National Association of Broadcast Employees

National Labor Relations Board - Board Decisions

May 20, 1970

182 N.L.R.B. 603 (N.L.R.B. 1970)

NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES
National Association of Broadcast Employees and Techni-
cians (AFL-CIO-CLC) and Poole Broadcasting Compa-
ny. Case 7-CB-1685
May 20, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN AND JENKINS
On October 29, 1969, Trial Examiner Thomas F.
Maher issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had not engaged in
the unfair labor practice conduct alleged in the complaint
and recommending that the, complaint be dismissed in
its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Charging Party filed exceptions
and a supporting brief and the Respondent filed an
answering 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 powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its entirety
' In adopting the Trial Examiner's recommendation that the complaint
be dismissed in its entirety we rely only on his alternative finding,
as delineated in his Decision, that the alleged violation was moot
at the time of the hearing
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a charge
filed on January 18, 1968 , by Poole Broadcasting Compa-
ny against National Association of Broadcast Employees
and Technicians (AFL-CIO-CLC), referred to herein
as the Union or NABET, the Regional Director for
Region 7 of the National Labor Relations Board, herein
called the Board, issued a complaint on October 14,
1968, against Respondent on behalf of the General Coun-
sel of the Board alleging violations of Section 8(b)(3)
of the National Labor Relations Act, as amended (29
U.S.C., Sec. 151, et. seq.), herein called the Act. In
its duly filed answer Respondent, while admitting certain
allegations of the complaint, denied the commission
of any unfair labor practice.
'603
Pursuant to notice a trial was held before me in
Flint, Michigan, where parties were present, represented
.by counsel, and afforded full opportunity to be heard,
examine and cross -examine witnesses, present oral argu-
ment, and file briefs with me. Briefs were filed by
Respondent and the Charging Party on September 2,
1969.
Upon the commencement of his cross-examination
of Respondent's Regional Director, George Maher,
whom Respondent had called as a witness in its behalf
counsel for the Charging Party, requested that he be
given time "to examine the witness' statement," refer-
ring to the pretrial affidavit given by Maher to the
General Counsel and presumably then in the General
Counsel's possession but not previously shown to coun-
sel. Upon Respondent's objection and after argument
on the issue I refused to require the statement to be
delivered to counsel. For the reasons which follow I
reaffirm my ruling at this'time.
The National Labor Relations Board's Rules and Regu-
lations, Series 8, as amended, leave no room for discre-
tion in this matter. Thus Section 102.118 of the Rules
and Regulations, Series 8, as amended, states in pertinent
part that "after a witness called by the General Counsel
or by the charging party has testified . . : the Trial Exam-
iner shall, upon motion of the respondent, order the
production of any statement of such witness in the
possession of the General Counsel which relates to
the subject matter as to which the witness has testified:"
As the rule is specifically limited to witnesses called
by the General Counsel or, charging party, which Maher
was not, and as it vests the right to inspect solely
in the Respondent it is clear that the Charging Party's
counsel has no standing under the Board's rules to
inspect the document.' The suggestion that Ra-Rich
Manufacturing Corporation, 121 NLRB 700,, permits
of'a different interpretation and thus constitutes a rever-
sal of the clear language of. the above quoted rule
is not, conceivable. In point of time, it is to be noted
the rule was promulgated on October 24, 1958, 2 months
after the Board's Ra-Rich decision. Nor is the decision
of the U.S. Court of Appeals for the Ninth Circuit
in Harvey Aluminum Inc. v. N.L.R.B., 355 F.2d 749,
of any relevance to the issue at hand. The document
in question in the instant case was in the possession
of the Board's General Counsel. In the Harvey case
the document was in the possession of some other
agency of the government and being sought, not by
a charging party, as here, but by the respondent, a
party entitled to documents in the possession of the
General Counsel. Finally, it has been held by the United
States Court of Appeals that the Board's Rules do
not permit general prehearing discovery.2 Charging Par-
ty's counsel also sought, as preparation for his cross-
examination, the notes taken by Maher during the collec-
' Raser Tanning Co. v N L R B , 276 F 2d 80 (C A 6), cert denied
363 U S 830, enf 122 NLRB 640, Film Inspection Service, Inc , 144
NLRB 1040
4 Texas Industries, Inc v N L R B , 336 F 2d 128, 133 (C A 5),
N L R.B v Vapor Blast Mfg Company, 287 F 2d 402 (C A 7), Raser
Tanning Co v N L R B, supra
182 NLRB No. 90
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive-bargaining session in which he participated • and of
which he had testified on direct examination. In the
exercise of my discretion I refused counsel's request.
