This decision resolves allegations of election interference filed by the Independent Association of Continental Pilots (IACP or Organization). For the reasons discussed below, the National Mediation Board (Board) finds that laboratory conditions required for a fair election were tainted and orders a re-run election.

PROCEDURAL BACKGROUND

On April 10, 1998, the Independent Association of Continental Pilots (IACP) filed an application with the National Mediation Board (Board) pursuant to 45 USC § 152 alleging the existence of a representation dispute involving "Instructor Pilots as an accretion to the Pilots craft or class" at Continental Airlines, Inc./Continental Express, Inc. (Continental or Carrier). IACP was certified as the representative of Continental's "Airline Pilots" (Pilots) in NMB Case No. R-6193 in 1993. Continental Airlines, Inc. and Continental Express, Inc., 20 NMB 570 (1993) Continental R-6193. The IACP accretion application asserted that "Instructor Pilots" included Flight Instructors, Second Officer Instructors, and Training Check Airmen.

On January 25, 1999, the Board found Flight Instructors, Second Officer Instructors, and Training Check Airmen are not included in the Pilots' craft or class at Continental. The IACP application seeking to represent "Instructor Pilots as an accretion to the Pilots craft or class" was, therefore, dismissed. However, the time limits of 29 C.F.R. §1206.4 of the Board's rules were waived because the IACP application did not cover an appropriate craft or class. Continental Airlines, Inc./Continental Express, Inc., 26 NMB 143 (1999) (Continental R-6652).

On July 20, 1999, the IACP filed an application with the Board pursuant to 45 U.S.C. § 152, Ninth, alleging the existence of a representation dispute involving "Offline Check Airmen/Instructors" at Continental. At the time this application was received, these employees were not represented by any organization or individual.

The Board assigned Sean J. Rogers as the Investigator.

The IACP's July 20, 1999, application sought representation of approximately 277 employees in the craft or class of "Offline Check Airmen/Instructors." The Board determined that the proper craft or class was "Flight Instructors" and authorized an election among the Flight Instructors. Continental Airlines, Inc./Continental Express, Inc., 27 NMB 99 (1999).

The results of the count were that, of 199 eligible voters, seventy-one cast valid votes for representation. This was less than the majority required for Board certification. On February 15, 2000, the IACP submitted allegations of carrier election interference.

On February 23, 2000, the Carrier responded asserting that the IACP allegations were without merit and did not present a prima facie case for election interference. On March 3, 2000, the Board found that the IACP allegations and supporting evidence presented a prima facie case of election interference. On March 10, 2000, the Organization supplemented its allegations with a confidential witness list. On March 17, 2000, the Carrier responded. On March 24, 2000, the IACP replied, and on March 31, 2000, the Carrier submitted its final reply.

ISSUE

Did the Carrier's actions taint laboratory conditions the Board requires for a fair election? If so, what form should the Board's investigatory approach take?

CONTENTIONS

IACP

IACP asserts Continental interfered with laboratory conditions in many ways. The Organization says the Carrier became aware of the IACP's organizing drive among Instructor Pilots in April 1998 when the IACP filed for an accretion of "Instructor Pilots" into the Pilot craft or class. Continental, supra (R-6652).

IACP says that Continental unilaterally instituted two changes in Flight Instructor pay rates during the "laboratory period." The two changes included a new "pay rate protection" plan on November 30, 1999, and an enhanced overtime pay procedure in August 1999. The new "pay rate protection" plan allowed Flight Instructors to receive pay for the largest aircraft type and status held by any junior pilot in the Continental system and still bid a Line Pilot position in a location they preferred, usually near their homes. The enhanced overtime pay procedure raised the overtime pay from a minimum of 4.25 hours pay to 5.0 hours pay per overtime or "extra" event, according to IACP.

IACP also claims that on or about December 30, 1999, Continental enhanced the Flight Instructors' §401k plan and substantially improved their pension benefits in response to the IACP's organizing campaign.

IACP asserts that thirty qualified Flight Instructors, who supported IACP and were dues paying members, were subject to arbitrary "dismissals" to Line Pilot positions during the laboratory period. Moreover, IACP says that Continental retained nineteen unqualified instructors "to gerrymander the electorate and coerce the . . . selection of a representative." Specifically, the IACP says that the "unqualified" Flight Instructors who were not IACP members were not dismissed from their positions to return as Line Pilots. The IACP characterizes these personnel actions as "gerrymandering" the electorate to ensure an election result of no representation.

IACP alleges that during the laboratory period, the Carrier's management officials conducted "captive audience" and "one-on-one" meetings to influence and threaten Flight Instructors not to vote for representation. For example, according to the IACP, in August 1999, Gordon Bethune, Chief Executive Officer, "described the benefits that Instructor Pilots ha[ve] as so-called 'management pilots' and indicated that the [I]nstructors' grievances could be addressed without their becoming unionized." The IACP says that at least one management official conducted "one-on-one" meetings disguised as annual performance appraisals and disparaged the IACP and coerced the Flight Instructors in their free choice of a representative. The IACP asserts that "the Board has established that one-on-one interviews of craft or class employees by management officials are 'inherently coercive.'" Key Airlines, 13 NMB 153, 163 (1986) (citing Zantop Airlines, 6 NMB 834 (1979)).

Furthermore, the IACP alleges management officials threatened to contract out Flight Instructor work if IACP continued to organize the craft or class. As proof of this claim, the IACP says that Continental hired "[r]etired pilots . . . as contractors in the Training Department to conduct training . . . performed by Flight Instructors."

For all these reasons, IACP asks that the Board find that Continental interfered with the representation election and order a new election utilizing the "Laker" ballot.

Continental

The Carrier denies each claim of election interference raised by IACP. Continental says that "Flight Instructors . . . are part of a larger group of pilots performing staff functions who are commonly referred to as 'Management Pilots'." The Carrier says it has consistently used Line Pilot pay and benefits as the benchmark for determining Management Pilot pay and benefits.

Continental says that the IACP claims that it must maintain the status quo from April 1998, until February 2000, "is clearly wrong." The Carrier maintains that the January 25, 1999 dismissal of the April 1998 IACP accretion request, terminated whatever laboratory conditions existed. Continental, supra (R-6652). While Continental does not state when laboratory conditions attached in this case, the Carrier says "until July 1999, there was no pending representation application or, to the Company's knowledge, active organizing effort."

The Carrier says that on June 25, 1998, Continental and IACP amended their collective bargaining agreement covering the craft or class. The amended agreement, known as the "1997 Agreement," includes many enhancements to pilot pay, benefits, pensions and §401k programs. Continuing its long-standing and consistent practice of benchmarking Management Pilots' pay and benefits to Line Pilots, the Carrier says it developed "pay policies and supplemental pensions and §401k plans to ensure that Management Pilots were treated at least as well as Line Pilots."

Continental asserts it did not change laboratory conditions during the election. The Carrier says that the change to the §401k plan, a supplemental or "top hat" plan, was contemplated during the negotiations with the IACP Pilots. The Management Pilots' supplemental retirement plan had been under development for sometime, the Carrier says. Moreover, the Carrier's commitment to provide a comparable retirement benefit was communicated to Flight Instructors as early as March 1998.

Continental says that the "pay protection" plan for Flight Instructors was not a new policy and not introduced in response to IACP organizing. Flight Instructors' pay was based on status (Captain, First Officer, and Second Officer) and seniority before the Continental/IACP 1995 Pilots' collective bargaining agreement. The 1995 agreement changed Pilots' pay rates to a system based on equipment category (widebody, large narrowbody, and small narrowbody), and Continental changed Flight Instructors' pay rates as well at that time.

The Continental/IACP Pilots' 1995 agreement was amended on June 25, 1998, but was retroactive to 1997. The 1997 agreement provided for a "transition pay plan" and then a return to the pre-1995 agreement pay policy based on status and seniority. Continental says it was preserving the "status quo." Continental says that the changes were "minor policy changes" implemented to eliminate perverse incentives for Flight Instructors to bid for Line Pilot positions simply "for the money."

Continental says that the IACP's claims that overtime pay increased during the laboratory period misconstrue the facts. Flight Instructors were notified about the overtime or "extra event" pay policy in July 1998, just after Continental and IACP signed the 1997 agreement. Unfortunately, the pay policy was not correctly implemented. The policy incorrectly provided for Flight Instructors' overtime pay to be a minimum of 4.5 hours per event, but 5.0 hours per event was the correct overtime pay rate.⁽¹⁾ On or about August 27, 1999, the Carrier discovered the mistake and corrected it. Continental says the "correction of a mistake in payment of extra events was not timed to interfere in the election or in IACP's organizing efforts."

