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. 79
CASE NO. R-6635
This decision resolves the allegations of election interference filed by the Communications Workers of America (CWA or Organization) following the ballot count in this case.
On October 8, 1998, CWA filed an application pursuant to the Railway Labor Act (AAct@ or ARLA@), as amended, 45 U.S.C. ' 152, Ninth, alleging a representation dispute among Passenger Service Employees of American Airlines, Inc. (American or Carrier). This case was docketed as NMB Case No. R-6635.
At the time the application was filed, these employees were unrepresented. The Board assigned Investigator Joyce M. Klein to the case. On October 19, 1998, the Board found a dispute to exist and authorized an all mail ballot election. Ballots were mailed November 12, 1998, and the count took place December 15, 1998. The results of the count were that of 14,177 eligible voters, 5,793 cast valid votes for representation. This was less than the majority required for Board certification.
CWA filed allegations of carrier interference on December 17, 1998, pursuant to Section 14.0 of the Board=s Representation Manual. On December 18, 1998, the Board established a schedule for filing further submissions on the issue of interference. CWA supplemented its initial filing on January 5, 1999, and the Carrier filed its initial response on January 20, 1999. The Organization=s rebuttal was filed on January 27, 1999, and American=s sur-rebuttal was filed February 3, 1999.
After reviewing the participants= submissions, the Board determined further investigation was necessary. Therefore, on April 6, 1999, the Board requested additional information from the Carrier. Both participants filed responses on April 13, 1999. Final comments from both participants were filed on April 27, 1999.
Did American=s actions taint the laboratory conditions the Board requires for a fair election?
CWA asserts that American conducted aAfierce and systematic campaign designed to thwart its employees= organization efforts.@ Specifically, CWA alleges that the Carrier interfered with employee free choice through the following activities:
1(a). Barraging employees with anti-union propaganda in the form of letters from Carrier officials, newsletters and a videotape mailed to employees= homes. CWA asserts these materials contained inaccurate and misleading information about the Organization, the RLA, and Board procedures.
1(b). Indoctrinating employees in face-to-face meetings where Carrier officials provided misleading and inaccurate information about CWA, its dues, the RLA and Board procedures, and encouraged employees to vote against the union.
2. Interrogating known union supporters and engaging in surveillance of pro-union employees.
3. Engaging in discriminatory enforcement of American=s ANo Solicitation Rule,@ as well as other workplace rules, and denying CWA access to traditional employee forums.
4. Refusing to reprimand anAacting supervisor@ for assault on a pro-union employee and providing the alleged assailant with defense counsel to Amuzzle other employees in favor of self-organization.@
5. Involving third parties in attempts to suppress organizing efforts.
6. Establishing new employee committees and changing the scope of existing ones after the Carrier had knowledge of the organizing drive, as well as using the committees to coerce employees regarding terms of employment, by, among other things, expanding travel benefits.
7. Granting pay increases during the time in which the Board has stated the status quo must be maintained.
8. Coercing employees on a system-wide basis through a number ofAlocation-specific@ incidents.
The Organization requests that the Board conduct a re-run election using aALaker@ ballot, and provide home addresses to the union. A ALaker@ election involves the use of a Ayes@ or Ano@ ballot. No write-in space is provided, and the majority of votes actually cast determines the outcome of the election.
The Carrier takes the position that it did not conduct an anti-union campaign, and that CWA=s Abaseless allegations . . . should be rejected.@ According to American, application of the Board=s Atotality of the circumstances@ standard demonstrates that, taken separately or as a whole, the Organization=s allegations Aare either factually unsubstantiated, legally flawed, or both.@ Specifically, the Carrier denies CWA=s contentions as follows:
1(a). American maintains it has a First Amendment right to communicate with its employees. Accordingly, the Carrier asserts that the purpose of its campaign materials was to provide accurate information.
1(b). TheAinformational@ meetings it conducted were voluntary, and the statements made in those meetings were accurate.
2. There was noAinterrogation@ of known union supporters. Instead, there was a Amarketing research@ survey conducted among 40-50 Acustomer-contact@ employees working in each of American=s Reservations Offices. These employees were selected at random, participation was voluntary, and responses were confidential. American asserts further that it specifically trained its supervisors to avoid certain conduct during a union campaign which included surveillance.
3. The Carrier contends it allowed union supporters to wear pro-union insignia, enforced all work rules in a non-discriminatory manner, and applied its rules on solicitation even-handedly. Further, American maintains that it permitted employees to post union literature on bulletin boards and to be distributed in certain areas.
4. The Carrier admits to providing counsel to theAacting supervisor@ charged with assault, but maintains it was required to do so for indemnification purposes.
5. American asserts that CWA=s allegations regarding third party assistance are either factually unsubstantiated or Alegally insufficient to prove carrier interference.@
6. The Carrier contends that itAscrupulously adhered to the NMB criteria with respect to employee committees@ in that new committees were created before CWA=s organizing drive began, existing committees did not change, and benefits were not expanded through the use of the committees. Further, American maintains that it never claimed that these committees were a substitute for collective bargaining.
7. The Carrier asserts that any pay increases were pre-planned and applied to a limited number of employees.
8. TheAisolated incidents@ alleged by CWA do not constitute system-wide coercion.
American requests the Board to dismiss CWA=s application based upon the election results.
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:
American Airlines, Inc. is a common carrier by air as defined in 45 U.S.C.' 181 of the Act.
CWA 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: ARepresentatives . . . shall be designated . . . without interference, influence, or coercion.@
45 U.S.C.' 152, Fourth, gives employees subject to its provisions, Athe 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.
STATEMENT OF FACTS
CWA Organizational Activity
According to CWA, its organizational activities became apparent in October and November 1997. As evidence, the Organization has submitted a copy of a document advertising anAinformation session@ with CWA on November 18, 1997, at the Newark Airport Sheraton Hotel. CWA has also provided evidence that similar organizing activity was taking place at American=s stations at Dallas/Fort Worth (DFW), Miami (MIA), Austin (AUS), Los Angeles (LAX), and Philadelphia (PHL) by late October 1997. In addition, a DFW-based employee has submitted a statement that the International Brotherhood of Teamsters=(IBT) drive ended in August 1997, and that in late September 1997, employees made Aa tentative approach@ to CWA. According to this individual, Aby late October we were distributing and/or posting campaign materials such as pins, election request cards, and other literature openly at airports and reservations offices.@ Two employees state they started wearing CWA pins on October 7-8, 1997.
