In the Matter of the
Application of the
alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended
involving employees of
|26 NMB No. 30
CASE NO. R-6568
This decision resolves the allegations of election interference filed by Midway Airlines Corporation (Midway) following the re-run election in this case.
On December 3, 1997, the Association of Flight Attendants (AFA) filed an application pursuant to the Railway Labor Act (RLA), as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute among Flight Attendants, employees of Midway.
At the time this application was received, these employees were unrepresented.
The Board assigned Mediator John Schrage to investigate. As a result of the investigation, on December 18, 1997, the Board found a dispute to exist and authorized an election. Ballots were mailed January 13, 1998, and the count took place February 13, 1998.
Of 130 eligible voters, sixty-two cast valid ballots for AFA. This was less than the majority required for Board certification.
On February 18, 1998, AFA filed a "Motion for Board Determination of Carrier Interference." After an investigation which included review of evidence and arguments submitted by the participants, as well as interviews with the employees and management officials, the Board found that Midway's actions had tainted the laboratory conditions. Midway Airlines Corporation, 26 NMB 41 (October 30, 1998). To restore the laboratory conditions, the Board ordered a re-run election, using its standard ballot and Notice used in interference cases.
The Carrier filed a Motion for Reconsideration of the Board's decision on November 6, 1998. The Board found no basis to grant the relief requested in Midway Airlines Corporation, 26 NMB 123 (December 18, 1998). Ballots were mailed November 9, 1998, and the count took place December 18, 1998.
Of 107 eligible voters, eighty-two cast valid ballots for AFA. This was more than the majority required for Board certification.
Midway filed a "Motion for Board Determination of Union Interference" on December 18, 1998. AFA filed a response on January 5, 1999, and the Carrier filed a reply to the Organization's response on January 7, 1999.
Did AFA's actions taint the laboratory conditions? Whether or not AFA's actions tainted the laboratory conditions, did AFA's actions require restorative action by the Board, and if so, what measures should the Board take?
The Carrier asserts that the Organization "has exceeded the permissible bounds of campaign conduct and tainted the laboratory conditions . . . ." Specifically, Midway alleges that AFA undermined the Board's integrity, in an AFA publication, by "fabricat[ing] a conversation with an 'NMB attorney' and attribut[ing] a blatant misrepresentation of law to this fictional attorney." The Carrier charges further that AFA misrepresented Board policy in its campaign literature. In addition, the Carrier maintains that the Organization littered Carrier property with anti-Midway propaganda, "publishing false rumors of furloughs and intentional misstatements," and filed false charges with the Board that the Carrier did not comply with the Board's order in 26 NMB 41 (1998).
Midway requests that the Board rule that AFA has interfered with employee freedom of choice.
AFA argues that Midway's charges are "frivolous." According to the Organization, the published "conversation . . . [was] with the 'Officer of the Day'" and was reported "accurately and truthfully." Further, the Organization asserts that its statements about Midway were "accurate" and do not constitute interference.
AFA also cites several Board determinations involving the issue of union interference in support of its premise that the Board treats allegations of union interference differently from allegations of Carrier interference. The Organization takes the position that even if the allegations against it were true, "they do not constitute union interference under Board precedent."
FINDINGS OF LAW
Determination of the issues in this case is governed by the Railway Labor Act, as amended, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:
I. Midway Airlines Corporation is a common carrier by air as defined in 45 U.S.C. § 151, First, and § 181 of the Act.
II. AFA is a labor organization and/or 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 determining the choice of the majority of employees, the Board is:
[A]uthorized 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 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 Board's review of the evidence and arguments submitted by the Carrier establishes that, with the exception of those facts outlined below, even if Midway's allegations were true, there is an insufficient basis for the Board to take any action.(1) Accordingly, the material facts pertinent to the issues remaining before the Board are as follows:
I. In the fall 1998 edition of "Midway Messenger," issued by AFA in October 1998, a member of AFA's organizing committee wrote the following:
Recently, a number of you have asked me the same question: Would I lose the recent pay raise and per diem, if the Midway flight attendants vote in AFA?
I was curious too, so I called the National Mediation Board (NMB) in Washington, D.C. looking for the answer. To my surprise, an attorney came on the line. (I shouldn't be surprised - attorneys are about all they seem to have in Washington!) Anyway, the NMB attorney told me, 'No, whatever is in place when you vote, will stay in place. A Company can't punish employees for voting in a union by taking anything away'.
