Princeton Holiday Inn

National Labor Relations Board - Board Decisions

Oct 27, 1986

282 N.L.R.B. 30 (N.L.R.B. 1986)

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Hugh Mercer Corp ., d/b/a Princeton Holi-
day Inn and United Food and Commercial
Workers Union , Local 278, AFL-CIO-CLC.
Case 9-CA-22725
27 October 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 23 June 1986 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent and the General Counsel each filed ex-
ceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel,
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, as modified, and to modify the recom-
mended Order2 as set forth in full below.
1 The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products , 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We are also satisfied that the Respondent's contention that the decision
issued by the judge was the result of bias is without merit. Having care-
fully and fully considered the record and the judge's decision , we find no
evidence that he prejudged the case, made prejudicial rulings, or demon-
strated bias against the Respondent in his analysis or discussion of the
evidence.
The Respondent has excepted to certain factual errors made by the
judge We agree with the Respondent in the following respects. Thus,
the judge incorrectly found that the parties agreed on 18 December 1985
that the Union would write up the final contract that the parties had
agreed to. The correct date was 20 December 1985. The judge also found
that it was Union Representative Gene Moser who prepared "what was
the equivalent of a complete contract, precisely stating all that had been
agreed upon and including the items still in dispute when the parties
broke off [negotiations] in September " Although the evidence demon-
strates, as found by the judge, that Moser had this document in his pos-
session and proffered it to the Respondent at the 18 December 1985 bar-
gaining session, the record does not affirmatively establish who, in fact,
prepared the referred -to document . Also, although the date is correctly
stated elsewhere in the decision , the judge, in sec III, par. 3 of his deci-
sion, incorrectly refers to the date of the Respondent attorney's letter to
the Union wherein the Respondent withdrew recognition ' from the Union
as 26 December 1985 The correct date of this letter is 28 December
1985 Further , we note that the judge incorrectly spelled the Respondent
attorney's name as Morhouse The correct spelling is Morhous Finally,
both the Respondent and the General Counsel except to the judge's de-
scription of the appropriate unit. The unit, as found by the judge, inad-
vertently failed to include the Respondent 's front desk employees and
night auditors within the unit . Thus, we shall modify the unit description
accordingly. We find these errors are insufficient to affect the result
herein
2 The General Counsel excepts to the failure of the judge to include a
description of the appropriate bargaining unit in his recommended Order
and notice We find merit in these exceptions and shall modify the rec-
ommended Order accordingly.
No exceptions were taken to the judge's recommended Order to the
extent that it includes a visitatorial clause authorizing the Board , for com-
pliance purposes , to obtain discovery from the Respondent under the
Federal Rules of Civil Procedure under the supervision of the United
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, General Hugh Mercer Corp., d/b/a
Princeton Holiday Inn, Princeton, West Virginia,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Food and
Commercial Workers Union, Local 278, AFL-
CIO-CLC as the exclusive bargaining representa-
tive of all employees in the following unit concern-
ing wages, hours, and other terms and conditions
of employment:
All full-time and regular part-time employees,
including maids, utility employees, laundry
employees, maintenance employees, front desk
employees and night auditors employed by Re-
spondent at its motel facility located at Prince-
ton, West Virginia, but excluding all restaurant
employees, managerial employees, confidential
employees and all professional employees,
guards and supervisors as defined in the Act.
(b) Refusing to execute the collective-bargaining
agreement agreed on with the Union in December
1985 and refusing to give effect to the terms and
conditions of that agreement.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request of the Union, bargain collectively
with the Union in good faith regarding rates of
pay, hours of employment, and other terms and
conditions of employment for all employees in the
appropriate unit.
(b) Execute forthwith the collective-bargaining
agreement with the Union which was agreed on in
December 1985 and which Respondent refused to
sign at that time.
States court of appeals enforcing this Order However, under the circum-
stances of this case, we find it unnecessary to include such a clause. We
shall therefore modify the judge's recommended Order to delete this pro-
vision from the Order
We also note that the judge provided a broad cease-and-desist order
requiring the Respondent to cease and desist from violating the Act "in
any other manner." However, a broad cease -and-desist order is warrant-
ed only when it is shown that a respondent has a proclivity to violate the
Act or has engaged in such egregious or widespread misconduct as to
demonstrate a general disregard for employees fundamental statutory
rights We do not find that the broad injunctive language is warranted in
this case. Accordingly, we shall substitute the narrow cease-and-desist
language, requiring the Respondent to cease and desist from violating the
Act "in any like or related manner" for the provision recommended by
the judge. See Hickmott Foods, 242 NLRB 1357 (1979)
282 NLRB No. 4
PRINCETON HOLIDAY INN 31
(c) Make whole its employees, for their loss ; of
wages and other benefits, which are provided for
in that agreement, for the period on and after De-
cember 1985, with interest.