Where, as here, "a witness does not use his notes
or memoranda in court, a party has no absolute right
to have them produced and to inspect them. "3
Upon consideration of the entire record, including
the briefs filed with me, and specifically upon my obser-
vation of each witness appearing before me,4 I make
the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYER
Poole Broadcasting Company, the Charging Party
herein, is a Michigan corporation maintaining a television
broadcasting station and place of business in Flint, Michi-
gan. During the year ending December 31, 1967, Poole,
in the course and conduct of its business, received
in excess of $500,000 in revenue from the sale of broad-
cast time, of which in excess of $50,000 was received
from customers outside the State of Michigan who adver-
tised nationally sold products. During the same period
it purchased materials and services valued in excess
of $50,000 which were transported and delivered to
its Flint, Michigan, station directly from points located
outside the State of Michigan.r
Upon the, foregoing agreed-upon facts I conclude and
find that Poole Broadcasting Company is, an employer
engaged in commerce- within the meaning ^ of Section
2(2), (6), and (7) of the Act.
11. THE STATUS OF THE RESPONDENT
It is admitted by all.parties and I accordingly conclude
and find that National Association of Broadcast Employ-
ees and Technicians (AFL-CIO-CLC) is and at,all rele-
vant times has been a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ISSUE
Demands for a profit sharing plan and a multiple
duties grievance clause as mandatory subjects for bar-
gaining.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events5
Respondent was first certified by the Board in Case
7-RC-6184 on May 15, 1964, as the collective-bargaining
representative of the employees of television station
WJRT-TV, then owned by the Goodwill Stations Inc.
Goldman v U S, 316 U S 993, 995
Bishop and Malco, Inc , dl bl a Walker's , 159 NLRB 1159, 1161
The findings herein are based upon the credited testimony of the
Company's vice president , Albert J Gillen , a witness called by the
General Counsel , and upon the documentary evidence submitted by
the General Counsel
Thereafter, on September 5, 1964, Goodwill and NABET
executive a collective agreement in behalf of the employ-
ees in the certified unit, designated as follows:
All production and maintenance employees now
or hereafter employed at Station WJRT in Flint,
Michigan, or at the WJRT transmitter in the City
of Chesaning, Michigan, but excluding office clerical
employees, sales, traffic, promotion employees, on-
the-air personnel, and newsmen, professional
employees, guards and supervisors as defined in
the . . . Act . . . and as certified by the Board
in Case No. 7-RC-6184. I
On September 9', 1965, WJRT-TV was sold by Good-
will to Capital City Broadcasting Co., which immediately
resold it to WJRT Inc., which in early 1963 changed
its corporate name to Poole Broadcasting, Charging Party
herein. Poole retained the employees covered in the
bargaining unit and assumed the obligations of the 1964
agreement with therUnion.
Among the employees of Poole not covered by the
collective agreement were three individuals described
as "program traffic employees" which included the conti-
nuity writer. On April 12, 1967, NABET filed a represen-
tation petition with the Board" to represent these employ-
ees, describing them as "traffic employees, continuity
employees and reproduction and mail employees" and
stating the total number to be four. Thereafter, on
August 18, 1967, following an election in the voting
group encompassing these employees, the Regional
Director certified NABET as the representative of the
employees the following unit:
All program traffic employees, including the continu-
ity writer; but excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act, and all other employees.
Thereafter, on November 9, 1967,, upon petition of the
Company and subsequent agreement by NABET, the
Regional Director, in Case 7-AC-10, amended the certi-
fication of the employees initially, described as a voting
group, and included them as part of the overall produc-
tion and maintenance unit which had been originally
certified in 1964 and, in whose behalf the outstanding
1964 agreement had been executed.
Meanwhile, on September 28 and October 19 and
27, 1967, and thereafter on November 15 and 28, when
the certification had been amended, negotiations were
conducted between the Company and NABET specifical-
ly concerning the program traffic, employees and the
continuity writer. At the outset the Union asked that
a separate contract be negotiated for the three employ-
ees, whereas the Company, relying upon the original
voting proposition in the election involving these three,
insisted that they had voted to be added to the existing
unit, thus negating any general impression that a separate
agreement was anticipated. It was because of this diff er-
ence of opinion and what was actually an error in
the certification language in ,, Case 7-RC-7995 that the
Company sought and obtained thru Case 7-AC-10 the
" Case 7-RC-7995
NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES
clarification noted above (supra) whereby the amended
certification placed the three individuals involved into
the overall bargaining unit.