CWA wrote letters protesting certain actions on the part of American management to Anne H. McNamara, Senior Vice President and General Counsel of AMR Corporation, on January 29 and February 9, 1998. CWA filed its application with the Board on October 8, 1998. On March 10, 1998, Morton Bahr, President of CWA,Aofficially notif[ied]@ the Carrier of its organizing activity.
Carrier Campaign Activity
Written Communications and Videotape
CWA has submitted copies of various letters from Carrier officials to supervisors and employees, newsletters disseminated throughout the system, and a videotape sent to employees= homes, in support of its assertion that American engaged in a coercive campaign. According to the Organization, these communications violated the Board=s rules in terms of their Asheer volume@ and Acontent.@ Among the letters which the Organization cites as objectionable is one dated February 19, 1998, thanking approximately 145 supervisors for their help in stopping the IBT organizing drive. Enclosed with the letter was a $50 gift certificate. The letter, from Carolyn Wright, Vice President of Reservations, and Mike Gunn, another management official, also apprised the supervisors that CWA was Astarting an organizing effort@ and promised support to help the supervisors Acommunicate with@ their employees.
On October 9, 1998, the day after CWA filed its application, American President Don Carty wrote to employees thatAthe decision you have before you . . . is one we all will have to live with for a long time. Deciding on union representation is much like deciding whether to marry . . . a union can be very difficult to divorce.@ Carty also informed employees that Ano unionized large group at a major airline has ever successfully voted to become non-union again.@
Wright wrote to employees on October 20, 1998, covering a number of issues relating to the union campaign. Included in Wright=s letter were such statements as Anow is not the time to add a third party to our relationship . . . .@; A[v]iolence on behalf of the CWA, as we understand occurred recently during the US West and SNET strikes, will not be tolerated . . . .@; and Agiven the lack of a formal mechanism to decertify a union under the RLA, this election . . . could impact your entire career at American Airlines.@ Wright also suggested the employees contact their supervisors if they had any questions, and advised them to exchange information through bulletin boards, newsletters, a carrier hotline, and a web site.
Daniel P. Garton, Senior Vice President, Customer Services, wrote a similar letter to employees on October 21, 1998. Garton cited,Athe ad hoc committee composed of all employee groups that advised us on our travel program as a perfect example of the positive changes we are making together.@
American also disseminated several newsletters to employees, titledAyour own decision,@ and communicated to managers through a newsletter titled ALeadership Today.@ CWA has provided copies of approximately eight such communications dated August, October, and November 1998.
The October 1998, edition ofAyour own decision@ addresses CWA=s efforts to organize certain employees of American Eagle. CWA had filed an application with the Board seeking to represent APassenger Service Agents@ of American Eagle on September 18, 1998. The Organization subsequently withdrew its application, requesting that it be Awithout prejudice.@ In American Eagle Airlines, 26 NMB 11 (1998), the Board dismissed CWA=s application based upon the withdrawal, and noted that as Ano evidence had been presented to warrant a deviation from Board procedure and policy,@ thus, the Board=s one-year dismissal bar, as contained in Part 1206.4(b) of the Board=s Rules, would apply.
In its newsletter, American characterized CWA=s withdrawal as Aevidence of CWA=s lack of familiarity with and experience in the airline industry,@ since CWA had Afiled for an election by . . . less than half of the work group.@ According to the newsletter, although ACWA tried to argue that it should not be barred for one year . . . . [T]he NMB has strict rules on union filing for a second time after withdrawing applications.@
The newsletter also provided information regarding NMB election procedures, including the advice,Athe best way to avoid a union is to tear up a ballot.@
In a November 1998, edition ofAyour own decision,@ American refers to CWA=s promises as Aempty,@ and discusses several alleged incidents in support of its assertion of Aa recent escalation in increasingly aggressive and heavy handed behavior from CWA organizers and supporters.@
Another edition ofAyour own decision,@ also issued in November 1998, focuses on the complexities and length of the collective bargaining process. This edition contains such statements as ACWA may have things on its agenda that are completely different than . . . employees are expecting . . . like union security provisions . . . or dues check-off provisions . . . or super-seniority.@ (Emphasis in original). The newsletter also contains stories about CWA fining members for Adual unionism@ and about a large CWA local firing one of its own secretaries for trying to organize a union.
Other topics covered by the newsletter include the alleged ramifications of recent CWA strikes (violence, employee wage loss), CWA officers= salaries listed under the question Awhat will your dues pay for ???@, a reference to a newspaper article about CWA owing money to its members, and the suggestion that employees ask CWA to put its promises in writing.
American also mailed a videotape to the homes of its Passenger Service Employees after the Board authorized the election. The videotape contains statements consistent with those in the newsletters. Examples include:A[CWA] seems to be scrambling to make up for membership losses . . . .@; ACWA is a new and inexperienced player in the airline industry@; and
ACWA . . . historically . . . is a telephone workers union . . . [and] is finding that not every business operates like the telephone company.@ Similar to other Carrier campaign communications, there are repeated references to CWA=s lack of experience in the airline industry as demonstrated by American Eagle, supra, the Organization=s apparent lack of understanding of the RLA, CWA=s interest in obtaining dues, the difficulties of decertification under the RLA, the Along, complicated, cumbersome process@ of bargaining under the RLA, and CWA=s Areputation . . . as a militant, disruptive union.@ There are also many positive references to American=s top management and the Apositive atmosphere@ at the Carrier. Finally, there is a discussion of the election, including the dates, the fact that there is not a Ayes or no choice@ and Aa risk that almost any returned ballot might count as a vote for representation@ hence the advice A[t]he surest way to absolutely vote >no= is to not vote at all. Tear up the ballot and throw it away so no one can send it in for someone else.@ The videotape ends by characterizing the NMB=s voting procedures as Aunusual,@ but assures employees that the Aballots are totally confidential . . . [a]nd no one from the union or American knows who mailed them in or who didn=t.@
The Organization also asserts that American waged its coercive campaign through meetings with employees in which Carrier officials attempted to influence the employees against the union and promulgated false and misleading information about the union and the NMB. In support of its assertion, CWA has provided statements from several employees about meetings which were held in November 1998.