I was relieved and I'm sure knowing that will lift a worry or two off your overworked shoulders. When you think it through, it makes sense. Under the law we have the right to legal representation so the law can't allow employees to be penalized for exercising their rights.
II. On November 12, 1998, the Carrier sent a copy of AFA's publication to Mediator Schrage. Mediator Schrage immediately investigated to ascertain whether an NMB attorney had participated in the conversation reported by the author of the article in question, and what was said during this conversation. After discussing this matter with a number of Board employees, the Mediator concluded that no Board attorney had talked with the AFA representative.(2) The Mediator discovered, however, that a non-attorney employee of the Board had, in fact, talked with the person in question. This individual denied making the statement cited in the AFA publication.
III. In AFA's January 5, 1999, submission, the Organization asserts that the conversation allegedly held with a member of the Board's staff was with the "Officer of the Day." However, AFA has not identified the NMB "attorney" or "Officer of the Day" who allegedly made the statement in question. It is not credible that the AFA representative would have taken down a word for word quote from an NMB employee without also noting the employee's name.
The Board keeps records of telephone conversations held by the "Officer of the Day." A review of the Board's records establishes that the author of the article in the AFA publication called the Board on October 6, 1998. The "Officer of the Day Phone Log" describes the issue of the call as "Re: Midway Airlines - Carrier Interference - Decision pending. Will send decision when issued." The individual who handled this call, who, as stated previously, is not an attorney, contacted the Senior Hearing Officer assigned to the case when the call came in and asked what she could tell the caller about the timing of the Board's decision. Neither the individual who handled the call nor the Senior Hearing Officer recalls any question regarding any other issue, nor did the individual who handled the call recall making the statement attributed to the NMB in AFA's newsletter, or even discussing the topic.
I. The Board frequently has stated that "while the tests for union interference and carrier interference are the same - whether the laboratory conditions have been [tainted] - because of the unique power and authority which carriers possess in the workplace, application of this standard to effectively identical factual situations . . . may lead to different conclusions." United Air Lines, Inc., 22 NMB 288, 318 (1995), citing Air Wisconsin, 16 NMB 235, 239-40 (1989). The Board has applied this principle in cases involving allegations of union interference and found certain campaign activity, when engaged in by an organization rather than by a carrier, is not coercive, as it does "not produce the same effect on employees." Federal Express Corporation, 20 NMB 659, 665 (1993).
II. Generally, the Board has regarded misrepresentations or misstatements about the RLA, Board policy, or the Board itself as requiring some form of response from the Board. For example, in USAir, 17 NMB 377 (1990), the Board found that the Carrier's misstatements regarding the Board's procedures contributed towards a taint of the laboratory conditions and, therefore, the Board ordered a re-run election.
In Long Island Rail Road, 12 NMB 187 (1985), the Board considered allegations of interference filed by one union against another. Prior to the ballot mailing, one of the Organizations had sent a letter to employees which contained a "sample" ballot with the block next to that Organization's name marked with an "X." The Board, while finding an insufficient basis to set aside the election, sent a letter to the employees noting "its history and the importance of its impartiality in the investigation of representation disputes . . . . [in order] to restore the laboratory conditions." 12 NMB 187 at 189.
Other approaches taken by the Board where it has found inappropriate conduct on the part of an organization include a waiver or a reduction of the two-year certification bar contained in Section 1206.4(a) of the Board's Rules. In United, supra, the Board found that ballot collection had taken place at one station, and imposed an 18-month bar. In Fox River Valley Railroad, 20 NMB 251 (1993), the Board waived the certification bar altogether based, inter alia, upon union campaign communications regarding the consequences of voting for representation which "confused" the electorate.
III. Based on all of the facts and circumstances in this case, the Board finds that AFA conveyed information to Midway employees which it inaccurately attributed to the Board. AFA's misstatement, however, did not improperly interfere, influence or coerce employees in their exercise of their protected statutory rights to such an extent that it tainted the laboratory conditions. The Board's investigation shows that a majority of Midway Flight Attendants choose to be represented by AFA and further shows that AFA's majority support does not result from AFA's misrepresentation regarding the Board. Unlike the Carrier's conduct during the first election, discussed fully in Midway, supra, the misrepresentation made by AFA in the re-run election is significantly different from the Carrier conduct in the first election and does not require a re-run election.
