Platon Fabrics Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1961

133 N.L.R.B. 355 (N.L.R.B. 1961)

PLATON FABRICS CORP. 355
4. The petitions in these cases sought separate units of all employees
of the Selling Corporations, other than office clerical employees, sales-
men, and supervisors. At the initial hearing in this case, prior to the
sale of the corporations, the Employer contended that only a single
unit of all employees of all corporations was appropriate. The
Petitioner indicated its willingness to represent such a unit but left
the question to the Board to decide. The Employer has not departed
from its basic contention that a single unit is appropriate. However,
it does argue that if the Board should find such a unit to be appropri-
ate, the employees of Ritchie Gas of Cornelia, Inc., and Rural Gas
Service, Inc., two corporations which allegedly were also purchased by
Suburban since the first hearing in this matter and placed under the
direction of Division Manager Weatherly, must also be included in
the unit. We do not agree. The employees sought by the Petitioner
constitute a readily identifiable group of the Employer's present em-
ployees, with a common employment history, who perform similar
functions for basically the same remuneration and under the same
working conditions. The fact that the Employer may have other
employees who share some of the same community of interests does not
preclude the establishment of the employees involved herein as a sep-
arate unit,10 especially in the circumstances of this case. Accordingly,
in the absence of a bargaining history on a broader basis we find that
the following employees of the Purchasing Corporations constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
All employees including fuel-truck drivers, installation men, and
servicemen, but excluding salesmen,"' office clerical employees, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
io Compare Southern Wyoming Utilities Company, and Pacific Power & Light Company,
131 NLRB 1333
n Contrary to the contentions of the Employer , we find that salesmen have insufficient
community of interests with the Employer 's other employees to require their inclusion in
the unit.
Platon Fabrics Corp . and District 65, Retail , Wholesale and
Department Store Union, AFL-CIO. Case No. ?-CA-7636.
September 2,6, 1961
DECISION AND ORDER
On March 9, 1961, Trial Examiner Lloyd Buchanan issued his In-
termediate Report in the above-entitled proceeding, finding that Re-
spondent 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.
133 NLRB No. 43.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and the General Counsel filed a supporting
brief.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board dismissed the complaint.]
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman McCulloch and
Members Rodgers and Leedom].
2 Chairman McCulloch would find that the second interrogation, accompanied as it was
by an attempt to induce employees to withdraw from the Union, violated Section 8(a) (1).
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein alleges that the Company has violated Section 8(a)(1) of
the National Labor Relations Act, as amended, 73 Stat. 519, by interrogating its em-
ployees concerning their membership in and activities and sympathy for the Union;
by inducing its employees not to become or remain members of the Union or support
it; by threatening its employees in order so to induce them; and by withholding
holiday pay from employees Roy Smith and Cornelius Anderson because they were
members of the Union and because they engaged in other protected concerted ac-
tivities. (Violation of Section 8(a)(3) of the Act in the latter connection is not
claimed.) The answer, as amended, denies the allegations of unfair labor practices.
A hearing was held before Trial Examiner Lloyd Buchanan at New York, New
York, on January 3, 1960. At the conclusion of the hearing, counsel were heard
in oral argument.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a New York corporation with prin-
cipal office and place of business in the city and State of New York, is engaged in
the importation and sale of velveteens and other textiles; that during the year preced-
ing issuance of the complaint herein it caused to be imported, sold, and distributed
at its place of business, products valued at more than $50,000, of which products
valued at more than $50,000 were furnished to various named enterprises, each of
which annually handles and ships goods valued at more than $50,000 directly out
of the State wherein such enterprise is located; and that the Company is engaged
in commerce within the meaning of the Act.
It was stipulated and I find that the Union is a labor organization within the mean-
ing of the Act.
II. THE ALLEGED VIOLATION OF SECTION 8 (A) (1)
The Company is a family enterprise, and its officers are Benjamin Platovsky, presi-
dent; Nathan Platovsky, secretary; and Leo Platovsky, treasurer. Nathan and Leo
are Benjamin's sons.
On or about August 22, 1960, the Union commenced an organizational campaign
among the Company's employee. (Earlier efforts were also mentioned at the hearing.
While this was not definitely stated, the unit evidently consists of Cornelius Ander-
son and Roy, also referred to as Leroy, Smith, who work as shipping clerks, deliver-
men, etc.) The Company also employs two bookkeepers, one of whom is the
daughter of the elder Platovsky and sister of the other two. Anderson and Smith
signed union cards on September 1.
On or about the afternoon of September 9, Dicker and Cohen, general organizers
for the Union, called on the Company and told Nathan Platovsky that Anderson and
Smith had joined the Union, which now requested recognition and negotiation of a
collective-bargaining contract. Platovsky asked to be excused, left the room, and in-
quired of the two employees whether they had signed. Informed by them that they
PLATON FABRICS CORP. 357
had, he returned to the union representatives and made an appointment to meet them
on September 14 to discuss a contract. Since that time the Company and Union
have held a series of contract discussions, and negotiations were still being conducted
at the time of hearing herein.
According to Nathan Platovsky, whom I credit in the face of Anderson's contrary
testimony, the latter, spokesman for the two employees, or "leader," told him that
he had been forced to sign the card. Confronted with the claim of representation,
Platovsky could lawfully inquire of his employees as he at that time did.
It appears from a composite of the credited testimony that later that afternoon
Platovsky sent for Anderson and Smith and asked whether that was their final deci-
sion. Anderson answered in the affirmative, and Smith "agreed." Platovsky then
reminded Anderson that he had kept him on when work was slow and when Anderson
drank on the job; and he suggested that Anderson write to the Union and let them
know that he did not want to join. Anderson replied that he would not write to the
Union, and that Platovsky could fire him if he wanted to. (This last was an un-
necessary show of independence which reflects on and explains the employees' later
conduct.) To Smith, Platovsky pointed out that he had been kept on despite
absences. Smith, passive throughout, apparently did not reply.
In view of Anderson's earlier statement concerning alleged coercion, it was under-
standable and lawful for Platovsky to ask again that very afternoon before bargain-
ing or believing that the Union in fact represented the employees. In this con-
nection I credit Platovsky's testimony that in 1958 or 1959 Anderson had told him
that he had been sent to the Union but was not interested. Although denying this,
Anderson testified that he had been asked to sign before the date on which he did,
and by "quite a few fellows."
The suggestion that Anderson sever his union connection is not denied. But like
the interrogation, this inducement is understandable in the light of possible coercion
to sign, and was minimal. As for the reminders of past favors or condonation of
improper behavior, these are hardly to be regarded as a threat of different treatment
in the future. They are rather of the nature of "we've always treated you right"
reminders, which are argumentative and may or may not be persuasive, but are not
regarded as violative.
We come now to the issue of withholding of holiday pay. The Platovskys- are
orthodox Hebrews or Jews, and their business is closed each year during the
Jewish holidays of Rosh Hashana, which in 1960 fell on Thursday and Friday,
September 22 and 23; Yom Kippur, Saturday, October 1; and Sukkoth, Thursday
and Friday, October 6 and 7 and again October 13 and 14. These holidays, which
commence at sundown the day before, occurred on approximately the same dates in
prior years. Although not working, all employees had been paid for these holidays
in prior years and in 1960 except that in the latter year Anderson and Smith were
not paid for the four Sukkoth holidays, which began on October 6. (These last,
it will be recalled, were approximately a month after the visit by the union organizers.
There is no issue concerning the October 1 holiday since that fell on Saturday, a non-
work day.)
The Company explained that other employers do not usually pay employees for the
various religious holidays when they do not work; that these 7 days come at the
height of the season; and that it expects and has in the past received each year from
these and its other employee or employees a partial quid pro quo in overtime work
performed without pay. The amount of such overtime, it was noted, is less, com-
puted at overtime rates, than the holiday time and pay allowed.
Negotiations between the Company and the Union broke down before the October
6 and 7 holidays. Nathan Platovsky testified that the Union was angered and called
on the State mediation board. The Union's attitude can be gauged by the fact that
on October 10 some 30 or 40 of its people came into the Company's store, yelling
and otherwise demonstrating. In the meantime, during the first week in October and
after the breakdown in negotiations, Anderson and Smith for the first time became
uncooperative, for example, going to wash and change clothes at 5 or 5:15 so that
they were ready to leave at 5:30, instead of remaining at their work throughout.
Smith even refused to take out a delivery because, he said, he would not be through
by the normal quitting time. The Company regarded Anderson as the leader of the
pair, he being the senior. Smith allegedly did whatever Anderson told him (none of
this was denied), and the Company concluded that Anderson was leading Smith.
While the General Counsel brought out that ,the two were acting in concert in their
uncooperativeness, this served no more than to show further that both were in-
volved. Their concerted refusal to work overtime did not protect them in any right
to be paid when they thus refused to continue to cooperate.
Here the Company made out a plausible defense for its failure to pay for the
holidays in question. To meet this, Anderson testified that the holiday pay was not
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in return for overtime worked . He did not question the charge of change in his
and Smith 's attitude and work habits . But he testified that the Company had in fact
habitually paid for overtime in the past, this presumably to show that the ex-
planation was concocted and the failure to pay for the 4 days in October was dis-
criminatory. Confronted with payroll records which showed no overtime pay at
any time except for 2 weeks , Anderson now testified that overtime payments were
made in cash, in addition to the regular check which he normally received . We need
not concern ourselves with probabilities , business practice, or tax reasons for
paying employees in so informal and indefinite a manner . Anderson's testimony
can at best be described as uncertain . Apparently without accounting, the Company
bought his supper but allegedly deducted for it ; he could not say how many hours
of overtime he worked or was paid for , or how much he received.
It should be noted that the Company did pay for overtime worked during the
weeks ending August 19 (this was apparently before the Union 's organizing drive
was begun ) and September 9, 1960 . While these two exceptions were not explained,
the payments were listed on the payroll records and were not in cash. The
Platovsky brothers (the father was in a hospital at the time of the hearing) im-
pressed me as frank and ingenuous , and I credit their explanation for the withhold-
ing of holiday pay, and Leo Platovsky 's testimony that overtime was never paid for
in cash.
While this in itself is not determinative , it is relevant to note that , after the
Company learned on September 9 of Anderson 's and Smith's union membership, it
paid them for the September 22 and 23 holidays . This is consistent with its ex-
planation of refusal to pay only because they refused to continue to work overtime.
In short , the terms and conditions of employment were not discriminatorily changed
by the Company ; rather, the employees first departed from the established practice,
and the Company 's action was retaliatory ( for the employees ' acts on the job, not
their union activities), understandable , and lawful.
This proceeding may have been prompted by failure to date to arrive at a
collective-bargaining agreement ; but the evidence adduced does not warrent findings
of the violations alleged . Nor can counsel , however competent , provide proof of
violation or sufficient basis for inference where the facts indicate the contrary. What-
ever their legitimate concern , I find that the Company 's representatives are guileless
and sincere , and that any preference that their employees not be organized was not
expressed in violative acts.
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of the Act.
2. District 65, Retail , Wholesale and Department Store Union , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. The Company has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
Billings Local No. 1172 of United Brotherhood of Carpenters
and Joiners of America , and Montana State Council of the
United Brotherhood of Carpenters and Joiners of America
and United Brotherhood of Carpenters and Joiners of America
and Anthony Ocepek and The Refinery Engineering Company,
Billings Contractors Council , Inc., and Montana Contractors
Association , Inc., Parties to the Contracts . Cases Nos. 19-CB-
518 and 19-CB-530. September 06,1961
SUPPLEMENTAL DECISION AND ORDER
On February 16, 1961, the Board entered its Decision and Order
in this proceeding i in which it found that the Respondents had vio-
1130 NLRB 307.
133 NLRB No. 44.