In the Matter of the
REPRESENTATION OF EMPLOYEES
NORTHERN AIR CARGO, INC.
Flight Deck Crew Members
29 NMB No. 1
October 11, 2001
On August 8, 2001, the Northern Air Cargo Flight Deck Crew Association (Association) filed an application with the National Mediation Board (Board) pursuant to 45 U.S.C. § 152, alleging a representation dispute among Flight Deck Crew Members of Northern Air Cargo, Inc. (NAC or Carrier). At the time the application was filed, these employees were represented by the International Brotherhood of Electrical Workers (IBEW).
The Board assigned Sean J. Rogers to investigate.
For the reasons set forth below, the Board dismisses the Association's application.
The Association filed the application on August 8, 2001. On August 22, 2001, the IBEW asked the Board to dismiss the Association's application.
On August 21, 2001, the Carrier filed a list of potential eligible voters and signature samples and stated that the cut-off date for eligibility was July 31, 2001.
On August 24, 2001, the Association responded to the IBEW's position statement and on August 27, 2001, the Carrier responded. On August 28, 2001, the Carrier responded to the Investigator's request for a copy of the NAC Employee Handbook (Handbook). On September 4, 2001, the IBEW replied to the Association and Carrier responses. On September 7, 2001, the Investigator requested certain NAC documents, records and information. On September 10, 2001, NAC responded. On September 13, 2001, the IBEW commented on the NAC response.
During the investigation, the Investigator interviewed several Carrier employees, former employees and management officials.
Whether NAC interfered, influenced or coerced the Flight Deck Crew Members free choice of a representative by dominating the Association?
The IBEW asserts the Association's application should be rejected because the Association's collection of authorization cards was aided and abetted by NAC and "thus the cards have been tainted." The IBEW supports this claim as follows:
On April 21, 1999, a flight deck crew member met with Rita Sholton, NAC Chief Executive Officer, Chairman of the Board and majority stock holder and discussed the collective bargaining between NAC and the IBEW. During the conversation, Sholton said, "we can't have a contract till a two year period has passed," and "after February 16, 2000, I can do something, but until then I can't."
In the Spring of 2000, members of the craft or class received a NAC memorandum entitled "Terminating an Exclusive Bargaining Certification under the Railway Labor Act" in their NAC in-house mailboxes. When the IBEW notified the craft or class of the balloting on NAC's last best offer for an agreement, the employees received an Association flyer in their NAC in-house mailboxes. This flyer sought support for "an initiative for . . . crew members to be represented as a group by ourselves." The lower half of the flyer was in the format of an authorization for representation (A-card). The flyer stated that A-cards could be returned to a NAC mailbox "in front of the B-727 cabinet with the red tab marked NACFCA."
Members of the craft or class reported to the IBEW that Timothy D. Kasnick, Association President, stated that NAC promised pay raises if the Association were elected as the craft or class representative. Kasnick listed the NAC dispatch room facsimile (fax) number as the Association's fax number.
IBEW argues that the totality of circumstances establishes that the Association has been encouraged and sponsored by NAC to frustrate IBEW efforts to negotiate a collective bargaining agreement. Finally, the IBEW asserts that the Association is dominated by NAC. The IBEW asks that the Board dismiss this application and extend the certification bar for one year.
Kasnick prepared the Association's submission and responded to the IBEW claims as follows:
The IBEW is attempting to circumvent a democratic process. NAC Flight Deck Crew Members "should have the ultimate say in their livelihoods and future." Kasnick was not advised or encouraged by NAC and he has been "contemplating this idea for some time."
The Association "put A-cards in employees files and requested them to be put in the front of the file folder." These cards were only to ask for an election without "opinion or position," and "only to consider another option." Only a portion of the A-cards were returned by the NAC in-house mail system and most were handed to Kasnick. The returned A-cards in the Association's folder in the NAC file cabinet "were picked up on a continual basis thereby eliminating any possibility [for NAC management] to know who did not sign." Kasnick told flight deck crew members that the problems in the work place, including pay and retirement would be more successfully solved without the IBEW which had gotten nowhere in three and a half years.
