In the Matter of the
Application of the
alleging a representation dispute
pursuant to Section 2, Ninth,
involving employees of
27 NMB No. 93
CASE NO. R-6718
This decision resolves allegations of election interference filed by the Transport Workers Union of America (TWU or Organization). For the reasons discussed below, the Board finds that laboratory conditions required for a fair election were tainted and orders a re-run election.
On December 9, 1999, TWU filed an application pursuant to the Railway Labor Act (Act or RLA), as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute among Fleet Service Employees of Delta Air Lines, Inc. (Delta or Carrier). At the time this application was received, these employees were unrepresented.
The Board docketed this case as NMB Case No. R-6718 and assigned Mary L. Johnson and Benetta M. Mansfield as the Investigators. On December 21, 1999, the Board found a dispute existed and authorized an election. The Board's notification of election inadvertently attached the internal confidential showing of interest form which included the percentage of authorization cards supporting TWU's application. Ballots were scheduled to be mailed January 27, 2000, and the count was scheduled for March 3, 2000. On January 25 and 26, 2000, a major snowstorm shut down federal government offices in Washington, DC, including the Board's offices. As a result, the ballots were mailed on January 28, 2000. Due to error by the Board's printing contractor, approximately 241 of the 11,000 eligible voters were sent ballots for an election involving employees of United Airlines.
The results of the count were that of 10,777 eligible voters, 1,868 cast valid ballots for representation. This was less than the majority required for Board certification. The Board dismissed the case on March 6, 2000.
On March 14, 2000, TWU filed allegations of interference pursuant to Section 14.0 of the Board's Representation Manual. On March 23, 2000, Delta responded. On April 4, 2000, the Board found a prima facie case and determined there was a basis for further investigation.
During the investigation, the Board randomly selected employees to interview at five of Delta's largest stations, and the participants proffered their own witnesses. Investigators Mansfield, Johnson and Fred Leif conducted on-site interviews with employees and Carrier officials in Atlanta, Georgia (ATL), and Dallas, Texas (DFW) the week of April 10, 2000. Investigators Mansfield and Leif interviewed employees in Salt Lake City, Utah (SLC) on April 21, 2000. Investigator Johnson interviewed employees at JFK Airport (JFK), New York on April 25, 2000, and at Orlando (MCO), Florida on April 28, 2000.
TWU submitted additional evidence on April 7, 2000. The Carrier responded on April 12, 2000. TWU filed additional evidence on April 17, 2000, and Delta filed its final submission on April 24, 2000.
During the interviews, employees made other contentions which required further investigation. Therefore, on May 3, 2000, the Investigators requested the Carrier to provide additional information. Delta provided the information on May 26, 2000.
Were laboratory conditions the Board requires for a fair election tainted? If so, what form should the Board's Investigatory approach take?
The Organization argues that the Carrier publicized the showing of interest percentage inadvertently disclosed by the Board. Therefore, the Carrier tainted laboratory conditions from the outset of the election. TWU contends that the Carrier's intentional dissemination of this information undermined employee confidence in the Board's processes.
The Organization also asserts that Delta conducted a pervasive improper campaign through one-on-one and small group meetings with employees; urged employees to listen to anti-TWU videotapes and to read anti-union literature; and told employees that voting for TWU would jeopardize their chance to receive a carrier-wide pay increase. In addition, the Organization contends that the Carrier held mandatory meetings during which supervisors and managers discussed union dues and told employees their current terms of employment were at risk if they voted for TWU. TWU alleges further that Carrier officials encouraged employees to rip up their ballots.
As a remedy, the Organization requests the Board to rerun the election, using a "Laker" ballot.(1)
Issues Raised by Employees
During the investigation, certain employees asserted that Delta influenced the election through a newly instituted computer purchase program for employees and through new benefits to part-time employees.
The Carrier argues that TWU failed to support its allegations with substantial and credible evidence, and further, the allegations are unfounded. Specifically, Delta asserts that the Board document containing the showing of interest was not marked confidential, and TWU never formally requested either Delta or the Board to take any corrective action. The Carrier also argues that since only a small number of employees received United ballots, the election was not affected.