Apart from the issue of separate. contracts, eventually
resolved, the Union made two proposals at the first
bargaining session , on September 28, which form the
basis for the instant dispute. Thus Union Representative
Maher stated that he was going to demand a "muliple
duties" clause in behalf of the three newly added employ-
ees. This clause, as submitted, read as follows:
Where operating errors occur while employees are
performing multiple duties, such errors shall be
considered in extenuation of the facts.
The stated reason for the need of such a clause, as
described by Maher first at the bargaining session and
thereafter at the hearing before me, was that these
employees were doing a job that required a high degree
of concentration and could not contend with too many
interruptions to their work. Accordingly, to the extent
that they were called upon to do other work,, their
accountability for any errors in their prime job as a
result should be tempered by an understanding on man-
agement 's part of the nature of the prime job and
appropriate allowance made.
At the same September 28 meeting Maher also pro-
posed the institution of a profit-sharing arrangement
for the three involved employees, and at the next meet-
ing, on October 19, reduced the proposal to writing.
The proposal read as follows:
PROPOSED WJRT RETIREMENT OR PROFIT
SHARING PLAN
The Company agrees to establish an appropriate
Retirement Benefit 'Plan or, as an alternative, a
Profit Sharing Plan to become effective as of the
effective date of this Agreement.
If the Company chooses to institute a Profit Sharing
Plan for the employees in the Traffic and Continuity
Departments of WJRT, the basis of the plan will
be a contribution by the Company amounting to
a proportionate allocation of 15% of the Gross
Profit before taxes; and contribution by the Compa-
ny to be allocated into individual accounts credited
to the employees. s
Upon the presentation of these items to it by the
Union the Company, 'through its vice president, Albert
J. Gillen, told Maher while it felt it had no obligation
to bargain the multiple duties clause which he had submit-
ted to the bargaining sessions they would be willing
to consider it. Thereafter, at the fourth bargaining ses-
sion , November 15, Gillen informed Maher that the
Company had considered the multiple duties clause sub-
mitted previously and that they "found it necessary
to reject this." In so doing, Gillen testified:
I told Mr. Maher that we rejected the multiple
duties clause for numerous reasons: one, the clause
itself we felt was impossible to administer, since
the decision would have to be made of what is
considered a multiple duty; and we had no one
wise enough to be able to decide for that, from
605
various duties of all-employees; to this matter of
employees' discipline rights, etc.; it had been cov-
ered in the contract; it already was covered in
the contract. We had a provision, a just cause
provision, for termination of the existing contract.
There was a grievance procedure which was avail-
able to the employees, that was written into the
contract, which procedure followed by an employ-
ee, if they took proper steps, could be carried
up to and through arbitration.
At the last of the five bargaining sessions, on November
28, Maher stated that he was still insisting on a multiple
duties clause.
At the third or fourth meeting , October 27 or Novem-
ber 15, Gillen announced that the Company had consid-
ered the profit-sharing plan and would reject it. Gillen
testified that he gave the following as the Company's
reasons;
And the reasons we were going to reject it were,
one: that the existing contract speaks for the issue
of prior bargaining of the very same item which
had been signed by both NABET and Goodwill;
and, therefore, consistent with the position that
the N.L.R.B. had directed in this case; that we
had no obligation, therefore, to bargain this subject
when it had already been bargained out of the,
existing agreement. Further, that fifteen percent
of the gross profit of the company, for three people,
on its merits, would not possibly stand up going
through the Internal Revenue Service. This was
based on discussing that particular issue with my
counsel. And those are the reasons we rejected
it.
Called by General Counsel as rebuttal witness the Com-
pany's vice president and treasurer, Robert Battersby,
testified with respect to the bargaining sessions, each
of which he attended and participated in. In describing
the Company's consideration of Maher's demands Bat-
tersby, corroborated Gillen's account, thus:
. . . The Company's position was that we weren't
sure that we had to consider them but we were
considering them and discussing them and were
going to give him an answer. And it would probably
be at the next meeting . At the following meeting,
we did discuss them further and told him that
we would reject them, based on the merits of
the proposal. What that amounted to was: number
one, we felt the multiple duties clause, as it was
proposed, would be impossible to administer and
we felt that what we were presently doing was
sufficient and was operating well and that is taking
into consideration all factors in relationship to dis-
charge.
