This decision resolves the allegations of election interference filed by the Association of Flight Attendants (AFA) following the initial ballot count in this case.

On December 3, 1997, 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 Airlines Corporation.

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." AFA supplemented its filing on March 5, 1998. The Carrier filed its response on March 30, 1998. AFA's rebuttal was filed April 17, 1998, and the Carrier's final submission was filed April 24, 1998.

Mediator Schrage continued the investigation on June 24 and 25, 1998, in Durham, North Carolina, interviewing three Flight Attendants selected at random and two management officials. The Mediator took testimony from three additional Flight Attendants on July 1 and 13, 1998, at the Board's offices. In addition, the Mediator interviewed two individuals by telephone in July 1998.

ISSUES

Did Midway's actions taint the laboratory conditions the Board requires for a fair election? If so, what is the appropriate method of continuing the investigation to insure the choice of representative by the employees without interference, influence, or coercion?

CONTENTIONS

AFA

AFA asserts that Midway "conducted a comprehensive and coercive campaign to interfere with, and unduly influence its employees' choice of a representative." Specifically, AFA alleges that the Carrier sent out anti-AFA letters and conducted "informational" meetings in an attempt to influence employees, and instituted a comprehensive package of pay and work improvements on the date the Organization filed its application with the Board. Among these alleged improvements were a wage increase, enhanced profit sharing checks, a stock option agreement, free uniform replacement, and improved bidding.

The Organization further contends that the "informational" meetings commenced after the Carrier knew of AFA's campaign and ceased after the election. According to AFA, at these meetings, members of Midway's management made anti-AFA statements and linked rejection of the union to pay increases. AFA also argues that the letters sent by carrier officials were "coercive" and "outrageous" and maintains that "Midway's conduct in characterizing a vote for AFA as a rejection of management" is analogous to the conduct the Board found violative of the RLA in US Airways, 24 NMB 354 (1997).

Finally, AFA contends that the Carrier permitted anti-union literature in company mail boxes and in the crew lounge, yet prohibited distribution of pro-AFA literature in those same places.

The Organization requests that the Board certify AFA on the basis of the authorization cards submitted with its application. In the alternative, AFA requests that the Board conduct a re-run election using a "Laker" ballot. A "Laker" election involves the use of a "yes" or "no" ballot. No write-in space is provided, and the majority of votes actually cast determines the outcome of the election.

Midway

The Carrier contends that AFA's allegations are "fatally insufficient." According to Midway, most of the Organization's assertions are "false" and the Union's conclusions "are not supported by the evidence."

First, the Carrier maintains that the wage increases and benefit improvements were planned before Midway had knowledge of AFA's organizational drive and were conferred on all employees independent of the organizing drive. Second, Midway asserts that there were only three letters sent to Flight Attendants during the course of the campaign and that these letters were "well within" the Carrier's "First Amendment right to communicate with its employees." Third, the Carrier asserts that the meetings which were held were voluntary and that the employees were not advised whether to vote or not, but "were provided with accurate information on how to maintain a union-free workforce." Finally, Midway states that its standard policy is to prohibit distribution of non-official literature into company mailboxes and crew lounges and that this policy was enforced in a non-discriminatory manner.

Midway requests the Board to deny AFA's Motion and to issue a Dismissal based upon the election results.⁽¹⁾

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

I.AFA Organizational Activity

According to statements from several individuals, AFA's first organizational meeting with Midway's Flight Attendants took place on July 8, 1997. Several of the individuals who submitted statements and who were interviewed by the Mediator stated that they were aware of AFA's organizational activity in late summer and early autumn of 1997. There were at least two more meetings between representatives of AFA and Midway Flight Attendants between July and October 1997. AFA also began mailing information packets to Flight Attendants in July.

On November 11, 1997, AFA sent a letter to Robert Ferguson, President, Chief Executive Officer and Chairman of the Board of Midway Airlines Corporation, in which the Organization informed the Carrier of the campaign.

II.

