247 F.3d 273 (D.C. Cir. 2001)
Brusco Tug & Barge Co., Petitionerv.National Labor Relations Board, Respondent
No. 00-1183
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 26, 2001Decided May 1, 2001

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:


1
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.


2
* Section 8(a)(1) of the National Labor Relations Act prohibits employers from interfering with their employees' right to  organize.  29 U.S.C.  158(a)(1) (referring to the rights guaranteed in id.  157).  The Act's definition of protected "employee[s]" excludes "any individual employed as a supervisor." Id.  152(3).  A "supervisor" is:


3
any individual having authority, in the interest of the employer, to hire, transfer, 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. Id.  152(11).


4
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 Brusco'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.


5
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 crewmen.  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.


6
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 terminated 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.


7
Shortly thereafter, an NLRB hearing officer heard evidence 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 within 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 therefore 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.


8
A few months later, the Board addressed the union's stillpending charge that Bo Brusco's October 1999 letter amounted 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.


9
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 impermissibly departed from precedent in deeming them employees.  The Board cross-applies for enforcement.

II

10
"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 statutory 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 substantial 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.


11
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 inappropriate.  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 supervisory tasks listed in NLRA section 2(11), and that, in doing so,  they use "independent judgment."


12
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.  According to Brusco, because the plan provides that "in [the master's] absence, his relief, the mate, is the master," Pet'r Br. at  7, and because the hearing officer found that Brusco's masters were supervisors (because they use independent judgment in recommending transfer and promotion, as well as  directing and assigning crewmen), its mates are also supervisors.  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.


13
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.   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

14
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 experienced hand."  Id.  In its brief before us, the Board elaborates:  "[t]hose orders simply embody the mates' greater  skills and experience, not managerial prerogatives."  Resp't  Br. at 17.


15
Brusco argues that the Board's decision conflicts with two  cases in which the Board found tugboat workers to be supervisors based on their direction of crewmen:  Local 28, International 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 Commission's failure to explain why [an asserted precedent] is inapplicable here, that case is sufficiently distinguishable to assure that the Commission's oversight does not present a  danger that it has arbitrarily departed from its own precedents.").


16
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 independent 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 discipline."  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]" crewmen, 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.


17
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.


18
Because it is "axiomatic that an agency adjudication must  either be consistent with prior adjudications or offer a reasoned 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 apparent departures.


19
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 supervisors 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

20
The hearing officer found that the mates' assignment responsibilities were not indicative of supervisory status, stating:  "[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:


21
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.


22
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 independent assessment of an employee's skills that would require  the Board to find that a mate was a supervisor."  Resp't Br.  at 16.


23
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 supervisory.  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 (overturning 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.")


24
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 physical 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.  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

25
We deny enforcement and remand to the Board for further  proceedings consistent with this opinion.


26
So ordered.