The Carrier also states that the wage increase announced in November 1999, was intended to apply to all employees and that it was made clear that it would apply to Fleet Service Employees regardless of the outcome of the election. Delta further asserts that its campaign communications were accurate. The Carrier says it did not conduct coercive meetings to discuss union issues. If there were any small group or one-on-one meetings, those were isolated instances, according to Delta.
Delta states that the computer purchase program was pre-planned and was announced in response to Ford Motor Company's program. In addition, the Carrier states that the benefit enhancements for part-time employees pre-dated the election by several months.
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:
Delta Air Lines, Inc. is a common carrier by air as defined in 45 U.S.C. § 181, of the Act.
TWU 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 . . . .
STATEMENT OF FACTS
Background and Organizing Drive
TWU did not provide any evidence on when the Carrier had knowledge of the campaign. The Carrier submitted evidence that until December 9, 1999, it had not noticed any significant increase in TWU activity. Therefore, the Board finds laboratory conditions attached December 9, 1999.
Showing of Interest
On December 21, 1999, the Board notified the participants by facsimile that an election was authorized. The Board inadvertently attached to the authorization a confidential showing of interest report. A Delta "Newsline," dated December 22, 1999, announced that the percentage of authorization cards was 35.1. The "Newsline" also informed employees that for the union to be certified, more than a majority of employees must vote for representation.
The Board interviewed fifty-nine employees and supervisors. Ten employees testified they were unaware of the showing of interest percentage. Two employees read about it in the "Newsline"; one employee learned it via Yahoo; eleven employees saw the information posted on company bulletin boards or heard about it from other employees or TWU supporters. The majority of Delta supervisors were informed of the showing of interest by Delta.
Due to printer error,(2) approximately 241 ballots for an election involving the International Association of Machinists (IAM) and employees of United Airlines were sent to Delta employees. When the Board learned of this error, it immediately mailed a "Notice" to Delta for posting at all stations. The "Notice" informed individuals who received United ballots of the procedures for obtaining a correct ballot.
An MCO employee testified that he believed TWU lost the election "because of the wrong ballots." Three SLC employees testified that supervisors blamed TWU for the error. Another SLC employee knew nineteen employees who received the United ballot, and stated it "made TWU look like a bunch of buffoons." An ATL employee stated that the employee's supervisor told employees to come to the supervisor for correct ballots, and that "he was keeping a list." Two employees expressed their belief that Delta had "bought off" or "gotten to" the Board and a third stated he thought it was "monkey business." Three individuals stated that they were "shocked" that "something like this could happen with something so important." Four employees testified that they thought the NMB was incompetent.
One individual, who did not support TWU, thought it "tilted the playing field." The employee stated that he "does not enjoy tainted victories." One employee thought it would be used to "get a new vote" by whoever lost the election.
On January 13, 2000, Leo Mullin, Chairman, President, and Chief Executive Officer sent a memorandum to: "All U.S. Non-Union Employees." The memorandum announced a "3% pay increase for published scale and clerical personnel," a merit program, and an early retirement medical option. The pay increase was to be effective April 1, 2000.(3)
Robert Colman, Executive Vice President, Human Resources, submitted a declaration regarding the pay increase. Colman states that Delta provided general pay increases in February 1996, July 1997, and January 1999. According to Colman, in October and November 1999, he directed Delta's compensation specialists "to prepare proposals for a general base pay increase to be effective in the first half of 2000." In November Colman and other Carrier officials began advising employees "that we were looking at the possibility of compensation enhancements sometime after the new year." Due to rumors that the enhancements would be effective immediately after the beginning of 2000, Delta finalized its plans in January and announced them January 13, 2000.
The compensation and benefits enhancements were provided to employees who were not, at the time of the announcement, represented by a bargaining representative, because compensation and benefit changes for represented employees were to be subject to the collective bargaining process . . . . [w]e used the term "non-union employees" instead of the term "non-contract employees" that Delta had used in its prior messages, in order to help avoid confusion, because Delta's Pilot Ground Training Instructors had just recently become represented, and a contract had not yet been negotiated for that group.
