NLRB v. Savair Manufacturing Company, 72-1225.

• Citation: 470 F.2d 305
• Decision Date: 11 December 1972
• Docket Number: No. 72-1225.,72-1225.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAVAIR MANUFACTURING COMPANY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

470 F.2d 305 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAVAIR MANUFACTURING COMPANY, Respondent.

No. 72-1225.

United States Court of Appeals, Sixth Circuit.

December 11, 1972.

Roger Hartley, Asst. Gen. Counsel, Washington, D. C., for appellant; Marcel Mallet-Prevost, Elliott Moore, Roger Hartley, Gen. Counsel, N.L.R.B., Washington, D. C., Peter G. Nash, Washington, D. C., on brief. Jerome H. Brooks, Director, Region 7, N.L.R.B., Detroit, Mich., of counsel.

Robert J. Solner, Shea, Shea, Heath & Solner, Birmingham, Mich., for appellee.

Before CELEBREZZE, PECK and KENT, Circuit Judges.

PECK, Circuit Judge.

This case is before the Court upon a petition by the National Labor Relations Board for enforcement of its order issued against the respondent Savair Manufacturing Company. On September 22, 1970, an election by secret ballot was conducted among the Company's production and maintenance employees, which the Union (The Mechanics Educational Society of America) won by a vote of 22 to 20, with one ballot challenged and one ballot declared void. The Company then filed timely objections to conduct which it contended affected the results of the election, alleging, inter alia, that the Union deceived employees into believing that they would be fined an unspecified amount if they failed to sign an authorization card and if the Union won the election.

An evidentiary hearing was held before a Hearing Examiner to resolve the issues raised by the Company. In recommending that the Company's objections be overruled, the Hearing Examiner found that there was insufficient evidence upon which to conclude that such a threat occurred either before or after the filing date of the representation petition. He also found that the Union offered to waive the initiation fee for all employees who executed authorization cards prior to the election should the Union win the election, but that this offer of waiver was not objectionable under the Board's policy enunciated in DIT-MCO, 163 NLRB 1019, enf'd. N.L. R.B. v. DIT-MCO, 428 F.2d 775 (8th Cir. 1970). He concluded that the election was not improperly conducted, and that the Union is the exclusive represenative of all employees in the unit for the purpose of collective bargaining. The Company's petition for rehearing was denied, and the Board subsequently granted summary judgment against the Company and ordered it to bargain with the Union. The Company has refused to do so, and the Board has brought this petition for enforcement of its order.

In Lobue Bros., 109 NLRB 1182 (1954), the Board held that a pre-election offer of reduced initiation fees is objectionable when the promised benefit is contingent on how the employees voted in the election or on the results of the election. In N.L.R.B. v. Gilmore Industries, 341 F.2d 240 (6th Cir. 1965), this Court adopted the reasoning of the Board in Lobue and held that the economic inducement offered by a union in waiving initiation fees for those employees who sign authorization cards if the union wins the election impeded a reasoned choice because, under the circumstances of that case, the employees had been led to believe that they were receiving an economic benefit far greater than was actually the case. (See also N.L.R.B. v. Gafner Automotive & Machine, Inc., 400 F.2d 10 (6th Cir. 1968).)

In DIT-MCO, supra, the Board changed its policy, overruled Lobue, and held that an offer to waive initiation fees for those who sign authorization cards prior to an election is permissible whether or not it is conditioned upon the outcome of the election. The Eighth Circuit enforced the Board's order and held that the Board's new policy of not setting aside an election when a waiver or provisional waiver of union initiation fees, whether contingent upon the results of an election or not, was within the Board's discretionary powers to regulate the conditions under which an election may validly be held. 428 F.2d at 779.

In response to the Board's petition to enforce its order, the Company relies upon this Court's decision in Gilmore. The Board contends that the Gilmore case is no longer viable because in that case the court relied upon Lobue, which has since been re-examined and overruled by the Board. In presenting this argument, the Board displays a misunderstanding of the relationship which exists between the Board and this Court. The Board's actions are premised upon the assumption that when the Board changed its position from Lobue to DIT-MCO, it effectively overruled this Court's decision in Gilmore, and that this Court must follow the Board's lead and alter its decision in Gilmore accordingly. Such is not the case, and we find no reason, either procedurally or substantively, to alter our decision in Gilmore.

We note that while there is no question of fact concerning the offer to waive the initiation fees contingent upon the Union's victory in the election, there was some controversy as to whether or...