This decision resolves allegations of election interference filed by the International Brotherhood of Electrical Workers (IBEW or Organization) following the ballot count in this case. For the reasons discussed below, the Board finds that the laboratory conditions required for a fair election were tainted and orders a re-run election using a "Laker" ballot.

PROCEDURAL BACKGROUND

On July 20, 1999, IBEW filed an application pursuant to the Railway Labor Act (Act or RLA), as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute among Flight Attendants of Era Aviation (Era or Carrier). The Board docketed this case as NMB Case No. R-6695 on August 11, 1999.⁽¹⁾ At the time this application was received, these employees were unrepresented.

The Board assigned Benetta M. Mansfield as the Investigator. On August 16, 1999, the Board found a dispute to exist and authorized an election. Ballots were mailed August 31, 1999, and the count occurred September 28, 1999. The results of the count were that of nineteen eligible voters, five cast valid ballots for IBEW. This was less than the majority required for Board certification.

On September 30, 1999, IBEW filed allegations of election interference pursuant to Section 14.0 of the Board's Representation Manual. The Organization supplemented its filing on October 15, 1999. The Carrier filed its response on October 29, 1999.

The Board assigned Mary L. Johnson to continue the investigation. Investigator Johnson conducted on-the-property interviews with seventeen employees, three Carrier officials, and one Organization representative in Anchorage, Alaska on November 17-20, 1999.⁽²⁾

During the on-the-property investigation, one flight attendant testified that she had turned her ballot over to a Carrier official during the election period. The investigation of this issue continued with a telephone interview on November 23, 1999. Position statements on the Carrier's receipt of the ballot were filed by Era on December 3 and 21, 1999. IBEW filed a statement on December 17, 1999.

ISSUES

Did Era's actions taint the laboratory conditions the Board requires for a fair election? If so, what form should the Board's investigatory approach take?

CONTENTIONS

IBEW

IBEW contends that Era conducted a coercive campaign which interfered with its employees' free choice of representative, by engaging in the following activities:

1) Sent anti-IBEW letters to the Flight Attendants.

• Conducted "informational" meetings in an attempt to influence employees after it learned of the organizing drive;
  
  
• Changed or clarified policy and published a revised Flight Attendant Manual including some of those changes;
  
  
• Posted threatening notices about the consequences of unionization.
  
  
• The General Counsel held one-on-one, closed door meetings with employees to instruct them how to vote "No;"
  
  
• Attempted to use its Pilots to influence Flight Attendants about unionization;
  
  
• The Chief Flight Attendant encouraged members of the craft or class to attend Era-sponsored meetings against unionization;
  
  
• Increased staffing after it knew of IBEW's organizing campaign;
  
  
• Removed and destroyed pro-IBEW literature.

Finally, IBEW asserts that the fact that an Era official received a ballot from a Flight Attendant is a per se violation of the RLA.

Era

Era denies interfering with its employees' freedom of choice. Specifically, Era states:

• Carrier communications to employees were non-coercive and intended to provide accurate information.
  
  
• The "informational" meetings held were voluntary, and the information provided was accurate.
  
  
• Only pre-planned policy clarifications or revisions were announced during the election period.
  
  
• It posted accurate information.
  
  
• Meetings conducted by Era's General Counsel were voluntary, and her statements were accurate.
  
  
• It has a right to communicate with its Pilots regarding the union organizing drive among Flight Attendants. These communications provide accurate information.
  
  
• Era's Chief Flight Attendant did not encourage Flight Attendants to attend a meeting against unionization.
  
  
• Era hired additional Flight Attendants in response to resignations and pregnancies before the Carrier knew of the organizing drive.
  
  
• It did not remove or destroy any pro-IBEW postings.
  
  
• The unsolicited receipt of a single ballot did not in and of itself taint the laboratory conditions.

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:

I.

Era Aviation is a common carrier by air as defined in 45 U.S.C. § 181 of the Act.

II.

