In Buchanan Marine, L.P., the National Labor Relations Board (NLRB) held that an employer seeking to show an employee's supervisory status under the National Labor Relations Act (NLRA) must provide evidence showing how the employer holds the employee accountable for other employees' job performance. The NLRB found that tugboat captains are not supervisors under the NLRA because they are not accountable to their employer for their crew members' performance of job duties.
On December 2, 2015, in Buchanan Marine, L.P., a majority of the panel (Board) heading the NLRB's judicial functions clarified the NLRA's accountability standard for what constitutes responsible direction of employees by supervisors, holding that an employer seeking to show an employee's supervisory status under the NLRA must provide evidence showing how the employer holds the employee accountable for other employees' job performance. The Board found that although tugboat captains exercise independent judgment in directing crew members' work, the captains are not supervisors under Section 2(11) of the NLRA because the employer does not hold the captains accountable for the crew members' job performance. Therefore, the captains are eligible to vote in representation elections and to be represented as part of a collective bargaining unit. (363 NLRB No. 58, (Dec. 2, 2015).)
In 2010, an NLRB regional director issued a decision that Buchanan Marine's tugboat captains were not supervisors under Section 2(11) of the NLRA. Buchanan Marine filed a Request for Review of the regional director's decision, disputing the regional director's finding that captains were not accountable for their direction of crew members.
In a 2-1 decision, a majority of the Board (Chairman Pearce and Member Hirozawa) denied Buchanan Marine's Request for Review, holding that:
An employer seeking to show an employee's supervisory status under the NLRA must provide evidence showing how (or for what) the employee is held accountable for other employees' job performance.
Buchanan Marine's tugboat captains are not supervisors under Section 2(11) of the NLRA because Buchanan Marine failed to provide evidence that:
it holds the captains accountable for crew members' job performance; and
the captains' direction of ship crew members is "responsible" as required by Section 2(11).
The Board majority noted that:
Section 2(11) defines "supervisor" under the statute and enumerates 12 types of authority that indicate supervisory status, including having "authority . . . responsibly to direct" other employees (29 U.S.C. § 152(11)).
The Board recently found that:
tugboat mates are not supervisors under the NLRA;
earlier Board cases holding that mates are supervisors were "of limited precedential value" because the Board did not analyze whether mates are accountable to their employers for other employees' job performance; and
issues of supervisory status involving tugboat captains cannot be resolved through maritime law provisions, such as the possibility that a captain might lose his license based on a deckhand's failure to follow maritime requirements.
The key issue to determining supervisory status in the tugboat context is whether the employer,as opposed to maritime law or some other source, holds the putative supervisor accountable for other employees' job performance.
Under the accountability standard the Board articulated in Oakwood Healthcare, Inc., a captain would be accountable as a supervisor if he could be held responsible for a deckhand causing a tow to break loose (348 NLRB 686 (2006)).
Although tugboat captains exercise independent judgment in directing crew members' work, Buchanan Marine failed to produce sufficient evidence to show that it holds captains accountable and that captains can suffer adverse consequences for their crew members' work errors or poor job performance.
Its decision that captains are not supervisors did not mean either that:
captains' commands need not be obeyed by the crew; or
Buchanan Marine cannot discipline crew members for failing to obey the captains.
The factors to be considered in the dissenting Member's proposed test for supervisory status did not accord with Section 2(11).
Member Miscimarra dissented, finding that the record clearly showed that captains responsibly direct crewmembers under Section 2(11). Member Miscimarra noted that:
The majority's decision:
defied common sense because captains are the officers in charge of everything that happens on board their ships; and
was out of the touch with business realities in that most business cannot function without having someone exercise supervisory authority at a work site.
The Board's statutory supervisor analysis is flawed and should be altered to consider:
the nature of the employer's operations;
the work performed by those who are clearly statutory employees and not supervisors; and
whether a finding that the employee at issue is not a supervisor produces an illogical or implausible result, such as that nobody at a work site has supervisory authority.
The proposed three-factor test is consistent with Section 2(11).
The NLRB's decision in Buchanan Marine and its understanding of Section 2(11)'s "responsibly to direct" standard will impact:
The tugboat industry because, absent the captain being a statutory supervisor, supervisory authority will likely vest in someone who is not aboard the ship.
Other industries, because an individual who is seemingly an obvious supervisor because he holds a position with the highest authority at a worksite may not be a statutory supervisor unless the employer holds him accountable for the staff's job performance and work errors.
The number of employees qualifying for supervisory status will likely diminish, which will, in turn, increase the number of employees voting in representative elections and the number of employees being represented as part of a collective bargaining unit.
The NLRB's decision also presents a number of questions for employers to grapple with, including:
Should employers commend supervisors who properly oversee employees to show they are held accountable?
Does a poor supervisor become an employee by failing to discipline workers for their poor performance?
Must an employer hold supervisors strictly liable for other employees' job performance in order for the supervisor to qualify as a statutory supervisor?