TRIAL EXAMINER: You say you rejected these
on the merits?
THE WITNESS: Yes, sir.
TRIAL EXAMINER: All right; excuse me for inter-
rupting.,
THE WITNESS: We explained that we thought
that the contract adequately covered this, based
on the clause that said dismissal because of just
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause only; and the other articles in the contract
which covered such things as dismissal, grievance
and arbitration. On the profit sharing plan, we
explained that we had talked to our tax consultants
and they advised us that our chances of having
a plan such as proposed approved were practically
nil and that we further thought that proposing a
profit sharing plan for three out of seven employees
was not the correct thing to do, in relationship
to other employees. And we rejected it on that
basis.
Because, at the hearing, I was particularly concerned
with the extent of bargaining on the two disputes issued
I pursued the matter further, thus
TRIAL EXAMINER: Mr. Battersby, would you
repeat for me the reasons the company gave to
Mr. Maher when it rejected his proposal for the
profit sharing plan?
THE WITNESS: That we felt there was a serious
question as to the legality of the plan of the three
employees under the I.R.S. rules and secondly,
we felt that to have a profit sharing plan for only
three employees out of the total company, was
unrealistic.
TRIAL EXAMINER: What reason was given by
the company to Mr. Maher when you rejected
his proposal for a multiple duties clause?
THE WITNESS: The company's position was that
we felt the plan, as it was submitted, the multiple
duties clause, would be impossible to administer
and we felt that the present way of handling the
situation was better than what was being proposed;
and we felt that the articles and sections under
the agreement which covers discipline, dismissal,
grievance and arbitration, were much better than
what they were proposing.
TRIAL EXAMINER: Were any other reasons given
for rejecting either of those two proposals?
THE WITNESS: No, sir. I don't think that we
gave any other reasons.'
Up to and through the last of the five bargaining
sessions , ending on November 28, 1967, Maher stated
in behalf of the Union that he was still bargaining
for a multiple duties clause and a profit-sharing plan
for the three employees recently added to the bargaining
unit.
Contemporaneous with the bargaining described above
a number of events occurred which would bear upon
' As an apparent afterthought in answer to a series of questions
propound by counsel for the Company Battersby testified that at the
final negotiation session Gillen , in receiving the Company's reasons
for rejection of the Union's two proposals, stated that they had previously
expressed their and their lawyer's opinion that they did not have to
bargain in these areas but that "we had to discuss them and consider
them "
I do not accept this meaningless reply as contradiction of the weight
of testimony that both proposals were considered and rejected on
the merits
the issue at hand. Thus, as has already been demonstrat-
ed, after the Union had asked for a separate contract
for the three disputed employees, and anomoly in the
certification was detected wherein a separate bargaining
unit had erroneously been established for them. Immedi-
ately thereafter the Company sought and obtained, with
union agreement, an adjustment by way of Case 7-AC-10
whereby the three were added to the overall unit; thus
eliminating the Union's earlier basis for a separate con-
tract; a position from which it thereafter withdrew.'
Similarly during the course of the abortive bargaining
sessions it was the Union, according to Gillen, that
sought to arbitrate the merits of its demands for the
two disputed classes. Also, during the course of the
sessions, while there does not appear to be an actual
threat of a strike to enforce the Union's demands Maher
of the Union did state, in response to the Company's
inquiry, that the three employees had the right to strike
in support of their demands, the question of their cover-
age under the existing contract with its no-strike clause
still being an open one. Nor is it disputed that at this
juncture Maher also stated that as free Americans the
employees covered by the contract had the right to
cross or not cross a picket line as they saw fit.
Upon the conclusion of the meeting of November
28, 1967, the Union's demands for the two clauses
were still outstanding as was the Company's refusal
to agree to either of them. From that time until June
14, 1968, no bargaining meeting was held. Meanwhile
on December 7, 1967, a charge was filed by the Union
against the Company alleging an unlawful refusal to
bargain in violation of Section 8(a)(5) of the Act, and
thereafter on January 18, 1968 , during the pendency
of the Union's charge, the Company filed its charge
in the instant proceeding alleging the Union's refusal
to bargain in violation of Section 8(b)(3) of the Act.
