Operating Engineers Local 30 (Hyatt Management)

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 205 (N.L.R.B. 1986)

OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT)
Local Union No. 30 and 30A, International Union of
Operating Engineers, AFL-CIO and Hyatt
Management Corporation of New York, Inc.
Case 29-CB-5776
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 31 January 1986 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed a brief in re-
sponse to the Respondent's exceptions.
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 and to adopt the recommended Order
as modified.I
We agree with the judge that the Respondent
violated Section 8(b)(3) of the Act by refusing to
execute the contract which it had negotiated with
the Company. We find, however, contrary to the
judge, that the parties should execute the contract
only for the duration of the contract's term.
The contract agreed upon by the parties was
supposed to commence as of 1 January 1984 and
was to expire on 31 December 1986. The contract
provided for wage increases for the employees in
exchange for increased management rights provi-
sions . The judge reasoned that because a substantial
portion of the agreed term elapsed during the
pendency of these proceedings, the contract's term
should be extended so that the contract would
expire on a date 3 years from the date that the Re-
spondent executes the contract. We disagree. While
the Board has the authority to enforce the terms of
a negotiated agreement, we cannot compel a party
to agree to contractual provisions not contained in
the negotiated agreement. H. K. Porter Co. v.
NLRB, 397 U.S. 99 (1970). That would be the case
here if we adopted the judge's recommended
remedy and Order extending the term of the par-
ties' contract beyond its original expiration date.
The Respondent excepts to the judge's remedy,
asserting that if ordered to execute the contract,
the contract must be made retroactive to its origi-
nally intended date of execution. This, it insists, is
the only way Respondent can comply with H. K.
1 We find that awarding the Charging Party attorney's fees and costs is
unwarranted. Accordingly , the Charging Party's motion for attorney's
fees and costs is denied
205
Porter. The Respondent's position, however, ig-
nores the realities of the situation. While the em-
ployees could, of course, be given the wage in-
creases agreed upon, there is no way retroactively
to grant the Charging Party the benefits of such
provisions as the management-rights clause-pre-
sumably part of the quid pro quo for giving the
wage increases.
The Charging Party, on the other hand, asserts
that in order for it to obtain the 3-year contract for
which it bargained we must extend the contract to
run for 3 years from the date on which the Re-
spondent executes the agreement.2 This remedy,
however, would give the parties contractual terms
for which they never bargained , for it would apply
particular wages, terms, and conditions of employ-
ment for a period of time different from that during
which the parties intended those wages, terms, and
conditions to apply. Whether the parties would
have agreed to such conditions for the new
period-a period with economic conditions and
outlooks different from those existing during the
original period-is something we cannot say.
Therefore, under H. K Porter we cannot extend
the contract.
Hence, we are in a position where the only prac-
tical remedy that we have power to give is to
order that the Respondent execute the contract
agreed upon to run until the contract's expiration
date. We realize that under our remedy and Order
the Charging Party will have to forgo the benefits
of its newly obtained management rights provisions
for the period of the contract which has already
expired. Likewise the unit employees will have to
forgo the increased wages they would have re-
ceived during the same period. Unfortunately, this
is a situation in which, because of the Respondent's
failure to execute the contract and live up to its
side of the parties' accord reached in the give and
take of bargaining, we are precluded from fashion-
ing a remedy that would provide the Charging
Party and its employees the benefits of the negoti-
ated agreement for the period of the contract that
has already passed. Consequently, we will order
the Respondent to execute the agreed-upon con-
tract, which will run from the date of execution to
the expiration date contained in the agreement.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
2 The cases on which the Charging Party relies, Borg Compressed Steel
Corp, 165 NLRB 394 (1967), and Schill Steel Products, 161 NLRB 939
(1966), both predated H. K. Porter
280 NLRB No. 18
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, Local Union No. 30 and 30A, Interna-
tional Union of Operating Engineers, AFL-CIO,
its officers, agents, and representatives, shall take
the action set forth in the Order as modified.
1. Delete paragraph 2(b) and reletter the subse-
quent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To MEMBERS
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 bargain collectively with
Hyatt Management Corporation of New York, Inc.
by refusing to sign the collective-bargaining agree-
ment agreed to between Hyatt Management Cor-
poration of New York, Inc. and us on 20 March
1984.
WE WILL NOT in any like or related manner fail
to comply with our obligation to bargain with
Hyatt Management Corporation of New York, Inc.
WE WILL on request of Hyatt Management Cor-
poration of New York, Inc. execute the aforemen-
tioned collective-bargaining agreement.
LOCAL UNION No. 30 AND 30A,
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS , AFL-CIO
Richard Auslander, Esq., for the General Counsel.
Adam Ira Klein, Esq. (Mark Steven Soroka, Esq&), of
New York, New York, for the Respondent.
