FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 26, 2001 Decided May 1, 2001 

No. 00-1183

Brusco Tug & Barge Co., 
Petitioner

v.

National Labor Relations Board, 
Respondent

On Petition for Review and Cross-Application 
for Enforcement of an Order of the 
National Labor Relations Board

Thomas M. Triplett argued the cause for petitioner. With 
him on the brief was Karen O'Kasey.

Christopher W. Young, Attorney, National Labor Relations 
Board, argued the cause for respondent. With him on the 
brief were Leonard R. Page, General Counsel, Aileen A. 
Armstrong, Deputy Associate General Counsel, and Margaret 
A. Gaines, Supervisory Attorney.

Before: Williams, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Rejecting petitioner's argument that 
mates on its tugboats are supervisors within the meaning of 
the NLRA, the National Labor Relations Board found that 
petitioner, by interfering with its mates' right to organize, 
committed an unfair labor practice. Because the Board failed 
adequately to explain its decision, we deny enforcement and 
remand for further proceedings.

I

Section 8(a)(1) of the National Labor Relations Act prohib-
its employers from interfering with their employees' right to 
organize. 29 U.S.C. s 158(a)(1) (referring to the rights guar-
anteed in id. s 157). The Act's definition of protected "em-
ployee[s]" excludes "any individual employed as a supervisor." 
Id. s 152(3). A "supervisor" is:

any individual having authority, in the interest of the 
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, 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 au-
thority is not of a merely routine or clerical nature, but 
requires the use of independent judgment.

Id. s 152(11).

Petitioner Brusco Tug & Barge Co. tows and transports 
cargo along the West Coast. Brusco tugs tow log, chip and 
sand barges, as well as target sleds for the United States 
Navy. Approximately twenty-five tugs operate out of Brus-
co's home port in Cathlamet, Washington, performing both 
inland and offshore jobs. Manned by a master (also called a 
captain) and one deckhand, inland tugs primarily perform day 
jobs on the Columbia River. Offshore tugs--the focus of this 
case--take thirty-day trips along the Pacific coast, ranging as 
far north as Vancouver and as far south as Mexico. Offshore 

crews include a master, a mate, an engineer and one (or 
sometimes two) deckhands.

While at sea, offshore crews typically work six-hour shifts 
assigned by the master. The master and a deckhand or 
engineer alternate shifts with the mate and the other crew-
men. Some tasks require participation of the entire crew; 
for instance, all crewmen work together to tie a barge to the 
tugboat. While the master maneuvers the boat, the mate 
directs the crewmen on the deck, coordinating the passing of 
the lines. The mate also selects a crewman to board the 
barge and pass its towing bridle to crewmen on the tug.

In October 1999, while the International Organization of 
Masters, Mates, and Pilots was engaging in an organizing 
campaign at Brusco's home port, the company's owner, Bo 
Brusco, sent a letter to his masters and mates, stating that 
"masters and mates are management" and would be terminat-
ed if they engaged in any organizing activity. Claiming that 
the letter interfered with the masters' and mates' right to 
organize, the union filed an unfair labor practice charge.

Shortly thereafter, an NLRB hearing officer heard evi-
dence in a different matter regarding Brusco--defining the 
collective bargaining unit for the purposes of the upcoming 
union election. Brusco Tug & Barge Co. v. Int'l Org. of 
Masters, Mates, & Pilots, No. 19-RC-13872 (Nov. 26, 1999). 
Over Brusco's objection, the officer ruled that mates should 
be included in the bargaining unit. Although recognizing that 
mates assign and direct other crewmen during tie-ups, he 
thought such actions required no independent judgment with-
in the meaning of NLRA section 2(11) and were therefore not 
indicative of supervisory status. Id. at 6-7. He agreed with 
Brusco, however, that its masters were supervisors and there-
fore ineligible for inclusion in the bargaining unit. Id. at 6. 
A divided Board rejected Brusco's request for review of the 
hearing officer's determination.

A few months later, the Board addressed the union's still-
pending charge that Bo Brusco's October 1999 letter amount-
ed to an unfair labor practice. Not disputing that its letter 
interfered with the mates' ability to organize, Brusco renewed 

its argument that mates are statutory supervisors who lack 
the right to organize under the Act. Because the Board had 
already determined that Brusco's mates are employees within 
the meaning of the statute, it granted summary judgment 
against the company. Brusco Tug & Barge Co., 330 N.L.R.B. 
No. 169 (April 11, 2000), 2000 WL 420606, at *3.

