Service Canvas Co., Inc.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Canvas Company, Inc. and Textile Workers Union of America, AFL-CIO. Case 3-CA-4665 July 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 30, 1972, Trial Examiner Laurence A. Knapp issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions 2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Service Canvas Company, Inc., Buffalo, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1 In agreement with the Trial Examiner, we find that Eron's conversation with Kolesmck was not calculated to coerce Kolesnick , but we would place no reliance on the Trial Examiner's reasoning that since both were 21-year- olds there could scarcely have been much of a boss-worker relationship Other factors related by the Trial Examiner , however, convince us that this discussion was not coercive. 2 All members agree that the additional training responsibilities assigned to Burks with the corresponding slight increase in her pay did not constitute a violation of Respondent's bargaining obligation . In so concluding, we do not pass upon or adopt the Trial Examiner's apparent interpretation of the "Management Rights" provision of the contract TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LAURENCE A. KNAPP, Trial Examiner: I heard this case at Buffalo, New York, on February 10 and 11, 1972, following preheanng procedures in compliance with the National Labor Relations Act, as amended (herein referred to as the Act).' Following the hearing, briefs were filed by 1 The charge herein was filed on November 12, 1971, the complaint issued on December 21, 1971, and Respondent answered the complaint by an answer dated December 30, 1971 All dates used herein refer to the year counsel for the General Counsel and for Respondent, Service Canvas Company, Inc. (The latter herein frequent- ly referred to as the Company). Upon the entire record in the case, including my observation of the demeanor of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is engaged in the manufacture and sale of canvas coverings and related products. The complaint alleges, Respondent's answer admits, and I find that during the year preceding issuance of the complaint, Respondent shipped directly to States other than New York products valued in excess of $50,000. Respondent is engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, Respondent admits, and I find that the Charging Party, Textile Workers Union of America, AFL-CIO (the Union), is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Nature of the Questions Presented In 1966, Respondent voluntarily accorded recognition to the Union, in writing,2 as the representative of Respon- dent's production and maintenance employees , and there- after entered into two corresponding contracts with the Union, the last one having November 8, 1971, as its expiration date. A principal question presented is whether, in declining to bargain further with the Union on November 10, 2 days after the contract's expiration, Respondent violated Section 8(a)(5) of the Act. Subsidiary questions are whether Respondent violated its collective- bargaining obligation during the life of the contract when, in the summer of 1971, it gave certain training responsibili- ties to one of its production employees and a correspond- ing increase in her hourly wage rate ; and whether Respondent engaged in unlawful interrogation of its employees. The Alleged Unlawful Refusal To Bargain Prior to February 1971, Respondent was mainly engaged in two somewhat distinct types of operations: (1) "manu- facturing" tarpaulins and other kinds of protective cover- ings, mainly for the construction industry; and (2) "custom" business in coverings ; i.e., making coverings, such as boat covers , upon special order or against customer's specifications. Respondent is a small business; from the scattered evidence of record, I infer that in both these operations, Respondent employed about 10 employ- 1971, unless otherwise indicated. 2 G C Exh 2 198 NLRB No. 23 SERVICE CANVAS COMPANY ees in February 1971. On February 25, Respondent discontinued its "manufacturing" operations described above, and thereafter limited itself, so far as the issues of this case are concerned, to the "custom" operation.3 Respondent notified the Union of this termination of its manufacturing operations and of the corresponding "per- manent" layoff of seven employees which it made as an incident of the cessation of this line of business 4 In the ensuing conduct of its custom line of business, Respondent apparently had two or three employees on its payroll during the period of about March to May,5 and by the fall (after a temporary expansion of workers during the summer incident to the seasonal character of the custom business) Respondent was down to three employees on its payroll. These consisted of Mattie Burks, a longtime regular employee, and two others, Paul Kolesnick, a student first employed during the summer period, and Mary Ann Straitiff, first employed about October 1. On November 4, Straitiff was discharged by Respondent at the Union's request because of her failure to comply with the union-security provisions of the existing agreements Thus Respondent had two employees on November 8, the date upon which the contract expired as recounted below. (The record contains no evidence as to any personnel changes subsequent to November 8 save for the departure of Kolesmck from Respondent's employ in December). Of these two, Burks had at the time the Union first gained recognition in 1966 signed a union membership and dues checkoff card, which she had not thereafter revoked. Kolesnick, on