Mullin also participated in a conference call on January 13, 2000, with the managers and supervisors involved in Delta's election campaign. According to Anna Van Exel, Regional Director of Airport Customer Service, Mullin stated that "employees would receive the raise regardless of the outcome of the election." Van Exel states that despite this statement, "at least some employees at one station were uncertain; therefore, we reiterated the point." In its January 21, 2000, edition of "Straight Talk," posted on bulletin boards and on the Internet, Delta stated that it was committed to the pay increase even if the union was elected. On January 18, 2000, the same message was again communicated to managers.
Two Carrier officials, Joe Licitra, Vice President Airport Customer Service, and John Salvaggio, Senior Vice President Customer Service, provided declarations on this issue. They testified that during the election period they conducted large group meetings throughout the system. When asked about the effect the election would have on the pay increase, (a question asked "at virtually every meeting") they responded "consistently and unequivocally" that Delta was "committed to giving the pay increase to all employees who were not represented by a union when the pay increase was announced," and "was committed to giving the pay increase to Delta's ramp and air logistics employees regardless of the election result."
Several employee and management witnesses testified that there was "uncertainty" and "confusion" as to whether the raises would be implemented if TWU won the election. A supervisor at JFK stated that during the January 13 conference call, the information he received was that the pay raise would not be given if TWU won. According to this individual, later that day, the supervisors were told the raise would be granted and we "made sure the message got out." An employee at JFK testified "there was concern" at the station that employees would not receive the raise if TWU were elected. In MCO, a supervisor testified that there were "a lot of inquiries" about the raise, but "my answer was that the raises would not be affected." Other MCO supervisors also stated that there were questions about the raise. An MCO employee stated that based upon Mullin's January 13 letter, the employee understood that there would be no raise if TWU were elected. An SLC employee testified that although the employee was told the election would not affect the raise, Mullin's letter made it clear that it was for "non-union personnel." An employee at DFW stated that the employee's supervisor said "all non-union employees" would receive the raise, but employees were uncertain as to whether this meant that if they voted for the union "they would not receive it."
The Carrier began its campaign with a training session for certain managers and supervisors on December 21, 1999.
Van Exel was one of the two Delta coordinators in charge of the December 21, 1999, meeting. Van Exel states the meeting was held to ensure that "Delta's response . . . was organized and fully compliant with the law." Approximately ninety of Delta's 1,700 supervisors and managers attended. According to Van Exel, the purpose of this meeting was "(1) to train a core group of supervisors and managers about Delta's legal obligations to avoid interference . . . (2) to train these . . . individuals to serve as monitors and coordinators at their respective stations to ensure compliance with those . . . obligations; and (3) to provide those . . . individuals with information to communicate with employees about why Delta did not believe TWU representation was in their best interest." Issues discussed included the Railway Labor Act, NMB election procedures, and the possible timeline for the election. Attendees were instructed that they could not "threaten, interrogate, promise or spy on" employees.
At this meeting, an employee communications consultant "discussed the reasons for the Company's opposition to TWU representation, and the Company's plans to communicate its views." The supervisors and managers also were trained on conducting meetings and group communications. A final presentation compared "Delta's values" to "union priorities." The Carrier provided copies of training materials to the Board. Written materials and videotapes were subsequently sent to all stations.
Following the December 21, 1999, meeting, Van Exel "coordinated" conference calls for managers and supervisors to "monitor compliance and communication efforts . . . identify throughout the election period and respond to questions . . . and to provide guidance . . . ." According to Van Exel, during one of the early conference calls, someone asked about the level of "open union activity" at each station. Various managers provided "general" responses, but certain managers provided estimates of the percentage of union support at their stations. Van Exel asserts the estimates were based on manager observation because the managers were trained to not poll employees regarding TWU support. Van Exel states that later in the campaign managers were advised that Delta was not interested in estimates.
Delta's Fleet Service Employees attend daily operational briefings conducted by their supervisors. Attendance at these briefings is required. According to several employees, some supervisors spent part of these meetings discussing the election. At certain stations, Delta campaign videos were shown either during or just after the daily briefings. At SLC, at least two supervisors scheduled or employees were assigned times to watch the videos.
Employees at DFW, JFK, and MCO testified they were required to attend meetings to discuss Delta's view of the election. Employees at various stations also testified that there were one-on-one meetings to discuss the election and Delta's views on unionization.
An ATL employee submitted a declaration in support of TWU's position stating that supervisors discussed Delta's views about unions during the briefings. According to this individual, the supervisors told employees they did not need unions and could lose pay, benefits, and seniority. The employee also testified that in January and February 2000, Delta held "a series of meetings" with small groups (approximately four employees) that the employees were required to attend these meetings. The employees were handed Delta campaign literature by supervisors.
ATL employee witnesses testified that at the daily briefings they were told that if they elected TWU, they would not get raises and would lose benefits. One employee testified to an offer of a free day in exchange for attending a meeting about the union. Another employee testified that while there were no meetings held to discuss the election, the videos were mandatory and employees had to sign an attendance roster to verify that they had watched the videos.
Four Delta supervisors submitted declarations denying the statements made by TWU's declarant. Two of these supervisors stated they did not tell employees they would lose pay or benefits but stated that these matters were the subject of negotiations. The other supervisors, who conducted the "series of meetings" described above, stated that attendance at the meetings ranged from five to twenty employees. According to the supervisors, the total number of attendees over a seven to ten day period during the election was no more than 300. The purpose of the meetings was to "state the Company's views . . . and to answer questions." The supervisors asserted that employees were free to express their views or leave. An ATL manager stated that he held "informal meetings" with employees in the break room.
A DFW employee submitted a declaration in support of TWU's position. The declarant stated that two supervisors held a meeting in January and distributed anti-TWU literature and played anti-TWU videos. According to the employee, the supervisors stated that union negotiations were always "long and drawn out," and that TWU "was desperate for dues money." They also spoke to groups of three or four employees about the union campaign, using "an outline."
A randomly-selected employee at DFW testified that his supervisor called him into his office and told him "he was trying to get a feel how people would vote." The supervisor asked the employee how he would vote. At first, the employee demurred but when his supervisor asked again, the employee indicated his voting preference. One witness informed the Investigator that "supervisors [at DFW] were asked to poll their subordinates as to how they would vote."
The two supervisors identified by TWU's declarant provided testimony to the Board Investigator. The supervisors denied the statements attributed to them and stated that while there were twelve to fifteen meetings with employees to discuss the election, generally there were at least seven or eight employees in attendance and average attendance was in the twenties. The supervisors testified that attendance was not required and that they "tried to present both sides" and answer questions. A third supervisor testified that there were between ten and twenty employees per meeting. He held three or four meetings in January and three in February. "Formal notification" of these meetings was provided to employees.
Two DFW employees questioned by the Investigator stated that attendance at meetings where the union was discussed was mandatory. One employee stated that there was a notice posted to that effect.
A JFK employee submitted a declaration in support of TWU's contentions. According to this individual, a supervisor held meetings with "every crew" at the airport. The declarant states that during a meeting held in February, the supervisor stated that the April 1, 2000, raises were only for non-union employees and "we would not get them if we went union." The supervisor also allegedly stated that if TWU were elected, the employees "could lose everything."
In response, Delta submitted declarations from this supervisor and three additional employees. The supervisor denied the statements attributed to him and, stated that subsequent to the January 13, 2000, clarification, he and other JFK supervisors informed employees that they would receive raises regardless of the election outcome. The supervisor also asserted that he told employees wages and benefits would be subject to negotiation, and the meetings he conducted were not mandatory. The three employee declarants stated that it was their understanding that the pay raise would be implemented whether or not TWU won the election. One employee states that he specifically asked a manager about this and was told, "'you get the raise, even if the union is voted in.'" The manager also stated to the employee that pay and benefits would be subject to negotiation if the union were elected.
