Nathan Warren & Sons, Inc.

292 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD by Leach Manufacturing Company, except on the awning operation, is covered by the said contract, and the Respondents were and are law- fully entitled to force or require Leach Manufacturing Company to^ assign such sheet metal work in accordance with the contract. MEMBERS RODGERS AND BEAN took no part in the consideration of the above Decision and Determination of Dispute. Nathan Warren & Sons, Inc., Petitioner and Independent Produce Workers Union, Inc.' and Local Union No. 64, Bakery, Dairy,. Food, Beverage and Miscellaneous Drivers, Advance Salesmen,. Warehousemen and Helpers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO? Case No. 1 RM=g354. November 1, 1957 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert N. Watterson, hearing officer. The hearing officer's rulings made at the hearing are• free from prejudicial error and are hereby affirmed.3 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 parties stipulated at the hearing that the Teamsters is a labor organization within the meaning of the Act, but the Teamsters refused to enter into such a stipulation with regard to the Independ- ent. In accord with the hearing officer's request at the opening of the hearing, the Board takes official notice of the following proceed- ings and determinations by the Board and the Regional Director, which -relate to the status of the Independent as well as to other issues here involved. On December 13, 1954, the Board certified the Teamsters as the exclusive representative of a unit of the Employer's employees.4 Thereafter, the parties entered into a bargaining agreement which terminated on December 13, 1955, upon notice duly given by the Teamsters. The parties then engaged in contract negotiations until May 24, 1956, when the Employer advised the Teamsters that it no 1 Herein referred to as the Independent, 2 Herein referred to as the Teamsters. 8 The motions of the Teamsters to dismiss the petition, which the hearing officer referred to the Board, are hereby denied for the reasons set forth below. .1 Case No. 1-RC-3805. This was a consent proceeding. The unit was comprised of drivers, warehousemen, and helpers, and combination food inspectors and warehousemen-, but excluded guards, professional employees, office employees, salesmen, shippers, and supervisors. 119 NLRB No. 43. NATHAN WARREN & SONS, INC. 293 longer recognized that union as the representative of its employees. ,On May 25, 1956, the Employer filed a petition for an election in the certified unit.' On May 28, 1956, the Teamsters called a strike, which was joined by all the employees in the unit at that time. At the hear- ing in Case No. 1-RM-229, the Teamsters disavowed its claim to representative status as to any of the employees whom the Employer had hired as permanent replacements of the strikers. Accordingly, the Board found that no question concerning representation existed, and in view of the Teamsters' disavowal, revoked the certification issued in 1954.6 On December 12, 1956, the Employer filed charges against the eamsters,' but the Regional Director, after investigation, refused to issue a complaint, and the case was closed on March 11, 1957. While this case was pending, the Employer, on January 22, 1957, filed a petition alleging that a question of representation had arisen based upon an alleged claim for recognition made by an organization called Produce Workers Union, Inc., herein referred to as the Produce Workers.' Notice of hearing issued in that case, but the hearing was not conducted because of the filing of an intervening charge by the 'Teamsters. The Employer thereupon requested withdrawal of its petition, and the Regional Director granted this request and closed the case on February 14, 1957. The intervening charge, filed on February 1, 1957, alleged that the Employer had dominated and interfered with the formation and ad- ministration of the Produce Workers.' On February 8, 1957, the Employer and the Teamsters entered into a settlement agreement, to which the Produce, Workers assented, and which was approved by the Regional Director on February 14, 1957. Under the terms of the settlement agreement, the Employer agreed to post a notice for 60 -days providing, in substance, that the Employer would disestablish the Produce Workers and would agree not to dominate or interfere with the formation or administration of any labor organization. The Employer stated that it posted such a notice on February 15, 1957. On April 22, 1957, the Regional Director notified the parties to the .settlement agreement that the investigation of the charge in Case No. 1-CA-2228 had been discontinued. The hearing officer stated further that the Regional Director notified the parties that Case No. 1-CA-2228 was closed by a letter dated April 26 sent to Nathan Warren as president of the Employer, to William Sheehan represent- ing the Teamsters, and to Francis Fennessy representing the Produce Workers. e Case No. 1-RM-229. 6116 NLRB 1662. Case No. 1-CB-384. Case No. 1-RM-248. Case No. 1-CA-2228. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence in the present proceeding shows that in March 1957 the Independent was formed, filed incorporation papers, and was chartered in accord with the laws of Rhode Island. Members were, enrolled, officers were elected, and bylaws were adopted. Certain employees were active in both the Produce Workers and the Inde- pendent because they preferred representation by some of their own number rather than by an outside organization, according to the. testimony of Morris Krichmar,10 president of the Independent and an incorporator of both organizations. Krichmar also testified that the purpose of the Independent was to deal with the Employer con- cerning grievances, labor disputes, wages, hours, and conditions of' employment. The Teamsters moved to dismiss the petition on the ground that the Independent "is the same organization as or a successor to" the Produce Workers. We shall not pass upon this allegation, as this would require determining whether the Employer had, in disregard of the notice it posted, engaged in unfair labor practices in violation of Section 8 (a) (2) of the Act. To make such a determination in this case would be contrary to established Board policy that unfair labor- practice allegations are not properly litigable in a representation pro- ceeding. A party asserting such allegations may litigate them only in an unfair labor practice proceeding designed to adjudicate such matters. As the Board recently stated, it is well established that a contention alleging domination or assistance of a labor organization by an employer is in effect an unfair labor practice charge, and therefore not properly litigable in a representation proceeding." Accordingly, the motion of the Teamsters to dismiss on the ground that the Independent is the alter ego of, or a successor to, the Produce- Workers is denied.12 We find that the Teamsters and the Independent are labor organiza-- tions within the meaning of Section 2 (5) of the Act, claiming to, represent employees of the Employer.l3 10 Krichmar is a salesman who has been employed by the Employer for about 20 years. Two other employees who were incorporators of both organizations are Gentile, also a salesman , and Fennessy , the Employer's bookkeeper , who became secretary of the Independent. 11 Bi-States Company, 117 NLRB 86. 12 To the extent that this decision is inconsistent with such earlier cases as Baltimore Transit Company, 59 NLRB 159 , and The Standard Oil Company of Ohio, 63 NLRB 990, those cases are hereby overruled. 18 Member Bean agrees to deny the Teamsters ' motion because it goes contrary to the. rule of the Bi-States Company decision. In addition , he rests on the further ground that the Board is precluded from disqualifying the Independent by Section 9 (c) (2) of the statute, which, in pertinent part, reads ". . . in no case shall the Board deny a labor organization a place on the ballot by reason of an order with respect to such labor organi- zation or its predecessor not issued in conformity with section 10 (c)." The substance of the Teamsters' argument is that the Independent, as successor to the old Produce Workers, NATHAN WARREN & SONS, INC. .295 3. The Teamsters moved to dismiss the petition on the grounds that (1) it was untimely filed by the Employer, and (2) it was based upon a request for recognition by the Independent which was not timely. With regard to (1), the petition was filed on April 19, 1957. The Employer stated at the hearing that the notice disestablishing the Produce Workers was posted on February 15, 1957. The petition was, therefore, filed after the 60-day posting period had expired. The Teamsters maintains that the filing of a petition was precluded until after the Regional Director issued his notice of April 22, 1957, in- forming the parties to the settlement agreement of the closing of Case No. 1-CA-2228. Even on this basis, however, as the petition was not processed until after that notice had issued, there was no im- propriety in its filing prior thereto.l4 With regard to (2), the petition herein states that it was based upon a claim to represent the Employer's employees made by the Inde- pendent on April 18, 1957, whereas the evidence shows that this claim was made by a letter sent on April 6. The Teamsters' objection relates, in substance, to the fact that both dates preceded the Regional Di-, rector's closing of Case No. 1-CA-2228. However, in view of our determination above that we will not consider the Teamsters' allega- tions, in effect, that the Independent is disqualified for purposes of this proceeding, we find no merit in the contention that the Inde- pendent was precluded from claiming representative status until the formal close of that proceeding. The Teamsters' motion to dismiss the petition on the grounds of untimeliness is therefore denied. Accordingly, we find that a question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The petition describes a unit including all employees except pro- fessional employees and supervisors." At the hearing, the Employer and the Independent agreed that the unit should embrace all the em- ployees of the Employer, including office employees and salesmen, but excluding professional employees, guards, and