NLRB v. Gorbea, Perez & Morell, S. en C.
| Decision Date | 27 March 1962 |
| Docket Number | No. 5918.,5918. |
| Citation | 300 F.2d 886 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GORBEA, PEREZ & MORELL, S. EN C., Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Norton J. Come, Attorney, Washington, D. C., with whom Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Melvin J. Welles and Morton Namrow, Washington, D. C., Attorneys, were on brief, for petitioner.
Jaime Pieras, Jr., San Juan, P. R., with whom Pieras & Martin, San Juan, P. R., was on brief, for respondent.
Before WOODBURY, Chief Judge, and ALDRICH and GANEY,* Circuit Judges.
This is a petition for enforcement of an order of the Labor Board based upon findings of violations of section 8(a) (1) and (5), National Labor Relations Act, 29 U.S.C.A. § 158(a) (1, 5). We agree with the Board that the evidence warranted its finding that the respondent employer's offer of a wage increase was for the purpose of inducing the employees to resist the charging union's organizational campaign in violation of section 8(a) (1). Cf. N. L. R. B. v. Pyne Molding Corp., 2 Cir., 1955, 226 F.2d 818. The evidence also indicated that the respondent refused to deal with the union without an election after being, quite correctly, informed that a substantial majority of its employees had signed authorization cards. This prima facie warranted a finding of a violation of section 8(a) (5). N. L. R. B. v. Whitelite Products, etc., Corp., 1 Cir., 1962, 298 F.2d 12. Even though many of the employees testified that they had not understood the meaning of the cards, the cards were very clearly phrased. The employees were not illiterate. There was no claim of affirmative misrepresentation by the union. The Board was justified in accepting the cards at their face value and rejecting the oral testimony that the employees had thought they meant something else.
We have reservations in one particular. It is no more excusable for a union to offer improper inducements to join than it is for the employer to offer improper inducements not to join. Near the bottom of the application cards was the following legend.
We think there is a serious question whether there was an improper inducement. The Board did not discuss this matter. For many years it has held that waiving initiation fees for those who join prior to the election is traditional organizational practice, and has refused to invalidate elections because of it. Otis Elevator Co., 1955, 114 N.L.R.B. 1490; The Root Dry Goods Co. d/b/a The Root Store, 1950, 88 N.L.R.B. 289; cf. N. L. R. B. v. Dahlstrom Metallic Door Co., 2 Cir., 1940, 112 F.2d 756. In the Board's opinion, this would not affect individual freedom of choice in the election. Gruen Watch Co., 1954, 108 N.L.R.B. 610; A.R.F. Products, Inc., 1957, 118 N.L. R.B. 1456. In Gruen Watch the Board suggested that waiver of initiation fees might in fact make those who had signed less interested in the outcome.1 On the other hand, the Board held that where the waiving of the initiation fee was made in such terms as to encourage the employees to vote affirmatively for the union it was improper. Lobou Bros., 1954, 109 N.L.R.B. 1182. These distinctions are not unreasonable. A man might sign a union card as a hedge if it cost him nothing, and yet on a secret ballot not vote for the union; while one who had paid an initiation fee might feel he had an investment in the union's success. On the other hand, a man whose initiation fee will be waived only if the union wins the election (Lobou Bros.) has had financial pressure put upon him to vote affirmatively.2
Although waiving initiation fees before an election may be harmless because it buys only membership cards but not votes, it seems to us that it ceases to be harmless when the cards, as in this case, become the equivalent of votes. The union has then bought the very affirmative action it needed. But before we reach a final conclusion on this matter, and because the case must go back anyway, we would like the benefit of the Board's thinking. We are aware of the cases of N. L. R. B. v. Dahlstrom Metallic Door Co., supra, and N. L. R. B. v. Taitel, 7 Cir., 1958, 261 F.2d 1, cert. den. 359 U.S. 944, 79 S.Ct. 725, 3 L.Ed.2d 677 but, with all respect, they merely state the result, rather than give reasons.
There is a further, special situation in the case at bar. The statement, No fee if you join now, or you...
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...activity does not include an untrue statement that unionization may be expected to cost employees money, NLRB v. Gorbea, Perez & Morell, S. en C., 300 F.2d 886 (1st Cir. 1962), or an employer's prediction that unionization On the other side of the coin, we have held that an employer's notic......
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