Insisting that its mates are supervisors, Brusco petitions 
for review. The company argues that its mates perform a 
wide range of supervisory tasks, and that the Board imper-
missibly departed from precedent in deeming them employ-
ees. The Board cross-applies for enforcement.

II

"Because of its expertise, the Board necessarily has a large 
measure of informed discretion" in determining if a worker is 
a supervisor. Passaic Daily News v. NLRB, 736 F.2d 1543, 
1550 (D.C. Cir. 1984) (internal citation omitted). We will 
overturn the Board's finding that Brusco's mates are statuto-
ry employees only if it is contrary to law, inadequately 
reasoned, see NLRB v. Health Care & Retirement Corp. of 
America, 511 U.S. 571, 576 (1994), or unsupported by sub-
stantial evidence, Passaic Daily News, 736 F.2d at 1550. In 
this circuit, moreover, the burden of proving supervisory 
status rests on the party that asserts it--here, Brusco. See 
Beverly Enters.--Mass., Inc. v. NLRB, 165 F.3d 960, 962 
(D.C. Cir. 1999). Unless Brusco demonstrates otherwise, the 
Board may thus presume that the mates are employees 
rather than supervisors.

Citing Board decisions finding tugboat captains and mates 
to be supervisors, Brusco argues that mates, as a category, 
may not be considered employees. We disagree. Because 
the issue of supervisory status is heavily fact-dependent and 
job duties vary, per se rules designating certain classes of 
jobs as always or never supervisory are generally inappropri-
ate. See Ky. River Comty. Care, Inc. v. NLRB, 193 F.3d 444, 
453 (6th Cir. 1999), cert. granted, 121 S.Ct. 27 (2000). To 
meet its burden therefore, Brusco must do more than cite 
other cases finding mates to be supervisors; it must prove 

that its mates actually perform one or more of the superviso-
ry tasks listed in NLRA section 2(11), and that, in doing so, 
they use "independent judgment."

Brusco next relies on its "Responsible Carrier Operation 
Plan," a voluntary plan drafted as part of a safety program 
sponsored by the American Waterways Association. Accord-
ing to Brusco, because the plan provides that "in [the mas-
ter's] absence, his relief, the mate, is the master," Pet'r Br. at 
7, and because the hearing officer found that Brusco's mas-
ters were supervisors (because they use independent judg-
ment in recommending transfer and promotion, as well as 
directing and assigning crewmen), its mates are also supervi-
sors. Responding, the Board disputes not only that the 
plan's provisions give mates all authority granted to masters, 
but also that the plan, which the company intended only as a 
"guideline," delegates any authority at all. Hearing Tr. at 
163, Brusco Tug & Barge Co., No. 19-RC-13872. In any 
event, as the Board points out in its brief, paper authority 
alone does not make a worker a supervisor. See Beverly 
Enters., 165 F.3d at 962 (citing Food Store Employees Union, 
Local 347 v. NLRB, 422 F.2d 685, 690 (D.C. Cir. 1969)). 
Brusco must provide specific evidence that its mates actually 
exercise supervisory authority.

Before the hearing officer, Brusco proved that its mates 
perform two of the supervisory tasks listed in the statute: 
"assign[ing]" and "direct[ing]" crewmen during the tie-up. 
Brusco Tug & Barge Co., No. 19-RC-13872, at 6. Because 
the hearing officer considered these tasks "routine" and not 
to "require[ ] the use of independent judgment," 29 U.S.C. 
s 152(11), however, he rejected Brusco's argument that the 
mates were statutory supervisors. Brusco Tug & Barge Co., 
No. 19-RC-13872, at 6-7.

Direction

The "direction of the 'work force' (two or possibly three 
[crewmen])," the hearing officer concluded, "hardly indicates 
the need for independent judgment beyond that of an experi-
enced hand." Id. In its brief before us, the Board elabo-

rates: "[t]hose orders simply embody the mates' greater 
skills and experience, not managerial prerogatives." Resp't 
Br. at 17.

Brusco argues that the Board's decision conflicts with two 
cases in which the Board found tugboat workers to be super-
visors based on their direction of crewmen: Local 28, Inter-
national Organization of Masters, Mates & Pilots, 136 
N.L.R.B. 1175 (1962), enforced, 321 F.2d 376 (D.C. Cir. 1963) 
and Bernhardt Bros. Tugboat Serv., Inc., 142 N.L.R.B. 851, 
enforced, 328 F.2d 757 (7th Cir. 1963). Neither the hearing 
officer nor the Board addressed these two cases. While the 
Board need not address every precedent brought to its 
attention, it must provide an explanation where its decisions 
appear to be "on point." See Gilbert v. NLRB, 56 F.3d 1438, 
1448 (D.C. Cir. 1995); see also id. at 1445-48; New England 
Grain & Feed Council v. ICC, 598 F.2d 281, 285 (D.C. Cir. 
1979) ("While we are somewhat disturbed by the Commis-
sion's failure to explain why [an asserted precedent] is inap-
plicable here, that case is sufficiently distinguishable to as-
sure that the Commission's oversight does not present a 
danger that it has arbitrarily departed from its own prece-
dents.").

According to Brusco, Local 28 and Bernhardt Brothers are 
both on point because, it claims, the direction given by the 
workers in the two cases is similar to that given by Brusco's 
mates. In Local 28, the Board found that mates' direction of 
crewmen "during locking and docking operations and in 
emergency situations ... involve[d] the exercise of indepen-
dent judgment in the issuance of orders to deckhands and 
other deck employees." Id. at 1203. The direction provided 
by Local 28's mates--coordinating crewmen in passing lines, 
id. at 1192--does indeed resemble the direction given by 
Brusco's mates. In its appellate brief, the Board attempts to 
distinguish Local 28, arguing that the mates in that case "had 
authority to issue orders to employees under pain of disci-
pline." Resp't Br. at 24. This is no real distinction. As we 
read the hearing officer's findings, surely the crewmen on 
Brusco's tugs were not free to ignore mates' commands. 
Applying the definition of supervisor in NLRA Section 2(11), 
the officer conceded that Brusco's mates "direct[ed]" crew-

men, characterizing them as "boss[es] on deck." Brusco Tug 
& Barge Co., No. 19-RC-13872, at 3, 6. He based his 
conclusion that Brusco's mates are statutory employees not 
on any suggestion that their direction is ineffective, but on his 
view that their actions require no independent judgment. 
Moreover, the Local 28 Board expressly declined to base its 
determination that the mates were supervisors on their power 
to implement or recommend discipline. 136 N.L.R.B. at 1203. 
In that case, the authority to discipline came solely from the 
master: "[o]nly the master may enforce discipline on his 
boat." Id. at 1193.

Similarly, in Bernhardt Brothers, the hearing officer found 
that Bernhardt's pilots were supervisors because while on 
watch they "give[ ] orders to the crew in connection with the 
tow, the lookout, and the amount of power needed." 142 
N.L.R.B. at 854. Although this, too, appears similar to 
Brusco's mates responsibilities, the Board's brief makes no 
serious effort to distinguish Bernhardt Brothers. It asserts 
only that "all such cases are necessarily fact specific" and that 
there is no evidence that Brusco's mates' direction occurs 
while they are on watch, Resp't Br. at 21 n.5, giving no reason 
why direction on watch should be different from direction 
exercised at other times.

Because it is "axiomatic that an agency adjudication must 
either be consistent with prior adjudications or offer a rea-
soned basis for its departure from precedent," Conagra, Inc. 
v. NLRB, 117 F.3d 1435, 1443 (D.C. Cir. 1997) (internal 
citation omitted), we will remand for the Board to explain 
why its decision in this case is not inconsistent with Local 28 
and Bernhardt Brothers, or, alternatively, to justify its appar-
ent departures.

The Board's approach to the direction issue on remand will 
doubtless be affected by the Supreme Court's forthcoming 
decision in NLRB v. Kentucky River Community Care, Inc., 
No 99-1815 (argued Feb. 21, 2001). There, the Sixth Circuit 
had rejected the Board's argument that nurses are not super-
visors because their direction of nurse's aides arises "by 
virtue of their training and expertise, not because of their 
connection with 'management.' " Ky. River Comty. Care, 
Inc. v. NLRB, 193 F.3d 444, 453 (6th Cir. 1999). The 

Supreme Court granted certiorari to consider the viability of 
the Board's expert employee approach, NLRB v. Ky. River 
Comty. Care, Inc., 121 S.Ct. 27 (2000), precisely the theory 
the hearing officer relied on in finding that Brusco's mates' 
direction of crewmen involved no independent judgment.

Assignment

The hearing officer found that the mates' assignment re-
sponsibilities were not indicative of supervisory status, stat-
ing: "[The mates] do assign work, but there is no indication it 
requires independent judgment. Their heaviest 'assignment' 
option seems to be selecting the more agile of two or three 
crewmen to go aboard a barge for the attachment of the 
towing bridle." Brusco Tug & Barge Co., No. 19-RC-13872, 
at 6. The officer apparently based this conclusion on the 
testimony of one of Brusco's masters, who stated that both he 
and the mate assign crewmen during tie-up:

Well, we have some deck hands around that--say they 
cook really well and they paint really well, but they've 
got a bum knee, so that's the deck hand you don't want 
to have running up and down the barge. So you keep 
him aboard to handle the lines on board. There's other 
deck hands that are very athletic, but they can't cook 
very well, so those are the ones you send up on the barge 
to do the work up there. You know, it's however the job 
fits them, that they get the job.

Hearing Tr. at 125, Brusco Tug & Barge Co., 
No. 19-RC-13872. According to the Board, determining who 
has a "bum knee" or who cooks well is so simple that 
assignment based on these factors requires the exercise of no 
independent judgment: "[s]uch an obvious choice falls far 
short of the type of assignment of work based on an indepen-
dent assessment of an employee's skills that would require 
the Board to find that a mate was a supervisor." Resp't Br. 
at 16.

Although this approach may well be permissible, we have 
some doubt about the Board's reasoning. Courts typically 
consider assignment based on assessment of a worker's skills 
to require independent judgment and, therefore, to be super-

visory. See Alois Box Co., Inc. v. NLRB, 216 F.3d 69, 73-75 
(D.C. Cir. 2000) (upholding the Board's finding of supervisory 
status based in large part on the fact that the worker made 
"his own assessments of employees' skills or expertise"); 
Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259, 1265 (11th 
Cir. 1999); American Diversified Foods v. NLRB, 640 F.2d 
893, 896 (7th Cir. 1981); NLRB v. Pilot Freight Carriers, Inc. 
558 F.2d 205, 209-210 (4th Cir. 1977). But see Providence 
Alaska Med. Ctr. v. NLRB, 121 F.3d 548, 552 (9th Cir. 1997) 
(finding no independent judgment even though assessment of 
skills required). This appears to be the rule in at least one 
circuit even where, as here, the assessment rests on quite 
simple factors. See Dynamic Mach. Co. v. NLRB, 552 F.2d 
1195, 1201 (7th Cir. 1977) (noting that the Board found a 
worker a supervisor despite the fact that his assignment 
"options were limited and only a few factors needed to be 
taken into account in assigning work"); NLRB v. Adam & 
Eve Cosmetics, Inc., 567 F.2d 723, 728-729 (7th Cir. 1977) 
(overturning the Board's determination that a worker was not 
a supervisor, reasoning: "That the choices [the worker] had 
in assigning and directing work were severely circumscribed 
by the menial nature of the tasks performed and the limited 
skills of his coworkers ... does not mean that [he] was not 
called upon to use his own judgment in the course of the 
job."); American Diversified Foods, 640 F.2d at 896 (over-
turning ALJ determination that worker was not a supervisor, 
despite fact that assignment operated within "common sense 
limitations") But see NLRB v. Hilliard Development Corp., 
187 F.3d 133, 146 (1st Cir. 1999) (upholding the Board's 
determination that "although the nurses consider the needs of 
individual residents, the matching of skills to requirements 
was essentially routine.")

Brusco cites none of these cases, however, nor does it even 
seem to challenge this aspect of the Board's reasoning. Not 
only does Brusco devote only two sentences in the fact section 
of its brief to assignment (and these do no more than point 
out that Brusco's mates "assess the relative ability and physi-
cal capabilities of the deckhands" in assigning employees, 
Pet'r Br., at 9-10), but more important, Brusco failed to raise 
this issue before the Board. See 29 U.S.C. s 160(e) ("No
objection that has not been urged before the Board ... shall 
be considered by the court"). We thus treat this issue as 
waived.

III

We deny enforcement and remand to the Board for further 
proceedings consistent with this opinion.

So ordered.