According to one of these individuals, on November 9, 1998, she attended anAinformational@ meeting where the Adoor was locked.@ During this meeting, two management officials allegedly made such statements as: AThere is an independent company called a National Mediation Board. They just get the cards and count them without opening them because your name is signed on the outside of the envelope and they glance to see if it is signed - it is counted as a vote Yes.@ The individual asserts further that the managers encouraged employees to tear up their ballots, disparaged CWA and stated the union would have employees fired for not paying dues, that CWA only wanted employees= money, that the union would take away flextime, that it could sue employees for crossing the picket line, and other Amisinformation.@
In response to this allegation, American has provided a declaration from Jennifer Hire, Group and Meeting Travel Supervisor at the Southern Reservations Office (SRO). According to Hire, the November 9, 1998, meeting was publicized asAinformational,@ and the door was closed, not locked, Ato reduce the noise.@ Hire states that the format of the meeting was Question and Answer. Hire asserts she provided information about the NMB=s voting procedures, that the ARailway Labor Act supersedes any right to work laws and you could be terminated if dues are not paid.@ Hire also asserts that an audience member stated flextime would go if CWA were elected. AI stated that no one could guarantee your job. No insinuation was made regarding getting rid of any employee. . . . I did state that >both [the other supervisor] and myself feel strongly that Reservations Agents do not need a third party representing them.=@
Two employees have submitted statements regarding meetings held on November 4 and 7, 1998, respectively. In both instances the individuals assert that the supervisors conducting the meetings told employees to tear up their ballots and made false and misleading statements about CWA dues assessments. The Supervisors have submitted declarations in response, in which they state they advised employees to tear up their ballots if they wished to voteANo,@ and that they read directly from Article VI, Section 3a of the CWA constitution when discussing CWA dues assessments.
Several other individuals have submitted statements in which they assert that American Managers and Supervisors held meetings during which they made misrepresentations about CWA dues and/or disparaged CWA. Included among the allegations are:
1. In an October 29, 1998, informational meeting at the SRO, two managers stated thatAemployees would pay dues while a contract was being negotiated.@ The Supervisors, Carol Gaston and Liz Nyquest, also purportedly said they Adidn=t want a union . . . and that everything that American could offer would be frozen . . . . [W]e would probably not see a raise in 1999 and . . . profit sharing would probably be frozen also . . . it would be hard to move to management.@
Gaston and Nyqyest deny making most of these statements. In their declarations they maintain that they told employeesAthe choice was completely theirs,@ but they Adid mention that [they] felt that reservation agents did not need third party representation.@
2. In another meeting held at the SRO on November 16, 1998,Asupervisor Edith Watts@ allegedly stated: AI have had a court case against CWA that has been going on for 12 years. We don=t think you need a union. It is against the union constitution to decertify a union after it has been voted in. US Airways agents have been paying dues for about one year and they do not have a contract yet.@
Edith Watts denies making any statements about a) a court case, b) decertification, and c) US Airways agents paying dues.
3. Several other employees have submitted statements about alleged misrepresentations regarding CWA dues made by American=s supervisors at Ainformational@ meetings in the SRO. A review of CWA=s submissions indicates that on October 26, 1998, an agent attending a meeting made the statement that AUSAir agents were already paying their dues without a contract.@ The supervisor Aagreed that it was possible.@ The other six individuals who submitted statements did not identify the supervisors or managers who allegedly made statements at these meetings. Accordingly, American did not submit declarations to rebut those statements.
4. According to an employee who attended a meeting on November 18, 1998, two supervisors, Linda KubiakAand a blonde woman,@ told the attendees that even though there was no contract at US Airways, CWA was soliciting employees Ato voluntarily pay dues.@ The individual states further that Aboth supervisors agreed that a very similar situation was quite likely to occur at American if the CWA got in.@ This individual also states that Kubiak identified the employee as a union supporter, thus placing her Aprivacy and safety at risk publically@ because of the Amixed feelings and high emotions@ in the workforce.
Kubiak has submitted a declaration stating that when she was asked about dues, she replied thatAaccording to the information we had, she would not need to pay dues until an actual contract was signed.@ When CWA=s declarant and another agent had an Aexchange@ about strikes, Kubiak states she said to both of them, Ayou obviously have strong opinions . . . [however] it=s almost time for the meeting to end, so does anyone else have any questions?@
Misleading Information About the Board
and the Board=s Procedures
The Organization also alleges that American disseminated misleading information about the Board and the Board=s procedures. CWA focuses on three incidents: 1) the Carrier=s characterization of what happened with CWA=s application covering American Eagle employees; 2) the alleged introduction of a Carrier attorney as an employee of the NMB to groups of employees; and 3) statements contained in the Carty and Wright letters of October 1998 and the videotape, discussed in Part B above, regarding the alleged permanent nature of Board certifications.
According to the Organization, the Carrier advertised the fact that CWA withdrew its application on American Eagle as evidence of the Organization=s inexperience in the airline industry, and stated that the Organization would not be able to file a new application for another year. Although CWA asked that its dismissal be Awithout prejudice@, the Board imposed the standard one-year dismissal bar, pursuant to 1206.4(b) of the Board=s Rules. See American Eagle Airlines, 26 NMB 11 (1998).
The Carrier has furnished a declaration from a staff attorney for American in which he states he introduced outside counsel, Sheldon Kline, as a lawyer for American and a former employee of the Board. In a memorandum from Kline toAAttendees at the Voluntary Meeting of the American Airlines Agent Advisory Board on October 28, 1998,@ a footnote identifies the author as someone who was on the Board=s staff, and Aintimately familiar with NMB election processes.@
The statements in question in the videotape and the Carty and Wright letters are discussed above in Part B.
