Mercast Manufacturing Corp.

1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V THE REMEDY Notwithstanding my recommendation that certain allegations of the complaint be dismissed, I have found that Respondent Super Sagless Spring Corporation has (1) interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and (2) discriminated in regard to the hire and tenure of employment of Luther Whitten (employee) to discourage membership in a labor organization I shall recommend, therefore, that Respondent Company cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CoNciusioNs of LAW 1 The Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Upholsterers' International Union of North America, AFL-CIO, and General Drivers, Salesmen and Warehousemen's Local Union No 984, International Brother- hood of Teamsters, Chauffers, Warehousemen & Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act 3 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By discriminating in regard to the hire and tenure of employment of Luther Whitten (employee) to discourage membership in a labor organization, and thereby derivatively interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Company engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act [Recommendations omitted from publication ] Mercast Manufacturing Corporation and International Molders and Foundry Workers Union, Local No. 374, AFL-CIO. Case No 21-CA-3301 December 29, 1959 DECISION AND ORDER On July 21, 1959, Trial Examiner Martin S Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the^Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs The Respondent also filed a brief in support of those portions of the Intermediate Report to which the General Counsel excepted The Board i has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the 'Pursuant to the provisions of,Section 3(b) of the Act the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins] 125 NLRB No 123 MERCAST MANUFACTURING CORPORATION 1239 Intermediate Report, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings, conclusion, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Mercast Manu- facturing Corporation, La Verne, California, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a)Refusing to bargain collectively with International Molders and Foundry Workers Union, Local No. 374, AFL-CIO, as the exclusive representative of all production and maintenance employ- ees, excluding office and plant clerical employees, watchmen, guards, and professional and supervisory employees. (b) In any manner interfering with the efforts of International Molders and Foundry Workers Union, Local No. 374, AFL-CIO, to bargain collectively with it on behalf of the employees in the afore- said appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Molders and Foundry Workers Union, Local No. 374, AFL-CIO, as the exclu- sive representative of all employees in the aforesaid appropriate unit, concerning rates of pay, wages, hours of employment, and other con- ditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant at La Verne, California, copies of the notice attached to the Intermediate Report marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order what steps it has taken to comply therewith. 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order ." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard at Los Angeles , California, on April 27, 28 , 29, and 30, 1959, pursuant to a complaint of the General Counsel against Respondent, Mercast Manufacturing Corporation . The issue litigated was whether Respondent engaged in unfair labor practices by refusing to bargain in good faith with Interna- tional Molders and Foundry Workers Union, Local No. 374, AFL-CIO, herein called the Union, within the meaning of Section 8(a)(5) and derivatively within the meaning of Section 8(a)(1) of the Act. The General Counsel presented oral argument at the close of the hearing and a brief has been duly submitted by Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Mercast Manufacturing Corporation is an Ohio Corporation with its principal office and place of business at La Verne, California, where it is engaged in the manufacture and sale of precision metal castings. Respondent annually sells products valued in excess of $100,000 to enterprises which in turn annually ship products valued in excess of $50,000 to points outside the State of California. Respondent does not dispute and I find that the operations of Respondent affect commerce. II. THE LABOR ORGANIZATION INVOLVED International Molders and Foundry Workers Union, Local No. 374, AFL-CIO, is a labor organization admitting to membership the employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction On November 4, 1957, pursuant to an agreement for a consent election and a duly conducted election, the Regional Director for the Twenty-first Region certified the Union as the representative of Respondent's production and maintenance em= ployees with the customary unit exclusions.' Thereafter a number of meetings were held between December 1957 and October 1958 for the purpose of negotiating