Dravo Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1980

248 N.L.R.B. 620 (N.L.R.B. 1980)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dravo Corporation and J. D. Posillico Corp. and
Peter Batalias and Nassau and Suffolk Contrac-
tors Association, Inc., and Its Members, Parties
in Interest
Local 138, International Union of Operating Engi-
neers, AFL-CIO and Peter Batalias and Nassau
and Suffolk Contractors Association, Inc., and
Its Members, Parties in Interest
J. D. Posillico Corp. and Peter Batalias
Local 138, International Union of Operating Engi-
neers, AFL-CIO and Peter Batalias. Cases 29-
CA-6505, 29-CA-6604, 29-CB-3378, 29-CB-
3447, 29-CA-6806, and 29-CB-3570
March 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On November 15, 1979, Administrative Law
Judge Morton D. Friedman issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed exceptions and a supporting brief,
and Respondents filed briefs in answer to the Gen-
eral Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
The speculative comment of the Administrative Law Judge that had
the case gone forward he would not have credited Batalias over possible
witnesses of Respondent, while improper, does not detract from his over-
all conclusion that Batalias was not a credible witness.
2 In adopting the Administrative Law Judge's dismissal of the com-
plaint, we do not adopt his interpretation of the Board's decision in
Nassau and Suffolk Contractors' Association, Inc. etc., 118 NLRB 174
(1957). The finding in Nassau that the respondent interfered with the ad-
ministration of the labor organization hy reason of the participation of'
two union stewards, who were also statutory supervisors, as union repre-
sentatives during bargaining negotiations was based on a conflict of inter-
est which results where one individual has a loyalty to both the employ-
ees and the employer. Nassau does not limit a finding of divided loyalty
to the steward-supervisor's membership on the union negotiating commit
tee. See, for example. Narragansett Restaurant Corp., 243 NLRB No. 30
(1979); E.E. Co.. Inc., 171 NLRB 982 (1968); Dock Warehousing & Bot-
tling Center. Inc., 169 NLRB 708, 714 (1968).
248 NLRB No. 94
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: A
hearing in these cases was heard at Brooklyn, New
York, on July 9 and 24 and August 21, 1979, upon two
consolidated complaintst and pursuant to an order of the
Regional Director for Region 29 of the Board dated
February 15, 1979, consolidating all of the above-num-
bered cases for hearing and decision.
The consolidated complaint in Cases 29-CA-6505, 29-
CA-6604, 29-CB-3378, and 29-CB-3447 alleges, in sub-
stance, that Dravo Corporation, herein called Dravo, J.
D. Posillico Corp., herein called Posillico, and Nassau
and Suffolk Contractors Association, Inc., and its Mem-
bers, herein called the Association, as Employers, and
Local 138, International Union of Operating Engineers,
AFL-CIO, herein called the Union, maintained a prac-
tice whereby certain members of the Union, known as
lead engineers, are agents and supervisors of the Em-
ployers on construction jobs, and, at the same time, the
lead engineers are agents of the Union in the capacity of
shop stewards. Additionally, the Employers recognize
and deal with the lead engineers as stewards for the
Union while the Union recognizes and deals with the
said lead engineers in their alleged capacity as agent-su-
pervisors of the Employers. The complaint concludes
that by this arrangement, the Respondent Employers are
unlawfully assisting the Union in violation of Section
8(a)(2) of the Act, and the Union is restraining and co-
ercing employees in violation of Section 8(b)(1)(A) of the
Act.
In addition to the foregoing, the consolidated com-
plaint in Cases 29-CA-6806 and 29-CB-3570 alleges, in
substance, that a lead engineer, John Kiewre, employed
by Posillico, acting as both agent-supervisor for Posillico
and job stewards for the Union, discriminatorily laid off
Peter Batalias, and thereby caused Posillico to lay off
Batalias; that Posillico has failed since then to recall Ba-
talias because Batalias was a member of a "reform
group" of the Union, opposed to certain policies and
practices of the Union, and thereby Posillico violated
and is violating Section 8(a)(l) and (3) of the Act, and
the Union thereby violated and is violating Section
8(b)(1)(A) and (2) of the Act.