Lawrence Levien, Esq. (Akin, Gump, Strauss, Haver &
Feld, Esq&), of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard by me at Brooklyn, New York, on
15 May 1985 and at New York, New York, on 18 Sep-
tember 1985. The charge was filed by Hyatt Manage-
ment Corporation of New York, Inc. (Hyatt) and served
on the Respondent, Local Union No. 30 and 30A, Inter-
national Union of Operating Engineers, AFL-CIO (the
Union) on 2 October 1984.1 On 30 November the Re-
r All dates hereinafter mentioned are in 1984 except as otherwise
stated.
gional Director issued a complaint alleging that the
Union had violated Section 8(bX3) of the National Labor
Relations Act (the Act) by reason of its refusal to exe-
cute a collective-bargaining agreement which it had ne-
gotiated with Hyatt. The Union interposed an answer
which essentially admitted allegations that in December
1983 and in February and March 1984 Hyatt and the
Union met and negotiated a collective-bargaining agree-
ment to supersede an existing agreement which by its
terms expired 31 December 1983, and that on 20 March
1984 Hyatt and the Union reached full and complete
agreement on terms to be incorporated in a new agree-
ment. However, the Union alleged affirmatively that the
agreement was oral and subject to the ratification of the
employees in the bargaining unit and denied allegations
that since 26 March 1984 Hyatt has been requesting, and
since 2 April 1984 the Union has been refusing, to exe-
cute a written contract which embodied the agreed
terms and conditions of employment. The Union also al-
leged as an affirmative defense that the charge is barred
by Section 10(b) of the Act.
The parties were afforded full opportunity to be heard;
to call, examine, and cross-examine witnesses; and to in-
troduce relevant evidence. Posthearing briefs have been
filed on behalf of the General Counsel, the Charging
Party, and the Respondent.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Charging Party,
and the Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
There is no issue regarding jurisdiction, the Union
having admitted in its answer that at the material times
herein Hyatt was and is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union was and is a labor organiza-
tion within the meaning of Section 2(5) of the Act, and
its counsel having stipulated at the hearing that Hyatt, a
New York corporation, derives annual income from
building management services in excess of $500,000 and
purchases materials and supplies valued in excess of
$50,000 in interstate commerce for delivery to it at the
Nassau Veterans Memorial Coliseum in Uniondale,
Nassau County, New York.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Backgound
Hyatt has been the manager and operator of the
Nassau Veterans Memorial Coliseum, a public assembly
facility for entertainment and ticketed events, since
1980.2 It operates under a 30-year lease from the county
2 The matters narrated without evidentiary comment are those facts
found by me on the basis of adnussions in the answer, data contained in
the exhibits , stipulations between or concessions by counsel , undisputed
or uncontradicted testimony and, in instances where conflicts in the testi-
mony did not warrant discussion , the testimony which I have credited.
OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT)
of Nassau. Its negotiations with the Union were for a
contract to supersede an existing contract between them
dated 1 July 1982, which by its terms expired 31 Decem-
ber 1983. That agreement defined the covered collective-
bargaining unit as follows:
Chief Engineers, 1st Assistant Engineer, Watch En-
gineer , Relief Engineer, Maintenance Men and Fire-
men, excluding Clerical employees, supervisory em-
ployees, professional employees, production em-
ployees, watchmen and guards as defined in the
Labor Management Relations Act of 1947, em-
ployed by the Employer at the plant of the Em-
ployer at Nassau County Coliseum and at such
other locations to which the Employer's plant may
be moved within the territorial jurisdiction of the
Union.
Upon the conclusion of the negotiations, Hyatt's coun-
sel, Laurence J. Hoffman, prepared a written contract
and arranged for it to be forwarded for execution to
John T. Ahern, the Union's business agent, under cover
letter dated 27 March. The covering letter referred to
"two copies of the Agreement reached during our nego-
tiations on March 20, 1984," and directed Ahern's atten-
tion to a change in the contract assertedly made pursuant
to an agreement with William Treacy, the Union's senior
business agent . The documents were signed by David O.
Skinner, Hyatt's president. This case resulted from
Ahern's refusal to sign and return the agreement.
B. History of the Negotiations
Skinner and Hoffman testified, credibly, that the nego-
tiations were conducted in three sessions which took
place at the Coliseum on 13 December 1983 and on 14
February and 20 March 1984. Hyatt was represented at
all the sessions by Skinner, Hoffman, and E. B. Sumerlin
Jr., the general manager of the Coliseum, and the Union
was represented by Ahern and by Patrick Snoddy, the
shop steward. Snoddy consulted frequently with Ahern
but Ahern did all the talking.
The first session lasted almost 2 hours. Hyatt presented
a document which Hoffman termed a "total rewrite of
the prior contract." It was assertedly based on Hyatt's 3
years of experience in managing the Coliseum and deal-
ing with the Union and 17 other unions involved in the
operation of the Coliseum. Hyatt asserted that the
changes it proposed were needed to improve operational
efficiency so that the Coliseum could meet increased na-
tional and local competition, which was drawing events
away from the Coliseum. Hyatt also stated that it was
seeking to develop a standardized contract as a basic
document for use with all the unions, which could be
modified to meet specific requirements of each union.
The proposals which the Union presented at this first
session fit on a single sheet of paper. Hyatt presented a
complete contract. Consequently, the procedure which
was adopted for the negotiations was to review the con-
tract section by section, Skinner and Hoffman explaining
proposed changes from the expired contract as they
went along. The entire first session was devoted to a
207
general review of the proposed contract, without agree-
ment on any particular terms.
Notwithstanding the testimony of Skinner and Hoff-
man to the foregoing effect, Ahern and Snoddy testified
that the meeting scheduled for 13 December was not ac-
tually held, having been canceled, and that only two ne-
gotiating sessions were held. Their credibility was not
enhanced by that testimony, for Respondent's answer
admits that three meetings were held , in December 1983
and February and March 1984 and Respondent 's counsel
concedes as much in his posthearing brief, asserting that,
"The prior contract due to expire on December 31, 1983,
the parties began negotiations for a new agreement." (Tr.
