Mayes Bros., Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1963

145 N.L.R.B. 181 (N.L.R.B. 1963)

MAYES BROS., INCORPORATED 181
Mayes Bros., Incorporated and International Chemical Workers
Union, AFL-CIO. Case No. 33-CA-1534. November 21, 1963
DECISION AND ORDER
On August 16, 1963, Trial Examiner Wellington A. Gillis issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
[The Board dismissed the (complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on November 27, 1962, and January
2, 1963, respectively , by International Chemical Workers Union , AFL-CIO, herein-
after referred to as the Union , the General Counsel for the National Labor Relations
Board, hereinafter referred to as the Board , issued a complaint on January 4, 1963,
against Mayes Bros., Incorporated , hereinafter referred to as the Respondent or the
Company, alleging that the Respondent, since on or about June 7, 1962, has refused
to bargain in good faith with the Union in violation of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Relations Act, as amended (61
Stat. 136), hereinafter referred to as the Act . The Respondent thereafter filed a
timely answer to the complaint denying the commission of any unfair labor practices.
Thereafter , pursuant to notice , a hearing was held in Houston , Texas, before Trial
Examiner Wellington A. Gillis, at which all parties were represented by counsel and
were afforded full opportunity to be heard, to examine and cross -examine witnesses,
to introduce evidence pertinent to the issues, and to engage in argument . Timely
briefs were subsequently filed by the General Counsel and the Respondent.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Texas corporation maintaining its principal place of business
in Houston , Texas, is engaged in providing pipe coating and wrapping services.
During the 12-month period immediately preceding the issuance of the complaint
the Respondent provided goods and services valued in excess of $50,000 to customers
located outside the State of Texas, and, during the same period, made direct purchases
of goods valued in excess of $50,000 from concerns located outside the State of
Texas, which goods were shipped from points outside the State of Texas to Re-
145 NLRB No. 17.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent 's Houston , Texas, operations . The parties agree, and I find, that the
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issue
Whether, at specific times during contract negotiations, the Respondent insisted,
as a condition precedent to signing a contract, that the contract contain provisions
the effect of which would be to remove from the grievance machinery, as distin-
guished from arbitration procedure, matters relating to discipline and discharge.
Facts
On February 7, 1962,1 after a hearing and an election, the Regional Director for
the Twenty-third Region certified the Union as the collective-bargaining representa-
tive for the Respondent's production and maintenance employees. Thereafter, pur-
suant to the request of the Union on March 26, the Union and the Respondent
engaged in bargaining negotiations in an attempt to enter into a contract covering
the employees involved, such negotiations consisting of 12 meetings commencing
on April 6 and terminating on November 21 .2
By way of background to the issue involved, it appears that at the initial bargain-
ing session held on April 6, the Union presented the company representatives with
a proposed contract containing, inter alia, separate grievance and arbitration provi-
sions, which, taken together, comprised a demand for unlimited arbitration. On
April 16, when the parties again met, the Company tendered its written contract as
a counterproposal, which contained, inter alia, a management clause and a grievance
procedure clause,3 the combined effect of which, as hereinafter discussed, restricted
arbitration to matters other than discipline and discharge. Thereafter, based upon
a comparative study of each proposed contract and the "give and take" procedure
which customarily accompanies good-faith bargaining, during which both the Union
and the Company made substantial concessions, the parties tentatively adopted cer-
tain portions of each and, upon entering into the eighth bargaining session on June 7,
with the exception of four specific areas,4 apparent agreement had been reached on
all terms of a contract, including the Company's article XVI, the first two provisions
of which read as follows:
Section 1. It is the mutual intent and desire of the Union and the Company
that employees make an effort to settle their problems or grievances with their
supervisor prior to resorting to the grievance procedure.
Section 2. Should any difference arise between the Company and the Union
or the Company and any employee or group of employees as to the meaning,
application, or interpretation of any provision or provisions of this agreement,
such difference shall constitute a grievance.
