In the Matter of the
Application of the
alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended
involving employees of
27 NMB No. 80
CASE NO. R-6691
This decision resolves allegations of election interference filed by the International Federation of Professional and Technical Engineers (IFPTE or Organization). For the reasons discussed below, the Board finds that laboratory conditions required for a fair election were not tainted and dismisses IFPTE's application.
On July 29, 1999, IFPTE filed an application pursuant to the Railway Labor Act (Act), as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute among Engineering and Related Employees of United Airlines, Inc. (United or Carrier).
On July 30, 1999, the Board docketed this case as NMB Case No. R-6691. At the time this application was received, these employees were unrepresented. The Board assigned Mary L. Johnson as the Investigator. On August 24, 1999, the Board found a dispute to exist and authorized an election. Ballots were mailed on September 24, 1999, and the count occurred October 25, 1999. The results of the count were that of 659 eligible voters, 289 cast valid votes for representation. This was less than the majority required for Board certification.
On October 27, 1999, IFPTE filed allegations of interference pursuant to Section 14.0 of the Board's Representation Manual. The Organization supplemented its filing on November 12, 1999. The Carrier filed its response on November 23, 1999. Additional submissions were filed on December 15, 1999, and January 5, 2000. Both participants provided affidavits and other documentary evidence in support of their positions.
Did United's actions taint laboratory conditions the Board requires for a fair election?
IFPTE contends that from the time United was notified of the organizing drive, the Carrier interfered through a "systematic campaign." Specifically, the Organization asserts that the employees at issue were subject to a five-year wage freeze. As the result of United's "Vision 2000" program, the Carrier promised to implement pay raises of up to twenty-five percent in April 2000, but allegedly stated at "mandatory" meetings and in letters that the pay raises would not be implemented if the employees chose representation. The Organization also states that the Carrier used these meetings and letters to convey false information regarding the election and other issues.
Further, IFPTE states that United made changes in its System Roundtable (SRT) program.
Finally, IFPTE asserts that members of its organizing committee were subject to surveillance.
The Carrier denies interfering with the election. According to United, it initiated its "Vision 2000" program in February 1997, to ensure that all its employees would receive market-rate compensation by April 2000, the end of its Employee Stock Ownership Program (ESOP)(1) period. The Carrier asserts that it informed employees that if the union were elected, compensation would be a subject of bargaining. United also maintains that the meetings it conducted were voluntary, and that accurate information was provided during those meetings and in letters to employees.
The Carrier disputes the Organization's assertion that the Engineering and Related Employees were subject to a five-year wage freeze, stating that these employees received pay increases in 1997 and 1998.
The Carrier also states that the SRT was reorganized in April 1999, because its 19,000 Passenger Service Employees were represented by the International Association of Machinists & Aerospace Workers, AFL-CIO (IAM), and were no longer part of the SRT. According to United, the Engineering Division and the Information Service Division constituted a larger percentage of the Carrier's non-represented work force, therefore, those two groups increased their presence in the SRT. Finally, the Carrier denies that it engaged in surveillance.
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:
United Airlines, Inc. is a common carrier by air as defined in 45 U.S.C. § 181, of the Act.
IFPTE is a labor organization and/or representative as provided by 45 U.S.C. § 152, Ninth, of the Act.
45 U.S.C. § 152, Third, provides in part: "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
In February 1997, United Chairman Jerry Greenwald sent employees a newsletter regarding "His Vision for the Year 2000," or the "Vision 2000" Program. Among the goals Greenwald announced were "the restoration of fully competitive compensation . . . competitive with peer group compensation elsewhere in the industry."
In May 1998, the Engineering employees generated their Vision 2000 proposals. Their proposals included salary leveling by April 2000, annual cost-of-living increases, paid overtime and lunches, an improved promotion system, a twenty-five percent pay increase, and Engineering representation on the SRT.
On September 21, 1998, William P. Hobgood, Senior Vice President-People, sent a letter to "all Administrative and Management Employees," approximately 12,000 individuals. The letter stated that Vision 2000 pay improvements would take effect in April 2000.
In December 1998, the Carrier announced that it had retained Aon Consulting to "lead a study that will help us meet our goal of implementing new market-based total compensation programs for management and non-union administrative employees in April 2000."
On January 21, 1999, Hobgood notified employees that Aon conducted "focus groups" about pay and benefits at three large stations. Hobgood also invited additional feedback from employees.
Perry Brown, Senior Staff Executive-Compensation, People Division, testifies that in the fall of 1998, he compared the Engineering Division's compensation analysis to Aon's analysis. Brown states he concluded that Engineering's proposal "mirrored the initial results generated by United's own survey and the results reported by Aon Consulting." Brown also states that "[as of November 1999] no promises of specific increases [were] made . . . ."
According to one of IFPTE's affiants, in February 1999, a group of engineering employees began exploring collective bargaining options. The group contacted IFPTE in mid-February 1999, and the organizing committee began circulating authorization cards in late February 1999. In March 1999, an IFPTE representative, Walter Yonn, and members of the organizing committee attended a meeting with Al Koehler, Director of Labor Relations. The affiant states: At the meeting, Walter Yonn formally notified the Carrier of the organizing campaign and identified key members of the organizing committee.
According to IFPTE, a substantial number of authorization cards were collected in April 1999. Yonn sent a letter to Koehler in July 1999, referencing the March 1999 meeting.
Several Carrier officials submitted affidavits stating they learned of the organizing campaign in August 1999. The Board finds that the Carrier was under an obligation to maintain laboratory conditions commencing March 1999.
On May 27, 1999, Hobgood sent another letter to all administrative and management employees. In the letter, Hobgood informed employees that "under Vision 2000 guidelines," employees performing at the satisfactory level would receive a pay increase. Hobgood also stated that the preliminary findings from Aon's study was that some United employees were being compensated "at more than 25 percent below market."
On July 30, 1999, Hobgood sent another letter outlining the timetable for the new compensation program. According to the timetable, there would be a review with Administrative and Management employee "focus groups" in August 1999. The salary review process would continue from September through November 1999.
On September 15, 1999, Lou Mancini, Vice President-Engineering & Technical Support, and Patti Carson, Director-People Services, Fleet Operations, sent a letter to the employees in the craft or class. The letter extensively discussed the pay study and the April 2000 pay raise. Mancini and Carson expressed their view that the decision to vote for a union was "an important one that we hope will not be made solely on the basis of today's compensation system frustrations." The letter also informed employees that "the National Mediation Board will mail sample ballots to your homes on September 17, 1999, and official ballots will be sent on September 24, 1999. . . . Employees who are not interested in union representation should simply not return their ballots."
Meetings to Discuss Unionization
IFPTE submitted several declarations from employees who state that they were required to attend meetings conducted by Carrier officials to campaign against the union.
One meeting was held on September 23, 1999. According to the IFPTE declarants, this meeting was mandatory. The meeting was conducted by Mancini, Jim Uhl, Vice President Engineering, and other management officials. Uhl reportedly told the employees "if you do decide to join the union, you should know that is forever." According to one declarant, "the clear message in the meeting was that if the employees voted for a union, the plan to raise our pay would be delayed significantly by union negotiations."
Two employees state that Mancini reminded the employees that United employs a much larger engineering staff than other major carriers. One declarant states further that this "made a major impression" because the other airlines contract out much of their engineering work, and employees "interpreted" this comment to mean that United would lay off engineers if they voted for the union. Mancini also purportedly told employees that voting for the union was a permanent decision. The declarant also states that Mancini promised to change the promotion criteria "to make them more objective."
Finally, the Organization provided testimony that employees with IAM seniority were told they would lose seniority if they voted for IFPTE.
IFPTE also asserts that Mancini directed a series of mandatory meetings with employees to discuss unionization. The Organization provided a document titled "Engineering Meetings" showing meetings scheduled between September 21, 1999, and September 29, 1999.
The Organization also provided an e-mail dated September 22, 1999, from Manager Joe Oshinski titled "Updated EG Meeting List." The document contains a list of scheduled meetings and states, "[I]f some . . . people can't make my meeting on Friday, they should attend one of the others hosted here. . . ."
In addition, an employee in the craft or class, Paula Hurst, sent an e-mail that day under the heading "Mandatory Meeting." Hurst provided an affidavit and states that it was her understanding that the [EG] meeting was mandatory, "but some individuals . . . did not attend and . . . others left the meeting early." Hurst states further that the employees "were urged to consider [the vote] carefully, to make our own decisions, and to talk to Union representatives and/or management if we had any questions." In addition, Hurst states that managers told employees that they were "unable to give any answers until April 2000, but that the Company was . . . investigating the appropriate market benchmarks pursuant to Vision 2000 and various provisions of the ESOP."
