Operating Engineers Local 30 (Hyatt Management)

OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT) Local Union No. 30 and 30A, International Union of Operating Engineers, AFL-CIO and Hyatt Management Corporation of New York, Inc. Case 29-CB-5776 30 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 31 January 1986 Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in re- sponse to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.I We agree with the judge that the Respondent violated Section 8(b)(3) of the Act by refusing to execute the contract which it had negotiated with the Company. We find, however, contrary to the judge, that the parties should execute the contract only for the duration of the contract's term. The contract agreed upon by the parties was supposed to commence as of 1 January 1984 and was to expire on 31 December 1986. The contract provided for wage increases for the employees in exchange for increased management rights provi- sions. The judge reasoned that because a substantial portion of the agreed term elapsed during the pendency of these proceedings, the contract's term should be extended so that the contract would expire on a date 3 years from the date that the Re- spondent executes the contract. We disagree. While the Board has the authority to enforce the terms of a negotiated agreement, we cannot compel a party to agree to contractual provisions not contained in the negotiated agreement. H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970). That would be the case here if we adopted the judge's recommended remedy and Order extending the term of the par- ties' contract beyond its original expiration date. The Respondent excepts to the judge's remedy, asserting that if ordered to execute the contract, the contract must be made retroactive to its origi- nally intended date of execution. This, it insists, is the only way Respondent can comply with H. K. 1 We find that awarding the Charging Party attorney's fees and costs is unwarranted. Accordingly, the Charging Party's motion for attorney's fees and costs is denied 205 Porter. The Respondent's position, however, ig- nores the realities of the situation. While the em- ployees could, of course, be given the wage in- creases agreed upon, there is no way retroactively to grant the Charging Party the benefits of such provisions as the management-rights clause-pre- sumably part of the quid pro quo for giving the wage increases. The Charging Party, on the other hand, asserts that in order for it to obtain the 3-year contract for which it bargained we must extend the contract to run for 3 years from the date on which the Re- spondent executes the agreement.2 This remedy, however, would give the parties contractual terms for which they never bargained, for it would apply particular wages, terms, and conditions of employ- ment for a period of time different from that during which the parties intended those wages, terms, and conditions to apply. Whether the parties would have agreed to such conditions for the new period-a period with economic conditions and outlooks different from those existing during the original period-is something we cannot say. Therefore, under H. K Porter we cannot extend the contract. Hence, we are in a position where the only prac- tical remedy that we have power to give is to order that the Respondent execute the contract agreed upon to run until the contract's expiration date. We realize that under our remedy and Order the Charging Party will have to forgo the benefits of its newly obtained management rights provisions for the period of the contract which has already expired. Likewise the unit employees will have to forgo the increased wages they would have re- ceived during the same period. Unfortunately, this is a situation in which, because of the Respondent's failure to execute the contract and live up to its side of the parties' accord reached in the give and take of bargaining, we are precluded from fashion- ing a remedy that would provide the Charging Party and its employees the benefits of the negoti- ated agreement for the period of the contract that has already passed. Consequently, we will order the Respondent to execute the agreed-upon con- tract, which will run from the date of execution to the expiration date contained in the agreement. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- 2 The cases on which the Charging Party relies, Borg Compressed Steel Corp, 165 NLRB 394 (1967), and Schill Steel Products, 161 NLRB 939 (1966), both predated H. K. Porter 280 NLRB No. 18 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent, Local Union No. 30 and 30A, Interna- tional Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Delete paragraph 2(b) and reletter the subse- quent paragraphs. 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with Hyatt Management Corporation of New York, Inc. by refusing to sign the collective-bargaining agree- ment agreed to between Hyatt Management Cor- poration of New York, Inc. and us on 20 March 1984. WE WILL NOT in any like or related manner fail to comply with our obligation to bargain with Hyatt Management Corporation of New York, Inc. WE WILL on request of Hyatt Management Cor- poration of New York, Inc. execute the aforemen- tioned collective-bargaining agreement. LOCAL UNION No. 30 AND 30A, INTERNATIONAL UNION OF OPERAT- ING ENGINEERS, AFL-CIO Richard Auslander, Esq., for the General Counsel. Adam Ira Klein, Esq. (Mark Steven Soroka, Esq&), of New York, New York, for the Respondent. Lawrence Levien, Esq. (Akin, Gump, Strauss, Haver & Feld, Esq&), of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard by me at Brooklyn, New York, on 15 May 1985 and at New York, New York, on 18 Sep- tember 1985. The charge was filed by Hyatt Manage- ment Corporation of New York, Inc. (Hyatt) and served on the Respondent, Local Union No. 30 and 30A, Inter- national Union of Operating Engineers, AFL-CIO (the Union) on 2 October 1984.1 On 30 November the Re- r All dates hereinafter mentioned are in 1984 except as otherwise stated. gional Director issued a complaint alleging that the Union had violated Section 8(bX3) of the National Labor Relations Act (the Act) by reason of its refusal to exe- cute a collective-bargaining agreement which it had ne- gotiated with Hyatt. The Union interposed an answer which essentially admitted allegations that in December 1983 and in February and March 1984 Hyatt and the Union met and negotiated a collective-bargaining agree- ment to supersede an existing agreement which by its terms expired 31 December 1983, and that on 20 March 1984 Hyatt and the Union reached full and complete agreement on terms to be incorporated in a new agree- ment. However, the Union alleged affirmatively that the agreement was oral and subject to the ratification of the employees in the bargaining unit and denied allegations that since 26 March 1984 Hyatt has been requesting, and since 2 April 1984 the Union has been refusing, to exe- cute a written contract which embodied the agreed terms and conditions of employment. The Union also al- leged as an affirmative defense that the charge is barred by Section 10(b) of the Act. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses; and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel, the Charging Party, and the Respondent. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION There is no issue regarding jurisdiction, the Union having admitted in its answer that at the material times herein Hyatt was and is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union was and is a labor organiza- tion within the meaning of Section 2(5) of the Act, and its counsel having stipulated at the hearing that Hyatt, a New York corporation, derives annual income from building management services in excess of $500,000 and purchases materials and supplies valued in excess of $50,000 in interstate commerce for delivery to it at the Nassau Veterans Memorial Coliseum in Uniondale, Nassau County, New York. II. THE ALLEGED UNFAIR LABOR PRACTICES A. General Backgound Hyatt has been the manager and operator of the Nassau Veterans Memorial Coliseum, a public assembly facility for entertainment and ticketed events, since 1980.2 It operates under a 30-year lease from the county 2 The matters narrated without evidentiary comment are those facts found by me on the basis of adnussions in the answer, data contained in the exhibits, stipulations between or concessions by counsel , undisputed or uncontradicted testimony and, in instances where conflicts in the testi- mony did not warrant discussion, the testimony which I have credited. OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT) of Nassau. Its negotiations with the Union were for a contract to supersede an existing contract between them dated 1 July 1982, which by its terms expired 31 Decem- ber 1983. That agreement defined the covered collective- bargaining unit as follows: Chief Engineers, 1st Assistant Engineer, Watch En- gineer, Relief Engineer, Maintenance Men and Fire- men, excluding Clerical employees, supervisory em- ployees, professional employees, production em- ployees, watchmen and guards as defined in the Labor Management Relations Act of 1947, em- ployed by the Employer at the plant of the Em- ployer at Nassau County Coliseum and at such other locations to which the Employer's plant may be moved within the territorial jurisdiction of the Union. Upon the conclusion of the negotiations, Hyatt's coun- sel, Laurence J. Hoffman, prepared a written contract and arranged for it to be forwarded for execution to John T. Ahern, the Union's business agent, under cover letter dated 27 March. The covering letter referred to "two copies of the Agreement reached during our nego- tiations on March 20, 1984," and directed Ahern's atten- tion to a change in the contract assertedly made pursuant to an agreement with William Treacy, the Union's senior business agent. The documents were signed by David O. Skinner, Hyatt's president. This case resulted from Ahern's refusal to sign and return the agreement. B. History of the Negotiations Skinner and Hoffman testified, credibly, that the nego- tiations were conducted in three sessions which took place at the Coliseum on 13 December 1983 and on 14 February and 20 March 1984. Hyatt was represented at all the sessions by Skinner, Hoffman, and E. B. Sumerlin Jr., the general manager of the Coliseum, and the Union was represented by Ahern and by Patrick Snoddy, the shop steward. Snoddy consulted frequently with Ahern but Ahern did all the talking. The first session lasted almost 2 hours. Hyatt presented a document which Hoffman termed a "total rewrite of the prior contract." It was assertedly based on Hyatt's 3 years of experience in managing the Coliseum and deal- ing with the Union and 17 other unions involved in the operation of the Coliseum. Hyatt asserted that the changes it proposed were needed to improve operational efficiency so that the Coliseum could meet increased na- tional and local competition, which was drawing events away from the Coliseum. Hyatt also stated that it was seeking to develop a standardized contract as a basic document for use with all the unions, which could be modified to meet specific requirements of each union. The proposals which the Union presented at this first session fit on a single sheet of paper. Hyatt presented a complete contract. Consequently, the procedure which was adopted for the negotiations was to review the con- tract section by section, Skinner and Hoffman explaining proposed changes from the expired contract as they went along. The entire first session was devoted to a 207 general review of the proposed contract, without agree- ment on any particular terms. Notwithstanding the testimony of Skinner and Hoff- man to the foregoing effect, Ahern and Snoddy testified that the meeting scheduled for 13 December was not ac- tually held, having been canceled, and that only two ne- gotiating sessions were held. Their credibility was not enhanced by that testimony, for Respondent's answer admits that three meetings were held , in December 1983 and February and March 1984 and Respondent 's counsel concedes as much in his posthearing brief, asserting that, "The prior contract due to expire on December 31, 1983, the parties began negotiations for a new agreement." (Tr. 155.) That counsel is not referring simply to Ahern's tes- timony about sending out a notice is apparent from his assertion, in taking cognizance of the conflict in testimo- ny about the December meeting, that there was "a dis- pute between the witnesses as to when the negotiations began." I have little difficulty crediting Skinner and Hoffman on this point, not only because I found them more credible generally, but for the reasons that a letter to Ahern by Hoffman dated shortly thereafter contains a specific reference to a "conversation" between them and there is no evidence of any telephone conversation, Hoff- man produced his memorandum of the December meet- ing, and the draft contract proposal bears date 13 De- cember 1983. The Respondent's counsel argues, in his posthearing brief, that the meeting of 13 December 1983 was of mini- mal importance in any event, inasmuch as Hoffman testi- fied that no agreements were reached at the meeting. The point, however, is that the process of negotiation by which the parties ultimately arrived at a collective-bar- gaining agreement commenced with the presentation by Hyatt, for the reasons stated, of a complete draft con- tract for the Union's consideration, which the negotiators reviewed section by section. Such a procedure may well have led to the difficulty which thereafter arose, for Ahern's testimony in effect is that the two parties came away with different understandings of the impact which particular agreements relating to specific sections might have on other sections which were not explicitly modi- fied. Thus, the workday was extended from 7 to 8 hours, but no explicit modification was made in the provisions governing benefit days, leaving the parties to argue whether a day of funeral leave was meant to be 8 hours or 7 hours. Hyatt takes the position that it pays only for work done and that any section not explicitly modified stands as written; Ahern argues that sensible construction of the agreement requires conformance of sections not specifically amended to those which were. At issue here is whether the negotiations proceeded on the basis assert- ed by Skinner and Hoffman or on the basis claimed by Ahern. At the February session, which lasted 2 hours, agree- ment was reached on substantial portions of the contract. Six or eight articles of the draft contract remained open at the end of the session. The final session, on 20 March, lasted from noontime to about 7 o'clock. As of 6:30 p.m., when the Union, after caucusing, accepted certain of Hyatt's proposals 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and made specific counterproposals with respect to other matters, the open items were wages, contributions to an apprentice training program, holiday pay, travel time, sick leave, and an issue regarding the position of chief engineer, which Hyatt considered superfluous and wanted to abolish. Hyatt made a final proposal sometime between 6:45 and 7 p.m. which the Union accepted. The negotiators all shook hands and departed with the under- standing that Hoffman would put the agreement in final written form.3 While Skinner and Hoffman were at the Coliseum the next morning for negotiations with another union, Skin- ner received a telephone call from William F. Treacy, the Union's senior business manager. Treacy was upset that the apprentice training fund contribution had been reduced to $2 per week and was dissatisfied with the res- olution of the chief engineer issue (by abolishing the po- sition but grandfathering the incumbent). Skinner told Treacy that he felt that the negotiations had been fairly conducted and that he would not consent to reopen them, but if Treacy wanted to rearrange the financial package without changing the overall figures, he would consider it. They agreed to increase the apprentice fund payment and reduce the agreed wage rate , leaving the overall cost to Hyatt unchanged. Skinner told Treacy he would have the change made in the contract and send it to Ahern for signature. Hoffman was with Skinner and heard his end of the conversation. When the telephone call was concluded, Skinner instructed him to make the change agreed on with Treacy when he prepared the final contract. Treacy did not raise any other issues. C. Analysis of the Evidence Respecting Events Subsequent to the Negotiations The preponderance of the credible evidence, both oral and documentary, establishes a course of postnegotiation contacts between the parties in which Skinner insisted on return of the contract, executed, in the form in which it had been prepared by Hoffman, while Ahern balked on the ground that further face-to-face discussion was needed to straighten out problems. Ahern characterized the problems as "typos" but it is clear that he was look- ing for changes of a substantive nature in the contract that Hoffman had prepared and his position in these pro- ceedings has been that the changes which he sought were merely intended to conform Hoffman's contract to the agreement they had reached on 20 March. His testi- mony demonstrated that for the most part he was con- cerned with contractual terms which had been left in the form in which they had originally appeared in Hyatt's proposed draft and which he contended should have been changed to conform to modifications they had made in other sections of the contract. However, Skin- ner's contention that the agreement which came into being was what resulted from the section-by-section 8 Hoffman testified that he "agreed" to prepare the contract; Ahern testified that Hoffman "insisted" on preparing it, though the last two con- tracts had been prepared by the Umon. I credit Hoffman's testimony, in view of the apparent ready acquiescence on Ahern's part, Ahern's testi- mony that he was extremely busy and away from his office much of the time, and Ahern's failure to produce an alternate version of the contract after asserting dissatisfaction with the one prepared by Hoffman review of the draft proposal presented at the first session, with modifications applicable only to the sections to which they expressly related, is strongly corroborated by the events which followed the conclusion of the negotia- tions. The final session had ended with the negotiators ex- changing congratulations upon the completion of a suc- cessful negotiation, but the Union's subsequent behavior indicates a belated awareness of, and dissatisfaction with, ramifications of the method by which the contract had been negotiated. I conclude that Ahern was basically trying to reopen closed negotiations and avoid executing the contract he had negotiated. This is apparent from comparison between the explicit and straightforward tes- timony by Skinner regarding his postnegotiation tele- phone calls and conversations with Ahern and Ahern's vague, uncertain, implausible and