B. D. Kaplan & Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsJun 30, 194350 N.L.R.B. 1035 (N.L.R.B. 1943) Copy Citation In the Matter of B. D . KAPLAN , & Co., INC. and PLASTIC BUTTON & NOVELTY WORKERS UNION , LOCAL 132 , I. L. G. W.-U. (AFL). Case No. R-4015 SUPPLEMENTAL DECISION AND DIRECTION June 30, 1943 STATEMENT OF THE CASE On July 27, 1942, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceed- ing? The Direction of Election provided that an election by secret ballot, should be conducted within thirty (30) days from the date of the Direction among all production employees of B. D. Kaplan & Co., Inc., New York City, herein called the Company, who were employed during the pay-roll period immediately preceding the date of the Direction, excluding supervisors, foremen and foreladies hav- ing authority to hire and discharge or to recommend such action, office employees, truck drivers, maintenance employees, salesmen, and sample-room employees, to determine whether or not they desired to, be represented by Plastic, Button & Novelty Workers Union, Local 132, I. L. G. W. U. (AFL), herein called the Union, for the purposes of collective bargaining. Pursuant to the Direction, an election by secret ballot was con- ducted under the direction and supervision of the Regional Director for the Second Region (New York City) on August 18, 1942, among the employees in the appropriate unit during the pay-roll period ending July, 24, 1942. On January 5, 1943, the Regional Director issued his Report on Ordered Election, which was duly served upon the Company and the Union. 1 42 N. L. R B. 934. i i 50 N. L . R. B., No. 153. 1035 „ 4 1036 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD As to the balloting and the results thereof, the Regional Director reported as follows : Approximate number of eligible voters----------------------- 2 200 Total ballots cast------------------------------------------ 202 Total ballots challenged----------------------------------- 47 Total alleged void ballots---------------------------------- 1 Total valid votes counted---------------------------------- 154 Votes cast for Plastic, Button & Novelty Workers Union, Local 132, I L G. W. U. (AFL) -------------------------------- 76 Votes cast against aforementioned Union-------------------- 78 In his Report on, Ordered Election the Regional Director recom- mended that 33 of the challenged ballots be opened and counted, that the challenges be sustained to 6 ballots, and that 8.challenged ballots be held unopened for later determination. On January 15, 1943, the Company filed Objections to the Report on Ordered Elections. On February 1, 1943, the Regional Director issued his Report on Objections. By order dated March 9, 1943, the Board, having found that the Objections raised substantial and material issues with respect to the conduct of the ballot, ordered that a hearing be held on the Objections and directed the Regional Director to issue a notice of hearing. On March 23, 1943, the Regional Director issued a notice of hearing, copies of which were duly served-upon the Company and the Union. Pursuant,to notice,'a hearing was held on April 15, 16, 22, and 23, 1943, at New York City,, before William Strong, Trial Examiner. The Board, the Company, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the' hearing the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. All parties were afforded opportunity to'file briefs with the Board. - Upon the record so made, the Report on Ordered Election, the Objections, the Report on-Objections, and the record previously made,- the Board, acting pursuant to, Article III, Sections 9 and 10, of Na- tional Labor Relations Board Rules and Regulations, hereby makes, the following : SUPPLEMENTAL FINDINGS OF FACT , On May 25, 1942, the Company, in the ordinary course of 'its opera- tions, temporarily laid off about 51 employees. Thereafter employees 2 The number of navies appearing on the eligibility list was 172. The navies of most of the challenged voters did not appear on the list I - i B. D. KAP LAN & CO., INC. 1037 were originally laid off or recalled and then again laid off on various dates. It is clear that, pursuant to the Direction, such employees were entitled to vote in the election as laid-off employees unless their em- ployment relationship with the Company was terminated prior to August 18, 1942, the date of the,election. With respect to the Company's personnel practices and policies, Ralph Rubinger, its vice president and general manager, testified as follows : For a number of years until April 1943, the Company main- tained seniority lists by departments. The Company's established practice is to lay off employees according to seniority, the last hired being the first laid off; but, as it is-the intention of the Company to recall at a later date the laid-off employees, the Company does not consider them to have been discharged. Pursuant to its system of job rotation, the Company recalls laid-off employees in groups of ap- proximately 10 employees after several weeks' lay-off and places them into vacancies created by laying off other employees with greater seniority. All employees challenged by the Company, except those actually discharged, were subject to recall to work as laid-off employees. In notifying employees to return to