25 NMB No. 28

CASE NO. R-6444

FINDINGS UPON

INVESTIGATION-

ORDER

December 8, 1997

On May 28, 1996, the International Brotherhood of Teamsters (IBT) filed an application pursuant to the Railway Labor Act, as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute among Stock Clerks, employees of America West Airlines, Inc. This application was docketed as NMB Case No. R-6444.

At the time the application was filed, these employees were unrepresented.

The Board assigned Mediator Andrew J. Stites to the investigation. As the result of the investigation, on June 18, 1996 the Board found a dispute to exist and authorized an election. Ballots were mailed June 26, 1996, and the count took place July 25, 1996. Of 40 eligible voters, 19 cast valid ballots for the IBT. This was less than the majority required for Board certification.

On July 29, 1996, the IBT filed allegations of carrier interference; the IBT supplemented its filing on August 29, 1996. America West filed a response on September 9, 1996. The IBT filed a rebuttal statement on September 16, 1996, and the carrier submitted a final position statement on September 23, 1996.

The Board assigned Mediator Maurice Parker to continue the investigation. Mediator Parker commenced his investigation by interviewing America West employees in November, 1996, and concluded his investigation in March, 1997.

ISSUE

The issue in this case is whether America West's actions tainted the laboratory conditions required for a fair election in such a way as to warrant further investigation.

CONTENTIONS

The IBT alleges that America West interfered in the election process by holding mandatory meetings, interrogating individual employees as to their choice of representative, and threatening and disciplining union supporters. Additionally, the organization contends that the carrier conferred benefits to pro- carrier employees and conducted a "misinformation" campaign. As a remedy for the alleged interference, the IBT requests that the Board rerun the election using a "Laker" or "Yes/No" ballot.

America West denies that it interfered with employee free choice. According to the carrier, the meetings characterized by the IBT as "mandatory" were not, and carrier supervisors and officials neither interrogated employees nor made threats. The carrier further maintains that it disciplined individuals for violating carrier policy, not for supporting the IBT. America West also denies conferring benefits to influence the outcome of the election and maintains that it did not engage in a misinformation campaign.

FINDINGS OF LAW

Determination of the issues in this case is governed by the Railway Labor Act, as amended, 45 U.S.C. § 151, et seq. Accordingly, the Board finds as follows.

I.

America West Airlines, Inc., is a common carrier as defined in 45 U.S.C. § 151, First, and § 181 of the Act.

II.

The IBT is a labor organization or representative as provided by 45 U.S.C. § 151, Sixth and § 152, Ninth, of the Act.

III.

45 U.S.C. § 152, Third, provides, in part:

Representatives . . . shall be designated . . . without interference, influence, or coercion . . . .

IV.

45 U.S.C. § 152, Fourth, provides 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 . . . .

V.

45 U.S.C. § 152, Ninth, provides in part that the Board has the duty to investigate representation disputes and to designate who may participate as eligible voters in the event an election is required. In determining the choice of the majority of employees, the Board is "authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence or coercion exercised by the carrier."

STATEMENT OF FACTS

I.

America West Airlines employs approximately 40 Stock Clerks system-wide. Although some of those individuals are based in Las Vegas, Nevada, or Cleveland, Ohio, the vast majority are based in Phoenix, Arizona.

II.

According to IBT, on June 20, 1996, approximately one week before the ballots were mailed, America West held "mandatory" meetings for its stock clerks based in Phoenix, Arizona. It is the organization's position that, at these meeting, employees were interrogated and threatened and that carrier officials and supervisors made deliberately false statements about the IBT. The organization has submitted statements from several employees in support of its contentions.

A.

The IBT has submitted statements from several employees regarding the June 20 meetings. Seven of these individuals described the meetings as "mandatory." The meetings were conducted by Jim Brimeyer, Manager-Employee Relations; Mark Davis, Manager-Material Control; and Graveyard Supervisor Dan Hanifin, who states that he supervises eight stock clerks and two other supervisors. According to the employee statements, Brimeyer suggested that employees destroy or throw out their ballots to vote "no." Several of the employees also stated that Brimeyer informed them that union dues would be $1,000 a year, plus an initiation fee.

B.

America West has submitted affidavits from Brimeyer, Davis, Hanifin and other supervisors. According to Brimeyer:

In connection with the recent union election . . . I arranged with Mark Davis . . . to have three informational meetings . . . I specifically told Mr. Davis that these meetings were not mandatory. The three meetings took place on June 19, 1996 at 2:00 p.m., June 20, 1996 at 6:00 a.m., and June 27, 1996 at 6:00 a.m. The basic purpose of these meetings was to provide information about the election procedures. After discussing the election process, Mr. Davis and I answered any questions raised by the stock clerks . . .