(d) Post at its place of business in Princeton,
West Virginia, copies of the attached notice
marked "Appendix."3 Copies of the notice, on
forms provided by. the Regional Director for
Region 9, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
effect,. to . the terms and conditions of that agree-
ment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively with
United Food and Commercial Workers Union,
Local 278, AFL-CIO-CLC in good faith regard-
ing rates of pay, hours of employment, and other
terms and conditions of employment for all em-
ployees in the appropriate unit.
WE WILL execute forthwith the collective-bar-
gaining agreement with the Union, which was
agreed on in December 1985, and which we re-
fused to sign at that time.
WE WILL make whole our employees for their
loss of wages or other benefits, which are provided
for in that agreement, for the period on and after
December 1985, with interest.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order , of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
collectively with respect to wages, hours, and
other terms and conditions of employment with
United Food and Commercial Workers Union,
Local 278, AFL-CIO-CLC, as the exclusive bar-
gaining representative of the employees in the fol-
lowing described unit:
All full-time and regular part-time employees,
including maids, utility employees, laundry
employees, maintenance employees, front desk
employees and night auditors employed by Re-
spondent at its motel facility located at Prince-
ton, West Virginia, but excluding all restaurant
employees, managerial employees, confidential
employees and all professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT refuse to execute the collective-
bargaining agreement ' agreed- on with the Union in
December 1985, and WE WILL NOT refuse to give
GENERAL HUGH MERCER CORP.,
D/B/A PRINCETON HOLIDAY INN
Deborah R. Grayson, Esq., for the General Counsel. '
Lawrence E. Morhouse, Esq., of Bluefield, West Virginia,
for the Respondent.
DECISION'
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held at Princeton, West Vir-
ginia, on 9 April 1986 on complaint of the General
Counsel against General Hugh Mercer Corp., d/b/a
Princeton Holiday Inn (the Respondent or the Compa-
ny). The complaint issued on 11 February 1986, on a
charge filed on 6 January 1986, by United Food and
Commercial Workers Union, Local 278, AFL--CIO-
CLC (Charging Party or the Union). The issue presented
is whether the Respondent violated Section 8(a)(5) of the
Act, refusing to, bargain with the Union as the statute
commands. Briefs were filed by both parties.
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a West Virginia corporation, is en-
gaged in the operation of a motel in Princeton, West
Virginia. During the 12-month period preceding issuance
of the complaint, in the course of its business it received
gross revenues in excess of $500,000. During the same
period it purchased and received at that location prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from out-of-state sources. I find that the Respond-
ent is an employer within the meaning of the Act.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
I find that United Food and Commercial Workers
Union , Local 278, AFL-CIO-CLC is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On 31 December 1984, following a regularly conduct-
ed National Labor Relations Board election, the Union
was certified as exclusive bargaining agent of the Re-
spondent's employees in an appropriate bargaining unit.
After a number of fruitless bargaining sessions between
the parties, the Union called a strike; some employees
struck and some remained on the job. Further bargaining
sessions then took place and, on 19 December 1985, a
number of the employees-the nonstrikers-signed a
statement rejecting the Union as their bargaining agent.
On 26 December 1985 they gave the Board's Regional
Office a decertification petition. Aware of these activities
when they occurred, on 28 December 1985, the Re-
spondent's attorney, Lawrence Morhouse, wrote a letter
to the Union. Morhouse had been present at all the many
negotiation meetings that had taken place, bargaining
with the union agents as the Company's spokesman. In
his letter the lawyer told the Union that the Company
had received the decertification petition. Because the
parties had arranged, on 18 December, that the Union's
business agent would write up the final contract that the
parties had fully agreed on on 18 December 1985, the
lawyer's letter included the following statement:
I have not received the proposed contract language
which you told me had been mailed. However, if
and when such material is received, it is my intent
to defer consideration of same until the pending pe-
tition can be acted upon by the Regional Office.
A few days later the Respondent did receive the final
draft of a complete collective-bargaining agreement,
which had been mailed earlier, but it refused to sign it.