Notwithstanding this conclusion, the question of the Board's neutrality has been improperly inserted into the election campaign. The Board is the entity charged with making fair, neutral and impartial determinations in the representation area. The type of inaccurate statement made by AFA suggests that the Board is not neutral and AFA attempts to use this mis-representation to its advantage in the election campaign. While the Board concludes, as noted above, that this misstatement did not affect the outcome of the election, a response by the Board which discourages this type of behavior is necessary to protect the neutrality of the Board and the investigation processes it administers.
In previous cases, the Board has addressed labor organization conduct which impugns the Board's election process, but does not rise to the level of interference, coercion or influence, by adjusting the election bar. United, supra, Fox River Valley, supra. In this case, the Board concludes that the bar contained in Section 1206.4(a) of the Board's Rules should expire after 12 months, rather than 24 months. This sanction is more restrictive than the one in United and less restrictive than the one in Fox River Valley based on the Board's weighing of the relative differences between these cases and the current dispute. Moreover, the Board notes that it will treat future misrepresentations regarding the Board by any participant in a representation matter with increasingly severe sanctions consistent with the facts and circumstances of each case.
CONCLUSION AND CERTIFICATION
Based upon its investigation, the National Mediation Board certifies that the Association of Flight Attendants has been duly designated and authorized to represent for the purposes of the Railway Labor Act, as amended, the craft or class of Flight Attendants, employees of Midway Airlines Corporation. The Board further finds, as the result of AFA's misrepresentations, that the bar period contained in Section 1206.4(a) will expire at the end of one year from the date of today's certification.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Edward J. Gilmartin, Esq.
Ronald C. Henson, Esq.
Marc J. Esposito, Esq.
1. The Board finds that most of the allegations made by the Carrier would not constitute a prima facie case of election interference as outlined in Section [Footnote 1 (Cont. from previous page)]
14.0 of the Board's Representation Manual. Therefore, there is no basis for further investigation on those issues.
2. In a telephone conversation between the AFA representative and Mediator Schrage, the AFA representative informed the Mediator that she could not remember the name of the Board employee with whom she spoke.
25 NMB No. 121
September 22, 1998
Mr. John E. Higgins, Jr.
National Labor Relations Board
1099 14th Street, N.W.
Washington, DC 20570
Re: NMB File No. CJ-6634
Evergreen Aviation Ground
Logistics Enterprises, Inc.
Dear Mr. Higgins:
This responds to your April 27, 1998, request for the National Mediation Board's opinion regarding whether Evergreen Aviation Ground Logistics Enterprises, Inc. (EAGLE) is subject to the Railway Labor Act, 45 U.S.C. §§ 151-188.
This case arose as a result of a representation petition filed by the Transport Workers Union of America (TWU) with the National Labor Relations Board (NLRB). In the petition, TWU seeks to represent EAGLE's maintenance employees which include service mechanics, fuelers, painters, mechanic helpers, ramp service agents, and aircraft cleaners employed at Miami International Airport. The NLRB held hearings on March 12 and 13, 1998, at which EAGLE took the position that it is subject to the Railway Labor Act. TWU asserted that EAGLE falls within the jurisdiction of the National Labor Relations Act.
The Board bases its opinion in this case upon the information provided by the NLRB, which includes the evidence and arguments presented by EAGLE and TWU.
The record establishes that EAGLE provides ground service support at twenty domestic airports, including Miami. EAGLE employees perform aircraft loading and unloading, aircraft cleaning, passenger service, and aircraft/airport ground equipment maintenance for Evergreen International Airlines, MartinAir Holland, Virgin Atlantic, Ecuatoriana and other airlines. EAGLE also employs licensed dispatchers who compute, compile, and prepare flight information for aircraft crews. EAGLE is a wholly-owned subsidiary of Evergreen International Aviation, which is also the parent company of Evergreen Helicopters and Evergreen International Airlines.
For the reasons set forth below, the Board is of the opinion that EAGLE and its employees are subject to the Railway Labor Act.
Where the company at issue is a separate corporate entity that does not fly aircraft for the public transportation of freight or passengers, the National Mediation Board applies a two-part test in determining whether an employer and its employees are subject to the Railway Labor Act, 45 U.S.C. § 181. Quality Aircraft Services, Inc., 24 NMB 286 (1997); Federal Express, 23 NMB 32 (1995). First, it determines whether the nature of the work performed is that traditionally performed by employees of rail or air carriers. Second, it determines whether the employer is directly or indirectly owned or controlled by, or under common control with, a carrier or carriers. Both parts of this test must be satisfied for the Board to assert jurisdiction.
