Captains are not supervisors, NLRB says


#21

[QUOTE=Kennebec Captain;164874]The language is intended to be used as a test to determine who is management. Using the test to come up with nonsensical results just demonstrates that the intended meaning is being misconstrued. Lawyerly parsing of words to get the opposite meaning from intent is what lawyers get paid to do.

The owner / operator of a fishing vessel that independently selects the fishing grounds, hires and fires crew determines sailing times, decides on major purchases etc could be considered management. A tug captain doesn’t operate independently, he follows instructions from the office, aka management.

It’s obvious that the captain and mates of a tug are not part of company managment in any meaningful, common sense way.[/QUOTE]

Well said KC!


#22

Who uses their independent judgement and supervises the day to day operation of the vessel? No satellite phone, incommunicado for days/weeks who is running the ship? How can one be the master of his ship with the ultimate authority over everything and everyone on board and not be considered as a supervisor? This is laughable that anyone of us here could even legitimize this argument that captains are not management. This explanation makes it seem that it is a free for all with no one in charge and the captain is just a driver.


#23

[QUOTE=Fraqrat;164880]Who uses their independent judgement and supervises the day to day operation of the vessel? No satellite phone, incommunicado for days/weeks who is running the ship? How can one be the master of his ship with the ultimate authority over everything and everyone on board and not be considered as a supervisor? This is laughable that anyone of us here could even legitimize this argument that captains are not management. This explanation makes it seem that it is a free for all with no one in charge and the captain is just a driver.[/QUOTE]
This reminds me of the old saying" The master is the ultimate authority on the ship and makes the decision to sail but the owner decides who is the master"


#24

[QUOTE=Kennebec Captain;164874]The language is intended to be used as a test to determine who is management. Using the test to come up with nonsensical results just demonstrates that the intended meaning is being misconstrued. Lawyerly parsing of words to get the opposite meaning from intent is what lawyers get paid to do.

The owner / operator of a fishing vessel that independently selects the fishing grounds, hires and fires crew determines sailing times, decides on major purchases etc could be considered management. A tug captain doesn’t operate independently, he follows instructions from the office, aka management.

It’s obvious that the captain and mates of a tug are not part of company managment in any meaningful, common sense way.[/QUOTE]

if it were obvious, then the test should bear that out. The test is if the individual or group of individuals in question engage in any one of the tasks, using independent judgement and in the interest of the employer. Your fishing vsl example is a very easy one, but it is a more complicated situation for the tug (and other vsls) since they very clearly do engage in such actions and the marine environment should never be considered ‘routine and clerical’ in nature! This unique operating environment combined with a shipboard management based in historically mandated absolutes concerning leadership and accountability presents a big challenge to this test (and the Board), even on a tug case where close supervision of managerial personnel are present in the operation.


#25

“How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.”

― Abraham Lincoln

I understand that if you torture the meaning enough you can get the results you want. But how many tug boat mates are under the illusion they are management? We all know who management is, they are not out on the tugs standing watch.


#26

[QUOTE=Kennebec Captain;164894]I understand that if you torture the meaning enough you can get the results you want. But how many tug boat mates are under the illusion they are management? We all know who management is, they are not out on the tugs standing watch.[/QUOTE]

We’re not talking about mates. I can see them not being supervisors. We’re talking about the master and the related idea that it is possible for a vessel to be without a supervisor defined per the terms of this law. I don’t think I’m torturing it, it’s a broad categorization and subject to debate–which is why there’s a board and a further appeal process to the supreme court–who apply exactly the reasoning I described. If we ‘all know’ who management are seems the congress could put down something with less ambiguity.


#27

[QUOTE=Jamesbrown;164895]We’re not talking about mates. I can see them not being supervisors. We’re talking about the master and the related idea that it is possible for a vessel to be without a supervisor defined per the terms of this law. I don’t think I’m torturing it, it’s a broad categorization and subject to debate–which is why there’s a board and a further appeal process to the supreme court–who apply exactly the reasoning I described. If we ‘all know’ who management are seems the congress could put down something with less ambiguity.[/QUOTE]

You’re right, the mates were considered management until a 2013 ruling by the NLRB. But the mates were no more management before 2013 then after and the wording hasn’t changed. The board just decided not to call a tail a leg. Same with the captains.