Pay and Benefit Increases

On December 3, 1997, the date AFA's application was filed with the Board, Midway announced a package of pay and benefit improvements for Flight Attendants. Included among these improvements, and "effective immediately," was a new pay scale for in-flight service. Other improvements cited by the Carrier were a $100.00 profit-sharing checks, renovation of the crew room, the enhancement and distribution of a pay and policy manual, and changes in crew scheduling. Midway also announced that there would be an additional Flight Attendant for flight segments to and from Washington National Airport (DCA).

III.

A.AFA has provided affidavits from employees who state that they requested pay increases prior to the end of 1997 and either were told that increases were not feasible or received no response. The Carrier has submitted an affidavit from Jonathan Waller, General Counsel, Senior Vice President and Secretary for Midway Airlines, who states in part as follows:

As recently as January 1997, the Company employed over 800 workers and was struggling to survive.

Midway has posted five consecutive quarterly profits . . . [and its] financial successes in 1997 allowed it to take certain measures that were previously not possible.

In August 1997, Midway conducted a company-wide pay review.

According to Waller, in September and October 1997, most of Midway's employees received pay increases.

B.Robert Ferguson has submitted an affidavit in which he states that in late October 1997 he met with a Flight Attendant at her request to discuss pay and staffing issues. Ferguson asserts that he informed the Flight Attendant that Midway "was reviewing the . . . pay scales and that such review would be completed" in late November. The Flight Attendant also "expressed concern that the . . . flight segments to and from . . . DCA were understaffed." Ferguson responded that Midway "would investigate" the issue and make a determination by the end of November.

According to Ferguson, at a company meeting on November 4, 1997, he announced plans for company review of both issues, stating that "these matters would be concluded by the end of November."

C.Florence Shaughnessy-Cox was hired as Midway's Director of Inflight Operations in March 1997. Shaughnessy-Cox was on leave from the Carrier from June until August 1997. According to Shaughnessy-Cox, she began "compiling industry data" regarding Flight Attendant pay in late October 1997. Around that same time, she spoke with Ferguson about adjusting Flight Attendant pay. Shaughnessy-Cox asserts that she provided Ferguson with wage comparisons before the meeting held on November 4, 1997. Ferguson asked for more research and requested that Shaughnessy-Cox then submit a proposal. According to Shaughnessy-Cox, she presented the wage proposal plan to Ferguson on November 22, 1997, and Ferguson approved her plan at that time.

At the November 22, 1997, meeting between Ferguson and Shaughnessy-Cox, the latter also submitted a report on her investigation of the staffing issue for DCA flights. Shaughnessy-Cox's recommendation to increase the staffing was approved and she announced the change on December 3, 1997.

IV.

Shaughnessy-Cox submitted two affidavits and, in addition, was interviewed by Mediator Schrage. According to her interview with the Mediator, Shaughnessy-Cox did not learn of AFA's organizing drive until December 5, 1997. Shaughnessy-Cox has stated that, because she was on leave during the summer of 1997, she had no knowledge of any union activities. In her April 24, 1998, affidavit, Shaughnessy-Cox states that she had no knowledge of AFA's organizing drive until after Midway had received AFA's November 11, 1997, letter.

V.

Several Flight Attendants have submitted affidavits in which they state that in December 1997 they were given free uniform replacements for the first time. According to those individuals, when they were first hired, they were told that they would be given free uniform replacements every two years. When they asked for replacements, they were told either that they could not have them or that they would have to pay for them. These same and other individuals also submitted sworn statements to the effect that during the election period they received profit-sharing checks which were three times the amount of the checks distributed for the three previous quarters of 1997.

According to Shaughnessy-Cox's affidavit, Midway did not alter its uniform replacement policy. Waller states in his affidavit that Midway had decided on a year-end bonus for all employees totaling 5.4% of their 1997 wages with a $100 minimum, and that the bonus was awarded to all Midway employees using the same percentage formula.

VI.