Two JFK employees interviewed during the investigation stated they were required to attend meetings about the union. One employee testified that when the employee tried to leave, the employee's manager would not allow it. This individual, an active TWU supporter, also testified that another supervisor approached the employee and stated "a union would cause pay cuts and lost benefits." The second individual, also a TWU supporter, testified that the employee was "taken off a flight" and "forced to attend" a meeting.
One employee stated that anti-union statements were made during the daily briefings. Another employee who "has had bad experiences with unions in the past" stated that employees were required to watch videos.
An MCO employee submitted a declaration in support of TWU's position. This individual stated that supervisors "continually provided anti-union information" in the daily briefings. According to this individual, at least twenty employees complained to the employee that supervisors stated they would not receive the pay raise if TWU were elected. The declarant also stated that the employee "observed many one-on-one closed-door meetings" and that in one of these meetings, a supervisor told the employee "why he shouldn't vote for the union." The TWU declarant further stated that in February 2000, a Carrier official told him and three other individuals that they would risk pay, benefits, and seniority by voting for TWU and, if employees were unhappy, "there were always openings at Walmart."
Two MCO employees interviewed testified that there were mandatory meetings. Five employees testified that the union was discussed in daily briefings. Three employees were shown videos in meetings, and one employee stated that a particular supervisor persisted in putting campaign literature "in our face" stating, "you have to read it." This employee also stated that another supervisor said, "with this union vote, there goes our raise."
A supervisor alleged to have conducted one-on-one meetings submitted a declaration. According to the supervisor "at no time did I conduct one-on-one meetings" to discuss the union. The supervisor states that the specific meeting referenced by TWU's declarant was for purposes of discussing "performance indicators and attendance problems," and any discussion about the union was brief, non-coercive, and may have been employee initiated.
This supervisor's testimony was the same during the on-site investigation. Another supervisor stated that "Delta's point of view" was discussed during the briefings and that "there was one meeting everyone was asked to attend," although he "heard some employees got up and left."
A second supervisor testified that "they wanted us to get a general feel of what we thought the percentages were. My feel was based on what I heard in the breakroom . . . . I never asked any employee what their view was . . . ."
All three supervisors stated that they told employees the raise would not be affected by the election.
An SLC employee submitted a declaration describing meetings held at his station. According to the declarant, a supervisor held a "small group (four or five)" meeting where she told employees if TWU were elected "employees will lose their benefits and their pay scales and could have to give up half their pay to the Union." In addition, the employee states that his supervisor held a one-on-one meeting with the employee and showed negative literature about TWU. According to the employee the supervisor stated "he was not telling me how to vote, but was told to have these meetings . . . ."
The two supervisors submitted declarations in response. The first supervisor states that during the election period she "shared information about Delta and about unions, including [TWU] with small groups of employees in the workplace." She denies telling employees they would lose pay and benefits. The second supervisor provides similar testimony, and denies holding one-on-one meetings except "when an employee came to ask me a question."
The TWU declarant and the supervisors were interviewed by the Board's Investigators. The employee provided testimony that there was a mandatory meeting where an "anti-union" video was shown. One of the supervisors stated she scheduled meetings to watch videos or told employees "I need you to come to a meeting." She also testified that her Duty Manager asked her if she "had an idea what we're looking at." She told him her "best guess was 20-30% looking at voting for a union."
Another supervisor testified that he scheduled times for employees to watch videos, but he told employees watching the videos was not required. Two other Delta supervisors at SLC also scheduled times for employees to watch videos. Seven of the eight employees interviewed in SLC testified there were mandatory meetings, in some instances with sign-in sheets, at the meetings where the union was discussed.
Delta created videos for employees during the election period. The videos were distributed to supervisors at each station and were mailed to employee homes. At certain stations such as DFW, employees testified that videos were played in breakrooms, sometimes continuously. At other stations, such as JFK and MCO, employees testified that videos were shown during daily briefings, or immediately following briefings. According to employees, some supervisors at SLC and JFK also required employees to watch videos. At other stations, such as MCO, employees were encouraged to watch the videos.