United contends that the meetings were not mandatory. Mancini states that the meetings were voluntary, and were held to respond to employee questions. According to Mancini, he wanted to "emphasize that United was . . . proud of its Engineering Department as it is the largest in the industry . . . ." Mancini also "never discussed or implied any contracting out of engineering work." Mancini also states that he told employees that if IFPTE were elected, "wages would become a subject of collective bargaining . . . and we would immediately start bargaining . . . if the IFPTE were elected."
Mancini states that he does not "recall being asked . . . how to 'vote out' a union or if voting for the union meant it would be at United 'forever.'" Mancini testifies that when asked what would happen to employees' IAM seniority, he replied that he did not know the answer.
Uhl states that attendance was not required. According to Uhl, he told employees that he understood that to "'vote out' a union . . . under the Railway Labor Act. . . you could not simply call another election . . . but that it was a more complicated process."
Deval Patrick Meetings
The Organization states that meetings conducted by Deval Patrick during July-September 1999 were for the purpose of influencing the employees. Patrick was selected by the SRT as its representative on the Board of Directors. According to two employees, Patrick held a meeting with employees to discuss compensation, suggesting that there would be a substantial pay increase.
Jim Hardy, Director of Finance and Human Resource Information Systems, People Division, states that Patrick scheduled meetings with salaried and management employees in the spring of 1999, after he was re-nominated to serve a second term on United's Board of Directors.
System Round Table (SRT)
IFPTE maintains that the SRT's activities and composition changed significantly after the campaign began.
According to Hardy, the SRT was established in 1989 "to facilitate information flow in both directions between senior management and United's salaried and management employees." Hardy states that the SRT "is not a substitute for a union and does not engage in any bargaining, grievance or representational activities. The SRT usually meets every month . . . ."
As of 1998, the SRT had eighteen members selected from the Carrier's 37,000 salaried and management employees. In July 1998, a majority of United's 19,000 Passenger Service Employees voted in favor of representation by the IAM. According to IFPTE, SRT meetings were suspended during the IAM's campaign. The Carrier and the IAM reached a collective bargaining agreement in April 1999. This significantly reduced the number of employees eligible to participate in the SRT process. According to Hardy, because the Carrier's Engineering Division and Information Services division now constituted a higher percentage of United's salaried and management employees, each Division was now able to select a representative to the SRT.
In the minutes from an August 1998 SRT meeting, Hobgood stated that he did not know what would happen to the SRT in view of the Passenger Service election.
In December 1998, a new System Roundtable structure was announced. Its purpose was
[t]o review and discuss issues relating to the Company and their effect on salaried and management employees . . . . The body will act as one of the conduits of information to and from the employee population to senior management and the . . . Board representative who will be nominated annually . . . . The [SRT] is not a decision-making body.
The SRT met in February 1999 and scheduled a meeting for May 10-11, 1999. In April 1999, United announced that as the result of the Passenger Service election, the SRT would change. The new structure would "allow each division to continue to have its own roundtable or communication mechanism based on its own issues and needs. The flexibility also exists to let each division head determine within set guidelines what relationship, if any, there will be between the division and the SRT." At the May meeting, the group voted to include the new members from Engineering and Information Services. The new member from Engineering was Paul Flynn. At the meeting, members of management asked that the "SRT become more active, perhaps even meet monthly." There was also a discussion of a new "Cargo" Roundtable and a new "Onboard" Roundtable. The minutes indicate that in response to a question regarding a shift in management attitude towards the roundtable process, Hobgood responded, "we left choice of mechanisms up to divisions. There have been concerns from Engineering regarding a lack of voice. Senior managers are becoming more aware of voices." The next meeting was scheduled for June 22, 1999.
At some point after the selection of Paul Flynn as the Engineering SRT representative, it was decided that Engineering Forum meetings would be held monthly so Flynn could report back and forth between Engineering Forum meetings and SRT meetings.
At the June 22, 1999, SRT meeting, there was discussion of "confusion regarding Patrick's role," as well as discussion of meetings Patrick would hold with employees. SRT meetings were also held in July, August, and September with further monthly meetings scheduled through December. There was significant discussion of pay issues during the SRT meetings.
An employee states that his manager informed him that he could not use company facilities to conduct union meetings. According to the declarant, the manager said "just be aware that you guys are under surveillance." The manager denies the statement. In addition, an IFPTE affiant states that another employee expressed fear of signing the outside of the Board's ballot envelope based on belief that the Carrier "would see the signature and know he had voted for the Union." Fourteen individuals did not sign their attest on the ballot envelopes, and the Organization submits this fact in support of its contentions on this issue.
