In the Matter of the

Application of the

PAPER, ALLIED, CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION

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

involving employees of

EXPRESS AIRLINES I, INC.

28 NMB No. 74

CASE NO. R-6805

FINDINGS UPON

INVESTIGATION- ORDER

June 21, 2001

This decision resolves election interference allegations filed by the Paper, Allied, Chemical and Energy Workers International Union (PACE or Organization). For the reasons below, the National Mediation Board (Board) finds that there is insufficient evidence of interference and dismisses the allegations.

PROCEDURAL BACKGROUND

On February 7, 2001, PACE filed an application with the Board pursuant to the Railway Labor Act (Act), 45 U.S.C. § 152, Ninth, alleging a representation dispute involving Fleet and Passenger Service Employees of Express Airlines I, Inc. d/b/a Northwest Airlink (Express I or Carrier). At the time the application was received, these employees were unrepresented.

The Board assigned Benetta M. Mansfield to investigate. On February 22, 2001, the Board found a dispute existed and authorized an election. Ballots were mailed on March 5, 2001, and the count occurred on April 10, 2001. The results of the count were that of 669 eligible voters, 257 cast valid votes for representation.1 This was less than the majority required for Board certification. On April 11, 2001, the Board dismissed PACE's application. Express Airlines I, Inc., 28 NMB 369 (2001).

On April 18, 2001, PACE filed election interference allegations pursuant to the Board's Representation Manual (Manual), Section 14.0. On April 27, 2001, the Carrier filed its response to PACE's allegations of interference.

On May 2, 2001, the Board notified the participants that PACE's allegations stated a prima facie case that laboratory conditions were tainted and the Board would conduct further investigation. The Board established a schedule for filing further submissions on the interference issue. In a separate letter, the Investigator requested additional information from the Carrier.

PACE supplemented its initial filing on May 9, 2001. On May 9, 2001, Express I provided the supplemental information requested by the investigator. On May 16, 2001, the Carrier filed its response to PACE's May 9, 2001, filing.

ISSUE

Did Express I's actions taint the laboratory conditions the Board requires for a fair election?

CONTENTIONS

PACE

PACE contends that the totality of the Carrier's conduct during the election tainted laboratory conditions. PACE states that the following carrier conduct occurred during the election period when laboratory conditions must be maintained:

1. Threats to employees: Supervisor Maragarie Bearden threatened an employee with the loss of a raise and flight privileges in retaliation for voting for the union. Supervisor Carlos Hawkins threatened employees at a meeting with the loss of overtime and other benefits if the union won the election.

2. Pushback pay: In January 2001, the Carrier promised the employees a $2 per hour raise for pushback duties. The Carrier then negotiated or appeared to negotiate with rank and file employees who "ratified" a pushback pay rate of $1.30 during a committee meeting. This agreement was announced to the employees through a memorandum on April 10, 2001, (the date of the ballot count).

3. Prohibiting solicitation and distribution of PACE literature: Alan Stump, a Chief Pilot for Mesaba Airlines, threatened Express I employees with discharge for distribution of union literature in the C Concourse break room. Supervisor Jesse Jennings threatened to throw away union literature and any other personal belongings left in the break room. Supervisor Jennings further stated that any employee caught distributing union literature would be fired.

4. Misrepresentations: The Carrier sent a videotape to all employees at their homes which misrepresented the PACE-represented flight attendants, pay increase and wrongly stated that PACE tried to do away with part-time flight attendants during negotiations. The videotape also included misleading statements about the obligation to pay union dues and strikes by PACE.

5. Destruction of ballots: The Carrier solicited employees to destroy their ballots both on the videotape and in a document entitled "The National Mediation Board Election Process," which was styled as a Board document and misled employees.

6. Other allegations: The Carrier held mandatory meetings where employees had to view the videotape.

The Organization requests that the Board conduct a re-run election using a "Laker" ballot.