In duly filed answers, all the Respondents deny the
commission of any unfair labor practices while admitting
A consolidated complaint in Cases 29 CA-6505, 29-CA 6604. 29-
CB-3378, and 29-CB-3447 was issued on October 18, 1978. The charges
in Cases 29 CA-6505 and 29-CA 3378 were filed by Peter Batalias on
June 30, 1978 The charges in Cases 29-CA 6604 and 29-CB-3447 were
filed on August 11., 1978. A consolidated complaint in Cases 29-CA-6806
and 29-CB 3570 was issued on January 24, 1979, upon charges filed by
Batalias in Cases 29-CA 6806 and 29-CB-3570 on November 21, 1978.
Both of the consolidated complaints were ordered consolidated for hear-
ing by order dated February 15, 1979
DRAVO CORPORATION 621
the jurisdictional allegations of the consolidated com-
plaint.
At the outset of the hearing, on July 9, 1979, all of the
parties agreed that, because the issue of whether the lead
engineers are union stewards and are also supervisors
employed by the Respondent Employers constitutes the
primary issue of all the cases, this issue would be heard
first. Permission to try the cases in this order was grant-
ed principally because Respondent Dravo was involved
only in the alleged unlawful practice, but not in any al-
leged specific act of discrimination, 2 and if it would be
found that the lead engineers are not supervisors of the
Employers, the balance of the allegations of the com-
plaints would thereby fall.
Accordingly, the hearing proceeded upon the agreed-
upon course. Counsel for the General Counsel called
three witnesses to testify and introduced documents in
evidence for the purpose of proving that the lead engi-
neers were and are supervisors of the employers. Coun-
sel for the General Counsel then rested.
At that point in the proceeding, counsel for Dravo
moved to dismiss the consolidated complaint in Cases
29-CA-6505 and was joined in the motion by counsel for
Posillico, the Association, and the Union with regard to
the allegations in the consolidated complaints in respect
to Cases 29-CA-6604, 29-CB-3378, and 29-CB-3447.
The ground for the motion to dismiss was that the Gen-
eral Counsel failed to establish a prima facie case that the
lead engineers were and are supervisors of the employers
within the meaning of the Act.
After hearing argument in support of and against the
motion, and after due deliberation, I concluded that the
motion to dismiss had merit and dismissed the complaint
in the aforesaid cases, explaining my reasons therefore on
the record. Counsel for the General Counsel duly ex-
cepted to the ruling and asked that the matter be recon-
sidered. Although the ruling was not changed upon this
motion at that time, I explained, again on the record,
that if, in the discrimination cases against Posillico and
the Union,3 still to be heard, it was proven that the lead
engineer therein was a supervisor for Posillico and also,
at the same time, a union steward, and it could be shown
in the hearing of those cases that there was a possibility
that this alleged practice of Posillico and the Union ex-
tended throughout the industry insofar as the Union's
modus operandi was concerned, I would, sua sponte, re-
verse the order of dismissal and instruct the parties in the
dismissed cases to proceed with their defenses, because
the evidence in the case to be heard would thereby give
added strength to the General Counsel's case-in-chief in
the dismissed cases.
Counsel for the General Counsel was then asked if she
was prepared to proceed with the discrimination case
against Posillico and the Union and whether she wished
to file an appeal to the Board from the order of dismissal
of the complaints in other cases.
Counsel for the General Counsel elected to proceed
with the discrimination case and to decide, later, whether
to appeal from the dismissal ruling. However, because
2 Dravo is named as a Respondent only in Cases 29-CA-6505 and 29-
CA-6604.
a Cases 29-CA-6806 and 29-CB-3570.
documents for which counsel for the General Counsel
had served subpenas upon both the Union and Posillico
were very voluminous and lengthy, and counsel for the
General Counsel had not had the opportunity to examine
them until that time, an adjournment was requested and
the request was granted.
