Castro Village Bowl

CASTRO VILLAGE BOWL Castro Village Bowl and Hotel Employees and Res- taurant Employees and Bartenders Union, Local 50, affiliated with Hotel Employees and Restau- rant Employees and Bartenders International Union, AFL-CIO. Case 32-CA-8722 July 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT On January 20, 1988, Administrative Law Judge Burton Litvack issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions with supporting brief and a brief in response to the General Counsel'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. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' 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 Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. Contrary to the dissent, we adopt, for the reasons stated by the judge, his conclusion that the Respondent did not violate Sec. 8 (aX5) of the Act by refusing to execute the draft contract submitted to it by the Union. In so doing, we agree with the judge that the Union's "acceptance," based on that draft contract, of the Respondent's final offer, seriously altered the intent and meaning of the Respondent 's final offer with respect to both the issue of pension plan language and the issue of the preamble lan- guage concerning the Association's contract amendment dates . We also agree with the judge that the submission of the draft contract was calcu- lated to suit the Union's purposes. The dissent concedes that the Re- spondent was not obligated to execute the draft contract the Union sub- mitted, contrary to the alleged violation in the complaint and the theory on which the General Counsel proceeded at the hearing . In the circum- stances here, we cannot agree with the dissent's implicit finding that there was a true meeting of the minds between the parties on the terms of a collective-bargaining agreement. Nor can we subscribe to the dissent's apparent view that a binding agreement was reached without regard to the Union's draft contract, merely because the Union indicated it accept- ed the Respondent's offer, or that the discrepancies between the draft contract and the Respondent's offer simply constituted minor deviations from an agreement previously reached. Accordingly, we further agree with the judge's finding that the Re. spondent did not later unlawfully withdraw recognition from the Union based on the subsequent receipt by the Respondent of the employee peti- tion and by its subsequent conduct. 423 MEMBER CRACRAFT, dissenting. Contrary to my colleagues , I would find that the parties reached agreement on the Respondent's contract proposal and, therefore, the Respondent violated Section 8(a)(5) of the Act by refusing to execute a contract embodying the agreed-on terms. The judge found that after several bargaining sessions, the Respondent on August 6, 1986, pre- sented its final proposal in writing through a medi- ator. Reluctantly, the Union submitted the proposal for a ratification vote in September 1986 . The em- ployees overwhelmingly accepted the proposal. On September 21 or 22, 1986, the Union mailed a letter advising the Respondent that "your offer has been accepted." On December 1, 1986, the Union delivered to the Respondent a document purporting to incorpo- rate the terms on which the parties had agreed. In fact, this draft contract differed from the parties' agreement in several respects . On December 12, 1986, the Respondent received a petition signed by a majority of employees stating that they did not wish the Union to represent them. The Respondent thereafter refused to recognize the Union as the employees' bargaining representative. The judge found that two of the differences be- tween the Union's contract draft and the Respond- ent's final proposal evidenced that there was no meeting of the minds between the parties, and he concluded that the Union's acceptance did not re- flect a true agreement. The judge also found, how- ever, that the Respondent's proposals concerning the two differences (specific language for the pen- sion clause and the preamble) were clear, consist- ent, and unchanging, and that the Union's repre- sentative understood or reasonably should have un- derstood these proposals . I agree with the General Counsel that the judge's conclusion is inconsistent with his factual findings. The Respondent's final written proposal was a complete package. The document referenced an earlier written proposal, which explicitly stated the Respondent's position on the two items over which the judge finds there was no agreement. The Union specifically accepted the Respondent's final offer. In light of the offer and acceptance, there was a binding agreement between the parties." ' The judge made what appears to be contradictory credibility resolu- tions concerning the union agent's conduct. The resolutions, however, pertain to the agent's actions after accepting the Respondent 's final pro- posal. Despite the judge's confusing credibility resolutions, one thing re- mains constant: the Respondent's proposal was clear on the pension lan- guage and the preamble. Whether the Union misremembered or deliber- ately attempted to change the agreement when it typed the draft contract is irrelevant. 290 NLRB No. 55 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Respondent, of course, is not obligated to execute the draft contract the Union submitted.2 However, once reaching agreement, the Respond- ent was statutorily obligated to assist the Union in reducing it to writing . 3 Instead of pointing out the discrepancies to the Union, the Respondent subse- quently refused to recognize the Union . By its con- duct in withdrawing recognition and failing to assist in reducing the agreement to writing and signing the agreement, the Respondent has violated Section 8(a)(5) of the Act. I would find this con- duct, as well as the Respondent's subsequent direct dealing, unilateral changes, and failure to provide requested information , violated Section 8(a)(5) of the Act. 2 My colleagues state that the complaint and the General Counsel's liti- gation strategy limit the issue in the case to whether the Respondent vio- lated the Act by refusing to execute the draft contract the Union submit- ted. This is too restrictive a reading of the complaint in light of the record. Even the judge recognized that the General Counsel's case en- compassed whether the Union accepted the Respondent 's final proposal Further, as the majority concedes, the hearing fully aired the meeting of the minds issue 9 See, e.g, Georgia Kraft Co., 258 NLRB 908, 911-912 ( 1981), enfd. 696 F.2d 931 (11th Cit. 1983) My colleagues misunderstand the purpose of this citation. Given the judge's findings, which I believe support the con- clusion that the Union accepted the Respondent 's final proposal, the Re- spondent was obligated to work with the Union in reducing the final pro- posal to writing, whether the discrepancies between the Union 's draft contract and the final proposal were minor deviations Valarie Hardy-Mahoney, Esq., for the General Counsel. Tom Davenport, Esq. (Finkle & Stroup), of Walnut Creek, California, for the Respondent. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. Based on an unfair labor practice charge filed on February 18, 1987, by Hotel Employees and Restaurant Employees and Bartenders Union, Local 50, affiliated with Hotel Employees and Restaurant Employees and Bartenders International Union, AFL-CIO (the Union), the Region- al Director for Region 32 of the National Labor Rela- tions Board (the Board) issued a complaint in this matter on March 20, 1987, alleging that Castro Village Bowl (the Respondent) had engaged in, and was engaging in, acts and conduct' violative of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Respondent timely filed an answer, denying the commission of the al- leged unfair labor practices . The matter was scheduled for trial and heard by me on July 29 and 30, 1987, in Oakland, California. At the trial, all parties were afford- ed the opportunity to examine and cross -examine the witnesses, to offer into the record all relevant evidence, to argue their legal positions orally, and to file posthear- ing briefs. The latter documents were filed by counsel ' The Regional Director issued an amendment to the complaint on May 29, 1987, substituting a new par . 10. Respondent timely dented those allegations. for the General Counsel and by counsel for Respondent and have been carefully considered . Accordingly, based on close scrutiny of the entire record, including the briefs, and my observation of the testimonial demeanor of the several witnesses, I issue the following FINDINGS OF FACT I. JURISDICTION Respondent is a California corporation and has an office and place of business in Castro Valley, California, where it is engaged in the operation of a bowling alley/snackbar/lounge facility. During the 12-month period immediately preceding the issuance of the instant complaint, in the course and conduct of its business oper- ations, Respondent derived gross revenues in excess of $500,000 and purchased and received goods and service valued in excess of $5000, which originated outside the State of California. Based on the foregoing, Respondent admitted that it is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. II. LABOR ORGANIZATION The parties stipulated that the Union is now , and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ISSUES The General Counsel contends that , after bargaining for a successor collective-bargaining agreement, Re- spondent submitted a final offer to the Union on August 6, 1986; that after the bargaining unit employees ratified the offer the Union, by letter to Respondent, accepted it; that the Union thereafter drafted and delivered to Re- spondent on December 1, 1986, a contract, embodying the terms of Respondent's final offer, and a cover letter that invited the latter to inform the Union of any draft- ing errors; and that Respondent subsequently embarked on acts and conduct violative of Section 8(a)(1) and (5) of the Act, including (1) refusing to execute the memori- alized agreement, (2) withdrawing recognition from the Union as the exclusive collective-bargaining representa- tive of certain of its employees , (3) refusing to honor the hiring hall provisions of the expired and new agreements, (4) bypassing the Union and dealing directly with its bar- gaining unit employees concerning a new health and welfare plan, (5) making unilateral changes in the em- ployees' terms and conditions of employment , and (6) failing to provide necessary and relevant information to the Union. Denying the commission of any unfair labor practices, Respondent argues that the Union never noti- fied it of the acceptance of the August 6, 1986 final offer and that, assuming arguendo, the Union did inform Re- spondent of the acceptance of the latter's final offer; the memorialized version of such contains significant errors of substance so as to establish that there never was a meeting of the minds on the terms of Respondent's final offer and to relieve Respondent of the obligation to exe- cute the delivered contract . Therefore, according to Re- spondent, inasmuch as it entertained a good-faith doubt CASTRO VILLAGE BOWL of the Union's status as the majority representative of its bargaining unit employees, it lawfully withdrew such recognition from the Union on or about December 19, 1986, and was no longer under any duty to bargain with it as the representative of its employees. Regarding the latter contention, the General Counsel contends that a binding agreement was reached between the Union and Respondent and, assuming arguendo, the latter was not obligated to execute the contract that was delivered to it on December 1; Respondent remained obligated to rec- ognize the Union's status as the bargaining representative of its employees. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent operates a bowling alley/snackbar/lounge facility in Castro Valley, California. Alan Held is the president and manager of the entity, a California corpo- ration. On March 14, 1979, Held executed a memoran- dum agreement, recognizing the Union as the collective- bargaining representative of a unit, including all full-time and regular part-time cocktail waitresses, bartenders, and culinary employees and excluding all other employees, guards, and supervisors as defined in the Act, and agree- ing to be bound by the terms and conditions of employ- ment established by the then-existing collective-bargain- ing agreement between the Union and the East Bay Res- taurant Association. There is no dispute that Respondent remained bound to successive contracts between the As- sociation and the Union with the most recent expiring, by its terms, on August 6, 1986. Exercising its contrac- tual right to do so, Respondent, by letter dated May 22, 1986, informed the Union that it wished to terminate or modify the existing contract and to commence bargain- ing for a successor agreement. By return letter dated June 6, the Union stated it was willing to enter into con- tract negotiations with Respondent. The record establishes that representatives of the Union and of Respondent met and bargained on five oc- casions during July and August 1986.2 The main spokes- person for the Union was its secretary/treasurer and business manager, Peggy Turner, and the spokesman for Respondent was its labor relations consultant, H. Sanford Rudnick. As the negotiations progressed, according to Turner, the main areas of dispute were readily apparent: seniority (Respondent demanded that an employee 's abil- ity to perform be equated with his date of hire as crite- ria), wages (Respondent proposed a two-tier wage system), the pension plan, vacation pay (Respondent pro- posed straight time rather than the existing time and a half), cost-of-living, health and welfare, successorship, and contract term . With obvious disagreement over each of these issues, the parties met on August 6, 1986, the ex- priation date of the East Bay Restaurant Association contract, with a mediator. Rather than meeting across the table, the parties were placed in separate rooms, with all bargaining conducted through the mediator who shut- tled back and forth from one party to the other. Rudnick 2 The specific meeting dates were: July 14, 22, and 24 and August 4 and 6 425 submitted a document , Joint Exhibit 3, to the union rep- resentatives, which document set forth Respondent's po- sitions on the major issues. As the bargaining progressed, Respondent modified some of the positions and remained steadfast on the others . Ultimately, through the mediator, Rudnick informed Turner that she should consider the document as Respondent's "Final Proposal" in the nego- tiations, " with such noted on the document. Because Re- spondent's positions were not acceptable to the Union, Turner informed Rudnick that the entire offer was re- jected. However, she also told Respondent, through the mediator, that its entire proposal would be submitted to the bargaining unit employees albeit with a recommenda- tion to reject it.4 Finally, Held, who was present, testi- fied that he was informed by the mediator that the Union would notify him of the result of the ratification vote. Whatever commitment she may have given Respond- ent, the record reveals that Turner clearly did not con- sider the holding of an employee ratification vote her highest priority and did nothing, at first, about schedul- ing one. Indeed, believing that Respondent had engaged in bad-faith bargaining, Turner instructed the Union's at- torney to file an unfair labor practice charge against Re- spondent, and he did so on August 28.5 Asked during cross-examination if she meant to hold the ratification vote, Turner conceded that "I was waiting to see what happened with the charge" and that it would have been against her wishes. Further influencing her reluctance to schedule such an event were pending contract negotia- tions "in other houses," which may have been influenced by the terms of Respondent's final offer if ratified, and an ongoing strike by union -represented employees against the employer-members of the East Bay Restaurant Asso- ciation. Ultimately, however, Turner was pressured into changing her mind . Thus, at the September monthly membership meeting, "the manager's wife and another girl had shown up and kept insisting that they had the right to a ratification vote." After consulting with the Union's attorney, who advised her to do so, Turn un- enthusiastically scheduled a ratification vote . The record further reveals that the voting occurred during separate sessions on September 18 and 19 . As she had stated to Respondent, Turner, at each meeting, told Respondent's employees "to turn [the offer] down for right now." Nevertheless, Respondent's "Final Proposal" was ratified by its employees by a vote of 8 to 1. Turner testified that as the bargaining unit employees had accepted Respondent's final offer the Union had no option but to likewise accept it . Accordingly, "I pre- 3 It apparently was understood that incorporated with the final propos- al were Respondent's prior positions on all other areas of the contract, areas of minor significance, no disagreement , or over which there had been little, if any, discussion. 4 There is no evidence that ratification was to be the established method by which Respondent 's contract proposal would be accepted or rejected. Turner testified, without contradiction, that the matter was never discussed . She added that the offer was submitted to Respondent's employees only because such was the Union 's "standard operating proce- dure." 5 The charge alleged that Repsondent engaged in conduct violative of Sec. 8(axl) and (5) of the Act. The manager's wife is Pam Phippen . She is a bartender and is includ- ed in the bargaining unit. 426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pared a letter to Mr. Held," accepting Respondent's "Final Proposal." She testified that, on Sunday, Septem- ber 21 ,7 in the course of completing work at the Union's office she typed a letter to Held , "made copies for our files and then put it in an envelope," on which she had typed Repsondent's address. Thereupon, Turner added, she placed the envelope on top of the office postage meter.$ An alleged photocopy of this letter was offered and placed in evidence as General Counsel 's Exhibit 5 and states in part : "Please be advised [the bargaining unit employees] voted on and ratified the final offer. This means your offer has been accepted." Barbara Horton, who has worked as Respondent 's office clerical employ- ee for more than 10 years , testified that Peggy Turner often works in the office on Sundays , that Turner some- times types letters, and that Turner "probably puts [any such letters] on the mail machine." Horton further testi- fied that it is customary in Respondent's office that the daily outgoing mail is placed on top of the postage ma- chine; that each day at approximately 4:30 p.m. she puts the envelopes through the postage meter machine; that she bunches the mail and takes the bundle to the post office on her way home; and that any envelope that Turner may have placed on the postage machine Sunday would have remained there until 4:30 p .m. on Monday. While testifying to the foregoing customary procedures, Horton had no recollection of observing any mail on top of the postage machine on the morning of Monday, Sep- tember 22. However, she also testified that she followed her customary practice that day with regard to placing postage on and depositing the outgoing mail at the post office. Alan Held, who is apparently the only individual at Respondent's facility authorized to open mail, denied receipt of the a forementioned letter and asserted that he first became aware of it at the instant hearing.9 Finally, whether the letter was received by Respondent,10 there is no dispute that the Union withdrew the August 28 good-faith bargaining unfair labor practice charge. Subsequent to assertedly indicating its acceptance of Respondent's final proposal by the above-described Sep- tember 21 letter, according to Turner, the Union re- ceived no response from either Held or Sanford Rud- nick." Nonetheless, Turner had no doubt that Respond- 7 Turner testified that she often works on Sundays to do "catch up work, the work I hadn't gotten to during the week." a Turner stated that it is "her custom for the things that I typed that after I've made the copy and put them in the envelope , I take them back to the top of the machine." a Turner admitted neither sending the original or a copy of the Sep- tember 21 letter to Rudnick , Respondent's labor relations consultant. Asked to explain why, she explained that she did not believe he was actu- ally Respondent's representative for labor relations and, instead , believed that Rudnick had been helping Respondent out of mere friendship "Turner Turner readily admitted that the September 21 acceptance letter could have been sent by certified mail but that "I wouldn't normally on a ratification notice " She added that certain types of mail , such as contract reopener letters or draft agreements, are normally sent certified , but not this type. If mail is to be sent certified , rather than doing so herself ("I've never been able to figure that one out. I've tried "), she will "just give [Barbara Horton] a note saying please see to it this goes out certified return receipt." i i Turner testified that she telephoned Respondent's facility and left messages for Held to return the calls, but he never did . The latter denied receiving any messages that he return Turner 's telephone calls. There is ent was aware its bargaining unit employees had ratified the final offer, 12 and she began the task of preparing a draft collective-bargaining agreement, encompassing what Respondent proposed on August 6. Turner testified that at "the end of November" she combined the expired 1983 to 1986 collective-bargaining agreement , the new