Express I

The Carrier denies interfering with the election and asks the Board to dismiss the allegations. Express I states "there was no pervasive anti-union campaign, just the carrier exercising its right to express its opinion on the issue of unionization." Express I also states that throughout the campaign it communicated that it would honor the employees' choice without any adverse ramifications. Express I notes that it engaged in extraordinary efforts to ensure employee free choice. The Carrier engaged outside counsel to train all of its managers about the do's and don'ts of a union campaign.

The Carrier contends that there were no misrepresentations in the videotape. The videotape carefully and accurately stated the annual wage increase for the flight attendants, the organization's position in the negotiations on part-timers, that strikes are a possibility, and that an employee can be terminated for non-payment of dues and fees.

The Carrier further contends that it accurately told the employees that they could vote against PACE by destroying their ballot, not returning their ballot to the Board, or marking their ballot "void." The Carrier notes that the document which PACE refers to is clearly not a Board document.

As to the pushback pay program, the Carrier states that it was planned long before the Carrier became aware of PACE's campaign. The Carrier states that it decided to pay extra for pushback duties in October 2000, and that the pay would be effective January 2, 2001. The Carrier states that it announced this to the employees at meetings in November and December 2000. At those meetings, the Carrier contends it stated that the pay would increase to $9 per hour (which would be approximately a $1.30 increase per hour). The Carrier further states that administrative delays resulted in not implementing the pushback pay program until April 10. Since there were already employees earning $9 per hour, the Carrier decided to make the amount a straight $1.30 increase. The Carrier contends that it never stated that there would be a $2 per hour pushback pay rate. The employees who met with management to review the pushback pay program were randomly selected and did not negotiate, ratify, or change the program. Moreover, the Carrier argues, the announcement was on the day of the ballot count and, therefore, could not have interfered with the election.

The Carrier denies there were any threats by supervisors to employees. As to the posting of literature, the Carrier states that it has a policy that any materials on the walls is a violation. At a training session held shortly after the Carrier learned of PACE's campaign, the Carrier states that the supervisors were advised that employees who posted in violation of this policy should be told not to do so again, and they would be subject to discipline if they violated Express I's policy again.

The Carrier asks the Board to dismiss the allegations. The Carrier argues, however, if the Board determines a re-run election is appropriate, it should be conducted using a standard ballot.

II

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.

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

II.

PACE 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.

STATEMENT OF FACTS

PACE and the Carrier state that the laboratory conditions attached sometime between January 6 and 12, 2001.

I. Pushback Pay

Express I entered into a contract with Mesaba Airlines to pushback aircraft in February 2000. Initially, the work was assigned to Express I mechanics. In October 2000, the Carrier decided to switch the pushback work to the agents. The Carrier advised the passenger and fleet service employees of this at the November and December 2000 monthly "Customer Service" meetings it holds with employees. Carrier minutes from the November 16, 2000, meeting state:

We'll be taking over "pushback" for CRJ's in January. Training will begin soon after Thanksgiving. There is an override premium for this job designation. Interested employees should apply now.

Carrier minutes from the December 15, 2000, meeting state:

Effective 1/1/01, we will take over pushback of the CRJ's from the maintenance department. The hourly pay for pushback drivers will be $9 per hour.

PACE submitted an affidavit from Arthur Crutcher, a ramp agent for the Carrier. Crutcher states that at a meeting with employees in January 2001, the Carrier stated that "there would be a $2 per hour increase for pushback-qualified employees effective January 1, 2001." 2 Crutcher further states,

When the pushback increase was originally announced, the carrier stated it would be a starting hourly pay rate from $7.96 to a top rate of approximately $11. It stated the increase would be $2 and would be retroactive.

Implementation of the pushback pay program was delayed. Elwood Nolen, Express I's Memphis Hub Director, assumed that position on March 4, 2001. He states that soon after he was hired, he spoke to Lowe about the pushback pay issue. Nolen states that Lowe thought the pushback pay program already had been implemented and was surprised to hear that it had not. On March 19, 2001, Nolen attended a manager meeting to discuss the outstanding issues involving implementation of pushback pay, including how to treat the C Concourse employees performing the work; the necessary qualifications for an agent to perform pushback operations; how much the pushback pay premium would be; to whom the pushback premium would be paid; and how to adjust the pay of lead agents so they would not be receiving less than agents who were not leads but were preforming pushback services. These issues were resolved at this manager meeting.

