Role: union
- For the union, list all the reasons why you think the docking pilots are not supervisors.
In responding to this assignment, in a word document, you are to answer the question 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?
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 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 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 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 NLRB to be supervisors under 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 prepare 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 definition of a supervisor. The employer also notes that a docking pilot “responsibly directs” others during the docking procedure by giving orders to the tugboat captains 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 professional employees covered by the LMRA, not supervisors. The docking pilots have no authority to hire anyone, although they may be asked to give a professional opinion regarding the qualifications of an applicant for a vacant docking pilot position. Compliance with Coast Guard regulations, which require less-experienced pilots to ride along with a more experienced pilot to learn information about a particular port before assuming responsibility for docking procedures in that port, represents a discharge of professional responsibility, which is a job duty of being a docking pilot. The docking pilots do not discipline other employees, handle grievances, or formally evaluate 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 judgment on the part of the docking pilot.
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