By: Karla E. Sanchez
The mates on a tug boat may “demand obedience” and charge an insubordinate deckhand with mutiny, but this doesn’t make the mates supervisors, according to the National Labor Relations Board (“Board”). Brusco Tug and Barge, Inc., 359 NLRB No. 43 (December 14, 2012). In this case, the Board determined that mates lack sufficient authority to assign or direct other employees, even though the mate (a) is in charge when the captain is off-duty; (b) instructs the deckhand and engineer; (c) makes recommendations to the captain; (d) determines when there are emergencies; and (e) conducts safety drills. According to the Board, these facts do not show supervisory status because many of these tasks are routine or undertaken pursuant to written instructions. The Board also determined that, because most of this employer’s crews include only four members (captain, mate, engineer and deckhand), the mate’s instructions to either the engineer or the deckhand lack independent judgment; the mate has no choice but to assign engine work to the engineer and deckhand work to the only deckhand onboard. Apparently, supervisory status to the Board is based on the number of subordinates. The Board dismissed maritime law putting the mate in command as irrelevant to the issue of supervisory status under labor law.
This case had already been to the courts because the Board deviated from its own earlier, similar cases, in making its ruling. The Board justified this variation by simply noting that it has changed the test for supervisory status.
The message for non-sea-faring employers is that the NLRB holds itself separate and apart from whatever regulatory scheme applies to your industry. Just because Congress or an executive agency puts authority to direct activity in the hands of a particular person does not mean that person is a supervisor under labor law.
So watch out for future tides. No one knows where the Board will sway next.