A.AFA has also submitted affidavits from individuals who assert that, in mid-November 1997, they received written work rules from Midway for the first time. The work rules included a change in the probationary period for new hires from six months to one year. In addition, several Flight Attendants have submitted affidavits stating that the flight crew lounges were renovated in September and October 1997, "after Midway knew of AFA's organizing campaign."

According to several individuals, in October 1997, Midway announced that bid packages would be issued earlier.

B.In response, Shaughnessy-Cox has addressed these issues in her affidavit. She states that the crew room was completed in September 1997. She further states:

[I]n revising the flight attendant handbook, I added a one-year probation period to achieve consistency with the pilot group. A draft of the revised handbook was completed [in September], which included the one-year probation . . . . A final draft was approved by Mr. Ferguson in October. . . . [It] was distributed to flight attendants in early November before the Company had any knowledge of AFA's organizing drive.

Kelly Sain, who was a Midway Inflight Manager from October 1996 until February 1998, has submitted an affidavit stating that she and Midway's Vice President of Flight Operations, David Vance, began revising the flight attendant and pilot handbooks in the summer of 1997. According to Sain, the goal was "greater consistency between the pilot and flight attendant groups." Sain states further that the "pilots have been subject to a one-year probationary period for as long as I can recall. The rewrite project was completed on or shortly after September 8, 1997."

C.David Vance has submitted an affidavit stating that Midway has had written work rules for pilots and flight attendants since 1993.

D.Rose Cunningham was hired as Midway's Director of Flight Administration in August 1997. Cunningham has submitted an affidavit in which she asserts that she "was given specific responsibility for improving the crew scheduling process and producing more efficient schedules." Cunningham informed the Mediator that she was not aware of AFA's organizational activity until December 1997.

E.Michelle Fairman, who is AFA's Local Council President at Business Express Airlines, has submitted an affidavit concerning conversations she had with Cunningham. According to Fairman, "[d]uring Cunningham's farewell party from Business Express . . . I told her, 'Be nice to flight attendants at Midway because one day they will be AFA members.'"

Fairman states further that in a telephone conversation she had with Cunningham on or about October 27, 1998, "Cunningham stated that if there was overwhelming support for unionization among flight attendants at Midway, the Company planned to voluntarily recognize AFA to spare itself the expense of a conflict."

F.According to Cunningham, when she spoke with Michelle Fairman in October, Fairman asked her "whether there was any flight attendant activity at Midway." Cunningham states that she "told Ms. Fairman that I was not aware of any. Ms. Fairman concluded the conversation by saying something to the effect of, 'You never know, maybe we will see you down there sometime.'" According to Cunningham, Fairman spoke to her again in December 1997 and at that point asked about voluntary recognition. Cunningham maintains that she responded, "Absolutely not."

VII.

A.Carrier Meetings

Midway conducted "informational" meetings for the Flight Attendants in December 1997 and January 1998 during the election period. In attendance were Ferguson (for one meeting), Shaughnessy-Cox, Cunningham, and other Midway managers. According to Flight Attendants who were present, Cunningham stated that "unionization was detrimental to flight attendants," and Shaughnessy-Cox "insisted that all AFA wanted was our union dues." In addition, Shaughnessy-Cox threatened to leave Midway "if the union was elected."

An individual has submitted an affidavit stating that, at a meeting held on January 15, 1998, "Ferguson stated that it did not matter to him whether we voted for or against the union. However, later in the meeting he specifically stated that he wanted us to vote 'No.'"

Another Flight Attendant has submitted a statement that Shaughnessy-Cox told her that the AFA Constitution and Bylaws were not "'worth the paper it's written on'" and that AFA "could do whatever it wanted regardless of the . . . Constitution and Bylaws. I asked Ferguson why the government would allow AFA to exist if it was not complying with its own Constitution and Bylaws. He replied, 'The government doesn't care.'"