supervisors. The unit for which the Teamsters was certified in December 1954, following a consent election, and which was covered by the contract in effect until December 1955, included drivers, warehousemen, and helpers, is encumbered by an inherent disability which attached to the Produce Workers by virtue of a settlement agreement between the Company and the Regional Director in February 1957. But that settlement stands entirely apart from Board action, bears no relationship to Section 10 (c), and provides for no order whatever, either directly or indirectly. Therefore , absent any Board order "in conformity with section 10 (c)," directed either to the Independent or any alleged predecessor, he believes that the Board may not regard the Independent as anything but a labor organization within the meaning of Section 2 (5) of the Act. 14 Cf. Weston Biscuit Company , Inc., 117 NLRB 1206. 15 The record indicates that there are approximately 21 nonsupervisory employees, of whom 4 are classified by the Employer as salesmen , 5 as office employees, and 12 as truck- drivers or warehousemen or both. 296 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD and combination food inspectors and warehousemen, but excluded guards, professional employees, office employees, salesmen, shippers, and supervisors. The Teamsters contends 16 that this is the only ap- propriate unit; that the unit sought in the petition, including cate- gories formerly excluded, is inappropriate; and that the petition should therefore be dismissed.. The prior certification and bargaining history are not of control- ling importance here, however, as the certification was based upon the results of a consent election," and the bargaining history, which was of relatively brief duration, terminated in May 1956.15 Nor does the fact that a petition seeks a unit including categories which may be found not to constitute part of the unit finally determined to be ap- propriate require dismissal of the petition.19 The Teamsters' motion to dismiss on these unit grounds is therefore denied. There was no dispute as to the appropriateness of a unit comprised of truckdrivers and warehousemen, and we find such a unit appro- priate. The parties were in dispute with regard to the salesmen and clerical employees, whom the Employer and the Independent would include but the Teamsters would exclude. The salesmen report to work about 4: 30 a. in., examine the stock,20 and check marketing reports received by mail and teletype. David Warren, a company official who supervises the salesmen, informs them of the prices at which stock was purchased, and indicates the prices at which it should be sold. The salesmen, however, may vary these proposed prices to some extent if, in their judgment, the variation is warranted by such factors as the condition of the produce, the quanti- ties being purchased, or the prevailing market prices. Selling takes place from about 5 to 8 a. in. The salesmen then prepare written re- ports on the remaining stock, which requires only a few minutes. The record does not indicate what they do for the remainder of their time until they leave at 2: 30 p. in. When a, salesman completes a sale, he makes out a salesslip which is given to the shipper. The slips are next processed by the two stock- clerks, one handling cash and the other charge transactions. The cash slips are delivered to the cashier, and all the slips are finally taken to the office to be recorded on cards, which are filed by the stockclerks, who also handle the reports on remaining stock prepared by the salesmen. 1e The independent maintained in its brief that because the Teamsters had disavowed representation of the permanent strike replacements and had been decertified, its unit -contentions should be disregarded . As the Teamsters is a party to this proceeding, we find no merit in this contention. " humble Oil and Refining Company, 115 NLRB 1485, 1487. e Standard Furniture Company, 118 NLRB 35. io Plankinton Packing Compa ny, 116 NLRB 1225. :o The salesmen are departmentalized to some extent, specializing in the sale of produce or of particular kinds of fruit. NATHAN WARREN & SONS, INC. 297 In addition to the stockclerks and cashier, the other office employees are a bookkeeper and an office boy, who apparently perform the duties indicated by their designations. The truckdrivers and warehousemen punch time clocks ; the sales- men and office employees do not, but keep their own records of the hours they work. All the employees are paid hourly rates, but the salesmen and most of the office employees are paid at higher rates than the employees in other categories. In addition, the Employer pays a bonus once or twice a year which varies in amount, depending upon the length and value of an employee's service. The salesmen and office employees have been given larger bonuses than the other employees. As the salesmen work under separate supervision, are paid more than the truckdrivers and warehousemen, and perform duties that en- tail greater responsibility, it is clear that their employment interests are dissimilar to those of the employees in the unit. Moreover, they were excluded from the previously certified and contractural unit. The Board generally excludes salesmen from units of manual work- ers,21 and we see no reason for departing from this rule in the present case. We shall, therefore, exclude the salesmen from the unit herein found appropriate. We shall also exclude the office employees from the warehouse unit in accord with the policy enunciated in Interstate Supply Company, 117 NLRB 1062, that we "shall in the future exclude office clerical employees from wholesale units if any party objects to their in- clusion." In a brief filed after the hearing, the Independent proposed that, if the office clerical employees were excluded from the warehouse unit, a separate unit should be established for them. We find that the office employees, who are under separate supervision, work in. areas separated from the Employer's other operations, and are en- gaged primarily in office clerical duties, constitute an appropriate unit. Accordingly, we find that the following employees at the Em- ployer's wholesale operation at Providence, Rhode Island, constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : (a) All office clerical employees, excluding all other employees, guards, and supervisors 22 as defined in the Act. 21 Seattle Packing Company, 106 NLRB 451. The Independent's arguments, at the hear- ing and in its brief , directed to establishing that the salesmen are not professional employees within the meaning of the Act, are not relevant as there is no contention here- that the salesmen have professional status. 22 The parties stipulated that in addition to Nathan Warren, president of the Employer, and his son David Warren, who is treasurer and general manager and also supervises the- salesmen , the following are supervisors within the meaning of the Act : John Prior, the officer manager, who supervises the office employees ; Joseph Faria , a foreman , who super- vises the truckdrivers and warehousemen ; Pasco 1larandola, his assistant , who also acts as a shipper ; Vincent Jlarandola, a general supervisor; Joseph Reposa , who has charge- .298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) All truckdrivers and warehousemen, excluding all salesmen, office clerical employees, professional employees, guards, and super- visors as defined in the Act. [Text of Direction of Elections omitted from publication.] MEMBER MCGRDOCK, dissenting : I dissent from the majority's action in overruling Board precedent which has its roots in 20 years of cases supporting the principle that this Board will not knowingly accord a place on the ballot in any .election conducted. by the Board to a labor organization which is incapable of acting as a bona fide bargaining representative because it is a successor to a disestablished employer-dominated organization. In February 1957 there was a settlement agreement on charges filed by the Teamsters, under which the Employer disestablished the Produce Workers Union, Inc., as an employer-dominated labor or- ganization. The incorporator of that organization then incorporated the Independent Produce Workers Union, Inc., during the 60-day posting period. On receipt of the latter organization's request for recognition the Employer filed this RM petition. The Teamsters intervened and moved to dismiss the petition on the ground that the Independent "is the same organization as or a successor to" the dis- established Produce Workers on the facts shown in the record, which I do not set forth in detail here. Although neither the Independent nor the Employer questioned the Teamsters' right to litigate this -contention, the majority refuses to consider and to resolve this issue. The reason given by the majority is that to do so "would be contrary to established Board policy, adhered to for many years, that unfair labor practice allegations are not properly litigable in a representa- tion proceeding." I deny this. The Board has throughout the years and up to and including the current year 23 deemed it necessary and proper in a representation proceeding to consider allegations -which go directly to the question of the inherent capacity of a labor organization to act as a bona fide bargaining representative. The 'very fact that the majority finds it necessary to overrule such earlier cases as Baltimore Transit Company, 59 NLRB 159, and The Standard Oil Company of Ohio, 63 NLRB 990, demonstrates that it is the majority's refusal to determine if the Independent is a successor to the disestablished Produce Workers which is "contrary to established Board policy." The majority opinion erroneously implies that these two cases stand for an outdated general rule that 8 (a) (2) allega- tions are litigable in representation proceedings and are therefore part of the day, and keeps records, of the loading and unloading of merchandise shipped by railroad or truck ; and John Merluzzo, who supervises the work of unloading freight cars. 2S Associated Dry Goods Corporation, 117 NLRB 1009. NATHAN WARREN & SONS, INC. 299 'inconsistent with subsequent cases which voice a contrary general rule. This is not so. The Baltimore Transit decision clearly recog- •nized the general rule that unfair labor practice