The Association used the NAC fax machine in the Operations area because "this was the only number available at the time when [the Board] asked as to where information could be sent."
Kasnick concludes saying, "[I] reassert my position as being influenced only by my own conscience."
NAC denies that "the Association is an illegitimate employer dominated organization." NAC says that none of the IBEW's "allegations, suggestions and suspicions have merit," and refutes the IBEW's claims as follows:
The statement attributed Rita Sholton, that NAC "can't have a contract until a two year period has passed," makes no sense. Specifically, the Carrier and IBEW were bargaining in good faith for a contract and since a contract could have been reached at anytime, the alleged Sholton statement does not make any sense. Similarly, the other alleged Sholton statement, that NAC could not do anything to improve pay and benefits until after February 16, 2001, does not make sense because that date had come and gone and NAC continued to bargain with IBEW.
Beginning immediately after IBEW was certified, "NAC management officials were approached from time to time by flight deck crew members asking how to get rid of the union." On April 15, 1999, Sholton discussed these employee inquiries with Thomas P. Owens, Esq., NAC labor counsel. By April 19, 1999, Owens prepared a memorandum entitled "Terminating an Exclusive Bargaining Certification under the Railway Labor Act." NAC management refrained from discussing terminating IBEW's certification with employees and passed out this memorandum only to individual employees who asked about the subject. The memorandum simply describes employees' rights under the Railway Labor Act (RLA) and NAC did not encourage any employee to take any course of action.
NAC's Handbook contains a policy prohibiting the unauthorized solicitation of employees and distribution of literature to employees. In 1998, NAC rescinded the proposed discipline of a flight deck crew member who passed out IBEW business cards. After this incident, NAC still firmly enforces this no-solicitation, no-distribution policy with regard to non-employees. It is less diligent about enforcing the policy with regard to employees. Since the business card incident, NAC adopted the practice of not acting on employee-to-employee solicitation and distribution that does not interfere with work. Consistent with this policy, NAC took no action when Kasnick distributed A-cards in the work place and gave employees A-cards in the presence of management officials.
NAC maintains a policy of strict neutrality on unions. Moreover, management officials do not examine the contents of Flight Deck Crew Members' mail folders. NAC has maintained the "hands off" policy, so "it is difficult to imagine how NAC management's potential knowledge of who had signed an authorization card and returned it by mail would interfere with employee decision making."
NAC's "hands off" policy also applies to the Operations fax machine which is a "free for all" fax machine. While the Handbook prohibits the use of fax machines for personal business, "NAC has always allowed employees to use the Operation fax for personal business and has not monitored its use at all."
Finally, NAC denies that Kasnick was promised pay and benefits would improve, if the Association were elected representative of Flight Deck Crew Members.
FINDINGS OF LAW
Determination of the issue in this case is governed by the Act, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:
Northern Air Cargo, Inc. is a common carrier by air as defined in 45 U.S.C. § 181.
The IBEW and the Association are labor organizations and/or representatives 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.
FINDINGS OF FACT
The NAC/IBEW Collective Bargaining Relationship
A. The Collective Bargaining Background
The IBEW campaigned to represent NAC Flight Deck Crew Members and collected A-cards from approximately October through November 1997. On November 26, 1997, the IBEW filed a representation application with the Board. The Board found a representation dispute existed among the NAC Flight Deck Crew Members craft or class and conducted an election. The IBEW was certified as the exclusive representative of the Flight Deck Crew Members on February 18, 1998. Northern Air Cargo, Inc., 25 NMB 249 (1998).
NAC and IBEW began bargaining in early 1998. On or about April 19, 1999, Owens, prepared a memorandum for employees entitled "Terminating an Exclusive Bargaining Certification under the Railway Labor Act" (Owens memorandum). On October 14, 1999, the IBEW requested mediation services from the Board.