work, the Company utilized a post card until'May 1942, when it changed to first class mail. How- ever, upon receiving complaints that letters of recall were not being received, the Company changed to registered mail in November 1942. Rubinger insisted that laid-off employees who fail to return when re- called are deemed by the Company" to have given up their employ with it and that if such former employees subsequently apply for work, they are rehired, if needed, as new employees, with consequent loss of accumulated seniority. In' our opinion, the record fails to support the Company's contention that recalled employees who return to work at a date later than that requested by the Company, are actually treated as new employees. The Union challenged 8 voters and the Company challenged 39. At the hearing, the Union and- the Company agreed to accept the-- Regional Director's recommendations that the ballots of Caroline Torino, Helen Simmons, Runella Simmons, Julia Stewart, Lela Miller, Elvira Wilson, Lucy Madden, Georgia Goodrum, Frances Hepson, Bessie Notterman, and Ruth Silverstein be opened. and counted 13 and that the ballot of Robert Gundelfinger not be counted. We shall direct that the ballots of all these employees except Gundel- a Subsequently during the hearing, the Company withdrew its original concession as to Helen Simmons, Runella Simmons, and Lucy Madden, purpoiting to have evidence showing that these employees had quit. The evidence fails to sustain this contention The Com- pany claims that they failed to return when recalled after being laid off, but returned later,and were hired as new employees The record reveals that these, three women, al- though not actually on the Company's pay roll during the,pay-toll period ending-July 24, 1942, had been laid off prior thereto, recalled thereafter, and were working on the day of the election. We find that they were eligible to vote in the election. 1038 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD finger, be opened and' counted . We shall sustain the challenge to Gundelfingar's ballot and shall direct that it not be counted. Eleanor Daniels, Ruth Cobham, Laura Russell, Edith Greenridge, Iris Brown, Maria Stephens, and Corina Collins Were discharged by the Company on July 31, 1942, and were challenged by it at the election. (Jnder the terms of the Direction of Election , these em- ployees were not entitled to vote unless their discharges Were in viola-, tion of the Act. The Union has filed charges alleging that these employees here discriminatorily discharged. Pending the determina- tion of the unfair labor practice charges, we shall direct that the ballots of these employees be held unopened., Since it was not established that these employees remained in the unit, we shall 'dis- regard them in computing the total number in the unit. The Company challenged the ballots of Selma Schuster,Esther C, Mizel, Sole -Turanic, Sophie Fleishman, Alice McShane, Edith Wash- ington, Latitu8 Grushard, -Julia Pitkin, and Anna Bugg on the ground that they had voluntarily left the Company's employ prior to ,August 18, 1942. It was stipulated at the hearing that Schuster, Mizel, Turanic, and Fleishman were laid off on May 25, 1942, recalled to work by letter, returned to work, and worked until4une 15, 1942. "Fleishman and Schuster testified that on June 15, 1942, Sidney, ' Schabecoff, plant superintendent in charge of production, directed them and others to proceed to the plant office, where they were in- dividually addressed by Plant Manager Rubinger, who told them that they were being laid off and would be recalled to work later. On June 15, Rubinger was on a vessel of the United States Coast Guard. The witnesses"Identification of Rubinger was clearly a case of mistaken identity , since Ernest Zahler, who succeeded Rubinger as manager, admitted-that he spoke to these two witnesses and other employees on June 15 in the office, but denied that he or anyone else laid them off . His denial that the employees in question were laid off that day was controverted by the testimony of Floorlady Isabelle Santora, a witness for the Company, who corroborated the testimony of Schuster and Fleishman. Santora testified that on June 15, Schabecoff sent Schuster, Mizel, Turanid, and Fleishman and others to the office, and admitted, further, that they were thereby laid off. Moreover, the Company's records indicate that in- addition to these individuals, at least seven others in the same seniority group were similarly employed only during the period of June 9 to 15, obviously in accord with the Company's lay-off and job-rotation practices. Although the Company relied upon a conversation between these employees and Santora as basis for it's contention that these employees left the Company's employ because they desired steady work, Fleish- man and Schuster testified that they were laid off, and Santora's B. D. KAPLAN.