a contract. The General Counsel contends that commencing on June 17, 1958, Respondent refused to bargain in good faith by (1) stalling and obstructing the Union in negotiations; (2) negotiating without any intention of reaching agreement; (3) failing to embody its proposals in a written agreement after the Union agreed to all of Respondent's proposals; and (4) failing and refusing during the certification year to meet and bargain with the Union unless and until it had been recertified by the Board. In essence, the General Counsel claims that Respondent refused to sign a con- tract after the parties had agreed on all its terms as of June 17, 1958. Respondent claims that the parties never did agree on all the provisions of a contract and further that the Union was not a majority representative in the indicated unit since sometime prior to November 3, 1958. As will appear, this case is disposed of on the fourth ground raised by the General Counsel and it is deemed unnecessary and superfluous to set forth and analyze the considerable testimony which bears upon the numerous meetings and the other grounds raised by the General Counsel. B. The appropriate unit and majority representation therein The complaint alleges and Respondent does not dispute that the production and maintenance employees of Respondent, excluding all office and plant clerical em- ployees, watchmen, guards, and professional and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining. I find that the above- described unit, this being the unit for which the Union was duly certified as bargaining representative, is a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. Respondent does not dispute that the Union was the duly certified bargaining representative and the representative of a majority of the employees in the above i Case No. 21-RC-5018. Of the 100 eligible voters, 83 cast ballots and the Union won by a vote of 67 to 16. MERCAST MANUFACTURING CORPORATION 1241 unit at the time of the certification and for a period of time thereafter. While not specifically relying on any given date , it is Respondent's position that said majority status was lost sometime prior to the end of the certification year, or at least that it had a good faith doubt to that effect. As will appear, Respondent raised this point for the first time with the Union on October 30, 1958. A finding on the issue of majority representation at all times material herein is deferred to a later section of this report. C. Sequence of events As indicated, I deem it unnecessary to set forth all the details of the bargaining negotiations as they would unduly encumber this report. However, a brief outline may be helpful. It is to be noted that the General Counsel does not attack Respondent's conduct prior to June 17, 1958, his theory being that the parties bargained to a contract as of that date and that Respondent thereafter procrastinated and reneged thereon. Respondent disputes that the parties were in agreement on the terms of a contract as of June 17, 1958, or thereafter. On November 5, 1957, the Union requested a meeting to commence bargaining negotiations, and on November 13 Respondent notified the Union that Pat Cunningham, its personnel manager and purchasing agent, together with another employee, would handle the negotiations. Soon thereafter, Norris Heinbuch, Respondent's secretary-treasurer, joined the management team and became its chief negotiator. On December 10, 1957, the Union and Respondent held the first of a number of bargaining meetings variously estimated as from 15 to 17 in number. The Union submitted a complete proposal on this occasion which Respondent rejected. On January 17, 1958, Respondent submitted a complete written proposal, and on February 20, 1958, still another. None of these contracts were introduced in evidence and this, of course, creates some difficulty for the General Counsel in his theory that the record permits of a finding as to what precisely was agreed upon as of June 17, 1958. Meetings were held in March and April and there was a gap until June 17. During this period a strike was called by the Union commencing on April 7, with advance notice thereof to Respondent on April 6. It officially ended on April 29, and International Representative Orval Teeters of the Union sent a letter on that date to Respondent notifying it of the end of the strike. The Union requested and obtained another meeting on June 17. Among those present were Cunningham and Heinbuch for Respondent and International Repre- sentatives Teeters and William Cates for the Union. As in all prior meetings, Cunningham took notes of the proceedings in behalf of Respondent. Teeters testi- fied that the parties "agreed that we were in agreement on everything"; that no items of disagreement were discussed; that this was not a negotiating meeting; and that it was agreed that Respondent would prepare a contract as agreed upon. Of course on this version one immediately wonders why it was necessary to hold this meeting if everything had been agreed upon. According to Cates, the parties were in agreement on a contract