Princeton Holiday Inn

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Hugh Mercer Corp., d/b/a Princeton Holi- day Inn and United Food and Commercial Workers Union, Local 278, AFL-CIO-CLC. Case 9-CA-22725 27 October 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 23 June 1986 Administrative Law Judge Thomas A. Ricci issued the attached decision. The Respondent and the General Counsel each filed ex- ceptions and a supporting 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions, as modified, and to modify the recom- mended Order2 as set forth in full below. 1 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. We are also satisfied that the Respondent's contention that the decision issued by the judge was the result of bias is without merit. Having care- fully and fully considered the record and the judge's decision, we find no evidence that he prejudged the case, made prejudicial rulings, or demon- strated bias against the Respondent in his analysis or discussion of the evidence. The Respondent has excepted to certain factual errors made by the judge We agree with the Respondent in the following respects. Thus, the judge incorrectly found that the parties agreed on 18 December 1985 that the Union would write up the final contract that the parties had agreed to. The correct date was 20 December 1985. The judge also found that it was Union Representative Gene Moser who prepared "what was the equivalent of a complete contract, precisely stating all that had been agreed upon and including the items still in dispute when the parties broke off [negotiations] in September " Although the evidence demon- strates, as found by the judge, that Moser had this document in his pos- session and proffered it to the Respondent at the 18 December 1985 bar- gaining session, the record does not affirmatively establish who, in fact, prepared the referred-to document. Also, although the date is correctly stated elsewhere in the decision, the judge, in sec III, par. 3 of his deci- sion, incorrectly refers to the date of the Respondent attorney's letter to the Union wherein the Respondent withdrew recognition ' from the Union as 26 December 1985 The correct date of this letter is 28 December 1985 Further, we note that the judge incorrectly spelled the Respondent attorney's name as Morhouse The correct spelling is Morhous Finally, both the Respondent and the General Counsel except to the judge's de- scription of the appropriate unit. The unit, as found by the judge, inad- vertently failed to include the Respondent's front desk employees and night auditors within the unit . Thus, we shall modify the unit description accordingly. We find these errors are insufficient to affect the result herein 2 The General Counsel excepts to the failure of the judge to include a description of the appropriate bargaining unit in his recommended Order and notice We find merit in these exceptions and shall modify the rec- ommended Order accordingly. No exceptions were taken to the judge's recommended Order to the extent that it includes a visitatorial clause authorizing the Board , for com- pliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, General Hugh Mercer Corp., d/b/a Princeton Holiday Inn, Princeton, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Food and Commercial Workers Union, Local 278, AFL- CIO-CLC as the exclusive bargaining representa- tive of all employees in the following unit concern- ing wages, hours, and other terms and conditions of employment: All full-time and regular part-time employees, including maids, utility employees, laundry employees, maintenance employees, front desk employees and night auditors employed by Re- spondent at its motel facility located at Prince- ton, West Virginia, but excluding all restaurant employees, managerial employees, confidential employees and all professional employees, guards and supervisors as defined in the Act. (b) Refusing to execute the collective-bargaining agreement agreed on with the Union in December 1985 and refusing to give effect to the terms and conditions of that agreement. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request of the Union, bargain collectively with the Union in good faith regarding rates of pay, hours of employment, and other terms and conditions of employment for all employees in the appropriate unit. (b) Execute forthwith the collective-bargaining agreement with the Union which was agreed on in December 1985 and which Respondent refused to sign at that time. States court of appeals enforcing this Order However, under the circum- stances of this case, we find it unnecessary to include such a clause. We shall therefore modify the judge's recommended Order to delete this pro- vision from the Order We also note that the judge provided a broad cease-and-desist order requiring the Respondent to cease and desist from violating the Act "in any other manner." However, a broad cease-and-desist order is warrant- ed only when it is shown that a respondent has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for employees fundamental statutory rights We do not find that the broad injunctive language is warranted in this case. Accordingly, we shall substitute the narrow cease-and-desist language, requiring the Respondent to cease and desist from violating the Act "in any like or related manner" for the provision recommended by the judge. See Hickmott Foods, 242 NLRB 1357 (1979) 282 NLRB No. 4 PRINCETON HOLIDAY INN 31 (c) Make whole its employees, for their loss ; of wages and other benefits, which are provided for in that agreement, for the period on and after De- cember 1985, with interest. (d) Post at its place of business in Princeton, West Virginia, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by. the Regional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable 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 Respondent has taken to comply. effect,. to . the terms and conditions of that agree- ment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with United Food and Commercial Workers Union, Local 278, AFL-CIO-CLC in good faith regard- ing rates of pay, hours of employment, and other terms and conditions of employment for all em- ployees in the appropriate unit. WE WILL execute forthwith the collective-bar- gaining agreement with the Union, which was agreed on in December 1985, and which we re- fused to sign at that time. WE WILL make whole our employees for their loss of wages or other benefits, which are provided for in that agreement, for the period on and after December 1985, with interest. 9 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 ordered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain collectively with respect to wages, hours, and other terms and conditions of employment with United Food and Commercial Workers Union, Local 278, AFL-CIO-CLC, as the exclusive bar- gaining representative of the employees in the fol- lowing described unit: All full-time and regular part-time employees, including maids, utility employees, laundry employees, maintenance employees, front desk employees and night auditors employed by Re- spondent at its motel facility located at Prince- ton, West Virginia, but excluding all restaurant employees, managerial employees, confidential employees and all professional employees, guards and supervisors as defined in the Act. WE WILL NOT refuse to execute the collective- bargaining agreement ' agreed- on with the Union in December 1985, and WE WILL NOT refuse to give GENERAL HUGH MERCER CORP., D/B/A PRINCETON HOLIDAY INN Deborah R. Grayson, Esq., for the General Counsel. ' Lawrence E. Morhouse, Esq., of Bluefield, West Virginia, for the Respondent. DECISION' STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held at Princeton, West Vir- ginia, on 9 April 1986 on complaint of the General Counsel against General Hugh Mercer Corp., d/b/a Princeton Holiday Inn (the Respondent or the Compa- ny). The complaint issued on 11 February 1986, on a charge filed on 6 January 1986, by United Food and Commercial Workers Union, Local 278, AFL--CIO- CLC (Charging Party or the Union). The issue presented is whether the Respondent violated Section 8(a)(5) of the Act, refusing to, bargain with the Union as the statute commands. Briefs were filed by both parties. On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a West Virginia corporation, is en- gaged in the operation of a motel in Princeton, West Virginia. During the 12-month period preceding issuance of the complaint, in the course of its business it received gross revenues in excess of $500,000. During the same period it purchased and received at that location prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from out-of-state sources. I find that the Respond- ent is an employer within the meaning of the Act. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED I find that United Food and Commercial Workers Union, Local 278, AFL-CIO-CLC is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On 31 December 1984, following a regularly conduct- ed National Labor Relations Board election, the Union was certified as exclusive bargaining agent of the Re- spondent's employees in an appropriate bargaining unit. After a number of fruitless bargaining sessions between the parties, the Union called a strike; some employees struck and some remained on the job. Further bargaining sessions then took place and, on 19 December 1985, a number of the employees-the nonstrikers-signed a statement rejecting the Union as their bargaining agent. On 26 December 1985 they gave the Board's Regional Office a decertification petition. Aware of these activities when they occurred, on 28 December 1985, the Re- spondent's attorney, Lawrence Morhouse, wrote a letter to the Union. Morhouse had been present at all the many negotiation meetings that had taken place, bargaining with the union agents as the Company's spokesman. In his letter the lawyer told the Union that the Company had received the decertification petition. Because the parties had arranged, on 18 December, that the Union's business agent would write up the final contract that the parties had fully agreed on on 18 December 1985, the lawyer's letter included the following statement: I have not received the proposed contract language which you told me had been mailed. However, if and when such material is received, it is my intent to defer consideration of same until the pending pe- tition can be acted upon by the Regional Office. A few days later the Respondent did receive the final draft of a complete collective-bargaining agreement, which had been mailed earlier, but it refused to sign it. The parties have not met since. I find that on 26, December 1985 the Respondent with- drew recognition from the Union as exclusive representa- tive of its employees and thereby violated Section 8(a)(5) of the Act. I The law and the facts could not be clearer. When Morhouse wrote it was the Respondent's intent to defer consideration of any union position, he was saying directly that the Respondent would no longer recognize the Union as bargaining agent. It has long been held that there is a conclusive presumption of continued majority status in a union during a full 1-year period following Board certification. Brooks v. NLRB, 348 U.S. 96 (1954). That principle has been reaffirmed time and time again during the following 30-year period. It has also explicitly ' Although the Respondent denied the appropriateness of the bargain- ing unit as alleged in the complaint, it offered no evidence to question its correctness. I find that the appropriate bargaining unit is: All full-time and regular part-time employees, including maids, utility employees, laundry employees and maintenance employees employed by Respondent at its motel facility located at Princeton, West Virginia, but excluding all restaurant employees, managerial employees, confidential employees and all professional employees, guards, and supervisors as defined in the Act. been held that a union's loss of support during the 12- month period is not- sufficient grounds for a, refusal to bargain before the expiration of the 12-month period. Lee Office Equipment, 226 NLRB 826 (1976), enfd. 572 F.2d 704 (9th Cir. 1978). The only legal precedent cited in the Respondent's posthearing brief-Board or court decisions-is the Brooks decision itself. It is argued that Brooks must be distinguished from the case-at-bar because there the dis- affection took place only a week or 2 after the certifica- tion at the very beginning of the 1-year period. Because here the antiunion feeling was expressed close to the end of the period, the period should be shortened, and never mind how many times the 12-month period has been reaffirmed in case after case. The argument will not do. Cf. Centr-O-Cast & Engineering Co., 100 NLRB 1507 (1951). If the rule as written must be ignored on that basis, one could as well make a contrary argument in this case. In January 1985, shortly after the certification issued, the Union requested the" Respondent to bargain with it. It repeated the same request on 29 January 1985. Be- cause the Respondent had questioned the validity of the certification issued on 31 December 1984 by filing an appeal to the Board to have it set aside, it refused to rec- ognize,the Union as exclusive bargaining agent. It was not until 8 March 1985, after the attempt to, invalidate the certification had failed, that the Respondent finally agreed to recognize the Union. In such circumstances, one could say that the certification did not take effect until more than 2 months after 31 December 1984 and that, therefore, the 12-month period really did not end until March 1986. But I will not distort the rule of law in this fashion. Withdrawal of recognition came before the end of the 12-month period. It, therefore, was a violation of Section 8(a)(5). In remedy the Respondent is obligated to recog- nize the Union as exclusive bargaining agent-for all em- ployees in the appropriate unit now. The complaint also alleges that on 18 December 1985, when the parties last met in negotiations, they reached agreement on what the Respondent's- final offer was, but that the Respondent then refused to sign the agreement that included all the terms agreed on. This refusal is also called a violation of Section 8(a)(5). That refusal by an employer to formally sign a complete collective-bargain- ing agreement it agreed to make is a violation of the stat- ute that is so well established as to require little citation. Heinz v. NLRB, 311 U.S. 514 (1941). On this aspect of the case the Respondent advances two defenses-each in conflict with the other. One, argued principally by its manager Tom Cook at the hear- ing, is that there was no final offer made by the Re- spondent that day, that it never told the union agents'it would sign a contract if the Union agreed with the Com- pany's then articulated demands. The other defense is that the contract drawn up by the union agent and pre- sented for signature was not precisely in accord with the Company's final offer of 18 December. This defense was implied by the Respondent at the hearing via its lawyer's cross-examination of the General Counsel's two wit- PRINCETON HOLIDAY INN 33 nesses. The testimony in question went to what was said at the meeting essentially by the lawyer, Morhbhse, _ft5r he was the main spokesman for the Company through- out. But Morhouse chose not to take the witness stand! There is a direct question of credibility about what was said at the 18 December meeting-Gene Moser, the president of the local union, supported by Lois White, an employee sitting with him, giving one version, and Cook, for the Company, giving a completely different story. Because, for reasons that will be detailed below, I think Cook cannot be believed wherever he is contradicted by the Government witnesses, I will set out Moser's testi- mony first. A series of bargaining sessions were held between April 1985 and 25 September, without agreement being reached. Moser, who at the time was secretary-treasurer of the Union, was not involved then. He took over the responsibility in November. In the hope of bringing about a settlement of the dispute, with the strike still going on, he called for the assistance of a Federal media- tor, who came and arranged for a meeting on 18 Decem- ber. For the' Company there was Morhouse, who acted as spokesman, and Cook; with him Moser had employee White and another employee. Moser testified that in preparation for the meeting he reviewed all the notes and papers relating to the earlier negotiations, using the records that had been maintained by his predecessor in office. From those papers he pre- pared what was the equivalent of a complete contract, precisely stating all that had been agreed on and includ- ing the items still in dispute when the parties broke off in September. When the parties gathered on 18 December Moser handed this document-nine pages long-to Mor- house, asking was it a correct statement of how negotia- tions stood. After studying it, Morhouse agreed it did re- flect the status of the negotiations. The parties then talked; the meeting continued for 5-1/2 to 6 hours. Moser continued to testify that agreement was reached on 6 of the 11 issues that had not been resolved' earlier; on 1 the Union gave in and on the others compromise was reached. There is no need to list those details here, for there is no question about that. With respect to the remaining five items, although concessions were made here and there, no agreement was reached. These were: recall, wages, checkoff, union security, and holidays. The critical part of Moser's testimony is that toward the end of the ' meeting, "The Company said,, `This is our final offer. It's our best. Take it back to your people."' The witness said there was no talk of ratification required. The next day, 19 December, Moser called a meeting of employees, explained the status of negotiations, and asked were they willing to go along with the Company's final offer. All agreed. The next day, 20 December, Moser telephoned Morhouse. The following is from his testimony: I called Mr. Morhouse and informed him that our people had ratified the contract and if he could tell me when he might expect the people to go back to work. And he said he would have to get with his client and see what could be done in the way of getting them back, and he would get back in touch ,,',with-'me. " I asked him whether or not he wanted to prepare the package or if he wanted me to, and he says that it didn't matter; and I says, "Well, then ['1i prepare it and send it to you and you can review it, proof it. If there's [sic] any errors or omission, please let me know and we'll discuss those and see what we can do to put together the final package." With this Moser prepared a final draft of the agreed- on contract and mailed it to the Company on 23 Decem- ber. It was not received until 30 December. Because he was very much concerned with getting the employees back to work-an essential part of the agreement reached-he telephoned Moser again on 23 December, but was unable to reach him. So he called Cook the same day and asked when could the employees return to work. Cook's answer was "that he didn't know, that he would have to talk to his attorney and get back to me." Not hearing from the Company, Moser called Morhouse again on 27 December, again asking when could the em- ployees return to their jobs. Not having received the final draft yet, Morhouse then told Moser on the phone "that he had received word from Mr. Cook earlier that day that a petition, he understood, was being circulated at the Holiday Inn, and that while he hadn't seen a copy of such petition-he didn't have one physically in his hands-he didn't know what it was, but he understood that it might be a decertification petition." When Moser replied that he had no knowledge of a decertification petition among these employees, Mor- house said, "I'll see, if in fact, it is a decertification peti- tion, and if so, you know, I don't want to do anything that will result in a charge being filed against me." At this point Moser repeated, "I do feel like that we have a contract, that people had ratified it and, they're ready to return to work, and I, would appreciate it if you would upon receipt of the same review and let me know if any corrections that need to be made and, advise me." Morhouse's final statement was: "ell, I'll check into this and if, in fact, there is a decertification petition .. . quite frankly, I feel like it should be left-the decision should be left up to NLRB as to what to do next." Before the day was out-27 December-Moser wrote a letter to Morhouse, restating his position that a con- tract had been agreed on, that the employees must be put to work, that any decertification petition that may be filed had nothing to do with it, 'and that if the employees were not recalled he would file a charge with the NLRB. He did file that charge, dated, 2 January 1986. Moser closed his testimony on this aspect of the case with the statement that he never received an answer to his request that the Company sign the contract, and that he never learned of the Company's questioning the accu- racy of his prepared contract draft until the day of the hearing in this proceeding. Employee White's testimony conforms with that of Moser's. As she recalled it, at the end of the 18 Decem- ber meeting Morhouse gave the union agents his position on the five remaining issues with this statement: "He said 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this was the best offer and that we should take it back to the people for a vote to see if this was acceptable to them." We come to Cook's testimony, the only witness called by the Respondent with respect to the refusal-to-bargain allegations. He started by saying he was not given a copy of Moser's prepared contract draft at the 18 De- cember meeting. Q. [By Respondent's counsel] . . . had you seen that document prior to today? A. I had not seen the document as such. I saw the document at the meeting on the 18th when this gentleman here, I believe it was, had it in his pos- session. ' What was the witness saying-that he did or did not see it at the time? Was he suggesting that as the only member of management accompanying the Respondent's lawyer at the negotiation meeting he was not told what was going on? Cook also testified that the Company did not make a final offer, that Moser, did not say he was taking the Company's offer to the employees for approv- al, and that there was no mention ever about going to the people. All this, and much more, came from the wit- ness as a "yes" or "no" in response to the purest leading questions by his counsel, in which the lawyer spelled out the Respondent's affirmative defenses to this entire com- plaint. It was not the witness talking but his lawyer, in reality attempting to testify himself, but not under oath. This witness' testimony is also marked by continuing evasions and doubletalk. For example: He admitted Moser called him about 23 December to ask when would the employees be going to return to work. Q. And employees were only going to return to work after there was a contract, isn't that correct? A. I would assume so, yes. Q. You didn't tell Mr. Moser that there wasn't any,contract, did you? A. I hadn't seen one. Q. You didn't say, "Well, what do you mean em- ployees coming back to work?" A. The only thing I said was I don't know what it is. You'll have to talk with Mr. Morhouse. He's the attorney and discusses this with him. I don't know anything about it. Q. You didn't deny there was a contract, did you? A. I didn't even know what existed. Q. I'm just asking you what you said. A. No, I didn't deny it to him, because I didn't know one existed. This from the only management agent present at the company conference. On direct examination Cook said clearly that the issue of vacation remained opened at the close of the meeting. Then came the following: Mr. Morhouse didn't think it was an open issue, did he? A. That I don't know. Q. Did he say anything? A. I don't recall. Q. You don't recall. A. No. Q. Do you recall the Union making proposals for a 4th week of vacation at that meeting? A. Yes. Q. And they withdrew it didn't they? A. Yes. Q. So that you would be back to what had been agreed to before? A. Yes, basically. This is but another example of Cook's unreliability as a witness. To make Cook's testimony more convincing his lawyer asked had he made notes, or minutes, of the meeting of 18 December, and the 'witness said yes, he had them in his hands. The lawyer then told him to use them to refresh his memory. Asked did he intend to offer the notes into evidence as an exhibit, he decided not to do that. This procedure did not serve to enhance the witness' credibility. And finally, while cross-examining Moser, the princi- pal Government witness, the Company's counsel pressed hard to get him to admit that during the meeting of 18 December there was talk about a decertification petition having been circulated by employees. Moser then spoke of a television reporter being in the room and asking did anyone know about what she had heard concerning de- certification. Moser said all he did was 'explain to her what such a procedure meant. He did not yield on the cross-examiner's insistence that Moser learned at that meeting that the employees were preparing a decertifica- tion petition. Then came Cook as a witness. One of the first questions put to him was: "At any time during that session, did you learn about or were you advised by anyone with respect to any decertification petition?" The witness answered a straight "no." If 'the talk by the TV representative was such that Moser could not avoid hearing it-as Morhouse kept pounding-how can I be- lieve this witness? He was absolutely not telling the truth at this hearing. The fact is, and I find, that when, the meeting ended that day the parties had reached a final agreement, and it was that if the Union gave in to the Respondent's, posi- tion on the last five remaining issues there was a contract binding on both sides. And when' Moser telephoned Morhouse 2 days later and told him, the employees had accepted the Company's position on all remaining ques- tions, and asked did Morhouse wish to "prepare the package" or was it all right if Moser did it, the lawyer said it was okay, for Moser to do the work. No question then from Morhouse about a final agreement having been reached. He did not bother to contradict Moser' s testi- mony. I also find that the reason the Respondent refused to sign the contract that it did receive on 30 December was not because it did not precisely conform with the parties' resolution of the remaining issues. It did not even raise any such question until months later. Its reason for refus- ing to sign was its mistaken notion that the disaffection PRINCETON HOLIDAY INN 35 k towards the Union shown by some 'of 'the employees in December was sufficient grounds ^ for the Company's re- jection of the Union altogether. There is not the slightest indication that anyone on behalf of the Respondent even looked at Moser's drawn contract until 3, months later. This is, therefore, not a case where, following full agreement, the Union prepares a written contract,in sub- stantial variance from what the parties had settled on. But even in that situation-where the employer looks at the prepared document and notices differences from the agreement reached-the employer is obligated, under Board law, to assist in,reducing the agreement to a cor- rect reflection of the agreement reached. Moser asked Morhouse to let him know if any corrections were re- quired, but was ignored. See Kennebec Beverage Co., 248 NLRB 1298 (1980). The agreement drawn need not be letter perfect; it should be corrected, if necessary, with the cooperation of the employer-that is if final agree- ment had in fact been reached, as here. Trojan Steel Corp., 222 NLRB 478 (1976), enfd. 521 F.2d 308 (4th Cir. 1976), See also North Bros Ford, 220 NLRB 1021 (1975), in which the Board held that errors in the pre- pared contract did not excuse the employer from its obli- gation to execute the written document. At the hearing the Respondent drew admission from Moser about an error in his draft, where the number 1985 had mistakenly been written instead of 1986, a matter of no moment. The only other error, as claimed by the Respondent, was that the contract as drawn could be read as giving returning strikers credit for work al- though in reality they had been on strike for a long time. If the striker were considered to have been at work all the time, he could enjoy full-time status on his return, a condition that could benefit him in case of future layoffs, as against employees holding only part-time status. Else- where the contract did explicate clearly enough that unless a man was actively on duty over 30 hours per week, he lost that week in his classification between full- time and part-timer. It was not at all clear that one of the clauses as drawn did violate that concept. In any event, that ambiguity, if ambiguity it was in Moser's draft, is ex- actly the kind of error that the law says the employer is obligated to try to,straighten out with the union so that final contract can be executed. The Respondent must be ordered to sign that contract now. The wording of the full-time as against part-time status for returning strikers will be made clear when it signs. In defense of the entire complaint, including the with- drawing of recognition from the Union before expiration of the certification year, the Respondent advances a fur- ther argument. It says the Union acted improperly when asking the employees whether they liked or did not like the Respondent's last offer of 18 December. At that gathering there were present 13 employees, all strikers, from a total unit complement of about 30 employees. But, there was no agreement between Moser and Mor- house that the contract would only be binding following a ratification by the employees as a whole. It was the Union, speaking through Moser , that represented the em- ployees. If Moser chose to consult employees it was his prerogative. Mt. Airy Psychiatric Center, 230 NLRB 668 (1977). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE REMEDY The Respondent must be ordered to cease and desist from committing further unfair labor practices. It must also be ordered to bargain with the Union on request and to sign the contract agreed on between the parties on 18 December 1985, which it illegally refused to execute. The contract must take effect retroactively to 30 Decem- ber 1985. The record does, not show .whether the em- ployees would have benefited economically under the terms of that contract compared with what they enjoyed without it. If it should appear, at the compliance stage of this proceeding, that they were denied economic benefits because the contract was not put in effect at that time, the Respondent must make them whole for any ' such losses. Beyond that, the Respondent must be ordered to cease and desist from violating 'the statute in any other manner. CONCLUSIONS OF LAW 1. By withdrawing recognition from the Union as the exclusive representative of its employees in the bargain- ing unit in December 1985, and by refusing since that month to execute they agreed-on collective-bargaining agreement between the, parties and to give it effect, the Respondent has refused to bargain collectively with the Union and has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.,]