District No. 1, Pacific Coast Marine Engineers' Beneficial Association, Afl-Cio

628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD District No. 1, Pacific Coast Marine Engineers' Beneficial Association, AFL-CIO and Crest Tankers, Inc. Case 14-CB-6124 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND CRACRAFT On 24 September 1986 Administrative Law Judge Frank H. Itkin issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs. The Re- spondent filed cross-exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegat- ed 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. 2 ORDER The recommended Order of the administrative law judge is adopted and, the complaint is dis- missed. I The General Counsel and the Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In dismissing the 8(b)(1)(B) complaint allegation, we find that the General Counsel has failed to prove that the conclusions about the cor- porate interrelationships in the arbitrator's award were palpably wrong as a matter of law, and therefore repugnant to the Act Consequently, we defer to the resolution of that issue in arbitration Because we find defer- ral appropriate, independent review of that issue is unwarranted and we do not rely on the judge's independent finding that Crest Tankers, Inc is an alter ego of Trinidad Corporation Further, in dismissing the 8(b)(1)(A) and (2) complaint allegations, we solely rely on the judge's al- ternative rationale that the individuals in issue with respect to these al- leged violations are statutory supervisors In light of our agreement that the complaint should be dismissed on the grounds stated here and in the judge's decision, we find no need to con- sider the alternative grounds for dismissal urged by the Respondent in its cross-exceptions Bradley Kafka, Esq, for the General Counsel Angelo Arcadipane and Joseph Kolick Jr., Esqs., for the Respondent. Thomas Hanna, Esq., for the Charging Party. DECISION FRANK H. ITKIN, Administrative Law Judge. Crest Tankers, Inc. (Crest) filed an unfair labor practice charge in this proceeding on November 17, 1983, and an amend- ed charge on January 10, 1984. The General Counsel issued an unfair labor practice complaint on May 29, 1984, and an amended complaint on November 15, 1985. Respondent District No. 1, Pacific Coast Marine Engi- neers' Beneficial Association, AFL-CIO (the Union or MEBA), filed an answer and an amended answer, re- spectively, denying, inter alia, that it had engaged in the alleged unfair labor practices Briefly, the General Coun- sel claimed that the Union had violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act by initiating and processing arbitration proceedings and by later filing a suit to enforce the arbitrator's award The award assertedly had extended the Union's collec- tive-bargaining agreement with Trinidad Corporation (Trinidad) to "employees" of Crest, thereby interfering with employee- Section 7 rights. Further, the General Counsel claimed that the Union also had violated Section 8(b)(1)(B) of the Act because it had, by the above con- duct, restrained and coerced Crest in the selection of its representatives for purposes of the adjustment of griev- ances The General Counsel, in his posthearing brief, notes that this case presents the question whether the second and third assistant engineers aboard Crest vessels are in fact "employees" under the Act and, further, whether the Board should defer to the outstanding arbi- tration award. The Union, in response, argues that Crest's licensed engineers, including its second and third assistant engineers, are "supervisors"; that there are no statutory "employees" or a representational unit involved in this case, and that the Board should defer to the out- standing arbitration award. The Union also argues that Crest, as found by the arbitrator, is the alter ego of Trin- idad. Hearings were initially held in this proceeding in St Louis, Missouri, on September 4 and 6, 1984 Thereafter, following an interlocutory appeal, the Board remanded this proceeding for a hearing de novo. See 274 NLRB 1481 (1985). In accordance with this remand, hearings were subsequently held in St. Louis, Missouri, on April 14-17 and in Boston, Massachusetts, on May 9, 1986 Ex- tensive and helpful briefs were filed by all counsel On this de novo record, including my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT A. Trinidad, Crest, and Related Business Entities From January 1981 to the present, Trinidad has been a wholly owned subsidiary of Apex Shipping. Apex Ship- ping, in turn, has been a wholly owned subsidiary of Apex Holding. Apex Holding, in turn, has been a wholly owned subsidiary of a partnership known as Apex Oil Crest, from the date of its incorporation in October 1982, also has been a wholly owned subsidiary of Apex Hold- ing. Clayton Tankers (Clayton), another business entity involved, has also been a wholly owned subsidiary of Apex Holding. All of these entities, as will be discussed further, have common boards of directors and officers. (See Jt. Exhs. 1 and 2.) John Ervin, as he testified, was president of Trinidad before it was sold to Apex Shipping in January 1981. Ervin then became executive vice president and chief op- 287 NLRB No. 65 MARINE ENGINEERS DISTRICT 1 (CREST TANKERS) 629 erating officer of Trinidad i As of January 1981, Trini- dad operated three 80,000-ton tankers; operated a 125,000-ton tanker, owned five T-2 type tankers, had a contract with the United States Navy or Military Sea Lift Command for nine ships; had a management agree- ment with City Service or Grand Bassa covering two other vessels; and operated one or more additional for- eign flag vessels. Trinidad then belonged to a multiem- ployer bargaining association, Tankers Service Commit- tee, and there was in effect a collective-bargaining agree- ment with MEBA covering its licensed engineers, i e., chief engineers, first assistant engineers, second assistant engineers, and third assistant engineers In June 1981, Tankers Service Committee renegotiated this agreement with MEBA, and Trinidad signed the new contract. (See G C. Exh. 9.) The 1981 contract between Trinidad and MEBA, like the earlier agreements, provided, inter alia. Preamble The parties agree that all of the engineers to whom this Agreement is applicable are "supervisors" within the meaning of the Labor Management Rela- tions Act of 1947, as amended. Section 36 (a) This Agreement covers all licensed marine en- gineers employed on U.S. flag ocean-going tanker vessels, of whatever type, owned or operated (both at the present or at any time during the life of this Agreement) by the Company, or its subsidiary or affiliate, or by an entity for which the Company acts as a bargaining agent, and whether operated as an agent or under a bareboat charter, including ves- sels owned by the Company or its subsidiary or af- filiate and operated by another entity, but not in- cluding a vessel operated on a time charter basis. (b) The term "subsidiary" or "affiliate" shall be deemed to include any business entity whether cor- porate, partnership, trust or individual which is ef- fectively controlled by or effectively controls the Company either directly or indirectly.2 Ervin testified that he had "participated in" negotia- tions culminating in the 1981 renewed agreement with MEBA Ervin asserted that, as chief operating officer, he "was responsible for the interpretation and administra- tion" of this agreement. Ervin was asked, "What if any matters would [the] chief operations officer of Trinidad consult with Apex Shipping about?" He responded. ' Paul Novelly, whose testimony is discussed below, became president of Trinidad in January 1981 He was also president of virtually all the entities involved here Later, in October 1983, Thomas Gladders became president of Trinidad and took over Ervin's role as its chief operating of- ficer Later, during February 1986, Gladders terminated his relationship with Trinidad and Ervin again became its chief operating officer Novel- ly, in turn, resumed his position as president of Trinidad 2 This agreement also contains a "preference of employment" section pertaining to the-hiring and referral of licensed engineers See sec 1(b), pp 3-7 . .. all of my consultations were with Mr Novelly who was president of Trinidad; . they would deal with policy decisions regarding the acquisition of ships, disposal of ships, or major decisions in- volving . funds, funding, budgets, forecasts [and] chartering of the ships. He insisted that there were no consultations with Novel- ly regarding Trinidad's day-to-day operations. However, Ervin acknowledged that during 1981, Novelly "was aware of the on-going contract discussions and that there was a termination of the previous contract"; there were "some discussions . . . general discussions" with Novel- ly, and Ervin was "told to continue to run the Company . . . the way [he] had run it before, and that included [his] participation in the negotiating group . . ." Ervin admittedly had proposed "suggested modifications" of the above-quoted section 36 provision to the Tankers Service Committee during the 1981 discussions with MEBA Ervin was not "concerned that by entering into that contract with the provision as it now stands that [he] would be binding Apex Oil and other of its affili- ates " He made no attempt or effort during negotiations "to exclude Apex." Ervin elsewhere acknowledged that his "paycheck" does not come from Trinidad and that he is in fact "on the Apex payroll"-"it is a part of the Apex manage- ment." Ervin also acknowledged that he "reports to Mr. Novelly" and, in addition, he is covered by, inter alia, the Apex Oil health insurance plan and pension or profit- sharing plan. As noted, Apex Shipping acquired Trinidad in January 1981 Crest was incorporated in October 1982 and became a subsidiary of Apex Holding. Thereafter, in 1983, Trinidad withdrew from the Tankers Service Com- mittee, as Ervin testified, "In order that they could nego- tiate individually." Following the expiration of Trini- dad's contract with MEBA in June 1984, the contract was not renewed Ervin next testified that Trinidad, unlike Crest, is now left with the operation of its three 80,000-ton tankers which are "primarily used" in the Alaskan oil trade, car- rying crude oil from Valdez to West Coast ports, Hawaii and the Panama area He noted that one vessel, "from time to time" carries grain, the remaining two vessels are "exclusively in the Alaskan crude trade." Therefore, these remaining Trinidad vessels do not carry refined oil and have not been used in the Gulf and East Coast oil trade. However, Ervin acknowledged that during the 1981-1984 period,,pefore the Trinidad fleet was thus re- duced in size, it owned five vessels in the 25,000- to 27,000-ton range and that Ervin had "negotiated" the ex- clusive charter of these vessels to Apex Oil, the parent partnership in these proceedings (See Jt Exh. 2.) Ac- cording to Ervin, he "negotiated" these charters or leases with Paul Novelly or Thomas Cornwall.3 And, while these Trinidad tankers were under this "exclusive" or "continuous" charter to "Apex Oil, they carried, as 9 Cornwall is also employed by Apex Oil His testimony is discussed below 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ervin recalled, Apex Oil "maybe less than 80/85 percent of the time " Ervin further explained: Q. And based on that knowledge, is it fair to say that those vessels [the ships later acquired by Crest] are now doing essentially the same work and carry- ing essentially the same products as Trinidad's ves- sels carried when they were on consecutive charter. to Apex? A. I would say yes. Ervin further noted that, when "all of the [Trinidad's] vessels were thus under consecutive charter agreements to Apex," their "routes" were "coast wise," "intercosta," and "on occasion those vessels carried grain also." Ervin then explained the diminution of the Trinidad fleet during the 1981-1984 period. Trinidad had operated two tankers, the Banner and Allegiance, owned by Grand) Bassa, an affiliate of City Service. These ships ranged from 31,000 to 34,000 tons and were "capable of carrying refined products." Trinidad had "a right of first refusal to purchase" both ships and on "several occa- sions" was "asked to exercise that right by Grand Bassa." On each occasion, Ervin "discussed the matter with Mr. Novelly" and "rejected the offer." Ervin as- serted that the "price which the vessels were last offer[ed] was in excess of what I thought they were worth"-that is, $2 2 to $2.3 million Instead, during late 1982 or early 1983, Clayton, a wholly owned subsidiary of Apex Holding, purchased these vessels at this same price and they were to be operated by Crest.4 In addi- tion, Trinidad proceeded to "scrap" its remaining T-2 tankers. It also declined in 1984 to renew its contract with the Military Sea Lift Command. It also ended its management of a 125,000-ton tanker for an affiliate of Sun Oil in 1983 And, in this manner, Trinidad's fleet was ultimately reduced to three 80,000-ton tankers.