The services of the National Mediation Board were invoked by the International Brotherhood of Teamsters on April 7, 1998, to investigate and determine who may represent for the purposes of the Railway Labor Act, as provided by Section 2, Ninth, thereof, personnel described as "Flight Deck Crew Members," employees of Express One International.

At the time this application was received, these employees were not represented by any organization or individual.

The Board assigned Mediator Thomas B. Ingles to investigate.

On April 28, 1998, the Board authorized an election, among the Carrier's Flight Deck Crew Members and ballots were mailed on May 13, 1998.

The following is the result of the election as reported by Mediator Ingles who was assigned to count the ballots in this case.

On July 1, 1998, the Carrier notified the Board of its desire for a briefing schedule in order to pursue a subpoena duces tecum to ascertain the identity of the individual or organization who posted an anti-union statement on an America Online (AOL) aviation bulletin board using the screen name "ExpresOne". On that same date, the Carrier filed charges of election interference alleging that the Board interfered with the election process when it did not issue a subpoena to AOL.

ISSUE

Is Express One's request that the Board issue a subpoena duces tecum to AOL moot? Does the Board have the authority to issue a subpoena duces tecum to AOL? Did Express One establish a prima facie case of election interference?

CONTENTIONS

The Carrier asserts that the Board prejudiced Express One when it "arbitrarily and capriciously delayed its ruling" on Express One's request that the Board issue a subpoena duces tecum to AOL. The Carrier asserts further that the posting on an aviation bulletin board on AOL interfered with the laboratory conditions. Specifically, the Carrier argues that it was prejudiced by the Board's refusal to investigate the identity of the individual who posted an anti-union message on AOL using the screen name "ExpresOne."

The IBT asserts that the Board has no authority to subpoena AOL. The IBT also asserts that the issue is moot because the Carrier has ascertained the identity of the individual who posted the message at issue on an AOL aviation bulletin board. Further the IBT notes that the Carrier has not submitted evidence that the IBT was responsible for the posting. Finally, the IBT asserts that assuming arguendo that it was responsible for the posting, the posting did not interfere with the free choice of employees.

FINDINGS OF LAW

Determination of the issues in this case is governed by the Railway Labor Act, as amended, 45 U.S.C. § § 151-184. Accordingly, the Board finds as follows:

I.

Express One International is a common carrier by air as defined in 45 U.S.C. § 151, First, and § 181 of the Act.

II.

The IBT is a labor organization and representative as provided by 45 U.S.C. § 152, Ninth of the Act.

III.

45 U.S.C. § 152, Third, provides in part: "Representatives . . . shall be designated . . . without interference, influence or coercion . . . ."

IV.

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 . . . .

V.

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 its investigation, the Board "shall have access to and have power to make copies of the books and records of the carriers to obtain and utilize such information as may be deemed necessary by it" to investigate representation disputes and to "certify" the results. 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

The Carrier alleges that on May 21, 1998, an individual or organization posted the following message on an AOL aviation bulletin board: "For you vocal union supporters, I'd be watching your backs. We know who most of you are who are posting your anti-company propaganda. We're not stupid." The screen name used on the posting was "ExpresOne." The pleadings assert that the posting was not made by the Carrier or a Carrier representative.

The Carrier advised the Board of this posting on May 22, 1998. After the Board suggested that the issue "appears to be a matter more appropriately addressed by Express One," the Carrier sought the information from AOL. Apparently, AOL indicated that it would divulge the identity of the author of the message only if the information was subpoenaed. Therefore, Express One asked the Board to issue such a subpoena on June 12, 1998. After receiving an oral request for briefing on the extent of the Board's authority to subpoena a non-carrier, Express One renewed its request and asked for a formal response. The Board responded by permitting Express One to request a briefing schedule on the issue of its authority. The ballots were counted on June 29, and on July 1, 1998, Express One sought a formal briefing schedule from the Board.

Express One submitted copies of messages which were posted on the AOL aviation bulletin board on May 21, 1998, which appear to blame Express One for the message.

In response to these messages, the Carrier issued a written statement to all pilots indicating that the posting was not made by Express One and it was not an accurate statement of the Carrier's position. That posting also notified pilots that the Carrier had asked the Board to assist it in identifying the individual or organization responsible for the posting.

The Carrier also submitted electronic mail messages posted to the same bulletin board which demonstrated that the authors of those messages believed that the Carrier had posted the message at issue and that the message was inappropriate.

