Donkins Inn, Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1974

214 N.L.R.B. 1 (N.L.R.B. 1974)

DONKINS INN, INC.
Donkins Inn, Inc. and Culinary Workers and Bar-
tenders Union, Local 814 , AFL-CIO. Case 31-CA-
4195
October 9, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On June 10, 1974, Administrative Law Judge Da-
vid G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Board has delegated its authority in this
proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The issue in this case is whether Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
sign an agreement assertedly reached with the
Union. Subsidiary to this issue is whether Re-
spondent's attorney, E. Day Carman, who negoti-
ated with the Union, had reached agreement with the
Union and whether he had the authority to bind Re-
spondent.
The Respondent has excepted, inter alia, to the de-
nial by the Regional Director and Administrative
Law Judge of a motion for continuance of the April
3, 1974,' Board hearing until April 22; to the Admin-
istrative Law Judge's denial of a motion to reopen
the hearing; and to the Administrative Law Judge's
refusal to consider as evidence the sworn declaration
of Carman contained in an affidavit submitted on
May 8, over a month after the hearing date. Respon-
dent subsequently tendered Carman's declaration to
the Board along with its exceptions and supporting
brief.
The aforementioned exceptions are ' based on the
argument that the Board's failure to accord the Re-
spondent additional time and opportunity to prepare
its case and to present allegedly critical witness testi-
mony is violative of constitutional due process. The
Board has previously considered the factual circum-
stances underlying this argument and has found the
Respondent's allegations of due process deprivation
to be without merit. Accordingly, on April 18, we
denied Respondent's request for special permission
1 Hereinafter all dates are in 1974
to appeal the Administrative Law Judge's ruling ae-
nying Respondent's motion for a continuance; and
again, on May 2, the Board denied Respondent's re-
quest for reconsideration of the April 18 decision. In
light of the circumstances discussed below, we find
no reason to vary from our previous firm conclusion
that due process has been served herein.
A hearing in this case was originally set for March
12. Due to his own incapacitation during the month
of March, Respondent's president, Romer, success-
fully requested a postponement of the hearing until
April 3. The telegraphic order rescheduling the hear-
ing expressly declared, "No further postponements
will be granted." Respondent's current counsel, Gi-
gliotti, who was retained on March 6, answered the
charges in this case on March 7, and was apprised of
the new hearing date by March 12. Nonetheless, Gi-
gliotti made but a few evidently tardy attempts be-
tween March 6 and April 3 to contact his alleged
"only" witness, lawyer Carman. Having failed to
reach Carman by telephone sometime between
March 15 and 18 or by letters dated March 22 and
27, Gigliotti did not issue a subpoena ad testificandum
for Carman until March 29. Bound by a prior out-of-
state legal commitment, Carman informed Gigliotti
on April 1 of his unavailability as a witness for the
scheduled hearing. The subpena action was initiated
so close in time to April 3 that on that date Carman
still had 1 day remaining to move legally to quash the
subpena. Furthermore, at the hearing itself, Gigliotti
could not yet prove a perfected service of subpena.
Prior to the introduction of any witness testimony
at the hearing, Respondent's counsel requested a
continuance of the proceeding, which was denied by
the Administrative Law Judge. Gigliotti then refused
to participate further in the hearing and voluntarily
withdrew from the hearing room. Two relevant
points of information were elicited from Gigliotti
in questioning prior to his departure. First,
Respondent's president, Romer, was present in Los
Angeles on April 3 and could have been summoned
to give testimony regarding the degree of negotiating
authority delegated to Carman. Second, Gigliotti
stated that to the best of his knowledge Carman was
still retained as counsel by the Respondent, although
no longer responsible for the present case. The rea-
sonable implication of the latter point would seem to
be that channels for communication with Carman
were readily available and might have been better
utilized in the period between March 6 and April 3.
