NATIONAL MEDIATION BOARD
Washington, D.C. 20572
In the Matter of the
Application of the
OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION
alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended
involving employees of
PETROLEUM HELICOPTERS, INC.
25 NMB NO. 48
NMB CASE NO. R-6519
January 30, 1998
On May 27, 1997, the Office and Professional Employees International Union (OPEIU), filed an application pursuant to the Railway Labor Act, as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute among Flight Deck Crew Members, employees of Petroleum Helicopters, Inc. (PHI).
At the time this application was received, these individuals were unrepresented.
The Board assigned Mediator Laurette Piculin to investigate. Subsequently, Board Representative Eileen Hennessey was assigned to assist. As a result of the investigation, on July 7, 1997, the Board found a dispute to exist and authorized an election. Ballots were mailed on July 22, 1997, and the count took place on September 4, 1997. Of 594 eligible voters, 246 cast valid ballots for OPEIU, one eligible voter cast a valid ballot for the "Air Line Pilots Union," and one eligible voter cast a valid ballot for the "Off Shore Pilots Association." This was less than the majority required for Board certification.
On September 5, 1997, the OPEIU filed allegations of carrier interference; the OPEIU supplemented its filing on September 23, 1997. After a dispute over the service of documents deemed confidential was resolved, PHI filed a response on October 23, 1997. OPEIU filed a rebuttal statement on November 3, 1997, and the carrier submitted a final position statement on November 10, 1997.
The Board assigned Senior Hearing Officer Joyce Klein, Board Representative Eileen Hennessey and Mediator Patricia Sims to continue the investigation. During December of 1997, they interviewed and took sworn statements from over thirty individuals including employees, carrier officials and OPEIU representatives, including eight eligible employees selected at random by the Board, and collected additional documentary evidence. This determination is based upon the entire record in this case including the submissions of the participants as well as the Board's subsequent investigation.
The OPEIU asserts that PHI conducted a "pervasive campaign aimed at influencing its employees not to vote for the OPEIU." Specifically, OPEIU asserts that PHI timed announcements of pay increases and holiday and sick leave improvements during the election campaign to influence its employees. Further, the OPEIU asserts that PHI managers held small group meetings to coerce employees to vote against OPEIU.
The OPEIU also asserts that PHI managers solicited and collected ballots from employees and threatened employees that unionization would lead to a loss of business. The OPEIU alleges that PHI misled its employees by inaccurately informing them that if OPEIU won the election they would have perpetual representation and made other inaccurate statements about the Organization. The OPEIU asserts that Donald Dunkerson, the only pilot discharged during the organizing campaign, was discharged in retaliation for his union activitiy.
The OPEIU further alleges that PHI restricted access to a previously unrestricted computer which pilots used for e-mail. Finally, the OPEIU alleges that PHI conducted an intensive propaganda campaign distributing at least 15 pieces of literature to employees, as well as over 1,000 hats and tee shirts bearing an anti-union message.
The OPEIU seeks a rerun election using a "Laker" ballot. A "Laker" election involves the use of a "yes" or "no" ballot. No write-in space is provided, and the majority of votes actually cast determines the outcome of the election.
PHI asserts that the OPEIU has not submitted evidence sufficient to support overturning the results of the election and asks that those results be finalized. PHI asserts that the OPEIU's allegations are false. Specifically, PHI asserts that it did not conduct mandatory meetings regarding the organizing campaign. PHI also asserts that much of the conduct cited by OPEIU as offensive was conduct by eligible voters.
PHI denies that its managers solicited ballots from voters and indicates that it did not change its policy regarding e-mails or bulletin boards. PHI also asserts that it did not retaliate against any pilot and notes that several pilots who were outspoken in their support for the OPEIU continue to work at PHI. PHI asserts that Donald Dunkerson, the only pilot discharged during the organizing campaign, was discharged for cause.
PHI denies making threats of heightened FAA scrutiny if OPEIU won the election and asserts that management changes during the election period cannot be construed as interference.
PHI also asserts that the four percent salary increase announced during the organizing campaign was part of a longstanding incentive compensation program. According to PHI, holiday pay was not reinstated during the voting period. PHI also asserts that the restoration of holiday pay was included as a result of the annual meeting of the Compensation Committee of the Board of Directors, which meets every July.
PHI argues that the correspondence and communications to employees were permissible, accurate and non-coercive. PHI points out that the content, not the number of communications is material and that its statements regarding OPEIU and union representation were accurate. PHI also asserts that comments about its clients' concerns about unionization were correct, not misleading, and were legitimate responses to the OPEIU's statements regarding its ability to call a strike.
Did PHI interfere with, influence or coerce employees in their selection of a representative? If so, what is the appropriate method of continuing the investigation in such manner as shall insure the choice of representative by the employees without interference, influence or coercion by the carrier?
FINDINGS OF LAWDetermination of the issues in this case is governed by the Railway Labor Act, as amended, 45 U.S.C. § 151 et seq. Accordingly, the Board finds as follows:
Petroleum Helicopters, Inc., is a common carrier by air as defined in 45 U.S.C. § 151, First, and § 181 of the Act.
OPEIU is a labor organization and/or representative as provided by 45 U.S.C. § 152, Ninth of the Act.
45 U.S.C. § 152, Third, provides in part:
Representatives . . . shall be designated . . . without interference, influence or coercion . . . .
45 U.S.C. § 152, Fourth, gives employees subject to its provisions, "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter." This section also provides as follows:
No carrier, its officers or agents, shall deny or in any way question the right of its employees to join, organize or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization. . . .
45 U.S.C. § 152, Ninth, provides that the Board has the duty to investigate representation disputes and to designate who may participate as eligible voters in the event an election is required. In determining the choice of the majority of employees, the Board is "authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such a manner as shall insure the choice of representatives by the employees without interference, influence or coercion exercised by the carrier. In the conduct of any election . . . the Board shall designate who may participate in the election and establish the rules to govern the election. . . ."
STATEMENT OF FACTS
PHI, the largest private helicopter company in the world, operates approximately 319 aircraft and employs 1867 individuals, including approximately 670 pilots(1) and 750 mechanics. The remainder of the employees are either management or support personnel. PHI provides helicopter transportation to and from oil rigs in the Gulf of Mexico, and emergency medical services (EMS), as well as a variety of contract helicopter services both domestically and abroad.
PHI is headquartered in Metairie, Louisiana and
has approximately 40 bases throughout the United States. Carroll W. Suggs is the Chairman of the Board of Directors and Chief Executive Officer of PHI.
A. The Beginning of the Campaign
Ron Hutson, International Representative for OPEIU, conducted organizational meetings with PHI employees throughout the Winter and Spring of 1997. On May 7, 1997, Hutson sent a letter to PHI stating that OPEIU was conducting an organizing campaign "among the helicopter pilots, mechanics, and ground support personnel that you employ."
According to Mrs. Suggs, she became aware of the organizational campaign in the Spring of 1997 when the organizing campaign came up at a meeting with sector managers. Shortly afterwards, in "late April or early May", Mrs. Suggs received a letter from Hutson providing formal notification of OPEIU's organizing campaign. According to Mrs. Suggs, she received the letter four or five days after it was dated, but "the letter was being circulated in the field" before she received it.
After PHI received Hutson's letter, Mrs. Suggs set up a meeting for managers with labor counsel. According to Mrs. Suggs, she made it "absolutely clear that [they] were to take the high road", and she assumed "the responsibility to guide the response to the campaign".
