International Union Of Operating Engineers (Stone & Webster Engineering Corp.)

734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers (Stone & Webster Engineering Corporation) and Carl Mattocks International Union of Operating Engineers, Local 478 and Carl Mattocks. Cases 39-CB-597-1 and 39-CB-597(2-3) 24 April 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 10 June 1985 Administrative Law Judge Winifred D. Morio issued the attached decision. The Respondents filed exceptions and supporting briefs, and the General Counsel filed a brief in answer to the Respondents' exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and i Respondent Local 478 has excepted, inter aha, to the judge's finding that discruninatee Carl Mattocks is an employer-representative within the meaning of Sec. 8(b)(1)(B) of the Act, arguing that the Supreme Court, in Florida Power Co. v. IBEW, 417 U.S. 790 (1974), rejected the "reservoir doctrine," which the judge relies on to support her finding. We find no merit to Local 478's exception for, like the judge, we find nothing in the Florida Power decision to suggest that the Supreme Court disapproves of the doctrine In any event, the facts in this case clearly establish, and the judge found, that Mattocks "possessed and exercised the authority to re- solve [employee] grievances," so that even without regard to the "reser- voir doctrine" it is patently clear that Mattocks is an employer-represent- ative within the intent of Sec. 8(b)(l)(B) by virtue of his authority to adjust grievances. Chairman Dotson, although adhering to the reservoir doctrine, notes the Second Circuit's disagreement therewith (see fn. 2 below); conse- quently, he relies solely on Mattock's actual authority to process and re- solve grievances in affirming the judge's finding of a violation in this case. Member Stephens expresses no view concerning the validity of the res- ervoir doctrine, he relies on the evidence that Mattocks possessed griev- ance adjustment authority and was thus clearly a representative within the meaning of Sec. 8(b)(1XB). NLRB v. Electrical Workers IBEW Local 323, 703 F 2d 501, 505 (11th Cir. 1983), cert. denied 464 US. 950 (1983). We also find, in agreement with the judge, that the $1000 fine imposed by Local 478 on Mattocks resulted from the latter's performance of his supervisory duties and not from any alleged disparaging remark about the Union Mattocks may have made to employee Fiorello. In this regard we note that despite Fiorello's assertion in his grievance to the Union that Mattocks had made certain disparaging remarks about Local 478, during the hearing on his grievance Fiorello asserted only that he had been im- properly discharged by Mattocks, and did not present evidence or raise the question of the alleged disparaging remarks. Respondent Local 478 has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 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 the findings. conclusions2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, International Union of Operating Engi- neers, Local 478, Hamden, Connecticut, and Inter- national Union of Operating Engineers, Washing- ton, D.C., their officers, agents, and representa- tives, shall take the action set forth in the Order as modified. 1. Delete paragraph (A),2(g), and reletter the subsequent paragraphs. 2. Substitute the following for paragraphs (B),1(a) and (B),1(b)• "(a) Ratifying the discipline imposed by Re- spondent Local 478 on Carl Mattocks for perform- ing supervisory duties. "(b) In any like or related manner restraining or coercing Stone & Webster in the selection of its representatives for the purposes of collective bar- gaining or the adjustment of grievances." 3. Substitute the attached notices for those of the administrative law judge. 2 Contrary to the judge, we do not find the Respondents' defense to the 8(bXl)(B) complaint allegation to be "patently frivolous." The judge, as noted, relied on the "reservoir doctrine" to find an 8(b)(I)(B) viola- tion. The Respondents, however, argued that the "reservoir doctrine" had been overruled by the Supreme Court's Florida Power decision and cited the Second Circuit's decision in NLRB v. Rochester Musicians Assn. Local 66, 514 F.2d 988 (2d Cir. 1978), which held, inter aba, that the Su- preme Court in Florida Power, supra, had "effectively undermined [the] conceptual basis" of the "reservoir doctrine " While, as noted, we do not agree that the "reservoir doctrine" was overruled in Florida Power, nev- ertheless, the Respondents' defense that it had been overruled and that the judge erred in relying on it cannot, in light of the Second Circuit's decision in Rochester Musicians Assn., be viewed as frivolous. Moreover, we note that the judge's finding that Mattocks was a Sec. 2(11) supervi- sor and an employer-representative within the meaning of Sec. 8(b)(1)(B) was, for the most part, based on her decision to accept as true the testi- mony of the General Counsel's witnesses concerning Mattocks' duties. In light of the above, we shall not order Respondent Local 478 to reimburse the Board and Mattocks for litigation costs and other expenses incurred by them in this proceeding 2 Respondent International Union of Operating Engineers excepts to the judge's inclusion of certain broad remedial language in the recom- mended Order and notice, noting that the judge found that a narrow order was appropriate in the case of Respondent International We find merit to Respondent International's exception and shall, accordingly, delete such broad language from the Order and notice 283 NLRB No. 114 OPERATING ENGINEERS (STONE & WEBSTE'R) 735 APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL MEMBERS OF LOCAL 478, INTERNATIONAL UNION OF OPERATING ENGINEERS The National Labor Relations Board has found that we violated the National Labor Relations Act and, has ordered us to post and abide by this notice. WE WILL NOT restrain or coerce Stone & Web- ster Engineering Corporation -in the selection of representatives for the purpose of collective bar- gaining or the adjustment of grievances by requir- ing a response to charges, fining -and suspending from membership, or otherwise disciplining Carl Mattocks, or any other supervisor-member, for per- forming supervisory duties for Stone, & Webster or any other employer. 'WE WILL NOT in any other manner engage in conduct that is violative of the Act or that restrains or coerces Stone & Webster, or any other employ- er, in the selection of its representative for the pur- pose of collective bargaining or grievance adjust- ment. WE WILL rescind the fine levied against Carl Mattocks and remove from our records all refer- ence to the charges against him and the imposition of the fine. -WE WILL restore Carl Mattocks to his status as a member in good standing with all attendant rights and will remove from his record all reference to his suspension. WE WILL notify Carl Mattocks; in writing, that the fine and suspension have been rescinded, that all records of the charge, fine, and suspension have been removed and that he will be restored to full membership INTERNATIONAL UNION OF OPERAT- ING ENGINEERS, LOCAL 478 APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL MEMBERS OF LOCAL 478, INTERNATIONAL UNION OF OPERATING ENGINEERS The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. ,,WE WILL NOT restrain or coerce Stone -& Web- ster Engineering Corporation in the selection of its representatives for the purpose of collective bar- gaining or the adjustment of grievances by ratify- ing the discipline imposed on Carl Mattocks by Local 478 because he performed supervisory duties. WE WILL NOT in any like or related manner re- strain or coerce Stone & Webster in the selection of its representatives for purpose of collective bar- gaining or adjustment of grievances. WE WILL remove from our records the denial of the appeal filed by Carl Mattocks about the disci- plinary action imposed by Local 478 against him for the performance of his supervisory duties and remove all references to the charge, fine, and sus- pension imposed on Carl Mattocks by Local 478 and we will advise him, in writing, that we have done so. INTERNATIONAL UNION OF OPERAT- ING ENGINEERS Jonathan B. Kreisberg, Esq., for the General Counsel, Burton S. Rosenberg, Esq., of Hamden, Connecticut, for Respondent Local 478. Richard Grifn, Esq., of Washington, D.C., for Respond- ent International. Ronald D. 'Lasky, Esq. (Gross, Hyde & Williams), of Hart- ford, Connecticut, for the Charging Party. DECISION STATEMENT OF THE CASE WINIFRED D. MORIO, Administrative Law ]fudge. This case was tried on 25 February 1985 at Hartford, Con- necticut. On 11 October 1984 the Officer-in-Charge for Subregion 39 issued an order in which he consolidated cases and issued a consolidated complaint in Case 39- CB-597(1-2) against the International Union _of Operat- ing Engineers (Respondent International) and the Inter- national Union of Operating Engineers, Local 478 (Re- spondent Local 478). The consolidated complaint al- leged, in substance, that Respondent Local 478 violated Section 8(b)(1)(B) by suspending Carl Mattocks because he exercised his supervisory authority and that Respond- ent International violated Section 8(b)(1)(B) by its denial of Mattocks' appeal of this suspension.' The Officer-in-Charge for Subregion 39 on 23 Novem- ber 1984, issued' a second order, in which he consolidat- ed cases and issued a second amended consolidated com- plaint in Case '39-CB-597(1-3). This second amended consolidated complaint reiterated the violations set forth above and added an allegation that Respondent Local 478 had violated Section 8(b)(1)(B) when it imposed a fine on Carl Mattocks because he exercised his superviso- ry authority. An amendment was made to this second amended con- solidated complaint on 29 January 1985 in which it was 736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alleged that the above-described conduct by Respondent International and Respondent Local 478 also violated Section 8(b)(1)(A) because Mattocks was an employee within the meaning of Section 2(3) of the Act who had the responsibility to effectuate the layoff and discharge of employees of Stone & Webster Engineering Corpora- tion '(Stone & Webster/Company). Respondent International and Respondent Local 478 filed