In the Matter of the
alleging a representation dispute
pursuant to Section 2, Ninth,
involving employees of
28 NMB No. 55
CASE NO. R-6747
February 23, 2001
This decision resolves election interference allegations filed by the International Association of Machinists & Aerospace Workers, AFL-CIO (IAM or Organization). For the reasons below, the National Mediation Board (Board) finds that the laboratory conditions required for a fair election were tainted and orders a re-run election using a "Laker" ballot.
On April 25, 2000, the IAM filed an application with the Board pursuant to the Railway Labor Act (RLA or Act), as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute involving Passenger Service Employees of Aeromexico (Carrier). At the time the application was received, these employees were unrepresented.
The Board assigned Sean J. Rogers to investigate. On May 11, 2000, the Board found a dispute existed and authorized an election. Ballots were mailed on June 16, 2000, and the count was taken on July 21, 2000. Of 107 eligible voters, 47 cast valid votes for representation and one ballot was void. This was less than the majority required for Board certification. On July 25, 2000, the Board dismissed the IAM's application. Aeromexico, 27 NMB 457 (2000).
On August 1, 2000, the IAM filed election interference allegations pursuant to the Board's Representation Manual (Manual), Section 14.0. On August 10, 2000, the Carrier responded, denying the IAM's allegations. On August 11, 2000, the Board found that the IAM's allegations stated a prima facie case that laboratory conditions were tainted and the Board would conduct further investigation. The Board established a schedule for filing further submissions.
On August 30, 2000, the Investigator requested copies of certain Carrier books, records, documents, fliers, and videos. On September 7, 2000, the Carrier responded to and complied with the Board's request for certain Carrier books and documents.
On September 8, 2000, the Carrier responded to the IAM's August 25, 2000, supplemental submission.
On September 15, 2000, the Carrier provided the Board with copies of three videos entitled: "Collective Bargaining, the Union Gamble," "Job Security & Strikes-Your Future in the Union's Hands" and "What the Union Did for Me."
On September 27, 2000, the IAM filed a rebuttal to the Carrier's submission, and on October 6, 2000, the Carrier filed a surrebuttal.
From November 14 to 17, 2000, the Investigator conducted an on-site investigation at the Carrier's office in Houston, Texas. During the course of the investigation, the Investigator took statements from 28 witnesses.
Did Aeromexico's actions taint the laboratory conditions the Board requires for a fair election?
The IAM's allegations of election interference are as follows:
Aeromexico first learned of IAM's organizing campaign in February 2000 or no later than mid-March 2000. At that time, Aeromexico commenced a systematic program to influence and interfere with the employees' free choice of representative by granting and/or threatening to withhold benefits.
In addition, the Carrier tainted laboratory conditions by systematically intimidating, harassing, and interrogating IAM supporters. The Carrier followed, eavesdropped, monitored, and taped telephone calls of "suspected union supporters creating the impression that Aeromexico was 'keeping a close watch' on the employees." Managers frequented the employees' break room and hallways more often during the election to eavesdrop on employee conversations.
During the election, Aeromexico held many mandatory meetings with employees, some in small groups, some "one-on-one," to interfere with, influence, and coerce the employees in their choice of a representative. In March 2000, the Carrier began holding Continuous Quality Improvement (CQI) classes for all employees to convince employees that they did not need a union. At one of these classes, Harald Bomberg, U.S. Division Vice President, told employees he would take away the 401(k) plan and other benefits if a union won representation rights at Aeromexico. Bomberg said he would refuse to negotiate with the IAM. The CQI classes were an attempt "to fool employees into believing that they had a voice in Carrier decisions."
Just after the IAM's application, Bomberg and Rachel Zapien, U.S. Division Human Resources Manager, wrote letters to employees trying to make it appear that the IAM told the employees benefits would be reduced and taken away. At small group meetings, employees were forced to watch three anti-union videos with mangers present. At a Town Hall meeting on May 17, 2000, Zapien stated that voting would be over on July 14, 2000, after 28 days, in direct conflict with the Board's Notice of Election which stated that ballots received by 2:30 p.m., July 21, 2000, would be counted.
During the laboratory period, Aeromexico increased pay and benefits. Specifically, a new pay and incentive plan was implemented and travel benefits were enhanced. The pay increase was not planned or part of an historic pattern and had no compelling business justification.
During the laboratory period, the Carrier arranged and subsidized reduced-fare cruises with National Cruise Line to improperly influence the employees' choice of a representative.
Two weeks after the ballots were mailed Aeromexico held an early celebration of the U.S. Division's Tenth Anniversary.
On June 11, 2000, "Children's Day," one week before the ballots were mailed, the Carrier held the "Company Picnic," normally held in October, to influence the employees' choice of a representative. Also, one week before the ballots were mailed, Aeromexico managers hand-delivered, with all employees' paychecks, a "phony" dues withholding flyer depicting a check for $33.40 in each employee's name made out to IAM. This was "a fictitious amount of union dues and [the flyer contained] false information about union dues." The managers told employees that the dues withholding was what the employees wanted and deserved and what the employees would be forced to pay.
After the Board's dismissal and in response to the IAM's allegations of election interference, Zapien and Aeromexico's counsel had "one-on-one" meetings with employees. At these meetings employees were interviewed, intimidated, and forced to sign affidavits in support of the Carrier's defense against the IAM's allegations of election interference.
The Carrier's conduct interfered with the employees' choice of representation and tainted the laboratory conditions necessary for a fair election. The Carrier's conduct was egregious and the IAM requests that the Board conduct a re-run election using a "Laker" ballot.
