Mount Airy Psychiatric Center

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mount Airy Foundation d/b/a Mount Airy Psychiat- ric Center and Retail Clerks Union, Local No. 7, chartered by Retail Clerks International Associa- tion, AFL-CIO-CLC. Case 27-CA-5023 July 6, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 15, 1977, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the Charging Party filed cross-exceptions and a brief in support of its cross- exceptions and in opposition to Respondent's excep- tions. The General Counsel filed a brief in opposition to Respondent's exceptions and in support of the Administrative Law Judge's Decision, and Respon- dent filed an answering brief in opposition to the Charging Party's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Mount Airy Foundation d/b/a Mount Airy Psychiatric Center, Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The original charge in this case was filed on August 9, 1976, by Retail Clerks Union, Local No. 7, chartered by Retail Clerks International Association, AFL-CIO-CLC, herein called the Union. The first amended charge in this case was filed on August 10, 1976, by the Union. The second amended charge was filed on September 7, 1976, by the Union. The third amended charge was filed on September 15, 1976, by the Union. 230 NLRB No. 107 The complaint was issued on September 15, 1976, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of Region 27 of the Board. The General Counsel's complaint, as amended at the hearing, alleges that the Mount Airy Foundation d/b/a Mount Airy Psychiatric Center, herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, herein called the Act. The Respondent filed an answer to the complaint and denied the commission of the alleged unfair labor practices. The hearing was held before me on January 13 and 14, 1977, at Denver, Colorado. Briefs were timely filed by the due date, February 18, 1977, by counsel for the General Counsel, the attorney for the Union, and the attorney for the Respondent. Those briefs have been read and duly considered. Upon the entire record in this proceeding and based upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent at all times material herein has been a Colorado corporation and has maintained its principal office and place of business at 4455 East 12th Avenue in Denver, Colorado, where it has operated a psychiatric hospital. In the course and conduct of its business operations, the Respondent annually has had a gross volume of business in excess of $500,000 and has purchased and received materials valued in excess of $50,000 directly from points and places outside the State of Colorado. Upon the foregoing facts, I find that the Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED It was admitted that the Union has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues, which were raised by the pleadings in this case, are whether the Respondent has violated Section 8(aX)(1) and (5) of the Act by the following actions alleged by the General Counsel: (1) on or about July 28, 1976, refusing to sign an agreed-upon contract with the Union; (2) on or about August 9, 1976, refusing to meet and bargain collectively with the Union; and (3) on or about August 25, 1976, unilaterally dealing with unit employees by mailing strike reinstatement offers directly to individual employees. 668 MOUNT AIRY PSYCHIATRIC CENTER B. The Representation Proceedings On May 5, 1975, the Board issued a Decision on Review and Direction of Election in Case 27-RC-4902 which involved the same Respondent and the same Union which are present in the instant proceeding. That Board Decision is reported at 217 NLRB 802 (1975). On June 4, 1975, the Union filed another representation petition in Case 27-RC-5089 with the Denver Regional Office of the Board. Pursuant to a Stipulation for Certification Upon Consent Election, a representation election was conducted on July 29 and 30, 1975, in which 42 ballots were cast for the Union, 27 ballots were cast against the Union, and 8 ballots were challenged. Two ballots were void. On August 8, 1975, the Regional Director of Region 27, on behalf of the Board, issued a Certification of Representative to the Union in Case 27- RC-5089 as the exclusive collective-bargaining representa- tive of the employees in the unit described below: All employees of the Employer, but excluding business office clerical employees, professionals, guards and supervisors as defined in the Act. The foregoing findings of fact are based on the Board Decision cited above, documentary evidence which was introduced at the hearing in this proceeding, and the pleadings. C. The First Two Negotiation Sessions Walter V. Siebert represented the Respondent as its chief spokesman throughout contract negotiations with the Union. Siebert was associated with the Mountain States Employers Council which he described as being an association of employers that represented approximately 650 companies in the greater Rocky Mountain area, which he said would primarily include the States of Colorado, Wyoming, and New Mexico. At the time of the hearing, Siebert had been employed by the Mountain States Employers Council for approximately 4 years. The Council provided various services to employ- ers, including research, market development, personnel services, governmental relations, and labor relations. The Respondent was a member of the Council. The first negotiation session between the Respondent and the Union took place on Thursday, October 30, 1975. The session was very short since it lasted only 8 minutes. At that meeting the Union submitted a proposal to the Respondent. The findings of fact set forth above are based on Siebert's testimony. He identified the union negotiator at that first meeting as being Tracy Smith. The second negotiation session between the Respondent and the Union was held on Monday, December 22, 1975. Prior to that meeting, Clifford A. DeLine, the administra- tor of the Respondent, had told Siebert that his authority was to negotiate a contract subject to the approval of the board of trustees of the Respondent. It was on that note that the second meeting began. Siebert testified: Specifically, I began the meeting by reserving the right to amend, alter or change our proposals during the course of the negotiations, and also informed Mr. Thorn and the committee that anything we agreed to needed approval from the Board at the hospital. Daniel F. Thorn was the president and the chief executive officer of the Union and was among those present at the second negotiation session. At the time of the hearing in this case, Thorn had held his positions as president and chief executive officer of the Union for about 3-1/2 years. According to Siebert, Thorn's response to Siebert's opening remarks was: "We reserve the same rights,' and said that he also would need ratification of his agreement." Thorn did not specifically contradict the account of that second negotiation session as related by Siebert. Many of the findings of fact in this case will be based on documentary evidence, a few stipulations by the parties, and on testimony by the various witnesses which was not substantially disputed. However, in some respects, the recollections of the witnesses were in conflict. I found the testimony given by Siebert to be the clear and coherent account not only of these events referred to above, but also the events throughout this proceeding, with the exception of the board of trustees meeting on August 4, 1976. For reasons which will be spelled out later when that meeting is discussed, I found the more detailed testimony concerning that particular meeting by the Respondent's administrator, Clifford A. DeLine, to be the complete and accurate account of that meeting. Where there are conflicts among Siebert, Thorn, and a union organizer, Elizabeth Pace, I found Siebert's testimo- ny to be the more reliable and convincing version. See Northridge Knitting Mills, Inc., 223 NLRB 230 (1976), for the criteria utilized in addition to the demeanor of the witnesses. Accordingly, I have credited Siebert's testimony where there are conflicts in the recollections of the witnesses, but as I stated above, there are many matters which are not in substantial dispute. Therefore, I have also relied on the testimony given by Thorn and Ms. Pace in making the findings of facts, as well as the documentary evidence and some stipulations. The facts concerning a particularly significant negotia- tion session on July 28, 1976, will be set forth later. Siebert, Thorn, and Ms. Pace gave somewhat similar versions. Thorn testified, among other things, that he said, "Fine, we will take it," in connection with whether the Respondent's earlier contract proposals were still being offered. Siebert did not specifically deny that statement. Thus, in that limited sense, the versions are not directly in conflict, and I have accepted Thorn's testimony concerning that state- ment since it was not specifically denied by Siebert and was consistent with the other actions of the parties. D. The Negotiation Session on Tuesday, February 24, 1976 The Respondent presented a contract proposal to the Union at the meeting on Tuesday, February 24, 1976. The Respondent's proposal incorporated many things which had previously been agreed to by the parties, and it also contained other matters. The board of trustees of the 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had already given its approval to the proposal before it was presented to the Union. Siebert explained to Thorn and the others present at that meeting that a meeting which had been scheduled for the previous week had been canceled so that Siebert could meet with the trustees and obtain their input into the contract and get their approval. Siebert said, "what we proposed to them that day was just that." Before stating at the hearing what the Union's response was to the Respondent's proposal, Siebert referred to his handwritten notes which he had made contemporaneously with the meeting being held. Siebert then stated that the Union had asked for a