155.) That counsel is not referring simply to Ahern's tes-
timony about sending out a notice is apparent from his
assertion, in taking cognizance of the conflict in testimo-
ny about the December meeting, that there was "a dis-
pute between the witnesses as to when the negotiations
began." I have little difficulty crediting Skinner and
Hoffman on this point, not only because I found them
more credible generally, but for the reasons that a letter
to Ahern by Hoffman dated shortly thereafter contains a
specific reference to a "conversation" between them and
there is no evidence of any telephone conversation, Hoff-
man produced his memorandum of the December meet-
ing, and the draft contract proposal bears date 13 De-
cember 1983.
The Respondent's counsel argues, in his posthearing
brief, that the meeting of 13 December 1983 was of mini-
mal importance in any event, inasmuch as Hoffman testi-
fied that no agreements were reached at the meeting.
The point, however, is that the process of negotiation by
which the parties ultimately arrived at a collective-bar-
gaining agreement commenced with the presentation by
Hyatt, for the reasons stated, of a complete draft con-
tract for the Union's consideration, which the negotiators
reviewed section by section. Such a procedure may well
have led to the difficulty which thereafter arose, for
Ahern's testimony in effect is that the two parties came
away with different understandings of the impact which
particular agreements relating to specific sections might
have on other sections which were not explicitly modi-
fied. Thus, the workday was extended from 7 to 8 hours,
but no explicit modification was made in the provisions
governing benefit days, leaving the parties to argue
whether a day of funeral leave was meant to be 8 hours
or 7 hours. Hyatt takes the position that it pays only for
work done and that any section not explicitly modified
stands as written; Ahern argues that sensible construction
of the agreement requires conformance of sections not
specifically amended to those which were. At issue here
is whether the negotiations proceeded on the basis assert-
ed by Skinner and Hoffman or on the basis claimed by
Ahern.
At the February session, which lasted 2 hours, agree-
ment was reached on substantial portions of the contract.
Six or eight articles of the draft contract remained open
at the end of the session.
The final session, on 20 March, lasted from noontime
to about 7 o'clock. As of 6:30 p.m., when the Union,
after caucusing, accepted certain of Hyatt's proposals
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and made specific counterproposals with respect to other
matters, the open items were wages, contributions to an
apprentice training program , holiday pay, travel time,
sick leave , and an issue regarding the position of chief
engineer, which Hyatt considered superfluous and
wanted to abolish. Hyatt made a final proposal sometime
between 6:45 and 7 p.m. which the Union accepted. The
negotiators all shook hands and departed with the under-
standing that Hoffman would put the agreement in final
written form.3
While Skinner and Hoffman were at the Coliseum the
next morning for negotiations with another union, Skin-
ner received a telephone call from William F. Treacy,
the Union's senior business manager. Treacy was upset
that the apprentice training fund contribution had been
reduced to $2 per week and was dissatisfied with the res-
olution of the chief engineer issue (by abolishing the po-
sition but grandfathering the incumbent). Skinner told
Treacy that he felt that the negotiations had been fairly
conducted and that he would not consent to reopen
them, but if Treacy wanted to rearrange the financial
package without changing the overall figures, he would
consider it. They agreed to increase the apprentice fund
payment and reduce the agreed wage rate , leaving the
overall cost to Hyatt unchanged. Skinner told Treacy he
would have the change made in the contract and send it
to Ahern for signature . Hoffman was with Skinner and
heard his end of the conversation. When the telephone
call was concluded, Skinner instructed him to make the
change agreed on with Treacy when he prepared the
final contract. Treacy did not raise any other issues.
C. Analysis of the Evidence Respecting Events
Subsequent to the Negotiations
The preponderance of the credible evidence, both oral
and documentary, establishes a course of postnegotiation
contacts between the parties in which Skinner insisted on
return of the contract, executed, in the form in which it
had been prepared by Hoffman, while Ahern balked on
the ground that further face-to-face discussion was
needed to straighten out problems. Ahern characterized
the problems as "typos" but it is clear that he was look-
ing for changes of a substantive nature in the contract
that Hoffman had prepared and his position in these pro-
ceedings has been that the changes which he sought
were merely intended to conform Hoffman's contract to
the agreement they had reached on 20 March. His testi-
mony demonstrated that for the most part he was con-
cerned with contractual terms which had been left in the
form in which they had originally appeared in Hyatt's
proposed draft and which he contended should have
been changed to conform to modifications they had
made in other sections of the contract. However, Skin-
ner's contention that the agreement which came into
being was what resulted from the section-by-section
8 Hoffman testified that he "agreed" to prepare the contract; Ahern
testified that Hoffman "insisted" on preparing it, though the last two con-
tracts had been prepared by the Umon. I credit Hoffman's testimony, in
view of the apparent ready acquiescence on Ahern's part, Ahern's testi-
mony that he was extremely busy and away from his office much of the
time, and Ahern's failure to produce an alternate version of the contract
after asserting dissatisfaction with the one prepared by Hoffman
review of the draft proposal presented at the first session,
with modifications applicable only to the sections to
which they expressly related, is strongly corroborated by
the events which followed the conclusion of the negotia-
tions.