At the last hearing date, upon reconvening the hear-
ing, counsel for the General Counsel surprisingly re-
quested permission to withdraw the consolidated com-
plaint in Cases 29-CA-6806 and 29-CB-3570, herein re-
ferred to as the discrimination cases. The reason given
for the request was that the Charging Party, Peter Bata-
lias, had notified counsel for the General Counsel, in
writing, that Batalias no longer desired to participate in
those cases inasmuch as his true interest in the cases was
to force the Union to grant him certain pension benefits,
his claim for which was not the subject matter of either
the charges or complaints of any of the cases involved
herein. Permission to withdraw the complaint was there-
upon granted, there being no opposition thereto.
However, counsel for the General Counsel then asked
for permission to move for reconsideration of the order
of dismissal in the first four cases, those involving the al-
legations of the allegedly unlawful supervisor/steward
practices, arguing that a review of the record would
show that a prima facie case had been made by counsel
for the General Counsel. Permission to so move was
granted provided that (a) Dravo, whose counsel was not
present at this time, be notified; (b) the motion be in
writing and supported by reasons therefor and be served
on counsel for all parties; and (c) Respondents be given
an opportunity to reply and submit, in writing, their op-
position to the motion.4
In accordance with the foregoing, counsel for the
General Counsel has filed a memorandum in support of
the motion for reconsideration and counsel for all Re-
spondents have filed memorandums in support of their
opposition thereto. Upon the entire record in the case
and upon due consideration being given to the memoran-
dums of the parties, and the arguments contained therein,
and upon my observation of the witnesses, I make the
following:
' Although not stated by me at the hearing, the request of counsel for
the General Counsel was also granted because of the possibility that the
ruling on a motion to dismiss for failure to establish a prima facie case
may come within the provisions of Sec. IO(c) of the Act, and the proce-
dures provided in Secs. 102.45 and 102.42 of the Board's Rules and Regu-
lations. See Local Union No. 195, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO (Stone & Webster Engineering Corporationl. 237
NLRB 931 (1978) In the cited case, the Administrative Law Judge dis-
missed from the bench on such a motion after the entire case was heard,
and not as in the case at bar, where the motion to dismiss was made after
only counsel for the General Counsel had rested her case-in-chief. The
language of the Board in its Decision in the cited case perhaps renders
this a difference without a distinction even though Sec. 102.27 of the
Board's Rules and Regulations would seem to indicate that a dismissal of
the complaint upon a motion to dismiss at the end of the General Coun-
sel's case-in-chief, without a written decision, and without complying to
Sees 102.45 and 102.42, would be in order
DRAVO CORPORATION 21
. _
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Each of the Respondent Employers admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Respon-
dent Dravo, a Pennsylvania corporation with its princi-
pal office and place of business in Pittsburgh, Pennsylva-
nia, is engaged in performing construction services in the
town of Wading River, New York, and various other
places in the United States. During the year immediately
preceding the issuance of the complaint herein, a repre-
sentative period, Dravo purchased and caused to be
transferred and delivered to its Wading River sites and
other sites throughout the United States lumber, con-
crete, and other goods and materials of a value in excess
of $50,000, of which goods and materials of a value in
excess of $50,000 were transported and delivered to its
Wading River and other sites in interstate commerce di-
rectly from States of the United States other than the
States in which the various sites are located.
Respondent Posillico, a New York corporation with
its office and principal place of business in the town of
Farmingdale, New York, is engaged in that town and
other construction sites in the State of New York where
it performs building construction services. During the
year immediately preceding the issuance of the complaint
herein, a representative period, Posillico purchased
lumber, concrete, and other goods and materials of a
value in excess of $50,000, of which goods and materials
of a value in excess of $50,000 were transported and de-
livered to its construction sites in interstate commerce di-
rectly from suppliers in States of the United States other
than the State of New York.