The Carrier denies interfering with the election and responds to the allegations of election interference as follows:
When Aeromexico received notice of the IAM's application, managers were reminded of the importance of maintaining laboratory conditions. Neither promises of "additional benefits nor threats of loss of benefits depending on the outcome of the election" were made by Aeromexico or its managers. Managers did not follow, eavesdrop, or threaten suspected union supporters at any time.
Aeromexico managers monitor and tape telephone conversations between employees and customers to ensure quality control, customer satisfaction, and safety. This practice is well understood by employees and is contained in written Carrier policy. The level of monitoring and taping did not increase during the election period.
Aeromexico traditionally holds an annual Company Picnic. The Company Picnic is held during different months each year, for example: May 1997; October 1998; cancelled in1999 in favor of a Christmas party; and this year, June 2000. June 11, 2000, was selected to celebrate "Children's Day." Moreover, the Aeromexico Company Picnic is an insubstantial benefit that cannot constitute election interference. The Tenth Anniversary celebration "was [also] an inconsequential benefit that could hardly constitute interference."
On April 25, 2000, a Miami-based Aeromexico regional manager learned of promotional cruises offered by National Cruise Line as "last minute deals" on unsold berths on cruises departing San Francisco on May 2, 2000. This information was passed on to all employees during the election. Aeromexico did not subsidize the cruises or solicit sales for National Cruise Lines. This was a single communication to employees about an attempt by National Cruise Lines to increase capacity and did not interfere with the laboratory conditions.
The three videos shown to employees merely provided employees with a clear statement on labor law and their attendance was not mandatory. The videos did nothing more than respond to questions raised by employees concerning IAM's campaign.
Bomberg never threatened to eliminate the 401(k) plan or any other benefit. Aeromexico implemented a pay raise and improved the Travel Privileges Policy (TPP) on June 1, 2000. These changes were based on employee survey results received in October and November 1999. The compensation and TPP changes were planned long before the election period, and there was a clear business justification for the changes. Moreover, if Aeromexico had withheld the changes, the union would have argued that the Carrier had taken away benefit improvements as a result of the union's campaign.
The dues withholding flyer did not contain false information and merely informed employees what union dues might cost.
The Carrier asserts that there is no evidence to support the IAM's election interference claim and it should be 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:
Aeromexico is a common carrier by air as defined in 45 U.S.C. § 181.
The IAM is a labor organization and/or representative as provided by 45 U.S.C. § 152, Ninth.
45 U.S.C. § 152, Third, provides in part: "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
Aeromexico's corporate headquarters are in Mexico City, Mexico, and U.S. operations are based in Houston, Texas. Most passenger service employees are based in Houston and most are assigned to the positions of Customer Service Representative I (CSR I) and CSR II.
At Aeromexico's Houston Reservation Center, CSR I's assigned to "General Sales" (GS) receive incentive compensation for each ticket they sell, while CSR I's assigned to "Special Functions" (SF) are not eligible for the incentive. CSR II's are lead workers with limited supervisory duties, but they are not management officials. Approximately 20 other passenger service employees are based in major U.S. cities, including Atlanta, Phoenix, New York, Miami, San Diego, Los Angeles, and Dallas.
The Houston Reservation Center is a 24 hour, seven days-a-week operation. Most CSR I's work in a single room, "bull pen" style, and sit at desks behind low partitions. The work environment is typical of "call centers" which support airline reservations and ticket sales. Most reservation and ticket sales are accomplished by telephone sales. The CSR I's are supported in their reservation and ticket sales by the CSR II's. Most passenger service employees work the day or first shift, others work the afternoon or second shift, and only a few work the midnight or third shift.
The Laboratory Period
The IAM claims, without supporting evidence, that the Carrier first learned that the IAM was attempting to organize Aeromexico employees in February 2000. The IAM supports the claim that Aeromexico knew of the IAM's organizing campaign about mid-March with an employee affidavit. The employee says Albert Coroy, U.S. Reservation Manager, accused the employee of harassing other employees while passing out authorization cards around mid-March.
Aeromexico's management officials' recollections of when the Carrier learned of IAM's organizing efforts vary. Harald Bomberg said, "I learned verbally, at the end of April or early May 2000." Coroy said, "I do not know exactly when I learned. I showed Rachel [Zapien] an authorization card an employee gave me a couple of weeks before the NMB notification." Zapien said, "I don't know. Before April 27th, an employee showed me a card he received and asked me what to do. I told him return it, don't sign it." However, in an affidavit, Zapien stated, "I know it was shortly before April 19, 2000, because that was the day that we sent out a memorandum explaining what it means for an employee to sign an authorization card." Annalyn Paz, Team Coordinator, said "Spring 2000." Lynn Magness, Team Coordinator, said "somewhere in April 2000." Finally, Joseph Baltazar, Team Coordinator, said "late April 2000."
The Board requested all Carrier documents distributed to employees concerning the IAM's campaign. An April 19, 2000, Aeromexico "Q & A" letter, addressed to "Dear Fellow Employees" and signed "Harald B., Rachel Z., Jose Q., Al C., Tony B., Bob G., and Mayte W.," discussed the IAM's organizing efforts and urged employees not to sign the IAM's authorization cards. Moreover, employee witness statements establish that Coroy discussed the IAM organizing effort and his personal experience with unionization and strikes at Continental Airlines, Inc. (Continental), in CQI class opening remarks on April 11, 2000.
