In Brusco Tug and Barge, the key litigated issue that the NLRB considered was whether tugboat mates, whom the NLRB has traditionally considered supervisors excluded from the NLRA's coverage, were supervisors or employees under the NLRA.

Brusco operates about 34 tugboats along the Pacific Coast and on the Columbia River out of a home port in Washington state. Ocean-bound tugboats are usually staffed by a crew of four consisting of:

Crews work in rotations of about 30 days on and 30 days off. The mate is on watch from 12 to 6 a.m. and 12 to 6 p.m. The mate, who is also a Coast Guard licensed officer, steers the tugboat when the captain is off watch. On the mate’s watch, the mate is in charge. The mate's duties include:

After a complicated procedural history, starting with a 1999 union petition for an election, in 2006 an NLRB regional director issued a decision holding that the mates were:

The employer petitioned the panel (Board) which heads the NLRB's judicial functions and which is primarily responsible for certifying election results to review the regional director's decision.

In a 2-1 decision (Member Hayes dissented) in Brusco Tug and Barge dated December 14, 2012 but released January 24, 2013, a three-member panel of the Board affirmed the regional director’s finding that the tugboat mates are not supervisors within the meaning of Section 2(11) of the NLRA. Having conducted a "fact-intensive inquiry" the Board found that, based on the discrete facts of this case, the tugboat mates did not sufficiently assign or responsibly direct to be supervisors excluded from the NLRA's coverage.

In its analysis, the Board explained that, to establish that individuals are supervisors, an employer must show that the individuals:

(Oakwood.)

The Board further explained that a party can prove the requisite supervisory authority either by demonstrating that the individuals:

(Oakwood.)

To exercise "independent judgment" an individual must at minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data (Oakwood).

The Board disagreed with Brusco's assertion that the tugboat mates are supervisors based both on their:

The Board concluded that the mates did not have sufficient authority to assign other employees because the instructions that the mate gives to the deckhand:

The Board noted that under Oakwood, the Board found that responsible direction requires a finding that the person directing the performance of a task be held accountable for that task's performance. The Board majority dismissed Brusco's assertions that mates are accountable because, under Federal maritime law, they are responsible for their own actions and their crew's actions, whenever the captains are asleep or ill.

In his dissent, Member Hayes pointed out that under the majority's analysis, the tugboats have no supervision 12 out of every 24 hours and whenever a captain is on vacation or ill, even though federal maritime law requires tugboats to have accountable supervision at all times. Member Hayes believed that existing Board precedent holding that mates are supervisors should have controlled (see, e.g., Masters, Mates and Pilots Local 28.)

The Board majority continues to maintain an expansive view of who is an employee (who can vote in a union election) and a reflexively narrow view of who is a supervisor. The majority effectively deemed all supervisory status determinations in pre-Oakwood cases unprecedential, even if the analysis in those cases is consistent with Oakwood and just written with different phrasing.

Employers should continue to support their arguments that certain persons are supervisors under NLRB precedent in which the Board found persons performing the same type of work, with the same job title and state or federal certification processes, to preserve those arguments for appellate review or review by Board that might take a different view in the future.

In light of this and other recent Board decisions about supervisory status, employers may have difficulties convincing the Board majority that categories of workers traditionally held by Board precedent to be supervisors are not employees covered by the NLRA and not eligible to vote for and join unions. However, if they are willing to consider obtaining appellate court review of the Board’s bargaining unit determinations by refusing to bargain, and then appealing the resulting adverse unfair labor practice (ULP) case decision, federal appellate courts have reversed the Board's recent views about supervisory status (see, for example, Legal Update, NLRB Disregarded Evidence in Finding Nurses Were Not Supervisors: Eleventh Circuit).

Employers may also consider taking advantage of the decisions finding persons traditionally held to be supervisors are employees, by: