Hilton Inn North

HILTON INN NORTH Hilton Inn North and Hotel Employees and Restau- rant Employees Local Union No. 70, Hotel Em- ployees and Restaurant Employees International Union, AFL-CIO. Case 9-CA-22121 31 March 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 20 December 1985, Administrative Law Judge Michael O. Miller issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,' findings, 2 and conclusions and to adopt the recommended Order. 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Hilton Inn North, Columbus, Ohio, its officers, agents, successors, and assigns , shall take the action set forth in the Order as modified. Substitute the following as paragraph 2(e). "(e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order what steps have been taken to comply here- with. For purposes of determining or securing compliance of this Order, the Board or any of its duly authorized representatives may obtain discov- ery from the Respondent, its officers, agents, suc- i The Respondent has excepted to the judge's denial of its motion to reopen the record The Respondent contends that it possesses evidence (a decertification petition filed 24 January 1985 and the affidavit referred to in the judge's decision at fn 1 ) which it seeks to introduce by its motion, which establishes that a majority of the employees in the unit no longer wish to be represented by the Union The Respondent also urges us to reconsider Dresser Industries, 264 NLRB 1088 (1982), and to return to the standard of Teleautograph Corp, 199 NLRB 892 (1972). We decline to consider the Respondent's arguments as they are untimely raised . We fur- ther note that at no time during negotiations did the Respondent advance the Union's purported loss of majority status as a basis for its refusal to bargain Accordingly, we affirm the judge's denial of the Respondent's motion to reopen the record 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings S In his recommended remedy and Order, the judge provided for a vi sitatorial clause We agree with the judge that a visitatonal clause is ap- propriate, based on the possible complexity of computing the make-whole remedy here and on all the facts of this case 45 cessors, or assigns, or any other person having knowledge concerning any compliance matter, in the manner set forth by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had upon any matter reasonably relating to compliance with this Order, as enforced by the court." Patricia R. Fry, Esq., for the General Counsel. Harold Burchett, and Spencer M. Youell, Esq., of Colum- bus, Ohio, for the Respondent. Robert J. Fiascone, of Columbus, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard on 3 October 1985 in Columbus, Ohio, on an unfair labor practice charge filed on 14 June 1985 by Hotel Employees and Restaurant Employees Local Union No. 70, Hotel Employees and Restaurant Employ- ees International Union, AFL-CIO (Union), and a com- plaint issued by the Regional Director for Region 9 of the National Labor Relations Board on 26 July 1985. The complaint alleges that Hilton Inn North violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to sign, on the Union's request, a collec- tive-bargaining agreement embodying the complete and final understanding reached in May 1985. Respondent's timely filed answer denies the commission of any unfair labor practices. All parties were afforded full opportunity to appear, to examine and to cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Re- spondent. Based on the entire record, t including my observation of the witness and their demeanor, I make the following i On 14 November 1985 Respondent's counsel submitted a motion to reopen the record to receive an affidavit, with attachments, of Delesia Snider, Respondent's director of personnel The affidavit, dated 5 No- vember 1985, purports to establish that on Ii January 1985 Snider re- ceived evidence that a majority of the unit employees no longer desired to be represented by the Union Respondent's motion is denied As the Board pointed out in K-C Machine Co, 268 NLRB 1474 In 3 (1984)• In a motion to reopen the record, the movant must state briefly "the additional evidence sought to be adduced , why it was not presented previously, and that, if adduced and credited, it would require a dif- ferent result Only newly discovered evidence, evidence which has become available only since the close of hearing, or evidence which the Board believes should have been taken at the hearing will be taken at any further hearing " National Labor Relations Board Rules and Regulations, Sec 102 48(d)(1) See also Dirt Digger, 274 NLRB 1024 (1985), Penn Yan Express, 274 NLRB 449 (1985), and Benchmark Industries, 270 NLRB 22 (1983). In the instant case, both the motion and the affidavit sought to be intro- duced establish that the evidence was known to Respondent 9 months prior to the hearing, thus precluding any contention that the evidence is newly discovered Moreover, Respondent's motion fails to offer any ex- planation for its failure to present this evidence at the hearing Indeed, Respondent admitted the Union's representative status in its answer, Re- Continued 279 NLRB No. 9 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW Respondent is an Ohio corporation engaged at Colum- bus, Ohio, in the operation of a motel and restaurant. Ju- risdiction is not in dispute. The complaint alleges, Re- spondent admits, and I find and conclude that Respond- ent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background On 14 March 1983 the Union was certified as the ex- clusive collective-bargaining representative of Respond- ent's employees in the following unit which is appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All maids, housemen, laundry employees, mainte- nance employees and bellmen employed by Hilton Inn North at its hotel facilities located at 7007 North High Street, Columbus, Ohio, excluding res- taurant employees, lounge employees, kitchen em- ployees, front desk employees, office clerical em- ployees, and all other employees, and all guards, professional employees and supervisors as defined in the Act. The Union continues as the employees' representative. B. The Negotiations Negotiations began in the spring of 1983. Steven Skaggs, the Union's vice president and business agent, was the Union's principal spokesman; on occasion Robert Fiascone, a national organizer and president of Local 70, and Dale Stormer, International vice president, also participated in negotiations. Respondent was repre- sented by Harold Burchett, a nonlawyer labor relations consultant. Burchett was empowered to negotiate on Re- spondent's behalf; however, any contract reached would be signed by Dale Cochran, Respondent's owner. Coch- ran did not participate in any of the negotiations. By November 1983 the parties had met 13 times and reached substantial but not final agreement . On 19 No- vember 1983 Respondent submitted a final offer to the Union, a 6-year agreement which included union security and dues checkoff. On 23 November 1983 Skaggs re- sponded to the final proposal, indicating possible agree- spondent has never contended that it withdrew recognition from the Union and Snider made no reference to the alleged evidence of employee disaffection when she testified Finally, I note that Snider's affidavit would not have been admissible even if it had been offered at the hearing and would, at this juncture, carry little or no probative weight See, for example, Malta Construction Co., 276 NLRB 1494 (1985), and Valley West Welding, 265 NLRB 1596 (1982) ment if problems in the seniority, insurance, and room cleaning incentive bonus provisions could be ironed out. On 6 December 1983 Respondent's director of person- nel, Delesia Snider, sent the Union a letter enclosing "Work Environment Practices [which] have been estab- lished at the Hilton Inn North to ensure a uniform prac- tice of progressive discipline for all of our employees." Snider's cover letter did not purport to add the work en- vironment practices to Respondent's final offer and did not ask to bargain with respect to their implementation. They became effective on the first day of January 1984. The Union's problems with Respondent's final offer were not resolved and, on 18 February 1984, Burchett wrote Skaggs. Setting forth a number of reasons, includ- ing the hotel's weakening economic situation, the Union's failure to present its offer for a ratification vote, and the cancellation of a meeting, Burchett stated, "The company's final offer has been withdrawn effective 2/18/84." He indicated a willingness to continue bargain- ing. On 27 February 1984 Stormer met with Burchett at a restaurant called the Whaling Station. At this meeting, Respondent raised several new issues. Respondent pro- posed that: (1) the Union agree that all grievances and unfair labor practice charges would be cleared through Stormer and discussed with Burchett and Cochran prior to being filed; (2) the Union agree to refer business to Respondent from political organizations and other unions; (3) the Union agree not to seek representation of any other classification of Respondent's employees during the term of the agreement; and (4) the Union agree to assist the Respondent in securing loans at 8 per- cent or less and to identify a source of such a loan prior to the signing of the collective-bargaining agreement. On 4 April 1984 Skaggs and Burchett met at a local restaurant where Burchett presented a three-page docu- ment (G.C. Exhs. 9(a)-(c)). The first page was headed "Letter of Agreement" and reiterated the Whaling Sta- tion issues. The second began, "PARTIES AGREE to modify the contract given to the Union in November 1983 as follows . . . ." That page contained approxi- mately 12 modifications or additions in such matters as the effective dates (changing the effective dates to "3/1/84 thru 1/31/90"), the management-rights clause, the seniority and layoff provisions, the vacation sched- ule, and the room incentive rate. Finally, included in the documents presented by Burchett was a new wage schedule listing wage increases to be effective on 1 May of each year.2 Skaggs rejected Burchett's proposed letter 2 On cross-examination, while explaining references in his pretrial affi- davit (not in evidence), Burchett contended that G C Exhs 9(a)-(c), which Skaggs claimed to have received on 4 April 1984, was actually a document mailed by Burchett to Skaggs on 7 September 1984, after a meeting of 29 August 1984, discussed infra On the basis of both demean- or and probability, I credit Skaggs' testimony that he received it on 4 April The dates used in G.C Exhs 9(a)-(c) are consistent with an offer made in April 1984 Moreover, in evidence as G C Exhs 6(a)-(c), is an- other three-page document from Burchett to Skaggs That document in- cludes