Continental denies that thirty qualified Flight Instructors, who supported the IACP and were dues paying members, were subject to arbitrary transfers to Line Pilot positions during the laboratory period. The Carrier says that nineteen of the twenty-three Flight Instructors, identified in IACP submissions were voluntary transfers to Line Pilot positions. Continental denies even knowing these employees were on IACP dues deduction at the time of the transfers. The Carrier denies that any Flight Instructors remaining in the Training Department after these transfers were "unqualified."

Continental repudiates the claim that it threatened to contract out Flight Instructor work. Continental insists that "[t]o the contrary, no Flight [I]nstructor work has been contracted out to retired Line Pilots or non-Continental Instructors."

Continental says that "one-on-one" regular performance evaluations and feedback meetings were held by David Lynn, 737 Fleet Manager, with 737 Flight Instructors. Lynn did not use "these meetings to brow-beat or bully . . . Flight Instructors with anti-union messages," Continental says.

The Carrier says that Continental did not hold a single "captive audience" group meeting with Flight Instructors and asserts that all group meetings with Flight Instructors during the period of laboratory conditions were voluntary. The Carrier says that in August and September 1999, Continental's Human Resources and Benefits Department personnel met with interested Instructor Pilots to provide information and answer questions concerning the Supplemental Savings and Retirement Plan applicable to Flight Instructors.

The Carrier asserts that IACP has not submitted any credible evidence that management officials threatened employees with the loss of benefits. The Carrier says that it has an undisputed right to communicate its position to its employees and that all communications with employees were within the law.

For all these reasons, the Carrier asserts that IACP's allegations 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:

I.

Continental Airlines, Inc./Continental Express, Inc., is a common carrier by air as defined in 45 U.S.C. § 181.

II.

The Independent Association of Continental Pilots is a labor organization and/or representative as provided by 45 U.S.C. § 152, Ninth.

III.

45 U.S.C. § 152, Third, provides in part that "[r]epresentatives . . . shall be designated . . . without interference, influence, or coercion. . . ."

IV.

45 U.S.C. § 152, Fourth, gives employees subject to its provisions, "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter." This section also provides as follows:

No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization. . . .

FINDINGS OF FACT

I. The Laboratory Period

The IACP contends that the laboratory period in this case started on April 10, 1998, when the organization filed for accretion of "Instructor Pilots" into the "Pilot" craft or class it already represented. Continental, supra (R-6652). According to the IACP, from that date forward, the Carrier was aware that the IACP was seeking to represent Continental's Flight Instructors. The Carrier does not definitively assert when the laboratory period started, but does admits knowledge of the IACP organizing effort in July 1999.

The IACP presents no evidence establishing Carrier knowledge of its organizing effort from the January 25, 1999 dismissal of Continental, supra (R-6652) through the July 20, 1999 filing of the application in this case. Therefore, the Board finds that the laboratory period commenced on July 20, 1999, when the application in this case was filed.

II. Flight Instructor Pay Protections

Prior to the Continental/IACP 1995 contract, Line Pilots', Management Pilots' and Flight Instructors' pay was determined by seniority and status regardless of the aircraft they actually flew. The Flight Instructor received the highest salary paid system-wide to any Line Pilot junior to the Flight Instructor.

With the implementation of the 1995 Pilots' agreement, compensation procedures changed. Line Pilots' pay was set based on status, seniority and the aircraft the pilot actually flew. Continental passed through the pay changes from the 1995 Pilots' agreement to Flight Instructors. Flight Instructors were required to bid for an actual Line Pilot position system-wide to establish their salary. Therefore, if a Flight Instructor returned to a Line Pilot position for any reason, it was to that bid position. This forced many Flight Instructors to bid for lower salaries than their seniority might support to stay close to home in the event they had to return to a Line Pilot position. It also forced Flight Instructors who wanted to maximize their pay to bid for locations far from their homes.

As a result of the Continental/IACP 1997 Pilots' collective bargaining agreement, the Carrier changed compensation procedures for Line Pilots. Pursuant to a letter agreement Line Pilots' pay was initially set by a "Transition Pay Plan." Then, in December 1999, pay setting reverted to the compensation procedure described in the "pay plan protection" provisions of the agreement. The Line Pilots' "pay plan protection" reinstated the compensation procedures which existed before 1995, a plan based on seniority and status, regardless of the aircraft the pilot actually flew.

During the laboratory period, in December 1999, Continental changed the Flight Instructors' pay procedures to those in the "pay plan protection" of the 1997 Pilots' collective bargaining agreement. Therefore, a Flight Instructors pay was determined by the highest salary of any Line Pilot system-wide junior to the Flight Instructor. Therefore, a Flight Instructor could enjoy the maximum possible pay system-wide, and freely bid any Line Pilot position the Flight Instructor desired.