The weight of material evidence, especially Coroy's April 11, 2000, remarks, establishes that the Carrier was aware that the IAM was seeking representation of passenger service employees by the first week of April 2000.
Surveillance and Telephone Monitoring
Some employees said that managers frequented the employees' lunch room, break room and hallways more often during the election. The employees believed that the managers were attempting to identify IAM supporters by eavesdropping on employee conversations. Yet, other employees stated they did not observe any eavesdropping or surveillance by managers during the election. The Carrier says management officials did not engage in any improper surveillance.
Aeromexico's managers at the Houston Reservation Center monitor employees' and customers' telephone conversations. Specifically, Aeromexico's workplace monitoring policy states,
Workplace monitoring may be conducted by AeroMexico to ensure quality control, employee safety, security, and customer satisfaction.
Employees who regularly communicate with customers may have their telephone conversations monitored or recorded. Telephone monitoring is used to identify and correct performance problems through targeted training. Improved job performance enhances our customer's image of AeroMexico as well as their satisfaction with our service.
Some employees stated telephone monitoring increased during the election. These employees said they could hear an "echo" on the telephone when they were monitored. They stated Aeromexico was closely monitoring union supporters and using telephone monitoring to identify union supporters.
Aeromexico provided management affidavits stating that the level of telephone monitoring did not increase during the election and that no employee was specifically monitored or identified for monitoring based on their support for the IAM.
Some employees were sure that Aeromexico engaged in less telephone monitoring during the election. One employee stated, "if they were monitoring they would have fired all of us! It was chaos, a madhouse. I complained [to management], but I think they were too scared to monitor."
On May 17, 2000, at a Town Hall meeting of nearly all employees, an Aeromexico slide presentation displayed this excerpt from the Carrier's "Statement of Labor Policy":
We believe that no Aeromexico employee should be required to pay union dues, fees or assessments or be subject to the authority of a labor union to work at Aeromexico U.S.
Throughout the election period, Aeromexico held many meetings with passenger service employees voicing the Carrier's opposition to representation, including the following:
A. CQI Classes
In July and August 1999, top-level managers were trained in CQI in Cancun, Mexico. In February 2000, two groups of mid-level managers received three days of training as facilitators at the Houston Reservation Center. All other Aeromexico employees were scheduled for two days of mandatory CQI classes nationwide from March through May 2000. The training occurred in the Houston Reservation Center's training room.
Zapien's September 7, 2000, affidavit states:
The purpose of these two-day seminars is to empower Aeromexico's employees to improve Aeromexico's procedures and processes. The principal focus of the CQI classes is Aeromexico's customers and how it delivers its services to them. Employee benefits were not discussed and were not an item on the agenda.
According to employee witnesses, Coroy presented opening remarks at the April 11, 2000, CQI class. He spoke about his early airline career at Continental when there was a strike. He said it was very hard on him and his wife because they had no money. Bomberg presented opening remarks at one or two CQI sessions. According to employee witnesses, Bomberg and Zapien opened the April 19, 2000, CQI class, and Bomberg made several disparaging remarks about unionization and collective bargaining.
One employee witness stated that Bomberg said:
If the union was voted in he would take away all our incentives, including ETKT and TBM pay, 401(k) plan insurance, trade privileges, Christmas bonus. He was very upset and angry that employees were trying to bring in an outsider to speak for us.
Another witness stated that Bomberg said,
He will discontinue travel benefits, 401(k), [and] incentives if it were true about rumors that some employees wanted union representation and if a stranger will come to negotiate with him he will not do so under any circumstances.
A third employee witness said that Bomberg stated about negotiating with a union: "If I have to do this I can take away your 401(k), travel privileges, your PTO's and your ticket incentives."
In a subsequent interview, Bomberg denied the statements employee witnesses attributed to him. Bomberg stated that he was a "strong believer in the 401(k) plan" and "that all items of compensation and benefits were up to bargaining" if the IAM won representation rights at Aeromexico.
Zapien was present at this April 19, 2000, CQI class. Zapien stated that she did not recall Bomberg talking about the 401(k) plan or other benefits. She stated that Bomberg did not say anything negative about negotiations or the IAM.
B. Town Hall Meetings and Video Presentations
Approximately on a quarterly basis, Aeromexico communicates with employees by Town Hall meetings at the Houston Reservation Center. According to Aeromexico management witnesses, attendance at these meeting is always voluntary. There was one Town Hall meeting during the election on May 17, 2000. This meeting concluded with a presentation by Zapien concerning the IAM representation campaign and election. Her presentation included slides on the Board's election process, Aeromexico's labor policy, unionization "Q & A's," and instructions on voting "if you don't want a union."
Zapien's slide, entitled "The Process," includes a time line displayed as follows:
Actual Voting Period Begins
Zapien explained that she determined the date for the end of the voting period based on the book The Railway Labor Act, edited by Douglas L. Leslie, published by the Bureau of National Affairs, Inc., Washington, D.C. (1995). She provided the Board's Investigator with a copy of highlighted text at page 124, which she used to prepare the slide. The text states: "The Board procedures provide that the time period should not be shorter than 28 calendar days."
However, the Board's Instructions, attached to the Official Secret Ballot in this case, states:
Your ballot must be received at the NMB by 2:30 p.m., Eastern Time, on July 21, 2000 the end of the count, to be opened and counted.