The parties have not met since.
I find that on 26, December 1985 the Respondent with-
drew recognition from the Union as exclusive representa-
tive of its employees and thereby violated Section 8(a)(5)
of the Act. I The law and the facts could not be clearer.
When Morhouse wrote it was the Respondent's intent to
defer consideration of any union position, he was saying
directly that the Respondent would no longer recognize
the Union as bargaining agent. It has long been held that
there is a conclusive presumption of continued majority
status in a union during a full 1-year period following
Board certification. Brooks v. NLRB, 348 U.S. 96 (1954).
That principle has been reaffirmed time and time again
during the following 30-year period. It has also explicitly
' Although the Respondent denied the appropriateness of the bargain-
ing unit as alleged in the complaint, it offered no evidence to question its
correctness. I find that the appropriate bargaining unit is:
All full-time and regular part-time employees, including maids,
utility employees, laundry employees and maintenance employees
employed by Respondent at its motel facility located at Princeton,
West Virginia, but excluding all restaurant employees, managerial
employees, confidential employees and all professional employees,
guards, and supervisors as defined in the Act.
been held that a union's loss of support during the 12-
month period is not- sufficient grounds for a, refusal to
bargain before the expiration of the 12-month period. Lee
Office Equipment, 226 NLRB 826 (1976), enfd. 572 F.2d
704 (9th Cir. 1978).
The only legal precedent cited in the Respondent's
posthearing brief-Board or court decisions-is the
Brooks decision itself. It is argued that Brooks must be
distinguished from the case-at-bar because there the dis-
affection took place only a week or 2 after the certifica-
tion at the very beginning of the 1-year period. Because
here the antiunion feeling was expressed close to the end
of the period, the period should be shortened, and never
mind how many times the 12-month period has been
reaffirmed in case after case. The argument will not do.
Cf. Centr-O-Cast & Engineering Co., 100 NLRB 1507
(1951). If the rule as written must be ignored on that
basis, one could as well make a contrary argument in this
case.
In January 1985, shortly after the certification issued,
the Union requested the" Respondent to bargain with it.
It repeated the same request on 29 January 1985. Be-
cause the Respondent had questioned the validity of the
certification issued on 31 December 1984 by filing an
appeal to the Board to have it set aside, it refused to rec-
ognize,the Union as exclusive bargaining agent. It was
not until 8 March 1985, after the attempt to, invalidate
the certification had failed, that the Respondent finally
agreed to recognize the Union. In such circumstances,
one could say that the certification did not take effect
until more than 2 months after 31 December 1984 and
that, therefore, the 12-month period really did not end
until March 1986.
But I will not distort the rule of law in this fashion.
Withdrawal of recognition came before the end of the
12-month period. It, therefore, was a violation of Section
8(a)(5). In remedy the Respondent is obligated to recog-
nize the Union as exclusive bargaining agent-for all em-
ployees in the appropriate unit now.
The complaint also alleges that on 18 December 1985,
when the parties last met in negotiations, they reached
agreement on what the Respondent's- final offer was, but
that the Respondent then refused to sign the agreement
that included all the terms agreed on. This refusal is also
called a violation of Section 8(a)(5). That refusal by an
employer to formally sign a complete collective-bargain-
ing agreement it agreed to make is a violation of the stat-
ute that is so well established as to require little citation.
Heinz v. NLRB, 311 U.S. 514 (1941).
On this aspect of the case the Respondent advances
two defenses-each in conflict with the other. One,
argued principally by its manager Tom Cook at the hear-
ing, is that there was no final offer made by the Re-
spondent that day, that it never told the union agents'it
would sign a contract if the Union agreed with the Com-
pany's then articulated demands. The other defense is
that the contract drawn up by the union agent and pre-
sented for signature was not precisely in accord with the
Company's final offer of 18 December. This defense was
implied by the Respondent at the hearing via its lawyer's
cross-examination of the General Counsel's two wit-
PRINCETON HOLIDAY INN 33
nesses . The testimony in question went to what was said
at the meeting essentially by the lawyer, Morhbhse, _ft5r
he was the main spokesman for the Company through-
out. But Morhouse chose not to take the witness stand!
There is a direct question of credibility about what
was said at the 18 December meeting-Gene Moser, the
president of the local union, supported by Lois White, an
employee sitting with him, giving one version, and Cook,
for the Company, giving a completely different story.