In sum, we conclude from the evidence that Re-
spondent had ample time to prepare and present its
defense at the April 3 hearing. The issues in the case
were few, clearly defined, and known to Re-
spondent's counsel for nearly a month; Carman
214 NLRB No. 6
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was obviously a key witness and immediate steps
should have been taken to compel his attendance at
an already delayed hearing. No new issues were
raised by surprise at the hearing. With appropriate
and timely deliberation, Respondent could have, in-
troduced at the hearing any testimony which it now
contends the Board should accept as new or previ-
ously unavailable evidence. Instead, the Respondent,
both expressly and by neglect, voluntarily chose to
risk nonparticipation in the Board's proceedings. We
will not now permit the Respondent to escape the
consequences of its own conduct in this case or to
further delay a resolution of the issues by miscon-
struing the limits of due process. We have no doubt
that the procedure in this case meets constitutional
standards, and we therefore have no hesitancy in ac-
cepting the Administrative Law Judge's findings and
conclusion that Respondent has violated Section
8(a)(5) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Donkins Inn, Inc., Mari-
na Del Rey, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard I at Los Angeles, California, on April 3,
1974, based upon a charge filed January 8, 1974, and a
complaint issued February 13, 1974, alleging that Donkins
Inn, Inc., called Respondent, violated Section 8(a)(1) and
(5) of the Act by refusing to sign an agreement assertedly
reached with Culinary Workers and Bartenders Union, Lo-
cal 814, AFL-CIO, called the Union.
Upon the entire record in this case, including my obser-
vation of the witnesses , and upon consideration of the brief
filed by General Counsel, I make the following:
1 After the hearing opened Respondent moved for continuance to April
22, 1974, on principal grounds of inadequate preparation time I denied the
motion whereupon Gighotti left the hearing room , stating he was under
instructions not to proceed further without continuance He did not return
and the hearing proceeded to completion with General Counsel's presenta-
tion unopposed Subsequently Respondent filed a motion to reopen hearing
for the stated purpose of "[T]aking additional testimony " I have con-
sidered the grounds for this motion and find them materially the same as
stated at the hearing in support of desired continuance The explanation of
record remains unconvincing because it is evasive , contradictory, and im-
plausible Accordingly, this post-hearing motion is denied
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent, a corporation, operates a restaurant busi-
ness in Marina Del Rey, California, annually deriving
gross revenue in excess of $500,000 and annually purchas-
ing goods valued in excess of $50,000 which originated out-
side the State of California. I find, as Respondent admits,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Union is a
labor organization within the meaning of Section 2(5) of
the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts and Discussion
On October 14, 1965, Charles (also "Chas" or "Chuck")
B. McPhee, acting in the capacity of Respondent's secre-
tary-treasurer, signed the 13th addendum to a master
agreement-bay district restaurant industry. McPhee sub-
sequently signed a 14th and 15th addendum, on or about
August 1, 1968 (acting in the capacity of president), and
August 1, 1971 (without designation), respectively. The
master agreement originated in 1948 as a five-page docu-
ment of 11 articles to be made and entered into by the
Union and such employers of the industry association as
became signatory parties "of the second part." At incep-
tion it was appropriately skeletal to its time , containing
economic provisions only as to wages, hours of work, and
vacations, plus limited noneconomic language. The com-
posite of all amendments, deletions, and substitutions
made to the master agreement by addenda occurring be-
tween August 1951 and August 1971 was a comprehensive
collective-bargaining agreement, 2 last terminating July 31,
1973.
New and liberalized benefits had evolved predictably
over the years. The daily wage rate for waitress (8-hour
straight shift) was $5 in 1948 and $11 effective August 1,
1972; for second cook $12 in 1948 and $25.50 effective
August 1, 1972; and for dishwasher $7 in 1948 and $16.25
effective August 1, 1972. A health and welfare plan was
established by the third addendum effective August 1,
1953, obliging signatory employers to contribute 4 cents
per hour worked by the employee to a designated joint
fund. This contribution, combined with one required under
a pension plan established by the 10th addendum effective
August 1, 1960, was progressively increased to 19 cents per
hour in the 15th addendum effective August 1, 1971. A
separate article XIV was also introduced with the 10th ad-
dendum, granting premium pay for specified holidays
worked by "regular employees." Previous holiday pay had
existed only as to express entitlement from the classifica-
tion and wages schedule of earlier addenda. The 15th ad-
2
G. C Exh 12 presumes to constitute this integrated document Page 3
of the 10th addendum is missing through probably inadvertence and not all
schedules A of the various addenda were introduced The sense of the ex-
hibit as it physically exists in the record is clear and these omissions are
inconsequential to deciding the case
DONKINS INN, INC. 3
dendum expanded benefits to those holidays subject to
Public Law 90-363.
