On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Before: Edwards, Garland and Roberts, Circuit Judges.
The opinion of the court was delivered by: Edwards, Circuit Judge
Opinion for the Court filed by Circuit Judge EDWARDS.
On June 20, 2002, the International Longshoremen's Association, AFL-CIO ("Union"), filed a representation petition with the National Labor Relations Board ("NLRB" or "Board"), pursuant to Section 9(c) of the National Labor Relations Act ("Act"), 29 U.S.C. § 159(c) (2000), seeking an election to become the exclusive bargaining agent for Port Captains, Assistant Port Captains, and Port Engineers employed by Evergreen America Corporation ("Evergreen" or "Employer"). The Employer opposed the proposed bargaining unit on the ground that the five persons in the unit were managerial employees and therefore excluded from coverage under the Act. Following a hearing, the Acting Regional Director issued a decision holding that the disputed employees were not excluded managers and ordered an election. See Evergreen Am. Corp., N.L.R.B. Case No. 22-RC-12225 (Aug. 14, 2002) (" Representation Decision "), reprinted in Joint Appendix ("J.A.") 541-60. The Employer then sought review by the Board. A secret ballot election was held on September 10, 2002, and the ballots were impounded pending a decision from the Board. On October 18, 2002, the Board denied the Employer's request for review. On November 15, 2002, after the ballots had been counted, the Acting Regional Director certified the Union as the exclusive bargaining representative of the employees in the contested unit.
In order to obtain judicial review of the Board's certification decision, Evergreen refused to recognize and bargain with the Union. Evergreen also refused to provide information sought by the Union relating to existing employee benefit plans. On January 9, 2003, the Union filed an unfair labor practice charge with the NLRB. A complaint was then issued, alleging that the Employer's refusals to bargain and furnish information violated sections 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a) (2000). The Employer filed an answer admitting the refusal to bargain, but challenging the validity of the Board's certification. The Board subsequently granted the General Counsel's motion for summary judgment, holding that the Employer had violated sections 8(a)(5) and (1) as charged. See Evergreen Am. Corp., 338 N.L.R.B. 156, 2003 WL 1963885 (2003). Evergreen petitions this court for review of that order, and the Board cross-applies for enforcement.
The only issues on appeal are whether substantial evidence supports the Board's determination that the Port Captains, Assistant Port Captains, and Port Engineers in the contested bargaining unit are "employees" under the Act and whether the Board's determination is consistent with the Act. On the record at hand, we find no basis upon which to overturn the Board's judgment. We therefore deny Evergreen's petition for review and grant the Board's cross-application for enforcement.
The hearing on the representation petition included testimony from Chia-Lin Chen, Evergreen's Junior Vice President and Marine Department head, Charles Meng, an Assistant Port Captain, Lie-Cheng Yang, a Port Captain, and Johnnie Chen, Manager of the Marine Section. The facts elicited at the hearing are largely undisputed. We reprint them here:
The Employer is a New Jersey corporation, with its office located in Morristown, New Jersey. The Employer is a general shipping agent for Evergreen Marine Corporation ("EMC"), a company located in Taipei, Taiwan that owns and operates approximately 50 ships used to transport cargo in containers for its customers to various ports around the world. In the New York City area, EMC's ships berth at Maher Terminal, a 400-acre terminal in Elizabeth, New Jersey.
The Employer is responsible for the loading and unloading of EMC's vessels at Maher Terminal ("the Terminal"). Neither the Employer nor EMC own the Terminal. Rather, the Employer contracts with the Terminal for terminal services, meaning that the Terminal provides a berth for ships owned or chartered by EMC as well as stevedore services, meaning that the Terminal provides employees called "stevedores" to unload and load cargo. The stevedores are employees of the Terminal. Other shipping companies berth ships at the Terminal. Usually, three of EMC's ships arrive at the Terminal each week. After berthing in Elizabeth, the ship travels to other ports in Europe or on the East Coast of the United States, such as Baltimore or Savannah. On any given day, the Employer stores two or three thousand containers at Maher Terminal.
The five petitioned-for employees work in the Employer's Marine Section, which also includes a section manager, an assistant manager and a general staff person. The petitioned-for employees report to the New York City Marine Section Manager who reports to the Junior Vice-president who heads the Marine Department. The Marine Department Junior Vice-President also supervises the Marine Section Manager in Salt Lake City and the Marine Section Manager in Los Angeles. The Marine Department Junior Vice President reports to the Executive Vice-president for Marine and Logistics. In its organizational chart, the Employer designates personnel at the level of Executive Vice-president and above as "management."
