Case Study $3-4.$ Determination of Supervisory Status

The union sought to become the exclusive bargaining representative for a group of five harbor pilots employed by Pacific Coast Docking Pilots $($the employer$).$ The union won a National Labor Relations Board $($NLRB$)$supervised secret$-$ballot election by a vote of $50.$ The employer refused to recognize and bargain with the union in an effort to force a federal court to determine if the five harbor pilots who composed the bargaining unit were supervisors or employees. The union filed an unfair labor practice against the employer for a refusal to bargain in good faith. The Board granted summary judgment in favor of the union, which the employer then appealed to a federal court of appeals for review.

The employer argued that the harbor pilots should be classified as $$supervisors$$ and therefore excluded from the definition of $$an employee$$ covered under the LMRA, as amended. The burden of proving the supervisory status of an employee is on the party asserting such a status. Section $2(11),$ LMRA defines a supervisor as $$any individual having authority, in the interests of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsible to direct them, or to adjust their grievances, or effectively to recommend such action, if in conjunction with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.$$

The Supreme Court has established a three$-$part test for determining the supervisory status of an individual under the LMRA, as amended $($NLRB v$.$ Health Care & Retirement Corp., $511$ U$.$S$.571[1994]).$ First, an employee must perform at least one of the $12$ specific functions outlined in the statutory definition of a supervisor under Section $2(11)$ of the LMRA. Second, in performing one of the $12$ specified supervisory functions, the individual must be required to exercise independent judgment. Third, the exercise of independent judgment in performing one or more of the $12$ listed supervisory functions must be $$in the interest of the employer.$$ The third test is typically the easiest to prove because virtually any action related to the attainment of a legitimate business goal or purpose of the firm will be considered an act $$in the interest of the employer.$$ Most cases involving the determination of supervisory status will rest on an analysis of the evidence related to parts one and two of the three$-$part supervisory status test.

The employer maintains that the docking pilots make recommendations on hiring and promotion decisions, assign work to employees, and are responsible for directing employees$$ work during the docking process. More specifically, the employer states that the advice of docking pilots is almost always followed in making decisions regarding who to hire or promote into a docking pilot position or relief docking pilot position. U$.$S$.$ Coast Guard regulations require that docking pilot trainees make trips with licensed docking pilots before becoming eligible to obtain a docking pilot$$s license. Docking pilots are required to evaluate the performance of trainees on such trips and provide a recommendation as to the suitability of each trainee for the job position of docking pilot. Docking pilots do not discipline other employees, adjust employee grievances, or evaluate the job performance of non trainee pilots. The final authority for all hiring and promotion decisions rest with the president and vice president of the employer.

When a large ship enters a port, it requires the assistance of tugboats to maneuver into a position to dock or undock. The docking pilot receives from the employer a list of the ships scheduled to arrive or depart the port on a given day. The information provided by the employer includes such items as the current location and dimensions of each ship. The docking pilot uses this information together with current information on other factors $($e$.$g$.,$ current wind speed, water current speed, existing navigation hazards in the channel$)$ to determine the number of tugboats required to accomplish the docking procedure. Once a ship$$s captain has entered the port, a tugboat delivers the docking pilot to the ship. The docking pilot then assumes command of the ship from the ship$$s captain and directs the docking procedure. The docking pilot communicates directly with the captain of each tugboat involved to ensure that each tugboat will render the necessary assistance to ensure a safe and accurate docking experience. Essentially, the docking pilot communicates what must be accomplished to each tugboat captain, who then determines what actions his tugboat crew must take to accomplish the defined objective. Each tugboat captain is responsible for directing his or her own boat crew to carry out the instructions of the docking pilot. Tugboat captains have been previously determined by the NL