issues are not litigable in representation cases, stating that "the Board has found it to be convenient and practicable, for the most part, rigidly to exclude any proffered evidence of unfair labor practices in a representation pro- ceeding, thereby leaving to the aggrieved parties the right to file charges under Section 10. This division of the Board's functions has proved invaluable in expediting the handling of representation .cases." [Emphasis supplied.] Although recognizing this general ,rule, the Baltimore Transit decision nevertheless pointed out that :there are certain necessary exceptions, and that the Act does not "re- •quire that the Board, in a representation proceeding, divorce itself from all matters which might appropriately be raised in a complaint .proceeding." One example cited is the investigation on objections to :an election of employer interference which would constitute a viola- tion of Section 8 (a) (1) of the Act and thus afford grounds for a complaint proceeding. The decision further pointed out that "The full freedom to choose bargaining representatives which the pro- cedure set forth in Section 9 of the Act is intended to insure would be limited drastically were the Board powerless to determine which -unions shall appear on the ballot in elections directed thereunder and thus be available for choice by employees." Consequently, "to :guarantee that full freedom of choice, which must prevail if the provisions of Section 9 are to have any substantial meaning," the Board has enlarged the usual scope of its inquiry in representation proceedings to deny places on the ballot to "tainted unions." The Baltimore Transit decision goes on to state : Thus, where the articles, or constitution, of a labor organization participating in a representation proceeding indicated on their face subservience to the employer, such organization has been denied a place on the ballot. Likewise, where the evidence in a representation proceeding fortuitously disclosed that supervisory .employees played some part in the formation or organizing ac- tivities of a union party thereto, that union has been denied a place on the ballot, and its petition; if any, has been dismissed. A further example of this nature is the Board's practice to deny in a representation proceeding, a place on the ballot to a union previously found to be company-dominated in a complaint pro- ceeding. In such cases the Board is clearly right in taking cog- nizance of the true character of a labor organization. An analogous situation is presented when a previously disestablished organization appears in a representation proceeding under a different name. Plainly again, the Board is amply warranted 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in inquiring into the true character of the organization. We believe it follows logically that, in a case such as the instant one, where a union seeking a place on the ballot allegedly is a successor to or a continuation of a union previously ordered disestablished, this Board may inquire into the formation of such union to de- termine whether it is subject to the same taint of employer control and influence, and thus, not to be foisted upon employees in a Board conducted election. As previously stated, this has indeed been the Board's practice, and where a finding of successorship has been made, the tainted union has been denied a place on the ballot, and its petition, if any, has been dismissed. The Board's reasoning as to the necessity of the exception to the general rule, which permits evidence to be adduced in a representa- tion proceeding to show that a petitioning union is a successor to or a continuation of a previously disestablished union, is worthy of careful consideration at a time when it is proposed to overrule this principle : It would appear to be the position of the Brotherhood that the Board is powerless in a representation proceeding to deny any union a place on the ballot on the ground that it is a successor to an organization previously ordered disestablished unless a find- ing of such successorship is first made in a complaint proceeding. Solely from the standpoint of effectuating the purposes of the Act, we consider such a concept of the dual functions bestowed upon the Board to be clearly erroneous. If such an interpreta- tion of the Act were valid, it is entirely conceivable that, in a given situation, a representation .proceeding would be postponed indefinitely. Thus, for example, a complaint proceeding might result in the disestablishment of one union, only to have its suc- cessor spring up and intervene in the representation proceeding. To keep the successor off the ballot, another complaint proceeding would have to be instituted to disestablish it. Thereafter, a sec- ond successor might spring up and intervene in the representation proceeding, and so on ad infinitum. Meanwhile, the employees concerned would be denied the opportunity to choose a collective bargaining representative which the Act guarantees, with result- ant friction between management and employees, and among groups of employees. The very purposes of the Act would be thwarted thereby. To avert such a