Canonie Transportation Co.

CANONIE TRANSPORTATION CO. 299 Canonie Transportation Company and District 2- Marine Engineers Beneficial Association-Asso- ciated Maritime Officers, AFL-CIO, Petitioner. Case 7-RC-18255 June 22, 1988 DECISION AND DIRECTION BY MEMBERS JOHANSEN, BABSON, AND CRACRAFr The National Labor Relations Board, by a three- member panel, has considered objections to and de- terminative challenges in a mail ballot election held from Febraury 13 until March 17, 1987, and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows seven votes for the Petitioner and eight votes for the Intervenor, Local 486, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO. There were two determinative challenged ballots. The Board has reviewed the record in light of the exceptions and brief and has adopted the hear- ing officer's findings' and recommendations as modified by this Decision and Direction. The hearing officer recommended overruling the Employer's challenges to the ballots of Paul Brown and Mark Mather. The Employer alleged that Brown and Mather were ineligible to vote because, before the election, each spent a regular and sub- stantial portion of his working time substituting as a temporary relief captain, a supervisory position.2 The hearing officer recommended overruling the challenges on the ground that neither Brown nor Mather spent 50 percent of his working time as a supervisor during the year preceding the election.3 For the reasons stated below, we agree with the hearing officer that the challenge to Brown's ballot should be overruled. Contrary to the hearing offi- cer, however, we find that the challenge to Mather's ballot should be sustained. i The employer has excepted to some of the hearing officer's credibil- ity findings The Board's established policy is not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Stretch-Tex Co, 118 NLRB 1359 , 1361 (1957) We find no basis for reversing the findings We also find no merit in the Employer's contention that it was unable to properly cross-examine Board Agent Chet Byerly concerning any written documentation of his conversation with employee William Yager The record indicates that neither the hearing officer nor counsel for the Region restricted the cross-examination We also agree with the hearing officer's finding that the Employer did not make a clear request for any written documentation of the Byerly conversation with Yager 2 The hearing officer found that a relief captain performs supervisory duties . No party excepted to his finding and the record fully supports the hearing officer's determination 9 The hearing officer specified that a prevailing union would only rep- resent Brown and Mather concerning their rank-and-file duties The Employer provides tugboat and barge inland waterway services within the Great Lakes. The Employer's season commences in April and ends in December. A tugboat crew consists of a captain, first mate, engineer, assistant engineer, and deckhands. The crew is split so that crewmembers alternate 6-hour shifts, 24 hours a day. The captain and first mate alternate assuming command of vessel. The Employer has also instituted a relief program whereby crews are rotated off a tugboat and replaced by a relief crew. The relief captain assumes command of a vessel in the absence of a full-time captain. The hearing officer found that Brown and Mather were hired as first mates in 1983.4 Brown did not sail as relief captain in either 1983 or 1984. In 1985, Brown worked less than 50 percent of his time as relief captain and spent less than 80 hours as relief captain in 1986.5 Mather was a relief cap- tain for approximately 7 weeks in 1984 and was not a relief captain in 1985. In 1986, Mather spent less than 50 percent of his working time as a relief cap- tain. The hearing officer found that Brown and Mather possessed supervisory authority only when acting as relief captain and this authority was sharply demarcated from their rank-and-file duties. Additionally, Brown's and Mather's time spent as relief captain was measurable and continuous with a sharp distinction from nonsupervisory time. Rely- ing on Great Western Sugar Co., 137 NLRB 551 (1962); and Westinghouse Electric Corp., 163 NLRB 723 (1967), affd. 171 NLRB 1239 (1968), enfd. 424 F.2d 1151 (7th Cir. 1970), cert. denied 400 U.S. 831 (1970), the hearing officer held that Brown and Mather were not statutory supervisors at the time of the election because they spent less than 50 per- cent of their working time performing supervisory duties. The hearing officer found that Great West- ern and Westinghouse are applicable to situations where, as here, employees fulfill distinct superviso- ry duties during portions of the year and these duties are sharply demarcated in function and time from rank-and-file responsibilities. We disagree with the hearing officer's applica- tion of the "50 percent" rule in determining the su- pervisory status of both Brown and Mather. Exam- ination of subsequent cases reveal that Great West- ern and Westinghouse are not applicable to the in- stant situation. 4 The unit consists of mates, chief engineers, assistant engineers, and deckhands employed at the Employer's Muskegon, Michigan facility s The record shows that Brown broke his arm in the fall of 1986 and performed nonuntt dispatcher duties for the remainder of the year The record also indicates that the time Brown spent in 1986 as relief captain before the injury covered approximately 11 days. 289 NLRB No. 44 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Great Western, the Board held that employees in seasonal industries who perform supervisory duties for a portion of the year and unit functions for the remainder of the year may be represented with respect to their rank-and-file duties. The Board noted that seasonal supervisors may be rep- resented because their supervisory and unit respon- sibilities are clearly demarcated and are performed during different periods of the year. The Board, however, did not indicate whether the seasonal su- pervisors in Great Western supervised other unit employees or nonunit personnel. In Westinghouse, the Board, citing Great Western, held that the employees who spend at least 50 per- cent of their working time performing nonsupervi- sory duties would be eligible to vote. In Westing- house, a group of engineers was assigned to specific projects located on customer sites away from the workplace. Some of the engineers had supervisory authority, but only for particular projects. The period of time when these engineers possessed su- pervisory authority was measurable and clearly de- marcated. However, the Board specifically noted that their supervisory authority extended only to nonprofessional craft employees hired for the project; no supervisory authority was exercised over the unit employees. In Doctor's Hospital of Modesto, 183 NLRB 950, 951 (1970), affd. 193 NLRB 833 (1971), enfd. 489 F.2d 772 (9th Cir. 1973), the Board placed certain limits on the application of the "50 percent' rule. Specifically, the Board stated: The . . . eligibility criteria enunicated in Westinghouse do not apply to circumstances . . . wherein the disputed individuals are per- forming both their allegedly supervisory and nonsupervisory jobs during the same work- week, in the same department with essentially the same complement of employees. Subsequenlty, in Aladdin Hotel, 270 NLRB 838, 839-840 (1984), the Board held that Westinghouse is inapplicable to situations in which temporary su- pervisors exercise authority over unit employees and perform both supervisory and nonsupervisory duties during the same work period. The Board stated that in these circumstances the appropriate test is whether the part-time supervisors spend a regular and substantial portion of their working time performing supervisory tasks or whether such substitution is merely sporadic and insignificant. We agree with the hearing officer's finding that there is a clear demarcation between Brown's and Mather's supervisory duties and their rank-and-file duties. We also agree that the time Brown and Mather spent as relief captain is measurable and continuous with a sharp distinction from nonsuper- visory time. Unlike the engineers in Westinghouse, however, and like the individuals in issue in Alad- din Hotel, relief captains here exercise supervisory authority over fellow unit employees in the same workplace where they perform rank-and-file duties. 6 Accordingly, we conclude that the "50 percent" rule is inapplicable to the present case. In applying the "regular and substantial" test to the instant case, we find, contrary to the Employ- er's assertions, that Brown's fewer than 80 hours served as relief captain in 1986 did not constitute spending a regular and substantial portion of his time working as a relief captain in the year preced- ing the election. The Employer in its exceptions argues that Brown would have spent approximate- ly 2 to 3 months as relief captain had he not broken his arm. Such an assertion, however, is merely speculative and cannot support a finding of supervisory status. We also reject the Employer's argument that because Brown spent time in a non- unit desk position during his injury, his ballot should not be counted. The record indicates that his dispatcher duties were temporary due to inju- ries. Accordingly, Brown shares a sufficient com- munity of interest with the other unit employees and his ballot will be counted. We find, however, that Mather spent a regular and substantial portion of his working time as a relief captain in 1986. Mather credibly testified that he spent approximately 17 weeks as relief captain from April through December 1986,7 a substantial period of time. Although there are no specific pat- terns to the entire 17-week period,8 the Employer's uncontroverted testimony shows that any irregular- ity was not caused by the Employer's scheduling, but rather from the variability of the workflow in the tugboat service industry.9 Accordingly, we sus- tain the Employer's challenge to Mather's ballot. DIRECTION IT IS DIRECTED that the Regional Director for Region 7 shall, within 10 days from the date of this Decision and Direction, open and count the ballot of Paul Brown. The Regional Director shall then serve on the parties a revised tally of ballots and issue the appropriate certification. s We note that Mather's testimony, which was generally credited by the hearing officer, indicates that he worked as relief captain and mate on each of two tugboats during separate assignments 7 We find that Mather's hours worked as relief captain during those 17 weeks ranged from 8 to 40 hours per week 6 Mather did testify, however , that he regularly rotated approximately every 2 weeks as relief captain and mate from July until December 1986 9 It is undisputed that the Employer produces a regular relief schedule before a season commences, but the schedule changes due to circum- stances beyond the Employer's control