-None of the "scrapped" vessels were replaced Novelly made the "final decision " As for the Military Sea Lift Com- mand work, Novelly assertedly wanted Trinidad "to get out of operating Government tanker vessels " Ervin was questioned at length about the separation maintained between Trinidad and Crest and other Apex entities . He explained that Trinidad and Crest do not "share" offices, tankers, or spare parts, they do not have common equipment, they do not share or have common employees or supervision, there is no interchange of per- sonnel; there is no "contact" between their sea-going personnel; he has had no occasion ^ to visit Crest ships and there is no reason for Crest people to visit Trinidad's vessels; Crest has never performed services for Trinidad; there are no contracts, purchase, or sales agreements be- tween Trinidad and Crest; Trinidad performs its own port engineering functions and does not work for Crest vessels, Trinidad has its own profit and loss statement; Trinidad does its own billing, has its own bank accounts, has its own payroll, and issues its own W-2 statements, Trinidad obtains or arranges its own canal and entry or departure permits and maintains its own Coast Guard ° One of these ships was later "scrapped", the remaining vessel contin- ued on in the Crest fleet certificates; and no Crest personnel or Apex personnel involve themselves in the resolution of Trinidad labor grievances -Finally, Ervin insisted that "the individual in charge of [Trinidad's] operation, under [his] supervision or Mr. Gladders' [see fn. 1, supra] . . was responsible for interpretation and administration of collective bar- gaining agreements at Trinidad"; Novelly assertedly had no "input" in such matters; and Apex had no "input" in "such things as the day-to-day administration of' labor contracts. Ervin did acknowledge, however, that in 1982, at the request of Cornwall, whose testimony is discussed below, Trinidad did "survey" three vessels for Crest: Ervin re- called "I believe it was three vessels as [a] prospective purchase by an Apex company." Further, Ervin recalled that Bill McHenry, associated with Trinidad until 1982 as port captain, left Trinidad and went "to work for Crest Tankers " In fact, McHenry became the fleet man- ager for Crest. See Crest Tankers, 270 NLRB 47, 48 (1984) Dan McLaughlin, formerly with Trinidad as chief engineer, became vice president of engineering for Crest. Thomas Cornwall testified that he is employed by Apex Oil as "manager of the charter" and that he is also executive vice president of Crest He claimed: I'm really the watchdog of Apex Oil in relating to Crest Tankers, in relationship to the budget and the capital expenditures, how the money matters are - relating to Crests He insisted that he has "absolutely nothing" to do "with non-monetary labor relations " at Crest Elsewhere, he stated . "The labor relations part of Crest has absolutely nothing to do with me at all." He recalled how Novelly had "instructed " him to "start" Crest and he therefore "informed Crest"; he acquired three ships for Crest during 1982; Novelly had "determined" that these three ships "would be purchased by Crest as opposed to one of the other Apex entities "; Novelly had said : "Mr. Corn- wall, go out and buy these vessels for Crest " Crest, of course, had no funds of its own at the time. Cornwall acknowledged that he later had "signed the collective bargaining agreement between Crest and the Crest Tanker Officers' Association"; that he "probably did scan over" it (G.C. Exh. 19, dated October 29, 1982); that he also had signed "recent amendments to that col- lective bargaining agreement"; that John Collins , the rep- resentative of both the Crest Tankermen and Crest Tank- ers Officers' Association, "probably does" communicate in writing with him "very often"; and that he in fact had "authorized" and signed a telegram to all Crest person- nel (R. Exh 3), stating in part: At the request of Mr. John Collins, we wish to advise all sea-going personnel that the Crest Tanker Officers' Association's vote regarding the re-ratifi- 5 Cornwall, the "watchdog" of Apex at Crest, like Ervin, the chief op- erating officer at Trinidad, is on the Apex Oil payroll, and is also cov- ered by the Apex Oil health' insurance plan, life and disability policy, and savings plan MARINE ENGINEERS DISTRICT I (CREST TANKERS) cation of the 8/15/84 agreement [was], for 38 votes, against 4 votes. It is therefore my pleasure to advise you that ret- roactive from June 1, 1985, the reinstatement of travel allowance both joining and leaving vessels will take effect The Management of Crest Tankers thanks all sea- going personnel for the, continued effort and good work and especially loyalty they have shown this Company 6 Cornwall recalled that during the 1981-1984 period, Trinidad had owned and operated "smaller" "product carriers" in the 25,000- to 27,000-ton group; that these vessels were placed on "consecutive" or "continuous charter" to Apex Oil; and that these charters were "iden- tical" to 'the 'charters which Cornwall had entered into with Crest on behalf of Apex Oil Thus, during the Octo- ber 1982 to June 1984 period, "the Crest vessels were on continuing consecutive charters to Apex"; the Crest tankers "carried or transported Apex oil about 80 to 85 percent of the time", "when they [the Crest ships] were not transporting Apex Oil, they were transporting prod- ucts or commodities for other entities which [Cornwall] designated"; and "there was a time when Apex simulta- neously had charter arrangements with Crest's vessels and with Trinidad's vessels." At the time, the Trinidad vessels were similarly transporting Apex Oil or commod- ities about 80 percent of the time. Cornwall would make the "determinations as to which vessel was selected and transported which cargo." Cornwall agreed that he thus used the available Trinidad and Crest fleets interchange- ably "to the most economical advantage for Apex."7 Donald Robertson is the port captain for Crest. Crest owns or operates six vessels. When Robertson first start- ed in late 1982, Crest only had one ship. Robertson noted that William McHenry is not fleet manager for Crest In that capacity, McHenry is assertedly responsi- ble for the day-to-day administration of Crest's contracts with the Crest Tankers Officers' Association and the Crest Tankermen's Association.8 McHenry, as noted, was previously associated with Trinidad. Further, Dan McLaughlin is Crest's vice president of engineering. He 6 Further, Cornwall agreed that he does concern himself with Crest's labor relations "when it comes to the amount of money to be paid to op- erate the vessels " Thus, for example, the ratification of the 1984 contract with the Crest Tankers Officers' Association involved "financial matters" because it "involved wages" and benefits, and the contract negotiating team therefore "would come to me" to discuss what benefits the Employ- er can "afford " As noted, these "smaller" tankers owned by Trinidad were ultimately scrapped and not replaced by Novelly, instead, ships were purchased for Crest, and Cornwall agreed that these new vessels could be operated "more economically by not putting them in the Trinidad fleet where Trinidad had labor contracts with various unions " Cornwall also explained that two of Trinidad's remaining three vessels are now on charter and "are never relet"-the third vessel is carrying grain to Caracas Cornwall does give "advice" to Trinidad on the dry cargo for this third vessel 6 The Crest Tankers Officers' Association contract (G C Exh 19) covers "all licensed officers" on its vessels The Tankermen's Association contract (R Exh 2) coves the "unlicensed personnel " 631 too was previously associated with Trinidad. Robertson testified Q. Who 'negotiated the collective bargaining agreements at Crest, on behalf of Crest? .A. On behalf of Crest? The collective bargaining agreements were already there when I went there, but any subsequent meetings would be McLaughlin, McHenry and myself. And, occasionally Tom Corn- wall would sit in on the meeting. Robertson further testified that Crest's five smaller tankers (29,000 to 34,000 tons) are on exclusive charter to Apex Oil. Thus, these vessels exclusively carry oil for Apex or products designated by Apex Oil. The larger tanker (87,000 tons) transports crude oil or grain. The five smaller tankers therefore principally operate in the Gulf and Atlantic East Coast ports Crest, on occasion, has also performed services for the Military Sea Lift Command Robertson further testified that Crest has its own accounting. office; it does not share tankers, supervi- sors, or employees with Trinidad; it does not share of- fices or equipment with Trinidad, there is no exchange of services or visitations between the two entities; there are no contracts or purchase agreements between the two entities; Crest is responsible for its own billing in its own accounting department and has its own bank accounts and handles its own payroll; and Crest hires its own port agents. Robertson insisted that Apex Oil would play no role in the day-to-day administration of its collective-bar- gaining agreements, in hiring personnel or resolving grievances or in administering the agreements. Robertson acknowledged that Apex Oil provides him with a health insurance and savings plan. Paul Novelly testified that Apex Oil is a partnership of Novelly Oil 'Company and Goldstein Oil Company. Apex Oil has only one asset, a holding company named Apex Holding. Apex Holding, in turn, has some 50 "sub- sidiaries or affiliates." Novelly is president of'virtually all of the "affiliates " The essentially common boards of di- rectors for these companies are "supposed to meet once a year . . . but normally we really don't have a meeting . . . we dust have minutes typed up." Novelly is "chief executive officer" of Trinidad, Crest, and Clayton. Each of these entities has a "chief operations officer" who "re- ports directly" to Novelly. Novelly asserted, "I do not get involved with their normal day-to-day operations"- "if I ever wanted to exercise control, I certainly could."9 Novelly acknowledged that he approves the purchase of ships by the various companies, referring to Trinidad, Crest, and Clayton. He recalled that Trinidad had a "right of first refusal" to buy from Grand Bassa two ships (Allegiance and Banner) which Trinidad was then operating.. Novelly made the "decision" that Trinidad should not purchase the vessels; instead, the vessels were purchased for Clayton to be operated by Crest. The funds for the purchase of these and other vessels to be owned or operated by Crest came from Apex Oil. No- s Novelly noted that presently there are "no financial decisions to be made for Trinidad they're on a long term charter there's not even decisions to be made " 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD velly admittedly "would have preferred to buy a ship for Clayton [or Crest] rather than Trinidad because Clayton, or Crest, operates more reasonably than Trinidad does- economically reasonable," that is, Crest's "wages may be less . . the crewing in less . they don't have to work as much overtime " Thus, Novelly's decision "has to do with the way the manning is done under its labor contracts at the time " Novelly admittedly has the "ultimate authority to veto or okay collective bargaining agreements which Trinidad may enter into," and "the same with respect to Crest." Novelly "delegated" to Gladders the "decision" in 1984 "not to. renew" the Trinidad collective-bargaining agree- ment with MEBA. Gladders "probably consulted with" Novelly-Novelly "knew what was happening " Earlier, in 1981 , Novelly permitted Ervin "to stay in the" Tank- ers Service Committee, a multiemployer bargaining asso- ciation And, when Apex Oil had purchased Trinidad in early 1981, Trinidad's outstanding collective-bargaining agreement with MEBA was "reviewed"-"we call that due diligence." Novelly, referring to the outstanding ar- bitration award which is, the subject of this proceeding and its potential liability of some $7.5 million, viewed the arbitration award as a "nuisance" and, therefore, it is not carried as a "contingent liability" by any Apex family corporation. When asked, "Why not," Novelly testified- . . . why it's not on the books or why our control- ler hasn't felt like he should charge it, I don't know, maybe it's because I overrule him or something like that . . I don't know. We've never had a conver- sation about it, so don't go jumping to conclusions on that subject . `.. To me it's a nuisance. 