The major area of dispute, and the one with which this proceeding is principally con-
cerned, involves the insistence by the Company of retaining in the management clause
the following italicized language: "Included within such rights, powers, and priv-
ileges, but without limiting the generality of the foregoing, are . . the right to dis-
cipline and/or discharge any employee or employees for cause determined to be
i Unless otherwise specified, all dates refer to the year 1962.
Thus, the parties met on April 6, 16, 19, and 25; May 2, 10, and 23; June 7, August 27;
September 4; and November 9 and 21. Throughout these negotiations, Donald L Jones,
attorney and International representative, was the chief negotiator for the Union, and
Carlton Wilde, attorney, and H. Boyd Mayes, president of the Company, represented the
Respondent.
8 Under article XVI, entitled "Grievance Procedure," of the Company's proposal, which
provided for both grievance and arbitration procedures, sections 1 to 4 were devoted to
grievance machinery and sections 5 to 8 were confined to arbitration procedures.
' The four areas upon which the parties were at odds on June 7 were the Union's desire
for, and the Company's refusal to grant, unlimited arbitration, a weekly or biweekly pay-
day, a checkoff , and a 10-cent per hour wage increase.
MAYES BROS., INCORPORATED 183
just by the Company." [Emphasis supplied.] s Accordingly, at the June 7 session,
the Respondent in writing made the following proposal:
In exchange for the union's agreement to accept the company's management
clause restricting arbitration and to accept the company's wage increase of 6¢
per hour and to eliminate its check-off demand, the company agrees to accept
the union's demand that pay day fall on Friday, and agrees to pay its employees
every other Friday. Appropriate terminology will be worked out between the
parties to effect this agreement. [Emphasis supplied.]
The Union, although apparently willing to accept the rest of the management clause,
objected to, and requested the deletion of, the language, "the right to discipline
and/or discharge any employee or employees for cause determined to be just by the
Company."
Subsequently, at the bargaining session held on September 4 under the auspices
of the Federal Mediation and Conciliation Service, the Union agreed to eliminate
from its demands the checkoff, to accept the Company's 6-cent per hour wage increase,
to accept the Company's earlier concession to pay employees every other Friday, and
to accept the Company's management clause, all contingent upon the Company's
agreeing to eliminate that relevant portion of the clause containing the words "deter-
mined to be just by the Company." The Company then announced that it would
agree to the Union's propsal, including the deletion of the above disputed language
in the management clause, if the Union would agree to adding a section 10 to
article XVI to read, "The discharge and discipline of employees shall not be subject
to the Grievance Procedure." 6 After further discussion, during which the union
representatives let it be known that the International Union would not condone the
inclusion of such a provision, and further indicated that the membership, although
not particularly concerned about the phraseology of the management clause, felt
that certain inequities existed within the plant with which Mayes was not acquainted,
the Company proposed that another section be added to article XVI which would
read as follows:
Mr. Mayes agrees to meet with the union committee at least once each pay
period at the request of the union committee to discuss employees problems.
At this point, the union representatives stated that, as they were not in a position
to accept or reject the Company's offers, they would have to present them to the
union membership. Whether or not such action was taken is not reflected by the
record. In any event, 3 days later, on September 7, an unfair labor practice charge
alleging a refusal to bargain (Case No. 23-CA-1487) was filed against the Company
by the Union.
5The management clause, from which this has been extracted, reads in full as follows'
Management Clause
The Company retains and shall continue to exercise any and all rights, powers, and
privileges which it had prior to the execution of this agreement except only as such
rights, powers, and privileges are clearly and expressly relinquished in this agreement.
Included within such rights, powers, and privileges, but without limiting the gener-
ality of the foregoing, are the rights to determine the size of the working force and
the number of employees required temporarily or permanently in any job classifica-
tion or department ; the right to employ any person or persons whom the Company
desires to employ ; the right to discipline and/or discharge any employee or employees
for cause determined to be just by the Company ; the right to determine the work to
be done by any job classification and to add additional job classifications ; the right
to determine and alter the means and methods of performing the work and to adopt
a new and/or different procedure, machinery, and equipment; and the right to
operate the business in any manner that the Company may deem to be most efficient
or expedient.