Because , for reasons that will be detailed below, I think
Cook cannot be believed wherever he is contradicted by
the Government witnesses, I will set out Moser's testi-
mony first.
A series of bargaining sessions were held between
April 1985 and 25 September, without agreement being
reached. Moser, who at the time was secretary-treasurer
of the Union, was not involved then. He took over the
responsibility in November. In the hope of bringing
about a settlement of the dispute, with the strike still
going on, he called for the assistance of a Federal media-
tor, who came and arranged for a meeting on 18 Decem-
ber. For the' Company there was Morhouse, who acted
as spokesman , and Cook; with him Moser had employee
White and another employee.
Moser testified that in preparation for the meeting he
reviewed all the notes and papers relating to the earlier
negotiations, using the records that had been maintained
by his predecessor in office. From those papers he pre-
pared what was the equivalent of a complete contract,
precisely stating all that had been agreed on and includ-
ing the items still in dispute when the parties broke off in
September. When the parties gathered on 18 December
Moser handed this document-nine pages long-to Mor-
house, asking was it a correct statement of how negotia-
tions stood. After studying it, Morhouse agreed it did re-
flect the status of the negotiations. The parties then
talked; the meeting continued for 5-1/2 to 6 hours.
Moser continued to testify that agreement was reached
on 6 of the 11 issues that had not been resolved' earlier;
on 1 the Union gave in and on the others compromise
was reached. There is no need to list those details here,
for there is no question about that. With respect to the
remaining five items, although concessions were made
here and there, no agreement was reached. These were:
recall, wages, checkoff, union security, and holidays. The
critical part of Moser's testimony is that toward the end
of the ' meeting, "The Company said,, `This is our final
offer. It's our best. Take it back to your people."' The
witness said there was no talk of ratification required.
The next day, 19 December, Moser called a meeting of
employees, explained the status of negotiations, and
asked were they willing to go along with the Company's
final offer. All agreed. The next day, 20 December,
Moser telephoned Morhouse. The following is from his
testimony:
I called Mr. Morhouse and informed him that our
people had ratified the contract and if he could tell
me when he might expect the people to go back to
work. And he said he would have to get with his
client and see what could be done in the way of
getting them back, and he would get back in touch
,,',with-'me. "
I asked him whether or not he wanted to prepare
the package or if he wanted me to, and he says that
it didn't matter; and I says, "Well, then ['1i prepare
it and send it to you and you can review it, proof it.
If there's [sic] any errors or omission, please let me
know and we'll discuss those and see what we can
do to put together the final package."
With this Moser prepared a final draft of the agreed-
on contract and mailed it to the Company on 23 Decem-
ber. It was not received until 30 December. Because he
was very much concerned with getting the employees
back to work-an essential part of the agreement
reached-he telephoned Moser again on 23 December,
but was unable to reach him. So he called Cook the
same day and asked when could the employees return to
work. Cook's answer was "that he didn't know, that he
would have to talk to his attorney and get back to me."
Not hearing from the Company, Moser called Morhouse
again on 27 December, again asking when could the em-
ployees return to their jobs. Not having received the
final draft yet, Morhouse then told Moser on the phone
"that he had received word from Mr. Cook earlier that
day that a petition, he understood, was being circulated
at the Holiday Inn, and that while he hadn't seen a copy
of such petition-he didn't have one physically in his
hands-he didn't know what it was, but he understood
that it might be a decertification petition."
When Moser replied that he had no knowledge of a
decertification petition among these employees, Mor-
house said, "I'll see, if in fact, it is a decertification peti-
tion, and if so, you know, I don't want to do anything
that will result in a charge being filed against me." At
this point Moser repeated, "I do feel like that we have a
contract, that people had ratified it and, they're ready to
return to work, and I, would appreciate it if you would
upon receipt of the same review and let me know if any
corrections that need to be made and, advise me."
Morhouse's final statement was: "ell, I'll check into
this and if, in fact, there is a decertification petition .. .
quite frankly, I feel like it should be left-the decision
should be left up to NLRB as to what to do next."
Before the day was out-27 December-Moser wrote
a letter to Morhouse, restating his position that a con-
tract had been agreed on, that the employees must be put
to work, that any decertification petition that may be
filed had nothing to do with it, 'and that if the employees
were not recalled he would file a charge with the
NLRB. He did file that charge, dated, 2 January 1986.
