Kaplan Brothers

National Labor Relations Board - Board Decisions

Jan 13, 1943

46 N.L.R.B. 1057 (N.L.R.B. 1943)

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:Ì€ ' 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.
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