self-contradictory testi- mony regarding them. It is impossible to be sure, from Ahern's testimony, whether he claims, in the period fol- lowing 20 March, to have been telling Skinner that there was a problem with language in the contract, or with the way in which the task of reducing their agreement to legal terms had been performed, or with the manner in which the terms themselves had been worked out or yet remained to be worked out. The one-way flow of writ- ten correspondence from Skinner to Ahern for 5 months thereafter leaves no doubt in my mind which of the par- ties was anxious to communicate, to move the contract forward to execution, and to document, for use in future litigation, the responsibility for failure to execute the contract. Hoffman sent Skinner the finalized agreement on 22 March along with a forwarding letter which was ad- dressed to Ahern. Skinner made a correction in the con- tract and on 27 March sent it to Ahern under cover letter which Hoffman had prepared. Very shortly there- after he began calling Ahern in order to get back a signed copy. Ahern was not in any hurry. He failed to respond to three telephone messages left by Skinner in late March and April. On 4 May Skinner sent him a mailgram: On March 20, 1984 Hyatt Management Corp. of New York and International Union of Operating Engineers, Local 30, negotiated a new contract. That new agreement was forwarded to you on March 26, 1984. 1 have not received my signed agreement. Please forward a signed copy of the new agreement or advise me of any problems delay- ing execution of the agreement. On 9 May Ahern telephoned Skinner at his office in Chicago. Their testimony as to what was said is in sharp conflict. According to Ahern, it went as follows: I told him there were a number of problems with the contract. Q. And did you get into detail at that point? A. I told him that there was some typographical errors in the benefit section. I told him that on Schedule A an entire section had been left out. I mentioned to him that the management rights were OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT) changed. And I indicated to him that there were quite a few items. More than just one or two items; that there was quite a few. He told me that he would look into it and speak to Mr. Hoffman and get back to me. Q. Did there come a time when he got back to you? A. The next thing I remember, I recollect is a telegram some time in June. I find Ahern's testimony inherently implausible. He is saying, in effect, that after bringing serious matters to Skinner's attention, he placidly waited for approximately 6 weeks without making any further attempt to secure a corrected contract, and would have waited even longer had Skinner not gotten in touch with him. Skinner's tes- timony demonstrates his greater anxiety to wrap the matter up and leaves a strong impression that he was the one who felt he was entitled to something that he was not getting and was trying to do something about it. Skinner's version of the conversation, entirely different from Ahern's, is clearer, more straightforward and, I find, more credible: Q. And what, if anything, did he tell you at that time? A. He told me that he had taken the contract back to the membership for ratification and it had been voted down. Q. What did you respond to that, if anything? A. My response was that it was the first time I had ever heard of any ratification being required on the contract. In the previous negotiations with Local 30, 30A, there was never any indication on their part that there was ever a ratification required of a contract nor during any of the negotiations for this contract was there ever any conversation about ratification of the contract. Q. What did he respond to that, if anything? A. Well, I am not sure if-I was the one doing most of the speaking at that point in time. After I told him that I was surprised that there was a vote required and then he told me it had been voted down-I suggested to him that we had spent many hours negotiating the contract, it had been negotiat- ed fairly. We were not prepared to re-enter negotia- tions and I suggested to him that he return to the membership and try a little harder to sell the con- tract to them. Q. Did he respond to that? A. Yes, he said he would do that. Skinner and Ahern agree that there ensued a lapse in their communication with each other. Skinner testified that the lapse occurred because Ahern was not respond- ing to telephone messages being left at his office. Three messages were left in late May and early June. While Ahern disclaimed knowledge of all the telephone mes- sages which Skinner testified he left for him, he does not claim to have attempted to revive communication. On 21 June, Skinner sent Ahern a telegram (not a mailgram): 209 I have tried to reach you numerous times in the past two weeks. To date I have not received a return telephone call. We have important matters that must be settled immediately. If I do not hear from you by Monday, June 25, 1984, I will with- draw our proposed contract and any offer of retro- active wages. This is the telegram Ahern referred to in the testimony quoted above. Ahern telephoned Skinner on 22 June and, again, there are two conflicting versions of the conversa- tion which ensued. Skinner's version is as follows: Q. What, if anything, did he tell you when he called? A. He told me that he had taken the contract back to the membership and it had been ratified. Ahern, on the other hand, testified as follows: Q. You spoke to Mr. Skinner on June 22nd, what was that conversation about? What did you discuss? A. I requested a meeting. I told him that there were a number of problems in the contract. That I couldn't ratify it as they had sent it to me. That it wasn't a problem with the wages but rather it was a problem with language, it was a problem of omis- sion where I still felt it was a problem of Schedule A being let out and that there were several other areas in the contract, that we wanted to meet and get it straightened out with them. Q. What did Mr. Skinner respond? A. Well, David was very upset. David said that he didn't [think] there had to be any changes made. That he didn't want to meet with me. "Jack, you know we have a good relationship but I'm really getting annoyed with this." You know, "I want you to sign it." I told him that I knew he was in the Nassau Coli- seum from time to time, negotiating with the other unions. I said I'd be available at any time and I wanted to get it settled. That's the way we left it. Even Ahern's version leaves no doubt that Skinner was consistently and insistently demanding execution and return of the contract in the form in which it had been prepared by Hoffman and that Ahern was making vague statements about needed changes and the necessity for a further meeting. The testimony of Skinner and Ahern is in accord that on 9 July Ahern left a telephone message with Skinner's secretary. As usual, there is disagreement about the con- tents of the message. Ahem testified that he told her to tell Skinner that the Union was going to submit a written copy of the agreement, or what they thought it was, if he and Skinner could not meet, "but that mostly I wanted to meet with him about the problems that we had on the contract." Skinner's version was that Ahern "left word that there were a couple of typos in the con- tract and he would correct the typos and return the con- tract to my office." I credit Skinner's version in part be- cause Ahern's testimony is not supported by his subse- 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quent conduct. He did not send Skinner an alternate con- tract and he did continue to request a further meeting with Skinner. Skinner and Ahern agree that in a telephone conversa- tion they had on 20 August, Skinner again demanded return of the agreement and Ahern again requested a meeting to discuss problems with the contract. This time, Ahern said there were a lot of "typos" and referred to one in particular, which Skinner checked and found did in fact exist. However, on this occasion Ahern went beyond typographical errors and referred to other mat- ters. For example, he testified that he told Skinner that the chief engineer's job was a "guaranteed position." His testimony in this respect contradicts other testimony which he gave to the effect that in the negotiations he and Skinner had agreed the fate of the position would be left open for future negotiation. Skinner testified that he again took the position that the terms had been agreed upon and suggested that Ahern pencil in his corrections and send them along. Ahern pleaded that he was too busy to do this, whereupon Skinner imposed a deadline (24 August), failing which he would withdraw the con- tract altogether along with any offer of retroactivity. On 7 September Skinner got something back-a marked-up photocopy of the contract, unsigned, which arrived at his office in an envelope without a covering letter. Ahern testified that a letter accompanied the con- tract. I am satisfied from his testimony that he did ar- range for the contract to be sent back under cover letter, dated 31 August 1984, in which he again requested a meeting and made self-serving statements to the effect that agreed changes were not reflected in the "proposed final draft contract" and that "considerable change" had been made in the negotiated economic package. At the same time, I credit Skinner's testimony that he never got the letter. The document returned to Skinner bore a number of notations and underlinings and there were changes of a substantial nature, such as the ending times of shifts. Skinner testified that the changes made by Ahern would have had the effect of compelling Hyatt to pay for meal periods and for daily overtime. The work- day and workweek had been changed by Hyatt from 7 hours daily and 35 weekly to 8 and 40, respectively, in the new contract, precisely to avoid paying for meal pe- riods and daily overtime as it had previously existed with the 7-hour day and 35-hour week. Other omissions and insertions involved changes with respect to holidays, overtime and double time, and sick days, restoring the provisions of the expired contract which Hyatt had de- leted in its proposed draft contract. Skinner notified Hoffman of his receipt of the marked- up photocopy on 10 September. Hoffman left a tele- phone message for Ahern. It was not answered. Skinner and Hoffman were in New York again on 11 September and left four telephone messages at Ahern's office. Ahern returned the calls at 5 o'clock and, according to Skinner, manifested a complete disinclination to cooperate: When he got on the phone, I told Jack I had re- ceived the contract back from him unsigned, that he was trying to change substantial parts of the con- tract that we had negotiated , that I expected in my hands on September the 12th at five o'clock a signed contract or I was going to withdraw the contract, our offer of retroactive wages and file charges with the Board. Jack's response to that was, "Well, if that is the way you want it, fine" and he hung up. The last communications between Skinner and Ahern occurred when Ahern left a message that a meeting was scheduled for 4 October with the Federal Mediation and Conciliation Service to discuss the problems they were having with the contract and Skinner directed his office to send word that he would not attend. Hyatt thus presented a relatively simple story to the effect that it prepared a draft contract which was pre- sented at the first negotiating session and which provided the basis for the discussions which then ensued ; the draft was considered paragraph by paragraph ; those para- graphs which were immediately acceptable to the Union were treated as adopted and the parties passed on to those which posed problems. When the negotiations were concluded, language on a couple of items was left to be worked out by Hoffman when he drew the con- tract. The Union's position, essentially, is that the con- tract finally presented for Ahern's signature did not con- form to the agreement they had negotiated and that con- sequently, after reviewing it, the members of the bargain- ing unit refused to ratify it. On the basis of all the testimony and documentary evi- dence, I credit the testimony of Skinner and Hoffman, who displayed credible demeanor and presented lucid and consistent testimony which, in some significant re- spects, was corroborated by documentary evidence. There were several inconsistencies between Skinner's tes- timony and an affidavit which he had furnished to a Board investigator, but the variances were insignificant. I note, also, the failure to produce Sumerlin as a witness to refute Ahern's testimony that he had made almost imme- diate complaint to Sumerlin about the discrepancies which he claimed existed in the contract. Skinner testi- fied Sumerlin never mentioned such a discussion to him and presumably Sumerlin would have supported him in this. If anyone had an obligation to bring Sumerlin in, it was the Respondent. The Respondent's counsel drew at- tention to Skinner's failure to produce the memorandum relating to the telephone conversation he had with Ahern on 9 July, but I found Skinner's testimony that he recalled the conversation and his recitation of the con- versation credible. In any event, my credibility resolution rested on the overall effect of all his testimony. I had little confidence in Ahern's testimony. Unlike Skinner's affidavit, the Ahern affidavit furnished to the Board investigator contained statements materially at variance with his testimony, and these variances were not convincingly minimized by Ahern's testimony that he gave the affidavit at a time when his notes were not available to him and he was pressured into signing it the very day he gave it. Ahern's 6 years as a business repre- sentative, his experience in negotiating numerous labor contracts, his involvement in a least two prior Board proceedings in which he had given affidavits, and his OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT) knowledge that the Union has a lawyer convince me that he is not one to be easily pushed around. His testimony regarding his telephone conversations with Skinner, which I have quoted above, is remarkably unclear (or evasive) what he complained about to Skinner. He em- ployed expressions such as "typographical errors" and "problems with language" which do not at all connote, in normal usage, substantive variations between agreed terms and the provisions ultimately embodied in a formal contract. His conversations with Skinner appear to have been devoid of reference to specific discrepancies, in sharp contrast to the detailed list of variances respecting which he testified at the hearing.4 It is also glaringly evident that Ahern's postnegotiation conduct was inconsistent with his present claim that the contract sent to him for execution did not reflect the ne- gotiated agreement. Considering his experience, it may be inferred that he knew how to protect the Union's in- terests in case of an improperly prepared contract. In any event, he could have consulted with the Union's counsel. Instead, his course of action was wholly at odds with steps that he might have been expected to take or avoid had the circumstances been as he contends. There was an utter failure to document the variances between the agreed terms and the contract or to serve written notice on Hyatt of the corrections that were required to be made. Service of such notice would have been invalu- able either to further the process of securing the correc- tions sought or to protect the Union's legal position. There is no evidence that assistance along these lines was sought from the Union's lawyer though the asserted diffi- culties with Skinner dragged on for months after the conclusion of the negotiations and Ahern testified about how anxious the members of the unit were to fix the terms of their contract. Though the Union had prepared the preceding two contracts with Hyatt, no attempt was made this time to draft a contract in accordance with the terms claimed to have been negotiated and to demand its execution by Hyatt. For reasons already stated, I do not credit Ahern's testimony that he offered to do so. (Even then, the offer is claimed to have been made 5 months after the conclusion of negotiations.) Most peculiarly, Ahern testified that he submitted the defective contract prepared by Hoffman for ratification. Instead of promptly rejecting it as departing from the ne- gotiated terms, he waited some 5 weeks and then, ac- cording to his testimony, submitted it to the members of the unit, though minutes before the meeting he reviewed * Testifying in great detail from the marked-up copy he had returned to Skinner in September, Ahern listed the union-security clause and attor- neys' fees provision, on which Hoffman was supposed to draft language, unauthorized language (joint working efforts of employees); substitution of 8-hour workday references where 8 -1/2 appeared ; limitation of elec- tion day holiday to presidential election years, travel time and guaranteed 8-hour workday on call-ins; the number of sick days and amount of per- missible sick day accumulation; paid meal periods ; application to benefit days of change from 7-hour day, 35-hour week to 8-hour day and 40- hour week, insertion of figures in schedule A of the contract; correction of provisions for shift differential to end shift on the hour instead of adding a further half-hour to allow for the lunch period; claimed missta- tement of the agreement which had been reached in the negotiations re- lating to the chief engineer position; and the annuity contribution rate (daily instead of weekly). 211 it with Snoddy and found it wholly unacceptable. I do not credit his testimony that he arranged the ratification meeting without reviewing the contract and only discov- ered its deficiencies at the last moment, and I do not credit his testimony that the meeting was for the purpose of considering ratification. Ahern's testimony adds up to a completely implausible story contradicted by his conduct: he retained the con- tract; did not return Skinner's telephone calls; inconsist- ently referred to the purported discrepancies in terms that denote clerical deficiencies, both in telephone con- versations with Skinner and in his testimony at the hear- ing; persistently sought to reopen the negotiations in a face-to-face meeting with Skinner instead of preparing his own version of a proper contract; and, according to his own version of events, submitted the written contract prepared by Hoffman to the unit members for ratification though he and Snoddy had already reviewed it and found it unacceptable. On the other hand, Skinner's conduct, even according to Ahern's testimony, is that of one who has prepared what he believes is a proper contract and insists on its execution as so written up. Ahern's testimony explicitly corroborates Skinner's testimony, that Skinner made it clear that there would be no renegotiation." D. The Contention that the Contract Failed to Secure Required Ratification Ahern testified that his refusal to sign the contract pre- pared by Hoffman had also been necessitated and justi- fied by its failure to achieve ratification in a vote of the members of the bargaining unit. Ahern's assertion that there was a ratification require- ment rests upon his own testimony that he mentioned it during the meeting of 20 March and that it was an estab- lished procedure which had been followed, with the knowledge of Skinner, in the case of both prior contracts between Hyatt and Local 30. Skinner testified that he had never at any time heard of any ratification require- ment and that there had been no mention of submission of the agreement for ratification when they met on 20 March (Ahern conceded that it was not mentioned on 14 February). If an agreed ratification requirement existed, it should not have been difficult to prove. Ahern testified that during the negotiation of the preceding contract in which Treacy either participated or was the chief negoti- ator, "on the final day, we told David that we would have it ratified." In the light of Skinner's emphatic testi- mony to the contrary, a burden rested upon the Union to produce Treacy. It did not do so and did not explain the reason for its failure to do so. 5 I have considered whether the testimony by Skinner on this point is inconsistent with Skinner's testimony that in the telephone conversation of 9 May he suggested that Ahern resubmit the contract to the unit mem- bership, and find that it is not inconsistent. Skinner made it clear, in that telephone conversation as well as in all his other conversations with Ahern, that there would be no renegotiation . His statement appears to be nothing more than a suggestion that Ahern try to make the agreement more palatable to the members. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union also failed, without explanation, to produce other evidence which could have been extremely persua- sive on this question. Anyone who voted on ratification of the two earlier contracts between Hyatt and the Union could have been brought in by the Union to tell about it. Any member of the bargaining unit who attend- ed the ratification meeting which Ahern said he called with reference to the contract in issue would have made an interesting witness on the question of ratification. Not only did the Union fail to produce witnesses to corroborate Ahern's contention respecting ratification, it submitted no documentary evidence to establish the ex- istence of a ratification procedure in the present instance or in the case of the two prior contracts . There is no evi- dence of a union bylaw or constitutional provision per- taining to ratification. On this issue there are no wit- nesses; no notices of ratification meetings; no minutes of such meetings; no tallies or reports of votes; no letters to employees advising of ratification or rejection; no corre- spondence of any kind which makes mention of it. Other than Ahern's bald assertion that past contracts had been submitted for ratification with the knowledge of Skinner and that that practice had been followed in the present case, there is no evidence whatsoever that such a re- quirement existed or had ever been complied with. The Union's unexplained failure to produce what should have been readily available corroborating evi- dence of its position, as expounded by Ahern, compels me to infer that there was no requirement of or agree- ment for ratification.6 Apart from the question of whether such a require- ment existed, Ahern's testimony respecting the unit's re- jection of the contract is obscure and unclear. The con- fusion starts with his assertion that there were two ratifi- cation meetings. He explained that the first meeting was held to ratify the agreement, not yet written up, on the basis of his notes. It was ratified, he said, though there was no quorum. Yet he asserts that in April he called a meeting to ratify the Hoffman contract. I cannot credit his testimony that he tried to obtain ratification for an improperly prepared contract (though he testified he did not know until moments before the meeting that it was incorrect) or that it was necessary to call a meeting to ratify a contract whose terms had already been ratified. His explanation is that the unit members were entitled "to know" but his testimony is not clear as to what it was they were entitled to know. He offered no satisfac- tory explanation for the inordinate length of time which elapsed before he submitted it for ratification , his failure to read it during that time, the need to confer with the unit about it, or the reason for submitting it to them at all if it was unsatisfactory and he was engaged in the process of trying to arrange a further meeting with Skin- ner to straighten it out. His testimony respecting the 6 Failure to call knowledgeable persons as witnesses or to adduce read- ily available evidence warrants an inference that had the witnesses been called or the evidence produced, the testimony or evidence would not have been favorable. ColorJlo Decorator Products, 228 NLRB 408, 410 (1977), enfd. mem 582 F.2d 1289 (9th Cir. 1978). See also Bechtel Corp., 141 NLRB 844, 845, 852 (1963); Davis Walker Steel & Wire Corp., 252 NLRB 311 (1980); Teamsters Local 959, 248 NLRB 693, 698 (1980), Martin Luther King Sr. Nursing Center, 231 NLRB 15 (1977) event itself was contradictory, being first to the effect that all six men, sitting around a table, read the entire contract (of which only one copy was available) and then to the effect that they read only parts of it. I found Snoddy's testimony, which parroted Ahern's, altogether unconvincing . He displayed extremely poor recollection with respect to numerous significant details and for the most part failed effectively to corroborate the testimony of Ahern. E. Conclusion I find that by a process of reviewing, paragraph by paragraph, the basic draft of an agreement prepared by Hyatt, on 20 March, the Union and Hyatt concluded an agreement which Hyatt correctly reduced to writing and which the Union thereafter unlawfully refused to exe- cute. I do not find that justification for such refusal exist- ed by reason of the existence of any requirement for rati- fication or by reason of any such requirement which had been made known to Hyatt, or because it was rejected by the bargaining unit, or because there was any material discrepancy between the agreement negotiated and the formal contract prepared by Hoffman. F. The Affirmative Defense The affirmative defense, that the charges are barred by Section 10(b) of the Act, is dismissed. Section 10(b) precludes issuance of a complaint based on an unfair labor practice which occurred more than 6 months prior to the filing of the charge with the Board and service of a copy of it upon the person against whom the charge is made. The charge in this case was filed on 2 October and al- leged, Since on or about March 20, 1984, the above- named labor organization has refused to reduce to writing and execute a collective bargaining agree- ment previously reached by the parties. The complaint alleges that the Union has failed and re- fused to execute the contract "[S]ince on or about April 2, 1984, a date six months prior to the filing and service of the charge herein." The charge reads as though the initial refusal occurred more than 6 months prior to the date it was filed. The complaint reads as though the initial refusal occurred ex- actly 6 months to the day prior to the filing. The dates alleged are not controlling. The controlling date is the date of the alleged violations of the Act. The evidence establishes that the negotiations were concluded on 20 March and the contract sent to Ahern on 27 March. The obligation to execute it arose at that time. For a period of time thereafter it was the reasonable ex- pectation of Hyatt that the document would be signed and returned. There was no conduct on the part of the Union which can be interpreted as refusal to execute the contract prior to the time when Skinner began demand- ing its execution and return under circumstances which made it reasonably apparent that the Union was refusing to do so. That is the point at which the statute began to OPERATING ENGINEERS LOCAL 30 (HYATT MANAGEMENT) run. Clothing Workers Local 187 (Shutter Mfg.), 210 NLRB 831 (1974). The earliest date on which such a state of affairs can be said to have existed is 9 May, when Ahern telephoned Skinner in response to a mail- gram and told him that "there were a number of prob- lems with the contract" and "indicated to him that there were quite a few items." At that point, however, Ahem was not being too clear, as I have noted above. Ahern's comments in later telephone conversations with Skinner more probably should be taken as the actual refusals. As of 9 May, Ahern was talking as if there were only clerical prob- lems to contend with, and Skinner could have reasonably believed that their rectification was merely a prelude to execution. Ahem did, however, assert that he told Skin- ner there were numerous "problems." That is the very earliest date at which there is any conduct on the Re- spondent's part which suggests actual or impending repu- diation of its obligation to execute the agreement. See Serv-All Co., 199 NLRB 1131 (1972). Treating his re- marks as a statement that he could not, at least at that point, sign the contract fixes the date of refusal as 9 May, well within the allowable statutory period. CONCLUSIONS OP LAW 1. Hyatt Management Corporation of New York, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union No. 30 and 30A, International Union of Operating Engineers, AFL-CIO is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The Respondent is the recognized collective-bar- gaining representative of the following appropriate unit within the meaning of Section 9(a) of the Act: Chief Engineers, 1st Assistant Engineer, Watch En- gineer, Relief Engineer, Maintenance Men and Fire- men, excluding clerical employees, supervisory em- ployees, professional employees, production em- ployees, watchmen and guards as defined in the Labor Management Relations Act of 1947, em- ployed by the Employer at Nassau County Colise- um. 4. By refusing, about 9 May 1984, and at all times thereafter, to execute the collective-bargaining agreement with Hyatt Management Corporation of New York, Inc. to which the Respondent had previously agreed, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I find it necessary to order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent, the exclusive representative of the employ- ees in the appropriate unit described above, has refused 213 to bargain collectively with Hyatt by refusing to execute the collective-bargaining agreement which it had negoti- ated with Hyatt in December 1983 and February and March 1984, though Hyatt had transmitted to it on 27 March 1984 a contract which embodied the terms agreed upon at the last bargaining session on 20 March 1984. I will therefore recommend that the Respondent be or- dered to execute that document. However, the contract agreed upon was supposed to commence as of 1 January 1984 and was to expire on 31 December 1986. A substan- tial portion of the agreed term has elapsed during the pendency of these proceedings. Accordingly, the recom- mended Order will contain a provision that the contract, when executed, be deemed effective as of the date of its execution by the Respondent, and that its terms be ex- tended so that the contract will expire on a date 3 years from the date of execution. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Local Union No. 30 and 30A, Inter- national Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing on request of Hyatt Management Corpo- ration of New York, Inc. to execute the collective-bar- gaining agreement agreed to on 20 March 1984, as em- bodied in the proposed collective-bargaining agreement transmitted to it by Hyatt on 27 March 1984. (b) In any like manner refusing to bargain with Hyatt in accordance with the requirements of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) If requested to do so by Hyatt, execute, without delay, the proposed collective-bargaining agreement transmitted to it by Hyatt on 27 March 1984. (b) Provide for said agreement to be effective as of the date of its execution by Respondent and extend the term thereof so as to terminate 3 years from the date of such execution by Respondent. (c) Post at the Respondent's offices and meeting places copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respond- 7 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent to ensure that the notices are not altered, defaced , or (d) Notify the Regional Director in writing within 20 covered by any other material. days from the date of this Order what steps the Re- spondent has taken to comply. ,