In the Matter of the

Application of the

TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO

alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended

involving employees of

AMERICA WEST AIRLINES, INC.

26 NMB No. 43

CASE NO. R-6636

FINDINGS UPON

INVESTIGATION-

CERTIFICATION

April 13, 1999

This decision resolves the allegations of election interference filed by America West Airlines, Inc. (America West) following the election in this case.

On October 14, 1998, the Transport Workers Union of America, AFL-CIO, (TWU) filed an application pursuant to the Railway Labor Act (RLA), as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute among Fleet Service Employees, employees of America West.

At the time this application was received, these employees were unrepresented.

The Board assigned Gale L. Oppenberg to investigate. As a result of the investigation, on November 19, 1998, the Board found a dispute to exist and authorized an election. Ballots were mailed December 7, 1998, and the count took place on January 8, 1999.

Of 1,999 eligible voters, 1,063 cast valid ballots for TWU. This was sixty-four more than the majority required for Board certification.

On January 12, 1999, America West filed allegations of election interference by TWU. TWU filed a response on February 22, 1999, the Carrier filed a response on March 1, 1999, and TWU filed a reply on March 8, 1999.

On March 26, 1999, a Board Investigator conducted sworn interviews with TWU Local Union 580 President Frank Trotti and TWU Local Union 580 Secretary- Treasurer and America West employee Pat Rezler.

ISSUES

Did TWU's actions taint the laboratory conditions? Whether or not TWU's actions tainted the laboratory conditions, did TWU's actions require other actions by the Board, and if so, what measures should the Board order?

CONTENTIONS

America West

America West asserts that TWU's actions constitute a prima facie case of election interference. Specifically, America West alleges that TWU materially breached the confidentiality of the Board's secret ballot process by issuing flyers to Fleet Service Employees in Phoenix, Arizona, and Columbus, Ohio, which solicited the employees to bring their ballots to union meetings. In addition, the Carrier argues that TWU representative Pat Rezler sent a letter to Fleet Service Employees in Phoenix to bring their ballots to him and to TWU to show the Organization that they had voted. The Carrier contends that the flyer and the letter, coupled with TWU's admission that ballots were collected by its representatives, demonstrates a systematic endeavor to undermine the secrecy of the election process.

America West argues that TWU's actions significantly undermined the integrity of the election process and interfered with the Fleet Service Employees' free choice of a representative. Based upon this evidence, the Carrier requests that the Board "decline to certify the results" of the election.

TWU

TWU argues that the Board should certify the election because the conditions for a fair election have been met. Although TWU admits that approximately ten ballots were collected at meetings scheduled in Phoenix (and none in Columbus), it asserts that no local union representative observed the content or the marking of ballots, and that these were actions of local union organizers taken on their own initiative and without approval by any International officer. TWU argues that this limited collection did not affect the outcome of the election. Moreover, TWU asserts that the meetings where these ballots were collected were voluntarily attended by Carrier employees. While TWU acknowledges that the collection of the ballots was improper, it argues that this conduct was not systematic, and that this limited non-coercive conduct does not amount to election interference.

TWU further asserts that the Board has never taken the position that a small amount of ballot collection, in the absence of coercion, could invalidate an election. As such a prohibition is not clearly stated in the Board's rules, TWU argues that the Carrier bears the burden to show the ballot collection was systematic, and that many ballots were collected. TWU states that because the Carrier has not met this burden, the election should be certified.

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.

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

II.

TWU 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 and agents, shall deny or in any way question the right of its employees to join, organize or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization.

V.

45 U.S.C. § 152, Ninth, provides 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 manner as shall insure the choice of representatives by the employees without interference, or coercion exercised by the carrier. In the conduct of any election . . . the Board shall designate who may participate in the election and establish the rules to govern the election.

STATEMENT OF FACTS

America West provided statements and documents from four management officials. TWU provided statements from three officials, one of whom is an employee of America West in Phoenix, Arizona, and from another employee of America West who was active in the campaign in Columbus, Ohio. In addition, the Board conducted investigatory interviews.

I.

America West is based in Tempe, Arizona with hubs in Phoenix, Arizona, Las Vegas, Nevada, and Columbus, Ohio. Approximately 700 Fleet Service Employees are

based in Phoenix and approximately 120 are based in Columbus, Ohio.

II.

Frank Trotti is a TWU organizer and president of Local Union 580 based in Phoenix, Arizona.1 Until September, 1996, Mr. Trotti was a Fleet Service Employee at America West. He was hired by TWU for the purpose of organizing the Fleet Service Employees at America West. Shortly after November 19, 1998, when the Board scheduled the election date in this case, Mr. Trotti drafted meeting notices for the Fleet Service Employees in Phoenix, Arizona, and Columbus, Ohio. Mr. Trotti stated that he drafted these meeting notices at this time because he had to reserve airport meeting room space several weeks prior to the meetings. As Mr. Trotti does not have the word- processing equipment to prepare meeting notices, he contacted a TWU clerical employee in New York who prepared the notices which he had drafted.2 Mr. Trotti had two notices prepared.

