Southern Heater Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1950

91 N.L.R.B. 1118 (N.L.R.B. 1950)

In the Matter of SOUTHERN HEATER CORPORATION, EMPLOYER and
METAL TRADES COUNCIL OF SOUTHERN CALIFORNIA, A. F. L., AND ITS
AFFILIATED LOCAL AND INTERNATIONAL UNIONS, PETITIONER
Case No. 21-RC-1335.-Decided October 19, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Ben Grodsky, hearing of-
ficer. The hearing officer's rulings made at the hearing are free froln
prejudicial error and are hereby affirmed.
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 Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce,within the meaning of
the Act.
2.. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
On May 26,1950, the Petitioner sent a letter to the Employer request-
ing recognition. On the same date the Employer mailed to the Inter-
venor 1 a "letter of understanding," which recited an agreement by
them to reinstate their previous collective bargaining agreement 2 as
of that date "subject to certain changes mutually agreed upon, which
are not incorporated in this letter of understanding." This docu-
ment also recited that a formal collective bargaining agreement em-
bodying the parties' new agreement would be executed at a later date,
but would be effective as of May 26. On May 29, the Intervenor
signed the "letter of understanding" and returned it to the Employer.
On the same day, the Petitioner filed its petition herein. The Em-
ployer received the Petitioner's request for recognition on May 31.3
1 United Automobile Workers. C. I. 0., Local 811.
This agreement had been cancelled by the Employer on February 27, 1954.
s The Employer 's plant was closed on May 27, 28, 29 , and 30.
91 NLRB No. 175.
1118
SOUTHERN HEATER CORPORATION 1119
The formal collective bargaining agreement between the Employer
and the Intervenor referred to in their "letter of understanding" was
not executed until about 2 weeks after the Intervenor signed the
"letter of understanding," but was, as agreed, made retroactively
effective to May 26.
The Intervenor asserts its contract with the Employer as a, bar to
this proceeding. The Petitioner contends that the "letter of under-
standing" between the Employer and the Intervenor is too vague to
constitute a bar, and that their formal collective bargaining agreement
cannot serve as a bar because it was not signed until about 2 weeks after
the filing of the petition.
It is well settled that a collective bargaining agreement which is
not reduced to writing and signed by the parties cannot operate as
a bar to a determination of representatives.4 The "letter of under-
standing" between the Employer and the Intervenor did not set forth,
or specifically refer to, either the provisions of their previous con-
tract which it purported to reinstate or the changes in that contract
which it purported to create. The net result was that the parties
reduced no provisions of their agreement to writing in the "letter of
understanding." Accordingly, without regard to whether the timing
of the execution of the "letter of understanding" would have created
a bar,5 the rule of the Eicor case renders that document inoperative
for that purposes
Moreover, despite the fact that the formal collective bargaining
agreement between the Employer and the Intervenor was made retro-
actively effective so as to antedate both the filing of the petition
and the receipt by the Employer of the Petitioner's request for rec-
ognition,7 that agreement cannot serve as a bar because it was not
executed until after the petition was filed."
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act:
* Eicor, Inc., 46 NLRB 1035.
We find it unnecessary to pass upon the applicability of the rule , laid down in
Mississippi Lime Company of Missouri, 71 NLRB 472, that where no petition,is filed on
or before the day preceding the execution date of a collective bargaining agreement, such
agreement will bar an election unless the employer has actual knowledge of the filing of a
petition before the contract is executed.
9 Cf. The Carborundum Company, 78 NLRB 91, where a "Memorandum of Agreement"
to continue the terms of an existing contract, with certain stated changes and modifica-
tions, was held to be a sufficient written agreement to constitute a bar.
7 The date of receipt by an employer of notice - of a petitioners ' claim to representation is
controlling , rather than the date such notice is mailed. Northwestern Publishing Comte
pany, 71 NLRB 167.
1 Continental Gin Company, 72 NLRB 1208.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees, excluding all office and
clerical employees, watchmen, guards, professional employees, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]