I am aware that one employee has submitted a statement that, during the informational meeting on the morning of June 20, 1996, I said that the union's dues would be about $1000 per year. I absolutely did not make such a statement. What actually happened is that an employee asked a question about the amount of the union's dues. In response, I stated that the monthly amount of the union's dues was twice an employee's hourly rate of pay.

Brimeyer further states that the carrier's "entire campaign consisted of the three informational meetings . . . and two written communications."

Davis and two supervisors have also submitted affidavits indicating that the meetings were not mandatory. Davis' affidavit states that the June 27 meeting had 3 or 4 people in attendance, and it lasted 15 minutes. Davis also states, "[b]ecause of the lack of employee interest . . . we canceled another meeting . . . scheduled for June 28, 1996".

Hanifin's affidavit states:

I do not recall whether I ever said to the stock clerks that these meetings were 'mandatory' but I did convey to them that these meetings were important and that they should attend.

C.

Mediator Parker interviewed randomly selected stock clerks in Phoenix. Three of the individuals interviewed indicated that they did not attend the meetings in June and stated that they did not think the meetings were mandatory. One of the employees stated he attended because his supervisor told him to attend.

III.

A.

On July 3, 1996, Brimeyer issued a memorandum to Material Control Supervisors. According to Brimeyer, he "encouraged the supervisors to post the memorandum for the employees to review, and the supervisors did so." The "subject" of the memorandum was "Union Election/Misrepresentation of Facts," and stated, in part, as follows:

Recently a flier [from the IBT] was distributed which contained some inaccurate information concerning Company statements on union dues. The Company has an obligation to present factual information only. To clarify:

1.	The Company has not stated you would have to pay '$1000 per year' as this is not factual. . .

2.	I do not know whether or not the stock clerks would be required to pay initiation fees and therefore, I have not made any statements indicating they would.

I am committed to providing you with as much accurate information as possible. Please discuss this information with your employees and feel free to post this memo . . .

B.

The IBT maintains that Brimeyer's memo was not posted or distributed. The organization has submitted a statement from an employee who asserts:

On July 3rd a memo was sent out from Jim Brimeyer to explain this [statement about union dues] was not true. This memo was not posted or passed out. I did not see this memo until July 26, 1996, so I do not know if all stock clerks were informed of the statement going around.

Davis has submitted an affidavit stating that when he returned from his vacation on July 9, 1996, he saw Brimeyer's memo posted in the receiving office and at the entrance to the dock in/out area. Hanifin has submitted an affidavit stating that he posted the memo in the warehouse.

C.

Two of the employees interviewed by the Mediator stated they had never heard Brimeyer make the alleged statements regarding union dues. One of the employees stated that he was "aware of information that was circulated by the company concerning union dues . . . but did not believe that this information was correct because I read other pieces of information from the company regarding the union and I did not believe they were giving the straight scoop . . . ."

The employee who attended the meeting stated:

I remember the company making some misinformation or misstatements about union dues. I believe they said a high amount - maybe $2000.00.

None of the employees interviewed by the Mediator expressed awareness of Brimeyer's July 3 memo.

IV.

The IBT has submitted a statement from an employee who stated that Davis told the stock clerks on June 20 that they would not have jobs in fifteen years. Davis denies making this statement, but asserts:

I do remember one brief discussion during the election campaign which generally involved the subject of outsourcing or job security. In response to a question from an employee in one of the informational meetings, I said that America West is always looking for ways to save money, but that the company did not have any plans to outsource the stock clerk work.

Three of the employees interviewed by the Mediator had not heard that Davis had made remarks about outsourcing. A fourth individual stated that he "believe[d] that Davis made the statement" but "believe[d] it was just a speculation from Mr. Davis."

One of the employees interviewed by the Mediator stated that Hanifin had said "there was a possibility that there would be outsourcing if the union were voted in." According to this individual, Hanifin made these statements in an "open group" of stock clerks.

V.

A.

One of the eight individuals whose statement was submitted by the IBT maintains that Hanifin "inquired several times where the vote was standing." This individual states further that:

I also overheard him . . . on the phone to a stock clerk about another stock clerk, 'what is wrong with him anyway - wearing that union pin - we have to give him a slap on the head. And besides, I don't think that the union would do anything for you guys anyway.'

Another employee states:

On one trip to the warehouse from the line stores Dan Hanifin . . . asked me how the vote was going and how people were voting. He did not ask outright but implied as to how I was voting and who else was voting yes. He also said how hard it would make his job and that AWA management was doing a fine job.

