In the Matter of the
Application of the
HOTEL EMPLOYEES & RESTAURANT EMPLOYEES INTERNATIONAL UNION
alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended
involving employees of
27 NMB No. 3
INVESTIGATION-AUTHORIZATION OF ELECTION
On February 5, 1996, the Hotel Employees & Restaurant Employees International Union (HERE or Organization), filed an application pursuant to the Railway Labor Act (RLA), as amended, 45 U.S.C. ' 152, Ninth, alleging a representation dispute among Aall airport restaurant and in-flight catering employees, including support employees@ of LSG Lufthansa Services, Inc. (LSG or Carrier), located on Guam and Saipan.
At the time this application was received, these individuals were unrepresented.
For the reasons discussed in this decision, the Board finds the Carrier=s handling and delivery of ballot packages constituted a per se violation of the RLA and authorizes an on-site ballot box re-run election using a ALaker@ ballot.
Following an investigation by Mediator Charles R. Barnes, the Board found a dispute to exist among In-Flight Kitchen and Commissary Employees of the Carrier and authorized an election. LSG Lufthansa Services, Inc., 25 NMB 96 (1997). The Board then assigned Mediator Gale L. Oppenberg to the case. The ballots were to be mailed on January 20, 1998, and the count set for March 6, 1998. On December 17, 1997, typhoon Paca devastated Guam.
On December 18, 1997, HERE requested that the election be postponed. HERE noted that the island was without power and thousands of residents were dislocated. HERE also asserted that most addresses were blown away by typhoon Paca rendering mail service impossible.
On December 22, 1997, the Board granted the HERE=s request for a postponement of the election. On March 26, 1998, the Board set April 16, 1998, to mail ballots using the government-contracted express mail service, Federal Express (FedEx). The count was set for May 28, 1998, in Washington, DC.
The count occurred on May 28, 1998, with the following election results: of the 176 eligible employees, seventy-five voted for HERE, one voted an empty write-in space, and three ballots were void. Based on this count, the Board issued a dismissal on June 1, 1998. LSG Lufthansa Services, Inc., 25 NMB 361 (1998).
Following the dismissal, at 5:58 p.m., EDT, on June 1, 1998, HERE filed AObjections to the Conduct of the Election.@
On June 20, 1998, the Board found, based on the facts and extraordinary circumstances presented, that the Organization=s objections were timely allegations of election interference. LSG Lufthansa Services, Inc., 25 NMB 405 (1998).
The investigation of election interference was assigned to Sean J. Rogers.
On Guam, the Investigator interviewed nineteen LSG employees, eight management officials, two former employees, one HERE representative and two FedEx employees. On Saipan, the Investigator interviewed seven LSG employees, one management official, one former employee and three employees of CTSI, a FedEx global partner. Whenever possible, interviews were conducted under oath and transcribed by a court reporter. Many witnesses were selected based on the contentions of the Carrier and the Organization and the affidavits supplied in their submissions. Some employee witnesses were selected at random. These interviews resulted in other investigatory leads and interviews of former employees and the representatives of FedEx and CTSI on Guam and Saipan.
Following the interviews, the Investigator made two requests for Carrier books, records and documents.
Did the Carrier=s actions taint the laboratory conditions the Board requires for a fair election?
HERE asserts LSG interfered with the laboratory conditions in many ways. The Organization says the Carrier threatened employees with loss of benefits if the Organization won and threatened retaliation against union supporters. These threats came in meetings with employees individually and in groups.
HERE claims that the Carrier changed terms and conditions during the Alaboratory period.@ Specifically, HERE says, after filing its representation application some time after January 1998, the Carrier changed the policy on employee accumulations of sick leave and vacation time. HERE claims that LSG reduced the employee accumulated sick leave entitlement from thirty days to ten days. As to vacation time, HERE says, LSG implemented a Ause it or lose it@ policy such that employees no longer carried accumulated vacation time from year to year.
HERE says that LSG delayed pay increases from January to July despite the LSG=s Handbook statement that pay raises become effective in the first pay period in January. Further, HERE claims that LSG implemented AProductivity Pay@ for drivers in another attempt to interfere with the election.
HERE also asserts that the employees at Guam International Airport (GIA) were subject to arbitrary transfers to another Carrier facility, the Harmon Facility (Harmon), and suffered reduction in pay and fewer hours of work there during the Alaboratory period.@
The Carrier made factual misrepresentations about what unions do and union security at employee meetings, HERE says. Furthermore, HERE claims that provisions of the Carrier=s ALSG Lufthansa Service Guam Inc., Staff Handbook@ made LSG=s institutional anti-union animus abundantly clear. Specifically, paragraph 19. UNIONS, at page 26, of the Staff Handbook states, in part: A. . . . Unions have nothing to offer our employees . . . We will use every legal means to keep our employees working in >union-free= climate - free from the domination and control of a union.@
HERE alleges that the Carrier interrogated and threatened employees about organizational activities at meetings held by Lorraine Villarde, Human Resources Manager.
The Organization also claims that the Carrier interfered with receipt of ballots of employees. Specifically, on Guam, HERE asserts that a management official Atransported eligible voters in a Company vehicle to the Federal Express office so that they could pick-up their ballots.@ The Organization suspects that none of the employees allegedly transported by management officials to get their ballots actually voted.
In addition, HERE asserts that an unknown number of ballot packages were delivered to the Carrier on both Guam and Saipan. On Guam, the Organization contends that ten ballot packages were delivered to LSG on May 26, 1998. The Organization contends that LSG was obligated to report this situation to the NMB immediately and that any ballot packages delivered to the Carrier Acompromised the integrity of the whole election process.@
Finally, as to the mail ballot process, the Organization asserts that the Board erred when it failed to conduct a ABallot Box@ election. Specifically, the Organization states, A[o]f the 14 ballots which were undeliverable, eleven of them were for eligible employees on the Island of Saipan.@ HERE states that these undeliverable Saipan ballots illustrate Athat a mail ballot in this instance fatally flawed the election process.@
For all these reasons, HERE asks that the NMB set aside the election.
The Carrier denies each claim of election interference raised by HERE.
The Carrier asserts that HERE has not submitted any evidence that management officials threatened employees with the loss of benefits. LSG notes that the Organization=s affidavit supporting this claim attributes a statement about the loss of benefits to an individual who was an eligible voter, not a management official. Moreover, the alleged statement was made at a meeting where only eligible employees were present, LSG says.
LSG asserts it did not change laboratory conditions during the pendency of the election. The Carrier says that pay increases are regularly timed to the day after the Guam government publishes the Consumer Price Index (CPI) which, for 1996, was delayed until June, and for 1997, until July. The Carrier argues that to have granted pay raises any other way would have constituted a change in laboratory conditions.
The Carrier describes Aproductivity pay@ as a unique premium pay for drivers, dispatchers, and loaders which had been regularly paid. The Carrier says that, during a program to Aclean up@ company policies, LSG discovered that the Aproductivity pay@ policy was never published to the affected employees in writing. The only change was that the policy was in writing and posted.
The Carrier flatly denies any change in the LSG sick leave policy Aduring the laboratory conditions period.@ (Emphasis in original). The Carrier asserts that the HERE claim on this issue is based on an outdated Staff Handbook.
The Carrier admits one change in the Vacation Policy, but not as to the Aamount or value of the benefit.@ The change implemented was a Ause it or lose it@ policy, requiring all employees to take their vacation time by the end of the year, or lose it. In addition, the Carrier states that all employees were permitted to request an extension or waiver of the policy if they were unable to use up all their accrued vacation time by the end of the year.
The Carrier claims that the decision to transfer employees from GIA to Harmon, about a mile away, was a legitimate business decision and not because of the election. The reduction in hours of work the transferred employees experienced at the Harmon facility was caused by an overall depression in business, the Carrier says.
The Carrier says that it has an undisputed right to communicate its position to its employees and that all LSG communications with employees were within the law. The Carrier flatly denies the Organization=s claims of factual misrepresentations and threats by LSG management officials.
As to the apparent anti-union statements in the AStaff Handbook,@ the Carrier says, HERE is relying on an excerpt from LSG=s outdated AStaff Handbook@ concerning the Carrier=s position on Unions. The old Handbook statement does not appear in the revised AEmployee Handbook@ effective February 23, 1996, and has no bearing on how the Carrier=s management actually conducted themselves during the election period.
The Carrier argues that the Organization has presented no credible evidence that Villarde threatened employees, as HERE claims. Further the Carrier says HERE management officials did not interrogate employees. The Carrier admits that Villarde and Guisseppi Cuison, Operations Manager, questioned an employee, whom Cuison supervised, about allegations of Asoliciting ballots and campaigning during working hours. . . .@ This alleged Ainterrogation@ was a legitimate exercise by LSG management officials to investigate violations of the LSG rule against campaigning on work time and the NMB prohibition against ballot solicitation, the Carrier says.
Similarly, the Carrier denies soliciting ballots. The Carrier admits that Mariano Zaldivar, Sanitation Manager, drove five employees to the FedEx office at their request to pickup ballots. The Carrier asserts that Zaldivar did not ask the employees to give him their ballots and never came in possession of any ballots. The Carrier also admits that Necita Serrano, a secretary, accepted delivery and signed the receipt for ten election packages containing employee ballots. The Carrier says Serrano forwarded the packages to the proper employee addressees and the packages were never handled by a management official. According to the Carrier, based on these facts, there is no evidence of Carrier interference in the receipt of the ballots by employees.
For all these reasons, the Carrier asserts that HERE=s allegation of employer interference must be rejected and this case dismissed.
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:
LSG Lufthansa Services, Inc., is a common carrier by air as defined in 45 U.S.C. ' 181.
HERE is a labor organization and/or representative as provided by 45 U.S.C. ' 152, Ninth.
45 U.S.C. ' 152, Third, provides in part that 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. . . .@
FINDINGS OF FACT
I. Introduction: Background of the
A. The Employment Environment
of Guam and Saipan
The island of Guam is a United States territory and its westernmost possession since 1898. The islands of Saipan, Tinan, and Rota comprise the Commonwealth of the Northern Marianas Islands (CNMI). In 1986, the Northern Marianas Islands achieved political union with the United States and commonwealth status pursuant to an agreement, known as the Covenant, approved by the people of the Northern Marianas in a United Nations-observed plebiscite and by Congress by Public Law 94-241.
The Covenant established a Commonwealth government, CNMI, pursuant to a locally adopted Constitution in political union with the United States. However, the Covenant did not immediately extend Federal immigration and minimum wage laws to CNMI. (See: ' 503 of Public Law 94-241).
The Covenant did not immediately apply Federal immigration law . . . because of the desire expressed by Northern Marianas Island covenant negotiators to prevent possible mass immigration of Asians who would want to be on United States soil but adjacent to Asia.
. . . .
Through its policies, the CNMI has experienced a self-imposed explosive population growth of about 250 percent in a decade and a half from 1980 to 1995. . . . A startling 91% of the private sector jobs are held by indentured alien workers and more are arriving daily . . . . With an unrestricted labor supply and a virtual wage ceiling, normal economic pressure for wage and working conditions to improve are absent.
Federal-CNMI Initiative on Labor, Immigration, and Law Enforcement in the Commonwealth of the Northern Mariana Islands Fourth Annual Report 1998, p. 4-5.
B. LSG Employment Environment
on Guam and Saipan
On the day of the count, May 28, 1998, approximately 201 individuals were members of the craft or class of In-Flight Kitchen and Commissary Employees at the Carrier=s facilities on Guam and Saipan. During the election period, seventeen LSG employees were Saipan-based and the rest Guam-based.
On Saipan, virtually all the Carrier=s employees are indentured or contract alien workers. These workers have one year service-at-will contractual relationships with the Carrier. These contracts are renewed with the individuals over and over, based on the employer=s preferences for the employee and the employee=s continuing availability, often for an entire career. Typically, in the unique employment environment on Saipan, the Carrier has extraordinary leverage over the indentured or contract alien worker=s life. For the indentured or contract alien worker, the loss of a job means deportation.
The Carrier=s outdated AStaff Handbook@ establishes that LSG openly opposed the organizing of its employees by unions. The revised AEmployees Handbook@ effective February 23, 1996, does not contain any of the anti-Union language found in the outdated version. However, the statements of employees and former employees confirm that it was well known in the workplace that LSG opposed unionization.
II. Mail Delivery on Guam and Saipan
Guam and Saipan present unique environments for the conduct of a representation election pursuant to the RLA. Guam=s infrastructure, while rustic, is well developed, but still many streets and roads are un-named. Saipan is considerably less developed, and virtually all streets and roads on the island are un-named. Many individuals on Guam, and most on Saipan, have no mailing address. Consequently, many Carrier employees on Guam and nearly all on Saipan receive mail in a post office box.
III. Threatened Loss of Benefits and Retaliation at Meetings With Employees
For the most part, the Organization=s claim of election interference on this issue is based on a number of meetings between the Carrier=s management officials and employees during the time that laboratory conditions attach.
A. Hot and Cold Kitchen Meetings
In April 1998 in the morning and afternoon, Bertrand Haurillon, LSG Executive Chef, held two meetings with the Hot and Cold Kitchen Staff to discuss an upcoming hygiene inspection. At the end of the meetings, a number of employees began asking questions about what would happen in the work place if HERE won the election. At both meetings, Haurillon stated that he never worked with a union and he preferred not to work with a union, but the decision was up to the employees. He left the meetings and allowed the employees to talk among themselves for approximately twenty minutes. He then returned and told the employees to return to work.
At the end of each meeting one employee, Aileen Dilidili, a kitchen clerk, and a member of the craft or class, responded to questions about a number of issues raised by the group including benefits and union dues. Some employees provided statements that Haurillon was present while Dilidili spoke. Others, including Haurillon, say he was not present.
HERE argues that Dilidili spoke for Haurillon and LSG and against HERE. The record does not support this contention.
B. Meetings Held by Lorraine Villarde,
Human Resources Manager
In late April, 1998, the Carrier=s Human Resources Manager Lorraine Villarde held at least two meetings with Jaypee C. Buensuceso, Flight Service Supervisor and a member of the craft or class. Buensuceso recalls that Villarde discussed union dues and told him that voting for a union was up to each employee. He says she also questioned him about a report that he had been collecting ballots during the election period.
Villarde recalls random meetings with employees when she was questioned about union dues as well as her specific meetings with Buensuceso. She stated that she always told the employees and Buensuceso that the decision to be represented was up to the employees and Adepends on if the union won the election and if and when the union negotiated starting dues deductions. . . .@ She stated that she confronted Buensuceso about the reports of ballot collection and he denied it. In addition, she counseled and warned him about rules against ballot collection and against campaigning for HERE while on duty. According to Villarde, Buensuceso was not disciplined or coerced in any way.
C. Operations Department Meeting
On May 4, 1998, at 11:00 a.m., LSG Operations Department management officials, Guisseppi (Jojo) Cuison, LSG Operations Manager, and Klaus Ohl, LSG Production Manager, held a meeting with all Operations employees including all drivers. A number of employee affidavits supplied by HERE assert that Cuison and Ohl spoke about what would happen if a union represented LSG employees. These affidavits state that Cuison and Ohl told employees that if they were terminated they would not be able to get another job; they would have to continue paying union dues; they would be terminated if they missed three days of work in a month; and they could not discuss their problems with an LSG supervisor.
Cuison and Ohl deny the statements. Cuison said the meeting was called to discuss airline schedule information and irregularities occurring in the workplace between flight schedules. Cuison said that at the end of the meeting a number of employees began to ask questions about the union. Cuison says Ohl answered most of the questions.
Three of the drivers who attended this meeting, Armando Conora, Joseph Perez, and Edgar Acosta, provided affidavits to HERE in support of the Organization=s challenge of the election. On or about June 12, 1998, Corona gave a handwritten letter to Rita Paquio, a Clerk in the Costing Department, and asked her to type it for him. Paquio typed the letter for the drivers. The final version of the letter addressed to Gregory Elliot, Director of Research for HERE in Hawaii, states:
We . . . decided to withdraw, voluntarily and of our own free will our Objections to the election conduct. We were mislead and manipulated by members and representatives of the Union. We don=t believe that the union will workout and will just cause problems by going back and forth. We believe that it would be better to keep things as is.
This statement was not compelled by management of LSG.
The letter is signed by all three drivers.
On August 8, 1998, Perez and Conora give identical affidavits to LSG counsel Joseph L. Manson, III, recanting the affidavits they provided to HERE. While in Guam, the Investigator requested an interview with all three drivers. LSG arranged the interviews, but only Perez kept the appointment. When asked by the Investigator which of the affidavits he provided to HERE and LSG was the truth, he stated, AI guess they=re both true.@
IV. Changes to LSG Policies During
the Laboratory Period
HERE claims that LSG implemented several changes in conditions of employment during the laboratory period including changes to sick leave, vacation time, productivity pay policies, and pay raise effective dates.