Delta provided the Board with copies of the videos. Tape One is approximately eight minutes in length. It features Vicki Escarra, Executive Vice President Customer Service in the first half. Escarra tells employees the positive things Delta has done for them, including better equipment and increased benefits for part-time employees. In closing she states that there is no room for a union at Delta - there would be a huge impact on pay and the way people do their jobs. The second half of the tape shows a Board ballot and how to vote. It also shows a person ripping up the ballot with the slogan, "Rip it Up to vote NO." The video ends with an actor portraying a TWU supporter who provides employees with incorrect voting information.(4)
Tape Two also portrays information about voting, and repeats the message that the only way to vote "No" is to rip up the ballot.
Tape Three features actors portraying employees discussing voting. Two actors state to the third that Delta is right up there with the best in terms of pay and benefits, point out that employees just got a raise, "and we did not need the union to get that." They also discuss dues, strikes, and "super seniority, stating that union officials and pro-union employees will be able to take your job."
Tape Four features "unionized employees" from Eastern Air Lines and Pan American Airlines, and other represented properties. The discussion centers on union malfeasance such as misappropriation of funds. One individual states that a union is worse then cancer, you can get rid of cancer but not a union.
Tape Five shows an actor/employee researching the TWU web site and finding information that the Organization is not for him. Among his points of concern: TWU mainly represents transit workers; TWU called fifty-four strikes or work stoppages in the last twenty years; the strikes on Eastern and Pan Am ended after the airlines were defunct; a large number of unfair labor practices were filed against TWU; TWU negotiated a three-year wage freeze on American Airlines. The tape ends with a list of "unionized" carriers that no longer exist: Air Atlanta; Air Florida; Braniff; Eastern; Pan Am; Frontier; People Express; Hawaii Express; Trans America; and the slogan "Rip Up Your Ballot."
During the election period, Delta and TWU disseminated campaign literature. Employees testified they received mailings from both sides at home. Additionally, Delta's supervisors placed Carrier-generated materials in breakrooms, posted materials on bulletin boards and handed out materials. For the most part, TWU material was not permitted and several supervisors testified they removed TWU campaign materials.
The Carrier's campaign literature contained the same messages as the videos.
Several employees stated their belief that Delta implemented benefit improvements around the election period to influence the election. The two benefit changes most frequently cited were benefits for part-time employees and a computer purchase program.
The Carrier provided evidence that Delta announced changes for its part-time employees in a memo dated July 15, 1999. These changes, according to the memo, addressed to "All U.S. and SJU non contract Employees" had been under consideration for several months. The changes were effective October 1, 1999.
Delta also submitted a declaration from Charles Feld, Chief Information Officer, who states that he proposed providing personal computers to all Delta employees in the Summer of 1999. According to Feld, shortly after he was hired in 1998, he began work on giving Carrier employees home access to Delta's intranet.
In October 1999, Feld learned of a company which provides computers and internet access for a "nominal monthly sum." In December 1999, Feld learned "another major corporation" was working on a similar program. According to Feld, "this heightened our sense of urgency because we knew it would be a huge public relations coup to be the first corporation to announce such a program." Ford Motor Company announced its program in February 2000. Delta announced its program February 4, 2000. The program offers low-cost personal computers and free internet access to all Delta employees.
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).
Showing of Interest
The Board's Rules at 29 C.F.R. § 1208.3(a) provide, in part, that individuals in representation matters "must have assurance" that "confidential information disclosed to . . . the NMB will not be divulged . . . ."
29 C.F.R. § 1208.4 (b) provides, in part: "the Board will treat as confidential the evidence submitted in connection with a representation dispute and the investigatory file pertaining to the representation function." See also Section 6.5 of the Board's Representation Manual.
