when deviations from routine occur. The Employer’s ‘‘Masters’ and Deck Officers’ Operating Regulations’’ (OR) request that the watch officer call the master whenever the watch offi- cer is unsure what to do, and before a doubtful situa- tion becomes an emergency. The OR also authorizes a watch officer to stop work in any area of the ship if a hazard arises. Reynolds testified that according to his standing orders, deck officers should call him anytime that they are in doubt or if there are any questions, ‘‘without fear of censor or reprimand.’’ Reynolds also stated that even in cases where he wanted the watch officers to make decisions themselves, for example, when to change the speed of the vessel, they have been instructed to notify him afterwards. The Steam Engine Officers Operating Regulations provide that the engine watch officer must call the chief engineer when ‘‘in any doubt concerning’’ the enginerooms, ‘‘on the first indication of any unusual occurrences,’’ when excessive fuel or water is con- sumed, when other than routine orders are received from the bridge, and in all cases where the engine is put on standby. The engine room standing orders on 1 ship consist of 24 pages of detailed routines to be followed daily, weekly, monthly, and quarterly, and in- clude routines for the licensed engineers and the oiler. Watch engineers can give orders to the oiler, who is technically under the chief engineer in the chain of command, and the watch engineer is responsible for training the oiler on watch. On steam tankers, the first assistant engineer may grant overtime to oilers and pumpers and the utility person assigned to the engine department. The Employer’s personnel office makes all final de- cisions regarding hiring, firing, evaluating, promoting, or granting wage increases to employees. Written eval- uations are prepared by the masters or chief engineers. First mates frequently make recommendations to the master regarding unlicensed crew, or prepare written evaluations and submit them to the master for his sig- nature. The junior licensed officers provide input re- garding the performance of the crewmembers. This input, the frequency of which is not disclosed, is gen- erally of a casual nature and constitutes observations by the junior officers. The same is true with respect to the assistant engineers’ role in evaluating. In addition, unlicensed personnel may also offer their opinions of employees. The first mate, rather than the junior officers, dis- ciplines the crew after consulting with the master. The first mate may counsel the employee, try to resolve the problem, or issue a verbal or written warning. In such situations, the watch officer generally acts as a witness. There is no evidence that the watch officers have any part in deciding appropriate discipline. Watch officers, however, do have the authority to order ‘‘off watch’’ or ‘‘off ship’’ any employee for intoxication, striking an officer, fighting, or refusing to follow orders, with corresponding authority to authorize overtime, as em- ployees ordered ‘‘off watch’’ would have to be re- placed. II. Based on the foregoing, we find, contrary to the Re- gional Director, that second and third mates and assist- ant engineers are not supervisors within the meaning of the Act. The Board has a duty ‘‘not to construe super- 381 CHEVRON SHIPPING CO. 5 Northcrest Nursing Home, supra; Great Lakes Towing Co., 165 NLRB 695 (1967). 6 In finding the first assistant engineers to be supervisors, the Re- gional Director also relied on his finding that these assistant engi- neers generally assign and approve overtime to oilers and the pumpman, as well as to the utility person. This bare finding is insuf- ficient, in light of all the other record evidence indicating that the assistant engineers are not statutory supervisors, to convert the first assistant engineers into statutory supervisors. The finding is based on only two nonspecific general pieces of evidence. Captain Reynolds testified as follows: All overtime has to be approved by the Ship’s Master. And in the case of engine department overtime, it’s approved by the Chief Engineer and the Ship’s Master. . . . On a steam ship we have oilers. It would be the First Engineer who would be assign- ing the overtime. Typically, the pumpmen and the oilers would come under the First Engineer’s jurisdiction. And if there was a utility person working in the engine department, either o[n] a steam ship, or the gas turbine ship, that responsibility of over- time would also come under the First Engineer’s responsibility. In addition, the Employer’s standing orders describing the first en- gineer’s routine, state that that individual ‘‘oversees’’ all overtime work. Such conclusory evidence, without specific explanation that the first assistant engineers in fact exercised independent judgment in making overtime assignments, does not establish supervisory au- thority. Sears, Roebuck & Co., 304 NLRB 193 (1991). 