Managers were provided with a guide as to how to respond to the campaign. The Management Guide listed the following statements as "CAN SAY-CAN DO":
Boatel had the catering contracts for many off-shore companies. They voted the union in and shortly thereafter, they lost their contracts, filed bankruptcy and went out of business. Could this happen here? No one can predict the future but be aware that unions have caused many businesses to outsource work or close down completely.
Unions do not provide job security. Look in our own industry - remember the demise of Eastern Airlines resulting essentially from a break down in negotiations with the union representing mechanics. Not to mention the long strikes and many lay offs of union represented employees throughout the industry such as America West Airlines, Continental Airlines, and the air traffic controllers.
The guide continued by advising managers to avoid spying, promising, interrogating or threatening employees. The guide explained the Board's election procedures, listed employee concerns and provided suggested responses to employee questions. The record reflects that the guide was widely available to all employees during the campaign, and at some bases, portions of the guide were read to employees verbatim.
A. Meetings Conducted by Carroll Suggs
According to Mrs. Suggs, she has visited bases frequently. Typically she visited bases to discuss the state of the business and international activities, and to introduce new aircraft and new safety and maintenance programs. However, in 1995 and 1996, Mrs. Suggs traveled about 70 percent of the time in order to expand the business internationally and curtailed her base visits.
Beginning in the Spring of 1997, Mrs. Suggs and other members of PHI management began visiting bases and talking to employees about their concerns. According to Mrs. Suggs, she went to most bases alone, because the managers indicated that employees wanted to talk directly to her. Mrs. Suggs visited most of the bases during the Spring and Summer of 1997, but missed Miami, Jackson, Modesta, Fargo, Peoria and Tampa.
Most of the meetings were held in the late afternoon as the pilots were returning to the base and mechanics were beginning work. The meetings typically lasted for around two hours. Managers and employees who attended these meetings characterized the tone as cordial and respectful. Virtually all employees who were at each base when Mrs. Suggs visited attended these meetings. Most employees who attended these meetings believed that attendance was optional, but were curious and were interested in hearing from Mrs. Suggs. However, one employee said that he and other pilots at the Houma base were told that "Carroll would be here at a certain time and we'd better be there unless we had a darn good excuse." Several mechanics often left these meetings before they were over because they had to start work.
Typically, Mrs. Suggs walked in, greeted as many people as possible individually, then sat down and opened the meeting to comments and questions. According to Mrs. Suggs, topics included working conditions, per diem, holiday pay, 401K plan, pay for experience, increased milage reimbursement, and the union organizing campaign. According to Mrs. Suggs, several individuals discussed unionization in their family backgrounds and opined that the helicopter companies "could hold the oil companies hostage" to raise rates so employees could be paid what they are worth.
John Untereker, Vice President and Chief Financial Officer, accompanied Mrs. Suggs on visits to bases at Sabine Pass and Intercoastal City. In both cases, Untereker was unaware that Mrs. Suggs was to meet with employees until moments before the meetings occurred. Untereker described both meetings as informal for a base visit by the CEO. He described the meeting at Intercoastal City as having no set agenda and a question and answer format. According to Untereker, attendance was high, but people came and left during the course of both meetings.
James Shugart, Director of Marketing, Oil and Gas Business Unit, accompanied Mrs. Suggs to a meeting at Houma in late June. He described the meeting in terms similar to those used by Untereker. Shugart indicated that at least one employee asked a question about the election at Offshore Logistics and that he answered by stating:
[I]f we stayed union free, and Offshore Logistics went union, then there is a possibility that we would have a viewed advantage because of the risk of work stoppages or slow downs in an organized fashion.
One employee attended two of the meetings conducted by Mrs. Suggs at the Houma base. That employee described the first meeting, which was before the application was filed, as follows:
At the first one she pretty much shot down all our requests that we made at the Q&A . . . she said the company was not in a position financially to give us a raise as much as she would love to. At the end of the meeting she said she would never negotiate with a union.
That employee contrasted the tone of the first meeting with the second meeting, where he said Mrs. Suggs' demeanor changed. At that meeting, Mrs. Suggs said all of the problems were being addressed and, during the question and answer session, did not ridicule or reject questions or comments.
Another employee attended a meeting conducted by Mrs. Suggs at Morgan City between the time the application was filed and July 22, when the ballots were mailed. He described the meeting as follows:
All of the employees at the Morgan City base were there. It was the first time I ever remember her coming to the base to speak to employees. It seemed she was there to find out what the attitude of the employees were about the union. My impression was that she was disturbed about what she heard. It seems hard to believe that she did not know what was going on with her employees. I did not feel it was mandatory. Afer an hour I walked out. Others did the same thing. The union was not the real subject of the meeting. It was underneath the meeting. She wanted a chance to remedy the situation. She implied that she wanted a second chance and don't vote for the union. No promises were made by Mrs. Suggs.
Another employee attended three of the meetings held by Mrs. Suggs. That employee described the meeting in Houma as follows:
I came in from flying and Carroll Suggs and 2 or 3 other management [were] there. Subjects discussed - they were asking about what the problems were and why couldn't people just come to them to talk about the problems. Management asked for [a] chance to correct the problems and Mrs. Suggs said, "if we do this I will not deal with the union, I will not negotiate with them. I may even close the Company." The reaction of the audience was very quiet, no one asked probing questions after that statement.
B. Meetings Conducted by
Other Management Officials
In addition to the meetings held by Suggs, other managers also visited bases to talk to pilots and other employees during the Spring and Summer of 1997.
Edward Gatza, PHI's Vice President/Director of Human Resources, stated that he visited each base at least twice. He described the purpose of his visits as "to hear what their issues are and pass on information as well as to listen to individual concerns".
Virgil Russell, who was Operations Coordinator until August of 1997, when he was promoted to Director of Operations, estimated that he held over 20 meetings with pilots during the Summer of 1997. Russell stated that he held these meetings to brief pilots on operational issues, but "typically they wanted union information" and asked questions about the timing and when the results would be available.
One pilot who attended one of the meetings held by Russell, described the "message" as, "the company was going to turn things around, the company would provide pay raises, more benefits, more expense money, if we didn't vote for the union".
Virtually all of the employees interviewed by the Board were aware that Suggs and other members of management were holding a series of meetings at the bases during the Summer of 1997. Most of these employees connected the meetings to OPEIU's organizing campaign.
One employee mentioned that General Manager Ben Schrick met with employees and relayed the message that "if we voted union in, the oil companies would not use us". According to this pilot, Schrick also said that PHI pilots could lose existing pay and benefits and that PHI "could not improve pay at this time because of the union election".
Sector Manager Mike Wickware was responsible for four bases during the organizing campaign, Lafayette Heliport, Cameron, Lake Charles and Intercoastal City. As Sector Manager he held several meetings with pilots at all of the bases in his charge at which OPEIU's campaign was discussed. According to Wickware, he gave prepared remarks from the Supervisors' Guide. Wickware said that these meetings were not mandatory. According to Wickware, the only mandatory meeting is the weekly safety meeting at the beginning of a hitch. At those meetings, Wickware spoke about the history of unionization and "the decline of unions". According to Wickware, he explained the ballot to the pilots and pointed out that there was nowhere to vote against the union.