The notice for Phoenix, Arizona had a head line from TWU Local 580. The notice urged the employees to attend an "Election Info Meetings for All AWA Ramp, Cargo & Leads." Within the notice the sentence "Bring Your Ballot With You" was in bold print and underlined. Below that sentence in smaller print it read, "There will be Someone There to Answer Your Questions." The notice continued providing for a meeting room at the airport and dates and times of the meetings.

The meeting notice for employees in Columbus, Ohio also advised employees to "Bring Your Ballot With You," in bold print and underlined. It read essentially the same as the notice in Phoenix except that the meetings were scheduled for different dates and times and at an airport meeting area at the Columbus airport.

Mr. Trotti testified that he put on the meeting notices that employees should "Bring your Ballot with You" because in an earlier election, many employees had failed to fill out the back of the ballot envelope where the voter is required to print and sign his or her name. This resulted in several ballots not being opened and counted.3 Mr. Trotti disclosed that the Organization, through its newsletter, had communicated the importance of filling in the back of the ballot return envelope.4

Mr. Trotti had 200 copies of each meeting notice duplicated and delivered them to the active in-house organizers in Phoenix and Columbus around the time the ballots were mailed on December 7, 1998.

III.

In Phoenix, the organizing contact for the Fleet Service Employees is Pat Rezler. Mr. Rezler acknowledged that he is widely considered the "union guy" on the property. Mr. Rezler is a full-time Fleet Service Employee at America West and serves as the secretary-treasurer of Local Union 580. Mr. Rezler was responsible for the organizing efforts in Phoenix. On or about Friday, December 4,1998, Mr. Trotti delivered about 200 copies of the meeting notice for the Phoenix Fleet Service Employees to Mr. Rezler to pass out.

Over that weekend, Mr. Rezler prepared a letter on his home computer to pass out with the meeting notice. The letter read, in pertinent part, as follows:

To All Rampers:

Over the last two years I have pushed union to try to better this place. On January 8, 1999, we'll find out if my hard work has been worth it. Without beating around the bush, I would like each and every person voting to bring your ballot up to the Terminal 4 Meeting Room to show me that my hard work has paid off.

All the field stations I've talked to are worried about PHX because we have the most people. I want to prove that PHX is carrying our fair share of the vote. I know some of you want it to be secret whether you vote or not. That's fine. As long as you vote, I'm happy.

For those of you willing to turn in your ballot upstairs, I don't care who you vote for, just that you voted. For those of you who haven't been up to the Meeting Room in Terminal 4, here are some directions. . . .

For those of you who would like to turn your ballots in at the Local 580 office, here is schedule of when we'll have the office open. . . .

The letter was signed by Mr. Rezler. Mr. Rezler states that neither Mr. Trotti nor any other person associated with TWU had knowledge that he was preparing this letter. Mr. Rezler stapled copies of his letter to the Phoenix meeting notice he had received from Mr. Trotti.

On Monday morning, December 7, 1998, Mr. Rezler went to the employee break rooms in Concourses A and B and passed out the letter and the flyer to approximately 35 employees he knew to be supportive of the TWU. Later that morning, an employee approached Mr. Rezler and stated that in his opinion the letter was too personal. The employee suggested that Mr. Rezler tear off the top three paragraphs of the letter and pass out the remainder of the letter beginning with the paragraph that reads, "For those of you who would like to turn your ballots in at the Local 580 office . . . ." Mr. Rezler agreed. He then took the remaining letters, removed the top part of the letters and stapled the bottom part of the letter to the meeting notice. Mr. Rezler left several copies of the letter (in the shortened format) attached to the meeting notice in the break rooms and gave some to three other employees to pass out. Mr. Rezler did not post the letter or the notice on bulletin boards and did not place any union literature in employee mailboxes. Mr. Rezler stated that he never observed the letter or the meeting notice on any bulletin boards or in any employee mail boxes.

Mr. Trotti was at the Meeting Room in Terminal 4 on the dates set forth in the meeting notice. Mr. Rezler joined him on two of the scheduled days. On three of the scheduled days, December 11, 13 and 17, 1998, no employees showed up at the meeting room.