A third employee has submitted the following statement:

On several occasions I have witnessed and have been approached by . . . Hanifin . . . about our union vote. He would ask anything from how is it going . . . have you heard anything . . . how many votes do you have . . . [yesterday after the count] he told us he was sorry to hear that our vote didn't go through, glad for him, but sad for those of us stock clerks who wanted the union.

B.

Hanifin denies most of these allegations stating, "throughout the whole election campaign, I only discussed issues with the employees when an employee specifically raised the subject with me." Hanifin further states:

I definitely did not ask any of the employees about the union vote, about how many employees were going to vote for the union, or about any other subjects related to the union election. I did make comments, after the results of the election were known, to the effect that I was sorry for the stock clerks who wanted the union.

I remember one conversation among a group of employees in which [one employee] was telling people about how many stock clerks [the employee] thought would vote for the union, and how many more votes were needed. I definitely did not ask [the employee] any questions about how many stock clerks [the employee] thought would vote for the union, and I also did not say anything about union issues during this conversation. The information about the union vote was volunteered by [the employee]. This conversation took place . . . where employees . . . 'hang out' when work is slow. [The employee] never displayed any reluctance to discuss the union election in my presence.

C.

The mediator's investigation revealed that at least one individual was called into Hanifin's office to discuss the vote. The employee indicated that Hanifin:

[M]ade it clear that his opinion was, if the union was voted in then it was going to be a lot more difficult for us to get along and he felt the relationship between supervisors and stock clerks would be detrimental to everyone. I do not believe I was singled out. [Hanifin] made his opinion very clear in an open group with all the stock clerks present - at least on my shift.

VI.

The IBT maintains that an employee was disciplined because of her involvement in union activities.

According to the IBT, on April 30, 1996, the employee in question was issued a "Corrective Action Document" for allegedly using "the company phone to solicit votes" and soliciting authorization cards on company property and on company time. This document was placed in the employee's file.

The carrier's policy on this issue is as follows:

Soliciting of any kind . . . or posting or distributing written or printed materials during work time and/or in working areas is prohibited unless written Company authorization is obtained in advance.

The "Corrective Action Documentation" placed in the employee's file informed the employee that "you are permitted to engage in solicitation in nonworking areas during nonworking hours. You may continue to engage in solicitation in this fashion so long as the activity does not create undue disruption . . . company property such as the phones are not to be tied up for extended periods for personal use."

The carrier has also submitted a copy of a termination letter issued to a former employee in 1995 for violating the same policy by "unauthorized use of company property, information or assets for conducting your private income tax preparation service."

VII.

The IBT asserts that a stock clerk who previously had lost seniority had the seniority restored during the election process, and that two employees who received promotions after the election "may have been promised" these promotions "prior to the vote to influence votes."

A.

Stock Clerk Loann White had her seniority "adjusted" in August 1996. The IBT contends that, of the five individuals in White's department, only White had seniority, lost due to a transfer, restored. According to America West, White's seniority was restored pursuant to carrier policy which did not affect the other four individuals in her division because White's most recent transfer placed her back into the department in which she had started her career with America West. In response, the IBT notes that nine months elapsed between White's transfer back to her old division and the restoration of her seniority. The carrier, however, asserts that, due to the bidding process, White's seniority was not an issue until May 1996.

B.

Mike Hanson was promoted to the position of Material Planner subsequent to the count. The IBT contends Hanson was promised a promotion to influence his vote. The carrier has provided evidence that the position in question was not available, or even known to be available, until July 23, 1996, when the incumbent resigned. The position was posted on July 30, 1996.

The organization also contends that Russell Oonk was promised a promotion to influence his vote. America West has provided evidence that the position ultimately awarded to Oonk was not approved until August 12, 1996, 6 weeks after the count.

DISCUSSION

I.

Under Section 2, Ninth, of the Act, 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 interference, influence or coercion by the carrier. This duty requires that, where there are allegations of carrier interference, the Board has the responsibility to investigate such claims. Metroflight, 13 NMB 284 (1986); Key Airlines, 13 NMB 153 (1986).

In determining whether employees' freedom of choice of a collective bargaining representative has been impaired, the Board examines the totality of the circumstances as revealed through its investigation. The Board makes an evaluation of the facts developed from submissions provided by the organizations and the carrier and from the mediator's investigation, including interviews and past Board experience. America West Airlines, Inc., 17 NMB 79 (1990); Evergreen International Airlines, 20 NMB 675 (1993).

The Board considers the severity and pervasiveness of the interference, if any, and the specific circumstances of each case. Should the record establish that election interference has occurred, the Board has employed a variety of approaches to eliminate the taint of interference. These include conducting a rerun under the Board's usual procedures with a special notice to employees, USAir, 17 NMB 377 (1990); the use of special ballots and voting procedures, Key Airlines, 16 NMB 296 (1989), Laker Airways, Ltd., 8 NMB 236 (1981), Wisconsin Central, 24 NMB 64 (1996); dismissal of the application with an appropriate time bar, Southwest Airlines; 21 NMB 332 (1994); and certification based on card check, Sky Valet d/b/a Commercial Aviation Services of Boston, Inc., 23 NMB 276 (1996).

There have also been instances where the Board has found the degree of interference to be so minimal as to warrant minimal or no remedial action. USAir, Inc., 18 NMB 240 (1991); Northwest Airlines, 19 NMB 94 (1991); reducing the time contained in the Board's Dismissal bar under 29 C.F.R. 1206.4, Southwest Airlines, supra.

II.

The Board repeatedly has found that carrier actions such as interrogating employees as to their representation choices constitutes improper interference. Florida East Coast Railway, 17 NMB 177 (1990); Mid Pacific Airlines, 13 NMB 178 (1986); Laker, supra. In both Florida East Coast and Mid-
Pacific, the Board conducted re-run elections using "Laker" ballots based, in part, on findings that carrier officials had interrogated employees as to their representation choice. See also Machinists v. Continental Airlines, 136 LRRM 2301 (D.D.C. 1990), in which the District Court held that a poll regarding representation conducted by the carrier was coercive and constituted interference in violation of the Act.

There is credible evidence in this case that at various points throughout the election period, America West supervisor Dan Hanifin interrogated employees about voting choices in a way that may have improperly influenced some of the employees, particularly those under his supervision. In addition to the individual interviewed by the Mediator, three other employees provided evidence that Hanifin was interrogating employees during the election period. These interrogations occurred in the Phoenix location where eight employees work under and report to Hanifin. Given the small craft or class here and the closeness of the election, Hanifin's actions tainted the laboratory conditions necessary for a fair election.1

Based upon the evidence in the record of this case, the Board finds it necessary to conduct a re-run election using its standard ballot.

CONCLUSION AND ORDER

In view of its findings in this case, the Board has determined that some form of further investigatory action is necessary to restore the laboratory conditions tainted by the carrier's actions. Therefore, the Board hereby ORDERS a re-run election, using its standard ballot. The Board will also mail a special "Notice to All Employees" identical to the Notice attached to this decision. That "Notice" will be included with the election materials. The list of eligible voters will be all those eligible to vote as of June 25, 1996, with the exception of those who have left the craft or class since that point. No employees will be added to the list.

Pursuant to Section 11.2 of the Board's Representation Manual, the Carrier is hereby required to furnish within five calendar days alphabetized peel-off labels bearing the names and current addresses of those employees on the list. The ballot count will take place in Washington, D.C.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to:	Ray Benning, Jr.

Robert Siegel, Esq.

Paula Caira, Esq.

NOTICE TO ALL EMPLOYEES

IN ORDER TO EFFECTUATE THE POLICIES OF THE RAILWAY LABOR ACT, AS AMENDED, ALL STOCK CLERKS, EMPLOYEES OF AMERICA WEST, INC. ARE HEREBY NOTIFIED THAT:

After an investigation conducted by the National Mediation Board in which the Carrier and the Organization had the opportunity to present statements and evidence, the National Mediation Board found that the Carrier's conduct, taken as a whole, interfered with, influenced or coerced employees' choice of representative under Section 2, Ninth, of the Act.

Accordingly, the Board authorizes an additional election among America West Airlines' Stock Clerks. A copy of this Notice will be mailed to all eligible voters with the election materials.

During the election period, the Mediator will be available to immediately investigate any further allegations. The lists of eligible voters will consist of those eligible to vote in accordance with Board policies and procedures.

Section 2, Fourth of the Act, 45 U.S.C. § 152, Fourth, allows employees the right to select representatives without carrier influence or interference. That particular subsection reads 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 use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, 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 . . . . (emphasis added)

Section 2, General Purposes Clause of the Railway Labor Act, states that one of the purposes of the Railway Labor Act is "to provide for the complete independence of carriers and of employees in the matter of self organization."

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

If any employees have any questions concerning this notice or compliance with its provisions, they may communicate directly with the National Mediation Board, Washington, DC 20572, Telephone (202) 523-5920.