Chevron U.S.A.

National Labor Relations Board - Board Decisions

Sep 30, 1992

309 N.L.R.B. 59 (N.L.R.B. 1992)

59
309 NLRB No. 8
CHEVRON U.S.A.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 The name was amended at the hearing.
2 In its answer to the complaint, Respondent admits it is an em-
ployer engaged in commerce within the meaning of Sec. 2(6) and
(7) of the Act and meets the Board’s applicable discretionary juris-
dictional standard, and also admits that the Union is a labor organi-
zation within the meaning of Sec. 2(5) of the Act.
Chevron U.S.A., Inc. and Sailors’ Union of the Pa-
cific, AFL–CIO. Case 20–CA–23743
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The central issue in this case is whether the launch
captains are supervisors and did the Respondent violate
Section 8(a)(5) of the Act by withdrawing recognition
from the Union with respect to a unit of launch cap-
tains.
On May 5, 1992, Administrative Law Judge Jerrold
H. Shapiro issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering brief to the Respond-
ent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Chevron U.S.A., Inc.,
Richmond, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Lucile L. Rosen, Esq., for the General Counsel.
Curtis L. Mack, Esq. and Michael G. Canaras, Esq. (Mack
& Bernstein), for the Respondent.
Jeffrey R. Walsh, Esq. (Henning, Walsh & King), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which I conducted a hearing on February 3-
4, 1992, is based on an unfair labor practice charge filed by
Sailors’ Union of the Pacific, AFL–CIO (the Union), on No-
vember 30, 1990, and on a complaint issued on February 28,
1991, on behalf of the General Counsel of the National
Labor Relations Board (the Board), by the Regional Director
for Region 20 of the National Labor Relations Board, alleg-
ing that Chevron U.S.A., Inc. (Respondent)1 has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act).
The complaint, in substance, alleges that the Union is the
exclusive collective-bargaining representative of a bargaining
unit comprised of all launch captains employed by Respond-
ent on Respondent’s inland vessels operating in San Fran-
cisco Bay and its tributaries, and that prior to November 27,
1990, the Respondent recognized the Union as the exclusive
representative of the launch captains employed by Respond-
ent in this unit, and, in violation of Section 8(a)(1) and (5)
of the Act, on November 27, 1990, Respondent withdrew
recognition from, and refused to bargain with, the Union as
the exclusive representative of the aforesaid unit of launch
captains. Respondent filed an answer denying the commis-
sion of the alleged unfair labor practices.2
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs submitted by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Withdrawal of Recognition from the
Union and Its Setting
The workers involved in this case are employed by Re-
spondent as launch captains aboard the tugs Standard No. 4
and Richmond Chevron which are berthed in Richmond,
California at the Richmond Long Wharf, located on San
Francisco Bay. These tugboats are the only so-called inland
vessels being operated by Respondent on San Francisco Bay
and its tributaries.
The Chevron Richmond is a ship-assist tug which began
operating sometime in 1989. It replaced Respondent’s tug,
Standard No. 2, which performed the identical ship-assist
service as the Chevron Richmond. The Chevron Richmond
assists pilots of incoming or outgoing vessels in docking and
undocking the vessels at the Richmond Long Wharf, by
pushing and pulling the vessels pursuant to the pilots’ direc-
tions. The pilots are also known as mooring masters.
The Standard No. 4 primarily pushes Respondent’s barge,
the Chevron Oiler. Occasionally it does ship-assist work, like
the Chevron Richmond, but most of the time the Standard
No. 4 pushes the Chevron Oiler from the Richmond Long
Wharf to and from bunkering jobs on the San Francisco Bay.
The Chevron Oiler loads or unloads fuel oil, with the Stand-
ard No. 4 standing by until the oil is loaded or unloaded.
The Chevron Richmond and Standard No. 4 each employ
a crew of three: a launch captain; a utilityman; and a deck-
hand. The launch captains are licensed by the United States
Coast Guard and the utilitymen and deckhands are unli-
censed.
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It is for the above reason that I reject Respondent’s contention
that during the time material Respondent did not recognize the
Union as the exclusive representative of the launch captains em-
ployed on the Chevron Richmond and that those launch captains
were not covered by the December 1, 1985–November 30, 1990
agreement.
4 I considered that this statement was not included in the descrip-
tion of the November 27 meeting contained in the affidavit
Lundeberg submitted to the Board during its investigation of the
Union’s charge filed in this case. However, Lundeberg’s testimonial
demeanor was good when he gave this testimony and his testimony
was not denied.
Respondent regularly employed six launch captains, who,
like the other crewmembers, are normally assigned on a reg-
ular basis to either the Standard No. 4 or the Chevron Rich-
mond. However, some of the launch captains have been em-
ployed as launch captains on both the Standard No. 4 and
the Chevron Richmond.
During all times material, the unlicensed crew—the
utilitymen and deckhands—on the Standard No. 4 and the
Chevron Richmond, and its predecessor the Standard No. 2,
have been represented by the Union and covered by a collec-
tive-bargaining agreement between Respondent and the
Union.
Respondent and the Union were parties to a collective-bar-
gaining agreement titled, ‘‘Agreement between [Union and
Respondent] applying to Launch Captains employed on In-
land Vessels Operating in San Francisco Bay and Tribu-
taries,’’ which, by its terms, was effective from December 1,
1985, through November 30, 1988. Section 1 of the agree-
ment, states that ‘‘[Respondent] agrees to recognize the
[Union] as the representative for the purpose of collective
bargaining for the Launch Captains employed on the Inland
Vessels operating in San Francisco Bay and tributaries.’’ The
terms of the agreement, herein referred to for the sake of
convenience as the December 1, 1985–November 30, 1990
agreement, were extended by the parties to November 30,
1990.
The parties at the start of the hearing stipulated (Tr. p. 9,
L. 19 through p. 10, L. 9), that from the mid-1950s until the
Respondent’s withdrawal of recognition on November 27,
1990, infra, that the launch captains employed on Standard
No. 4 and the Chevron Richmond, and its predecessor Stand-
ard No. 2, were a part of a collective-bargaining unit that
was represented by the Union and that the Union was recog-
nized during that period by Respondent as the exclusive rep-
resentative of the launch captains. In addition, the Union’s
President, Gunnar Lundeberg, testified that until November
27, 1990, when Respondent withdrew recognition from the
Union as the representative of the launch captains,
Lundeberg dealt with Respondent’s representatives on behalf
of the launch captains employed on both the Chevron Rich-
mond and the Standard No. 4, without objection by Respond-
ent. Lundeberg further testified that the terms of the Decem-
ber 1, 1985–November 30, 1990 agreement were applied by
Respondent to the launch captains employed by Respondent
on both the Chevron Richmond and the Standard No. 4.
Lundeberg’s aforesaid testimony was undenied.
I considered the record evidence which indicates that the
International Organization of Masters, Mates and Pilots, Inc.,
AFL–CIO, Branch No. 40 of San Francisco (MMP), rep-
resented the one person employed by Respondent in 1988 as
launch captain on the Standard No. 2. However, based on the
language of Respondent’s December 1, 1985–November 30,
1990 agreement with the Union, and the above-described
stipulation of the parties, and the above-described undenied
testimony of Lundeberg, I find that during the time material
to this case and, in particular, immediately prior to Respond-
ent’s November 27, 1990 withdrawal of recognition, that Re-
spondent recognized the Union as the exclusive representa-
tive of the launch captains it employed on the Chevron Rich-
mond and the Standard No. 4 and understood that its Decem-
ber 1, 1985–November 30, 1990 agreement with the Union
applied to the launch captains employed on both of those
tugboats.3 I further find that all of the launch captains em-
ployed by Respondent on inland vessels operating on San
Francisco Bay and tributaries, excluding supervisors as de-
fined in the Act, constitute an appropriate bargaining unit.
As found supra, Respondent’s December 1, 1985–Novem-
ber 30, 1990 agreement with the Union covering the launch
captains was scheduled to expire on November 30, 1990. On
September 28, 1990, Respondent, by letter, notified the
Union of its intent to terminate the agreement. The Union re-
sponded by requesting that Respondent commence negotia-
tions for a new agreement and asked Respondent to contact
it, so a bargaining session could be scheduled. Subsequently,
a meeting was scheduled for November 27, 1990, at Re-
spondent’s offices.
Present for the Union at the November 27, 1990 meeting
were Union President Lundeberg and Business Agent Kaj
Kristensen. Present for Respondent were the following: Dave
Powell, manager of ports and navigation; Captain Maurizo
Croce, manager of United States ports; and, Al Starosciak,
manager of human resources.
During the meeting Lundeberg was handed a letter dated
November 27, 1990, signed by T. R. Moore, Respondent’s
vice president and general manager of operations, which
reads as follows:
This refers to our letter of September 28, 1990 noti-
fying you of our intent to terminate the labor agreement
covering Launch Captains, and your letters of Septem-
ber 28 and November 8, 1990 indicating your willing-
ness to engage in collective bargaining for a new agree-
ment.
Launch Captains, assigned to the Tug Standard No.
4 operating in San Francisco Bay and Tributaries, are
supervisors. In view of this, the Company will no
longer recognize the Sailors’ Union of the Pacific
(AFL–CIO) as representatives of these employees, and
we intend to terminate the agreement effective Novem-
ber 30, 1990; thus, there is no reason to engage in col-
lective bargaining.
If you have any questions or wish to discuss the sub-
ject further, please contact Mr. D. T. Powell at 894–
5580.