recess of the meeting, and the Union had asked that separate meetings be held by the parties. At that point in time, the parties were divided into separate rooms with a mediator going back and forth between the two rooms. The findings of fact in this section are based on the testimony given by Siebert who testified in greater detail than Thorn did with regard to this meeting. Thorn identified the contract proposal made by the Respondent at that meeting, and a copy of the proposal was introduced into evidence. E. The Negotiation Session on Saturday, February 28, 1976 The next meeting between the parties took place at the offices of the Federal Mediation and Conciliation Service. Once again, the parties were separated from each other. Siebert consulted his contemporaneous notes once again at the hearing, and he then stated that the Respondent had requested a proposal from the Union at the meeting. The mediator informed the Respondent that the Union de- clined to give a proposal; whereupon, the Respondent made another proposal that the Respondent would be willing to make certain amendments to the Respondent's proposal which had been given to the Union on February 24, 1976, if the Union would accept an open-shop agreement rather than a union-security agreement. The board of trustees had previously given Siebert the authority to make that proposal, and Siebert felt that his authority was related to Thorn because "the mediator at one point returned to the room to make sure that we did have authority to make that particular proposal." The preceding is based on Siebert's testimony on which the findings of fact in this section rest. Thorn said that the mediator did inform the union representatives that the Respondent's representatives had full authority to make their proposal from the board of trustees. F. The Events Between February 28, 1976, and July 28, 1976 Subsequent to February 28, 1976, negotiation sessions were held between the parties on March 2, 4, 16, 20, and 23, April 13, May 14, and July 28, 1976. Aside from the last meeting on July 28, 1976, the meeting on March 4, 1976, has particular significance to this proceeding. The July 28, 1976, meeting will be discussed later. At the meeting on Thursday, March 4, 1976, the Respondent made what it described as its "final proposal" at that point in time. The final proposal was "all items proposed in writing included in the employer's proposal of February 24, 1976, unless modified by the following." The modifications were thereafter set out in the two-page handwritten document which was presented by the Re- spondent to the Union at that time. Thorn acknowledged that "I very well may have told Mr. Siebert that I would have to take the Company's proposal back to the people for ratification." Later on in his testimony, Thorn stated: Well, as I said earlier, I was very dissatisfied with what had been negotiated to that point particularly in view of the fact that I felt very strongly that the Employer had reneged on some extremely important Articles of the contract, such as Union security, several other things. I told Mr. Siebert that I would take it back to the employees for their consideration, but we would recommend that it be rejected, I think I used the term, "I don't believe it will float." Thereafter, the Respondent's final proposal was rejected by the unit employees who thereupon voted to strike. It was at that point in time, according to Thorn, that the membership "told us that we were authorized to accept or reject anything in the future." The strike began on March 20, 1976. Picketing of the hospital's premises ended on July 30, 1976, and did not resume thereafter. The Denver Regional Office of the Board investigated unfair labor practice charges filed by the Union against the Respondent in Case 27-CA-4837. That charge was dismissed by the Regional Director of Region 27 on April 30, 1976. An appeal from the Regional Director's action was taken to the General Counsel of the Board in Washington, D.C. On June 8, 1976, the General Counsel, acting through his Office of Appeals, denied the Union's appeal. On June 18, 1976, the Respondent made an amendment to its earlier final proposal by means of a letter from Siebert to Thorn. The amendment concerned various wage rates for certain job classifications. The letter invited the Union to contact Siebert for the purpose of negotiations if the Union desired to discuss the changes, "otherwise the employer will implement these changes effective July 5, 1976." The foregoing findings of fact are derived from the testimony of Thorn and Ms. Pace, a stipulation by the parties, and documentary evidence. Thorn believed that the strike commenced on March 8, 1976, but Ms. Pace was more positive that it began on March 20, 1976. In a letter from the Respondent to the former strikers dated August 25, 1976, the "Hospital Reinstatement Policy" also refers to the strike having begun on March 20, 1976. Accordingly, I have found the March 20, 1976, date to be accurate. G. The Negotiation Session on Wednesday, July 28, 1976 The parties met once again for a negotiation session on Wednesday, July 28, 1976. Siebert testified: 670 MOUNT AIRY PSYCHIATRIC CENTER The meeting began with the mediator, as previously testified, and there was an exchange of pleasantries to begin the meeting, Mr. Thorn inquired as to whether the proposals that we had made were still available. I responded that yes they were. At that point, Mr. Thorn asked if there were any vacancies, and I believe I responded one or two. I believe we - at that point then, he asked if we could make a change in the term of the agreement, any type of a minor change that might turn around the vote, and I said that the last proposal that he had was our final proposal. * * * That is correct, Mr. Thorn was the one who asked for, first of all a change in the duration of the agreement. The proposal was for a three-year agree- ment, and he asked for a shorter term of the agreement. He said, "We need some type of a minor change in the proposal that will turn around the vote." * * * To keep the sequence correct, I believe it was at that point that we took a recess, and this was somewhat of a lengthy recess, as I recall. When we got back together, I told Mr. Thorn that we had approximately one-and-a-half vacancies, this would be one full-time position and a part-time position. At that time, I believe Mr. Thorn inquired as to how were we going to take people back, and I responded, "By seniority, as vacancies occur." Mr. Sanders, the mediator, then inquired as to whether the letter that I had sent Mr. Thorn in June would be incorporated into the collective bargaining agreement, and I responded, "Yes." Mr. Thorn then asked for me to draft up a strike settlement agreement and get him a clean copy of the contract to take back to the people. The only other thing they inquired as to how soon I would have those items available. * * * I said I thought I would be able to have them the following day. Siebert stated that Thorn did not explain what he meant when Thorn used the phrase "turn around the vote." With regard to reinstatement of employees, Siebert said that he did not specifically request a list of the names of the employees from Ms. Pace. Instead, he testified that the only statement he made was: "We are going to need to know who wants to come back." During his tenure at the Mountain States Employers Council, Siebert did not negotiate strike settlement agree- ments with other parties in oral form. However, he did reach a lockout settlement with other parties on a verbal basis on one occasion. He explained: It was not a strike settlement, per se, it was a lockout settlement which for all purposes is the same. I represent several meat packing companies that just had approximately a 10-week lockout. One company settled. We executed a lockout settlement with them, and some two weeks later, a second company settled. Now, I did not make them a formal written lockout settlement proposal. We merely worked off of the one that the prior company signed. Thorn gave the following account of the July 28, 1976, negotiation session: We got together, and I believe Mr. Sanders asked each side how things were going. Very close at the beginning of the meeting, I asked Mr. Siebert if the contract was still being offered, and he said, "Yes, I guess so," and having doubted Mr. Siebert's credibility in the past, I asked for a firmer response. I received a firmer response in the affirmative, and I responded, "Fine, we will take it." We went on to discuss a strike settlement agreement. It was agreed by both parties, the Employer and the Union, that we would put together a simple strike settlement agreement which required the employer to call back in order of seniority by classification those employees who had been on strike as openings occurred. We both mutually agreed to this. The mediator was there. He was very pleased that the strike was going to be over, and Mr. Siebert volunteered to put that in writing or follow through on the mechanical aspects of it, and was going to get back to us the next day with that was well as a clean copy of the final contract. When I say clean, there had been some writing on it. The Articles hadn't been numbered, the pages hadn't been numbered, so it was merely a mechanical procedure of putting the paper work together and securing the signatures of each party on both the contract and the strike settlement agreement. Thorn stated that there was no discussion of ratification at the meeting, and, in his view, the contract and strike settlement agreement were not considered to be one package. Thorn testified that the strike settlement agreement reached at that meeting was: "That based on seniority, the strikers would be called back as positions became available in two particular classifications." Elizabeth Pace was employed by the Union during the last week of April 1976 as an organizer for the Professional and Health Care Employees Division of the Union. Previously, she had been a registered nurse at another hospital for 6-1/2 years. Ms. Pace was