The mediation case was docketed on October 20, 1999. Northern Air Cargo, Inc./International Brotherhood of Electrical Workers, NMB Case No. A-13055. Federal Mediator Richard Frey was assigned October 25, 1999. Frey mediated 11 days of meetings between NAC and IBEW. When NAC and IBEW still did not reach agreement, NAC proposed a last best offer and asked IBEW to submit the offer to the craft or class for a ratification vote. On June 19, 2001, the IBEW agreed to submit the NAC last best offer to the Flight Deck Crew Members for a ratification vote to be counted in mid-July 2001.
On July 20, 2001, IBEW reported that the NAC last best offer was rejected by 92% of the members. The IBEW requested a release from the Board's jurisdiction. On July 24, 2001, the Board requested comments from NAC on the IBEW's release request.
On July 30, 2001, NAC responded, in pertinent part:
The carrier believes that a group of bargaining unit employees has filed individual requests with the NMB, which could create a representation dispute. We do not know the status of the investigation of any such dispute.
Under these circumstances, the carrier does not know whether a proffer of arbitration by the NMB is appropriate or not. If the employees have in fact rejected an offer which contains open items which mostly concern union representation issues and at the same time have filed requests which create a representation dispute, wouldn't the most efficient course of action be to withhold the proffer of arbitration until the investigation and resolution of any representation disputes has run its course? If we followed that course we would avoid spending board, union and carrier resources on a dispute that may be moot.
On August 8, 2001, the Association filed the representation application in this case.
On August 10, 2001, the Board issued a proffer of arbitration to NAC and IBEW. IBEW accepted the proffer on August 14, 2001. NAC rejected the proffer on August 20, 2001. Thereafter, the Board released NAC and IBEW into a 30-day cooling off period.
The Board offered to mediate public interest meetings between NAC and IBEW from September 18 through September 21, 2001. On September 14, 2001, IBEW accepted the public interest meeting schedule. However, NAC rejected the meetings. The 30-day cooling off period ended at 12:01 a.m., September 22, 2001.
B. The IBEW Campaign Incident
In late October 1997, a flight deck crew member, waiting on the flight line just prior to take off, overheard two other NAC employees arguing over the value of IBEW representation. The crew member approached the two employees and gave each the IBEW's business agent business card. The crew member told the employees to call the business agent to get the facts on union representation. Shortly thereafter, the crew member was summoned to Mary Sholton's office, NAC President and Chief Operating Officer. Leonard Kirk, Director of Operations was also present. Sholton was holding one of the IBEW business cards.
Sholton stated, when asked to recall the incident:
[the business cards] were being distributed against our policy and the flight crew member was reprimanded about it. Later, we recognized that it was employee-to-employee solicitation and we rescinded the disciplinary action.
Sholton could not recall if the crew member was taken off the flight or if the discipline ultimately involved a suspension, but she did recall, "no one was fired." Owens, NAC's labor counsel, recalled that all discipline was rescinded. Moreover, based on Owens' advice, NAC recognized that the policy against employee-to-employee solicitation was unenforceable.
Employee witnesses recall the crew member was taken off the flight and told the discipline for distributing the IBEW business cards was immediate suspension without pay while an investigation into possibly firing the employee was conducted. The crew member was ordered to collect any belongings and get off NAC property. Later, the crew member was told the suspension would be with pay. Still later the crew member was told there would be no firing. Finally, Kirk contacted the crew member for an off-duty, off-property meeting. At the meeting, the incident was settled. The settlement included: return to work without loss of pay, reimbursement of "above guarantee" pay for missed overtime, and clearing the employee's personnel file, according to employee witnesses.
The incident was well known among crew members even after nearly four years. Crew members' residual understanding of NAC's policy is that employees risk discipline, up to firing, for soliciting support or distributing literature for IBEW.
The evidence supports the employee witnesses' recollection of these events.
