Mailing Services, Inc

National Labor Relations Board - Board Decisions

Mar 31, 1989

293 N.L.R.B. 565 (N.L.R.B. 1989)

MAILING SERVICES 565
Mailing Services , Inc and Local 888, United Food
& Commercial Workers Union , AFL-CIO, Peti-
tioner Case 22-RC-9955
March 31, 1989
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held July 28, 1988, and the Regional Di-
rector's report recommending disposition of them
The election was conducted pursuant to a Stipulat-
ed Election Agreement The tally of ballots shows
157 for and 113 against the Petitioner, with 10
challenged ballots, an insufficient number to affect
the results
The Board has reviewed the record in light of
the Employer's objections and has adopted the Re
gional Director's findings and recommendations
only to the extent consistent with this Decision and
Direction of a Second Election
The Employer's first objection alleged that the
Union's announcement, 3 days prior to the election,
of free medical screenings the next day as the "first
Union benefit" impermissibly linked the granting of
this benefit to the Union's success in the pending
election The Employer's second objection asserted
that the Union's actual provision of medical screen-
ing 2 days before the election maximized the
impact of its impermissible inducement to vote for
the Union Contrary to the Regional Director, we
find merit in these objections and direct that the
election be set aside and a new election held
The essential facts are not in controversy Ac
cording to Ronald Kazel, who was responsible for
the Union's organizing drive at the Employer's fa-
cility, the Union's health and welfare trust fund
owns two vans bearing the Union's logo and outfit-
ted as mobile medical units Kazel explained that
these vans were used to provide employees in bar-
gaining units it represents with health screening i
Three days before the end of a vigorous election
campaign, the Union announced that it would
make available free medical screenings to all em-
ployees at the Employer's factory The heading of
the announcement was "FIRST UNION BENE-
FITlr' It further stated, "Please take advantage of
your first union benefit It's for your health " The
following day, only 2 days before the election, the
two vans were stationed across from the employee
entrance of the Employer's factory An estimated
80 employees availed themselves of the screenings
for high blood pressure, lung function, cholesterol
level, and diabetes Although they were not re-
quired to demonstrate any preelection support for
the Union to qualify for the screenings, it is never
theless also clear that the Union conferred this ben
efit on the employees as part of its campaign efforts
to gain their favor in the upcoming election
The Board has long held that a Union's actual
grant of benefits to potential members during the
critical period is "akin to an employer's grant of a
wage increase in anticipation of a representation
election [which] subjects the donees to a con-
straint to vote for the donor union " Wagner Elec-
tric Corp, 167 NLRB 532, 533 (1967) In Wagner, a
union's preelection provision of life insurance to
employees in a facility in which it was conducting
a representation campaign was found to be a 'tan-
gible economic benefit" and an impermissible "con-
straint to vote for the donor Union " Id 2
Although a Union may promise an existing bene-
fit to new members if its receipt is not conditioned
on the recipient's demonstration of preelection sup-
port, Dart Container, 277 NLRB 1369, 1370 (1985),
it is, like an employer, barred in the critical period
prior to the election from conferring on potential
voters a financial benefit to which they would oth-
erwise not be entitled McCarty Processors, 286
NLRB 703 (1987) (incumbent Union's promise not
to collect accrued dues during the election cam-
paign, provided employees with a substantial bene
fit) The Union has made no contention that the
employees who received the screenings were enti-
tled to receive them independent of the election
campaign
We agree with the Regional Director that the
Union was entitled to publicize an existing incident
of union membership or representation It could
have provided employees with descriptive informa
tion about its health screening program, it could
even have placed the mobile medical units in the
same locale and invited employees to inspect them
Indeed , it takes little imagination to conjure means
of demonstrating the availability of periodic medi-
cal screening that do not entail the impermissible
conferral of this benefit and the consequent tainting
of employee choice
We do not condemn a Union's efforts to make
itself "more attractive as a candidate for election,"
' Kazel did not specifically indicate whether the tests were provided to
all represented employees at these locations irrespective of membership 2 The Board distinguished the gift of life insurance from a waiver of
or whether such tests were otherwise made available to union members initiation fees on the ground that the latter did not involve (as the former
generally Accordingly it is unclear whether the entitlement to the tests did) an enhancement of the employees economic position but merely the
is based solely on representation on union membership or either factor avoidance of a possible future liability
293 NLRB No 58
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Primco Casting Corp, 174 NLRB 244, 245 (1969),
but we do require that its methods of self enhance-
ment exclude the direct conferral of substantial
benefits on its target audience during the critical
period 3 Therefore, we find the Union's announce-
3 Although the invitation to employees to take the medical tests re
quired and evinced no explicit showing of union support and thus could
not have been used to paint a false picture of union support as was con
demned in NLRB v Savair Mfg Co 414 U S 270 (1973) it nevertheless
was made available to employees during the election campaign with a
clear implication that this benefit would remain only contingent on the
selection of the Union Obviously this created an incentive for the em
ployees to take the test poor to the election It is reasonable to conclude
therefore that the recipient of this gift would likely have felt a sense of
obligation to the donor the Union
ment and subsequent provision of free medical
screening within days of the representation election
to be objectionable conduct that impaired the em-
ployees' exercise of free choice
Accordingly, we sustain the Employer's first and
second objections4 and direct that the election be
set aside and a second election held
[Direction of Second Election omitted from pub
lication ]
4 In view of our finding that the election must be set aside because of
the Union s improper grant of a substantial benefit we find it unnecessary
to pass on the Employer s third objection that the Union through its an
nouncement and grant of medical screenings impermissibly implied other
benefits would follow as a matter of course if it prevailed in the election