placed in charge of the strike by the unit employees of the Respondent which had commenced on March 20, 1976. She attended only one bargaining session between the parties and that was the one held on July 28, 1976. Based on two conversations which she had with Thorn, she was aware of the Union's strategy for that bargaining session. Earlier in July 1976 and again on the same day of the meeting as they were driving to the Federal building, Thorn informed Ms. Pace of the following 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scenario: "[H]e was going to ask the hospital's representa- tive if the contract proposal of February 24th was still available, and that if it was, he was going to accept that." She gave this account of the meeting on July 28, 1976: That was the first time that I had met Mr. Siebert, so I was introduced to him out in the outer offices, and then we went in one of the Federal Mediation and Conciliation Service meeting rooms. Mr. Sanders opened the meeting. I really don't recall what he said right now. Dan Thorn asked Mr. Siebert if the contract proposal made to the Union in February was still available, and Mr. Siebert replied, "I guess so," and from there, we discussed, or Mr. Thorn brought up, "Well, could we modify the length of the agreement, it being three years," and Mr. Siebert said, "This is our last, best, and final offer." Mr. Thorn said, "Okay, we want to get these people back to work as soon as possible. Do you have any idea how many vacancies there are right now or how many job openings?" Mr. Siebert replied either two or three or three or four, and I. think it was - let me think a moment to get the order of things correct - I believe somewhere in this conversation that Mr. Sanders, the Commissioner, said, "Well, is this con- tract, does this contract include a letter sent to the Union from Mountain States Employers Council," and he went through his files and pulled out a copy of the letter dated June 18th which listed amended salaries for the dietary department within the bargaining unit at Mount Airy, and both Mr. Siebert and Mr. Thorn agreed. Mr. Siebert said, "Yes," or acknowledged, said yes, that that was in fact included. Then, Mr. Thorn requested a recess at which time Mr. Siebert left the room. This lasted ten or fifteen minutes. Mr. Siebert returned upon the request of Mr. Sanders, and he said he had spoken with the Employer, and there were one-and-a-half vacancies which he explained as being one full-time and one part-time position. Mr. Thorn either before the recess or right after had brought up along with asking about when people could, how soon people could go back to work, that kind of thing, how many vacancies, the issue of the strike settlement, and Mr. Siebert said that employees could go back to work according to seniority within their job classification as openings occurred, and Mr. Thorn agreed to that. I can recall thinking that that was the first time that I had been exposed to any kind of strike settlement, and it struck me as the entire thing being very, very simple, and Mr. Thorn requested of Mr. Siebert if we could have a clean copy of the contract and strike settlement. Mr. Siebert agreed to that and said he could have that for us the next day, which was July 29th, Thursday. At that time, Mr. Siebert asked us if we could draw up a list of employees who wished to return to Mount Airy, and as I recall, Mr. Thorn turned to me and said, "Well, you can take care of that, and we will get that ready for you" kind of thing. Ms. Pace recalled that Commissioner Sanders showed his copy of the Respondent's June 18, 1976, letter to Siebert and Thorn when he brought that matter up at the meeting. She said that ratification was not discussed, and specifical- ly she denied that Thorn stated to Siebert that he would have to take these proposals back to the people to vote on. She also recalled that there was no objection raised to the strike settlement. At the hearing, she was questioned as to whether she had ever been told by Thorn or Siebert that anything negotiat- ed by Siebert would have to be ratified by the board of trustees of the hospital. Her reply was: "I know that I have heard that, that I heard that when I first went to work for the Retail Clerks; however, from whom, I don't recall." As can be readily seen from the foregoing, there are some differences in the recollections of Siebert, Thorn, and Ms. Pace as to what occurred at the July 28, 1976, negotiation session, although in some respects the versions are similar. Siebert did not specifically deny Thorn's statement, "Fine, we will take it," after Thorn ascertained that the earlier contract proposals of the Respondent were still available. In that narrow and limited sense, their versions are not conflicting on that single point. While I have credited and accepted Siebert's testimony throughout this proceeding, I find Siebert's testimony not to be in conflict with Thorn's as to Thorn's statement, "Fine, we will take it." Furthermore, the testimony of Administrator DeLine concerning what Siebert told the trustees at the August 4, 1976, meeting is consistent with Thorn's statement. That will be set forth later. In addition, the actions of both parties following the July 28, 1976, negotiation session are indicative that a final agreement had been reached by the parties on a contract and a strike settlement agreement. The cessation of the picketing by the Union on July 30, 1976; the meeting called by the Union of the unit employees to vote on the contract; the meeting with the board of trustees of the Respondent, and the activities relating to obtaining what was termed a "clean copy" of the contract and a strike settlement agreement in written form - all are consistent with the finding that Thorn accepted the earlier contract proposals made by the Respondent and agreed on a strike settlement. Accordingly, for all of the foregoing reasons, I have accepted Thorn's testimony in this regard that he said, "Fine, we will take it" and agreed on a simple strike settlement with Siebert at this negotiation session. As noted earlier, I do not consider their accounts to be contradictory or inherently inconsistent, but simply that Thorn's testimo- ny about his acceptance of the contract proposals and a strike settlement agreement to be additional matters which Siebert did not directly dispute in giving his version of that meeting. H. The Telephone Conversations on Thursday, July 29, 1976, and Friday, July 30, 1976 Ms. Pace telephoned Siebert on Thursday, July 29, 1976, and inquired whether a clean copy of the contract and the strike settlement agreement had been prepared. Siebert's response was that he had not been able to get to the hospital to obtain approval on the matter. Siebert told 672 MOUNT AIRY PSYCHIATRIC CENTER her that the hospital was involved in some type of accreditation procedure and was unavailable to him at that point. Siebert did not recall whether he gave Ms. Pace any indication as to when he would have the documents prepared. The findings of fact concerning the July 29, 1976, telephone conversation are based on the testimony given by Siebert. Ms. Pace gave a shorter version of their telephone conversation on that particular day. According to her, Siebert told her that he would have a clean copy of the contract and the strike settlement agreement ready the next day. Her recollection was that Siebert mentioned the hospital accreditation matter during their second conversa- tion which took place the following day. For the reasons previously stated, I have relied on Siebert's testimony in making the findings regarding this conversation. On Friday, July 30, 1976, Siebert telephoned Ms. Pace and informed her that the first opportunity that he would have to get the approval of the hospital on the clean copy of the contract and the strike settlement agreement would be on August 4, 1976. Siebert told her that he would have the documents ready for her at that time. The foregoing findings of fact concerning the July 30, 1976, telephone conversation are based on Siebert's testimony. Ms. Pace's account was not substantially different except that she recalled stating: "Well, we certainly want to get this contract ratified," after Siebert told her that a clean copy of the contract and the strike settlement agreement had not been prepared. As noted earlier, I have accepted Siebert's version. I. The Union Meeting on Friday, July 30, 1976 Pursuant to instructions which she received from Thorn after the July 28, 1976, negotiation session, Ms. Pace prepared a notice on that same date concerning a union meeting to be held on Friday, July 30, 1976. The notice was to the attention of persons in the bargaining unit and stated in part: "A Ratification Meeting has been scheduled for you to consider and vote on an offer for your first collective bargaining agreement. This is a very important meeting . . . voting will take place!" Details of the date, time, and place of the meeting were included in the notice, which was on the Union's letterhead stationery and which bore the names of Thorn, Ms. Pace, and the secretary-treasurer of the Union. Ms. Pace handed out copies of the notice to persons on each one of the three shifts of the picket line at the Respondent's facility at that time. She also telephoned some others regarding the meeting. In addition to preparing a notice for the meeting, Ms. Pace also prepared on July 29 or 30, 1976, a list of the names of employees who, in her opinion, should be included on a preferential hiring list. She did this pursuant to instructions which she received from Thorn following the July 28, 1976, negotiation session. She said that she included persons whether or not they were on the picket line at that point in time. She did not include employees who were working inside the hospital at that time. It was her view that these persons were included within the bargaining unit at the hospital, but it should be noted that the list did not disclose what job classifications the striking employees had previously held at the Respondent's facility. At