" This language is extracted from Respondent's Exhibit No 2, a statement of position
dated October 1, tendered the Board in connection with the latter's investigation of unfair
labor practice charges filed against the Respondent on September 7 and subsequently with-
drawn on October 24 By letter to the Board, dated December 27, written in connection
with the present unfair labor practice charges, the Company clarified the earlier state-
ment of position by stating that the proposed section 10 offer made at the September 4
bargaining session was as follows: "The discharge and discipline of employees shall not
be subject to Sections 5, 6, 7 or 8 of the Grievance Procedure."
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated September 10, Union Representative Jones wrote the Company
proposing the following:
The Union proposes signing the contract as proposed at our last bargaining
session held on September 4, 1962 at the offices of the Federal Mediation and
Conciliation in Houston , Texas with the express stipulation that the present
management rights clause be subject to the outcome of the charges now on file
with the National Labor Relations Board concerning said clause.
If in the opinion of the Trial Examiner , the Company' s insistence on the dis-
puted wording in said clause , is an unfair labor practice within the meaning of
the N.L.R.A., then the Company will consent to the revision of said clause as
previously discussed in the bargaining sessions , i.e. the deletion of the words
"determined to be just by the Company." If the ruling of the Trial Examiner
is in favor of the Company then the Union will accept the said clause as now
worded.
In the alternative the Union proposes that we subject our disagreement con-
cerning said clause to arbitration , both sides agreeing to accept the arbitrator's
decision as final and binding.
By letter dated September 12, Wilde, on behalf of the Company, replied that
neither proposal was acceptable , indicating that the signing of a contract should
await an adjudication of the unfair labor practice charges.
On October 24, the unfair labor practice charges in Case No. 23-CA-1487 were
withdrawn and thereafter, pursuant to the Union's request that bargaining be re-
sumed, the parties again met on November 9. At this meeting the Union asked the
Company to reconsider its prior refusal to delete the words "determined to be just
by the Company" in the management clause, to which the Company responded by
reiterating its earlier stand taken on September 4 that it would do so only if the
Union would agree to adding to article XVI a provision to the effect that matters of
discharge and discipline shall not be subject to the arbitration procedures After a
further discussion , during which the Company again offered to include a provision re-
quiring Mayes to meet with the union committee at least once each pay period to
discuss employment matters, the Union asked whether the Company would be willing
to eliminate the previously agreed-upon no strike no lockout clause from the contract
if the Union would agree to the management clause as proposed , and further re-
quested that the Company review the whole of the pending contract in an effort to
break the deadlock. The Company agreed to the Union's request , including the
possibility of deleting the no strike no lockout clause.
Subsequently the parties met for the last time on November 21, at which time
the Company tendered to the Union a letter , with attachments , containing its pro-
posals for breaking the deadlock. Those proposals included a substitute manage-
ment clause , which appears to be no more broad than the one previously under dis-
cussion, and a substitute grievance procedure clause, which, taken together, made
discipline matters , other than discharge , subject to arbitration machinery, a partial
but substantial concession on the part of the Company.? The Company's offer as
to these proposals was made contingent upon the Union's accepting three other clauses,
namely, substitute seniority and duration clauses and an additional wage rate clause
After conferring among themselves , the union representatives informed the Com-
pany that its latest proposals were not acceptable. On this note, bargaining necota-
tions between the parties ceased and , a few days later on November 27, the Union
filed the instant unfair labor practice charge.
7In pertinent part , the new management clause read as follows:
Except as specifically limited by a specific provision of this agreement , the com-
pany shall continue to have exclusive right to take any action it deems appropriate
in the management of the plant and direction of the work force in accordance with
its judgement [sic] All rights heretofore enjoyed , and all inherent and common law
management functions and prerogatives which the company has not expressly modified
or restricted by a specific provision of this agreement are retained and vested ex-
clusively in the company and are not subject to arbitration under this agreement
The company specifically reserves the exclusive right in accordance with its judge-
ment [sic] to reprimand, suspend, discharge, or otherwise discipline employees for
cause . .