Other changes appeared with time. The patent illegality
of article II-Union Security-was corrected in the 10th
addendum. Article XIII-Limitation of Filing of Claims-
was established by the fifth addendum effective August 1,
1955, as a contractual time limitation on wage and vaca-
tion claims. An eventually numbered article XVI-More
Favorable Contract Clause-was established by the eighth
addendum effective August 1, 1958, in which the Union
agreed that upon entering into any agreement with an ap-
propriately similar employer that was "[M]ore favorable in
its provisions ...." such would be deemed as in full force
and effect in the master agreement respecting signatory
employers. A leave of absence privilege first appeared in
the eighth addendum as an addition to article VI-Vaca-
tions. An original article VII-Adjustment of Controver-
sies-was deleted by the third addendum, reinstated (other
than for potential interest arbitration of wages) by the
fourth addendum, and amended to utilize an appointing
agency for any needed "third disinterested party" by the
12th addendum. This sequence affecting article VII also
expressly reinstated the "no strike-no lockout" provision.
The original master agreement was effective until Au-
gust 1, 1953, subject to timely annual notice of wage re-
opening. Each addendum contained language dealing with
the continued force and effect of the agreement. Article
XI-Term of Agreement-traceable by that same article
number to the original master agreement, reads as follows
in the 15th addendum (incorporating the 14th addendum
by oblique reference):
This agreement shall be effective as of August 1, 1968
for a period of five (5) years and shall automatically
terminate on July 31, 1973. If either party desires to
extend, modify or alter this agreement for the period
following the term hereof, he shall give written notice
to the other party by June 15, 1973.
On or before June 1, 1973,3 an individual employed by
Respondent filed a decertification petition. This was dis-
missed following the subsequent filing of a meritorious
8(a)(1) and (5) charge (Case 31-CA-3845) by the Union,
upon which formal hearing was noticed for 10 a.m., Sep-
tember 11, at the 12th Floor, Federal Building, Los Ange-
les, California. E. Day Carman, an attorney-at-law licensed
to practice in California and maintaining offices at San
Jose and Newport Beach, represented Respondent as its
corporate counsel during pendency of proceedings on the
decertification petition and by entry of an appearance on
the record as Respondent's representative for the hearing
of September 11. An 11-page transcript of that hearing
contains colloquy between the duly designated Adminis-
trative Law Judge and counsel looking to settlement of the
matter and a stated indefinite adjournment of hearing
upon introduction by the General Counsel of formal pa-
pers and an all-party settlement. Ivan J. Potts, attorney for
the Union, participated in off-the-record discussion lead-
3 All dates and named months hereafter are in 1973, unless indicated
otherwise Where context warrants , 1973 may be shown
ing to the settlement ultimately reached that day which was
executed by Carman as "attorney" for Respondent. An ex-
press provision obligated Respondent to bargain, upon re-
quest, with the Union and embody any understanding
reached in a signed agreement. During settlement discus-
sion between Carman and Potts, the former stated that
Respondent was no longer an association member and did
not want a contract more onerous or containing more
harsh conditions than the master agreement. Potts replied
the Union could offer its standard independent contract
containing substantive terms of the master agreement
(terming it the "bay area agreement") but without certain
grievance procedure language pertaining solely to employ-
er-members of the association. Carman answered this was
fine, was okay with him, and that, upon receipt form Potts
of a requested three copies of the described standard inde-
pendent contract, he would have the employer sign them.