Moser closed his testimony on this aspect of the case
with the statement that he never received an answer to
his request that the Company sign the contract, and that
he never learned of the Company' s questioning the accu-
racy of his prepared contract draft until the day of the
hearing in this proceeding.
Employee White's testimony conforms with that of
Moser's. As she recalled it, at the end of the 18 Decem-
ber meeting Morhouse gave the union agents his position
on the five remaining issues with this statement : "He said
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this was the best offer and that we should take it back to
the people for a vote to see if this was acceptable to
them."
We come to Cook's testimony, the only witness called
by the Respondent with respect to the refusal-to-bargain
allegations . He started by saying he was not given a
copy of Moser's prepared contract draft at the 18 De-
cember meeting.
Q. [By Respondent's counsel] . . . had you seen
that document prior to today?
A. I had not seen the document as such. I saw
the document at the meeting on the 18th when this
gentleman here , I believe it was, had it in his pos-
session. '
What was the witness saying-that he did or did not see
it at the time? Was he suggesting that as the only
member of management accompanying the Respondent's
lawyer at the negotiation meeting he was not told what
was going on? Cook also testified that the Company did
not make a final offer, that Moser, did not say he was
taking the Company's offer to the employees for approv-
al, and that there was no mention ever about going to
the people. All this, and much more, came from the wit-
ness as a "yes" or "no" in response to the purest leading
questions by his counsel, in which the lawyer spelled out
the Respondent's affirmative defenses to this entire com-
plaint. It was not the witness talking but his lawyer, in
reality attempting to testify himself, but not under oath.
This witness' testimony is also marked by continuing
evasions and doubletalk. For example: He admitted
Moser called him about 23 December to ask when would
the employees be going to return to work.
Q. And employees were only going to return to
work after there was a contract, isn't that correct?
A. I would assume so, yes.
Q. You didn't tell Mr. Moser that there wasn't
any,contract, did you?
A. I hadn't seen one.
Q. You didn't say, "Well, what do you mean em-
ployees coming back to work?"
A. The only thing I said was I don't know what
it is. You'll have to talk with Mr. Morhouse. He's
the attorney and discusses this with him. I don't
know anything about it.
Q. You didn't deny there was a contract, did
you?
A. I didn't even know what existed.
Q. I'm just asking you what you said.
A. No, I didn't deny it to him, because I didn't
know one existed.
This from the only management agent present at the
company conference.
On direct examination Cook said clearly that the issue
of vacation remained opened at the close of the meeting.
Then came the following:
Mr. Morhouse didn't think it was an open issue, did
he?
A. That I don 't know.
Q. Did he say anything?
A. I don't recall.
Q. You don't recall.
A. No.
Q. Do you recall the Union making proposals for
a 4th week of vacation at that meeting?
A. Yes.
Q. And they withdrew it didn't they?
A. Yes.
Q. So that you would be back to what had been
agreed to before?
A. Yes, basically. This is but another example of
Cook's unreliability as a witness.
To make Cook's testimony more convincing his
lawyer asked had he made notes, or minutes, of the
meeting of 18 December, and the 'witness said yes, he
had them in his hands. The lawyer then told him to use
them to refresh his memory. Asked did he intend to offer
the notes into evidence as an exhibit, he decided not to
do that. This procedure did not serve to enhance the
witness ' credibility.
And finally, while cross-examining Moser, the princi-
pal Government witness, the Company's counsel pressed
hard to get him to admit that during the meeting of 18
December there was talk about a decertification petition
having been circulated by employees. Moser then spoke
of a television reporter being in the room and asking did
anyone know about what she had heard concerning de-
certification. Moser said all he did was 'explain to her
what such a procedure meant. He did not yield on the
cross-examiner's insistence that Moser learned at that
meeting that the employees were preparing a decertifica-
tion petition. Then came Cook as a witness. One of the
first questions put to him was: "At any time during that
session, did you learn about or were you advised by
anyone with respect to any decertification petition?" The
witness answered a straight "no." If 'the talk by the TV
representative was such that Moser could not avoid
hearing it-as Morhouse kept pounding-how can I be-
lieve this witness? He was absolutely not telling the truth
at this hearing.
The fact is, and I find, that when, the meeting ended
that day the parties had reached a final agreement, and it
was that if the Union gave in to the Respondent's, posi-
tion on the last five remaining issues there was a contract
binding on both sides. And when' Moser telephoned
Morhouse 2 days later and told him, the employees had
accepted the Company's position on all remaining ques-
tions, and asked did Morhouse wish to "prepare the
package" or was it all right if Moser did it, the lawyer
said it was okay, for Moser to do the work. No question
then from Morhouse about a final agreement having been
reached. He did not bother to contradict Moser' s testi-
mony.