the other hand, who was first employed in May, had never signed up with the Union despite the union-security clause of the contract,? and as later shown had not at any time otherwise manifested his desire that the Union serve as his bargaining representative. With the contract due to expire at midnight on November 8, representatives of Respondent (its attorney, Fromen, its president, Wedtke, and its general manager, Eron) met with Richard Shsz, the Union's local representa- tive, on the morning of that day to initiate negotiations for a new contract pursuant to contract termination notices and other arrangements previously exchanged and made by the parties.8 Since there is no contention that Respon- dent engaged in any refusal to bargain at this initial meeting, and since in view of certain developments at this meeting the parties agreed to resume further negotiations 3 Sometime during 1971, Respondent inaugurated some kind of retail store operation involving the sale of camping goods, but this fact has no bearing on the issues of this case * G.C. Exh. 3. 5 See Respondent's letter of February 25 to the Union part of G C. Exh 3 6 See G C. Exh 8, art. iI. 7 The union-security clause of the contract is the usual one requiring employees to become members of the Union after the 30th day following their initial employment, and is accompanied by a checkoff provision requiring the Respondent to make union dues deductions from the pay of employees who sign corresponding checkoff cards To implement these provisions, the Union used a card set forth in the contract combining acceptance of membership with a checkoff authorization . (See G C. Exh. 8, art II). Kolesnick did not sign such a card or otherwise become a union member or authorize dues deduction from his pay. 8 For the corresponding written notices, see G C Exhs. 4 and 5 9 Upon Slisz' inquiry concerning such new classifications, two such draft job classifications were given him by Respondent 's representatives 10 Other features of this meeting were that Slisz asked for and was given 89 on November 10 (the date on which the General Counsel contends the Company engaged in an unlawful refusal to bargain), there is no need to make any comprehensive review of all that transpired on this occasion. For present purposes, the essence of what happened was that Respon- dent, apparently speaking almost exclusively through Fromen, its counsel, took the position that the expiring contract and its annexed job classifications were geared mainly around the former manufacturing operations and corresponding jobs which had been discontinued, so that it would be necessary to develop a contract more closely focused upon the Company's remaining custom operations with corresponding new or revised job classifications; 9 and that it was not yet prepared at this meeting to negotiate concerning wage rates and other economic proposals it had received from Slisz some 10 days previously because it had not completed its cost analysis of them in relation to the custom business, but would be prepared to negotiate concerning these matters by November 10, to which date the negotiations were postponed.i° During the meeting Fromen declined Slisz' repeated requests that Respondent agree to an extension of the period of the contract,ii with the result that the contract expired at midnight of that day. When the same representatives of the parties reconvened on November 10, some company representative handed Slisz the promised list of employees laid off, whereupon Fromen stated that on the basis of information the Company had obtained from its two employees, Burks and Kolesnick, since the November 8 meeting it had a serious doubt whether the Union represented a majority of these two unit employees, and that for this reason he could not advise the Company that it could continue to negotiate since to do so might place the Company in violation of the Act. Fromen further stated in this connection that the Company had been prepared to negotiate in good faith, but that in view of the information obtained by the ,Company he could not advise it to carry the negotiations on further until the Union demonstrated to the Company, in one form or another, that it did represent a majority. In response to Fromen's statements, Slisz claimed the Union had a majority counting the laid-off employees, whom he contended were members of the unit on the basis of their asserted recall rights under the contract, and produced Mrs. Burks' 1966 membership and dues check-off card as proof of her representation by the Union. Fromen parried the names of present employees (Burks and Kolesnick); Slisz requested a list of laid-off employees which Respondent 's representatives, after first asserting their belief that such a list had previously been given to Shsz, agreed to provide; and an explanation was given to Slisz of the circumstances surrounding a pay raise given to Burks the previous July On another tack, Shsz testified that Fromen spent considerable time at this meeting asserting the view that the parties were wasting time, money, and effort with but two or three employees involved, whereas Fromen denied saying anything of this nature I find it unnecessary to attempt a resolution of this conflict since there is neither a contention nor showing of any refusal on Respondent's part to negotiate, or continue to negotiate, predicated on such a ground. ii In rejecting these requests for an extension , Fromen stated Respon- dent was prepared to continue the negotiations despite expiration of the contract and, when Shsz expressed concern over Mrs. Burks' continuing to work without a contract, told Slisz that Mrs. Burks situation would not thereby be prejudiced. Fromen further informed Slisz that with the expiration of the contract, Respondent would not continue to checkoff Mrs. Burks' union dues 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these assertions as insufficient and, as the meeting drew to a close, told Slisz that if the Union were to provide Respondent with proof substantiating its majority repre- sentation claim Respondent would be willing to resume the negotiations for a contract.12 Turning now to the evidence concerning the conversa- tions Respondent's representatives had with the two employees, I will deal first with the case of Kolesmck. In this connection, it should be borne in mind that whereas Kolesmck apparently was a full-time employee during the summer months, during the fall months he, as a student, worked only 3 days a week; and he had never joined the Union or signed a union card despite the union-security provision of the contract.13 With this background, Manager Eron approached Kolesnick at his work on the afternoon of November 8, where they first talked about some aspect of the work Kolesnick was performing. There then ensued some further conversation as to which their testimony is in conflict on significant points. On his direct examination as a witness for the General Counsel, Kolesnick first testified that Eron told him that the Company was not planning to renew the contract and asked him how he felt about joining the Union; that in reply he told Eron that he "probably" would not be interested in joining because the initiation fee would represent about 2 weeks of his pay and it was not worth it to loin; and that Eron went on to say that this was the day before the contract's expiration and that if nobody contacted him he should come to work the next day as usual. On his cross-examination it developed that in the pretrial statement he gave a representative of the General Counsel on December 7 there is no passage in which he attributed to Eron the statement that the Company did not plan to renew or renegotiate the contract but did contain a statement that Eron told him the contract was expiring the next day. Asked in these circumstances whether Eron had said that the Company was not planning to renegotiate the contract, Kolesnick replied, "It was all based on the same idea, I don't recall exactly. He may have said-wait, let me get that right. I don't remember how he stated it. Apparently, I felt like that," and went on to speculate as to some words Eron "could have said." Puzzled by this sort of uncertain testimony, the Trial Examiner later interrogated Kolesmck for clarification, but without satisfactory results since in response to the Trial Examiner's questions Kolesnick repeated that he could not testify as to Eron's exact words, and, while stating that the idea that the Company did not intend to renegotiate the contract was somehow given to him, admitted that this might have been his way of interpreting something Eron had said or that he had read this interpretation into something Eron had said. His final effort to clarify matters-that he got "the impression" that the Company was "not going to contin- ue" the "dealings with the union"-left his testimony in the same puzzling state it had earlier assumed as to whether Eron had said the Company was not planning to renew the contract. In view of the indefinite and unsure character of Kolesnick's testimony on the first point, I find that Eron did not tell him that Respondent was not planning to renew the contract. On the other hand, the circumstances lead me to find that Eron did ask Kolesnick how he felt about the Union.i4 Eron's version of this conversation is quite different. He testified that during a discussion he was having with Kolesnick about some work problem on a tent, he told Kolesnick that the contract would expire that midnight and that, in response, Kolesnick told him that he did not wish to work for the Company (or would quit) if he had to pay the Union dues or initiation fee because this would represent his pay for a week or so, and that he, Eron, made no reply to Kolesnick's remarks. Eron further testified that Kolesnick asked if he should come in the next day as usual and that he told Kolesnick to do so if no one called him.15 Eron testified that nothing else was said about the Union, and specifically denied that he told Kolesnick the Compa- ny was not planning to renew the contract or that he asked Kolesnick how he felt about the Union. Further as to Kolesnick, Eron testified about October 15 Kolesnick had volunteered to him essentially the same remarks Eron attributed to Kolesnick on November 8; i.e., that he did not wish to continue working for the Company if he had to pay the union dues and initiation fee because they were equal to or greater than a week's pay. Since Kolesmck could not recollect making but testified it was possible he had made such remarks to Eron on this earlier occasion, I credit Eron's testimony that he did. Kolesnick further admitted that on numerous occasions after he had gone on part-time status, this is during the fall months, he had discussed the matter of joining the Union with Mrs. Burks and that he had consistently told her he would not be interested in joining.16 With respect to Mrs. Burks, as previously noted, she had signed a union membership and dues-deduction card in 1966 which she had never revoked,17 and throughout was a member in good standing of the Union. During the morning of November 9 Eron told her to come to President Wedtke's office where she had a conversation with Wedtke, concerning which she and Eron testified.18 While 12 As to Slisz' reference to the laid-off employees, on the basis of Fromen's testimony I find that Slisz asked at this meeting if Respondent intended to recall any of these former employees and that Slisz was told that Respondent did not anticipate any such recall, that the manufacturing operations in which they had worked had been discontinued, and that the Company would be continumg to operate on a limited basis utilizing two or three employees 13 In this regard, Kolesmck testified that during the summer period he was never contacted by anyone and "the problem never arose " and that at some point he was told by Respondent's Manager Eron that the 30-day period had been extended for a further like period. 