The affiant also has stated that Shaughnessy-Cox informed the attendees at an earlier meeting that she was a former AFA member, but she "implied that her support of the Union was based on deceit and lack of information." Shaughnessy-Cox also allegedly "told the group that her husband is a member of the pilot's union . . . [and] her family had to take out a personal loan to pay her husband's union dues." According to the affiant, Shaughnessy-Cox stated that AFA could cause a similar financial hardship for Midway Flight Attendants.

The affiant, who also provided testimony to the Mediator, stated further:

Both Shaughnessy-Cox and Cunningham informed the group that AFA is motivated only by a desire to collect union dues. Cunningham stated that AFA does not care about the flight attendants. Shaughnessy-Cox stated that the union will 'suck' $69,000 per year from the flight attendants.

B.Shaughnessy-Cox, Cunningham, and Ferguson have submitted statements in which they address AFA's allegations regarding the "informational" meetings. According to Shaughnessy-Cox, she and Ferguson "each held one series of meetings during the campaign which were 'purely voluntary.'" According to Shaughnessy-Cox:

Rose Cunningham and I explained that under AFA's Constitution, members are required to pay $39.00 a month in dues, and new members are subject to a $50.00 initiation fee. With roughly 130 flight attendants at Midway, AFA could generate more than $60,000 in revenue . . . . We did not say that the union would suck $69,000 a year from them. . . .

I told flight attendants about a situation involving my husband at the old Midway, where he was a pilot and an ALPA member.

When the Eastern pilots went on strike, ALPA imposed a high assessment on its members at other airlines, including my husband.

We had just purchased a summer home and were financially stretched. We wound up having to borrow money due to our economic situation, and the assessment was one factor contributing to it.

I did not tell flight attendants that AFA could cause a similar hardship for them.

Cunningham's affidavit is similar to Shaughnessy-Cox's.

Ferguson states that he told Flight Attendants that they would have to make their own decision on union representation. Ferguson continues: "At one particular session, vocal flight attendants demanded that I take a position on AFA's campaign. In response, I stated that my preference was not to have a union representing the flight attendants."

C.The record establishes that Midway conducted "informational" meetings only during the organizational campaign.

VIII.

Carrier Written Communications

A.AFA asserts that Midway's written communications were coercive and has submitted copies of letters from Shaughnessy-Cox in support of this assertion.

On December 22, 1997, Shaughnessy-Cox sent a letter to Flight Attendants which was placed in their company mailboxes. The letter, which informed the employees that the NMB would be mailing ballots on January 13, 1998, stated, in part:

It is my personal belief that AFA representation would not be in your best interests, nor would it be in the best interests of our airline. Midway is becoming a real success story in the industry, and no union had anything to do with our achievements. We made this airline into what it is today by working as a team, and I am convinced that this is the wrong time to let ourselves be divided by some outsider that is after your dues money. . . .

Don't fall for these empty union promises. . . . In fact, the first effect of the AFA organizing effort is to freeze us right where we are in terms of wages, benefits, and working conditions. . . . [A]ny . . . changes prior to the election would be a basis for a claim of election interference. Once the election is over, if the union is not voted in, then we will be free to continue the positive course we have been on for the past several months. About the only thing the union can guarantee you is that members will have the opportunity to pay dues.

B.On January 2, 1998, Shaughnessy-Cox addressed a second letter to the Flight Attendants, stating, in part:

I believe that there have also been significant improvements in your compensation, benefits and working conditions. Our progress in these areas is the direct result of management and employees working directly together, which is the best and quickest way to solve problems. For example, we listened to your concerns over pay, and on December 3, we implemented a new Flight Attendant wage scale that has been extremely well-received. Based on your input, we also announced that DCA would be staffed with three Flight Attendants. The crew room was renovated . . . [and] the Company has implemented a stock option program and distributed profit sharing checks. . . .

I know that there is still room for improvement, and we will get there by working together. . . . A union will not bring us together, it will only divide us. Let's keep the lines of communication open and direct rather than have some outside party standing between us.