The Association, a New York corporation, is an asso-
ciation of employers engaged in the building and con-
struction industry in Nassau and Suffolk Counties in the
State of New York and exists for the purpose, among
other things, of negotiation and administering collective-
bargaining agreements for and on behalf of employer
members with various labor organizations, including the
Union herein. During the year immediately preceding
the issuance of the complaint herein, a representative
period, the employer members of the Association, in the
course and conduct of their business, purchased building
materials of a value in excess of $50,000 which were
shipped in interstate commerce to the members' projects
in the State of New York directly from places outside
the State of New York.
Thus I find and conclude that it serves the purposes of
the Act to assert jurisdiction. 5
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Respondent Union is
a labor organization within the meaning of Section 2(5)
of the Act.
5 It should be noted that Respondent Dravo is not a member of the
Association herein, but is a member of an employer association similar
thereto which contracts with the Union on behalf on its members.
III. THE EVIDENCE PRESENTED BY THE GENERAL
COUNSEL
The principal witness for the General Counsel was
Peter Batalias, the Charging Party in all of the above-
numbered cases, who was also the Charging Party in an
earlier case involving the Union and the Association and
some of the Association's members. 6 Batalias testified to
several occurrences which, the General Counsel claims,
support a finding that the lead engineers are also supervi-
sors as defined in Section 2(11) of the Act.
The first act of a lead engineer to which Batalias testi-
fied occurred in 1974. According to Batalias, in that inci-
dent, Batalias, along with several other operating engi-
neers, was operating equipment for a member of the As-
sociation, Lizza Industries, herein called Lizza. While
they were so operating their various pieces of equipment
for Lizza one day, it began to rain, and three of the op-
erating engineers refused to work in the rain. Lizza's
foreman thereupon called for the job superintendent, tell-
ing the latter what was happening. The superintendent
then, in turn, spoke to the lead engineer on the job, Rick
Posillico. 7 Batalias admitted on cross-examination that he
could not hear the conversation between the job superin-
tendent and the lead engineer. However, Batalias did tes-
tify that after the conversation the lead engineer turned
to the three operating engineers who refused to operate
their equipment in the rain and asked them if they were
going to operate the equipment. When the three engi-
neers refused, Posillico, the lead engineer, discharged the
three operating engineers.8
Giving full credence to Batalias' testimony recited
above, it is difficult to conclude that this testimony is
evidence that, within the 6-month 10(b) period before the
filing of the first charge herein, the lead engineers acted
as supervisors for the Employers named herein or for the
Association's constituent members. This is so because Ba-
talias admitted that he could not hear the conversation
between the job superintendent and the lead engineer
and, therefore, the record does not show whether the
lead engineer discharged the three operating engineers
who refused to work in the rain by the exercise of his
own discretion or was merely a conduit for instructions
given him by the job superintendent.
However, even assuming that in this instance the lead
engineer did act in the capacity of supervisor for Lizza,
Lizza is not named as a respondent in the complaint
herein, and the testimony which would have involved
Lizza back in 1974 cannot be utilized, therefore, as proof
that Dravo or Posillico or members of the Association
engaged lead engineers as supervisors during or since the
6-month period before the filing of the first charge
against Dravo, Posillico, and the Union in the instant
case.
a Nassau and Suffolk Contractors Association, Inc., 118 NLRB 174
(1957).
7 No relation to any member of the J. D. Posillico Corporation in-
volved in this proceeding.
I The foregoing is a synopsis of Batalias' testimony which, when read,
seems to be somewhat confused as was most of Batalias' testimony. In
answering virtually every question put to him, Batalias' obvious animus
toward the Union herein led him to answer questions in an indirect
manner or caused him to give answers which were not responsive to the
questions asked.
DRAVO CORPORATION 623
Counsel for the General Counsel argues that there is a
presumption of continuance which, in the absence of any
evidence to the contrary, indicates that the status of the
lead engineer has not changed since this 1974 Lizza inci-
dent, and, therefore, this item of testimony would indi-
cate, and be part of the proof, that at the present time
and at the time of the charges and complaint herein
Dravo, Posillico, and members of the Association were
operating with lead engineers who were and are both su-
pervisors and job stewards.
