25 NMB No. 74

CASE NO. R-6489

FINDINGS UPON

INVESTIGATION

March 27, 1998

On February 7, 1997, the Brotherhood of Maintenance of Way Employes (BMWE) filed an application alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, 45 U.S.C. § 152, Ninth, among Maintenance of Way Employees of the Dakota, Minnesota and Eastern Railway Company (DMER). The application was docketed as NMB Case No. R-6489. The Maintenance of Way Employees on the DMER are currently unrepresented.

PROCEDURAL HISTORY

On March 12, 1997, the Board found a dispute to exist among the Maintenance of Way Employees at DMER. An election was authorized to resolve the dispute. The ballots were mailed on April 3, 1997. The count was conducted on May 1, 1997.

On May 27, 1997, the Board found that the failure to send ballots to two eligible employees may have been outcome determinative and ordered a standard, re-
run election. Dakota, Minnesota and Eastern Railroad Company, 24 NMB 281 (1997).

A new mailing date of June 27, 1997, was established. Ballots were scheduled to be counted on July 27, 1997. The BMWE, on June 13, 1997, requested that the Board postpone the election and investigate its previously filed allegations of election interference.1 The Carrier, on June 26, 1997, filed a statement objecting to any postponement. On June 27, 1997, the scheduled re-run election was postponed.

Mediator Cognata conducted the investigation of the BMWE's interference allegations. In accordance with Section 14 of the National Mediation Board's Representation Manual, the BMWE supplemented its initial filing on July 23, 1997. The Carrier, on August 6, 1997, filed a response. BMWE submitted a rebuttal to the response on August 13, 1997. The Carrier filed a sur-rebuttal on August 20, 1997.

On October 23, 1997, the Mediator conducted an on-site field investigation which included interviews with employees and other individuals.

ISSUES

The issues before the Board are whether the DMER engaged in activities which tainted the laboratory conditions necessary for a fair election and, if so, what appropriate action should be taken by the Board to restore the laboratory conditions.

CONTENTIONS

The BMWE contends that the Carrier "interfered with its maintenance of way employees' choice of bargaining representative" by committing the following acts:

[E]stablishing a carrier supported and dominated labor organization known as 'Team DM&E;'

polling its maintenance of way employees regarding their desires for collective representation [through the use of a questionnaire];

providing selective and unscheduled benefit increases in the following manner:

making selective and unscheduled pay increases to at least seven (7) maintenance of way employees;

making cash contributions to two (2) of those employees' extracurricular pursuits;

establishing a 'Safety Day' prize of a day off with compensation for employees with no reportable accidents or incidents in the prior calendar year; and

granting additional vacation credits to former employees of the Chicago & North Western Railway Company ('CNW') when [DMER] bought the CNW's 'Colony Line'; and

informing its maintenance of way employees that certain benefits they presently enjoy would be unavailable to them if they selected BMWE as their designated bargaining representative.

As a remedy, BMWE requests that the Board certify the Organization as the collective bargaining representative. If the Board determines that another election is necessary, BMWE requests an election utilizing the ballot procedures in either Key Airlines, 16 NMB 296 (1989) or Laker Airways, 8 NMB 236 (1981). If the Board finds that the Carrier did not interfere, BMWE requests a re-run election.

It is the Carrier's position that "only pervasive coercion warrants a new election." According to the Carrier, the Organization's allegations "are legally and factually unfounded" and the Carrier's actions do not rise to the level of "pervasive coercion" needed to overturn the results of the election.

The Carrier denies that the establishment of Team DM&E constitutes election interference. The Carrier contends that Team DM&E was established several months before the Carrier had any knowledge of the BMWE's organizing efforts.

The Carrier denies that the Team DM&E questionnaire was unlawful polling because it did not mention the BMWE or any other organization.

Finally, the Carrier argues that the pay raises were provided during the "natural course of business" and did not taint the laboratory conditions. The Carrier contends that its sponsorship of a softball team and a logo on a racing car, which the BMWE claims are "contributions to employees' extracurricular pursuits," had no impact on the election.

FINDINGS OF LAW

Determination of the issues in this matter is governed by the Railway Labor Act, as amended, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:

I.

DMER is a common carrier as defined in 45 U.S.C. § 151, First.

II.