Interrogation and Surveillance
The Organization alleges that two of three employees whose pictures appeared in a CWA newsletter wereAcoercively interrogated.@ According to CWA, the fact that known union supporters were singled out was intimidating and Ahad a chilling effect.@
One of the individuals has submitted a letter stating that on March 12, 1998, she was asked toAattend a meeting with other SRO employees and an outside consultant to discuss work life at American.@ The session turned out to be a Aone on one@ meeting with the consultant who advised the employee Ahe was interviewing employees randomly selected . . . . [M]y comments would be confidential and anonymous.@ The consultant informed the employee that her Aname was given to him.@
Dr. Robert Berrier, theAMarketing Research Consultant@ who conducted the sessions, has submitted a declaration, stating in part:
I have worked on various occasions for American Airlines for the past ten years. The research was part of American
According to Berrier, the method of selection wasAeight to ten participants were invited from each Reservations office. Invitation was basically random . . . . Employees were advised of their selection by their supervisors and were asked if they were willing to participate.@
All of the employees were informed that the interviews wereAcompletely voluntary and confidential.@ Berrier states further that:
[N]o questions were asked regarding the union . . . . Employees who raised questions related to the union campaign were informed that the interview was not to discuss these issues. No questions were asked as to whether or why an employee was happy or unhappy or what kind of changes they would like made.
In response to the Board=s request that American provide supplemental information regarding the employee interviews, the Carrier asserts that A[d]iscussions . . . to conduct an employee survey began in March 1997 and . . . an implementation plan was developed by February 1998.@ The Carrier also asserts that employees at each reservation center were sent a letter informing them of the survey process. American has provided a copy of a letter, dated March 16, 1998, to Aall [Central Reservations Office] CRO Personnel@ as evidence of this assertion. The letter informs employees of Aan in-depth research project@ which was to be Avoluntary@ and Aconfidential@ and designed Ato enhance employee communications.@
The Carrier has also submitted a copy of the survey. Statements were phrased positively or negatively, and respondents were asked to either agree or disagree on a scale from one to ten. Examples of these statements include:
Your managers create a positive work environment;
You are paid fairly for the type of work you do;
Sometimes you are made to feel inadequate or a failure by your manager or supervisor;
You receive good health benefits at American Airlines;
People in your station [office] are treated the same regardless of ethnicity, gender, or other diversity issues;
American Airlines is committed to excellent customer service;
In its position statement of April 27, 1999, CWA contends that American did not send a letter to all employees and submits declarations from eight employees at various stations in support of this contention.
The Organization also maintains that pro-union employees were subject to surveillance. According to CWA, the Carrier either engaged in, or gave the impression of, surveillance of employees in favor of self-organization. CWA cites the interrogation of the pro-CWA employees at the SRO in March 1998 as an example of American=s illegal activity. In addition, the Organization asserts that Carrier officials Amonitored and attempted to disrupt@ encounters between employees and union organizers. CWA has submitted declarations from four individuals, as well as a copy of an e-mail sent by a DFW-based management official.
Two of the individuals provide evidence concerning incidents at the Eastern Reservations Office (ERO) in November 1998. The employees state that on November 7, 1998, one of them, who is a Reservations Agent, was approached by another employee (anAacting supervisor@), while speaking with a CWA organizer. According to the declarants, subsequently, Al Stimpson, the ERO supervisor, delegated a supervisor to Afollow@ the Agent and another supervisor to pull the Agents= Astats for review.@ In addition, the Agent states further that approximately one week later the ERO supervisor was Astaring@ at the Agent while she was speaking to co-workers and a second supervisor sat at her table in the lunchroom. On another occasion, this supervisor purportedly was looking for Athe Agent that was organizing.@
Both declarants assert that on November 19, 1998, Supervisor Jana Ecklin walked through the work area holding an NMB ballot.
In response to these allegations, American has submitted declarations from the supervisors named in the CWA declarations, as well as one from Martha Lien, Manager, Policy Planning and Administration - Employee Relations. Lien states that she was assigned responsibility for,
[R]eviewing the Carrier
Lien asserts that she trained American=s managers and supervisors in the ADOs AND DON=Ts INVOLVING UNION ORGANIZING.@ These guidelines were reduced to writing and the Carrier has provided the Board with the November 5, 1998, version. Item (k) under the ADOs AND DON=Ts@ states: ADo not keep union meetings or union supporters= union activities under surveillance or create the impression of surveillance.@
Stimpson has submitted a declaration denying that heAfollowed@ or Astared@ at the Agent. The individual who pulled the Agent=s Astats@ while providing vacation relief coverage for the Agent=s regular supervisor states she did so Ain the normal course of my job.@ Similarly, the supervisor alleged to have sat in the lunchroom for purposes of surveillance and to have searched for an Aagent@ who was organizing denies anything other than interacting with the employees in the normal course of business.
ERO Supervisor Jana Ecklin states that an employee attempted to hand over her ballot, but Ecklin refused. According to Ecklin, at that point, another employee took the ballot, ripped it up, and threw it in the trash.
CWA also has submitted a copy of an e-mail from the Manager of Passenger Services at DFW as evidence of the Carrier=s surveillance of pro-union employees. The e-mail, dated March 16, 1998, from Greg Paglini to Customer Service Managers, discussed a Amanned table@ at which an employee was disseminating CWA literature. The e-mail identified the employee in question. Paglini has provided a declaration stating,
As I recall, we had not determined prior to that time whether CWA tables were allowed to be set up in the agent break room.
Consistent with past practice regarding vendor tables, we decided not to allow CWA tables in the break rooms. I sent this e-mail . . . to clarify the company
Discriminatory Enforcement ofANo Solicitation@
Rule; Denial of Access
TheANo Solicitation@ Rule
The Organization asserts that American engaged in discriminatory enforcement of itsANo Solicitation@ Rule, as well as other workplace rules. In addition, CWA contends that the Carrier refused to grant the Organization equal access to traditional employee forums. As evidence of these assertions, CWA cites an e-mail from a Carrier official, dated January 27, 1998, stating employees could not wear CWA lanyards, but could wear, for example, Nike lanyards. On February 5 and 6, 1998, certain supervisors instructed employees to remove CWA ID holders. CWA also contends that the Carrier directed new hire instructors not to wear CWA pins, but permitted them to wear and distribute anti-CWA pins.
In response to these specific allegations, the Carrier has provided declarations from various Carrier officials, including Martha Lien. According to Lien, in February, 1998, American re-examined its policy on lanyards and ID holdersAand concluded that so long as they did not create a safety hazard . . . and did not contain disparaging or inflammatory injunction,@ they could be worn. Lien states further that this information was disseminated to managers and supervisors. Four other Carrier officials, including a Division Manager at the Southwestern Regional Office (SWRO) and a Training Supervisor, state, inter alia, that while Aa few@ new-hire instructors wore Ano CWA@ tags, they were informed that they could not express their opinions on company time. The managers and supervisors also state that Astudents asked the instructors where they could obtain >no union= pins and . . . the instructor followed up . . . during a break . . . . [P]ro-union buttons and lanyards were being passed out during . . . class by pro-union supporters.@ According to the Carrier, these individuals were advised they could pass out lanyards as long as class was not in session.
Denial of Access to Traditional Employee Forums
CWA has submitted declarations from several employees who assert that either they were forbidden to post literature on bulletin boards or were givenAextremely limited space@ to do so, that Carrier officials removed literature from employee mail boxes or that employees were not allowed to set up pro-union tables in break rooms. In addition, one individual states that in February 1998, she was advised to stay away from a CWA organizer. According to the Organization, these incidents violated a March, 1998, American policy statement that employees could engage in union activities in non-work areas during non-work hours.
Attached to Lien=s declaration are copies of American=s rules governing AVendor Access to Employees@ at eleven locations where there are Passenger Service Employees. Although certain aspects of these rules vary from station to station, a review of the record establishes that, at each location, there are company bulletin boards which are not for employee use and employee bulletin boards which can be used Afor the exchange of information and advertisements.@ At nine of these locations, according to evidence provided by the Carrier, no prior authorization is required to post materials. At the SERO in Raleigh/Durham, NC, certain bulletin boards are restricted Afor the use of the employee Recreation Committee . . . . Posting of information is limited to two weeks and is subject to approval through the administration.@ At the SWRO in Tucson, AZ, the Supervisor of Administration coordinates authorization to post materials. At the Seattle-Tacoma International Airport (SEA-TAC), one of the employee bulletin boards Awas filled primarily with CWA unionization information.@ At JFK International Airport (JFK), a communications room bulletin board bore a Aheader@ entitled ACWA Info Center.@ At DFW, according to the Carrier=s submission, some boards were Asolely dedicated to the CWA.@
Employees at LAX have asserted that their space to post on bulletin boards wasAextremely limited.@ The customer service manager at LAX admits denying a request for a dedicated CWA bulletin board, but states he permitted CWA materials to be posted on employee boards. In addition, the Manager allowed CWA literature to be placed on a window shelf in the ATO break room and on a table in the agent break room.
At MIA, union literature was permitted on employee bulletin boards but removed from walls and doors.
An individual based in Chicago asserts that a Carrier official removed union literature from employee mail boxes on July 11, 1998. The manager responds that it is Carrier policy to prohibit non-company materials becauseAmail boxes@ are actually Amail files@ with limited capacity, and she had received complaints about excessive materials in the mail files.
Another employee, who is based in the CRO, has submitted a letter stating that union literature was not permitted in the break rooms or lunchrooms at that station. The manager at that station maintains that while she did inform employees they could not leave stacks of literature in lounges, they could distribute materials in the lounges or the lunchroom. A review of the vendor rules for the CRO establishes thatAdistribution of non-business related material is . . . restricted in this area.@
At each station, management reservesAthe right to remove inflammatory, derogatory, and offensive materials.@ Each location also has vendor rules which apply to Avendor solicitation@ and Avendor sales,@ as well as rules applying to the use of the cafeterias. For example, at the CRO, Avendors are allowed to solicit and distribute information in a designated hallway. Reservations and fee collection for these tables are administered by the employee Recreation Club.@ Except for Carrier-sponsored events, no vendor solicitation is permitted in the cafeteria. The Carrier has submitted evidence that at the CRO, CWA requested to set up vendor tables ten times between March 4 and November 23, 1998. (CWA has set up informational tables in January, February, and April 1999.)
At DFW, LAX, MIA, and Chicago=s O=Hare International Airport (ORD), the Organization did not request to set up vendor tables in the designated areas. At the ERO, CWA reserved and used a vendor table seventeen times during the campaign. There is no vendor access at JFK or SEA-TAC. CWA reserved vendor tables twenty-three times between June 1998 and December 1999, and reserved tables thirty times in the cafeteria. At the SRO, CWA set up tables on forty-two different days. At the SWRO, the Organization reserved tables twice a week from July 1998 to December 1998.
Assault of a Union Supporter
According to the Organization, on July 27, 1998, anAacting supervisor@ at the SWRO assaulted a pro-union employee. The employee, who was not on duty at the time, was videotaping other employees at the ACWA informational table,@ when the Aacting supervisor@ informed the employee she was Anot allowed to videotape in the office.@ According to the employee=s declaration, the Aacting supervisor@ tried to grab the camera from her hand and allegedly assaulted her. This individual further asserts that later that day her manager ordered her to turn over the videotape or she would be terminated.