Counsel for the General Counsel further argues that
this presumption of continuance regarding the lead engi-
neer acting as a supervisor for the members of the Asso-
ciation, including Posillico and nonmember Dravo, is
buttressed by events to which Batalias testified occurred
within the 6-month 10(b) period before the filing of the
charges herein. I reject the presumption of which the
General Counsel speaks. It cannot be applied here, be-
cause the employer and the lead engineer in the 1974 in-
cident, even if Batalias' testimony is given full credence,
involved only Lizza. It cannot be proof against other
employers at the present time. As heretofore set forth,
this Decision involves a motion to dismiss by other em-
ployers and not Lizza which is not herein involved.
However, I deem it incumbent upon me to consider all
possible inferences to be in favor of counsel for the Gen-
eral Counsel's case.
It is therefore necessary to consider other evidentiary
matter to which Batalias testified which allegedly oc-
curred within the 10(b) period. An incident occurred in
November 1978, according to Batalias, in which he was
transferred by Posillico's lead engineer, John Kiewre,
from one job to another, which transfer counsel for the
General Counsel claims was contrary to that which was
first ordered by Posillico's crew foreman. However, Ba-
talias' testimony with regard to this incident is so confus-
ing that it leads to at least two, and probably more, pos-
sible interpretations with regard to whether the Union's
lead engineer, Kiewre, countermanded an order of Posil-
lico's foreman, or whether it was Kiewre who, upon Ba-
talias' complaint to Kiewre, enabled Batalias to retain a
position he desired to retain within a certain geographi-
cal area.
According to counsel for the General Counsel, in No-
vember 1978 Kiewre transferred him from one jobsite to
another. A Posillico foreman named Matthews told Bata-
lias at the end of a workday to report to Melville, Long
Island, the next day. When he returned home, Batalias
found a message from Kiewre to report not to Melville
but to report to Hicksville. Batalias called Kiewre to
object to the transfer because, according to Batalias, Ba-
talias wanted to remain with the crew with whom he
was working. However, upon speaking to Kiewre,
Kiewre was adamant and directed Batalias to go to
Hicksville. The General Counsel states that Kiewre did
not at any time refer to any order from his superiors di-
recting Batalias to return to Hicksville. Batalias reported
to Hicksville as directed by Kiewre rather than to Mel-
ville as ordered by Foreman Matthews.
However, counsel for Posillico interprets this testimo-
ny as follows: Batalias was working for Posillico at a
jobsite in Hicksville when he was told by Superintendent
Matthews that he was being transferred to another job in
Farmingdale. Batalias then complained to Kiewre about
the transfer and Kiewre later called and told Batalias to
report to Hicksville. Thus, in one interpretation, that of
the General Counsel, Kiewre was the one who gave the
most authoritative order to report to the job in Hicks-
ville.
The Respondents, however, argue that Batalias' testi-
mony is actually to the contrary of that which counsel
for the General Counsel claims is the import of Batalias'
testimony. Respondents contend that Batalias' testimony
on this matter is that in November 1978 Batalias was
working for Posillico at a jobsite in Hicksville. He was
told by the crew foreman, Matthews, that Batalias was
being transferred to another job in Farmingdale. Batalias
then complained to Kiewre, Posillico's lead engineer,
about the transfer and Kiewre later called Batalias, after
Batalias called and complained to Kiewre, and told Bata-
lias to report back to Hicksville.