7 For example, the duties of the oiler, allegedly ‘‘supervised’’ by the assistant engineer, are specifically set forth in the Regulations. visory status too broadly because the employee who is deemed a supervisor is denied rights which the Act is intended to protect.’’ Chicago Metallic Corp., 273 NLRB 1677, 1689 (1985), affd. in relevant part 794 F.2d 527 (9th Cir. 1986) (footnote omitted). The bur- den of proving supervisory status is on the party who alleges that it exists. Tucson Gas & Electric Co., 241 NLRB 181 (1979); George C. Foss Co. v. NLRB, 752 F.2d 1407, 1410 (9th Cir. 1985). Moreover, super- visory authority must be exercised with independent judgment, rather than in a routine or clerical fashion. Highland Superstores v. NLRB, 927 F.2d 918 (6th Cir. 1991); Walla Walla Union-Bulletin v. NLRB, 631 F.2d 609, 613 (9th Cir. 1980). Applying the foregoing standards to the facts of this case, we find insufficient support for the Regional Di- rector’s conclusion that the Employer’s junior officers are statutory supervisors. Initially, we find, in agree- ment with the Regional Director, that the evidence does not establish that second and third mates and as- sistant engineers exercise supervisory authority with respect to hiring, firing, evaluating, promoting, or granting wage increases to employees, or that they ef- fectively recommend such actions. These individuals perform, at best, a reporting function that is not super- visory under the statute. Northcrest Nursing Home, 313 NLRB 491, 497–498 (1993). Further, we find that the second and third mates, and the assistant engineers, do not exercise statutory super- visory authority with respect to discipline, or the re- quirement that employees work overtime to replace disciplined workers. The Board has consistently found that the authority, as exists here, to order intoxicated or insubordinate employees to leave the workplace does not constitute the statutory authority to discipline employees, as such violations are so egregious and ob- vious that little independent judgment is needed.5 Con- comitantly, the alleged ability to order overtime—due to the necessity to replace the disciplined employee— in such egregious situations does not compel a finding of supervisory status as there is no evidence that the disputed employees utilize independent judgment in making such assignments. Cf. NLRB v. Res-Care, Inc., 705 F.2d 1461, 1464 (7th Cir. 1983); Quadrex Envi- ronmental Co., 308 NLRB 101 (1992). Thus, contrary to the Regional Director, the evidence with respect to assignment of overtime, emanating from decisions re- garding imposition of discipline in extreme cir- cumstances, does not establish that the second and third mates and asistant engineers are supervisors with- in the meaning of Section 2(11).6 Finally, we disagree with the Regional Director’s conclusion that the second and third mates and assist- ant engineers are supervisors based on their authority responsibly to direct the crew in performing their du- ties. It is clear that licensed officers, particularly when acting as watch officers, are responsible for directing the unlicensed employees, assigning tasks, and ensur- ing the safety of the ship and its cargo. We conclude, however, that although the contested licensed officers are imbued with a great deal of responsibility, their use of independent judgment and discretion is cir- cumscribed by the master’s standing orders, and the Operating Regulations, which require the watch officer to contact a superior officer when anything unusual oc- curs or when problems occur. At the very least, li- censed officers are required to notify their superior of- ficers after making any kind of decision affecting the crew or the ship. According to Master Reynolds, a watch officer is to summon him, at the very least, when a doubtful situation occurs, and must notify him after making any decisions affecting the ship, even, for example, changing the ship’s speed. Moreover, at least during the two daylight watches, the master, first mate, and first engineer are all on the bridge. Thus, the li- censed officers on watch during daylight have three statutory supervisors available on that watch. Further, the duties of the crewmembers, both li- censed and unlicensed, are delineated in great detail in the Regulations; thus, the officers and crew generally know what functions they are responsible for perform- ing and how to accomplish such tasks.7 The Employer, however, failed to provide any details regarding