In the Matter of the
alleging a representation dispute
pursuant to Section 2, Ninth,
involving employees of
29 NMB No. 8
CASE NO. R-6818
This determination resolves election interference allegations filed by the International Association of EMT's and Paramedics (IAEP 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 standard ballot.
On March 22, 2001, the IAEP 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 EMS Employees Nurses and Paramedics of Mercy Air Service, Inc. (MAS or Carrier). At the time the application was received, these employees were unrepresented.
The Board assigned Eileen M. Hennessey to investigate. On May 4, 2001, the Board found a dispute existed and authorized an election. The ballot count took place on June 22, 2001. Of 82 eligible voters, 34 cast valid votes for representation. This was less than the majority required for Board certification. On June 25, 2001, the Board dismissed the IAEP's application. Mercy Air Service, Inc., 28 NMB 463 (2001).
On June 28, 2001, the IAEP filed election interference allegations pursuant to the Board's Representation Manual (Manual), Section 14.0. On July 13, 2001, the Carrier responded, denying the IAEP's allegations. On July 26, 2001, the Board found that the IAEP's allegations stated a prima facie case that laboratory conditions were tainted and the Board would conduct further investigation. The Carrier and the Organization made additional submissions to the Board.
Did MAS's actions taint the laboratory conditions the Board requires for a fair election?
The IAEP's allegations of election interference are as follows:
Laboratory conditions attached when the Carrier first learned of IAEP's organizing campaign on February 26, 2001, the date IAEP filed a petition for representation with the National Labor Relations Board (NLRB). Prior to the hearing date in the NLRB case, the participants discussed whether the matter fell under the National Mediation Board's (NMB) jurisdiction. On March 7, 2001, the IAEP withdrew its NLRB petition and notified the Carrier that upon return of the authorization cards it would file an application with the NMB. On March 9, 2001, the Carrier sent a memo to its employees stating that the IAEP withdrew its NLRB petition but would likely file with the NMB.
During the laboratory period, the Carrier solicited the employees, seeking their opinions on proposed changes in pay and benefits. In the solicitations, the Carrier implied that employee requests would be granted if the union was not involved. Specifically, a member of management, Mary Davis, approached employees and asked what the problems were that led to the organizing drive. She asked employees what they were looking for in terms of wages and benefits and implied that changes could not be made because of the union organizing campaign.
The Carrier told employees that if the Organization was voted in, and if the union proposed financial increases, the base might shut down or declare bankruptcy.
The Carrier implied to employees that but for the IAEP, the employees would receive an increase in benefits and wages. On or about April 12, 2001, the Carrier sent a letter to the IAEP stating that it had made plans to change wages and benefits. This letter, attached to a memorandum to MAS employees, was faxed to all bases prior to mailing it to the IAEP. The memorandum and letter asked the IAEP to waive any objections it may have to MAS making changes during the laboratory period.
The Carrier granted pay raises and benefits on or about April 23, 2001.
The Carrier created an atmosphere of intimidation and coercion through an "excessive amount of anti-union faxes, mailings, e-mails and wall postings." Starting approximately April 16, 2001, the Carrier began an anti-union campaign designed to continually expose employees to misleading statements about internal union operations, and dangers to work and patient care should the IAEP be elected. In addition, the Carrier began sending employees a newsletter which propagated anti-union sentiment.
The Carrier made misleading statements about the collective bargaining process. The Carrier sent multiple mailings, postings and faxed notices which "drilled into" employees that bargaining is adversarial and frequently lasts several years. The Carrier misled employees into believing that the Carrier could unilaterally alter pay, benefits, and working conditions for any reason, prior to achieving an agreement.
The Carrier made coercive statements concerning union membership. According to the IAEP, the Carrier sent communications to employees inferring that employees could not belong to two unions and if the IAEP was certified, employees who belonged to another union could not continue to work at MAS or would be disciplined by the IAEP.
The Carrier began a series of "brown bag lunch"meetings with employees during the election period to discuss employment related concerns. The effect of the meetings was to encourage employees not to vote for the IAEP because the Carrier had a method of airing employee grievances and communicating with employees.