IBEW is a labor organization and/or representative as provided by 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 . . . ."

IV.

45 U.S.C. § 152, Fourth, gives employees subject to its provisions, "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter." This section also provides as follows:

No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization . . . ."

FINDINGS OF FACT

I.

A.

Background

Era is the largest regional airline in Alaska, employing over 800 people. The President of Era is Chuck Johnson. Paul Landis is Vice President of Fixed Wing Operations, and Brenda Mahar⁽³⁾ is Chief Flight Attendant. The Carrier provides scheduled service within Alaska and charter and contract service to the lower forty-eight states. Era also provides aircraft and flight crews, including Flight Attendants, for "Flightime" which flies NCAA basketball teams throughout the country during the college basketball season.

B.

In March 1999, Era employed twenty-four Flight Attendants. Two Flight Attendants gave notice between March 31, 1999, and April 15, 1999. According to Landis, he met with Mahar, and the Director of Operations, Danny Purvis, in April 1999, and concluded there was no need to hire additional Flight Attendants. Two more resignations occurred between May and July 1999, and four Flight Attendants notified the Carrier that they were pregnant. In a meeting held on July 15, 1999, Landis informed the Flight Attendants that a new Flight Attendant class would be formed in response to the staffing developments between March and July.

II.

Organizing Drive

In June 1999, Flight Attendants began discussions among themselves about unionization. Several Flight Attendants testified that they tried to talk to management about issues such as staffing and use of reserves, but management was either non-responsive or unavailable. Two Flight Attendants, Christina Hightower and Ronni Krause, circulated IBEW authorization cards in late June and early July 1999. Cards were signed between June 28, 1999, and July 12, 1999.

Landis stated that he first learned of the union drive on August 3, 1999, when he received a letter from the IBEW. Mahar stated that she had heard rumors, and that at the end of July, she was approached by a Flight Attendant regarding the union but honored the Flight Attendant's request for confidentiality. Krause testified that she contacted Assistant Chief Flight Attendant Pam Parkes⁽⁴⁾ in late June to inform her of the union drive. Parkes testified that although Krause left her a message stating that she wanted to talk with Parkes, there was no reference to a union.

III.

"Informational" Meetings

A.

The July Meetings

There was conflicting testimony about the "mandatory meetings" held with the Flight Attendants on July 15-16 and September 2, 1999. Certain Flight Attendants testified they believed the meetings were mandatory while others did not. The Carrier provided testimony and evidence that attendance was voluntary. No roster of attendees was kept. At the July 15, meeting, the Carrier announced that it would hold another "informational" meeting in September.

Several Flight Attendants testified that the July and September meetings were not pre-planned, and it was unusual for Era to have "informational" meetings. However, the Carrier provided evidence corroborated by some Flight Attendants that, at an informational meeting on March 26, 1999, Era stated it would have meetings with employees at least three times a year.

According to Landis, the meetings on July 15-16, 1999, were in response to concerns raised by a lawsuit which prompted the Carrier to research wage and hour issues. On July 9, 1999, Landis issued a memo to employees which stated that it had come to his attention that there was "concern over the Flight Attendant pay scale and long duty days." The memo also stated that Era would "work to keep overall compensation unchanged."

Landis testified that the memo exacerbated Flight Attendant concerns, so he scheduled the July 15-16 meetings.

B.

Carrier officials and several Flight Attendants testified that a plan to hold a September "informational" meeting was pre-announced. On August 9, 1999, Landis and Purvis issued a memo regarding the September 2, 1999, meeting. The memo stated that although attendance was not mandatory, "your input is very valuable so we hope you will be able to attend."

According to several Flight Attendants who attended the meeting, after a discussion of Era's financial situation, Landis spoke about the union campaign. In general, the employees testified that Landis (who became Vice President of Fixed Wing Operations in December 1998), asked the employees to give Era a chance. Employees and Landis testified that Landis asked for a year and told them that if they were not happy after that year, they could vote for the union. Landis asked Flight Attendants not to send back their ballot. According to one of the employees, Landis said that even if employees wrote "Hell, no, I don't want a union," it could be counted as a "Yes" vote. Several Flight Attendants testified that they were impressed by the information provided by Flight Attendant Kathy Duncan at the September meeting. IBEW and Era were providing conflicting information on whether IBEW could be decertified. Duncan was informed by a Board employee that there was no decertification procedure, but that the employees could vote for another Organization, and she reported that at this meeting.

Landis testified that he presented Era's views on the "pros and cons of unionization." He discussed the fact that under the RLA, "it was difficult to vote the union out." He further stated that "salaries and benefits of flight attendants would be subject to collective bargaining and could therefore change." Landis stated that he told employees to send in their ballots to vote "Yes," and to not send in ballots to vote "No," and also told employees, if they wanted to vote "No," to throw away their ballots. In addition, Landis showed a graph of Flight Attendant salary, comparisons.⁽⁵⁾

IV.

One-On-One Meetings

Era General Counsel Marcia Davis met with most of the Flight Attendants between August 25 and 27, 1999. Davis testified that management met and discussed the need to ensure the employees understood the balloting process. According to Davis, these meetings, held in Mahar's office, lasted approximately ten to fifteen minutes. With the exception of the meeting with Flight Attendant Hightower, the door was closed "to keep the noise down." Davis stated that only Hightower "had a problem with the door being closed," and, therefore, it remained open.

According to Davis, the purpose of the meetings was to describe:

(A) the NMB election procedure, including dates, the ballot[s] process, the sample ballot and how to vote yes and no, and the number of votes needed to constitute a majority vote;

(B) the constraints Era was operating under during the election, namely Era's obligation to maintain the status quo and the prohibition against making promises, threats or changing working conditions;

(C) Era's obligation to bargain if the Union were elected as the representative, specifically Era's obligation to bargain in good faith with the Union to reach a contract governing the flight attendant's wages, benefits and working conditions . . . the unpredictability of the amount of time contract negotiations might take, that there was no guarantee a negotiated contract would raise wages . . . and that Era would continue to manage the operation as was appropriate after the election;

(D) the fact the IBEW was recently decertified by Alaska court system employees and the Valley Hospital employees;

(E) the fact there is no procedure under the RLA for union decertification; and

(F) union security clauses whereby the IBEW could include in the contract a provision making payment of union dues a condition of employment.

Twelve of fifteen Flight Attendants interviewed by the Investigator, met with Davis. Seven testified that Davis informed them that the only way to vote "No" was to not return the ballot.⁽⁶⁾ These Flight Attendants stated that Davis said any ballot returned with anything written on it, "even a torn-up" ballot, would be counted as a "Yes" vote.

Davis testified that despite IBEW's allegation that she only instructed employees how to vote "No," she also showed employees how to vote "Yes." She further testified that she told employees that if they marked the write-in space, "the NMB will essentially have to look at this and have to determine whether it counts as a vote for the union or not. That's why if you're going to vote No the safest way to do it is not check on any of those boxes and not turn it in."

V.

Activities by Chief Flight Attendant, Assistant Chief

Flight Attendant, and Pilots

A.

Ten Flight Attendants testified that Mahar talked with them about the IBEW organizational campaign. According to these individuals, Mahar told them she had a negative experience with a union at a previous job.

Davis and Landis informed Mahar that she could express her "personal opinions about unions." Mahar did not attend any meetings conducted by management nor any meetings held among the Flight Attendants.

B.

IBEW alleges that Mahar encouraged Flight Attendants to attend meetings about the Organization at Assistant Chief Flight Attendant Parkes' house in late August 1999. Shortly before ballots were mailed, Mahar recalls suggesting to two Flight Attendants that they attend.