At a subsequent time prior to October 10, these attorneys
conversed by telephone as Carman inquired whether Re-
spondent should continue to pay health and welfare contri-
butions and Potts relayed back the considered advice of
John Merritt, union secretary-treasurer and business man-
ager, that August payments be made under the old con-
tract and those for September and October under the new
contract about to be forwarded for signature.
By letter dated October 10, Potts transmitted three cop-
ies of the standard independent contract, alternatively ti-
tled "wage scale and working conditions agreement," to
Carman, representing it to be identical to the bay area
agreement in all material respects except as to grievance
procedure and language relating to the association. This
letter requested review and prompt return of two copies
signed by Carman's client. Potts sent a follow-up letter dat-
ed October 30 to which Carman replied by letter dated
November 5, expressing apology for a delay largely of his
responsibility and stating the intention to forward the
agreements to his client before they met that week as a
hopeful prelude to their return shortly thereafter. On No-
vember 6, Carman telephoned 4 Potts seeking clarification
of the standard independent contract in three regards. Be-
fore reaching the questions, Potts asked if the call consti-
tuted a backing off of agreement to sign. Carman nega-
tived, reiterating his desire for mere clarification prior to
explanation for the client's benefit. Carman inquired
whether health and welfare provisions could be augmented
at Respondent's discretion; Potts replied they could. Car-
man asked whether the union-security clause defined what
persons need become union members; Potts replied it did
via the incorporated classification list. Carman finally
questioned whether Respondent had leeway in hiring, as
for instance employing a known chef directly without
going through the Union. To this third question, Potts stat-
ed the contract was clear and Carman would not find the
Union unreasonable in such regard. Carman expressed
Potts testified variously, or was led to testify, that this telephone call was
received on or about November 66 As his testimony proceeded to traverse
and sift past events, he became more assured that the date was November 6
The configuration and content of Carman's dated correspondence to Potts
at that time adds to the likelihood Carman initiated this telephone call to
Potts on November 6
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amiable satisfaction 5 with Potts ' response , making no
mention that signing of the contract would be conditioned
upon approval by any official of Respondent and com-
menting further only that he might desire a union spokes-
man to restate any explanation that left his client yet un-
clear as to meaning. Subsequent telephone conversations 6
between Carman and Potts coupled with their related ex-
change of correspondence 7 scheduled a meeting by parties
and their counsel for 3 p.m., January 8, 1974, at Merritt's
office. Carman arrived at this meeting accompanied by
Helfried Fahrenholz, Respondent's manager, and prompt-
ly stated that until earlier that day he had expected to sign
the contract but had just been directed not to do so by
Francis C. (Carlos) Romer, Respondent's president, on
grounds it contained a union-security clause. His tone was
apologetic, he did not deny that Potts and those in attend-
ance on behalf of the Union harbored a valid expectation
the contract would be signed, and he invited Potts to at-
tempt coaxing a change of mind from Romer by direct
telephone call.
The proposed standard independent contract in
Carman's possession since October is a 20-page document
of 15 articles. A high degree of similarity exists between
this proposed agreement and the last expiring master
agreement. A common general structure marks both writ-
ings, much phraseology is identical or of synonymous im-
port, and the overall pattern of wage rates, fringe benefits,
and administerable noneconomic language is the same.
Each document defines "employee[s]" as all employees of
the Employer within the jurisdiction of the Union and as
classified in an attached schedule A (interchangeably
termed "pay schedule" or "classification and wages").
