Are your captains or masters supervisors? They may not be, according to the National Labor Relations Board (NLRB), which administers the National Labor Relations Act (NLRA).

In early 2015, and again later that same year, the NLRB reversed many years of its established precedent – not to mention centuries of maritime history – to reach the untenable result that captains aboard tugboats were not supervisors. The board took this position in three key decisions: Cook Inlet Tug and Barge, Inc., 362 NLRB No. 111 (2015); and Buchanan Marine, L.P., 363 NLRB No. 58 (2015). Specifically in Cook Inlet, the NLRB concluded, “questions of supervisory status under the Act cannot be answered merely by the assertion of maritime law.”

The importance of these decisions is that now captains are eligible for unionization. They cannot be fired for engaging in strikes or group actions relating to unionization or to wages, benefits, or terms and conditions of employment unless they are aboard the vessel when the action occurs – a mutiny, as discussed in my last column.

It means that vessel officers, along with crew members, on a tugboat are all subject to union organizing and representation. This is without regard to whether or not the maritime employer agrees. Interestingly, under the NLRA a maritime employer can agree to its vessel officers’ union representation if it so chooses, but under these NLRB decisions that right of choice may not exist.

The NLRB first held there must be specific evidence – for example, documentation – reflecting the actual exercise of or effective recommendation of at least one of the 12 statutory authorities under the NLRA. A job description by itself reciting authority is not enough.

In order to “responsibly direct employees” under the statute, maritime vessel employers may not rely solely upon the Jones Act, Coast Guard, or any other federal maritime law or regulation giving supervisory authority to captains or vessel officers. The NLRB said in that instance the captain or officer is not exercising that authority “in the interest of the employer,” but pursuant to maritime law.

In order to meet the “assignment“ statutory requirement, the NLRB says that routine instructions by captains or vessel officers are insufficient to establish the supervisor authority if there is “only one obvious and self-evident choice.”

The instructions by a vessel officer must involve the exercise of independent judgment, beyond just telling deckhands to close hatches, bring in winches, or have relevant equipment ready for use.

These assignments constitute ad hoc instruction to perform discrete tasks – not the statutory “assignment,” which requires the exercise of independent judgment.

These maritime labor cases may be distinguished because they involve tugboats with small crews in comparison to larger offshore vessels with larger crews. The larger the personnel complement, the stronger the argument for the supervisor status of a captain or master. Also, these cases occurred during the previous presidential administration. If they occurred again today, they likely would be reversed, though by only a 3-2 NLRB margin.

There is, however, no certainty when another such maritime case will arise. If a new administration takes office before one arises, a new NLRB may follow or even expand on these decisions. But for now, Cook Inlet and Buchanan Marine are the law governing when a captain or master is a supervisor under the NLRA.


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