I also find that the reason the Respondent refused to
sign the contract that it did receive on 30 December was
not because it did not precisely conform with the parties'
resolution of the remaining issues. It did not even raise
any such question until months later. Its reason for refus-
ing to sign was its mistaken notion that the disaffection
PRINCETON HOLIDAY INN 35
k
towards the Union shown by some 'of 'the employees in
December was sufficient grounds ^ for the Company's re-
jection of the Union altogether. There is not the slightest
indication that anyone on behalf of the Respondent even
looked at Moser's drawn contract until 3, months later.
This is, therefore, not a case where, following full
agreement , the Union prepares a written contract,in sub-
stantial variance from what the parties had settled on.
But even in that situation-where the employer looks at
the prepared document and notices differences from the
agreement reached-the employer is obligated, under
Board law, to assist in,reducing the agreement to a cor-
rect reflection of the agreement reached. Moser asked
Morhouse to let him know if any corrections were re-
quired, but was ignored. See Kennebec Beverage Co., 248
NLRB 1298 (1980). The agreement drawn need not be
letter perfect; it should be corrected, if necessary, with
the cooperation of the employer-that is if final agree-
ment had in fact been reached, as here. Trojan Steel
Corp., 222 NLRB 478 (1976), enfd. 521 F.2d 308 (4th
Cir. 1976), See also North Bros Ford, 220 NLRB 1021
(1975), in which the Board held that errors in the pre-
pared contract did not excuse the employer from its obli-
gation to execute the written document.
At the hearing the Respondent drew admission from
Moser about an error in his draft, where the number
1985 had mistakenly been written instead of 1986, a
matter of no moment. The only other error, as claimed
by the Respondent, was that the contract as drawn could
be read as giving returning strikers credit for work al-
though in reality they had been on strike for a long time.
If the striker were considered to have been at work all
the time, he could enjoy full-time status on his return, a
condition that could benefit him in case of future layoffs,
as against employees holding only part-time status. Else-
where the contract did explicate clearly enough that
unless a man was actively on duty over 30 hours per
week, he lost that week in his classification between full-
time and part-timer. It was not at all clear that one of the
clauses as drawn did violate that concept. In any event,
that ambiguity, if ambiguity it was in Moser's draft, is ex-
actly the kind of error that the law says the employer is
obligated to try to,straighten out with the union so that
final contract can be executed.
The Respondent must be ordered to sign that contract
now. The wording of the full-time as against part-time
status for returning strikers will be made clear when it
signs.
In defense of the entire complaint, including the with-
drawing of recognition from the Union before expiration
of the certification year, the Respondent advances a fur-
ther argument. It says the Union acted improperly when
asking the employees whether they liked or did not like
the Respondent's last offer of 18 December. At that
gathering there were present 13 employees , all strikers,
from a total unit complement of about 30 employees.
But, there was no agreement between Moser and Mor-
house that the contract would only be binding following
a ratification by the employees as a whole. It was the
Union , speaking through Moser , that represented the em-
ployees . If Moser chose to consult employees it was his
prerogative . Mt. Airy Psychiatric Center, 230 NLRB 668
(1977).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
THE REMEDY
The Respondent must be ordered to cease and desist
from committing further unfair labor practices. It must
also be ordered to bargain with the Union on request and
to sign the contract agreed on between the parties on 18
December 1985, which it illegally refused to execute.
The contract must take effect retroactively to 30 Decem-
ber 1985. The record does, not show .whether the em-
ployees would have benefited economically under the
terms of that contract compared with what they enjoyed
without it. If it should appear, at the compliance stage of
this proceeding, that they were denied economic benefits
because the contract was not put in effect at that time,
the Respondent must make them whole for any ' such
losses. Beyond that, the Respondent must be ordered to
cease and desist from violating 'the statute in any other
manner.
CONCLUSIONS OF LAW
1. By withdrawing recognition from the Union as the
exclusive representative of its employees in the bargain-
ing unit in December 1985, and by refusing since that
month to execute they agreed-on collective-bargaining
agreement between the, parties and to give it effect, the
Respondent has refused to bargain collectively with the
Union and has engaged in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices in violation of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.,]