Following the slide presentation, Zapien played the video entitled "Collective Bargaining - the Union Gamble." This video was one of two commercially produced videos from the Labor Relations Institute, Inc. (LRI), Broken Arrow, Oklahoma, purchased by Zapien. The second LRI-produced video is entitled "Job Security & Strikes - Your Future in the Union's Hands." These LRI videos are each about 20 minutes long. Their substantive content opposes unionization and their production format is similar to a news program. Both contain quotes from National Labor Relations Board (NLRB) case law. Both videos present arguments against union security, describe the risks of collective bargaining, and the dangers of strike.
Aeromexico produced the third video which is just over six minutes long and entitled "What the Union Did for Me." This video consists of statements by three management officials in a "talking head" format. The three management officials describe their personal experiences with an Aeromexico strike in Mexico about 10 years ago. Two managers speak only in Spanish.
The second LRI video, "Job Security & Strikes - Your Future in the Union's Hands" and the third Aeromexico short video, "What the Union Did for Me," were shown together to small groups of employees throughout the election. These videos were also shown in the Aeromexico sales offices in Atlanta, New York, Phoenix, Dallas, Los Angles, San Diego, and Miami and in the Houston Reservation Center's training room.
A few employees interviewed said that they understood attendance, at the May 17, 2000, Town Hall meeting and at the small group showings of the second LRI and the third Aeromexico video programs, was voluntary. However, most employees believed attendance at both video presentations was mandatory. One employee stated that the Team Coordinators said, of the Town Hall meeting, "this one, everyone must attend." Another employee said that Eulalia Dun, a Team Coordinator, said, "everybody has to attend, [the Town Hall meeting] instructions from Bomberg." Team Coordinator Baltazar said he understood viewing of the videos was mandatory. Team Coordinator Magness said employees were "scheduled" to see the videos.
Many employees also stated they were "scheduled" to see the videos. They said that they felt this meant they had to attend. Many felt that if they did not attend it would indicate how they voted. One employee said, "if I walked out they would know how I voted." Another employee said,
When the first video [was shown] I did not expect it to favor the union, but it was all negative and no one wanted to talk anymore. The person next to you was tense - - you did not know whether he was for you or against you. I was scheduled to see the second video, so it was mandatory. When you are scheduled for something, you attend.
Another employee said,
[T]he first video [at the Town Hall meeting] was mandatory. The second and third video I was scheduled with a small group. When you are scheduled, it is mandatory.
An employee commenting on the impact of all the videos said, "I thought it was true. It gave me a[n] idea of what a union is, especially the strikes."
C. "One-on-One" Meetings
Aeromexico management officials, specifically Team Coordinators, had many "one-on-one" meetings with employees at which the IAM representation election was discussed.
Analyn Paz, Team Coordinator, stated she had "one-on- one" meetings with employees to discuss the representation election. Furthermore, she said, to her knowledge, other Team Coordinators, including Joe Baltazar, Lynn Magness, Lee Ambrose, Debbie Bennett, Janice Escobedo and Julia Langford, also had "one-on-one" meetings with employees. Several employees recounted "one-on-one" meetings with Paz during which she talked from Aeromexico letters and charts.
I did not intimidate, harass or interrogate employees, but we did sit down with our teams, one-on-one, on the floor in open cubicles. I met with most of my team once. I met with a junior agent who said, "I don't understand all this." I would explain the union to employees since they were so young. I would keep them away from the "sharks."
Magness explained she believed that the "sharks" were the "aggressive senior agents who would intimidate the younger agents" to support the IAM.
An employee stated that Magness went from position to position asking the employees, "[d]o you have any questions about this union shit?" When this employee said "no," Magness said, "let's talk, anyway." Magness produced a list of benefits which the employees referred to as the "what-Aeromexico-has-done-for-us list," and sitting at an employee's position, Magness went through the list with each employee. Magness told one employee she was "talking to everybody."
Baltazar confirmed that he had "one-on-one" meetings with all employees he supervised during the election. He met with them "in my corner or in a conference room." He said he was "coaching and monitoring, answering any questions" the employees had. Usually, he said, he asked if the employee felt harassed or forced to sign authorization cards. He said he believed "several employees felt pressured" by IAM supporters. Baltazar said that some employees were concerned about what would happen to their vacation time and seniority "if the union came in and I had not voted for a union?" He said he tried to answer the questions.
Several employees confirmed "one-on-one" meetings with Baltazar at which the union and the representation election were discussed. Another employee said "I observed Joe Baltazar having one-on-one meetings with employees, on and off. All the Team Coordinators were talking to all employees and scaring new hires."
Compensation and Travel Privileges Policy Changes
On June 1, 2000, Aeromexico increased the compensation of all passenger service employees as follows:
1. New hires received accelerated raises ranging from $7 per hour at entry level to $9 per hour at maximum at two years of employment and, beginning at three years, they became eligible for merit review raises.
2. Other passenger service employees received an additional hourly premium for hours worked. This premium was not an "add to base" or an add to overtime compensation. CSR I's (GS) received a premium of $.30 per hour after three years. CSR I's (SF) with six months to five years service received a premium of $.30 per hour; six years to 10 years service received a premium of $.75 per hour; and 11 years or greater received a premium of $1.00 per hour.
3. CSR I's received a premium of $.30 per hour and accelerated pay raises ranging from $9.10 per hour at entry level to $10.70 per hour at maximum at three years of employment and, after three years, they became eligible for merit review raises.
The Travel Privilege Policy (TPP) benefits were improved as follows:
1. Eligibility for travel privileges was reduced from 1 year to six months of service.
2. "Embargoes" or "black outs," times when the travel privileges could not be used, were eliminated, except Christmas.
