25 NMB No. 10

CASE NOS.

R-6462, R-6463 and R-6464

FINDINGS UPON

INVESTIGATION-

ORDER

October 17, 1997

On August 27, 1996, the National Mediation Board (Board) received applications from the Brotherhood of Locomotive Engineers (BLE) alleging representation disputes involving 1) Engineers 2) Trainmen 3) Mechanics 4) Carmen and 5) Dispatchers, employees of the Arkansas and Missouri Railroad Company(AMRC). The applications were assigned NMB Case Nos. R-6462 to R- 6466, respectively.

At the time the applications were filed, the employees were not represented by any organization or individual.

The Board assigned then Mediator Maurice A. Parker to investigate.

PROCEDURAL HISTORY

On October 1, 1996, the Board found disputes to exist in the Engineers (R-6462), Trainmen (R-6463), Mechanics (R-6464) and Dispatchers (R-6466) crafts or classes and authorized elections to resolve the disputes.1 Ballots were mailed on October 18, 1996, and the counts were conducted on November 19, 1996. On November 21, 1996, the BLE filed allegations of election interference.2 Position statements and affidavits were submitted by the Carrier and the BLE. The Mediator conducted a field investigation which included interviews with employees and other individuals.

ISSUES

The issues before the Board are whether the Arkansas and Missouri Railroad Company engaged in activities which tainted the laboratory conditions necessary for a fair election and, if so, what appropriate action should the Board take to restore the laboratory conditions.

CONTENTIONS

The BLE contends that the Carrier engaged in "interference of the most egregious variety" by committing the following acts:

1)	interrogation and surveillance as to whether employees either received ballots or returned them to the Board;

2)	urging employees not to mail in their ballots;

3)	urging employees to turn their ballots in to management;

4)	actually collecting ballots from employees;

5)	urging employees who support the union to quit the carrier;

6)	threatening employees with retaliation for submitting statements to the Board;

7)	threatening (a) loss of jobs, (b) loss of bonuses, and/or (c) shutdown of the Carrier in the event of union certification; and

8)	inserting anti-union literature into paycheck envelopes.

The BLE requests that the Board conduct new elections utilizing the ballot procedures in Key Airlines, 16 NMB 296 (1989).

It is the Carrier's position that it did not interfere with its employees' decision as to whether to be represented. The Carrier denies asking employees if they returned their ballots or soliciting ballots from employees. The Carrier contends that AMRC officials' communications with employees during the elections did not interfere with the representation process. The Carrier asserts that it was exercising its First Amendment rights when it communicated with its employees.

FINDINGS OF LAW

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

I.

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

II.

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

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 "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 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.

Ballots were mailed on October 18, 1996, and the counts were conducted on November 19, 1996. The results of the counts are as follows:

R-6462 (Engineers)

Eligible voters - 6

Votes for BLE - 3

R-6463 (Trainmen)

Eligible voters - 9

Votes for BLE - 3

R-6464 (Mechanics)

Eligible voters - 7

Votes for BLE - 1

R-6466 (Dispatchers)

Eligible voters - 2

Votes for BLE - 2

II.

The management structure at AMRC consists of Tony Hannold, President; Larry Bouchet, Executive Vice President; G. Brent McCready, Vice President/General Manager; and Roger Treese, Superintendent of Locomotive Power.

III.

A.

An employee stated that, on October 30, 1996, Bouchet entered the employee's work area and stated that he knew, "the shop was not going to go union because a majority of the guys had torn up their ballots in front of Tony [Hannold] and him." Bouchet then told this employee that four of the six engineers had turned their ballots in to him. Bouchet announced to the employee that there was not enough work for two dispatchers to sit in front of a radio all day. He was going to have to cut one person's job and make the other one work split shifts - four hours in the morning and four hours in the evening.

Later that day, Bouchet asked this employee if the employee had sent in a ballot to which this employee responded, "yes." Bouchet stated to this employee that he would go ahead with his plans to put employees in this craft or class "in a little room away from everyone else." Bouchet stated that there was "no way" the company was going to negotiate a contract with any union and implied that the Carrier would use an attorney to tie up the union for two years during contract negotiations. Bouchet then said that by then he and Hannold would "be out of here."