Lundeberg read the letter and, in response to the letter’s
second paragraph, it is undisputed that he stated it was the
position of the Union that it represented all of the launch
captains employed by Respondent in the San Francisco Bay.4
Powell and Starosciak informed Lundeberg, ‘‘it was a matter
of corporate philosophy’’ that the launch captains were su-
pervisors.
61CHEVRON U.S.A.
On either November 29, 1990, or in December 1990, at
the request of the Union, the Respondent’s representatives
met with Union President Lundeberg at the offices of the
Federal Mediation and Conciliation Service (FMCS). Present
for the FMCS was Commissioner Ruth Carpenter, for the
Union just Lundeberg, and for the Respondent the same per-
sons as were present at the November 27 meeting: Powell,
Croce, and Starosciak. Lundeberg, for the General Counsel,
and only Croce, for the Respondent, testified about what oc-
curred during this meeting.
Lundeberg’s testimony of the relevant portions of this
meeting, follows: Commissioner Carpenter read out loud
Section 2(11) of the Act, and asked if Respondent’s launch
captains exercised any of the authority set forth therein; Re-
spondent’s representatives answered in the negative; Com-
missioner Carpenter asked Respondent’s representatives to
explain the basis for Respondent’s position that the launch
captains were supervisors; they replied the launch captains
wrote employees’ evaluations and requisitioned supplies;
Commissioner Carpenter stated that in her opinion the launch
captains were working foremen; Respondent’s representatives
stated that they disagreed; and, Commissioner Carpenter sug-
gested that the parties seek the assistance of the Board to
clarify the supervisory issue.
Croce’s testimony of the relevant portions of this meeting
follows: Croce responded to Commissioner Carpenter’s in-
quiry, whether the launch captains had any of the authority
set forth in Section 2(11) of the Act, by stating they pos-
sessed the authority to direct and to assign work to employ-
ees and to discipline employees and possessed the authority
to recommend that employees be hired, fired, promoted, de-
moted, transferred, and rewarded. Croce explained to the
Commissioner, with respect to the aforesaid recommenda-
tions, that ‘‘upper management has the review process and
ultimately it is a team effort that decides what the fate of an
individual is going to be.’’ Croce, and the other company of-
ficials, told the Commissioner that Respondent had always
considered employees with the title ‘‘captain’’ as supervisors,
whether they were employed on tugboats or tankers and Re-
spondent believed the responsibility of captains employed on
Respondent’s tugboats was the same as the other captains in
its employ and that traditionally the launch captains had al-
ways been considered to be supervisors.
I reject Croce’s testimony about this meeting, insofar as it
conflicts with Lundeberg’s testimony, because Lundeberg’s
testimonial demeanor—his tone of voice and the way he
looked and acted while he was on the witness stand—was
good. In addition, Respondent’s unexplained failure to call
either its Manager of Ports and Navigation Powell or its
Manager of Human Resources Starosciak to corroborate
Croce’s testimony, warrants the inference that if called they
would have testified adversely to Respondent concerning the
conflict between Croce’s and Lundeberg’s testimony as to
what transpired at the meeting with Commissioner Carpenter.
International Automated Machines, 285 NLRB 1122, 1122–
1123 (1987).
B. The Question Presented
The question presented is whether the launch captains em-
ployed by Respondent on the Chevron Richmond and the
Standard No. 4 are supervisors within the meaning of Sec-
tion 2(11) of the Act, thereby excusing Respondent’s refusal
to continue to recognize, and bargain with, the Union as their
exclusive collective-bargaining representative.
C. Applicable Principles
Section 2(11) of the Act reads:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
Although this language lists the supervisory powers in the
disjunctive—so that the exercise of any one of them is suffi-
cient to make an individual a supervisor—it also contains the
conjunctive requirement that the power be exercised with
‘‘independent judgment,’’ rather than in a ‘‘routine’’ or
‘‘clerical’’ fashion. Walla Walla Union-Bulletin v. NLRB,
631 F.2d 609, 613 (9th Cir. 1980); NLRB v. Pilot Freight
Carriers, 558 F.2d 205, 207 (4th Cir. 1976). Nor will the ex-
istence of ‘‘independent judgment’’ alone suffice; for ‘‘the
decisive question is whether [the individual involved has]
been found to possess authority to use [his or her] ‘independ-
ent judgment’ with respect to the exercise [by him or her]
of some one or more of the specific authorities listed in Sec-
tion 2(11) of the Act.’’ NLRB v. Browne & Sharpe Mfg. Co.,
169 F.2d 331, 334 (1st Cir. 1948). And, although the exist-
ence of any of the Section 2(11) powers, ‘‘regardless of the
frequency of its exercise is sufficient,’’ the ‘‘failure to exer-
cise [supervisory powers] may show the authority does not
exist.’’ Laborers Local 341 v. NLRB, 564 F.2d 834, 847 (9th
Cir. 1977). In this regard, isolated and infrequent incidents
of supervision do not elevate a rank-and-file employee to a
supervisory level. NLRB v. Doctors’ Hospital of Modesto,
489 F.2d 772, 776 (9th Cir. 1973); Westinghouse Electric
Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970); High-
land Superstores v. NLRB, 927 F.2d 918, 922 (6th Cir.
1991); NLRB v. Res-Care, 705 F.2d 1461, 1467 (7th Cir.
1983); and NLRB v. St. Francis Hospital of Lynwood, 601
F.2d 404, 421 (9th Cir. 1979). Similarly, an employee does
not become a supervisor if his or her participation in person-
nel actions is limited to a reporting function and there is no
showing that it amounts to an effective recommendation that
will effect employees’ job status. Ohio Masonic Home, 295
NLRB 390, 393 (1989); see also Beverly Enterprises v.
NLRB, 661 F.2d 1095, 1100–1101 (6th Cir. 1981); NLRB v.
St. Francis Hospital of Lynwood, 601 F.2d 404, 421 (9th Cir.
1979); NLRB v. City Yellow Cab Co., 344 F.2d 575, 581 (6th
Cir. 1965).
In determining whether persons are statutory supervisors,
‘‘[j]ob titles are unimportant.’’ Laborers Local 341 v. NLRB,
supra. Accord: Walla Walla Union-Bulletin v. NLRB, supra
(‘‘[T]he specific job title of the employees is not control-
ling.’’); Arizona Public Service Co. v. NLRB, 453 F.2d 228,
231 fn. 6 (9th Cir. 1971) (The job title is ‘‘irrelevant’’).
Whether an employee is a supervisor is to be determined in
light of the employee’s actual authority, responsibility, and
relationship to management. Phillips v. Kennedy, 542 F.2d
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Respondent’s assertion in its posthearing brief that Captain
Croce, Respondent’s manager of United States ports, testified the
launch captains have the authority to recommend the hiring and fir-
ing of crewmembers is not accurate. He testified this is what he told
Commissioner Carpenter of the FMCS. As discussed supra, I have
rejected that testimony. Moreover, Croce did not testify he told
Commissioner Carpenter that those recommendations were effective
52, 55 (8th Cir. 1976). Thus, the Act requires ‘‘evidence of
actual supervisory authority visibly translated into tangible
examples demonstrating the existence of such authority.’’ Oil
Workers v. NLRB, 445 F.2d 237, 243 (D.C. Cir. 1971). Al-
though ‘‘[a] supervisor may have potential powers, . . . the-
oretical or paper power will not suffice. Tables of organiza-
tion and job descriptions do not vest powers.’’ Id. at 243,
quoting NLRB v. Security Guard Service, 384 F.2d 143, 149
(5th Cir. 1967). Accord: St. Alphonsus Hospital, 261 NLRB
620, 630–631 (1982). Additionally, the evidence must ‘‘fair-
ly’’ show that ‘‘that the alleged supervisor knew of his au-
thority to exercise’’ the supervisory power. NLRB v. Tio
Pepe, Inc., 629 F.2d 964, 969 (4th Cir. 1980).
Finally, the Board in interpreting Section 2(11) has been
instructed that it must not ‘‘construe supervisory status too
broadly, for a worker who is deemed to be a supervisor loses
his organizational rights.’’ McDonnell Douglas Corp. v.
NLRB, 655 F.2d 932, 936 (9th Cir. 1981); Williamson Piggly
Wiggley v. NLRB, 827 F.2d 1098, 1100 (6th Cir. 1987); Wes-
tinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th
Cir. 1970). Consistent with its duty to avoid an unduly broad
construction of supervisory status, the Board has placed the
burden of proving that an individual is a supervisor on the
party alleging that supervisory status exists. Health Care
Corp., 306 NLRB 63 fn. 1 (1992), and cases cited. See also
George C. Foss Co. v. NLRB, 752 F.2d 1407, 1410 (9th Cir.
1985); Walla Walla Union-Bulletin v. NLRB, 631 F.2d 609,
613 (9th Cir. 1980). Also, it is settled that in establishing
that individuals possess Section 2(11) supervisory authority,
that conclusionary statements, without supporting evidence,
are not sufficient to establish supervisory authority. Sears,
Roebuck & Co., 304 NLRB 193 (1991).
D. The Supervisory Status of the Launch Captains
As I have found supra, the Chevron Richmond and the
Standard No. 4 each employs a crew of three: a launch cap-
tain; a utilityman; and a deckhand. The Chevron Richmond’s
crew is on duty for 24 hours and off for the next 48 hours.
The Standard No. 4’s crew is on duty for 7 consecutive days,
24 hours a day, and off for the next 7 days.