NAC Position Regarding Unions and Policy of "Strict Neutrality"
NAC's "Company Position Regarding Unions" as found in the Handbook states:
It is Northern Air Cargo's preference and objective to operate on a union-free basis. It is the Company's philosophy that if employees are treated fairly and if competitive wages, hours and working conditions are provided, employees will not need a union.
The philosophy of a union-free operation does not mean that the Company is anti-union. Northern Air Cargo recognizes that employees have the right to organize and be represented by a union or to refrain from such activity.
It is Northern Air Cargo's belief that union-free operations offer both employees and the Company more flexibility in doing business. Therefore, the Company's policy is not anti-union, it is pro-employee.
Employees have the right to refuse to sign union authorization cards should anyone ask them. Threats or coercion regarding signing a union authorization card, should be reported to the employee's supervisor.
In addition, NAC says it has adopted a policy of "strict neutrality" as to employees choice between competing organizations like IBEW and the Association. This policy is not in the Handbook or other NAC document.
The Owens Memorandum
According to Owens, on April 15, 1999, Rita Sholton contacted him and said that "NAC management was being approached by [flight crew members] who wanted to know how to get rid of IBEW." Owens advised NAC management not to discuss the subject with crew members and instead to pass out a memorandum describing their rights under the RLA. By April 19, 1999, Owens had completed the memorandum entitled "Terminating an Exclusive Bargaining Certification under the Railway Labor Act." Owens asserted that the memorandum was distributed only to employees who asked about how to decertify IBEW. He said that the memorandum was never distributed to every crew member through the NAC in-house mail system.
Robert Russell, Director of Flight Operations, said he distributed the memorandum to four or five employees who asked about decertifying IBEW. The last copy he distributed was to Kasnick in the Summer 2001.
The IBEW says it discovered the Owens memorandum in the workplace in late May 2000 when it was distributed to all Flight Deck Crew Members through the NAC in-house mail system. Many employee witnesses confirmed receiving the memorandum through the NAC in-house mail system.
The evidence establishes that the memorandum was generally distributed among crew members in late May 2000.
Misstatements of Board Policy
The Owens memorandum misstates Board policy and incompletely or incorrectly describes RLA showing of interest requirements and election processes. In the first instance, the memorandum incompletely explains the RLA showing of interest requirement:
To begin the process, the employees' committee must gather written documentation that it has the support of a substantial number of the employees in the bargaining unit. The minimum level of support must be 35% of all bargaining unit employees.
While this statement is technically correct, it is incomplete. A 35% showing of interest is required when the craft or class is unrepresented, or when the craft or class is represented and there is no collective bargaining agreement. (29 CFR § 1206.2(b)). When the craft or class is represented and there is a collective bargaining agreement, the showing of interest must be from at least a majority of the craft or class. (29 CFR § 1206.2(a)). Therefore, the statement is correct only for so long as NAC and IBEW did not reach agreement on a contract.
In the second instance, the memorandum states:
Once a petition is filed and the Board has determined there is sufficient interest, an election will be scheduled. The current union must also present cards from 35% of the bargaining unit employees if it wishes to have a chance to serve as the bargaining representative.
This statement is incorrect. The Board does not require an incumbent organization to present a showing of interest to have its name appear on the ballot. Northwest Airlines, Inc., 26 NMB 269, 270 (1999); Canadian Pacific Railway (Soo District), 26 NMB 212, 221 (1999); Trans World Airlines, 24 NMB 178 (1997).
Finally, in the third instance, the memorandum states:
If a majority of the bargaining unit members votes to be represented by the incumbent union, that union will be re-certified as the representative of the bargaining unit. If a majority of the bargaining unit employees vote (sic) to be represented by the employees' committee, it will be certified as the collective bargaining representative of the bargaining unit.
The statement is incorrect. When two or more organizations or individuals appear on the ballot and a majority of the craft or class votes for representation, then the organization or individual receiving a majority of the votes cast will be certified as the exclusive representative. (45 USC § 152, Fourth, and the Board's Representation Manual Section 16.0).
Rita Sholton's Meeting With
a Flight Deck Crew Member on April 16, 1999
In early April 1999, a flight deck crew member contacted Roberta Demoski, IBEW business agent, and expressed concern that Rita Sholton was "taking a hard line" against IBEW. The employee asked Demoski, "Should I go talk to her?" Demoski told the employee such a conversation might "alleviate the animosity and bad feelings" between NAC and IBEW.
On April 16, 1999, the crew member met with Sholton. Both the employee and Sholton stated that much of the conversation was personal. The crew member asked Sholton if anything could be done to improve the "mired down negotiations" with IBEW. The crew member recalls that Sholton said, "I cannot do anything until February 22, 2000. Nothing is going to happen until then, but then we could do something."
Sholton's affidavit states:
At the time I mistakenly believed that NAC had to wait two years before it could sign a collective bargaining agreement with IBEW. I was operating under the mistaken belief that I could not do anything about pay or benefits or anyone's career until the two years passed. I now understand the roles better.
When the Investigator asked her to explain her affidavit statement, Sholton said,
I was under the impression that we had two years to bargain. Everything was off the table and I thought we were just frozen. . . . Negotiations were freezing us.
Sholton also told the Investigator that it was her opinion that NAC, like all small companies, would operate better without a union.
On March 31, 2000, Sholton notified all NAC employees by letter that she had decided to contribute to the 401(k) plan for fiscal year 1999-2000 by matching 50% of the first 6% employee contributions. On April 3, 2000, Sholton notified "Flight Crew Members" that the 401(k) match would apply to the flight deck crew members and stated:
The Board of Directors and flight operations management made the decision to include flight crewmembers of Northern Air Cargo in the match this year. While I supported the decision in the past to exclude flight crewmembers, I believe things have changed significantly and I am hoping we are headed in the right direction together. Please see our actions today as evidence of this.
Formation of the Northern Air Cargo
Flight Crew Association
Kasnick stated he had been thinking about forming an employee association for "several months." A few days before he distributed A-card flyers, in late June and early July 2001, he formed the "Northern Air Cargo Flight Crew Association." Following the Association's application in this case, the Board's representation coordinator called him and asked for the name of the Association's president. He responded, "put my name down - - there is nobody else."
He stated his early thoughts about forming the Association were,
I thought, do we try and get ALPA? I would love to see a good union in here. It is not going to work unless the company is willing to work with the union. Small companies work with unions but only if they want to cooperate and are willing to work with the union. . . . I am not an expert, . . . when you have a small number of people who own a company these people have full say. [Rita Sholton] is very wealthy and does not care about making money. It is a small company mentality. If she thought it was a good idea, a union or an association, it would work. She despises the IBEW. . . . But, I can't say that as a fact. She has refused to work with them.
Kasnick's Meetings With NAC Management
Kasnick received the Owens memorandum from Bob Russell, NAC Operations Director, "a couple of days" before distributing the Association's A-card flyer to all employees in the craft or class. Kasnick described the meeting as follows:
I went to Bob Russell, I was kind of covering my hide. I wanted to see what I was doing was something that they were going to support or completely reject. I went in there, he told me this [Owens memorandum] is the information and it is what I can give you. . . . He said "Yeah, we would support you." He thought it was a good idea. He thought the company would support it. He thought it was a good idea.
Kasnick met with Marjorie McLaren , NAC President, a few days later. Kasnick said their conversation was very limited and professional. He did most of the talking and he left knowing that the Association "was not going to be a futile effort."
On or about August 13, 2001, around 10:00 a.m., Kasnick met with Rita Sholton. He had made an appointment to discuss the Association. Recalling the meeting he said,
I went in there and I, first of all, her first words were "I am not here to negotiate." I gave her my whole feeling of why I was doing this and what I was hoping to get. I told her, we wanted something we could be proud off. She said she wanted the company to be more of a family and the company was more of a family [for her]. . . .she talked about the history of the company. She did not say much. I asked her about an ESOP possibility. I asked her, "Would you consider selling it to the employees?" and she said it was a possibility. She was supportive of what I was saying, I believe she agreed with me. She gave me tacit response, nodding her head, facial gestures. She did not say anything specific, but I know she was supportive.
Many employee witnesses recalled seeing Kasnick often meeting with Russell in Russell's office for long periods from mid-July to late August 2001. Employee witnesses stated that on August 22, 2001, they saw Kasnick receive an IBEW submission in this case and, after reading it, go into Russell's office and met with Russell for several minutes
After I received IBEW's submission, I did see him [Russell]. I was surprised about the submission because it alleged the Association was part of the company. I said [to Russell], "You know as well as I do, that the Association has nothing to do with the company." I can't remember specifically, but he agreed with me. That was the extent of the conversation. It lasted a couple of minutes. I gave him my opinion and he agreed.
The credible evidence establishes that Kasnick had extraordinary free access to the highest level NAC management officials. He was able to schedule a meeting with Sholton. He had a substantive conversation with her about labor and employee relations matters. Sholton expressed support and encouragement of his efforts to advance the Association. Throughout the time Kasnick formed the Association and solicited A-cards, he had several meetings with Russell, who expressed support and encouragement for the Association.
The Association's A-card Flyer Distribution
and A-card Collection
The NAC in-house mail system consists of three two-drawer file cabinets in the pilots' ready room. The first file cabinet contains alphabetical file folders arranged by crew members' last names for 727 Flight Deck Crew Members; the second contains alphabetical file folders for DC 6 crew members; and the third is a forms cabinet. A crew member's file folder is his or her NAC in-house mail box. Among other NAC distributions, crew members receive paychecks in these mail boxes. The ready room is open at all times and the file cabinets are unlocked. The room also contains a NAC bulletin board with a table immediately below.
The Association A-card flyer is printed on an 8 ½" by 11" piece of white paper. The top of the page reads:
Dear fellow flight crew members, As you may know there is an initiative being put fourth [sic] to allow for Northern Air Cargo crew members to be represented as a group by ourselves. I believe this has come at a time when both sides of this company realize our precarious situation. I believe further delinquency on either side to resolve past issues will only further exacerbate the wounds that need be healed.
It is my opinion that the most effective vessel to carry fourth (sic) such measure is to allow the flight crew at Northern Air Cargo full representation of and by itself. This is only to petition the National Mediation Board for an election to be held in the near future so as to allow each crew member to vote on this proposal. It is not for the purpose of deciding at this time to establish new representation.
Please take a moment to consider this proposal, If you agree please sign and date bottom portion of this letter. It will be sent to the NMB to allow for a future election on this issue.
When you have finished please put this in the front file of the B-727 cabinet with the red tab marked NACFCA.
The bottom half of the page reads,
To whom it may concern:
I hereby request the National Mediation Board to allow full representation by the Northern Air Cargo Flight Crew Association.
Some time around the end of June or early July 2001, Kasnick placed a red tab folder marked "NCAFCA" in the front of the 727 file cabinet. He placed the Association's A-card flyer into each crew member's file folder. He posted the flyer on the bulletin board and put a stack on the table below.
Kasnick collected most completed A-card flyers personally. He states he received a few through the Association's mail box in the 727 file cabinet. Employee witnesses recalled he solicited A-card signatures during work time on NAC property. Several witnesses stated he handed them A-card flyers in the presence of management officials including the Chief Pilot and Russell. These witnesses said the management officials did nothing about these solicitations.
The credible and substantive evidence establishes that the Association had free access to and free use of NAC's ready room, bulletin board and in-house mail system. Kasnick moved freely about the work place soliciting A-card signatures with the knowledge of and in front of NAC management. The IBEW had no comparable access to or use of these NAC facilities and systems.
Other Carrier Support of the Association
NAC's office technology policy states:
The office environment has a wide variety of technologies such as faxes, computers, radios, cellular phones, and Internet and E-mail access. Proper use of these technologies is no different than other tools owned and provided by the Company.
Office Technology Policy
* * *
(2)Long distance telephone and fax calls are to be made for business purposes only.
The Association's NMB Notice of Appearance form completed by Kasnick lists the telephone number of a NAC fax machine in the NAC Operations room. The Association's submissions to the Board were sent by this fax machine.
NAC says that the Operations fax is "free for all," and supports this claim with an affidavit from Chris Anton, NAC Operations Agent, whose desk is five feet from the machine. According to Anton,
Individual employees, including flight crew members, also use the Operations Fax to send and receive faxes. I do not know what these faxes concern. . . . No management employee monitors the Operations Fax. . . . Employees are not required to get permission to use the Operations Fax.
Every Flight Deck Crew Member interviewed was familiar with NAC's office technology policy. Some said the policy was not rigidly enforced and a few even admitted using the fax machine for personal matters. However, no crew member thought the Operations fax machine was "free for all." They were not surprised that Kasnick listed the operations fax as the Association fax. Most said Kasnick's use of the fax machine represented NAC's support for the Association.
When he was asked about any form of NAC support for the Association, Kasnick said:
[T]he first filing, when I sent everything , I sent it by express mail and I put it on a company credit card. I did not want to pay for it, let the company pay for it, I thought, and in some way help me out. . . . I think, I am doing it [NAC] a favor and the flight crew members a favor.
Kasnick said he actively campaigned for support from crew members and sought their signatures in the work place. He recalled handing one employee an A-card flyer in front of the Chief Pilot. Most crew members said he told them he had "assurances," "support," and "guarantees" from NAC that working conditions would improve if the Association represented employees.
One employee witness asked Kasnick, "Will the Association get us attorneys?" Kasnick replied, "Well, the company won't use an attorney against us, I have guarantees." Another witness said Kasnick stated, "the company would be supportive of creating an association, but that they could not come out and say it openly." Kasnick told the Investigator he made these statements after his meeting with Sholton, Russell and McLaren.
Several employee witnesses recalled an exchange in the ready room when a crew member said, "No union is better than that [the Association], because that's worse than no union." Kasnick responded, "it would be a union. We would still be under the Railway Labor Act, but management would support it."
NAC Solicitation for Creation of an Employee Association
Many witnesses stated that during the Summer 2001, they had the impression that NAC management officials were soliciting someone to start an employee association. When Kasnick began campaigning in July, one crew member confronted McLaren about Kasnick's activities. The witness stated:
I told Marjorie [McLaren] that Kasnick was working on the company property, using phones, phone lists, fax machine, mail system and mail boxes. She referred to the Association as "our union," the words slipped out. She said, "We can't do anything until we know which union is going to represent the employees. I made several other comments and she said, "We will have to call Owens to make sure he [Kasnick] is not breaking any rules." The Association was batted to me about three or four months before. Bob Russell said that the company would much rather deal with them. He wanted to start an Association. It was clear they were looking for somebody to start the Association.
Under 45 U.S.C. § 152, Ninth, the Board is charged with the responsibility of assuring that employees in any craft or class are provided the opportunity to make a choice concerning representation free of carrier interference, influence or coercion. This duty requires that when there are employee allegations of carrier interference, the Board must investigate such claims. Metroflight, Inc., 13 NMB 284 (1986); Key Airlines, 13 NMB 153 (1986). The duty extends to the Board's investigation of allegations of carrier interference before the authorization of an election. Southwest Airlines, 21 NMB 332 (1994); Seaboard System Railroad, 12 NMB 25 (1984); Sea Airmotive, Inc. d/b/a SEAIR Alaska Airlines, 11 NMB 87 (1983); Transkentucky Transportation Railroad, Inc., 8 NMB 495 (1981).
The carrier is under an obligation imposed by the RLA to act in a manner which does not influence, interfere or coerce the employees' selection of a collective bargaining representative. The carrier is obligated to preserve laboratory conditions ensuring employee freedom of choice. The Board has long held that from the time the carrier was aware of the organizing drive until its conclusion of the election, laboratory conditions must be maintained. Metroflight, above; Key Airlines, above.
Carrier influence, interference or coercion which fosters, assists or dominates an organization may disqualify the organization as an employee representative. Under these circumstances, the Board has found that the organization "is not qualified to act as an employee representative nor accordingly, to invoke a representation dispute on the employees' behalf." Mackey International Airlines, 5 NMB 220, 221 (1975). In addition, when the facts tend to show that an organization's A-cards were the product of carrier influence, the Board will not take cognizance of the cards for directing an election under 45 U.S.C. § 152, Ninth. Southwest Airlines, above at 350.
In cases involving the issue of whether employees' freedom of choice of a collective bargaining representative has been impaired, including allegations raised in this case, the Board examines the totality of the circumstances. The Board evaluates the facts developed from the organizations' and carriers' submissions, the investigator's interviews, and Board experience. Evergreen International Airlines, 20 NMB 675 (1993).
The facts in this investigation reveal that since the initial IBEW organizing campaign in October 1997, NAC opposed the IBEW's organizing of Flight Deck Crew Members. After IBEW became the certified exclusive representative, NAC treated with the IBEW by meeting in collective bargaining negotiations over nearly three years. The Owens memorandum prepared at that time establishes that NAC knew that, without an agreement between NAC and IBEW, the showing of interest requirement remained at 35%. Therefore, NAC management officials knew with no agreement, the environment was more favorable to an employee association dedicated to decertifying IBEW. NAC and IBEW have not reached agreement. NAC's claim to have followed a policy of "strict neutrality," is not supported by the evidence.
Regardless of how the Owens memorandum was distributed, it reached all or nearly all of the members of the craft or class. In addition, employee statements establish that NAC canvassed members of the craft or class to start an association in order to decertify IBEW.
Before Kasnick created the Association, he sought assurances from Sholton, Russell and McLaren, that the Association would be supported by NAC. Then NAC assisted the Association in a number of ways, including free access to NAC property, and use of the NAC bulletin board, in-house mail system and fax machine. The Association A-card flyer was freely distributed and collected throughout the work place in the presence of management officials.
Kasnick was so confident in his efforts and convinced that he had the support of NAC, that he charged the cost of delivery of the Association's application to his NAC credit card. He openly told members of the craft or class that he had "assurances" and "guarantees" that working conditions would improve if the Association were the certified exclusive representative because employees could deal directly with NAC. His access to NAC management officials and meetings with Russell demonstrate NAC's support for the Association.
At the same time, he freely admitted the Association had no officers or organizational structure. In addition, the Owens June 30, 2001, letter to the Board concerning the IBEW-NAC mediation foretold the Association's August 8, 2001, application. Coupled with his free and extraordinary access to the highest level of NAC management, the evidence establishes NAC dominated the Association. The evidence confirms that NAC was an Association partisan and Kasnick was a NAC confidant.
NAC fostered the creation of the Association, assisted in the Association's A-card campaign, and thereby dominated the Association. The Board finds, based on the totality of circumstances, NAC's conduct did not provide an environment in which the Flight Deck Crew Members were able to make their decision regarding representation with sufficient insulation from interference, influence or coercion by the carrier. Under these circumstances, the Association's A-cards are tainted. Therefore, the Board will not take cognizance of the Association's A-cards.
The Association's application is dismissed subject to the one-year bar in 29 C.F.R. § 1206.4(b)(2).
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Thomas P. Owens, Jr. Esq.
Ms. Marjorie McLaren
Paul Sholton, Esq.
Mr. Daniel Repasky
Mr. Gary Brooks
Mr. Tim Kasnick