Nolen states that on March 20, 2001, he decided to hold an "impromptu meeting" among several agents "to see what their reaction to the pushback pay program would be." This meeting was attended by Nolen; Scot Schroder, Hub Ramp Manager; Carlos Hawkins, Manager, Contract Services; and Audra Jackson, Manager, Administration. Nolen states he selected a cross- section of eight employees with varying seniority, from both the A and C Concourses. Nolen states that no documents were distributed at the meeting, and the employees offered their thoughts on the program. There was no vote on the program and no changes were made as a result of the meeting. Nolen's rendition of the meeting is corroborated by Schroder.

On April 10, 2001, the date of the ballot count, Schroder posted a memorandum on the bulletin boards to "All Hub Ground Service Agents" about the "Hourly Wage for Pushback-Qualified Employees." The memorandum states,

When the Customer Service department agreed to assume jet pushback operations on A-Concourse on January 1, 2001, we elected to associate a premium wage with this task. Based on feedback from recent employee meetings, it is clear that the intent of the wage premium has not been clearly communicated; therefore, this note will clarify the program and its associated policies.

. . . .

I am happy to announce that an agreement has been reached to deliver the program. Better yet, the decision was ratified by a group of your peers this morning who had a major influence in many of its details. . . .

[P]ersons accepted into these lines/positions will receive a pay premium of $1.30 per hour. Why $1.30 per hour? Glad you asked. Assuming that our pushback drivers will have a minimum 6-months job experience . . . and the hourly wage beginning the 7th month is $7.70, this will bring the pushback driver to $9. Additionally, a stipend does not limit wage opportunity. It is a rare benefit that does not restrict employees already at or above the $9 hourly wage. . . .

There is no evidence that the Fleet and Passenger Service Employees (other than those who attended the meeting) were aware that there had been a meeting on March 20, 2001. Until the memorandum was posted on April 10, 2001, there is no evidence that the employees were aware of the implementation of the program.

II. Threats from Supervisors and Prohibition of Solicitation

A.

Employee Yvette Love Boykins stated in her affidavit that on March 3, 2001, she asked her supervisor, Maragarie Bearden, whether her raise would be placed in her next paycheck. According to Boykins, Bearden stated, "You voted for the union, didn't you?" and told her she would not receive a raise. There is no information as to whether Boykins later received a raise.

Bearden is the Carrier's Assistant Manager of Customer Service and Boykins' supervisor. Bearden states in her affidavit that Boykins' statement is an "outright lie" and that she "never asked Ms. Boykins how she intended to vote in the election, and I never told Ms. Boykins or anyone else that if they voted for the union they would not receive a pay raise." Bearden further states:

I attended mandatory training for supervisors on February 19, 2001, where we were instructed on what managers' responsibilities were during the union campaign and what the legal requirements were. We were specifically told that we should not ask employees how they intended to vote, or make any threats or promises to employees. We were also told that we should not spy on employees with respect to union matters. I followed these instructions.

B.

Arthur Crutcher states that in March 2001, he was standing in the break room when Supervisor Jesse Jennings stated that any union literature left in the break room would be thrown away. Crutcher says that Jennings also "stated that if any more 'union stuff' was distributed in the break room, whoever got caught distributing it would be fired."

Jennings is the Carrier's Luggage Cargo Manager. In his affidavit, Jennings denies that he ever made the statements attributed to him. Jennings stated that he did remove union literature from the break room because it is against Carrier policy to have any posting on those walls. Mr. Jennings further states that at the meeting where the supervisors were trained for the campaign,

We were told if employees distributed union materials or posted union materials in inappropriate places, that we should remove the materials and advise the employees that they were not to take such action again and that if they violated company policy again, they would be subject to discipline. This applied to both employees who would post union materials whether for or against the union and also to any other type of unauthorized posting.

The Carrier submitted a copy of relevant portions of its Employee Handbook. Regarding solicitation by employees, the handbook states:

Our company recognizes that employees may have interests in events and organizations outside the workplace. However, employees may not solicit or distribute literature concerning these activities during working time. Working time does not include lunch periods, work breaks, or any other periods in which employee are not on duty.