After a certification was issued in the Dispatchers' case, R-6466, Bouchet, on several occasions, made statements to the effect that the union will never negotiate a contract for one person, referring to the fact that the Dispatchers were the only group to be certified and that this employee was the only individual represented by the BLE.

B.

On October 15, 1996, Bouchet told the other eligible Dispatcher employee, "if you do not give a goddamn about this company, you better find someone who does and start talking to them because if this union passes the old man [Tony Hannold] will sell this place." Later that day, Bouchet told this employee that if the BLE was certified, the employees, "would be put in a small room by themselves with no windows and only a radio and a phone."

Bouchet, on October 17, 1996, questioned the employee as to whether the employee had received a ballot.

On October 29, 1996, McCready told the employee that all the other crafts or classes, except Dispatchers, had turned in their ballots to management. McCready stated that management had a majority in all crafts or classes except Dispatchers. He said that the BLE would not represent two employees and that Hannold, "would spend a million dollars fighting the dispatchers union."

Bouchet, on November 1, 1996, asked the employee if the employee had mailed in the ballot, stating that he knew exactly how the other eligible employee voted.

The employee in this craft or class was suspended for five days, November 11-15, as a result of an investigation conducted on November 13, 1996. It is unclear as to why this person was suspended. The employee was not allowed to return to work and was discharged after the issuance of the certification.

IV.

An eligible employee in the Engineer craft or class stated that, on October 23, 1996, Bouchet asked him if he had received his ballot. The employee told Mr. Bouchet that he had not received his ballot from the NMB yet.

Bouchet, on November 9, 1996, told this employee that, "someone turned me into the National Mediation Board and I got a $10,000 fine. When my lawyer in D.C. finds the S.O.B. . . ." His sentence trailed off and the employee present didn't hear the rest. This statement was made in the presence of several other employees including two Engineers.

On October 22, 1996, Bouchet and Treese approached another Engineer and asked him for his ballot. The individual had not received his ballot at that time. Later, Bouchet approached the employee and asked if he had received his ballot. The individual destroyed the ballot in Bouchet's presence. Bouchet told this individual that if he supported the union, management would "shut the place down" and "you can kiss your bonuses goodbye."

V.

A.

Phillip Cottrell worked as a Mechanic on the AMRC until he was discharged on January 28, 1997 for what he describes as "for no reason." Cottrell was written up for poor performance twice within thirty to forty- five days during the course of the election. He states that he has worked for the railroad for approximately two and one-half years and, during that period, he had never been written up or told that he was doing "sub-standard work."

On October 8, Bouchet attended the weekly meeting of the Carmen and the Mechanics. Bouchet told the employees that, if they choose a union, Hannold would sell the railroad, McCready could retire because he doesn't need the money, and he (Bouchet) had the leasing rights to the locomotives and would lease them out elsewhere, thereby putting eleven people out of a job. Bouchet stated that if the union did come in, none of the employees would be able to obtain any extra contract jobs on the side with the railroad. Bouchet stated that, as soon as the employees received their ballot, they should give them either to himself or Treese.

On October 24, 1996, Bouchet approached Cottrell and asked him if he had received his ballot. Cottrell replied he had not. Bouchet told him, "remember what I said about your contract job" and just walked away. Later, Cottrell turned in the ballot to Bouchet.

Several employees stated that they depended very heavily on the money from these extra contracting jobs and felt threatened by Bouchet's statement.

On November 9, 1996, Bouchet confronted Cottrell again and told him that one of the men had turned him into the Board claiming that Bouchet had threatened this employee into giving him the ballot. Bouchet told Cottrell that, as soon as he found out who had done it, that person would never work for another railroad again. Bouchet also told Cottrell that he was facing a $10,000 fine. On November 14, 1996, Cottrell received a certified letter from the railroad advising him that his contract job would be terminated, effective November 27, 1996, giving no reason for the termination.

On November 15, 1996, Cottrell was confronted by Treese, who stated that Bouchet wanted Treese to talk to Cottrell because Bouchet had gotten the word that it was Cottrell who turned him in to the Board for threatening and coercing employees to turn in their ballot. According to Treese, the company felt that such a statement was insubordinate and reason for dismissal.

B.

