Hilton Inn North

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 45 (N.L.R.B. 1986)

HILTON INN NORTH
Hilton Inn North and Hotel Employees and Restau-
rant Employees Local Union No . 70, Hotel Em-
ployees and Restaurant Employees International
Union, AFL-CIO. Case 9-CA-22121
31 March 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 20 December 1985, Administrative Law
Judge Michael O. Miller issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge's rulings,' findings, 2
and conclusions and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Hilton Inn North, Columbus, Ohio, its
officers, agents, successors, and assigns , shall take
the action set forth in the Order as modified.
Substitute the following as paragraph 2(e).
"(e) Notify the Regional Director for Region 9,
in writing, within 20 days from the date of this
Order what steps have been taken to comply here-
with. For purposes of determining or securing
compliance of this Order, the Board or any of its
duly authorized representatives may obtain discov-
ery from the Respondent, its officers, agents, suc-
i The Respondent has excepted to the judge's denial of its motion to
reopen the record The Respondent contends that it possesses evidence (a
decertification petition filed 24 January 1985 and the affidavit referred to
in the judge's decision at fn 1 ) which it seeks to introduce by its motion,
which establishes that a majority of the employees in the unit no longer
wish to be represented by the Union The Respondent also urges us to
reconsider Dresser Industries, 264 NLRB 1088 ( 1982), and to return to the
standard of Teleautograph Corp, 199 NLRB 892 (1972). We decline to
consider the Respondent 's arguments as they are untimely raised . We fur-
ther note that at no time during negotiations did the Respondent advance
the Union's purported loss of majority status as a basis for its refusal to
bargain Accordingly , we affirm the judge 's denial of the Respondent's
motion to reopen the record
2 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
S In his recommended remedy and Order , the judge provided for a vi
sitatorial clause We agree with the judge that a visitatonal clause is ap-
propriate , based on the possible complexity of computing the make-whole
remedy here and on all the facts of this case
45
cessors, or assigns, or any other person having
knowledge concerning any compliance matter, in
the manner set forth by the Federal Rules of Civil
Procedure. Such discovery shall be conducted
under the supervision of the United States court of
appeals enforcing this Order and may be had upon
any matter reasonably relating to compliance with
this Order, as enforced by the court."
Patricia R. Fry, Esq., for the General Counsel.
Harold Burchett, and Spencer M. Youell, Esq., of Colum-
bus, Ohio, for the Respondent.
Robert J. Fiascone, of Columbus, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard on 3 October 1985 in Columbus, Ohio,
on an unfair labor practice charge filed on 14 June 1985
by Hotel Employees and Restaurant Employees Local
Union No. 70, Hotel Employees and Restaurant Employ-
ees International Union, AFL-CIO (Union), and a com-
plaint issued by the Regional Director for Region 9 of
the National Labor Relations Board on 26 July 1985.
The complaint alleges that Hilton Inn North violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by refusing to sign, on the Union's request, a collec-
tive-bargaining agreement embodying the complete and
final understanding reached in May 1985. Respondent's
timely filed answer denies the commission of any unfair
labor practices.
All parties were afforded full opportunity to appear, to
examine and to cross-examine witnesses , and to argue
orally. Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and Re-
spondent.
Based on the entire record, t including my observation
of the witness and their demeanor, I make the following
i On 14 November 1985 Respondent 's counsel submitted a motion to
reopen the record to receive an affidavit , with attachments, of Delesia
Snider, Respondent's director of personnel The affidavit, dated 5 No-
vember 1985, purports to establish that on Ii January 1985 Snider re-
ceived evidence that a majority of the unit employees no longer desired
to be represented by the Union Respondent 's motion is denied As the
Board pointed out in K-C Machine Co, 268 NLRB 1474 In 3 (1984)•
In a motion to reopen the record , the movant must state briefly "the
additional evidence sought to be adduced , why it was not presented
previously, and that, if adduced and credited, it would require a dif-
ferent result Only newly discovered evidence, evidence which has
become available only since the close of hearing, or evidence which
the Board believes should have been taken at the hearing will be
taken at any further hearing " National Labor Relations Board Rules
and Regulations, Sec 102 48(d)(1)
See also Dirt Digger, 274 NLRB 1024 (1985), Penn Yan Express, 274
NLRB 449 (1985), and Benchmark Industries, 270 NLRB 22 (1983). In
the instant case , both the motion and the affidavit sought to be intro-
duced establish that the evidence was known to Respondent 9 months
prior to the hearing, thus precluding any contention that the evidence is
newly discovered Moreover, Respondent's motion fails to offer any ex-
planation for its failure to present this evidence at the hearing Indeed,
Respondent admitted the Union's representative status in its answer, Re-
Continued
279 NLRB No. 9
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent is an Ohio corporation engaged at Colum-
bus, Ohio, in the operation of a motel and restaurant. Ju-
risdiction is not in dispute. The complaint alleges, Re-
spondent admits, and I find and conclude that Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges , Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
On 14 March 1983 the Union was certified as the ex-
clusive collective-bargaining representative of Respond-
ent's employees in the following unit which is appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All maids, housemen, laundry employees, mainte-
nance employees and bellmen employed by Hilton
Inn North at its hotel facilities located at 7007
North High Street, Columbus, Ohio, excluding res-
taurant employees, lounge employees, kitchen em-
ployees, front desk employees, office clerical em-
ployees, and all other employees, and all guards,
professional employees and supervisors as defined in
the Act.
The Union continues as the employees' representative.
B. The Negotiations
Negotiations began in the spring of 1983. Steven
Skaggs, the Union's vice president and business agent,
was the Union's principal spokesman; on occasion
Robert Fiascone, a national organizer and president of
Local 70, and Dale Stormer, International vice president,
also participated in negotiations. Respondent was repre-
sented by Harold Burchett, a nonlawyer labor relations
consultant. Burchett was empowered to negotiate on Re-
spondent's behalf; however, any contract reached would
be signed by Dale Cochran, Respondent's owner. Coch-
ran did not participate in any of the negotiations.
By November 1983 the parties had met 13 times and
reached substantial but not final agreement . On 19 No-
vember 1983 Respondent submitted a final offer to the
Union, a 6-year agreement which included union security
and dues checkoff. On 23 November 1983 Skaggs re-
sponded to the final proposal, indicating possible agree-
spondent has never contended that it withdrew recognition from the
Union and Snider made no reference to the alleged evidence of employee
disaffection when she testified Finally, I note that Snider's affidavit
would not have been admissible even if it had been offered at the hearing
and would , at this juncture , carry little or no probative weight See, for
example, Malta Construction Co., 276 NLRB 1494 (1985), and Valley West
Welding, 265 NLRB 1596 (1982)
ment if problems in the seniority, insurance, and room
cleaning incentive bonus provisions could be ironed out.
On 6 December 1983 Respondent's director of person-
nel, Delesia Snider, sent the Union a letter enclosing
"Work Environment Practices [which] have been estab-
lished at the Hilton Inn North to ensure a uniform prac-
tice of progressive discipline for all of our employees."
Snider's cover letter did not purport to add the work en-
vironment practices to Respondent's final offer and did
not ask to bargain with respect to their implementation.
They became effective on the first day of January 1984.
The Union's problems with Respondent's final offer
were not resolved and, on 18 February 1984, Burchett
wrote Skaggs. Setting forth a number of reasons, includ-
ing the hotel's weakening economic situation, the
Union's failure to present its offer for a ratification vote,
and the cancellation of a meeting, Burchett stated, "The
company's final offer has been withdrawn effective
2/18/84." He indicated a willingness to continue bargain-
ing.
On 27 February 1984 Stormer met with Burchett at a
restaurant called the Whaling Station. At this meeting,
Respondent raised several new issues. Respondent pro-
posed that: (1) the Union agree that all grievances and
unfair labor practice charges would be cleared through
Stormer and discussed with Burchett and Cochran prior
to being filed; (2) the Union agree to refer business to
Respondent from political organizations and other
unions; (3) the Union agree not to seek representation of
any other classification of Respondent's employees
during the term of the agreement; and (4) the Union
agree to assist the Respondent in securing loans at 8 per-
cent or less and to identify a source of such a loan prior
to the signing of the collective-bargaining agreement.