some later time, Ms. Pace made notations on her copy of the list as to the names of five employees who had allegedly quit. The list was never submitted to the Respondent. Meanwhile, Ms. Pace also had prepared, with assistance from secretaries in the Union's office, a composite copy of the contract which included the February 24, 1976, proposal from the Respondent; the March 4, 1976, modifications by the Respondent, and the June 18, 1976, changes in the Respondent's letter. Additional copies of that composite were made and were given to the employees who attended the meeting. The meeting began at 7 p.m. at the union hall. One hour earlier, the picket line had been removed from the Respondent's facility. About 26 persons attended the meeting and participated in a half-hour discussion of "the pros and cons of ratifying the agreement that we had," according to Ms. Pace. She said that she also told the group that there would be a preferential hiring list based on seniority within job classifications. The contract was ratified by voice vote with only one person voting negatively. The foregoing findings of fact in this section are based on the testimony of Ms. Pace, who is credited in this respect, and on documentary evidence. Thorn attended only part of the meeting on July 30, 1976, and he recalled that the contract was voted on, but not the strike settlement agreement. J. The Events on Monday, August 2, 1976, or Tuesday, August 3, 1976 Either on Monday, August 2, 1976, or Tuesday, August 3, 1976, Thorn had a brief conversation with Siebert. Thorn described their encounter as being very casual. He said that it took place in the hall at the offices of the Mountain States Employers Council. Thorn said that he was there on another matter. Thorn asked Siebert where the contract and the strike settlement agreement were, and Siebert responded that he was working on them. Siebert told Thorn that he would get them to Thorn as soon as possible, but that he was tied up with other matters. At that point Thorn "suggested to him that he should be happy with the good faith gesture of having the picket line pulled down even before the ratification meeting." Thorn said that Siebert's reply was that Siebert was going to get them to Thorn as soon as he could, and that they had a lot of things going on. The foregoing findings of fact are based on the testimony given by Thorn. Siebert did not specifically deny the foregoing, although he stated that he did not have knowledge that the contract had been ratified by the Union until he received the Union's Mailgram on Tuesday, August 10, 1976, which was at least a week later than the foregoing conversation. However, even in Thorn's account, Thorn did not state that he told Siebert specifically that the contract had been ratified by the unit employees. 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD K. The Trustees Meeting on Wednesday, August 4, 1976 Clifford A. DeLine has been the administrator of the Respondent for over 10 years. At the time of the hearing, he was the chief operating officer for the board of trustees of the Respondent. In connection with the performance of his duties as the administrator, he attended meetings of the trustees. At noon on Wednesday, August 4, 1976, there was a combined meeting of the executive and finance committees of the Respondent's trustees. The secretary to DeLine took minutes at that meeting. Although other matters were later discussed, the minutes disclose the following which is pertinent to this proceeding: Union Strike Settlement Proposal: Mr. Siebert explained in brief the various points and paragraphs of the proposed strike settlement agreement which he had drawn up. A lengthy and in-depth discussion of this proposal followed Mr. Siebert's presentation. Motion Approve: It was moved by Mr. Burns, seconded by Mr. Leverenz to approve the proposed strike settlement agreement as presented and that it be made available to the union. Motion carried unanimously. MOTION. It was then moved by Dr. Walker, seconded by Mr. Leverenz, that if the union fails to sign the contract and strike settlement agreement during this week, Mount Airy will file for a decertification election. Motion carried unanimously. DeLine recalled the sequence of the August 4, 1976, meeting. His recollection was that Siebert first related what had taken place at the July 28, 1976, negotiation session. He said that Siebert reported that Commissioner Sanders had called Siebert and told him that Thorn would like to have a meeting with Siebert. DeLine testified that Siebert said "that he went, and that essentially Mr. Thorn asked if the contract was still on the table or available, whatever, and that he said it was, and that he said, I think, said Mr. Thorn wanted to sign it." At that point in his testimony, he was momentarily interrupted. DeLine then added: "Mr. Thorn would accept it." He was asked whether there was anything else, so DeLine continued by testifying: "Then he said that Mr. Thorn asked him to draw up a strike settlement agreement, and that he would sign that. That's the best, the gist of what he said." DeLine also stated that Siebert told the trustees that the contract was on the table for signature or available for signature, and that in the event the contract happened to be signed, there would be a strike settlement agreement necessary before the matter was wrapped up. There followed some questions directed to Siebert by the trustees as to what would happen next when the contract was signed. Thereafter, there was in-depth discussion among those present as to the effects of the signing of a strike settlement agreement and a collective-bargaining agree- ment. The trustees approved the strike settlement agreement at that time. DeLine stated that Siebert did not indicate at the August 4, 1976, meeting, or at any other time, that he had discussed the strike settlement agreement with the Union. However, DeLine said that Siebert told the trustees that Siebert would call the Union that same afternoon. If the Union failed to sign the contract and the strike settlement agreement by the end of the certification year, then DeLine said the Respondent decided "to get a representation election if it were going to be possible to do so, in that over the course of the strike, we began to have doubts about the majority of representation." The foregoing findings of fact are based on the testimony given by Administrator DeLine whose testimony seemed to me to be credible and reliable as to the events which took place at the meeting of the trustees on August 4, 1976. His testimony is consistent with the minutes of that meeting. Understandably, DeLine's recall of the events which transpired at the meeting was greater and more detailed than the secretary's minutes of the meeting. In common practice, minutes are not supposed to be a transcript of what was said, but instead minutes are usually to be a brief summary of the proceedings. I have based the findings of fact with regard to what took place at the trustees meeting on the credited testimony of DeLine, rather than the somewhat shorter account related by Siebert. DeLine was questioned more extensively concerning that meeting, and his version is more detailed. The main focus of the examination of DeLine was directed towards that one meeting, whereas the lengthy examination of Siebert necessarily covered several meetings and numerous other topics. In these circumstances, it is not surprising that DeLine's testimony is more complete with respect to that one meeting. The main difference in their recollections of the August 4, 1976, meeting was that Siebert indicated that the trustees voted their approval of the contract and the strike settlement agreement together as one package. DeLine's testimony and the minutes indicate that the trustees just voted approval of the strike settlement agreement at that time. As indicated above, I have relied on the version given by DeLine which I believe is consistent with the secretary's minutes of the meeting. However, both DeLine and Siebert agree in their testimonies with the minutes that the Respondent would seek to have a representation election held if the Union failed to sign both 'the contract and the strike settlement agreement that week. L. The Events on August 4, 1976, After the Trustees Meeting After the meeting of the trustees on August 4, 1976, Siebert telephoned Ms. Pace and told her that the documents which she had requested were available and that she could pick them up at his office. The "clean copy" of the contract had been prepared by the secretary to Siebert. He had asked his secretary to erase any pencil marks or markings which he had made previously on his proposal and to photocopy the document. She was then to put the "clean copy" of the contract 674 MOUNT AIRY PSYCHIATRIC CENTER together with the strike settlement agreement in an envelope for Ms. Pace. Siebert did not examine the "clean copy" prior to the time that Ms. Pace picked it up. Although Siebert considered the contract to consist of the Respondent's February 24, 1976, contract proposal with the amendments and changes incorporated in the Respon- dent's March 4, 1976, proposal, and his June 18, 1976, letter, Siebert was unaware that the March 4, 1976, and June 18, 1976, changes had not been incorporated in the "clean copy" of the contract which was prepared by his secretary. Siebert stated that he did not become cognizant of those omissions in the "clean copy" until a field examiner from the Denver Regional Office of the Board questioned Siebert concerning this point during the investigation of the unfair labor practice charge. Siebert said that he told the field examiner that it was an inadvertence on Siebert's part. The foregoing findings of fact are based on the testimony of Siebert. Ms. Pace gave a similar account of her conversation with Siebert on August 4, 1976. She said that Siebert called her and told her that a clean copy of the contract and the strike settlement agreement were ready to be picked up. She acknowledged at the hearing that she did not mention to