# National Labor Relations Board v. Gafner Automotive & MacHine, Inc.

> Court of Appeals for the Sixth Circuit · August 16, 1968 · 400 F.2d 10

URL: https://www.frixlaw.com/law-library/cases/9453906

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GAFNER AUTOMOTIVE & MACHINE, INC., Respondent
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 16, 1968
- **Citations:** 400 F.2d 10; 69 L.R.R.M. (BNA) 2002; 1968 U.S. App. LEXIS 5765
- **Precedential status:** Published
- **Opinion:** Concurrence by Phillips
- **Judges:** Phillips, Celebrezze, McCree
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9453906

## Opinion text

PHILLIPS, Circuit Judge
(concurring).
It is with reluctance that I concur in granting enforcement of the bargaining order in this case. The Union reduced its membership fees from $84 to $25 as an inducement to obtaining signatures on authorization cards. The record is not positive as to the terms, conditions and duration of this reduction.
In N.L.R.B. v. Gilmore Industries, Inc., 341 F.2d 240, 242 , 13 A.L.R.3d 984 (6th Cir.), this Court, speaking through a panel of which I was a member, held that in determining whether there was an interference with the employees’ freedom of choice by the waiver of initiation fees, the waiver cannot be detached from the circumstances under which it was made. In that case we held that the economic inducement offered by the Union “was material and impeded a reasoned choice,” citing N.L.R.B. v. Gorbea, Perez & Morell S. en C., 328 F.2d 679 (1st Cir.).
I agree with the views of Judge Friendly in his concurring opinion in Amalgamated Clothing Workers of America v. N.L.R.B., 345 F.2d 264, 268 (2d Cir.):
“Likewise there is nothing wrong in a union’s offering to forgive initiation fees to those who join early, provided that the opportunity clearly remains open to everyone for a reasonable time after it has become entitled to recognition. But neither of these propositions leads to the conclusion that a union is not exerting improper influence if it waives fees for those who join immediately, while indicating that this advantage will be foreclosed to existing employees who have failed to anticipate and assist in accomplishing its victory.”
The crucial question in the present case is whether the Union’s reduction of fees was made available to all employees in the unit for a reasonable time after the Union became entitled to recognition.
The trial examiner’s decision contains the following summary:
“On November 23, 1964 * * * a group of nine of Respondent’s employees went to the union hall in Es-canaba to join the Union. At that time the entire group signed authorization cards and applications for membership in the Union. One of the employees paid the full initiation fee at this time while the others each paid $10 toward the $25 fee which had been reduced to that amount from $84 as a group discount to the employees for a 2-week period. At the time these people met with the union officials and prior to signing their authorizations and membership applications, they were told that if the employer would not agree to recognize the Union as their bargaining agent, there would be a representation election. One of the assembled employees spoke up, and he said ‘if we lose, then who gets the — how do we get the $25 back?’ The union official answered him, ‘If you have any doubt in your mind, forget it.’ ”
If the Union’s substantial reduction of its initiation fee had been limited to a period of only two weeks, this of necessity in my opinion would constitute an inducement for a wavering employee to hedge his bet on the outcome of the election at a bargain rate, choosing to accept the discounted membership fee while available. Such an economic inducement clearly would interfere with the employees’ freedom of reasoned choice.
The Board found, however, that the evidence does not disclose that the reduced rate was improperly limited or conditioned in any way and that it appears to have been available to all the employees without restriction. The Board construed the evidence to establish that the reduction in fees was not limited to a period of two weeks. This time limitation was found to apply only *14 to the period during which the fee could be paid; i. e., that any employee could join the Union by making a $10 payment at any time and by remitting the remaining $15 within two weeks. The Board concluded that any employees in the unit could take advantage of the reduced $25 fee either before or after recognition of the Union as bargaining representative. I cannot say that this conclusion is not a permissible interpretation of the testimony quoted in the third footnote of the majority opinion.
Unequivocal evidence undoubtedly was available to show the terms, conditions and duration of the rate reduction. It would have been better for affirmative evidence to have been introduced, rather than leaving this issue to speculation and inference.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453906. Public record. Not legal advice.