(concurring).
I concur in the majority holding that the Regional Director should have granted a hearing on the company’s objection to the union’s certification. However, I cannot endorse the majority opinion’s condemnation of the union’s reimbursement of employees for expenses incurred in attending a representation hearing. This issue is not really before us. Nevertheless, the majority opinion characterizes the union’s conduct as “suspect,” *115“insidiously harmful” and “not to be encouraged.” In doing so, it implies that the conduct which is now to be the central issue of a hearing is essentially misconduct and thus the election in all events is tainted. This approach almost mandates that the election should be set aside. I think this unfortunate for two reasons: (1) it misconstrues the underlying bases for granting a hearing, and (2) it ignores established and approved rights of the union.
The Board’s rules and regulations require a hearing when “substantial and material factual issues” exist which can only be resolved after a hearing. 29 C. F.R. 102.69(c), (e) (1969). There is little doubt that such an administrative standard embodies the constitutional standard of due process. N.L.R.B. v. Singleton Packing Corp., 418 F.2d 275, 280 (5 Cir. 1969). When objections are raised to the Regional Director’s certification of the union whether an eviden-tiary hearing is required depends upon two fundamental questions: (1) assuming the company’s evidence to be true, would it produce an adverse effect on an individual’s free choice so as to require the election be set aside,1 and (2) if so, has a substantial and material issue of fact been raised.
Whether the election must be overturned is generally a matter committed to the Board’s discretion. N.L.R.B. v. El-Ge Potato Chip Co., Inc., 427 F.2d 903 (3 Cir. 1970). However, this is not “unfettered administrative discretion.” Sonoco Products Co. v. N.L.R.B., 399 F. 2d 835, 839 (9 Cir. 1968). The Board’s overall conclusion as to certification must be supported by substantial evidence on the record considered as a whole. Magnesium Casting Co. v. N.L. R.B., 401 U.S. 137, 91 S.Ct. 599, 27 L. Ed.2d 735 (1971); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
In the instant case the company challenged the election because a union check post-dated to after the election was given to an employee on the election eve. The company contends that payment of the check was intended to be contingent on the employee’s “proper” vote. The company also claims that other employees were wrongfully paid monies with the intent to influence their vote. The election was close: 7-5 for the union. If only one vote was wrongfully obtained, the election would have to be set aside. Clearly, if the company’s contentions were true, it would be an abuse of discretion for the Board to find the election untainted by such conduct.
The state of the record is, therefore, highly important in determining the correctness of the Board’s ultimate conclusion. Discretion cannot be properly exercised when based on a record that fails to present a full exposition of conflicting evidence. Although an inadequate record may provide the Board with some support for its conclusions, such proof cannot meet the test required upon judicial review. Thus, the second question, whether a factual issue existed which required an evidentiary hearing, is the more searching inquiry here.
The union admits to making the payments but denies the company’s allegation of wrongful intent. Thus, the Board argues that the facts are not disputed and that the company is merely arguing against the conclusion which the Regional Director and Board have reached from the admitted evidence. It is true the historic events are not factually controverted. However, the essential controversy centers not only on the ultimate conclusion made by the Regional Director, i. e., that the election was not tainted, but as well on the essential factual inference of intent which must be drawn from the over-all events. The company contends that had it been granted an evidentiary hearing, it could have exposed the union’s wrongful intent by examining the employees and officials involved.
The Fifth Circuit has stated that the test for granting or denying a hearing *116is similar to that applied in granting a summary judgment. Apropos to the instant facts that circuit has observed:
“When an issue requires determination of state of mind, it is unusual that disposition may be made by summary judgment. See Alabama Great So. R.R. [Co.] v. Louisville & N. R. R. [Co.], 224 F.2d 1, 5 * * * (5th Cir. 1955). It is important, and ordinarily essential, that the trier of fact be afforded the opportunity to observe the demeanor, during direct and cross-examination, of a witness whose subjective motive is at issue.” N.L. R.B. v. Smith Industries, Inc., 403 F. 2d 889, 895 (5 Cir. 1968) citing Consolidated Electric Co. v. United States, 355 F.2d 437, 438-439 (9 Cir. 1966).
On these narrow bases, weighing the overall facts and disputed inferences, together with the closeness of the election, I feel a hearing is required. A record incorporating direct testimony on the disputed issue of intent will present a more substantial base for the Board’s determination of this matter.
With these principles in mind, I think it should be clear, however the mere fact that a union reimburses expenses to employees for attendance at a representation hearing is neither odious nor “suspect” conduct.2
. Cf. N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 33 (5 Cir. 1969).
. Payments in cash or in kind made to an employee by either a union or an employer during an election do not give rise to a per se inference that the employee’s free choice was thereby destroyed. Collins & Aikman Corp. v. N. L. R. B., 383 F.2d 722, 729 (4 Cir. 1967) ; Shoreline Enterprises of America, 114 N.L.R.B. 716 (1955). It is clear that an election would be tainted by payments made to employees as obvious bi'ibes, General Cable Cox'p., 170 N.L.R.B. No. 172 (1968) [Union distribution of $5 gift certificates to all employees whether in attendance at union meeting or not], or by payments so excessive as to constitute a patent attempt to buy votes, Teletype Corp., 122 N.L.R.B. 1594 (1959) [rival unions paying increasing axxxounts to obtain attendance at pre-election meetings]. Where an alleged inducement affords a tangible economic benefit by enhancing an employee’s financial position, the Board has found that the employee is thereby subjected to constraint to vote for the donor. AVagner Electric Corp., 167 N.L.R.B. No. 75 (1967) [Union offered life-insurance coverage to all prospective voters who applied for union membership.]
However, not all economic inducements are deemed to interfere with the employee’s free choice. It has long been recognized that a union’s offer to waive initiation fees is a proper non-coercive means of attracting union votes. N. L. R. B. v. Dit-Mco Inc., 428 F.2d 775 (8 Cir. 1970). A union may also enhance its image by refunding to employees amounts previously deducted from their wages for a strike fund. Primeo Casting Corp., 174 N.L. R.B. No. 44 (1969). Payments to election observers, expense reimbursements to car pool drivers who transport voters and payments of “lunch money'” to employees who attend pre-election meetings have all been upheld in the absence of a showing that such payments were excessive or were conditioned upon how the employee voted. Shoreline Enterprises of America, 114 N.L.R.B. 716 (1955) ; Federal Silk Mills, 107 N.L.R.B. 876 (1954) ; Jat Transportation Co., 131 N.L.R.B. 122 (1961). Raffles, door prides, and gifts of negligible value have also been found to be legitimate means of encouraging attendance at pre-election meetings. Jacqueline Cochran, Inc., 177 N.L. R.B. No. 39 (1969) ; Hollywood Plastics, Inc., 177 N.L.R.B. No. 40 (1969) ; Bordo Products Co., 119 N.L.R.B. 79 (1957).
Rather than suggesting guiltless acts to be “insidiously harmful,” I would base a more proper criteria for distinguishing approved from non-approved payments on the following: (1) Whether the value of the gift was so negligible that it could xxot reasonably have influenced the donee’s vote; (2) whether the payor conditioned the payment upon a vote in his favor; (3) whether the amount of the payment exceeded the value of the services rendered ; (4) whether the payor made clear and the employee understood that tlxe purpose of the payment was not to influence votes; (5) whether the economic position of the employee was enhanced to such an extent that he would feel obligated to vote for tlxe donor; or (6) whether the donor’s conduct was so blatant as to be an obvious attempt to buy votes.