Mason Au & Magenheimer Confectionery Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1962

137 N.L.R.B. 680 (N.L.R.B. 1962)

.680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ready a member of the particular union before he, and it, came to
Respondent's plant.'
Accordingly, the Board reaffirms its original Order as qualified by
the decision herein.
As mentioned by the court , if any one of these four men might have been laid off for
economic reasons during the period of production curtailment , be is not entitled to full
backpay beyond such time. However , this does not diminish the finding of discriminatory
motivation in selection for layoff on August 18, 1960. The matter of limiting the amount
of backpay because of such subsequent unavailability of a position for the particular
discriminates for a reason unconnected with the discrimination is a problem for com-
pliance proceedings.
Mason Au & Magenheimer Confectionery Manufacturing Com-
pany, Inc. and William Neville and Local 30, 30A, 30B and 30C,
International Union of Operating Engineers , AFL-CIO, Party
in Interest. Case No. f-CA-7791-5. Jwrae 18, 1962.
SUPPLEMENTAL DECISION AND ORDER
On June 6, 1961, a hearing was held before Trial Examiner C. W.
Whittemore in a consolidated proceeding i which included the above-
entitled case. At the hearing, the Trial Examiner granted Respond-
ent's motion to dismiss on the ground that the averments in the
complaint failed to allege a cause of action under Section 8(a) (2) of
the Act. On January 15,1962, the Board issued its Decision and Order
in this consolidated proceeding finding that the allegations of the
complaints, if proven, may be sufficient to sustain a finding of a viola-
tion of Section 8 (a) (2) of the Act. The Board also ordered that the
cases be severed and remanded to the Regional Director for the Second
Region for the purpose of arranging separate hearings in the previ-
ously consolidated cases z
On January 25, 1962, the General Counsel issued an amended com-
plaint in the above-entitled case, again alleging that Respondent, by
and through its chief engineer, John J. Moran, was participating in
the internal affairs of Locals 30, 30A, 30B, and 30C, International
Union of Operating Engineers, AFL-CIO, and that Respondent's
conduct constituted a violation of Section 8(a) (1) and (2) of the
Act. On April 4 and 5, 1962, a hearing was held before Trial Ex-
aminer Owsley nose. At the conclusion of the presentation of General
Counsel's case, the Trial Examiner granted Respondent's motion to
dismiss on the ground that the General Counsel had failed to estab-
lish a prima facie case. Thereafter, the General Counsel petitioned
i The other parties named as Respondents in this consolidated proceeding included
Banner Yarn Dyeing Corporation , National Gypsum Company, Jos . Schlits Brewing Com-
pany, Stahl -Meyer, Inc ., and Rockwood Chocolate Co., Inc.
2135 NLRB 298.
137 NLRB No. 83.
MASON AU & MAGENHEIMER CONFECTIONERY MFG. CO . 681
the Board for review of the Trial Examiner's ruling. The Respond-
ent and the Party in Interest have filed briefs in opposition thereto.
Upon the basis of the entire record in the case, including the petition
for review and the briefs in opposition thereto, the Board makes the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Mason Au & Magenheimer Confectionery Manufacturing Company,
Inc., a New York corporation, with its principal office and place of
business in North Hempstead, New York, is engaged in the manu-
facture, sale, and distribution of candies and related products. During
the past year, a representative period, Respondent in the course of its
business manufactured, sold, and distributed at its place of business,
products valued in excess of $500,000, of which products valued in
excess of $50,000 were sold and shipped by Respondent from its place
of business directly to persons outside the State of New York. The
Respondent admits that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and we find that it will effectuate
the policies of the Act to assert jurisdiction in this case.
H. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges in substance that Respondent actively partici-
pated in the internal affairs of the Union by permitting John J. Moran,
its chief engineer and an alleged supervisor , to attend and participate
in meetings of the Union, to vote in elections conducted by the Union
among its members , to hold office in the Union , and to serve on its
executive board, thereby violating Section 8 (a) (2) of the Act. In
support of these allegations, General Counsel sought to establish that
Moran was employed in a supervisory capacity by Respondent; that
Moran had engaged in the complained-of union activity; and that
this conduct was chargeable to the Respondent. For the following
reasons, we find that the General Counsel failed to sustain the burden
of establishing that Moran was a supervisor within the meaning of
the Act, and that therefore the Trial Examiner properly granted Re-
spondent's motion to dismiss the complaint.
The evidence adduced at the hearing discloses that Moran has the
job classification of chief engineer and is employed in the Respond-
ent's boiler department. The employee complement of the boiler de-
partment consists of a chief engineer , an assistant chief engineer, four
watch engineers, three maintenance men, and a maintenance elec-
trician. All boiler department employees, including Moran, perform
similar duties consisting of the inspection of gauges, pipelines, and
plant machinery, and the maintenance and repair of this equipment.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waldemar Haug, Respondent's vice president, testified without con-
tradiction that the boiler department does not have a department chief
and that the employees in the boiler department receive instructions
from him, his brother, who is president of the Company, and Tony
Calabrese, the plant superintendent. According to Moran's testimony,
the employees in the department make repairs on their own initiative,
and when necessary, ask other employees in the department to help
them perform jobs requiring more than one man. When Superintend-
ent Calabrese wishes to have a specific job done, he sends a message to
the boiler department and whoever is there to receive the message will
carry out the order. The record shows Moran receives a weekly salary
of $225, but the record does not indicate how Moran's salary com-
pares with the salary of the next highest salaried employee in the
department.
There is no evidence in the record to support a finding that Moran
has the authority to hire or discharge employees or effectively recom-
mend the same. Nor is it established that Moran responsibly directs
employees. Therefore, as the record does not establish that Moran
possesses the statutory indicia of supervisory authority, we affirm the
Trial Examiner's ruling that the complaint be dismissed 3
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above Sup-
plemental Decision and Order.
3 Cf Nassau and Suffolk Contractors' Association, Inc., and its Members, 118 NLRB
174, 181-184.
District Council No. 19 and Local 334, Brotherhood of Painters,
Decorators and Paperhangers of America and Frank D. Fabian
and William B. G. Pitman Co., Inc.; George Simmons t/a
Simmons and Ruiter; and Other Employers . Case No. 22-CB-
361. June 20, 1962
DECISION AND ORDER
On February 15, 1962, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief and the Respondents filed a brief in
reply.
137 NLRB No. 69.