Three other employees have provided statements to the Board generally corroborating the employee=s version of this incident. The employee later filed criminal assault charges. The case was prosecuted and the defendant was acquitted on April 8, 1999. American provided counsel for the defendant. According to the Carrier, it also conducted its own investigation into the incident and Acounseled@ the Aacting supervisor.@
CWA maintains that the Carrier provided defense counsel because it intended toAmuzzle other employees in favor of self-organization.@ The Carrier asserts that it provided counsel consistent with Article VII of American=s By-Laws, which deals with indemnification. According to the Organization, American=s Indemnification Clause did not require the Carrier to provide counsel and Ain reality the Carrier=s payment of . . . legal fees was a reward for [the >acting supervisor=s=] efforts.@
Third Party Assistance
CWA alleges that certain incidents which occurred in July, November, and December, 1998, also suppressed organizing efforts. According to the Organization, the Carrier=s attempts to involve third parties interfered with the election. Both CWA and American have submitted evidence on this issue.
According to the Organization, in July 1998, a Kansas City-based employee and a CWA organizer announced they would be sitting in the Burger King in the terminal to discuss the union drive. When the Station Manager became aware of the situation, she contacted Burger King. The CWA organizer states that the Burger King Manager informed him that the Station Manager requested the individuals be ejected from the restaurant. When the individuals pointed out they were ordering food, they were permitted to stay.
The Station Manager admits contacting Burger King to advise them of the organizing of the employees.
The other incidents at issue involve advertisements in airport dioramas. Dioramas advertising the CWA campaign were removed from the airports at SEA-TAC and JFK after management officials contacted the airport authority and/or the advertising agency. The Carrier officials in question state they initiated the contact out of concern over CWA=s use of American=s color scheme and design. At two other stations, ORD and MIA, dioramas were not removed after Carrier officials contacted airport authorities.
The Organization asserts that American tainted the laboratory conditions by establishing new employee committees and/or expanding the scope of existing committees, after the Carrier had knowledge of the organizing drive. CWA argues further that the Carrier used these committees to coerce employees with regard to terms of employment.
The Carrier has submitted declarations in which various management officials state that, in September 1997, when it appeared that the IBT organizing drive among Passenger Service Employees had ended, American appointed a group of managers toAdevelop a modified employee committee structure and format.@
American has also submitted evidence in the form of draft documents generated by management officials in September 1997. Included in a draft dated September 12, 1997, under the heading Communication, is the statement:ADescribe new forum at Fall Leadership Conference in October. Advance copy of agent letter to all CSM=s and GM=s.@
During the Carrier=s Fourth Annual Fall Leadership Conference held October 7-9, 1997, at DFW, Don O=Hare, Vice President of Field Services, announced that the advisory group process, already in place, was being revised. The conference was attended by approximately 1,300 persons from Customer Service. On November 7, 1997, all managing directors and general managers were notified of the Aexpanded employee committees.@ Approximately five days later, local managers announced the changes to the employees. According to one of the declarants:
A number of stations . . . had existing agent committees for at least a year prior to January 1998 . . . the new committee format provided agent representatives with an opportunity to meet with senior management to discuss operational issues and other issues of importance to the company. The system committees were essentially in place at various stations across American
On June 10, 1998, the Senior Vice President of Corporate Services announced company-wide changes to the employee travel program. According to the Vice President, heAheld special meetings . . . with . . . employees in every job class and from all around the system. I also met with the Reservations Employee Advisory Council, the Agent Advisory Board [employee committees] and union representatives.@
CWA maintains that this announcement was timed to coincide with the union campaign.
On January 14, 1999, approximately one month after the election, the Managing Director Customer Service sent a letter to DFW Passenger Service Agents, in which he discussed employees= expressed interest in changes to the open relief bidding process. Since the election was underway at that time,
[T]he agent group worked through the Agent Advisory Council for Bid Rules and Manning to gain a consensus opinion . . . . The agent survey revealed that . . . 86% wanted to change the open relief bidding process . . . . Since the NMB process is still continuing, American is still in what the NMB calls
Laboratory conditions means the company=s hands are tied as it relates to making changes to pay, benefits, and working conditions that were not already planned or which are intended to meet competitive conditions.
CWA also alleges that the Carrier manipulated the agent advisory process by circulating ballots for elections to the committees at the same time as the Board=s election. The Carrier has submitted evidence that each agent advisory Board determines the timing of its elections.
Pay and Benefit Increases
As stated previously, in June 1998, travel privileges were expanded for all Carrier employees.
In July and August 1998, American raised the top pay rate for reservations and airport agents from $12 to $13 per hour. CWA asserts that this alteration of wages and working conditions constitutesAimproper influence.@
The pay increase applied to 102 of the approximately 14,000 employees in the craft or class. The Carrier has provided evidence that there was a three-year, performance-based pay plan in effect covering 1997, 1998, and 1999. American has committed to a minimum hourly increase of fifty cents per hour, following an analysis of market trends, competition, and corporate profitability. A general increase went into effect in May, 1998. However, employees hired after December, 1996 are subject to a different hourly rate.
According to Martha Lien:
In 1998, the Company conducted an
In its April 13, 1999, submission, CWA provided evidence that the Carrier had granted an additional pay increase scheduled to take effect May 8, 1999. In response, the Carrier has provided a declaration from Carolyn Wright, Vice President of Reservations, City Ticket Offices and Ticket Delivery Service, stating that theAincrease was scheduled as part of the three-year pay plan announced in October 1996.@ According to Wright:
Moreover, American has consistently provided an annual pay increase to these employees based upon the Company
Wright has provided documentation in support of her declaration.
Isolated Incidents and Post-Election Conduct
CWA takes the position that a number of incidents, whileAlocation-specific,@ demonstrate system-wide coercion. The Organization argues that numerous episodes cited in its position statements occurred at the five Reservations offices where the majority of the employees in the craft or class work.
In its submissions of April 13 and 27, 1999, CWA also provided statements from individuals regarding such matters as the cessation of the Quality Step Increase (QSI) in March 1998,Amultiple, weekly@ post-election meetings at which Carrier officials allegedly made additional anti-union comments, and post-election denial of access.
In response to CWA=s allegations regarding the QSI changes and post-election meetings, the Carrier has submitted additional declarations from Carolyn Wright and Martha Lien. According to Wright, in Athe fall of 1997, we began formulating the 1998 department budget, and we identified the QSI program as an item that should be eliminated to ensure consistency between airport and reservations compensation plans.@ This change was announced on December 18, 1997, at the same time as the announcement regarding the 1998 pay increase. The QSI plan was eliminated Ain favor of this more expensive pay plan.@
Wright also states in regard to post-election meetings:
During . . . November and December 1998, I conducted meetings . . . to share with employees discussions from American
Three meeting sessions were held at the SRO on March 30, 1999, and two sessions were held at each of the other Reservations offices . . . . The sole purpose . . . was to review the results of the survey . . . . Each meeting ended with an open question and answer session . . . . Any comments or discussions about the CWA or the organizing campaign were initiated by the [employees].
Wright also states that, in response to employee questions, she informed employees that the laboratory conditions must be maintained, other than those which were previously scheduled or consistent with past practice.
Lien states that she prepared aAstatus report@ for managers to provide an update on the NMB investigation.
All the centers used the same update. At the larger centers, because of the great interest shown by employees in attending the voluntary meeting and the large numbers of employees who needed to be accommodated, more than one session was obviously required. What the CWA declarants claim were multiple meetings was in fact several sessions involving the same update.
Lien further asserts that, contrary to CWA=s contention, as a general matter, Ano roster of attendees is ever maintained.@
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. Where there are allegations of carrier interference, the Board has the responsibility to investigate such claims. Midway Airlines Corporation, 26 NMB 41 (1998), Metroflight, Inc., 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 established 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. Petroleum Helicopters, Inc., 25 NMB 197 (1998); Evergreen International Airlines, 20 NMB 675 (1993); America West Airlines, Inc., 17 NMB 79 (1990).
The Board has held in numerous cases that 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. For example, in Petroleum Helicopters, supra, the Board cited Texas & New Orleans Railway v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 568 (1930), where the Court stated:
The meaning of the word
Under Section 2, Ninth, of the Act, the Board has broad discretion to tailor its investigation to the facts and circumstances of each case. Midway Airlines, supra; Petroleum Helicopters, supra; Florida East Coast Railway, 17 NMB 177 (1990). 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. USAir, 17 NMB 377 (1990); Key Airlines, 16 NMB 296 (1989); Laker Airways, Ltd., 8 NMB 236 (1981). 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. USAir, 18 NMB 290 (1991). 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. Sky Valet, 23 NMB 276 (1996).
As the Board held in Key Airlines, supra, at 310 (1989), laboratory conditions must be maintained from the date the carrier becomes aware of the organizing drive. See also Midway Airlines, supra; Petroleum Helicopters, supra; and America West Airlines, 17 NMB 79, 98 (1990).
The record establishes that American=s Passenger Service Employees contacted CWA in late September 1997, and that organizational activity began in early October 1997. The Board finds that the Carrier should reasonably have known about CWA=s organizational activity by late October 1997. Therefore, laboratory conditions attached at that time. It is in this context that the Board examines CWA=s allegations.
Carrier Campaign Communications
Carriers have a right to communicate their views during election campaigns. However, the Board has stated that such right isAnot 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 (1990). The Board has analyzed allegations of improper communications in the context of the Atotality of the circumstances.@ Midway Airlines Corporation, 26 NMB 41 (1998); Petroleum Helicopters, supra; Horizon Airlines, 24 NMB 458 (1997); US Airways, 24 NMB 354 (1997); USAir, 17 NMB 377 (1990).
The Board examines the content of the communications to determine whether the communications are coercive, contain material misrepresentations, particularly about the Board=s processes or the Act, or, combined with other Carrier actions, influence the employees in their choice of representative. Typically, the Board has found interference where the communications include threats about consequences of voting for an organization, (Mid Pacific Airlines, 13 NMB 178 (1986)); promises or withholding of benefits, (Petroleum Helicopters, supra; Laker, supra); or misrepresentations of Board procedures, (USAir, supra; Allegheny Airlines, Inc., 4 NMB 7 (1962)).
In this instance, a review of the record establishes that American did not attempt to overwhelm employee free choice with an overabundance of written campaign materials. Further, while many of the communications contained information about CWA and, in particular, CWA dues, the record shows that these communications had a factual basis. Contrary to CWA=s assertion, the information American provided regarding the Board=s procedures was accurate. The Carrier did not misrepresent the Board=s voting procedures or how to vote against the union. The Carrier=s views on the issue of unionization were permissible communications. See, e.g., Air Wisconsin, 16 NMB 235 (1989).
In this case, as with all cases, the Board=s evaluation of allegations regarding campaign communications does not focus on Apure speech,@ but on whether the speech in the context of the Atotality of the circumstances@ impermissibly interferes with employee free choice.
Viewing American=s conduct in light of this policy, the Board finds that the Carrier=s campaign communications did not improperly interfere with employee free choice in this case.
CWA has cited Federal Express, 20 NMB 7, 52 (1992), for the proposition thatAwhen a carrier=s statements and materials override or render moot, the union=s campaign, we find it objectionable and not within the Employer=s role as anticipated by the Act.@ In Midway Airlines, supra, and Petroleum Helicopters, supra, the Board cited communications and meetings as factors in finding carrier interference.
In Evergreen, supra, the Board found interference where the carrier had conducted fifty-oneAcrew meetings@ during the election period and served food. Generally, the Board does not consider that meetings are held to be improper unless the meetings are mandatory. See Virgin Atlantic Airways, 24 NMB 575 (1997); Washington Central Railroad Company, Inc., 20 NMB 191 (1993).
The record establishes that while American conducted a large number of meetings during the campaign, attendance was strictly voluntary. The record further establishes that the managers conducting those meetings followed the guidelines laid out in theADOs AND DON=Ts INVOLVING UNION ORGANIZING.@ Questions from employees regarding CWA dues were met by recitations from the CWA Constitution or other official documents. Credible evidence establishes that the information provided in the meetings paralleled that provided in the written communications.
Accordingly, the Board finds that neither the content nor the number of the meetings overwhelmed employee free choice.