Thirteen of the component 15 articles are fully comparable
in wording. These are Definitions,' Union Security,' Dis-
charge and Union Discipline, Wage Conditions,1° Hours of
5 Potts ' uncontradicted testimony attributes to Carman the utterance,
"[T]hank you very much that does me fine "
6 In an early December conversation , Potts informed Carman that the
Union would not agree compliance with the settlement agreement existed at
the expiration of required the 60 days ' notice-posting unless the proposed
standard independent contract was signed This led to mutual agreement for
a 30-day extension of monitored compliance Respecting this entire series of
conversations , Potts ' uncontradicted testimony negatives any assertion by
Carman that Respondent was undergoing a change of mind, desired to
negotiate on any subject, or had limited his authority in any way relative to
the dealings
i
Carman's letters dated November 6 and November 13, Potts' dated
November 20, and Carman's meant to be dated January 2, 1974 Notable
here is collateral phraseology of Carman's November 6 and November 13
letters expressing the purpose "[T]o discuss one or two points and execute
the proposed contract as soon as possible ," and "[i]n order to go over one or
two points with respect to the union contract ," respectively
8 Language here applies the agreement to employees of other estab-
lishments which may be owned or operated by the employer within the
jurisdiction of the Union during the term of the agreement and deems "em-
ployer" to include any person , firm, partnership, corporation , joint venture,
or other legal entity which is, or during the term of the agreement may be
substantially in control of or substantially controlled by the signatory em-
ployer
9 A valid union-security provision obligates employees to beccme mem-
bers within 31 days Further , a mandatory hiring hall is contemplated with
direct hire authorized , "In the event the Union is unable to supply compe-
tent craftsmen that are satisfactory to the Employer, the Employer shall
then have the right to employ help at the regular wage rates herein speci-
fied " Certain 7-day registrations of employment need not be evaluated Cf
Towne Manufacturing Corporation, 114 NLRB 1367 (1955)
Work, Vacations and Holidays," Working Conditions,
Uniforms, Limitation of Filing of Claims, Health and Wel-
fare and Retirement Plan Payments,12 Successors, Leaves
of Absence,13 and No-Strike, No-Lockout Provision.
Grievance and Arbitration Procedure, as Potts originally
advised , is dissimilar from that pertaining to the associa-
tion , although each concludes with final and binding dis-
position of disputes by a board of arbitration utilizing an
impartial third person. The proposed Term of Agreement
was that it become effective August 1 (1973), and remain
so until August 1, 1978, with the option to reopen com-
mencing that year. A comprehensive schedule A mirrored
its last known counterpart of the master agreement with
annual wage rate increase progressions of a 4-5-percent
range.
An ostensibly uneventful collective-bargaining relation-
ship existed between Respondent and the Union from Oc-
tober 1965 to June 1973. During this period, the normal
inference is that Respondent 's operating officials acquired
and exhibited extensive familiarity with the master agree-
ment as repeatedly modified. By 1965, annual wage rate
increases were customary and a typical pattern of fringe
benefits existed with such connective and noneconomic
language as would achieve a comprehensive employment
context for represented employees. The earlier 8th through
12th addenda had liberalized and consolidated the master
agreement to an extent permitting its characterization as a
mature labor contract. In day-to-day terms, contract famil-
iarity meant hiring and utilization of personnel, payment
of entitled wage rates, prompt fulfillment of vacation pay,
health and welfare obligations, holiday premiums, and
honoring employment security mechanisms of union repre-
sentation and the right to grieve.
On September 11, Carman displayed sufficient mastery
of the general contractual framework to sweepingly assure
Respondent's amenability to "same terms as the bay." This
utterance imputes knowledge to Carman, or at least im-
putes a confidence to him based on normal client commu-
nication, that a contract of that tenor was within
Respondent's ability to reach and fulfill. Basic legal princi-
ples applied to such utterance constitute it as an offer to
contract . Since unqualified as to duration , it is presumed to
survive only for a reasonable length of time.