Siebert that the contract had been ratified at the union meeting. After receiving the telephone call about 1:30 p.m. from Siebert, Ms. Pace immediately picked up the documents from Siebert's office. She compared the "clean copy" of the contract with the one which she and the secretaries at the union office had prepared during the afternoon of July 30, 1976. She noted various discrepancies in the two docu- ments. She also examined the strike settlement agreement. Less than an hour later, she brought both documents to Thorn and discussed them with him. She then heard Thorn telephone Siebert and overheard Thorn's portion of the conversation. Ms. Pace testified: "All I recall hearing was that Mr. Thorn said that the strike settlement certainly wasn't what we had in mind, or what we had talked about, something to that effect." The preceding findings in the above paragraph are based upon the testimony of Ms. Pace. According to Siebert, Thorn telephoned him later that day. Siebert testified: "Mr. Thorn inquired about the strike settlement agreement, and I asked him if he had any problems with it, and he said yes, he wanted the strike settlement agreement, not a master's thesis." Siebert stated that he told Thorn it was just a proposal and that they could talk about it. Siebert said that Thorn suggested that they talk about it the next day, but Siebert replied that he was unavailable on that date because of prior commit- ments. However, Siebert said that he suggested Friday, August 6, 1976, but Thorn replied that he was busy on that date, so Thorn told him that he would contact Siebert the first of the following week. Thorn stated that he was angry when he called Siebert and expressed his anger and disappointment in letting Siebert draft the strike settlement agreement. Thorn stated that he suggested that they should get together as soon as possible to make corrections in it, but that Siebert responded that he was busy and could not talk about it. According to Thorn, with regard to a date for meeting with Siebert, he testified: "I left it wide open, any time that he could get together, I would be available or I would make myself available." However, Thorn was somewhat uncer- tain whether he told Siebert that he was busy on August 6, 1976, but Thorn doubted that he had done so. Where the testimony regarding the foregoing events is in conflict between Siebert and Thorn, I have accepted Siebert's recollection of these events as being the more reliable version. Accordingly, I have based the findings of fact in this section on Siebert's testimony and the testimony of Ms. Pace. M. The Events on Monday, August 9, 1976 About 8 a.m. on Monday, August 9, 1976, Siebert, on behalf of the Respondent, sent a mailgram to Thorn at the Union's office in Denver. The mailgram advised the Union that the Respondent "hereby withdraws its collective- bargaining proposal and strike settlement agreement due to the question of representation that now exists." About 9 a.m. on August 9, 1976, Siebert filed a representation petition in Case 27-RM-474 on behalf of the Respondent at the Denver Regional Office of the Board. Contemporaneously with the filing of the RM petition, Siebert submitted a letter addressed to the Regional Director of Region 27 of the Board in which the Respondent set forth what it considered to be objective considerations supporting its petition for an election among the unit employees. In pertinent part, the letter stated: Please accept the following as the Employer's objective considerations and reasons that an election can and should be held. The Employer has a good faith doubt that Retail Clerks Local Union No. 7 continues to represent a majority of the employees in the appropri- ate unit: I. The certification year expired August 8, 1976. 2. No collective bargaining agreement has ever been executed. 3. No unfair labor practice charges are currently on file. 4. Those unfair labor practice charges previously filed were found to have no merit and were dismissed. 5. Employees struck the Employer on March 20, 1976. 6. All those employees who struck have been perma- nently replaced. 7. Only approximately 45 of the approximately 85 employees in the unit struck; the remainder chose to continue working. 8. No employees of the Employer now working are members of the union to the knowledge of the Employer. 9. Picketing at the Employer's premises ceased on or about July 31, 1976. 10. No unconditional offer to return to work has been made. For these and other good and proper reasons, the Employer respectfully requests that an election be held forthwith. 675 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Siebert stated that he prepared the letter supporting the RM petition after discussions on August 5 or 6, 1976, with Administrator DeLine, Assistant Administrator Prince, and Personnel Director Hedlund. The RM petition was dismissed on September 17, 1976, by the Acting Regional Director of Region 27 of the Board who stated, in pertinent part, in his dismissal letter: As a result of the investigation, it appears that, because no question concerning representation may be said to exist in view of the Regional Director's action in issuing a complaint alleging violations of Sections 8(a)(1) and 8(a)(5) of the Act in Case No. 27-CA-5023, further proceedings are not warranted at this time. I am, therefore, dismissing the petition in this matter. A request for review of the Acting Regional Director's action was not filed with the Board in Washington, D.C. Following receipt of the mailgram from the Respondent, Thorn instructed Ms. Pace to go to the Denver Regional Office of the Board and file an unfair labor practice charge against the Respondent. She did so. The original charge in this case shows that it was date-stamped as being received at 1:45 p.m. on August 9, 1976, in the Regional Office. Also on Monday, August 9, 1976, Thorn, on behalf of the Union, sent a mailgram to Siebert addressed to Siebert's Denver office. Siebert testified that he did not receive the mailgram until Tuesday, August 10, 1976, and that it was the first indication which he had from the Union that the contract had been ratified. In pertinent part, the mailgram stated: On July 28th, 1976, at a meeting with Commissioner Thurman Sanders, myself, Elizabeth Pace, and Bernard Siebert [sic] present, Retail Clerk's Union, through their president, Dan Thorn, accepted your contract offer of February 24th, 1976. Subsequently, on July 30th, 1976, that contract offer was ratified by the bargaining unit employees. We hereby, and herewith make unconditional offer on behalf of all striking employees, to return to work for the Ist shift commencing the AM of 10th August 1976. Thorn acknowledged at the hearing that the mailgram which he sent on August 9, 1976, was the first written notice from the Union to the Respondent that the contract had been approved by the membership and that the membership was making an unconditional offer to return to work. Thorn said that he was aware of the Respondent's mailgram of August 9, 1976, prior to his sending the Union's mailgram. The foregoing findings of fact in this section are based on the testimony of Siebert, Thorn, and Ms. Pace, as well as documentary evidence. N. The Events on Wednesday, August 25, 1976 Siebert said that it was his understanding from represen- tatives at the hospital that the Respondent had received numerous telephone calls from employees who inquired about when they would be coming back to work and how they would be coming back to work. In answer to those inquiries, Siebert drafted a letter to the employees who had been on strike. It was stipulated that a copy of the letter was sent to all striking employees of the Respondent by certified mail to their last known address on or about August 25, 1976. In the opinion of Siebert, the letter was informational in nature and the questionnaire attached to the letter was carefully drafted to be a request to the employees. Siebert explained: As to the return of the questionnaire, yes. We did not feel that legally we could require any striking employee to fill out any questionnaire. So, we phrased it very carefully in the form of merely a request; that there was nothing to be implied by this that any action would be taken for or against an employee for filling out or not filling out [the ] questionnaire. The letter which was dated August 25, 1976, stated in pertinent part: Dear Mt. Airy Psychiatric Center Employee: Enclosed is a copy of the Hospital's Policy regarding recall of striking employees. We urge you to read this policy carefully as this will be the method by which the hospital will reinstate the striking employees. Some employees have advised the Hospital that they will not be returning to work at Mt. Airy because they have obtained other employment or for other personal reasons. So that we may update our Personnel Records and set up an orderly method for handling recalls, we request that you complete the enclosed form, being certain to sign it where indicated, and return it to the Hospital in the enclosed stamped envelope as soon as possible. If you have any questions concerning the enclosed policy, the Recall Procedure or any other matter, please call Mr. Richard Hedlund at extension 259. Your cooperation and prompt reply will be appreciat- ed. There were two attachments to the letter. The first attachment was a one-page, single-spaced, typewritten document entitled "Hospital Reinstatement Policy" on the Respondent's letterhead stationery. At the hearing, Siebert candidly acknowledged that there were differences be- tween the letter sent to the employees on August 25, 1976, and the strike settlement proposal which the Respondent had previously presented to the Union. The second attachment was entitled "Post Strike Ques- tionnaire - Recall" and was also on the Respondent's letterhead stationery. In pertinent part, that attachment stated: 676 MOUNT AIRY PSYCHIATRIC CENTER Post Strike Questionnaire--Recall Check One: I have secured other employment and I am not interested in returning to work for Mount Airy Psychiatric Center. I voluntarily resign my position with Mount Airy Psychiatric Center. I wish to preserve my employment with Mount Airy Psychiatric Center and am available for recall under the appropriate provisions of the Hospital's Reinstatement Policy. Other The subpoena duces tecum served by the Union called for the appearance of Commissioner Sanders to testify at the hearing in this proceeding and directed him to produce the following: All notes, documents, and correspondence in your possession which relate to or refer to the labor negotiations between Mt. Airy Psychiatric Center and Retail Clerks Union Local No. 7 which were conducted in February, March, April, May, June and July 1976. Although the subpena required the production of the commissioner's records for a period of time of 6 months, the Charging Party expressed the view at the hearing and in his brief that the principal concern was to have the commissioner give testimony as to what was said by the parties on July 28, 1976. The General Counsel of the Federal Mediation and Conciliation Service filed a petition to revoke the subpena. On the basis of the Board decisions, court decisions, and FMCS regulations cited in the petition and the attachment to it, I granted the petition to revoke the subpoena duces tecum on the commissioner. The petition and its attach- ment are contained in the record as Administrative Law Judge's Exhibit I. The subpoena duces tecum is Charging Party's Exhibit 1. After considering the reargument of the matter in the Charging Party's brief, I reaffirm my prior ruling at the hearing. P. Conclusions COMMENTS: Name (Please Sign) Date Street or P.O. Box City State Zip Tele. 8/25/76 Siebert said that there was some response to the letter, but that he never received a call from Thorn regarding the August 25, 1976, correspondence. The foregoing findings of fact are based on the testimony of Siebert, documentary evidence, and a stipulation of the parties. O. The Subpoena Duces Tecum Served on the Federal Mediation and Conciliation Service Commissioner The attorney for the Charging Party reiterated in his brief his contention that a subpena duces tecum served on a Federal Mediation and Conciliation Service commissioner should not have been quashed. Based on the foregoing findings of fact, the evidence shows that the Union capitulated to all of the Respondent's terms for a contract and accepted the entirety of the Respondent's "final proposals" at the negotiation session on July 28, 1976. Not only did the Union agree to all of the Respondent's final proposals for a contract, but, also, the Union immediately agreed to the Respondent's proposal for recalling the striking employees on the basis of seniority as vacancies occurred. At that point in time, I conclude that the parties had reached a final agreement on both a collective-bargaining agreement, which was based on the three documents incorporating all of the final proposals of the Respondent, and also on the terms of a strike settlement agreement which was based on Respondent's own verbal proposal to reinstate strikers on the basis of seniority as vacancies occurred. Having reached an agreement, it was then incumbent on the parties to sign a written document incorporating their agreement. H.J. Heinz Company v. N.LR.B., 311 U.S. 514 (1941). In this case there was a "meeting of the minds" as to the terms of the agreement on a contract. The parties understood that the final agreement included the Respon- dent's February 24, 1976, contract proposal, as amended in the Respondent's March 4, 1976, modifications, and as changed in the Respondent's June 18, 1976, letter. As noted, the Union agreed fully to all of these proposals which had emanated from the Respondent, and thus, a "meeting of the minds" resulted. Compare the foregoing with Board Decisions where there was no "meeting of the 677 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minds" between the parties: Sunshine Hotels Limited d/b/a Outrigger-Maui, 226 NLRB 31 (1976); Construction and General Laborers, No. 304, Laborers International Union of North America, AFL-CIO, 228 NLRB 247 (1977); Oil, Chemical and Atomic Workers International Union and its Local 7-507 (Capital Packaging Company), 212 NLRB 98 (1974). The Respondent points out that it is not claiming that the Respondent insisted that the Union take the contract proposal back to the membership for ratification as a condition precedent to the execution of the contract. Instead, in his brief, the attorney for the Respondent urges: "Respondent's argument is that both parties understood that a condition precedent existed as to their respective authority to accept a binding agreement and that a contract could not be effectuated until those conditions had been met." In support of that position, the Respondent points, inter alia, to several statements made by representatives of the parties during the course of the negotiations. The Respon- dent correctly asserts that, even as early as the second negotiation session, the Respondent's negotiator, Siebert, reserved the right to amend, alter, or change the proposals during the course of negotiations and that the board of trustees at the hospital needed to approve the agreement. The Union's negotiator, Thorn, then replied, "We reserve the same rights," and also told Siebert that he would need ratification of the agreement. Significantly, these limita- tions came at the outset of negotiations for, as observed by the Administrative Law Judge whose findings were adopted by the Board in Aptos Seascape Corporation, 194 NLRB 540, 544 (1971): "Thus, an agent may lawfully be invested with the limited authority to negotiate a collective- bargaining contract which is subject to ratification by the employer. Such limitation upon the agent's authority, however, must be disclosed to the Union before agreement is reached." There were other statements also, which, in the Respon- dent's view, support its contention that the parties understood that ratification would take place before the contract was to be effective. For example, included among those statements were Thorn's remarks regarding ratifica- tion at the March 4, 1976, negotiation session and his request for a change in the duration of the agreement to "turn around the vote." The Respondent also urges, among other things, consideration of the statements made in the conversations between Siebert and Ms. Pace regarding Siebert's need to obtain approval from the hospital and Ms. Pace's comment regarding ratification of the agreement. It is appropriate to note here with regard to Siebert's authority that as of July 28, 1976, the Union was accepting in toto the Respondent's "final proposals." These proposals had been made much earlier with the approval of the Respondent. In fact, the last modification in the letter of June 18, 1976, was to be implemented by the Respondent on July 5, 1976, and, therefore, those wage rate changes were in effect prior to the Union's acceptance of them on July 28, 1976, as part of the contract. Additionally, the board of trustees did not vote on approval of the contract at the August 4, 1976, meeting, which is a further indication that the Respondent's final proposals for a contract had already been approved by the trustees. Thus, notwithstanding the reservations made at the outset of the negotiations and statements made later in negotiations, the agreement reached on July 28, 1976, was based on earlier contract proposals previously approved by the Respondent and offered to the Union. With regard to the question of whether ratification by the Union was a condition precedent to the contract becoming effective, the counsel for the General Counsel and the attorney for the Charging Party urge in their briefs, inter alia, that the Board's Decision in C & W Lektra Bat Co., 209 NLRB 1038 (1974), is applicable here. In that case, the Board held: We require more specific proof than this of an agreement to make ratification a condition precedent to a collective-bargaining agreement. Cf. Appalachian Shale Products Co., 121 NLRB 1160, 1162-63. There is no evidence that the parties agreed in express words to such a condition. We find, rather, on this record, that the Union was merely stating its intention, albeit forcefully, to take any contract reached to the member- ship for approval. See North Country Motors, 146 NLRB 671, 673. We are unwilling to distort words of intention into terms of agreement, particularly where the subject is unrelated to wages and terms and conditions of employment. We regard the words "[we] demand that we would ratify," even if said during negotiations by the Union, as part of the ambiance of negotiations rather than as a concrete proposal offered for inclusion as a term of the contract. Since this item was not offered as a proposal, there could be no acceptance by Respondent in any event. See Shreveport Garment Manufacturers, 133 NLRB 117. In connection with its contention that the Respondent filed the RM petition in good faith, the attorney for the Respondent urges in his brief that the dissenting opinion of former Chairman Miller in the C & W Lektra Bat Co. case is apposite here. A review of the documentary evidence reveals that there was no agreement on ratification as a condition precedent to the contract becoming effective, and, after reviewing the testimony of the witnesses, I conclude that there was no such agreement by the parties during their contract negotiations. The Board's majority decision in C & W Lektra Bat Co. would indicate that Thorn's statements during negotiations would not be construed as an agree- ment by the parties that ratification by the employees was a condition precedent to the contract becoming effective. See also Houchens Market of Elizabethtown, Inc., 155 NLRB 729 (1965). In the enforcement proceeding in the Houchens case, 375 F.2d 208 (C.A. 6, 1967), the court observed at 212: The Company, by insisting after all the other terms of the contract were agreed upon, that the contract be approved or ratified by a majority of the employees, was attempting to bargain, not with respect