NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,225, THE BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY and LOCAL 333 UNITED MARINE DIVISION, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION., (Nov. 26, 1994), National Labor Relations Board, (Nov 26, 1994)

THE BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY and LOCAL 333 UNITED MARINE DIVISION, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION.

313 NLRB No. 63.Case No. 29-CA-14930. November 26, 1994 Walter H. Maloney, Administrative Law Judge..

Before Stephens, Raudabaugh and Devaney.

Elias Feuer, Brooklyn, New York, for General Counsel. Albert M. Cornette, Local 333, Staten Island, New York, for Charging Party. Kenneth A. Margolis, New York, New York, for Respondent.

Impasse--Unilateral Changes--Creating Supervisory Positions.--An employer’s unilateral decision to create new supervisory positions and select individuals to fill the positions, following its declaration of an impasse in bargaining negotiations, was lawful and did not violate its bargaining duty. Although the decisions effectively removed individuals from a bargaining unit, the changes were not mandatory bargaining subjects. The employer bargained with a union in good faith to impasse and, therefore, was free to make the proposed changes. Section 8(a)(5).

Back reference: ¶3145.1102.

Discrimination--Assignment of Work--Removal of Unit Position.--Although an employer decided to remove individuals from a bargaining unit by making them supervisors, that change was not found by the NLRB to have been a sham and made for a discriminatory purpose. The changes involved the removal of one category of employee out of a bargaining unit containing seven employee classes, there was no evidence of union animus and the employer set forth sound managerial concerns in making its decisions. Section 8(a)(3).

Back reference: ¶4080.421.

3. Case 1-RC-19991: All full-time and regular part-time technical employees employed by the Employer at its Providence, Rhode Island, facility; excluding all other employees, guards and supervisors as defined in the Act.

From Text of Board’s Decision

The judge found that the Respondent’s grant of supervisory authority to the captains of its boats violated Section 8(a)(5), (3), and (1) of the Act. He found the supervisory positions to be a sham. He concluded that the Respondent bargained to impasse over the nonmandatory subject of altering the scope of the bargaining unit, and that the Respondent did so in order to weaken the Union. The Respondent excepted to the judge’s findings. We find merit in these exceptions.

The Respondent operates boats, the Grand Republic and the Park City, that carry passengers, automobiles, and cargo across Long Island Sound from Port Jefferson, New York, to Bridgeport, Connecticut. A one-way trip takes slightly more than an hour, with daily service available throughout the year. Service is more frequent on weekends and in the summer. There are also charter cruises and moonlight cruises during the summer months. Each boat carries about 1000 passengers and about 100 cars. The crew is normally composed of six or seven members--captain, mate, chief engineer, two able-bodied seamen, one ordinary seaman, and one oiler. There is also a purser on board with responsibility for concession operations. Additional personnel are required if there are more than 500 passengers aboard of if a boat is operating after 10 p.m. Crews work 8-hour shifts. Boats leave the dock at 6 a.m. and operate until 9 or 11 p.m. The Respondent employs dockhands at both ports. The Respondent’s office is near the dock at Port Jefferson. There, daily supervision is exercised by Vice President and General Manager Frederick Hall, Operations Manager or Port Captain John Alban, and Port Engineer Mario Dezalic. The three engage in occasional walkarounds on the boats to check the general cleanliness and safety of the vessels. They also monitor maintenance such as rust and buckling problems.

The parties’ collective-bargaining agreement covers a unit of licensed and unlicensed employees, including captains, pilots, mates, chief engineers, assistant engineers, oilers, able-bodied seamen, and ordinary seamen. Specifically excluded are all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. The Respondent has had a series of contracts with the Union, usually of 3-year duration, for nearly 30 years. The last one of this length expired on June 15, 1988. Thereafter the parties concluded a 1-year agreement until June 15, 1989, and a 9-month agreement until April 3, 1990.

On April 14, 1988, the Respondent issued “Operational Regulations” to its Park City captains to be effective immediately. The captains were made responsible for the operation, maintenance, and safety of the vessels and held accountable for their condition and performance. The senior captain was required to formulate a master plan for the general maintenance of the vessel. The associate captain was to follow the plan and captains were to “submit monthly evaluation reports of their crews to the Port Jefferson Office.” In addition, the captains were to exercise tighter control over supplies and machinery malfunctions. The “Crew Operation Regulations” required the captains to issue daily orders for the crew’s maintenance activity--deck maintenance, outside painting, interior maintenance, and constant trash pickup. The crew was to be engaged in maintenance work at all times, the only exceptions being the captain’s designation of a second seaman on the bridge or some crewmembers on the gangway to monitor the loading of cars. The regulations instituted a progressive disciplinary system for infractions which included “disregarding or willfully disobeying the captain’s orders.” [1] Captains received evaluation forms for each crewmember for the monthly submissions.