The Carrier=s AEmployee Handbook,@ effective February 23, 1996, establishes that there was no change to the Sick Leave policy. The Carrier admits that the Vacation Time policy changed to a Ause it or lose it@ system in 1998. However, according to the Carrier, the change also permitted employees who were unable to use all their accrued vacation time by the end of the year to apply for an extension into the next calendar year to use accrued vacation time.
The Carrier=s submissions and business records establish that there was no change to the Productivity Pay. The Carrier merely published the existing policy more widely to its employees.
When LSG annual pay raises are given to employees, the raises are determined by management based on the Guam Consumer Price Index (CPI) and the Carrier=s profits for the year. Therefore, the Carrier=s management team develops the pay raises after the CPI is issued by the Guam Department of Commerce (GDC). The GDC does not issue the CPI at the same time each year and the CPI issuance is often delayed. For example, the 1995 CPI was delayed until April; the 1996 CPI was delayed until May; and the 1997 CPI was delayed until June. (Source: the 1995 and 1996-1997 Guam Annual Economic Review, Guam Department of Commerce). The GDC did not issue the 1998 CPI until after the election period.
V. GIA to Harmon Transfer.
The Carrier is the AMaster Concessionaire@ at the GIA and acts as the Airport=s Agent on all concession matters. LSG controls sixteen concessions, directly operating six before the election period. Immediately before the election period, LSG subleased three of these concessions, including a restaurant named AKeatzu,@ a regular bar, and a hot dog concession. The basis of the Carrier=s decision to sublease was a 20% drop in gross revenue at these concessions.
The subleases resulted in four airport-based supervisors and a number of employees being displaced. Some supervisors resigned and some were demoted. The surplus employees were placed in the Carrier=s airline catering facility located at Harmon. The LSG Harmon facility is within sight of and less than one mile from the GIA. At the same time, the demand for catered meals dropped from 7,000 meals per month to 3,000 meals per month. Consequently, many employees at Harmon received fewer hours of work.
The evidence establishes that the Carrier=s decision to sublease at GIA and transfer employees to Harmon was motivated by legitimate business purposes. Moreover, the reduced hours for some employees at Harmon was caused by a decline in business.
VI. Transporting Employees to Collect Ballots; Receiving and Distributing Ballots
1. Employees Escorted to Pickup Ballot Packages
The FedEx office on Guam is located just across the GIA perimeter about one-half mile from the rear entrance to the Airport. The FedEx representative responsible for delivering ballot packages to employees stated that many LSG employees came directly to the FedEx office to pickup their ballot packages. FedEx representatives also called employees and received directions for the drivers to deliver the ballot packages to the employees= homes. They also recalled that, on at least one occasion, LSG employees arrived in an LSG van to pickup ballot packages.
Mariano Zaldivar, LSG Sanitation Manager, stated that on two occasions he escorted a total of five on-duty employees to FedEx to pickup their ballot packages. He said the trips took about fifteen minutes to drive the employees from the Harmon facility to the FedEx office and another fifteen minutes to drive them back. Zaldivar stated that the employees approached him and asked how they were to pickup their ballots. He offered to drive them to the FedEx office in an LSG van, but checked with Villarde to be sure it was Alegal.@ Zaldivar also stated that Reinhard E. Guth, LSG Managing Director, knew that he was transporting employees to pickup ballot packages. Zaldivar said he never touched the ballot packages.
On one occasion, when he escorted two employees to FedEx, Zaldivar reported,
[W]hen we got back to Harmon, they did ask, both of them, what are we gonna do to our ballot. I say, That=s for you to vote, and then you have to drop them where you pick it up because that=s what it=s supposed to be. Now, you=re free to vote as an employee. You=re free to decide whatever you want to decide, and then I=m out of it.
2. Ballot Packages Delivered to and by Management Officials
FedEx records revealed that, on May 26, 1998, ten ballot packages were delivered directly to the LSG Harmon facility and signed for by Necita E. Serrano, the LSG Costing Officer. Serrano is not a member of the craft or class and works directly for the LSG Customer Service Manager. She did not recall getting ten individual ballot packages but believed she received Ajust one envelope, not 10 ballots . . . .@ She was unsure of what she did with the package or packages, but believed she sent it on to Human Resources. She also stated that she may have sent the ballot packages to each of the employees= organizational component for delivery by the manager or the clerk to the employee, which was the usual practice. Employees, among the ten who were interviewed, stated that they recalled receiving their ballot packages from their managers, clerks, or found them in their LSG organizational mail box at work on May 26 and 27, 1999. These employees stated that they did not care to vote or realized it was too late to vote by that time.
The NMB sent eighteen ballot packages to LSG employees on Saipan. The FedEx forwarder is CTSI. CTSI is located within sight of and approximately one quarter mile from the LSG catering facility at the Saipan Airport. CTSI provided business records which showed that two ballot packages were not delivered at all and one was Areturned to Guam.@ Three ballot packages were signed for by the employees to whom the packages were shipped.
Twelve ballot packages were delivered to the LSG office on Saipan and signed for by Lea Magno on April 27, 1998. Magno is the Administrative Assistant to Rene Willen, LSG Saipan Executive Chef. She is not a member of the craft or class. Willen manages the entire LSG Saipan operation.
Magno distributed all but one of the twelve ballot packages to the employees in the work place. She sent back one ballot package to CTSI because she knew that employee had just recently left employment with LSG. She personally delivered ten ballot packages to LSG employees. She could not recall exactly how the last ballot package was delivered, but it was delivered by LSG internal mail to the employee.
When asked exactly what she did with the ballot packages, Magno said:
I give it to these employees. . . . All of them, sir, actually. . . . Hundred percent, all of the employees mention to me that they are not interested. So, some of them they just throw it, those letters and then when the ballot or the final comes? They said they are not interested. I give it to them and then there=s one employee approach me and I give it in front of, for example, sir? I give it to you [indicating the court reporter] and then she said that -- and then she read it, then she said, oh Lea, I=m not interested because, just throw it. So I throw it in front of her.
Magno threw away one ballot package for this employee, as described above, and many others she delivered to employees were thrown away in front of her by employees.
Many employees asked her what to do with the ballot packages. She said,
I told them, if you=re interested, you just ah fill out that if it=s yes or no, but if it=s no, just you know, um don=t answer. Something like that. Yeah.
. . . .
[I] told them that ah, it=s up to you because that=s your own decision, you know. I cannot help you with that, that=s what I told them.
None of the employees who received ballots from Magno voted.
Only one Saipan-based employee voted. That employee=s ballot package was delivered to LSG and returned by Magno. The employee went to CTSI to pickup the ballot package and the employee was told the package was delivered to LSG. The employee went to LSG and was told the package had been returned to CTSI. The employee went back to CTSI and, at their request, drew a map of the location of the employee=s house on Saipan. The ballot package was delivered to the house and the employee voted. The employee=s spouse delivered the ballot to CTSI at the Saipan Airport.
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 Ainfluence@ 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. AInfluence@ 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 Aself-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. Midway Airlines, supra; Petroleum Helicopters, supra; Florida East Coast Railway Company, 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 d/b/a Commercial Aviation Services of Boston, Inc., 23 NMB 276 (1996). One approach is a ALaker@ election. 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. See Laker Airways, supra. A ALaker@ ballot coupled with an on-site ballot box election process provides the employees who choose to participate with the maximum secrecy under the circumstances.
II. Threatened Loss of Benefits and Retaliation at Meetings With Employees
The HERE claim of interference on this issue focuses on a number of meetings described above where management officials threatened loss of benefits and retaliation for supporting the union.
Generally, the Board does not consider meetings with employees to be improper unless the meetings are mandatory or coercive. See Virgin Atlantic Airways, 24 NMB 575 (1997); Washington Central Railroad Company, Inc., 20 NMB 191 (1993).
The Board examines the content of the Carrier=s 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, and Laker, supra); or misrepresentations of Board procedures, (USAir, supra, and Allegheny Airlines, Inc., 4 NMB 7 (1962)).
At the end of the two Hot and Cold Kitchen meetings in April 1998, an informal discussion among employees occurred for approximately twenty minutes. Bertrand Haurillon, LSG Executive Chef, made brief personal comments about his lack of experience with labor unions and left. What followed was a voluntary employee meeting at which many employees, including Aileen Dilidili, a member of the craft or class, spoke.
Two non-voluntary meetings occurred between Lorraine Villarde, LSG Human Resources Director, and Jaypee C. Buensuceso, Flight Service Supervisor, and member of the craft or class and a known HERE supporter. At these meetings Villarde warned Buensuceso about not campaigning for HERE on duty and about the prohibition against ballot collection. He was not disciplined in any way.
Finally, at the Operations Department meeting on May 4, 1998, HERE has claimed that management officials, Cuison and Ohl, misrepresented the impact of union representation on the craft or class. The evidence associated with this claim is conflicting and involves the recanted employee affidavits. When all of the witness statements are considered in a comprehensive way, the Board=s conclusion is that none of the witnesses, neither for the Carrier nor for HERE, established sufficient credibility to support the claims of either participant.
In conclusion, the Board finds that HERE has failed to establish that the meetings at issue were coercive, contained material misrepresentations, or influenced the employees in their choice of representative.
III. Changes to LSG Policies During the Laboratory Period
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 is Aclear 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 there was no change to the Sick Leave policy, the Productivity Pay policy or the annual pay.
Although, the Carrier admits changing to a Ause it or lose it@ policy for Vacation Time during the critical period, the Carrier presented evidence that the change was implemented to reduce the high levels of accrued leave employees had accumulated during a period of reduced business for LSG. Further, the Carrier=s changed policy permitted affected employees, who could not use all their leave by the end of the year to request an extension or waiver of the Ause it or lose it@ policy.
The Board finds that under these unique circumstances, and particularly in light of the compelling business justification for the change, the change to a Ause it or lose it@ Vacation Time policy did not taint the laboratory conditions.
IV. GIA to Harmon Transfer
The HERE interference claim concerning the transfer of employees from GIA to Harmon is essentially another claim of change in working conditions during the critical period. The applicable exception, discussed above, to this general policy of adherence to status quo is Aclear and convincing evidence of a compelling business justification.@ Midway Airlines, supra, at 62; Petroleum Helicopters, supra, at 36.
The Carrier presented sufficient evidence of the compelling business justification for the sublease of the GIA concessions which occasioned the transfer of employees to Harmon. Furthermore, the record on this claim establishes that the Carrier had no intent to interfere, coerce, or influence the election, and HERE established no impact of these decisions on the election. Therefore, the Board finds HERE has failed to establish that the Harmon transfer tainted the laboratory conditions.
V. Transportation of Employees to Collect Ballots; Receiving and Distributing Ballots
It is the policy of the Board that its elections are to be conducted in such a manner as to ensure ballot secrecy. ASimply stated, the ballot materials are mailed to the employee and the ballot system rests on the premise that the employee is to return the ballot directly to the NMB in the postage paid return envelope if the employee intends to vote for representation.@ United Air Lines, Inc., 22 NMB 288 (1995).
The record establishes that the Carrier=s management officials and assistants to top level management officials handled many ballot packages and delivered ballot packages to a large number of employees. In addition, Carrier management officials were present at the very instant some employees received their ballots. Moreover, a management official transported the employees to the FedEx office to pickup their ballots.
In each of these instances, the Investigator=s interviews with employees established beyond doubt that the Carrier=s handling and delivery of ballots influenced the employees= decision to vote. For example, the handling of ballot packages by LSG management officials left many employees with the impression that the election was being administered by the Carrier. Some employees made efforts to openly throw away their ballots in view of management officials and the assistants who delivered the ballot packages.
On Guam, Necita Serrano received ten ballot packages from FedEx and distributed them to employees either personally or through the LSG internal mail, which may have involved delivery by that employee=s manager.
Another Carrier management official on Guam, Mariano Zaldivar, drove at least five on-duty employees in an LSG van to FedEx to collect their ballot packages. For at least fifteen minutes after picking up their ballots, the employees sat with Zaldivar, ballots in hand, while he drove them back to work in the LSG van. Moreover, the evidence in the record overwhelmingly supports that the transporting of employees by Zaldivar impacted the election.
On Saipan, nearly all the ballot packages were delivered to employees by Leah Magno, assistant to Executive Chef Willen who was the highest ranking LSG management official on Saipan. The evidence is overwhelming that the receipt and distribution of the ballot packages by Magno impacted the election results.
To preserve the ballot secrecy, management officials must never handle ballot packages or assume any role in delivering ballots to employees. Therefore, the Board finds that the Carrier=s handling of ballot packages, delivery of ballot packages, and its presence at the critical instance when the employees received their ballot package, particularly in the unique employment atmosphere of Guam and Saipan, constituted per se interference and tainted the laboratory conditions required in an NMB representation election.
CONCLUSION AND ORDER
The Board finds that the laboratory conditions required for a fair election were tainted. The Board=s finding is based on the LSG management officials handling and delivery of ballot packages. The Board has determined that these actions constitute per se interference.
The Board finds that the unique environment of Guam and Saipan requires an on-site ballot box election process. To ensure a sufficiently secret ballot box process, a ALaker@ ballot is necessary in this case. Therefore, pursuant to its authority under Section 2, Ninth, the Board orders a re-run, on-site ballot box election among LSG=s In-Flight Kitchen and Commissary Employees using a ALaker@ ballot. The choices on the ballot will be HERE and ANo Representation.@ Space for write-in votes will not appear. The majority of votes cast will determine the outcome. The Board=s Representative will administer the on-site ballot box election.
Copies of the attached NOTICE TO ALL EMPLOYEES must be posted within ten (10) calendar days of the date of this decision on all the Carrier=s bulletin boards on Guam and Saipan and in all locations where employee notices are normally posted. The Board will also supply the Carrier with translated Notices in several other languages which must be posted side-by-side with this English language Notice. The posted Notice(s) must be clearly visible and remain in place for the duration of the election period. The Carrier must certify to the posting on the attached form, provide the Board and HERE with a list of all locations where they may be found, and provide HERE with a copy of the attached Certification of Posting.
Within ten (10) calendar days of the date of this decision, the Carrier must provide an alphabetized list of the full names of all employees on the list of potential eligible voters using the cut-off date of January 23, 1996.
By direction of the NATIONAL MEDIATION BOARD
Stephen E. Crable
Chief of Staff
Joseph L. Manson, III, Esq.
William A. Sokol, Esq.
Mr. Gregory Elliott
NOTICE FROM THE NATIONAL MEDIATION BOARD
TO ALL AIRPORT RESTAURANT AND IN-FLIGHT CATERING EMPLOYEES, INCLUDING SUPPORT EMPLOYEES OF
LSG LUFTHANSA SERVICES, INC.
After an investigation conducted by the National Mediation Board (NMB) in which the LSG Lufthansa Services (LSG) and the Hotel Employees & Restaurant Employees International Union (HERE) presented statements and evidence, the NMB found that by delivering and handling ballot packages LSG interfered with, influenced, or coerced employees= choice of representative in violation of the Railway Labor Act.
The NMB has authorized a re-run election. The re-run election will be conducted on-site using a ballot box among LSG=s Airport Restaurant and In-flight Catering Employees, including Support Employees. The choices on the ballot will be HERE and ANo Representation.@ The majority of votes cast will determine the result of the election.
The Railway Labor Act allows employees the right to select representatives without carrier influence or interference. LSG is not permitted to influence, interfere or coerce employees in any manner in the up-coming election.
During the election period, an NMB Representative will be available to immediately investigate any allegations of election interference. If you have any questions concerning this notice or compliance with its provisions, you may directly contact the National Mediation Board, Washington, DC 20572, Telephone (202) 692-5040.
A copy of this NOTICE be posted on all LSG bulletin boards on Guam and Saipan and in all locations where employee notices are normally posted. The posted NOTICE must be clearly visible.
In the Matter of the
Application of the
HOTEL EMPLOYEES & RESTAURANT EMPLOYEES INTERNATIONAL UNION
alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended
involving employees of
LSG Lufthansa Services, Inc.
27 NMB No. 3
CASE NO. R-6446
(File No. CR-6591)
INVESTIGATION-AUTHORIZATION OF ELECTION
CARRIER CERTIFICATION OF POSTING
I ___________________ of LSG Lufthansa Services, Inc. certify to the National Mediation Board (NMB) that on __________, 1999, I posted or had posted the Notice to All Employees in this case on Carrier Bulletin Boards and at other appropriate locations, including all locations where other notices to employees are usually posted. I posted or had posted these Notices in such a way that they are completely visible. A copy of this certification has been provided to the HOTEL EMPLOYEES & RESTAURANT EMPLOYEES INTERNATIONAL UNION. This CERTIFICATION must be returned to the NMB within five (5) calendar days of the posting of the Notice.