3. Certain "zone employee discounts" (ZED) on airfares became available to employees.
4. The "Industry Discount 90%" (ID 90) on Aeromexico airfares for employees and dependents became available 12 times per year and four of the annual ID 90's could be used for companions.
Aeromexico claims that the changes to compensation and the TPP were the result of several compensation studies. According to Aeromexico, the compensation studies included analyses of airline compensation information from Aeromexico's Human Resources Surveys, Airline Industry Relations Conference (AIRC) surveys, and feedback from reservations employees and management officials.
In October and November 1999, Aeromexico management reviewed the 1999 employee evaluations and a survey conducted by an independent research firm. As a result, Aeromexico became aware that passenger service employees were "unhappy with their compensation and travel privileges because they thought they were below those offered by other airlines, such as Continental Airlines." Aeromexico joined AIRC in November 1999. From the AIRC, Aeromexico received the Agent and Clerical Pay and Work Rule Handbook, the Agent & Clerical Benefits survey book, and other industry compensation survey information.
On January 14, 2000, Bomberg met with top Aeromexico management officials to discuss compensation and travel benefits changes. Aeromexico managers worked on a revised compensation and benefits package through February. Another meeting was held on February 16, 2000. On March 22, 2000, Bomberg distributed a memorandum to all employees telling them that Aeromexico was considering improving the compensation program and travel benefits.
On April 6, 2000, Zapien met with Arturo Barahona, President, and Jose Manuel Diaz Rivera, Commercial Director, Mexico City, to discuss the revision of the passenger service compensation package. On April 12, 2000, the compensation and travel benefit improvements were approved. On April 14, 2000, the TPP improvements were announced to managers. On April 20, 2000, the compensation improvements were announced at Houston Reservation Center manager's meeting.
Affidavits and statements from Zapien and Coroy and other documents establish that the compensation and travel benefit improvements were needed to improve employee retention and maintain the competitive balance between Aeromexico and other carriers, especially Continental. Specifically, the Carrier's research revealed that many Aeromexico employees had resigned to take positions with other carriers, especially Continental.
Coroy announced these changes to some employees in a meeting on April 25, 2000. The changes were announced again at the May 2, 2000, Houston Reservation Center's Town Hall meeting which nearly every Houston-based passenger service employee attended.
Carrier Written Communications
A. Dues Withholding Flyers
Usually, Aeromexico pay checks are distributed to day-work employees during their shift by a CSR I assigned as the Payroll Clerk. Employees who work the other shifts or miss this distribution, pick up their checks or make other arrangements. On or about June 7, 2000, Coroy told the Payroll Clerk that Julia Langford, Team Coordinator, and Ileana Cantu, an employee not in the craft or class, would distribute pay checks. Langford and Cantu distributed the pay checks and a flyer boldly captioned in red:
THIS COULD BE YOUR CHECK!
A picture of a dues withholding check appears below the caption in the employee's name made out to "MACHINIST UNION" for $33.40. The mock check is dated "06/07/00." Below the mock check in bold text appears:
DID YOU KNOW YOU COULD BE FORCED TO PAY UNION DUES?
The flyer states that, "[t]he union has said that dues would be approximately two times your hourly rate of pay, but its national reported dues are $33.40/month." The flyer says there is also an initiation fee of $33.40, describes dues check-off arrangements, and states "dues could be mandatory."
The flyer concludes in bold red text:
ASK THE UNION WHAT GUARANTEES COME WITH $400.80 PER YEAR?
All or nearly all Aeromexico employees in the craft or class received this flyer. Most received their pay check and the flyer from Langford. Many employees said, when Langford passed their paycheck and the dues withholding flyer to them, she said, "Merry Christmas. This is your Christmas present. This is what you are going to do with your money."
Langford said Coroy asked her to pass out the pay checks and the flyers and she was assisted by Cantu. Langford said she distributed 60 to 80 pay checks and flyers and said "Merry Christmas" each time. She said she is in the habit of saying "Merry Christmas" to employees. She said she had no dialogue with any of the employees to whom she passed out pay checks and mock check flyers.
All of the employees interviewed remembered the incident vividly. Many recalled it with anger and resentment. Many stated the mock dues withholding check amount was much higher then they had been told by IAM representatives.
Aeromexico says that it relied on the IAM's Form LM-2, Labor Organization Annual Report, for the period January 1, 1998 through December 31, 1998, to establish the dues and initiation fees amounts.
B. National Cruise Lines
On April 25, 2000, Coroy received an e-mail from Tony Stinson, Aeromexico Miami Regional Manager, concerning an offer from National Cruise Lines. Stinson's e-mail described a last minute offer for discounted berths on cruises departing San Francisco on May 2, 2000. The e-mail was addressed to all Aeromexico offices nationwide. Coroy saw to it that the information was distributed throughout the work place. Aeromexico did not solicit the National Cruise Line offer and did not subsidize the cost.
A few employees said Aeromexico had arranged the offer and/or the cruise to influence the representation election by discouraging the employees from voting for IAM.
Carrier Sponsored Events
A. Children's Day Picnic
The annual Aeromexico Company Picnic was announced in the May 2000 Aeromexico in-house newsletter, the RRRRRRES News, and scheduled on "Children's Day," Sunday, June 11, 2000. In 1997, the Company Picnic was held in May; in 1998, it was held in October; and, in 1999, it was cancelled in favor of a Christmas party.