Respondent regularly employs six launch captains for the
Standard No. 4 and Chevron Richmond: Tynan; Devine;
Chandler; Gill; Russell; and Cody. The supervisory authority
of the launch captains, which is in dispute in this case, is the
same regardless of whether they are assigned to the Chevron
Richmond or the Standard No. 4.
The port superintendent of the Richmond Long Wharf,
Dennis Arnett, whose office is at the Richmond Long Wharf,
oversees the work of the launch captains. The port super-
intendent reports to Captain Maurizo Croce, manager for all
of the Respondent’s ship operations in the United States’
ports. Although Port Superintendent Arnett is responsible for
the work of the launch captains, it is Arnett’s staff—Area
Operation Coordinator Modugno and Vessel Operation Coor-
dinators Torres and Hoffman, whose offices are at the Rich-
mond Long Wharf—who immediately supervise the launch
captains. However, it is undisputed that the launch captains
employed on both the Standard No. 4 and the Chevron Rich-
mond are not evaluated by the port superintendent or his
staff, but by Captain Steward Quan, the Respondent’s pilot,
who pilots Respondent’s ships in and out of the Richmond
Long Wharf. In addition, to his piloting duties, it is undis-
puted that Captain Quan, ‘‘makes inspections [of the Stand-
ard No. 4 and Chevron Richmond] quarterly at least . . .
[a]nd makes recommendations and judgments about the safe-
ty of the equipment and everything . . . [a]nd then gives
these inspection forms to the office.’’
The Chevron Richmond and Standard No. 4 are berthed at
the Richmond Long Wharf and perform their assigned tasks
in the immediate vicinity of that port. When they are not in
port their launch captains maintain contact with the Respond-
ent’s shore-based supervisors—the area operation coordinator
and the vessel operation coordinators—by means of both cel-
lular telephones and radio-telephone. After regular office
hours (8 a.m. to 5 p.m.) one of the vessel operation coordina-
tors is always on call 24 hours daily to receive calls from
the launch captains and, for nonroutine matters, the area op-
eration coordinator is also available after normal business
hours to receive calls from the launch captains.
The vessel operation coordinators and/or the area operation
coordinator (collectively called operation coordinators), give
the launch captains, on a daily basis, the Chevron Rich-
mond’s and Standard No. 4’s job assignments. Likewise, the
launch captains have no discretion over who shall be as-
signed to the Chevron Richmond or Standard No. 4 as crew-
members or as utilitymen or deckhands, because these work
assignments are made by the operation coordinators.
If a crewmember assigned to the Chevron Richmond or
Standard No. 4 is absent from work or unable to work due
to sickness or injury, the launch captain notifies the operation
coordinators who decide who shall replace the absent or in-
disposed crewmember, and it is also the operation coordina-
tors who schedule the crewmembers’ vacations and inde-
pendently decide whether to grant crewmembers’requests for
time off from work.
The daily work of the launch captains consists primarily
of navigating their assigned tugboat to and from its assigned
work tasks and to maintain logs which detail the movements
and work performed by the tugboat and the hours worked by
the crewmembers. Also, on a regular basis, the launch cap-
tains assist the crewmembers in performing the various kinds
of maintenance work, such as washing down and painting the
tugboats.
Since all of the crewmembers regularly assigned to the
Chevron Richmond and the Standard No. 4 are long-term ex-
perienced employees, who know what their job assignments
are and how to perform them, the work of the crewmembers
is normally done without any direction from the launch cap-
tains. Since the crewmembers know what has to be done and
how to do it without instruction, Launch Captain Chandler
testified that only approximately 5 percent of his worktime
is spent giving directions to the crew.
Respondent presented no evidence whatsoever to establish
that the launch captains possess the authority to hire, sus-
pend, lay off, recall, discharge or discipline other employees,
or to adjust their grievances, or effectively to recommend
such action.5 Moreover, the undenied testimony of the three
63CHEVRON U.S.A.
recommendations. Quite the opposite, he testified that in saying this
to Commissioner Carpenter he explained to Carpenter that ‘‘upper
management has the review process and ultimately it is a team effort
that decides what the fate of an individual is going to be.’’ In any
event, as I have noted previously, the law is settled that
conclusionary statements made by witnesses in their testimony, with-
out supporting evidence, does not establish supervisory authority.
Here no supporting evidence was presented by Respondent, and the
testimony of the three launch captains who testified in this proceed-
ing was to the effect that their advice has never been sought in con-
nection with the hiring or firing of crewmembers.
launch captains who testified in this proceeding—Launch
Captains Chandler, Gill, and Tynan—establishes that they do
not exercise any of these powers.
Having found Respondent failed to establish that the
launch captains possess the authority to hire, suspend, lay
off, recall, discharge, or discipline other employees, or to ad-
just their grievances, or effectively to recommend such ac-
tion, what is left for consideration is whether they possess
any of the remaining authority set forth in Section 2(11) of
the Act; whether they possess the authority to transfer, pro-
mote, assign, reward, or responsibly to direct other employ-
ees, or effectively to recommend such action, ‘‘if in connec-
tion with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the use
of independent judgment.’’
1. Respondent’s contention that the launch captains
possess the authority to effectively
recommend transfers
There is no contention or evidence that the launch captains
possess the authority to transfer crewmembers. Respondent
contends, however, they have the authority to effectively rec-
ommend the transfer of crewmembers. In support of this, Re-
spondent states that the evidence shows Launch Captain Rus-
sell effectively recommended the transfer of crewmembers
Doug Ahuna and Ronald Kram. I am of the opinion that the
evidence fails to establish that Launch Captain Russell effec-
tively recommended Ahuna’s transfer and, in the case of
Kram’s transfer, even if the record establishes his transfer
was effectively recommended by Russell, it does not estab-
lish that the launch captains possessed the authority to effec-
tively recommend the transfer of crewmembers, because it
was an isolated occurrence. I therefore find that Respondent
has failed to establish that the launch captains possess the au-
thority to effectively recommend transfers.
Respondent’s contention that Ahuna was transferred from
the position of utilityman to that of a deckhand is based on
the following. On April 13, 1990, Launch Captain Russell
submitted to management his written performance appraisal
of Ahuna. In the section of the appraisal entitled,
‘‘Promotability (indicate your evaluation of the employee),’’
Russell checked the space, ‘‘properly placed,’’ and imme-
diately below, in the space reserved for ‘‘com-
ments/suggestions,’’ wrote the following comment: ‘‘Mr.
Ahuna request(s) that he be moved to the position of deck-
hand when another man is trained as utility.’’ Fred Modugno,
Respondent’s area operation coordinator, testified when
Modugno assumed his position in August 1990, Ahuna was
employed as a deckhand. No evidence was presented as to
the date on which Ahuna was transferred, or the name of the
person or persons who decided to transfer him, or the cir-
cumstances of that decision.
Respondent’s contention that Ahuna was transferred from
the position of utilityman to deckhand because his April
1990 performance evaluation submitted to management by
Launch Captain Russell contained such a recommendation
lacks merit because Respondent failed to present evidence
that its decision to transfer Ahuna was the result (in whole
or even in part) of a recommendation made by Russell in
Ahuna’s performance evaluation. Respondent’s failure to
present such evidence is not surprising because in Ahuna’s
performance evaluation Launch Captain Russell did not rec-
ommend that he be transferred from his current job of
utilityman. Quite the opposite, the evaluation indicates Rus-
sell thought Ahuna was doing a very good job as a
utilityman and was ‘‘properly placed’’ in that position and
further indicates that it was Ahuna, not Russell, who re-
quested that management move Ahuna to the position of
deckhand. Subsequently, in moving Ahuna from his
utilityman position, Respondent’s management obviously dis-
agreed with Russell’s conclusion that Ahuna was ‘‘properly
placed’’ in that position. It is for these reasons that I find
Respondent failed to establish that Launch Captain Russell
effectively recommended Ahuna’s transfer.
Respondent’s contention that Launch Captain Russell ef-
fectively recommended the transfer of Kram is based on the
testimony of Area Operation Coordinator Modugno that on
an undisclosed date in 1991, Russell, who at the time was
assigned to Standard No. 4, informed Modugno that one of
the crewmembers, Ronald Kram, was not fully cross-trained
and needed further training. Modugno further testified that
‘‘upon [Russell’s] recommendation, we assigned Kram back
to the Chevron Richmond.’’
Counsel for Respondent asks that I interpret the above tes-
timony as a recommendation by Captain Russell to Modugno
that Kram be transferred to the Chevron Richmond for the
purposes of training, whereas Counsel for the General Coun-
sel asks me to interpret it as meaning that Captain Russell
said nothing about Kram being transferred but merely sug-
gested that he needed further training. In my opinion
Modugno’s testimony is ambiguous in that respect; it could
be reasonably interpreted either way. In any event, assuming
that Launch Captain Russell did on this occasion recommend
Kram be transferred to the Chevron Richmond for further
training and that Modugno accepted his recommendation, it
is insufficient to establish that the launch captains possess
the authority to effectively recommend that crewmembers be
transferred, inasmuch as a single instance in which a rec-
ommendation for transfer was made is not sufficient to con-
fer supervisory status as a matter of law. Here there is no
other record evidence that launch captains have either trans-
ferred or recommended that crewmembers be transferred.
Under the circumstances, Respondent has failed to establish
that the launch captains possess the authority to transfer or
to effectively recommend the transfer of crewmembers.
