The Carborundum Co.

National Labor Relations Board - Board Decisions

Jul 2, 1948

78 N.L.R.B. 91 (N.L.R.B. 1948)

In the Matter of THE CARBORUNDUM COMPANY, EMPLOYER and DIS-
TRICT LOCAL No. 47, INTERNATIONAL ASSOCIATION OF MACHINISTS,
PETITIONER
Case No. 4-RC-13.-Decided July 2, 1948
DECISION
AND
ORDER
Upon a petition duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board had delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
(1) The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
(2) The Petitioner and United Brick and Clay Workers of America,
A. F. L., herein called the Intervenor, are labor organizations claim-
ing to represent employees of the Employer.
(3) No question concerning representation of employees of the Em-
ployer exists within the meaning of Section 9 (c) (1) and Section
2 (6) and (7) of the Act, under the following circumstances.
On November 1, 1946, the Employer and the Intervenor executed a
1-year collective bargaining agreement covering the Employer's pro-
duction and maintenance employees and providing for automatic re-
newal from year to year thereafter, in the absence of notice of a desire
to modify, given by either party to the other, 30 days prior to the ex-
piration date of the contract. On or about August 27, 1947, the In-
tervenor informed the Employer that it desired to negotiate certain
changes in the contract, following which the parties held meetings dur-
ing September and October 1947.
On October 22, 1947, the Employer and the Intervenor signed a
"Memorandum of Agreement," wherein they agreed to continue until
* Gray, Houston, and Reynolds.
78 N. L. R. B., No. 15. 91
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 1, 1949, the terms of the existing contract, with certain
stated changes and modifications. The "Memorandum" recites that it
contains a complete settlement of all matters in issue between the
parties, and it further provides that a contract be executed embodying
all the terms of the existing contract as changed and modified.
Meanwhile, on October 21, 1947, the Petitioner mailed a letter to
the Employer in which it claimed to represent a majority of the Em-
ployer's machinists and maintenance men and requested recognition
as their bargaining representative. This letter was received at the
Employer's plant on the afternoon of October 22, prior to the execu-
tion of the "Memorandum of Agreement," but did not come to the
personal attention of the Plant Manager, to whom it was addressed,
until October 23 because of his preoccupation with the pending nego-
tiations, which the parties concluded that day.' The Plant Manager
testified in this connection that he had examined all mail received by
him before 2 o'clock the afternoon of October 22 immediately before
resuming the negotiations.
On October 29, 1947, the Petitioner filed the present petition. On
or about October 31, 1947, the Employer and the Intervenor executed
a contract pursuant to the provisions of the aforementioned "Memo-
randum of Agreement."
The Employer and the Intervenor contend that the "Memorandum
of Agreement" of October 22, 1947, constitutes a bar to the present
proceeding. The Petitioner urges, however, that it is not a bar because
(1) this agreement was not a full contract governing all terms and
conditions of employment; 2 (2) the Petitioner's claim of representa-
tion was received by the Employer prior to the execution of the agree-
ment, even though it was not called to the Plant Manager's attention
until the following morning; and (3) the agreement, in any event,
constitutes a premature extension of the 1946 contract.
The date of receipt by an employer of notice of a petitioner's claim
to representation is controlling rather than the date such notice is,
mailed.3 Also established by Board decision is the rule 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.4 Inasmuch as the petition was filed
' Plant Manager Forse executed each of the three contracts here involved in behalf of
the employer
3 We find that the agreement incorporating by reference the provisions of the 1946 con-
tract , except as specifically otherwise stated and modified, constitutes a sufficient and com-
prehensive written memorandum of the understanding between the parties to stabilize
bargaining relations for the employees concerned . Matter of Armour if Co , 66 N L. R. B.
209, 213
3 Matter of Northwestern Publishing Company, 71 N L R. B . 167, 169
4Matter of Mississippi Lime Company of Missouri, 71 N. L R. B. 472, 474.
THE CARBORUNDUM COMPANY 93
within the 10-day period following the Petitioner's claim ,5 the issue
raised by Petitioner's second contention is whether the mere receipt
of Petitioner's claim on October 22 before the execution of the "Memo-
randum of Agreement" constituted actual knowledge of such claim by
the Employer. We do not believe that it did. In so holding, we are
mindful of the fact that the Petitioner itself directed the letter to
the attention of Plant Manager Forse and that Forse received it in
the ordinary course of business the day following its receipt by the
Company. Under these circumstances, we conclude that the Employer
did not have actual knowledge of the Petitioner's claim when it
executed the October 22 "Memorandum of Agreement."
We also find no merit in the Petitioner's third contention. The
October 22 agreement was executed during the Mill B s period of the
1946 contract and before the filing of a petition or knowledge by the
Employer of the Petitioner's representation claim. The October 22
agreement was, therefore, not a premature extension of the 1946
contract.'
We find, therefore, that the contract of October 22, 1947, is a bar to
a present determination of representatives and we shall, accordingly,
dismiss the petition.
ORDER
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
5 See Matter of General Electric X-Ray, 67 N. L R. B. 997.
6 See Matter of Mill B, Inc., etc., 40 N. L. R. B 346
7 Matter of Mississippi Lime Compa n y of Missouri, 71 N. L. R. B. 472; Matter of No, th-
western Publishing Company, 71 N. L. R. B. 167.