C. Meetings With Individual Employees
Several pilots reported that certain company officials held private or small group meetings to discuss the organizing campaign. One pilot mentioned that when the lead pilot briefed pilots at the weekly hitch meeting, pilots were told that the sector manager would be there "to conduct personal one on one interviews regarding the union effort". That pilot declined to attend a meeting with Ron Gaylor, his sector manager. According to that pilot, other pilots who attended one on one meetings with Gaylor were told to destroy their ballots and that if the union won it would bankrupt the company. Then Sector Manager Ron Gaylor(2) described the meetings he held during the organizing campaign as follows:
I would ask pilots to sit down and visit with them and encourage them to ask me questions about the union. I did this at both bases. Some of these sessions took place in the lounge and some of them took place in my office with the door open. I would meet with pilots 2 or 3 at a time. These meetings took place at the spur of the moment with whoever was there. I spoke with most of the pilots at the bases. Pilots were willing to talk with me. Several pilots did not want to talk to me because they were tired of discussing the union issue. I met with most of the pilots once and a few of the pilots more than once. The atmosphere was open and the meetings were brief, about three minutes.
I always prefaced the conversation with . . . 'it is your right to vote for or against the union, I just want to bring the facts out'.
Sector Manager Carlin Craig also held "small group meetings" with most of the pilots at the bases in his charge. Craig described those meetings as follows:
The meetings were one on one or one on two. Some of the meetings were in my office with the door closed. The door was closed to reduce the noise level from the adjoining room. Some were at other parts of the base. Employees did not seem to feel uncomfortable with the door being shut. In about 50% of the time I initiated the meetings otherwise the employee initiated the session by asking me a question. I held the meetings because I had a lot of new pilots and I wanted to make sure the new pilots understood my opinion on unions. I have past experience with unions . . . and my opinion was that a union on the property would be detrimental to PHI. Some I spoke with said that they were going to make up their own mind. I respected that. Some I spoke with voiced concern for their jobs if the customer base was reduced. I said that was a concern we all had - that if a union got in it may lead to a loss of customers. We discussed what our customer options were. The meetings were 5-10 minutes long and were roughly the same at all of the bases.
A pilot reported attending a meeting at Cameron base where the meeting was delayed until all pilots had returned to the base and he was called from quarters to attend. The pilot described the meeting as follows:
[Wickware] read from the supervisors' guide to the campaign, he read from several fact sheets, he made remarks about the OPEIU . . . He read from the document called Pope v. OPEIU. . . [H]e flatly stated that the oil companies would not tolerate a union in the Gulf of Mexico; that we would lose all of our business and thereby lose our jobs. The only reason the union wanted PHI pilots is because they are losing membership and money and they want our money.(3)
An EMS employee described a conversation he had with Mike Soldo, the manager for EMS operations. According to the EMS employee, Soldo said, "the hospitals would drop PHI if we voted the union in; hospitals can't afford an unstable workforce". That employee said Soldo spoke with him about the union two or three times and described another conversation where four or five other pilots were present. During that conversation, Soldo offered to buy pizza for lunch which lead to jokes about Soldo buying votes for the price of pizza.
In addition to the meetings discussed above, Gatza, Untereker, Benjamin Schrick, the General Manager, Mike Hurst, the Chief Pilot, and other management officials visited bases specifically to explain the Incentive Compensation plan for 1998.
Changes in compensation are the responsibility of the Compensation Committee of the Board of Directors. Currently PHI Board Members James McFarland, Robert Lambert and Jack Horner compose the Compensation Committee. According to McFarland, "from a historical point of view, the Board has been involved in approving incentive programs and the safety bonus".
A. PHI's History of Incentive Plans
PHI has a history of using incentives as a form of compensation. PHI created a Safety Incentive Plan in 1991 and an Incentive Compensation Plan in 1995.
The Safety Incentive Plan has, since 1992, provided employees with safety awards on their anniversary date if they had an accident free year. Pilots and mechanics receive the highest safety awards (approximately $250 per year) with Communications Specialists and other employees in lower risk jobs earning lower awards.
During the Summer of 1993, before the Incentive Compensation Plan was implemented, PHI provided all of its employees with a four percent base wage increase with no contingencies attached. According to Untereker, that was the last general wage increase paid to PHI employees.
Within the next year, PHI, pleased with the success of its Safety Incentive Program, implemented an Incentive Compensation Plan. According to Untereker, in FY 1996(4), or July 1995, a 2 percent bonus was paid to employees based upon FY 1995 performance, including PHI's safety record. Then, based upon performance in FY 1996, a four percent bonus was paid in July 1996.
B. The Incentive Compensation Plan for FY 1998
The Incentive Compensation Plan was used to develop incentives for FY 1998. According to McFarland, PHI had begun to fall behind its competitors in pay and benefits and began to be faced with attrition problems, particularly among the mechanics. According to McFarland, the 1998 Incentive Compensation Plan was set up "to remedy the attrition problems", and the Board of Directors approved the Incentive Compensation Plan and changes to holiday benefits at its summer meeting in 1997.
During the Summer of 1997, the incentives for the coming year were announced in a videotape presentation by Mrs. Suggs. The videotape was shown at each base. Although PHI has used videotapes to communicate to employees in the past, this is the first time that PHI used a videotape to announce the annual Incentive Compensation Plan. At most bases a member of management brought the tape, showed it and remained available to answer questions about the Incentive Compensation Plan. PHI ensured that each employee saw the videotape either by scheduling several opportunities to view the videotape or by requiring some employees to come in on their days off to view the videotape. One employee was told to come in on his day off to view the videotape and was then required to call Mike Soldo, the Manager of EMS Operations, and inform him that he had seen the tape.
On the videotape, Mrs. Suggs, after discussing the problems with FY 1997 performance, stated:
Obviously, I cannot change our past performance, and legally, I cannot change the incentive program that we have already announced. Be assured that steps are being taken to continue to improve our financial performance. Together we have laid the foundation in many areas so that we can have reason for optimism about our future.
However, it is critically important that we communicate better, raise our rates to the extent possible, and continue to pursue new business opportunities.
Our business is now at a sustained level so that we can announce the following pay incentive plan for 1998. The 1998 plan includes a base pay increase and a bonus. As in previous years, the incentives will be based upon company performance. If we meet certain earnings targets, we will make these payments. A general wage increase of 4% effective January 1, 1998. This wage increase is based upon a very achievable goal. We began our fiscal year on May 1, 1997. If, by the end of October of 1997, which is half way through our fiscal year, we have earned the amount equal to the prorated portion of last year's budgeted pre-tax earnings, then the 4% wage increase will take effect January the first, 1998. All that is required is that we meet last year's budget through October. That means 6.5 million dollars in earnings. This amount is lower than what we actually earned in the first half of last year. Seven and one half million dollars. I'm confident that we can achieve this target. So far we're ahead in attaining this mid-year goal. In addition to the 4% wage increase, the performance based incentive plan also provides for a year end bonus....
The year end bonus is similar to the other bonuses provided under the Incentive Compensation Plan. Employees would receive between 2 and 4 percent of their annual salary based upon PHI's pre-tax earnings for the entire fiscal year.