The final session had ended with the negotiators ex-
changing congratulations upon the completion of a suc-
cessful negotiation , but the Union 's subsequent behavior
indicates a belated awareness of, and dissatisfaction with,
ramifications of the method by which the contract had
been negotiated. I conclude that Ahern was basically
trying to reopen closed negotiations and avoid executing
the contract he had negotiated. This is apparent from
comparison between the explicit and straightforward tes-
timony by Skinner regarding his postnegotiation tele-
phone calls and conversations with Ahern and Ahern's
vague, uncertain, implausible and self-contradictory testi-
mony regarding them. It is impossible to be sure, from
Ahern's testimony, whether he claims, in the period fol-
lowing 20 March, to have been telling Skinner that there
was a problem with language in the contract, or with the
way in which the task of reducing their agreement to
legal terms had been performed, or with the manner in
which the terms themselves had been worked out or yet
remained to be worked out. The one-way flow of writ-
ten correspondence from Skinner to Ahern for 5 months
thereafter leaves no doubt in my mind which of the par-
ties was anxious to communicate , to move the contract
forward to execution, and to document, for use in future
litigation, the responsibility for failure to execute the
contract.
Hoffman sent Skinner the finalized agreement on 22
March along with a forwarding letter which was ad-
dressed to Ahern. Skinner made a correction in the con-
tract and on 27 March sent it to Ahern under cover
letter which Hoffman had prepared. Very shortly there-
after he began calling Ahern in order to get back a
signed copy. Ahern was not in any hurry. He failed to
respond to three telephone messages left by Skinner in
late March and April. On 4 May Skinner sent him a
mailgram:
On March 20, 1984 Hyatt Management Corp. of
New York and International Union of Operating
Engineers, Local 30, negotiated a new contract.
That new agreement was forwarded to you on
March 26, 1984. 1 have not received my signed
agreement. Please forward a signed copy of the
new agreement or advise me of any problems delay-
ing execution of the agreement.
On 9 May Ahern telephoned Skinner at his office in
Chicago. Their testimony as to what was said is in sharp
conflict. According to Ahern, it went as follows:
I told him there were a number of problems with
the contract.
Q. And did you get into detail at that point?
A. I told him that there was some typographical
errors in the benefit section. I told him that on
Schedule A an entire section had been left out. I
mentioned to him that the management rights were
OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT)
changed. And I indicated to him that there were
quite a few items. More than just one or two items;
that there was quite a few.
He told me that he would look into it and speak
to Mr. Hoffman and get back to me.
Q. Did there come a time when he got back to
you?
A. The next thing I remember, I recollect is a
telegram some time in June.
I find Ahern's testimony inherently implausible. He is
saying, in effect, that after bringing serious matters to
Skinner's attention, he placidly waited for approximately
6 weeks without making any further attempt to secure a
corrected contract, and would have waited even longer
had Skinner not gotten in touch with him. Skinner's tes-
timony demonstrates his greater anxiety to wrap the
matter up and leaves a strong impression that he was the
one who felt he was entitled to something that he was
not getting and was trying to do something about it.
Skinner's version of the conversation, entirely different
from Ahern's, is clearer , more straightforward and, I
find, more credible:
Q. And what, if anything, did he tell you at that
time?
A. He told me that he had taken the contract
back to the membership for ratification and it had
been voted down.
Q. What did you respond to that, if anything?
A. My response was that it was the first time I
had ever heard of any ratification being required on
the contract. In the previous negotiations with
Local 30, 30A, there was never any indication on
their part that there was ever a ratification required
of a contract nor during any of the negotiations for
this contract was there ever any conversation about
ratification of the contract.
Q. What did he respond to that, if anything?
A. Well, I am not sure if-I was the one doing
most of the speaking at that point in time . After I
told him that I was surprised that there was a vote
required and then he told me it had been voted
down-I suggested to him that we had spent many
hours negotiating the contract, it had been negotiat-
ed fairly. We were not prepared to re-enter negotia-
tions and I suggested to him that he return to the
membership and try a little harder to sell the con-
tract to them.
Q. Did he respond to that?
A. Yes, he said he would do that.
Skinner and Ahern agree that there ensued a lapse in
their communication with each other. Skinner testified
that the lapse occurred because Ahern was not respond-
ing to telephone messages being left at his office. Three
messages were left in late May and early June. While
Ahern disclaimed knowledge of all the telephone mes-
sages which Skinner testified he left for him, he does not
claim to have attempted to revive communication. On 21
June, Skinner sent Ahern a telegram (not a mailgram):
209
I have tried to reach you numerous times in the
past two weeks. To date I have not received a
return telephone call. We have important matters
that must be settled immediately. If I do not hear
from you by Monday, June 25, 1984, I will with-
draw our proposed contract and any offer of retro-
active wages.
This is the telegram Ahern referred to in the testimony
quoted above. Ahern telephoned Skinner on 22 June and,
again, there are two conflicting versions of the conversa-
tion which ensued. Skinner's version is as follows:
Q. What, if anything, did he tell you when he
called?
A. He told me that he had taken the contract
back to the membership and it had been ratified.
Ahern, on the other hand, testified as follows:
Q. You spoke to Mr. Skinner on June 22nd, what
was that conversation about? What did you discuss?
A. I requested a meeting. I told him that there
were a number of problems in the contract. That I
couldn't ratify it as they had sent it to me. That it
wasn't a problem with the wages but rather it was a
problem with language, it was a problem of omis-
sion where I still felt it was a problem of Schedule
A being let out and that there were several other
areas in the contract, that we wanted to meet and
get it straightened out with them.
Q. What did Mr. Skinner respond?
A. Well, David was very upset. David said that
he didn't [think] there had to be any changes made.
That he didn't want to meet with me. "Jack, you
know we have a good relationship but I'm really
getting annoyed with this." You know, "I want you
to sign it."
I told him that I knew he was in the Nassau Coli-
seum from time to time, negotiating with the other
unions. I said I'd be available at any time and I
wanted to get it settled. That's the way we left it.
Even Ahern's version leaves no doubt that Skinner
was consistently and insistently demanding execution and
return of the contract in the form in which it had been
prepared by Hoffman and that Ahern was making vague
statements about needed changes and the necessity for a
further meeting.
The testimony of Skinner and Ahern is in accord that
on 9 July Ahern left a telephone message with Skinner's
secretary. As usual, there is disagreement about the con-
tents of the message . Ahem testified that he told her to
tell Skinner that the Union was going to submit a written
copy of the agreement, or what they thought it was, if
he and Skinner could not meet, "but that mostly I
wanted to meet with him about the problems that we
had on the contract." Skinner's version was that Ahern
"left word that there were a couple of typos in the con-
tract and he would correct the typos and return the con-
tract to my office." I credit Skinner's version in part be-
cause Ahern's testimony is not supported by his subse-
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quent conduct . He did not send Skinner an alternate con-
tract and he did continue to request a further meeting
with Skinner.
Skinner and Ahern agree that in a telephone conversa-
tion they had on 20 August, Skinner again demanded
return of the agreement and Ahern again requested a
meeting to discuss problems with the contract. This time,
Ahern said there were a lot of "typos" and referred to
one in particular, which Skinner checked and found did
in fact exist. However, on this occasion Ahern went
beyond typographical errors and referred to other mat-
ters. For example, he testified that he told Skinner that
the chief engineer's job was a "guaranteed position." His
testimony in this respect contradicts other testimony
which he gave to the effect that in the negotiations he
and Skinner had agreed the fate of the position would be
left open for future negotiation. Skinner testified that he
again took the position that the terms had been agreed
upon and suggested that Ahern pencil in his corrections
and send them along. Ahern pleaded that he was too
busy to do this, whereupon Skinner imposed a deadline
(24 August), failing which he would withdraw the con-
tract altogether along with any offer of retroactivity.
On 7 September Skinner got something back-a
marked-up photocopy of the contract, unsigned, which
arrived at his office in an envelope without a covering
letter. Ahern testified that a letter accompanied the con-
tract. I am satisfied from his testimony that he did ar-
range for the contract to be sent back under cover letter,
dated 31 August 1984, in which he again requested a
meeting and made self-serving statements to the effect
that agreed changes were not reflected in the "proposed
final draft contract" and that "considerable change" had
been made in the negotiated economic package. At the
same time, I credit Skinner 's testimony that he never got
the letter. The document returned to Skinner bore a
number of notations and underlinings and there were
changes of a substantial nature , such as the ending times
of shifts. Skinner testified that the changes made by
Ahern would have had the effect of compelling Hyatt to
pay for meal periods and for daily overtime. The work-
day and workweek had been changed by Hyatt from 7
hours daily and 35 weekly to 8 and 40, respectively, in
the new contract, precisely to avoid paying for meal pe-
riods and daily overtime as it had previously existed with
the 7-hour day and 35-hour week. Other omissions and
insertions involved changes with respect to holidays,
overtime and double time, and sick days , restoring the
provisions of the expired contract which Hyatt had de-
leted in its proposed draft contract.
Skinner notified Hoffman of his receipt of the marked-
up photocopy on 10 September. Hoffman left a tele-
phone message for Ahern. It was not answered. Skinner
and Hoffman were in New York again on 11 September
and left four telephone messages at Ahern's office. Ahern
returned the calls at 5 o'clock and, according to Skinner,
manifested a complete disinclination to cooperate:
When he got on the phone, I told Jack I had re-
ceived the contract back from him unsigned, that he
was trying to change substantial parts of the con-
tract that we had negotiated , that I expected in my
hands on September the 12th at five o'clock a
signed contract or I was going to withdraw the
contract, our offer of retroactive wages and file
charges with the Board.
Jack's response to that was, "Well, if that is the
way you want it, fine" and he hung up.
The last communications between Skinner and Ahern
occurred when Ahern left a message that a meeting was
scheduled for 4 October with the Federal Mediation and
Conciliation Service to discuss the problems they were
having with the contract and Skinner directed his office
to send word that he would not attend.
Hyatt thus presented a relatively simple story to the
effect that it prepared a draft contract which was pre-
sented at the first negotiating session and which provided
the basis for the discussions which then ensued ; the draft
was considered paragraph by paragraph ; those para-
graphs which were immediately acceptable to the Union
were treated as adopted and the parties passed on to
those which posed problems. When the negotiations
were concluded , language on a couple of items was left
to be worked out by Hoffman when he drew the con-
tract . The Union's position , essentially , is that the con-
tract finally presented for Ahern's signature did not con-
form to the agreement they had negotiated and that con-
sequently, after reviewing it, the members of the bargain-
ing unit refused to ratify it.
On the basis of all the testimony and documentary evi-
dence, I credit the testimony of Skinner and Hoffman,
who displayed credible demeanor and presented lucid
and consistent testimony which, in some significant re-
spects, was corroborated by documentary evidence.