In addition, the posting of written solicitations on company bulletin boards is prohibited. These bulletin boards display important information, and employees should consult them frequently.

Employee Michael Prince, filed an affidavit stating that Alan Stump (later identified as a Mesaba Chief Pilot) made a statement in his presence on March 15, 2001, that "if any more union literature were found in the break room on C Concourse, the person distributing the literature would be fired and escorted off the property."

In an affidavit, Stump denied the allegations. He stated that he never saw any union literature in Memphis airport, never made any threats, did not have any conversations with any Express I fleet and passenger service employees about the union, and has no authority to discipline or discharge Express I employees.

C.

Employee Michelle Bearden submitted an affidavit stating that Supervisor Carlos Hawkins held a meeting on C Concourse on March 16, 2001. Bearden states that at the meeting, Hawkins told the employees that if they voted for the union, "we [the employees] would no longer receive overtime, our flight privileges would be revoked, our pay would be frozen, and we would receive no wage increases including scheduled increases, and that we would no longer receive our city team bonus." Employee Rodney Collins corroborates Ms. Bearden's statements about the meeting.

Hawkins is the Manager of Contract Services for the Carrier. In an affidavit, Hawkins states that Bearden's and Collins' statements are "flat out lies." Hawkins further states:

I never, at any point, threatened employees or told them that anything bad would happen to them if they voted for the union. In fact, just the opposite is true – I told them that although I did not personally believe that they needed a union, the choice was up to them and the Company would respect whatever decision they made. I would not and did not make the statements that are attributed to me in the Union's affidavits.

III. Communications

A. The Videotape

In a letter from Carrier President Philip H. Trenary dated March 8, 2001, the Carrier sent a videotape to each Fleet and Passenger Service employee. The letter stated, in relevant part, as follows:

Rather than sending you a bunch of flyers in the mail and holding endless meetings to make sure you are armed with the truth, we thought the enclosed video would be more effective. In addition to giving you the facts to make your own decision, I hope you will enjoy our attempt to have a little fun with the music video at the end.

. . . .

Finally, please respect those who have an opinion contrary to your own. An environment of mutual respect and tolerance is necessary to maintain a high level of Safety and Customer Service. Regardless of the outcome of the election, our entire management team and I will respect your decision.

The videotape is approximately 20 minutes long. It consists primarily of three actors portraying customer service agents of the Carrier at a restaurant. Two characters are undecided in the election campaign and one is for PACE. They are joined during a portion of the videotape by another actor depicting a PACE- represented flight attendant. The flight attendant is unhappy with PACE's representation. The scenes of their conversations are interspersed with shots of carrier workers and graphics about PACE. At the end of the tape there is a music video by "Auntie Union and the Band" singing "Respect Yourself (No No No Union)."

During the videotape, the following is stated: 1) During the flight attendant negotiations, PACE tried to do away with part- timers; 2) The flight attendants received an annual pay increase of 1.5 percent; 3) The flight attendants city team bonus was bargained away by PACE; 4) Flight attendants are required under the contract to pay dues or a service fee to the union, and if they are delinquent, they are subject to discharge; 5) The flight attendant contract is for a long term; 6) Under the "Management Rights" clause of the flight attendant contract, "the Company retains the full and complete right and power to exercise its reasonable management authority in the operations of the business"; and 7) PACE has been involved in 119 strikes from the period 1990-2000.

The videotape also sets forth the following: the salaries of union officers; the length of time it takes to reach an agreement; that any agreement reached might give the employees more, less, or remain the same; and that PACE does not have many members in the airline industry, and is interested in getting employee dues.

The videotape advised employees that, to vote against the union, they should not return the Board's ballot and tear it up. "TEAR IT UP," appeared in large letters across the screen.