2. Respondent’s contention that the launch captains
possess the authority to effectively recommend rewards
There is no contention that the launch captains possess the
authority to reward crewmembers. Respondent, however,
urges they have the authority to effectively recommend re-
wards. This contention is based in part on the performance
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Modugno and Torres were familiar with the maintenance project
involved inasmuch as they had made all of the arrangements for the
project. Torres, in particular, was very familiar with the work which
had been done by the crewmembers on that project, inasmuch as
Torres was responsible for having provided the trucks, manpower,
and equipment used on the project. As Modugno testified, Torres,
‘‘was involved with the captain and the crew throughout the clean-
ing [referring to the maintenance project].’’
7 There is a suggestion in the record that management independ-
ently evaluated Launch Captain Russell’s expressed ‘‘hope’’ that
Adkins and Stevens be recognized by Respondent for their hard
work, inasmuch as, after considering the matter, Operation Coordina-
tors Modugno and Torres decided that all of the members of the
crew who worked on the maintenance project involved, Russell and
McGee as well as Adkins and Stevens, should be rewarded for the
outstanding manner in which the maintenance project was com-
pleted.
8 As I have found supra, there is no contention or evidence that
the launch captains possess the authority to reward employees. Like-
wise, there is no contention or evidence that they possess they au-
thority to promote or discipline employees.
evaluations of crewmembers’ work submitted to management
by the launch captains and in part on the fact that crew-
members Jim Adkins and Ted Stevens were granted a finan-
cial award for their work performance after Launch Captain
Russell called their outstanding work performance on a spe-
cific maintenance project to the attention of management and
expressed the hope that they would receive recognition for
their dedication and hard work.
Respondent’s contention that the performance evaluations
establish that the launch captains possess the authority to ef-
fectively recommend rewards is considered infra, and for the
reasons set forth infra, lacks merit. Respondent’s further con-
tention that its treatment of crewmembers Adkins and Ste-
vens establishes that the launch captains possess the authority
to effectively recommend rewards, lacks merit because: (1)
it is an isolated occurrence; and (2) pursuant to Respondent’s
written policy, all crewmembers are encouraged to bring out-
standing work performances to the attention of management,
so that management may reward those performances.
Respondent maintains a written policy that any employee
in its employ may recommend to management that fellow
employees receive awards for an outstanding work perform-
ance.
On April 17, 1991, Launch Captain Russell wrote Port Su-
perintendent Arnett stating he observed two of the utilitymen
employed on Standard No. 4, Adkins and Stevens, perform-
ing beyond the scope of their normal job duties on a particu-
lar maintenance project. Russell in this letter expressed the
‘‘hope’’ that Port Superintendent Arnett ‘‘will make certain
that they [Adkins and Stevens] receive the recognition they
deserve for their dedication and hard work.’’
This letter was referred to Area Operation Coordinator
Modugno, who, discussed the matter with Operation Coordi-
nator Torres, but did not discuss the matter with Russell.6
Modugno then prepared a memo, which was signed by
Arnett, and sent to Arnett’s supervisor, Captain Croce, the
manager of Respondent’s United States ports. The memo, in
substance, described the outstanding manner in which
utilitymen Adkins and Stevens performed on the maintenance
project and noted that Launch Captain Russell had submitted
a request that they be given a ‘‘Team award’’ for their work
performance on the project and stated that Arnett, Modugno,
and Torres recommended that Adkins and Stevens be award-
ed the sums of $500 each and that Captain Russell and Jim
McGee, the other crewmembers involved in the maintenance
project, be awarded $400 each for their work performance.
Modugno testified the decision to give some kind of an
award to Adkins and Stevens was based on Russell’s April
17, 1991 letter to Arnett and further testified it was Arnett,
Modugno, and Torres who decided on the form of the award
and who decided the award should be extended to cover the
other members of the crew involved in the project, namely,
Russell and McGee.
Subsequently, Adkins, Stevens, Russell, and McGee were
awarded sums of money as a result of the above-described
recommendation.
There is no evidence that crewmembers on any other occa-
sions received a financial award as the result of a request
made by a launch captain, or, as the result of a request made
by a launch captain, a crewmember’s employment status was
favorably effected because of his or her job performance. In
other words, assuming that Respondent’s management treated
Launch Captain Russell’s letter of April 17, 1991, as an ef-
fective recommendation,7 it is insufficient to establish that
the launch captains possess the authority to effectively rec-
ommend awards, because a single instance in which such a
recommendation is made and accepted is not sufficient to
confer supervisory status as a matter of law, especially
where, as here, all of Respondent’s employees have been en-
couraged by management to submit recommendations of the
type made by Russell and there is no evidence that manage-
ment placed any more reliance on Russell’s recommendation
than it would have placed on a similar recommendation
made by a crewmember.
3. Respondent’s contention that the launch captains, by
virtue of evaluating other employees’ work
performances, possess the authority to effectively
recommend that employees be promoted, rewarded, or
disciplined8
Respondent urges that the performance evaluations of the
unlicensed crewmembers submitted to management by the
launch captains establish that the launch captains possess the
authority to effectively recommend that crewmembers be
promoted, rewarded and disciplined. The evidence pertinent
to this argument and its evaluation is set forth below.
The unlicensed crewmembers (utilitymen and deckhands)
employed on the Standard No. 4 and the Chevron Richmond
are supposed to be evaluated in writing by the launch cap-
tains annually, but in practice they are evaluated every 18 or
20 months and sometimes at even longer intervals.
The format of the evaluations may be briefly described as
follows. The first section of the evaluation is entitled, ‘‘Gen-
eral Appraisal and Report’’ and consists of several traits in-
cluding, ‘‘Professional Knowledge,’’ ‘‘Personal Behavior,’’
‘‘Industry,’’ ‘‘Initiative,’’ ‘‘Judgment,’’ ‘‘Decision Making,’’
‘‘Adaptability,’’ and ‘‘Leadership.’’ For each of these traits,
the evaluator must rate the person being evaluated as either
‘‘outstanding,’’ ‘‘very good,’’ ‘‘good,’’ ‘‘fair,’’ ‘‘unsatisfac-
tory,’’ or ‘‘not observed,’’ and must explain any unsatisfac-
tory or outstanding traits observed and indicate specific areas
for improvement. The next section of the evaluation is titled
65CHEVRON U.S.A.
9 I also note there are indications in the record that the job duties
and responsibilities of the ‘‘mate/pilot,’’ the title of the person who
in 1986 evaluated Chandler, differed from that of the current launch
captains, thus it may not follow that the current launch captains pos-
sess the same supervisory authority possessed by the ‘‘mate/pilots’’
in Respondent’s employ in 1986.
‘‘Desireability’’ and asks the evaluator to ‘‘indicate [his or
her] attitude toward having this employee under your com-
mand.’’ The final section asks for the evaluator’s opinion
about the ‘‘promotability’’ of the employee being evaluated;
whether the employee is ‘‘Ready for promotion,’’ or is ‘‘Pro-
motable with further experience and/or license upgrading,’’
or is ‘‘Properly placed,’’ or is ‘‘Improperly Placed-Not able
to fill present job.’’ The evaluator is also asked to state on
the evaluation how long the employee being evaluated has
been ‘‘supervised’’ by the evaluator.
The launch captain discusses the evaluation with the crew-
member being evaluated, and after the evaluation has been
signed by both the launch captain and the crewmember, the
launch captain transmits it to the office of the port super-
intendent where it is reviewed by the area operation coordi-
nator and the port superintendent. The port superintendent
acknowledges that he has reviewed the evaluation by signing
it. In addition, each evaluation is reviewed by the port super-
intendent’s superior, the Respondent’s manager of United
States ports. The evaluations, after having been reviewed by
the aforesaid persons, are placed in the crewmembers’ per-
sonnel files.
Although the launch captains have been submitting the
above-described written evaluations to management for sev-
eral years, no evidence was presented showing that a single
crewmember’s job status or terms or conditions of employ-
ment has ever been effected by a launch captain’s evaluation.
In so concluding, I considered Respondent’s contention that
launch captains’ recommendations contained in evaluations
resulted in the promotion of crew member Claude Chandler
and in crew member Harold Presswood being trained for the
position of utilityman. I also considered Respondent’s further
contention that the record establishes that crewmembers are
never promoted over a launch captain’s objection. These con-
tentions lack merit for the reasons below.
Claude Chandler in 1986 was employed as a utilityman on
Standard No. 2 (Chevron Richmond’s predecessor). On Octo-
ber 15, 1986, he was evaluated by the ‘‘mate/pilot’’ of
Standard No. 2, who checked the section of the evaluation
which stated that the person being evaluated was ‘‘Promot-
able with further experience and/or license upgrading,’’ and
wrote the following comment: ‘‘Charlie has his mates license
and with training should be able to handle the mates job.’’
The evaluation shows it was reviewed by the port super-
intendent on January 12, 1987. It is undisputed that approxi-
mately 6 months later Chandler was promoted to the position
of launch captain. However, no evidence whatsoever was
presented to establish that in deciding to promote Chandler,
management relied on the above evaluation, without conduct-
ing its own independent investigation of the relevant cir-
cumstances.9 As I have previously indicated, the law is set-
tled that although an individual is empowered to recommend
that other employees be promoted or rewarded or disciplined,
this authority is insufficient to satisfy the statutory standard
for supervisors unless their superiors are prepared to imple-
ment these recommendations without an independent inves-
tigation of the relevant circumstances. Waverly-Cedar Falls
Center v. NLRB, 933 F.2d 626 (8th Cir. 1991), citing
Passavant Health Center, 284 NLRB 887, 891 (1987). See
also Beverly Manor Convalescent Center, 275 NLRB 943,
945–946 (1985).