14 It is more likely that what Kolesmck said about his attitude toward the Union was prompted by an mquiry from Eton than that he simply volunteered statements along this line upon being told that the contract was expiring Moreover, Respondent admittedly queried Mrs. Burks the next day as to how she felt about the Union, a circumstance suggesting some pattern of approach by Respondent to its two employees on a common subject. is In this connection, Eron further testified that when there was some shop problem, Kolesmck did not come in to work unless called, and that Kolesnick, because of his student status, sometimes called in about coming to work. 16 Kolesnick testified that no one had contacted him on this subject during the summer months so that the problem had not then arisen 17 Resp Exh 2 is Respondent did not put Wedtke on the stand , but as there is no (Continued) SERVICE CANVAS COMPANY 91 Mrs. Burks' account of the conversation is fuller than that of Eron their versions do not conflict in any material particular so that what follows constitute my findings as to the main features of the conversation based on both witnesses' testimony. Wedtke opened the talk by telling Mrs. Burks that the union contract had expired the previous day and asked her if she still wanted to be represented by the Union.19 She replied in the affirmative but in the same sentence went on to say "what can one person do," Wedtke said he could not tell her, and she said that if there were to be just "one person" on strike or walking a picket line, she would rather not be in the Union; 20 Wedtke asked her what the Union had done for her and she said "not very much," that she had fought for herself, and what she had gotten she had gotten by herself. She asked Wedtke if she could receive any further raises or vacations and Wedtke told her he could not comment on this. Conclusion With Respect to the Alleged Refusal to Bargain Board decisions state that where an employer has voluntarily recognized and entered into contractual rela- tions with a union as the majority representative of the employees involved, following proof of the Union's majority in some manner other than a Board certification, the contract gives rise to a presumption that the Union's status as majority representative continues during the life of the contract and (presumably for a reasonable time) thereafter, so that an employer who, following expiration of the contract, questions the Union's majority as a reason for refusing to bargain with it can successfully assert this defense only by proving either (1) the fact of the Union's lack of majority at the time of his refusal, or (2) the existence of reasonable grounds, based on objective considerations, for a belief on his part that the Union has lost its previous majority status (this latter defense being frequently expressed as the "good faith doubt" principle).21 In this case, there were two employees in the established unit at the time of the refusal to bargain on November 10.22 Burks may be passed over rapidly because, as Respondent knew, she was a fullfledged, dues-paying member of the Union; because the manner in which she was questioned concerning her representation desires on November 9 was, due to the absence of the necessary safeguards! sufficiently coercive to require'that her respon- sive expressions be disregarded; 23 and because, in any event, the expressions to which she gave voice (supra) fall essential conflict between Burks' and Eton 's testimony as to what was said by Wedtke and Burks the absence of testimony by Wedtke is not significant. le Mrs. Burks described in two ways the inquiry made of her by Wedtke, that is, at some points in her testimony he asked her if she still "wanted to be in the Union," and at other points whether she "wanted to be represented by the Union"; obviously, these variations are of no consequence. 20 Eron testified that Mrs. Burks said she did not want to be the only person "paying union dues" or walking the picket line, whereas Mrs Burks testified that she did not say she did not want to pay union dues. But even if Eron were to be credited in this regard, it would not change the substance of what transpired. 