Kaplan Brothers

National Labor Relations Board - Board Decisions

May 21, 1943

49 N.L.R.B. 1036 (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
AMERIOA, GREATER NEWYORK JOINT BOARD
Case No. R-4656.-Decided May 21, 1949
SUPPLEMENTAL DECISION '
AND
ORDER
On January 13, 1943, the National Labor Relations Board, herein
called the board, issued a Decision and Direction of Election in the
above-entitled proceeding., Pursuant to the Direction of Election,
an election by secret ballot was conducted on February 4, 1943, by the
Regional Director for the Second Region (New York City). - On Feb-
ruary 5, 1943, the Regional Director, acting pursuant to Article III,
Section 10, of National Labor Relations Board Rules and Regulations-
Series 2, as amended, issued and duly served upon the parties an
Election Report. I
As to the balloting and its results, the Regional Director reported as
follows :
Approximate, number of eligible voters----------------------- 517
Total ballots cast------------------------------------------- 348
Total ballots challenged------------------------------------- 16
Total void ballots------------------------------------------ 2
Total valid votes counted------------------------------------
Total votes cast for Textile Workers Union of America, Greater
330
New York Joint Board------------------------------------ 144
Total votes cast for no Union-------------------------------- 186
On February 15, 1943, Textile Workers Union of America, Greater
New York Joint Board, herein called the Union, filed objections to the
conduct of the election and to the Election Report. These objections
alleged, inter alia, that the Company interfered with the free choice
of the employees voting in the election (1) by observation of the poll-
ing place, by statements of supervisors against theUnion, and in other
ways, and (2) by promising and granting wage increases and bonuses.
On April 1, 1943, the Regional Director, having investigated the
146 N . L. R. B 1057.
49 N. L. R. B., No. 147.
1036
KAPLAI' BROTHERS '1037
matter, issued and duly served upon the parties his Report on Objec-
tions, in which he stated in substance that the objections of the Union
raised substantial and material issues with respect to interference with
the election, and recommended that the Board direct a hearing on said
objections.
Pursuant to an-order of-the Board, and pursuant tonotice, a hearing
was held on April 19, ' 1943, at New York City, before William Strong,
Trial Examiner. The Board, the Union, and Max Kaplan and Jacob
Kaplan co-partners, doing business as Kaplan Brothers, herein called
the Company, appeared, participated, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence hearing on the issues. At the close of the Union's
case, the Company moved to dismiss the Union's objections. The
Trial Examiner referred this motion to the Board. For reasons which
appear below, that part of the motion to dismiss relating to interfer-
ence and coercion at the polls is granted, and that part of the motion
which relates to the promising and granting of wage increases and
bonuses is hereby denied. The Trial Examiner's rulings made at the
hearing dre,free-from-prejudicial error and are hereby affirmed. On
May 1,1943, the Company filed a brief which the Board has considered.
Upon'the record so made, the Election Report, the objections of the
Union, and the record previously made, the Board makes the following :
FINDINGS OF FACIr
Among its objections to the conduct of the election, the Union
alleged (1) that supervisory officials of the Company made certain
anti-union statements to numerous employees on the days immediately
preceding the election and that on the day of the election, supervisory
officials of the Company maintained surveillance over employees who
went to cast their ballots at the polls, and (2) that the Company
promised and granted wage increases and bonuses to its employees
during the intervening period between the date of the Decision and
Direction of Election and date of the election,, for the purposes of
influencing the election.
At the hearing on the objections the Union failed to introduce any
evidence bearing on the alleged misconduct of the Company's super-
visors on the day of the election. The Company's motion to dismiss
this objection is accordingly granted.
On January 23, 1943, a conference was held at the office of the Second
Region of the Board for the purpose of completing arrangements for
the election which was scheduled for February 4, 1943. The Company
was •represented, at. this, conference„ by, its general manager, -Harold
1038 , DECISIONS OF NATIONAL LABOE, RELATIONS BOARD
Kaplan, son of Max Kaplan, one of the owners of the Company, and
also by its counsel. The Field Examiner of the Board, who partici-
pated in the conference, instructed',the Company to direct its super-
visors to refrain from discussing, promising, or granting general
wage increases during the pendency of the election. Harold Kaplan
testified that lie informed the Field Examiner of promises of increases
already made and asked what should be done in those cases, asking
whether the Company could' state to the employees' "that because of
the election we couldn't give them an increase." The Field Examiner
replied in the negative, cautioning the Company not to connect the
Union or the election with the question of wage increases.2
The Company insisted that all promises of wage increases were made
on January 9, 1943, prior to the date of the issuance of the Decision
and Direction of Election, and were not made for the purpose of
influencing the election. The testimony of Harold Kaplan indicated
that these promises were the results of demands made by "a number"
of girls` in the millinery flower department upon Max Kaplan ; that
in the course of the discussion with these employees Max Kaplan had
requested' of them a 3-week-period-'in which tot make application to
the National War Labor Board for permission to grant increases, but
that a 2-week delay was finally compromised upon; that the increases
were to be retroactive to January 9, "or before then"; that the discus-
sions were held in the presence of several girls from the decorative
,flower department "and we assumed that this promise to the millinery
girls would have to follow through to'the other girls, as had been our
practice"; and thereafter "word got around" about these promised
increases and other employees were informed that they, too, would
be given increases. On February 3, a letter from the National War
Labor Board was received by the Company advising the Company
that 'a complaint had been made against it to the effect that during
the 2 or 3 weeks prior to the date of the letter, bonuses had been given
to hourly paid employees even though such bonuses had never been
paid in previous years. The letter went on to inform the Company
that such a wage increase, granted without the permission of the
National War Labor Board, was a violation of Executive Order
No. 9250.
On the same day of the receipt of the letter from the National War
Labor Board, the Company caused'the letter to be duplicated and
issued to its employees, together with the following letter :
2 The Company admits these facts but does not concede the legal validity of the Field
Examiner ' s instructions
KAPLAN BROTHERS
KAPLAN BRoTIlERs
Importers and Manufacturers of Flowers
34 to 70 West 19th St.
45 West 18th Street
New York
1039
FEBRUARY 3, 1943.
'7'o our employees:
A wage increase was promised you some weeks ago. However,
yesterday, the WAR LABOR BOARD advised us that a com- •
plaint had - been , (fled charging us with violating the WAGE
STABILIZATION ACT in making the promise to increase wages.
The enclosed is•a reproduction of a letter received this morning-
from the WAR LABOR BOARD. It explains why the promised
increase cannot be given you today:
We are immediately making application for approval of the
promised wage increases . In the meantime, the increase promised
you will be set aside to your credit each week. and will be given
you•inma lump sum as soon as it is approved by the WAR LABOR
]BOARD . ` , " ' '' . ,
- The difference which covers your increase and overtime at the
new rate is $______ and has been put aside to your credit pending
approval of the WAR' LABOR BOARD.
( s) MAx KAPLAN.
MK: DB Kaplan Brothers.
PLEASE, NOTE!!
It is our opinion, and that of our attorneys , that under the
the WAGE ' STABILIZATION ACT , the increase will be granted
by the WAR LABOR BOARD. - ' .
Please keep this letter, as, a memorandum.
Tlie^ Corriha,n ', didriot tna' ke 'any `application to the National, War
Labor Board for permission to grant wage increases or bonuses until
after the election herein.
Although at one point Harold Kaplan denied knowledge of atiy
wage-increase promises made between January 13 and February 4,
and denied knowledge of any such payments or of bonuses actually
given during that period, he subsequently revealed that Max Kaplan
had informed him of bonuses "given a couple of weeks ago right after
January 9 .- ..,"• and, that , they-were given "for a few weeks "' to girls
in the flower-making -departments .:;,«Thile , Harold,Kaplan testified
that the bonuses were, given on the basis of increased production, at '
least one employee testified that she received bonuses without having
increased her production . The Company attempted , to show that
bonuses had been paid in past years. This was contradicted by a wit-
1040 DE'CrSIONS OF NATIONAL LABOR RELATIONS BOARD
ness for the Union who stated that during her 6 years of employment
with the Company she had never received any bonus prior to the one
received in the last week of January 1943. Moreover the record does
not support the contention that the bonuses were based upon ii creased
production. There is further evidence that general wage increases,
alleged to have been made by the Company within the past few years
were granted only in conformity with the Fair Labor Standards Act.
In view of the 2-week delay compromise which Kaplan said was
reached, there appears to have been no reason for the granting of these
bonuses in the interim. Norris there any legitimate explanation for
the Company's willingness "to take our chances on getting into trouble
with the War Labor Board" in granting these increases, particularly
in view of the-advice of the Field Examiner to refrain from promising
or granting general increases before the election.
One employee testifying for the Company stated that he requested
an increase for himself and a group of other employees about a week
prior to the election. Four employees testifying for the Union stated,
without contradiction, that at various times during-the last 2 weeks in
January and also in the days in February preceding the election, Max
Kaplan addressed groups of employees in the plant informing them
that they were to receive wage increases and bonuses. Harold Kaplan
admitted that, between January 1 and 23, 1943, a forelady and a fore-
man may have informed employees of the Company's proposed wage
increase and bonus plan..
CONCLUSION
VITe are of the opinion and find that the Company interfered with the
election by promising and granting increases in wages shortly before
the election. We shall, therefore, set the election aside. In this con-
nection, we note that the, Company is the respondent in a pending
action 3 in the Circuit Court of Appeals for the Second Circuit, brought
to enforce an order of the Board with'respect to unfair labor practices
involving violations of Sections 8 (1) and (3) of the Act. We shall,
therefore, not direct a further election until such time as we are advised
by the.Regional Director that one may appropriately be held.
ORDER
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby vacates and sets aside the election held in this
proceeding on February 4, 1943, and the result thereof.
.'Matter of Max Kaplan and Jacob Kaplan, co -partners, doing business under the firm
naive and style of Kaplan Bros . and Textile Workers Union of America, greater New York
Joint Board, C. I. 0 , 45 N. L R. B. 799.