In his April 13, 1990 evaluation of deckhand Presswood,
Launch Captain Russell informed management that
‘‘Presswood is presently learning the basics of the
utilityman’s position. When time permits, I believe that he
should be fully trained as a utility.’’ Subsequently, on June
15, 1990, Russell transmitted a note to the area operation co-
ordinator stating, ‘‘this is to inform you that Harold
Presswood is qualified at the position of Utilityman on board
the Chevron Richmond.’’ The record is silent as to whether
or not Presswood was transferred to the position of
utilityman. Respondent apparently takes the position that it
decided to fully train Presswood as a utilityman as a result
of the statement in Russell’s April 13, 1990 evaluation of
Presswood. However, as was the case of Chandler’s pro-
motion, there is no evidence whatsoever that management re-
lied upon the evaluation without conducting its own inde-
pendent investigation of the relevant circumstances.
Respondent’s contention that crewmembers are never pro-
moted over a launch captain’s objection is based on the testi-
mony of Captain Croce, Respondent’s United States port
manager. He testified ‘‘no,’’ when asked by Respondent’s
Counsel: ‘‘Are crewmembers ever promoted over the cap-
tain’s objection?’’ In view of the leading nature of the ques-
tion and because Croce’s conclusionary testimony was com-
pletely lacking in details and specifics, it is insufficient to es-
tablish supervisory authority. Sears, Roebuck & Co., 304
NLRB 193, supra. Moreover, the unreliability of Croce’s tes-
timony is demonstrated by his further testimony that he was
unable to identify a single crewmember whose employment
status has been affected by either promotion, demotion, re-
ward, or otherwise because of a launch captain’s evaluation.
This despite the fact that he has been reviewing these evalua-
tions for the past several years.
I considered that the launch captains in evaluating the
crewmembers, as required by the evaluation forms, state
whether or not they ‘‘desire’’ to continue to have the person
being evaluated work under their supervision and whether or
not they feel the person is ready for promotion or is promot-
able or is not able to fill his present position. However, these
‘‘recommendations,’’ by themselves, are insufficient to sat-
isfy the statutory standard for supervisors unless Respond-
ent’s management is prepared to implement the recommenda-
tions without an independent investigation of the relevant cir-
cumstances. Waverly-Cedar Falls Center, supra; Passavant
Health Center, supra; and Beverly Manor Convalescent Cen-
ter, supra. Here Respondent failed to present any evidence as
to what weight, if any, it gives to the launch captains’ eval-
uations in determining whether to promote, demote, dis-
cipline, or reward employees. Absent evidence that the eval-
uations constitute effective recommendations, they do not es-
tablish supervisory authority. Valley Mart Supermarkets, 264
NLRB 156, 161 (1982); Beverly Enterprises v. NLRB, supra.
Besides the lack of evidence as to what weight, if any, Re-
spondent gives to the evaluations submitted by the launch
captains, in determining whether to promote, demote, reward,
or discipline, the record contains evidence which indicates
that before acting upon a launch captain’s evaluation, Re-
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Based on Launch Captain Chandler’s testimony, presumably all
of the launch captains spend about the same amount of time as
Chandler in giving directions to the crewmembers because all of the
crewmembers assigned to the two tugboats involved in this case are
long-term experienced employees.
spondent conducts an independent evaluation and investiga-
tion. Thus, when Area Operation Coordinator Modugno was
asked, ‘‘Who ultimately will be the one that makes the deci-
sion as to whether someone will be rewarded or punished,’’
he testified, ‘‘there would be I would say more than the one
person—it is a group thing.’’ He also testified that based
upon his employment experience with the Respondent that
the following would occur before Respondent acted on a
launch captain’s evaluation: ‘‘we would have a meeting with
the Port Superintendent and myself and the captain involved
in the evaluation to decide what are we going to do with the
specific employee.’’ In addition, as I have set forth supra,
when Respondent’s manager of United States ports, Captain
Croce, was questioned by FMCS Commissioner Carpenter
about the supervisory authority of the launch captains, Croce
testified he told Carpenter that while the launch captains had
the authority to recommend that crewmembers be hired,
fired, promoted, transferred, and rewarded, that ‘‘upper man-
agement has the review process and ultimately it is a team
effort that decides what the fate of an individual is going to
be.’’
It is for the above reasons that I find Respondent failed
to establish that the recommendations set forth in the per-
formance evaluations submitted to Respondent’s management
by the launch captains amount to effective recommendations
that will effect employees’ job status. Accordingly, I reject
Respondent’s contention that the evaluations establish that
the launch captains possess the authority to effectively rec-
ommend that crewmembers be promoted, rewarded, or dis-
ciplined.
4. Respondent’s contention that the launch captains
possess the authority to assign and responsibly direct
other employees and that such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment
The operation coordinators, whose offices are located at
the Richmond Long Wharf, where the Chevron Richmond
and Standard No. 4 are berthed, give the launch captains the
daily work assignments for the Chevron Richmond and
Standard No. 4. Likewise, the launch captains have no dis-
cretion over who is assigned as crewmembers to these tug-
boats nor do they assign the crewmembers to their positions,
because the job assignments (utilityman and deckhand as-
signments) are also made by the operation coordinators.
It is also undisputed that the crewmembers employed on
the Chevron Richmond and the Standard No. 4 are regularly
assigned to those tugboats and are ‘‘long-term’’ employees
of the Respondent (Tr. p. 311, LL. l–2), who know what
their work assignments are and how to perform them without
direction or instruction and, as a result of this, the work of
the crewmembers is normally performed without any assign-
ment, direction or instruction by the launch captains. Since
the crewmembers know what has to be done, when to do it
and how to do it, the launch captains spend only approxi-
mately 5 percent of their worktime directing or assigning
work to the crews.10 I shall now set forth and evaluate the
evidence concerning those infrequent occasions when launch
captain either assign or direct the work of crewmembers.
A launch captain directs the utilityman to start and turn off
the tug’s engine in connection with the launch captain’s navi-
gation of the tug.
Launch Captain Gill, who, when he testified had been a
launch captain aboard the Chevron Richmond for approxi-
mately 20 months, testified that when one of his crew-
members is absent due to illness or for other reasons, that
occasionally the relief worker temporarily assigned to replace
the absentee will be inexperienced and because of this Gill
has to exercise ‘‘more hands on supervision than usual’’; that
is, Gill has to sit down with the inexperienced relief worker
and explain his job duties. Respondent presented no testi-
mony, other than Gill’s above-described testimony, on this
subject, thus there is no showing that this occurs—the em-
ployment of an inexperienced crewmember—on more than
isolated and sporadic occasions.
Launch Captain Gill testified he has the authority to direct
the crewmembers in their work, but testified that normally
the crew knows what they have to do without any direction
from him and that he only occasionally tells them to do ‘‘this
or that’’ and they obey him. More specifically, in this regard,
Gill testified that during the approximately 20 months he has
been employed as a launch captain, that only on a ‘‘couple
of occasions’’ when he observed crewmembers had forgotten
to do a part of their regular job, such as forgotten to paint
an area, that he called this to their attention and directed
them to complete the forgotten work and they obeyed him.
No evidence was presented that any of the other launch cap-
tains engaged in this conduct.
Launch Captain Tynan testified that in the 2-3/4 years he
has been employed by Respondent as a launch captain he has
had the authority to move crewmembers around, but testified
this ‘‘almost never happens’’ because ‘‘everyone has a job
to do and they are doing their job. I don’t have to redirect.’’
Tynan further testified that during the 9 months he was a
launch captain aboard the Standard No. 4, on only one occa-
sion during that 9-month period did he have to move crew-
members around. He testified the reason why he has had to
do this so rarely is because ‘‘everyone on board [Standard
No. 4] has a pre-assigned job duty and they do their duty.’’
No evidence was presented that any of the other launch cap-
tains ‘‘move crewmembers’’ as does Tynan.
Launch Captain Chandler, who has been employed by Re-
spondent as a launch captain for over 4 years, testified he
does not have to direct the crewmen in their work because
‘‘as many years these individuals have been on tug boat(s),
if you don’t know what your job is by then, you’ve got a
problem.’’ He further testified that while the crew normally
did their work without direction or instruction from him that
occasionally he found the wheelhouse was in need of a
cleaning and ‘‘suggested’’ that the deckhand deviate from his
normal work routine to clean up the wheelhouse, and testi-
fied that when the tug was berthed he would occasionally re-
assign employees from one housekeeping task to another. No
evidence was presented that any of the other launch captains
engaged in this conduct.
67CHEVRON U.S.A.
It is undisputed that a part of a launch captain’s respon-
sibility is to be sure that the members of the crew perform
their jobs in a safe manner, in compliance with the Respond-
ent’s safety policies and the policies of the United States
Coast Guard, and that when a launch captain observes a
crewmember is working or acting in an unsafe manner, the
launch captain will call this to the attention of the crew-
member and direct him to stop doing whatever he was doing
that is unsafe. It is also undisputed that safety is of great
concern to all members of the crew, the unlicensed crew-
members as well as the launch captain, and that because of
this, when a crewmember observes a fellow crewmember
working or acting in an unsafe manner, he calls this to the
other crewmember’s attention.
The record establishes that Launch Captain Chandler, cur-
rently a launch captain aboard the Standard No. 4, about
once a month, if that often, directs one of the crew to take
a truck and pick up supplies for the tugboat at the Respond-
ent’s storehouse. No evidence was presented that any of the
other launch captains do this.