Another mechanic states that, on October 26, 1996, Treese approached him on the job and asked whether he had received a ballot. The employee was also told that if he had received his ballot it would be in his best interest to give it to Hannold. On October 1, 1996, Bouchet told this employee that if he got a ballot that he should give it to Bouchet. Bouchet also told this employee that the company would shut down or contract his work out before "they dealt with a union." The employee stated that he was fearful that the Carrier would retaliate against him if he did not cooperate with the company.

Bouchet later asked this employee again if the employee received a ballot. When the employee answered in the negative, Bouchet said, "well you gotta get a ballot and so you can give it to me." Bouchet then found out that the Carrier did not have this employee's current addresses on file. Bouchet had the Personnel Manager type, for the employee's signature, a memorandum stating that the employee had a change of residence and stating the current address. Bouchet presented the memorandum to the employee for his signature. The signed memorandum was forwarded to the Board by the Carrier with a cover letter from McCready stating "hopefully this will clear up any misunderstanding concerning why this gentleman did not receive his voter card."

A third mechanic stated that Bouchet and Treese approached him several times and asked if he had received his ballots. He was told to turn in the ballot to Bouchet or Treese when he received it. On one occasion, Bouchet approached the employee and told him to turn in his ballot to Hannold. The employee tore up the ballot in front of Bouchet.

A fourth mechanic said that Treese approached him during the election period and asked him if he had received his ballot. Later Bouchet approached him and asked him the same question. Bouchet asked the employee if he was going to "vote for the union." The employee gave his ballot to Treese.

VI.

In a monthly newsletter, the Carrier included a column attributed to Bouchet and McCready that threatened employees with a loss of earnings and suggested that employees in favor of a union leave the Carrier. The column stated:

If we unionize, we will not have to worry about the bonuses because there will not be any. Also all the subcontracts and cross training into other department will be gone from the A&M Railroad, maybe A&M Railroad as we know it.

I believe if you don't like the A&M Railroad, we are not holding you to this job. If you are not happy, why don't you go where you would be treated the way you want.

The column asserts that unions "cause problems and mistrust", asks "is this what a union is, to cause problems between the employee and company/employee and employee", and refers to unions as "the bad guys." It attributes force reductions and poor maintenance at other railroads to their employees being unionized and that joining a union results in a "long-term loss."

VII.

On October 15, 1996, Hannold sent a memo to all employees regarding a decline in traffic "the railroad was handling and the need to eliminate waste." Hannold tied the problem to the union campaign and stated, "it would help if the discontented personnel would leave and we hope that the remaining people will continue their support through what will be very difficult times."

VIII.

Bouchet stated that he asked employees if they received their ballots because he was concerned that the Carrier might not have current addresses of employees on file. Bouchet admitted that employees came up to him and tore up ballots. He denied receiving any ballots. He denied making any statements suggesting that the Carrier would shut down if a union is certified. Bouchet stated that he did not make any adverse remarks at the October 8 meeting.

McCready stated that he did not discuss the elections with any employees. He said that he asked employees "if they received their ballots" because he was concerned about incorrect addresses. McCready stated that he "never requested or solicited a ballot from any employee."

Treese stated that he only asked employees if they received ballots because he was concerned that the Carrier may not have employees' correct addresses. He said that he never "requested or solicited a ballot."

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. 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).

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 organizations and the carrier and past Board experience. America West Airlines, Inc., 17 NMB 79 (1990); Evergreen International Airlines, 20 NMB 675 (1993). In the present cases, 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. In Texas & New Orleans Railway v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 567 (1930), the Supreme Court stated:

'Interference' with freedom of action and 'coercion' in this case 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 authority or power of either party to induce action by the other in derogation of what the statute calls 'self-organization.' The phrase covers the abuse of relation or opportunity so as to corrupt or override the will, and it is not more difficult to appraise conduct of this sort in connection with the selection of representatives for the purposes of this Act than in relation to well-known applications of law with respect to fraud, duress and undue influence.

III.

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:

[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 Carrier clearly knew of the union activity at the time of the filing of the applications which was August 29, 1996. From that moment on, AMRC was 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.

IV.