vicious cycle, the Brotherhood suggests that the Board should institute contempt proceedings, and there try the issue of successorship. It is true that contempt proceedings may be lodged against an employer where the Board's order of disestablishment has been enforced by court decree, and a successor organization has come into existence. But there may NATHAN WARREN & SONS, INC. 301 be situations in which the employer has engaged in no overt acts of a contemptuous character and yet the successor organization may clearly appear to the employees to be tainted as was its predecessor. However, the existence of facts which may argu- ably be said to be such as to warrant contempt proceedings does not mean that all activity with respect to a representation pro- ceeding must be stayed, pending the determination by the courts that an employer is or is not in contempt. Nowhere in the Act is there any indication that the Board is compelled to resort first to action under Section 10, or proceedings ancillary thereto, in order effectively to perform its functions under Section 9 of the Act. In the Baltimore Transit case, the Court of Appeals for the Fourth ,Circuit not only sustained the Board's power to consider the successor- ship issue in a representation case, quoting approvingly the portion of the Board decision set forth just above; but even more significantly it went further and pointed out that it was "inconceivable" that Congress could have intended the Board to act otherwise. The court :said: It was clearly not the intention of Congress that the Board should place on the ballot in an election an employer dominated organi- zation ([h. L. B. B. v. Falls Corp., 308 U. S. 461, 462) ; and it is inconceivable that it should have been intended that the summary procedure provided by section 9 (c) should be delayed while com- plainlt proceedings under section 10 were being conducted 24 'But now the majority not only specifically overrules the Board de- cision in Baltimore Transit, but in necessary effect, the court decision as well, ignoring the portion of the court decision just quoted. I would be the last to suggest that this Board should be hidebound by precedent. However, it would seem axiomatic that it should not ,overturn a Board policy of many years' standing which has been approved by the courts as reflecting what Congress intended, absent compelling reasons for overturning it; and that any such reversal should be accompanied by an adequate and meaningful explanation of what is wrong with the policy and the reasons which justify a re- -versa.l and overweigh the considerations which caused the adoption ,of the policy in the first place. Yet the majority decision plainly does not meet such a burden. It does no more than to state (1) that it considers subsequent cases as "nullifying the effect of" cases like Baltimore Transit and Standard Oil; and (2) that labor organiza- tions are now more conversant with "the requirement that attacks on the validity of a labor organization should be litigated in a complaint 24 Madden v. The Brotherhood and Union of Transit Employees of Baltimore , 147 F. 2d 439, 442. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeding." Point (1) is incorrect, and point (2) begs the question.. The majority opinion completely fails to address itself to the consid- erations set forth in Baltimore Transit which show the necessity of- the doctrine laid down therein. The cases cited by the majority in footnote 4 which reflect the- general rule that unfair labor practice allegations are not litigable. in representation proceedings cannot be said to "nullify the effect" of the Baltimore Transit exception. For the most part they fall into different and easily distinguishable categories. Thus the Times- Square case (and others following it) held that where the General Counsel had resolved the question whether strikers are unfair labor practice or economic strikers by refusing to issue a complaint charging- that they are the former, the Board in determining eligibility of strikers and replacements to vote in an election would not make- its own determination in a representation case because to do so would. impinge upon the General Counsel's authority to issue complaints.. Obviously this line of cases does not involve the issue of the Board. placing on a ballot and certifying a labor organization which is not a bona fide labor organization because a successor to a dominated organization. The National Foundry case, quoted in the majority opinion, and the similar cases in that category cited, involved the question whether a petitioning labor organization may prove in a representation case that an intervening labor organization which. pleads a contract bar to an election is an illegally assisted or domi- nated organization, in order to destroy its contract bar. Obviously this line of cases also does not involve the question of the Board placing on a ballot and certifying a labor organization which is not a bona fide labor organization. By refusing to consider allegations of employer assistance or domination in such cases, the Board does, not lend its processes to assist a union in achieving representative status. The