Kaplan BrothersDownload PDFNational Labor Relations Board - Board DecisionsJan 13, 194346 N.L.R.B. 1057 (N.L.R.B. 1943) Copy Citation In the Matter of MAx KAPLAN AND JACOB KAPLAN, CO-PARTNERS, DOING BUSINESS AS KAPLAN BROTHERS and TEXTILE WORKERS UNION OF AMERICA, GREATER NEW YORK JOINT BOARD Case R-4656.-Decided January 13, 19143 Jurisdiction :'artifical flower manufacturing industry. - -Investigation and Certification ' of Representatives : existence of question : refusal to grant recognition without certification of the Board ; election necessary. Unit Appropriate for Collective Bargaining : all production and shipping em- ployees, including part-time student employees, but excluding, executives, super- visors, foremen, foreladies, working foremen, working foreladies, factory clerks, office and clerical employees, maintenance employees, and home workers. - Practice and Procedure : authority of union to file petition may not be questioned by employer. Wasserman cPc Erensto f t, by Mr. Herbert L. Wasserman, - of New York City, for the Company. - Mr. James Lipsig,, of New York City, for the Union. ""Mr. Robert S'ilagi, of'counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Textile Workers Union of America, Greater New York Joint Board, herein called the Union, alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Max Kaplan and Jacob Kaplan, co-partners, doing business as Kaplan Brothers, New York City, herein called the Company, the National Labor Relations Board'provided for an ap- propriate hearing upon due notice'before Sidney Reitman, Trial Ex- aminer. Said hearing was held at New York City, on December 10, 1942. The Company and the Union appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues." The Trial 1 By letter received September 17, 1942, the Union waived its rights to file any protest to an election, it ordered, based upon certain pending charges of unfair labor practices 46 N. L R. B, No 120. 504059-41-i o1 46--67 1057 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner's rulings made at the hearing are free from prejudicial-error and are hereby affirmed. On December 21, 1942, the Company filed a brief which the Board has considered.2 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. TIIE BUSINESS OF THE COMPANY Kaplan Brothers is a co-partnership having its principal place of business and factory in New York City. Since 1900 it has been en- gaged in the manufacture, sale, and distribution of artificial flowers and related products. During the 6 months next preceding the hear- ing, the Company purchased, raw materials 75 percent of which, valued at $150,000, --was shipped from points outside the State of New York to its factory in New York City., In the same period the Com- pany sold approximately 75 percent of its finished products valued in excess of $600,000 to purchasers outside the State of New York. - The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. • II.' THE ORGANIZATION INVOLVED Textile Workers Union of America,'Greater New York Joint Board, is a labor organization affiliated with the Congress of Industrial Or- ganizations , admitting to membership employees' of the Company. III. THE QUESTION , CONCERNING REPRESENTATION The Company refuses to bargain with the Union as representative of the employees of the Company until the Union is certified -by the Board. A statement of the Regional Director, introduced in evidence at the hearing, indicates that the Union represents a substantial-number of. employees in the unit hereinafter found appropriate.' 2 In its brief the Cmupan^ contends that cci tification proceedings should not be permitted because the Union has no Iunsdiction over empl'o1•ees in the converted paper products industiy in which the Company claims the major pail of its pioduction lies ^ That contend tion is without merit See Matter,of McLouth Steel Corporation and Loo:.l 17s, International Union, United Automobile Workers of America , o7liated w,th the Congress of Industrial Organ?zatrons, 30 N L R B. 1000 ` , The Regional Diiector repor,ed that the Union submitted 408 authorization cards dated between January and October 1942 One hundi ed anP. forty-one of the 408 ,signatures on the cards were apparently genuine and were the names of persons who appeared on the Company's pay roll of September 26, 1942 This pay roll listed 691 employees within the alleged appropriate unit The record shows that these is a rapid turn -over of personnel and as of the date of the hearing , December 10, 1942, there werehibout 550 employees • ontth4, pay roll we find that the Union has shown a sufficient number of authorization cards to warrant the Board in proceeding despite the Company ' ,; contention to the contrary. KAPLAN _ BROmERS, _ 1059 We find-that a questions affecting, commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The parties agree that the unit shall consist of all production and shipping employers but' excluding executives , supervisors , foremen,' foreladies , and office and clerical employees . There is disagreement as,to the disposition of working foremen , factory clerks ; maintenance employees , home workers and students who are part -time employees; the Union 'desiring their exclusion and the Company their inclusion. Working foremen.-The evidence taken at the hearing indicates that the working foremen earn substantially higher wages than the employees they supervise and that they spend but few hours per week at actual production. Most of their time is devoted to assigning and distributing ' work ' aiicl While they" have no power to hire and discharge, they do have the authority to make tem- porary lay-offs and to recommend disciplinary action or discharge. We find that their interests are more closely associated with those of the managemenit than with those of the employees and shall accord- ingly exclude them. Factory clerics.