On March 10, 2001, PACE International Representative Ron Spann sent a letter to Trenary which was distributed to all Fleet and Passenger Service Employees. The letter begins, "Today, I experienced a troubling and disturbing situation when I viewed your "Million Dollar Video" that so distorted the truth, that it was beyond belief." The letter addressed the "distortions" as follows:

Part Time Flight Attendants

Your video made an issue about the Part Time Flight Attendants. . . . The facts of this issue are, the Company was the one that wanted the part time employees program abolished. It was the Union that bargained to keep the part time employees and make them part of the Contract.

Wage Increases:

You insinuated that Flight Attendants only received 1.5% increase per year in their wages and you know that this is not a true statement. The truth of the matter is, the unionized flight attendants received not only the 1.5% per year increase, but also received their longevity increase which exceeded $1.50 per hour in the first year of the agreement.

Contract Term:

[Y]ou know that your negotiating team came to the bargaining table and stated that Express I needed long term stability in the contract. . . .

Management Rights:

Your video quoted a portion of the management rights clause. Why didn't you have the actors read the full sentence? Which states, "Unless specifically abridged or modified by an express term of this Agreement, the Company retains the full and complete right and power to exercise its reasonable management authority in the operation of its business."

The letter ended by requesting the Carrier to "correct the inaccurate statements in your video." On March 13, 2001, Trenary responded that he did not believe the videotape to be inaccurate.

PACE makes several allegations concerning the videotape. In his affidavit, Spann states that he participated in the negotiations for the flight attendant contract. Regarding flight pay, Spann states that the videotape suggests that the entire wage increase for flight attendants is 1.5% per year when there were substantial longevity payments in the agreement equaling a 67.6% increase over the term of the contract. On the issue of part-time flight attendants, Spann states that the Carrier did not have a part-time classification when the negotiations began. Spann states that PACE negotiated to save full-time jobs against their involuntary conversion to part-time. He states that PACE did not oppose the creation of the part-time classification.

Spann further states that in describing the dues obligation in the contract, the Carrier failed to provide information on the substantial procedural safeguards that PACE must provide to employees.

Express I provided several affidavits from managers who participated in the negotiations with PACE for the flight attendants' contract. The managers uniformly state that during the negotiations the Carrier had a well established part-time flight attendants' program; and that on several occasions during the negotiations, PACE took the position to abolish all part-time positions.

B. Other Communications

During the campaign, the Carrier sent out a flyer which PACE states improperly is disguised as a Board document and improperly advises employees to destroy their ballots. The flyer is on plain paper and entitled "The National Mediation Board Election Process." It reads as follows:

On March 12, 2001, the National Mediation Board ("NMB") will mail to your homes an official ballot that will allow you to exercise your privilege to choose whether to be represented by . . . PACE. It is important that you understand how the election process works, so that your voice can be heard, whether you are for or against third party representation.

The ballot count will take place on April 10, 2001. Under the NMB's rules, any ballot returned before the date of ballot count will be counted as a vote for union representation. The ballot has a place to vote for PACE and a place to vote for any other organization or individual. There is no place for you to vote "no union" although the NMB is required to void ballots marked "void," "no" or "no union."

In order for the union to win the election, more than fifty percent of the ramp and customer service employees eligible to vote must mail in their ballots. Under the NMB election rules, there are two ways for you to show that you do not wish to be represented by PACE. You can either destroy your ballot and not send it in, or send in your ballot with the word "VOID" written clearly across the face of it. The safest way to guarantee that your ballot is not cast in favor of union representation is simply to throw away your ballot and not return it to the Board at all.

This is a secret ballot. Neither the Company nor the Union will know if you vote or how you vote. You are under no obligation to vote, even if you signed a card in the past. It is unlawful for anyone to pressure you to send in your ballots or not to vote.

This vote on representation is extremely important to the future of our Airline and the way that the Company and the customer service people interact. You have and will continue to receive information from PACE. You will also see fliers posted by the Company. We want you to have all of the facts available to you so that you may carefully consider your options and make a fully informed choice.

In another Express I flyer about union dues, the last line reads, "You can vote NO by throwing away your ballot." The Carrier also issued a flyer about strikes and agency shop. The agency shop, flyer quotes the entire agency shop clause of the flight attendants contract but only portions of the clause regarding delinquent dues and fees. The Carrier also issued the letter which accompanied the video and one other brief letter.