East Bay Restaurant Association contract, the "best last and final offer" (included in this were the August 6 single-page proposal and Respondent's last detailed pro- posal, given to the Union on August 4) and a "cover sheet," on which she wrote drafting instructions . She left these documents for the office clerical worker , Barbara Horton, "to make the corrections and modifications" and merge the foregoing documents into a draft agreement, covering Respondent's employees. Admitting that she does not know who typed the document, Turner further testified that, at some point, the draft agreement, be- tween Respondent and the Union, General Counsel's Ex- hibit 9, came to her desk,' a that she reviewed the draft for accuracy, utilizing the "same documents" that the secretary used in preparing the contract; and that she prepared a cover letter, which would accompany the contract when such was submitted to Respondent for signature and/or corrections. Thereafter, Turner pre- pared a manila envelope for mailing to Respondent's fa- no evidence that either Turner or Held encountered any difficulties, prior to September 1986, reaching each other by telephone. is Based on the fact that Pam Phippen, the wife of the night manager, had attended the ratification vote and knew the result , Turner believed that Respondent likewise knew In this regard , Held admitted "I heard rumors, yes," and he also admitted informing Rudnick . According to Held, his information never got beyond the rumor stage and remained unsubstantiated . Asked why he never followed up on what concededly was an important matter to him, Held averred that on August 6 the medi- ator said "that we would hear back from the Union " He added that "Re- spondent, at all times, was waiting to hear back from them " Therefore, Held continued, he did nothing to corroborate the above rumors. i3 Asked if she typed G .C Exh. 9, the secretary , Barbara Horton, said "1 don't believe I did That doesn 't look familiar at all." She added that there are typing assignments she is unable to do and that, in such cases, "anybody who's available," including business agents, can type necessary documents Neither of the business agents who testified at the hearing, Joe Regacho or Joelan Diephius, admitted typing it, thus, the identity of the typist remains a mystery . Assuming that the typed document did not materialize out of some dark void , someone obviously typed it, but I shall not speculate as to the person's identity. G C Exh. 9, which Turner stated is the Union's file copy of the docu- ment, bears the signature of Business Agent Joelan Diephius. Turner tes- tified, during cross-examination, that the latter's signature was already on the document when she, Turner, found the newly typed document on her desk. Turner added that it is a normal practice to have a business agent, who is involved in the negotiations and in representing an employer's em- ployees, execute a contract with the company. Turner admitted , howev- er, that Diephius had not been involved in the negotiations with Re- spondent and that "at the time she was very inexperienced ." During redi- rect examination, Turner testified that she told Diephius to "proof the contract, the prepared document , and if it's okay, sign it and give it back to me." She added that Diephius accomplished her review by "going through my notes." Contradicting Turner, Diephius stated emphatically that "in late No- vember," Peggy Turner gave her the original version of G.C Exh. 9, in- structing her "to review the contract." Accordingly, using no other doc- uments, Diephius read through the contract mainly "to know what it contained" rather than to check on its accuracy . After reading through it, a task that took her 2 or 3 days, she testified, Turner asked if she had signed it yet. Thereupon, Diephius executed the purported contract and returned it to Turner Diephius added that she had nothing, at all, to do with the negotiations and did not know why Turner had her review the document or sign it. CASTRO VILLAGE BOWL cility; however, as she was uncertain how to do certified mail, she held the draft agreement for the regularly scheduled staff meeting the next day at which she would give it to a business agent "to handle."'a Turner stated that she reviewed the document and prepared the ac- companying cover letter "s on the "Sunday after Thanks- giving," November 30, 1986.116 Turner next testified that , as scheduled, a regular Monday morning staff meeting was held at the union office on December 1. Besides herself, present were Busi- ness Agents Diephius and Regacho. The meeting oc- curred in a conference room , and Turner placed the manila envelope, to which the draft contract and cover letter were attached by a paperclip, on the conference table. According to Turner, "I gave [the draft agree- ment] to Joelan and told her to hand deliver" it to Re- spondent. The latter placed the documents inside the pre- viously addressed manila envelope." Diephius and Re- gacho also testified as to the December 1 staff meeting. Initially, each recalled that another business agent, John Quintera, was also present at the meeting. According to Diephius, the meeting began with Turner reviewing the Union's dues delinquency lists, pointing out which delin- quencies were in each agent's assigned geographical area of responsibility. In doing this, Turner became "quite upset with Joe Regacho" because "he hadn't collected his dues in quite awhile." Diephius described Regacho as "getting chewed out" by Turner. While the meeting pro- gressed, Diephius observed a cover letter , bearing the Union's letterhead, and a stack of papers beneath it on the conference table in front of Turner. An envelope was next to the documents. Turner placed the papers inside the envelope, handed the closed envelope to Diephius, and "asked me to deliver the contract, the Castro Village Bowl contract and hand-deliver it to the Castro Village Bowl." She added that the envelope was addressed to Respondent. Diephius thereupon left the meeting, went to her desk, compiled a list of her stops for that day, and left the building. Regacho testified that he recalled this particular staff meeting inasmuch as "I got my butt chewed out royally for not picking up dues I was as- signed to pick up." He further testified that, at the start of the meeting, he observed a cover letter, addressed to Respondent, a contract, and an envelope on the confer- ence table; that Turner handed these to Diephius; and " During cross-examination, Turner stated that Joelan Diephius was the business agent whom she had in mind to ask to hand-deliver the draft document to Respondent the next day i s A photocopy of the draft document is 0 C Exh . 10 The letter, ad- dressed to Alan Held , reads as follows: "Enclosed please find the pre- pared signature ready contract between Local 50 and Castro Village Bowl. Please contact me immediately if corrections are needed." 's During cross-examination, Turner contradicted herself as to when the asserted draft agreement was prepared . Thus, she stated that she worked at the Union's office on Thanksgiving Day, Friday, Saturday, and Sunday, preparing for numerous NLRB hearings, answering corre- spondence, and "preparing this contract." She added that the typed con- tract came back to her "sometime during the week after Thanksgiving. So it would be Monday through Wednesday ." She further confused mat- ters, testifying that from the time she prepared the contract until the day the typed draft was returned , "probably" 2 weeks passed by. 'T Subsequently, Diephius reported to Turner that she had, in fact, de- livered the contract to Respondent 's facility. 427 that Turner instructed the former "that she was to deliv- er the contract to the employer at the bowl." Subsequent to the staff meeting, according to Die- phius, she spent the remainder of the day "making the rounds" of facilities, at which employees were represent- ed by the Union , in her assigned geographical area, east Concord and Castro Valley. She testified that she ar- rived at Respondent's facility at 2:15 p.m. and had with her the envelope obtaining the draft contract . "I walked into the north entrance . The door that's in the parking lot. And walked up to the front desk." There were two women behind it. "I asked one of the ladies there to please make sure that Mr. Held gets this, and when I did that . . . I put the envelope on the counter and turned around so that she could read it. She said okay. And then I left out the same door that I came in ." As cor- roboration of Diephius' testimony, counsel for the Gen- eral Counsel offered as Exhibit 11 Diephius ' daily activi- ty report for 12/1/86. On it are listings for "houses vis- ited" and for "purpose/description." For item 10 on the first page, Diephius noted a visit to "C.V. Bowl" at 2:15 p.m. for the following purpose : "Drop off contract." Leora Memory, who works for Respondent at the facili- ty's "main control desk," testified that she would have been on duty at 2:15 p.m. on December 1, that one of her duties is the receipt of mail and other package deliv- eries, and that "I do not recall anything other than the [regular] mail being delivered" on the above day. Alan Held, as he had regarding the purported final offer ac- ceptance letter, denied ever seeing the originals of either General Counsel's Exhibits 9 or 10 prior to the instant hearing. The record discloses that, 18 days subsequent to the above-described alleged delivery of the draft collective- bargaining agreement and the cover letter to Respond- ent's facility, Respondent withdrew recognition from the Union as the collective-bargaining representative of the former's waitresses, bartenders, and culinary employees. Alan Held testified that the basis for this act was an em- ployee petition, Respondent's Exhibit 7, which he re- ceived on December 15, 1986. According to him, "This was slipped under my door when I walked in on a Monday morning." The document, bearing six signa- tures, which Held recognized as being names of bargain- ing unit employees, had the following wording above the signatures : "We the undersigned employees of Castro Village Bowl, members of Culinary Workers , Local 50, as of this date, 12-14-86, no longer wish to be represent- ed by Local 50." Held immediately telephoned Sanford Rudnick to inform him of the petition and, he testified, both men agreed that neither had, as yet, heard from the Union "about our contract." Rudnick then advised Held to authenticate the six signatures, and the latter did so.' 8 Four days later, Rudnick, on behalf of Respondent, sent the following letter to the Union: Dear Ms. Turner: On August 6, 1986 Castro Village Bowl gave the Union its final proposal . Since that date Castro Vil- 18 Respondent's payroll records establish that, as of December 14, it employed II individuals in the bargaining unit represented by the Union. 