There were several inconsistencies between Skinner's tes-
timony and an affidavit which he had furnished to a
Board investigator, but the variances were insignificant. I
note , also, the failure to produce Sumerlin as a witness to
refute Ahern's testimony that he had made almost imme-
diate complaint to Sumerlin about the discrepancies
which he claimed existed in the contract . Skinner testi-
fied Sumerlin never mentioned such a discussion to him
and presumably Sumerlin would have supported him in
this . If anyone had an obligation to bring Sumerlin in, it
was the Respondent. The Respondent's counsel drew at-
tention to Skinner's failure to produce the memorandum
relating to the telephone conversation he had with
Ahern on 9 July, but I found Skinner's testimony that he
recalled the conversation and his recitation of the con-
versation credible. In any event, my credibility resolution
rested on the overall effect of all his testimony.
I had little confidence in Ahern's testimony. Unlike
Skinner's affidavit, the Ahern affidavit furnished to the
Board investigator contained statements materially at
variance with his testimony, and these variances were
not convincingly minimized by Ahern's testimony that
he gave the affidavit at a time when his notes were not
available to him and he was pressured into signing it the
very day he gave it . Ahern's 6 years as a business repre-
sentative, his experience in negotiating numerous labor
contracts, his involvement in a least two prior Board
proceedings in which he had given affidavits, and his
OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT)
knowledge that the Union has a lawyer convince me that
he is not one to be easily pushed around. His testimony
regarding his telephone conversations with Skinner,
which I have quoted above, is remarkably unclear (or
evasive) what he complained about to Skinner. He em-
ployed expressions such as "typographical errors" and
"problems with language" which do not at all connote,
in normal usage, substantive variations between agreed
terms and the provisions ultimately embodied in a formal
contract. His conversations with Skinner appear to have
been devoid of reference to specific discrepancies, in
sharp contrast to the detailed list of variances respecting
which he testified at the hearing.4
It is also glaringly evident that Ahern's postnegotiation
conduct was inconsistent with his present claim that the
contract sent to him for execution did not reflect the ne-
gotiated agreement. Considering his experience, it may
be inferred that he knew how to protect the Union's in-
terests in case of an improperly prepared contract. In
any event, he could have consulted with the Union's
counsel. Instead, his course of action was wholly at odds
with steps that he might have been expected to take or
avoid had the circumstances been as he contends. There
was an utter failure to document the variances between
the agreed terms and the contract or to serve written
notice on Hyatt of the corrections that were required to
be made. Service of such notice would have been invalu-
able either to further the process of securing the correc-
tions sought or to protect the Union's legal position.
There is no evidence that assistance along these lines was
sought from the Union's lawyer though the asserted diffi-
culties with Skinner dragged on for months after the
conclusion of the negotiations and Ahern testified about
how anxious the members of the unit were to fix the
terms of their contract.
Though the Union had prepared the preceding two
contracts with Hyatt, no attempt was made this time to
draft a contract in accordance with the terms claimed to
have been negotiated and to demand its execution by
Hyatt. For reasons already stated, I do not credit
Ahern's testimony that he offered to do so. (Even then,
the offer is claimed to have been made 5 months after
the conclusion of negotiations.)
Most peculiarly, Ahern testified that he submitted the
defective contract prepared by Hoffman for ratification.
Instead of promptly rejecting it as departing from the ne-
gotiated terms, he waited some 5 weeks and then, ac-
cording to his testimony, submitted it to the members of
the unit, though minutes before the meeting he reviewed
* Testifying in great detail from the marked-up copy he had returned
to Skinner in September, Ahern listed the union-security clause and attor-
neys' fees provision, on which Hoffman was supposed to draft language,
unauthorized language (joint working efforts of employees); substitution
of 8-hour workday references where 8 - 1/2 appeared ; limitation of elec-
tion day holiday to presidential election years, travel time and guaranteed
8-hour workday on call-ins; the number of sick days and amount of per-
missible sick day accumulation; paid meal periods ; application to benefit
days of change from 7-hour day, 35-hour week to 8-hour day and 40-
hour week, insertion of figures in schedule A of the contract; correction
of provisions for shift differential to end shift on the hour instead of
adding a further half-hour to allow for the lunch period ; claimed missta-
tement of the agreement which had been reached in the negotiations re-
lating to the chief engineer position ; and the annuity contribution rate
(daily instead of weekly).
211
it with Snoddy and found it wholly unacceptable. I do
not credit his testimony that he arranged the ratification
meeting without reviewing the contract and only discov-
ered its deficiencies at the last moment, and I do not
credit his testimony that the meeting was for the purpose
of considering ratification.
Ahern's testimony adds up to a completely implausible
story contradicted by his conduct: he retained the con-
tract; did not return Skinner's telephone calls; inconsist-
ently referred to the purported discrepancies in terms
that denote clerical deficiencies, both in telephone con-
versations with Skinner and in his testimony at the hear-
ing; persistently sought to reopen the negotiations in a
face-to-face meeting with Skinner instead of preparing
his own version of a proper contract; and, according to
his own version of events, submitted the written contract
prepared by Hoffman to the unit members for ratification
though he and Snoddy had already reviewed it and
found it unacceptable.
On the other hand, Skinner's conduct, even according
to Ahern's testimony, is that of one who has prepared
what he believes is a proper contract and insists on its
execution as so written up. Ahern's testimony explicitly
corroborates Skinner's testimony, that Skinner made it
clear that there would be no renegotiation."
D. The Contention that the Contract Failed to Secure
Required Ratification
Ahern testified that his refusal to sign the contract pre-
pared by Hoffman had also been necessitated and justi-
fied by its failure to achieve ratification in a vote of the
members of the bargaining unit.
Ahern's assertion that there was a ratification require-
ment rests upon his own testimony that he mentioned it
during the meeting of 20 March and that it was an estab-
lished procedure which had been followed, with the
knowledge of Skinner, in the case of both prior contracts
between Hyatt and Local 30. Skinner testified that he
had never at any time heard of any ratification require-
ment and that there had been no mention of submission
of the agreement for ratification when they met on 20
March (Ahern conceded that it was not mentioned on 14
February).
If an agreed ratification requirement existed, it should
not have been difficult to prove. Ahern testified that
during the negotiation of the preceding contract in
which Treacy either participated or was the chief negoti-
ator, "on the final day, we told David that we would
have it ratified." In the light of Skinner's emphatic testi-
mony to the contrary, a burden rested upon the Union to
produce Treacy. It did not do so and did not explain the
reason for its failure to do so.
5 I have considered whether the testimony by Skinner on this point is
inconsistent with Skinner's testimony that in the telephone conversation
of 9 May he suggested that Ahern resubmit the contract to the unit mem-
bership, and find that it is not inconsistent . Skinner made it clear, in that
telephone conversation as well as in all his other conversations with
Ahern, that there would be no renegotiation . His statement appears to be
nothing more than a suggestion that Ahern try to make the agreement
more palatable to the members.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union also failed, without explanation, to produce
other evidence which could have been extremely persua-
sive on this question . Anyone who voted on ratification
of the two earlier contracts between Hyatt and the
Union could have been brought in by the Union to tell
about it. Any member of the bargaining unit who attend-
ed the ratification meeting which Ahern said he called
with reference to the contract in issue would have made
an interesting witness on the question of ratification.
Not only did the Union fail to produce witnesses to
corroborate Ahern's contention respecting ratification, it
submitted no documentary evidence to establish the ex-
istence of a ratification procedure in the present instance
or in the case of the two prior contracts . There is no evi-
dence of a union bylaw or constitutional provision per-
taining to ratification . On this issue there are no wit-
nesses; no notices of ratification meetings ; no minutes of
such meetings; no tallies or reports of votes; no letters to
employees advising of ratification or rejection ; no corre-
spondence of any kind which makes mention of it. Other
than Ahern's bald assertion that past contracts had been
submitted for ratification with the knowledge of Skinner
and that that practice had been followed in the present
case , there is no evidence whatsoever that such a re-
quirement existed or had ever been complied with.
The Union's unexplained failure to produce what
should have been readily available corroborating evi-
dence of its position , as expounded by Ahern, compels
me to infer that there was no requirement of or agree-
ment for ratification.6
Apart from the question of whether such a require-
ment existed , Ahern's testimony respecting the unit's re-
jection of the contract is obscure and unclear. The con-
fusion starts with his assertion that there were two ratifi-
cation meetings . He explained that the first meeting was
held to ratify the agreement, not yet written up, on the
basis of his notes. It was ratified , he said , though there
was no quorum . Yet he asserts that in April he called a
meeting to ratify the Hoffman contract. I cannot credit
his testimony that he tried to obtain ratification for an
improperly prepared contract (though he testified he did
not know until moments before the meeting that it was
incorrect) or that it was necessary to call a meeting to
ratify a contract whose terms had already been ratified.
His explanation is that the unit members were entitled
"to know" but his testimony is not clear as to what it
was they were entitled to know . He offered no satisfac-
tory explanation for the inordinate length of time which
elapsed before he submitted it for ratification , his failure
to read it during that time, the need to confer with the
unit about it, or the reason for submitting it to them at
all if it was unsatisfactory and he was engaged in the
process of trying to arrange a further meeting with Skin-
ner to straighten it out . His testimony respecting the
6 Failure to call knowledgeable persons as witnesses or to adduce read-
ily available evidence warrants an inference that had the witnesses been
called or the evidence produced, the testimony or evidence would not
have been favorable. ColorJlo Decorator Products, 228 NLRB 408, 410
(1977), enfd. mem 582 F.2d 1289 (9th Cir. 1978). See also Bechtel Corp.,
141 NLRB 844, 845, 852 (1963); Davis Walker Steel & Wire Corp., 252
NLRB 311 (1980); Teamsters Local 959, 248 NLRB 693, 698 (1980),
Martin Luther King Sr. Nursing Center, 231 NLRB 15 (1977)
event itself was contradictory, being first to the effect
that all six men, sitting around a table, read the entire
contract (of which only one copy was available) and
then to the effect that they read only parts of it. I found
Snoddy 's testimony , which parroted Ahern's, altogether
unconvincing . He displayed extremely poor recollection
with respect to numerous significant details and for the
most part failed effectively to corroborate the testimony
of Ahern.
E. Conclusion
I find that by a process of reviewing, paragraph by
paragraph , the basic draft of an agreement prepared by
Hyatt, on 20 March, the Union and Hyatt concluded an
agreement which Hyatt correctly reduced to writing and
which the Union thereafter unlawfully refused to exe-
cute. I do not find that justification for such refusal exist-
ed by reason of the existence of any requirement for rati-
fication or by reason of any such requirement which had
been made known to Hyatt, or because it was rejected
by the bargaining unit, or because there was any material
discrepancy between the agreement negotiated and the
formal contract prepared by Hoffman.
