Read the Case Study 3.4, Determination of Supervisory Status, in your textbook.

Students assigned this assignment will be managers

(In responding to this assignment, in a word document, you are to answer the question at the bottom of the case study from your assigned role's perspective. From your assigned perspective write your argument for the following question: Should the docking pilots be classified as supervisors and thus excluded from participating in a bargaining unit for purposes of collective bargaining?

• For the manager, list all the reasons why you think the docking pilots are supervisors.

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 5-0. 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 com- posed the bargaining unit were supervisors or employ- ees. 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 rec- ommend such action, if in conjunction with the fore- going the exercise of such authority is not of a merely routine or clerical nature, but requires the use of inde-. pendent judgment." The Supreme Court has established a three-part test for determining the supervisory status of an indi- vidual 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 spe- cific 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 func- tions, the individual must be required to exercise inde- pendent 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 attain- ment 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 evi- dence 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 deci- sions, 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 deci- sions 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 suit- ability of each trainee for the job position of docking pilot. Docking pilots do not discipline other employees, adjust employee grievances, or evaluate the job perfor- mance of nontrainee 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 assis- tance 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 dimen- sions of each ship. The docking pilot uses this informa- tion 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 dock- ing 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 direct- ing his or her own boat crew to carry out the instructions of the docking pilot. Tugboat captains have been previ- ously determined by the NLRB to be supervisors under CHAPTER 3 Legal Influences 133 the LMRA. Once the docking procedure is completed, the docking pilot returns control of the ship to the ship's captain and reboards one of the tugboats to pre- pare for the arrival or departure of the next ship on the daily schedule. The employer argued that the docking pilot's determination of how many tugboats will be required to perform a particular docking operation constitutes an assignment of work using independent judgment, which is a supervisory function under the LMRA's def inition of a supervisor. The employer also notes that a docking pilot "responsibly directs" others during the docking procedure by giving orders to the tugboat cap- tains regarding the number and placement of towing lines to ensure a safe and efficient docking procedure. The union argued that the five docking pilots were supervisors. The docking pilots have no authority to professional employees covered by the LMRA, not hire anyone, although they may be asked to give a pro- fessional opinion regarding the qualifications of an applicant for a vacant docking pilot position. Compli- ance with Coast Guard regulations, which require less- experienced pilots to ride along with a more experi- enced pilot to learn information about a particular port before assuming responsibility for docking proce dures in that port, represents a discharge of profes- sional responsibility, which is a job duty of being a docking pilot. The docking pilots do not discipline other employees, handle grievances, or formally evalu- ate other employees' job performance. The union further argued that instructions given by docking pilots to other tugboat captains (who are supervisors) during docking procedures are part of the job duties of a professional docking pilot. The docking pilot has no authority to order members of a tugboat captain's crew to perform any specific job duties. The determination of the number of tugboats required to perform docking procedures is a function of the size of the ship to be docked and prevailing sea and weather conditions. This determination does not require the exercise of significant independent judg ment on the part of the docking pilot. Question 1. Should the docking pilots be classified as supervisors and thus excluded from participating in a bargain- ing unit for purposes of collective bargaining? Explain your reasoning