Parkes stated that management had not directed her to conduct the meetings. She decided to hold meetings because the "Flight Attendants needed to talk as a group." Parkes told Landis about the meeting beforehand, "as a matter of courtesy." Both Landis and Parkes stated that Parkes did not report on the meetings beyond stating that it was "good to get everyone together."

Several Flight Attendants testified that after some heated discussions, someone suggested that they draw up a list of concerns and issues. Although Parkes indicated an interest in attempting to deal with management and give them "one more try," Hightower and Krause disagreed.

Parkes testified that she received a list of concerns from one or two Flight Attendants but did not show it to anyone else. Parkes sent a letter afterwards in which she stated that there was a need to establish better communication with management, and that Landis "would like to be given the opportunity to work with" the Flight Attendants.

C.

Several, but not all, Flight Attendants received a written invitation to a lunch to discuss "The Mysteries of Unionization,"⁽⁷⁾ "hosted by several senior Era Pilots" on September 3, 1999. The meeting never occurred because the Flight Attendants told the Pilots it was a Flight Attendant issue, and they did not want to meet.

Landis had sent a letter to the Pilots on August 21, 1999, which stated, in part:

Possible unionization of a segment of our business is an important matter that will affect the entire company. Given your close working relationship with the flight attendants, we want to keep you informed about what is going on.

Era management feels very strongly that unionization of the Flight Attendants is not in the best interests of any of us that work here at Era. We believe the best way to deal with workplace issues is through a direct relationship among all levels of Era management and employees, without intervention by a third party union like the Electrical Workers. . . .

While you are not the target of the current union drive, you are free to express your personal opinions and views to the flight attendants if you desire to do so. The Pilot group did not choose to be represented by the Teamster's union two years ago, and we hope that the logic that led . . . to that conclusion can be shared and discussed with the flight attendants prior to [the election] . . . .

Mahar denies recruiting Pilots to talk to Flight Attendants. Mahar testified that a Pilot asked her if he could express his personal opinion regarding the organizing effort, and she informed him that "it was permissible to express personal opinions about the union."

One Flight Attendant testified that while most pilots were supportive of organizing "some pilots said . . . if the union comes in Era will be shut down." This individual asserted that the employee organizers for the Pilots' campaign "were laid off." Another individual testified that a Pilot told her that "union was a bad word at Era." A third Flight Attendant stated that pilots "nagged" her about the union.

VI.

Hiring and Policy Changes

A.

Hiring

It is undisputed that Era announced that it would hire additional Flight Attendants at the July 15-16, 1999, meetings. A new Flight Attendant class began in August 1999. It is also undisputed that staffing was a concern for the Flight Attendants. Several Flight Attendants testified that they were surprised when all six members of the August Flight Attendant class were hired. There was also testimony from Flight Attendants that the Carrier kept revising upward the estimated number of new hires. At least two Flight Attendants testified that it was "unusual" to start a Flight Attendant class in August, because Era's busy season is April and May.

B.

Manual Changes

On December 2, 1998, Mahar, Parkes, Krause and another Flight Attendant met to review and revise "portions of the Flight Attendant Manual," which had last been revised in May 1998.⁽⁸⁾ Mahar met with a representative of the Federal Aviation Administration on December 9, 1998, to discuss the proposed revisions to the Manual. Chapters 1 and 2 of the Manual were adopted by Era on August 11, 1999, at the start of the new Flight Attendant class.

According to Krause, the August revisions did not reflect the December 2, 1998, discussion. Mahar provided a copy of the May 1998, Manual with her notations and highlighting from the December 2, 1998, meeting.

C.

Maternity Policy

All of the pregnant Flight Attendants testified that Era changed the maternity policy to shorten the number of weeks Flight Attendants could fly before going on leave and requiring a (medical release) form.

According to Mahar, there was no written maternity policy in place when she assumed the Chief Flight Attendant position on December 1, 1998. When several Flight Attendants announced they were pregnant in July 1999, Mahar checked the maternity policy at other airlines and consulted a former Era Chief Flight Attendant. The policy Era applied in July 1999 was consistent with that at other regional airlines, and past practice at Era.