The new grievance procedure clause provided in part that "the company agrees to arbitrate
disciplinary actions other than discharges which result from manifestly arbitrary exercise
of the company ' s managerial judgement [ sic] in fixing the extent of the penalty , in which
case the arbitrator may make appropriate modifications of the penalty "
MAYES BROS., INCORPORATED 185
Analysis and Conclusions
The complaint alleges that on or about certain specified dates, namely, June 7,
August 27 , September 4, and November 9 and 21, the Respondent refused to bargain
in good faith by insisting , as a condition precedent to signing any agreement, that the
Union forfeit its statutory duty to represent Respondent 's employees as to discipline
and discharge . In support thereof, the principal contention of the General Counsel
is that, throughout the bargaining negotiations , the Respondent insisted upon contract
provisions which would have the effect of removing matters relating to discipline and
discharge from contractual grievance machinery . The Respondent , in denying the
allegations , contends that at no time did the Respondent take this position, but rather,
that, until November 21, the Respondent insisted that matters relating to discipline
and discharge be withdrawn from arbitration procedures only, and, after Novem-
ber 21 , when the Respondent relented by agreeing to permit discipline matters to go
to arbitration , the Respondent insisted that only discharge matters be withheld from
arbitration procedures.8
Based upon the documentary evidence , as well as the testimony of both Jones
and Wilde, there is little question but that, from the June 7 bargaining session through
the last meeting of the parties on November 21 , the crucial stumbling block to an
agreement on a contract was the Union 's adamant position that matters of discipline
and discharge be submitted to an outside third party for decision ( unlimited arbitra-
tion ), and, until its November 21 offer, the Company 's equally adamant insistence
that final authority over such matters be reserved by the Company ( arbitration lim-
ited to matters other than discipline and discharge ). I am further persuaded that
the precise point raised by the General Counsel on behalf of the Charging Union
in this proceeding , and the one upon which the General Counsel 's case must rise or
fall, was not specifically raised after the April 16 session , certainly not pursued, by
either party during the course of the bargaining negotiations.9
As articulated in the Respondent 's October 1 statement of position ( relied upon by
counsel for the General Counsel in his brief ), at the second bargaining session held
on April 16 , the Company, in offering a "counter proposal to the union 's demand for
unlimited arbitration ," defined a grievance as any difference arising between the
Company and the Union or the Company and any employee or group of employees
"as to the meaning, application , or interpretation of any provision or provisions of
this agreement ," and made it known that such "differences . may be resolved
by the grievance procedure or submitted to arbitration," but that "there are
some matters which are withdrawn from the arbitration provisions by the manage-
ment clause , principally discharge and discipline of employees for cause ." [Emphasis
supplied.] Thus, assuming , as I do, that discipline and discharge actions would con-
stitute grievances within the meaning of the definition , which definition , appearing
as section 2 of article XVI, was subsequently adopted by both parties , 1° it would
8 The record discloses , and I find, that , at all times commencing with the Union ' s initial
request for bargaining on March 26 , the Company willingly met with representatives of
the Union , that both parties submitted their own proposed contracts , openly discussed and
agreed upon various provisions contained in each, made concessions on some points and
receded from earlier positions each had taken , and right up to the last bargaining session
on November 21, when the Company offered new proposals relating to the area still in
dispute, the Company was earnestly attempting to reach agreement on a contract satis-
factory to both parties . Thus, the issue presented is narrow in its concept , as framed by
the pleadings , and does not pose the bad-faith question frequently found in refusal-to-
bargain cases
9 Testimony by Jones indicates that , in discussing discipline and discharge , the com-
pany representatives did not distinguish between grievance machinery and arbitration
machinery , and that reference was always in terms of grievance procedure . Wilde, in
testifying , stated that the inclusion of the disputed language in the management clause
would place matters of discharge and discipline outside the arbitration procedure , but, in
answer to the General Counsel's question of whether , during the June 7 discussions, he
and Jones absolutely distinguished between arbitration procedure on one hand and griev-
ance procedure on the other, Wilde testified that it was clear in his mind, but that he did
not know whether it was clear in Jones' mind.