On 4 April 1984 Skaggs and Burchett met at a local
restaurant where Burchett presented a three-page docu-
ment (G.C. Exhs. 9(a)-(c)). The first page was headed
"Letter of Agreement" and reiterated the Whaling Sta-
tion issues. The second began, "PARTIES AGREE to
modify the contract given to the Union in November
1983 as follows . . . ." That page contained approxi-
mately 12 modifications or additions in such matters as
the effective dates (changing the effective dates to
"3/1/84 thru 1/31/90"), the management-rights clause,
the seniority and layoff provisions, the vacation sched-
ule, and the room incentive rate. Finally, included in the
documents presented by Burchett was a new wage
schedule listing wage increases to be effective on 1 May
of each year.2 Skaggs rejected Burchett's proposed letter
2 On cross-examination , while explaining references in his pretrial affi-
davit (not in evidence), Burchett contended that G C Exhs 9(a)-(c),
which Skaggs claimed to have received on 4 April 1984, was actually a
document mailed by Burchett to Skaggs on 7 September 1984, after a
meeting of 29 August 1984, discussed infra On the basis of both demean-
or and probability, I credit Skaggs' testimony that he received it on 4
April The dates used in G.C Exhs 9(a)-(c) are consistent with an offer
made in April 1984 Moreover, in evidence as G C Exhs 6(a)-(c), is an-
other three-page document from Burchett to Skaggs That document in-
cludes a cover memo on Burchett's stationery dated "September 7, 1984"
and corrected cover and signature pages to the contract G C Exhs
6(a)-(c), not G C Exhs 9(a)-(c), I find, is the document which Burchett
sent Skaggs on 7 September 1984
HILTON INN NORTH
of agreement and modifications, pointing out that the
parties already had a grievance and arbitration proce-
dure, thus negotiating the necessity to include the pro-
posed language about prior clearance. He also pointed
out that the Union could not guarantee loans to Re-
spondent. The Whaling Station issues , he testified, were
intended as mere generalities , things the Union would
seek to do for Respondent, rather than as contractual
guarantees by the Union.
Skaggs and Burchett met again on 21 May 1984. On
the following day, Skaggs wrote Burchett a letter setting
forth six proposals for management to review. These in-
cluded a 6-year term of agreement, wages as proposed
by Burchett, a change in the room incentive payments, a
union agreement not to solicit employees in the food and
beverage department for 2 years, an annual reopener at
management 's option in the event that business condi-
tions prohibited management from granting scheduled
annual wage increases, and an agreement by the Union
to solicit business from labor and political organizations
for Respondent.
Thereafter, although there were no formal meetings
between Burchett and Skaggs concerning Respondent,
they did meet at various times with respect to other em-
ployers. On those occasions, there was discussion of their
negotiations for Hilton Inn North during which Skaggs
repeatedly told Burchett that the Union could not guar-
antee loans or any specific amount of business referrals.
In the course of these meetings, Skaggs repeatedly re-
quested that Burchett give him an update of Respond-
ent's present position on the negotiations to take back to
Fiascone and the employees in an effort to resolve their
differences.
On 23 August 1984 Burchett and Skaggs met again
and Burchett gave Skaggs a complete contract package
at the top of which was typed "Updated As of 6/20/84."
This document, on its face a contract for a term from
"July 1, 1984 through June 30, 1990," included union se-
curity and dues checkoff and the contract modifications
and wages proposed by Burchett to Skaggs on 4 April
1984. The contract did not include any reference to the
Whaling Station issues. Burchett contended that the
"6/20/84 Update" was merely an internal working com-
pany document which he had furnished to Skaggs solely
because Skaggs had claimed to be lacking a copy of the
proposals. According to Skaggs, however, Burchett was
responding to Skaggs' request for an update of the Com-
pany's current position and Burchett expressly stated to
Skaggs that this was such a position, one which Burchett
wished Skaggs to review and respond to. Burchett's tes-
timony in this respect is inconsistent with the document
itself, especially the revised effective dates contained
therein, and appeared contrived; I credit Skaggs, whose
credibility offered testimony was corroborated by the ap-
pearance of the document.