On Monday, December 14, 1998, approximately ten employees came up to the Terminal 4 Meeting Room. Mr. Trotti testified that some of the employees arrived with their ballots which were in the sealed return envelopes. Mr. Trotti told them that they could give their ballots to him to mail. Two or three employees chose to do so. Mr. Trotti directed them to drop the ballot in an open U.S. Postal Service bin that he had by the table in the meeting room. No employee handed their ballot directly to Mr. Trotti. No employee filled out their ballot in the meeting room. After the meeting, Mr. Trotti states he took the ballots downstairs to a U.S. mailbox inside the airport terminal.

On Tuesday, December 15, 1998, twenty employees showed up at the meeting room. Four or five of those employees dropped their sealed ballot envelopes into the mail bin by the table in the meeting room. On Wednesday, December 16, 1998, fifteen employees showed up at the meeting and two left their sealed ballot envelopes in the mail bin by the table in the meeting room. On both days, Mr. Trotti took the ballots in the bin directly to the U.S. mailbox.

On Friday, December 18, 1998, five employees showed up. They all sought information on how to obtain a duplicate ballot from the NMB.

The other employees who showed up at the meetings above who did not bring their ballot or leave their ballot with the Organization came for various reasons. Several appeared seeking information on how to obtain a duplicate ballot. Some stopped by to speak with Mr. Trotti to see how the campaign was going.

No employees ever appeared at the local union office at the times listed in Mr. Rezler's letter. No ballots were collected at any other time, either in the work place or at any social or other gathering.5

IV.

TWU's campaign in Columbus, Ohio was under the direction of Sean Doyle, a TWU Section Chairman. An America West employee, David Stull, was active in the Columbus campaign. Mr. Doyle received copies of the meeting notice from Mr. Trotti. Mr. Stull and other employees distributed the Columbus meeting notice. Mr. Stull and Mr. Doyle both stated that it was their understanding that employees who brought their ballots to the meeting would be told to properly sign the back of the ballot return envelope and would be directed to the U.S. mailbox down the hallway from the meeting room.

Although some employees came to the Columbus meetings, no ballots were ever collected in Columbus. Any employee arriving with a ballot was told to make sure they had signed the back of the ballot and was advised to proceed to the mail box down the hall and mail the ballot themselves. There is no evidence any ballots were collected in Columbus.

V.

Prior to the mailing of the ballots, the NMB sent out a sample ballot which included the Notice of Election and the Rules of Election. These documents were posted by the Carrier at each work location. Moreover, the same document was received by each employee eligible to vote in the craft or class. In several places, the ballot clearly stated that it is a secret ballot. For example, under the section which details the "Rules of Election," the paragraph entitled "Balloting" read, in pertinent part, "In the event the election is conducted by the United States Mail, official secret ballots will be mailed by the Mediator to the eligible voters." (emphasis supplied.) Under the "Supervision of Election" paragraph it read, in pertinent part, "Only the Mediator or Board Representative and an individual voter will be allowed to handle the ballot in order to maintain its secrecy." Finally, the last paragraph under the instructions read, "After the envelope has been checked against the eligibility list, your ballot will be removed and thoroughly mixed with other ballots before being counted by the Mediator, thus insuring complete secrecy."

The ballot itself in two locations stated that it is a secret ballot. In the first paragraph of text, it read, "The National Mediation Board is taking a SECRET BALLOT in order to ascertain and to certify the name or names of organizations or individuals designated and authorized for purposes of the Railway Labor Act." At the bottom of the ballot, it read, "This is a SECRET BALLOT. DO NOT SIGN YOUR NAME."

DISCUSSION

In determining whether the laboratory conditions essential to a fair election have been tainted, the Board considers the totality of facts and circumstances as established through its investigation. The Board evaluates the facts developed from submissions provided by the Organization and the Carrier, the Board Representatives' investigation, and past Board experience. Southwest Airlines, 21 NMB 332 (1994); Continental Airlines/Continental Express, 21 NMB 229 (1994); Evergreen International Airlines, 20 NMB 675 (1993); Federal Express Corporation, 20 NMB 486 (1993).

The Board frequently has stated that "while the tests for union interference and carrier interference are the same – whether the laboratory conditions have been [tainted] – because of the unique power and authority which carriers possess in the workplace, application of this standard to effectively identical factual situations . . . may lead to different conclusions." United Air Lines, Inc., 22 NMB 288, 318 (1995), citing Air Wisconsin, 16 NMB 235, 239-40 (1989). The Board has applied this principle in cases involving allegations of union interference and found certain campaign activity, which engaged in by an organization, rather than by a carrier, is not coercive, as it does "not produce the same effect on employees." United at 318, citing Federal Express Corp., 20 NMB 659, 665 (1993).