answers to these amended consolidated complaints in which they denied the commission of the unfair labor practices, although Respondent Local 478 admitted that it had suspended Mattocks and Respondent International admitted that it had denied the appeal of that suspension. All parties were afforded the opportunity to be heard, to introduce evidence, to examine and cross-examine wit- nesses, to argue orally, and to file briefs. Briefs were filed by all parties. Based on the entire record, and from my observation of the demeanor of the witnesses, and after due consideration I make the following FINDINGS OF FACT 1. JURISDICTION Stone & Webster Engineering Corporation (Stone & Webster/Company), a Massachusetts corporation with an office and place of business in Boston, Massachusetts, is and has been engaged, as a general contractor, in the building and construction industry building a nuclear power plant in Waterford, Connecticut. Annually, Stone & Webster in the course and conduct of its business op- erations, purchases and receives at its jobsites materials and supplies valued in excess of $50,000 directly from points outside the State of Connecticut. The parties admit and I find that Stone & Webster is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS The parties admit and I find that Respondent Local 478 and Respondent International are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Mattocks' Duties and Responsibilities Respondent Local 478 admitted that it had suspended Carl Mattocks, and Respondent International admitted that it had, denied his appeal of that suspension.' The record reveals that Mattocks has been a member of Respondent Local 478 since 1953 and that during the past 14 years Mattocks has been employed by Stone & Webster, as a master mechanic, in connection with the construction of a, nuclear power facility at Millstone Point, in Waterford, Connecticut. At the present time, and for the last 10 years, Mattocks has been working on Unit III at the Millstone site. According to Edwin Browning, senior labor relations supervisor for Stone & Webster, the cost of construction for Unit III will be in excess of $3 billion. At the present time there are 1600 i The Respondents did not present witnesses during the hearing employees at the site, although in the past there have been as many as 3500 employees at the site. The general superintendent of construction at the site is C. B. Sprouse, and the chief construction supervisor is Robert Nickerson, who, also has the title of equipment supervi- sor. Nickerson has overall responsibility for the work performed by the various crafts at the site, including the work of the boilermakers, millwrights, teamsters, and op- erating engineers.2 'Browning testified that the chain of command for the boilermakers and millwrights includes a foreman, a general foreman, and a construction, super- visor who is the individual who reports directly to Nick- erson. According to Browning, the chain of command for the operating engineers does not include a foreman, general foreman, or construction supervisor. Rather, the operating engineers on the site report to Mattocks, who, as master mechanic, is on the same level as the general foreman for the other crafts. Mattocks -reports directly to Nickerson. The record reveals that in February 1982 there were 75 operating engineers, 57 boilermakers and boiler- makers/welders, 23 millwrights, and 40 teamsters at the site. In February 1983, there were 107 operating engi- neers, 44 boilermakers and boilermaker welders, 35 mill- wrights, and 60 teamsters; in February 1984, there were 64 operating engineers, 34 boilermakers and boiler- makers/welders, 52 millwrights, and 67 teamsters; in February 1985, there were 27 operating engineers, 3 boil- ermakers, 36 millwrights, and 37 teamsters. 3 It does not appear that Mattocks has the authority, di- rectly, to hire or discharge employees. However, accord- ing to Browning, the Company considers that it is Mat- tocks' responsibility to "carry out" the Company's poli- cies with respect to the hire or discharge of employees. Browning did not elaborate on what he meant by that statement. Mattocks, however, did testify that' his recom- mendations with respect to the hire or discharge of em- ployees are accepted. Further, according to uncontra- dicted testimony by Mattocks, although his supervisors decide whether there is a need -for additional operating engineers, he decides whether there is a need for addi- tional mechanics. His recommendations as to which par- ticular employee should be hired for either category' are followed by Nickerson. Mattocks claimed - that until about 13 months before the hearing in the instant case he called the Respondent Local 478 hall to secure operating engineers and the individuals he requested always were referred to the site.4 Patrick Milardo, an employee, testi- fied that he had been unable to secure a job at the site, although he had tried ,repeatedly to be referred through Respondent Local 478. However, he was referred by the 2 There are several other crafts at the site including carpenters , electri- cians, ironworkers, pipefitters, etc. It is unclear whether Nickerson has overall responsibility for all these crafts. " 2 These figures include employees who were present at the site and does not include foremen. 4 There was only one instance when an employee recommended by -Mattocks was not referred. This incident involved an employee, Ralph Gigliotti and the Respondent Local 478's refusal to refer Gigliotti was found to be a violation of the Act in Operating- Engineers Local 478 (Stone & Webster), 274 NLRB 567 (1985). OPERATING ENGINEERS (STONE & WEBSTER) 737 local after he spoke with Mattocks about a job 'at'the site. Mattocks is advised by Nickerson or other manage- ment representatives when it is necessary to lay off em- ployees, but it is Mattocks who decides which specific employee is to be laid off. In some instances, when the qualifications of the employees are equal, Mattocks will recommend that the employee with the least amount of service be laid off. On the other hand, if in Mattocks' opinion the qualifications are not equivalent, he will decide which employee is the most qualified and he will recommend that that employee be retained. In both situa- tions, Mattocks' recommendations are followed. Nickerson determines whether overtime work is neces- sary with respect to the construction work. However, it Is Mattocks who decides whether maintenance overtime work, is necessary and his recommendations with respect to such work are accepted by Nickerson. It is Mattocks who assigns overtime work and while much of this as- signment is routine, it is Mattocks who makes the final decision about who will receive such work. It appears that employees can refuse overtime work without being subject to discipline. On a daily basis Mattocks receives from Nickerson a list of the equipment to be used for that day- Mattocks then meets with all the operating engineers before the start of work and he assigns the particular employee to the particular equipment to be used on that day. It is Mattocks who decides which employee is best qualified to operate the equipment and his decision is based on his independent evaluation of the employee's capabilities. In some instances, the assignment is routine in nature, how- ever, if there is a question about an employee's qualifica- tions it is Mattocks' sole responsibility to make the deci- sion as to which employee, should be used. Mattocks, Patrick Milardo, and Gregory Nicholas, two operating engineers on the job, all testified that Mattocks regularly moves employees from one machine to' another and these moves, also, are based on a decision made solely by Mat- tocks.5 The proper maintenance of equipment on the job is also part of Mattocks' duties. In the course of fulfilling this duty, Mattocks ascertains the cost for the repair to the equipment and he discusses with Nickerson both the need and cost for the repair of the equipment. 'However, it is Mattocks who decides - which employee will repair the particular piece of equipment, again based on his in- dependent evaluation of the capabilities of the employee. Although Mattocks does not have the direct authority to hire employees, he does decide, based on his examination of the employee's background, whether the new employ- ee can perform independently or needs to be' assigned to a more experienced employee and he will choose which of the older employees will train the new one. In addition to the above duties, Mattocks also main- tains the timecards for the operating engineers. Mattocks fills in the employee's name and badge number and the time worked by the employee and he signs the card in the>-sbetion marked, "Approved General Foreman." This card is then submitted to Nickerson for his, sign,^a- ture. This card is used by the time department to deter- mine the employee's pay. The record indicates that it is Mattocks who checks the operating engineers in each morning when he assigns them their work. The record fails to reveal that Nickerson is aware, on a daily basis, of the hours worked by each operating engineer. Browning testified that Mattocks has the authority to resolve employee complaints and to grant permission to employees to leave work early, although be was un- aware of any specific situation where Mattocks exercised this authority. Although Browning claimed that Mat- tocks could recommend that employees be disciplined, he also was unaware of any instance when Mattocks did recommend such discipline. Browning further claimed that the Company relied on Mattocks to report matters of a disciplinary nature, but he could not recall an occa- sion when Mattocks made such a report. According to Browning, the Company expects that all employees will report a breach of the Company' s rules. According to Mattocks, he frequently resolves the complaints that the operating engineers have with other crafts and he does this in discussions with the supervisors of the other crafts. He also testified that he has discussed an employee's personal problems and he regularly per- mits employees to leave work early, if there is a family problem, without discussing the matter with management representatives. Milardo and Nicholas both testified that they have discussed both their personal problems and problems that they have had with-other crafts and Mat- tocks has resolved the problems. Further, according to both employees, they have asked and received permis- sion from Mattocks to leave work early and Mattocks has granted this permission directly to them without any discussion of . the matter with management representa- tives. It appears that operating engineers call Mattocks, rather than the personnel department, if they cannot work due to illness or if they will be late for work. Nich- olas also testified that Mattocks has criticized his work and that all orders for operating engineers are received from Mattocks. Mattocks has his own office, which is located in the maintenance area about 250 feet away from Nickerson's office. Nickerson visits Mattocks at his office several times a day, but the visits are of a short duratiLon. It does not appear that any other operating, engineer has an office or is in frequent contact with Nickerson. The posi- tion of master mechanic is covered by the collective-bar- gaining agreement in existence between the Company and Respondent Local 478. Mattocks is, paid 25 percent above the highest rate paid to other bargaining unit em- ployees. The parties stipulated that the contractual basis on which Mattocks received the additional moneys was "the maintenance of standards clause provided for in the agreement pursuant to a past practice of the parties that payment of a master mechanic would be 25 percent above the highest rate." 5 The parties stipulated that employees Frank Bonita, James Leonard, and Houston Vaughn, if called, would testify in accordance with the tes- 6 There is another section on this card that is marked, "Signed-Fore- timony of Milardo and Nicholas about Mattocks' duties. m 11 an 738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. `Prior Events As noted, Mattocks has been a member of Respondent Local 478,since 1953 and, according to Mattocks; he did not have problems with the Local until 1983. In that year,. Mattocks openly supported Ralph Gigliotti, who was, also a member of the Local ' and an employee of Stone & Webster, for the position of business manager against the incumbent , Elwood Metz. Mattocks also testi- fied at an unfair labor practice hearing on a charge filed by Gigliotti in which Gigliotti claimed that " representa- tives of the Local had interfered with his job because of his -opposition to Metz. The Board in that case found that Respondent Local 478' had violated 'Section 8(b)(1)(A).7 There was also a factual finding that Re- spondent Local 478 •had sent 'a telegram to Stone & Web- ster in which it stated that the Local did not recognize Mattocks as the master -mechanic on the job. It does not appear that there was any change in Mattocks ' duties be- cause of- this telegram. A further charge was filed by Gigliotti against the Local alleging a violation of Section 8(b)(1)(A) because representatives of the Local refused to refer Gigliotti for employment because of his- opposi- tion to Metz, The Board found, that the Local had violat- ed Section 8(b)(1)(A) as alleged.,8 C. The Charge by Michael Civitillo Michael Civitillo was hired by Stone & Webster about 17 December 1982-as a,mechanical heater mechanic and he continued in that position until - early 1983 at which time he -was scheduled to be laid off because of a lack of the type of work he - performed . However, -Mattocks learned -that a mechanic who- had been employed to check liquid levels on the equipment was scheduled to leave and he recommended to Nickerson-that Civitillo be hired and Civitillo was hired. At the time that Mattocks spoke to Nickerson about Civitillo, Nickerson told him that job,would last only until the fall. At some point in August 1984, Civitillo approached Mattocks about the possibility of being retained in the same position for a longer period of -time because he needed an additional 1- 1/2 -years of employment. In the course of this conversa- tion, Civitillo indicated to Mattocks that Mattocks had an obligation to keep him because Civitillo had support- ed - the Gigliotti- slate in the election . Mattocks -became angry at this statement by Civitillo and stated that he had not made promises to anyone for their support. On, 14 September 1983 Civitillo filed a charge Against Mattocks in which he contended that Mattocks had vio- lated certain articles of the constitution of Respondent International and the bylaws of Respondent Local 478. Civitillo claimed that Mattocks had erroneously accused him of not putting oil in a truck, but when he checked the truck it was at least three quarts overfull and, there- fore, the incident was being fabricated to get rid of him after the election was over. Mattocks submitted a signed statement to representatives of the local in which he ex- plained that a' teamster had reported an oil shortage on a T Operating Engineers Local 478 (Stone & Webster), 271 NLRB 1382 (1984). 8 Operating ' Engineert Local 478 (Stone & Webster), 274 NLRB 567 (1985). truck that had been examined by Civitillo , and when Mattocks had the truck checked by Michand , another mechanic, they- found that there was an oil shortage. Mattocks reported the incident to Nickerson but when Mattocks determined- that the engine had not been dam- aged he did not pursue the matter . In this statement, Mattocks claimed that Civitillo had not been discharged because of the oil incident, he had been laid, off when Stone & Webster decided that the position held by Civi- tillo was unnecessary. On 10 November 1983 a pretrial hearing was held before Respondent Local 478's executive board to con- sider the charge filed by Civitillo:9. The board included Elwood Metz, the business manager; James ' McParland, the recording secretary; and business agents Joseph De- laney, James Keyes, Michael Rapuano, and Wayne Genyes. Both Mattocks and Civitillo appeared before the board. During this proceeding, Mattocks submitted an- other statement in which he claimed that Civitillo's charge was "false, that Civitillo's layoff was due to a re- duction in force and not dereliction of duty, that the de- cision to reduce the work force was made by the Com- pany and not by him, and that the power to hire or fire was' limited to the management of Stone & Webster. Mattocks also submitted statements from Nickerson, Clarence Michaud, a mechanic, and Monroe Beebe, an acting master , mechanic. Nickerson 'claimed, in his state- ment, that he had eliminated certain positions, `including the position of oil checker . 1° In his statement, Michaud claimed that he checked the oil level on a truck after a driver complained and he found the oil level to be low. Beebe, in his statement, -claimed that the' practice of using a maintenance engineer to check oil levels was dis- continued on 14 September 1983 . 111 There were other documents submitted by Mattocks to support his claim that he had not been at work during the period when Ci- vitillo was laid off. According to Mattocks, Civitillo` also presented evidence to the board, although not in the form of affidavits. At some point during the' proceeding, Metz stated that Mattocks had laid off Civitillo for politi- cal reasons, which - Mattocks - denied. Metz then `asked Mattocks why he had kept Patrick Milardo 12 and laid off Civitillo and Mattocks explained that Milardo had qualifications that were needed on the job and it was in the best interests of the Company to retain Milardo. Thereafter, the board met in closed session and decided, unanimously, to send the charge to trial , before the full membership. In the proceedings, involving Mattocks' appeal to the Respondent International, the members of the executive board claimed that they had decided to present the issue to the full membership - because they 9 Art. XXIV, sec. 7(o) of the International constitution provides that the local executive board or any other board established for the purpose of investigating charges has the discretion to hold a pretrial hearing. The purpose of such a hearing is to define the issues and to make a prelimi- nary determination whether a charge has merit The board has the au- thority to decide not to proceed with the case. 10 Nickerson did not refer to Civitillo by name, he referred to the posi- tion held by Civitillo. - 11 Neither Michaud nor Beebe referred to Civitillo by name. xa Milardo had run on the Gighotti ticket for the !position of president of the Local. He was unsuccessful in his bid. OPERATING ENGINEERS (STONE & WEBSTER) viewed the matter as a no-win situation for the executive board due to the fact that the case involved allegations of political motivation between two supporting the slate, which had run in opposition to the executive board. Mat- tocks was informed, subsequent to the hearing, that a trial would be held on the charge during a union meeting on 13 January 1984. However, before that date, Mattocks was summoned to appear before the, executive board on 19 December 1983. Mattocks was the only witness who testified con- cerning this meeting. Present at this meeting were repre- sentatives of Respondent Local 478, including Metz, the business manager, Joseph Mallozzi, the Local's president, McFarland, the recording secretary, business agents ]Keyes, Rapuano, Genyes, Robert Gates, the union stew- ard, and Edward Moffet and Robert Giacia.1 s Mattocks testified that Metz started the meeting by reading a state- ment, allegedly signed by Anthony Fiorella, a former employee of Stone & Webster. In this statement, Fiorella claimed that Mattocks had caused Fiorella to be termi- nated by Stone & Webster. Metz requested Mattocks to sign the statement, which Mattocks refused to do be- cause he said it was not correct. When Mattocks refused to sign the statement, Metz began to question him about the hire and discharge process at Stone & Webster and he insisted that Mattocks was instrumental in that proc- ess. Mattocks replied that he did not set up the process, he followed it. At this point, Metz became angry and he began to use foul language and make obscene gestures. Metz also said, "We're going to try you next month and we're going to straighten you out." At this point, Mat- tocks asked what the Company would do if he agreed to make changes in the hire and discharge procedures and Mallozzi stated that he would take care of Stone & Web- ster. During this meeting, Metz accused Mattocks of being the campaign, manager for Ralph Gigliotti, which Mattocks denied. Metz then stated that Mattocks' daugh- ter had been treasurer of Gigliotti's committee, which Mattocks admitted. Subsequent to this meeting, Mattocks attempted to file internal union charges - against Metz, but he was unsuc- cessful. Mattocks requested forms in order to file these internal charges, but he was told by McFarland that he did not have the forms, he could file his charge on any paper he had. Mattocks then filed a detailed statement, on 3 January 1984, concerning the events of 19 Decem- ber 1983. In this statement, Mattocks noted that he had been called to an executive board meeting on the evening of 19 December and that during this meeting Metz had interrogated him about the hiring process at Stone & Webster, had accused him of being instrumental in that process, had demanded that he sign a statement to that effect and had become abusive to him when he re- fused to do so. Mattocks concluded his statement with the comment that this conduct by Metz was in violation of article XXIV of the International constitution. Not- withstanding the detailed nature of this' statement, it was returned to Mattocks by Mallozzi, allegedly because it 18 Mattocks was not sure of the positions held by the last two mdivid- uals but he did state that not everyone present was a member of the exec- utive board. 739 was 'not addressed to the recording secretary and was not specific with respect to the time, place, or details of the alleged offense. Mattocks did not attempt to file an- other charge. The trial on the charge filed by Civitillo was held on 13 January 1984, during the course of a regular union meeting and Mallozzi, president of Respondent Local 478, presided at the meeting. Civitillo presented his case but Mattocks was represented by Patrick Milardo. There were approximately 300 members present at this pro- ceeding. The trial commenced with Civitillo's charge being read to the membership and Civitillo then gave some of his work background with the Company. Ac- cording to Civitillo, in April 1983 Gigliotti advised him that there was a job available on the second shift as an oil checker and Civitillo got the job. About a month later, Civitillo was informed by the union steward that he was to be laid off. Civitillo, however, was not laid off due, he claimed, to Mattocks' intervention on his behalf. Civitillo indicated that Mattocks had intervened because they were both actively involved in the Gigliotti cam- paign at the time. Civitillo also indicated that it was Mat- tocks who specifically assigned him to his oil-checking duties. Civitillo's statements at this proceeding were not entirely clear but he did make two points. The first point was that Mattocks had the authority to have him dis- charged and he exercised that authority and caused his discharge. The second point was that the "oil incident" Was created so that Mattocks could have him discharged because he no longer needed him after the union elec- tion. With respect to the first point Ciivitillo stated the following: Nickerson may have made the lay-off but the only way he can evaluate the job is from what Mattocks tells him. Civitillo also claimed that Nickerson did not know him and could not evaluate him. Thus, he stated: So how can this man make any judgment about any engineer when he doesn't know them and ,doesn't know what the qualifications of the engineers are, so Mattocks had to know. Civitillo repeatedly made the point that Mattocks could do what he wanted at Stone & Webster and when Mat- tocks decided he no longer needed Civitillo he got rid of him. With respect to the second point, Civitillo was asked whether he thought he was laid off after the election be- cause he was no longer needed. In response, Civitillo stated: That is definitely the opinion that I got. As a matter of fact I saw it coming right after the election. That's why I smelled a rat when they were trying to fabricate all of these incidents for the departure of Civitillo. Civitillo called two witnesses, Donald Pettengill and Robert Gates, in support of his position. According to both individuals, Civitillo was scheduled to be laid off on 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 21 October 1984 but after the oil incident Mattocks told them that Civitillo was a "troublemaker" and he would not be there until 21 October 1984: Milardo cross-examined Civitillo on behalf of Mat- tocks. Mattocks then read the statement he had filed in response to the charge wherein he denied that the oil in- cident was-the, reason for-Civitillo's layoff. Mattocks also read statements by Nickerson and Michand. Nickerson, in his statement, explained that he had decided on the re- duction in force and this had caused Civitillo's layoff. Michand's statement supported the version of the oil in- cident given by, Mattocks. At the conclusion of the hear- ing, Milardo stated that-Mattocks was not responsible for Civitillo's layoff. He also said that the' leadership of Re- spondent Local 478 was using Civitillo to get at Mat- tocks because Mattocks, had supported Gigliotti in the election against Metz. At the conclusion of the hearing the membership then voted, and the tally was guilty, 191; not guilty, 109, with 3 void ballots. On 19 January 1984, by- letter, Mattocks was advised that he was suspended for 3 years from the rights of membership, -including at- tendance at union meetings, but he was still obligated to pay dues. On 26 January 1984 Mattocks filed an appeal of his suspension with Frank Hanley, general secretary-treasur- er of the Respondent International. Mattocks filed copies of all the exhibits produced during the trial, together with the Civitillo charge and the decision rendered by Respondent Local 478. The thrust of Civitillo's charge was that Mattocks had caused Civitillo to be laid off. Mattocks also advised the International that he had not been provided with a copy of the transcript of the hear- ing, although he had asked and paid for it. Mattocks reit- erated his position that he had not been responsible for Civitillo's layoff. On 22 June 1984 Mattocks filed an ad- ditional statement in support of his appeal. In this state- ment, he noted that he had supported the party opposing the incumbent leadership of the Local and, thereafter, he had suffered several'` incidents, including slashed 'tires, demolition of his car, physical injury, obscene phone calls, physical threats by Metz and the processing of friv- olous charges against him with approval by Metz. Mat- tocks stated, again, that he was being harassed because of his support for those who had opposed Metz. On 27 June 1984 Mattocks' appeal was heard by a panel of vice presidents of the Respondent International. Respondent Local,478 was represented by Joseph Mal- lozzi, president, Michael Rapuano, vice president, James McParland, recording secretary, Wayne Geynes, finan- cial secretary. Mattocks was not. present and was not represented. On 13 July 1984 the panel issued its report to the general executive board. In this report, the panel stated that Civitillo accused Mattocks of manipulating the hire and discharge process, at Stone & Webster to keep Civitillo on the payroll when Civitillo, supported Gigliotti against Metz and later had manipulated the hire and discharge process to have Civitillo's position abol- ished after the election was over and Civitillo no longer was needed. In this report, the panel stated that Mat- tocks had denied that he had control over the hire and discharge process at Stone & Webster and further denied that he had, caused- Civitillo's layoff. During the proceed- ing, before the panel, McParland stated that while Mat- tocks did not have final-say over the hire and discharge process, he, effectively, controlled it by his recommenda- tions to management . The panel, unanimously,- agreed that Mattocks' appeal should be denied. On 6 August 1984 Frank Hanley,, general secretary- treasurer of Respondent International; advised Mattocks, by letter, that his appeal had been denied. In this letter, Hanley stated that at a meeting held on 13 July •1983-the general executive board of the Respondent International had denied Mattocks' appeal based on the evidence con- sidered by the panel designated by it. The evidence con- sidered by the panel, as noted above, included the asser= tion by Civitillo that Mattocks had the authority to hire and discharge at will at Stone &- Webster and McPar- land's assertion, as a representative of Respondent Local 478, that Mattocks effectively controlled the hiring and discharging of operating engineers at Stone & Webster. D. The Charge by Anthony Fiorello On 11 January 1984 Mattocks was notified that a second charge was filed against him by Anthony Fior- ello, a former employee of Stone & Webster. In this charge, Fiorello claimed that Mattocks had caused Fior- ello, Ralph Capella, Bart Miranda, and others to lose their employment. Fiorello also claimed that Mattocks had said the Company should sue Respondent Local 478 because an earlier strike by the-surveyors was-illegal. Fi- nally, Fiorello stated that Mattocks had caused his loss of employment. The charge alleged that these actions by Mattocks violated the International constitution and the bylaw's of the Respondent Local 478. On 26 January 1984 Mattocks forwarded a statement to McParland with respect to the charge filed by Fior- ello. Mattocks `stated, in this document, that Fiorello was laid off on orders by management because of a defective machine; that Ralph Capella was laid off by management when the rental on the machine he operated expired; Bart Miranda also was laid off on management orders to permit repairs to be made on the machine' that he operat- ed. On 5 June' 1'984 Mattocks was advised, by letter, that a pretrial hearing would be' held 14 June 1984 on the charge filed by Fiorello. Mattocks did not attend this pretrial hearing and, on 18 June 1984, he was advised, by letter, that on the recommendation of the executive board that the matter would be presented to the full membership on 14 September 1984. Mattocks did not attend this meeting. Patrick Milardo testified that he was present at this membership meeting and attempted -to represent Mattocks, but was denied the right to do so. According to Milardo, Fiorello, Capella, and Miranda stated only that they were unjustly terminated and they considered that Mattocks was responsible for their, termi- nations. They did not offer any details concerning their terminations and did not call witnesses in support of their charges. On .5 October 1984 Mattocks was advised by letter from McParland that he had been found guilty of the charge brought by Fiorello by a vote of the member- ship and that a fine of $1000 had been imposed by the president of the local. OPERATING ENGINEERS (STONE & WEBSTER) 741 E. Mattocks' Testimony Re Civitillo, Fiorello, Capella, and Miranda Basically, Mattocks' testimony concerning the oil inci- dent followed the statements he made before the `execu- tive board and during the trial on Civitillo's charge.'Ac- cording to Mattocks, the incident arose when he was ap- proached by a teamster who complained that the oil in the engine of his truck was low, it was showing on the pressure gauge. Mattocks had Michaud, another mechan- ic, check the oil and, Michand told Mattocks that the oil was a gallon low. At that point, Mattocks asked someone to locate the union steward because he thought the engine had been damaged. He also reported to Nickerson that the engine had been damaged .and that Civitillo had given him a false report about the amount of oil in the truck. The steward could not be located and the truck was needed, so Mattocks directed someone to add the re- quired amount of oil. The truck was able to be used be- cause the engine had not been damaged and Mattocks took no further action about the incident. Mattocks denied that the incident - caused Civitillo's layoff. The layoff was due solely to a reduction in force and it was effectuated by Nickerson when Mattocks was on leave. According to Mattocks, Fiorello had been operating his machine for about 5-1/2 years. During this period of time, the jib on the main boom had, become bent due to the normal operation of the machine. The machine was inspected on a routine basis and after one such inspection Mattocks determined that the jib had a 9-1/2 degree bend and he considered this to be a dangerous condition. Hereported the condition to the safety section and they put a "do not use" tag on the machine. He also reported the situation to Nickerson who directed Mattocks to shut the rig down and lay off the operator. Mattocks shut the rig down and asked to see the union'steward to discuss Fiorello's layoff. However, the two men did not come to discuss the matter with Mattocks, rather, they discussed it with representatives of the labor relations section. Fiorello was not called to testify in this hearing. Mattocks also testified that Capello operated equip- ment that had been rented. When the rental period ex- pired, Nickerson advised Mattocks to lay off the opera- tor, which he did. Capello -also was not called to testify. Mattocks also advised Nickerson that, the machine ,oper- ated by Miranda should be shut down for-repairs. Nick- erson agreed and directed Mattocks to lay off the opera- tor, which Mattocks did. Miranda did not testify in this hearing. IV. ANALYSIS A. The Status of Mattocks The General Counsel contends that at the time of the events involved herein Mattocks: was a supervisor within the meaning of Section 2(11),of the Act. The Respond- ents deny that assertion. Section 2(11) of the Act states the following: The term "supervisor" means any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employ- ees-or responsibly to direct them, or to adjust their grievances, or to effectively recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine clerical nature, but requires the use of independent judgment. It is well established that the possession of any one of these criteria is sufficient to establish that an employee is a supervisor within the meaning of the Act.14 As noted, Respondents did not present witnesses to testify concern- ing Mattocks' status. Rather, they relied on the testimony adduced from the witnesses presented by the General Counsel and they contend that the testimony of those witnesses establishes that Mattocks' duties were similar to those of the master machine in Operating Engineers Local 673 (Westinghouse Electric Corp.), 229. NLRB 726 (1977). In that case, the Board found the master mechan- ic was not a supervisor but merely a conduit through which certain company officials were able to execute their decisions. However, there are several differences between the two cases. In Westinghouse,. the Board found that the bulk of, the testimony was conclusionary in nature. This is not the situation in the instant case. More- over, the master mechanic in Westinghouse testified that all decisions to hire or discharge employees were made by management. In this case, however, Mattocks testi- fied, without contradiction, that he made the decisions concerning whether additional mechanics were needed and his recommendations were always followed by Nick- erson. He also testified that his recommendations con- cerning the hire or discharge of other employees also were accepted without question by Nickerson, That testi- mony was unrefuted. In fact, statements made by Civi- tibo at the membership meeting and testimony by Mi- lardo support Mattock's testimony. It was Civitillo's po- sition that Mattocks controlled the hire and discharge of employees at Stone & Webster and that he used that au- thority to have Civitillo discharged. Milardo testified that he had been unable to secure',worlc at Stone & Web- ster until he spoke to Mattocks. In addition, the evidence discloses that Metz insisted at the 19 December 1983 meeting ,that Mattocks had control over the hire and dis- charge process at Stone & Webster and McParland told the panel of the general executive board that Mattocks effectively controlled the hire and discharge process at Stone ,& Webster. In Westinghouse, the Board also considered the extent of the master mechanic's authority to assign work and found ' that the master mechanic merely executed man- agement decisions about which employees should be as- signed to a particular piece of equipment or job. In this case, Mattocks testified that Nickerson gave him a list of the equipment to be used each day but he decided which employee was, to be assigned to the equipment or job based on an evaluation, made solely by him, of the em- ployee's abilities. This testimony -was supported by Mi- 14 NLRB v. Edward G. Budd Mfg. Co., 169 F 2d 571, 576 (6th Cur. 1948), cert. denied sub nom. Foreman's Assn. v. Edward G. Budd Mfg. Co., 335 U S. 90$ (1949); Sheet Metal Workers Local 85 (Suburban Sheet Metal), 273 NLRB 523 (1984). 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lardo and Nelson. It was also supported by Civitillo's statements , at the membership meeting. According to those statements, Nickerson did not know the, employees and- did not know their qualifications and it was Mat- tocks who knew the employees' qualifications and decid- ed what work they should perform. Browning, the Company's representative, Milardo and Nelson, who worked directly for Mattocks, all testified that Mattocks effectively recommended most actions that affected the operating engineers at the Millstone site. Based on my observation of these witnesses and of Mat- tocks, I credit that testimony. Thus, I find that Mattocks effectively recommended the hire and discharge of em- ployees; assigned work to employees, based on an eval- uation of their abilities made solely by` him; rotated em- ployees on' machines according to his determination of what was needed; determined which employee was enti- tled to perform overtime work; decided whether new employees required additional supervision; allowed em- ployees to leave work early or arrive late to work; ap- proved employee timecards and resolved employees' complaints. Accordingly, I find that Mattocks was a su- pervisor within the meaning of Section 2(11) of the Act. Electrical Workers Local 340 (Nutter, Inc.), 271 NLRB 995- (1984). Respondents contend that even if Mattocks did possess supervisory authority, as defined in Section 2(11) of the Act, they were unaware of that fact at the time the disci- plinary actions were taken against Mattocks. In support of this assertion, Respondents note that Mattocks consist- ently denied his supervisory status. That statement does not reflect accurately Mattocks' position. Rather, Mat- tocks denied that he had the authority, independently, to hire or discharge any employee at Stone & Webster. He also denied that he had discharged Civitillo or caused his discharge. That testimony is consistent with,his testimo- ny in this proceeding. However, as 'stated, supervisory authority is not determined solely by the authority to in- dependently hire or, discharge employees. The power to recommend, effectively, such action, to evaluate employ- ees based on an independent judgment, to resolve griev- ances, and to control the work conditions of employees on a daily basis also establishes supervisory authority. Respondents were well aware that Mattocks possessed this type of authority. In fact, as noted, Metz accused Mattocks of controlling the hire and discharge process at Stone & Webster and McParland told the general execu- tive board that Mattocks effectively controlled the proc- ess. Both Respondents had full knowledge of Civitillo's assertion that Mattocks could do whatever he wanted at Stone & Webster, that he was Stone & Webster. It was the basis of his charge and of the charge filed by Fior- ello. It is difficult, in these circumstances, to find that Respondents were unaware of Mattocks' status.15 How- ever,, if they were not aware a cursory examination of the statements made by Civitillo should have alerted them to the possibility of his supervisory status. More- over, assuming that Respondents were unaware of Mat- 15 Further, it is difficult to accept that Metz was unaware of Mattocks' status at one of the major projects in the area, a project that was the source of employment for many operating engineers. tocks' supervisory status such - a lack of knowledge would not constitute a defense to a finding of a violation of Section 8(b)(1)(B) of ,the Act. There is nothing in the language of that section that suggests that, scienter is an element of-that