Untereker characterized the four percent increase in base pay as a "refinement" of the incentive compensation plan. He explained that as a result of PHI's poor performance in the last quarter of FY 1997, employees expressed disappointment at the small bonus after an extremely busy year. According to Untereker, "to deal with that issue and the fact that there was some uncertainty about this margin trend, we instituted this program that allowed for a midyear measurement, as well as an annual measurement. . . ." Utereker explained that PHI selected an "achievable" goal that would also indicate that the margin trend had stabilized. Discussing how PHI achieved the goal, Untereker stated that, "an incentive plan has to be achievable, affordable, and fair, in terms of the kinds of events we recognized." As PHI noted in its second quarter 1997 Form 10-Q filing with the Securities & Exchange Commission:
Earnings for the quarter were adversely impacted by flood damage caused by Hurricane Danny to twenty-six aircraft located at one of the Company's field bases. The estimated effect of this damage was $0.21 per share and primarily related to the incremental effect of lost revenue. Although most of the damaged aircraft were repaired and generating revenue by the end of the quarter, the ensuing quarter could be negatively impacted as well, as three of these aircraft will not be fully operational until late in the third quarter.
After Hurricane Danny led to significant flooding at the Venice base, Untereker sent a memo to all employees, dated July 21, 1997, reassuring employees that "storm-related costs and losses will have NO impact on the bonus calculation." (Emphasis in original). According to Untereker, since Hurricane Danny affected sales, PHI "took the economic effect of Hurricane Danny and took it out of the calculation." After doing so, PHI attained the goal and, in November 1997, indicated that the four percent increase would be paid to all employees beginning January 1, 1998.
One employee expressed his view of the 4% increase as follows:
I know that Hurricane Danny harmed PHI financially and they did not change the 4% increase plan because they knew if they don't start doing something for employees then they will face another election in one year and PHI probably would not win that if they don't start sharing the wealth.
Another employee described the four percent increase as follows:
The plan announced in July for 1997-1998 was tied to a pay raise and bonus. In Jan., we will get a 4% pay raise if we meet a certain target and it is my understanding that we have met that target. The last pay raise was the summer of 1993 and it was a 4% raise. I think that the incentive payment will be greater this year than last because the company performed better this year--we did not have as many down days. There was no express linkage made by management between the OPEIU and the incentive plan. We made the link ourselves. If the union comes in it's a clean slate and all this goes out the window.
C. Other Benefit Changes
1. Holiday Pay
On July 22, 1997, Untereker sent a memo to Department Heads, that was posted throughout the PHI system, and described benefit changes approved by the Board of Directors at its regular summer meeting:(5)
The Compensation Committee (the Committee) of the Board of Directors, at their regularly scheduled meeting today, approved the restoration of holiday pay for all employees in the Company. Basically, any scheduled employee (i.e. one for one, two for one, etc.) who works on one of the five scheduled holidays will receive an additional day's (8 hours) pay. This is consistent with PHI's holiday pay policy prior to 1985.
In addition, the Committee approved the accrual of sick leave for all employees hired after May 1, 1994 up to a maximum of 90 days.
The Committee directed the Company to implement these policies as soon as legally possible, and as conditions dictate.
Although employees who worked on Labor Day, the next holiday, were not specifically informed in a company-wide communication that they would be paid holiday pay for working that day, they received bonus pay for an additional eight hours of pay after the holiday. One employee remembered that:
Just prior to the vote they decided to allow paid holidays. There was a letter that came down from management that was posted on the bulletin board at Houma. I got paid for Labor Day. I got the money in my check. They announced [it] at the normal pilots' briefing on the Thursday before Labor Day.
Other employees also learned that they would receive holiday pay for Labor Day during the week before the holiday:
First the company said we'd get holiday pay, then they said they couldn't give us holiday pay because of the union campaign. Then, I was in Morgan City and the lead pilot got a phone call from someone, I think Ken Townsend, and the lead pilot told me personally, if you get a check in the mail, don't ask any questions about it. . . It was the week of Labor Day. I got a check for one day's pay at time and a half.
Other employees stated that they received holiday pay for Labor Day.
2. Sick Leave
For several years PHI has had a two-tiered sick leave policy. Under that policy, employees hired after May 1, 1994 could not accrue sick leave. Although the Board of Directors voted to permit employees hired after May 1, 1994 to accrue up to 90 days of sick leave, implementation of that policy has not been announced.
IV. BALLOT COLLECTION
During the election period, several PHI managers accepted ballots from employees. Gatza stated that he was aware that pilots were giving their ballots to managers and stated:
I received some myself. Two guys actually handed me their ballots. Basically they said I got this. I do not want this. You take it. I said thank you. I was appreciative of this because times were tough and this was a tremendous showing of support.
Director of Operations Virgil Russell stated that three pilots attempted to turn their ballots in to him. He accepted two of them, but refused the ballot offered by the third pilot because that individual sought special favors in exchange for his ballot.
Russell described the circumstances under which he accepted the ballots as follows:
One pilot . . . came to me and said he had something he wanted me to send to MSY and we went outside and he handed me his ballot. I told him I would rather he send it himself, but if he didn't I would send it for him. He said you keep it and do whatever you want with it. A second pilot . . . while I was at his base we went out into the parking lot, said his Pilot in Command for that day/trip was a very strong union supporter and he didn't want him to know how he voted. He made me promise not to tell anyone where that ballot came from, he tore up the envelope and gave me the ballot.
Another pilot stated that he and two other employees turned their ballots in to Ron Gaylor. According to that pilot, he turned his ballot in because he supported the company and "thought it was only fair that the company know how many [pilots were] . . . voting for the company". According to Gaylor, he did not ask any pilot for their ballot, but "six to eight pilots at each base gave . . . [him] their ballots, a total of 12 - 16 ballots." Gaylor stated that he either threw out or tore up the ballots.
One pilot approached by Gaylor about his ballot described the conversation as follows:
Ron Gaylor asked that I not return the ballot. He did not specifically ask that I give him my ballot. I did not feel like I was being told to hand my ballot to him. I did not answer him. It kind of sounded like he wanted me to bring in my ballot. He said some of the guys were sending their ballots to management and they would burn them after the election.
Another Sector Manager, Carlin Craig,(6) indicated that although he did not ask any pilot for a ballot, one pilot gave him his ballot. That pilot told Craig that he wanted to show his support for PHI and gave Craig his ballot. Craig destoyed the ballot in the pilot's presence. The pilot requested confidentiality, and no one else witnessed their conversation. However, another pilot described the following conversation which occurred after he spoke to Craig about an unrelated matter:
Carlin then closed the office door and motioned me to a closer chair. He proceeded to give me his views concerning the union movement. He then asked me very directly to turn in my ballot. I didn't answer at all. Carlin didn't press the issue, but I was definitely uncomfortable in the closed office.
Craig denied that the incident occurred.
Unrelated to the above incident, a base manager(7) received questions from pilots concerning how they could show their support for the Carrier. The base manager asked Craig how he should respond to the question. Craig replied that they could surrender their ballot. As a result, approximately 6-8 pilots gave their ballots to the base manager.
Several employees had first hand knowledge about pressure on new pilots with only two or three years of seniority to turn in their ballots.
Some of these pilots were referring to incidents involving Charlie Thille, a lead pilot. A few pilots stated that Thille, was collecting ballots from other pilots, particularly those with little seniority. One pilot stated:
I know of a few people who handed their ballots to Charlie Thille, the lead pilot on shift 1 . . . There was a point when one of my shifts overlapped. I heard it mentioned that Charlie was trying to get his pilots to turn in their ballots to him as a show of support for the company. . . .
