# Schmerler Ford, Inc. v. National Labor Relations Board

> Court of Appeals for the Seventh Circuit · April 8, 1970 · 424 F.2d 1335

URL: https://www.frixlaw.com/law-library/cases/9455523

## Case

- **Full name:** SCHMERLER FORD, INC., Et Al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** April 8, 1970
- **Citations:** 424 F.2d 1335; 73 L.R.R.M. (BNA) 2945; 1970 Trade Cas. (CCH) 73,131; 1970 U.S. App. LEXIS 9910
- **Precedential status:** Published
- **Opinion:** Concurrence by Fairchild
- **Judges:** Hastings, Fairchild, Cummings
- **Cited by:** 10 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/9455523

## Opinion text

FAIRCHILD, Circuit Judge
(concurring).
My conclusions on the critical issues are as follows:
(1) According to the record of the January 28, 1968 meeting, the union proposed to agree with a number of competing employers that none of them would sell a car for less than a price computed by the specified formula. I have no doubt that such agreements would have been unlawful, and I think the board and its officers had a duty to recognize that fact.
(2) The illegality of the proposed device did not conclusively establish that the union was not a labor organization under the act. The regional director’s failure to require the disclaimers or similar precautions suggested by the employers, before ordering an election, was not an abuse of discretion.
(3) The record does not disclose the circumstances of the campaign immediately preceding the election. We do not know the extent to which the union pressed its proposal, the extent of information the employees received as to its illegality, nor circumstances indicating probability that it had a significant effect. It has not been established that the election and resulting certification ought to be disregarded. The fraud, if any, was on the employees, not the employers.
(4) I can concur in enforcement of the bargaining order on the ground that it is implicit, without express modification, that if the union proposes agreements fixing minimum prices, the employers will have no duty to bargain.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455523. Public record. Not legal advice.