C.Shaughnessy-Cox wrote to the Flight Attendants again on January 14, 1998, the day after the Board had mailed the ballots:

First, this is an election that will define our relationship: your decision will determine what kind of relationship you want us to have. I have tried to build an environment here where you can come to me and we then work together to take care of problems.

Working together, we have been able to make some real progress in the last year. A union will change that relationship. Legally, I will not be able to deal directly with you on many issues - issues which I have often been able to address quickly and effectively. A vote for the union will represent a rejection of my management and our relationship - and these are personal issues to me. I think we need to keep working together as a team, and the last thing we need is for AFA to create an adversarial relationship between us.

On February 14, 1998, the day after the ballots were counted, Shaughnessy-Cox sent a memo to all Flight Attendants stating as follows:

As of 2-13-98, you elected not to have The Association of Flight Attendants represent you in collective bargaining. This allows my staff and I the opportunity to continue to work with and for you. In turn, we thank you for wanting to continue to work with us. Please feel free to stop by the Inflight office to express your concerns and hopes for the department and company.

IX.

AFA maintains that Midway prohibited the distribution of pro-AFA literature but permitted distribution of anti-AFA literature. In addition to the Shaughnessy-Cox letters, AFA has provided copies of letters from employees who were opposed to AFA which were distributed in employee mailboxes.

Individuals interviewed by the Mediator testified that there were anti-union materials in crew lounges but that they saw no pro-AFA literature. Shaughnessy-Cox states in her affidavit that, "materials from any [non-official] source . . . are removed from the mail files whenever their presence is brought to the company's attention. . . . In fact, more anti-AFA materials were removed from the mail files than pro-AFA literature." According to Shaughnessy-Cox, the only exception to this practice was one made for a terminally ill employee.

X.

According to the Carrier, Midway began to explore the idea of a public stock offering in September 1997 and announced this plan on October 7, 1997. The Initial Public Offering (IPO) became effective December 4, 1997. Midway established two separate stock programs for all active carrier employees, a Directed Share Program (DSP), announced on November 4, and a Stock Option Plan (SOP). According to Waller's affidavit, "the SOP and DSP had nothing to do with AFA's campaign and were implemented as normal business decisions."

DISCUSSION

I.

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. 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. Evergreen International Airlines, 20 NMB 675 (1993); America West Airlines, Inc., 17 NMB 79 (1990).

II.

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, Inc., supra. For example, in Petroleum Helicopters, 25 NMB 197 (1998), 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 'influence' in this clause may be gathered from the context. . . . The use of the word is not to be taken as interdicting the normal relations and innocent communications which are a part of all friendly intercourse, albeit between employer and employee. 'Influence' in this context plainly means pressure, the use of the authority or power of either party to induce action by the other in derogation of what the statute calls 'self-organization.' The phrase covers the abuse of relation or opportunity so as to corrupt or override the will, and it is no more difficult to appraise conduct of this sort in connection with the selection of representatives for the purposes of this Act than in relation to well-known applications of the law with respect to fraud, duress and undue influence.

Under Section 2, Ninth of the Act, the Board has broad discretion to tailor its investigation to the facts and circumstances of each case. Evergreen International Airlines, supra; Florida East Coast Railway, 17 NMB 177 (1990); Key Airlines, 16 NMB 296 (1989). When the Board has found carrier interference, it has employed a variety of special ballots and notices intended to eliminate the taint of interference on the employees' freedom of choice of representative. The Board's methods of determining the employees' choice of representative vary on a continuum determined by the extent of the carrier interference found. The continuum begins with a finding that the carrier had not interfered with the employees' choice of representative. The continuum ends with interference so outrageous that, in the Board's judgment, alternate means of gauging employee sentiment other than a secret ballot election are appropriate.

III.

As the Board held in Key Airlines, 16 NMB 296, 310 (1989), laboratory conditions must be maintained from the date that the carrier becomes aware of the organizing drive. See also America West Airlines, 17 NMB 79, 98 (1990).