On 23 August 1984 following submission of the
"6/20/84 Update," Skaggs and Burchett set a meeting
for 29 August 1984. When they met on that date, accord-
ing to Skaggs' testimony, which I credit, Stormer told
Burchett that the Union had decided to accept Respond-
ent's offer. Burchett replied, "Oh really." Skaggs left the
meeting briefly to photocopy the agreement and re-
47
turned with six signed copies. He asked that Burchett
have Cochran sign and return them as soon as possible.
At this point, Burchett said something to the effect that
"Well, I guess we've got a contract."3
In a telephone conversation, following the meeting of
29 August 1984, Burchett told Skaggs that there were ty-
pographical errors in the contract. Skaggs asked Bur-
chett to retype the offending pages and agreed to resign
them. On 10 September 1984 Skaggs received a memo
from Burchett, dated "September 7, 1984," to which was
attached new cover and signature pages and a new page
one, each correctly stating the Union's name . Burchett's
memo requested that Skaggs resign the agreement. (G.C.
Exhs 6(a)-(c).) On 11 September 1984 Skaggs signed
and returned the corrected signature page together with
a request that Cochran similarly sign it. Cochran did not.
Instead, Burchett called Skaggs again. He told Skaggs,
"Oh, by the way, Steve, we did not address the Whaling
Station issues." Skaggs protested that those issues were
dead, that they had not been part of Respondent's updat-
ed proposal. Burchett told Skaggs that there was nothing
for Cochran to sign until those issues were addressed and
taken care of.4
Burchett and Stormer met next on 19 November 1984.
Delesia Snider was also in attendance. Burchett and
Stormer discussed an agenda prepared by Burchett
which reiterated and expanded on the Whaling Station
issues and added one new issue. Stormer told Burchett
that the Union could agree to Respondent's proposal that
all grievances and unfair labor practices be cleared
through higher company and union personnel prior to
filing; he objected to Burchett's demands that the Union
guarantee a specific level of referred business to Re-
spondent during the life of the contract, and commit to
securing a $10 million loan for Respondent within the
calendar year. Stormer also objected to the demand that
the Union not seek to represent other employees at Re-
spondent's facility and to a new proposal that manage-
ment retain the right to implement an incentive
work/pay plan. These were the only issues discussed.
No formal meetings were held after 19 November
1984 until late spring of 1985. During that period, there
were telephone communications between Skaggs and
Burchett wherein Skaggs repeatedly reiterated the
Union's objections to Respondent's demands of guaran-
teed business referrals and loans from or through the
Union.
In late April, Skaggs and Burchett met to discuss, and
agreed on, implementing new wage rates for certain unit
employees. At that time, they also discussed the 23
3 Burchett's testimony, to the effect that he told Skaggs, "Even though
you have signed that contract, the offer has been withdrawn," was
self-serving, implausible, and inconsistent with both the complete docu-
ment tendered to the Union on 23 August 1984 and with Burchett's sub-
sequent actions, submitting corrected cover and signature pages to
Skaggs, with a request that Skaggs resign the signature page
' Burchett testified that he made reference to the Whaling Station
issues on 29 August I believe, however, as Skaggs testified, that Burchett
did not mention them until the above-described telephone conversation I
note that Burchett made no reference to these issues in his first telephone
conversation following 29 August or in the corrections or memo of 7
September
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 1984 contract document (the "6/20/84 Update")
including changing the dates set forth in it; Burchett did
not indicate that anything else was involved or on the
table. They agreed to a further meeting, which was held
on 1 May 1985 . In the course of that meeting , Skaggs
and Burchett went over Burchett's typed agenda for the
19 November 1984 meeting, previously discussed by Bur-
chett with both Stormer and Skaggs. According to
Skaggs' testimony, as corroborated by notes written by
Burchett on the agenda, the Union agreed to include the
modifications of the grievance procedure in the contract
as proposed by Respondent and Respondent dropped its
demands for specific commitments from the Union for
business referrals and loans. Respondent also dropped the
proposal that management retain the right to implement
an incentive work/pay plan. Burchett then wrote out a
statement of where the parties were in negotiations and
gave a copy of that statement to Skaggs. In that hand-
written statement of position, Burchett reiterated the
agreements made with respect to the 19 November 1984
agenda, stating:
4. Co Drops language on memo (side to contract
11-19-84) RE:
A. Union guaranteeing $200,000 annually to
Hilton-Union Referrals. Company Drops
B. Union providing loan of $10 million to Com-
pany for expansion or refinancing total projects.
