Dravo Corp.

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 621 . _ 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 623 624 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 625 -