BMWE is a labor organization and representative as provided by 45 U.S.C. § 151, Sixth, and 45 U.S.C. § 152, Ninth.

III.

45 U.S.C. § 152, Third, provides in part: "Representatives . . . shall be designated . . . without interference, influence, or coercion . . . ." (emphasis added).

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 . . . .

(emphasis added).

V.

45 U.S.C. § 152, Ninth, provides 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:

[A]uthorized 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 a manner as shall insure the choice of representatives by the employees without interference, influence or coercion exercised by the carrier.

(emphasis added).

STATEMENT OF FACTS

I.

Kevin Schieffer became President and Chief Executive Officer of DMER on November 7, 1996. Immediately, Schieffer began meeting with groups of employees with the goal of "soliciting suggestions for an employee empowerment approach to DM&E management." According to Schieffer, the "empowerment model" developed into "Team DM&E." Schieffer states that, at the time of the formation of Team DM&E, he did not know of the BMWE's organizing efforts.

On February 28, 1997, Schieffer distributed to all of the Carrier's employees information concerning the establishment of Team DM&E. Team DM&E consisted of four local committees which were established by work locations and composed of employees elected by the employees at each location. According to the document, the employees would meet regularly "to discuss and prioritize employees ideas, observations and concerns." The local committees consist of Train

and Engine Service Employees who are represented by the United Transportation Union.

A group of Team DM&E members, known as "Committee Representatives," consisting of one representative from each local committee, was created to meet "regularly" with "senior" management in order to: (1) report any concerns that have not been adequately addressed by local management; (2) raise and discuss ideas, suggestions, and policy issues relating to improving DM&E performance; (3) be briefed on company direction and performance which, in turn, shall be communicated back to other employees; (4) review safety policy and performance; (5) meet privately with the President or relevant department head to raise employee grievances; and (6) raise or be available to discuss anything else deemed important.

An employee, who is a member of Team DM&E, stated that Team DM&E did not discuss either pay rates or "individual grievances." The employee stated that Team DM&E discussed such things as "not getting paper work out to the operating crews fast enough; weeds blocking areas where switch crews work, and lighting on switching leads." The employee did not view Team DM&E as a substitute for a union. All of the employees interviewed stated that they mainly viewed Team DM&E as a means for communicating with management on safety issues.

II.

Schieffer included a questionnaire with the information distributed on Team DM&E on February 28, 1997. The questionnaire asked employees whether they agreed with the "DM&E Goals," which are productivity goals, and whether the goals were "realistic and achievable." The Carrier also asked employees whether "some form of organized, employee participation as identified during the February 1997 employee meetings and explained in the 'TEAM DM&E' handout (enclosed) [is] desirable, or should we leave things alone." Employees were queried if they would participate on Team DM&E.

The package of documents included a listing of local committees' jurisdiction which was by work location. Employees, in the questionnaire, were asked if the designated employee group was "most convenient to you." Employees were also asked what was "the single biggest employee concern" with the Carrier. Finally, the employees were queried as to whether there was "good teamwork between departments to meet customer needs." The questionnaire did not mention the BMWE or any other labor organization.

III.

One of the major complaints that Schieffer heard from employees at these meetings, dealt with the Carrier's pay system. Employees complained that the "merit pay system" resulted in numerous, different salary levels, often for identical positions.

In late 1996, the Carrier conducted a general review and internal audit which resulted in the establishment of minimum salary levels for each position. After year-end evaluations and subsequent raises, those employees whose salaries were not up to the minimum levels received additional increases to bring their salaries up to the appropriate level. This was done company-wide. As a result, several Maintenance of Way Employees got pay increases.

IV.

DMER sponsors a softball team. The sponsorship was the result of a request made by five employees, two of whom are Maintenance of Way Employees. The Carrier also donated $750 to have a race car owned by an employee painted to advertise the "Operations Lifesaver" railroad crossing safety awareness program.

V.

At a meeting attended by Schieffer in November 1996, employees complained that his predecessor had approved a "Safety Day" award for 1996 and that the Carrier never followed through on this. The award was a day off with compensation for any employee with no reportable accident or incident in 1995. In a memorandum dated April 7, 1997, Schieffer stated that his research revealed that his predecessor "represented that the company would provide a safety day for everyone with no accidents/incidents." He implemented the award for 1996.