The Board does not disclose the showing of interest because it is confidential commercial information supplied by applicants, and disclosure impairs both the ability of organizations to conduct campaigns and employee free choice. Eastern Air Lines, Inc., Continental Airlines, Inc. and Continental Airlines Holdings, Inc., 17 NMB 432, 437 (1990).(5) See also US Airways, Inc., 27 NMB 86, 88 (1999), and Wisconsin Central Transportation Corporation Railroads, 24 NMB 307, 317 (1997). This policy has been upheld by Federal Courts. See American Airlines, Inc. v. National Mediation Board, 588 F. 2d 863 (2d Cir. 1978).
In Eastern, et al., supra, at 437, the Board stated:
Disclosure of showing of interest materials would threaten the freedom of carrier employees to organize and thereby frustrate the purpose of the Board's representation investigation, which is to determine the representation wishes of the employees free of any carrier influence. It would cause the statements of employee preference to be evaluated by a source other than the NMB in violation of the statutory directive that the NMB's investigations be performed in such a manner as to preclude "influence" by the carrier.
Although the Board's disclosure of TWU's showing of interest was inadvertent, before the Board realized its error the Carrier publicly released the information to its employees, along with the information that the Board requires a majority vote for a union to be certified. The Board finds that its inadvertent disclosure and the Carrier's pervasive use of this information tainted laboratory conditions.
In United Airlines, Inc., 27 NMB 221 (2000), the Board ordered a re-run election based upon "voter confusion" caused by a number of factors.(6) The Board stated its policy of conducting reruns "when there is a post-election finding of interference, laboratory conditions have been tainted such that a fair and free election is no longer possible, or if there is substantial error in the election process." Supra, at 227. In its decision, the Board cited Air Tran Airlines, 26 NMB 226 (1999) (mailing error in which no employees received ballots required rerun), and Trans World Airlines, Inc., 8 NMB 298 (1981) (inadequate eligibility list, extension of voting period for some voters leading other employees to believe they had additional time to vote).
In US Air, 8 NMB 29 (1980), the Board ordered a re-run election because of a printer's error in which some employees received "Sample" ballots rather than official ballots. The Board "determined that this printing error is serious enough to require cancellation of the original election."
Although the Board attempted to take corrective action once it discovered the error in this case, the investigation subsequently established that the Board's action was insufficient to restore laboratory conditions. The effect of the error, even though only 241 United ballots were mailed, undermined the integrity of the Board's balloting process and confidence in the Board itself. The Board finds that the ballot error tainted 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, 27 NMB 321 (2000); 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 Carrier presented credible evidence that its officials attempted to coordinate a campaign which communicated Delta's views without interfering with employee free choice. The investigation established, however, that supervisors and managers at various stations went further than necessary, crossing the line between permissible and impermissible activity. The Board finds this impermissible activity occurred at each of the five stations it visited where a majority of Delta's employees work. While the supervisors and managers believed they were properly implementing upper-level management directives, and while the type and frequency of impermissible activity varied by station, the net result was that laboratory conditions were tainted.
There is substantial record evidence that across the system Delta supervisors used the daily mandatory briefings to discuss Delta's point of view on the election. There is also evidence that at MCO there was a mandatory meeting to discuss unionization. Supervisors in SLC required employees to attend sessions where videos containing carrier campaign communications were shown. Employees in ATL testified that there were mandatory meetings at their station. Two employees at JFK stated they were required to attend meetings to discuss the election.
The Board has found small group or one-on-one meetings are inherently coercive. Key Airlines, 13 NMB 153 (1986); Zantop International Airlines, Inc., 6 NMB 834 (1979); Allegheny Airlines, Inc., 4 NMB 7 (1962). Supervisors throughout the system admitted conducting multiple meetings during the election period. At certain stations, videos ran continuously. Some of the meetings involved small groups of employees, and others involved just one individual. Although Carrier officials told supervisors not to provide estimates of union support, in at least three stations supervisors attempted to ascertain employee choice.
The communications by Delta were not coercive and did not contain material misrepresentations. However, the Board finds that Delta required employees to attend meetings and briefings to receive these communications. The mandatory meetings and the small group and one-on-one meetings impaired free choice and tainted laboratory conditions.
Pay Increase and Benefit Enhancements
Generally, the Board finds changes in pay or benefits which were pre-planned or where there is "clear and convincing evidence of a compelling business justification" do not taint laboratory conditions. Air Logistics, L.L.C., 27 NMB 385 (2000); American Airlines, Inc., 26 NMB 412 (1999).
The record establishes that the 3% pay increase, benefit enhancements, and computer purchase plan, in and of themselves, did not taint laboratory conditions. The Carrier provided evidence that all of these changes were pre-planned. In addition, the changes pertained to all employee groups at Delta.
The investigation also establishes that Delta did not deliberately link the pay increase to rejection of TWU representation. While there was uncertainty and confusion concerning whether the pay increase would be implemented, the Carrier attempted to clarify the issue. The pay increase and the benefit enhancements did not taint laboratory conditions.
The Board's methods of determining employee choice of representative varies on a continuum determined by the extent of interference found. In this case, there was an aggressive Carrier campaign consisting, inter alia, of mandatory meetings, small group and one-on-one meetings, and mandatory video-watching, which combined with Board errors which undermined the integrity of the election. However, there is insufficient evidence of egregious Carrier interference to warrant a "Laker" election. Therefore, a re-run election using the Board's standard ballot is appropriate.
CONCLUSION AND ORDER
Based upon the totality of the circumstances, the Board finds that laboratory conditions required for a fair election were tainted. The taint resulted from the Board's release of confidential showing of interest information and mailing of ballots for another election to Delta employees, combined with the Carrier's conduct of mandatory and small group, and one-on-one sessions to promote its message regarding the election.
Pursuant to Section 2, Ninth, the Board ORDERS a re-run election using a standard ballot. The list of eligible voters will include those eligible in the first election, with the exception of those employees who have left the craft or class since then.
Pursuant to Section 11.2 of the NMB Representation Manual, the Carrier is hereby required to furnish, within 5 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 Fleet Service Employees of Delta Air Lines, Inc." must be posted within five (5) 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
John J. Gallagher, Esq.
Mr. Terry M. Erskine
Walter A. Brill, Esq.
Margaret H. Spurlin, Esq.
Mr. John J. Kerrigan
David Rosen, Esq.
Arthur Luby, Esq.
NOTICE TO FLEET SERVICE EMPLOYEES OF
DELTA AIR LINES, INC.
After an investigation conducted by the National Mediation Board (Board) in which the Carrier and the Organization had the opportunity to present statements and evidence, the Board found that Board's errors combined with Delta's conduct, taken as a whole, interfered with, influenced, or coerced employees' choice of representative in an election conducted pursuant to Section 2, Ninth, of the Act.
Accordingly, the Board authorizes a second election among Delta's Fleet Service Employees. The list of eligible voters will consist of those eligible to vote in the first election, with the exception of those who have left the craft or class. 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 immediately investigate any further allegations.
Section 2, Fourth of the Railway Labor Act, allows employees the right to select representatives without carrier influence or interference.
Section 151a, General Purposes Clause of the Act "provide[s] for the complete independence of carriers and of employees in the matter of self-organization . . . ." Delta 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. 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.
2. In large elections, the ballot printing, stuffing, and sealing are performed by a contractor selected by the Government Printing Office.
3. TWU does not allege that the pay raise tainted laboratory conditions. In a letter to Delta dated December 16, 1999, TWU International Vice President George Roberts wrote, "any wage increase that the company was intending to give should be given and the company should not lead the employees to believe you cannot give them a wage increase because of the union."
4. The actor tells an employee to send in a ballot no matter what, or to give the ballot to TWU.
5. In Continental Airlines, Inc. v. National Mediation Board, Civil Action No. H-88-3181, the United States District Court for the Southern District of Texas dismissed the Carrier's suit seeking showing of interest information from the Board.
6. The ballots in the United case were the ones received by Delta employees.