At least one pilot believed that Thille was taken out to dinner by Mrs. Suggs and received a desired assignment as a result of his ballot collection efforts. Another pilot saw between seven and nine ballots posted on the wall in Thille's office in early August 1997. Each of the ballots had the word "NO" written across them in black felt tip marker.
One pilot discussed the situation at Houma as follows:
As soon as Suggs came down personally and talked to . . . the secretary, she [the secretary] made it clear she is anti-union. She and the lead pilot asked me when I was going to hand in my ballot, and then held up an envelope that appeared [to] contain several pink ballots. A lot, about 10 pilots that I know of, were asked for their ballots by . . . [the secretary and the lead pilot].
Sector Manager Mike Wickware stated that he never "asked a pilot for their ballot." However, he also stated that two lead pilots gave him their ballots. Wickware said he told the pilots to "tear them up" because he "did not feel comfortable accepting them otherwise." He then accepted the torn up ballots and gave them to Gatza.
At some bases, including the Miami base, pilots posted their ballots on the bulletin board. At the Miami base there were four ballots, not sample ballots, posted on the bulletin board. One pilot, who described it as "pretty intimidating" because the lead pilot would take the ballot and hang it on the bulletin board so "you pretty much knew either you turned your ballot in or they figured you voted for the union."
At the Venice base, the word "void" was written across the sample ballot posted on the bulletin board. When the base manager asked questions about it, he learned that a pilot had written void because he was concerned that the sample stamp was faint.
V. "UNION FREE" APPAREL
During the election campaign, PHI distributed baseball caps and tee shirts with the PHI logo and the words "PHI PROUD - UNION FREE" on them. Approximately 1,000 of these baseball caps and tee shirts were distributed. One employee who did not support OPEIU reported being disturbed because OPEIU supporters defaced his baseball cap and made it read "PHI PROUD - UNION FREEDOM". Apparently, the caps and tee shirts were given out at each base. One employee described his conversation with Base Manager Mike Wickware about the caps and tee shirts as follows:
One day during the election campaign, Wickware showed up with the "PHI PROUD-UNION FREE" t-shirts. He said we were all welcome to one; all that was required was that we wear it. He approached me with one and said if you take one you have got to wear it. I did not take one. The shirts and hats were a good way for them to poll the sentiments of the pilots.
Other pilots also mentioned receiving or being offered a hat or tee shirt. One pilot stated that mechanics, refuelers, customers and salesmen also wore the caps and tee shirts. Another pilot stated the caps and tee shirts were "one way that PHI could tell who was for or against the union".
VI. CAMPAIGN COMMUNICATIONS
During OPEIU's election campaign both PHI and OPEIU peppered employees with campaign materials. The Board's investigation revealed that campaign materials published by PHI and OPEIU were posted and/or placed in the pilot lounges at virtually every station. A few employees mentioned that OPEIU literature was, on occasion, obscured by PHI campaign literature on bulletin boards.
Most of the "fact sheets" circulated by PHI asked pilots to destroy their ballots and included statements about OPEIU and about the likely results of a union at PHI. The following are samples of the materials included in PHI's "Fact Sheets".
PHI's Fact Sheet No. 4 ended with the following statement:
PLEASE DO NOT GAMBLE WITH WHAT YOU HAVE TODAY, YOUR JOB AND YOUR FUTURE. PLEASE DESTROY YOUR BALLOT! TOGETHER AS THE PHI TEAM, WE CAN WORK OUT OUR PROBLEMS WITHOUT INTERFERENCE FROM THIS UNION!
(Emphasis in original).
PHI's Fact Sheet No. 5 began with the following statement:
Several of you have asked about the impact a union would have on our business. Apparently, the union is telling you that our customers have no choice but to continue doing business with PHI. And, that it is not possible for us to lose business because of a union. We have already had calls from nervous investment bankers and stockholders worried that unionizing our company could jeopardize our future. The FACT is that with a union, many things, including our future, are UNCERTAIN.
The Fact Sheet continued in a question and answer format to discuss the possibility of PHI losing business if OPEIU won. One answer included the following statement:
As hard as it may seem to accept, the truth is that our customers do have a choice. If they decided that unionized PHI pilots create unacceptable risks for their employees who depend on us, or were hurting their business, they have choices: they could adjust requirements, subcontract independent pilots, transfer contracts to our competitors, or they could bring the service "in-house" and hire their own company pilots. Our customers should not have to take unnecessary risks. There's no reason to expect that they would tolerate it. They do have a choice. If we unionize, they could choose not to work with PHI.
PHI's Fact Sheet No. 6 addressed the cost of OPEIU to the pilots and stated that OPEIU could use PHI pilot's dues to:
pay their President's salary and expenses of $185,227
put a down payment on a new office building and equipment
make contributions to political groups or individuals
do just about anything they want with it.
Fact Sheet No. 7 highlighted the then ongoing UPS strike and raised questions about the effect a strike and a loss of business from a strike might have on PHI.
Other Fact Sheets and letters distributed by PHI included similar topics. PHI set up a toll free hot line for anyone to call with questions about the election. The hotline was answered by Untereker's secretary. The record reflects that one individual called the hotline.
A. Donald Dunkerson
One pilot, Donald Dunkerson, was discharged during the organizing campaign. OPEIU has asserted that his discharge was in retaliation for his actions collecting authorization cards. According to PHI, Dunkerson was discharged for "serious errors in judgment in connection with his flying". According to Edward Gatza, Vice President-Director of Human Relations, PHI based its determination that Dunkerson exercised poor judgment on two incidents and had not been a "stellar performer".
First, in April 1997, Dunkerson, in an attempt to provide prompt service to a customer, refueled his helicopter from a mop bucket and a garden hose rather than waiting for fuel to be delivered by another aircraft. Dunkerson was counseled and received a written reprimand after that incident. A week or two later, Dunkerson landed his helicopter in an unauthorized location, rather than at a heliport. According to the memo reporting the incident, the customer reported that:
[W]ith no warning the aircraft suddenly landed next to their operations building. There was a barge between the building and dock area that was being off-loaded at the time. There was also several service hands using the telephone in front of the building who had to make a hasty retreat. I was told that the Operations Manager was very upset due to the blowing dust and rocks and rattling windows.
After that landing, Dunkerson acknowledged that there was an individual at a nearby phone booth approximately 30 feet from the rotors of his helicopter. According to the carrier, Dunkerson indicated that the individual at the phone booth had run away from the helicopter as it was landing and had been frightened.
Wickware investigated the incident and found that the location used by Dunkerson "had the required obstruction clearances" but was not normally used because there were surrounding wires and cranes. According to Wickware's report, Dunkerson told him that he could not find the heliport and selected what he considered an "open, safe area for landing".
After that incident, Russell and then Director of Operations, Gerry Golden, met with Dunkerson. Apparently, Steve Ragin, a pilot and outspoken leader of the organizing drive, attempted to accompany Dunkerson to this meeting. According to Russell, he learned of Dunkerson's organizing activities when Ragin appeared with him to discuss the incident. There is no evidence that Golden or any other management official had knowledge of Dunkerson's role in the organizing campaign before that meeting. Golden and Russell did not permit Ragin to attend the meeting with Dunkerson.