151 find without merit the General Counsel 's argument that ( 1) the above definition of
grievances is restricted , and, as such, would have the effect of denying Section 7 rights to
employees , and (2 ) by insisting upon such a definition , the Company engaged in bad-faith
bargaining First, although the provision defining a grievance was initially proposed by
the Respondent , there is no evidence that the Company insisted upon its inclusion or that
the Union, in susbequently agreeing upon its adoption , did so other than voluntarily. As
to the "restricted" argument advanced bl the General [Counsel, which , as I understand it,
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear that at this early stage of bargaining the Company was offering to permit
discipline and discharge grievances, like any other grievances, to be subject to the
grievance procedure, but that, unlike other types of grievances, it was refusing to
permit discipline and discharge actions to go to arbitration.
Thereafter, assuming a lack of any further articulation on this point by either
party during contract discussions, and notwithstanding what I consider, under the
circumstances, to have been an inadvertent error on the part of the Company in its
statement of position of October 1 in referring to the "Grievance Procedure" rather
than to the arbitration provisions of the "Grievance Procedure" with respect to its
September 4 offer, documents addressed to the Union by the Company consistently
referred to arbitration procedures, and not to grievance procedures, as might otherwise
be expected in view of the fact that the article was entitled "Grievance Procedure." 11
Thus, in its written compromise proposal of June 7, the Company referred to the
management clause as restricting arbitration, with no mention made of the grievance
procedure. Again, in the Company's letter of November 21 to the Union, the
terminology of which appears to have subsequently been agreed upon by Representa-
tive Jones, the Company stated, "It is apparent that you consider unpalatable the
company's insistence that matters of discipline and discharge be withdrawn from
arbitration procedures." [Emphasis supplied.] According to Wilde's unrefuted testi-
mony, Jones, in discussing the substance with him, told Wilde that "We are not
quarreling with the entire proposed management clause but only that portion which
deletes matters of discipline and discharge from your arbitration procedure."
There is no evidence in the record indicating that, at any time after the Union
agreed on May 2 to a single contract provision (article XVI) containing both
grievance and arbitration machinery, when it found itself unable to dislodge the
Company from its insistence upon withholding discipline and discharge from arbitra-
tion procedures under the management clause, the Union asked the Company whether
it would permit such matters to proceed through the grievance procedures of article
XVI or that the Company refused to agree to do so. Accordingly, there is no evidence
that at any time the company representatives insisted that discipline and discharge
be withheld specifically from the grievance machinery (as distinguished from arbitra-
tion machinery). Even assuming, arguendo, that there could be a question of contract
interpretation as to whether the language of the management clause, when applied to
the agreed-upon sections 1 and 2 of article XVI, permitted discipline and discharge
matters to be subject to the grievance steps (as distinguished from the arbitration
steps) of article XVI, it seems strange indeed and inconsistent with normal bargaining
maneuvers, that, had the Company taken the position here attributed to it, the Union
did not, during the course of its bargaining demands, request the company rep-
resentatives to draw the distinction between grievance and arbitration in the applica-
tion of the management clause.
In any event, and recognizing that there may well have been some confusion or
misunderstanding between the parties on this point, caused perhaps by the fact
that article XVI, entitled "Grievance Procedure," contained both grievance and
arbitration provisions, I credit Wilde's testimony to the effect that the Company was
willing throughout the entire negotiations to permit discipline and discharge to be a
part of the grievance procedure.12
is premised upon the proposition that, even apart from the impact of the management
clause, employees would not be permitted to file grievances involving disciplinary actions,
in accordance with the Respondent's assertion, I do not so construe the definition agreed
upon by the parties. Nor, in view of the fact that the Union agreed to it early in the
negotiations without objection, would it appear that the Union so construed the language.
Thus, hypothetically, a disagreement between an employee and the company as to the
justification of the latter's imposition of disciplinary action would, in my opinion, fall
within the ambit of "any difference . . . as to the meaning, application, or interpretation
of any provision . , of this agreement," and, as such, would qualify as a grievance
under the contract definition.