F. The Affirmative Defense
The affirmative defense, that the charges are barred by
Section 10(b) of the Act, is dismissed.
Section 10(b) precludes issuance of a complaint based
on an unfair labor practice which occurred more than 6
months prior to the filing of the charge with the Board
and service of a copy of it upon the person against
whom the charge is made.
The charge in this case was filed on 2 October and al-
leged,
Since on or about March 20, 1984, the above-
named labor organization has refused to reduce to
writing and execute a collective bargaining agree-
ment previously reached by the parties.
The complaint alleges that the Union has failed and re-
fused to execute the contract "[S]ince on or about April
2, 1984, a date six months prior to the filing and service
of the charge herein."
The charge reads as though the initial refusal occurred
more than 6 months prior to the date it was filed. The
complaint reads as though the initial refusal occurred ex-
actly 6 months to the day prior to the filing.
The dates alleged are not controlling. The controlling
date is the date of the alleged violations of the Act. The
evidence establishes that the negotiations were concluded
on 20 March and the contract sent to Ahern on 27
March . The obligation to execute it arose at that time.
For a period of time thereafter it was the reasonable ex-
pectation of Hyatt that the document would be signed
and returned. There was no conduct on the part of the
Union which can be interpreted as refusal to execute the
contract prior to the time when Skinner began demand-
ing its execution and return under circumstances which
made it reasonably apparent that the Union was refusing
to do so. That is the point at which the statute began to
OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT)
run. Clothing Workers Local 187 (Shutter Mfg.), 210
NLRB 831 (1974). The earliest date on which such a
state of affairs can be said to have existed is 9 May,
when Ahern telephoned Skinner in response to a mail-
gram and told him that "there were a number of prob-
lems with the contract" and "indicated to him that there
were quite a few items."
At that point, however, Ahem was not being too
clear, as I have noted above. Ahern's comments in later
telephone conversations with Skinner more probably
should be taken as the actual refusals. As of 9 May,
Ahern was talking as if there were only clerical prob-
lems to contend with, and Skinner could have reasonably
believed that their rectification was merely a prelude to
execution. Ahem did, however, assert that he told Skin-
ner there were numerous "problems." That is the very
earliest date at which there is any conduct on the Re-
spondent's part which suggests actual or impending repu-
diation of its obligation to execute the agreement. See
Serv-All Co., 199 NLRB 1131 (1972). Treating his re-
marks as a statement that he could not, at least at that
point, sign the contract fixes the date of refusal as 9
May, well within the allowable statutory period.
CONCLUSIONS OP LAW
1. Hyatt Management Corporation of New York, Inc.
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local Union No. 30 and 30A, International Union
of Operating Engineers, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Respondent is the recognized collective-bar-
gaining representative of the following appropriate unit
within the meaning of Section 9(a) of the Act:
Chief Engineers, 1st Assistant Engineer, Watch En-
gineer , Relief Engineer, Maintenance Men and Fire-
men, excluding clerical employees, supervisory em-
ployees, professional employees, production em-
ployees, watchmen and guards as defined in the
Labor Management Relations Act of 1947, em-
ployed by the Employer at Nassau County Colise-
um.
4. By refusing, about 9 May 1984, and at all times
thereafter, to execute the collective-bargaining agreement
with Hyatt Management Corporation of New York, Inc.
to which the Respondent had previously agreed, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(3) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices , I find it necessary to order it to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. The
Respondent , the exclusive representative of the employ-
ees in the appropriate unit described above, has refused
213
to bargain collectively with Hyatt by refusing to execute
the collective-bargaining agreement which it had negoti-
ated with Hyatt in December 1983 and February and
March 1984, though Hyatt had transmitted to it on 27
March 1984 a contract which embodied the terms agreed
upon at the last bargaining session on 20 March 1984. I
will therefore recommend that the Respondent be or-
dered to execute that document. However, the contract
agreed upon was supposed to commence as of 1 January
1984 and was to expire on 31 December 1986. A substan-
tial portion of the agreed term has elapsed during the
pendency of these proceedings. Accordingly, the recom-
mended Order will contain a provision that the contract,
when executed, be deemed effective as of the date of its
execution by the Respondent, and that its terms be ex-
tended so that the contract will expire on a date 3 years
from the date of execution.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Local Union No. 30 and 30A, Inter-
national Union of Operating Engineers, AFL-CIO, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing on request of Hyatt Management Corpo-
ration of New York, Inc. to execute the collective-bar-
gaining agreement agreed to on 20 March 1984, as em-
bodied in the proposed collective-bargaining agreement
transmitted to it by Hyatt on 27 March 1984.
(b) In any like manner refusing to bargain with Hyatt
in accordance with the requirements of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) If requested to do so by Hyatt, execute, without
delay, the proposed collective-bargaining agreement
transmitted to it by Hyatt on 27 March 1984.
(b) Provide for said agreement to be effective as of the
date of its execution by Respondent and extend the term
thereof so as to terminate 3 years from the date of such
execution by Respondent.
(c) Post at the Respondent's offices and meeting places
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respond-
7 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
8 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 "
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent to ensure that the notices are not altered, defaced , or (d) Notify the Regional Director in writing within 20
covered by any other material. days from the date of this Order what steps the Re-
spondent has taken to comply. ,