Flight Instructor witnesses stated that many Flight Instructors received salary increases and were relieved that their "lifestyle" would not be disrupted if they returned to a Line Pilot position. This change to Flight Instructor's pay came suddenly, without the "Transition Pay Plan" used by the Carrier pursuant to the letter agreement to initially set Line Pilot pay. For many Flight Instructors, the pass through pay procedures represented a substantial increase in pay and benefits during the laboratory period.

III. Overtime for "Extra Events"

During the laboratory period, the Carrier corrected a mistake in the calculation of overtime pay of Flight Instructors for "extra events." In July 1998, Continental notified the Flight Instructors that overtime would be a minimum of 4.5 hours compensation per event. The Carrier changed the compensation from a minimum of 4.5 hours to 5.0 hours per event on or about August 27, 1999.

The Carrier says it was merely correcting a mistake in Flight Instructors' overtime pay calculations. Several Flight Instructor witnesses reported that the mistake was identified by a Flight Instructor in early August 1999 and reported to the Carrier. The investigation revealed that Continental's mistake was not corrected until IACP began its election campaign.

Since the change occurred during the laboratory period and particularly in light of the timing of the change, the Carrier's justification for the change is not credible.

IV. Supplemental Retirement Plan

The record establishes that the Management Pilots" supplemental retirement plan or "top hat" plan was contemplated, planned, and announced, at least in its initial stages, before July 20, 1999, when the laboratory period began.

V. Staff Reductions and Flight Instructor

Transfers to Line Pilot Positions

Due to a reduction in Pilot hiring in 2000 and the corresponding reduction in training events, Continental planned a staff reduction among Flight Instructors. As a result, thirty Flight Instructors returned to Line Pilot positions, most voluntarily or for reasons unrelated to the IACP campaign. A number of Flight Instructor witnesses were interviewed on this issue. All confirmed the reduced need for instructor staff through the period of the IACP campaign and that most Flight Instructor transfers to Line Pilot positions were voluntary. The evidence does not support a finding that Continental "dismissed" or involuntarily transferred any Flight Instructors based on union affiliation or to affect the outcome of the election.

VI. Unqualified Instructors and "Gerrymandering"

the Electorate

The IACP's claim that some Flight Instructors are unqualified is based on standards established in the Continental/IACP 1997 Pilots' collective bargaining agreement, Section 14-Training, Part 6-Instructors. Carrier submissions establish that all Continental's Flight Instructors are qualified and licensed in accordance with Federal Aviation Administration requirements to train Pilots on the equipment to which they were assigned. In addition, a number of Flight Instructor witnesses opined that all Continental's Flight Instructors are qualified.

There is no credible material evidence to support the IACP claim that Continental "gerrymandered" the electorate by keeping "unqualified" Flight Instructors at or "dismissing" pro-IACP Flight Instructors from the Training Department.

VII. Group Meetings

Interviews with Flight Instructors established that many group meetings were conducted by Continental. Most were conducted by Continental's Human Resources (HR) personnel along with Hewitt Corporation (Hewitt) consultants. At these meetings, HR and Hewitt consultants described the new supplemental retirement plan, often meeting individually with Flight Instructors to display specific examples of the new retirement benefits on laptop computers. Other group meetings with Flight Instructors were regularly scheduled and included top level management officials, including CEO Bethune.

The evidence establishes that the group meetings with Flight Instructors concerning the supplemental retirement plan were voluntary. There is no credible material evidence that any group meetings with Flight Instructors and management officials interfered with laboratory conditions.

VIII. One-On-One Meetings

The investigation established that as many as seventy-eight "one-on-one" annual performance appraisal meetings were conducted by David Lynn, 737 Fleet Manager, with 737 Flight Instructors. Flight Instructor witnesses established that these meeting occurred throughout October, November, and December 1999 and January 2000. Flight Instructor witnesses established that Lynn discussed the IACP, its organizing efforts among Flight Instructors, and the unionization of the Flight Instructors craft or class. A number of witnesses described the meeting with Lynn as two or three minutes on their performance followed by a lengthy anti-union speech.

IX. Contracting Out

There is no credible material evidence that Continental contracted out Flight Instructor work during the laboratory period.

DISCUSSION

I.

Under Section 2, Ninth, of the Act, the Board is charged with the responsibility of assuring that employees are provided the opportunity to make a choice concerning representation free of interference, influence, or coercion by the carrier. Where there are allegations of carrier interference, the Board has the responsibility to investigate such claims. Midway Airlines Corporation, 26 NMB 41 (1998); Metroflight, Inc., 13 NMB 284 (1986); Key Airlines, 13 NMB 153 (1986).