The battle may be fought out in the courts but it’s a political issue at the root. Once the R’s get some more seat on the board we are all going to find they we are “management” in name only once again.


#28

[QUOTE=Kennebec Captain;164874]The language is intended to be used as a test to determine who is management. Using the test to come up with nonsensical results just demonstrates that the intended meaning is being misconstrued. Lawyerly parsing of words to get the opposite meaning from intent is what lawyers get paid to do.

The owner / operator of a fishing vessel that independently selects the fishing grounds, hires and fires crew determines sailing times, decides on major purchases etc could be considered management. A tug captain doesn’t operate independently, he follows instructions from the office, aka management.

It’s obvious that the captain and mates of a tug are not part of company managment in any meaningful, common sense way.[/QUOTE]

Being a Master does not preclude you from being “Management”. But, considering a small tug, I can agree. Even the new STCW Leadership and Managerial Skills course would not apply.


#29

[QUOTE=anchorman;164903]Being a Master does not preclude you from being “Management”. But, considering a small tug, I can agree. Even the new STCW Leadership and Managerial Skills course would not apply.[/QUOTE]

Yes, a captain can manage, supervise, con, navigate and/or control the ship all day long but that’s got nothing to do with management at the company. It’s done IAW regulations, procedures etc.


#30

[QUOTE=Kennebec Captain;164905]Yes, a captain can manage, supervise, con, navigate and/or control the ship all day long but that’s got nothing to do with management at the company. It’s done IAW regulations, procedures etc.[/QUOTE]

As always, it will depend on the company or entity, and how the SMS is set-up if applicable. The entity can be centralized on the vessel. Some charter yachts are an example where the management company is actually hired by the Master at the discretion of the owner. Some drilling companies specifically designate vessel line-management for MAJEX and CAPEX expenditures, decisions made by Masters/OIMs that influence asset value to the shareholders - not necessarily part of day-to-day operations.


#31

It is typical for common words and phrases to have different legal meanings for different purposes under the law.

Obviously, captains, mates, and bosuns “manage” onboard tasks and are “managers” in the practical sense onboard.

However, that does not mean that they are corporate managers, or managers for the purposes of federal labor law. In point of fact, the NLRB just ruled that they are not managers under federal labor law. Unless someone can get that overturned on appeal, that is now the law.


#32

[QUOTE=anchorman;164907]As always, it will depend on the company or entity, and how the SMS is set-up if applicable. The entity can be centralized on the vessel. Some charter yachts are an example where the management company is actually hired by the Master at the discretion of the owner. Some drilling companies specifically designate vessel line-management for MAJEX and CAPEX expenditures, decisions made by Masters/OIMs that influence asset value to the shareholders - not necessarily part of day-to-day operations.[/QUOTE]

I would say that on drillships the Master would definitely be considered management and supervisors unless they still have that screwed up division between Master and OIM. There was a major company that had Masters with a license to operate the vessel and in many cases an OIM license but they also had a drilling guy with an OIM license who was for all intents and purposes the management when on location. Left over jack-up mentality BS and a constant bone of contention. Hopefully that has passed by the way.


#33

[QUOTE=anchorman;164907]As always, it will depend on the company or entity, and how the SMS is set-up if applicable. The entity can be centralized on the vessel. Some charter yachts are an example where the management company is actually hired by the Master at the discretion of the owner. Some drilling companies specifically designate vessel line-management for MAJEX and CAPEX expenditures, decisions made by Masters/OIMs that influence asset value to the shareholders - not necessarily part of day-to-day operations.[/QUOTE]

Now that I think about it APL had something like that. The captain had to track costs profits etc. Except for that I’ve never seen captains considered company management. Of course some senior captains were able to advise the office on matters nautical. The big money goes into engineering anyway. The chief talks to them as much or more then I do. I think they just take for granted the captains are going to keep the ship on schedule and out of trouble the best they can.


#34

[QUOTE=tengineer1;164912]I would say that on drillships the Master would definitely be considered management and supervisors unless they still have that screwed up division between Master and OIM. There was a major company that had Masters with a license to operate the vessel and in many cases an OIM license but they also had a drilling guy with an OIM license who was for all intents and purposes the management when on location. Left over jack-up mentality BS and a constant bone of contention. Hopefully that has passed by the way.[/QUOTE]
no
your drilling on a dp vessel i’ll bet the OIM needs to make more decisions than the master of areas the Master has no skill


#35

the only time a master is also manager is where the company org chart clearly shows him answering to the top of the company’s management pyramid and where is declared an “asset manager” as well as the master and given a budget which belongs only to his vessel and he alone is responsible for that budget and overseeing the spending of that money to the operation and maintenance of his ship. In such cases they oversea all shipyards, crew hiring and payroll and even purchasing.