At that point in time, the potential for immediate con-
tract agreement was high. Events soon served to undercut
this potential. First, was the simple matter of delay as the
standard independent contract was not transmitted for
nearly a month. Potts' explanation was the document had
not yet been returned earlier from printing, yet in physical
appearance it is simply a collection of legal size pages re-
produced in mimeograph quality and contemplating an
10 Wage rates automatically adjust to coincide with master agreement
changes
11 Sec 5 blankets in all Public Law 90-363 holidays, sec 8 fixes custom-
ary conditions of eligibility for holiday pay
12 Total fund contributions to be 22 cents per hour worked during the first
year
13 This subject (found in the master agreement in the eighth addendum)
here contains language more restrictive of the employee Leaves of absence
are confined to stated bases, outside employment during leaves of absence
or incorrectly stated reasons is deemed a quit, and , most importantly , eligi-
bility for vacation benefits is extended by the length of leave
DONKINS INN, INC. 5
effective date of August 1, 1973. A further factor arose
from the transmittal when finally made, since the written
representation of the standard independent contract as
identical "in all material respects" shades the truth. The
definition of "employer" was more encompassing, an ex-
clusive hiring hall was proposed, seniority protection was
to be accorded in limited manner under article III, section
3, and fewer restraints were to be applied respecting leaves
of absence.14 These are not insubstantial subjects; however,
the fair opportunity for review and comparison available to
Carman between assumed receipt of Potts' October 10 let-
ter and early November was tantamount to acceptance of
the variations. Written advice, dated November 5, that
Carman had forwarded the documents, plus the discussion
between the attorneys on November 6, completed the cycle
of offer, constructive counteroffer, and acceptance. Simul-
taneously final lingering concern as to specified matters
was satisfied by clarification. The preponderating item of
evidence is Carman's chosen phraseology when writing
that while a further desired meeting would profitably "dis-
cuss one or two points," it would also expressly be to "exe-
cute the proposed contract." I am persuaded this elevated
the dealings to that point contemplated in Section 8(d)
wherein the Act deems that conceptually a collective-bar-
gaining agreement has been achieved by any "agreement
reached" and the obligation then created is to execute such
,,written contract."
General Counsel correcly argues that Respondent was
not bargaining over any aspects of the proffered contract
but merely requested clarification on three points. As to
these, Carman made no effort to challenge the topic or
even dicker over language. That Respondent ultimately
made its September fund contributions at the old rate of 19
cents, that Potts' response on or about November 6 to the
union-security inquiry restates the obvious, and that a
bland assurance of union reasonableness respecting hiring
was made are, individually or collectively, not circum-
stances permitting the conclusion that any material portion
of a complete labor contract remained an issue.
Carman had both capacity and authority to bind Re-
spondent. His capacity was prominent and continuous
from a time even prior to Respondent's final weeks as an
employer bound to the master agreement until January 8,
1974, when his desultory mission warranted the compan-
ionship of Manager Fahrenholz. His authority was, by the
governing test of its apparent nature, thoroughly complete
as to labor relations matters by reason of overt, unimpaired
functioning as Respondent's counsel, advocate, spokes-
man, intermediary, and correspondent.
An agreement reached must be identifiable. The essence
of a collective-bargaining agreement is language; words
connected readably into a skein of meaning for those
about to embark on respective paths of administering and
assuring economic and noneconomic terms and conditions
of employment. Here, General Counsel's Exhibit 2 is the
14 While other provisions were also slightly dissimilar (fourth week of
vacation after 18 years, uniform laundering reimbursement, and health and
welfare contribution rates), the thrust of recent modifications strongly sug-
gests such minor dissimilarity would have been eliminated by corresponding
changes in the master agreement when renewed beyond July 31 (1973)
agreement reached. To the extent some of its provisions are
of doubtful wisdom or not necessarily enforceable, these
are not of such a character as to warrant excision from the
balance of the agreement." To the extent article II, con-
cerning union security, was Respondent's chief concern, I
am satisfied this qualifies as part of the total agreement. It
establishes union-shop features and an exclusive hiring hall
through language crudely drawn, but not so much so as to
escape Carman's ability to readily comprehend. Syntacti-
cally abstruse, it challenges the discerning reader to decide
whether nine different terms 16 refer identically to the po-
tential employees such phraseology concerns. The question
is whether the Union should be said to have engrafted this
passage onto the otherwise efficient fabric of proffered
contract language and have the resultant sum binding on
Respondent by overt acceptance or circumstance. Al-
though a purist might quarrel with the quality of wording
proposed, it nonetheless follows that Carman's occupation-
al language skills as an attorney brought article II within
the total agreement he accepted on Respondent's behalf.