& CO., INC. 1039- testimony indicates merely that upon learning of their lay-off on June 15, the employees objected to being laid off and stated that "if•we don't get steady work we won't work here any more." We find that Schuster, Mizel, Turanic, and Fleishman were laid off by the Com- _pany on June 15, 1942. However, Fleishman testified that within a few days after her lay-off, she obtained a permanent job with another concern, that she has been employed permanently there, and that she 'would not have returned to work for the Company after she was hired by her present employer. We find that Fleishman ceased to be an employee of the Company prior to August 18, 1942, and therefore was ineligible to vote in the election. We shall accordingly direct that her ballot not be counted. We shall direct that the ballots of Schuster, Mizel, and Turanic be opened and counted. The parties stipulated at the hearing that Alice McShane was laid, off on May 25, 1942, was thereafter recalled, returned to work, apd continued working until-Friday, June 12, 1943. McShane testified that she was ill on Monday, June 15, and that her daughter telephoned the Company advising it of her mother's illness. According to McShane, when she returned on Tuesday, she was called into the office by Zahler, who laid her off, promising to recall her when her services would be needed. McShane further testified that she had no work until October 1942, at which time she was employed by another con- cern. McShane is within the seniority group of employees, including the four discussed above, shown by the Company's records to have worked during the period from June 9 to 15, 1942. We find that McShane was a -laid-off employee entitled to vote in the election and shall direct that her ballot be opened and counted. The Company and the Union stipulated that Edith Washington and Latitus Gr'ushaird were laid, off on May 25, 1942, were thereafter recalled, returned to work. and continued working until July 20, 1942. Although subpenas were served by registered mail upon them, they did not respond and did not testify at the hearing. Zahler testified that he did not see these two employees at work after July 20, and that they were not laid off "as far as I remember" and "not that I remem- ber." The Company's records-'show that these two employees are included in a seniority group of 10 employees who worked from June 30 to about July 20, 1942. Muriel Smith and Frances Hepson, con- cededly laid off on July 20, had, respectively, greater and lesser seniority than both Grushard and Washington and all, abe part of the above-mentioned group. In' our opinion the Company has failed to establish that Washington and Grushard quit. We find that Wash- ington and Grushard were laid-off employees entitled to vote in the election and shall direct that their ballots be opened and counted. 1040 DECISIONS OF NATIONAL LABOR 'RELA.TIOI S BOARD Julia Pitkin was laid off on May 25, 1942, recalled on July 17, and worked from July 21 to August 7, 1942. She testified that on August 10, Superintendent Gershon informed her that there was no work for her and that "as soon as there is work I would hear from him." Gershon did not testify at the hearing: Although Zahler testified that "as far as I know" Gershon did not lay off Pitkin and that "I don't remember that I did," we do not find such vague testimony to be persuasive and do not credit it.- Pitkin further testified that she held no other job until some time after the election on August 18, 1942. We find Pitkin was. eligible to vote in the election as a laid-off employee and shall direct that her ballot be opened and counted. According to the stipulation of the parties, Anna Bugg was laid off on May 25, 1942, recalled to work on July 23, and worked until August 13, 1942. She testified that she did not appear for work on Friday, August 14, because she was ill and that when she returned to work on Monday, August 17, Superintendent Gershon informed her that she was being laid off. According to Bugg, Gershon said, "As soon as we get work we will call you back. You are a nice worker. We haven't got any work and we have to give every girl a chance." Bugg testified that she was not elsewhere employed during the summer. Gershon,did not testify, and Bugg's testimony is uncontradicted:4 Floorlady Santora admitted that Bugg was 'fre- quently ill. We find that Bugg was a laid-off employee entitled to -vote in the election and shall direct that her ballot be opened and counted. The Company challenged Rudolph Grossman, Karl Rheinheivter, Siegfried Geismar, Mathias Scheer, Ethel Bellinger, Lessie Lawson, Alta Jefferson, Mina Maier, Ethel Johnson, and Muriel Smith on the ground that they ceased to be employees of the Company. on various dates preceding the election, by virtue of the fact that they failed to return to work when recalled during their lay-offs. The evidence shows that recall letters were sent'to some of these employees at various dates subsequent to their lay-offs, from May to August 7, 1942, and that three of the letters, to Bellinger, Lawson, and Jef- ferson, respectively, were returned by the post office as undeliverable, while others were not returned. The Company contends that a laid- off employee who is sent a letter of recall and fails to reappear for work is no longer an employee of the Company. In our opinion, the record fails to establish this contention, inasmuch as the evidence shows certain employees were sent two and three letters • of recall before they ultimately responded and returned to work. The Union 4 Although there is a slight discrepancy between Bugg s testimony as given at the hearing and a' statement given by her in writing to the Board's agent in his investigation of the