In United, supra, the Board addressed the primacy of ballot secrecy, stating:

In view of the importance of maintaining the integrity of the NMB's secret ballot process, the Board hereby reaffirms its policy that NMB elections are to be conducted in such a manner as to ensure ballot secrecy. The collection of ballots is inconsistent with such secrecy. The NMB's ballot, the instructions accompanying the ballot, and the Representation Manual all emphasize the need for confidentiality in the election process. Simply stated, the ballot materials are mailed to the employee and the ballot system rests on the premise that the employee is to return the ballot directly to the NMB in the postage paid return envelope if the employee intends to vote for representation.

Id. at 320.

In United, the Board found that several ballots had been collected from individual eligible voters by various employees who were IAM stewards and committeemen in San Francisco. There, the Board determined that this activity compromised the secret ballot process, but also concluded that there was "no evidence that coercive tactics were utilized to collect the ballots, that any ballots which had been collected were discarded, or that there was interference in the balloting itself." Id. at 320. The Board further found that the ballot collection activity did not constitute a systematic endeavor by the Organization. Id. The Board concluded that while the activity in that case did not provide a basis for refusing to certify the election, the conduct merited remedial action. Therefore, the Board reduced the certification bar by six months, stating,

This action gives notice to the labor/management community that ballot collection or other actions that compromise the secrecy of the NMB ballot process will be met by appropriate agency responses.

Id. at 321.

The collection of ballots, whether open or sealed, violates the secrecy of the ballot. As the Board stated in Laker Airways, Ltd., 8 NMB 236, 249 (1981), "Given the procedure used in Board elections requiring that the majority of eligible employees cast valid ballots for representation in order for there to be a certification, soliciting employees to turn in their ballots . . . is analogous to polling employees about their views."

The essential facts are not in dispute. The record in this case, and the admission of the TWU, is that approximately ten ballots were collected. This constitutes activity which compromises the secret ballot process. The TWU argues that the collection was not systematic because it was not done with the knowledge of TWU headquarters and the effort was limited to two locations. The evidence reflects, however, that the collection was orchestrated by the very person charged with heading the organizing effort by the union, Frank Trotti. Mr. Trotti prepared the meeting notices which solicited the collection of ballots. He ensured that these notices were delivered to employees in the locations with large numbers of potential voters – Phoenix and Columbus. His lead organizer in Phoenix reiterated the importance of turning in ballots in a letter also passed out to the employees. While in United, the Board found that the union's conduct was not systematic but was conducted by low level IAM stewards and committeemen who were employees of the Carrier, here the facts and admissions lead to the conclusion that the efforts were systematic because they were orchestrated by Mr. Trotti. Based on the evidence presented, the Board finds that the Local Union 580 would have collected as many ballots as employees were willing to turn in at the meetings. The Board finds that the TWU International officers were not aware of the conduct even though Mr. Trotti used the New York office to prepare the meeting notices.

Nevertheless, as in United, there are several factors in this case which lead the Board to conclude that the collection of ballots did not affect the outcome of the election. The overall number of ballots collected is small compared to the total votes cast. The fact that very few employees attended the meetings, and even fewer brought their ballots, demonstrates that the effort at collection failed. There is no evidence that any coercive tactics were utilized to collect ballots. Indeed, the very fact that so few employees came to the meetings is demonstrative of the lack of coercion in this case.

Therefore, the ballot collection activity which occurred here does not provide a basis for refusing to certify the results of the election.

In United, the Board put the labor/management community on notice that ballot collection would be met by appropriate agency responses. Ballot collection will not and cannot be tolerated and the Board will consider each case on the facts presented. The Board concludes that the TWU's conduct herein triggers the "unusual or extraordinary circumstances" provisions of NMB Rules Section 1206.4. Given the facts in this case, the standard two-year certification bar period will be reduced to one year from the date of the certification.

CONCLUSION

Based upon the foregoing, the Board finds that the laboratory conditions in the election involving America West's Fleet Service Employees were not tainted. However, the Board finds that ballot collection undertaken and attempted by the TWU in Phoenix, Arizona, raises serious concerns about the confidentiality of the voting process, and therefore calls for responsive action. Accordingly, the Board will shorten its normal bar period as set forth in Section 1206.4(a) of the Board's Rules. The bar period in this case will expire one year after the date of this decision.

CERTIFICATION

NOW, THEREFORE, in accordance with Section 2, Ninth, of the Railway Labor Act, as amended, and based upon its investigation pursuant thereto, the National Mediation Board certifies that the Transport Workers Union of America, AFL-CIO, (TWU) has been duly designated and authorized to represent for the purposes of the Railway Labor Act, as amended, the

craft or class of Fleet Service Employees, employees of America West Airlines, Inc., its successors and assigns.

By direction of the NATIONAL MEDIATION BOARD

Stephen E. Crable

Chief of Staff

Copies to:

Mr. John J. Kerrigan

Arthur M. Luby, Esq.

Robert A. Siegel, Esq.

Chris A. Hollinger, Esq.

Mr. Gregory M. Garger