NLRB rules on tug mate supervisory status for MM&P and right under law to organize

NLRB rules on tug mate supervisory status for MM&P and right under law to organize
http://www.workboat.com/newsdetail.aspx?id=20075
by Dale K. DuPont
2/25/2013
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WASHINGTON - A ruling with potentially broad implications for the workboat business is caught up in the flap over the Obama administration’s National Labor Relations Board appointments.

By a 2-1 vote, the NLRB in December said tugboat mates in a Washington state case are employees and not supervisors for union organizing purposes. The board said the company didn’t prove its mates’ supervisory status based on their assignments and responsibilities.

The lone dissenter said mates are supervisors in light of an often-cited case and “50 years of board and circuit court precedent.” The employer showed the mates “have complete authority over the vessel’s crew during their watch.”

The case involving Brusco Tug & Barge, Longview, Wash., and the International Organization of Masters, Mates & Pilots (MM&P), Pacific Maritime Region, which won a May 2000 organizing election at Brusco, dates back to 1999. Brusco operates about 34 tugs.

MM&P president Don Marcus said the union is “encouraged by the NLRB’s decision vindicating the right of Brusco’s mates to be represented by a union. Since 1999, the Board twice has found these mates to be employees under the Labor Act. [The union] has always contended that supervisory status hinges not on a title such as ‘mate’ or ‘captain’ but on the reality of the work performed by that individual.”

Brusco’s lawyer, Tom Triplett, of Schwabe, Williamson & Wyatt, Portland, Ore., who tried the case, said it was too early to assess the impact on the company because bargaining issues must be resolved first.

But, he said, “It is dismaying that the NLRB could not resolve a priority case in less than 12 years. And the decision reflects the lamentable politics of the current board.”

Clyde Jacob, a labor and employment lawyer with Coats Rose, New Orleans, and a member of the U.S. Chamber of Commerce’s Labor Relations Committee, said the NLRB ruling could have a serious impact.

“The immediate implications of the decision are that if a boat or vessel company undergoes union organizing and a NLRB election petition, there is a strong likelihood that the mates will be considered non-supervisory employees and included in the voting and any ensuing bargaining unit,” he said. “If a maritime employer takes disciplinary action against a mate for union activity, that employer may be engaging in an unfair labor practice if the mate is later found not to be a supervisor under this NLRB decision.”

In prior cases, the NLRB routinely ruled that mates were supervisors, he said. In the Brusco case, “while the NLRB did not hold that mates are categorically not supervisors, the NLRB created such an elevated level of proof for maritime employers that it will lead effectively to that result.”

The dispute also is affected by a recent U.S. Circuit Court of Appeals decision in a different case invalidating the January 2012 appointment of three NLRB members, one of whom — Richard Griffin — was in the majority on the mates’ issue.

The court said the appointments were not proper because the U.S. Senate was not in recess at the time. Therefore, the five-member board lacked a quorum for decisions made in 2012.

The appeals court ruling “could have significant impact if sustained by the U.S. Supreme Court,” Triplett said. “It would vacate this decision and require a properly constituted board to reconsider the case.”

Earlier this month, President Obama re-nominated Griffin and one other member whose appointment was disputed.

Brusco case documents are available at: http://www.nlrb.gov/case/19-RC-013872.

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