In numerous decisions, the Board has held that 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 284 (1986). The U.S. Supreme Court stated:
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."
Texas & New Orleans Railroad Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 568 (1930).
When evaluating whether employees' freedom of choice has been impaired, the Board examines the totality of the circumstances. In such an evaluation, each conclusion may not constitute interference in and of itself, but when combined with other factors, the totality evidences improper interference. The Board bases its evaluation on the facts developed in its investigation and from Board experience. Petroleum Helicopters, Inc., 25 NMB 197 (1998); Evergreen International Airlines, 20 NMB 675 (1993); America West Airlines, Inc., 17 NMB 79 (1990).
Knowledge of the Organizing Drive
Laboratory conditions must be maintained from the date the Carrier becomes aware of the organizing drive. Era Aviation, 27 NMB 321 (2000); American Airlines, Inc., 26 NMB 412 (1999). The laboratory conditions commenced March 1999.
Vision 2000 and Pay Raises
The record establishes that Vision 2000 began in February 1997 and that plans to improve pay for its 12,000 management and "non-union" employees were announced before the IFPTE campaign in 1998 and 1999. The record does not support a finding that specific Vision 2000 pay raise information was issued in response to the IFPTE's campaign. The Carrier's subsequent statements that compensation was a subject for collective bargaining were consistent with earlier statements. The Board finds that these actions did not taint laboratory conditions.
Carrier Meetings and Campaign Communications
Carrier meetings with employees are not improper unless they are mandatory, coercive, or significantly increase in frequency during the election period. Era Aviation, supra; LSG Lufthansa Services, Inc., 27 NMB 18 (1999); Midway Airlines Corporation, 26 NMB 41 (1998). Carriers have the right to communicate their views 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).
Thus the Board looks at Carrier communications and meetings in the "totality of the circumstances" context. Midway, supra; Petroleum Helicopters, supra. The Board also examines the content of communications to determine if they are coercive, contain material misrepresentations about the Board's processes or the Act, or combined with other Carrier actions, improperly influence the employees' choice of representative.
The Board finds that the evidence establishes that the few meetings held by Mancini, Uhl, and other management officials were neither mandatory nor coercive. The meetings held by Patrick were not related to the IFPTE campaign.
There is insufficient evidence to support a finding that the statements made during the meetings contained material misrepresentations about the Board's processes or the Act. Further, the statement in the Carrier's letter of September 1999, regarding the mailing of sample ballots to employee homes on September 17, 1999, while erroneous, was not a material misrepresentation.
The Board traditionally has held that the mere existence of employee committees, such as United's SRT, is not evidence of interference. American Airlines, supra. In US Airways, 24 NMB 354 (1997), the Board held that viewed in the "totality of the circumstances," the particular carrier's use of employee committees to expand benefits or make other material changes tainted laboratory conditions. See also Horizon Airlines, 24 NMB 458 (1997).
In August 1998, after the IAM was certified to represent United's 19,000 Passenger Service Employees, the Carrier contemplated changes to its SRT system. These changes involved thousands of employees in addition to the approximately 700 Engineering employees. The Board finds that changes to the SRT responded to the fact that 19,000 employees no longer would participate in the process. A new SRT structure was announced in December 1998, before the laboratory conditions attached. Further changes included revival of the lower-level division forums, increased frequency of SRT meetings, and enhanced participation for the Engineering Division and the Information Services Division. However, the record also establishes that the Carrier did not use the SRT as a vehicle to expand benefits, or as a substitute for collective bargaining. While the changes generally may have benefitted the Engineering employees, they were applicable to all non-represented employees. When viewed in the "totality of the circumstances," the Board finds that the SRT changes did not taint laboratory conditions.
There is no evidence of a systematic Carrier surveillance of employees active in IFPTE's campaign. The fact that fourteen employees did not sign their ballot attests also is not evidence of interference.
CONCLUSION AND DISMISSAL
The Board finds that United's activities did not taint laboratory conditions. On the basis of the investigation and report of election which establishes that less than a majority of eligible employees cast valid ballots in the election, the National Mediation Board finds no basis for certification and the application is, therefore, dismissed subject to Part 1206.4(b) of the NMB Rules.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Mr. Alan R. Koehler
Gary S. Kaplan, Esq.
Jennifer A. Coyne, Esq.
Julia Akins Clark, Esq.
Mr. Walter Yonn
1. United's ESOP resulted in reduced salaries for employees in exchange for Carrier stock.