Even giving the best possible interpretation of this
very confusing testimony to counsel for the General
Counsel's case, it is nevertheless highly improbable that
the matter occurred as the General Counsel would have
the testimony interpreted. This is so because, on the
record, just prior to the testimony concerning the fore-
going incident, Batalias testified that if an employee had
a complaint about job conditions he would call the lead
engineer to resolve that situation. It is concluded that
this is exactly what Kiewre did in the incident set forth
above. Kiewre interceded on Batalias' behalf to resolve
Batalias' complaint. Batalias further testified that it was
the practice for a foreman to decide upon transfers of
personnel which were then passed on by the lead engi-
neer to the employees involved.9
Counsel for the General Counsel further seeks to bol-
ster the argument that the order of dismissal should be
reversed upon the basis of two documents. The first of
these is a letter from Dravo's project manager in Long
Island, New York, dated July 12, 1978, addressed to
Dravo's counsel, which letter was then furnished to
counsel for the General Counsel in the investigation of
the instant cases. This letter was written by the project
manager, John Jacobson, in connection with the investi-
gation of certain other unfair labor practice charges
which were later withdrawn by Batalias. Among other
things, the letter states "Hiring and reduction in force
and discharges are handled by the Company through the
master mechanic."' ° Counsel for the General Counsel
claims that there can be no clearer description of super-
visory authority and that this constitutes an admission on
the part of Dravo that the lead engineer is a supervisor.
9 The testimony of Batalias regarding this incident, the alleged overrid-
ing of the foreman's order by Kiewre to the detriment of Batalias, has
been read a number of times and compared with my notes made at the
hearing. It is extremely difficult, as noted above, to come to an exact
conclusion as to what Batalias was testifying. His testimony in this re-
spect is almost incoherent. Either Batalias did not listen to the questions
put to him, or was so anxious to place an interpretation on the facts that
would place the Union in a bad light that he literally confused the facts
to the point where what actually occurred cannot be ascertained from his
testimony with any certitude.
10 The term "master mechanic" is clearly a reference to "lead engi-
neer" and is the title once used to describe the same functioning individ-
ual at an earlier date.
IJRAVO CORPORATION
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in order to support this part of the General
Counsel's case, Jacobson was called to the stand and
questioned by counsel for the General Counsel. In his
testimony, Jacobson explained that portion of the letter
by stating that the lead engineer performs these functions
under the direction of the Company's supervisors. To use
Jacobson's words, "under our direction."
However, at best, this is rather a routine matter in that
in the construction industry it is the job foreman or su-
perintendent who decides how many and what kind of
operators are needed for a certain job. It is in this indus-
try that the foreman will then routinely go to the lead
engineer who would, in turn, call the union hall for cer-
tain types of machine operators. When these men are
then dispatched from the hall, they report to the lead en-
gineer, by handing him their union books and telling
him, at the same time, what machines they were dis-
patched to operate. Then, and only then, does the lead
engineer do anything in the nature of assigning. Thus, if
there are two backhoes to be operated and two backhoe
engineers are dispatched by the Union, the lead engineer
will tell each of the two backhoe operators sent by the
Union which backhoe each will operate. This is merely a
matter of accommodation and is of such a routine nature
that it cannot be classified as the use of independent
judgment by the lead engineer.
Batalias further testified that, in the 30-year period he
worked within the jurisdiction of the Union, the practice
has been for the operating engineers to report to the lead
engineer, the job superintendent, or the contractor, and
for the lead engineer to assign the employee reporting to
his machine. However, immediately above, this matter
has been explained fully.
Furthermore, Batalias could testify to only two specif-
ic times at which he or any other operating engineer by
name, or any other lead engineer by name, was involved
in any manner which could be described in Section 2(11)
of the Act as indicia of supervisory authority. Both of
these incidents were at times in August and November
1978, in which Batalias, himself, was laid off by lead en-
gineers. Batalias testified that Dravo's lead engineer, Ted
Jawroski, laid him off in August 1978, and Posillico's
lead engineer, Kiewre, laid him off in November 1978.
However, with regard to these instances, Batalias was
not able to state that these lead engineers were operating
independently and had particularly chosen Batalias to lay
off. On the other hand, the testimony of these individuals
shows that if, indeed, the lead engineer did lay Batalias
off, it was done merely as a matter of convenience and
the lead engineers performed the function of a conduit
from either the job foreman or the job superintendent
and did not select Batalias for layoff as a matter of their
own discretion.