how often watch officers actually break with routine, how much deviation is allowed from the master’s standing orders, or how much discretion is actually involved in telling crewmembers to perform their assigned func- tions. As noted, in nonroutine situations, licensed offi- 382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Cf. Northeast Utilities Service Corp. v. NLRB, 35 F.3d 621 (1st Cir. 1994), in which the court, agreeing with the Board, found pool coordinators and senior pool coordinators, working at the control room of the master dispatch and control center for bulk power throughout New England, not to be statutory supervisors. The court found that although these individuals were highly trained employees who used independent judgment to make and implement complex technical decisions, they did not responsibly direct other employees, and they only used independent judgment within the guidelines of the employer’s operating procedures. 9 301 NLRB 642 (1991). 10 287 NLRB 628 (1987). 11 See A. L. Mechling Barge Lines, 192 NLRB 1118 (1971). cers are in constant contact with superior officers. Quadrex Environmental Co., supra; Somerset Welding & Steel, 291 NLRB 913 (1988). We are not unmindful that the licensed junior offi- cers exercise substantial responsibility for ensuring that the ships’ functions are carried out properly, and that the crew and cargo remain safe. We believe, however, that their authority to direct the work of the crew is based on their greater technical expertise and experi- ence, rather than being an indication of supervisory au- thority. Somerset Welding & Steel, supra. The training of the licensed officers involves a high level of tech- nical expertise, and they are specifically trained to han- dle very complex situations.8 Importantly, however, it appears to be the master and the first mate who actu- ally plan the operations and provide instructions to the watch officer, who then ‘‘directs’’ the crew, for exam- ple, to release the ballast or open a tank. Finally, con- trary to the Employer’s argument, the size and com- plexity of the machinery and the potential dangers in operating it, are not per se marks of statutory super- visory authority. Northeast Utilities Service, supra. Sun Refining Co.,9 relied on by the Regional Direc- tor, is distinguishable. In Sun, unlike the present case, all the watch officers had the authority to assign over- time, ‘‘based on their independent judgment and inter- pretation of company regulations.’’ Id. at 648. More- over, they played a greater role in disciplining the crewmembers, ‘‘using their judgment in deciding whether the individual should be orally reported to the department head, or immediately removed from the watch. Ibid. There was evidence that the disciplinary recommendations of the watch officers were ‘‘almost invariably’’ accepted. Ibid. In addition, junior officers effectively recommended evaluations, and exercised discretion in directing the crew in nonroutine situations without calling the master for instructions. For those reasons, the Board found the mates to be supervisors. Here, the evidence does not establish that the licensed officers possess the same level of authority with re- spect to personnel matters, or exercise as much inde- pendent discretion in directing the crew. Marine Engineers District 1 (Crest Tankers)10 is also distinguishable. There, the testimony indicated that the second and third engineers were in complete charge of the engineroom at times when the vessel was in port and the master and chief engineer were not on- board, that the watch engineer changed the hours and duties of engineroom personnel, and that oilers could not take any corrective action in nonroutine situations without directions from the watch engineers. In con- trast to the assistant engineers or the mates here, watch engineers in Crest Tankers took care of any problems that arose during watch, and were expected to respond to any casualty or malfunction without calling the chief engineer. Accordingly, in view of the foregoing, we conclude that the second and third mates, and the assistant engi- neers, are not statutory supervisors within the meaning of Section 2(11) of the Act.11 Consequently, we re- verse the Regional Director’s decision with respect to these employees, and find that second and third mates, and assistant engineers on steamers are properly in- cluded in the bargaining unit. ORDER The Regional Director’s decision finding second mates, third mates, and assistant engineers to be super- visors is reversed. The Board concludes that these indi- viduals are not supervisors within the meaning of Sec- tion 2(11) of the Act, and therefore, they are properly included in the bargaining unit.