The record establishes that if one of the unlicensed crew-
members aboard the Standard No. 4 needs assistance to do
his job, and Launch Captain Chandler is not present, that the
crewman needing help goes directly to the other crewman
and gets his assistance. When Launch Captain Chandler is
present on board the tug, the crewman needing help will tell
Chandler he needs assistance and Chandler will direct the
other crewman to stop doing whatever he is doing and assist
the crewmember who requested help. As an example of this,
Chandler testified that when the utilityman has a problem in
the engine room, which requires the assistance of others,
Chandler asks the deckhand to assist the utilityman and that
both Chandler and the deckhand go down into the engine
room and both of them assist the utilityman. The only other
evidence in the record on the subject of launch captains di-
recting one crewmember to help another, other than the
aforesaid evidence, is the testimony of Launch Captain
Tynan, who, testified that during the 1 year he was employed
as a launch captain aboard the Chevron Richmond, that it
was very rare for him to move one crewmember to help an-
other, that this occurred once a month, if that often.
It is undisputed that virtually 100 percent of the overtime
worked by the crews of the Standard No. 4 and Chevron
Richmond is so-called ‘‘scheduled overtime,’’ which is as-
signed and approved by the operation coordinators, not by
the launch captains. Launch Captain Tynan, who has been
employed in that post by Respondent for approximately 2-3/4
years aboard both of the tugboats, testified he has never
granted permission to a crewmember to work unscheduled
overtime and that when a crewmember wants to work on an
engine after regular hours, Tynan tells him to get permission
from the office. Tynan further testified that no one from Re-
spondent has ever informed him whether or not he has the
authority to assign or approve unscheduled overtime work.
Launch Captain Gill, employed in that position by Respond-
ent aboard the Chevron Richmond for approximately 20
months, testified he was never informed he has the authority
to assign or approve unscheduled overtime and that there has
never been any unscheduled overtime worked during his
watch. Finally, the record reveals that Launch Captain Chan-
dler, currently a launch captain aboard Standard No. 4, has
one of the tug’s crewmen remain overtime for 1 or 2 extra
hours for the purpose of being present when an outside con-
tractor does engine repair work. This, however, occurs infre-
quently; no more than six to eight times yearly. Chandler’s
undenied and uncontradicted testimony is that he does not
need authorization from the operation coordinators to assign
and approve this unscheduled overtime work because, pursu-
ant to Respondent’s policy, it is mandatory that a crew-
member remain on board the tug for safety reasons when an
outside contractor is performing engine repair work.
Respondent’s contention that the launch captains possess
the authority to assign or responsibly direct other employees
within the meaning of Section 2(11) of the Act lacks merit
because the infrequent occasions on which the launch cap-
tains assign and direct other employees are of a merely rou-
tine nature and do not require the use of independent judg-
ment, as contemplated by Section 2(11) of the Act, and be-
cause there is no evidence that all of the launch captains en-
gage in this conduct and the ones that do, do so only on iso-
lated and infrequent occasions.
As described in detail supra, the responsibility for assign-
ing positions to the unlicensed crewmembers is vested in the
operation coordinators, not the launch captains, and because
the members of the crew are long-term, skilled employees,
they perform their job assignments as utilitymen and deck-
hands without direction or instruction from the launch cap-
tains and the occasions when one of the six launch captains
assigns or directs the work of a crewmember are so infre-
quent, sporadic, or isolated, that even if the issuance of the
direction or assignment requires the use of the kind of inde-
pendent judgment contemplated by Section 2(11), it would
not establish that the launch captains possess the authority to
assign or responsibly direct, as those terms are defined by
Section 2(11). Moreover, I am of the view that when, on
those rare occasions, one of the six launch captains assigns
or directs the work of the other crewmembers, as described
supra, that the launch captain is engaging in nothing more
than the exercise of a routine function which does not require
the exercise of his independent judgment as contemplated by
Section 2(11) of the Act. For, ‘‘[t]he responsibility of mak-
ing assignments in a routine fashion does not transform an
employee into a supervisor.’’ NLRB v. City Yellow Cab Co.,
344 F.2d 575, 581 (1965). See Highland Superstores v.
NLRB, 927 F.2d 918, 921 (6th Cir. 1991) (leadmen not su-
pervisors because authority to assign work limited to telling
employees which trucks to load and allocating time required
to perform such tasks); Williamson Piggly Wiggly v. NLRB,
827 F.2d 1098, 1101 (6th Cir. 1987) (department manager
who had discretion to direct routine activities of the depart-
ment, such as unloading trucks, stocking and rotating
produce, and ordering from suppliers, not supervisor); NLRB
v. Lauren Mfg. Co., 712 F.2d 245, 246, 248 (6th Cir. 1983)
(line operators’ assigning tasks to assistants on line and alter-
nating their positions periodically not supervisory).
I have considered the evidence may warrant the conclusion
that the launch captains direct crewmembers on a regular
basis, rather than on an isolated or sporadic basis, in connec-
tion with their responsibility to see to it that the crew-
members act and work in a safe manner. However, the
launch captains’ directions issued to the crew to act and
work in a safe manner do not require the use of independent
judgment, but are dictated by an established safety policy.
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 I also note that the responsibilities of the launch captains to
record the crewmembers’ hours, to verify that those hours are accu-
rate, and to submit the hours to the Respondent’s payroll department,
are routine and clerical in nature and insufficient to establish super-
visory status. John N. Hansen Co., 293 NLRB 63, 64 (1989), and
cases cited therein.
12 This ‘‘Job Summary’’ (R. Exh. 6) has been altered by, among
other things, a line drawn through ‘‘STANDARD 2’’ and substitut-
ing ‘‘CHEVRON RICHMOND.’’ No evidence was introduced con-
cerning the circumstance of this alteration.
Likewise, Launch Captain Chandler’s assignment of unsched-
uled overtime is also dictated by established policy.11
In rejecting Respondent’s contention that the launch cap-
tains possess the authority to assign or responsibly direct
other employees within the meaning of Section 2(11) of the
Act, I considered its argument that certain statements made
by launch captains in evaluating other crewmembers show
they direct the work of the crew. I also considered its argu-
ment that, ‘‘the Captains clearly exercise independent judg-
ment in operating the tugboat, which effectively directs the
work that the crew must perform.’’
The statements made by launch captains in the evaluations
of individual crewmembers, relied on by Respondent, are
three in number and are dated October 3, 1984, July 8, 1988,
and July 23, 1988, and, in pertinent part, read as follows:
‘‘[McGee is] good at following orders with none needed in
the daily operation of the unit;’’ ‘‘Polk is a pleasure to work
with . . . . He is willing to do any job or carry out any
order with no complaint and usually very little supervision’’;
and ‘‘[Lopez] needs to be more responsive to a Captain’s au-
thority and direction.’’ These three isolated statements in-
cluded in crewmembers’ evaluations submitted to Respond-
ent’s management by the launch captains over a period of at
least 7 years do not show that the launch captains possess
the authority to assign or responsibly direct other employees,
as those terms are defined by Section 2(11) of the Act. The
fact that someone possesses the authority to assign or direct
other employees in certain respects does not establish that
the person with this authority is a statutory supervisor, unless
the authority complies with the requirements set forth in Sec-
tion 2(11) of the Act. Here, as I have found supra, Respond-
ent failed to establish that this is the case.
Respondent’s contention that the independent judgment ex-
ercised by the launch captains in navigating the tugboats
show they are statutory supervisors, lacks merit because, as
previously noted, the law is settled that the decisive question
in the instant case is whether the launch captains possess au-
thority to use their independent judgment with respect to the
exercise of one or more of the specific authorities listed in
Section 2(11) of the Act. The plain language of Section
2(11) establishes, ‘‘it is the authority over employees, not the
control of equipment, that is relevant’’ in determining wheth-
er the launch captains herein possess any of the authority
enumerated in Section 2(11). McCullough Environmental
Services., 306 NLRB 565 (1992). Likewise, the fact that
launch captains order supplies for the tugboats is not an indi-
cation that they are statutory supervisors because Section
2(11) of the Act defines supervisory status in terms of an in-
dividual’s authority over other employees. C & W Super
Markets v. NLRB, 581 F.2d 618, 622 (7th Cir. 1978).
5. Respondent’s contention that it maintains job
descriptions for the launch captains which establish
their supervisory status
Since at least March 1980, Respondent has maintained a
manual entitled ‘‘Master’s & Deck Officers’ Manual Operat-
ing Regulations—Marine Regulation No. 400,’’ hereinafter
for the sake of convenience referred to as the 1980 Manual.
The section of the 1980 Manual entitled, ‘‘The Master-Re-
sponsibilities and Duties . . . Scope of Responsibility and
Authority,’’ in pertinent part, reads as follows:
The Master is the direct representative of Chevron
. . . . Decisions and actions taken by the Master in this
capacity are usually binding upon Chevron, and there-
fore the Master must act to ensure that Chevron’s inter-
ests are protected. Chevron representatives ashore are
available at all times for consultation and to assist the
Master in discharging these duties and responsibilities.
The Master has supreme command of the vessel and
full authority under the law over all phases of vessel
operations at all times. This authority under the law ex-
tends over all persons on board.
The Master is at all times responsible for the sea-
worthiness and safety of the ship and for the safety of
all personnel, cargo and equipment aboard.
The 1980 manual in its introduction states that ‘‘[a]ll
Chevron masters and deck officers are expected to be thor-
oughly familiar with its entire contents and be guided by it
uniformly, without exception.’’ It also states that the 1980
manual is available in a pocket sized edition and each vessel
operated by Respondent should have a few copies to give to
new officers if they do not already have copies.
