04/01/2026: DC Circuit References NLRA in Federal Maritime Commission Case
Regional Election Decision finds that eight contested workers are supervisors.
World Shipping Council v. FMC, 24-1298 (DC Circuit)
The D.C. Circuit’s decision in World Shipping Council v. Federal Maritime Commission drew on NLRA and NLRB precedent to resolve a key question: whether an agency lacking ratemaking authority can nonetheless consider pricing in evaluating reasonableness.
The court drew on this precedent when responding to the World Shipping Council’s argument that no agency without ratemaking power can permissibly use rate levels as a measure of reasonableness. The court rejected that argument by analogy to the NLRA. It noted that the NLRA contains no grant of power to set wages, yet imposes a duty to bargain in good faith — and that this duty functions similarly to the Shipping Act’s prohibition on unreasonable refusals to deal or negotiate. Because the NLRB is permitted to examine the terms of a party’s bargaining proposals when evaluating whether it fulfilled its good-faith bargaining obligation, the court concluded the FMC likewise need not have ratemaking authority to consider a carrier’s rate proposal in assessing whether the carrier unreasonably refused to deal.
The court also drew on the NLRB’s “totality of conduct” standard to address a related concern — that price might become the sole factor in any FMC reasonableness determination. The court noted that under the NLRA, an unreasonably low wage offer alone is rarely sufficient to establish a bargaining violation precisely because the Board considers the totality of an employer’s conduct. It then pointed to the FMC rule’s similar commitment to examining the totality of circumstances in each case, using the NLRB framework to support the conclusion that price would function as one factor among many, not a standalone basis for liability.
Significant Cases Cited
NLRB v. Blevins Popcorn Co., 659 F.2d 1173 (D.C. Cir.) (1981): Held that in determining whether a party fulfilled its good-faith bargaining obligation under the NLRA, the terms of its bargaining proposals may be examined.
District Hospital Partners, L.P. v. NLRB, 141 F.4th 1279 (D.C. Cir.) (2025): Affirmed that the NLRB evaluates alleged bargaining violations by examining the totality of the employer’s conduct.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Held that courts must exercise independent judgment in deciding whether an agency has acted within its statutory authority, overruling Chevron deference.
Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Auto Insurance Co., 463 U.S. 29 (1983): Established the framework for arbitrary-and-capricious review of agency rulemaking under the APA.
K-Mart Corp. v. NLRB, 626 F.2d 704 (9th Cir.) (1980): Affirmed that wage proposals characterized as meager — particularly during periods of high inflation — can support an inference that an employer was not bargaining seriously.
American President Lines, LLC, 21-RC-337981 (Regional Election Decision)
The International Longshore and Warehouse Union petitioned for an election in a unit of eight employees at American President Lines’ Long Beach, California facility — four job classifications collectively called “the Supervisors” — who directly oversaw a pre-existing bargaining unit of clerical workers represented by Local 63. The employer moved to dismiss, arguing all eight were statutory supervisors under Section 2(11) of the NLRA.
Acting Regional Director David Selder dismissed the petition, finding the employer met its burden on three of the four asserted supervisory functions — responsible direction, grievance adjustment, and effective recommendation of hiring — though not on the fourth, assignment.
On responsible direction, the Regional Director found the Supervisors accountable for their teams’ performance. Their performance evaluations incorporated metrics tied directly to the clerks’ output, including storage-fee management and collections productivity, and they faced merit-pay consequences based on team results. The Regional Director applied Oakwood Healthcare, Inc. and found that the Supervisors exercised independent judgment in guiding their teams, not merely performing routine oversight.
On grievance adjustment, the key evidence was the Supervisors’ role in adjudicating “time-in-lieu” (TIL) grievances — contractual claims alleging that non-unit employees performed bargaining-unit work. The Supervisors independently researched and validated or denied each TIL, interpreting ambiguous job descriptions and weighing facts, before upper management’s limited and largely non-independent review. The Regional Director found this constituted meaningful grievance adjustment under Section 2(11).
On effective recommendation of hiring, the Regional Director credited the 2024 hiring process in which the Supervisors constituted the sole interview panel for ten new clerk positions. Although the union argued the process was a formality because the candidates came from a pre-approved class A list, the Regional Director found the memorandum of understanding did not guarantee automatic hiring from that list, and upper management relied on the Supervisors’ evaluations without independent investigation.
On assignment, the Regional Director found the employer did not meet its burden, concluding the Supervisors’ day-to-day task direction involved discrete assignments rather than the designation of employees to locations, shifts, or significant overall duties required under Oakwood Healthcare, Inc.
The Regional Director separately rejected the employer’s confidential-employee claim as to two of the Supervisors, finding insufficient evidence of regular access to advance bargaining strategy information, and rejected the managerial-employee claim as to two others, finding no evidence they formulated, as opposed to implemented, employer policy.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the three-part test for supervisory status under Section 2(11) and defined the terms “assign” and “responsibly direct,” including the accountability requirement for the latter.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Supreme Court decision holding that the party asserting supervisory status bears the burden of proof.
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974): Supreme Court decision defining managerial employees as those who formulate and make operative the decisions of their employer.
NLRB v. Yeshiva University, 444 U.S. 672 (1980): Supreme Court decision clarifying that managerial exclusion requires that an employee represent management interests by taking or recommending discretionary actions that effectively control or implement employer policy.
NLRB v. Hendricks County Rural Electric Membership Corporation, 454 U.S. 170 (1981): Supreme Court decision affirming the Board’s “labor nexus” test for determining confidential-employee status.