violation. Sheet Metal Workers Local 85 (Suburban Sheet Metal), 273 NLRB 523 (1984). Nor is the issue Respondents' good faith or lack thereof. Wis- consin River Valley District Council of Carpenters (Skippy Enterprises), 211 NLRB,222, 227 (1974). B. Mattocks' Status-Section 8(b)(1)(B) The pertinent part of-Section 8(b)(1)(B) states: It shall be an unfair labor practice for a labor or- ganization or its agents-(1) to restrain or coerce .. . an, employer in the selection of his representative for the purpose of collective bargaining or the ad- justment of grievances. Respondents contend that under the language of the statute a violation of Section 8(b)(1)(B) cannot be found in the discipline imposed on Mattocks unless it can be shown that he possessed the authorityto act as a collec- tive-bargaining representative or had the authority to adjust grievances for the Company. This record, they argue, fails to disclose evidence of such authority. - - It is the position of the General Counsel that under the Board's "reservoir doctrine" all` individuals who possess supervisory status within the meaning of Section 2(11) are employer representatives within the intent of Section 8(b)(1)(B), although the individuals in question may not be -vested with the specific authority to act as ° collective- bargaining representatives or to'adjust grievances. The concept of the reservoir doctrine was stated in Toledo Lithographers Local 15-P and 272 (Toledo Blade Co.), 175 NLRB 1072, 1079 (1969), as follows: For Section 8(b)(1)(B) forbids a union's restraining and coercing "an employer in the selection ' of his representatives for the purposes of collective bar- gaining or the adjustment of grievances" and this protection of the employer's right to "selection" must be construed ' as protection not only the em- ployer's' continuing reliance upon supervisors al- ready selected, but his right at any time to make and rely upon a, selection of representatives from an uncoerced group of such supervisors whose loyalty to him has not been prejudiced and who he believes would be peculiarly qualified to represent him in the handling of grievances. It is Respondents' position, however, that the concept of "reservoir doctrine" was overruled by the Supreme Court's decision in Florida Power -& Light Co. v. Electrical Workers IBEW Local 641, 417 U.S. 790 (1974), and in support of that position Respondents cite the following language from that case: The conclusion is inescapable that a union's disci- pline of one of its members who is a supervisory employee can constitute a violation - of Section 8(b)(1)(B) only when that discipline may,adversely OPERATING ENGINEERS (STONE & WEBSTER) 743 affect the supervisor's conduct in performing the duties of and acting in his capacity as grievance ad- justor or collective bargainer on behalf of, the em- ployer. Respondents further, argue that the Second Circuit in NLRB v. Musicians Local 66 (Civic Music Assn.), 514 F.2d- 988, 992-993 (2d Cir. 1975), held that Florida Power Light effectively undermined the conceptual basis of the "reservoir doctrine." I do not argee that the "reservoir doctrine" was overruled by the Supreme Court's deci- sion in Florida Power & Light, with all due respect to the Second Circuit. In fact, the Supreme Court referred to the Toledo Blade' case in its decision. Moreover, an exam- ination of the decision in Florida Power '& Light discloses that the Court, in that case, was concerned with the issue of whether a union's discipline of a supervisor' can vio- late Section 8(b)(1)(B) unless it adversely affects "the su- pervisor's conduct in his capacity as a grievance adjustor or collective-bargaining representative." On the other hand, the "reservoir doctrine" deals with the issue of whether a supervisor must possess actual authority to act as a collective-bargaining representative or to adjust grievances or whether it is sufficient that the supervisor be part of the group from which the employer chooses such a representative. These are not the same issues. Fur- ther, it should be noted that subsequent to the Rochester decision the Board stated that it would adhere to the "reservoir doctrine." Teamsters Local 296 (Northwest Publications), 263 NLRB 778 fn. 6 (1982). It has contin- ued to do so to date. Sheet Metal Workers Local 85 (Sub- urban Sheet Metal), supra; Electrical Workers IBEW Local 340 (Nutter, Inc.), 271 NLRB 995 (1984); Electrical Workers IBEW Local 11 (Bergelectric Corp.),,271 NLRB 25 (1984). Accordingly, I find that Mattocks was an em- ployer representative within the intent of Section 8(b)(1)(B) of the Act. Moreover, based on this record I also find that Mattocks possessed and exercised the au- thority to resolve grievances. Browning testified' that Mattocks had such authority and Milardo and Nelson both testified that he frequently resolved grievances that they had with other crafts. Respondents contend that when Mattocks resolved these grievances he did so as the representative of Respondents. There is no evidence in this record to support such an assertion. Rather, it is evident that Milardo and Nelson brought their com- plaints to Mattocks in his supervisory capacity and that he resolved those grievances in that capacity. The Board has interpreted the term grievances to include both per- sonal and contractual grievances, Electrical Workers 1BEW Local 340, supra; Norwalk Typographical Union 529 (Hour Publishing Ca), 241 ' NLRB 310 (1979); Newark Newspaper Pressmen's Union 8 (Newark Star Ledger), 194 NLRB 566, 570 (19,71). In the instant case, both Milardo and Nelson testified that they also brought their personal difficulties to Mattocks and he assisted them with their difficulties. The fact that some of these grievances were of a minor nature does nqt diminish Mattocks' role as an adjustor of those grievances, Colum- bia Typographical Union 101 (Washington Post Co.), 207 14LRB 841, 847 (1973). C. Reasons Advanced by Respondents for the Discipline of Mattocks Respondents contend that not every discipline of a su- pervisor-member violates Section 8(b)(1)(B). It is true that the Supreme Court has stated that a union does not violate Section 8(b)(1)(B) when it disciplines supervisor- members who perform rank-and-file work during- a strike. However, that is not the situation present in the instant case. Civitillo, Fiorella, Capella, and Miranda did not accuse Mattocks of performing their work, they ac- cused him of causing their discharge. Although, in reali- ty, Mattocks was not responsible for- the discharge of Ci- vitillo or Capella, and only indirectly responsible for the discharge of Fiorella and Miranda, that is not the issue. The issue is why was Mattocks, a supervisor within the meaning of Section 2(11) and the intent of Section 8(b)(1)(B), called to appear before,the executive board of Respondent Local 479, why was he suspended, and why was he fined. The entire thrust of the charges and state- ments made by Civitillo and others was that Mattocks had total control over the hire and discharge of the oper- ating engineers at the Millstone project and he used that authority to cause their discharge. Mattocks was disci- plined by Respondent Local 478 because of the manner in which the Local believed he exercised his supervisory duties. The discipline was a clear attempt to gain control over Mattocks and to make him a representative of the Union, rather than a representative of management. Sec- tion 8(b)(1)(B) was enacted by Congress to prevent this type of conduct. As the Board stated in San F ancisco- Oakland Mailers Union 18 (Northwest Publications), 172 NLRB 2173 (1968). "In enacting Section 8(b)(1)(B) Con- gress sought to prevent the very evil involved herein- union interference with an employer's control over its own representative." The Board, also, has stated that a union violates Section 8(b)(1XB) of the Act when it sub- jects a-supervisor-member to internal union discipline be- cause he exercises his supervisory authority contrary to the wishes of the Union. Teamsters Local 839 (Bechtel Corp.), 271 NLRB 1209 (1984); Longshoremen ILA Local 10 (Pacific Maritime), 254 NLRB 540 (1981). However, Respondent Local 478 contends that it was not responsible for the discipline of Mattocks, that the charges were filed by members, not officers of the Union, and that it was,the members who decided wheth- er Mattocks was guilty of the charges. Further, Re- spondent Local 478 contends that when it fined and sus- pended Mattocks its "sole purpose was to enforce the traditional kinds of rules that every union relies upon to maintain its organization and solidarity." These argu- ments are not persuasive. Although- the charges were filed by members, the decision to present the matter to the full membership was made by the executive board. The executive board had the discretion, by the terms of the International constitution, to proceed or not proceed with the charges. At the time that the executive board decided to proceed with the charges, they were fully aware that the charging parties claimed that Mattocks had total control over the hire and discharge process. However, the executive board claimed that they had to process Civitillo's charge because they did not want to 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD become involved in a dispute between two members of the Gigliotti slate who-had opposed the Metz slate. I am not persuaded by that explanation. Rather, I find that the board proceeded with the charges because Mattocks re- fused to accede to a demand made by Metz at the meet- ing on 19 December 1983. According to unrefuted testi- mony by Mattocks, at this meeting Metz demanded that Mattocks make changes in the hire and discharge process at Stone & Webster to comply with the wishes of the Union' and when Mattocks refused, Metz responded, "We are going to try you next month and we are going to - straighten you out." Based on the evidence in this record, I am convinced that the executive board pro- ceeded with these charges because Mattocks refused to change the hire and discharge process of Stone & Web- ster to conform to the wishes of the executive board. The, record also establishes that the president of Re- spondent-Local 478 presided at the membership meetings where-, again, he heard the accusation by the four indi- viduals that Mattocks