challenges, this discrepancy, relating to her failure to report on August 14, does not detract from the fact of her lay-off on August 17. B. D. KAPLAN & CO., INC. 1041 takes the position that a, laid -off employee remains in that status ,until he or she receives a recall offer and refuses to accept it. - Both the Company and the Union agree, in effect, that a laid -off employee may hold a temporary , : j,ob: during his lay-off without disturbing his employment relationship to the Company. Rheinheimer , Geismar, Grossman , and Scheer testified , without contradiction , that they did not receive the recall letters adverted to by the Company . No record of recall letters having been sent to these four men was introduced into evidence , although Rubinger . testified that such letters were sent. Rheinheimer testified that he worked at home between the date of his lay -off, June 4, and October 27, 1942, while awaiting recall by the Company and that he finally obtained a job with another concern on October 27, ,1942.5 He further .testified that had he received a recall letter he would have returned to work. Grossman , who was laid off on May, 25, 1942, obtained employment at- an institution on June 13 , 1942, and was still employed there at the time of the hearing. Although he receives higher pay and his meals at his present job , he testified that he would have returned to work for the Company had he been recalled, because he is presently em- ployed at night , whereas he worked during the day for the Company." Scheer, who was laid off on May 25, obtained a job on July 22, 1942, with another concern where he has been continuously employed.' For 3 months after July 22, he received less pay at his new job than he earned with the Company . He denied having received a recall letter after May 25, 1942 . Geismar, who was also laid off on May 25, 1942, obtained permanent employment at all institution on June 13, 1942, and was employed there at the time of the hearing . He testi- fied that he would not have returned to work for the Company after he obtained his present job.' We - find that Geismar's employment with the Company terminated prior to the election and shall accord- ingly direct that his ballot not be counted. We find that Rhein- heimer, Grossman , and Scheer were eligible to vote in the election as laid-off employees and shall direct that their ballots be opened and counted. Ethel Johnson was laid off on May 25, recalled and worked during the week ending June 15, and , according to her testimony , she was then again laid off.-, The Company contends that Johnson quit volun- ' Rheinheimer had been discharged , rather than laid off , on June 4 However, since it claims to have sent him a recall letter , the Company stated at the hearing that its posi- tion as to Rheinheimer was the same as that toward other laid -off emplo3 ees who were recalled but did not return 0 Grossman testified that he did not consider himself an employee of the Company at the time of the hearing This is- immaterial , since it is his status on August 18, 1942, that is in question , rather than his present status 'Johnson, as well as other witnesses , testified that she was laid off on June 15 by Rubinger . This is clearly a case of mistaken identity The record shows that the em- ployees spoke to Zahler on June 15, and not Rubinger , who was on a coast guard vessel all of that day N % 1042 , DECISIONS Orr, NATIONAL LABOR RELATIONS BOARD tarily on June 15 because she desired more steady work. The record does not support this conteltion. The Company's records show that Johnson and 12 or 13 other employees following-her in seniority status all worked during the week ending June 15 and thereafter ceased working. The Company contends that others in this group, discussed below, also quit voluntarily. We find no merit in such contention. We find that the entire group, including Johnson, was laid off pursuant to the Company's usual lay-off and job-rotation policies. Johnson testified that she did not receive any recall letter in August 1942, which the Company claims to have sent hers and that she waited to be recalled until August 25, 1942, on which date she telephoned Superintendent Gershon and asked for work. According to the uncontroverted testimony of Johnson, Gershon replied that `'work was still slow" and that she would be recalled when work was available. She stated that thereupon she decided to wait no longer and obtained other employment on August 25. We find that John- son was a laid-off employee, eligible to vote in the election, and shalt direct that her ballot be opened and 'counted. Although subpenaed, Bellinger, Lawson, Jefferson, Maier, and Smith did not appear to testify. The evidence shows that they were apparently sent letters of recall but did not thereafter reappear for' work. Their status as laid-off employees is therefore in doubt, since their failure to respond to those letters may have resulted either from their acceptance of permanent en ployment elsewhere or from a desire to sever their employment relationship with the Company. Ih the present state of the record, these employees are shown to have been laid off, to have been recalled, and to have failed to return. Without an explanation on their part for their failure to return when recalled, ,it cannot be presumed