Several employees have stated that the Carrier solicited and collected ballots. In conducting elections and administering representation proceedings, the Board has confirmed that certain activities by carriers are prima facie proof of unlawful interference, influence or coercion. As the Board explained in Laker Airways, Ltd., 8 NMB 236, 250 (1981), soliciting employees to turn their ballots in to carrier officials is one of the most egregious acts of interference that a carrier can undertake:

The Board holds that it is a per se violation of the Railway Labor Act for any carrier or its officials to solicit employees to turn their ballots in to the carrier . . . It is a violation of the Act, under the circumstances present here, to keep track of which employees do or do not have ballots, and to thereby give the impression of surveillance. It is a per se violation to poll employees during a representation election conducted by this Board. Finally, it is a per se violation for a supervisor to personally receive a ballot from an employee under any circumstances, and without regard to the 'voluntariness' with which it is turned over.

As the Board explained in Mercury Services, Inc., 9 NMB 312, 321 (1982), "[e]ven employees who would otherwise simply throw their ballots in the trash feel compelled to turn them in as an act of 'loyalty'". In Washington Central Railroad Co., 20 NMB 191, 231-232 (1993), the Board found that the solicitation and collection of ballots is "a gross abuse of the Board's election procedures." Accord: Rio Airways, 11 NMB 75 (1983) (collecting employees' ballots); Metroflight, Inc., 13 NMB 284 (1986) (attempt to collect ballots and suggestion that ballots be given to supervisors); Egyptair, 19 NMB 166, 174-175 (1992) (supervisor receiving ballots).

The investigation revealed that Larry Bouchet, Brent McCready, and Roger Treese regularly questioned employees about whether they had received and/or mailed their ballots to the Board, solicited employees to turn their ballots in to the Carrier rather than return them to the NMB, and advised employees that doing so would be in their best interest. These discussions with employees about their ballots occurred throughout the election period.

Bouchet boasted that "the shop was not going to go union because the majority of the group had tore up their ballots in front of Tony [Hannold] and [me]." Bouchet also bragged that four of the six Engineers had given him their ballots. Another statement discloses that Bouchet stated to an employee that he knew exactly what a fellow employee had done with a ballot. Yet another statement discloses that McCready told an employee that management had obtained the ballots from a majority of employees.

The foregoing conduct tainted the laboratory conditions necessary for representation elections.

V.

While it is not the Board's policy to deny carriers the opportunity to communicate with their employees during representation elections, that opportunity is not unlimited. The Board stated in Allegheny Airlines, 4 NMB 7 (1962), "[t]he privilege of free speech is not absolute. It must be evaluated in the context of the rights of others."

In International Association of Machinists and Aerospace Workers v. Continental Airlines, 136 LRRM 2301, 2304 (D.D.C. 1990), the United States District Court for the District of Columbia stated:

The Constitution does not tolerate expression by an employer found to be specifically prohibited by an Act of Congress, an Act which has been repeatedly tested and upheld, particularly when its statements infringe on the First Amendment rights of employees to associate free of employer disruption. See NLRB v. Gissell Packing Co., 395 U.S. 575, 617 (1969).

The Board has previously found that explicit and implicit threats to employees' job security improperly interfere with the employees' right to select a representative without interference, influence or coercion. Allegheny Airlines, Inc., 4 NMB 7 (1962); Mid Pacific Airlines, 13 NMB 178 (1986); Key Airlines, Inc., 16 NMB 296 (1989); Florida East Coast Railway Company, 17 NMB 177 (1990). In Key Airlines, Inc., supra, the carrier made repeated statements suggesting that it might merge or subcontract if employees became unionized. The Board found that:

Implicit in these statements is the thinly veiled threat that the future job security of . . . employees would be at stake should they vote to be represented. While the Carrier maintains that such statements are 'based upon objective facts related to economic efficiencies,' the Board finds otherwise. Indeed these communications reasonably tended to convey the impression that a vote for unionization . . . could lead to the loss of jobs . . . . (16 NMB at 311)

In the present cases, several remarks by management officials, when coupled with the solicitation and collection of ballots by the Carrier, had an adverse effect on employees' free choice.

The Carrier's anti-union campaign was replete with threats to the employees' job security. For example, on October 1, Bouchet told one employee that "the company would shut down or contract out my work before it dealt with a union."

The Carrier held a meeting with employees in which Bouchet told the employees that, if they chose the union, Hannold would sell the railroad, McCready would retire because he did not need the money, and that Bouchet held leasing rights for the locomotives that he would use to lease them elsewhere and put all of the mechanics out of work. Bouchet further threatened that, if the union was selected, none of the employees would be able to obtain any extra contract jobs on the side from the Carrier. He told the employees that, as soon as they received their ballots from the Board, they should give the ballots to Bouchet or to Treese.

Bouchet told one employee "if you do not give a goddamn about this company you better find someone who does and start talking to them because if this union passes the old man [referring to Tony Hannold] will sell this place."

Bouchet confronted one employee and asked whether the employee had received a ballot. When the employee said no, Bouchet reminded the employee of a prior conversation regarding the fact that the company was an important source of income to the employee. Thereafter the employee surrendered the ballot to Bouchet.

McCready told an employee that Hannold would "spend a million dollars fighting the union."

Bouchet stated that there was "no way" the company was going to negotiate a contract with any union and implied that the Carrier would use an attorney to tie up the union for two years during contract negotiations. Bouchet then said that, by then, he and Hannold would "be out of here."

Bouchet made threats to several employees concerning an employee who, according to Bouchet, had submitted information to the Board. Treese approached an employee and implied that the alleged action was a ground for dismissal. These remarks had a chilling effect on the employees.

These threats were accompanied by regular questions from management as to whether employees had received their ballots and what they had done or intended to do with them. Management let the employees know it was keeping a close watch on how they responded to the opportunity to vote and that it knew how they were voting.

VI.

When the Board has found carrier interference, it has employed a variety of special ballots and notices intended to eliminate the taint of interference on the employees' freedom of choice of representative. The Board's methods of determining the employees' choice of representative vary on a continuum determined by the extent of the carrier interference found. The continuum begins with a finding that the carrier had not interfered with the employees' choice of representative. See USAir, Inc., 18 NMB 290 (1991). The continuum ends with interference so outrageous that, in the Board's judgment, alternate means of gauging employee sentiment other than a secret ballot election are appropriate. See Sky Valet, 23 NMB 276 (1996).

Under egregious circumstances which are not outrageous, the Board employs procedures designed to provide increasing safeguards for employees' freedom of choice of their representative. In Key Airlines, 16 NMB 296 (1989), the Board used a ballot which would result in certification of the organization unless a majority of eligible voters returned votes opposing union representation. No write-in space was provided. In Key, the Board's approach was based upon the totality of the carrier's activities, which included denying a scheduled pay increase to employees in one craft or class immediately after a representation application was filed, holding meetings for the express purpose of discouraging organization and threatening employees' job security should they vote for representation.

Because the Carrier's conduct has tainted the laboratory conditions necessary for a fair election, the Board finds that new elections are warranted. The Board has broad discretion in fashioning appropriate methods for conducting elections under Section 2, Ninth, of the Act. USAir, 17 NMB 377 (1990); Key, supra; Florida East Coast Railway, 17 NMB 177 (1990). Section 2, Ninth of the Railway Labor Act provides that the NMB "shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method . . . as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier." (emphasis added)

The Board finds that the Carrier's conduct was egregious. The collection of ballots by management has always been viewed by the Board as offensive. The Carrier has also intimidated and harassed its employees. Because of the small size of the crafts or classes, the Carrier's numerous actions have had far greater impact than in other cases. The Board finds that the Carrier has unquestionably tainted the laboratory conditions by interfering with and improperly influencing its employees. For these reasons, the Board finds that re-run elections using a Key ballot are necessary.

CONCLUSION AND ORDER

Based upon the totality of the circumstances in this case, the Board finds that the laboratory conditions required for a fair election have been tainted. Therefore, pursuant to its authority under Section 2, Ninth, the Board ORDERS re-run elections, using a Key ballot. The organization will be certified as the collective bargaining representative unless a majority of the eligible employees vote against representation.

Further, the Findings Upon Investigation and a special "Notice to All Employees" will be distributed to each eligible voter.

The Carrier is directed to provide alphabetized peel-off labels bearing the addresses of all eligible employees within five (5) calendar days of the date of this decision.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff