In the Matter of the
alleging a representation dispute
pursuant to Section 2, Ninth,
involving employees of
27 NMB No. 75
CASE NO. R-6715
This determination resolves the interference allegations filed against Air Logistics, L.L.C. (AirLog) by the Office and Professional Employees International Union (OPEIU). For the reasons discussed in this decision, the Board finds that AirLog did not interfere with laboratory conditions. Therefore, the Board's dismissal of the application in this matter is affirmed. Air Logistics, LLC, 27 NMB 291 (2000).
On November 15, 1999, OPEIU filed an application with the National Mediation Board (Board) pursuant to 45 U.S.C. § 152, Ninth, alleging a representation dispute among Mechanics and Related Employees of Offshore Logistics, Inc. (Offshore). The Board assigned Benetta M. Mansfield as the Investigator. After an investigation, the Board found that Offshore is no longer a carrier under the Railway Labor Act (Act), but is a holding company for two separate carriers under the Act, AirLog and Air Logistics of Alaska. The Board administratively amended the application into two applications alleging representation disputes among the Mechanics and Related Employees of AirLog (NMB Case No. R-6715) and Air Logistics of Alaska (NMB Case No. R-6730). Offshore Logistics, Inc., 27 NMB 178 (2000).
At the time the application for AirLog was received, these employees were unrepresented.
On January 31, 2000, the Board found a dispute to exist at AirLog and authorized an election. Ballots were mailed on February 14, 2000, and the count occurred on March 13, 2000. The results of the count were that of 217 eligible voters, ninety-eight cast ballots for OPEIU, and two cast ballots for the International Brotherhood of Teamsters, less than the majority required for Board certification. On March 14, 2000, the Board dismissed the AirLog application. Air Logistics, supra.
On March 22, 2000, the OPEIU filed allegations of election interference supported by documents and affidavits. On April 4, 2000, AirLog responded. On April 26, 2000, the Board notified the participants that the allegations by OPEIU stated a prima facie case that laboratory conditions were tainted.
Did AirLog's actions taint the laboratory conditions required for a fair election?
OPEIU contends that the totality of AirLog's conduct during the election process tainted laboratory conditions. OPEIU states that three days prior to the February 11, 2000, ballot mailing, Neill Osborne, AirLog's Director of Operations, issued a memorandum stating AirLog's intent to withhold a planned four percent pay increase to the Mechanics and Related Employees if they voted for OPEIU. OPEIU further states that although this memorandum was directed to "Department Heads, Base Managers & Shop Supervisors," it was made widely available by AirLog management to craft or class employees. OPEIU says this "planned increase" was not part of a historical pattern of regular increases found in the AirLog's Administrative Procedures Manual (APM). The OPEIU argues that the announced increase and the timing of the announcement interfered with the election process.
OPEIU states that after AirLog learned of OPEIU's organizing campaign, it announced a Conversion Bank for Paid Days Off on October 13, 1999. AirLog made the new benefit available to "All Maintenance, Support and Administrative Employees." OPEIU contends that AirLog intentionally omitted the OPEIU-represented pilots to send a message to the Mechanics and Related Employees that AirLog would provide them with better benefits than those negotiated by the union-represented pilots.
OPEIU contends that three days before the ballots were mailed, AirLog sent a letter to each employee in the craft or class detailing the exact amount of pay increases that each employee received since 1997. The letter stated "[d]uring the two (2) years of negotiations, the pilots' pay was frozen while all other AirLog employees received unprecedented increases." With each letter, AirLog included a copy of the 1997 pay scale and the current pay scale for employees to make comparisons and attached a copy of other changes that AirLog made in addition to base pay. OPEIU argues that AirLog's right to communicate is not without limit, and that the facts compel the conclusion that AirLog interfered with the election process.
OPEIU also states that AirLog established a Peer Review process during the election period. The Peer Review process was first announced in a memorandum from Osborne on October 13, 1999. On November 1, 1999, AirLog again advised its employees of the creation of the Peer Review process in the APM. On January 3, 2000, AirLog followed up with a six-page document detailing the process. OPEIU argues that "[certain] carrier conduct regarding employee committees interferes with employee freedom of choice . . . ." US Airways, 24 NMB 354 (1997). OPEIU argues that AirLog set up this process after becoming aware of OPEIU's organizing campaign and implemented it after OPEIU filed its application.
OPEIU states that on November 23, 1999, Offshore Logistics' President, George Small, sent a letter to all maintenance personnel stating, in essence, that voting for the OPEIU was an exercise in futility. Citing USAir, 17 NMB 377 (1990), OPEIU argues that this message improperly influenced voters.
OPEIU also states that Small conducted numerous meetings at AirLog, reaching approximately seventy-five percent of the employees. OPEIU argues that these meetings were unprecedented, and that Small used the visits to personalize his anti-union message.
For all these reasons, OPEIU requests a new election using a "Laker" ballot.
Initially, AirLog argues that in Offshore Logistics, supra, the Board acted beyond its authority when it "administratively amended" the Offshore Logistics application into two applications alleging representation disputes at AirLog and Air Logistics of Alaska.
AirLog states there is no representation dispute before the Board to investigate because the Board dismissed the application. Therefore, AirLog contends that the Board lacks jurisdiction over OPEIU's allegations.
On the merits, AirLog states that it did not interfere with laboratory conditions. AirLog asserts that, contrary to the OPEIU's contention, it did not learn of OPEIU's organizing drive until November 1999. At that time, OPEIU International Representative Paul Bohelski advised Osborne that the union was again organizing the Mechanics and Related Employees. Bohelski followed with a letter to Osborne on November 11, 1999. Therefore, AirLog claims, laboratory conditions did not attach until November 1999.
AirLog states it did not announce any kind of pay raise to employees in the February 11, 2000, memorandum. The memorandum asked supervisors for recommendations for individual pay increase recommendations for administrative and ground support staff. The memorandum was distributed only to management personnel. An employee took the memorandum from a supervisor and distributed it among the craft or class without Carrier consent. AirLog states that the memorandum was unclear whether mechanics and shop technicians would receive a wage increase because the adjustments, if any, would take place after the ballot count.
AirLog states that the Conversion Bank and Paid Days Off program was a pre-planned benefit announced before AirLog knew of the OPEIU's organizing campaign. AirLog states that the program was planned in June 1999, and by August 1999, AirLog was developing a draft of the program. The details of the program were announced on October 13, 1999, a month prior to the time AirLog claims it learned of OPEIU's campaign.
AirLog also claims that the Peer Review process was planned well before laboratory conditions attached, and was unrelated to the organizing campaign.
AirLog states that it properly communicated with employees, and the written communications did not interfere with the election. Finally, AirLog states that Small held a limited number of voluntary meetings with the employees at five bases and the New Iberia Hanger facility. These meetings and Small's statements did not interfere with the employees' choice of representative.
AirLog urges the Board to dismiss OPEIU's allegations of election interference.
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:
Air Logistics, L.L.C., is a common carrier by air as defined in 45 U.S.C. § 181.
OPEIU 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 "Representatives . . . shall be designated . . . without interference, influence or coercion . . . ."
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 . . . ."
FINDINGS OF FACT
I. Knowledge of the OPEIU Organizing Campaign
OPEIU International Representative Paul Bohelski, the chief organizer for the AirLog campaign, states that OPEIU began circulating authorization cards in September 1999. In September 1999, Bohelski states he telephoned Osborne and personally notified him that the OPEIU was again organizing AirLog's Mechanics and Related Employees. Bohelski states that he also telephoned Jerry Glass, a labor relations consultant to Offshore Logistics, and formally notified Glass that OPEIU was circulating authorization cards at AirLog. Bohelski further states that in November 1999, he followed up the September telephone calls with a letter to Osborne confirming OPEIU's organizing campaign.
Osborne agrees that Bohelski telephoned him in the fall of 1999, but states that Bohelski "informed [Osborne] that the Union was considering beginning another campaign to organize Air Logistics' maintenance employees, and any such campaign would not begin until after the first of the year (2000) when OPEIU expected to be finalizing its campaign at PHI [Petroleum Helicopters, Inc.]." Osborne denies that Bohelski advised him that OPEIU was collecting authorization cards. Osborne further states that he first learned of the organizing campaign during the first week of November 1999. That week he received a telephone call from Bohelski advising Osborne that the OPEIU had begun a campaign at AirLog. On November 11, 1999, Osborne received a letter dated November 9, 1999, from Bohelski stating as follows:
Please be advised that the Office and Professional Employees International Union is currently assisting the Mechanics employed at Offshore Logistics, Inc., with their renewed union organizing campaign at your company.
Glass also filed a sworn statement. Glass states:
In the fall of 1999, [Bohelski] informed me that the Union was considering beginning another campaign to organize Air Logistics' maintenance employees, but that he wanted to try and wait until after the first of the year 2000 to start organizing, when OPEIU expected to be finalizing its campaign to organize the pilots at PHI. Mr. Bohelski said he did not want to do anything at Air Logistics until after the PHI pilots were organized.
The Board finds that AirLog did not learn of the organizing campaign until the first week in November 1999, when Bohelski telephoned Osborne and later confirmed the information with a letter.
II. Pay Review Memorandum
On February 11, 2000, Osborne issued a memorandum about "Pay Review" to "Department Heads, Base Managers & Shop Supervisors." Osborne states that the memorandum was intended only for managers. The memorandum states,
In preparation for a staff salary review on April 1, 2000 (start of fiscal year) please rank all support and administrative employees in your department or at your base. Support and Administrative personnel performance evaluations should be utilized to verify all increase recommendations above or below the norm. Forward all recommendations to your immediate supervisor.
Although the final amount of the total increase available to Air Logistics has not been established, Department Heads should use 4% as the increase for each department. Any and all deviations from this number on an individual basis must be documented and included with your recommendations.
It is not clear whether our A&P Mechanics and Shop Technicians will be included in these increases. However, Shop Supervisors should forward all recommendations for Shop Technician grade changes in the event the Mechanics and Shop Technicians choose not to elect a collective bargaining unit.
In his affidavit, Osborne states that compensation of administrative staff and ground support personnel at AirLog is based on individual job performance which is evaluated by supervisors and base managers. Only non-represented employees participate in this annual pay review process. The pilots, who are OPEIU-represented, negotiate for wage adjustments. Osborne states that it is AirLog's normal procedure to conduct these pay reviews so that wage adjustments take effect on April 1, which begins the fiscal year. Osborne states that the memorandum asks department heads, base managers and shop supervisors to recommend individual pay increases for administrative and ground support personnel. Any employee could receive an increase or no increase at all. Increases are announced in April.
Osborne states that the mechanics and technicians are not referenced in the memorandum because their wages are not based on individual performance but on industry pay and longevity scales. Osborne states wage increases for non-unionized mechanics and technicians are announced in April, along with the individual increases for administrative and support staff.
Osborne states that the technicians' wage scale is based on longevity and on "grades" assigned, based on performance, by supervisors and managers. Grade changes occur throughout the year. Osborne states that he asked for technician grade changes to be implemented when laboratory conditions were no longer required.
AirLog's Executive Vice President-International Division, Dru Milke, filed a declaration corroborating Osborne's statement on how wage increases are implemented.
OPEIU submitted two employee statements about the memorandum. George Woodward, an employee organizer and mechanic at the Intracoastal City, Louisiana, base, states that on February 7, 2000, he received a telephone call from an employee at the Patterson, Louisiana, base. The employee told Woodward that the Patterson base manager had advised approximately six employees that AirLog intended to provide a four percent increase for ground support and administrative personnel, and that mechanics would be included in the four percent increase only if they did not vote for union representation. Woodward also states that after returning to work on February 16, 2000, the planned four percent pay increase and the fact that mechanics would only be included if they voted against representation was being discussed by several members of the craft or class. Woodward states that several employees told him they saw Osborne's memorandum posted at the Intracoastal base. Woodward also says that he telephoned several members of the craft or class who were aware of the memorandum and believed that they would not receive the four percent increase if OPEIU won. An A&P Inspector at AirLog's Acadiana Regional Airport facility states that a copy of Osborne's memorandum was brought to him by an Avionics Completions Shop employee. This Inspector states that the Completions Shop supervisor left a copy of the Osborne memo in the shop work area, accessible to "any number of employees in the craft or class." The inspector states that based on the memo, "I firmly believe that I will be receiving a 4% pay increase in the near future as a result of OPEIU not being voted in. Similarly, I am convinced that had OPEIU been voted in, the Mechanics and Related Employees would have had their pay frozen until a collective bargaining agreement had been signed between OPEIU and AirLog."
To counter these statements, AirLog presented affidavits from several managers. James Taylor, Completions Shop Supervisor, states that he received the Osborne memo, removed it from the envelope and put it on the stack of paperwork on his desk. He states that he did not post it or leave it at his desk for others to view. The two base managers at Intracoastal, Allan Williams and Kade Monlezun, also provided affidavits. Williams states that he received the memo and met with Maintenance Manager Dwight Carter to discuss it. Carter stated to Williams that he knew about the memo because he had seen it attached to the maintenance office door. Williams states that he told Carter that the memo was not for posting and Carter removed it. Williams states he did not post the memo and does not know who did. Monlezun states that he also received the memo, that he did not post it, and has no knowledge that anyone else posted it. Joe Hanna, a Maintenance Supervisor at the Intracoastal base states that he was aware of the memo and saw it posted on the maintenance office door but does not know who posted it.
Finally, AirLog presented an affidavit from an Intracoastal base mechanic who states that on March 7, 2000, he observed employee Dave Tomlinson post the Osborne memo. The mechanic states that shortly thereafter, the memo was taken down and passed among the mechanics.
Larry Huff, the Base Manager at AirLog's Patterson base, stated that he received the memo in February. Huff further states that during the last week in February, he advised the Patterson Maintenance Manager that an April pay raise of approximately four percent had been approved for the mechanics. Several employees were milling in the area where Huff had this conversation. Huff further states that at some point, either the Maintenance Manager or one of the employees asked if they would be receiving a pay increase. Huff states: "I addressed the issue as honestly as I could, and explained that if mechanics became unionized, they would enter into negotiations with the Company and their pay and benefits could be frozen during negotiations."
III. Benefit Changes
On October 13, 1999, Osborne issued a memorandum to "All Maintenance, Support and Administrative Employees" stating that "the Company is converting the current vacation and sick leave policy to a 'Paid Days Off' program." The memorandum stated that the program would go into effect on January 1, 2000. The memorandum described the program as follows:
All unused vacation time and all vacation accrued since the employee's last anniversary will be placed in a new CONVERSION BANK. The Conversion Bank is set up for each maintenance, support and administrative employee. When an employee separates from the company the employee shall receive payment for all days in the employee's conversion bank at 100% value of his then current daily rate.
In the same memo, Osborne stated that effective January 1, 2000, AirLog would implement a "peer review" process to ensure fairness in the work place. The memo stated, "[w]hile we are working out the details, the peer review board will have the authority to reverse any disciplinary action that it determines is not consistent with company policy."
On January 3, 2000, Osborne posted a memo to "All Maintenance and Administrative Personnel" detailing the new Peer Review process.
OPEIU's witness, Woodward, states that the October 13, 1999, memo,
[V]aried greatly from the position Offshore Logistics, Inc. ("OLOG"), AirLog's corporate parent, took regarding its [OPEIU represented] flight deck crew members as to the same issue. . . . OLOG took the position that contract language in the collective bargaining agreement between OPEIU and OLOG required that all unused vacation time was lost forever to the pilots and could not be placed in any conversion bank . . . . However, OLOG chose not to apply this same policy to its non-union employees and allowed the Mechanics and Related Employees to bank all unused vacation time. Therefore, AirLog was telling its Mechanics and Related Employees that it was voluntarily extending greater benefits to its non-union employees than OPEIU had gained for the flight deck crew members through bargaining. . . .
Woodward states that the peer review was a primary concern among craft and class employees. Woodward states that discussions of this issue were posted on the organizing website. Woodward goes on to state: "AirLog's creation of the peer review program was another message to the employees that it would provide benefits similar to those gained by the pilots without the Mechanics and Related Employees having to vote for union representation or paying union dues."
Ric Fira, Director of Human Relations for Offshore Logistics, oversees human resources at AirLog. Fira states that after Offshore negotiated a Paid Days Off (PDO) program with the pilots in May 1999, AirLog decided to extend this benefit to all employees. Fira attached a June 4, 1999, memo from Small to all Maintenance, Support and Administrative employees on salary and benefit changes. The memo reads:
Paid Days Off - The Company will convert the current vacation, sick leave and holiday policy to a Paid Days Off program, effective January 1, 2000. This program will be described to you in greater detail as the start up date approaches. . . . Additionally, this program will contain provisions for converting days off into cash at the end of the year or to "bank" days for future use if longer term illness
should occur. Finally, under this program, unused days that are banked in this manner can be sold back to the Company upon retirement.
Fira further states that throughout the summer of 1999, he and other officials planned the conversion into the new PDO system for non-contract employees, including the Conversion Bank. The Conversion Bank aspect of the program was officially announced in Osborne's October 13, 1999, memo.
Fira states that AirLog began planning a peer review process in the spring of 1999. Fira states that he began collecting information on effective peer review programs at other companies. Fira says that throughout the summer of 1999, AirLog continued to plan the details of a Peer Review program which was announced in Osborne's October 13 memo. Fira also states that the Peer Review program functions only as a discipline review system. The committee established in the program does not have the authority to recommend, negotiate, or implement Company policies or wages and benefits.
IV. Correspondence and Facility Visits by George Small
About one week after OPEIU filed its application, Small sent a memo to "All Maintenance Personnel." The memo stated that "we should all question what the OPEIU's real motives are in trying to organize the mechanics and shop technicians." Small then stated that it was his view that the union was organizing at AirLog to gain leverage at PHI. Small went on to state:
Union or no union, every employee is going to receive the same benefits and will be paid industry standard wages for your particular work group. . . . We will continue to match or exceed salaries and benefits offered by other companies competing with us in our industry.
Union or no union, our commitment to you will be no different in the future. This means that you have a pretty simple decision to make in this election. You have to decide whether you are going to pay the OPEIU to receive what you already have and what we have committed to continue providing - the same benefits as all other Company employees and industry standard wages.
On February 11, 2000, three days before the ballots were mailed, Small sent a personalized letter to each employee in the craft or class. The letter stated in part:
It is very important that you understand how your wages are set and what will happen in collective bargaining. Our commitment to all Air Log employees is that they will be paid competitive industry wages for their particular work group. The attached comparisons show that we have lived up to this commitment. In fact, our mechanics and shop technicians lead the industry in compensation.
Additionally, during the last two and a half years Air Logistics has increased the pay of each non-union employee three (3) separate times . . . . A comparison of the A&P scale in place in 1997 to the current scale is also enclosed for your review.
The letter then personalized each person's wage and benefit increases and attached charts detailing them. The letter continued:
Another promise made by the union is that a "signing bonus" will be part of a union contract. The sum paid to our pilots at the front end of the contract, referred to by the union as a "signing bonus," was no such thing. . . . The amount that the pilots received was essentially the total of the wage increases they missed out on during the union negotiations - wage increases that the rest of the Company already had in their pocket. The union then took this amount and decided how to split it up. This Company did not and does not pay any sort of "bonus" as a reward for signing a union contract.
The letter ends by stating that wages reached in negotiations will be based upon Gulf coast helicopter operators and states, "You simply do not need to pay the union to get you industry leading wages - because you already have them." Attached to the letter were wage charts and comparisons.
Woodward states that starting in February 2000, Small visited approximately five bases and the New Iberia facility urging employees to vote against union representation. Woodward states that through these meetings, Small met with about seventy-five percent of the craft or class. Woodward states that at the Intracoastal base, Small stated as follows:
[H]e explained to the assembled employees that they could vote against the OPEIU by not mailing in their ballots and encouraged them not to mail the ballots in. Small also stated that he would probably lose his job if the employees voted for union representation. Small also stated that if the pilots at Petroleum Helicopters did not vote for union representation, AirLog would be at a competitive disadvantage by nature of being the only unionized helicopter company in the Gulf of Mexico. Small also stressed that if the employees voted for union representation AirLog would lose its competitive edge as far as maintenance costs . . . the employees were likely to work longer hours . . . [and] implied that the increase in hours would increase maintenance costs as a result of union representation.
Woodward also states that since becoming Chairman of Offshore, Small did not conduct any similar meetings at AirLog's bases.
Small admits that he visited five bases and the New Iberia facility. He states he had twelve group meetings, each lasting thirty minutes to an hour. Small states the meetings were voluntary. Small admits that he discussed NMB election procedures and the election schedule and explained to vote no, employees should simply not send in their ballot. Small states that he expressed his opinion that the employees did not need a union because they were already receiving better wages than those paid by AirLog's competitors. Small states:
I never hinted or implied, much less stated that I would probably lose my job if a union was elected. At one meeting, the issue of job security should the union be elected was raised. The statement was made that I had an employment contract, and, therefore, did not have to worry about job security. I responded that my employment contract was no guarantee of job security and that I too could lose my job at any time. . . .
Small states that he repeatedly expressed that he did not know what would happen if the Union was voted in. Small states that he expressed "a concern that the Company would be more exposed if it remained the only unionized helicopter outfit in the industry. However, I also noted that since OPEIU had been certified to represent the pilots, we had lost one small job." Small denies stating that the mechanics would work longer hours if OPEIU was voted in.
During election campaigns, a Carrier must act in a manner which does not influence, interfere or coerce the employees' selection of a collective bargaining representative. Metroflight, Inc., 13 NMB 264 (1986). When evaluating whether employees' freedom of choice has been impaired, the Board examines the totality of the circumstances. As the United States Supreme Court states in Texas & New Orleans Railroad Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 568 (1930):
The meaning of the word 'influence' [in Section 2, Ninth] 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.'
I. Board Jurisdiction
AirLog's argument about the Board's administrative amendment of the application underlying this matter is not properly raised here. AirLog also argues that the Board lacks jurisdiction to investigate the interference allegations because the Board dismissed the application on March 14, 2000.
On February 23, 2000, the Board made two revisions to the Board's Representation Manual. The first revision, to Section 13.2, "Certifications and Dismissals," changed the Board's procedures so that the Board will now ordinarily issue a Certification or Dismissal based upon the "Report of Election Results" the next business day following the count.
The Board also revised Section 14.0, "Allegations of Election Interference" to permit the filing of such allegations seven business days after the date of the count.
The dismissal of an application does not remove the investigation from Board jurisdiction under Section 2, Ninth. If allegations of election interference are filed, the "investigation" by the Board must insure "the choice of representatives by the employees without interference, influence or coercion exercised by the carrier." Therefore, this contention by AirLog is without merit.
II. Pay Review Memorandum
The language of the pay review memorandum itself indicates that 1) it was not directed to craft or class employees but to department heads, base managers and shop supervisors; 2) it requested recommendations for increases for support and administrative personnel (who were not in the craft or class) for possible merit increases; 3) it also sought recommendations for shop technician grade increases to go into effect on April 1, 2000 (the beginning of the fiscal year); and 4) April 1 was after the election in this case and, therefore, the memorandum stated that Osborne sought the recommendations in case the mechanics and shop technicians chose not to select OPEIU as their bargaining representative.
AirLog demonstrated that it conducts such reviews annually and that pay increases are based on the fiscal year. AirLog has also presented evidence that this memorandum was not meant for communication to craft or class employees, and it was a craft or class employee who obtained and distributed the memorandum. This was not an announcement of a pay increase nor the withholding of a pay increase. Therefore, the memorandum did not violate laboratory conditions. See Petroleum Helicopters, Inc., 26 NMB 13 (1998).
III. Benefit Changes
The Board has found that laboratory conditions did not attach until the first week of November 1999. The Conversion Bank was announced on October 13, 1999, before laboratory conditions attached. In the same memo, Osborne stated that on January 1, 2000, it would implement a "Peer Review" program.
Any change in working conditions during the period after the laboratory conditions attach can taint laboratory conditions. However, the Board has stated that the exceptions to this general rule are for changes that were pre-planned or the Carrier has presented "clear and convincing evidence of a compelling business justification." American Airlines, Inc., 26 NMB 412 (1999). The Board finds the peer review program was not an employee committee. AirLog has submitted convincing evidence that the Conversion Bank and the Peer Review process were planned during the summer of 1999. They were initially announced prior to the first week of November. Therefore, these changes did not interfere with the election.
A. Written Communications
OPEIU alleges that two written communications interfered with the laboratory conditions. The first was a memo from Small to "All Maintenance Personnel," and the second was a letter from Small dated February 11, 2000, three days prior to the ballot mailing.
Carriers have a right to communicate with their employees during election campaigns, but this right 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 (1990). In reviewing communications, the Board examines their content to see if they are coercive, contain material misrepresentations about the Board's processes or the Act, or combined with other Carrier actions, influence the employees in their choice of representative. The Board has found interference in communications that include threats about the consequences of voting for an organization. Mid Pacific Airlines, 13 NMB 178 (1986) (promising benefits; threatening to withhold pay).
OPEIU argues that in the November 23, 1999, memo from Small, he emphasized the futility of voting for the OPEIU by repeatedly referring to "union or no union" and linking this statement to wages and benefits.
The Board disagrees with OPEIU's interpretation of the communication. The communication expresses Small's view of unionization and the commitment by AirLog to pay employees at the industry standard with or without a union. In view of AirLog's history, this communication in and of itself is neither coercive nor threatening.
OPEIU also states that the February 11, 2000, communication to each employee was coercive and interfered with laboratory conditions. Sending each employee an accurate statement of the employee's wage and benefit scale is neither a misstatement nor coercive. Moreover, accurately restating the events in the pilot negotiations is not interference. See USAir, Inc., 18 NMB 290 (1991).
B. Small's Meetings with Employees
Carrier meetings with employees are not improper unless they are mandatory, coercive and significantly increase in frequency during the election period. LSG Lufthansa Services, Inc., 27 NMB 18 (1999). OPEIU does not contend that Small's meetings with employees were mandatory, but argues that they were coercive and that Small had never before held such employee meetings.
The record shows that Small visited five bases and the New Iberia Hangar facility. Small testifies that he did not state that if the union were voted in, he would lose his job, but in response to a statement about his "job security," Small responded that his employment contract was no guarantee of job security. He convincingly denies attaching this statement to the employee's choice of representation. While Small expressed his opinions, he did not act in a threatening or coercive manner.
The fact that Small held the meetings at all is insufficient to merit a finding of interference.
The Board concludes that there is insufficient evidence that AirLog interfered with the election. The Board, therefore, dismisses the allegations of election interference.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Joseph Z. Fleming, Esq.
Marc J. Esposito, Esq.
Melvin S. Schwarzwald, Esq.
Timothy Gallagher, Esq.
Mr. Paul Bohelski