10 Novelly admittedly "dislikes labor unions" and has made these "views" known to his subordinates He had instructed his subordinates, . including the "people at Crest," , I would prefer it [Crest] to be a non-union ship as opposed to being a union ship or company. Counsel for MEBA cites in his brief the recent deci- sion in Crest Tankers, supra, 270 NLRB at 52. As the ad- ministrative law judge found in that case, Crest, follow- ing commencement of operations in late 1982, had "pur- chased three ships", William McHenry, who had former- ly worked for Trinidad as port captain, "assumed the title of fleet manager" with Crest; and McHenry asked Andersen [an applicant] whether he was .a member of the ROU. This constitutes unlaw- ful interrogation under current Board law. When Andersen replied affirmatively, McHenry said that 10 See also R Exh 11 , Tr 709-713, the cited portions of the deposi- tion testimony of A Bryant Foster pertaining to the various entities in the Apex Oil family Foster was the "chief financial officer and chief ad- ministrative officer of the company [Apex Oil] and its subsidiaries " His "immediate supervisor" was Novelly It was also stipulated that the Crest employees "are covered by the Apex umbrella medical/life insurance and accidential death and dismem- berment policies the employees of Crest covered by collective bar- gaining agreements are not covered by the [Apex ] savings plan " (Tr 660) he could not discuss employment with him because of Crest's opposition to "national unions," and An- dersen's membership in the ROU This statement also was violative of Section 8(a)(1). McHenry's statement that Respondent would scrap the vessels if its employees were represented by national unions was clearly coercive under established law Finally, McHenry's statement to Tibbs [an applicant] . that the Company would not be hiring any union per- sonnel , was also violative of the Act. McHenry's statements evidence Respondent's animus against the Radio Officers' Union as a "na- tional union,"-and tend to show that membership of Andersen and Tibbs in the Union was a motivating factor in Respondent's refusal to hire them. McHenry needed radio officers badly, but did not call the ROU hiring hall. He was working for a company with a "different philosophy." When Tibbs made an oral application for employment on October 19, McHenry said that he could only apply in a nonunion capacity Subsequently, when the written applications from both Tibbs and Andersen were received, McHenry did not even bother to re- spond, because he considered, ROU's request for recognition and bargaining to be a "threatening" communication . Instead of sending employment ap- plication forms to Andersen and Tibbs, McHenry turned the matter over to Respondent's legal staff, pursuant to "higher authority " The Board agreed that Crest had violated Section 8(a)(1) and (3) of the Act by, inter alia, telling an applicant that employment could not be discussed with him because he was a member of a union, Crest would not hire union personnel, and Crest "would scrap its vessels if its em- ployees were represented by a national union"; and, fur- ther,,by discriminatorily refusing to hire applicants be- cause of their union membership. i i 11 Counsel for the Charging Party offered into evidence the district court's decision and findings in a related proceeding , Crest Tankers v Na- tional Maritime Union (April 4, 1985, C P Exh 4) The district court made detailed findings therein on the "alter ego" and "single employer" issues involving the same entities and a different union The court of ap- peals has recently reversed and remanded the district court's determina- tion on the "alter ego" question See Crest Tankers v National Maritime Union, 796 F 2d 234 (8th Cir 1986) The court of appeals, in its opinion, restated at length the essentially undisputed facts Although, as the court's decision shows, the cruical facts are not seriously disputed, never- theless, there are credibility resolutions which must be made Thus, counsel for the General Counsel and the Charging Party-rely- ing on testimony of Ervin, Cornwall, Novelly, and Robertson-argue that "Crest has enjoyed the same independence as Trinidad in conducting its labor relations and other affairs", the "labor relations policies of Crest and Trinidad are separately controlled", and day-to-day labor relations matters at Crest and Trinidad are "entirely autonomous" (G C Br 4-5, C P Br 13) I find the assertions by Ervin, Cornwall, Novelly, and Rob- ertson to this effect to be incredible on this record For example, Corn- wall, at one point in his testimony, broadly claimed that, as the "watch- dog of Apex" at Crest, he had "absolutely nothing" to do with "non- monetary labor relations" at Crest Elsewhere, he admitted his extensive involvement in ongoing labor relations at Crest Indeed, Robertson even placed Cornwall at contract bargaining meetings In like vein, Ervin broadly asserted that he, and later Gladders, were "responsible" for labor relations at Trinidad Elsewhere, he acknowledged that in effect he, like Continued MARINE ENGINEERS DISTRICT 1 (CREST TANKERS) B. The Employer's Second and Third Assistant Engineers The engine room of a Crest vessel, like the engine room of a Trinidad vessel, is composed of a chief engi- neer and first assistant, second assistant, and third assist- ant engineers. The engineers are all licensed by the United States Coast Guard under Federal law The engine room of such vessels also contains unlicensed per- sonnel, such as oilers, wipers, and pumpmen In dispute here is the "employee" or "supervisory" status of Crest's second and third assistant engineers. It is conceded, how- ever, that the chief engineer and first assistant engineer aboard Crest vessels are "supervisors" under the Act. It is also conceded that all licensed engineers (including the second and third assistant engineers) aboard Trinidad vessels are "supervisors" under the Act Moreover, in Trinidad Corp., Cases 14-UC-119 and 120, June 29, 1984 (R. Exh. 15), Trinidad had petitioned the Board "to clar- ify the bargaining unit . . . by a determination that the chief engineer, first assistant engineer, second assistant engineer and third assistant engineer on the vessels it op- erates . are supervisors . who should be excluded from the collective bargaining unit " Trinidad had peti- tioned for similar relief for its licensed deck officers. The Regional Director found, as follows. Clarification of the collective-bargaining units are not warranted at this time for the following reasons: The Employer is engaged in the world -wide trans- portation of petroleum on the high seas, and oper- ates the S. S. Sohfo Intrepid , S.S. Sohio Resolute, and the S.S Glacier Bay for the purpose of trans- porting oil from Alaska to terminals in Seattle, Washington, San Francisco , California ; and Long Beach , California . The Employer is signatory to a multi-employer collective-bargaining agreement with District No 1-Pacific Coast District, MEBA (AFL-CIO), covering "licensed engineers on Com- pany-owned U.S flag ocean-going tankers", and in such agreement the parties agree, "that all of the engineers to whom this Agreement is applicable are "supervisors" within the meaning of the Labor Management Relations Act of 1947, as amended." Cornwall, served as Novelly's delegated representative at Trinidad Ervin was told to remain in the multiemployer bargaining group in 1981 and to get out of it in 1983 He was told what ships he could continue to oper- ate He "reports to Mr Novelly " And, Trinidad's ships, for a period of time, were on "exclusive charter" to the Novelly controlled parent entity Further, Robertson, although also insisting that Crest and Trinidad are separate entities, acknowledged that McHenry, formerly with Trini- dad, is not fleet manager for Crest and responsible for the day-to-day ad- ministration of its labor contracts Finally, although Novelly also asserted that these various entities are independently operated, he too acknowl- edged how he "delegated" operational matters to his subordinates- Ervin, Cornwall, and Gladders-and how he in effect controlled their ac- tivities They consulted with him, he "knew what was happening", and he even made his antiunion views known to them, including his "people" at Crest, and they implemented these views In short, as discussed below, in resolving the "alter ego" issue raised here, I rely principally on the admissions and acknowledgements of Ervin, Cornwall, Novelly, and Robertson, as detailed supra Beyond this, I find their testimony to be, at times, flippant, vague, contradictory, in- complete, and evasive They did not, on this full record, impress me as candid and reliable witnesses 633 The Employer is also signatory to a multi-em- ployer collective-bargaining agreement with Inter- national Organization of Masters, Mates & Pilots ap- plicable to "licenses deck officers on U S flag ocean-going vessels." The investigation disclosed that each of the indi- viduals in the above classifications has the authority in the interest of the Employer to effectively rec- ommend discipline and discharge of employees, to responsibly direct them in their work, to adjust their grievances and to authorize overtime Further, the individuals in such categories are salaried at rates substantially above those of the employees they supervise, and enjoy benefits and accommoda- tions not similarly offered to such employees. In these circumstances, I find that the individuals occupying the classification of chief engineer, first assistant engineer, second assistant engineer, third assistant engineer, master, chief officer, second offi- cer, and third officer on the S.S. Sohfo Intrepid, S.S. Sohio Resolute, and S.S Glacier Bay are su- pervisors within the meaning of the Act. Counsel for the General Counsel, in the instant case, acknowledges that it still "is the position of General Counsel that" Trinidad's licensed engineers-including the second and third assistants-are "supervisors" (Tr. 200) Moreover, as will be discussed below, there is es- sentially uncontradicted testimony here that second and third assistant engineers perform similar duties and have similar authority aboard vessels of Trinidad, Crest, and various other tanker companies. The pertinent evidence is summarized below: James McCartin is now a manager for American Presi- dent Lines He was previously associated with the United States Coast Guard as department chief of marine casualty investigations. He testified that licensed officers aboard the types of tankers involved in this case, as well as all seamen, must have "documents" or "papers" which, under Federal law, permit them to go to sea In particular, the Coast Guard issues licenses to engineering officers aboard such vessels. Further, the Coast Guard will also investigate alleged acts of negligence, incompe- tence, or misconduct aboard such vessels and, following a hearing, determine whether to suspend or revoke a "li- cense" or seaman's "papers " Although McCartin has spent no time aboard Crest or Trinidad vessels and has spent only a limited time at sea, he had initiated, proc- essed, and supervised some 150 to 200 administrative proceedings involving, inter alia, drunk personnel on watch, incompetence, assaults, fires, and explosions McCartin testified that the Coast Guard maintains a minimum standard of conduct with which its expects all watch-standing officers (including second and third as- sistant engineers) to comply. i 2 Thus, the engineer on watch (including second and third assistant engineers) is held "responsible to direct the activity of [his] watch whether it be mechanical or people"; there "is clear chain of authority and responsibility"; the officer on 12 As will be discussed below, the engineers stand two 4-hour watches each day 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD watch is "responsible for his watch and those below him take his direction and supervision and work assign- ments." An oiler-who stands watch, with a second or third assistant engineer-would therefore be expected "to obey any commands given by the "second or third assistant engineer. And, McCartin has initiated proceed- ings against oilers who refused to obey such commands. These proceedings, McCartin explained, are initiated usu- ally following an investigation of a casualty aboard a vessel, where, for ,example, there has been a complete destruction of an engine room by failure - of a 'quarter inch fuel line . . . boiling to death of three mean when they pulled a valve . . 