National Association of Broadcast Employees

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