that they nevertheless' continued to be em- ployees of the Company. Nor can an inference of continuing,em- ployee status be drawn, as contended by the Union , from the fact that these employees returned to vote in the election since, as shown above, several other employees who voted, had definitely decided to sever their employment relationship with the Company prior to the elec- tion, but nevertheless returned to vote. Although three of the re- call letters, addressed to Bellinger, Jefferson, and Lawson were re- turned undelivered by the post office, the Company's records show that the addressees did not thereafter at any time return to work for the Company, and there is no evidence that they did not obtain other 8 The Company contends that the letter was sent to rehire her as a new employee. The letter, however, reads precisely as do all other recall letters , merely sating : DHAR MADAM : You may report for work on Monday morning at the usual time Kindly bring this letter with you. Very, truly yours i i B. D. KAPLAN & Co., INC. 1043 work. The status of these employees being undetermined, we shall direct that the ballots of Bellinger, Lawson, Jefferson, Maier, and Smith not be counted. . The Company challenged Ruby Harry and Ruby Cross on the ground that they responded late when recalled to work and were deemed to have quit. Harry has been in the Company's employ un- interruptedly since 1932, although she was laid off on occasion be- tween that date and 1942. She was again laid off on June 15, 1942. but was recalled by the Company by a letter dated August 7, 1942. She testified that, she was out of town until the following Monday and reported for work on Tuesday, August 11. According to`her uncontradicted testimony, Superintendent Gershon asked her why she had not returned earlier following receipt of the Company's, let- ter. When she explained her absence from town, Gershon directed her to see Zahler. As Zahler was unavailable, Gershon instructed Harry to return home and await another call to work. While await- ing recall by the Company, she worked temporarily for another con- cern. We find that Harry was a laid-off employee entitled to vote in the election and shall direct that her ballot be opened and counted. It was stipulated at the hearing that Ruby Cross was laid off on June 9, 1942. The evidence shows that she was sent a recall letter on July 17, 1942. Although served with a subpena, she did not appear to testify at the hearing. There is no evidence that she did not receive the recall letter or that she did not obtain permanent employ- ment elsewhere. In the absence of any proof that Cross continued to be an employee of the Company, and in view of the possibility that she may have permanently severed her'employment relationship prior to August 18, 1942, by accepting a permanent job elsewhere, it cannot be concluded that she remained an employee of the Company. We shall accordingly direct that her ballot not be counted. The Company challenged Anna King on the ground that she was not an employee during the pay-roll period ending July 24, 1942, the eligibility period. It was stipulated at the hearing that King was employed by the Company until July 9, 1942, on which date she was officially informed that she was under working age and would be required to obtain working papers. The Union asserts that she re- turned to work for the Company on July 23, 1942; the Company claims that she returned on July 27, 1942. Her name does not appear on the pay roll for the week ending July 24, 1942, and the Union offered no evidence with regard to her reemployment date, as King, although subpenaed, failed to appear to testify. However, the precise date of. King's return to work is immaterial. She clearly was not discharged and did not quit the Company's employ between July 9 and the actual date she resumed her work; she merely did not work 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pending receipt-of her working papers. We find that that hiatus was in the nature of a temporary lay-off and that King was eligible to vote in the election. We shall accordingly direct that her ballot be opened and counted. ' The Company challenged Rose Madden on the ground that she was 'sent a recall letter in July 1942, and failed to respond thereto and that she was deemed to have quit. Madden did not testify'at the hearing. Since her employment status is in doubt, we shall direct that her ballot not be counted. The Union challenged Leo Richiuso, Joseph Dressner, Frank Bene- detti, Benjamin Schiffer, Louis Marks, Bessie Notterman, and Rutli Silverstein on the ground that they are supervisory employees.9 The relevant exclusion in the Decision and Direction of Election relating to those employees is of "supervisors, foremen, and foreladies having authority to hire and discharge or recommend such action ...." 