NLRB v. Gilmore Industries, Inc.

• Decision Date: 16 February 1965
• Docket Number: No. 15750.,15750.
• Citation: 341 F.2d 240
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GILMORE INDUSTRIES, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

341 F.2d 240 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GILMORE INDUSTRIES, INC., Respondent.

No. 15750.

United States Court of Appeals Sixth Circuit.

February 16, 1965.

Lawrence Gold, N.L.R.B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General

Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Norton J. Come, Asst. General Counsel, Washington, D. C., on brief, for petitioner.

Thomas J. McDermott, Cleveland, Ohio, Thompson, Hine & Flory, Cleveland, Ohio, on brief, for respondent.

Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and McALLISTER, Senior Circuit Judge.

WEICK, Chief Judge.

The issue in this appeal relates to the validity of a representative election conducted by the Board which was won by the union. In the election the union received thirteen votes, nine votes were cast against it, and one vote was challenged. Gilmore, the employer, filed objections to the election with the Regional Director on grounds not involved here.

In investigating the election and a rumor that had been circulating throughout the employer's plant prior thereto, the rumor being that the union would waive its initiation fee for all employees in the event it won the election, it was disclosed to the Regional Director, —

"* * * that in order to counteract another rumor then current that the initiation fee would be $300, the Petitioner (union) had obtained permission from its International President to waive initiation fees for all those currently employed at the time of the election in the event the Petitioner (union) won said election. All employees hired after this time, however, would have to pay an initiation fee." (Supplemental Decision, etc. Regional Director, P.A., p. 4a)

Because this offer was disseminated to a number of the employees, the Regional Director set aside the election and ordered a second election on the authority of Lobue Bros., 109 NLRB 1182 (1954).

The union filed a timely request with the Board for review of the action of the Regional Director, which request was granted. The Board reviewed the case and by a 3 to 2 decision reversed the order of the Regional Director and certified the union. 140 NLRB 100 (1962).

Gilmore refused to bargain with the union on the ground that the certification was unlawful. A complaint was issued and the Board found Gilmore guilty of an unfair labor practice by violating Sections 8(a) (5) and (1) of the National Labor Relations Act (29 U.S.C. §§ 151 et seq.). 142 NLRB No. 95 (1964). The Board instituted the present proceeding in this Court to enforce its order.

In controversies of this kind between an employer and a labor union, it must not be forgotten that the paramount purpose of the Act was to secure to the employees freedom of choice in the selection of their representatives. International Ass'n of Machinists, Tool and Die Makers Lodge No. 35 v. NLRB, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50 (1940); NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. 831 (1938); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937); NLRB v. Thompson Products, Inc., 162 F.2d 287, 293 (C.A. 6, 1947); 29 U.S.C. § 157. There can be no question but that freedom of choice may be seriously interfered with by economic inducements.

The Board has recognized its responsibility in connection with the conduct of elections. In Sewell Mfg. Co., 138 NLRB 66, 70 (1962), the Board said:

"Our function, as we see it, is to conduct elections in which the employees have the opportunity to cast their ballots for or against a labor organization in an atmosphere conducive to the sober and informed exercise of the franchise, free not only from interference, restraint, or coercion violative of the Act, but also from other elements which prevent or impede a reasoned choice."

In NLRB v. Gorbea, Perez & Morell, S. en C., 328 F.2d 679, 680 (C.A. 1, 1964), the Court used this language in determining whether there was interference with the employees' freedom of choice:

"The question whether there is interference with the employees\' freedom of choice is often subtle and difficult. However, we start with one simplifying principle, avoiding the necessity of making the often impossible determination of its actual impact in the particular instance, that an inducement normally is material if objectively it is likely to have an appreciable effect."

The Board has held in a number of cases that the pre-election offer of waiver of initiation fees does not in and of itself interfere with the conduct of an election and is proper as a traditional union practice. General Electric Co., 120 NLRB 1035 (1958); A.R.F. Products, Inc., 118 NLRB 1456 (1957); J. J. Newberry Co., 100 NLRB 84 (1952); The Root Dry Goods Co. d. b. a. The Root Stores, 88 NLRB 289 (1950).

This principle was recognized in Gruen Watch Co., 108 NLRB 610 (1954), but the Board stated on page 613 that the pre-election offer was objectionable when the promised benefit was

"contingent on how the employees voted in the election or on the results of the election."

To the same effect are Bronze Alloys Co., 120 NLRB 682 (1958) and Otis Elevator Co., 114 NLRB 1490 (1955).

The closest case on the facts is Lobue Bros., supra, where the union distributed to the employees cards which contained a statement to the effect that they were to be given free membership only if it won the election and was thereafter certified as bargaining representative. The Board held that the case came squarely within the doctrine which it had enunciated in Gruen Watch, supra, and invalidated the election.

In the present case the Board distinguished Lobue on the ground that...