In its brief on the issue of the Board's authority to issue a subpoena to a non-carrier, Express One stated that it had at some point after July 1, 1998, "through subsequent legal proceedings, obtained the identity of the individual who made the May 21, 1998 AOL posting." According to that brief, the individual is a member of the IBT who is employed by another air carrier.

DISCUSSION

The Board finds moot the Carrier's request that the Board issue a subpoena duces tecum to AOL. The Board finds further that it does not have authority, under Section 2, Ninth of the Act, to subpoena a non-carrier. Finally, the Board finds that Express One has failed to establish a prima facie case of election interference.

I.

The Carrier's request for a subpoena duces tecum is now moot because the Carrier has, as initially, suggested by the NMB, obtained the identity of the individual who posted a message under the screen name of "ExpresOne," without the Board's assistance. However, because the Carrier asserts that the Board's failure to investigate the identity of that individual constitutes election interference, the Board will address its authority to issue a subpoena to a non-carrier.

Section 2, Ninth, of the Act, 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. Section 2, Ninth provides further that, the Board is "shall have access to and have power to make copies of the books and records of the carriers to obtain and utilize such information as may be deemed necessary by it" to investigate representation disputes and to "certify" the results.

Neither Section 2, Ninth, nor any other section of the Railway Labor Act includes an express grant of subpoena authority. The Act provides the Board with access to and copies of carriers' books and records in order to properly investigate representation cases. This authority, however, is limited to carriers subject to the Railway Labor Act. AOL is not a carrier by air or rail. Therefore, the Board has no authority to issue a subpoena duces tecum to AOL, or to otherwise seek information from AOL, as requested by the Carrier.

II.

Allegations of election interference are evaluated initially to determine whether a prima facie case has been established. See Representation Manual, Section 14.0. When the record is examined to determine whether the participant alleging election interference has presented a prima facie case, the allegations and evidence are evaluated to determine whether, if true, they might reasonably taint the laboratory conditions. Fox River Valley Railroad, 20 NMB 251, 259 (1993).

The Carrier has failed to establish a prima facie case of election interference. The Carrier relies first upon the Board's failure to issue a subpoena to AOL to assist in Express One's efforts to identify the individual using the "ExpresOne" screen name to make an anti-union statement. Since the Board is without authority to issue such a subpoena, its refusal to do so can not interfere with the election process, or prejudice the Carrier.

Regarding the posting on an AOL aviation bulletin board using the "ExpresOne" screen name, the record reflects that it is a single, isolated incident. In response to employee electronic messages which appeared to blame the carrier for the message, the carrier sent a memo denying and disavowing the posting. Further, the Carrier noted that it had sought the Board's assistance in identifying the individual or organization who posted the message. Additional electronic mail messages allegedly posted on the same bulletin board indicated that the authors of the reply messages thought that the carrier had posted the message at issue and that the message was inappropriate.

The Board finds that the allegations in this case, if true, would not reasonably taint the laboratory conditions. In other words, the allegation that a single communication, apparently posted on an AOL bulletin board under the screen name "ExpresOne" by an individual IBT member employed by another carrier, by itself, reasonably can not be found to taint the laboratory conditions necessary for a fair election.⁽²⁾

CONCLUSION AND CERTIFICATION

Based upon the facts and circumstances of this case, the Board finds the Carrier's request for a subpoena duces tecum to determine the identity of an individual posting an anti-union message on an aviation bulletin board using the screen name "ExpresOne" is moot. The Board finds further that the Carrier's filing does not establish a prima facie case of election interference.

NOW, THEREFORE, in accordance with Section 2, Ninth, of the Railway Labor Act, as amended, and based upon its investigation pursuant thereto, the National Mediation Board certifies that the International Brotherhood of Teamsters has been duly designated and authorized to represent for the purposes of the Railway Labor Act, as amended, the craft or class of Flight Deck Crew Members, employees of Express One International, its successors and assigns.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Mr. Kevin H. Good

Jay C. Counts, Esq.

Mr. Ray Benning

Paula J. Caira, Esq.

1. Eighteen write-in votes for the Air Line Pilots Association and one write-in vote for the IPA.

2. See also Air Wisconsin, 16 NMB 235, 239-240 (1989) holding that due to the "unique power and authority which carriers possess in the workplace . . . effectively identical factual situations involving alleged union vis-a-vis carrier interference may lead to different conclusions."