Russell observed the meeting with Dunkerson, while Golden asked Dunkerson about the initial incident involving refueling the aircraft with a mop bucket and then about the landing at an unauthorized location. According to Russell, Dunkerson was terminated as a result of that meeting. Russell stated further that, under PHI's disciplinary policy, Dunkerson had an opportunity to appeal his termination to General Manager Ben Schrick and then to Mrs. Suggs. Dunkerson did not file an internal appeal. Nor did Dunkerson challenge his discharge in federal court.
B. E-Mail/Facsimile Incidents
There was a computer available for the pilot's personal use at Houma. The computer had e-mail and computer games on it. Many pilots used it to send e-mail to their families when they worked seven day shifts. During the balloting period the account for the computer was deleted. When pilots complained, the computer account was reinstated the next day.
During the organizing campaign, Ragin used a fax line to access his e-mail. One day, Wickware was trying to use the fax line to send a document to the Cameron base while Ragin was using the line. Wickware asked the lead pilot to ask Ragin what he was doing with the line. Ragin replied that he was accessing his e-mail. According to Wickware, during the organizing campaign, he talked to Ragin about his use of the fax line for personal use to retrieve e-mails because Ragin was "occupying the fax line which is essential for business use." Wickware told Ragin that he could not use the fax line to download his personal e-mails. According to Wickware, he asked Ragin, "are you getting your union information?" Ragin replied that he did not know since he had not yet read the e-mails. According to Wickware, use of the phone line to get personal e-mails does not violate company policy.
Under Section 2, Ninth, of the Act, the Board is charged with the responsibility of assuring that employees are provided the opportunity to make a choice concerning representation free of interference, influence or coercion by the carrier. This duty requires that, where there are allegations of carrier interference, the Board has the responsibility to investigate such claims. Metroflight, 13 NMB 284 (1986); Key Airlines, 13 NMB 153 (1986).
When considering whether employees' freedom of choice of a collective bargaining representative has been impaired, the Board examines the totality of the circumstances as revealed through its investigation. The Board makes an evaluation of the facts developed from its investigation including submissions provided by the organization and the carrier and past Board experience. America West Airlines, Inc., 17 NMB 79 (1990); Evergreen International Airlines, 20 NMB 675 (1993).
The carrier is under an obligation imposed by the Railway Labor Act to act in a manner which does not influence, interfere or coerce the employees' selection of a collective bargaining representative. Metroflight, supra. In Texas & New Orleans Railway v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 567 (1930), the Court stated:
'Interference' with freedom of action and 'coercion' in this case may be gathered from the context . . . The use of the word is not to be taken as interdicting the normal relations and innocent communications which are a part of all friendly intercourse, albeit between employer and employee. 'Influence' in this context plainly means pressure, the use of authority or power of either party to induce action by the other in derogation of what the statute calls 'self-organization.' The phrase covers the abuse of relation or opportunity so as to corrupt or override the will, and it is not more difficult to appraise conduct of this sort in connection with the selection of representatives for the purposes of this Act than in relation to well-known applications of law with respect to fraud, duress and undue influence.
Under Section 2, Ninth of the Act, the Board has broad discretion to tailor its investigation to the facts and circumstances of each case. Evergreen International Airlines, supra; Florida East Coast Railway, 17 NMB 177 (1990); Key Airlines, 16 NMB 296 (1989). When the Board has found carrier interference, it has employed a variety of special ballots and notices intended to eliminate the taint of interference on the employees' freedom of choice of representative. The Board's methods of determining the employees' choice of representative vary on a continuum determined by the extent of the carrier interference found. The continuum begins with a finding that the carrier had not interfered with the employees' choice of representative. The continuum ends with interference so outrageous that, in the Board's judgment, alternate means of gauging employee sentiment other than a secret ballot election are appropriate.
Illustrative of one end of the continuum are those cases in which the Board has found that the allegations of election interference were not supported by the record. For example, in USAir, Inc., 18 NMB 290 (1991), the Board's investigation established that, although there were isolated objectionable incidents, the carrier did not engage in a "systematic" effort to interfere in an election. See also Northwest Airlines, 19 NMB 94 (1991).
There have been a number of cases in which the Board has found that the level of interference warranted a re-run election using the Board's standard ballot procedures and a special notice. Examples of such cases include America West, Inc., 17 NMB 79, 102 (1990), where the carrier's conduct under the totality of the circumstances, including the timing of new benefits during the election campaign, interfered with the initial election. See also USAir, Inc., 17 NMB 377 (1990).
Moving along the continuum of approaches to determining the employees' choice of representative, the Board may change its balloting procedures in response to conduct interfering with employees' choice. In Laker Airways, Ltd., 8 NMB 236 (1981), the Board ordered a re-run election using a "Yes" or "No" ballot. No write-in space was provided, and the majority of votes cast determined the outcome of the election. The Board's approach in Laker was based upon the totality of the carrier's conduct which included soliciting employees to turn in their ballots to a carrier official, increasing pay immediately before the election period, and polling employees as to their representation choice.
As the conduct grows more egregious, the Board employs procedures designed to provide increasing safeguards for employees' freedom of choice of their representative. In Key Airlines, 16 NMB 296 (1989), the Board used a ballot designed to certify the organization unless a majority of eligible voters returned votes opposing union representation. No write-in space was provided. In Key, the Board's approach was based upon the totality of the carrier's activities, which included denying a scheduled pay increase to employees in one craft or class immediately after a representation application was filed, holding meetings for the express purpose of discouraging organization, and threatening employees' job security should they vote for representation. The carrier also issued a letter criticizing the organization (International Brotherhood of Teamsters) which included comments such as: "[do] you want to be a partner with an organization that has such a sordid reputation as the Teamsters. . . ."
At the far end of the continuum where the carrier's conduct is so pervasive and egregious that it can be considered outrageous, the Board will employ alternate means of gauging employee sentiment such as a check of authorization cards. Sky Valet d/b/a Commercial Aviation Services of Boston, Inc., 23 NMB 276, 298-299 (1996). In Sky Valet d/b/a CAS of Boston, supra, the Board's approach was based upon the totality of the carrier's activities which included creating the impression of surveillance by repeatedly telling employees they knew who signed authorization cards, questioning employees as to whether they signed authorization cards, threatening employees with discharge if they supported the organization by signing an authorization card, and discharging employees within days after they had signed authorization cards because they had exercised their right to select a representative pursuant to Section 2, Ninth of the Act.
As the Board held in Key Airlines, 16 NMB 296, 310 (1989), laboratory conditions must be maintained from the date that the carrier became aware of the organizing drive until the conclusion of the election.
See also America West Airlines, supra.
In this case, the Carrier was aware of the organizing campaign during the Spring of 1997. Specifically, the Carrier's Chief Executive Officer acknowledged receiving OPEIU's May 7, 1997 letter announcing that it was collecting authorization cards a few days after the letter was mailed. That letter announced that OPEIU was organizing "helicopter pilots, mechanics and ground support personnel" at PHI.
The Board finds that the laboratory conditions attached in early to mid-May 1997, at the time when PHI received OPEIU's May 7, 1997 letter.
The Board finds that from the time that PHI learned officially that OPEIU had launched a campaign to organize its employees, PHI sought to defeat OPEIU through a barrage of meetings and communications. In addition to the meetings and communications, PHI announced a wage increase, reinstatement of holiday pay and accrual of sick leave for new hires, collected ballots, and distributed baseball caps and tee shirts.