On April 18, 1988, the Respondent issued a directive to the crew of the Grand Republic for the purpose of providing “a more pleasing and efficient ferry service and ... a more pleasant and desirable place for the ferry crews to work in.” The Respondent noted that the Grand Republic was “in a very sorry condition ... dirty, unwashed, unattended and in general in very poor condition” and that crew members were “somewhat to blame.” The Respondent therefore instituted a new “systematic plan” under the supervison of the captain “for the complete maintenance and care for all the deck areas” of the vessel. Captains were to inspect the deck area weekly and submit monthly evaluations of all crewmembers to the Port Jefferson office. These evaluations were to become part of each employee’s personnel record. The directive noted that “crew members who will not or are not doing their share of the work will be subject to disciplinary action” and that “[a]nyone in this crew who does not intend to follow the Captains [sic] orders and do his share of the work on board this vessel [sic] should look for employment elsewhere.”

The captains thereafter ignored the Respondent’s directives and the Respondent imposed no discipline on them.

On June 24, 1988, the Respondent filed a unit clarification petition in which it sought to exclude from the bargaining unit captains, mates, and chief engineers on the grounds that they were statutory supervisors. On September 29, 1989, the Regional Director dismissed the petition. On May 2, 1990, the Board denied the Respondent’s request for review. [2]

On February 28, 1990, the parties commenced negotiating for a new contract. [3] At that time, the Respondent resubmitted the job description proposal which the Union had rejected during negotiations for the 9-month contract which was about to expire. This proposal conferred supervisory authority on captains, mates, and chief engineers. [4] The Respondent also made proposals on insurance and pensions, holidays, overtime, grub money, vessel manning, vessel tie ups, and crew changes, and proposed eliminating the exclusive hiring hall provision in the existing contract.

The parties immediately disagreed on the job description proposal. The Union stated that it would not negotiate an issue disposed of in the Board unit-clarification proceeding. The Respondent stated that it would not sign an agreement without the proposal. At the fourth meeting, the Respondent eliminated chief engineers from the proposal. The Respondent continued, however, to demand that the Union accept the proposal as to captains and mates [5] stating that the proposal and a 1-year contract duration were essential to the Respondent’s willingness to sign a contract. The Union countered with a request for a written stipulation that the Respondent would not file another unit-clarification petition if the Union accepted the proposal. The Respondent rejected this request.

On May 8, 1990, the Respondent notified the Union that it was implementing the proposed job duties for captains at that time and would expect to do so for mates in the future. The parties stipulated that neither of them changed position on the job-description proposal after April 25, 1990, the penultimate negotiating session.

On May 9, 1990, the Respondent sent the following memo to all captains:

We wish to restate and confirm what the Company expects of you as the master of its vessels.

As a general proposition, we expect all of our captains to exercise all of the authority and responsibility conferred upon them by maritime law and custom. This, of course, is a weighty responsibility. As supreme commander of the vessel, you are responsible for directing the operation of the vessel as a whole. In order for you to be able to carry out this responsibility, you have the authority and responsibility to evaluate the qualifications and work of the members of your crew, to discipline or discharge crew members, and direct and assign all work performed on your vessel.

We firmly believe that the safe and efficient operation of the vessels depends upon your fulfillment of these responsibilities, and we are counting on you to perform them.

The Respondent also implemented the 4-percent across-the-board increase in wages that it had previously proposed. There was no additional compensation for captains. [6]

Up to the time of the hearing, which commenced on March 19, 1991, the captains had declined to perform their new duties and the Respondent had taken no disciplinary measures against them. The Respondent did not implement its job proposal as to mates. The Respondent also testified that it took no action against the captains because the present litigation was pending. The Respondent also testified that it wanted the captains “to do these duties ... to ensure that the vessels were run properly” and to obviate the “problem ... [that] nobody considered themselves in charge.” [7]

As indicated above, the judge found that the Respondent had violated Section 8(a)(5), (3), and (1) of the Act by bargaining with the Union to impasse over assigning supervisory duties to captains, thereby altering the scope of the bargaining unit, and that the Respondent did this for discriminatory reasons. The judge further found that the Respondent’s creation of the supervisory positions was a sham. He noted that the Board’s unit clarification proceeding found that the captains were not supervisors. The judge held that the ratio of supervisors to employees either with captains, mates, and engineers as supervisors, or with captains and mates as supervisors, was “preposterous.” The judge also noted that these newly proposed supervisors were not afforded salaried status with increased compensation for their additional responsibilities but were hourly rated with the same time-and-a-half for overtime and across-the-board 4 percent wage increase as other unit employees.

[Impasse Unlawful]

The judge therefore found that the Respondent had insisted to impasse on removing job classifications from the bargaining unit and that this action constituted an insistence on a change in unit scope that violated Section 8(a)(5) of the Act. While acknowledging that there was “no independent evidence of animus in the case,” the judge also found that the Respondent’s conduct was discriminatory in violation of Section 8(a)(3). He reasoned that the Respondent was attempting to deprive bargaining unit employees of Section 7 rights on the basis of what, as noted above, he had concluded was a sham proposal to turn them into supervisors. In his 8(a)(3) analysis, he listed these additional factors as support for his “sham proposal” finding: the length of time this bargaining unit had existed, the lack of any objective justification for making the change, and the captains’ sanction-free defiance of the Respondent’s May 9 directive. In finding no objective justification, the judge noted the absence of such circumstances as “rapid expansion of the Company, the imposition of new and more burdensome regulations,” or some kind of natural “disaster.” He minimized the Respondent’s expressed concern over passenger complaints about lack of cleanliness on the ships and surliness of employees by observing that the Respondent had evidently felt no compulsion to take any action on such complaints in the past.

The Respondent excepted to these findings and conclusions of the judge. We find merit in these exceptions.

We do not agree with the judge that the Respondent’s conferring supervisory responsibilities on the captains of the Grand Republic and Park City violated Section 8(a)(5) and (3) of the Act. The Respondent’s conduct did not violate Section 8(a)(5) and (1) because, contrary to the conclusions of the judge and our dissenting colleague, we find that the Respondent’s efforts were not a sham aimed at undermining the Union but a sincere effort to provide onsite supervision of its vessels through the performance of supervisory duties by its captains.

Repeatedly, from April 14 and 18, 1988, onwards, the Respondent sought to achieve its goal of on-vessel supervision and responsibility. The Respondent’s April 1988 directives make clear the Respondent’s concern about vessel maintenance, machinery malfunctions, supply sufficiency, general cleanliness, and employee behavior. These directives placed captains in charge of a system establishing responsibility and authority for maintenance and crew discipline. In addition, in the bargaining for the 9-month contract and in the bargaining for a successor to that contract, the Respondent made new proposals designed to vest the captains with unmistakable supervisory authority. [8] Thereafter, the Respondent reaffirmed its wish that captains exercise on-site supervisory responsibilities on the Grand Republic and Park City in its May 9, 1990 memo. As Hall, the Respondent’s Vice President and General Manager, testified, the Respondent wanted the captains “to do these duties ... to ensure that the vessels were run properly” and to obviate the “problem ... [that] nobody considered themselves in charge.”

We find no sham. The Respondent’s directives, memos, job description proposal, and statements, clearly signaled that the duties of the captains who were promoted to supervisors had changed. The Respondent did not merely retitle bargaining unit employees who, despite the classification change, would merely have continued to perform solely bargaining unit work. Instead, the Respondent required the captains to perform supervisory tasks and imbued them with the authority of statutory supervisors and managers--powers and responsibilities that they had not clearly exercised in the past. [9]

Further, the Respondent’s conduct reflects legitimate managerial concern. The evidence is replete with the Respondent’s apprehension that only constant supervision on the vessels could guarantee the maintenance and orderliness it desired. The general rule is that employers are entitled to make their own nondiscriminatory decisions as to how best to supervise their operations. As triers of fact we may not simply substitute our own subjective judgment of what we would have done were we in the Respondent’s position. [10]

In situations comparable to that here, we have found acceptable employers’ reclassification of certain employees as supervisors because there was a perceived need for more direct control of the employers’ operations. For example, in Luther Manor Nursing Home, [11] the employer stated that more supervision was needed on the floor of the home because the existing supervisors, registered nurses, were busy and could not complete their other duties as well as their supervisory duties. The employer therefore assigned supervisory tasks to licensed practical nurses. [12] in Lutheran Home of Kendallville, Indiana, [13] the employer showed that the only two supervisors were rarely present at the facility at night or during the weekends. The employer offered licensed practical nurses a new supervisor-nursing position in the belief that first-line supervision “was the key to a good or poor operation.” [14]

Similarly, we find that the Respondent here sought onsite supervision on its boats to ensure quality operations and conferred supervisory duties on its captains to achieve this goal. We are not persuaded that the Respondent’s conferral of authority on the captains of the Grand Republic and the Park City was a sham. The Respondent promoted these employees into true supervisory positions.

Neither the decision to create new supervisory positions nor the selection of individuals to fill these positions is a mandatory subject of bargaining. [15] An employer, however, may have an obligation to bargain with a union if its action reduces bargaining unit work. For instance, if an individual promoted to a supervisory position continues to perform former bargaining unit work, that loss of work to the bargaining unit may be a change in the terms and conditions of employment that could give rise to a bargaining obligation under Section 8(d) of the Act. [16] That is true here. The Respondent, however, in our judgment bargained the issue to impasse with the Union in good faith. The Respondent was thereafter free to implement the proposed change without running afoul of the Act. We therefore find that the Respondent did not violate Section 8(a)(5) and (1) of the Act as alleged and we shall dismiss the complaint in this respect. [17]

We also find that the Respondent’s conduct did not violate Section 8(A)(3) and (1) of the Act. The judge relied heavily on his finding of a sham in making this determination, and listed several factors in support--the long-established bargaining unit, the lack of objective reasons for the change, past neglect of complaints, and failure to discipline the wayward captains. As we have set forth previously, we are not persuaded that the promotions were a sham. The Respondent’s action removes only one classification from the unit. Approximately seven other classifications remain in the unit. The legitimate managerial concerns discussed above negate the other factors cited by the judge. The Respondent determined that it needed onsite supervision and provided it by making its captains supervisors. As the judge noted, there is no independent evidence of animus here. Offering supervisory positions to bargaining unit employees is not “inherently discriminatory” conduct. [18] Indeed, we have found nothing inherently discriminatory when an employer, shortly after union certification, promoted certain bargaining unit employees to the supervisory positions in a reorganization aimed at better management. [19] Similarly, we are not persuaded that the Respondent’s continued assignment of supervisory duties to its captains from April 1988 onwards was anything other than what it appears to be on its face: the provision of onsite supervision to manage the operation more effectively.

We, of course, accept the proposition that the captains were not supervisors as of the time of the hearing in Case 29-UC-355. The directives of April 1988 were deemed to be insufficient to confer supervisory authority. [20] That conclusion, however, is not dispositive of the issue of whether the Respondent’s subsequent efforts were also insufficient to invest the captains with supervisory authority. [21] Nor is the unit clarification decision dispositive of the issue of whether these subsequent efforts were unlawfully motivated. As to that issue, we note that our dissenting colleague concedes that the initial efforts in April 1988 were lawfully motivated. We fail to see why the subsequent efforts to achieve the same goal should be deemed unlawfully motivated simply because they were successful and the earlier efforts were not. The Respondent at all times was seeking to achieve the lawful goal of ensuring that the captains would be an arm of management and would use their supervisory authority to carry out entrepreneurial goals “in the interests of the employer.” [22] After the initial efforts of April 1988 failed, the Respondent gave the captains greater and more specific authority. We see no basis for inferring that these additional steps to achieve the same lawful goal were discriminatorily motivated.

In addition, our dissenting colleague makes much of the fact that, at one time, the Respondent sought to confer supervisory authority not only on the captains but also on the chief engineers and mates. Suffice it to say in response that the General Counsel does not attack those efforts to confer supervisory authority on the latter two classifications.

The Respondent’s actions here are not analogous to those cases where wholesale promotion of bargaining unit employees to supervisory positions is part of a pervasive pattern of misconduct clearly evincing an employer’s animus and attempt to destroy a bargaining unit. [23]

We recognize that the captains have never actually performed their supervisory duties, and thus the Regional Director, affirmed by the Board, found that they were not in fact supervisors. However, there is an explanation for the fact that captains have not performed their supervisory duties. The Respondent has said that, pending the completion of the instant litigation, it will not force the captains to perform their supervisory responsibilities. Because the instant case challenges the Respondent’s assignment of supervisory responsibilities, we would not fault the Respondent for not immediately enforcing this assignment. Accordingly, we do not believe that the General Counsel has established that the assignment of responsibilities was a sham.

Accordingly, we find no merit to the Section 8(a)(3) and (1) allegation and we shall also dismiss the complaint in this respect.

[Dissent]

Member Devaney, dissenting: I do not agree with my colleagues that the Respondent here “sought on-site supervision on its boats to ensure quality operations and conferred supervisory duties on its captains to achieve this goal.” (Emphasis added.) I would adopt the judge’s finding that the Respondent’s goal in proposing to assign Section 2(11) duties [24] to the captains was to exclude them from the bargaining unit and thus win at the bargaining table what it lost before the Board in its unit clarification petition. Consequently, I would adopt the judge’s further finding that the Respondent violated Section 8(a)(5) of the Act by insisting to impasse on its bargaining position whose purpose was the alteration of the scope of the unit, a nonmandatory subject of bargaining.

Although I agree with my colleagues that “the general rule is that employers are entitled to make their own nondisciminatory decisions as to how best to supervise their operations,” that is not the issue before us. Rather, the issue is whether the Respondent’s bargaining proposal to assign supervisory duties to its captains was bona fide or sham. The resolution of this issue determines whether the proposal was a mandatory or permissive subject of bargaining and whether the Respondent violated Section 8(a)(5) by bargaining to impasse over the proposal. [25]

The starting point of my analysis of whether the Respondent’s proposal to assign supervisory duties to its captains was bona fide or sham is the Respondent’s assignment of new duties to the captains and crews of its two vessels (the Park City and Grand Republic) in April 1988. Like my colleagues, I would find that the Respondent’s assignment of new duties to the captains in April 1988 was bona fide and that the Respondent’s purpose in making these new assignments was to improve the maintenance and operation of the Park City and Grand Republic. [26]

After it promulgated its April 1988 directives, the Respondent filed its unit clarification petition in which it sought to exclude the captains from the unit on the ground that they were statutory supervisors. [27] In asserting that the captains were statutory supervisors, the Respondent relied primarily on the assignment of “supervisory” duties set out in the April 1988 directives. After considering all the evidence, [28] the Regional Director found that the captains (as well as mates and chief engineers) were not supervisors because they did not possess or exercise authority to perform any of the duties set out in Section 2(11) of the Act. Consequently, he dismissed the petition. The Board affirmed. Thus, while the Respondent “sought onsite supervision on its boats to ensure quality operations,” this “supervision,” as defined in the April 1988 directives and considered by the Regional Director and the Board, was not sufficient to confer 2(11) supervisory status on the captains and thus warrant their exclusion from the bargaining unit.

Even while the unit clarification petition was pending before the Board, however, the Respondent proposed at the bargaining table to assign to the captains, mates, and chief engineers the very duties defined in Section 2(11) of the Act whose omission from the petition resulted in its dismissal. [29] The majority posits that the Respondent merely “reintroduced at bargaining the [April 1988] job description proposal which conferred statutory supervisory status on the captains.” (Emphasis added.) The majority’s assumption--that the Respondent’s proposal to assign specific 2(11) duties to the captain, mates, and chief engineers was merely a continuation at the bargaining table of its bona fide efforts to improve vessel maintenance and operation as embodied in the April 1988 directives--is inconsistent with the Regional Director’s finding that the captains were no statutory supervisors.

I would find, as did the judge, that the Respondent’s proposal was not a continuation of bona fide efforts to improve operations, but a continuation of its effort to exclude the captains, mates, and chief engineers from the bargaining unit. Losing before the Board, the Respondent pursued it strategy at the bargaining table by salting the captain’s, mate’s, and chief engineer’s job descriptions with specific 2(11) duties, duties it had not included in either its April 1988 directives or in its unit clarification petition. For these reasons, I would find that the Respondent’s proposal was a sham and that the Respondent violated 8(a)(5) by bargaining to impasse over the alteration of the scope of the unit, a permissive subject of bargaining. [30]

I also agree with the judge that the Respondent’s conduct in offering its sham proposal was unlawfully motivated because its purpose was to reduce and weaken the bargaining unit, not to improve operations. Thus, I would find that it was discriminatory and therefore violated Section 8(a)(3). I believe that the judge’s analysis of this issue, including, inter alia, the long-established bargaining unit that included the captains, mates, and chief engineers, and the lack of objective consideration that would now warrant their removal from the unit, requires such a finding. I would find that the Respondent violated the Act as alleged and would affirm the judge’s decision. [31]