10 The Union contends that the Company employs supervisors, fore- men, and foreladies or floor ladies. The Company denies'that it has any , supervisors, foremen, or foreladies, admitting that it employs ,floor ladies, and claims that its supervisory staff consists of its presi- dent; Vice President and General Manager Rubinger; Acting General Manager Zahler; and 2 superintendents or foremen, Gershon and Schabecoff. It contends that no one in its employ except these indi- viduals has the authority to hire or discharge or to recommend such action. In the original representation hearing, counsel for the Com- pany stated that it had 10 or 11 foremen; in the instant hearing coun- sel denied having made such a statement, and the Company denied that it now has or in August 1942 had, more than 2 foremen, who were Schabecoff and Gershon, the superintendents. The Company denies that Richiuso, Dressner, Benedetti, Schiffer, or Marks fall within the excluded categories of supervisory employees but claims that the first 3 named are "straw foremen," eligible to membership in the Union. Richiuso, Benedetti, Dressner, Schiffer, and Marks are .paid a weekly salary each Friday. They are listed on a separate pay roll and earn more per week than do other employees in their respec- tive departments who are paid on an hourly basis. The hourly rated employees are paid each Monday. According to Benedetti, Leo Richiuso is in charge of the receiving 9 As'previously noted, the Union indicated its willingness at the hearing to accept the Regional Diicctor's recommendation that the ballots of Notterman and Silverstein be opened and-counted The Regional Diiector also' iecommended that the challenges to the ballots of Richiuso, Dressner, Benedetti, Schiffer, and Maiks be sustained The Company objected to his recommendations, except as to Notterman and Silverstein 10 The union admits to membership "straw foremen," who "have no authority to hire and,fire," and "work just like any other workers " It does not admit to membership "any foreman with authority to hire or fire or to iiifoim the workers `will you take a day off,' or one thing or another." B. D. KAPLAN 4 CO., INC. 1045 department. With regard to his duties Richiuso testified as follows : He has been in the Company's employ for about 25 years. He receives instructions from Rubinger, whom Richiuso described as the "boss" of the receiving department. In July and August 1942, there were constantly three men in the receiving department, and at times there were as many as eight whom he instructed in their duties and to whom he gave work orders. He does not hire or discharge or recommend such action, except that he asks Rubinger for additional men when they are needed and that he reports to Rubinger when an employee is not capable of performing his work. Rubinger, in turn, transfers or discharges the employee involved. When the employees ask Richiuso for time off, Richiuso consults his superiors and then advises the employees. Richiuso admitted that "I take care of the men," and that "if there is no work in the receiving, we place them in different de- partments." At times he assists the men in performance of the work of the department. Although Rubinger denied that Richiuso has power to hire or discharge or recommend such action, he admitted that he directs the activities of the other employees who work with him. We find that Richiuso is a supervisory employee and therefore was not eligible to vote in the election. We shall accordingly direct that his ballot not be counted. Joseph Dressner has been in the Company's employ for 26 years. Rubinger described Dressner's duties as follows : "It is his duty to see to it when merchandise is completed, it is packed in bales, brought down the elevators, to see to it that the men are directed to take the bales off the elevator. The bales are then put on the weigh- ing-scales and are marked up for the destination that they are to be forwarded to. If the merchandise is to be shipped immediately it is put out on the truck by Mr. Dressner and also with the help of some- body, one or more men ,that have been given to him." With regard to his duties, Dressner testified that "I take care of the shipping de- partment" and "I get orders from upstairs and get the orders ,ex- ecuted." According, to Dressner, he generally has one assistant but several times a week has more, asking Superintendent. Gershon for assistants whenever necessary. Although Dressner denied that he had authority' to hire or discharge or recommend such action, he stated that in ". . . my department ..." he directs the work of other employees. We find that Dressner is a supervisory employee and therefore was ineligible to vote in the election. We shall accordingly direct that his ballot not be counted. Frank Benedetti testified as follows with, regard' to his duties : He has, been in the Company's employ off and on, for 22 years in the stock department. He receives and, sends out bales of material upon order, from "the office." At present he has "got a man" to help him, 536105-44-67 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although in August 1942, there were four or five additional men in the stock room. He suited that he has never hired or discharged an employee or recommended such action, "because my men listen to me because they respect me like the boss respects me,." However, he ad- mitted that on occasion he has informed Superintendent Gershon that an employee-was unsatisfactory and has been assigned another, that he requests and is assigned additional men whenever necessary, and that he directs them in their work. He stated that previously Benjamin Schiffer "was "the boss" in his department, and when Schif- fer was transferred to his present position, "I became the boss." Al- though