For reasons which are described herein, the Board finds that PHI interfered with, influenced or coerced employees in their choice of representative by announcing a probable four percent general wage increase, distributing "PHI PROUD - UNION FREE" hats and tee shirts and collecting ballots. The Board further finds that, under the circumstances of this case, the barrage of meetings and communications contributed to the totality of the circumstances which the Board finds destroyed the laboratory conditions necessary for a free and fair election.
The Board has found interference where the carrier grants or withholds benefits to influence the outcome of a representation dispute. Wisconsin Central Ltd./Fox Valley & Western Ltd., 24 NMB 64, 104 (1996); Evergreen International Airlines, 20 NMB 675, 707 (1993); Key Airlines, 13 NMB 153 (1986). In Key, supra, the record demonstrated that the carrier used pay increases (or the denial of scheduled increases) in an attempt to affect the outcome of the election. In contrast, in USAir, 17 NMB 377 (1990), the facts established that certain benefits and pay increases
implemented during the election period were either previously scheduled or part of an historical pattern.
In this case, the carrier: (1) paid incentive bonuses under its 1997 Incentive Compensation Plan; (2) announced incentive bonuses and a general wage increase under its 1998 Incentive Compensation Plan; and (3) announced the reinstatement of holiday pay and sick leave accrual for new hires.
During the Summer of 1996, PHI announced its Incentive Compensation Plan for FY 1997. That plan provided for bonuses as a percent of salary dependent upon the Carrier's success in reaching certain performance goals during the fiscal year. As a result of bad weather, PHI's performance in FY 1997 was disappointing, the goal was not reached, and all employees received a smaller than expected bonus. Although this bonus was paid in July of 1997, during the organizing campaign, it was paid pursuant to the annual plan announced during the Summer of 1996. The FY 1997 Incentive Compensation Plan was virtually identical (with different financial goals) to the previous annual Incentive Compensation Plans. The Board finds that the incentive bonus paid in July 1997 based upon FY 1997 performance was previously scheduled and part of a historical pattern.
In contrast, in June of 1997, shortly after OPEIU filed its Application with the Board, PHI announced its Incentive Compensation Plan for FY 1998. Unlike the previous Incentive Compensation Plans, this plan included a four percent general wage increase for all employees effective January 1, 1998, based upon PHI's performance in the first half of the fiscal year. The Plan also included an incentive bonus dependent upon annual performance to be paid in July, 1998. The annual incentive bonus to be paid after the close of the fiscal year is in keeping with the Incentive Compensation Plan as it has existed since its creation. The four percent general wage increase, effective January 1, 1998, if PHI met certain goals for the first half of the fiscal year, was not consistent with the history of the Incentive Compensation Plan. The Incentive Compensation Plan had never included a general wage increase and had always been based upon full year financial performance. Additionally, there had been no general wage increase at PHI since 1993.
PHI attempts to justify the deviation from past annual Incentive Compensation Plans by recognizing the employees' disappointment with PHI's FY 1997 performance and based upon its need to "remedy attrition problems". However, in PHI's announcement of the four percent general wage increase, PHI indicated that it could not "legally" change the incentive plan, but characterized the incentive goals as "very achievable" and noted that at that point PHI was "ahead in attaining this mid-year goal."
Shortly after the announcement of the FY 1998 Incentive Compensation Plan, including the four percent general wage increase, a hurricane in the Gulf of Mexico caused significant flooding and damaged 26 aircraft. As a result, on July 21, 1997, the day before the ballots were mailed, Untereker sent a memo to all employees informing them that the hurricane damage would have no impact on the Incentive Compensation Plan calculations and that "the economic effect of Hurricane Danny" was taken out of the calculations for the Incentive Compensation Plan. This announcement contrasted with the inclusion of poor weather-related losses in FY 1997. Although the four percent increase was not effective until January 1, 1998, and PHI did not explicitly tie the general wage increase to OPEIU's organizing campaign, the record establishes that employees made the connection.
The Board notes that the Incentive Compensation Plan, including the general wage increase, applies to all employees. Although this case concerns OPEIU's application seeking to represent PHI's pilots, OPEIU, in its May 7, 1997 letter to PHI, announced that it was collecting authorization cards from "pilots, mechanics, and ground support personnel" employed by PHI. Since these categories cover virtually all of PHI's non-management employees, the Board gives no weight to the fact that the general wage increase was Carrier-wide.
On July 22, 1997, the day the ballots were mailed, Untereker sent another memo to employees. This memo announced that the Compensation Committee of the Board of Directors had voted to "reinstate holiday pay for all employees of the Company." The memo also announced that the Committee had approved the accrual of sick leave for employees hired after May 1, 1994. The memo directed PHI management to implement these changes "as soon as legally possible, and as conditions dictate". Although employees were not specifically informed that they would receive holiday pay until after they were paid at a premium rate for working on Labor Day, the record establishes that the memo was posted throughout the PHI system.
The Board finds that the announcement of a general wage increase and reinstatement of holiday pay and improvement in the sick leave accrual policy for new hires constitute promises of benefits designed to influence employees to vote against OPEIU. First, PHI announced the first general wage increase since 1993 within weeks of the OPEIU's application. Then, the day before the ballots were to be mailed, PHI issued a memo reiterating the four percent general wage increase under the Incentive Compensation Plan and announcing that losses from Hurricane Danny would not be factored into the calculation of whether PHI met its goals under the Plan. Then, the next day, the day the ballots were mailed, PHI issues another memo announcing improved holiday and sick leave benefits to be implemented "as soon as legally possible".
The Board finds that the announcements of the general wage increase and holiday and sick leave benefits constitute promises to confer benefits in an effort to persuade employees to remain unrepresented. Specifically, the announcement of these improvements was tied to the organizing campaign and to the mailing of the ballots. See Sky Valet d/b/a Commercial Aviation Services of Boston, Inc., 23 NMB 276, 301 (1996).
In Laker Airways, Ltd., 8 NMB 236, 248-250 (1981), the Board reviewed its use of mail ballot elections specifically to permit employees to vote in the privacy of their homes. The Board noted that when a carrier collects or accepts ballots even employees who might otherwise simply throw away their ballots, "feel compelled to turn them in as an act of 'loyalty'." 8 NMB at 249. For this reason, in Laker, the Board held:
[I]t is a per se violation of the Railway Labor Act for any carrier or its officials to solicit employees to turn their ballots in to the carrier. . . It is a violation of the Act . . . to keep track of which employees do or do not have ballots, and to thereby give the impression of surveillance. It is a per se violation to poll employees during a representation election conducted by this Board. Finally, it is a per se violation for a supervisor to personally receive a ballot from an employee under any circumstances, and without regard to the "voluntariness" with which it is turned over.
In this case, several management officials, including the Vice President-Human Resources, the Director of Operations, and the Sector Managers, accepted ballots from pilots. In certain instances these ballots were hung on walls, displayed on bulletin boards, or carried in envelopes and shown to pilots. These actions create an impression that the carrier is keeping a record of who is supporting its position.
While no management official acknowledged actually soliciting employees to turn in their ballots, the record reflects that ballot collection was widespread and at least one sector manager advised a base manager to let pilots know that turning in their ballots was one way to show support for PHI.
The impression that the carrier was attempting to keep a record of who voted is supported by the carrier's distribution of "PHI PROUD - UNION FREE" baseball caps and tee shirts to all employees who would wear them. Employees were provided with the caps and tee shirts on the condition that they would wear them.