'destruc- tion of turbines; [or] failures in human conduct. McCartin also noted that the "shipping articles," which the crew and master must sign under Federal law, clearly provide that the crew will be "obedient to the lawful commands of their superior officers." A second or third assistant engineer is such a "superior officer" under Coast Guard "standards of conduct," and an oiler on watch with a second or third assistant engineer is not ex- pected to exercise "independent judgment" in perform- ing his, duties. It is the watch-standing officer who is charged with the "overall safe operation of the engine room"; he may be held responsible for injury or casualty on his watch; and this "standard of conduct" exists be- cause a ship at sea is a dangerous place,. . . it's not a de- bating society . . . there's a clear chain of command and responsibility. McCartin agreed with the quoted language of an ad- ministrative decision cited to him, to the effect that the "very reason for" a "night" engineer "being aboard ship includes the general oversight of the engine room ma- chinery and personnel"; he is "the supervisor and has a duty to insure that all personnel are performing their as- signed tasks in a professional manner"; and if gauges, indicators and unlicensed personnel can properly be relied upon, there would be no necessi- ty for [the] engineer's presence. McCartin concluded that the above statement "repre- sents the standard generally applied." Consequently, in McCartin's view, a Crest licensed engineer, including a second and third assistant, responsibly directs the oiler on his watch.' John Collins is "adviser" to both the Crest Tanker- men's Association and the Crest Officers' Association He identified Respondent's Exhibit 2 as the original con- tract between Crest and the Tankermen's Association, dated October 29, 1982, covering unlicensed personnel. The contract provides, inter alia, that the employees "agree to comply with all lawful orders of their superior officers." Collins agreed that the term "superior officer" "refers to the second engineer or the third engineer standing watch" with an oiler. Collins also identified Re- spondent's Exhibit 10, containing a letter from Collins to Crest Fleet Manager McHenry, stating, inter alia: A question has arisen among several of the officers as to a proposed Company plan to take an existing third assistant engineer or third mate and have this individual on his or her next tour of duty sail in an unlicensed capacity. Frankly, I think this poses many problems. The offi- cer moving back would resent it, and if he later moved up, his situation with respect to the other unlicensed personnel might be suspect. Finally, and above all, I do not think it is fair to the individual hired as a third assistant engineer or third mate, unless he is clearly unqualified and needs so- called seasoning in the unlicensed category, to be reduced to sailing in an unlicensed category. And, as one-third mate wrote complaining about the above rotation proposal,- ". '. it would be difficult to spend one trip giving orders . . . and then spend the next trip taking orders from these same people or being on the same level." [ibid.] - Richard Lizott has been a chief engineer with Crest since early 1983. He explained that the engine room crew includes a chief engineer; one first, second, and third assistant engineers; three oilers; two pumpmen; and one wiper. The officers are licensed. Generally, they obtain their licenses after attending a certified maritime academy and passing the required Coast Guard examina- tions. T he first, second, and third assistant engineers each stand two 4-hour watches. An unlicensed oiler also stands watch with the officer. During a watch, the offi- cer and oiler will "each make periodic rounds, checking temperatures, pressures, and the operation of the com- plex engine room equipment. Much of Lizott's testimony, and other such witnesses called' by the General Counsel and the Charging Party, pertained to the broad range of authority vested in the chief and first assistant engineer. They are, as admitted, supervisors. In addition, Lizott further testified that there are separate dining rooms for the licensed and unlicensed personnel; the chief only spends about 30 percent of his work day in the engine room; the chief will confer with watch standing engi- neers about the "work" and "capabilities" of the oilers; and the chiefs evaluation of the oilers will be based in part on such discussions. Lizott "would except an oiler working" a watch "to obey the commands given by the second assistant engi- neer"; he "would expect a second assistant engineer to report . . . an instance of disobedience" or insubordina- tion; and a watch-standing engineer can order an intoxi- cated or unfit oiler out of the engine room Lizott also acknowledged that a watch-standing officer (including a second or third assistant engineer) would have authority "to direct the oiler to take whatever action was neces- sary to safeguard the engine room"; "if it is a serious problem he had better be calling my office or bedroom"; however, before the chief "got there," the engineer on watch "could direct the oiler" to take certain corrective action and the "oiler would be expected to obey." It is therefore within the "realm of. responsibility" of the second or third assistant engineer to give such orders to MARINE ENGINEERS DISTRICT I (CREST TANKERS) 635 the oiler. Lizott explained the "responsibility" of such watch-standing officer, as follows: I wouldn't expect him to go making major alter- ations in the plant without notifying me, such as killing the generators or whatever, unless it was a dire situation. . I would expect him to correct [a low water level.] [I] would expect him to order the oiler to assist . . [and I would] expect him to direct the oiler through the process Lizott was then asked about events or situations aboard a vessel that would not be regarded as either an "emergency" or "routine," in other words instances which occur with "some regularity" during the watch of a second or third assistant engineer . Ltzott testified that, in such instances, the engineer also would "generally" have the "authority to direct the oiler to assist him in making the necessary repair or adjustment" to the equip- ment and the "oiler would be expected to comply." The watch-standing officer "would be held responsible ulti- mately if the oiler took an action that damaged the plant." Moreover, as Lizott noted, the "authority" of a second or third assistant engineer on watch is not "any different at Gulf," where he previously served, "than it is at Crest " Michael O'Leary previously sailed with Trinidad as a second and third assistant engineer . His vessel was scrapped and, in October 1982, he was hired by Crest Fleet Manager McHenry He served Crest as a first, second, and third assistant engineer. O'Leary testified, without contradiction, that the "duties" of a third assist- ant engineer at Trinidad "were the same as the duties are at Crest." O'Leary testified that engineers on watch (in- cluding a second or third assistant) will give "instruc- tions" to the oiler "to adjust . . cooling water . . . to open a valve . . . to lube an oiler cooler or to . . reset a valve . . different situations like that." The officer on watch is "primarily responsible" for the "operation of the plant " Further, O'Leary noted that the chief engi- neer may ask the second or third assistant "how the oiler is working out." Mark Amundsen, employed by Crest as a second and third assistant engineer, testified that on watch he might instruct or direct an oiler to "open or reset a valve" and if we have a bad load of fuel on, you know, a big pressure differential on the strainers, I would ask him to change [the strainers.] In a "maneuvering situation," Amundsen, as the watch- standing engineer, would determine when the "oiler makes his rounds"- I [the engineer on watch] cannot let him [the oiler] away [from the platform]. Further, Amundsen noted, the engineer determines who takes the first round And, if an "alarm is sent up," the oiler on watch will "run and get" the engineer; the oiler "is not entitled or authorized to take corrective action on his own", the engineer "would decide what if any cor- rective action had to be taken." The oiler cannot take corrective action in such a nonroutine situation because he "doesn't have the knowledge of the system or the plant that the engineer does." Amundsen further testified that it is the watch-stand- ing engineer's "responsibility" "if something goes wrong." The watch-standing engineer, including a second or third assistant, is known as the "engineer in charge." Elsewhere, however, Amundsen testified that, in his opinion, a second assistant engineer is not "a supe- rior officer" to an oiler; nevertheless, he could recall no oiler ever disobeying his direction. Amundsen also re- called being asked by the chief engineer, "how is your man [oiler] doing . . . and I'll give him my input on it." Peter Geissler, formerly an oiler and now a third as- sistant engineer for Crest, claimed that "the oiler knows his duties and it is not usually necessary for the engineer to give any orders to the oiler unless of course there is an emergency " An example of the type of "order" a third assistant engineer would give an oiler would be, "to make certain adjustments on different systems" in the engine room Geissler also claimed that, when he was an oiler he "wouldn't call" the directions from engineers on his watch "commands"-"they will ask me to do some- thing." He, however, as an oiler never "refused." Fur- ther, Geissler testified: Q. Was one of your duties as an oiler while in port to assist in making repairs, as directed while on watch? A Yes. Q. And as directed by the engineer in charge of the watch? A. Yes. 13 Stephen Everett, a first, second, and third asssitant en- gineer with Crest, testified that, as a second or third as- sistant on watch, he would instruct the oiler when to change and clean strainers-he would also instruct the oiler to "vary" or "delete" his "round" because the engi- neer needed the oiler to perform another duty. Everett noted that, "if anything goes wrong," the oiler "will come find me." Everett testified, in pertinent part as fol- lows: Q. Is it a fair statement that the watch-standing engineer's duties, whether first assistant, second as- sistant, or third assistant, are to take care of any problems that arise during the watch? A. Yes Q. And while on watch as a watch-standing engi- neer, whether first, second, or third, he's responsi- ble for the overall safe and efficient operation of the plant, right? A. Correct. I believe that's a fair statement. Q. He's responsible to make sure that the actions of the oiler contribute to the safe and efficient oper- ation of the plant, right? A. Yes 13 David Roy, formerly an oiler and now a third assistant engineer with Crest, similarly testified that an officer on watch will instruct an oiler to "change oil strainers" and to assist the engineer in making adjust- ments 636 DECISIONS OF THE NATIONAL, LABOR RELATIONS BOARD Q. Now, there have been instances , have there not, when you have served as a second or third as- sistant engineer and an oiler was performing his duties and , in your view, he was performing them incorrectly? A. That has happened, yes. Q. You corrected him,, right? A. Yes. Q. You see that as part of your duty? A. Yes. Q. Have oilers ever refused to head your correc- tions? A Never me, personally, no. 