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

Mesa Airlines, Inc.

26 NMB No. 74

CASE NO. R-6669

FINDINGS UPON

INVESTIGATION

August 3, 1999

This decision resolves the allegation of election interference filed by the Transport Workers Union of America, AFL-CIO (TWU) following an election in this case. Based on the findings below, the Board finds that the Carrier interfered with the conduct of the election and a re-run election is ordered using a "Laker" ballot.

On April 21, 1999, TWU filed an application pursuant to Section 2, Ninth, of the Railway Labor Act (Act), as amended, 45 U.S.C. § 152, Ninth, alleging a representation dispute among Dispatchers, employees of Mesa Airlines, Inc. (Mesa).

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

The Board assigned Benetta M. Mansfield as the investigator. On May 7, 1999, the Board found a dispute to exist and authorized an election. Ballots were mailed on May 23, 1999, and the count took place on June 18, 1999. Of twenty-one eligible voters, seven cast valid ballots for TWU and one ballot was cast for Mesa Airlines Dispatchers. This was three ballots less than the majority required for Board certification.

On June 22, 1999, TWU filed allegations of election interference by Mesa. Mesa filed a response on June 29, 1999.

On July 13, 1999, the Investigator conducted an interview with Rodena Turner Bojorquez, Mesa Vice President of Human Resources, and three of the dispatchers.

ISSUES

Did Mesa's failure to provide correct addresses for the eligible voters interfere with the conduct of the election and therefore taint the laboratory conditions? If so, what type of re-run election should the Board order?

CONTENTIONS

TWU

TWU asserts that Mesa's failure to initially provide an accurate mailing list of eligible employees pursuant to Section 11.2 of the National Mediation Board's Representation Manual, interfered with the election. The Organization states that due to this action the voters were not provided with the twenty- eight days normally allowed to return ballots to the NMB under Section 12.201 of the Representation Manual. TWU requests that the NMB re-run the election.

Mesa Airlines

Mesa admits that some of the addresses provided were incorrect and asserts that this was an innocent mistake which it took immediate action to correct when advised of the error on June 3, 1999. Mesa contends that, nevertheless, the voters had ample opportunity to receive and return their ballots. Mesa also argues that the 28-day time period cited by TWU is a "normal" but not mandatory time period. Given that the dispatchers are centrally located, they had sufficient time to return their ballots. Mesa also contends that there is no evidence that any individual who failed to receive his or her ballot requested a duplicate ballot even though this information was contained in the posted Notice of Election. Finally, Mesa argues that since TWU was advised of the problem and decided to proceed with the count, it should not be permitted to "gain a second bite at the apple."

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.

Mesa is a common carrier by air as provided by 45 U.S.C. § 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, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization . . . .

V.

45 U.S.C. § 152, Ninth, provides 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, influence, 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 . . . .

STATEMENTS OF FACTS

The facts in this case are largely undisputed. The Board required Mesa to deliver an alphabetized list of potential eligible voters to its offices on May 6, 1999. On May 7, 1999, Ms. Bojorquez sent the Investigator a list of twenty-two employees, which included their addresses, employee identification and social security numbers, along with signature samples. On May 7, 1999 the Board sent a facsimile to the parties authorizing an election. The facsimile stated, in pertinent part, "[p]ursuant 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 addresses of those employees on the list of potential eligible voters."

On May 13, 1999, the Board received the labels from Ms. Bojorquez. The labels had the same addresses for the employees as those provided on the list of potential eligible voters delivered on May 7, 1999.

On May 21, 1999, the Board mailed the ballots using the labels provided by Mesa. By June 3, 1999, thirteen of the twenty-one ballots had been returned to the Board due to wrong addresses. The Investigator compared the addresses provided by the Carrier to the addresses on the cards presented by the TWU for the showing of interest. Every address on the cards was different from the address provided on the labels from the Carrier. In a telephone conversation on June 3,1999, the Investigator advised Ms. Bojorquez that there was a serious problem with the addresses and that ballots that were undeliverable would be removed from the list of eligible voters. Ms. Bojorquez stated that the list was correct and that she had obtained it from the payroll system. The investigator advised Ms. Bojorquez to check the list again and report to the Investigator. That same day, Ms. Bojorquez called back and told the Investigator that there were some problems with the list, and that she would send a new list right away. The new list of employees with the "correct" addresses arrived at the Board via facsimile on June 3, 1999.1

By June 9, 1999, eight more ballots were returned with bad addresses. While the Board remailed ballots to all twenty-one employees whose ballots were returned, only eight ballot envelopes were returned by the ballot count on June 18, 1999. An additional two ballot envelopes were received after the ballot count and therefore were not opened.

The labels and the initial list provided by Ms. Bojorquez did not contain any correct addresses. At least half of the addresses provided were correct addresses for employees on the list, but were provided for the wrong employee.2

On June 18, 1999, prior to the count, the Investigator asked Ms. Bojorquez whether any Carrier representative would be attending the count. After Ms. Bojorquez advised her that no Carrier representative would be present, the Investigator told Ms. Bojorquez that she intended to advise the TWU of what had occurred and give them the option of delaying the count for two more weeks or proceeding with the count. At the count, TWU decided to proceed. As previously stated, of twenty-one eligible voters, seven cast valid ballots for TWU and one ballot was cast for Mesa Airlines Dispatchers. This result was three ballots less than the majority required for Board certification.

On July 13, 1999, the Investigator interviewed Ms. Bojorquez at Mesa's offices in Phoenix, Arizona. Ms. Bojorquez stated that she had initially created the list on a "Report Writer" and transferred it to an "Excel" sheet. She then stated that she deleted the names of employees who work as crew trackers or who are management officials. Ms. Bojorquez further stated that she is not sure how she prepared the initial list but suspects that she failed to sort all of the columns in the data spread sheet. The Investigator asked Ms. Bojorquez to recreate the initial list. When Ms. Bojorquez attempted to recreate the original list in the Investigator's presence, she was unable to do so without "cutting and pasting" individual addresses to other employees. Ms. Bojorquez denies that she intentionally provided wrong addresses on the initial list and labels.

The Investigator then interviewed three dispatchers. She was advised that at least four dispatchers received their ballots within three days of the count and did not return the ballots because the ballots would not arrive in time. These dispatchers were aware of other employees who received their ballots on the week of the count.

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 shall investigate such claims. Key Airlines, 16 NMB 296 (1989); Metroflight, Inc., 13 NMB 284 (1986).

Under Section 11.2 of the Representation Manual, the Carrier is obligated to provide to the NMB, upon request, "alphabetized peel-off gummed labels bearing the full names and current addresses of all employees on the list of potential eligible voters." (Emphasis supplied.) In this case, there is no question that Mesa failed to provide accurate information to the Board. This action resulted in all the ballots being mailed to the improper addresses.

Whether by malfeasance or misfeasance, Ms. Bojorquez's actions interfered with this election. This is apparent by the number of ballots returned for wrong addresses, the number of ballots ultimately received, and the statements of the dispatchers.

II.

Mesa argues that the employees could have requested duplicate ballots. This claim is unavailing in the present context. It is not the employees' responsibility to request their own ballots. Rather, the burden is on the Carrier to provide accurate addresses from its files. Cf. Federal Express Corporation, 20 NMB 7 (1992) (organization failed to provide sufficient evidence that the address list was inaccurate or that the carrier deliberately provided erroneous labels from the list to undermine the election) In the one Board decision where a Carrier provided many inaccurate addresses, the Board extended the voting period for those employees not on the original list. See Trans World Airlines, Inc., 8 NMB 278 (1981).

Mesa also argues that even when the ballots were remailed to the correct addresses, the employees had sufficient time to vote. The language of Section 12.201, states that the Board "will establish a time period for mail ballot voting of no less than 28 calendar days between the date of mailing of ballots to voters and the return of ballots to the NMB." This section ensures that employees will have sufficient time to evaluate their choices and to return their ballots to the Board by the count date. Twenty-eight days is provided in the Representation Manual as a minimum time for the voting period.

The Board finds that, as readily apparent from the record, the evidence establishes that the Carrier interfered with the opportunity of the employees to make a choice concerning representation.

III.

The Board relies on Carriers to provide accurate mailing labels for the voters in the craft or class. Mesa's unprecedented action of providing wholly inaccurate labels seriously undermines the integrity of the Board's election procedures. This conduct is per se interference which impairs the employees' free choice of a representative in violation of Section 2, Ninth, of the Act. As the Board recently stated in Northwest Airlines, Inc., 26 NMB 269, 300 (1999), "[the Board] will take appropriate responsive action against any participant in its representation investigations who attempts to advantage itself in the election process by conduct which exceeds legal and professional standards."

In carrier interference cases, the Board has employed a variety of special ballots and notices intended to eliminate the taint of interference on the employees' freedom of choice. One approach is a "Laker" election. 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. See Laker Airways, Ltd., 8 NMB 236 (1981). Given the serious nature of the per se interference here, and the parallel consequence of undermining the Board's election processes, the Board orders a re-run using a "Laker" ballot.

CONCLUSION AND ORDER

The Board finds that the laboratory conditions required for a fair election were tainted. The Board's finding is based on the actions of Mesa in providing wholly inaccurate address labels. The Board has determined that this action was per se interference. Therefore, pursuant to its authority under Section 2, Ninth, the Board ORDERS a re-run election among Mesa's Dispatchers using a "Laker" ballot. The choices on the ballot will be TWU and "No Representation." Space for write-in votes will not appear. The majority of votes cast will determine the outcome.

A copy of this decision will be mailed by the Board to all eligible employees in the Dispatcher craft or class. Within five calendar days of the date of this decision, Mesa will provide two sets of alphabetized peel-off gummed labels bearing the full names and current addresses of all employees on the list of potential eligible voters using the cut-off date of April 17, 1999.

By direction of the NATIONAL MEDIATION BOARD

Stephen E. Crable

Chief of Staff

Copy to:

Ms. Rodena Turner

Peter J. Petesch, Esq.

Michael J. Gaugh, Esq.

Mr. John J. Kerrigan

David Rosen, Esq.

Arthur Luby, Esq.