Interrogation and Surveillance
The Board has held that interrogation and surveillance are per se violations. Petroleum Helicopters, supra, at 233; Arkansas and Missouri Railroad Company, 25 NMB 36 (1997); Egyptair, 19 NMB 166 (1992); Key Airlines, 16 NMB 296 (1989), Laker Airways Ltd., 8 NMB 236 (1981). In addition, as the Board stated in Petroleum Helicopters, supra, the appearance or impression of surveillance is a sufficient basis for a finding of interference.
The record does not establish that the employee survey was related to the union campaign. All employee groups with customer contact, including those outside the Passenger Service craft or class, were subject to the survey. Participation in the survey was voluntary and the answers were confidential. Further, the Board=s examination of the materials provided by Dr. Berrier, including his notes, establishes that the employees were not questioned about the union campaign. While the probability of three known union supporters at the SRO being randomly selected is low, there is no persuasive evidence that the survey was an effort on the part of the Carrier to intimidate employees through interrogation.
There is also insufficient credible evidence that the Carrier was engaging in surveillance, either on a system-wide basis or otherwise. Therefore, the Board finds that the Carrier did not engage in impermissible interrogation or surveillance of its employees.
Solicitation and Access
In USAir, 17 NMB 377 (1990), the Board found that the Carrier=s policy against soliciting on company property was only applied to union campaign materials, and this practice Ainterfered with employees free choice.@ The Board found further that the Acarrier=s policy prohibiting the dissemination of IBT campaign literature . . . combined with the pervasive and determined campaign against unionization . . . and the inaccurate and misleading statements . . . influenced the employees in derogation of their Railway Labor Act rights.@
The record establishes that American had clearly enunciated rules on the issues of solicitation and access. In February 1998, the Carrier changed its policy to permit the wearing of pro-union or anti-union insignia. There is no evidence that this was enforced unfairly.
Accordingly, the only issue is whether, as CWA alleges, new-hire instructors were encouraged to wear and distribute anti-CWA pins. There is no evidence that this occurred. An examination of the record establishes that the Carrier=s policy on this issue applied to all types of insignia. Distribution of either pro-union or anti-union pins or badges was prohibited during class instruction, but permitted following the sessions.
The precise rules governing access varied from station to station. However, there is insufficient evidence that these rules were enforced in a manner which discriminated against CWA. The record establishes that the Organization had access, and availed itself of that access, to bulletin boards at every location, and in some instances, even had dedicated boards. Further, CWA has presented insufficient evidence that any requests made for vendor tables were denied, and the Carrier has provided evidence that, at several locations, CWA organizers set up tables on multiple occasions, and continued to do so. In addition, while employees were prohibited from distributing literature in certain work areas at every location, they were permitted to do so in others. The Board finds that while the degree of access may have varied from station to station, CWA was not denied access at any station or on a system-wide basis.
Assault of Known Union Supporter and
Third Party Assistance
The Board generally finds allegations of assault or other individual activities to beAisolated@ and not indications of carrier interference absent evidence of a systematic pattern of such activity. Petroleum Helicopters, Inc.,26 NMB 13 (1998); Express One International, 25 NMB 420 (1998); Northwest, supra; USAir, supra. While arguably the Carrier=s Indemnification Clause may have required it to provide counsel for the individual charged with the assault, it was reasonable for the Carrier to attempt to minimize liability. In addition, the Carrier conducted its own investigation into the incident and counseled the Aacting supervisor@ regarding his behavior.
The Board finds that the allegations regarding third party assistance, even if true, do not constitute interference. The employee and the organizer were allowed to stay at Burger King. Further, the removal of CWA advertisements from two airport dioramas had no significant impact. The Board finds, therefore, that the Carrier did not interfere through attempts to involve third parties in its campaign.
The Board traditionally has held that the mere existence of employee committees is not evidence of interference. US Airways, 24 NMB 354 (1997); Continental Airlines/Continental Express, 21 NMB 229 (1994). In US Airways, supra, the Board held that viewed in theAtotality of the circumstances,@ the particular carrier=s use of employee committees to expand benefits or make other material changes tainted the laboratory conditions. See also Horizon Airlines, 24 NMB 458 (1997).
As stated previously, the Board finds that American knew, or should have known, that CWA was conducting an organizing campaign by late October 1997. The record establishes that in September 1997, when Carrier officials learned that the IBT had ceased its organizing activity, they commenced work on changes to the employee committee structures. The record establishes that this was before the laboratory conditions attached. Sufficient work was put into the planned changes for those changes to be announced at the fall Leadership Conference held on October 7-9, 1997.
The record also establishes that the Carrier did not use the committees as a vehicle to expand benefits, or as a substitute for collective bargaining. The June 10, 1998, changes to the employee travel program were company-wide and the result of meetings with, and input from, all employee groups. To have excluded Passenger Service Employees from receiving this benefit would have tainted the laboratory conditions.
In addition, the Board finds that the employee committees were not used to change the open relief bidding process, but only to assess employee opinion on the issue.
Pay Increases and Elimination of QSI
As with any change in working conditions during the critical period in which the status quo must be maintained, the Board has found that the granting or withholding of pay increases or benefits may taint the laboratory conditions. The exceptions to this general policy are when these actions were pre-planned, or if there isAclear and convincing evidence of a compelling business justification.@ Midway Airlines, supra, at 62; Petroleum Helicopters, supra, at 36.
The Carrier has submitted convincing evidence that the 1998 and 1999 pay increases were pre-planned, consistent with practice, and independently justified by business considerations. In addition, the record establishes that the elimination of QSI was a measure taken to improve the 1998 pay increase.
CONCLUSION AND DISMISSAL
Based upon its assessment of the totality of the circumstances in this case, which includes evaluation of the specific allegations, the Board finds that American did not interfere with, influence, or coerce employees during the course of the election, and, therefore, did not taint the laboratory conditions.
On the basis of the investigation and report of election results which establishes that less than a majority of eligible voters cast valid votes for representation in the election, the National Mediation Board finds no basis for Certification and the application is, therefore, dismissed subject to Part 1206.4(b) of the NMB Rules.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Mr. Morton Bahr
Daniel M. Katz, Esq.
Harry A. Rissetto, Esq.
Sheldon M. Kline, Esq.