and it was to be prepared by Respondent according to "notes that had been taken during all previous negotiation sessions." He admitted however that three items were discussed indi- vidually, viz, (1) the sick-leave clause, (2) a method of prorating vacation benefits, and (3) the question of seniority for strikers replaced during the strike. Both Cates and Teeters conceded that Cunningham's impending wedding and honeymoon. were brought up. Heinbuch testified that the Union claimed at the meeting that they were there to formalize an agreement whereupon he replied, "We have yet to agree what we have agreed upon." He too recalled discussion of two items , viz, the proration of vacation benefits and sick-leave benefits. He proposed that rather than go over the contract item by item it be prepared as a formal written document and the parties agreed that Respondent would prepare it. In his testimony Heinbuch listed a number of clauses that allegedly had not been discussed (and apparently not written down either) for several months and Teeters also conceded that most of the items which were to go into the contract had not been discussed individually for several months. Heinbuch also testified that the principle of "major" items had been agreed upon as of this date; in his affidavit, received in evidence, he deposed that some "minor" items had not been agreed upon. The record does not adequately explain the distinction, if any, made between these two categories. While Cates and Teeters claimed that Heinbuch promised that a contract would be forthcoming in 10 days to 2 weeks, Heinbuch testified that he stated it would be 6 or 8 weeks before the job was done, because Cunningham who was to do the bulk of the job was to be wed in the near future. It is undisputed that Cunningham left 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on his honeymoon on June 25 or 26 and returned to work July 15; according to Cunningham he did most of the work on the contract after his return. A contract or contract proposal 2 was not forthcoming from Respondent until August 30 and the document, a complete collective-bargaining agreement of some 13 pages plus two appendixes was received by the Union on September 2. Cunning- ham, in preparing this document, allegedly relied upon the prior meetings and dis- cussions with the Union, numerous notes made during negotiations, his recollection of some discussions, and the content of Respondent's prior proposal, viz, the con- tract submitted in February. He further testified that 75 percent of his time is de- voted to other duties as purchasing agent and that after his return from his honey- moon he had to catch up on accumulated matters of various types. Upon receipt of Respondent's contract or contract proposal Teeters telephoned Cunningham and said that there were a number of mistakes and that the Union wanted to meet with Cunningham after Cates returned from his vacation. Cates returned on September 8 and he and Teeters carefully went over the August 30 con- tract. They concluded that certain clauses had been written up improperly and that other clauses or language previously agreed upon had been omitted. They pre- pared a typed list of these omissions or defects; this list contained eight enumerated items plus a 9th and 10th which were not numbered and the 10th item added in ink. Cates met with Cunningham on or about October 2. As Cunningham testified, Cates read off 8 to 10 points in which the contract or contract proposal was allegedly incorrect or defective. A copy of the list was not given to Cunningham who how- ever did take notes of the points raised by Cates. While Cunningham conceded at that time at least one item in the contract, through his inadvertence, was erroneous, there was no discussion of the points as such. A meeting between the parties was arranged for October 16 for the purpose of considering the points raised by Cates on October 2. Teeters and Cates represented the Union as in the past, and present for Respondent were Cunningham and Hein- buch. The latter at the outset of the meeting introduced a new management repre- sentative, one Henry, Respondent's manager of operations which was a newly created position. Heinbuch announced that Henry would be responsible for the future conduct of Respondent's labor relations. It is to be noted that Henry entered Respondent's employ in mid-September, was placed in charge of production, was assigned responsibility for negotiations with the Union shortly before the October 16 meeting, and left Respondent's employ shortly after the first of 1959. The union representatives went over the list of items in which the contract was al- legedly deficient, claiming that the contract submitted by Respondent was not ac- curate. I find, as Cunningham and Heinbuch testified, that the typed list of errors and omissions was not physically presented to the representatives of Respondent. The record warrants the finding that Respondent conceded there had been an error in language as to some items. Late in the meeting, the management representatives held a caucus, returned to the