PACE also communicated with the voters. They sent flyers setting up meetings. They sent a flyer about voting that reminded voters that "ALL BALLOTS NOT RETURNED IS A VOTE AGAINST YOUR UNION." The same flyer set forth the dues obligation and the dues amount. Responding to the videotape, PACE also sent out flyers detailing the benefits the flight attendants received in the contract.

C. Meetings

In an affidavit, employee Rodney Collins states that the Carrier "held meetings during employee breaks during which employees were required to watch a company-produced anti- union video. We were required to sign a statement that we had viewed the video." According to Collins, these meetings took place at approximately the same time as the meetings with Hawkins.

Hawkins states that Collins' allegations are false. Hawkins testifies that there were never any mandatory meetings during employee break periods or at all during the campaign. Hawkins further states that the Carrier did not require employees to watch the video or sign any sheet stating that they had. The Carrier did, however, have the video available. Mr. Hawkins states that after several copies of the video were returned by the post office as undeliverable, "I asked employees to sign a sheet indicating that they had received the video at home so I could determine whether everyone had gotten their copies." Hawkins states he never asked anyone whether they had watched the video.

DISCUSSION

I.

During election campaigns, a Carrier must act in a manner that does not influence, interfere, or coerce the employees' selection of a collective bargaining representative. Metroflight, Inc., 13 NMB 284 (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 established through its investigation. Petroleum Helicopters, Inc., 25 NMB 197 (1998); Evergreen International Airlines, 20 NMB 675 (1993); America West Airlines, Inc., 17 NMB 79 (1990). As the United States Supreme Court states in Texas & New Orleans Railroad Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 568 (1930):

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 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 the authority or power of either party to induce action by the other in derogation of what the statute calls "self- organization."

Under Section 2, Ninth, of the Act, the Board has broad discretion to tailor its investigation to the facts and circumstances of each case. Midway Airlines Corp., 26 NMB 41 (1998); Petroleum Helicopters, above; Florida East Coast Railway Co., 17 NMB 177 (1990).

In Key Airlines, 16 NMB 296, 310 (1989), the Board held that laboratory conditions must be maintained from the date the carrier becomes aware of the organizing drive. See also Midway, above; Petroleum Helicopters, above; America West, above at 98.

II.	Pushback Pay

Changes in working conditions during the laboratory period may taint laboratory conditions, except if the changes were planned before the laboratory conditions attached, or there is "clear and convincing evidence of a compelling business justification." Continental Airlines, Inc./Continental Express, 27 NMB 463 (2000); Air Logistics, L.L.C., 27 NMB 385 (2000); American Airlines, Inc., 26 NMB 412 (1999).

The Carrier has submitted convincing and undisputed evidence that the pushback pay was planned and announced long before the Schroder memorandum of April 10, 2001, was released and before laboratory conditions attached. Carrier meeting minutes from November and December 2000 reflect this planning and announcement. Moreover, despite the affidavit of Crutcher to the contrary, it does not appear that the Carrier definitively announced that pushback pay would equal $2 per hour. If anything, the Carrier may have at one point said something about two dollars in the context of using the $9 per hour figure. The evidence on the amount offered is inconclusive and there is no evidence that the Carrier chose the $1.30 figure to interfere with the election.

The Board has held that the mere existence of employee committees is not evidence of interference. American, above; US Airways, 24 NMB 354 (1997). The evidence presented supports the Carrier's contention that the March 20, 2001, meeting was ad hoc and was not called for the purpose of forming an employee committee. The record supports the Carrier's position that the meeting was not used as a vehicle to expand or change the pushback pay benefit, but only to assess employee opinion on the issue. American, above at 454.

The April 10, 2001, memorandum states that the benefit

was "ratified by a group of [their] peers . . . who had a major influence on the details . . . ." Despite the language of the memorandum, however, it does not appear that the group of employees negotiated or ratified the program. The evidence shows that the employees were used for their assessment of the pushback pay program. See American, above at 384.