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lage Bowl has not heard whether or not the Union has accepted or rejected its final offer. However, recently Castro Village Bowl received a petition from the majority of its employees that they do not wish to be represented by your local Union. Since the contract has expired on or about August 6, 1986 and there is no contract in existence, Castro Village Bowl is withdrawing recognition from your Local Union, by virtue of the fact Castro Village Bowl has objective evidence that your Union does not represent the majority of the em- ployees. Moreover, Castro Village Bowl's, bargaining ob- ligation has ended since your Union no longer rep- resents the majority of the employees. Thus, Castro Village Bowl will cease making pension and health welfare contributions since it is a violation of federal labor law' to make contributions wihtout a negotiated and written labor agreement. In addition, Castro Village Bowl will be happy to cooperate with the National Labor Relations Board to show its objective evidence. Turner stated that the Union, in fact, received the aforementioned letter. Believing that the letter's initial paragraph "was more than a lack of communication that right there was a bald-faced lie" and that what came after was also untrue, Turner experienced what she de- scribed as "a temper tantrum" on reading it and knew then that Respondent would likely not execute the draft contract. She testified that , "because I felt that there was a very definite violation of the law here by denying the contract," she contacted the Union's attorney,' 9 who told her that he would contact Rudnick. Turner did not know if the attorney ever did so. Asked why she did not contact Held or Rudnick herself, Turner replied that "I hadn't been getting return calls from the employer" and that, in any event, such would have been futile. There exists no dispute that, subsequent to withdraw- ing recognition from the Union , Respondent engaged in several acts and conduct consistent with that act. Thus, the parties stipulated that , on or about January 20, 1987, Respondent, via the posting of a notice to bargaining unit employees from Held , solicited the employees to apply for coverage under a new health insurance plan, which was to be implemented by it on February 1, 1987; that, on or about February 1, Respondent made changes in the bargaining unit employees' terms and conditions of employment, including the cessation of health and wel- fare and pension trust fund contributions on behalf of the employees and the institution of a new employee health insurance plan;20 and that, since on or about February 19 Asked if she was certain that she spoke to the Union 's attorney with regard to Rudnick's letter, Turner said such would have been "standard operating procedure" in this type of case. Asked again if she was certain, Turner averred "not without looking in our file." She reiterated that she did speak to the attorney because the instant unfair labor practice charge was filed. 20 In arguing that the Union never informed it of the acceptance of its final proposal and never either drafted or delivered a draft agreement to its facility, Respondent offered the testimony of Kathy Corcoran, who is employed by the administrator of the restaurant and tavern health and welfare trust fund . She testified that , pursuant to negotiations, the em- 18, 1987, Respondent has refused to honor a union re- quest for the names of all current bargaining unit em- ployees. Moreover, in January, Diephius visited Re- spondent's facility to ascertain whether the latter was employing individuals who were in the bargaining unit but who had not been required to join the Union. She spoke to Held and asked if this was true . Held replied that Respondent no longer had a contract with the Union. On January 16, Rudnick wrote to the Union that Respondent had no contract with the Union , had with- drawn recognition, and was not obligated to adhere to any contractual provisions. In addition, during his testi- mony, Held admitted that Respondent no longer informs the Union of new hires; nor does it any longer utilize the Union's hiring hall for prospective employees. In further support of its contention that no unfair labor practices have been committed, Respondent offered the testimony of Sanford Rudnick who described several dis- crepancies between the draft contract, which was sub- mitted to it for signature by the Union (G.C. Exh. 9), and the August 6, 1986 final offer, the existence of which assertedly abrogate any obligation Respondent may have been under to execute the document . Initially, Rudnick stated that the wording of part (b) of section 36, the pen- sion plan provision of the purported draft agreement, er- roneously states: "New Hires will not receive said bonus until they have completed one year of service with the Employer." According to Rudnick , at the parties' negoti- ating session on August 4, 1986, he presented the union representatives with Respondent's proposal 4, which in- cluded a revised pension plan proposal. Rudnick testified that prior to the commencement of the meeting he no- ticed that the language proposal for part (b) was incor- rect and instructed his secretary to type a corrected ver- sion of the proposal , changing the word "bonus" to "pension."21 Thereupon, he entered the meeting room with both the incorrect and corrected versions of pro- posal 4 and inadvertently distributed the incorrect ver- sions to the union representatives.22 Rudnick continued, stating that he immediately informed the union represent- atives of the correct wording of part (b) of the pension plan proposed language, and "I believe I gave them the ployer-members of the East Bay Restaurant Association commenced paying an increased health and welfare rate per employee during the fall of 1986. Aware that Respondent was continuing to make payments at the expired contractual rate, Corcoran advised the Union that Respondent had become delinquent in payments. On January 21, pursuant to a memo from Diephius and Turner, Corcoran was informed that the contract be- tween Respondent and the Union provided for no increase in the month- ly contribution rate. This was the first instance that Corcoran learned of the existence of a new agreement between the parties. Asked by me if it was usual or unusual that the Union would delay informing her of the existence of an independent contribution rate , Corcoran stated, "It's usual that I would not have been notified by the Union right away." She added that the Union "eventually" would have done so and did do so in this case. 81 Of course, the language of part (b) as it appears in G C Exh. 9 makes no sense in the context of part (a) However, Respondent 's initial pension proposal was to delete the expired contractual language and re- place it with a monthly bonus payment to employees in lieu of a pension plan as Rudnick explained that he probably distributed the incorrect version "because they just got mixed up. I had about 15 different proposals to- gether at the same time." CASTRO VILLAGE BOWL corrected copy as well. Because I always in negotiations, try to give the [Union] the exact proposals which I make up."23 In Rudnick's view, the failure of General Coun- sel's Exhibit 9 to include the change from "bonus" to "pension" constituted a "major" error because Respond- ent had initially proposed "giving the employees a bonus in lieu of a pension," and the Union had rejected it. Peggy Turner, during rebuttal examination, specifically denied that Rudnick ever advised her that in part (b) of Respondent's proposal 4 pension plan language the word "bonus" should be changed to "pension ," either orally or in writing. She added that the only form of the proposal she was given is General Counsel 's Exhibit 7, and that it was utilized in the drafting of the contract for Respond- ent. Analysis of it establishes that the pension plan part (b) language is identical in both documents . Turner fur- ther stated that her understanding of part (b) is as fol- lows: "It's saying the new hires wouldn't be getting a pension. They get a bonus."E4 According to Rudnick , another serious discrepancy be- tween the purported contract and Respondent's final proposal exists with regard to the pension plan. Thus, Respondent's proposal 4 pension plan language reads in part: "No change in Pension Plan, the Employer will contribute $ 11.00 per month to each employee for pen- sion. There will be no increase in pension contribution." General Counsel's Exhibit 9 does not contain the words, "There will be no increase in pension contribution." As to this, Rudnick testified that the foregoing "was a pro- posal to be put into the contract." He added that the sen- tence was orally proposed by him at the parties' July 29 bargaining session as an insertion after the sentence de- fining Respondent's contribution rate. Rudnick explained that he proposed this language "because I didn't want the pension trustess to make any further increases during the term of the contract. So I thought that would be an important aspect of the pension provision ." He claimed that the sentence clearly was part of Respondent's final offer and its absence a "major" mistake in General Coun- sel's Exhibit 9, inasmuch as "it would have been a possi- bility" that the pension fund trustees could conclude that the Employers' contributions be increased. Peggy Turner did not dispute the existence of the above language in Respondent's proposal 4 but denied that Rudnick said he wanted the words to be included in the formal agree- ment-"[Rudnick] just said that they would continue to pay the $11 a month." She conceded, however, that Rudnick did say that there would be no increase in the pension contribution ; she interpreted Rudnick as meaning `just that we would continue with the current language 89 Analysis of the record establishes that Rudnick never exhibited cer- tainty as to presenting to the union negotiators corrected copies of pro- posal 4, in which the pension plan proposal part (b) contained the word "pension" rather than "bonus." Pressed on the matter, he would qualify his answer with such phrases as "To the best of my knowledge . 1 believe . . . and I can't remember specifically." In contrast , he continual- ly expressed certainty that he orally communicated the language change to the union representatives. 24 During cross-examination, Turner conceded only that Respondent's bonus language proposal was withdrawn as to part (a) of the pension pro- posal. In support of her position, she added that , "A union representative wouldn't give up the pension and give a bonus instead we would want more money going into the pension for the fund to be stronger." 429 and current contribution rates." Turner further denied that Rudnick ever expressed a concern that the trustees would ever raise Respondent's contractual contribution rate and disputed the latter's stated fear that the trustees were empowered to do so . Thus, she testified, there are no provisions in the pension trust fund's declaration of Trust, granting trustees the authority to raise the levels of employer contributions as set forth in collective-bar- gaining agreements.25 Turner, who is a trustee of the pension trust fund, conceded that from time to time the fund's trustees do amend the trust agreement , but did not know if they were empowered to amend the provisions of article IV, section 4.4(b).26 She also admitted , during cross-examination, that Rudnick was concerned with trustee actions that would raise Respondent's health and welfare trust fund contribution, but denied that he ex- pressed a like concern regarding to the pension contribu- tion. The third alleged discrepancy between the draft col- lective-bargaining agreement and Respondent's August 6 final offer concerns the preamble to the contract. Thus, the preamble to General Counsel Exhibit 9 reads, as fol- lows: THIS AGREEMENT made and entered into by modifiction and amendment August 7, 1986 and is previously amended August 7, 1983, August 7, 1982, August 7, 1981, August 6, 1977, September 12, 1973, July 7, 1970, July 7, 1967, July 7, 1964 and July 7, 1958 by CASTRO VILLAGE BOWL (hereinafter referred to as the "Employer") and 26 The pension trust , established under the East Bay Restaurant Asso- ciation successive collective-bargaining agreements with the Union and to which Respondent would have remained bound under the purported agreement , was created in 1971. Art. IV, sec. 4.4 reads, in part Section 4 4 The trustees shall receive and collect all contributions due and payable by Employers to the Trust Fund. (b) The amount of the contributions for each employee covered by a collective bargaining agreement shall be determined by the collec- tive bargaining agreement and such amount shall be subject to change under amendment to the collective bargaining agreement and under subsequent collective bargaining agreements. The amount of the contributions for each employee not covered by a collective bar- gaining agreement shall be subject to the determination and discre- tion of the Trustees 26 Art VII, sec. 7.1 of the pension trust fund declaration of trust reads, in part ARTICLE VII AMENDMENT AND TERMINATION Section 7.1. The terms of this Agreement or the Trust or the Plan may be amended at any time by an instrument in writing executed by the Signatory Association , or its successors and the Union; pro- vided, however, that the Trustees are hereby authorized and empow- ered, subject to the limitations hereinafter set forth, to amend this Declaration of Trust, as herembelow provided. Amendment of the Trust shall require approval by resolution of the Board of Trustees at a meeting duly called and held and for which five (5) days' writ- ten notice has been given, including notice that an amendment of the Trust, stating its general purpose, will be on the agenda. The amend- ment shall become effective only upon execution thereof, or consent thereto, by a majority of the Trustees . No amendment shall be adopted by the Trustees which: (d) Affects the obligations of an Employer or a Union under a col- lective bargaining agreement. 430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD HOTEL EMPLOYEES RESTAURANT EM- PLOYEES AND BARTENDERS LOCAL UNION 50, hereinafter , referred to as the UNION. In contrast, the preamble language of Respondent's pro- posal 4, which Rudnick testified and the record reveals, is identical to the preamble language proposed by Re- spondent throughout the negotiations with the Union, and reads as follows: This Agreement entered into by CASTRO VIL- LAGE BOWL (hereinafter referred to as the "Em- ployer") and HOTEL EMPLOYEES RESTAU- RANT EMPLOYEES AND BARTENDERS LOCAL UNION 50 (hereinafter referred to as the "Union"). Regarding Respondent's proposed preamble language, Rudnick testified that the above-quoted language from the purported draft agreement is similar to that of the prior East Bay Restaurant Association contracts in that the preamble incorporates all the prior agreements be- tween the Association and the Union. He stated, "We wanted an independent agreement without any of the prior amendments that were applicable to the [East Bay Restaurant Association]." He testified further that he ex- pressed this concern to Turner at the "first negotiation" and, subsequently, "I must have addressed that concern throughout." Rudnick added that he told the Union's representatives "that it was irrelevant to have the prior language in the prior years in this particular contract, by virtue of the fact that we wouldn 't want to be subject to past practice, and we wanted to start anew ." Moreover, according to Rudnick, he meant that Respondent's pre- amble language should be considered as a proposal by the Union-"that's the reason why I had the preamble." Although conceding that the erroneous preamble lan- guage is of "minor significance" in comparison to the pension plan language mistakes , Rudnick stressed its im- portance as the prior amendments to the East Bay Res- taurant Association agreements "could have related to past practice and various other activities that [Respond- ent] didn't want to be privy to and the language would be interpreted for a collective-bargaining agreement be- tween Local 50 and [Respondent]."E7 Contrary to Rud- nick, Peggy Turner testified that the former only de- manded that references to the East Bay Restaurant Asso- ciation be deleted from the agreement's preamble- "That's all I remember of it." Although admitting that Respondent's proposed language never changed, she 27 Another alleged discrepancy between the draft contract and Re- spondent's final offer follows from the allegedly erroneous preamble lan- guage. Thus, a listing of the amendment dates to the agreement , between the Union and the East Bay Restaurant Association , is found at 21 of G.C. Exh. 9. According to Rudnick, none of Respondent's proposals in- corporated such a listing, and while the specific listing was not ad- dressed, the parties' discussion of the preamble language would have indi- cated that the dates were not meant to be included in a final agreement. He added, "I impressed upon the Union in the very beginning that we wanted to have an independent agreement that was separate and apart from the East Bay Restaurant Association . And prior amendments were ineffective towards this particular agreement." Turner testified that there just was no discussion of removing the amendment dates from the back page. stated that Rudnick "never said anything about taking [the existing preamble language] out." During cross-ex- amination, she also admitted that Rudnick emphasized Respondent's desire to have a separate agreement, one not tied to the association-"I understood it would be an independent contract."28 As to the preamble language in General Counsel's Exhibit 9, Turner further admitted that she was responsible for composing it-"I felt that throughout that that's why they were intending, and this is what I perceived the correct preamble to be." She added that the language is consistent with what Re- spondent proposed, inasmuch as all references to the East Bay Restaurant Association were deleted. Rudnick pointed out another apparent discrepancy be- tween the draft contract and Respondent's final offer re- garding seniority, one of the significant areas of disagree- ment between the parties during the bargaining. Thus, section 6(a) of General Counsel's Exhibit 9 reads as fol- lows: SECTION 6. SENIORITY: (a) In the event the Employer finds it necessary to lay off employees due to slackness of business , such layoffs shall be on the basis of seniority and the ability to perform shall prevail. In contrast, section 6(a) of Respondent's proposal 4, General Counsel's Exhibit 7, reads in part as follows: Section 6. SENIORITY: (a) In the event the Em- ployer finds it necessary to lay off employees due to slackness of business, such layoffs shall be on the basis of seniority and the ability to perform. If em- ployees have the same length of service ability to perform shall prevail. It is readily apparent that except for the fact that por- tions of two contiguous sentences were left out of the draft agreement's seniority language, the two above- quoted seniority excerpts are identical. Neither is there no evidence to establish that the discrepancy resulted from a typographical error, which would prove that such was a deliberate rewording of the provision. How- ever, the record does establish that the Union continually refused to accept Respondent 's proposed seniority lan- guage, arguing, according to Rudnick, "that seniority was a very important part of the contract ." Asked how the erroneous language alters the meaning of Respond- ent's proposed phrasing, the witness replied "this lan- guage is confusing. And my language is more specific." Rudnick added that the intent of Respondent 's proposal was to enable it to select people for layoff on the com- bined factors of length of service and ability to perform, :a Nevertheless, asked if she believed that the draft agreement was dust one more amendment to a longstanding amended agreement , Turner re- sponded in a manner suggesting what her intent was in drafting revised preamble language-"l felt that that's what we had agreed to at the bar- gaining table. And that's what I was trying to respect in the final docu- ment " With regard to the listing of previous contract amendment dates, the record established that the practice of the Union and the East Bay Res- taurant Association was to list these in the successor contracts ' preamble and preceding the signature spaces at the end. CASTRO VILLAGE BOWL with the latter predominant in cases of equal length of service. In contast, the draft agreement language seems to imply that length of service may be disregarded-"I think that it says you look at the length of service .. . but then you can disregard [it] and [lay off) on ability to perform." However, during cross-examination, when asked if anything in the language of General Counsel's Exhibit 9 would prevent Respondent from considering ability when there is equal length of service in a layoff situation, Rudnick conceded, "[T]here's no prohibition of that." Turner stated that the Union accepted the exact language of proposal 4 and that what appears in the draft contract is the result of a typographical error. As a final discrepancy between the draft contract and Respondent's final offer, Rudnick pointed to the employ- er contribution rate per employee to the contractual health and welfare plan as set forth in General Counsel Exhibit 9-$121.21 per month. In contrast, the rate, as set forth in Respondent's final proposal of August 6, was to be frozen at the then current level, which was $181 per month. The record establishes that the amount, set forth in the draft agreement, was identical to that set forth in the 1983-1986 East Bay Restaurant Association contract. Turner conceded that the figure in General Counsel's Exhibit 9 was wrong, asserting that the typist