Rubinger denied that Benedetti has power to hire or dis- charge, he admitted that Benedetti receives orders from the office and "tells the other, men in his gang" what is needed. We find that Benedetti is a supervisory employee and therefore was ineligible to vote in the election., We shall, accordingly direct that his ballot not be counted. Benjamin Schiffer, according to Rubinger, is a "floorman" and blender and directs the activities of others working with him "to a certain extent," although he has -no power to hire or discharge or to recommend such action. Schiffer testified that he has been em- ployed by the Company for 15 years and since January 1942, has been a blender, working, with other blenders. Although he denied that he has charge of any employees at the present time, he stated that he gives them certain instructions concerning the bales, exam- ines the stock, makes the blend, and tells other employees "what bales are suitable for the blend" and,"what stock is good and which is not good." He insisted that he has never hired or discharged employees; however, he admitted that on one occasion he recommended that an employee be discharged. He testified that before he became a blender in January' 1942, he had been in charge of the stock department, where as many as 27 employees worked under his direction. He fur- ther testified that he was the "supervisor" and "boss" of those em- ployees and that he now receives higher wages than he ,did while he was in' charge.. of the stock department. Benedetti testified that. .Schiffer now "is the boss" of the blending floor, having charge over 7 or 8 men. We find that Schiffer, is a supervisory employee and as, such was ineligible to vote in the election. We shall accordingly di- rect that his ballot not be counted. Louis Marks testified that he has been in the Company's employ for 12 years and that he takes "care of the stock," helping the pressmen and sewers, and performing 95 percent of the weighing. ' Although, he denied that he has power to hire or discharge employees, it'ds clear from his testimony ,that he is given additional help upon his request when necessary and' that he, "explains" Schabecoff's orders • B., D. KAPLAN & CO.,I INC. 1047 to other employees and tells the employees what to do. Benedetti testified that Marks- "has charge of the - fourth 'floor." Rubinger testified that although Marks has no authority to hire or discharge or to recommend such action, he nevertheless directs the activities of the employees in his department "to a certain extent." We find that Marks is a supervisory employee and as such was ineligible to vote in the election. We shall order that,'his ballot not be counted. The Regional Director declared Zone ballot cast in the election to be void because it was not marked within, or reasonably near, the squares provided, being marked near the middle of the space between the two squares. The Company urges that the ballot be counted as a vote against the Union. We sustain the Regional Director's deter- mination and find the ballot to be void. Shortly before the election, the Union sent letters to some if not all of the voters, urging them to vote in the election and promising to reimburse those who might be working elsewhere for time lost from work. Several witnesses testified that they were reimbursed for time lost; others stated that they received carfare and money for luncheon. The Company objects to the Union's actions in this respect, asserting that they "obviously colored the entire election." Upon the entire record, we find no merit in this objection and it is hereby overruled. DIRECTION 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, 49 Stat. 449, and pursuant to Article III, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIREVrEV that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with B. D. Kaplan & Co., Inc., New York City, the Regional Director for the Second Re- gion (New York City) shall, pursuant to' the said Rules and Regu- lations, and subject to Article III, Section 10, of said Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Caroline Torino, Helen' Simmons, Runella Simmons, Julia Stewart, Lela Miller, Elvira Wilson, Lucy Madden, Georgia Goodrum, Frances Hepson, Bessie Notterman, Ruth Silver- stein, Selma Schuster, Esther C. Mizel, Sofe Turanic, Alice McShane, Edith Washington, Latitus Grushard, Julia Pitkin, Anna Bugg, Karl Rheinheimer, Rudolph Grossman, Mathias Scheer, Ethel Johnson, Ruby Harry, and Anna King, hold unopened for the time being the ballots of Eleanor Daniels, Ruth Cobham, Laura Russell, Edith Greenridge, Iris Brown, Maria Stephens, and Corina Collins, and not 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD count the_ ballots of Robert Gundelfinger , Sophie Fleishman , Sieg- fried Geismar, Ethel Bellinger; Lessie Lawson, Alta Jefferson, 'Mina Maier, Muriel Smith, Ruby Cross, Rose Madden, Leo Richiuso, Joseph Dressner, Frank Benedetti, Benjamin Schiffer, and Louis Marks, and shall thereafter prepare and cause to be served upon the ' parties a Supplemental Election Report embodying his findings therein and his recommendations as to the results of the secret ballot. MR. GERARD D. REILLY took no part in the consideration of the above Supplemental Decision and Direction. Copy with citationCopy as parenthetical citation