PACE argues that "it is irrelevant whether the carrier actually created such a peer group committee [because] it materially misrepresented to employees that their interests were being protected by a sham organization as an inducement for them not to engage in real self-organization." The evidence shows that only those employees who attended the March 20, 2001, meeting knew the details of the pushback pay program. Other Fleet and Passenger Service employees became aware of the details of the program when the April 10, 2001, memorandum was posted the same date as the ballot count. In the circumstances presented here, there is no evidence that the pushback pay program interfered in the employees' choice of representative.

III. Carrier Threats and Prohibition of Solicitation

The evidence supporting Boykins' allegations of a threat by Margarie Bearden is inconclusive. The statement was allegedly made prior to the ballots even being mailed. There is no evidence that Boykins was denied any raise. Furthermore, Bearden denies making the statement.

PACE submitted two affidavits from employees stating that at a meeting on C Concourse, Supervisor Hawkins threatened employees with the loss of flight privileges and benefits if they voted for PACE. Hawkins denies making the statements attributed to him. There is no evidence in the employee affidavits about whether Hawkins called a meeting or how many employees were at the meeting. Under these circumstances, the Board finds that this incident is isolated and did not taint laboratory conditions. See American, above at 452; Continental Airlines/Continental Express, 21 NMB 229, 251 (1994).

There is also insufficient evidence that the Carrier improperly prohibited solicitation. The Carrier had a uniform rule in the employee handbook which prohibited the posting of all written solicitations. There is no evidence that the Carrier prevented PACE supporters from distributing literature in non- work areas on non-work time. Furthermore, there is no evidence that the Carrier's posting prohibitions were applied unfairly to PACE. To the contrary, the record indicated that PACE was able to distribute literature to the employees. See American, 26 NMB at 451.

The evidence of the statement by Mesaba Chief Pilot Stump is also inconclusive. Moreover, Stump does not have the ability to implement any sort of policy or discipline on behalf of the Carrier.

IV. Communications

Carriers have the right to communicate with their employees 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." Air Logistics, L.L.C.; 27 NMB 385 (2000); America West Airlines, Inc., 17 NMB 79 (1990). The Board examines the content of Carrier communications to determine whether the communications are coercive, contain material misrepresentations, or combined with other Carrier actions, influence the employees in their choice of representative. The Board finds interference where the communications include threats about the consequences of voting for an organization. See also US Air, Inc., 18 NMB 290 (1991) (misrepresentations of Board procedures); Mid Pacific Airlines, 13 NMB 278 (1968) (promises or withholding of benefits).

PACE contends that the videotape contained material misrepresentations about PACE and its contract with the flight attendants. The Carrier is not under any obligation to fully cite the contract, and the information about PACE was not inaccurate. See Delta Air Lines, Inc., 27 NMB 484, 508 (2000). The Board also notes that PACE responded to the videotape by setting forth what it contends are "accurate" statements about the flight attendant contract.

PACE also contends that the Carrier interfered with the election by telling the voters to tear up their ballots. The Board has repeatedly held that accurately portraying the way an employee can vote no is not interference with the election. Delta, above (two videotapes sent to employees advised them to "rip up" the ballot to vote no); American, above (newsletter stated "the best way to avoid a union is to tear up a ballot").

Finally, PACE contends that a Carrier flyer entitled "The National Mediation Board Election Process" misled the employees because it could be interpreted as a Board document. The document itself does not state it is a Board document or contain Board insignia. PACE has not presented any evidence that employees misunderstood the source of this document.

V. Mandatory Meetings

There is insufficient evidence that the Carrier held mandatory meetings. Nor is there sufficient evidence that employees were required to sign statements that they had viewed the videotape.

CONCLUSION AND ORDER

Based upon the totality of the circumstances, the Board finds that the laboratory conditions required for a fair election were not tainted. The allegations are therefore dismissed.

By direction of the NATIONAL MEDIATION BOARD

Stephen E. Crable

Chief of Staff

Copies to see attached list:

Joseph L. Manson, III, Esq.

Mr. Philip H. Trenary

Mr. Ron G. Spann

Lynn Agee, Esq.