Counsel for the General Counsel relies on one further,
rather technical, matter which it is claimed tends to
show an admission by Dravo that the lead engineer is, in
fact, a supervisor. In its answer to the complaint, Dravo
admitted that the lead engineer is a supervisor in accor-
dance with the collective-bargaining agreement. Howev-
er, contrary to the contention of the General Counsel, a
reading of the subdivisions of the collective-bargaining
agreement pertaining to lead engineers and their author-
ity, reveals only that when an operating engineer is em-
ployed intermittently to operate a machine, he shall do
such work during the period when his machine cannot
be operated as determined by the lead engineer. In other
words, this may or may not be interpreted as an indica-
tion of supervisory authority. As argued by counsel for
Respondent Dravo, it merely means that the lead engi-
neer is in charge of and sees to it that the operating engi-
neers within the jurisdiction of the Union perform only
such work as operating engineers are required to per-
form as defined in the contractual coverage of the rela-
tionship between the contracting parties.
Additionally, the sections of the agreement which
counsel for the General Counsel points out as supporting
the argument that the lead engineers are supervisors,
must be read in the context of the entire agreement.
When this is done, it is apparent that the so-called super-
vision of the lead engineers is, as heretofore stated,
merely a device by which the lead engineer protects the
jurisdictional aspects of the work of operating engineers
so that operating engineers shall not be required to per-
form work which is not within the definition of the func-
tions of operating engineers as stated in the collective-
bargaining agreement. Accordingly, if indeed the lead
engineer exercises any independent judgment, it is as a
job steward and not as a supervisor on behalf of any of
the employers of the Association or on behalf of the spe-
cific Respondents named here, Posillico and Dravo.
IV. DISCUSSION AND CONCLUDING FINDINGS
Assigning to the testimony and evidence upon which
the General Counsel relies the best possible interpreta-
tion, the instances in which Batalias, himself, was direct-
ly involved within the 10(b) period are isolated and un-
supported by any testimony to the effect that the layoffs
in 1978, by the lead engineers of Dravo and Posillico,
were anything but routine. Insofar as the matter involv-
ing Lizza in 1974 is concerned, the Board has well estab-
lished the principle that "isolated instances of supervi-
sory authority are an insufficient basis upon which to
base a finding that an individual is a statutory supervi-
sor." 1l1
With regard to the independent judgment question
concerning the lead engineers, Batalias, himself, again
testified that before an operating engineer arrives at a
jobsite he knows what type of machine he will be oper-
ating. Thus, Batalias testified, "If I am on the top of the
hiring hall list and I have put down that I am qualified
on backhoe, and the Union knows I am qualified, they
will send me." Thus, the most judgment that the lead en-
gineer exercises, even by Batalias' own testimony, is that
when an operating engineer arrives on the job he knows
the type of machine he operates, and the lead engineer
merely tells the operating engineer which machine of
that type he will operate. Thus, in such an instance, the
lead engineer is performing a function not for the em-
ployer, but for the Union.
Additionally, as stated above, although Batalias testi-
fied that over a period of some 30 years he has observed
" Local Union No. 673, International Union of Operating Engineers.
AFL-CIO (Westinghouse Electric Corporation), 229 NLRB 726, 727 (1977).
