Hunton Employment & Labor Perspectives

In 2015 the National Labor Relations Board (the “Board”) issued two opinions, Cook Inlet Tug & Barge, Inc. and Buchanan Marine, L.P., each finding that tugboat captains did not qualify as “supervisors” for the purposes of the National Labor Relations Act (the “Act”). These decisions demonstrate a trend in recent Board decisions narrowing the definition of a supervisor.

Under Section 2(11) of the Act, a supervisor must have the authority to perform one of several enumerated functions, including “assigning” or “responsibly directing” employees, using “independent judgment” in the interest of the employer. In 2006, the Board issued three decisions defining these terms. Oakwood Healthcare, 348 NLRB No. 37 (2006); Croft Metals, Inc., 348 NLRB No. 38 (2006); Golden Crest Healthcare Center, 348 NLRB No. 39 (2006).

First, according to these 2006 decisions, a supervisor has authority to assign when he designates an employee to a place or time or assigns significant duties to that employee. Second, a supervisor has authority to responsibly direct when he decides which employees will perform a task and the order in which tasks are performed. The supervisor must also be held accountable and suffer adverse consequences for his employees’ performance. Third, a supervisor exercises independent judgment when he uses discretion in assigning or directing employees, free from employer control.

While the 2006 standard arguably describes conventional supervisory functions, recent decisions have applied this standard so narrowly that many named supervisors may no longer qualify as such. In Cook Inlet Tug & Barge, Inc., the Board found that the functions performed by tugboat captains did not constitute assignment authority. Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111 (2015). The Board first stated that the captains did not assign tasks to deckhands using independent judgment because there was only one deckhand available and the assignment of tasks was controlled by management’s criteria. A supervisor’s assignment of a task should not be “self-evident” or based on availability, but should require the supervisor to tailor the employee’s capabilities to the task. Similarly, the Board found that the captains did not schedule employees using independent judgment. While a supervisor who designates work hours may possess assignment authority, he does not do so if management sets and controls changes to the schedule. Finally, the Board found that the captains issued ad hoc directions to perform discrete (i.e., not substantial) tasks in assigning deckhands to close hatches and prepare equipment. A task that flows logically from an employer’s routine operation is not substantial.

Next, the Board found that the captains did not responsibly direct employees because they were not accountable for actions of those that reported to them. The Board reiterated that evidence of accountability must demonstrate that adverse consequences imposed on a putative supervisor flowed from the employees’ errors and not his own. Without specific examples demonstrating such accountability, evidence that captains had “full authority” on their vessels was conclusory.

In Buchanan Marine, L.P., the Board similarly found that tugboat captains did not possess the authority to responsibly direct. Buchanan Marine, L.P., 363 NLRB No. 58 (2015). While a captain might have lost his license for failing to ensure compliance with directives, the court found that the evidence did not establish accountability without evidence that the loss of license flowed from the failure of an employee rather than from the captain’s own personal failings. The Board dismissed as irrelevant the fact that its finding that captains were not supervisors led to the conclusion that tugboats were effectively being operated without supervisors on board.

These decisions demonstrate that employers must now meet a higher and more difficult standard before their employees will be found to be supervisors under the Act. On the flip side, unions are advantaged by these decisions as they impact critical areas of labor relations as well as the employer’s ability to operate its business. For example, because supervisors are not considered employees under the Act and are therefore excluded from bargaining units, a finding of fewer supervisors will lead to the creation of larger bargaining units and more potential dues-paying members for labor unions. More important to the organizing process is the fact that employers typically rely on supervisors to represent the company and present the company’s arguments during a union campaign. To many employees, supervisors whom the employees see regularly are the embodiment of the company—much more so than executives whom they may rarely or never see. The fewer supervisors, the less opportunity for the employer to convey its message and take advantage of the relationships supervisors and employees may have formed.

The intensified criteria for establishing an employee as a supervisor is especially significant in light of recent changes to the Board’s election rules, which prohibit the litigation of the supervisory status of an employee until after a union election. These changes will make it even more difficult for the employer to determine which of its employees satisfy the Board’s evolving interpretation of supervisory functions. Therefore, an employer seeking to designate an employee as a supervisor should be prepared to put forth ample, concrete evidence of the employee’s supervisory function. Finally, employers need both employees and supervisors to operate the business. Not being sure who is who adds still another level of uncertainty to the employer’s task.