Company Drops
C. Co Drops paragraph on requiring present &
future employees to particpate in incentive plan, it's
covered in appendix A.
5. -Cochran wants to go through contract to
give Hal O.K . on language before finalizing total
contract, and review the memorandum and any
changes, additions or omissions.
7. Company will prepare an updated revision of
Appendix "A" to reflect changes in hiring rates etc
for Union to approve.
The only open item was Respondent's insistence that the
Union agree not to seek to represent any other classifica-
tions of Respondent's employees for the 6-year life of the
agreement.
Skaggs then got Fiascone's approval of the entire
agreement, including the restriction on organizing other
employees and, on 2 May 1985, called Burchett. He told
Burchett that everything "was a go" and asked that Bur-
chett go ahead and type up the agreement for signing.
Burchett replied, "Well, Mr. Cochran is going to review
the language and I'm going to get some updates on the
dates, and I've got to sit down with Delesia [Snider] and
go through it." Repeatedly thereafter, Skaggs requested,
to no avail, that Burchett prepare the final agreement for
signing, as was Burchett's practice.
On 10 May Skaggs and Burchett met in the presence
of a National Labor Relations Board agent to discuss set-
tlement of an unrelated unfair labor practice charge. In
the course of that meeting the Board' s agent Ray Neusch
stated, "I hear that you all have got an agreement now."
Burchett replied, "Well, we have an agreement, but Mr.
Cochran is still going to check the-read the language
over." Skaggs asked , "The man had had the contract for
two years. Why hasn't he read it before now?" Neusch
asked whether there were any open items. Skaggs repeat-
ed that there were none as far as the Union was con-
cerned and Burchett said that there were "none that he
could think of, but Mr. Cochran still wanted to review
the language , and they had to update the dates." Neusch
asked whether there was anything to stop the signing of
the agreement if Cochran entered the room right then
and Burchett replied , "Well, if he's read it , I guess noth-
ing."5
On 6 June 1985 Burchett called Skaggs and asked to
set a meeting for 19 June 1985 . Skaggs replied that Bur-
chett had long enough and that if the Union did not have
a signed contract by the following Friday, it would file
an unfair labor practice charge. Burchett replied that
that would just prolong the matter and that he had not
yet had a chance to meet with Cochran; he did not know
whether Cochran had reviewed the language. According
to the testimony of Skaggs, which I credit, there was no
agreement to meet on 19 June 1985.6
The unfair labor practice charge underlying this com-
plaint was filed by the Union on 14 June 1985. On 19
June Skaggs went to the hotel to meet with employees
and waited outside the hotel for them for an hour. After
that period of time, the employees came out and told
him that Burchett was waiting for him inside the hotel.
Skaggs did not meet with Burchett that day. Several
days later, Burchett called him and stated that Respond-
ent had another contract proposal which it had intended
to present on 19 June. Skaggs protested that they had a
complete agreement but asked what changes Burchett
was now seeking. Burchett refused to tell him. Skaggs
stated that the Union would pursue its rights through the
National Labor Relations Board.
The contract proposal which Burchett claims Re-
spondent intended to submit to the Union on 19 June is
substantially identical to the contract proposal "Updated
as of 6/20/84" as signed by Skaggs on 11 September
1984 with the modifications subsequently agreed to on 19
November 1984 and 1 and 2 May 1985. However, it
eliminates both union security and dues checkoff and
adds polygraph testing to the management rights.