controlled the hire and discharge process. Moreover, the evidence in the record establishes that both Metz and McParland knew that Mattocks, ef- fectively, controlled the hiring process at Stone & Web- ster: In these circumstances, it was incumbent on the of- ficers of Respondent Local 478 to exercise their discre- tion not to proceed with the processing of the, charges. The failure by these officers to do so establishes that if they did not initiate the process, they condoned and rati- fied the actions of the membership and, thus, are respon- sible for violations of the Act. Accordingly, I find that Respondent Local 478 violated Section 8(b)(1)(B) of the Act. Respondent Local 478's second argument relates to the proviso to Section 8(b)(l)(A). However, it is well estab- lished that the proviso does not involve alleged viola- tions of Section 8(b)(1)(B). As the Board stated in San Francisco-`Oakland, the provisio, which refers to the right of a labor organization to prescribe its own rules, is limit- ed to Section 8(b)(1)(A) and protects only legitimate in- ternal union affairs. D. Respondent International's Contention That Its Affirmance of the Respondent Local 478s Action Does Not Constitute Conduct Violative of the Act Respondent International contends that under the holding in Electrical Workers IBEW Local ' 134 (Illinois Bell), 192 NLRB 85 (1971), an international can only be held liable if a local's action "on its face" violated the Act and if the disciplined member raised, on appeal, the question of whether the discipline violated the Act. However, Respondent- International does note that in recent cases the Board has focused only, on whether a local's action, as presented to an international on appeal, "on its face" constituted a violation. It is the position of the General Counsel that Respond- ent International violated the Act when it provided its stamp of approval to actions of Respondent Local 478, which were violative of the Act. In Bricklayers (McCleskey Construction), 241 NLRB 898 (1979), a local union requested its international to en- force a fine which it had imposed against an employee, who was a job superintendent, because he refused to sign the Local's contract which had been negotiated with a multiemployer association. The individual who was fined did not file an appeal with the international and the international placed him on the delinquent list and ex- pelled him. The Board held that the international had a duty to investigate the action and had it done so even the "slightest review" would have disclosed the nature of the individual's job. In Electrical Workers IBEW Local 11 (Bergelectric Corp.), the international did not-merely "rubber stamp" the findings of the local as had been the case in McCleskey, it conducted an investigation and' re- viewed the record. Nevertheless, the Board found that the international violated the Act because it had the op- portunity, after its investigation, to reverse the' action of the local but it had failed to do so. The Board held that international had violated the Act because it had ap- proved the local's conduct and it, therefore, shared its li- ability. In the instant case, Respondent International argues that it was unaware of Mattocks' status, that he not only failed to bring his supervisory status to the attention of the representatives of Respondent International,-but that throughout the proceedings, before { Respondent Local 478, he consistently denied that he had caused the dis- charges of the four members. However, even a cursory review of the proceedings before Respondent Local 478 would have made Mattocks' status evident and Respond- ent International concedes that during its investigation of Mattocks' appeal it had the transcript of those proceed- ings. In those proceedings, Civitillo accused Mattocks of causing his discharge because he had the authority to do so. Civitillo also claimed that Mattocks controlled the hire and discharge of employees at Stone & Webster. Thus, the issue of Mattocks' status was clearly before Respondent International. The fact that Mattocks denied that he was responsible for those particular discharges did not relieve Respondent International of its obligation, particularly where it was fully aware of Civitillo's state- ments and the reasons advanced for the discipline: More- over, Respondent International was aware of Mattocks' status from the - report of its own panel. In that report, the panel noted that Civitillo claimed that Mattocks had "manipulated" the hiring process to cause his discharge. The panel also advised the general executive board that during its investigation of the appeal, Mc Parland, Re- spondent Local 478's representative told them that "while' as Master Mechanic Mattocks did not have final say over hiring and firing, he effectively controlled the process through his recommendations to management." Notwithstanding Respondent International's protestations that it was unaware of Mattocks' supervisory status, it is evident from the record that Respondent International was well aware of Mattocks' status when it denied Mat- tocks' appeal. Accordingly, I find that Respondent Inter- national, both from the proceedings conducted by Re- spondent Local 478 and the investigation of its own panel, Was aware of Mattocks' supervisory status at the time it denied his appeal. Therefore, I find that Respond- ent International violated Section 8(b)(1)(B) of the Act. OPERATING ENGINEERS (STONE & WEBSTER) 745 E. The Alleged 8(b)(1)(A) Violation The General Counsel argues that if Mattocks. is not found to be a supervisor Respondent Local 478 and Re- spondent International, nevertheless, can be found to have violated Section 8(b)(1)(A) of the Act because Mat- tocks was disciplined for performing his assigned work duties, which included the reporting of infractions of company rules. Respondent Local 478 contends that there was no company rule that required Mattocks to report that Civi- tillo had failed to maintain the 'oil level on a truck, or to discriminatorily recommend that Fiorello be laid off or suggest to the Company that it sue the Union for breach of a no-strike clause. Respondent International contends that Mattocks never advised the International that he had a duty to report infractions of company rules and, therefore, it was unaware of that fact. These contentions are not persuasive. Assuming that I had not found that Mattocks was a su- pervisor, I would, nevertheless, find that there was a' vio- lation of Section 8(b)(1)(A). In Carpenters (Hopeman Bros), 272 NLRB 584 (1984), and Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977), the Board found that a union violated Section 8(b)(l)(A) of the Act when it fined an employee who was required to report infractions of company rules, after the employ- ee reported such an infraction by another employee. In the instant case, Browning testified that it was part of Mattocks' duties to report violations of company rules. Both Browning and Mattocks testified, without contra- diction, that it was Mattocks' responsibility to ensure that equipment was properly maintained. In the course of the performance of his assigned duties, Mattocks report- ed Civitillo's - failure to properly maintain his truck, which was an infraction of company rules. Mattocks was suspended by Respondent Local 478 because Civitillo contended that this action by Mattocks caused his dis- charge. This suspension by Respondent Local 478 was upheld by Respondent International. Accordingly, if I had not found that Mattocks was a supervisor within the meaning of the Act, I would have found that Respond- ents' action against him, as a result of the Civitillo charge, would have constituted a violation of Section 8(b)(1)(A) of the Act.16 - THE REMEDY Having found that Respondent Local 478 and Re- spondent International have engaged in certain unfair labor practices in violation of Section 8(b)(1)(B), 1 shall recommend that they be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. '- The record does- not disclose that Mattocks reported any infraction of company rules by Ftorella, Capella, and Miranda. Rather, Mattocks re- ported that the equipment operated by them required repairs or that the lease on the equipment had expired. Although Mattocks made these re- ports as part of his assigned duties and these reports did lead to the layoff of these individuals for which Mattocks was disciplined by Respondents, I am not convinced that this is the type of situation contemplated by Car- penters (Hopeman Bros.), supra, or Chemical Workers (Essex International), supra. Respondent Local 478 having unlawfully disciplined Carl Mattocks and Respondent International having rati- fied.that unlawful discipline, I shall recommend that they be required to remove from their files all references to these unlawful disciplinary actions and notify Carl Mat- tocks -that they have done so and advise him that the un- ' lawful discipline will not be used against him in any way. In addition, I shall recommend that Respondent Local 478 be required to restore Carl Mattocks .to membership in good standing and make him whole for any losses he may have suffered as a result of his suspension from membership and rescind the unlawful fine and make him whole for any moneys he may have paid for the fine with interest as computed ' in Florida Steel Corp., 231 NLRB 651 (1977). In addition to these standard remedies, the General Counsel has requested that a broad cease-and-desist order issue, that reimbursement for expenses incurred in inves- tigation, preparation, presentation, and conduct of the case be allowed, that copies of the notice be forwarded to all members, and that a copy of the notice be read by Elwood Metz at Respondent Local 478's membership meeting. The officers and representatives of Respondent Local 478, including Elwood Metz, its business manager, have demonstrated a total disregard for their responsibilities under the National Labor Relations Act. As noted, in two recent cases the Board found that Respondent Local 478 and its officers and representatives violated the Act by interfering with the job of Ralph Gigliotti, a member of the Local, because of his opposition to Elwood Metz, its business manager. In the instant case, the executive board of Respondent Local 478 permitted charges to be