The Regional Director dismissed the Union's charge
against the Company on June 14, 1968. Immediately
thereafter upon the Union's request a bargaining meeting
was held between the parties. By that time the Union
had dropped its request for the two disputed clauses.
As a result of the meeting agreement was reached with
respect to terms relating to the newly included three
employees and an operative supplemental contract cover-
ing them together with the other production and mainte-
nance employees presently in force.
B. The Contentions of the Parties
The Union makes a number of contentions in support
of its position that the instant complaint be dismissed.
Having established on the record that an agreement
had been reached during the pendency of this case,
on October 1, 1968, and that neither of the two clauses,
the multiple duties or profit sharing, had been included
" Also, it is to be noted that Vice President Gillen's testimony in
this area indicates that in the original representation hearing in case
7-RC-6184 it was the company that sought to exclude the employees
in the category it would thereafter petition to include in case 7-AC-10
NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES
in this agreement it contends that the issue is moot
and that the complaint should therefore be dismissed
Alternatively Respondent Union claims that both
clauses were mandatory subjects of bargaining and that
its insistence to the point of impasse was proper
Counsel for the General Counsel and for the Company
contend that the Company had no obligation to bargain
for a separate agreement covering the program traffic
employees for whom the Union had been currently
certified as bargaining representative and that the Union's
demand for such an agreement to the point of impasse
constituted an unlawful refusal to bargain Further the
production and maintenance agreement foreclosed man-
datory bargaining on the Union's demand for a multiple
duties clause and a profit-sharing clause, there having
been a waiver of such obligation implicit in the earlier
bargaining for and execution of production and mainte-
nance contract That is to say, the subjects had been
"bargained out" in the 1964 negotiations
C Analysis and Conclusions
Implicit in the allegation that Respondent Union has
sought to bargain for nonmandatory subjects beyond
the point of impasse is the theory that it has waived
its right to such continued bargaining as a consequence
of the bargaining on the subject that occurred prior
to the execution of the outstanding agreement This
allegation further implies that the waiver is "clear and
unmistakable " A series of complicating factors raises
serious doubt , however , that a waiver , clear or unclear,
could possibly have occurred
First to be considered in this area is the coverage
of the contract itself Executed in 1964 and admittedly
excluding the program traffic and continuity employees,
the very subject of this case , it obviously contained
no benefits or established working conditions which
would relate to them As if such a situation would
need proof I point to subsequent representation proceed-
ings" that were found necessary to place the three
employees in an adequate representation posture Any
bargaining initiated on behalf of such employees directed
to their wages and working conditions could hardly,
under such a condition, be considered waived by a
contract covering someone else Nor is it significant
that during the course of bargaining that the Union
may have intermittently sought a separate contract for
the three employees They were entitled to an agreement
of some sort in their behalf for that was the very
purpose of the two representation proceedings And
while it is true there appears to have been periodic
differences as to what form the agreement would take,
certainly neither the Company nor the General Counsel
is in any position to urge this as a flaw in bargaining
For one of the representation proceedings, Case
7-AC-10, was required to establish that the three were
not a separate unit , as originally certified , but actually
an acretion to the overall unit And previously, in the
original representation case it was the Company that
Cases 7-RC-7995 and 7-AC-10
607
insisted that the three employees be excluded from
the bargaining unit (supra, fn 8) So, if the Union
appears to have vacillated between a separate contract
and a supplement to the old one it had ample justification
in the confusion which permeated the official proceedings
from the very beginning From the foregoing, therefore,
it is clear that bargaining between the parties in behalf
of the three program traffic and continuity employees
was proper and that such demands as may have been
made for a separate contract were, to say the least,
excusable
Having concluded as I have that bargaining was prop-
er, indeed it was required, it remains to be determined
what would be the appropriate subjects for bargaining
In this regard General Counsel claims that the items
proposed by the Union's demand had actually been
"bargained out", that is to say, waived "' It would
seem from the very posture of the representation pro-
ceeding that such could not have been the case The
three employees were not even part of the unit when
the production and maintenance contract was executed
So, to conclude that bargaining subject matter had none-
theless been disposed of so far as they were concerned