D.

Revised Compensation and Benefit Policy

On August 10, 1999, Era distributed a "Compensation and Benefit Policy" for Flight Crew Members. Although the text indicated an effective date of June 6, 1998, the document contained changes made subsequent to June 6. Specifically, the "bank days" policy for "Extended Charters" was changed or clarified. Another portion of the policy addressed overtime. According to Landis, these "revisions/clarifications applied to all Era flight crew members" and were the result of a March 26, 1999, meeting with Pilots, Flight Attendants and mechanics. Landis stated further that the revisions "needed to be completed by August because that was when Era's flight crews were scheduled to bid the lines for the 1999 Flight-Time season." Era was unable to provide any documentary evidence regarding the March 26, 1999, meeting.

On August 30, 1999, the Carrier issued a memorandum on re-bidding for the first Flight Time Charter:

During the . . . briefing held . . . August 26^th, some clarifications were made that had an impact on the way bank days are accumulated during "Extended Charters." In summary, the recent revision of the "Compensation and Benefit Policy" dated August 10, 1999 is now effective. The paragraphs relating to Compensatory Time Off . . . and Extended Charters . . . [a]re effective concurrently. This has the result of still guaranteeing the minimum monthly 10 days off while also earning ½ a bank day for each day worked which qualifies as an "Extended Charter."

[D]ue to this clarification, we have voided the initial bidding process . . . and are re-opening the bid period beginning today.

VII.

Campaign Communications

A.

The Organization asserts that the Carrier posted or mailed several anti-IBEW communications, including a threatening letter, and that it removed or destroyed the materials IBEW posted on bulletin boards.

On August 9, 1999, Landis sent a letter to Flight Attendants which stated that the IBEW is "always looking for more members to generate more money." The letter continued: "In mid-July, voluntary meetings were held to discuss outstanding concerns and the company listened. You asked for more staff, and a new class is being formed. You asked that the pay progression ladder be reviewed, and we agreed to do that."

Landis' letter also discussed the IBEW, and Union dues, and closed as follows:

Fortunately, you have an alternative to the union approach: You can talk directly to Era management anytime, anywhere without joining a union and paying union dues. We are committed to working with you to make Era an even better place to work, without the interference of a third party like the electrical workers union who primarily see you only as a source of dues and picketers.

Most of you know that I maintain an office on the first floor of the Era Aviation Center, close to our Fixed Wing operations. Please do not hesitate to contact me or any other Era manager if you have any questions regarding this very important matter.

On August 10, 1999, Era sent a letter to the Flight Attendants with an Alaska Supreme Court decision characterizing IBEW conduct as "intimidat[ing], violen[t], [and] destruct[ive]."

On August 21, 1999, Landis sent a letter to the Flight Attendants which stated, in part:

If you do not want to have the Electrical Workers Union become your legal bargaining representative, you can simply destroy the ballot or not return it. . . . .

If you don't want to be limited to exclusive union representation and instead are willing to give Era's new management team a chance to address your concerns directly, do not return the ballot.

On August 24, 1999, Landis issued a memorandum titled "Policy Questions." The memo discussed compensation, staffing, and pregnancy policy.

On August 25, 1999, the Carrier posted a Notice regarding the election. The Notice stated in part:

[A]ny ballot mailed is treated as a vote for the union.

The outcome of this election could have serious and far-reaching effects on everyone at Era Aviation. Remember, under the federal labor law covering airlines . . . there is no process to vote the union out. If you vote to be represented by a union you could be required to be a dues-paying member as a condition of employment, regardless of whether or not you supported the union. Therefore, we encourage you to get the facts about unionization and this union in particular before deciding whether to vote.

On September 1, 1999, Era President Johnson sent a letter to the Flight Attendants which discussed the election as follows:

For over 51 years we have worked together by communicating directly with each other without the interference of a third party who has its own agenda . . . . By working together, we have built a company that has a salary benefit that leads the industry we compete in. In addition to salary, we have two pension programs, major medical, vacation, bereavement leave, reduced rate travel, scholarships for our children and the ability to deal with issues important to you directly. We believe the best and quickest solution is to continue to have the flexibility to work with you directly to resolve our mutual problems and concerns.

We trust that after reviewing the facts, you will do what is in the best interest for you, your family and fellow employees. Allow us to continue to improve our company together and give us your support. Please vote "No" by destroying your ballot.

Era also posted annotated copies of the IBEW Local Bylaws, as well as "Questions and Answers" about the IBEW, and unionization in general.

B.

IBEW also sent campaign material to employees and posted material on bulletin boards. Krause testified that she personally posted materials, but would later find the materials had been removed or destroyed.

Nine Flight Attendants testified that they saw no pro-IBEW materials posted. Four Flight Attendants stated they saw materials from both participants. Two Flight Attendants only recalled seeing the Era "Questions and Answers."

VIII.

Ballot Collection

During the on-site investigation, one Flight Attendant advised the Investigator that she had turned her ballot over to Landis. According to this individual, she marked "Void" on the ballot and gave the ballot and envelope to Landis, "because he's always talking about a leap of faith." She said to Landis, "here's my leap of faith." Landis took the ballot and said "thank you," and that it meant a lot to him.

Landis admits receiving the ballot. According to Landis: "None of us ever solicited ballots from anyone, not in any way, shape, or form. It was a surprise, [I] never contemplated the possibility that someone would do it. I was flabbergasted."

Landis also stated that he looked at the date and "was struck that it looked like it was late and wouldn't have made any difference . . . . It was my understanding that September 21 was the deadline and that it would have been too late to mail it."⁽⁹⁾ According to Landis, his "read on that was that she didn't want a union . . . . She was choosing to not have a union." Landis testified further that he had no idea it was relevant, that from his prospective, "it was the same as if she had put it in the trash can," and he "thought it was well within the rules."

According to Davis, "probably" during the week of September 20, Landis called her into his office and said "you'll never believe what happened" and told her that a Flight Attendant had given him her ballot and said "I'm voting no, you can destroy it," or words to that effect. Davis testified that because she knew "the importance the NMB places on confidentiality," she prevented Landis from revealing the Flight Attendant's name. She stated that the ballot was unmarked.

DISCUSSION

In numerous decisions, the Board has held that a Carrier must act in a manner which does not influence, interfere or coerce the employees' selection of a collective bargaining representative. Metroflight, Inc., 13 NMB 264 (1986). The U.S. Supreme Court stated:

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 normal relations and innocent communications which are a part of all friendly intercourse, albeit between employer and employee. "Influence" in this context clearly means pressure, the use of authority or power to induce action by the other in derogation of what the statute calls "self-organization."

Texas & New Orleans Railway v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 568 (1930).

When evaluating whether employees' freedom of choice has been impaired the Board examines the totality of the circumstances. In such an evaluation, each conclusion may not constitute interference in and of itself, but when combined with other factors, the totality evidences improper interference. The Board bases its evaluation on the facts developed in its investigation and from past Board experience. Petroleum Helicopters, Inc., 25 NMB 197 (1998); Evergreen International Airlines, 20 NMB 675 (1993); America West Airlines, Inc., 17 NMB 79 (1980).

For the reasons noted below, the Board finds that the Carrier, after laboratory conditions attached, interfered with these conditions by ballot collection. The Board also finds that the Carrier interfered based upon the totality of the circumstances by such actions as making changes in working conditions, and holding meetings during which Board procedures were misrepresented. Based on the ballot collection and the other incidents outlined below, the Board orders a re-run election using a "Laker" ballot.

I.