-There are seven factory clerks stationed on the production floor whose function it is to keep records pertaining to production control. Their work is ,purely clerical in, that they keep track of the output of each production worker, check attendance and distribute pay. They do not handle materials or products and their hours of work are different from those of the production workers. The Union does not desire to represent the factory clerks and it ap- pears that it iwide no eflort to organize them: Their immediate interests and problems aie not, those of actual' production employees but more closely akin to those of the clerical staff ; we` shall there fore exclude the'facl:Ory clerks'from the iirnit." ' Maintenance employees.-The maintenance employees ` consists of two porters and a niatron of the ladies' rest room. The porters' con- nection with production is limited tip .sweeping, cleaning, and, from time-to tinge, carrying boxes contziining'inniterials to the -Work tables ;ind removing them when empty. We find that there is insufficient connection between the -i-ork performed by these employees and the production employees to warrant including them in the same-unit., Home workers.-The record discloses that there are approximately 70 employees who receive' materials af their homes and perfo•m All their work there. They live in various parts of the city and report to the factory but once a week when they,ai e paid. They are classified 10601 DECISIONS OF NATO AI:̀ ' LABOR'-RELATIONS BOARD separately on'tliepa roll'from -all- other-production employees`=and = have'no'contaet1w th the'factory workers:' 'The use of honi-e worke'r`s in the artificial flower industry is, strictly -regulated by the New York State Labor Law and the rules of the State Industrial Commissioner issued pursuant thereto. Licenses for home work are given only to workers unable to do factory work be- cause of age, physical or mental disability, or because they are confined to their homes for other reasons. While they must be paid at the same rate as factory workers, nevertheless they may regulate their 'own hours of work. They are ineligible to union membership, and, as a general rule, are, ineligible for, membership in, any union., Because of the lack of contact and communication between them rind- the factory workers, we shall exclude them from the unit.4 Part-time student employees.-Three weeks prior to the hearing, the Company began to employ girls between the ages of 16 and 18 on a part-time basis. These girls were recruited from the high, schools of the city and perform their duties after classes from 3 p. m. to 6 p; in. on school days and all day on Saturdays. At the time they were hired they were informed that they were being, employed and trained as permanent employees with a right to work full time on all holidays and vacations and at such times as they were through, with their school work. The record reveals that they average from 20 to 24 hours per week as against the full-time ,workers' average of from 40 to 48 hours per week. The students receive the same hourly wage rate that is paid other inexperienced employees who work full time. They are not segregated in their work and are not classified, separately on the Company's pay roll. The record fails to sustain the Union's contention that these employees are merely working for "pin money" and without any intention of becoming full-time em- ployees. In accordance with our policy of extending the protection of the Act to groups who do sufficient work to give them an interest in the conditions of employment we shall include the part-time workers in the unit.-' . We find that all production and shipping employees of-the Com- pany, including part-time student employees, but excluding executives, supervisors, foremen, foreladies, working foremen, working fore- ladies, factory clerks, office and ,clerical employees, maintenance em- ployees, and home workers, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4 See Matter, of May Knitting Company, Inc. and United Wholesale and Warehouse Employees of New York, Local No. 65, C. I. 0., 9 N. L . R B. 938. See Matter of The National Copper and Smelting Co. and National Association of Die Casting Workers , Local No 15 ( C I 0 ). 30 N L' R . B 973 ; also Matter of Montgomery Ward & Company and Retail Clerks International Protective Association, Local 383, A. F. o f L., 88 N L R B. 340 KAPLAN• BROTHERS V. THE DETERMINATION OF REPRESENTATIVES, 1061 We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in 'the Direction. DIRECTION OF ELECTION, By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act' and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Max Kaplan and Jacob Kaplan; co-partners, doing business as Kaplan Brothers, New York City, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National 'Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among all employees in the unit found appro- priate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this .Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees 'in the armed forces of the United States who present themselves in person , at-the polls, but excluding. those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Textile Workers Union of America, Greater New York Joint Board, affiliated with the C. I. 0., for the purposes of collective bargaining. t Copy with citationCopy as parenthetical citation