It is undisputed that the launch captains employed by Re-
spondent on the Standard No. 4 and Chevron Richmond did
not receive copies of the 1980 manual until late in January
1991, 2 months after the Respondent’s withdrawal of rec-
ognition and 2 months after the filing of the charge in this
case, when one of the Respondent’s vessel coordinators em-
ployed at the Richmond Long Wharf gave copies of the 1980
manual to the launch captains and instructed them to place
the manuals aboard their tugboats. Respondent offered no ex-
planation for its failure to make the 1980 manual available
to the launch captains prior to that late date.
In 1986, Respondent’s employee relations staff, in con-
junction with Captain Croce, the manager of Respondent’s
United States ports, and in conjunction with one of Respond-
ent’s vessel coordinators employed at the Richmond Long
Wharf, formulated a ‘‘Job Summary’’ for the position of
‘‘Tug Captain, Tugboat STANDARD 2,’’ to replace the pre-
vious job description for that position.12 This ‘‘Job Sum-
mary,’’ herein referred to as the 1986 Job Summary, was ap-
proved by Captain Croce on November 6, 1986. It describes
69CHEVRON U.S.A.
the ‘‘Functions and Objectives’’ of the position of ‘‘Tug
Captain, Tugboat STANDARD 2,’’ as follows:
This position is in command of the Tugboat
STANDARD 2 and is responsible for its operation and
readiness. Cons the vessel and directs its crew to ensure
safe, pollution-free and efficient marine operations. Re-
sponsible for all vessel maintenance.
A. Ensures that STANDARD 2 is at all times sea-
worthy, fully manned and properly stored for efficient,
economical operation.
B. Ensures proper maintenance of deck and hull
through assignment and follow-up of crew work. Ob-
tains proper engine maintenance to keep vessel running
with minimum downtime. Works with Docking Master
and Richmond Marine Machine Shop Supervisor to
develope schedules for machinery maintenance
compatable with operational requirements.
C. Ensures vessel stores are adequate for scheduled
operations and are of appropriate quality. Originates
requisitions for necessary consumable materials.
D. Supervises crew of STANDARD 2. Assigns crew
work and oversees crew work schedule, ensuring vessel
is fully manned and personnel are qualified to perform
tasks. Appraises STANDARD 2 crew and recommends
personnel actions as appropriate.
There is no evidence that the launch captains were ever
shown a copy of the 1986 Job Summary or informed ver-
bally of its contents. Quite the opposite, the testimony of
Daniel Tynan, Fred Modugno, and Claude Chandler, war-
rants the finding that the launch captains have never been in-
formed of the 1986 Job Summary or its contents.
Tynan, employed by Respondent as a launch captain since
May 1989 on both the Chevron Richmond and the Standard
No. 4, testified the only instructions given to him about his
job duties were verbal instructions on how to operate the tug-
boats and that the only thing he was ever told about his su-
pervisory relationship to the other crewmembers was that he
was informed by the other captains who trained him that he
was ‘‘in charge of making sure things are safe on the boat’’
and was ‘‘responsible to operate the boat in a safe manner,’’
and further testified that no other instructions were given to
him about his supervisory relationship to the other crew-
members.
Chandler, employed as a launch captain on the tugboats
involved in this case since approximately 1987, testified that
prior to the hearing in this case he had never seen the 1986
Job Summary.
Modugno is employed by Respondent at the Richmond
Long Wharf as its area operation coordinator. He is one of
the first line supervisors over the crewmembers (licensed and
unlicensed) employed on the Chevron Richmond and Stand-
ard No. 4. He testified that in the 1-1/2 years he has occu-
pied that position he has not issued either written or verbal
instructions to the launch captains concerning their authority
as supervisors and admitted that until the hearing in this case
he was ignorant of the existence of the above-described 1986
Job Summary (R. Exh. 6). He testified he first learned of its
existence when Respondent’s Counsel showed him a copy
during the hearing in this case. Respondent did not explain
why, if the 1986 Job Summary was meant to currently apply
to the launch captains employed aboard the Chevron Rich-
mond and/or Standard No. 4, that Modugno was ignorant of
its existence.
Other than the evidence that in January 1991 Respondent
distributed copies of the 1980 Manual to the launch captains
involved in this case, there is no evidence that Respondent
ever told the launch captains—verbally or in writing—what
supervisory authority over the other crewmembers they pos-
sessed or were expected to exercise. When asked by Re-
spondent’s Counsel to give the reason why the launch cap-
tains had not been told what their supervisory responsibilities
were, Captain Croce, the manager of Respondent’s United
States ports, who is the launch captains’ ultimate supervisor,
was not able to give a reason (Tr. p. 445, LL. 7–10).
I reject Respondent’s contention that the 1980 Manual’s
description of the ‘‘masters’’’ duties and responsibilities, and
the 1986 Job Summary for the position of tug captain for
Standard No. 2, establishes the Chevron Richmond’s and
Standard No. 4’s launch captains in November 1990 pos-
sessed some of the supervisory authority set forth in Section
2(11) of the Act. As I have indicated previously, the Board
and courts have consistently refused to give weight to job de-
scriptions that attribute supervisory authority where there is
no independent evidence of its possession or exercise. See,
for example, NLRB v. Security Guard Service, 384 F.2d 143,
149 (5th Cir. 1967) (‘‘Theoretical or paper power will not
suffice’’ to show supervisory status); North Miami Convales-
cent Home, 224 NLRB 1271, 1272 (‘‘The mere use of a title
or the giving a paper authority which is not exercised does
not make an employee a supervisor’’). Here, while the
above-described written job descriptions contain language
which implies or suggests supervisory status, the Respondent,
as I have found supra, failed to establish that the launch cap-
tains herein possess any one of the statutory powers set forth
in Section 2(11) of the Act. In addition, the record as a
whole warrants the conclusion that the description of the job
duties and responsibilities of the Respondent’s ‘‘masters’’ set
forth in the 1980 Manual was not intended to apply to the
launch captains herein and also warrants the conclusion that
while the 1986 Job Summary of the duties of the tug cap-
tains employed on Standard No. 2 may have been intended
to apply to those tug captains, that it was not intended to
apply to the launch captains employed on the Standard No.
4 and Chevron Richmond during November 1990, when Re-
spondent withdrew recognition from the Union.
The evidence establishes that the 1980 Manual was not in-
tended to apply to the launch captains because it was called
to their attention for the first time only after Respondent’s
withdrawal of recognition from the Union and after the com-
mencement of the litigation in this case. This, despite the fact
that the 1980 Manual had been in existence for over 10 years
and was supposed to have been readily available during this
period to all of the ‘‘masters’’ to whom it applied, and they
were supposed to have been thoroughly familiar with its en-
tire contents. Respondent did not explain why, if the 1980
Manual was intended to apply to the launch captains, the
Manual was belatedly called to their attention for the first
time only after the litigation had commenced in this case. In
view of the foregoing circumstances, I find that the descrip-
tion of the job duties and responsibilities of the Respondent’s
‘‘masters’’ set forth in the 1980 Manual was not intended by
Respondent to apply to the launch captains herein.
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The record does not reveal the meaning of ‘‘HR/O personnel,’’
but apparently it refers to Human Resource Office personnel.
14 The record reveals that in the middle and/or latter part of 1991,
Launch Captains Chandler and Gill attended company-sponored sem-
inars held in San Francisco, California, and San Ramon, California,
but there is no record evidence whatsoever to establish that these
seminars were attended only by persons who were supervisors within
the meaning of the Act, or for that matter, were attended only by
persons whom the Respondent perceived to be supervisors.
15 This finding is based on the following: the launch captains’ job
title; the testimony of utilityman Lopez that he regarded the launch
captain as his ‘‘boss’’ and the testimony of deckhand Stevens that
he regarded the launch captain as his ‘‘superior’’ because ‘‘every
place you go, if a captain is a captain he is the boss’’; the testimony
of Launch Captain Tynan that, ‘‘[W]e as captains understand that we
lead the crew. We provide leadership for them like a foreman’’; and,
lastly, on the evaluation forms which Respondent furnishes to the
launch captains to appraise the work of the unlicensed crewmembers,
the Respondent asks the launch captains to state ‘‘how long have
you supervised the employee’’ and to ‘‘indicate your attitude toward
having the employee under your command.’’ (Emphasis added.)
16 As I have found supra, it was only after the commencement of
the litigation in this case that one of the launch captains involved
in this case attended a meeting which may have been attended solely
by persons who are statutory supervisors.
17 As I have found supra, the only indication in the record that the
launch captains were given any kind of instruction about their job
Likewise, the evidence warrants the inference that the
1986 Job Summary of the duties of the tug captains em-
ployed on Respondent’s Standard No. 2 was not intended to
apply to the launch captains, because the launch captains
were never shown a copy of this job summary or otherwise
informed of its contents. Also significant is the fact that Area
Operation Coordinator Modugno, responsible for supervising
the work of the launch captains, was not even aware of the
existence of the 1986 Job Summary or its contents. Respond-
ent failed to explain why, if the 1986 Job Summary was
meant to apply to the launch captains, they have never been
advised of its contents or shown a copy or why their imme-
diate supervisor, Modugno, was not even aware of its exist-
ence. The foregoing circumstances, plus the failure of Re-
spondent to present any evidence—verbal or documentary—
that the 1986 Job Summary was meant to apply currently to
the launch captains employed on the Chevron Richmond and
Standard No. 4, warrants the inference that the 1986 Job
Summary was not intended to apply to those launch captains.