The Carrier rescheduled the annual company picture day from the first Tuesday in June to May 29, 2001, in order to coincide with the beginning of the election period. In addition, this year the Carrier scheduled a lunch to follow the picture day. At the lunch, the Carrier solicited concerns and encouraged employees not to vote for the IAEP and to give management another chance.
The Carrier's actions tainted the laboratory conditions necessary for an election free from influence and coercion. The IAEP requests that the results of the election be set aside and the IAEP be certified as the representative. In the alternative, the IAEP requests a re-run election using a Key ballot and that copies of the violations be mailed to the employees' homes and be posted at all bases.
Mercy Air Services
The Carrier denies interfering with the election and responds to the allegations of election interference as follows:
Laboratory conditions did not attach until the IAEP filed with the NMB on March 28, 2001. The Carrier's letter to employees that the union would likely re-file with the NMB was speculation on its part. MAS had no way of knowing for certain if the IAEP would file with the NMB after it withdrew its NLRB application.
After the IAEP filed the NMB application, MAS supervisors and management officials received training on employer communications under the RLA. The IAEP's allegations that Mary Davis, a former Carrier Vice President, solicited grievances are false. Davis was aware of many of the employees' issues and concerns. Any discussion of these issues or concerns with employees during the election period was not a solicitation but "an invitation to discuss the issues she was already aware of."
None of MAS's officials threatened employees with base closure or bankruptcy if IAEP was elected. The incident the IAEP alleges, refers to a conversation between Chief Flight Nurse Alaine Schauer and two employees. In response to a question from one of the employees about "what is the worst that could happen" to the Carrier from a financial standpoint if the union won, Schauer stated that she thought that the Carrier would be "ok" regardless of the outcome of the election. She then said that whether the Carrier was unionized or not, if the Carrier ran into financial difficulties, the worst that could happen would be a base might close. Given the context of the conversation, this was not a threat of closure or bankruptcy. Furthermore, the impact of the conversation was limited because it was isolated to two employees.
The April 12, 2001, letter to employees did not impermissably condition wage or benefit increases to employee opposition to the union. The Carrier planned to make these changes prior to the laboratory conditions attaching and the letter to the IAEP "inquired whether the Applicant would agree to implementation of these changes without filing protests or objections, so as to avoid costly and time-consuming legal proceedings."
MAS did not inundate employees with anti-union communications during the election period. The IAEP cites 12 handouts over a two-month period. This is not an overwhelming number of handouts that would create an atmosphere of coercion and intimidation or otherwise interfere with employees' free choice of a representative. Moreover, the content of the handouts was factual and appropriate.
The Carrier did not mislead employees regarding the bargaining process. The Carrier distributed one handout on the subject of negotiations and discussed it in two newsletters, stating that bargaining is "usually adversarial" and that negotiating a first agreement can be a long process. None of these statements were misrepresentations of fact or coercive. The statements concerning unilateral changes in one newsletter are an accurate description of the absence of status quo restrictions during negotiations following certification. Williams v. Jacksonville Terminal Co., 315 U.S. 386 (1942).
Carrier communications on "dual unionism" were factual and based on the IAEP's constitution.
In the past, MAS held regular monthly meetings with employees from all bases to discuss various issues. As MAS grew geographically, the meetings had become more infrequent at some stations. Based on feedback the Carrier received from employees, it decided to hold meetings with employees to communicate operational and business issues. This decision was made prior to receiving notice of union organizing. The six "brown bag lunches" held during the election period at the various stations were not mandatory. The Carrier did not discuss the IAEP at length at these meetings. David Dolstein, President and CEO, spoke at the meetings. Dolstein recited facts about the applications and process, expressed the Carrier's view that a union was not necessary and explained that his speech was "somewhat legally restricted."
The scheduling of "picture day"and the subsequent lunch meeting with employees was not interference. The Carrier states that every year it holds an annual "picture day" for the resident doctors who have finished their three-year residency with the Carrier at the San Diego base. After the picture was taken, employees were asked to meet with Dolstein in the doctor's dining room. The meeting was not mandatory and Dolstein's comments at the meeting were not interference.
The allegations of election interference should be dismissed. In the event the Board finds interference and orders a re-run election, the Board should use the standard ballot because the level of interference alleged by the IAEP does not rise to the level of a Key or Laker election.