Knowledge of the Organizing Drive

Laboratory conditions must be maintained from the date that the Carrier becomes aware of the organizing drive. American Airlines, Inc., 26 NMB 412 (1999); Midway Airlines Corporation, 26 NMB 41 (1998). The record is that Chief Flight Attendant Mahar was aware of the organizing drive in late June; and that Carrier upper level management was aware by August 3, 1999, when the IBEW formally notified Era of the drive. Mahar is a management official, therefore, the Board finds that laboratory conditions had to be maintained after late June when Mahar became aware of the drive.

II.

Ballot Collection

It is the Board's view that ballot collection by a Carrier is a per se RLA violation. In Laker Airways, Ltd., 8 NMB 236 (1981), the Board stated "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." Since Laker, the Board has consistently found employer ballot collection, singly or in combination with other conduct, to be interference.⁽¹⁰⁾

Although the flight attendant who gave her ballot to Landis acted "voluntarily," Landis' receipt of the ballot is a per se violation which tainted laboratory conditions. This action alone among a small number of craft or class members is sufficient to rerun the election. However, the Board will also review the other allegations to determine the totality of the Carrier's conduct.

III.

Carrier Meetings and Campaign Communications

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); Virgin Atlantic Airways, 24 NMB 575 (1997). Carriers have the right to communicate their views 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." America West Airlines, 17 NMB 226 (1990). Thus the Board looks at communications and meetings in the "totality of the circumstances" context. Midway, supra; Petroleum Helicopters, supra. The Board also examines the content of communications to determine if they are coercive, contain material misrepresentations about the Board's processes or the Act, or combined, with other Carrier actions, improperly influence the employees choice of representative.

The Board finds in this case that while the meetings were not mandatory, they were coercive and contributed to an overall finding of election interference for the reasons set forth below.

Era held three meetings between the time the authorization cards were collected and the ballots were counted. The meetings were not mandatory. The Carrier presented evidence that the July meetings were not motivated by the organizing campaign. However, Landis subsequently used the discussions at the July meetings in his August 9, 1999, letter to justify the new flight attendant class by referring to employee requests "for more staff." At the September 2 meeting, Landis asked the employees not to send their ballots back to the Board and to give the new management a year.

The meetings conducted by General Counsel Davis also were not mandatory. Seven flight attendants testified that Davis only instructed them how to vote "No." Davis also told employees that any ballot returned would be counted as a vote for representation.⁽¹¹⁾

In Midway Airlines Corporation, 26 NMB 154 (1999), the Board reaffirmed its policy that misrepresentations or misstatements require some form of Board response. In Zantop International Airlines, 6 NMB 834 (1979), the Board found that "meetings with small groups of employees, during which [a Carrier official] reiterated the message of . . . letters" which contained misrepresentations about the Board's voting procedures were "inherently coercive." In USAir, 17 NMB 377 (1990), the Board found that Carrier misstatements about Board procedure contributed to the taint of laboratory conditions.

The Board finds that the informational meetings where Landis discussed not returning your ballot combined with the misinformation about voting in Davis' meetings contributed to a taint of laboratory conditions. The circumstances of the meetings conducted by Davis were inherently coercive because they were either one-on-one or with two employees. At these meetings Davis reiterated misinformation about the Board's ballot procedures. See Zantop, supra.

Era's communications also contained misrepresentations about Board processes. The August 25, 1999, Notice stated "any ballot mailed is treated as a vote for the union" and "there is no process to vote the union out." Era's August 9, 1999 letter implicitly linked the rejection of union representation with benefits. These communications, like, and in addition to, the meetings, contributed to the taint of laboratory conditions.

IV.

Hiring and Policy Changes

The Carrier made changes in the manual and revised the compensation benefit policy during the time when laboratory conditions were to be maintained. The flight attendants attempted to address these issues with Carrier officials before the campaign but their demands were unheeded until the Carrier was aware of organizational activity. Landis' August 9, 1999 memo expressly stated that by mid-July management knew that flight attendant staffing was a concern, and then linked the Carrier's ability to address this concern to not voting for the IBEW. The Board finds that changes were implemented to coincide with the height of the campaign.

V.

Other Allegations

The evidence is insufficient that Mahar's activities or the meetings at Parke's house contributed to the interference findings. Similarly, the Carrier's attempts to encourage the pilots to discourage flight attendant organization did not taint the laboratory conditions. The Board does not find interference for the other allegations which are not addressed in this decision.

VI.

Appropriate Remedy

The Board's methods of determining the employees' choice of representative varies on a continuum determined by the extent of carrier interference found. Here, there is ballot collection combined with several other actions which demonstrate substantial Carrier interference with the laboratory conditions. When the Board conducts a rerun election, one approach is a "Laker" election. Laker, supra. A "Laker" election involves the use of a "Yes" or "No" ballot. No write-in space is provided, and the majority of votes actually cast determines the outcome of the election. The incident of ballot collection combined with the other action outlined above makes a rerun election to be conducted with a Laker ballot appropriate.

CONCLUSION AND ORDER

Based upon the totality of the circumstances, the Board finds that the laboratory conditions required for a fair election were tainted by the carrier's interference. The Carrier interfered with the election by: a) collecting a ballot; b) making changes in working conditions after the laboratory conditions attached; and c) misrepresenting Board voting procedures.

Pursuant to Section 2, Ninth, the Board ORDERS a re-run election using a "Laker" ballot. The choices on the ballot will be "IBEW" or "No Representation." There will be no space for write-in votes. The majority of votes cast will determine the outcome. The list of eligible voters will include those eligible in the first election, with the exception of those employees who have left the craft or class since then.

Pursuant to Section 11.2 of the NMB Representation Manual, the Carrier is hereby required to furnish, within 5 calendar days, alphabetized peel-off labels bearing the names and current addresses of those employees on the list of potential eligible voters. The ballot count will take place in Washington, DC. Copies of the attached "Notice to Flight Attendants of Era Aviation" must be posted within five (5) 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.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable
Chief of Staff

Copy to:
William F. Mede, Esq.
Kimberly K. Geariety, Esq.
Mr. Daniel Repasky

NOTICE TO FLIGHT ATTENDANTS OF ERA AVIATION

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

Accordingly, the Board authorizes a second election among Era's Flight Attendants. 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 Railway Labor Act, 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 in members of any labor organization . . . .

(emphasis added).

Section 151a, General Purposes Clause of the Act "provide[s] for the complete independence of carriers and of employees in the matter of self-organization . . . ." Era 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.

1. The IBEW's application was not signed by the Organization's Chief Executive Officer, as required by the Board's Rules at 29 C.F.R. § 1203.2. On August 9, 1999, the Board ascertained that the application was signed by an authorized individual.

2. Two other Flight Attendants refused to meet with or speak to the Investigator.

3. Mahar was determined to be a management official in Era Aviation, 26 NMB 507 (1999).

4. In Era Aviation, supra, the Board noted that Parkes was not a management official.

5. Era's Flight Attendants' starting salary is significantly higher than at other unionized airlines in the region. However, after the first eighteen months, Era's Flight Attendants do not receive raises.

6. According to Hightower, Davis used obscene language in telling another Flight Attendant "to vote no just don't send the ballot in or throw the . . . thing away."

7. An election held among Era's Pilots in 1995 resulted in a Dismissal after twenty-three out of seventy-six eligible employees cast valid ballots in favor of representation.

8. The May 1998 revisions were made by Mahar's predecessor as Chief Flight Attendant. There was virtual unanimity on the fact that everyone was unhappy with the May revisions.

9. September 21, 1999, was the deadline for duplicate ballot requests, seven days before the count date.

10. In LSG Lufthansa Services, Inc., 27 NMB 18 (1999), the Board held "to preserve the ballot secrecy, management officials must never handle ballot materials."

11. Only ballots clearly indicating an intent to be represented are counted as valid. See Board Representation Manual, Section 12.402.