room, and asked for a 1-week recess so that Henry could familiarize himself with the history of negotiations. I find, as Teeters and Cates testified, that Cates asked if the parties could sign an agreement if such a recess were taken. Heinbuch replied; as Cates testified, that "he could see nothing that would prevent it." 3 The meeting adjourned on this note and another meeting was set up for October 23. At Respondent's request, it was postponed to October 29 and, again at Respondent's request, it was postponed to October 30 when it was finally held. As will appear this was the last meeting between the parties. The record does not disclose what Henry, who did not testify herein, did in the interim until October 30 as Respondent's newly appointed negotiator in the field of labor relations, except as reflected in the testimony of Heinbuch. The latter testi- fied that between October 16 and 30 he was summoned to a meeting with Henry 2I deem it unnecessary , in view of the rationale hereinafter set forth , to resolve the conflict between the parties as to whether this was a contract ostensibly agreed upon by them, as contended by the General Counsel, or rather a contract proposal, as contended by Respondent. I am also not unaware that on May 14 , 1958, in a letter to the Union, negotiator Heinbuch stated that the parties were in agreement on all issues but one, viz, the seniority status of replaced strikers. In his testimony he claimed that the parties were actually apart in a number of respects as late as October 1958 ; that this letter was incorrect, to say the least ; and that he made the indicated statement therein because he was seeking, in the same letter, the Union's permission to institute a wage increase. On the other hand, in view of the subsequent rationale herein , it is deemed unnecessary to develop this issue which bears upon the General Counsel's alternative theories. 3 Heinbuch's testimony was not in conflict in this respect. MERCAST MANUFACTURING CORPORATION 1243 and Executive Vice President Glazer of Respondent, with Cunningham present, "to discuss and acquaint Henry and Glazer with the status of negotiations." Glazer asked Heinbuch how he felt about the Union's majority status. Heinbuch replied that "there was some doubt that the Union now represented a majority of the workers." In so stating, Heinbuch allegedly relied on several factors, vis, (1) com- ments by replaced strikers who were unhappy over the loss of vacation and seniority; (2) the fact that 18 employees had not joined the strike; (3) the fact that 22 or 23 strikers had abandoned the strike and returned to work during the course thereof; (4) the fact that 30 strikers had been replaced; and (5) the fact that Respondent had hired in additional 40 workers after the strike. The last figure is apparently a reference, in substantial part at least, to hires caused by turnover in the plant because there were approximately 100 in the unit at the time of the certification and 110 as of the date of this conversation. It is not clear from Heinbuch's testimony whether or not Cunningham expressed similar com- ments on the majority status of the Union. It may be noted that, according to Hein- buch, in his opinion those strikers who returned to work, presumably prior to the end of the strike, had rejected the Union as their bargaining representative.4 The October 30 meeting was scheduled to be held at a local motel, the site of numerous other conferences between the parties, apparently in the afternoon. That morning, Cunningham telephoned Cates and stated that he and Henry would like to see h:m before the meeting; a meeting of the three was held shortly after lunch.5 Cates testified, and I find, that Henry said he had met with "other members of management, and that they had decided that we could reach a speedy conclusion, a speedy agreement, but the other members of management said that they didn't feel that we now represented a majority of the employees, and he asked me if we would agree to a recertification election." Cates quickly rejected the invitation. The record does not disclose precisely who was meant by the "other members" of man- agement, that is, whether it included others than Heinbuch, Cunningham, Executive Vice President Glazer, or others. Cates left and preceded to the motel where he found Teeters and acquainted him with the new turn of events. Teeters immediately telephoned Henry and requested a meeting. This was agreed to and Cates, Teeters, and the Shop Committee went to the plant and met with Henry and Cunningham. There is little conflict between the respective versions of Cunningham, Teeters, and Cates as to what took place. In essence Henry repeated his prior statements. According to Cunningham, Henry stated "there was a good faith doubt in his mind that the union represented a majority of the employees . . . if they would get themselves recertified . . . he thought that we could reach an agreement." According to Teeters, Henry stated that "he felt that we could reach a speedy conclusion on the agreement, but that it was the opinion of management that we did not represent the majority of the people in the plant, and they felt that we should have another election to determine that matter." Cates' testimony was to the same effect as that of Teeters. The union representatives asked Henry to reconsider his position and he agreed to do so. On November 3, 1958, he advised the Union that Respondent adhered to its position of October 30. There have been no further negotiations between the parties. D. Analysis and conclusions To sum up, the Union was duly certified on November 4, 1957, and, on October 30, 1958, 5 days before the anniversary of the certification, Respondent challenged the union majority allegedly because of a good-faith doubt as to the existence thereof and conditioned further negotiations upon a union victory in a new election. As set forth, Henry took the position that a "speedy conclusion on the agreement" could be reached if the union majority were reestablished.6 d It will be recalled that the strike took place between April 7 and 29, 1958. Needless to say , the fact that strikers abandon a strike and return to work , whether for economic necessity or otherwise, does not constitute substantial evidence as to whether or not they wish a labor organization to represent them in collective bargaining . It is evidence that they prefer to work rather than strike. 5 The only testimony about this meeting was presented by Cates. Cunningham testified primarily about another meeting with Cates , Teeters, and the Shop Committee held shortly thereafter. "It must be noted at this point, however, that a delay In the negotiations from October 16 to October 30 was brought about because of the introduction of a new negotiator into the picture and that the October 30 meeting came about only after several postponements at the behest of management. 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One is immediately impressed by the applicability in this situation of the pro- nouncement of the Supreme Court in Ray Brooks v. N.L.R.B., 348 U.S. 96. There the Court stated: Petitioner contends that whenever an employer is presented with evidence that his employees have deserted their certified union, he may forthwith refuse to bargain. In effect, he seeks to vindicate the rights of his employees to select their bargaining representative. If the employees are dissatisfied with their chosen union, they may submit their own grievance to the Board. If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. Al- though the Board may, if the facts warrant, revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Board; they do not justify employer self-help or judicial intervention. The underlying purpose of this statute is industrial peace. To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. Congress has devised a formal mode for selection and rejection of bargaining agents and has fixed the spacing of elections, with a view of furthering industrial stability and with due regard to administrative prudence... . To be sure, what we have said has special pertinence only to the period during which a second election is impossible. But the Board's view that the year period should run from the date of certification rather than the date of election seems within the allowable area of the Board's discretion in carrying out congressional policy. See Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 192-197; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Otherwise, encouragement would be given to management or a rival union to delay certification by spurious objections to the conduct of an election and thereby diminish the duration of the duty to bargain. Furthermore, the Board has ruled that one year after certification the employer can ask for an election or, if he has fair doubts about the union's continuing majority, he may refuse to bargain further with it.u$ This, too, is a matter appropriately determined by the Board's administrative authority. 18 Celanese Corporation of America, 95 NLRB 664. The Board has on several occasions intimated that even after the certification year has passed, the better prac- tice is for an employer with doubts to keep bargaining and petition the Board for a new election or other relief. Id., at 674; United States Gypsum Company, 90 NLRB 964, 966-968; see also J. P. O'Neil Lumber Company, 94 NLRB 1299. While Respondent places reliance on the Board decision in Celanese Corporation, 95 NLRB 664, this decision was noted in the Brooks decision and it is immediately apparent that it is of no avail to Respondent where the certification is less than 1 year old. After reading the Brooks decision, one can only conclude that 1 year means 1 year. If 4 or 5 days are not too soon for an employer to dispute a certification, where then is the line to be drawn? I am unable to draw it otherwise than on the 1-year basis approved by the Supreme Court. Furthermore, in the Brooks case a majority of the employees in the unit allegedly rejected the Union in the short period between the election and the issuance of the certification. It would hardly seem that if an employer must bargain with the desig- nated labor organization for a full year under such circumstances he can be heard to question a union majority in the present case. This is reinforced by the fact that there were no recent developments in the present case to cast any doubt on the union majority. The factors cited by Heinbuch to Henry in their conversation be- tween October 16 and 30 related to events that had taken place a number of months before, with the possible exception of recent personnel turnover and that at best would have been a very minor factor in the case. As recently as October 16, a date subsequent to the events cited by Heinbuch to Henry, Respondent had not challenged the union majority and there was no evidence that anything bearing on the picture had taken place thereafter. Under the foregoing circumstances, I conclude that (1) the Union was the majority representative of the employees in the above-described appropriate unit on October 30, 1958, within the meaning of Section 9(a) of the Act, and (2) by refusing on October 30, 1958, to bargain further with the Union unless it was MERCAST MANUFACTURING CORPORATION 1245 recertified, Respondent has refused to bargain in good faith within the meaning of Section 8 (a) (5) of the Act. I further find that by such conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under Section 7 of the Act, within the meaning of Section 8 (a) (1) thereof. See Clark & Lewis Co., 122 NLRB 865; Bluefield Produce and Provision Company, 117 NLRB 1660; and Orleans Storage Company, Inc., 123 NLRB 1757. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its business operations described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The sense of the recommended order is that Respondent, upon request, will promptly meet with the Union without lengthy delays and bargain for a contract for at least a reasonable period. Cf. Poole Foundry and Machine Company v. N.L.R.B., 192 F. 2d 740 (C.A. 4), cert. denied 342 U.S. 954. The General Counsel has requested an order requiring Respondent to sign the agreement allegedly agreed to between the parties, on one of his theories herein, on June 17, 1958 . As noted, there is no such written agreement in existence and a finding as to the terms of that agreement would have to be predicated upon Respondent's contract or contract proposal of August 30, 1958, as modified by the list of purported omissions and errors prepared by the Union and taken up with Respondent by the Union on October 2 and 10, 1958. I am unable to recommend the requested order because the record will not permit of a precise finding as to what was agreed upon by the parties with respect to at least one if not more of the topics raised by the Union in the October meetings. Such an order would not, therefore, permit of precise enforcement and accordingly the customary bargaining order has been recommended herein. Tennessee Coach Co. (Amended Decision), 115 NLRB 677, enfd. 237 F. 2d 907 (C.A. 6). Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Molders and Foundry Workers Union, Local No. 374, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Mercast Manufacturing Corporation is an employer within the meaning of Section 2(2) of the Act. 3. All production and maintenance employees, excluding office and plant clerical employees, watchmen, guards, and professional and supervisory employees of Respondent at its La Verne plant, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. International Molders and Foundry Workers Union, Local No. 374, AFL-CIO, was on November 5, 1957, and at all times thereafter has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on October 30, 1958, and thereafter to bargain collectively with International Molders and Foundry Workers Union, Local No. 374, AFL-CIO, as the exclusive representative of its employees in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL, upon request, meet with International Molders and Foundry Workers Union, Local No. 374, AFL-CIO, as the exclusive representatives of all employees in the bargaining unit described below and bargain collectively with respect to rates of pay, wages, hours of employment , or other conditions of employment, and we will embody in a signed contract any understanding that is reached . The bargaining unit is: All production and maintenance employees at the La Verne plant, excluding office and plant clerical employees , watchmen, guards, and professional and supervisory employees. WE WILL NOT interfere in any manner with the efforts of the above-named labor organization to bargain collectively with us in behalf of the employees in the above-described appropriate unit. MERCAST MANUFACTURING CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Daniel Construction Company and Joseph T. Mattingly. Case No. 35-CA-962. December 30, 1959 DECISION AND ORDER On September 4, 1959, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' 1 At the outset of the Intermediate Report the Trial Examiner states that the complaint alleged that Mattingly was laid off on or about September 22, 1959. This Is hereby cor- rected to read "September 22, 1958." 125 NLRB No. 127.