'Q As a watch engineer, whether as a second or third, you have authority to vary the oiler's rounds, is that true? A Vary his round? Yes. Q. Telling him not to take a round because you needed him to do something-else? A. Correct. Q. And it's [up to] the watch-standing engineer, including the second and third watch -standing engi- neer, to decide when an oiler will take his rounds, right, whether on the half hour or on the hour? A. Yes. They can do that if they want Q. While serving as a second or third assistant on watch, you've made decisions on the spot that re- pairs needed to be made, right? A. Yes. Q. And in those instances , you've directed the third to help in repairs, right? The oiler, I'm sorry. A. Repeat that question again. Q. In instances when , you've determined on watch that repairs have to be made on the spot, you have directed the oiler to assist you in making those repairs, right? A. Yes. You said "third" last time Q. Have oilers ever refused to assist you in making repairs while on watch? A. No; he had not. - Q. And you have directed the oiler through the process of making the repair, right; you tell him what to do and not to do while repairs are in proc- ess? A. Yes. Q. And that's because the engineer has a greater understanding of the workings of the machinery and how they can translate into problems in the engine room, correct? A. Correct. Q. Have there been instances when you've been a second or third watch-standing engineer, have there not, in which neither the chief engineer nor the first engineer was aboard the vessel? A Yes. Q. And the main engine has been engaged during those occasions, has it not? A. Engaged? Yes. Q. The engine is not shut down? During those occasions as a second or third engineer, you're in, total charge of the engine room, right? A That's correct. Q. You have the authority to direct any member of the engine department to take any action you view as necessary to safeguard the plant, right? A. In such a situation, authority has been given Q. And I believe those situations happen-have those situations occurred with some regularity, that the chief and the first was off the vessel? A Not with some regularity. It happened fairly rarely, where it has happened. Q. It happened four to five times during the first year you were employed, didn't it? A. No. Are you saying, like, I had to hit my panic button, as I call it? Q. No, no, no. When you were a second or third engineer on watch and neither the chief nor the first was aboard the vessel; that happened at least four to five times during the first year of employment with Crest, didn't it? I believe the answer was "yes," right? A. Yes. Q. I believe you testified on direct that there have been occasions where chief engineers have asked you whether an oiler was performing well or not, correct? - A. Yes. Q. There have also bee instances where first as- sistant engineers have asked you how the oiler on duty was performing, right? A. Yes. Q. The first assistant engineer works a complete- ly -separate watch from the second and third assist- ant engineer; right? A. Correct. Further, Everett explained that he previously worked for Gulf Oil as a third assistant engineer and the duties there are "identical" to those at Crest. Jack McGinnis testified that he previously sailed for Trinidad during late 1981 or early 1982. McGinnis was then a first assistant engineer aboard the Banner, a ship which was later purchased by Apex Oil to be operated by Crest He testified that the Banner is "an old ship" with a variety of problems. He explained that the engi- neer on watch "is expected to know how to respond to any casualty or malfunction with the equipment, any contingency that might happen [including] flame out in the boiler, loss of fire, loss of steam pressure . . [and] ruptured tube"; "if this isn't diagnosed quickly enough, you can damage the boilers"; "the engineer on watch knows this and is responsible for it " He noted that there may be "more than one possible response or reaction to be taken" to deal with such problems; a variety of con- trolled steps may have to be taken; and the engineer "in charge of the watch" is "responsible." The oiler does not use his own initiative when such an event takes place. He explained, in pertinent part as follows: If I saw a problem developing, the first thing going through your mind when you're standing on watch, standing watch, is what's happening. You generally don't call the chief engineer and say, "I MARINE ENGINEERS DISTRICT I (CREST TANKERS) 637 have a problem and I don't know what it is," be- cause that's the first thing he's going to ask you, you say, "I have a problem," he's going to ask you, "What's the nature of the problem?" So you've al- ready ascertained this, and in some cases as we're describing now with the boiler , potential casualty for the boiler, you would have already taken some action. Well, if I see a situation developing, it's my re- sponsibility to see that it doesn't develop into a crisis, if I can see it developing, sometimes things happen rather rapidly. if I saw a carryover problem developing, as an ex- ample, I would begin to slow the engine down im- mediately at that time, because I have a problem, and at that point it doesn't really matter what the problem is, I've got to determine now what's caus- ing the carryover. But I'd begin slowing the engine down because I'm doing damage already. I've been in many situations where there was not time to call the Chief Engineer. They have what we call a panic button on the ship where situations de- velop so rapidly with two men in the Engine Room that you might call everybody down. Donaly Cyr was employed by Crest between March 1983 and December 1984 He sailed as a second and third assistant engineer He has also sailed on "MEBA contract vessels," and there is no "difference" in his "au- thority . as a watch-standing engineer with Crest" and his "authority" as "a watch-standing engineer on MEBA contract vessels " Cyr testified that oilers on his watch were not authorized to open or close valves on their own initiative-"they'd let me know first." The en- gineer on watch decided whether strainers should be changed . If fuel oil strainers get "clogged ," the "boiler could go out "if lube oil strainers get "clogged," the "bearings can burn out." The engineer on watch decides when to change the strainers depending on the vessel and its schedule Cyr recalled an incident aboard a Crest vessel where the "fire had gone out" and he "instructed" the oiler to assist him The incident took minutes. He did not contact the chief or first assistant engineer . Had the situation not been remedied immediately, the ship would have experienced a total "blackout" in about five min- utes. Cyr also testified with respect to a situation arising on a Crest vessel in port , when the chief and first assistant engineer were not on board: Q. Did anything unusual happen , out of the ordi- nary happen during the time the Chief and First were gone from the vessel? A. Okay. What had happened is it was towards the end of the cleaning of the tanks, and what their plans were is once the Chief and the First had re- turned, we were going to shut down the plant and go on shore power, so fortunately they had the shore power hooked up, and we had one boiler down for maintenance because we only required one boiler while we were in port, and we blew a gasket in the steam line, and you 're talking about 400-pound steam pressure, and we didn't have an- other boiler to light so we were forced to shut down . So the Second , myself, and one oiler, we physically shut down the whole Engine Room. Now this isn't just a matter of pushing a button, this is something that takes two to three hours to be done properly, a lot of valve turning, et cetera. And fortunately we had the shore power already hooked up, so once we had everything shut down , we just had to flip a few switches to get the power on Q. Now who made the decision in that instance to shut down the plant? A. Well, it was the Second who was on watch at the time, and he really had no option . . He had decided that we were going to shut down. Q. What steps are involved in shutting down a plant, and what were the respective roles of the en- gineers and the oiler in that instance? A. Okay. Well, number one, is [sic] you have to shut your fires off and the boiler, naturally, and the important thing is to keep water in the boiler be- cause you don't want to overheat the boiler. So what we tried to do, see that we didn 't have much steam pressure, which the feed pumps run on steam, is we filled the boiler as much as we could because we were losing steam pressure , and we had to shut the fires down Q. Did the oiler assist in that process, did he have any role in that? A. Yes, we had him shut a lot of dials on the boilers and staff like that, and then we went down and secured the feed pump. Well, it all happened so fast, we had so much to do that either one, the Second or myself, we would grab him, say, "Come on, come help me," and, you know, a lot of times he had five or six valves in one location to close and they had to be closed fast , you know, in order to expedite things. And then along with that you also had other, like your generators had to be slowed down, cooled down properly Q Once the plant was shut down , were the hours of work for the oilers varied? A. Okay, once we had shut everything down, then there was no need to have a normal, what we call a watch, because there was really nothing oper- ating except for what we call hotel services, sani- tary pump, drinking water pump, equipment like that. So what we did is we went ahead and went on what we call day work, everybody worked eight to five, and what we did is worked maintenance on items that we could not normally work on when the plant is on because there's no way to isolate cer- tain parts of the system and you can only do this during a shutdown. Q. And who made the decision to change the hours of work from sea watches to day work? A. The Second had done it. 638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q Do you know whether he consulted with the Chief? A The Chief wasn't on board.14 Sidney Vaughn, an oiler with Crest, claimed that he has turned valves without consulting with the watch- standing engineer about two or three times. He has, however, adjusted valves on many more occasions during his 2 years with Crest, as "directed" by the watch engineer 15 David Lusas, as an oiler for Crest, would follow the "decision" of his watch-standing engineer. Lusas explained' The engineer would generally make the decision and I would follow the decision . he ultimately had to make the decision because he was responsi- ble for the plant Lusas never said "no" to the engineer.16 14 Cyr emphasized that no unlicensed employee aboard a Crest ship has refused to obey his instructions If such an event took place, he would "log" the incident or report it to the chief and first assistant - 15 Sebastian Koep, a rebuttal witness, has been a marine engineer for 40 years aboard MEBA contract ships and with Exxon Koep claimed, inter alia , that "our oilers knew their duties" and therefore watch-stand- ing officers would "rarely" give instructions to oilers Koep elsewhere acknowledged that during his years as a licensed engineer, no unlicensed Screw member has ever refused to obey his order-"I've asked them to do things" and they "have never refused " Koep did not "really recognize the phrase" "superior officer"-"it's never been used in my presence an officer is an officer " Later, Koep explained "if an oiler disobeyed in- structions [the third assistant] was to send this oiler to the first or chief immediately " Koep noted that he was only on MEBA contract vessels from 1943 to 1948 and that he has not served for Trinidad or Crest Koep also noted that,he had referred to certain vessesl of Exxon "where there are no oilers" When asked if Crest has'any vessels without an oiler on watch, he responded "No, I'don't know anything about Crest " is The testimony recited in'this section is in large part uncontradicted And, I am persuaded that the above detailed and quoted testimony fairly represents the authority and role of second and third assistant engineers aboard Crest vessels There are, however, credibility resolutions which must be made McCartm, formerly associated with the Coast Guard's de- partment of marine casualty investigations, credibly testified without con- tradiction that the Coast Guard maintains minimum standards of conduct with which it expects all watch-standing engineers to comply The watch-engineer, in performing his duties, responsibly directs the oiler Collins credibly agreed that Crest's contract'with its Tankermen's Asso- ciation requires unlicensed personnel to obey the commands of watch- standing officers and this includes, as "superior officers," second and third assistants