11 A perusal of the October 1 statement of position reflects that, in addition to the above
reference, the Company, in stating its position, indicated at one point that "Unquestion-
ably, the company has the right to maintain, as a counterproposal to the union's demand
for unlimited arbitration, that certain prerogatives be withdrawn from arbitration . .11
[Emphasis supplied.] Under these circumstances, I find, notwithstanding the Company's
broad reference to "Grievance Procedure" in outlining its position on October 1, that the
Company was in fact referring only to the arbitration machinery in article XVI. and that,
at the time that the Company made the offer to substitute the new clause at the September 4
bargaining session, the union representatives were, or should have been, aware of this fact
12 The one portion of testimony throughout the entire record which, on its face perhaps,
would tend to question Wilde's testimony on this matter is that of Jones, who, at one
MAYES BROS., INCORPORATED 187
On the record as a whole, I find that the impasse in bargaining which occurred on
September 4, and finally on November 21, was predicated upon the failure of the
parties to agree upon unlimited arbitration as to matters relating to discharge , and that,
at no time during the course of bargaining negotiations between the parties did the
Company insist upon removing from grievance procedures ( as distinguished from
arbitration procedures ) matters of discipline and discharge.13 Accordingly, I find
that the General Counsel has failed to prove by a preponderance of the evidence the
allegations of the complaint,14 and specifically that the Respondent refused to bargain
in good faith by insisting, as a condition precedent to signing an agreement , that the
Union forfeit its statutory duty to represent Respondent 's employees as to discipline
and discharge.15
Upon the basis of the foregoing findings of fact , and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Mayes Bros., Incorporated , is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Chemical Workers Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor practices as alleged in the
complaint.16
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety.
point , testified as follows with respect to a discussion had on November 21 when the
Company , although adhering to Its stand that discharge matters be withheld from arbi-
tration, receded from its prior position by proposing that discipline matters be subject to
arbitration : "It first started when Mr Wilde and Mr. Mayes both made the same argu-
ment they made all the way through it, they did not intend to have the authority they
had before placed in the hands of anyone else; they said there would be mass confusion
with everyone running and filing grievances every time they wanted to have a layoff. So
they had to reserve that right." Because of the context in which this occurred, and
based upon other evidence already alluded to, I am of the opinion , and so find, that the
emphasis here, as it had been throughout the negotiations , was on the Company's in-
sistence that it reserve to itself the right to have final authority over discharge or layoffs,
and was Intended only as a reiteration of its position as to the limitation of arbitration
procedures.
18 Having made this factual finding , I deem it unnecessary to pass upon certain legal
Issues posed by the 'General Counsel in his brief concerning the "right to grieve" and the
waiver of Section 7 rights by a bargaining representative
14 As of September 4, although most of the contract provisions had been tentatively
agreed upon , the parties were still in the process of exchanging proposals In an effort to
resolve the major barrier to a complete agreement , namely, unlimited arbitration There
had been no change in the status of contract negotiations when, by letter of September 10,
the Union proposed that the Company sign the contract "as proposed at our latest bargain-
ing session on September 4, 1962 . . . " Under these circumstances , I find without merit
the complaint allegation charging the Respondent with a refusal to bargain based upon its
refusal to execute a written contract on September 12.
Similarly , I find no merit to the allegation that on or about November 21, the Respond-
ent receded from formerly agreed-upon provisions of the proposed contract as to seniority
and duration of contract . At this, the final bargaining session, contrasted with the
Union ' s failure to come forward with any new proposals for breaking the deadlock, the
Company submitted for the Union ' s consideration a set of new proposals . The Com-
pany's offer to make a substantial concession with respect to permitting arbitration of
discipline matters was made contingent upon the Union 's agreement to accept changes
in the tentatively agreed-upon seniority and duration clauses Regardless of the economic
Impact placed upon these suggested changes 'by the parties , respectively , the fact remains
that they were mere proposals submitted as an alternative to the tentatively agreed upon
provisions , and, as such , do not warrant a finding that the Respondent had abdicated its
earlier agreement to accept the other provisions
15 See N L.R B. v. United Clay Mines Corporation, 219 F. 2d 120 (C.A. 6 ) , see also
N L.R B v. American National Insurance Co., 343 U 'S. 395.
16 During the course of the hearing I reserved ruling on Respondent 's motion to dismiss
specific allegations of the complaint Consistent with my finding and conclusion that no
unfair labor practices were committed by the Respondent , such motion is hereby granted.