misunderstood what was meant by the instruction, "freeze current level," which language appears, on Joint Exhibit 3, the "Final Proposal." She further testified that the mediator explained what that language meant, and "I took it to be the 181 figure." B. Analysis Based on the allegations of the complaint and Re- spondent's answer, the initial issue for consideration is the matter of the Union's asserted acceptance of Re- spondent's August 6, 1986 "Final Proposal." At the outset, it is well-settled law that in deciding questions such as involved here , the Board need not adhere to the "technical rules of contract law" and that the rules "do not necessarily control the making of collective-bargain- ing agreements." NLRB v. Donkin 's Inn, 532 F.2d 138, 141-142 (9th Cir. 1976); Ben Franklin National Bank, 278 NLRB 986 fn. 3 (1986); Pepsi-Cola Bottling Co., 251 NLRB 187, 189 (1980). More pertinent to the issues here, a complete package proposal, which is made by one of the parties during collective bargaining, remains viable and, on acceptance in toto, must be executed as part of the statutory duty to bargain in good faith , unless ex- pressly withdrawn prior to such acceptance or "de- feased" by an event on which the offer was expressly made contingent at a time prior to acceptance. Ben Franklin National Bank, supra at 992. In the instant matter, there is no dispute that Respondent's August 6, 1986 "Final Proposal" to the Union, although incorpo- rating by reference an earlier proposal, was a complete package contract proposal and one capable of being ac- cepted by the Union . Further, there is no record evi- dence of any condition precedent to eventual acceptance by the Union . Thus while Peggy Turner through the me- diator on August 6 informed Respondent that the latter's offer would be presented to its bargaining unit employees for ratification, her testimony was uncontroverted that 431 such a procedure was never a topic of discussion during the parties' contract negotiations. Accordingly, at all times material, it was within the province of the Union to either accept or reject the August 6 offer. The General Counsel contends that subsequent to em- ployee ratification of the final offer the Union expressed its acceptance by both Turner's September 21, 1986 letter (G.C. Exh. 5) and the cover letter (G.C. Exh. 10), which accompanied the purported draft agreement and whcih was delivered to Respondent by Joelan Diephius on December 1. Regarding to the September 21 letter, the credibility of Peggy Turner is at issue . Generally, her demeanor while testifying was that of an honest and forthright witness; she impressed me with her candor,29 particularly regarding her lack of knowledge as to who typed (G.C. Exh. 9) the draft contract, and her author- ship of the preamble language in the document . Accord- ingly, I credit her testimony that on September 21 she composed and typed the aforementioned contract accept- ance letter to Respondent, addressed an envelope to Re- spondent's facility, placed the letter in the envelope, and left the envelope, with the enclosed acceptance letter, on the office postage meter machine, the normal place of deposit for outgoing mail.S° Although she had no specif- ic recollection of handling a letter addressed to Respond- ent on September 22, the Union's office clerical employ- ee, Barbara Horton, testified most convincingly as to her normal and routine practice regarding the processing of outgoing mail. Given the undoubtedly large volume of mail that the Union sends each day, it is not surprising that 10 months later she could not recall one particular piece of mail. Notwithstanding my reservations stated during the hearing, there is absolutely no reason to be- lieve that Respondent's letter was not processed in the standard way, and I am convinced that General Coun- sel's Exhibit 5 was, in fact, deposited in the United States mail by Horton while she was on her way home from work. As in Ben Franklin National Bank, supra, in which a union's acceptance of a contract offer became "opera- tive" on the dispatch of a mailgram, notwithstanding that normal contract law rules are not controlling , I conclude that the Union's acceptance of the August 6 "Final Pro- posal" became operative when the foregoing letter was placed in the mail. Id. at 986 fn . 3; General Asbestos & Rubber Division, 183 NLRB 213, 218 (1970).$' 29 1 am mindful of inconsistencies and contradictions in her testimony, particularly with regard to the preparation of the draft contract. Never- theless, her demeanor was that of a truthful witness, and I so find so Corroboration for the testimony of Turner comes from her subse- quent withdrawal of the refusal to bargain in good faith unfair labor practice charge, then pending before the Board Certainly, the only event that would have been the Union's acceptance of an offer, which she clearly found objectionable. " I shall not speculate whether Alan Held actually received and read the acceptance letter. Suffice it to say, I was not at all impressed with his explanation for not acting to substantiate the "rumors" he admittedly heard regarding employee ratification of Respondent's offer. Contrary to Held's testimony, I believe it likely that Respondent was well aware of the Union's acceptance either from the September 21 letter or from em- ployee statements Such would more reasonably account for Held's ad- mitted lack of interest in such an important matter during September and October 1986. 432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Because of the significant amounts of time consumed by litigation of the matters, the critical issue at this point is not whether Joelan Diephius, in fact, subsequently hand-delivered a draft contract, which embodied Re- spondent's final offer, to Respondent and, which event I find occurred, 32 or whether Respondent was thereafter obligated either to execute it or, at least, to assist in making necessary corrections, but rather whether the Union's stated acceptance is truly reflective of an agree- ment by the parties as to the exact terms and conditions of the final proposal. Thus, while acknowledging that the duty to bargain includes the obligation to execute or to assist in reducing an oral agreement to writing, the Board cautions that the "obligation, however, arises only after a meeting of the minds on all substantive issues has occurred." Luther Manor Nursing Home, 270 NLRB 949 fn. 1 (1984); Automatic Plastic Molding Co., 234 NLRB 681, 682 (1978). Moreover, if, as argued by counsel for the General Counsel, the parties truly were in agreement as to all aspects of the August 6 final offer, Respondent's withdrawal of recognition from the Union as the bar- gaining representative of its cocktail waitresses, bartend- ers, and culinary employees on December 19 would not have been lawful; for "[O]nce final agreement on the substantive terms was reached, and regardless of the status of any written instrument incorporating that agree- ment, the Respondent was not free to refuse to bargain even if [the Union] had subsequently lost its majority status." North Bros. Ford, 220 NLRB 1021, 1022 (1975); Belcon, Inc., 257 NLRB 1431 (1981); Utility Tree Service, 215 NLRB 806 (1974). Therefore, I now consider wheth- er, in fact, a true agreement between the parties existed when the Union mailed its purported "acceptance" letter. At the outset, I note that the only objective evi- dence of an alleged meeting of the minds on the terms of Respondent's final offer is the purported memorialized 32 Bearing in mind her testimonial contradictions, I credit the generally honest and forthright testimony of Peggy Turner regarding to the prepa- ration of the original version of (G C Exh 9) the draft agreement, and to her directions to Joelan Diephius on December I regarding the hand-de- livery of it to Respondent. Likewise I credit the mutually corroborative testimony of Business Agents Diephius and Joe Regacho regarding the Union's staff meeting on the morning of December 1. Both impressed me as being honest witnesses and are credited herein Further, I credit the testimony of Diephius regarding the delivery of an envelope, which con- tained a copy of the draft agreement and a cover letter, to Respondent's facility on that day, and the leaving of the envelope at the main desk Regarding this, I note that counsel for Respondent did not contest the authenticity of Diephius' activity report sheet for December 1, 1986, a notation on which corroborates her delivery of the contract to Respond- ent's facility that afternoon. Finally, Respondent's witness, Leora Memory, who is in charge of the "main control" desk, did not deny the delivery of the contract Rather, she could not recall any delivery that day other than the normal mail. Although I believe, therefore, that Diephius delivered the draft agree- ment to Respondent's facility, I note Alan Held's denial of ever having seen G.C. Exh. 9 prior to the instant hearing. As with the September 21 letter, I shall not speculate whether he, in fact, saw it on delivery; nor shall I speculate about what may have occurred at Respondent's facility on December I to prevent Held from receiving the draft agreement. I must state, however, that given the alleged discrepancies that exist in the draft agreement, I can perceive of no reason for Sanford Rudnick to have lied to Turner by stating in his December 19 letter that Respondent never received the document. Clearly, as one apparently experienced in labor relations, Rudnick would have immediately recognized the implica- tions of the asserted errors and would not have needed to resort to fabri- cation about receipt of the document version of its (G.C. Exh. 9). H. Sanford Rudnick,33 Re- spondent's labor relations consultant and its representa- tive during the contract negoitations, testified that the document differed from the terms of the final offer in, at least, six critically important areas. In considering the impact of the discrepancies on the parties' alleged meet- ing of the minds, I bear in mind the admonition of the Board that it is not the function or responsibility of the administrative law judge to conjure an agreement be- tween the parties. Interprint Co., 273 NLRB 1863, 1864 (1985). The Board has long held that one party's "inadvertent errors" in a draft agreement or "some minor deviation" therein from proposals submitted by the other party are not indicative of any lack of agreement between the par- ties to collective bargaining. Taylor Bus Services, 284 NLRB 530 (1987); Fashion Furniture Mfg., 279 NLRB 705 (1986); Shawn's Launch Service, 261 NLRB 836, 837 (1982); Georgia Kraft Co., 258 NLRB 908, 912 ( 1981). On the other hand, when a draft contract contains discrepan- cies that "seriously [alter the] meaning" of a respondent's proposals or when discrepancies "may be traced to ambi- guity for which neither party is to blame" or to "differ- ences in the understanding of the parties," the Board will unhesitatingly find a lack of a meeting of the minds and, hence, no true agreement between the parties. Automatic Plastic Molding Co., supra; Oil Workers Local 7-507 (Cap- ital Packaging Co.), 212 NLRB 98, 108 (1974). Analysis of the apparent discrepancies34 discloses that two dis- crepancies constitute seemingly inadvertent errors of drafting-mistakes of the type not indicative of a lack of agreement. Thus, General Counsel's Exhibit 9 establishes 03 As with Peggy Turner, Rudnick's testimonial demeanor generally was that of an honest and forthright witness . I note, however, that the testimony of each was in conflict regarding alleged discrepancies be- tween the draft contract and Respondent's final offer. In such instances, I have credited the testimony of one over the other based on analysis of whose testimony best comports with the record as a whole It is, of course, not out of the ordinary-and, indeed, quite consistent with human judgment-to credit portions of a witness s testimony and not credit the remainder. 