Lizott credibly recalled the separate dining facilities aboard Crest vessels for licensed and unlicensed personnel, the chief would confer with the watch-standing officers about the work and capa- bilities of their oilers, and the watch-standing officer does give orders to the oiler and the oiler must comply with these orders O'Leary credibly testified without contradiction that his duties as a third assistant aboard a Trinidad vessel were "the same as the duties are at Crest " He too related the types of orders given to oilers by a watch-standing officer He would be asked by the chief, "How the oiler is working out?" Amundsen credi- bly related his instructions to oilers and his authority on watch The watch-standing engineer is "in charge " Although Amundsen claimed that, in his view, a second or third is not a "superior officer" over an oiler, the rest of his testimony and this entire record is contrary to this understanding Geissler claimed that he would not, in his view, call direc- tions from certain watch-standing officers "commands", however, the rest of his testimony and this entire record contradict his understanding Roy also credibly related that the watch officer would instruct oilers to do certain tasks Everett, a witness called by the Charging Party, testified at length about the duties and responsibilities of the watch-engineer I credit the.quoted testimony of Everett as reasonably relating the broad duties and responsibilities of the watch-engineer McGinnis credibly relat- ed these same duties and responsibilities aboard the Banner, now a Crest tanker, formerly a Trinidad tanker Cyr credibly testified about the simi- C. The Arbitration Award On October 11, 1983, counsel for MEBA served Trini- dad with a grievance and notice of arbitration , claiming, inter alia, violations of cited sections of their 1981-1984 collective-bargaining agreement . In particular, the Union alleged that Apex Oil, Crest, and Clayton are "alter egos" and "subsidiaries" or "affiliates" of Trinidad within the meaning of section 36(a) of the agreement. MEBA therefore sought application of this agreement to all licensed marine engineers aboard ocean-going vessels owned or operated by Crest or Clayton ; payment of lost wages and benefits resulting from the alleged violations; and an order requiring Trinidad "to abide by [its] con- tractual obligations." Copies of this notice were also served on Apex, Crest, and Clayton, "so as to invite them to attend and participate in the arbitration." The next scheduled arbitration "meeting" date for such pro- ceedings was, as stated in the notice, October 19, 1983. (See G.C. Exhs. 9 and 10.) The arbitrator selected to hear this grievance was W. J. Usery Jr On October 17, Trinidad requested from the arbitrator "a continuance of the hearing . . until the next scheduled meeting date . . . or another mutually agreeable date." (See R . Exh. 18.) MEBA opposed this request. (See R . Exh. 19.) The arbitrator granted the re- quest . The hearing was then ` rescheduled for November 9. (See G C Exh. 11, p. 2.) On November 3, Trinidad requested a second continuance MEBA again opposed this request. (See R. Exhs. 25 and 26.) On November 4, the arbitrator denied the request , notifying the parties' in writing that "I expect all parties to be present for the ar- bitration hearing scheduled for 10 a.m . 'on Wednesday, November 9, 1983, and Thursday , November 10, 1983." (See R. Exh. 27.) As the arbitrator later stated in his de- cision and 'award (G C Exh. 11, p. 2), the October 19 hearing was "rescheduled for November 9", "During this period , the Company sought and was granted a tem- porary restraining order in the Federal District Court on November 4 . to prevent the holding of the arbitra- tion hearing"; the injunction "order was vacated by a two-member panel of the United States Court of Appeals . . on November 8"; and the arbitration "hearing took place as scheduled on November 9, 1983." See ,'In re Pa- cific Coast District, Marine Engineers, 723 F.2d 10 (D.C. Cir. 1983) The court of appeals, in vacating the district court's order, noted , "We vacated the District Court's order the next day so as to allow the arbitration to proceed as lar duties and authorities aboard Crest or MEBA "contract vessels " He too credibly related the serious consequences of the failure of a watch- standing officer to give timely and proper orders to the oiler He too cre- dibly related the watch-standing engineer's broad duties and authority in port when the chief and first assistant are not aboard the vessel- Vaughn asserted that he has turned valves as an oiler without consulting with the watch-standing engineer The rest of his testimony shows that this al- leged independence is the exception and not the rule Lusas credibly ex- plained how he followed the decisions of the watch-officer Koep, a re- buttal witness, claimed that "our oilers know their duties" and the offi- cers would "rarely" give instructions to the oilers I was not impressed with Koep's testimony It was, at times, confusing and contradictory In any event, Koep's testimony does not significantly alter the mutually cor- roborative testimony of the witnesses detailed above, which I find to be reasonable and credible here - MARINE ENGINEERS DISTRICT 1 (CREST TANKERS) 639 scheduled " Nevertheless, on November 8, Trinidad made a third request for a continuance, claiming, inter alia, that "counsel . . . is required to be in court" "to attend the status conference." (See R. Exh. 29) MEBA again opposed this request. (See R. Exh 30.) "Lead counsel" for Trinidad did not appear at the scheduled ar- bitration proceeding the next morning Instead, an associ- ate appeared After extended colloquy, the arbitrator ruled that this case would proceed as scheduled. Counsel for Trinidad then walked out of the hearing. (See G.C. Exh 20, the transcript before the arbitrator, pp. 1-24) Evidence and testimony were thereafter presented. And, on December 23, 1983, the arbitrator issued his decision and award. (See G C. Exh. 11 )17 The arbitrator determined, on the evidence presented, that "the relationships among the various entities in this case represent precisely the kind of structure that much of section 36 of the agreement was developed to deal with"; that "Apex Oil is obligated to comply with the terms of the agreement since it effectively controls Trini- dad through Apex Holding and Apex Shipping"; that Apex Holding and Apex Shipping "in the same way . . . are obligated to comply with the agreement"; and that "since Crest and Clayton are effectively controlled by Apex Oil through Apex Holding, Crest and Clayton are obligated to comply with the terms of the agreement." Further, the arbitrator determined that the "agreement, as interpreted, is not contrary to" the National Labor Relations Act. He found, on the evidence presented, that "these engineers are all supervisors who are not covered by or protected by the" Act. Alternatively, he found that "Crest and Clayton are alter egos of Trinidad .. . bound to Trinidad's agreement with the Union" or "a single common employer." 18 The New York Supreme Court confirmed the arbitra- tor's award on November 14, 1984. (See G.C. Exhs. 12 and 13.) The Court held: Based on evidence submitted which detailed the re- lationship among the various entities, the Arbitrator determined that Apex, Crest and Clayton were commonly controlled by the same entities and indi- viduals who controlled Trinidad and, therefore, were subsidiaries and affiliates within the meaning Art. 36 . . . . This was within his province and it is not up to the Court to decide whether it would have done the same Nor does it appear that the Arbitrator's refusal to grant Trinidad's request for a continuance of the November 9 arbitration hearing was misconduct. 17 Trinidad did submit posthearing briefs to the arbitrator See G C Exh 12 18 The arbitrator's award directed Trinidad , inter aha, to cause Apex Oil, Crest, and Clayton to execute the agreement, to apply its terms to the Crest and Clayton engineers , to pay to the Union, for the benefit of its members, the amount of wages lost until such time as the engineers involved are covered by the agreement, and to pay to the appropriate benefit plans lost benefit contributions until compliance As counsel for MEBA notes in his posthearing brief (p 11), the 1981-1984 contract has expired and "will not be renewed", consequently, "no MEBA agreement exists which could be executed by Crest or extended to its marine engi- neers " Trinidad had been notified in October'of the arbi- tration and had already received one continuance. Further, the Court stated- The arbitration award is not contrary to federal law as an unfair labor practice. First, as conceded by the parties, these engineers are supervisors and are not covered or protected by the provisions of the National Labor Relations Act Secondly, although the engineers employed on vessels owned and/or operated by Crest and Clayton have not exp:cssed their desires to be represented by the Union, Crest and Clayton, as alter egos of Trinidad, are bound by Trinidad's agreement with the Union. On January 21, 1984, the Appellate Division of the New York Supreme Court affirmed this judgment. A motion to appeal to the court of appeals was denied. (See G.C. Exhs. 14 and 15.) On August 12, 1985, Arbitrator Usery issued his sup- plemental award assessing the exact amount of damages. (See G.C. Exh. 16.) The New York Supreme Court later denied Trinidad's petition to vacate and, instead, con- firmed this award. (See G.C. Exhs. 17 and 18.) Discussion The General Counsel and the Charging Party contend that Respondent Union violated Sections 8(b)(1)(A), (B), and (2) of the National Labor Relations Act by utilizing and implementing the grievance-arbitration procedures contained in the Union's collective-bargaining agreement with Trinidad. The General Counsel and the Charging Party assert that Respondent Union, by its use of the ar- bitral process, improperly extended its contract to Crest, and thereby impinged on the Section 7 rights of Crest employees to select their collective-bargaining represent- ative and the corresponding rights of Crest to select its own grievance adjustment representatives. On the other hand, Respondent Union argues that Crest is an "alter ego" of Trinidad and, consequently, the Union's attempt here to obtain compliance with its 1981-1984 contract with Trinidad does not run afoul of the proscriptions of the National Labor Relations Act. Respondent Union argues that Crest was formed and managed for the pur- pose of avoiding Trinidad's collective-bargaining obliga- tions. The Board, in Walter N. Yoder & Sons, 270 NLRB 652 (1984), enfd. 754 F 2d 531 (4th Cir 1985), stated that a collective-bargaining agreement signed by one of two corporate entities "would not bind the other if each were a separate corporation, but would bind the other if both constituted a single employer and the employees of both companies constitute a single appropriate bargaining unit or the nonsignatory company is the alter ego of the signatory company . . " (emphasis added). For, as the Supreme Court had observed earlier in Howard Johnson Co. v. De- troit Local Joint Executive Board, 417 U.S. 249, 259 (1974), "mere technical change[s] in ... structure or identity" do not relieve an employer from "all the legal and contractual obligations of the predecessor " See also NLRB v. Campbell-Harris Electric, Inc., 719 F.2d 292, 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 295-296 (8th Cir. 1983); Woodline Motor Freight, 278 NLRB 1141 (1986). - In Advance Electric, 268 NLRB 1001, 1002 (1984), the Board restated the well-settled legal principles to be ap- plied in determining whether two entities are in fact "alter egos," in part as follows. Although each case must turn on its own facts, we generally have found alter ego status where the two enterprises have "substantially identical " manage- ment, business purpose, operation , equipment, cus- tomers, and supervision, as well as ownership. Other factors which must be considered . . . in- clude "whether the purpose behind the creation of the alleged alter ego was legitimate or whether, in- stead, its purpose was to evade responsibilities under the Act " Recently, the United States Court of Appeals for the Eighth Circuit applied these principles in Crest Tankers v. National Maritime Union, 796 F.2d 234. Crest and Clayton, the same entities involved here, filed a suit for injunctive and declaratory relief against the National Maritime Union in response to the union's attempt to, compel the employers to arbitrate under the union's con- tract with Trinidad. Essentially similar facts were pre- sented and similar legal issues were raised The district court found that Crest and Clayton and Trinidad were not a "single employer," "although the District Court twice said evidence would support either holding." The union did not appeal this ruling The union, instead, chal- lenged the district court's determination that the entities do not constitute "alter egos." The court of appeals re- versed and remanded for further proceedings on the question of "alter ego," in accordance with its opinion. The court at 237 explained: In general, only a party to a collective bargaining agreement is bound by its terms; however, in some instances, an employer which has not signed a labor contract may be so closely tied to a signatory em- ployer as to bind them both to the agreement. Two theories for demonstrating this "high degree of con- sanguinity" . . are relevant here The first is the single-employer doctrine . The second . . is the alter ego doctrine. - Although only the "alter ego" theory was raised on appeal, the court at 236 fn 1 noted- We discuss "single employer" and "alter ego" in this opinion as though they were two separate ideas. In doing so, we adopt the approach of text-writers and digesters, to whose hearts' such neat categories are dear . In fact, what is really happening, it seems to us, is that a number of factors, including anti- union motivation, are being treated as relevant to the question whether one employer, formally sepa- rate, should be viewed as legally the same as an- other When the requisite degree of anti-union mo- vitation is present, this question is answered "yes," even though the other factors considered might not suffice to produce this result. The court of appeals, in discussing the scope of the "alter ego" doctrine, restated and quoted with approval from Court and Board opinions, as follows at 237-238: [T]he factors used to decide whether one employer is another's alter ego-ownership, management, business purpose, operations , customers ' and equip- ment-are similar to those used in the single-em- ployer analysis the alter ego doctrine generally applies to situations where one employer has in some way succeeded an- other, often through a change in the corporate structure. [a] second distinction is motivational . whether the employer acted out of an anti-union sentiment to avoid a labor contract. [t]he focus of the alter ego doctrine . . . is on the existence of a disguised continuance of a former business entity or an attempt to avoid the obliga- tions of a collective bargaining agreement , "such as through a sham transfer of assets. [n]either the courts nor the . . Labor . . . Board have limited the alter ego analysis to those fact pat- terns where the original employer has disappeared entirely. [t]he NLRB . . . has applied the alter ego doctrine, when only part of the original employer' s business has been diverted to a new entity. [n]or have findings of alter ego status been limited to situations where all of one part of a company's business has been diverted to a second entity. The court of appeals, in restating the findings of the district court (offered into evidence here as C.P. Exh. 4), pertinently noted at 236: When Crest began its operations, it purchased two vessels from Getty Oil Co.; the ships were op- erated almost entirely by unlicensed personnel laid off by Getty who had been represented by the Getty Tankermen's Association. The new Crest em- ployees then formed the Crest Tankerman's Asso- ciation (CTA), which the company recognized as bargaining representative . Shortly thereafter, when Crest purchased two vessels from Gulf Oil Co., it -did not hire the former Gulf employees, who were represented by the NMU. Crest also purchased from Grand Bassa Tankers, Inc., two vessels which had been operated under contract by Trinidad Trinidad had the right of first refusal on the vessels, but was told not to buy them by the same Apex of- ficial who directed their purchase by Crest Former Trinidad crew members were not offered work by Crest. By the time of trial in November 1983, most if not all of the charter shipping once done for Apex by Trinidad was being done by Crest. Just MARINE ENGINEERS DISTRICT I (CREST TANKERS) prior to the formations of Crest and Clayton, Trini- dad operated five vessels on charter to Apex Oil; as of the trial, none of those was operating, while Crest was operating five such vessels for Apex, in- cluding one of the Grand Bassa tankers formerly operated by Trinidad. The court concluded that to "limit the [alter ego] doc- trine's applicability to companies which have shut down entirely would allow anti-union employers a complete escape from alter ego liability, simply by keeping a small aspect of the predecessor operation alive." (796 F 2d at 238.) The court therefore remanded the proceedings to the district court to evaluate this issue in accordance with its opinion. Applying the above-stated principles to the evidence of record here, as detailed in section A, supra, I find and conclude that Crest is the " alter ego" of Trinidad and, consequently, MEBA's use of the arbitral process, in an attempt to get Trinidad to comply with its outstanding contract obligations, is not violative of Section 8(b)(1)(A), 8(b)(1)(B), or 8(b)(2) of the Act Trinidad is a wholly owned subsidiary of Apex Shipping Apex Ship- ping is wholly owned by Apex Holdings Apex Holding is wholly owned by Apex Oil Crest is wholly owned by Apex Holding. Clayton is wholly owned by Apex Hold- ing. All of these entities have common boards of direc- tors and officers Novelly is president of virtually all the entities and, as this record shows, directs the operations of these entities through his designated subordinates. Thus, Cornwall is the executive vice president at Crest. He is on the Apex Oil payroll and his immediate superior is Novelly. Indeed, Cornwall regarded himself as the Apex Oil "watchdog" at Crest. Likewise, Ervin is the executive vice president at Trinidad. He too is on the Apex Oil payroll and his immediate superior is Novelly He also takes his order and directions from Novelly In October 1982, Apex Oil, under the direction of No- velly, instructed Cornwall to "start" Crest. Novelly said: "Mr Cornwall, go out and buy these vessels for Crest." Crest had no funds Apex Oil provided the money Corn- wall, as the "watchdog" of Apex Oil at Crest, thereafter participated in the management of Crest's labor relations. Cornwall executed the 1984 Crest collective-bargaining agreement and amendments; he frequently communicated with the Crest Tankermen's and Officers' bargaining "ad- viser"; he thanked in writing the Crest personnel for rati- fying the 1984 collective-bargaining agreement with the Association, announced "retroactive" benefits and noted to the personnel the "loyalty they have shown this Com- pany"; and he even sat in on bargaining committee meet- ings. The newly acquired Crest vessels, as Cornwall fur- ther explained, were then placed on "exclusive charter" to Apex Oil They would carry oil for Apex about 80 percent of the time. Apex Oil, through Cornwall, would also designate what other products these vessels would carry. Trinidad, during the term of its 1981-1984 labor con- tract with MEBA, owned 25,000- to 27,000-ton tanker vessels which were also on "exclusive charter" to Apex Oil Ervin, on Apex Oil's payroll, negotiated these same "exclusive charters" with Novelly or Cornwall. Under 641 such a charter or lease, these vessels exclusively trans- ported Apex Oil about 80 percent of the time. Apex Oil, though Cornwall, would designate what other products these tankers would carry. Accordingly, both the Trini- dad and Crest medium size tanker fleets were on "exclu- sive charter" to Apex Oil Cornwall would decide "which vessel" would carry "which cargo." He conced- edly utilized the two fleets interchangeably "to the most economical advantage for Apex." In the meantime, Ervin, under the direction of Novel- ly, oversaw the diminution of the Trinidad fleet. The medium sized tankers were ultimately scrapped Other ships, previously operated by Trinidad, were no longer operated by this entity. No new ships were purchased. And, although Trinidad had a "right of first refusal" to purchase two ships which it was operating for Grand Bassa, Novelly decided that Trinidad would not exercise this right; instead, these ships were purchased by Apex Oil funds for the use of the Crest at the same price. One of these ships continues to sail in the Crest fleet. Further, Ervin, under the direction of Novelly, got out of the multiemployer bargaining association. Later, Trinidad re- fused to renew its 1981-1984 contract with MEBA. Ervin admitted that the vessels acquired by Crest "are now doing essentially the same work and carrying essen- tially the same products as Trinidad's vessels carried when they were on exclusive charter to Apex." Novelly concededly "dislikes labor" unions and he has made these views known to his subordinates, including the "people" at Crest. And, as the Board has found, Crest Fleet Manager McHenry, who was formerly port captain at Trinidad, made clear to job applicants at Crest that "he could not discuss employment" with them "be- cause of Crest's opposition to national unions"-Crest "would scrap the vessels if its employees were represeii,- ed by national union." Further, Novelly acknowledged that he "preferred to buy a ship for Clayton [or Crest] rather than Trinidad because Clayton, or Crest, operates more reasonably . . . the crewing is less . . . they don't have to work as much overtime." Novelly's determina- tion to purchase ships for Crest instead of for Trinidad, "has to do with the way the manning is done under its labor contracts at the time." As a consequence, Trinidad is now left with three vessels, two of which are on "long term charter" to another company. According to Novel- ly, "there's not even decisions to be made" concerning these remaining vessels. I find and conclude that Crest was formed for the pur- pose of avoiding Trinidad's collective-bargaining obliga- tions; Apex Oil, under the direction of Novelly, thereaf- ter transferred to Crest the same business which Trinidad previously performed for its parent corporation; and Trinidad now consists of three large tankers, two of which are on long term charters to another employer. The record, in my view, amply satisfies the critical ele- ments of the "alter ego" theory It is true, as counsel for the General Counsel and the Charging Party argue, there are now differences in the Trinidad and Crest operations. These differences, however, are in large part the product of the Employer's attempt to evade its contract obliga- tions with MEBA. 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I would therefore dismiss this complaint for the above reason. There are, however, alternative reasons for also dismissing the complaint. The second and third assistant engineers of Crest are "supervisors" and not "employ- ees" under the Act Consequently, there can be no 8(b)(1)(A) and 8(b)(2) violations. The remaining issues concern contract interpretation and were resolved by the arbitrator. I would defer here to his determination. A "supervisor" is defined in Section 2(11) of the Act as: possess no such authority, we have found them to be nonsupervisors." The Board added id.: To be sure, the Board has customarily treated li- censed marine engineers as supervisors, but, in those cases, it was clear from the size of the ship and crew that there were other engine room personnel for the engineers to supervise. The fact that a marine engineer possesses a Coast Guard license does not alone support a finding of supervisory status. any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or disci- pline' 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. Actual existence of true supervisory power is to be dis- tinguished from abstract, theoretical or rule-book author- ity'. It is well settled that a rank-and-file employee cannot be transformed into a supervisor merely by investing him or her with a "title and theoretical power to perform one or more of the enumerated functions." NLRB v. Southern Bleachery & Print Works, 257 F.2d 235, 239 (4th Cir. 1958), cert. denied 359 U.S. 911 (1959). What'is relevant is the actual authority possessed and not the conclusory assertions of witnesses. And while the enumerated powers listed 'in Section 2(11) of the Act are to be read in the disjunctive, Section 2(11) also "states the require- ment of independence of judgment in the conjunctive with what goes before." Poultry Enterprises v. NLRB, 261 F.2d 798, 802 (5th Cir: 1954). Thus, the individual must consistently display true independent judgment perform- ing one of the functions in Section 2(11) of the Act. The existence of some supervisory tasks in a merely "rou- tine," "clerical," "perfunctory," or "sporadic" manner does not elevate a rank-and-file employee into the super- visory ranks. NLRB v. Security Guard Service, 384 F.2d 143, 146-149 (5th Cir. 1967). Nor will the existence of in- dependent judgment alone suffice; for "the decisive ques- tion is whether [the individual involved has] been found to possess authority to use [his or her] independent judg- ment with 'respect to the exercise [by him or her] of some one or more of the specific authorities listed in Sec- tion 2(11) of the Act." See NLRB v. Brown & Sharpe Mfg. Co., 169 F.2d 331, 334 (1st Cir. 1948). In short, "some kinship to management, some empathetic rela- tionshp between employer and employee, must exist before the latter becomes a supervisor for the former." NLRB v. Security Guard Service, supra, 384 F.2d at 149. Moreover, the Board, in Graham Transportation Co., , 124 NLRB 960, 962 (1959), made clear that, "[i]n deter- mining the supervisory status of marine engineers, whether or not they are licensed, we have always [used] the same tests which are applicable in other industries"; "where it has been clearly established that marine engi- neers have the authority expressed in Section 2(11), we have found them to be supervisors"; "but where they Of course, as the Board has explained, each case 'must turn on its own facts. The credited evidence of record, detailed in section B, supra, amply establishes that the second and third assist- ant engineers aboard Crest's ocean-going tankers, like the second and third assistant engineers aboard Trinidad's ocean-going tankers, possess and exercise the authority to use their independent judgment in the responsible di- rection of the unlicensed engine room personnel Here, too, as the Board has "customarily" found, i 9 the li- censed second and third assistant engineers are "supervi- sors" and not "employees" under the Act. McCartin, formerly chief of the Coast Guard's division of marine casualty investigations, credibly testified with- out contradiction that the Coast Guard maintains and en'- forces minimum standards of conduct applicable to such ocean-going vessels; the engineer on watch (whether he is a first assistant , second assistant, or third assistant) is held "responsible to direct the activity of his watch"; "those below him take his direction and supervision and work assignments"; the oiler on watch therefore must "obey any commands given by the second or third assist- ant engineer"; the watch engineer "has the duty to insure that all personnel are performing their assigned tasks"; and a ship at sea is a dangerous place . it's not, a de- bating society . . . there's a clear chain of command and responsibility. The possible consequences of failing to follow such di- rection or instruction include, inter alia, "complete de- struction of an engine room by failure of a quarter inch fuel line . .; boiling to death of three men whey they pulled a valve . . .; and destruction of turbines " It is the watch-standing officer who is charged with "the overall safe operation of the engine room"; he will bear the re- sponsibility for injury or casualty on his watch; and if gauges, indicators and unlicensed personnel can properly be relied upon, there would be no necessi- ty *for [the] engineer's presence. Consequently, a licensed engineer aboard such a vessel (including second or third assistants) is expected by the Coast Guard to responsibly direct the oilers during their separate two 4-hour watches each day. 19 Cf Graham Transportation Co, supra, Hanna Mining Co v District 2, MEBA, 382 U S 181 (1965), Globe Steamship Co, 85 NLRB 475 (1949), Trinidad Corp, Cases 14-UC-119 and 120 (1984), R Exh 15 MARINE ENGINEERS DISTRICT I (CREST TANKERS) 643 Documentary and credited evidence illustrate and sub- stantiate McCartin's testimony . Seamen aboard such ves- sels must sign, under law, shipping articles which-.'obli- gate them to obey the lawful commands of their "superi- or officers." The collective-bargaining agreement be- tween Crest and its Tankermen 's Association has similar language. The term "superior officer" clearly refers to watch-standing officers , including second and third as- sistants. Everett, a licensed engineer aboard Crest vessels, agreed that such watch-standing engineers, including second ' and third assistants, "take care of any problems that arise during the watch"; they are "responsible for the overall safe and efficient operation of the plant"; they are "responsible to make sure that the actions of the oiler contribute to the safe and efficient operation of the plant", they "correct" actions of oilers, oilers do' not refuse such "corrections"; they can "delete" or "vary" the rounds of an oiler ; they can determine "that repairs have to be made on the spot" and "direct the oiler to assist"; oilers do not refuse such "directions", they "direct" the oiler "through the process of making the repair"; and'the licensed engineer-usually a graduate of a certified maritime academy-"has a greater under- standing of the workings of the machinery." Everett cre- dibly related that there have been instances when the chief or first assistant have not been aboard the ship in port. The second or third assistant engineer , in such cir- cumstances, as watch-standing officer; is "in total charge of the engine room"; he had the "authority to direct any member of the engine department to take any action [he views] as necessary to safeguard the plant." Cyr, a Crest engineer, corroborated the above testimo- ny. A watch-standing engineer (first, second, or third) has the authority to direct the oiler on his watch. Oilers were not generally authorized to open or close valves on their own initiative-"they'd let me know first." The watch-engineer decides when oil or fuel strainers should be changed A "clogged" fuel strainer can result in the boiler "going out." A "clogged" lube strainer can result in bearings burning out Cyr furnished examples of the exercise of this "authority" and the responsibility of such direction. Moreover, Cyr also related in detail how the watch-engineer in port, when the chief and • first were absent, directed the oiler in a `.`shut down " to avoid sub- stantial property damage; changed the hours and duties of work of unlicensed personnel ; and oilers were, of course, expected to obey such directions Further, O'Leary, a licensed engineer aboard both Trinidad and Crest vessels, agreed that there is no "difference" in "au- thority." Other credible testimony, recited above, shows that there are separate dining rooms for the licensed and unli- censed personnel ; the second and third assistant engi- neers are asked by the chief and first about the work of their oilers; the chief only spends about 30 percent of his day in the engine room; the first assistant (admittedly a supervisor) also stands two 4-hour watches each day with an oiler, a watch -standing engineer can order an unfit or intoxicated oiler out of the engine room, a watch-standing engineer has the authority to direct the oiler in making repairs or adjustments in equipment; a watch-standing engineer may direct oilers to change strainers , and reset valves; oilers cannot take such "cor- rective '-action" in nonroutine situations "because they don't have the knowledge of the system or the plant that the engineer does", and watch -standing engineers in port direct oilers in making repairs. McGinnis, previously aboard a Trinidad vessel which was later acquired for Crest, explained how the engineer on watch "is expected to know how to respond to any casualty or malfunction with the equipment, any contin- gency that might happen [including flame out] in the boiler"; these situations must be "diagnosed quickly"; there "may be more than one possible response or reac- tion ,to be taken", a variety of controlled steps may be required, the watch-engineer is "responsible" and expect- ed to start taking such action As McGinnis noted- You generally don't call the chief and say I have a problem and I don 't know what it is . . . He's going to ask you, what's the nature of the problem. So you've already ascertained this and in some cases . . you would have already taken some action . . . some times things happen rather rapidly. On this record , I find that the second and third assist- ant engineers are "supervisors ." As the Board explained in Big Rivers Electric Corp., 266 NLRB 380, 382 (1983), when dealing with the analogous duties of "system su- pervisors" at power facilities, System supervisors clearly are required to exer- cise independent judgment in carrying out their re- sponsibilities . They alone are responsible for the design of highly technical and complex switching orders which must handle all possible contingencies in both emergency and routine matters; and they alone give the individual instructions directly to the employees for the execution of those orders. Here, too, the watch-standing engineers responsibly direct the'oilers and are "supervisors."20 Under this alternative rationale , there are no Section 7 rights of employees involved and therefore no possible violation of Section 8(b)(1)(A) and (2) as alleged. What remains is essentially a question of contract interpration. I would defer to Arbitrator Ursery's award in resolving the remaining issues, under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984). In short, the arbitrator , in interpreting the lan- guage of the Trinidad agreement , found Crest and other affiliates are bound by the terms of this agreement. As stated, there are no representational or employee unit issues raised here . Cf. Hershey Foods, 208 NLRB 452 (1974). Further, the arbitrator's award, finding Trinidad, Crest, and related entities to be "alter egos," cannot be zo Counsel for the General Counsel and the Charging Party rely on Global Marine Development , 214 NLRB 192 (1974), enfd 528 F 2d 92 (9th Cir 1975), and Graham Transportation Co, 124 NLRB 960 (1959) As stated above, each case must rest on its own facts I note that Global in- volved a rather unique type of vessel and engine room aboard the Hughes Glomar Explorer I note also that Graham involved tugs and motor vessels 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD viewed as "palpably wrong " The analysis above and the court's" opinion in Crest Tankers v. National Maritime Union, supra, refute this contention of counsel for the General Counsel. In like vein, the court of appeals perti- nently noted that the district court "twice said the evi- dence would support either holding" on the "single em- ployer" issue. Here, too, the arbitrator 's finding cannot be viewed as "palpably wrong." In any event, in view of the arbitrator's resolution of the' "employee-supervisor" question and "alter ego " question , the alternative "single employer" finding by the arbitrator is not critical And, finally, counsel for the General Counsel 's remaining con- tention that there was an "ex parte arbitration hearing" because, in effect, the arbitrator would not grant a,fur- ther continuance and Trinidad 's counsel walked out, is without substance . This similar contention , advanced by Trinidad, was previously rejected by the New York Su- preme Court. The Appellate Division affirmed this judg- ment In sum, I find and conclude that Trinidad and Crest are "alter egos." I would therefore dismiss this com- plaint Alternatively , the second and third assistant engi- neers involved are "supervisors," not "employees," beyond the protection of Section 8(b)(1)(A) and (2) of the Act Further, I would then defer to the arbitrator's award on his interpretation of the Trinidad contract and dismiss the remaining 8(b)(1)(B) allegation. CONCLUSIONS OF LAW 1. Crest is an employer engaged in commerce as al- leged 2 The Union is a labor organization as alleged. 3 The Union has not violated Section 8(b)(1)(A) and (B) and 8(b)(2) of the Act as alleged On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2i ORDER I recommend that the complaint be dismissed in its en- tirety. 21 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses