Buchanan Marine, L.P.

BUCHANAN MARINE, L.P. 523 363 NLRB No. 58 Buchanan Marine, L.P. Petitioner and Local 333, United Marine Division, International Long- shoremen’s Association, AFL–CIO. Case 29– UC–000570 December 2, 2015 ORDER DENYING REVIEW BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA The National Labor Relations Board, by a three- member panel, has carefully considered the Employer’s request for review of the Regional Director’s June 2, 2010, Decision and Order, in which he found that the Employer’s tugboat captains are not supervisors within the meaning of Section 2(11) of the Act. The Petitioner filed an opposition. The request for review is denied as it fails to raise any substantial issues warranting review.1 I. The Employer contends that the Board has typically found tugboat captains to possess the authority to respon- sibly direct employees, and it cites American River Transportation Co., 347 NLRB 925 (2006), among other cases, to support its view that the Board has generally found tugboat pilots and captains to be supervisors. It contends that the Regional Director erred by relying on Oakwood Healthcare, Inc., 348 NLRB 686 (2006), and that cases from outside the maritime industry have no bearing here. We disagree. In Brusco Tug & Barge, Inc., 362 NLRB 257 (2015), incorporating by reference 359 NLRB 486 (2013), we found that the employer’s mates were not statutory su- pervisors. In doing so, we noted that several pre- Oakwood cases found tugboat mates to be supervisors, but in those cases, the Board did not include any analysis of accountability under our current standard. We thus found those cases “to be of limited precedential value.” 359 NLRB 486, 494. Here, the Regional Director cor- rectly relied on the Oakwood standard, and the Employ- er’s contention that the Regional Director should have relied on pre-Oakwood cases does not present any issues warranting review. 1 In its request for review, the Employer contends that the Regional Director erred in finding that captains were not accountable for their direction of other crew, and that the Regional Director erred in finding that captains lack authority to hire deckhands. For the reasons the Regional Director states, we deny review of the Regional Director’s finding that captains lack authority to hire other employees, and confine our analysis below to captains’ accountability for their direction of others. II. The Regional Director found that captains direct the crew by deciding specific tasks to be undertaken in con- nection with navigating the tugboat and when setting up a tow. Although those decisions involve the captains’ exercise of independent judgment, the Regional Director found that the Employer has not established that it holds captains accountable for the crew members’ performance of their own duties, i.e., that the direction is “responsi- ble,” as the statutory definition of “supervisor” requires. The Employer requests review of this finding, and cites American Commercial Barge Line Co., 337 NLRB 1070 (2002), which was cited favorably in Oakwood, and Spentonbush/Red Star Cos. v. NLRB, 106 F.3d 484 (2d Cir. 1997), in support of its contention that tugboat cap- tains are accountable for their direction of crew. It also points to several instances where its Safety Management System imposes consequences on captains for deck- hands’ performance. We address each of these conten- tions in turn. In Brusco Tug, as discussed above, the Board found American Commercial Barge Line “to be of limited prec- edential value.” 359 NLRB 486, 494. The Employer and our dissenting colleague contend that the Board cited American Commercial Barge in Oakwood for the propo- sition that some pre-Oakwood cases required a showing of accountability, and therefore that American Commer- cial Barge’s definition of accountability is sufficient to meet our current test. But in American Commercial Barge, the Board neither defined accountability nor held that a showing of accountability was required to prove responsible direction. The Board’s treatment of the issue in that case was limited to one conclusory statement, with no supporting explanation or examples: “If a crew member does something wrong during the pilot’s watch, such as causing the tow to break loose, the pilot is held responsible.” 337 NLRB at 1071. We do not disagree with the proposition that captains are accountable under Oakwood if their employers hold them responsible when a deckhand under their direction causes a tow to break loose. But the employer bears the burden of showing that the captains are held accountable for the errors of their crew members, rather than simply stating that they are. Here, the Employer has not provided evidence showing how or for what captains are held accountable, including any showing of an adverse consequence that would befall a captain for a deckhand’s poor perfor- mance. Similarly, we find Spentonbush to be of limited prece- dential value. In Spentonbush, the United States Court of Appeals for the Second Circuit listed several provisions of maritime law, and stated that the tugboat captain could 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD be held accountable through loss of his license for a deckhand’s failure to follow those provisions. 106 F.3d at 490–491. In Brusco Tug, however, the Board found that questions of supervisory status under Section 2(11) of the Act “cannot be answered merely by the assertion of maritime law.” 359 NLRB 486, 493. As the Board explained in that case, “the two statutory schemes serve separate purposes,” and the existence of authority that derives from the “privileges and obligations of maritime law . . . doesn’t answer the questions posed by the 2(11) indicia of supervisory status.” Id.; accord: McAllister Bros., 278 NLRB 601, 614 (1986) (captains’ legal “re- sponsibility” under Coast Guard regulations “does not confer supervisory status under the Act” because the cap- tains do not exercise supervisory authority in the interests of the employer), enfd. 819 F.2d 439 (4th Cir. 1987). In any event, Edward Grzybowski, the Employer’s vessel compliance and safety manager, testified that only under “some stipulations” of the U.S. Code could a captain lose his license for a deckhand’s actions, apparently indicat- ing his belief that it is unlikely that a captain would lose his license for a deckhand’s error, even if the law techni- cally allows for it. And even assuming that the Coast Guard would hold a captain accountable for violating maritime law in that circumstance, it does not follow that the Employer also would, and supervisory authority must be exercised “in the interest of the employer” under Sec- tion 2(11). Cook Inlet Tug & Barge, 362 NLRB 1153, 1155 (2015). Accordingly, we find that the Employer has failed to establish accountability by its mere assertion of maritime law in the absence of specific evidence showing that the Employer holds its captains accountable for a deckhand’s failure to follow that law.2 The dissent proposes adoption of a new test for super- visory status based on the “practical realities of running a business,” specifically, (1) the nature of the employer’s operations; (2) the work performed by undisputed statu- tory employees; and (3) whether it is plausible to con- clude that all supervisory authority is vested in persons other than the putative supervisors. Applying this pro- posed standard to the instant case, the dissent contends that because “[t]ugboats do not operate themselves,” it is “self-evident that someone—namely, the captain— possesses the authority to exercise at least some of the functions specified in Section 2(11).” Contrary to the dissent, however, the question before us is not whether the tugboat is at large on the high seas 2 The dissent errs in contending that the Board in Brusco Tug “im- plicitly” adopted Spentonbush’s definition of accountability by distin- guishing that case” rather than disagreeing with it. See Brusco Tug, 359 NLRB 486, 493. Thus, there is no “departure from precedent” to be explained. without any person aboard whose commands must be obeyed. Obviously, the captain is such a person. But that does not answer the question posed by the Act. The sole question the Board must answer when making a supervisory determination is whether the party asserting supervisory status has proved that the person issuing commands possesses one or more of the indicia set forth in Section 2(11). Thus, we rely upon the text of the Act—specifically, the 12 enumerated types of 2(11) au- thority—and not other considerations, such as whether it is plausible to conclude that supervisory authority is vested in another individual. As the Third Circuit has observed, “[t]o do otherwise would be to usurp Con- gress’s authority to promulgate the law.” NLRB v. Attle- boro Associates, Ltd., 176 F.3d 154, 163 fn. 3 (3d Cir. 1999). In any event, nothing in the statutory definition of “supervisor” implies that service as the highest ranking employee on site requires finding that the employee must be a statutory supervisor. See Training School at Vine- land, 332 NLRB 1412, 1412 (2000). Likewise, if an individual “do[es] not possess Section 2(11) supervisory authority, then the absence of anyone else with such au- thority does not then automatically confer it.” VIP Health Services v. NLRB, 164 F.3d 644, 649–650 (D.C. Cir. 1999). And a finding that captains are not supervi- sors for purposes of the Act does not mean that their commands need not be obeyed by the crew, or that the Employer may not discipline crew members for failing to obey them; it simply means that the captains may vote whether to be represented for purposes of collective bar- gaining, and be represented as part of a unit that selects a representative. As stated above, we agree with the Re- gional Director’s finding that the Employer has not pre- sented sufficient evidence to establish that its captains possess any of the indicia set forth in Section 2(11).3 Likewise, we find that the provisions of the Employ- er’s Safety Management System (SMS) provide no sup- port for the claim that the Employer holds the captains accountable. Those provisions give detailed instructions, including standard operating procedures, for the opera- tion of the vessel. While they refer to the captain’s po- tential loss of license for failing to ensure compliance 3 Based on this finding, the dissent argues that we are thereby “con- clud[ing] that the Employer’s Vice President for Marine Transporta- tion, Jerry Weldon, who is not even present on any of its tugboats, nonetheless discharges all Section 2(11) functions” (emphasis in origi- nal). We conclude nothing of the sort. The issue of Weldon’s supervi- sory status is not before us. Nor do we assess the supervisory status of tugboat captains categorically, as the dissent appears to do. The issue we decide today is the only one before us: whether the Employer’s captains possess any of the indicia of supervisory status set forth in Sec. 2(11). BUCHANAN MARINE, L.P. 525 with directives, none of those provisions states that the captain will suffer any specific adverse consequence to his employment if a mate or deckhand does not follow the required procedure. Instead, the SMS provisions contain the same broad statements that captains are “held accountable” that the Board has typically found insuffi- cient to establish accountability.4 We therefore find that the Employer has failed to raise any substantial issues warranting review.5 Accordingly, we deny the Request for Review. MEMBER MISCIMARRA, dissenting. In this case, my colleagues find that a tugboat captain who operates a vessel staffed by a six-employee crew is not a supervisor. I disagree with the majority’s finding that the captain is not accountable for the direction of the crew. As to this issue, I believe my colleagues perpetu- ate what the Supreme Court called the Board’s “running struggle to limit the impact of ‘responsibly to direct’ on the number of employees qualifying for supervisory sta- tus.”1 In my view, the majority fails to give appropriate consideration to captains’ role as the officer in charge of everything that happens on board their vessels. I respect- fully dissent because the majority’s analysis is contrary to the Act and its legislative history, our case law, court of appeals precedent, and uncontroverted record evi- dence. Also, I believe the Board must evaluate three factors, in every case, when deciding whether or not par- ticular individuals possess one or more of the indicia of supervisory authority set forth in Section 2(11) of the Act. A. The Act Confers Supervisory Status on a Broad Range of Employees, and the Majority’s Conclusion that the Employer’s Tugboat Captains are not Supervisors Fails the Test of Common Sense. When initially enacted, the Wagner Act contained no mention of supervisors. The Act’s definition of “em- ployer,” however, included “any person acting in the 4 The dissent contends that captains dictate when mates may leave port in inclement weather, and that a captain could lose a bonus pay- ment under the Employer’s incentive bonus program should a mate fail to leave port on time. Contrary to the dissent, however, we do not find that this evidence proves that captains are accountable as the Board defines that term, because it does not show that the captain’s accounta- bility for a late-arriving vessel is based on the failings of the mate as opposed to the captain’s own failure. 5 The dissent would also find that the Employer’s captains are statu- tory supervisors by virtue of their authority to assign, fire, and adjust grievances. We do not reach those issues because the Employer did not raise them in its request for review. 1 NLRB v. Kentucky River Community Care, 532 U.S. 706, 719 (2001). interest of an employer directly or indirectly.”2 The Board’s early jurisprudence reveals ongoing grappling with the issue of how to include supervisors within the Act’s protections even though supervisors “act[] in the interest of an employer.” For example, in Maryland Drydock Co.,3 the Board found that supervisors did not constitute an appropriate bargaining unit even if they were “employees” within the meaning of the Act. In Soss Manufacturing Co., the Board concluded that “su- pervisory status does not by its own force remove an employee from the protection of Section 8 (1) and (3).”4 The Board later overruled Maryland Drydock and found that a bargaining unit consisting of minor supervisors such as foremen constituted an appropriate bargaining unit.5 Member Reilly dissented from that finding, stating that it did “irreparable damage to the delicate balance between the conflicting interests of management and worker which the National Labor Relations Act sought to bring about in American industry.”6 Over a strong dis- sent, the Supreme Court affirmed the Board’s certifica- tion of the foremen’s representative, finding that nothing in the Act excluded supervisors from its protection.7 Congress disagreed. In 1947, Congress passed the Taft-Hartley Act, containing the modern Section 2(11), which defines who is a “supervisor.” It intended Section 2(11) to broadly apply to “individuals generally regarded as foremen and persons of like or higher rank.”8 The language of Section 2(11) gives effect to this intent, and the Supreme Court has noted that the “NLRA’s unique purpose” means that the Act may “define ‘supervisor’ more broadly” than the law defines that term in other contexts.9 The Act draws a distinction between employees and supervisors that is central to the functioning of the col- lective-bargaining process. As described above, Con- gress rebuffed the Board’s first attempt to erode this dis- tinction, and the Supreme Court has continually rejected subsequent attempts.10 In enacting this distinction, 2 Packard Motor Car Co., 61 NLRB 4, 5 (1945), enfd. 157 F.2d 80 (6th Cir. 1946), affd. 330 U.S. 485 (1947). 3 49 NLRB 733 (1943). 4 56 NLRB 348, 353 (1944). 5 Packard Motor Car, 61 NLRB at 26. 6 Id. at 27. 7 NLRB v. Packard Motor Car, 330 U.S. 485 (1947). 8 House Conf. Rep. 510 on H.R. 3020, as reprinted in National La- bor Relations Board, 1 Legislative History of the Labor-Management Relations Act 539 (1948). 9 Vance v. Ball State University,133 S.Ct. 2434, 2445 fn. 7 (2013). 10 See Kentucky River, above (rejecting the Board’s holding that ex- ercise of professional judgment does not constitute independent judg- ment within the meaning of Sec. 2(11)); NLRB v. Health Care & Re- tirement Corp., 511 U.S. 571 (1994) (rejecting the Board’s holding that professional employees exercising professional judgment do not act “in the interest of the employer” within the meaning of Sec. 2(11)); NLRB 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD “Congress was intent on protecting the right of free asso- ciation—the right to bargain collectively—by the great mass of workers, not by those who were in authority over them and enforcing oppressive industrial policies.”11 Obviously, the Board must give effect to Congress’s intent, including its intent to exclude supervisors from the Act’s coverage. In this regard, several considerations warrant emphasis. First, Section 2(11) sets forth 12 distinct indicia of su- pervisory authority, possession of any one of which is sufficient to make its possessor a supervisor. Section 2(11) states: The term “supervisor” means any individual having au- thority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effec- tively 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.12 Even if an individual has no direct authority to take any of the 12 actions enumerated in Section 2(11), he or she is still a supervisor under that provision if he or she possesses the authority to “effectively . . . recommend” any one of the 12 actions. Second, Congress adopted Section 2(11) to give the term “supervisor” a broader meaning than what had pre- viously been reflected in Board decisions. Before Sec- tion 2(11)’s exclusion of supervisors from the Act’s cov- erage was enacted in 1947, there was no exclusion of “supervisors” from the Act, but the Board previously differentiated between supervisors and nonsupervisors to prevent them from being placed in the same bargaining unit.13 Board cases decided prior to 1947 held that indi- viduals were supervisors only if they had authority to “‘direct the work of [other] employees . . . and [had] au- thority to hire, promote, discharge, discipline, or other- wise effect changes in the status of such employees.’” Kentucky River, 532 U.S. at 718 (emphasis in original) (quoting Douglas Aircraft Co., 50 NLRB 784, 787 (1943)). When Congress enacted Section 2(11)’s “su- pervisor” exclusion in 1947, it removed the word “and” v. Bell Aerospace Co., 416 U.S. 267 (1974) (recognizing broad “mana- gerial exception” to the Act’s definition of employee); NLRB v. Yeshiva University, 444 U.S. 672 (1980) (finding university professors may fall within the “managerial exception” to the Act’s definition of employee). 11 NLRB v. Packard Motor Car, 330 U.S. at 499 (Douglas, J., dis- senting). 12 Sec. 2(11) (emphasis added). 13 See NLRB v. Kentucky River Community Care, 532 U.S. at 718– 719. from the Board’s definition and substituted the word “or,” which meant an individual would be a supervisor merely by directing the work of other employees without any other aspects of supervisory authority. Id. at 719 (“Whereas the Board required a supervisor to direct the work of other employees and perform another listed function, the Act permitted direction alone to suffice.”). Congress also expanded the enumerated types of authori- ty that confer supervisor status. The Board’s subsequent efforts to narrowly interpret Section 2(11) have drawn significant rebukes from the Supreme Court.14 Third, I believe the Board’s analysis of supervisory status has become increasingly abstract and out of touch with the practical realities of running a business. Con- sistent with the Board’s responsibility to apply “the gen- eral provisions of the Act to the complexities of industri- al life,”15 I believe the Board must recognize that many businesses cannot function, as a practical matter, without having someone—or some reasonable number of peo- ple—exercising supervisory authority at a particular fa- cility, during a particular shift, or in relation to a particu- lar function. Therefore, when evaluating supervisor sta- tus under Section 2(11), I believe the Board in every case should take into account (i) the nature of the employer’s operations, (ii) the work performed by undisputed statu- tory employees, and (iii) whether it is plausible to con- clude that all supervisory authority is vested in persons other than those whose supervisory status is in dispute.16 In other words, the “complexities of industrial life” in- clude the reality that many businesses cannot operate, and many business activities cannot be performed, unless 14 For example, in Kentucky River, 532 U.S. at 711–712, the Su- preme Court upheld the Board’s practice of placing the burden of prov- ing supervisor status on the party asserting it, but the Court rejected the Board’s position that exercising “ordinary professional or technical judgment in directing less-skilled employees to deliver services” does not qualify as “independent judgment.” Id. at 714 (citation omitted). Earlier, in NLRB v. Health Care & Retirement Corp. of America, 511 U.S. at 574, the Supreme Court rejected the Board’s position that “a nurse’s direction of less-skilled employees, in the exercise of profes- sional judgment incidental to the treatment of patients” does not satisfy the 2(11) requirement of exercising supervisory authority “in the inter- est of the employer.” The Court held that the Board’s interpretation was “inconsistent with both the statutory language and this Court’s precedents.” Id. at 580. 15 NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963) (citation omitted). See also NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266–267 (1975) (“The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.”). 16 I previously articulated these factors in Cook Inlet Tug & Barge, Inc., 362 NLRB 1153, 1157 fn. 9 (2015) (Member Miscimarra, dissent- ing), in which the Board majority held, over my dissent, that the em- ployer’s tugboat captains failed to qualify as statutory supervisors. BUCHANAN MARINE, L.P. 527 one or more individuals exercise supervisory authority for a particular facility, shift or function.17 The present case provides a classic example. The Em- ployer’s business involves tugboats “that operate 24 hours a day for up to seven days,” with one captain “des- ignated as the master of the vessel.”18 In addition to the captain, each tugboat is typically also staffed by a mate, an engineer, three deckhands, and sometimes trainees.19 These tugboats operate in all types of weather, they are subject to extensive Coast Guard regulations, and their operation involves the assembly of barges for towing and requires interaction with other ship traffic.20 Entire watches may be devoted to navigation, and other contin- gencies may arise, such as medical emergencies.21 Tugboats do not operate themselves. The Regional Di- rector’s Decision and Order provides the following de- scription of the duties and responsibilities of captains in the Employer’s tugboat operations: General, personnel, equipment, operational and administrative responsibilities of captains are set forth in the Employer’s Safety Management System Manual. For example, the captain is required to en- sure that all company policies, rules, regulations and all laws are followed by personnel under his supervi- sion (i.e., the mate, engineer, deck hands, and any trainees). The captain is required to report all viola- tions of the Employer’s policy or violations of law. The captain is responsible to make sure that specific requirements are carried out by the crew. The cap- tain is responsible to ensure that the vessel has a full crew when operating. If there is not a full crew, the captain has the authority to cease operations until a full crew is obtained. In this regard, according to the testimony of Captain/Mate Thomas Cutten, if some- one becomes ill on the ship and needs medical atten- tion, the captain advises the Coast Guard and dis- patch. The Employer would then make arrangements for the person to get to a dock or to a medical facili- ty. If the sick crew member does not need transport to a medical facility but is too ill to perform his du- ties, the captain calls dispatch and the Tug Personnel Manager arranges for a replacement crew member. The vessel cannot operate without a full crew com- plement. The captain must post a station bill and en- sure that all crewmembers are familiar with their re- spective stations and duties in case of an emergency. 17 Some further explanation regarding these three factors is set forth in Part E below. 18 Regional Director’s Decision and Order (D&O) at 4. 19 D&O at 4. 20 D&O at 6–7. 21 D&O at 6–7. The captain’s responsibilities also include direct- ing the crew while organizing the tow line, monitor- ing ship traffic and safely navigating the boat. The captain can spend one or two hours to assemble the barges, closely interacting with the crew at this time. At times, an entire watch may be spent navigating the ship. Weather, the number of barges being pushed and the weight of the barges are taken into account by the captain in navigating the boat. In this regard, the record indicates that a captain can use his discretion to assign one or more lookouts. All crew members are trained to be lookouts. The captain can decide when to assign a look out, i.e. when visibility is one quarter of a mile, and where to post the look- out. The captain decides who he wants to use as a lookout, i.e., someone on watch already or someone who was not on watch, i.e., a deck hand on standby. The captain may also ask a deck hand to “ride a barge” if visibility is poor and he needs the lookout to see a dock. Further, according to employee Cut- ten, when he was a captain, he directed deckhands to take a pump out to a scow in tow and pump it out if it had water in it. This work would be assigned to the deck hand on watch or the deck hand on standby. In this regard, the record evidence indicates that the crewmembers know what they are supposed to do. The Employer requires the captains (masters) to obey all Coast Guard Rules and Regulations. In this regard, there are Federal regulations with respect to the length of a tow hawser. The tow hawser is han- dled by the deck hands. If a hawser is incorrectly handled by the deck hands, the captain is subject to having his license suspended for violating regula- tions under U.S. code stipulations. Further, the cap- tain is responsible to prevent the pollution of waters and if a deck hand mishandles refuse, the captain can be penalized. The record does not specify how the captain is penalized and there is no probative evi- dence as to whether the Employer penalizes the cap- tain in addition to the Coast Guard’s action taken against the captain. The captain is ultimately responsible for ensuring that the proper machinery and equipment is on the vessel. Based on a requirement for the cap- tain/master to review certain types of systems on board the vessel to certify their condition prior to the vessel getting underway, the captain is responsible to fill out and sign pre-underway check sheets. The record indicates that the pre-underway check list is completed by both the captain and the engineer. The pre-underway checklist indicates that if any of the items checked are unsatisfactory, the captain should 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD call the port engineer or the vessel compliance and safety manager prior to getting underway. According to Stephen Mitchell, Sustainability and Business Development Manager, the captain has the authority to refuse to sail if the vessel is not ready to proceed. In this regard, in mid February 2010, Stephen Mitchell, Sustainability and Business Development Manager observed Captain Rod Bissen exercise his authority to delay a vessel from sailing. More specif- ically, Captain Bissen asked the shipyard superin- tendent to raise the height of the tires that surround the perimeter of the boat, which delayed the tug by about three hours. The captains “sign off on” or approve voyage plans and the captain’s oil transfer authorization. If the captain delegates his authority to sign off one these forms, he remains responsible for everything that happens on the vessel as master of the vessel. The captain is required to make sure crew members receive an initial orientation when they come on board the vessel. The captain has the authority to de- ny access to a crew member if he does not possess proper documentation to board. The captain is a di- rect representative of the Employer aboard the ves- sel. The record indicates management and the cap- tain are in communication while the vessel is at sea. The Employer’s Safety Management System Manual also provides that captains shall publish standard operating procedures, standing orders and night orders. Standing orders are instructions given to the crew by the captain which are to be followed unless instructed otherwise, i.e., an hourly check of the engine room, wear work vests, check on the cap- tain or mate every hour, dinner is always at 6:00 p.m. Standing orders for mates could include a re- quirement to call the captain if there is poor visibil- ity or inclement weather or an injury. Different cap- tains may have different standing orders. Captains do not have to consult with management about their standing orders. Standard Operating Procedures are similar but are more of a procedure with steps to fol- low. The Employer provides captains with guidance in the preparation of their Standard Operating Pro- cedures. In this regard, Grzybowski gives the captain a draft for their review, which the captain ultimately “takes ownership of.” Night orders are usually in- structions for the watch in the wheelhouse when the captain is asleep or otherwise not available, i.e., ad- vise the captain if visibility is reduced and keep cer- tain distance from other vessels.22 22 D&O at 5–9. The record also establishes that other crew members do not sit on their hands when the Employer’s tugboats are in operation. Rather, the mate, engineer and deck- hands (and sometimes trainees) have their own responsi- bilities: The mate acts for the captain in his absence and is on watch when the captain is not on duty. The mate navi- gates the vessel, makes up the tow, and supervises per- sonnel. The mate has some medical management duties that are independent of the duties that he shares with the captain. The engineer is responsible for the opera- tion and maintenance of the propulsion plant making sure that the engines run, that they have electrical pow- er, that the toilets flush and that they have running wa- ter. The engineer reports fuel levels to the captain. Deckhands are basically sailors who make up the tow lines, fish lines out of the water for moorings and attach them to barges, cook, clean and perform heavy lifting. Deck hands also keep a look out with either the captain or the mate, and inspect the deck during their watch. Trainees are individuals who are below skill level being trained to become deck hands. The positions of mate and captain require special licensing.23 My colleagues conclude that the captain is not a super- visor, even though the captain is the only person present with authority to address, in real time, all questions that arise regarding each of the above issues. I believe the facts, though simplified above, make it self-evident that these operations require a finding that someone— namely, the captain—possesses the authority to exercise at least some of the functions specified in Section 2(11) and is a statutory supervisor. By finding that captains exercise none of the 2(11) supervisory functions, my colleagues effectively conclude that the Employer’s vice president for Marine Transportation, Jerry Weldon, who is not even present on any of its tugboats, nonetheless discharges all 2(11) functions, even though it is the cap- tain who directly oversees the mates, engineers, deck- hands and trainees on the Employer’s tugboats, 7 days per week, 24 hours per day. In my view, such a conclu- sion is irreconcilable with the record and contrary to the Board’s own decisions in this area, as discussed more fully below. B. For Decades, the Board Generally Found Tugboat Captains to be Supervisors, and the Board’s Recent De- cisions in this Area Deviate from that Precedent. Unsurprisingly, the Board has a long line of cases gen- erally finding that tugboat captains are statutory supervi- 23 D&O at 4–5. BUCHANAN MARINE, L.P. 529 sors,24 and courts have uniformly enforced such find- ings.25 In doing so, one court observed that it is “difficult to believe” that a tugboat would be “sent out for more than a week with no supervisors.”26 Although tugboats vary in size, the captains at issue in this case perform similar duties to tugboat captains in all cases: piloting the vessel, establishing standard operating procedures, and ensuring the safety of the boat, its crew, and its car- go. The Second Circuit, in which this case arises, has harshly criticized the Board for finding that tugboat cap- tains were not supervisors. In Spentonbush/Red Star Cos. v. NLRB, 106 F.3d 484 (2d Cir. 1997), the court rejected the Board’s finding that tugboat captains were not supervisors. In that case, as here, the tugboats at is- sue generally had six-person crews and towed or pushed barges up the Hudson River. Id. at 487. The Second Circuit found that the tugboat captains at issue “exercised authority to responsibly direct their crews.” Id. at 490. Citing Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 361 (1st Cir. 1980) (internal quotations omit- ted), the court stated that direction is “responsible” when “the alleged supervisor is held fully accountable and re- sponsible for the performance and work product of the employees he directs.” The court then enumerated sev- eral ways in which captains were held responsible for deckhands’ performance, including that a captain may be subject to penalty if a deckhand disposes of waste im- properly and may have his license suspended if a deck- hand fails to properly handle a tow hauser. Id. at 490– 24 See, e.g, American River Transportation Co., 347 NLRB 925, 927 (2006); Marquette Transportation/Bluegrass Marine, 346 NLRB 543 (2006); American Commercial Barge Line Co., 337 NLRB 1070, 1071–1072 (2002); Alter Barge Line, Inc., 336 NLRB 1266, 1271 (2001); Ingram Barge Co., 336 NLRB 1259, 1263 (2001); Bernhardt Bros. Tugboat Service, 142 NLRB 851, 854 (1963), enfd. 328 F.2d 757 (7th Cir. 1964). On rare occasions, the Board has found tugboat cap- tains not to be supervisors. See, e.g., Trident Seafoods, 318 NLRB 738, 739 (1995); McAllister Bros., 278 NLRB 601, 614 (1986), enfd. 819 F.2d 439 (4th Cir. 1987). (In McAllister Bros., the respondents did not pursue their contention that captains were supervisors before the court of appeals, so the court did not address the issue.) However, in Trident Seafoods, the employer simply failed to introduce any evidence in support of its position on the 2(11) issue. And in McAllister Bros. the Board found that tugboat captains did not exercise independent judg- ment in directing crewmembers because their authority was based on their greater technical expertise and experience. 278 NLRB at 614. As the Board subsequently recognized in American Commercial Barge Line, the Supreme Court rejected this rationale in Kentucky River Community Care. See 337 NLRB at 1071–1072. Accordingly, McAl- lister Bros. has been effectively overruled. 25 See, e.g., Mon River Towing, Inc. v. NLRB, 421 F.2d 1 (3d Cir. 1969); Local 28, International Organization of Masters, Mates and Pilots v. NLRB, 321 F.2d 376, 377 (D.C. Cir. 1963); Bernhardt Bros., above. 26 Mon River Towing, 421 F.2d at 5 fn. 13. 491. The court stated that the Board’s disregarding of evidence probative of supervisory authority “is another example of the practice followed all too often by the Board of rejecting evidence that does not support the Board’s preferred result,” id. at 490, adding that the Board was entitled to little deference when it comes to supervisory determinations because of its “biased mis- handling of cases involving supervisors,” id. at 492. The majority’s reasoning here represents an unfortu- nate extension of Brusco Tug & Barge27 and Cook Inlet Tug & Barge,28 divided Board decisions regarding Sec- tion 2(11) supervisor status in the context of tugboat op- erations. In Brusco, there was no challenge to the super- visory status of captains, but the majority (over Member Johnson’s dissent) found that tugboat mates (the second- in-command) did not “assign” or “direct” engineers or deckhands, even though the tugboats operated around- the-clock during sea voyages that lasted up to 30 days, and the mates had sole responsibility for overall opera- tion of the vessel for 12 hours out of every 24-hour peri- od. Member Johnson dissented because, among other reasons, the “unavoidable result” of the majority’s deci- sion was that “in the swiftly changing, unpredictable, and potentially hazardous marine environment, there is no supervision for a good half of each 30-day sea voyage when the mates control the operation of the vessel and are vested with the authority of the captain.”29 In Cook Inlet, the majority (over my dissent) found that tugboat captains did not “assign” or “direct” deckhands even though uncontroverted evidence established that captains determined deckhands’ hours, had authority to reassign deckhands from one vessel to another, and directed deckhands to perform a multitude of tasks.30 I dissented from the finding of nonsupervisory status because, among other things, it was untenable for reasons that have equal application in this case: [A] finding against supervisory status fails to give ap- propriate consideration to the nature of the operations here. The Employer’s tugboats are used for . . . work that frequently involves hazardous conditions and sub- stantial variation from job to job. My colleagues’ find- ing produces an outcome in which nobody on the Em- 27 362 NLRB 257 (2015) (Brusco II). In Brusco II, a Board panel in part redecided a prior Board panel decision reported at 359 NLRB 486 (2012) (Brusco I) in the wake of NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). 28 362 NLRB 1153 (2015). 29 Brusco II, 362 NLRB 257, 258 (Member Johnson, dissenting). Like Member Johnson in Brusco II, Member Hayes for similar reasons dissented in Brusco I, 359 NLRB 486, 495–498 (Member Hayes, dis- senting). 30 Cook Inlet, 362 NLRB 1153, 1156 fns. 6, 7 (Member Miscimarra, dissenting). 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer’s vessels exercises supervisory authority, contra- ry to the record evidence and applicable Coast Guard requirements that make captains ultimately accountable for everything that happens on board.31 C. Oakwood Healthcare did not Change Section 2(11) nor did it Overrule All Prior Board Precedents Regard- ing Supervisor Status. To establish that the captains are supervisors, the Em- ployer must show by a preponderance of evidence that (1) captains hold the authority to engage in any one of the supervisory functions, (2) their exercise of such au- thority is not routine or clerical, but requires independent judgment, and (3) their authority is held in the interest of the employer. See, e.g., Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006). To show that the captains re- sponsibly direct other crewmembers, the Employer must show that captains are “held fully accountable and re- sponsible for the performance and work product of the employees [they] direct[].” Id. at 691 (internal quota- tions omitted). This standard should sound familiar: it is exactly the same standard the court applied in Spen- tonbush, above. Indeed, the Board in Oakwood explicit- ly adopted the definition of accountability that certain courts of appeals had adopted, and cited the same lan- guage from the same case (among others) that the Spen- tonbush court had cited.32 Moreover, in Oakwood, the Board explicitly cited a previous tugboat case, American Commercial Barge Line Co., 337 NLRB at 1071, for the proposition that the term “responsibly to direct” includes an accountability ele- ment.33 In American Commercial Barge Line, the Board found that tugboat pilots, a position subordinate to the captain, responsibly directed crew and were therefore supervisors. The Board found that “[i]f a crew member does something wrong during the pilot’s watch, such as causing the tow to break loose, the pilot is held responsi- ble. The consequences of an error in the pilot’s judg- ment can be catastrophic, including a collision causing loss of life or a chemical spill.” 337 NLRB at 1071. The Board also recognized that McAllister Bros., above, had been effectively overruled by the Supreme Court’s deci- sion in NLRB v. Kentucky River Community Care, above.34 The Board in Oakwood would not have cited American Commercial Barge Line favorably had it wished to deprive that case of its precedential value. 31 Id., slip op. at 5 (footnotes omitted; emphasis in original). 32 Oakwood, 348 NLRB at 691 fn. 30 (citing Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d at 361). 33 See Oakwood, 348 NLRB at 692 fn. 37. 34 See fn. 23, above. There is no sound basis for my colleagues’ broad as- sertion that all pre-Oakwood precedent regarding super- visory status is “of limited precedential value.” As dis- cussed below, they dismiss ample evidence of accounta- bility and find that captains with the same duties as the captains found accountable in Spentonbush and Ameri- can Commercial Barge Line are not supervisors. I can- not join in finding that Oakwood mandates such a whole- sale departure from the Board’s longstanding precedent when the Oakwood Board explicitly endorsed part of that precedent speaking directly to the issue in this case. D. The Record Demonstrates that Captains Responsibly Direct and Assign Crewmembers. Captains are the highest-ranking individuals responsi- ble for operating tugboats that have a 6-employee crew. As the Third Circuit observed in Mon River Towing, if the captains were not supervisors, the majority of the Employer’s operations would be conducted for a week at a time without any supervisor on board.35 Such a propo- sition is clearly implausible given the nature of this work. Although the Regional Director, like my colleagues, concluded that the captains here did not “direct” mates, engineers, deckhands or trainees, such a conclusion can- not be squared with the Regional Director’s own descrip- tion of the Employer’s operations and the duties of cap- tains (quoted at length in Part A, above). In all material respects, the instant case is the same as Spentonbush and American Commercial Barge Line.36 The tugboats here have crews of six employees, all of whom answer to the captain. The Employer’s Safety Management System and the Coast Guard regulations cited in Spentonbush make clear that the captain is responsible for everything 35 421 F.2d at 5 fn. 13. 36 My colleagues state that Spentonbush is of limited precedential value because “questions of supervisory status under Section 2(11) of the Act ‘cannot be answered merely by the assertion of maritime law,’” quoting Brusco I, above, 359 NLRB 486, 493, incorporated by refer- ence in Brusco II, above, 362 NLRB 257. However, Brusco Tug ad- dressed the supervisory status of mates, and the Board in Brusco I distinguished Spentonbush on the ground that Spentonbush dealt with the supervisory status of captains. Brusco I, supra. By distinguishing Spentonbush rather than disagreeing with it, the Board in Brusco I implicitly recognized that Spentonbush was embraced by the Board in Oakwood Healthcare when the Board there adopted the definition of accountability the Second Circuit relied on in Spentonbush. Under SEC v. Chenery Corp., 318 U.S. 80 (1943), the Board must provide a rea- soned explanation for any departure from precedent, and my colleagues have not sufficiently explained their departure from Spentonbush and American Commercial Barge Line. My colleagues reply that there is no departure from precedent to be explained. I believe there is, and that the Board should provide a reasoned explanation when departing from circuit court precedent applying the same standard for accountability that the Board has since adopted. BUCHANAN MARINE, L.P. 531 that happens aboard the tugboat.37 Should the captain fail to ensure that a deckhand properly ties a tow hauser or properly disposes of waste, the captain could face penalties or even lose his license to operate the vessel. My colleagues state that there is an “absence of specific evidence showing that the Employer holds its captains accountable for a deckhand’s failure to follow that law” (their emphasis). But the record reveals that the Em- ployer requires all captains to maintain their licenses. There is little question that the Employer would remove a captain who lost his license due to a deckhand’s failure to follow Coast Guard regulations. The record also reveals that captains participate in an incentive bonus program. Under that program, captains receive bonuses if they make trips quickly. Of course, other crewmembers’ performance factors into how quickly a tugboat can make a trip. For instance, captains issue standing orders instructing mates when to leave port in inclement weather. Should a mate fail to timely leave port, a captain could lose a bonus payment. More- over, every captain to testify clearly stated that he was responsible for everything that happens on the boat. My colleagues dismiss this uncontroverted testimony as in- sufficiently specific. As I have observed in the past, however, the Board should not disregard unrebutted evi- dence “merely because it could have been stronger, more detailed, or supported by more specific examples.”38 To do so runs dangerously close to “rejecting evidence that does not support the Board’s preferred result,” as the court accused the Board of doing in Spentonbush.39 Unlike my colleagues, I would further find that cap- tains assign deckhands.40 Assigning is the act of desig- nating an employee to a place, such as a location, de- partment, or wing, appointing an employee to a time, such as a shift or an overtime period, or giving signifi- cant overall duties to an employee. Oakwood Healthcare, 348 NLRB at 689. Uncontroverted testimo- ny establishes that captains can assign a deckhand to a 37 The Regional Director found that this evidence was “paper au- thority” and did not rely on it. As I have stated in the past, I do not think the Board should ignore uncontroverted evidence simply by label- ing it “paper authority.” Pacific Lutheran University, 361 NLRB 1404, 1430 (2014) (Member Miscimarra, concurring in part and dissenting in part). 38 Cook Inlet Tug & Barge, 362 NLRB 1153, 1155; see also Pacific Lutheran University, supra. 39 106 F.3d at 490. 40 Although, in its request for review, the Employer does not specif- ically contend that captains assign work to other crewmembers, it con- tends that the Regional Director erred by failing to follow precedent, such as American River Transportation Co., above, finding that cap- tains or subordinate officers both assign and responsibly direct work. Because I agree that the Regional Director should have followed Board precedent finding that officers with very similar duties to the captains here had the power to assign, I address the issue here. place by asking a deckhand to ride a barge if the captain believes that doing so would improve visibility. Cap- tains can also assign a deckhand to pump out a barge if, in the captain’s discretion, the barge has taken on suffi- cient water to warrant that assignment. As in American Commercial Barge Line, captains can require the deck- hand on standby to report to duty, essentially appointing that deckhand to a shift. Captains do not check with an- yone before doing so. The record also contains evidence, improperly dis- counted by the Regional Director, that captains exercise other supervisory functions. For instance, Tug Personnel Manager Robert Haab testified that he tells captains they have the authority to fire other crewmembers. Captain Joseph LoPiccolo testified that he once fired an employ- ee for insubordination. The record also reveals that cap- tains resolve any disagreements between deckhands over the shift schedule, which is an example of adjusting grievances. I believe these examples, along with the evidence relating to captains’ authority to assign and responsibly direct crewmembers, highlight the risk of scrutinizing Section 2(11) factors individually, while ignoring Congress’s mandate to apply supervisory status to a broad range of employees. Each Section 2(11) indi- cium does not exist in a vacuum; if a supervisor has the power to fire employees, that necessarily affects the weight the Board should give to evidence of the supervi- sor’s power to assign or responsibly direct them. When viewing the 2(11) indicia separately, it is easy to dismiss the above examples as isolated instances that do not show that captains generally wield the power to fire or assign employees. But when viewed as a whole and to- gether with the evidence of direction, these examples add up to show that captains wield broad power over the terms and conditions of other crewmembers’ employ- ment. The record contains sufficient evidence that captains responsibly direct and assign crewmembers. To hold otherwise ignores both the record evidence and our long- time precedent dealing with tugboat captains. Moreover, my colleagues’ holding fails to recognize the industrial realities of the tugboat workplace, in which the captain is the ultimately responsible person present during hazard- ous operations that take place 24 hours per day up to 7 days at a time. In addition, I believe my colleagues im- properly disregard uncontroverted evidence of superviso- ry authority “merely because it could have been stronger, more detailed, or supported by more specific exam- ples.”41 41 Cook Inlet Tug & Barge, 362 NLRB 1153, 1155 (Member Miscimarra, dissenting). 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD E. The Board Must Always Consider Three Factors When Determining Supervisory Status Under Section 2(11). More generally, my colleagues disregard three factors that are especially important here. As noted previously,42 I believe these three factors should be considered by the Board in every case involving disputed supervisory sta- tus: (i) the nature of the employer’s operations, (ii) the work performed by undisputed statutory employees, and (iii) whether it is plausible to conclude that all superviso- ry authority is vested in persons other than those whose supervisory status is in dispute. My colleagues mischaracterize these factors as “a new test for supervisory status.” Contrary to my colleagues’ portrayal, these factors are nothing new,43 and they are consistent with Section 2(11). Indeed, it is difficult to see how a realistic evaluation of supervisory status can be made without them. It breaks no new ground to state, when deciding whether someone is a supervisor, that the Board must consider “the nature of the employer’s opera- tions.” The Board must obviously also consider “the 42 See text accompanying fns. Error! Bookmark not defined. and Error! Bookmark not defined., supra. 43 Again, I previously articulated the same three factors and applied them in Cook Inlet Tug & Barge, 362 NLRB 1153, 1157 fn. 9 (Member Miscimarra, dissenting). work performed by undisputed statutory employees”— i.e., the people who require supervision by someone. Finally, the Board must consider “whether it is plausible to conclude that all supervisory authority is vested in persons other than those whose supervisory status is in dispute.” In plain English, this final factor essentially asks, “If one accepts the Board’s finding that the disput- ed employees are not supervisors, does that produce a ludicrous or illogical result—for example, one where nobody has the authority to hire, discharge, discipline, assign, or responsibly direct employees (or to exercise any of the other indicia of supervisory authority set forth in Section 2(11))?” In short, these three factors do not comprise “a new test for supervisory status,” but a guide to how the Board should apply the indicia of supervisory status that Congress listed in Section 2(11). They are meant to help the Board avoid conclusions regarding supervisory status that fail the test of common sense— which, unfortunately, the majority’s conclusion in this case does. I believe any reasonable evaluation of the record in this case in light of these factors warrants a finding that the Employer’s tugboat captains possess supervisory authority under Section 2(11) of the Act. Accordingly, I respectfully dissent.