21 See Barrington Plaza and Tragniew, Inc, 185 NLRB No. 132, and cases there cited. See also United Aircraft Corporation, 168 NLRB 480, 486. far short of any definitive renunciation of the Union as her desired bargaining representative. However, Kolesnick's case presents entirely different considerations, due to the fact that Kolesnick, while fully aware of the union-security provision of the contract, had nevertheless not only not complied with it by joining the Union or authorizing payment to it of the corresponding fees and dues, but also had manifested a rather positive disposition to quit rather than designate the Union as his bargaining representative. Hence, unlike the case of Burks, Kolesnick was not in the situation of a constituent of the Union whose established status as such is subsequently called into question by virtue of asserted later contrary conduct or circumstances. Thus, counsel for the General Counsel places mistaken reliance on the claimed coercive character of Eron's inquiry of Kolesnick on November 10, insofar as counsel may be contending that if Kolesnick's response to this inquiry is disregarded on the ground that it was coercively elicited, the presumption of continued majority in favor of the Union attaches to Kolesnick as it does to Burks. But in Kolesnick's case, rather, the question is where he stood all along and since established facts show where he stood, there is no occasion for any resort at all to any presumption as to the Union's representation of him. To repeat, these facts show that he had consciously declined ever to designate the Union as his bargaining representative, and had made his position known to Respondent in October and to Mrs. Burks on numerous occasions in this material fall period. This proof is sufficient to show, as a fact, that the Union was not Kolesnick's bargaining representative on November 10, and hence the Union did not represent a majority of the two employees in the unit when Respondent refused to bargain further on that date. Moreover, even if I were to find or conclude that this evidence is not sufficient to establish that the Union did not represent Kolesnick on November 10, Respondent's knowledge of Kolesnick's conscious noncompliance with the union-security requirement and of his mid-October uncoerced expression of intention or disposition to quit rather than sign up with the Union were objective circumstances giving Respondent reasonable grounds to doubt that he desired or was prepared to designate the Union as his bargaining representative. Thus, it is not, in this view of the case, essential to determine whether Eron's inquiry of Kolesnick on November 8 was coercive and, consequently to decide whether Respondent may rely on Kolesnick's negative remarks on that occasion relative to his union representation desires. But if I had to decide that 22 While at the November 10 meeting Slisz appears to have referred to the union members laid off in February incident to the cessation of the manufacturing business as represented by the Union and entitled to be included in the unit, counsel for the General Counsel makes no such explicit contention in his brief. In any case , these individuals were denominated as permanently laid off at the time and there is no opposing evidence showing that their layoff carried with it a reasonable expectation of recall to work. Indeed, the fact that they were terminated as an incident of termination of the manufacturing business in which they had been employed carried with it a contrary expectation Hence these former employees may not be considered unit employees 23 Accordingly, I find and conclude that the questioning of Mrs. Burks violated Sec. 8(aXI) of the Act, as charged in the complaint. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question, I would conclude that, in the special and peculiar circumstances of this case, Eron's inquiry was not calculated to coerce Kolesmck in the sense of tending to elicit from him some unreliable expression of his position. Both Eron and Kolesnick were 21 years old, and for this reason and the obvious informality which must have existed in a setup utilizing but two or three production employees, Kolesmck could scarcely have entertained much of a boss-worker feeling in his relations and conversations with Eron, or any concomitant sense of fear or constraint in responding to Eron's question, especially since the record is devoid of any expressions of antiunion hostility by Eron (or anyone else) to Kolesnick on this occasion or any other, and of any overhanging clouds of coercive unfair labor practices on Respondent's part. Moreover, Kolesnick was not called into the office for questioning by President Wedtke and Eron, as in the case of Burks, and in first telling Kolesnick that the Union contract was expiring that day, Eron indirectly gave an indication of the purpose of his inquiry, as Kolesnick's response and surrounding testimony indicate he under- stood. And the fact that Kolesnick had previously (in October) volunteered to Eron where he stood makes it difficult to believe that Kolesnick could have felt coerced when Eron reopened the matter on November 8. In these circumstances, I believe Kolesnick's essentially volunteered statement at the hearing that while Eron asked him how he felt, Eron "didn't pressure me" into making the response he gave, truly reflects Kolesmck's lack of any anxiety over Eron's question, so that Respondent was entitled to place some reliance on Kolesnick's negative response as mani- festing his true feeling, and which, accordingly, Respon- dent may assert in support of its "good faith doubt" defense.24 Accordingly, I find and conclude that the allegations of the complaint that Respondent unlawfully refused to bargain with the Union on November 10 have not been sustained and should be dismissed.25 I reach a similar conclusion with respect to the further, and final, count of the complaint; that is, that Respondent violated its bargaining obligation to the Union in unilater- ally changing Mrs. Burks' wages in July 1971. Shortly before this change, there left Respondent's employ one Battaglia, who theretofore, as a most experienced employ- ee, had occupied a sort of leader position in the performance of the custom operations; that is, in addition to spending about half his time in such production work as cutting and sewing, he spent about half his time in "programming" (which as I interpret his rather imprecise testimony meant that he scheduled production so as to meet completion dates) and in training employees needing instruction. After Battaglia left, and with Mrs. Burks the remaining regular employee most experienced in sewing and related operations, Mrs. Burks acceded to Eron's request that she take over corresponding training duties but only after she demanded and he agreed to a 30-cent- per-hour wage increase to compensate her for this added function. The record indicates that she gave instruction to only two or three employees and otherwise continued to perform her accustomed sewing and related work. While the General Counsel's theory of violation is nowhere clearly articulated,26 what is clear is that arranging for Mrs. Burks to fill the training gap with a slight increase in her pay was the sort of minor work assignment well within the normal sphere of management authority, and, indeed, would appear to be one of the powers expressly reserved to the Company in a "Manage- ment Rights" provision of the contract.27 Hence, the count of the complaint dealing with this insignificant matter should be dismissed. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. In the circumstance previously found, Respondent's questioning of Mrs. Burks regarding her desires concerning representation by the Union was coercive and in violation of Section 8(a)(1) of the Act. 4. The unfair labor practice described in paragraph 3 above is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not engaged in any of the other unfair labor practices alleged in the complaint. THE REMEDY My recommended Order will require Respondent to cease and desist from unlawful interrogation or like conduct and, as affirmative relief, to post the customary form of notice to employees. Upon the foregoing findings of fact, conclusions of law, 24 By the same token, I conclude that the allegation of unlawful interrogation of the complaint based on this incident has not been sustained by the proof and should be dismissed 25 After the General Counsel and Respondent had put in their affirmative cases, counsel for the General Counsel sought as a matter of rebuttal, to prove that Respondent had terminated the manufacturing operations at the Buffalo plant in February and thereafter begun such operations at another location in New York State, for antiunion reasons. I declined to receive this proof. To open such a subject would have involved, in substance, permitting the General Counsel to initiate the trial of an entirely new and possibly complex case of alleged plant-moving violation, never charged or alleged, and to allow this in the guise of rebuttal evidence would have been to indulge in a procedure all the more improper and prejudicial Moreover, even if the Respondent had been actuated in February with the antiunion motivation asserted, that fact would not in any way have transformed Kolesnick into a union constituent in December or otherwise have altered the facts and circumstances determinative of the issue presented by the General Counsel's complaint, that is, whether Respondent's conduct on November 10 relative to the Buffalo unit alleged in the complaint was an unlawful refusal to bargain. Hence, I also deny the General Counsel's posthearing motion to reopen the hearing to take evidence on this matter 28 In his brief, counsel for the General Counsel states that a new position was created for Mrs Burks as though, although his brief does not argue the matter, this could not be done without bargaining with the Union. But it is clear that there was no such new position created Counsel then shifts to another contention ; namely, that Respondent's failure to notify the Union of Mrs. Burks' pay increase was a violation of Respondent's bargaining obligation under the Act But plainly this result does not necessarily follow from the premise, and does not follow at all under the circumstances of this case as discussed in the text 27 GC Exh 8, art ill. . SERVICE CANVAS COMPANY 93 and the entire record, I hereby issue, pursuant to Section I0(c) of the Act, the following recommended: 28 "Notify said Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " ORDER Respondent, Service Canvas Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees in an unlawful manner with respect to their desires concerning their representation for collective-bargaining purposes by Textile Workers Union of America, AFL-CIO, or any other labor organiza- tion. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business in Buffalo, New York, copies of the notice attached hereto marked "Appendix." 29 Copies of the notice, on form provided by the Regional Director for Region 3, shall, after being signed by a representative of Respondent, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced or covered by any other material. (b) Notify said Regional Director for Region 3, in writing, within 20^ days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.3o 28 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 29 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of a United States Court of Appeals enforcing an Order of the National Labor Relations Board " 30 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT unlawfully question you concerning whether you desire to be represented for collective- bargaining purposes by Textile Workers Union of America, AFL-CIO, or any other labor union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the above rights. SERVICE CANVAS COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Ninth Floor, Federal Building, 111 W. Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.