processed against Carl Mattocks, a known' supporter of Gigliotti, although they were well aware of Mattocks' supervisory status. It is evident that Respondent Local 478 is a repeat offender and has demonstrated a proclivi- ty to violate the Act. Accordingly, I shall recommend that a broad remedial order issue against it. The record in this case does not establish that Re- spondent International had knowledge prior to the events herein of the prior violations of the Act by Re- spondent Local 478 or was party to those violations. I, therefore, shall not recommend that a broad cease-and- desist order issue against Respondent International. How- ever, I do note that Respondent International is now on notice of the disregard for the law demonstrated by offi- cers of Respondent Local 478, including Edward Metz, its business manager. The Board, in Tiidee Products, 194 NLRB 1234 (1977), held that it had the authority to award litigation costs in situations where a respondent engaged in frivolous litiga- tion. In Hecks, Inc., 215 NLRB 765 (1974), the Board distinguished situations where the issues raised, by a re- spondent were 'debatable from those situations where the issues raised were patently frivolous. In-'a subsequent case, Fetzer Broadcasting Co., 227 NLRB 1377 (1977), liti- gation costs were awarded by the administrative law judge when he found that the offending party had inten- tionally used defenses that were meritless on their face in 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a clear attempt to burden the process of the Board.17 And in J P. Stevens & Co., 239 NLRB 738, 772,'(1978), the 'administrative law judge, with Board approval, awarded litigation costs when- he found there were no significant factual controversies -and when it was estab- lished' that the respondent had' displayed a willful and persistent defiance of the 'law. The record 'in the instant case also establishes that there' were no factual contro- versies. Metz and McParland knew that Mattocks was a supervisor and he was disciplined because representatives of Respondent 'Local 478 believed-that he had -exercised that supervisory authority to cause the four' discharges. Respondents did not present witnesses because it recog- nized that there were no debatable or credibility issues. Respondent Local 478 relied on statements of its counsel to `advance its' defense (i.e.- that the Local was forced to process the- charges because the members filed the charges). That statement-is patently frivolous. The execu- tive board' had total discretion not to proceed with the charges but they chose to- proceed, notwithstanding that both Metz and McParland.were -fully aware of Mattocks' supervisory status. Moreover, Mallozzi, the Local's presi- dent, suspended Mattocks although he presided over the trial and heard Civitillo's statements that it was Mattocks who controlled the hire and, discharge' process at Stone & ,Webster. Accordingly, because I find that there were no debatable or credibility issues presented' by Respond- ent Local,478, because the defense advanced by it was patently frivolous,, and because it has demonstrated a persistent and willful defiance of the law, I shall recom- mend that it be required to reimburse the Board and Carl Mattocks for all expenses incurred in the investigation, preparation, presentation, and conduct of this case, in- cluding reasonable, counsel fees , salaries, witness fees, transcript` costs, printing costs, travel expenses, per diem, and other reasonable expenses. Tiidee, supra. Although, I have found that Respondent International was aware of Mattocks' supervisory status at the time it denied his appeal, I do not fmd, in all the circumstances, including a lack of evidence of a 'persistent defiance of the law, that the Respondent International should be held jointly or severally liable for the payment of the monetary costs awarded against Respondent Local 478 and I shall not make such a recommendation. I shall recommend also that Respondent Local 478 be required to mail to the home of each of its members a copy of 'the notice marked "Appendix A" signed by Elwood Metz Jr., its business manager. For reasons stated before, I shall not recommend that the Respondent International be required to forward to its membership a copy of the notice marked "Appendix B." CONCLUSIONS OF LAW 1. Respondent Local 478 and Respondent International are labor organizations within the meaning ,of Section 2(5) of the Act. 14 Although the parties did settle this case prior to the issuance of an Order by the Board, the Board stated, that it adopted the findings and conclusions of thesadministrauve law fudge. This case was cited in Admi- ral Merchant Motor Freight, 265 'NLRB ' 1 34 (1982) 2. Stone & Webster 'is an employer -engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 3. Carl Mattocks is, and has been at all times material herein, a supervisor within the--meaning of Section 2(11) of the Act, selected by Stone & Webster for the purpose, among other things, of the adjustment of grievances and collective bargaining within the meaning of Section 8(b)(1)(B) of,the Act. 4. Respondent Local '478, by, requiring Carl Mattocks to plead on charges and by fining and suspending him from membership in Respondent Local 478 for perform- ing supervisory work, has restrained and coerced Stone & Webster in the selection and retention of its,represent- atives for the purposes of collective bargaining and ad- justment of grievances, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 5. Respondent International, by ratifying the discipline imposed by Respondent Local 478 on Carl Mattocks be- cause he performed supervisory duties, has engaged and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue -the following recommend- ed18 ORDER (A) Respondent Local 478, its officers, agents, and representatives, shall , 1. Cease and desist from (a) Restraining and coercing Stone & Webster in the selection of its representatives for the purposes of collec- tive bargaining or the adjustment of grievances by trying, suspending from membership, fining,, or otherwise disciplining Carl Mattocks, or any other supervisor- member, for the performance of supervisory duties. (b) In any other manner engage in conduct that is vio- lative of the Act, or that restrains or coerces Stone & Webster, or any other employer, in the selection of its representatives for purposes of collective, bargaining, or grievance adjustment. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind and, remove from its records- the fine and membership suspension imposed on Carl Mattocks be- cause of his employment with Stone & Webster. (b), Restore Carl Mattocks to his status as a member in good standing in Respondent 'Local 478 with attendant rights. (c) Notify Carl Mattocks, in writing, that the--file has been rescinded, that records of the charges and fine against him have been expunged, and that he will be re- Is if no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings; conclusions, and recommended Order shall, as provided in Sec 102 48 of ' the Rules, be adopted by the Board and all objections to them shall be deemed waived for all'pur- poses. OPERATING ENGINEERS (STONE & WEBSTER) 747 stored to his status as a member in good standing with all attendant rights. (d) Post in conspicuous places at the meeting halls, of- fices, and hiring halls of Respondent Local 478, where notices are customarily posted, for 60 consecutive days, copies of the attached notice marked "Appendix A."19 Copies of the notice, on forms provided by the officer in charge for Subregion 39, shall be signed on behalf of Re- spondent Local 478 by Elwood Metz Jr., its business manager. Reasonable steps shall be taken by Respondent Local 478 to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Reproduce and mail to the home of each of its members a facsimile of the aforesaid notice signed by Elwood Metz Jr. (f) Sign and return to the officer in charge sufficient copies of the notice for posting by Stone & Webster, if willing, at all places where notices to employees are cus- tomarily posted. (g) Pay to the Board and Carl Mattocks the reasonable costs and expenses incurred by them in the investigation, preparation, presentation, and conduct of this proceeding before. the Board. (h) Preserve and, on request, make available to the Board or its agents for examination all records necessary to disclose whether the disciplinary actions taken against Carl Mattocks were,expunged from his record. (i) Notify the officer in charge in writing within 20 days of the date of this Order what steps Respondent Local 478 has taken to comply. 38 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (B) Respondent International, its officers, agents, and representatives, shall 1. Cease and desist from (a) Ratifying the discipline imposed by Respondent Local 478 on Carl Mattocks, or any other supervisor- member, for performing supervisory duties. (b) In any like or related manner restraining , or coerc- ing Stone & Webster, or any other employer, in the se- lection of its representatives for the purposes of collec- tive bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the denial of the appeal filed by Carl Mat- tocks for the discipline imposed on him by Respondent Local 478 because of his performance of his supervisory duties at Stone & Webster. (b) Remove from its files any reference to the denial of the appeal filed by Carl Mattocks and any reference to the disciplinary action imposed by Respondent Local 478 on Carl Mattocks and notify Mattocks in writing that it has done so. (c) Post in conspicuous places at its offices and hiring halls, where notices are customarily posted, for 60 days, copies of the attached notice marked "Appendix B." Copies of the notice, on forms provided by the officer in charge for Subregion 39, shall be signed on behalf of Re- spondent International by an officer of Respondent Inter- national. (d) Preserve and, on request, make available to the Board or its agents for examination all records necessary to disclose whether the denial of the appeal and the dis- ciplinary action taken against Carl Mattocks were ex- punged from his record. (e) Notify the officer in -charge in writing within 20 days of the date of this Order, what steps Respondent International has taken to comply.