Based upon the record in this case the Board finds that the Carrier collected ballots and distributed caps and tee shirts bearing the words "PHI PROUD - UNION FREE" in an effort to poll employees about their union sentiments. For the reasons discussed above, the Board finds the collection of ballots, and the distribution of apparel bearing an anti-union message so long as employees agreed to wear the apparel, constitute interference, influence or coercion in violation of the Railway Labor Act.
Carriers have a right to communicate their views during election campaigns. US Airways, 24 NMB 354, 390 (1997); Federal Express Corporation, 20 NMB 659 (1993); USAir, Inc., 17 NMB 377 (1990). However, the Board has also found that a carrier's right to communicate "is not without limit, and even conduct which is otherwise lawful may justify remedial action when it interferes with a representation election." America West Airlines, 17 NMB 226, 233 (1990). Under the circumstances of this case, PHI's barrage of meetings and communications suggesting that its clients, oil and gas companies, did not want to do business with a unionized company, that PHI would lose business and jobs, is a factor leading to the Board's finding that the carrier interfered with employees' free choice of representative.
The one on one or small group meetings conducted by Sector Managers and other management officials to discuss the organizing campaign served to reiterate the same messages communicated in the larger meetings and by the fact sheets. However, the small group meetings permitted management officials to attempt to interrogate employees. The record establishes that at least one employee was asked to turn in his ballot in such a meeting. Therefore, the small group or one on one meetings conducted by carrier officials also weigh in the Board's determination that the carrier interfered with employees' freedom of choice of representative.
OPEIU has alleged that Donald Dunkerson was discharged in retaliation for collecting authorization cards. The record establishes that carrier officials were not aware of Dunkerson's organizing activities until he was accompanied by an outspoken union support to the meeting at which he was discharged. Further, the carrier's rationale for Dunkerson's discharge, errors in judgment, is supported by the record. On one occasion, Dunkerson refueled a helicopter with a garden hose and a mop bucket. A few weeks later, Dunkerson landed at an unauthorized location causing customer complaints and possibly endangering individuals nearby.
OPEIU has also alleged that one of its supporters, Steve Ragin, was forbidden from using a carrier fax line to access his e-mail. The record reflects that at the time, the fax line was needed for business purposes. While the record reflects that Ragin may have been singled out and prohibited from using a company fax line to access his e-mail, this appears to be an isolated incident. Other pilots continued to have access to a company computer on which to access their e-mail. Although the Board is concerned that Ragin's use of the Carrier's fax line appeared to be singled out during the organizing campaign, it appears to be an isolated incident that is not a significant factor in the Board's determination.
V. CONCLUSION AND ORDER
Based upon the totality of the circumstances of this case, the Board finds that the laboratory conditions required for a fair election were tainted. The Board's decision is based upon its findings that PHI promised wage and benefit increases during the election period, made announcements about these benefits on the day before the ballots were mailed and on the day the ballots were mailed, collected ballots, distributed apparel with an anti-union message to all employees who agreed to wear it, held meetings and issued communications suggesting that oil and gas companies would not do business with a unionized company and PHI would lose business and jobs, and held one on one small group meetings to interrogate employees.
The Board has determined these actions constitute interference, influence or coercion which impairs employees' free choice of representative in violation of Section 2, Ninth of the Act. Therefore, pursuant to its authority under Section 2, Ninth, the Board hereby ORDERS a re-run election among PHI's Flight Deck Crew Members using a "Laker" ballot. OPEIU and a space for "No Representation" will appear on the ballot. No space for write in votes will be provided. The majority of votes cast will determine the outcome. In addition, the Board will mail to each eligible voter a special "Notice to All Employees" identical to the Notice attached to this determination. A copy of this Notice, accompanied by a copy of this determination, will be mailed to all eligible employees in advance of the election. A copy of the Notice will also be included with the election materials. The Carrier must post this Notice at all stations, making sure both pages are visible. Failure to post this Notice will be considered as a basis for overturning the election results. In addition the Carrier must provide OPEIU with a list of employee home addresses at the same time the carrier provides the Board with two sets of mailing labels, i.e. five calendar days from the date of this decision. The addresses should correspond with the list of eligible voters as finalized at the count on September 4, 1997, with the exception of employees who have left the craft or class since that point. No employees will be added to the list.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
cc: Mrs. Carroll W. Suggs
James Morgan, Esq.
Mr. Ron Hutson
Timothy Gallagher, Esq.
Ms. Pat Simms, Mediator
1. The 670 pilots employed by PHI include pilots stationed in foreign domiciles.
2. Gaylor "resigned or retired" from PHI in October of 1997.
3. Pope v. OPEIU, 74 F.3d 1492 (6th Cir. 1996) concerns the discharge of an OPEIU business representative over an internal dispute and claims concerning OPEIU's internal election practices under the Labor Management Reporting and Disclosure Act.
4. PHI's fiscal year begins May 1 and ends on April 30 of each year.
5. The Board requested copies of the minutes of the July 1997 meeting of the Compensation Committee of the Board of Directors at which the benefit changes were discussed. PHI declined to provide those minutes stating: "[F]ormal action by the Compensation Committee was not required with respect to these benefits under PHI's Articles of Incorporation or Bylaws. Consequently, the minutes of the July meeting do not touch upon either issue . . . ."
6. According to Craig, as a result of PHI's reorganization, the four sector manager positions have been combined into three regional manager positions. Craig is currently a regional manager.
7. A Base Manager has responsibilities similar to those of a lead pilot. Base managers and lead pilots were eligible to vote in the election.
NOTICE TO ALL EMPLOYEES
IN ORDER TO EFFECTUATE THE POLICIES OF THE RAILWAY LABOR ACT, AS AMENDED, ALL FLIGHT DECK CREW MEMBERS, EMPLOYEES OF PETROLEUM HELICOPTERS, INC. ARE HEREBY NOTIFIED THAT:
After an investigation conducted by the National Mediation Board in which the Carrier and the Organization had the opportunity to present statements and evidence, the National Mediation Board found that the Carrier's conduct, taken as a whole, interfered with, influenced or coerced employees' choice of representative under Section 2, Ninth, of the Act.
Accordingly, the Board authorizes an additional election among Petroleum Helicopters Inc.'s Flight Deck Crew Members using a modified balloting process. Under the modified ballot process, the form of the ballot will provide: "Do you desire to be represented by...." Boxes will be provided for the Office and Professional Employees International Union and for No Representation. No space for write in votes will be provided. The majority of valid ballots actually cast will determine the outcome of the election. During the election period, the Mediator will be available to immediately investigate any further allegations. The list of eligible voters will consist of those eligible to vote in accordance with Board policies and procedures. This Notice will be mailed to all eligible voters both initially and with the election materials.
Section 2, Fourth of the Act, 45 U.S.C. §152, Fourth, allows employees the right to select representatives without carrier influence or interference. That particular subsection reads as follows:
No carrier, its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any organization . . . (emphasis added).
Section 2, General Purposes Clause of the Railway Labor Act, states that one of the purposes of the Railway Labor Act is "to provide for the complete independence of carriers and of employees in the matter of self organization."
The Carrier is not permitted to influence, interfere or coerce employees in any manner in an effort to induce them to participate or refrain from participating in the upcoming election.
If any employees have any questions concerning this notice or compliance with its provisions, they may communicate directly with the National Mediation Board, Washington, DC 20572, Telephone (202) 523-5920, Facsimile (202) 523-1020.