a cover memo on Burchett's stationery dated "September 7, 1984" and corrected cover and signature pages to the contract G C Exhs 6(a)-(c), not G C Exhs 9(a)-(c), I find, is the document which Burchett sent Skaggs on 7 September 1984 HILTON INN NORTH of agreement and modifications, pointing out that the parties already had a grievance and arbitration proce- dure, thus negotiating the necessity to include the pro- posed language about prior clearance. He also pointed out that the Union could not guarantee loans to Re- spondent. The Whaling Station issues, he testified, were intended as mere generalities, things the Union would seek to do for Respondent, rather than as contractual guarantees by the Union. Skaggs and Burchett met again on 21 May 1984. On the following day, Skaggs wrote Burchett a letter setting forth six proposals for management to review. These in- cluded a 6-year term of agreement, wages as proposed by Burchett, a change in the room incentive payments, a union agreement not to solicit employees in the food and beverage department for 2 years, an annual reopener at management's option in the event that business condi- tions prohibited management from granting scheduled annual wage increases, and an agreement by the Union to solicit business from labor and political organizations for Respondent. Thereafter, although there were no formal meetings between Burchett and Skaggs concerning Respondent, they did meet at various times with respect to other em- ployers. On those occasions, there was discussion of their negotiations for Hilton Inn North during which Skaggs repeatedly told Burchett that the Union could not guar- antee loans or any specific amount of business referrals. In the course of these meetings, Skaggs repeatedly re- quested that Burchett give him an update of Respond- ent's present position on the negotiations to take back to Fiascone and the employees in an effort to resolve their differences. On 23 August 1984 Burchett and Skaggs met again and Burchett gave Skaggs a complete contract package at the top of which was typed "Updated As of 6/20/84." This document, on its face a contract for a term from "July 1, 1984 through June 30, 1990," included union se- curity and dues checkoff and the contract modifications and wages proposed by Burchett to Skaggs on 4 April 1984. The contract did not include any reference to the Whaling Station issues. Burchett contended that the "6/20/84 Update" was merely an internal working com- pany document which he had furnished to Skaggs solely because Skaggs had claimed to be lacking a copy of the proposals. According to Skaggs, however, Burchett was responding to Skaggs' request for an update of the Com- pany's current position and Burchett expressly stated to Skaggs that this was such a position, one which Burchett wished Skaggs to review and respond to. Burchett's tes- timony in this respect is inconsistent with the document itself, especially the revised effective dates contained therein, and appeared contrived; I credit Skaggs, whose credibility offered testimony was corroborated by the ap- pearance of the document. On 23 August 1984 following submission of the "6/20/84 Update," Skaggs and Burchett set a meeting for 29 August 1984. When they met on that date, accord- ing to Skaggs' testimony, which I credit, Stormer told Burchett that the Union had decided to accept Respond- ent's offer. Burchett replied, "Oh really." Skaggs left the meeting briefly to photocopy the agreement and re- 47 turned with six signed copies. He asked that Burchett have Cochran sign and return them as soon as possible. At this point, Burchett said something to the effect that "Well, I guess we've got a contract."3 In a telephone conversation, following the meeting of 29 August 1984, Burchett told Skaggs that there were ty- pographical errors in the contract. Skaggs asked Bur- chett to retype the offending pages and agreed to resign them. On 10 September 1984 Skaggs received a memo from Burchett, dated "September 7, 1984," to which was attached new cover and signature pages and a new page one, each correctly stating the Union's name . Burchett's memo requested that Skaggs resign the agreement. (G.C. Exhs 6(a)-(c).) On 11 September 1984 Skaggs signed and returned the corrected signature page together with a request that Cochran similarly sign it. Cochran did not. Instead, Burchett called Skaggs again. He told Skaggs, "Oh, by the way, Steve, we did not address the Whaling Station issues." Skaggs protested that those issues were dead, that they had not been part of Respondent's updat- ed proposal. Burchett told Skaggs that there was nothing for Cochran to sign until those issues were addressed and taken care of.4 Burchett and Stormer met next on 19 November 1984. Delesia Snider was also in attendance. Burchett and Stormer discussed an agenda prepared by Burchett which reiterated and expanded on the Whaling Station issues and added one new issue. Stormer told Burchett that the Union could agree to Respondent's proposal that all grievances and unfair labor practices be cleared through higher company and union personnel prior to filing; he objected to Burchett's demands that the Union guarantee a specific level of referred business to Re- spondent during the life of the contract, and commit to securing a $10 million loan for Respondent within the calendar year. Stormer also objected to the demand that the Union not seek to represent other employees at Re- spondent's facility and to a new proposal that manage- ment retain the right to implement an incentive work/pay plan. These were the only issues discussed. No formal meetings were held after 19 November 1984 until late spring of 1985. During that period, there were telephone communications between Skaggs and Burchett wherein Skaggs repeatedly reiterated the Union's objections to Respondent's demands of guaran- teed business referrals and loans from or through the Union. In late April, Skaggs and Burchett met to discuss, and agreed on, implementing new wage rates for certain unit employees. At that time, they also discussed the 23 3 Burchett's testimony, to the effect that he told Skaggs, "Even though you have signed that contract, the offer has been withdrawn," was self-serving, implausible, and inconsistent with both the complete docu- ment tendered to the Union on 23 August 1984 and with Burchett's sub- sequent actions, submitting corrected cover and signature pages to Skaggs, with a request that Skaggs resign the signature page ' Burchett testified that he made reference to the Whaling Station issues on 29 August I believe, however, as Skaggs testified, that Burchett did not mention them until the above-described telephone conversation I note that Burchett made no reference to these issues in his first telephone conversation following 29 August or in the corrections or memo of 7 September 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 1984 contract document (the "6/20/84 Update") including changing the dates set forth in it; Burchett did not indicate that anything else was involved or on the table. They agreed to a further meeting, which was held on 1 May 1985. In the course of that meeting, Skaggs and Burchett went over Burchett's typed agenda for the 19 November 1984 meeting, previously discussed by Bur- chett with both Stormer and Skaggs. According to Skaggs' testimony, as corroborated by notes written by Burchett on the agenda, the Union agreed to include the modifications of the grievance procedure in the contract as proposed by Respondent and Respondent dropped its demands for specific commitments from the Union for business referrals and loans. Respondent also dropped the proposal that management retain the right to implement an incentive work/pay plan. Burchett then wrote out a statement of where the parties were in negotiations and gave a copy of that statement to Skaggs. In that hand- written statement of position, Burchett reiterated the agreements made with respect to the 19 November 1984 agenda, stating: 4. Co Drops language on memo (side to contract 11-19-84) RE: A. Union guaranteeing $200,000 annually to Hilton-Union Referrals. Company Drops B. Union providing loan of $10 million to Com- pany for expansion or refinancing total projects. Company Drops C. Co Drops paragraph on requiring present & future employees to particpate in incentive plan, it's covered in appendix A. 5. -Cochran wants to go through contract to give Hal O.K. on language before finalizing total contract, and review the memorandum and any changes, additions or omissions. 7. Company will prepare an updated revision of Appendix "A" to reflect changes in hiring rates etc for Union to approve. The only open item was Respondent's insistence that the Union agree not to seek to represent any other classifica- tions of Respondent's employees for the 6-year life of the agreement. Skaggs then got Fiascone's approval of the entire agreement, including the restriction on organizing other employees and, on 2 May 1985, called Burchett. He told Burchett that everything "was a go" and asked that Bur- chett go ahead and type up the agreement for signing. Burchett replied, "Well, Mr. Cochran is going to review the language and I'm going to get some updates on the dates, and I've got to sit down with Delesia [Snider] and go through it." Repeatedly thereafter, Skaggs requested, to no avail, that Burchett prepare the final agreement for signing, as was Burchett's practice. On 10 May Skaggs and Burchett met in the presence of a National Labor Relations Board agent to discuss set- tlement of an unrelated unfair labor practice charge. In the course of that meeting the Board' s agent Ray Neusch stated, "I hear that you all have got an agreement now." Burchett replied, "Well, we have an agreement, but Mr. Cochran is still going to check the-read the language over." Skaggs asked, "The man had had the contract for two years. Why hasn't he read it before now?" Neusch asked whether there were any open items. Skaggs repeat- ed that there were none as far as the Union was con- cerned and Burchett said that there were "none that he could think of, but Mr. Cochran still wanted to review the language, and they had to update the dates." Neusch asked whether there was anything to stop the signing of the agreement if Cochran entered the room right then and Burchett replied, "Well, if he's read it, I guess noth- ing."5 On 6 June 1985 Burchett called Skaggs and asked to set a meeting for 19 June 1985. Skaggs replied that Bur- chett had long enough and that if the Union did not have a signed contract by the following Friday, it would file an unfair labor practice charge. Burchett replied that that would just prolong the matter and that he had not yet had a chance to meet with Cochran; he did not know whether Cochran had reviewed the language. According to the testimony of Skaggs, which I credit, there was no agreement to meet on 19 June 1985.6 The unfair labor practice charge underlying this com- plaint was filed by the Union on 14 June 1985. On 19 June Skaggs went to the hotel to meet with employees and waited outside the hotel for them for an hour. After that period of time, the employees came out and told him that Burchett was waiting for him inside the hotel. Skaggs did not meet with Burchett that day. Several days later, Burchett called him and stated that Respond- ent had another contract proposal which it had intended to present on 19 June. Skaggs protested that they had a complete agreement but asked what changes Burchett was now seeking. Burchett refused to tell him. Skaggs stated that the Union would pursue its rights through the National Labor Relations Board. The contract proposal which Burchett claims Re- spondent intended to submit to the Union on 19 June is substantially identical to the contract proposal "Updated as of 6/20/84" as signed by Skaggs on 11 September 1984 with the modifications subsequently agreed to on 19 November 1984 and 1 and 2 May 1985. However, it eliminates both union security and dues checkoff and adds polygraph testing to the management rights. C. Analysis and Conclusions The General Counsel contends that the parties reached a complete agreement on 2 May 1985 which included Respondent's 19 November 1983 "final" proposal as amended by agreement in subsequent bargaining. Re- spondent's principal argument is that the 19 November 1983 offer had been withdrawn and never reinstated. Re- spondent further argues that the "Work Environment s The foregoing is taken from the credited and uncontradicted testimo- ny of Skaggs That Skaggs may have been late for some meeting early in the nego- tiations is immaterial to the question of whether or not he failed to attend a scheduled meeting on 19 June 1985 Skaggs believed they had reached a complete agreement, there was no reason for him to agree to hold a bargaining session on 19 June, and I do not believe that he made any such commitment HILTON INN NORTH Practices" were still on the table and that Respondent's owner, Cochran, had retained the right to alter any agreement reached by the parties' negotiators. Respondent's contentions are without merit. The offer which Respondent withdrew on 18 February 1984 was reintroduced and repeatedly reaffirmed by Burchett. Thus, on 4 April 1984, Burchett proposed a number of modifications to the 19 November 1983 offer, implicit in such a proposal is retention on the table of those portions of the earlier proposal to which no modifications were proposed. Even more explicit was Burchett's 29 August 1984 presentation of Respondent's proposal "Updated as of 6/20/84" and the bargaining which followed that presentation. The Union accepted and signed off on that entire offer.7 There can be no doubt that the events from 29 August through 11 September 1984, including Bur- chett's request that Skaggs resign the agreement, estab- lish the continued viability of Respondent's offer of No- vember 1983, as amended by its proposals of 4 April 1984. Only Burchett's resurrection of the Whaling Sta- tion issues defeated final agreement on 11 September 1984. Respondent's offer remained viable when Skaggs and Burchett discussed amending the contract's dates in late April 19858 and when they negotiated and reached final agreement on the Whaling Station issues on 2 May 1985.9 I note, in particular, Burchett's own handwritten and oral statements about the status of the negotiations at the conclusion of the May 1 meeting, which refer to a review of the language by Respondent's owner "before finalizing total contract" and to the updating of dates and rates in the contract and its appendix. Finally, I note the meeting of 10 May 1985 and Burchett's acknowl- edgement therein that the parties had reached a complete agreement which could be signed as soon as Cochran re- viewed the language. Review of the contract language by Respondent's owner was not, as Respondent contends, a right to veto the agreements reached by the negotiators and to substi- tute wholly new demands. Burchett was Respondent's negotiator, Cochran's review of the agreement reached by Burchett was, as Burchett himself acknowledged, in the nature of proofreading. Respondent never retained the right to have final agreement subject to Cochran's whim at the conclusion of negotiations; to impose such review now would forever impede agreement. As noted, Respondent also contends that the parties had not resolved the issue of the "Work Environment Practices." Those practices were never part of the nego- tiations; they were implemented by Respondent on 1 Jan- uary 1984, after notice to, and without any objection from, the Union. Since at least September 1984, and arguably before, Respondent has played a "cat and mouse" game with the Union, imposing new obstacles each time final agreement ' The Union having signed the entire agreement, Respondent's argu- ment that the Union had never signified its agreement to each article in its usual way by initialing them must fall 8 Arno Moccasin Co, 274 NLRB 1515 (1985), John Morrell & Co, 268 NLRB 304 (1983), Pepsi Cola Bottling Co, 251 NLRB 187 (1980), enfd 659 F 2d 87 (8th Cir 1981) 9 Respondent's brief acknowledges final agreement on the Whaling Station issues on about May 1, 1985 " 49 appeared close . That game now ends. See Georgia Kraft Co., 258 NLRB 908, 911 (1981). Final agreement was reached on a complete collective-bargaining agreement on 2 May 1985, the Union demanded that Respondent put that agreement in writing and execute it, as Respond- ent was clearly obligated to do, Respondent has refused to do so, and its refusal violates Section 8 (a)(5) and (1) of the Act. H. J. Heinz v. NLRB, 311 U.S. 514 (1941); Con- sumat Systems, 273 NLRB 410 (1985); Georgia Kraft, supra. 10 CONCLUSIONS OF LAW 1. The Union is now and at all times material has been the exclusive representative for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act of the employees of the Respondent in the following appropriate unit: All maids, housemen, laundry employees, mainte- nance employees and bellman employed by Hilton Inn North at its hotel facilities located at 7007 North High Street, Columbus, Ohio, excluding res- taurant employees, lounge employees, kitchen em- ployees, front desk employees, office clerical em- ployees, and all other employees, and all guards, professional employees and supervisors as defined in the Act. 2. Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act by refusing, on and after 2 May 1985, to assist the Union in reducing to writing, executing, and implementing the collective-bargaining agreement reached by Respondent and the Union on 2 May 1985. 3. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act, I recommend that Respondent be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent unlawfully refused and continues to refuse to assist the Union in reducing the ageement reached by the parties to writing and to exe- cute and implement that agreement, I shall recommend that it be ordered to reduce that agreement to writing and execute same by signing. The agreeement will be ret- roactive to 2 May 1985, the date agreement was reached and Respondent refused to execute same. Respondent will also be ordered to reimburse the unit employees for any increase in wages or benefits owed thereunder as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). 10 I note in this respect that it was Burchett's practice to undertake final preparation of collective-bargaining agreements he negotiated 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel additionally seeks a visitatorial clause to be included in the Order to ensure compliance with the Board's Order. As defined by the General Counsel, "a visitorial clause permits an agency to exam- ine the books and records of a Respondent and to take statements from its officers and employees and others for the purpose of determining or securing compliance with a court's judgment." I believe that the General Counsel is entitled to such remedial provisions as may be neces- sary to guarantee compliance with whatever the Board and/or the courts order in cases such as these . Accord- ingly, I shall recommend inclusion of a visitatorial clause in the remedy and Order. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed " ORDER The Respondent, Hilton Inn North, Columbus, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to reduce to writing , execute, and imple- ment the collective-bargaining agreement reached be- tween it and the Union on 2 May 1985, or in any other manner refusing to bargain in good faith with the Union as the exclusive collective-bargaining representative of the employees in the above-described unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Reduce to writing and duly execute the collective- bargaining agreement reached by the parties on 2 May 1985. (b) Give retroactive effect to the collective -bargaining agreement referred to above , and reimburse its employ- ees for any increased wages or benefits owed thereunder as described in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports , and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. For the purpose of determining or securing compliance with this Order, the Board or any of its duly authorized representatives may obtain discov- ery from Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concern- ing any compliance matter, in the manner provided by the Federal Rules of Civil Procedures. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. 11 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (d) Post at its premises in Columbus, Ohio, copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to bargain collectively with Hotel Employees and Restaurant Employees Local Union No. 70, Hotel Employees and Restaurant Employ- ees International Union, AFL-CIO as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All maids, housemen, laundry employees, mainte- nance employes and bellmen employed by Hilton Inn North at its hotel facilities located at 7007 North High Street, Columbus, Ohio, excluding res- taurant employees, lounge employees, kitchen em- ployees, front desk employees, office clerical em- ployees, and all other employees, and all guards, professional employees and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. HILTON INN NORTH 51 WE WILL reduce to writing and execute the collective- cute and implement the collective-bargaining agreement bargaining agreement reached between Hilton Inn North as of 2 May 1985, with interest. and the Union on 2 May 1985 and will make this agree- ment retroactive to that date. HILTON INN NORTH WE WILL make our employees whole for any loss of wages or benefits which resulted from our failure to exe-