A few employees felt Aeromexico changed the date of the Company Picnic from October to June to influence the vote and to identify the union supporters based on who did not attend.
Most employees stated that there is "a picnic every year, it is nothing special." Several employees said, "picnic dates vary every year."
B. Tenth Year Anniversary Luncheon
For the last three years, Aeromexico has celebrated the anniversary of employees with 10 years of employment with a luncheon. The IAM claims Aeromexico delayed the luncheon to influence employees not to support unionization. In 1999, the luncheon was held on March 5. In 2000, Zapien stated that the delivery of the "Tenth Year" honorary pins was delayed until June 20, 2000. The luncheon was delayed until June 29, 2000.
Some employees felt the luncheon was delayed to influence the outcome of the representation election.
VIII. Post-election Interviews of Employees by Zapien and Aeromexico's Counsel
After the Board's dismissal in Aeromexico, above, a management official and Aeromexico's counsel met with, and interviewed in "one-on-one" meetings, 10 employees in the craft or class concerning the IAM's allegations of election interference.
These Carrier "one-on-one" interviews came to the Board's attention on September 8, 2000, when the IAM contacted the Investigator and stated that Aeromexico had interviewed employees in the craft or class about the campaign and election, and the IAM's allegations of election interference.
The investigation established that on or about September 7, 2000, Aeromexico interviewed 10 employees in the craft or class and submitted affidavits from eight employees with the Carrier's September 8, 2000, submission. According to Aeromexico's counsel, the employees were selected at random. Two supervisors were also interviewed. However, subsequently, Coroy said the employees were selected based on whether he thought they would be "cooperative" in the interview.
During the Board's investigative interviews, some employees stated they understood the interview was voluntary, responded to the questions, and later, signed affidavits which accurately reflected their responses. For these employees, it was a simple process in which they answered questions and their responses were written down by Aeromexico's counsel.
Others reacted differently. One employee stated:
I was told that the interview was voluntary, that I could stop at any time. I was curious to see what I was going to be asked. When I was asked the questions . . . I could not remember much. Then, I remembered later [after the interview], but I thought I was going to get in trouble. I felt like I was put in the middle. It looked like I was taking sides [against employees]. I did not want management to think I was letting them down and I did not want the employees to think I was against them. I was uncomfortable.
I received a call, "Rachel wants to speak to you." I went to her office and she introduces me to the Aeromexico lawyer. I was told they wanted to interview me and I could stop at any time - it was voluntary. In a way, it felt like - if you walk away they would have an idea of how you voted. I did not feel harassed, but I heard others say they were . . . I still felt nervous. I tried to smooth everything out. I felt strange with Rachel there and wanted to smooth everything out and not be a target. About a week later they . . . called me again [to sign the affidavit].
Lally Dun [Team Coordinator], told me to report to Rachel. I thought something else, I thought it was the Mediation Board. Rachel introduced me to a lawyer and stayed [in the room]. I thought if it was the NMB, it was mandatory, but then I learned it was not the Mediation Board, but Aeromexico. When it was clear it was Aeromexico - and - I was uncomfortable. I thought about stopping [the interview]. I thought about staying. Rachel was there all the time and I did not know what to do. I had problems with the writing. I came back two days later and read the writing. I did not like it. It was still not my words, not quite what I said. If I did not sign, then they would know I was pro-union. The wording did not reflect the pressures or fears that I felt that if the union went through there was no guarantee of a job. They asked me a question one way, but when the words were on the paper it came out different. I changed some of the words, but I was not satisfied. I just signed the writing.
Another employee was uncomfortable with the affidavit prepared by Aeromexico, stating, "I voluntarily watched both of the videos." Yet, when the same employee was interviewed by the Investigator, the employee said, "[Aeromexico] did not ask us if we wanted to watch the videos and if I walked out they would know how I voted." The employee said, "I signed the affidavit to end the interview."
During election campaigns, a carrier must act in a manner that does not influence, interfere with, or coerce the employees' selection of a collective bargaining representative. Metroflight, Inc., 13 NMB 284 (1986). When considering whether employees' freedom of choice of a collective bargaining representative has been impaired, the Board examines the totality of the circumstances as established through its investigation. Petroleum Helicopters, Inc., 25 NMB 197 (1998); Evergreen International Airlines, 20 NMB 675 (1993); America West Airlines, Inc., 17 NMB 79 (1990). As the United States Supreme Court states in Texas & New Orleans Railroad Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 568 (1930):
The meaning of the word 'influence' [in Section 2, Ninth] may be gathered from the context . . . . The use of the word is not to be taken as interdicting the normal relations and innocent communications which are a part of all friendly intercourse, albeit between employer and employee. 'Influence' in this context plainly means pressure, the use of the authority or power of either party to induce action by the other in derogation of what the statute calls 'self-organization.'
Under Section 2, Ninth, of the Act, the Board has broad discretion to tailor its investigation to the facts and circumstances of each case. Midway Airlines Corp., 26 NMB 41 (1998); Petroleum Helicopters, Inc., above; Florida East Coast Railway Co., 17 NMB 177 (1990).
The Laboratory Period
In Key Airlines, 16 NMB 296, 310 (1989), the Board held that laboratory conditions must be maintained from the date the carrier becomes aware of the organizing drive. See also Midway Airlines Corp., 26 NMB 41 (1998); Petroleum Helicopters, Inc., 25 NMB 197 (1998); America West Airlines, 17 NMB 79, 98 (1990).
Considering the totality of the record, the Board concludes that the laboratory conditions attached by the first week of April 2000.
Surveillance and Telephone Monitoring
The Board has held that surveillance is a per se violation of the RLA. Arkansas and Missouri Railroad Co., 25 NMB 36 (1997); Egyptair, 19 NMB 166 (1992); Key Airlines, 16 NMB 296 (1989); Laker Airways, Ltd., 8 NMB 236 (1981). In addition, the Board has found that creating the impression of surveillance is a sufficient basis for a finding of interference. Sky Valet d/b/a Commercial Aviation Services of Boston, Inc., 23 NMB 276, 303 (1996). (The Carrier repeatedly told the employees it knew who signed authorization cards, questioned employees as to whether they signed authorization cards, threatened employees with discharge if they supported the organization, and discharged employees within days after they had signed authorization cards.)
The IAM alleges that Aeromexico increased telephone monitoring and that management officials engaged in surveillance throughout the Houston Reservation Center to identify IAM supporters. Aeromexico's managers stated there was no change in telephone monitoring during the election. The evidence supporting IAM's claim of Carrier increased telephone monitoring and surveillance, based on a heightened presence of management officials in hallways and break rooms, is contradictory and speculative. On balance, the Board finds the weight of relevant, material evidence does not support the conclusion that Aeromexico engaged in or even created an impression of engaging in either activity.
Carrier meetings with employees are not improper unless they are mandatory, coercive, or significantly increase in frequency during the election period. LSG Lufthansa Services, Inc., 27 NMB 18 (1999).
In addition, the Board examines the content of carrier communications at the meetings to determine whether the communications are coercive, contain material misrepresentations, or combined with other carrier actions, improperly influenced the employees in their choice of representative. The Board finds interference where the communications include threats about the consequences of voting for an organization. USAir, Inc., 18 NMB 290 (1991) (misrepresentations of Board procedures); Mid Pacific Airlines, 13 NMB 178 (1986) (promises of or withholding of benefits).
A. CQI Classes
The evidence establishes that the CQI classes were mandatory training sessions to implement Aeromexico's quality improvement effort. The class materials do not address unionization. The CQI classes were part of a pre-existing effort to improve customer service and quality. The evidence of what Bomberg said at the April 11, 2000, class is contradictory. Some employee witnesses recalled the statement and others did not. Bomberg denied he made the threatening statement and his denial is supported by Aeromexico mangers' affidavits and statements. There is insufficient credible evidence to establish that Bomberg made threatening comments at the April 11, 2000, CQI class. Therefore, the Board finds that the CQI classes did not constitute election interference.
B. Town Hall Meeting and Video Presentations
Inaccuracies, misstatements and misleading statements about the Board's procedures have been held to constitute election interference. Allegheny Airlines, Inc., 4 NMB 7 (1962). Misstatements by a carrier, whether or not intentional, tend to pressure employees in their choice of a representative. Zantop International Airlines, Inc., 6 NMB 834 (1979). USAir, 17 NMB 377 (1990).
Despite the claims of Aeromexico management, the evidence establishes that the May 17, 2000, Town Hall meeting, at which the first video was shown, and the subsequent small group meetings in the training room, at which the second and third videos were shown, were mandatory meetings. Furthermore, the two commercial videos contain anti-union messages and were based entirely on the National Labor Relations Act (NLRA) and NLRB case law. Both videos especially emphasized the risks of strike pursuant to the NLRA labor relations statutory scheme. The third video, produced by Aeromexico, contained the anti-union opinions of three management officials who were involved in an Aeromexico strike in Mexico pursuant to Mexican labor relations laws. None of the videos fairly presents the legal constraints on strikes found in the Act. 45 U.S.C. §§ 155, First, and 160. Based on the facts in this case and especially since employee attendance was mandatory, the Board finds that Aeromexico's video presentations constituted material misrepresentations on the RLA containing threats about the consequences of voting for the IAM. Therefore, these material misrepresentations constitute election interference.
Zapien's presentation at the May 17, 2000, Town Hall meeting also misstated the duration of the voting period. While, in fact, the Board would accept and count ballots received by 2:30 p.m., Eastern time, July 21, 2000, the slide she presented stated the voting period was over on July 14, 2000. This misstatement could reasonably lead employees who had not voted by July 14, 2000, to believe the exercise of their franchise was a futile effort. The Board finds that the misstatement constituted a material misrepresentation of Board procedures and election interference.
C. "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, 13 NMB 153, 163 (1986); 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, 4 NMB 7, 13 (1962). (Emphasis added.)
The statements of Aeromexico's Team Coordinators establish that many "one-on-one" meetings occurred throughout the election. At times, Team Coordinators held "one-on-one" meetings even when the employee did not want to talk about the election. When such meetings are held, despite an employee's express objection, the coercive effect is magnified. Furthermore, 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 employees' free choice of a representative and constitute election interference.
Compensation and Travel Privileges Policy Changes
Changes in working conditions during the laboratory period may taint laboratory conditions, except if the changes were planned before the laboratory conditions attached, or there is "clear and convincing evidence of a compelling business justification." Continental Airlines, Inc./Continental Express, Inc., 27 NMB 463 (2000); Air Logistics, L.L.C., 27 NMB 385 (2000); American Airlines, Inc., 26 NMB 412 (1999).
The Board has found election interference where the carrier grants or withholds benefits in order to influence the outcome of a representation dispute. Petroleum Helicopters, Inc., 25 NMB 197 (1998); Wisconsin Central Ltd./Fox Valley & Western Ltd., 24 NMB 64, 104 (1996); Evergreen International Airlines, above; Key Airlines, 16 NMB 296 (1989).
On June 1, 2000, during the laboratory period, Aeromexico increased compensation and improved the TPP. However, there is substantial credible and material evidence that the compensation and travel benefits changes were planned before the laboratory period. Aeromexico established that the purpose of these compensation and travel benefits changes was to reduce attrition and to remain competitive with other carriers, especially Continental.
Therefore, the Board finds that the changes to compensation and travel benefits did not taint the laboratory conditions.
Dues Withholding Flyer
In Air Logistics, L.L.C., 27 NMB 385, 404 (2000), the Board found,
Carriers have a right to communicate with their employees during election campaigns, but this right is "not without limit, and even conduct which is otherwise lawful may justify remedial action when it interferes with a representation election." In reviewing communications, the Board examines their content to see if they are coercive, contain material misrepresentations about the Board's processes or the Act, or combined with other Carrier actions, influence the employees in their choice of representative. The Board has found interference in communications that include threats about the consequences of voting for an organization.
The IAM claims that Aeromexico's dues withholding flyer constituted election interference because it was made out for a "fictitious" amount of union dues and contained "false" information about the IAM's dues procedures. There is no evidence that the flyer was coercive, contained material misrepresentations about the Board's processes or the Act, or influenced the employees in their choice of representative. Therefore, the flyer does not constitute election interference.
Company Picnic on Children's Day, Tenth Anniversary Luncheon, and National Cruise Lines
The IAM alleges that a number of discrete acts or singular events implemented by Aeromexico during the election constituted election interference, including: the Company Picnic on "Children's Day"; the Tenth Anniversary Luncheon; and the National Cruise Lines' cruise offers. The Board finds that there is insufficient credible and material evidence to establish these acts or events constitute election interference.
VIII. Aeromexico's Post-Election Interviews
In Petroleum Helicopters, Inc., 26 NMB 13 (1998), the Board addressed the question of whether laboratory conditions continued through its investigation of allegations of election interference. The Board concluded that the question must be answered affirmatively stating,
[T]he purpose of requiring that laboratory conditions be maintained is to permit an election to take place free from interference, influence, or coercion. In the event that impermissible interference, influence, or coercion is alleged, a new election may be necessary to determine the choice of employees. That election too must be free from interference, influence, or coercion. Therefore, the laboratory conditions must extend through that election and any subsequent investigation.
Petroleum Helicopters, above at 35.
To rebut the IAM's allegations of election interference, Aeromexico's counsel interviewed 10 members of the craft or class and prepared eight affidavits, which the employees signed. Employee statements taken by the Board's Investigator revealed these meetings were "one-on-one" interviews between Aeromexico's counsel and an employee, with Zapien as an observer.
Employee statements established that many of the employees Aeromexico interviewed feared if they refused the interview, the Carrier would know how they voted. Employee statements also established that Aeromexico's interview process and conduct during the interviews engendered fear among the employees that their choice of a representative would be revealed in the interview.
It is the duty of the Board to investigate representation disputes, including allegations of election interference. Aeromexico's interviews of employees in the craft or class interfered with the Board's investigation and powers set forth in 45 U.S.C. § 152, Ninth. The investigation establishes that these "one-on-one" interviews during the period when laboratory conditions must be maintained are inherently coercive and violated the secrecy of the ballot required by the RLA. 45 U.S.C. § 152, Ninth.
The Board finds that Aeromexico's post-election interviews of members of the craft or class interfered with laboratory conditions, violated the secrecy of the ballot, coerced employees in the exercise of their rights, and interfered with the Board's investigation.
CONCLUSION AND ORDER
Based upon the totality of the circumstances, the Board finds that the laboratory conditions required for a fair election were tainted. This conclusion is based on "one-on-one" meetings with employees, mandatory Town Hall meeting and video presentations, misrepresentation of Board procedures, and post-election interviews with employees. The Board's representative shall conduct a re-run election using a "Laker" ballot.
Pursuant to Manual Section 11.2, the Carrier is hereby required to furnish, within five calendar days, two sets of alphabetized peel-off labels bearing the names and current addresses of those employees on the list of eligible voters. The ballot count will take place in Washington, D.C. Copies of the attached "Notice to Passenger Service Employees of Aeromexico" 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.
Pursuant to Section 2, Ninth, of the RLA, the Board ORDERS a re-run election among Passenger Service Employees using a "Laker" ballot. IAM and a space for "No Representation" shall appear on the ballot. No space for "Write In" shall be provided. In addition, the Board shall mail each eligible voter a "Notice to all Passenger Service Employees of Aeromexico," identical to the attached notice. A copy of the notice shall be included with the ballot packages. 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. The cut-off date will be April 22, 2000.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Thomas H. Wilson, Esq.
Ashley Smith Zimmerman, Esq.
Christoper V. Bacon, Esq.
Mr. R.T. Buffenbarger
Mr. Robert Roach, Jr.
David Neigus, Esq.
NOTICE TO PASSENGER SERVICE EMPLOYEES OF AEROMEXICO
After an investigation conducted by the National Mediation Board (Board) in which Aeromexico and the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM), had the opportunity to present statements and evidence, the Board found that Aeromexico'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).
Accordingly, the Board authorizes a second election among Aeromexico's Passenger 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.
Aeromexico is not permitted to influence, interfere with, 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.