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:
MAS Services is a common carrier by air as defined in 45 U.S.C. § 181.
The IAEP 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
MAS is a provider of air medical transportation services including medical care, aircraft operations and maintenance, 24-hour communications and dispatch, and medical billing and collections. The Carrier operates nine bases in southern California and two bases in Las Vegas, Nevada.
On February 26, 2001, the IAEP filed a petition for representation with the NLRB. On the same day, the NLRB notified the Carrier of the petition and set a hearing date. On March 7, 2001, the IAEP requested that its petition be withdrawn. The NLRB granted the request.
On March 9, 2001, Dolstein issued a memorandum to all MAS employees that the representation petition before the NLRB was withdrawn. The memorandum also stated "[i]t is likely that the union will re-file a new petition with the National Mediation Board (NMB) which governs aviation carriers like ours."
The IAEP submitted the facsimile of the representation petition and notice of hearing which the NLRB transmitted to the Carrier on February 26, 2001. The IAEP also submitted Dolstein's March 9, 2001, memorandum. The evidence demonstrates that the Carrier was aware that the IAEP was seeking representation of EMS employees on February 26, 2001.
A. Solicitation of Grievances
The Organization submitted a sworn affidavit from an employee stating that on or about March 7, 2001,
Vice President Mary Davis showed up at the Rancho base and spoke to . . . [employees]. She expressed her disappointment about the union petition and asked what we would want to see. She also asked what we want as far as money and Paid Time Off [PTO] changes. She insinuated that because of the Union, no changes could be made at this time.
The Carrier submitted an affidavit from Richard Staggs who was the Chief Flight Nurse. Staggs recalled an informal conversation between Davis and several employees at the Rancho Cucamonga, California base sometime in March 2001. Staggs states:
She [Davis] said she was aware of various concerns that employees had brought to her attention, and that some employees were frustrated over certain changes that had been made, which may have led to the union organizing drive. She then stated that she wanted to talk about whatever concerns we had. Davis said, however, that there were certain things she couldn't talk about because of the filing of the petition, and that she couldn't make any promises or guarantees that any changes would be made. . . .
I remember raising the subject of Night Pay and discussing the particulars of the issue with Davis.
The evidence is that in the beginning of March 2001, Davis had a conversation with employees at the Rancho Cucamonga base and stated that an application for representation had been filed and discussed employee concerns including pay issues.
B. Threats of Base Closure or Bankruptcy
The IAEP submitted a statement from an employee stating that Elaine Shauer [sic] was a supervisor and in May 2001 the following conversation took place:
During the shift Elaine and I were talking when the topic of the upcoming union election came up. Elaine said that she didn't think a union would be good. She told me that if a union got in there would be too many demands and it would put the company out of business. Also during the conversation, Elaine asked me to give the company a chance and not to vote for the Union.
The Carrier submitted a declaration from Chief Flight Nurse Alaine Schauer, stating that she had received training from the Company in March 2001 regarding permissible and impermissible communications under the RLA. Schauer stated that she "did not say to . . . any . . . employee, that if the union was voted in, a base would have to shut down. I also did not say anything about the union proposed financial increase or about the company declaring bankruptcy." Schauer stated that she recalls a conversation where she said "whether we had a union or not, if the company faced financial trouble for whatever reason the worst that could happen would be closure of a base."
C. Carrier's "Anti-Union" Communications
The Carrier began publishing the "Company Chat" newsletter on April 16, 2001. The IAEP submitted five editions of the newsletter published prior to the June 22, 2001, election. The first edition states "effective with this issue we are committed to releasing a new edition of Company Chat . . . as frequently as necessary to provide you with factual information regarding unions and dispel rumors." Each subsequent edition made similar statements. The newsletters were in a question and answer format and addressed issues regarding the election, collective bargaining and the IAEP.
The Carrier also published and/or distributed the following handouts:
The IAEP submitted statements from three employees which stated:
During March, April, May, and June 2001, the crews received mailings to their homes and all of the bases began receiving faxes, postings, and emails from management telling us how bad the union was, how they could not represent us efficiently, that management was only obligated to bargain with the union- not agree to any of the changes or increased pay and benefits, and if we gave management a chance, there would be improvements. We were told we could always refile in another year. . . .