Board permits even noncomplying unions who are not entitled to file petitions, appear on ballot, or be certified, to appear and assert a contract bar to a petition. Furthermore, it is noteworthy that in the cited and relatively recent Mengel case, also involving an effort by a petitioner to defeat a contract bar by showing that several of the officers of the intervenor were supervisors, the Board recognized the continuing validity of exceptions to the general rule of the type involved in the instant case. It noted that the petitioner `'cites cases in which the Board has refused to direct a representation election because it found that the union seeking the certification as representative was organized or controlled by supervisors." It is significant that the Board did not say that such cases no longer had validity, but instead said : "These cases are inapposite in the present situation, however, for the Intervenor is not seeking a certification; it merely asserts that its current contract bars a determination of representatives at this time." [Emphasis supplied.] NATHAN WARREN & SONS, INC. 303 - The majority's refusal to consider the issue of successorship here is not even consistent with the most recent case cited-Bi-States-from which I dissented because it involved a partial inroad into the prior policy. In that RC -case the majority refused to consider evidence in the record showing that a majority of the officers of the Intervenor and its bargaining committee were supervisors. The result there was rationalized on a purported distinction in the Board's cases between attacks on the character of petitioning and intervening labor organiza- tions. The majority there said, "Unlike the usual situation in which dismissal of the petition is sought because of the disqualification of the petitioning union, we have here a contention directed not toward impugning the validity of the petition but toward disqualify- ing an intervening union from participating in any election to be directed In other words, the petitioner is, via the representation route, seeking to gain an election and at the same time to litigate its allegations of unfair labor practices." Inasmuch as it was the Inde- pendent which raised the question concerning representation on which the Employer filed the RM petition in this case,25 the Independent's position is properly analogized to that of the petitioner in an RC case; and the Teamsters, which is attacking the character of the Independent as a bona fide labor organization, is a typical inter- venor which does not wish an election. Thus this case falls within the distinction laid down in the majority decision in Bi-States be- tween attacks on the bona fide character of petitioning and intervening labor organizations. But instead of applying the distinction made in the Bi-States case, the majority now moves on from the inroad' in established Board policy made in Bi-States, to a full scale and open reversal of that policy in refusing to pass on the question whether the Independent is a successor to the disestablished Produce Workers and therefore incapable of raising a question concerning representation, being placed on a ballot, and certified. The majority's refusal to consider the successorship issue on the ground that it would require determining in a representation case whether the Employer had committed an unfair labor practice is also not consistent with Board action in recent cases in other related areas. Members of the majority have had no hesitancy in passing upon the question in representation proceedings as to whether supervisors par- ticipated in a petitioning union's affairs and obtained authorization cards so as to require dismissal of the petition; 26 nor inquiring into the question whether decertification petitioners were assisted by the Employer in the filing of the petitions.27 The objection that the 25 Employers cannot raise a question concerning representation. .Associated Dry Goods Corporation , 117 NLRB 1069. 'Bond Stores, Inc., 116 NLRB 1929; Southeast Ohio Egg Producers , 116 NLRB 1076; The Belden Brick Company, 114 NLRB 52; Clackamas Logging Company, 113 NLRB 229; 304 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD determination of these questions could be considered a determination that an employer had committed an unfair labor practice is no less applicable to such cases. Note, for example, the finding of the Board in the recent case of Bond Stores, Inc., 116 NLRB 1929, 1930: "In our opinion, the Employer in the instant case exceeded the bounds' of strict neutrality imposed by the statute by its conduct preceding the filing of the [decertification] petition and thereby unlawfully intruded upon its employees' rights independently to file a decertifi- cation petition with the Board." [Emphasis supplied.] The majority's attempt to explain the inconsistency between its action and the very recent Associated Dry Goods case, where the Board took evidence in the representation case as to whether two alleged supervisors had participated in the petitioning union's affairs and obtained authorization cards, on the ground that the Board had to determine a different issue-"which party had in fact filed the petition"-is belied by the language of the decision. After finding 1 man not a supervisor, and that the other man who was a supervisor had merely discussed the union with 2 or 3 employees who did not join or sign application cards, the decision said : "The Board has held that activities such as those are not by themselves sufficient to attribute to a petitioning union a `managerial taint' that would disqualify'such union from acting as bargaining representative of the employees." [Emphasis supplied.] Thus the Board as late as that case, and subsequent to Bi-States, continued to recognize that the issue is the capacity of the union seeking certification to act as a bona fide bar- gaining representative.28 I note that the majority states that the rule that attacks on the validity of a labor organization must be litigated in a complaint proceeding "is particularly applicable here, where the Teamsters, which is seeking a Section 8 (a) (2) determination with regard to the Independent, had previously succeeded in obtaining disestablish- ment of the Produce Workers in an unfair labor practice proceed- ing." But the Teamsters is not here seeking a determination that the Employer has violated Section 8 (a) (2) of the Act. It is seek- ing only to show that the Independent is a continuation of or a suc- cessor to the disestablished organization. It is not at all impossible that it may be shown to exist as a successor to the disestablished organization because incorporated by the same employee, the absence of a line of fracture, etc., without the Employer having lifted a hand or having engaged in the slightest conduct violative ' of Section 8 (a) (2) of the Act. The Board pointed out this possibility in the Plastic Molding Corporation, 112 NLRB 179, Bethlehem Steel Company, Shipbuilding Division, 111 NLRB 185; Moore Drop Forging Company, 108 NLRB 32. sa For other cases applying this principle see Midland Container Corporation, 116 NLRB 1116; Beaumont Forging Company, 110 NLRB 2200 - New York City Omnibus Corporation, 104 NLRB 579; Columbia Pictures Corporation, and cases cited therein, 94 NLRB 466. NATHAN WARREN & SONS, INC. 305 Baltimore Transit decision as one of the reasons requiring that the successorship issue , be considered in a representation proceeding, say- ing, "there may be situations in which the employer has engaged in no overt acts of a contemptuous character and yet the successor organization may clearly appear to the employees to be tainted as was its predecessor." Consequently, even if the Teamsters were to file a Section 8 (a) (2) charge, as a labor organization may be disestablished only under a finding that the employer has violated Section 8 (a) (2), the Board under such circumstances would be helpless to remedy the situation in a complaint case even if the record showed that the Independent was actually a successor to the disestablished organi- zation. :C.onsequently, the application of the Baltimore Transit doc- trine to determine successorship in the instant proceeding conceiv -ably might be the only way of insuring that an impediment to fre collective bargaining by this Employer 's employees is removed and that this Board does not become a party to foisting a successor to a disestablished labor organization onto them as their bargaining representative. This is but one of the considerations underlying the ..Baltimore Transit doctrine for which the majority has no answer in reversing that policy. I have ascertained from Board records that in the recent Bi-States case the worst fears pointed out in my dissent were realized=the intervenor won the election and has been certified by the 'Board, despite the undenied fact that a majority of its officers and a majority of its bargaining committee are supervisors. Not only is that em- ployer free, but he is obligated by this Board's certificate, to bargain collectively for his rank-and-file employees under a setup where he will be sitting on both sides of the bargaining table. By directing an election and putting the Independent on the ballot in the instant case without considering and determining whether it is a successor to a disestablished employer-dominated organization, the Board is once again taking the first step toward the ultimate certification of a labor organization which in all likelihood is incapable of acting as a bona fide bargaining representative. As the court pointed out in the Baltimore Transit case, this-is not what Congress intended. . Accordingly, because I believe that the integrity and efficacy of the Board's election processes can be preserved and the policies of the Act . effectuated only if the Board continues to apply its long- established and judicially approved policy of preventing unions which are, inherently incapable of dealing with employers at arm 's length from participating in elections , and because no sound reason has been advanced for reversing that policy, I am compelled to disagree with the majority's decision to ignore the contention and the record evidence in support thereof, that the Independent is a successor to an employer-dominated and disestablished organization. 476321-58-vol. 119-21