6. Respondent’s contention that the launch captains’ job
titles, their attendance at supervisory meetings, and
their perception by respondent and the other
crewmembers as supervisors, establishes their
supervisory status
Respondent urges that the above-described secondary indi-
cia—factors not expressly listed in Section 2(11) of the
Act—show that the launch captains are statutory supervisors.
However, ‘‘secondary indicia of supervisory status . . . are
in themselves not controlling. Bay Area-Los Angeles Express,
275 NLRB 1063, 1080 (1985), quoting Memphis Furniture
Mfg. Co., 232 NLRB 1018, 1020 (1977). Accord: St.
Alphonsus Hospital, 261 NLRB 620, 632 (1982). Thus,
where, as here, there is no showing that the launch captains
possess any of the authority set forth in Section 2(11), the
several miscellaneous secondary indicia replied upon by Re-
spondent are insufficient to support a finding of supervisory
status. Moreover, a close examination of the alleged second-
ary indicia relied upon by Respondent reveals there is a lack
of evidence that the launch captains attend supervisory meet-
ings, and that the other alleged secondary indicia are offset
by other factors.
The sole evidence that indicates that any of the launch
captains may have attended meetings held exclusively for
employees of Respondent who are statutory supervisors, is
the testimony of Launch Captain Claude Chandler. He testi-
fied that in May 1991, he attended a 1-day labor relations
seminar held in Point Wells, Washington, and attended it
pursuant to instructions contained in a written memorandum
dated May 3, 1991, which is captioned, ‘‘Industrial Dis-
cipline for Supervisors as well as selected HR/O person-
nel.’’13 He also testified it was a companywide seminar, cov-
ering the entire West Coast of the United States, and that no
unlicensed crewmembers were present and that he recognized
other ‘‘captains’’ who were there. Launch Captain Chandler
was not asked and did not testify whether any of these other
‘‘captains’’ whom he recognized were launch captains em-
ployed on either the Chevron Richmond or Standard No. 4.
The other two launch captains who testified in this proceed-
ing, John Gill and Daniel Tynan, testified in effect that they
did not attend this seminar.14
In short, the record establishes that after withdrawing rec-
ognition from the Union as the launch captains’ exclusive
collective-bargaining representative and after the litigation in
this case had commenced, Respondent sent one of its launch
captains to a seminar attended by company personnel who
may have been supervisors within the meaning of the Act.
Respondent failed to show that prior to that time any of its
launch captains had attended supervisory or managerial meet-
ings and failed to explain the lack of such evidence. In view
of the foregoing circumstances, Respondent is in no position
to rely on the attendance of the launch captains at super-
visory meetings to support its claim of supervisory status
herein. Rather, counsel for the General Counsel, in my opin-
ion, is in a position to urge that the lack of evidence showing
that the launch captains attended supervisory meetings prior
to the commencement of the litigation in this case, warrants
the inference that they were not viewed by Respondent in the
same light as its employees who are statutory supervisors.
However, I agree with Respondent that the record estab-
lishes some of the launch captains perceived themselves to
be supervisors, as did Respondent’s management, and some
of the other crewmembers employed on the Chevron Rich-
mond and Standard No. 4 during the time material.15 How-
ever, as noted previously, where, as here, there is no showing
that the launch captains possess any of the authorities enu-
merated in Section 2(11) of the Act, secondary indicia such
as job titles and the perception of supervisory status are in-
sufficient to support a finding of supervisory status as that
term is defined by Section 2(11). This is especially true in
the instant case because of the following: the lack of evi-
dence that the launch captains attend supervisory meetings;16
the evidence that the launch captains, like the other crew-
members, are paid for their overtime work whenever they are
required to work scheduled overtime; the lack of evidence
that the launch captains were ever informed, expressly or by
implication, that they possess any of the authorities set forth
in Section 2(11) of the Act;17 the lack of evidence that the
71CHEVRON U.S.A.
duties and responsibilities, insofar as they relate to supervising the
other crew members, occurred after the commencement of the litiga-
tion in the instant case, when they were issued copies of the 1980
Manual, which, as I have found supra, was never meant to apply to
the launch captains.
18 Although the record reveals that the launch captains’ job per-
formances are evaluated in writing, not one of those evaluations was
introduced into evidence, thus there is no evidence that their evalua-
tions include an appraisal of supervisory duties. This plus the fact
that the launch captains’ evaluations are done by Respondent’s pilot,
Captain Quan, rather than by one of the operation coordinators, war-
rants the inference that the launch captains are not held accountable
for the performance or work product of the other crewmembers.
19 Respondent also argues that even if the launch captains are not
statutory supervisors, it was still privileged to refuse to recognize
and bargain with the Union as the representative of the launch cap-
tains employed on the Chevron Richmond because another labor or-
ganization, the MMP, not the Union, had been the recognized bar-
gaining representative of the launch captains employed on the Chev-
ron Richmond. This argument lacks merit for the reasons set forth
previously in this decision.
20 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
launch captains have been held accountable or responsible
for the work performance or the work product of the other
crewmembers;18 and, as found supra, when Commissioner
Carpenter of the FMCS read Section 2(11) of the Act to Re-
spondent’s representatives and asked them if the launch cap-
tains exercised any of the authority set forth therein, Re-
spondent’s representatives answered in the negative. Thus,
while there are factors which indicate Respondent and some
of the launch captains and unlicensed crewmembers perceive
the launch captains to be supervisors, there are also other
factors which indicate Respondent does not perceive that the
launch captains are supervisors as that term is defined in
Section 2(11) of the Act.
Nor are the launch captains statutory supervisors because
they are the highest ranking employees on the Chevron Rich-
mond and Standard No. 4. The absence of statutory super-
visors on the boats do not confer any greater authority upon
the launch captains, particularly since the shore-based super-
visors may be contacted at any time by radio or telephone.
NLRB v. Times Mirror Corp., 790 F.2d 1273, 1279 (5th Cir.
1986) (absence of admitted supervisors from television sta-
tion does not show that workers must be supervisors, where
admitted supervisors were ‘‘available for consultation’’ even
though not present at station); Tri-County Electric Coopera-
tive, 237 NLRB 968, 969 (1978) (jobsite line foremen were
employees, even though admitted supervisor appeared at the
jobsite ‘‘as infrequently as once a month,’’ because employ-
ees had a ‘‘two-way radio to contact the admitted supervisor
when ‘unusual circumstances’ arose’’). See also Beth Israel
Medical Center, 229 NLRB 295, 296 (1977), and NLRB v.
Monroe Tube Co., 545 F.2d 1320 (2d Cir. 1976).
7. Ultimate conclusions as to the supervisory status of
the launch captains
I conclude for the reasons set forth supra, that Respondent
has failed to establish that the launch captains employed by
Respondent on the Standard No. 4 and the Chevron Rich-
mond possess any of the indicia of supervisory authority enu-
merated in Section 2(11) of the Act. Accordingly, I find they
are not supervisors within the meaning of Section 2(11) of
the Act.
E. Conclusionary Findings
As I have found supra, Respondent operates two inland
vessels on the San Francisco Bay and its tributaries which
employ launch captains and, as I have also found supra, all
of the launch captains employed by Respondent on inland
vessels operating on San Francisco Bay and its tributaries,
excluding supervisors as defined by Section 2(11) of the Act,
constitute an appropriate bargaining unit.
As I have found supra, the Union is the exclusive rep-
resentative of the launch captains in the aforesaid unit and
was recognized as such by the Respondent. However, as I
have also found, on November 27, 1990, Respondent with-
drew recognition from, and refused to bargain with, the
Union as the exclusive representative of the launch captains
employed in the aforesaid unit. Respondent takes the position
that it was privileged to withdraw recognition from, and
refuse to bargain, with the Union because the launch captains
are statutory supervisors.19
Having found, supra, that Respondent failed to establish
that the launch captains employed on the Standard No. 4 and
the Chevron Richmond are supervisors within the meaning of
Section 2(11) of the Act, I further find, in view of the cir-
cumstances set forth above, that by withdrawing recognition
from, and refusing to bargain with, the Union as the exclu-
sive representative of the launch captains in the aforesaid
unit, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Chevron U.S.A., Inc., Richmond, Califor-
nia, and its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with the
Union as the exclusive representative of its employees in the
following appropriate unit, regarding wages, rates of pay,
hours of employment, and other terms and conditions of em-
ployment:
All of the launch captains employed by Respondent on
inland vessels operating in San Francisco Bay and trib-
utaries, excluding supervisors as defined by the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the right guar-
anteed them by Section 7 of the Act.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the above-described ap-
propriate unit concerning wages, rates of pay, hours of em-
ployment, and other terms and conditions of employment
and, if an understanding is reached, embody the understand-
ing in a signed agreement.
(b) Post at its facility at the Richmond Long Wharf in
Richmond, California, and aboard the Chevron Richmond
and Standard No. 4, copies of the attached notice marked
‘‘Appendix.’’21 Copies of the notice, on forms provided by
the Regional Director for Region 20, after being signed by
the Respondent’s authorized representatives, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain collectively
with Sailors’ Union of the Pacific, AFL–CIO as the exclu-
sive representative of our employees in the following appro-
priate unit, regarding wages, rates of pay, hours of employ-
ment, and other terms and conditions of employment:
All of our launch captains employed on inland vessels
operating in San Francisco Bay and tributaries, exclud-
ing supervisors as defined by the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with the above-
named labor organization as the exclusive representative of
our employees in the above-described appropriate unit, re-
garding wages, rates of pay, hours of employment, and other
terms and conditions of employment and, if an understanding
is reached, embody it in a written agreement.
CHEVRON U.S.A., INC.