Mason Au & Magenheimer Confectionery Manufacturing Co., Inc.

.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.