Most importantly, the essentials of a valid union-security
clause and mandatory hiring hall were not materially dif-
ferent from how Respondent was previously bound under
the master agreement. The only pointedly new language
dealt with grievance and arbitration procedure and this
was both customary, retentive of significant features of the
old, and commented on specifically by Potts as early as
September 11. Essentially, Respondent's collective-bar-
gaining relationship was affected little by the standard in-
dependent contract. The Union sought a directly contract-
ing employer party but substantive matters remained much
the same. Respondent did nothing to disassociate itself
from the path of renewal agreement which Carman, its
agent, had ample time to voice had that been his course.
The necessary burden of proof is met by a showing of in-
formed willingness to contract coupled with express ac-
quiescence.
General Counsel argues that Respondent also violated
Section 8(a)(5) by demanding renegotiation of union secur-
ity. Ordinarily I would believe Carman's statements on
January 8, 1974, were merely the medium of a refusal to
sign and, to the extent this might technically constitute an
impermissible bargaining position, disappear by merger
into the more pronounced and significant unfair labor
practice. Since refinement of such an issue was precluded
by Respondent's nonparticipation, I refer to paragraph 3
of Respondent's answer to the complaint wherein pleading
that "[T]he union security clause was up for negotiation
... is an effective assertion directly contrary to the
weight of evidence that this was not a viable issue. Overall
I believe Respondent's conduct, as exhibited in this regard
by Carman, should be found as a separate violation.
B. Remedy
Having found Respondent has engaged in certain unfair
15 Art 11, sec 2. 3rd paragraph, penultimate sentence, and art 111, see 2
See generally New York State Electric & Gas Corporation, 135 NLRB 357
(1962), Tulsa Sheet Metal Works, Inc, 149 NLRB 1487 (1964)
16 Workmen, applicants, employees, qualified referrals, competent help,
competent craftsmen, help, and person(s)
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices violative of Section 8(a)(1) and (5) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
When a person authorized to bind an employer signs a
collective-bargaining agreement it converts an oral con-
tract to written form. This modal change pertains essential-
ly to convenience of enforceability. To that extent the poli-
cy underlining Section 8(a)(5) of the Act, read in conjunc-
tion with Section 8(d), is fulfilled. Having found a violation
in this regard, I shall recommend that such signing be or-
dered.17 Further, the refusal to sign, while contending no
agreement has been reached, strongly suggests that full
economic features and noneconomic protections may not
have been honored as though a signed contract had existed
since November 6, 1973. While wage rates, fringe benefits,
and health and welfare contributions are ascertainable,
other matters may appear forfeited through the passage of
time. It is specifically necessary that the 60-day limit as to
timeliness of grievances be tolled and unavailable to Re-
spondent relative to a retroactive time frame. I shall recom-
mend 18 that employees of this bargaining unit be made
whole for any monetary losses suffered and that Respon-
dent financially compensate, or otherwise adjust the em-
ployment status of, any employee suffering material disad-
vantage as a consequence of Respondent's described refus-
al to sign . Ogle Protection Service, Inc., 149 NLRB 545
(1964), enfd. 375 F.2d 497 (C.A. 6, 1967), cert. denied 389
U.S. 843 (1967); Trade Mart, Inc., 204 NLRB 1 (1973). The
reach of retroactivity is to August 1, 1973, as this is the
effective date of agreement achieved by operation of law.
Monetary losses in such a circumstance are equivalent to
backpay with entitlement to interest as provided in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. All culinary workers and bartenders employed by Re-
spondent at its Marina Del Rey, California, facility, includ-
ing kitchen, dining room, and barroom employees, but ex-
cluding all office clerical employees, professional employ-
ees, guards, and supervisors within the meaning of the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
2. At all times since October 14, 1965, Culinary Workers
and Bartenders Union, Local 814, AFL-CIO, has been the
exclusive representative of all employees in the unit de-
scribed above for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
3. On November 6, 1973, Respondent and the Union
reached a collective-bargaining agreement covering em-
ployees in the unit described above which Respondent has
at all times since that date refused to execute.
