Mailing Services, Inc

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