to "wages, hours and other terms and conditions of employment", but with respect to a matter which was exclusively within the internal domain of the Union. Members of a 678 MOUNT AIRY PSYCHIATRIC CENTER Union have the right to determine the extent of authority delegated to their bargaining unit. It is within their province to determine whether or not their bargaining unit may enter into a binding contract with or without membership ratification. It is not an issue which the Company can insist upon without mutual agreement by the Union, any more than the Union can insist that the contract be submitted to the Board of Directors or stockholders of the Company. I am not unmindful that Thorn stated that the members gave him the authority to accept or reject proposals from the Respondent after their strike vote. However, the evidence does not establish that such information was passed on to the Respondent. In M & M Oldsmobile, Inc., 156 NLRB 903 (1966), the Board held: [T]he requirement of ratification could only have been one which the Union itself assumed, and a vote was had which satisfied the Union's internal requirements. As we observed therein [North Country Motors, Ltid, 146 NLRB 671 (1964)] a bargaining agent need not assume the obligation of obtaining ratification of any contract it may negotiate on behalf of its members, but, if it does so, it is for the union, not the employer, to construe and apply its internal regulations relating to what would be sufficient to amount to ratification. Relying on M & M Oldsmobile, North Country Motors, and other cases cited in his brief, the attorney for the Union restated his position taken at the hearing that the constitution of the Retail Clerks International Association should be striken from the record. The matter initially came up during the cross-examination of Ms. Pace, who had previously testified regarding her preparation of notices for the ratification meeting by employees and also regarding the ratification meeting itself. Rather than have Ms. Pace testify as to her knowledge and understanding of section 33 of the constitution of the International union, the Respondent offered the document in evidence, and it was received over the objection of counsel for the General Counsel and the attorney for the Union on the grounds of relevancy. I decline to strike the exhibit which was relevant to a contention made by the Respondent. The fact that the particular contention has ultimately been resolved against the Respondent would not seem to justify going back through the record and excluding the Respondent's evidence. With regard to the strike settlement agreement between the parties, I conclude that the Respondent offered, and the Union accepted, the simple proposal that the strikers would be reinstated on the basis of seniority as vacancies occurred. I am aware that the board of trustees voted on a different and more elaborate strike settlement proposal on August 4, 1976. However, by that point in time, final agreement had already been concluded by the parties at their meeting on July 28, 1976, when the Union accepted the Respondent's proposal. In addition to contending that the Respondent refused to execute an agreed-upon contract, the General Counsel also alleged that the Respondent has refused to meet and bargain with the Union since August 9, 1976. The Respondent points to the fact that its RM petition was filed at that time which, in the Respondent's view, raised a valid question concerning representation. Thus, the Respondent argues in its brief that, even if all the terms of the contract and conditions precedent had been accomplished within the certification year, "an employer cannot go ahead and sign an agreement even if all the terms are finalized." In Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (C.A. 4, 1970), the Board stated: It is well settled that a certified union, upon expiration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues.' This presumption is designed to promote stability in collective-bargaining relationships, without impairing the free choice of employees.2 Accordingly, once the presumption is shown to be operative, a primafacie case is established that an employer is obligated to bargain and that its refusal to do so would be unlawful. I Celanese Corporation ofAmnerica, 95 NLRB 664, 671-672. 21d. In the instant case, the Union was the certified collective- bargaining representative of an appropriate unit of the Respondent's employees. A I-year period of time had elapsed by August 9, 1976, so at that point in time the Union would have enjoyed only a rebuttable presumption of majority status, except in the present case, the Respon- dent and the Union had previously reached agreement on a collective-bargaining agreement on July 28, 1976. Having agreed to a 3-year contract with the Union on July 28, 1976, the Respondent in the circumstances of this case was not free to challenge the Union's majority status 12 days later during the existence of the contract. In North Bros. Ford Inc., 220 NLRB 1021 (1975), the Board held at 1022: In any event, the Respondent argues that the filing of the decertification petition on October 30, 1974, before it had had an opportunity to reply to the corrections, barred it from executing any contract or bargaining with Local 376 while the petition was outstanding. Although an employer in appropriate -circumstances, including a context free of related unfair labor practices, lawfully may refuse to bargain with an incumbent union if it has reasonable objective grounds for believing that that union has lost its majority, the circumstances here were not appropriate. Final agree- ment was reached no later than October 14, 1974, well before the decertification petition was filed. Once final agreement on the substantive terms was reached, and regardless of the status of any written instrument incorporating that agreement, the Respondent was not free to refuse to bargain even if it then has lawful grounds for believing that Local 376 had subsequently lost its majority status. In light of the foregoing, we find that the Respon- dent violated Section 8(aX5) of the Act by refusing to execute a written contract and bargain on and after October 30, 1974, the date the decertification petition, 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the Respondent relies upon to justify its refusal to bargain, was filed. Instead of executing the agreed-upon contract and the strike settlement agreement, the Respondent sent a mail- gram to the Union on August 9, 1976, which had the effect of withdrawing its agreements with the Union and withdrawing recognition from the Union. Accordingly, I conclude that the Respondent also violated Section 8(a)(1) and (5) of the Act by its refusal to recognize and bargain with the Union since on or about August 9, 1976. With regard to the letter dated August 25, 1976, which the Respondent sent to the employees who had been on strike, I have considered the Respondent's argument to the effect that the correspondence was more in the nature of a request for information from the employees, rather than bargaining as contemplated by the Act. However, the letter did more than request information. It included the "Hospital Reinstatement Policy" regarding the terms under which the employees, who had engaged in the strike which began on March 20, 1976, would be recalled to work and reinstated by the Respondent. The August 25, 1976, recall and reinstatement policy was promulgated without advance notice to, or bargaining with, the Union. The policy was different from the simple strike settlement agreement to which the parties had agreed on July 28, 1976, and it was also different from the later proposal submitted to Ms. Pace on August 4, 1976. In these circumstances, I conclude that the Respondent also violated Section 8(a)(1) and (5) of the Act by mailing its August 25, 1976, letter to the unit employees who had been on strike because it was a unilateral action, which was different from the Respondent's previous agreement with the Union. Finally, I have considered the fact that the unit description in the contract agreed to by the parties is expressed in more detailed language than the certified unit description. The certified unit was "All employees of the Employer, but excluding business office clerical employees, professionals, guards and supervisors as defined in the Act." The recognition clause which the parties agreed to was: Full-time and regularly scheduled part-time licensed practical nurses, nursing assistants, laboratory techni- cians, X-ray technicians, dietary employees, housekeep- ing employees, ward secretaries, maintenance employ- ees, recreational therapists, certified occupational ther- apy assistants, and alcohol treatment counselors, excluding all office clerical employees, watchmen, guards, professional employees and supervisors as defined in the National Labor Relations Act, as amended, and all other employees. No contention has been made that the foregoing unit description is inconsistent with or contradictory to the unit found appropriate by the Board. It appears that the parties used more specific and detailed language in their recogni- tion clause than the more simply worded "all employees" description in the certification. After considering the foregoing, I conclude that the unit description, as agreed to by the parties, constitutes an appropriate unit for the purposes of collective bargaining. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW Upon the basis of the findings of fact and upon the entire record in this proceeding, I make the following conclusions of law: I. Mount Airy Foundation d/b/a Mount Airy Psychi- atric Center is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local No. 7, chartered by Retail Clerks International Association, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Full-time and regularly scheduled part-time licensed practical nurses, nursing assistants, laboratory techni- cians, X-ray technicians, dietary employees, housekeep- ing employees, ward secretaries, maintenance employ- ees, recreational therapists, certified occupational ther- apy assistants, and alcohol treatment counsellors, excluding all office clerical employees, watchmen, guards, professional employees and supervisors as defined in the National Labor Relations Act, as amended, and all other employees. 4. By refusing since on or about July 28, 1976, to execute the collective-bargaining agreement and the strike settlement agreement which were agreed to by the Respondent and the Union on July 28, 1976, the Respon- dent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 5. By refusing to recognize and bargain with the Union since on or about August 9, 1976, concerning the wages, hours, and terms and conditions of employment of the employees in the appropriate bargaining unit described above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. By unilaterally promulgating on or about August 25, 1976, a recall and reinstatement policy for former striking employees in the appropriate bargaining unit described above, without notice to or bargaining with the Union, and which was in different terms than the strike settlement agreement agreed to by the Respondent and the Union on July 28, 1976, the Respondent has engaged in unfair labor 680 MOUNT AIRY PSYCHIATRIC CENTER practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(l) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Since employees of the Respondent in the bargaining unit may have suffered losses since on or about July 28, 1976, because of the Respondent's failure to execute the agreed-upon contract and the strike settlement agreement, I shall also recommend that the Respondent reimburse the employees for such losses. In view of the nature of the unfair labor practices, I shall further recommend that the Respondent be ordered not to interfere with, restrain, or coerce its employees in any like or related manner concerning the exercise of their rights guaranteed to them in Section 7 of the Act. DY)-Dee Wash, Inc., 228 NLRB 389 (1977). In his brief, the attorney for the Union asks that attorney's fees be awarded to the Charging Party on the following grounds: What also becomes clear is that Respondent present- ed no evidence which would support even a colorable defense to the allegations in the complaint. It is obvious that Respondent has decided not to voluntarily sign a collective bargaining agreement with Charging Party and will raise all of the frivolous defenses it can in order to delay being ordered to sign the collective bargaining agreement. Under these circumstances the Administra- tive Law Judge should award Charging Party its attorney's fees for having to spend time and effort prosecuting a suit in which there is not one iota of evidence which supports any colorable defense. Such relief would be only proper to add to an order requiring execution of the collective bargaining agreement agreed to on July 28. The Board has recently had the occasion to discuss the rationale underlying its Decision in Tiidee Products, Inc., 194 NLRB 1234 (1972), in Kings Terrace Nursing Home and Health Facility, 227 NLRB 251 (1976). The Board stated: In Heck's Inc., 215 NLRB 765 (1974), the Board reviewed and fully considered the question of awarding litigation expenses and costs to the Charging Party. The Board reaffirmed its position, heretofore expressed in Tiidee Products, that the award of litigation expenses, except in extraordinary circumstances involving frivo- lous defenses, would discourage respondents from gaining access to the appropriate forum in order to fully litigate debatable defenses. We do not believe that this is an appropriate case in which to impose the 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. extraordinary remedy of the award of litigation expens- es. * * * In Tiidee Products, Inc., supra, wherein litigation expenses were assessed against a respondent, the respondent had engaged in numerous violations of the Act, reflecting a hostile attitude toward collective bargaining. The Board emphasized that the remedy was justified because of the "patently frivolous" nature of the defense offered by the respondent. Where the defenses raised by the respondent are "debatable," rather than frivolous, the remedy has been found to be unwarranted, even where the employer has "engaged in 'clearly aggravated and pervasive misconduct' or in the 'flagrant repetition of conduct previously found unlaw- ful,... .' " Applying the criteria of the Board as reflected in its discussion in the Kings Terrace decision concerning its earlier holdings in Tiidee Products and Heck's, I conclude that the Respondent's defense was clearly not frivolous, and that the extraordinary remedy of awarding attorney's fees to the Charging Party is not warranted in this case. Accordingly, the Charging Party's request for such a remedy is denied. Upon the basis of the findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended Order: ORDER' The Respondent, Mount Airy Foundation d/b/a Mount Airy Psychiatric Center, Denver, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to execute the collective-bargaining agree- ment and the strike settlement agreemen:t which were agreed to by the Respondent and the Union on July 28, 1976, concerning the employees in the appropriate unit described below: Full-time and regularly scheduled part-time licensed practical nurses, nursing assistants, laboratory techni- cians, X-ray technicians, dietary employees, housekeep- ing employees, ward secretaries, maintenance employ- ees, recreational therapists, certified occupational ther- apy assistants, and alcohol treatment counsellors, excluding all office clerical employees, watchmen, guards, professional employees and supervisors as defined in the National Labor Relations Act, as amended, and all other employees. (b) Refusing to recognize and bargain with the Union concerning the wages, hours, terms and conditions of employment of the employees in the appropriate bargain- ing unit described above. 102.48 of the Rules and Regulations. be adopted by the Board and bhecome its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 681 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Unilaterally promulgating a recall and reinstatement policy for former striking employees in the appropriate bargaining unit described above, without notice to or bargaining with the Union, and in different terms than the strike settlement agreement agreed to by the Respondent and the Union on July 28, 1976. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Recognize and bargain, upon request, with the Union as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit described above, and execute forthwith the collective-bargaining agreement and the strike settlement agreement which were agreed to by the Respondent and the Union on July 28, 1976. (b) Rescind the "Hospital Reinstatement Policy" con- cerning the recall and reinstatement of former striking employees in the appropriate bargaining unit described above, which the Respondent unilaterally promulgated on or about August 25, 1976. (c) Reimburse employees in the appropriate bargaining unit described above for losses suffered by them which resulted from the failure of the Respondent to execute and apply the terms of the collective-bargaining agreement and the strike settlement agreement which were agreed upon by the Respondent and the Union on July 28, 1976. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of money due under the terms of this Order. (e) Post at its Denver, Colorado, facility copies of the attached notice marked "Appendix." 2 Copies of the notice are to be on forms which will be provided by the Regional Director of Region 27 of the Board. After those notices are signed by the Respondent, the Respondent shall post such notices immediately upon receiving them, and the Respondent shall maintain such notices for 60 consecutive days thereafter, in conspicuous places, including all places where the Respondent custom- arily posts notices to employees. The Respondent shall take reasonable steps to insure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event that the Board's Order is enforced by a Judgment of the 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 After a hearing at which all parties had the opportunity to present evidence, it has been found that we violated the National Labor Relations Act, and we have been ordered to post this notice. WE WILL recognize Retail Clerks Union, Local No. 7, chartered by Retail Clerks International Association, AFL-CIO-CLC, and bargain upon request, with the Union as the exclusive collective-bargaining represen- tative of the employees in the appropriate bargaining unit described below, and WE WILL execute forthwith the collective-bargaining agreement and the strike settlement agreement which we and the Union agreed to on July 28, 1976. The appropriate bargaining unit is: Full-time and regularly scheduled part-time licensed practical nurses, nursing assistants, labo- ratory technicians, X-ray technicians, dietary employees, housekeeping employees, ward secre- taries, maintenance employees, recreational ther- apists, certified occupational therapy assistants, and alcohol treatment counsellors, excluding all office clerical employees, watchmen, guards, professional employees and supervisors as de- fined in the National Labor Relations Act, as amended, and all other employees. WE WILL rescind the "Hospital Reinstatement Policy" concerning the recall and reinstatement of former striking employees in the unit described above, which was promulgated unilaterally. WE WILL reimburse employees in the appropriate bargaining unit described above for losses suffered by them which resulted from the fact that we did not execute the collective-bargaining agreement and the strike settlement agreement which were agreed upon on July 28, 1976. WE WILL NOT refuse to bargain with the Union by failing to do the foregoing, and WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them by the National Labor Relations Act. MOUNT AIRY FOUNDATION D/B/A MOUNT AIRY PSYCHIATRIC CENTER 682