94 Contrary to Respondent, I do not view the appearance of the word "bonus" in part (b) of the pension plan provision of G C. Exh. 9 as a discrepancy from Respondent's final offer on that subject ; for I do not believe that Rudnick ever advised Turner that the word "pension" shall be substituted for "bonus." Thus, I credit Turner that, during the August 4 bargaining session, Rudnick did not, either orally or by document, state that such a word substitution be made . Noting that the word "bonus" is clearly inconsistent with what comes before it, I found Turner's state- ment that she would have favored such a change convincing support for my belief that she would have noted the substitution if stated by Rud- nick. Furthermore, Rudnick's testimony regarding what he did or said on this subject at that bargaining session was, at best , confused. Moreover, if Rudnick had instructed his secretary to type a revised proposal, which incorporated the word change and which was distributed to Respondent, one would expect that either Rudnick or Turner would have it. No such document was ever offered into the record, supporting my belief that it does not exist Also, had the union representatives been advised of the word substitution, one would expect Turner to have noted it on G C. Exh 7, her copy of Respondent's proposal 4. No such change appears thereon, and I do not believe Turner was ever advised to do so . Accord- ingly, I believe that, however illogical it seems, Respondent 's final offer contained the word "bonus," and that Rudnick never informed Turner that the word should be changed . Essentially, then, the draft contract contained the exact language proposed by Respondent, and if Rudnick meant to substitute "pension" for "bonus," he never so advised the Union. CASTRO VILLAGE BOWL Respondent's monthly contribution rate per employee to the health and welfare trust fund at $121 .21 rather than the amount proposed on August 6-$181, the contribu- tion rate in effect on that date. I credit Turner that she understood that the notation "freeze current level," which appears on the "Final Proposal," meant the $181 figure, and I find that the individual who typed the draft contract obviously misunderstood the language and mis- takenly utilized the amount as set forth in the expired East Bay Restaurant Association agreement. Next, the error in the seniority language of General Counsel's Ex- hibit 9, in which two sentences of Respondent's proposal are combined into one with some language left out, ap- pears to be a simple typing mistake . That is, the typist clearly left out an entire line of Respondent's proposal, not realizing the error inasmuch as the omitted line and the next one both began with the words "perform." Clearly, neither of the foregoing discrepancies bear on the matter of the parties' meeting of the minds, and I so conclude. Turning to the remaining discrepancies , I am of the firm view that each represents a clear disagreement be- tween the parties over the terms of Respondent 's August 6 final proposal . Initially, as to the sentence of Respond- ent's final offer allegedly not included by the Union in the draft agreement's pension plan provision , "There will be no increase in pension contribution," I note that the sentence appears in Respondent's proposal 4, a document utilized by Turner in preparing the purported draft agreement. Analysis of the respective testimony of Rud- nick and Turner on the issue of inclusion reveals pro- found disagreement. Thus, Rudnick testified that on July 29 he orally proposed that the sentence be included in Respondent's pension proposal and that he, at all times, meant that the above sentence be included in the final contractual pension language "because I didn't want the pension plan trustees to make any increases during the term of the contract." Turner, on the other hand, denied that Rudnick ever said that the disputed sentence should appear in the parties' contract and assertedly understood the sentence as meaning "that we would continue with the current language and current contribution rates." Turner further denied that Rudnick, in presenting Re- spondent's pension proposal, ever expressed a concern that the pension plan trustees would raise the employees' contribution rate during the contract 's term. However, Turner did admit that Rudnick expressed such a concern with regard to potential health and welfare trust fund contribution increases and, believing it likely that Rud- nick was similarly concerned with potential actions of the pension plan trustees, I believe Turner was not being entirely candid on this point and do not credit her denial in this regard or as to Rudnick's insistence on including the disputed sentence in the parties' contract. Further, I doubt her asserted understanding that the sentence merely redundantly restated that which preceded it within the pension proposal. Expanding on this dubious contention, counsel for the General Counsel argues that the disputed phrase was "simply instructional" and never intended by Respondent to be included in the contractual pension plan language. I find no merit to this contention. The sentence, in my view, refers not to the stated pen- 433 sion contribution rate, which according to the first sen- tence of Respondent's pension proposal, would remain unchanged, but to possible future rate increases by the pension plan trustees during the term of the contract. Further, based on Rudnick's credible testimony, the sen- tence was designed to alleviate his expressed concerned about such a contingency . Clearly, without the inclusion of this or similar language, it might well be successfully argued that the parties never intended to prohibit such future pension rate increases. Therefore, the disputed lan- guage appears to have been functional rather than "simply instructional." Nevertheless, counsel, citing Trojan Steel Corp., 222 NLRB 478 (1976), echoing points made by Turner while testifying, argues further that Re- spondent's above concern was groundless as the draft agreement's pension plan provision specifically refers to the underlying declaration of trust which, it is argued, precludes rate increases not set forth in a collective-bar- gaining agreement. Counsel for Respondent argues, to the contrary, that the pension plan trustees are empow- ered to amend this provision and, on their own initiative, increase employer contribution rates beyond established contractual rates and that, therefore, the disputed sen- tence would protect against this. Turner testified that the trustees have never done so, and counsel for the General Counsel contends that the declaration of trust expressly limits the trustees' power to amend the agreement if such conflicts with the terms of collective-bargaining agree- ments. While noting on the merits of these opposing views, I need not decide which is the proper interpreta- tion of th declaration of trust; for the disparate argu- ments conclusively establish the depth of the parties' dis- agreement over the necessity for the inclusion of the dis- puted sentence, and, in my view, it is not within the au- thority of or the function of an administrative law judge either to pass judgment on the rationale underlying Re- spondent's desire to include contractual language clearly designed to protect its interests or to, as counsel for the General Counsel would apparently have me do, rewrite Respondent's final offer by concluding that the proposed sentence is unnecessary or superfluous . Accordingly, based on consideration of the record as a whole, I con- clude that Rudnick, on Respondent's behalf, not only orally specifically proposed the sentence "There will be no increases in pension contribution" as part of the August 6 final proposal on pension plan language but also, at all times, meant that the above-quoted words be included in the parties' final agreement on the provision. I have no doubt and further conclude that Peggy Turner misunderstood or ignored Respondent's desire to have the disputed sentence included in the final offer's pension plan language; either, at the most, ignored Respondent's desire to protect itself from increases in the pension con- tribution rate by the trustees or, at the least, mistakenly believed that the disputed sentence redundantly rein- forced Respondent's proposals that the existing pension plan language and contribution rate remain unchanged; and acted under the assumption that , notwithstanding Rudnick's proposal to include the disputed sentence, such was unnecessary given the wording of the declara- 434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion of trust and the trustees' past practice.35 According- ly, it cannot be said that the Union's stated acceptance reflected a true agreement-a meeting of the minds-on this aspect of Respondent's final proposal. Perhaps even more compelling to my conclusion that no true agreement existed between the parties as to the terms of Respondent's final offer is that the East Bay Restuarant Association contractual amendment dates are set forth in the preamble language and at 21 of General Counsel's Exhibit 9, the draft contract . Initially, in this regard, I note that, in prior collective-bargaining agree- ments between the Union and the East Bay Restaurant Association, the contractual amendment dates were always set forth in the preamble language and immedi- ately preceding the signature spaces; that throughout the instant negotiations for a successor agreement Respond- ent's preamble language proposals were consistent and unchanging-naming only itself and the Union as the contracting parties and containing no references to the prior Association contracts; that the preamble language was discussed in detail only on one occasion early during the bargaining; that the listing of the prior amendment dates preceding the signatures was not a subject of bar- gaining; and that Turner composed the preamble lan- guage of General Counsel's Exhibit 9, revising what had been Respondent's consistently proposed language. This latter point, I think, is of critical import and brings into question Turner's motivation in revising what was Re- spondent's clear final offer language . In this regard and as to including the Association contracts ' amendment dates in the instant preamble language, Rudnick and Turner gave contradictory testimony . According to the former, he informed Turner that Respondent wanted an "independent" agreement without reference to the prior amendments applicable to the East Bay Restaurant Asso- ciation, that such were "irrelevant" to the agreement be- tween Respondent and the Union, and that Respondent did not wasn't Association contract past practices to have any precedential value for its contract with the Union. Turner denied that Rudnick wanted anything but the name East Bay Restaurant Association deleted from the preamble language , and stated that the preamble of the draft contract was consistent with what Respondent proposed. Inasmuch as, consistent with Rudnick's testi- mony, Respondent's preamble language proposals con- tained no references to the Association contract amend- ment dates and as she admitted that Rudnick stated he wanted an independent agreement , one not bound to agreements of the East Bay Restaurant Association, I credit the testimony of Rudnick on this point , believing that, at all times, Turner was aware that Respondent de- 35 Counsel for the General Counsel asserts that as Turner seemingly acquiesced at the hearing to the inclusion of the disputed sentence in the contract, I must find that the parties are in agreement on this issue How- ever, "the willingness of the union at the hearing to concede that certain [language] should have been included in the contract does not convince [me] that there was a meeting of the minds [at the time of the alleged agreement]." Interprint Co., supra at 1864. Further, while Turner may have informed the trust fund administrator that the parties' purported contract called for no pension contribution rate increase, such is reflective of no more than the fact that Respond- ent's final offer proposed the then -existing rate and does not relate to future rate increases. sired to have no mention of the East Bay Restaurant As- sociation or of its prior contracts with the Union in the preamble language or anywhere else in the parties' agreement. Further, in stating that she believed the pre- amble language of General Counsel's Exhibit 9 to be consistent with the intent of Respondent's proposed pre- amble language, I find that Turner was decidedly disin- genuous. Thus, when asked if she believed that the con- tract between Respondent and the Union was just one more amendment of a longstanding amended contract, Turner replied "that that's what I was trying to repre- sent in the final document." Consistent with this admis- sion and my perception of her as an experienced and knowledgeable union representative , I find that Turner must have been acutely aware that including the prior contractual amendment dates in the draft agreement would enhance her above-stated position and an argu- ment that past practices under the Association contracts were, in fact, of precedential value, a matter about which, I have concluded, Respondent was quite con- cerned . Based on the foregoing, I find that the preamble language of the draft contract seriously altered the intent and meaning of Respondent's proposed language, was obviously calculated to suit the Union 's purposes, and was not inadvertently inconsistent with what Respondent had proposed. In these circumstances, contrary to the ar- gument of counsel for the General Counsel , I cannot conceive that Turner, acting on the Union's behalf, ever, in fact, acceded to Respondent's final offer on this issue, and clearly there was no agreement between the parties on contractual preamble language-despite the Union's stated acceptance of Respondent's final offer.36 It neces- sarily follows, I further find, that the Union's listing of the Association contract amendment dates on 21 of the draft agreement likewise was a calculated act and is de- monstrative of a lack of a meeting of the minds over their relevancy to a collective-bargaining agreement be- tween only Respondent and the Union37 and, therefore, over the terms of Respondent's final offer . The foregoing analysis of the parties' significant differences with regard to the disputed sentence of Respondent 's proposed pen- sion plan and the inclusion of the East Bay Restaurant contractual amendment dates in the preamble language and elsewhere in the draft agreement conclusively estab- lishes, that, notwithstanding the Union 's stated accept- ance of the terms, the parties never reached a true agree- ment-reflective of a meeting of the minds-on the terms of Respondent's August 6 final proposal . Accord- ingly, Respondent was under no obligation-and com- 38 Contrary to counsel for the General Counsel, Rudnick conceded that the matter of the preamble was of "minor significance" only when compared with the problems with the pension plan. He adequately, in my view, expressed the seriousness of the draft agreement's discrepancy in terms of the precedential value inherent in past practices under the Asso- ciation contract Also, contrary to counsel for the General Counsel, Rud- nick expressed no indecision as to whether he expressed these concerns to the Union. If he was uncertain of anything, such went to the particular bargaining session at which the subject was discussed. 37 Although the particular subject of listing the amendment dates at the end of the contract was not discussed by the parties during negotia- tions, based on the testimony of Rudnick, who I credit on this point, he clearly expressed his opposition to the inclusion of the dates in the par- ties' contract when he and Turner discussed the preamble language CASTRO VILLAGE BOWL mitted no violation of Section 8(a)(1) and (5) of the Act by refusing-to execute the draft contract, General Counsel's Exhibit 9. Interprint Co., supra; Automatic Plas- tic Molding Co., supra at 632; OCA W Local 7-507, supra. Nineteen days after receiving the draft contract, Re- spondent withdrew recognition from the Union as the bargaining representative of its cocktail waitresses, bar- tenders, and culinary workers. According to the uncon- troverted testimony of Alan Held, on December 15, he received a petition, bearing the signatures of 6 of the 11 individuals then employed in the bargaining unit, in which the signatories stated their desire to no longer be represented by the Union. Subsequently, on verifying the six signatures as those of the named employees, Respond- ent withdrew recognition from the Union on the basis of "objective evidence that your Union does not represent the majority of the employees." Board law in this area is straightforward and of longstanding validity. Thus, "the existence of a contract, gives rise to a presumption that the union was the majority representative when the con- tract was executed and through the life of the contract." Petroleum Contractors, 250 NLRB 604, 607 (1980). Fol- lowing the expiration of the contract, here, this presump- tion continues, though rebuttable, and the burden of re- butting it rests with the Employer. To overcome the pre- sumption, attack a union's majority status, and meet its burden of proof, the employer must establish, in a con- text free of unfair labor practices, either that the union no longer, in fact, enjoys majority status or that the em- ployer has a reasonably based good-faith doubt as to the union's continued majority support. Further, petitions, such as that which was received by Respondent on De- cember 15, 1986, may form the basis for either of the above assertions. Century Papers, 284 NLRB 1151 (1987); Rockwood & Co., 281 NLRB 862 (1986); Master Slack Corp., 271 NLRB 78, 84 (1984); Guerdon Industries, 218 NLRB 658 (1975). Here, Respondent, in its December 19, 1986 withdrawal of recognition letter to the Union, states as the basis for its conduct the Union' s actual loss of majority status, as evidenced by to aforementioned pe- tition. Counsel for the General Counsel has neither ques- tioned the sufficiency of the petition nor offered any evi- dence that such was distributed in an atmosphere con- taminated by unfair labor practices, and I find that, inas- much as the petition was executed by more than half of the bargaining unit employees, Respondent has estab- lished that the Union, in fact, lost its majority status. Master Slack Corp., supra. Accordingly, Respondent did not violate Section 8(a)(1) and (5) of the Act when it withdrew recognition from the Union as the bargaining representative for its cocktails waitresses, bartenders, and culinary workers.38 se Inasmuch as I have concluded that there was not a meeting of the minds regarding Respondent's August 6 final offer, no agreement was 435 The remainder of the allegations of the complaint- that Respondent violated Section 8(a)(1) and (5) of the Act by directly dealing with the bargaining unit employ- ees and, thereby, bypassing the Union; by implementing unilateral changes in the terms and conditions of employ- ment of the employees; and by failing and refusing to provide information to the Union-are predicated on the Union's continued status as the bargaining representative of Respondent's cocktail waitresses, bartenders, and culi- nary workers. Inasmuch as the prior contract, to which Respondent and the Union were bound, had expired and as I have previously concluded that there was no meet- ing of the minds between the parties on the terms of a successor agreement, that Respondent was not obligated to execute the draft agreement, that the Union lost its majority status amongst the bargaining unit employees, and that Respondent lawfully withdrew recognition from the Union as the bargaining representative of the above employees, Respondent was no longer under any obliga- tion to bargain with the Union. Accordingly, it did not engage in conduct violative of Section 8(a)(1) and (5) of the Act by no longer utilizing the Union's hiring hall, by soliciting the above employees to apply for coverage under a Respondent-sponsored health plan, by imple- menting changes in their working conditions, or by re- fusing to honor the Union's request for information as to bargaining unit employees. CONCLUSIONS OF LAW 1. Respondent, Castro Village Bowl, is an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(2),(6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The General Counsel has not estasblished that Re- spondent engaged in any unfair labor practices herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed39 ORDER The complaint is dismissed. reached on the terms of a successor collective-bargaining agreement. Ac- cordingly, the Board 's decisions in North Bros Ford, supra, and Utility Tree Service, supra, are, of course, not controlling 39 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