II.

The Board has held in numerous cases that the carrier is under an obligation imposed by the RLA 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 Texas & New Orleans Railway v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 568 (1930), the United States Supreme Court stated:

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

III. Changes to Continental's Policies During

The Laboratory Period

As with any change in working conditions during the laboratory period when the status quo must be maintained, the Board has found that the granting or withholding of pay increases or benefits may taint laboratory conditions. The exceptions to this general policy are when these actions were planned before the laboratory conditions attached, or if there is "clear and convincing evidence of a compelling business justification." Midway Airlines, supra, at 62; Petroleum Helicopters, 26 NMB 13, 36 (1998).

A. Changes to Flight Instructors' Retirement

The Carrier has submitted clear and convincing evidence that changes to the Flight Instructors' retirement plan were planned during the 1997 negotiations with the IACP-represented Pilots. Continental's initial announcement of the changes occurred in March 1999, before the laboratory period began. The Board finds that the Carrier's change of the Flight Instructors' retirement plan did not constitute election interference.

B. Changes to Flight Instructors'

Compensation Procedures

Continental presented evidence that the implementation of the "pay protection plan" for Flight Instructors was the continuation of the business practice of passing through Line Pilot compensation procedures to Management Pilots, including Flight Instructors. This change in compensation procedures was implemented for Flight Instructors during the laboratory period without the transition pay plan described in the Letter of Agreement #5 in the Continental/IACP Line Pilots' 1997 agreement.

The IACP has not presented sufficient material evidence to establish that the compensation procedure change was not the continuation of Continental's pass through practice. The Board finds that the Carrier's change of the Flight Instructors' compensation procedures during the laboratory period did not constitute election interference.

C. Changes to Flight Instructors'

Overtime Compensation

Continental claims when it increased Flight Instructors' overtime compensation, it was merely correcting an error. The record does not support this conclusion. Flight Instructors' overtime remained at a minimum of 4.5 hours per event for over a year. Then, when a Flight Instructor questioned the calculation, the Carrier immediately changed the compensation procedure and increased the compensation to a minimum of 5.0 hours per event. The investigation confirmed that this change occurred during the laboratory period and that this change had substantial impact on the electorate. A number of Flight Instructor witnesses stated that it seemed as if Continental had done nothing for them for years and then, when IACP began organizing, everything improved. The record does not support a finding that the change to overtime pay calculations was planned or a business necessity.

Therefore, the Board finds the changes to overtime pay tainted laboratory conditions and constitutes Carrier election interference.

IV. Flight Instructors' Transfers

The Carrier presented overwhelming evidence of the voluntary nature of most of the personnel actions which returned Flight Instructors to Line Pilot positions during the laboratory period. Moreover, Continental has shown that most other transfers were for cause. The few remaining involuntary transfers of Flight Instructors are supported by the decline in pilot hiring and the corresponding reductions in training events. In addition, IACP established no impact of these personnel actions on the election. Finally, there is no evidence that Continental "gerrymandered" the electorate based on union affiliation or retained "unqualified" Flight Instructors. Therefore, the Board finds that IACP has failed to establish that the Flight Instructors' transfers tainted laboratory conditions.

V. Group Meetings

The IACP claim of interference on this issue focuses on a number of meetings described above where management officials and consultants explained changes in Flight Instructors' retirement benefits.

Generally, the Board does not consider meetings with employees to be improper unless the meetings are mandatory and coercive. See Virgin Atlantic Airways, 24 NMB 575 (1997); Washington Central Railroad Company, Inc., 20 NMB 191 (1993).

In addition, 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); or misrepresentations of Board procedures (USAir, Inc., 18 NMB 290 (1991); Allegheny Airlines, Inc., 4 NMB 7 (1962)).

The Board finds that IACP failed to establish that any of the group meetings or the Carrier's communications during the meetings were coercive, contained material misrepresentations, or influenced the employees in their choice of representative.

VI. One-On-One Meetings

The Board has consistently found that "one-on-one" meetings with members of the craft or class, where anti-union opinions are expressed by management officials during the laboratory period, are inherently coercive. Key Airlines, supra; Zantop International Airlines, Inc., 6 NMB 834 (1979).

The Board has stated:

When rank and file employees are interviewed in carrier offices in small groups by carrier officials . . . discussion of antiunion opinions take on a meaning and significance which they might not otherwise possess. The coercive effect may be subtle, but it is nonetheless present. Such a technique in and of itself is conduct which interferes with a free choice by employees of a representative.

Allegheny Airlines, supra.

Continental admits that "one-on-one" regular performance evaluation and feedback meetings were held by David Lynn, 737 Fleet Manager, with as many as seventy-eight 737 Flight Instructors. Flight Instructors stated these meetings occurred throughout October, November, December, 1999 and January 2000. Flight Instructor witnesses reported that Lynn discussed their performance for a very short period of time and then discussed why Flight Instructors should not support the IACP. Some witnesses stated they told Lynn his comments were improper. Many witnesses stated it was common knowledge among Flight Instructors that the appraisal meetings would include an anti-union "speech" from Lynn.

The facts establish that the circumstances of the meetings conducted by Lynn were inherently coercive. See Era Aviation, 27 NMB 321 (2000) and Zantop, supra. Moreover, the Board believes that employee performance evaluation meetings with management officials are particularly sensitive times for employees. Consequently, the inherently coercive quality of these one-on-one meetings during the laboratory period was magnified. The significant number of "one-on-one" meetings establishes that the Carrier was attempting to influence the outcome of the election. Evergreen International Airlines, 20 NMB 675 (1993). Therefore, the Board finds that these "one-on-one" meetings interfered with the Flight Instructors' free choice of a representative.

VII. IACP's Request for a "Laker" Re-Run Election

In carrier interference cases, the Board employs a variety of special ballots and notices intended to eliminate the taint of interference on the employees' freedom of choice. One investigatory approach is a "Laker" election. A "Laker" election involves the use of a "Yes" or "No" ballot. No write-in space is provided, and the majority of votes actually cast determines the outcome of the election. See Laker Airways, Ltd., 8 NMB 236 (1981).

The IACP argues that a "Laker" election is warranted in this case. The IACP has not established that Continental's interference with the laboratory conditions warrants a "Laker" re-run. Therefore, the Board finds insufficient grounds for a "Laker" re-run 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 Continental's changes to certain Flight Instructors' pay policies during the laboratory period and one-on-one meetings by management officials with Flight Instructors. The Board representative shall conduct a re-run election.

Pursuant to Section 2, Ninth, the Board ORDERS a re-run election. The list of eligible voters will include those employees eligible in the first election, with the exception of those employees who have left the craft or class, and the cut-off date will be July 15,1999.

Pursuant to Section 11.2 of the Board's Representation Manual, the Carrier is hereby required to furnish, within five calendar days, alphabetized peel-off labels bearing the names and current addresses of those employees on the list of potential eligible voters. The ballot count will take place in Washington, DC. Copies of the attached "Notice to Flight Instructors of Continental Airlines, Inc./Continental Express, Inc." must be posted within five calendar days of the date of this decision on Carrier bulletin boards where employee notices are normally posted. The notice shall be clearly visible and remain in place for the duration of the re-run election period.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to:

Michael Campbell, Esq.

Mr. Daniel P. Casey

Jeffrey D. Wall, Esq.

E. E. Sowell, Esq.

Mr. William Borrelli

Roland P. Wilder, Esq.

William R. Wilder, Esq.

NOTICE TO FLIGHT INSTRUCTORS

OF CONTINENTAL AIRLINES, INC/CONTINENTAL

EXPRESS, INC.

After an investigation conducted by the National Mediation Board (Board) in which Continental Airlines, Inc./Continental Express, Inc. (Carrier) and the Independent Association of Continental Pilots (Organization) had the opportunity to present statements and evidence, the Board found that the Carrier's conduct interfered with, influenced, or coerced employees' choice of representative in an election conducted pursuant to Section 2, Ninth, of the Railway Labor Act (Act).

The Board has authorized a second election among the Carrier's Flight Instructors. The list of eligible voters will consist of those employees eligible to vote in the first election, with the exception of those who have left the craft or class. The cut-off date for eligibility will be July 15, 1999. A copy of this Notice will also be mailed to all eligible voters with the election materials. During the election period, the Investigator will be available to investigate immediately any further allegations.

Section 2, Fourth, of the Railway Labor Act, allows employees the right to select representatives without carrier influence or interference.

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

For questions concerning this notice or compliance with its provisions, communicate with the National Mediation Board, Washington, DC 20572, Telephone (202) 692-5040.

1. IACP's submissions state the overtime change was from 4.25 hours to 5.0 hours per event. The record supports the Carrier's description.