would have made the representation proceedings so
much idle gesture On the contrary, certification of
the Union as their representative carries with it an
obligation to bargain in their behalf Such being the
case, the most logical subject of bargaining would be
the working conditions of the three employees involved
Thus when Union Representative Maher proposed a
multiple duties clause for these people he was proposing
machinery for the settlement of grievances," something
that was as essential a part of their terms and conditions
of employment as those varied subjects that are consist-
ently viewed as mandatory subjects In this area of
comparison I would suggest such items as the Christmas
bonus,12 merit increases,13 safety,'4 work rules," and
subcontracting," to mention but a few
Similarly, it cannot be denied that the establishment
of a profit-sharing plan is a mandatory subject for bar-
gaining "This counsel for the General Counsel concedes
as a general proposition but, "in the circumstance of
this case, ' insists it is not a mandatory subject The
circumstances he refers to is the structure of the plan
as it developed over the previous several years during
which time ownership of the Company was transferred
(supra), financial arrangements made to accommodate
the newly established structure, and a trust agreement
"' It is well established principle that following the execution of an
agreement between the parties there is no obligation to bargain thereafter
during the term of the agreement upon a specific mandatory subject
of bargaining if the statutory right to bargain on this matter has been
clearly unmistakably and unambiguousl> waived Honolulu Star Bulle
tin Inc 153 NLRB 763
Bethlehem Steel Company 136 NLRB 1500 1502
z New Orleans Board of Trade Ltd 152 NLRB 1258
The Item Compan> 108 NLRB 1634 enfd 220 F 2d 956 (C A 5)
" Gulf PowerCompany 156 NLRB 622
Southland Paint Co 157 NLRB 795
Peerless Distributing Co 144 NLRB 1510
The Kroger Co 164 NLRB 362
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instituted to compensate individuals employed at the
time of the corporate sale. All of these factors, it is
claimed, were factors that were discussed at the time
the overall contract was executed in 1964 and were
determinants in the wage structure and trust arrange-
ments agreed upon then. This, it is contended, constituted
a resolution of the profit-sharing issue and it would
therefore be deemed to have been "bargained out"
or "waived" insofar as further bargaining on the subject
was concerned.
Two obstacles to this theory immediately emerge:
(1) the three employees for whom Maher's demand
was made were never included in or contemplated by
the overall contract, and (2) flowing from this fact and
the complete aura of confusion that surrounds the inter-
pretation of the profit-sharing plan and the substitute
arrangements set forth in the record there most certainly
has been no clear, unmistakable, or unambiguous deter-
mination' to waive further bargaining with respect to
a profit-sharing plan, particularly as it would apply to
a group of employees whose presence in the 1964 bargain-
ing was not only not contemplated, but who were actually
excluded from its coverage.
Upon the foregoing, therefore, I would conclude and
find that the Union's demand for a multiple duties clause
and a profit-sharing clause, both as previously set forth
(supra,) constituted a proper exercise of its right to
bargain on mandatory bargaining subjects to the point
of impasse. Such being the case I find nothing in the
Union's conduct that would constitute an unlawful refus-
al to bargain within the meaning of Section 8(b)(3).
In any event I am not persuaded that the complaint
of the Company was well founded. When the two clauses
were presented by Maher at the bargaining sessions
the Company actually met the issue and discussed each
on its merits over several meetings, giving specific rea-
sons why they could not agree to the inclusion of
the clauses in the contract. The Company, after such
participation, can hardly then be heard to complain
that the subjects should not have been raised in the
first place. For this further reason I would conclude
and find that the Union has not violated Section 8(b)(5)
of the Act.'"
Alternatively, I am persuaded that the Union's conduct
alleged to be violative of the Act was actually moot
at the time of the hearing before me. Assuming for
present purposes that the Union's pursuit of its claim
for the two clauses was unlawful it has nonetheless
receded from its position and has executed a collective
agreement which does not include the clauses originally
demanded. So, were an order issued in this matter
it would be to cease and desist from doing what had
been irretrievably abandoned a year before the hearing.
In the circumstances, and upon consideration of the
otherwise harmonious relationship that at all times
appears to have existed between the parties, no useful
purpose would be served in the effectuation of the
Act by requiring that an order be issued against the
Union."'
RECOMMENDATION
It is recommended that the complaint in this matter
be dismissed in its entirety.
'" Cf N L R B v Black-Clawson Co , 21O F 2d 523 (C A 6), General
Electric Company, 163 NLRB 198, 213
"' General Electric Co , 167 NLRB 865, Puerto Rican American Sugar
Refinery Inc , 136 NLRB 428, 431, Kentile , Inc , 145 NLRB 135, 137
See also Sohio Chemical Company, Acrylonitnle Plant, 141 NLRB
810,818-819