TWU argues that ramp services, cleaning, and ground handling is work traditionally performed by "independent contractor permittees that provide ground service to certain air carriers." However, the Board finds that loading and unloading cargo and baggage to and from aircraft, cleaning aircraft cabins, ticketing and assigning seating, maintenance of ground equipment, and dispatch functions are functions traditionally performed by employees in the airline industry. Quality, supra; Service Master Aviation Services, 24 NMB 181 (1997); Sky Valet, 23 NMB 155 (1996); Federal Express, supra; AMR Combs Memphis, Inc., 18 NMB 380 (1991); Ground Handling, 13 NMB 116 (1986).
An examination of the record before the Board leads to the conclusion that EAGLE is controlled by a carrier or carriers.
TWU argues that EAGLE is not owned or controlled by carriers. According to the organization, EAGLE management at Miami makes all personnel decisions. In addition, TWU asserts that EAGLE employees are paid in checks drawn from EAGLE funds, and are supervised by EAGLE employees. In addition TWU maintains that EAGLE's predecessor at Miami was subject to the jurisdiction of the NLRR.
The record establishes that the degree of control exercised by common carriers over EAGLE employees varies from carrier to carrier. EAGLE ramp employees working with Evergreen International Airlines are subject to Evergreen's standards and the direct control of an Evergreen loadmaster. EAGLE ramp personnel also receive training from carriers, and certain carriers monitor EAGLE's on-time performance. Carrier employees supervise and direct EAGLE employees performing cabin cleaning duties, sometimes directing that the work be re-done. EAGLE's passenger service employees work directly with MartinAir managers at the carrier's Miami ticket counters and gates, use MartinAir equipment, and wear uniforms required by MartinAir.
EAGLE's Vice President of Operations, Kevin Roundtree, testified that the type of work performed by EAGLE employees at Miami is substantially similar to the work performed by EAGLE employees in Indianapolis, Dallas, JFK, and other airports.
Evergreen International Aviation provides centralized payroll services and a central human resources department for all its subsidiaries. Personnel functions for EAGLE employees are centralized in McMinnville, Oregon, the headquarters of Evergreen International Aviation. Personnel files for all the Evergreen companies are consolidated in McMinnville. Payroll checks for EAGLE employees are signed by Delford M. Smith, Chairman of Evergreen International Aviation, Evergreen International Airlines, Evergreen Helicopters, and EAGLE. The President of EAGLE, Brian Bauer, is in daily contact with Smith
EAGLE employees share the same benefits as other Evergreen employees, with the exception of health benefits.
If an airline makes a complaint or recommendation regarding assignment, transfer, promotion, discipline or firing, EAGLE conducts an investigation and ultimately decides the course of action. Recommendations by airlines have resulted in reassignment, further training and/or discharge of EAGLE employees. EAGLE Vice President Roundtree testified at the hearing that there are no instances of EAGLE not discharging an employee when a carrier demands it. The carriers with which EAGLE contracts also are consulted and approve of promotions of EAGLE ramp or cabin cleaning employees to supervisor positions.
When the Board examines whether an entity is controlled by a carrier or carriers, it focuses on inter alia, the carriers' role in the entity's daily operations, and the entity's employees' performance of services for the carriers. Sky Valet, Commercial Aviation Services of Boston, 22 NMB 230 (1995). The Board also examines, inter alia, the carriers' role in employing and terminating employees; the degree to which the carriers supervise the entity's employees; the degree to which the carriers affect other conditions of employment; whether employees are held out to the public as carrier employees; and the degree of carrier control over employee training. Quality, supra; Ogden Aviation Services, 23 NMB 98 (1996).
An analysis of the record in light of the foregoing leads to the conclusion that EAGLE and its employees are subject to control by air carriers. Although EAGLE hires and fires its employees, carriers have effectively recommended termination of employees and play a significant role in EAGLE's promotion practices. Airline personnel monitor the work of EAGLE's employees on a regular basis. EAGLE's ramp employees at Miami work under the direction of Evergreen International Airlines employees. The Miami-based passenger service employees who work for MartinAir are held out to the public as MartinAir employees.
Based upon the record in this case, the Board is of the opinion that EAGLE and its employees are subject to the Railway Labor Act. This decision may
be cited as Evergreen Aviation Ground Logistics Enterprises, Inc., 25 NMB (1998).
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Peter J. Petesch, Esq.
Mark Richard, Esq.