C. Analysis and Conclusions
The General Counsel contends that the parties reached
a complete agreement on 2 May 1985 which included
Respondent's 19 November 1983 "final" proposal as
amended by agreement in subsequent bargaining. Re-
spondent's principal argument is that the 19 November
1983 offer had been withdrawn and never reinstated. Re-
spondent further argues that the "Work Environment
s The foregoing is taken from the credited and uncontradicted testimo-
ny of Skaggs
That Skaggs may have been late for some meeting early in the nego-
tiations is immaterial to the question of whether or not he failed to attend
a scheduled meeting on 19 June 1985 Skaggs believed they had reached
a complete agreement , there was no reason for him to agree to hold a
bargaining session on 19 June, and I do not believe that he made any
such commitment
HILTON INN NORTH
Practices" were still on the table and that Respondent's
owner, Cochran, had retained the right to alter any
agreement reached by the parties' negotiators.
Respondent's contentions are without merit. The offer
which Respondent withdrew on 18 February 1984 was
reintroduced and repeatedly reaffirmed by Burchett.
Thus, on 4 April 1984, Burchett proposed a number of
modifications to the 19 November 1983 offer, implicit in
such a proposal is retention on the table of those portions
of the earlier proposal to which no modifications were
proposed. Even more explicit was Burchett's 29 August
1984 presentation of Respondent's proposal "Updated as
of 6/20/84" and the bargaining which followed that
presentation. The Union accepted and signed off on that
entire offer.7 There can be no doubt that the events from
29 August through 11 September 1984, including Bur-
chett's request that Skaggs resign the agreement, estab-
lish the continued viability of Respondent's offer of No-
vember 1983, as amended by its proposals of 4 April
1984. Only Burchett's resurrection of the Whaling Sta-
tion issues defeated final agreement on 11 September
1984. Respondent's offer remained viable when Skaggs
and Burchett discussed amending the contract's dates in
late April 19858 and when they negotiated and reached
final agreement on the Whaling Station issues on 2 May
1985.9 I note, in particular, Burchett's own handwritten
and oral statements about the status of the negotiations at
the conclusion of the May 1 meeting, which refer to a
review of the language by Respondent's owner "before
finalizing total contract" and to the updating of dates
and rates in the contract and its appendix. Finally, I note
the meeting of 10 May 1985 and Burchett's acknowl-
edgement therein that the parties had reached a complete
agreement which could be signed as soon as Cochran re-
viewed the language.
Review of the contract language by Respondent's
owner was not, as Respondent contends, a right to veto
the agreements reached by the negotiators and to substi-
tute wholly new demands. Burchett was Respondent's
negotiator, Cochran's review of the agreement reached
by Burchett was, as Burchett himself acknowledged, in
the nature of proofreading. Respondent never retained
the right to have final agreement subject to Cochran's
whim at the conclusion of negotiations; to impose such
review now would forever impede agreement.
As noted, Respondent also contends that the parties
had not resolved the issue of the "Work Environment
Practices." Those practices were never part of the nego-
tiations; they were implemented by Respondent on 1 Jan-
uary 1984, after notice to, and without any objection
from, the Union.
Since at least September 1984, and arguably before,
Respondent has played a "cat and mouse" game with the
Union, imposing new obstacles each time final agreement
' The Union having signed the entire agreement, Respondent's argu-
ment that the Union had never signified its agreement to each article in
its usual way by initialing them must fall
8 Arno Moccasin Co, 274 NLRB 1515 (1985), John Morrell & Co, 268
NLRB 304 (1983), Pepsi Cola Bottling Co, 251 NLRB 187 (1980), enfd
659 F 2d 87 (8th Cir 1981)
9 Respondent's brief acknowledges final agreement on the Whaling
Station issues on about May 1, 1985 "
49
appeared close . That game now ends. See Georgia Kraft
Co., 258 NLRB 908, 911 ( 1981). Final agreement was
reached on a complete collective-bargaining agreement
on 2 May 1985, the Union demanded that Respondent
put that agreement in writing and execute it, as Respond-
ent was clearly obligated to do, Respondent has refused
to do so, and its refusal violates Section 8 (a)(5) and (1) of
the Act. H. J. Heinz v. NLRB, 311 U.S. 514 (1941); Con-
sumat Systems, 273 NLRB 410 (1985); Georgia Kraft,
supra. 10
CONCLUSIONS OF LAW
1. The Union is now and at all times material has been
the exclusive representative for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act of the employees of the Respondent in the following
appropriate unit:
All maids, housemen, laundry employees, mainte-
nance employees and bellman employed by Hilton
Inn North at its hotel facilities located at 7007
North High Street, Columbus, Ohio, excluding res-
taurant employees, lounge employees, kitchen em-
ployees, front desk employees, office clerical em-
ployees, and all other employees, and all guards,
professional employees and supervisors as defined in
the Act.
2. Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act
by refusing, on and after 2 May 1985, to assist the Union
in reducing to writing, executing, and implementing the
collective-bargaining agreement reached by Respondent
and the Union on 2 May 1985.
3. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(5) and
(1) of the Act, I recommend that Respondent be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully refused and
continues to refuse to assist the Union in reducing the
ageement reached by the parties to writing and to exe-
cute and implement that agreement, I shall recommend
that it be ordered to reduce that agreement to writing
and execute same by signing. The agreeement will be ret-
roactive to 2 May 1985, the date agreement was reached
and Respondent refused to execute same. Respondent
will also be ordered to reimburse the unit employees for
any increase in wages or benefits owed thereunder as
prescribed in Ogle Protection Service, 183 NLRB 682
(1970), plus interest as computed in Florida Steel Corp.,
231 NLRB 651 (1977).
10 I note in this respect that it was Burchett's practice to undertake
final preparation of collective-bargaining agreements he negotiated
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel additionally seeks a visitatorial
clause to be included in the Order to ensure compliance
with the Board's Order. As defined by the General
Counsel, "a visitorial clause permits an agency to exam-
ine the books and records of a Respondent and to take
statements from its officers and employees and others for
the purpose of determining or securing compliance with
a court 's judgment ." I believe that the General Counsel
is entitled to such remedial provisions as may be neces-
sary to guarantee compliance with whatever the Board
and/or the courts order in cases such as these . Accord-
ingly, I shall recommend inclusion of a visitatorial clause
in the remedy and Order.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The Respondent, Hilton Inn North, Columbus, Ohio,
its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to reduce to writing , execute, and imple-
ment the collective-bargaining agreement reached be-
tween it and the Union on 2 May 1985, or in any other
manner refusing to bargain in good faith with the Union
as the exclusive collective-bargaining representative of
the employees in the above-described unit.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reduce to writing and duly execute the collective-
bargaining agreement reached by the parties on 2 May
1985.
(b) Give retroactive effect to the collective -bargaining
agreement referred to above , and reimburse its employ-
ees for any increased wages or benefits owed thereunder
as described in the remedy section of this decision.
(c) Preserve and, on 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order. For the purpose of determining or
securing compliance with this Order, the Board or any
of its duly authorized representatives may obtain discov-
ery from Respondent , its officers, agents , successors, or
assigns , or any other person having knowledge concern-
ing any compliance matter, in the manner provided by
the Federal Rules of Civil Procedures. Such discovery
shall be conducted under the supervision of the United
States court of appeals enforcing this Order and may be
had upon any matter reasonably related to compliance
with this Order, as enforced by the court.
11 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(d) Post at its premises in Columbus, Ohio, copies of
the attached notice marked "Appendix." 12 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 Re-
spondent has taken to comply.
12 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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively with
Hotel Employees and Restaurant Employees Local
Union No. 70, Hotel Employees and Restaurant Employ-
ees International Union, AFL-CIO as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
All maids, housemen , laundry employees , mainte-
nance employes and bellmen employed by Hilton
Inn North at its hotel facilities located at 7007
North High Street, Columbus , Ohio, excluding res-
taurant employees , lounge employees , kitchen em-
ployees , front desk employees , office clerical em-
ployees , and all other employees, and all guards,
professional employees and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
HILTON INN NORTH 51
WE WILL reduce to writing and execute the collective- cute and implement the collective-bargaining agreement
bargaining agreement reached between Hilton Inn North as of 2 May 1985, with interest.
and the Union on 2 May 1985 and will make this agree-
ment retroactive to that date. HILTON INN NORTH
WE WILL make our employees whole for any loss of
wages or benefits which resulted from our failure to exe-