At the same meeting, several employees also complained that Schieffer's predecessor had agreed to give credit toward vacation accumulation to former Chicago & North Western Railway Company (C&NW) employees who came to work for the DMER when the Carrier purchased a portion of the C&NW. Investigation revealed that approximately thirteen C&NW Maintenance of Way Employees were hired by DMER.

Upon verification that his predecessor had promised the accumulation, DMER implemented the vacation accumulation.

VI.

In a document distributed to Maintenance of Way Employees on April 7, 1997, the Carrier stated that non-union employees have a total compensation package higher than that of the unionized Train and Engine Service Employees who are represented by the United Transportation Union. The document mentioned neither the BMWE nor any election. The document was in response to an inquiry by Maintenance of Way Employees concerning the compensation package received by Train and Engine Service Employees.

DISCUSSION

I.

Under Section 2, Ninth, of the Act, the Board is charged with the responsibility of assuring that employees are provided the opportunity to make a choice concerning representation free of interference, influence or coercion by the carrier. In order to effectively carry out this duty, the Board has the responsibility to investigate allegations of carrier interference. Metroflight, 13 NMB 284 (1986); Key Airlines, 13 NMB 153, (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 revealed through its investigation. The Board makes an evaluation of the facts developed from its investigation, including submissions provided by the organization and the carrier, as well as past Board experience. America West Airlines, Inc., 17 NMB 79 (1990); Evergreen International Airlines, 20 NMB 675 (1993). In the present case, the investigation included a field investigation by the Mediator. The Board has broad discretion to tailor its investigation to the facts and circumstances of each case. US Airways, 24 NMB 354 (1997); Evergreen International Airlines, supra; Florida East Coast Railway, 17 NMB 177 (1990); Key Airlines, 16 NMB 296 (1989).

II.

The Carrier is under an obligation imposed by the Railway Labor Act to act in a manner which does not influence, interfere or coerce the employees' selection of a collective bargaining representative. Metroflight, supra. The Carrier's obligation to maintain the laboratory conditions commences at an ascertainable point which has been specified in NMB decisions for a number of years. As the Board held in Key Airlines, supra, at 310: "	[F]rom that date [the time from which the carrier was aware of the organizing drive] until the conclusion of the election laboratory conditions must be maintained." See also America West Airlines, supra.

In the present case, the investigation established that the current management did not know of the organizing activity until the filing of the application with the NMB on February 7, 1997. From that moment on, DMER was under the obligation to maintain the laboratory conditions.

III.

BMWE alleges that Team DMER was established to provide representation to employees.

The Board repeatedly has found that employee committees are not inherently and automatically evidence of interference. In evaluating the significance of employee committees, the Board has examined the history on the property and given special attention to the timing of the committee's formation and its relationship to the organizing campaign. In Metroflight, 18 NMB 532 (1991), the Board stated:

[T]he Board finds that Metroflight has interfered with its employees' freedom of choice. Metroflight officials attempted or offered to assist in the formation of an in- house group of employees, whether they referred to it as a union, or as a committee, during the time period in which the Board has repeatedly stated that laboratory conditions must be maintained. . . .

In making its determination in this matter, the Board does not make a finding that employee committees in and of themselves, violate the Act. In this case, however, it is the timing of the actions in question which is most suspect, and which, in the Board's view constitutes interference.

Metroflight, 18 NMB at 544.

In Federal Express Corporation, 20 NMB 7, 48 (1992), the Board examined the carrier's formation of a permanent committee to deal with "Scope Clause issues, Fifth Freedom Rights and Domestic/International Feeder Operations." The Board stated: "It is . . . evident that the carrier has historically used committees to deal with or to enhance communications on various work-related problems. However, the Board is disturbed by the timing of the formation of the committee, in the middle of the election period."

The Board did not find carrier interference in Continental Airlines/Continental Express, 21 NMB 229 (1994). There, the Board relied on a committee's existence long before the organizing campaign and the lack of evidence that the carrier's dealings with the committee had been altered in response to the organizing campaign. The Board stated:

The Board notes that the carrier and the Council began discussions years prior to AMFA's initial campaign, and prior to the Board's authorization of an election. . . .

In view of the absence of a demonstrated anti-union campaign, and the fact that the carrier did not attempt to form or encourage its employees to join the Employee Council during the laboratory period, the Board finds that the bare fact of the Council's existence did not taint the laboratory conditions.

Continental Airlines/Continental Express, 21 NMB at 254.

Recently, in US Airways, 24 NMB 354 (1997), the Board identified certain initial examples of carrier election interference through the establishment or use of employee committees:

1) The establishment of a committee at any time after the carrier becomes aware of a labor organization's organizing efforts;

2) A material change, or a carrier representation of such a change, during the critical period in the purpose or activities of a pre-existing committee;

3) The use of a pre-existing committee to expand employee benefits during the critical period (the continuation of existing benefits is a prerequisite of a fair election);

4) Carrier campaigns which indicate a pre- existing committee is, or should be, a substitute for a collective bargaining representative;

5) Carrier campaigns which indicate that the certification of a labor organization as the representative of the employees will lead to the termination of a pre-existing committee.

US Airways, 24 NMB at 385-386 and Horizon Airlines, 24 NMB 458, 503 (1997).

In the present case, the evidence does not support a finding that the Carrier's actions with respect to Team DM&E constituted interference. The Carrier had discussions concerning the formation of a committee on the DMER prior to knowledge of the filing of the application, which was the date that DMER's current management first learned of the organizing activity. Team DM&E has not been used to expand any employee benefits. There is no evidence that the Carrier advocated DM&E as a substitute for a collective bargaining representative. Review of the literature concerning Team DM&E shows that the Carrier mentioned neither the BMWE nor any organizing campaign. There is no evidence that DMER has indicated that certification of the BMWE would lead to termination of Team DM&E.2 Finally, the employees, in their affidavits, stated that they viewed DM&E as merely a means for communicating with management on mainly safety issues and not as a collective bargaining representative.

V.

BMWE contends that pay increases were granted to influence the election. The investigation revealed that the pay increases were part of a company-wide audit completed prior to the Carrier's knowledge of the organizing campaign. In Continental Airlines/Continental Express, 21 NMB 229 (1994), the Board noted that pay adjustments, which were made company-wide and started prior to the union's organizing campaign, did not taint the laboratory conditions. In the present case, the pay increases to several Maintenance of Way Employees did not taint the laboratory conditions.

The BMWE contends that the "Safety Day" and the vacation accumulation were "unscheduled benefit increases." The record, however, does not establish that the awarding of the "Safety Day" and the vacation accumulation tainted the laboratory conditions. In both instances, Schieffer found out that his predecessor had approved the actions but did not implement the actions. In both instances, they were approved prior to the Carrier's knowledge of the organizing drive.

VI.

BMWE asserts that the sponsorship of the softball team and "Operation Lifesaver" constituted "unscheduled benefits." No evidence has been submitted or found during the Board's investigation to show that these sponsorships were meant to affect the outcome of an election or that they impacted adversely an employee's freedom of choice. The sponsorship of the softball team and "Operation Lifesaver" do not constitute election interference.

VII.

BMWE alleges that the distribution of the DMER questionnaire constituted polling "employees regarding their desires for collective representation."

The Board has found that a carrier interferes with its employees' free choice of representative when the carrier polls the employees on whether they support the union. Washington Central Railroad Company, Inc., 20 NMB 191 (1993); Mid Pacific Airlines, 13 NMB 178 (1986); Mercury Services, Inc., 9 NMB 312 (1982); Laker Airways, Ltd., 8 NMB 236 (1981). In the present case, the distribution of the questionnaire does not constitute interference. The questionnaire neither mentions the BMWE nor the employees' preferences regarding representation. The questionnaire was directed to all of the Carrier's employees. The questionnaire did not taint the laboratory conditions.

VIII.

For the above reasons, the Board finds that the Carrier's actions did not taint the laboratory conditions in this case. The BMWE's request for a certification and, in the alternative, a re-run election using either a Key ballot or a Laker ballot is denied.

In its submission, the Organization requested that the Board rerun the election if the Board finds no carrier interference. The Board, in Dakota, Minnesota and Eastern Railroad Company, supra, previously ordered a re-run election. BMWE subsequently requested a postponement of that election and an investigation of its allegations of election interference. The election will now be conducted pursuant to that order.

CONCLUSION

Based on the record, the Board finds that the laboratory conditions required for a fair election have not been tainted.

The Mediator is directed to conduct the re-run election previously ordered by the Board as soon as possible.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff