Mccarty Processors, Inc. And Mccarty Farms, Inc.

MCCARTY PROCESSORS 703 McCarty Processors, Inc. and McCarty Farms, Inc. and Flossie N. Hawkins, Petitioner and United Food and Commercial Workers International Union, AFL-CIO & CLC and its Agent Local Union No. 1529. Case 15-RD-607 13 October 1987 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered objections to an election held 13 March 1987 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 338 for and 195 against the Union, with no chal- lenged ballots. The Board has reviewed the record in light of the exceptions and briefs and has adopted the Re- gional Director's findings and recommendations only to the extent consistent with this decision. Contrary to the Regional Director's recommenda- tion to overrule the Employer's Objection 1, we find the Union's waiver of the collection of dues al- ready incurred by union members constitutes the granting of a financial benefit and warrants setting aside the election.' The collective-bargaining agreement between the Employer and Union expired 31 December 1986. It contained a dues-checkoff provision. The Employ- er has made no dues deductions since 3 January 1987 (which was the end of the workweek in which the contract expired). Thereafter the Union sent the Employer billing sheets for use in deduct- ing January, February, and March dues, but the Employer made no deductions. It is undisputed that union dues were an issue in the election cam- paign. The Union distributed a leaflet to the em- ployees a week to 10 days before the 13 March election that was titled "Guarantee." The leaflet in- formed employees they would pay "NO BACK- PAY DUES and that NO DUES will be deduct- ed" until a contract had been negotiated by the parties and approved by the employees. On 10 March, the Union distributed a handbill that stated, "Remember-Don't be misled by the Company: THERE WILL BE NO BACK DUES, now or in 1 In the absence of exceptions, we adopt, pro forma, the Regional Di- rector's recommendation overruling Objection 2 In view of our finding that the election must be set aside because of the Union's improper waiver of dues, we find it unnecessary to pass on Employer's Objection 3 that the Union interfered with the election when it allegedly forged and mailed to the homes of employees a letter fraudently representing it as having been authored and signed by Coretta Scott King the future for the months you have been without a Union." The Regional Director found that this conduct was not objectionable because the Union did not attach conditions to its waiver of dues nor was the waiver limited to a select group but was made to the entire unit. He also found that there had been no showing that the Union's offer to waive dues af- fected the outcome of the election. We disagree and find that the waiver of accrued back dues by the Union constituted the granting of a financial benefit analogous to the conduct found objection- able in Owens-Illinois, 271 NLRB 1235 (1984), and General Cable Corp., 170 NLRB 1682 (1968). In Owens-Illinois, the Board found that the gift of jackets on election day served to induce the elec- torate to vote for the union and thus was objec- tionable. In General Cable Corp., the Board con- cluded that employee free choice was impaired when the union presented employees with $5 gift certificates for the purpose of inducing support in the election. Similarly, despite the union's argu- ments to the contrary, the expiration of the collec- tive-bargaining agreement did not end the employ- ee-members' obligation to pay dues. Rather, the union was still entitled to collect membership dues, and its promise not to do so during -the election campaign provided employee-members with a sub- stantial financial benefit to which they were other- wise not entitled. Therefore, given the circumstances of this case, we find the Union's waiver of accrued back dues to be objectionable conduct. Accordingly, we shall sustain Objection 1 and set aside the election. [Direction of Second Election omitted from pub- lication.] MEMBER CRACRAFT, concurring. I agree with the result reached by my colleagues in this case. Thus, I find the Union's forgiveness of a debt owed for back dues amounted to a grant of financial benefit, which would tend to interfere with employees' free choice in an election. As noted above, the employee-members' obligations to pay dues did not end with the expiration of the contract; thus back dues were owed continuously from the date the contract expired on 31 December 1986. By the time of the 13 March 1986 election, dues were owed for a period of approximately 10 weeks. The guarantee of no dues until a contract was reached would result in the continuation of this financial benefit indefinitely. Thus, the forgive- ness of this debt, which was owed at a rate of $3.25 per week over a significant period of time in an election campaign in which the payment of dues was a significant issue amounted to objectionable 286 NLRB No. 69 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conduct warranting a second election. Further, there is no evidence of an established policy or past practice wherein the Union routinely waived the payment of dues during periods in which the em- ployees were working without a contract or in other similar circumstances (i.e., when on layoff or leave of absence). Rather, there is no dispute that employees on leave for illness or any other reason were charged in full for their dues. However, in reaching this conclusion, I do not rely on Owens- Illinois, 271 NLRB 1235 (1984), a case with which I disagree. I would draw a distinction between the distribution of campaign paraphernalia by the par- ties during an election campaign (see Dennis' dis- sent in Owens-Illinois, supra at 1236) and the grant of a newly created benefit that suggests to employ- ees that their votes are being purchased. See Dart Container, 277 NLRB 1369 (1986); cf. Loubella Ex- tendables, 206 NLRB 183 (1973).