4. On November 6, 1973, Respondent engaged in, and
17 A formal request by the Union is manifestly unnecessary as the whole
object of the proceeding has been to achieve this result See East Texas Steel
Castings Company, Inc, 191 NLRB 113 (1971)
is General Counsel's brief seeks issuance of "[A]ppropriate remedial or-
ders
continues to engage in, unfair labor practices prohibited by
Section 8(a)(5) of the Act through its refusal to execute a
written contract incorporating agreement reached between
the parties.
5. On January 8, 1974, Respondent engaged in unfair
labor practices prohibited by Section 8(a)(5) of the Act
through its request for further negotiations of a subject
contained in the agreement previously reached between the
parties.
6. By the conduct described above, Respondent has in-
terfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act
and has thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case,19 and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 20
Respondent, Donkins Inn, Inc., Marina Del Rey, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to sign a written contract embodying terms
of a collective-bargaining agreement reached on November
6, 1973, between its representatives and Culinary Workers
and Bartenders Union, Local 814, AFL-CIO, to be effec-
tive August 1, 1973.
(b) Refusing to bargain collectively by requesting fur-
ther negotiation of a subject contained in the agreement
previously reached with the representative of its employees.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Forthwith sign the collective-bargaining agreement
described in paragraph 1(a), above.
(b) Upon creation of a written contract by such signing,
give retroactive effect to the terms thereof to August 1,
1973, and, in the manner set forth in the section of this
Decision entitled "Remedy," make employees whole for
any monetary losses or material employment disadvantage
19 Following close of hearing , communication consisting of a letter dated
May 8, 1974, with an enclosed 6-page "Declaration ex parts," was received
from Carman The stated purpose was "[C]larifying statements that were
apparently made at the time of hearing " The covering letter showed copies
had been sent to General Counsel, Potts, and Romer, thus avoiding the
characteristics of an unauthorized exparte communication within Secs 102
126-134 of the Board's Rules and Regulations . General Counsel filed a
motion to deny consideration of it, noting indirectly that Respondent had
failed to file a posthearing brief although time to do so had been extended
upon its request In view of my denial of Respondent 's motion to reopen the
hearing, I believe awareness of the declaration's contents would be undesir-
able exposure to matters outside the formal record in the case Accordingly,
I have caused it to be filed without perusal
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order , and all objections thereto shall be deemed
waived for all purposes
DONKINS INN, INC.
suffered in consequence of the past failure to sign.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze and determine the amounts of backpay, if
any, due employees under the terms of this recommended
Order.
(d) Post in conspicuous places at Respondent's facility
in Marina Del Rey, California, including all places where
notices to employees are customarily posted, copies of the
attached notice marked "Appendix." I Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 31, after being duly signed by an authorized represen-
tative of Respondent, shall be posted immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter. Reasonable steps shall be taken by Re-
spondent to ensure that such notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall 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
7
WE WILL fulfill our obligation to bargain collectively
with Culinary Workers and Bartenders Union, Local
814, AFL-CIO, as exclusive representative of our em-
ployees in the bargaining unit described below by
signing a written contract containing terms of a collec-
tive-bargaining agreement reached on November 6,
1973, to be effective August 1, 1973. The bargaining
unit is:
All culinary workers and bartenders employed at
our Marina Del Rey, California, facility, including
kitchen, dining room, and barroom employees, but
excluding all office clerical employees, professional
employees, guards, and supervisors within the
meaning of the Act.
WE WILL compensate any employee covered by such
contract for monetary losses or material employment
disadvantages they may have suffered by our past re-
fusal to sign.
WE WILL be bound by the terms of such contract
retroactively to its effective date of August 1, 1973.
WE WILL NOT request further negotiation of any sub-
ject contained in such contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed by the National Labor Relations
Act.
DONKINS INN, INC.