The parties have stipulated that the duties of the Port Captains and the Assistant Port Captain are the same. The Port Captains and Assistant Port Captain are responsible for preparing a schedule for unloading and loading the ship, preparing a plan for loading its cargo, acting as a liaison between the ship and the port, and monitoring the unloading and loading of cargo. . .
The Port Captains remain at the Employer's Morristown office until a ship comes in. When a ship arrives, they work in the terminal, monitoring the loading and unloading of the ship. The Port Captain's manager records when the Port Captain leaves the office and returns from working in the terminal. The Port Captains have their own desks in Morristown, but do not have individual offices at the Morristown facility. The Port Captains' manager works in the Morristown office where he usually remains. The Port Captains must be available to management by phone at all times. The Port Captains' manager testified that the Port Captains contact him throughout the day to "keep [him] informed" on situations. The Port Captains' manager testified that Port Captains can handle routine matters, but they consult with him on non-routine matters or emergencies, matters involving significant costs and matters not covered by guidelines previously given to the Port Captains. The Employer has issued detailed descriptions of the Port Captain's functions, but concedes that these may not reflect actual practice. A Port Captain cannot approve payment of checks by the Employer's accounting department. In a conflict between the Port Captain and the Ship Captain or the Chief Mate, the ship personnel prevail.
i. Preparation of Prospect Reports
Approximately one week before a ship is scheduled to arrive at the Terminal, the Port Captain compiles a projected schedule for the ship's activity at the Terminal, called a prospect report. The prospect report includes the dates the ship will berth, the estimated time of arrival, the estimated time the ship will berth, the times that unloading and loading, referred to as "cargo activity," will begin and finish, the total number of container movements, the number of labor gangs ordered, the hours they will work and the estimated time of departure. Some of the information on the prospect report is supplied from various departments within the Employer. The Port Captain does not change the ship's overall schedule, which has been determined by the Employer's Project Department and cannot be changed without the agreement of the Port Captain's manager.
The Port Captain obtains the estimated time of the ship's arrival from the Project Department. It generally takes three and one-half hours after the ship arrives at the harbor to get to its berth in the Terminal. The Employer advises the Port Captain of the total number of containers to be unloaded and loaded, or container "movements."
The Port Captain adds to the prospect report the planned times that cargo activity will begin and end. He also adds the estimated number of labor gangs requested. He arrives at these figures by making mathematical calculations. He is limited by the ship's overall schedule. Normally a ship is in port for about 24 hours. He knows the number of containers that a crane can move within an hour. Pursuant to Terminal procedure, one labor gang works with each crane. He knows the number of cranes that can safely be operated on a ship. The number of container movements and the length of time that the ship will be berthed determine the number of labor gangs he requests. For example, a Port Captain may be told that a ship can be in port 20 hours and will need 2,000 moves. He knows he must move 100 containers an hour and that a crane can move 25 moves per hours [sic], so he will figure on using four cranes and four labor gangs to move the containers.
The Junior Vice-President testified that in scheduling cargo activity, the Port Captain takes into account the start times of the stevedores, who start at 7 or 8 AM, 1 PM or 7 PM. He testified that the Port Captain tries to schedule cargo activity to avoid paying overtime costs, and to use the stevedores during the day when it is less expensive to pay them, as opposed to at night. The Port Captain may recommend that the Ship Captain speed up to arrive in the Terminal at a time that is economical for cargo activity.
The Port Captain's manager reviews each prospect report. At the beginning of each week, the Port Captain's Manager contacts an administrator at the Terminal to review with him the schedules of EMC's ships coming into the terminal that week. After Terminal personnel learn the schedules of all of its customers, a Terminal representative will contact the Port Captain to tell him how many cranes and workers will be available for each ship. If the Terminal advises that the number of stevedores is different than that requested by the Employer, the Port Captain will report this to his manager. If there is a conflict in which two vessels owned or chartered by EMC are scheduled to berth at the same time, the Port Captain's manager will decide how many gangs are assigned to each vessel.
The number of gangs assigned to a ship is ultimately decided between the Terminal manager and the Port Captain's manager. Subsequently, if a ship is behind schedule, the Port Captain may, in consultation with his Manager, request that the Terminal ...