Every week to 10 days, laminated posters were brought in by Management, and posted on the wall. We were told that the supervisors met with the Company's "union consultant" and was given a new poster. The posters were blown up versions of the mailings we received at home.
D. Carrier Statements Regarding the Bargaining Process
The Carrier stated in its Newsletter and in handouts that "bargaining is usually an adversarial process." The Carrier also printed statements that it may unilaterally alter pay, benefits and working conditions prior to achieving a first agreement. The Carrier made statements in the newsletter that collective bargaining can be a long process, and that it is not obligated to reach agreement.
E. Carrier Statements Regarding "Dual Unionism"
The Carrier published a handout which stated in part that IAEP's Constitution and Bylaws stated that members could be disciplined for "working at two different unions at the same time."
The third edition of "Chapter Chat" states "[i]t is also important to note that the union's constitution and by-laws state that if you belong to more than one union (called 'dual unionism') you could be subject to disciplinary action by the union."
The fourth edition of "Chapter Chat" states that "the NAGE's Constitution, to which IAEP . . . . [is] bound . . . states verbatim, 'No person may be a member of more than one NAGE local unit at any one time.' According to their Constitution, if you violate this or any other provision in their Constitution, you can be charged and subject to discipline."
F. Carrier "Brown Bag Lunch" Meetings
Both the Carrier and IAEP submitted statements from employees regarding the "brown bag lunches." In addition, the Carrier submitted minutes that it kept of these meetings.
There were six "brown bag lunches" held at various bases between February 28, 2001, and June 22, 2001. The first meeting was February 28, 2001, at the Rialto, California base. Four meetings were held at four bases during April 24-26, 2001. There was also a lunch held after the Carrier's annual picture day in San Diego. Attendance at the lunches was not mandatory. The meetings followed a question and answer format after some opening remarks from Dolstein. He addressed the status of the representation application. Dolstein also said that some of the answers to questions might be limited by "NMB regulatory requirements." Most of the questions dealt with operations or wages and conditions of employment. In response to questions about educational reimbursement and Merit Pay increases, Dolstein stated that he could not provide responses because of the pending representation case.
G. "Picture Day"
The Carrier holds an annual "picture day" for the resident doctors who have finished their three-year residency at the San Diego base. A picture is taken of the flight nurses, medics, pilots, physicians, mechanics and graduating resident doctors. The pictures are presented to the graduating class in mid-June. The " picture day" is usually scheduled for the first Tuesday in June.
Chief Flight Nurse Jeff Schatteman, submitted a declaration stating that he moved up "the picture day [to May 22, 2001] so we would have plenty of time to develop and frame the pictures for presentation to the resident doctors when they graduated in mid-June."
Changes in Wages and Benefits
The Carrier submitted an e-mail from Davis to Dolstein dated March 2, 2001, which stated "after consideration of some key issues that have surfaced with our staff this week I have the following recommendations: Increase the PTO accrual for nurses and paramedics to 200 hrs. . . . Change the hours of work policy. . . ."
On April 12, 2001, the Carrier faxed a memorandum to all the bases regarding new policy and procedure changes. The MAS memorandum stated:
[MAS] is bound by laws under the Railway Labor Act (RLA). The RLA has found it unlawful for an employer to make changes in wages, hours, and benefits, or other working conditions while a question regarding union representation exists. The making of changes in our policy and procedures by Mercy Air Service would be considered a change in working conditions under the RLA.
Violation of these laws can result in serious implications. . . .
In our effort to implement changes in our policies and procedures as originally planned on April 23, 2001, I wrote a letter to the union to determine if they would waive any objection to our implementation of the attached changes in policies and procedures at Mercy Air Service. If the union agrees to waive their objection, we will implement the attached policy and procedure changes on April 23, 2001. (A copy of the letter that was sent to the union by certified mail is attached). I will keep you advised of the union's response.
The IAEP submitted a letter from Dolstein to Marc Pinkas, National Vice President, IAEP, dated April 12, 2001 which stated,
After you withdrew your petition . . . with the NLRB and before you filed a new petition with the NMB we finalized several policy changes. We made changes in the 24-hour shift agreement, the uncontrolled standby/on-call RN/Staff policy, mileage reimbursement, medical crew hours of work and PTO. . . . But for the question concerning representation we would have implemented these changes on April 23, 2001. Predicated on representations to employees that you intend to operate in their best interests, we are sure you have no objection of our implementing these changes on April 23, 2001, as it will give our employees more flexibility and enable them to earn more money. Please respond if you object to these improvements. If we don't hear from you by April 20, 2001 we will assume you have no objection and we will go ahead with the planned policy changes.
MAS faxed the memorandum and letter to all bases on April 12, 2001. MAS sent the letter to the IAEP by certified mail on April 12, 2001. The Carrier implemented the changes on April 23, 2001.
On April 25, 2001, MAS responded to a letter from the IAEP dated April 19, 2001, stating "[a]lthough you may object to these policy changes and/or would prefer employees to not have their benefits, I have elected to proceed with the implementation based on the above explanation and employees' best interest."
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."
The laboratory conditions must be maintained from the date the carrier becomes aware of the organizing drive. Midway Airlines Corp., 26 NMB 41 (1998); Petroleum Helicopters, Inc., above; America West, Inc., above at 98; Key Airlines, 16 NMB 296, 310 (1989). As previously noted, the laboratory conditions attached on February 26, 2001.
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).
There is insufficient evidence that the alleged Carrier meetings with employees or the conversations Davis or Schauer had with employees interfered with, influenced or coerced employees' choice of representative.
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.
Although the Carrier significantly increased its communications with employees during the laboratory period, this increase alone is insufficient to prove that laboratory conditions were tainted.
Changes in Wages and Benefits
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, 20 NMB 675 (1993); Key Airlines, 16 NMB 296 (1989).
Laboratory conditions attached on February 26, 2001. Therefore, when the carrier planned the changes in policies and procedures on March 2, 2001, laboratory conditions had already attached. When the Carrier implemented the changes in policy resulting in changes to wages and benefits on April 23, 2001, laboratory conditions were tainted. The April 12, 2001, correspondence proves that these changes were made and that the Carrier linked the changes to representation.
CONCLUSION AND ORDER
The Board finds that the laboratory conditions required for a fair election were tainted. This conclusion is based on the changes in wages and benefits which the Carrier implemented after laboratory conditions attached. The Board's representative shall conduct a re-run election using a standard ballot.
Pursuant to Manual Section 11.2, the Carrier is hereby required to furnish, within five calendar days, alphabetized peel-off labels bearing the names and current addresses of those employees on the list of eligible voters. 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 March 24, 2001. The ballot count will take place in Washington, DC. Copies of the attached "Notice to EMS Employees of Mercy Air Service" must be posted within five calendar days of the date of this decision on Carrier bulletin boards where employee notices are normally posted. The Notice shall be clearly visible and remain in place for the duration of the re-run election period. Copies of the attached notice will also be included in the ballots sent to employees.
By direction of the NATIONAL MEDIATION BOARD
Stephen E. Crable
Chief of Staff
Robert Long, Esq.
Mr. Marc Pinkas
NOTICE TO EMS EMPLOYEES (NURSES AND PARAMEDICS)
MERCY AIR SERVICE, INC.
After an investigation conducted by the National Mediation Board (Board) in which Mercy Air Service, Inc. (MAS) and the International Association of EMTs and Paramedics, (IAEP), had the opportunity to present statements and evidence, the Board found that MAS'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), when it changed wages and benefits after the IAEP filed a representation application.
Accordingly, the Board authorizes a second election among MAS's EMS Employees (Nurses and Paramedics). The list of eligible voters will consist of those eligible to vote in the first election, with the exception of those who have left the craft or class. A copy of this Notice will also be mailed to all eligible voters with the election materials. During the election period, the Investigator will be available to immediately investigate any further allegations.
Section 2, Fourth, of the Act allows employees the right to select representatives without carrier influence or interference.
MAS is not permitted to influence, interfere, or coerce employees in any manner in an effort to induce them to participate or refrain from participating in the upcoming election.
For questions concerning this notice or compliance with its provisions, communicate with the National Mediation Board, Washington, DC 20572, telephone: (202) 692-5040.