Such master/manager positions however almost never exist in the industry with the exception of yachts.


#36

You’re so full of shit you’re eyes are brown. You’ll split the hairs anyway possible to further your pro Union stance. You’re telling me if some wise ass redneck AB told you to take a flying fuck at a rolling donut you wouldn’t fire his ass on the spot? If I was laid up in the lounge watching soaps you wouldn’t run my ass outta there and tell me to find something to do? Is that not supervising or managing?


#37

[QUOTE=c.captain;164917]the only time a master is also manager is where the company org chart clearly shows him answering to the top of the company’s management pyramid and where is declared an “asset manager” as well as the master and given a budget which belongs only to his vessel and he alone is responsible for that budget and overseeing the spending of that money to the operation and maintenance of his ship. In such cases they oversea all shipyards, crew hiring and payroll and even purchasing.

Such master/manager positions however almost never exist in the industry with the exception of yachts.[/QUOTE]

Terminology is key in any discussion of the NLRB opinion rendered, switching from ‘supervisor’ to ‘manager’…these confuse the issue at hand and that is the statutory definition of ‘supervisor’ for the purposes of the law being discussed–versus any impression, intuition or even common usage. It’s easy to follow the money and say who gets to make decisions and therefore, ‘that’s the supervisor’, but again, this is about melding relatively new labor laws against an age-old tradition of supervision and direction that the maritime trades represent.

The ‘supervisor’ definition, in the non-unanimous decision of the Board in this case did not apply to the tug and master in this situation, but this does not constitute the end of the debate. As the dissenting board member has noted, there is much that went undiscussed and unconsidered. The dissenting member has basically handed an appeal case to anyone wishing to make one, and by reference to the Spentonbush case, made a killer reference since it is a Court decision on the very issue of whether a Master is a supervisor for the purpose of the Act.

In this matter, the decision is persuasive, and all that needs to be said is, “the conclusion is inescapable that Spentonbush’s tug masters exercised authority responsibly to direct their crews in matters that were not merely routine or clerical in nature and that required the use of independent judgment.”

Now, each situation of employment and vessel operation requires a careful consideration of all relevant statutes and crewing and work situations, e.g. there is a decided difference in the laws and operation of a container vsl on international voyages versus a tug in an inside the boundary line voyage and the requisite laws, and therefore duties on the Masters in each case. And so a Board decision should make a careful assay of all laws, and court decisions and consider them closely in any of their own deliberations and decisions.

In this case, there is no discussion of the Spentonbush decision, and how it’s logic would be irrelevant, or misapplied in the current matter save in the dissenting member’s opinion citing it. This seems a bit unreasonable given the obvious relevance of a court weighing in on the matter of a Master being a supervisor for the purpose of the statute. They should at least differentiate the difference in the two situations considered by the Board and the Court. The reason why they didn’t may be found in the Spentonbush decision itself, where the court commented on an Administrative Law Judge deliberation and dismissal of certain presented evidence concerning statutes on the laws affecting Masters, “This evidence was probative and should have been considered. The ALJ’s disregard of it is another example of the practice followed all too often by the Board of rejecting evidence that does not support the Board’s preferred result.”


#38

HOLY SHEEIT!!! We have a sea lawyer in our midst! Well said councilor!


#39

[QUOTE=Fraqrat;164929]HOLY SHEEIT!!! We have a sea lawyer in our midst! Well said councilor![/QUOTE]
It just comes down to the meaning of the word “is”.


#40

[QUOTE=Fraqrat;164922]If I was laid up in the lounge watching soaps you wouldn’t run my ass outta there and tell me to find something to do? Is that not supervising or managing?[/QUOTE]

twood be my greatest supervisory pleasure to supplant a size 12 steel toed Red Wing squarely upon your very delicate posterior as my form of motivational incentive…

now get your goldbricking ass back into your miserable dungeon and don’t come out till I say you can!