DRAVO CORPORATION 625
lead engineers operating as supervisors, aside from the
instances above-cited, he was unable to state a single in-
stance in which the lead engineers perform any function
which requires the use of independent judgment on
behalf of employers. Moreover, with regard to the right
to hire or discharge, it is apparent that it is the Union
which dispatches the employees to the jobs and the lead
engineer merely assigns them to the machine for which
the employees are sent by the Union upon the request of
the employer. Additionally, the instances to which Bata-
lias testified in which some inference could possibly be
arrived at to the extent of finding that a lead engineer
operates as a supervisor of an employer are so isolated as
to not be considered as a basis for a finding of supervi-
sory authority. 2
Finally, even assuming for the purposes of the General
Counsel's case that in the instances cited in Batalias' tes-
timony the lead engineers were acting as supervisors for
the Employers named and for members of the Associ-
ation, in a case in which Batalias, himself, was the
Charging Party against the very same Association and
Union as in the instant case, the Board held only where
the lead engineers, who may be the employers' supervi-
sors, also act as negotiators on behalf of the Union is
there such a conflict of interest as to constitute coercion
within the meaning of Section 8(b)(l)(A), and assistance
within the meaning of Section 8(a)(2) of the Act. 3
Counsel for the General Counsel, in arguments at the
outset of the hearing herein, cited a recent case in which,
according to the General Counsel, the Board would
seem to have changed this principle to find that a viola-
tion occurs any time a lead engineer acts in a supervisory
capacity for an employer at the same time in which he
acts as a union steward. t4 However, the facts of that
case differ markedly from the facts of the case at bar. In
that case, the lead engineer was the sole authority at a
construction site which was several hundred miles from
the nearest other facility of the employer. In fact, the
employer's nearest facility at that time was in Fairbanks,
Alaska, where the lead engineer, who directed the job
and whose activities were the subject of the complaint in
the cited case, was 400 miles away at Point Barrow,
Alaska. Thus, it is apparent that because the lead engi-
neer was the only representative with any authority on
the job he must have had full authority to independently
make decisions which affected the employees in the per-
formance of their work. Accordingly, although the Ad-
ministrative Law Judge in that case cited Nassau and
12 Ibid.
13 See, Nassau and Suffolk Contractors Association, Inc., 118 NLRB 174
(1958).
" ITT Arctic Services, Inc., 238 NLRB No. 14 (1978).
Suffolk, supra, the case neither sub silentio or directly
overruled the principle set forth in the cited Nassau and
Suffolk case. Accordingly, I find and conclude that the
Nassau and Suffolk case, cited above, is currently the
law established by the Board and that it has not been
overruled. Therefore, a violation occurs only in those in-
stances in which the lead engineer who acts as a supervi-
sor on behalf of an employer also engages on behalf of
the union in negotiations with the employer. According-
ly, on the basis of the current law, I find and conclude
that the General Counsel's case, as a matter of law, has
not been established because there was no evidence of-
fered to show that the lead engineers also acted as nego-
tiators on behalf of the Union.
Accordingly, by reason of all the foregoing, I hereby
reaffirm my dismissal of the General Counsel's case on
the basis that the General Counsel has failed to establish
a prima facie case. 15
Upon all of the foregoing findings, and pursuant to
Section 10(c) of the Act, I make the following:
ORDER 16
The General Counsel's motion for reconsideration is
granted and, upon reconsideration, the original order of
dismissal herein is reaffirmed.
IT IS ORDERED, therefore, that the complaints in all of
the foregoing numbered cases be, and the same hereby
are, dismissed in all respects.
15 Even were I not to make such a finding, it is apparent that I would
have been unable, on the basis of the entire record, to credit the testimo-
ny of Batalias, aside from the fact that his testimony, in most instances,
was extremely confusing. Additionally, Batalias displayed obvious ani-
mosity toward the Union. This animosity may have some basis, but the
reason or reasons therefor are not the subject of the instant case. This
renders him a witness of very dubious credibility. Funhermore, although
ordinarily the motivation of a charging party should not enter into the
consideration of whether a case has merit, the charging party's motiva-
tion can be considered when determining the credibility of the charging
party as a witness. Batalias, in his letter refusing to cooperate in the dis-
crimination case against Posillico and the Union, made it amply clear that
the main purpose of his filing all the charges in the instant case was to
force the Union to pay him out of the union pension fund for periods for
which he felt he was entitled and for which periods the Union claimed
he was not so entitled. Thus, I conclude that had the motion to dismiss
been denied and the case had gone forward I would not have credited
Batalias to the extent of crediting him over possible witnesses of the Re-
spondents. In fact, I would have found that both Kiewre and Jawroski
were more reliable witnesses when they Aere called to testify by the
General Counsel during the case-in-chief.
15 In the event no exceptions are filed as provided by Sec. 10246 of
the Rules and Regulations of the National Labor Relations Board the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
DRAVO CORPORATION
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