In this case, the record establishes that the Carrier was aware of AFA's organizing activity at least by early November 1997. The investigation has established that it was well known among the Flight Attendants in the summer and autumn of 1997 that there was organizational activity. AFA held at least three organizational meetings between July and October, 1997. There is credible evidence that Rose Cunningham knew about AFA's campaign before the Carrier received AFA's November 11, 1997, letter.

IV.

The Board finds based upon the totality of the circumstances that Midway interfered with, influenced, or coerced employees in their choice of representative. The factors which contribute to this finding are enumerated below. The record establishes that the Carrier provided improved wages and benefits to the employees in the craft or class after Midway was aware of AFA's organizing campaign. Midway also revised staffing arrangements affecting Flight Attendants during this critical period. These changes, which were implemented during the period in which the Board requires that laboratory conditions be maintained, improperly influenced Midway's employees in their choice of a representative. These improvements were not implemented as part of a management program which had been planned prior to the Carrier's knowledge of the organizing campaign, but were provided at a time when the Carrier was obligated not to make any changes in wages, benefits, or working conditions. Key Airlines, supra. In addition, Midway suggested that the employees' selection of a union would limit the prospect of wage and benefit gains in the future.

The Board has found interference where the carrier grants or withholds benefits to influence the outcome of a representation dispute. Petroleum Helicopters, Inc., 25 NMB 197 (1998); Wisconsin Central Ltd./Fox Valley & Western Ltd., 24 NMB 64, 104 (1996); Evergreen International Airlines, 20 NMB 675, 707 (1993); Key Airlines, 13 NMB 153 (1986). In Key Airlines, supra, the record demonstrated that the carrier used pay increases (or the denial of scheduled increases) in an attempt to affect the outcome of the election.

Midway announced that it was reviewing wage scales and one month later instituted a wage increase during the period in which laboratory conditions were to be maintained. There is insufficient credible evidence this review and increase were decided upon prior to November of 1997.

The Board finds that the announcement of a wage increase and improvement in benefits constitute promises of benefits which influenced employees to vote against AFA.⁽²⁾

Contributing further to the totality of the circumstances is the fact that, from the time Midway learned that AFA had launched a campaign to organize its employees, the Carrier sought to defeat AFA through a series of meetings and communications. In addition to the meetings and communications, Midway announced a wage increase and additional staffing for certain flights, and it provided enhanced benefits such as uniform replacements and improved bidding.

The Board further finds that the "informational" meetings ceased after the election period, and these meetings, combined with the communications, particularly those from Shaughnessy-Cox, contributed to the totality of the circumstances which the Board finds tainted the laboratory conditions necessary for a free and fair election.

Carriers have a right to communicate their views during election campaigns. US Airways, 24 NMB 354, 390 (1997); Federal Express Corporation, 20 NMB 659 (1993); USAir, Inc., 17 NMB 377 (1990). However, the Board has also found that a carrier's right to communicate "is not without limit, and even conduct which is otherwise lawful may justify remedial action when it interferes with a representation election." America West Airlines, 17 NMB 226, 233 (1990).

In US Airways, supra, the Board found that the carrier had interfered with its employees' freedom of choice through, inter alia, its campaign communications, as the Board has found in this case. The principles of law applicable to carrier communications in US Airways, supra, are equally applicable to the facts here. This decision was upheld by the United States District Court for the District of Columbia in US Airways v. NMB, 158 LRRM

2984, 2989 (1998).⁽³⁾ Addressing the carrier's First Amendment arguments, the Court stated: "The role of employers in representation elections governed by the RLA is more limited than the activities permitted employers under the NLRA. . . . [S]tatements which may be appropriate, when viewed in isolation, may well be unconstitutional when analyzed in the totality of the circumstances." (emphasis added).

V. CONCLUSION AND ORDER

Based upon the totality of the circumstances in this case, the Board finds that the laboratory conditions required for a fair election were tainted. The Board's decision is based upon its finding that Midway Airlines Corporation acted in a way which constitutes interference with employee free choice.

In summary, the evidence establishes that Midway affirmatively provided improved wages and benefits to the employees in the craft or class after Midway was aware of AFA's organizing campaign. Midway also revised staffing arrangements affecting Flight Attendants during this critical period. These improvements were not implemented as part of a management program which had been planned and decided upon prior to the Carrier's knowledge of the organizing campaign. In addition, Midway represented that the employees' selection of a union would limit the prospect of wage and benefit gains in the future.

Therefore, pursuant to its authority under Section 2, Ninth, the Board hereby ORDERS a re-run election, using the Board's standard ballot. The Board will also mail a special "Notice to All Employees" identical to the Notice attached to this decision. A copy of this Notice will be mailed to all eligible employees in advance of the election, as well as with the election materials. The Carrier must post this Notice at all stations, making sure both pages are visible. Failure to post the Notice will be considered as a basis for overturning the election results. In addition, the Carrier must provide AFA with a list of employee home addresses at the same time the Carrier provides the Board with two sets of mailing labels, i.e., five calendar days from the date of this decision. The addresses should correspond with the list of eligible voters as finalized at the

count on February 13, 1998, with the exception of

employees who have left the craft or class since that point. No employees will be added to the list.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to:

Edward J. Gilmartin, Esq.

Ms. Patricia A. Friend

Ronald C. Henson, Esq.

Mr. John Schrage

NOTICE TO ALL EMPLOYEES

IN ORDER TO EFFECTUATE THE POLICIES OF THE RAILWAY LABOR ACT, AS AMENDED, ALL FLIGHT ATTENDANTS OF MIDWAY AIRLINES CORPORATION ARE HEREBY NOTIFIED THAT:

After an investigation conducted by the National Mediation Board in which the Carrier and the Organization had the opportunity to present statements and evidence, the National Mediation Board found that the Carrier's conduct, taken as a whole, interfered with, influenced or coerced employees' choice of representative under Section 2, Ninth, of the Act.

Accordingly, the Board authorizes an additional election among Midway Airlines Corporation's Flight Attendants. A copy of this Notice will be mailed to all eligible voters both initially as well as with the election materials.

During the election period, the Mediator will be available to immediately investigate any further allegations. The list of eligible voters will consist of those eligible to vote in accordance with Board policies and procedures.

Section 2, Fourth of the Act, 45 U.S.C. § 152, Fourth, allows employees the right to select representatives without carrier influence or interference. That particular subsection reads in part as follows:

No carrier, its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization.

(emphasis added).

Section 2, General Purposes Clause of the Railway Labor Act, states that one of the purposes of the Railway Labor Act is "to provide for the complete independence of carriers and of employees in the matter of self organization."

The Carrier is not permitted to influence, interfere or coerce employees in any manner in an effort to induce them to participate or refrain from participating in the upcoming election.

If any employees have any questions concerning this notice or compliance with its provisions, they may communicate directly with the National Mediation Board, Washington, DC 20572, Telephone (202) 692-5040.

1. The Carrier also argues that AFA's March 5, 1998, supplemental filing was not simultaneously served and, therefore, should not be considered.

2. The investigation establishes that the crew room renovation had been decided upon before the Carrier had knowledge of AFA's organizing activity and was completed in September 1997. The stock programs were decided upon for business reasons not related to AFA's activity, and were provided to all Midway employees. In contrast, in this case, the Carrier did not assert or provide any clear and convincing evidence of a compelling business justification for any other changes in conditions.

3. US Airways has filed an appeal of the District Court's decision which is pending in the U.S. Court of Appeals for the District of Columbia Circuit.

25 NMB No. 121

September 22, 1998

Mr. John E. Higgins, Jr.

Solicitor

National Labor Relations Board

1099 14^th 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.

I.

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.

II.

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.

III.

For the reasons set forth below, the Board is of the opinion that EAGLE and its employees are subject to the Railway Labor Act.

A.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).

B.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.

C.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.

D.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

Copy to:

Peter J. Petesch, Esq.

Mark Richard, Esq.