Petition for Writ of Certiorari — Horizon Air Industries, Inc. v. National Mediation Board
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( Supreme Court, U.S.
FILED
00 1297 FEB 132008
NO. —opmoe oF THE CLERK
3n the
Supreme Court of the Anited States
HORIZON AIR INDUSTRIES, INC.,
; Petitioner,
Vv.
NATIONAL MEDIATION BOARD and,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFERS, WAREHOUSEMEN AND HELPERS, AFI-CIO,
Respondents.
On Petition For Writ Or CERTIORARI
To Tue Unitep States Court OF APPEALS
For Tue Nints Circuit
PETITION FOR WRIT OF CERTIORARI
MICHAEL R. Scott
Counsel of Record
Eric D. LANSVERK
HILuis CLARK MARTIN &
PETERSON, P.S.
500 GALLAND BUILDING
1221 SECOND AVENUE
SEATTLE, WA 98101-2925
(206) 623-1745
Counsel for Petitioner
~ BECKER GALLAGHER LEGAL PUBLISHING, INC.,
CINCINNATI, OHIO 800-890-5001
\\SeP
QUESTIONS PRESENTED
i Whether the court, in reviewing a claim that the
National Mediation Board violated a carrier’s First
Amendment right of free speech, should conduct a full and
independent examination of the record (as held by the Court
of Appeals for the District of Columbia Circuit), or take only
a “peek at the merits” (as held by the Court of Appeals for
the Ninth Circuit).
y 9 Whether the First Amendment protects a carrier’s
right to communicate to its employees its view that a pre-
existing employee committee should be considered as an
alternative to representation by a national union.
PARTIES TO THE PROCEEDING
Petitioner
Horizon Air Industries, Inc. The petitioner is a wholly owned
subsidiary of Alaska Air Group, Inc., which is a publicly
traded company. ,
Respondents
National Mediation Board and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, AFL-
CIO.
ii
ene nee
TABLE OF CONTENTS
QUESTIONS PRESENTED ............02000- i
PARTIES TO THE PROCEEDING ............. ii
Se STREN ED ek oe CAN e6 vs cen ds iii
py OP Te Py tt eee eee ree rere ee vi
Perr re ert eee eee |
REE o'o.d'b OR a oh eee ere ees ce nue |
CONSTITUTIONAL AND STATUTORY
sy tes 8 Ge BS re 1
RERREEINEE GEE" SUMED SAAUMES 6 occ tc ewceescas 3
A. ST ee eee ee eee 3
B. The Existing Employee
Committee and Horizon’s
Communications with Its Pilots
During the Union Campaign ........ 4
G. The NMB’s Investigation and
DS Cia ee ene ea hese eee 5
D. PUN OEE owe we eceeseuses 7
REASONS FOR GRANTING THE WRIT .........
I. The Ninth Circuit’s Decision
Conflicts with a Directly
Related Decision of the D.C.
Circuit and with Supreme
Court Decisions Regarding
Judicial Review of First
Amendment Claims. .............. 9
Il. The Ninth Circuit Also
Differed with the D.C. Circuit
in Declining to Apply Gissel. ........ 12
Ill. The Ninth Circuit Erred in
Concluding the NMB Did Not
Violate Horizon’s’ First
Ammomt@enemt Rigms. 2... ees if
IV. This Petition Raises Important
Federal Constitutional and
statutory Questioms. .... 1... eee 15
a PT Serer eres eee 16
APPENDICES
Appendix A
Ninth Circuit Opinion, March 21, 2000 ...... la
Appendix B
District Court Order on Motion to Dismiss,
Pe Oe OE ek So hk cabs ak ee ae 29a
iV
Appendix C
National Mediation Board Findings
Upon Investigation—Order,
July 24, 1997 ow ccc ccc cnc encccces 31a
TABLE OF AUTHORITIES
Cases
American West Airlines, Inc. v. NMB,
119 F.3d 772 (9th Cir. 1997) .......... 10, 11
Barthelemy v. Airline Pilots Ass'n,
897 F.2d 999 (9th Cir. 1990) ............ 15
Bose Corp. v. Consumers Union of United States, Inc. ,
468 U.S. SES (ISSO cv cccccccesace 11, 12, 15
Brotherhood of Maintenance of Way Employees v.
Grand Trunk Western Ry.,
961 F.2d 1245 (6th Cir. 1992) ............ 10
Brotherhood of Ry. and Steamship Clerks v. Association
for the Benefit of Non-Contract Employees,
300 U.S. 650. 0966)... eesti 9, 15
Horizon Airlines,
24 N.M.B. 458 (1997) .......... 5, 6, 12, 14
Horizon Air Indus., Inc. v. NMB,
232 F.3d 1126 (9th Cir. 2000) .. 8; 10, 11, 13, 14
Hudgens v. NLRB,
ee OF Peer ee a 15
Hurley v. Irish-American Gay, Lesbian and Bisexual Group,
SOs Us FOr CHOU 6 0c ata nekebeee ee 12
New York Times Co. v. Sullivan,
oy Sie 7: Peewee 11
NLRB vy. Gissel Packing Co.,
395 U.S. 575 (1969)... ce eee eee passim
NLRB v. Northeastern Univ.,
601 F.2d 1208 (ist Cir. 1979) .......-555- 15
Professional Cabin Crew Ass'n v. NMB,
872 F.2d 456 (D.C. Cir. 1989) .........+.--- 10
Railway Labor Executives’ Ass’n v. NMB,
29 F.3d 655 (D.C. Cir. 1994) ........-555: 10
Russell v. NMB,
714 F.2d 1332 (Sth Cir. 1983) ..........+-- 10
Switchmen’s Union v. NMB,
De @ 2)... eee 10, 11
Turner Broad. Sys., Inc. v. FCC,
rae 0 | rrr 14
U.S. Airways, 24 N.M.B: 354 (1997) ..... 5, 6, 13, 14
U.S. Airways, Inc. v. NMB,
177 F.3d 985 (D.C. Cir. 1999) ......... passim
United States v. Feaster,
410 F.2d 1354 (Sth Cir. 1969) .........--- 10
Constitutional Provisi 1 Statut
hie. & arr rrr rer passim
29 U.S.C. 8128S) cc reece l
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KR PPP TET rrr rT ree rere Try 7
Se es Dn 6.6.6 5-0 0:50.56 056-050 455 4 e4 15
Gas UD 0 8s 68s FA vie een eeeenn 2,9
Vili
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Ninth Circuit is reported at 232 F.3d 1126 (9th Cir.
2000), and is included in Appendix A at la-28a. The order
of the District Court for the Western District of Washington
is included in Appendix B at 29a-30a. The Findings Upon
Investigation—Order of the National Mediation Board is
reported at 24 N.M.B. 458 (July 24, 1997), and is included
in Appendix C at 31a-90a.
JURISDICTION
The United States Court of Appeals for the Ninth
Circuit filed its opinion on November 21, 2000. This Petition
for Writ of Certiorari is filed within ninety days of the entry
of the opinion. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. Const. amend. I
Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
Railway Labor Act
45 U.S.C. § 152, Ninth
Ninth. Disputes as to identity of representatives;
designation by Mediation Board; secret
elections.
If any dispute shall arise among a carrier's employees
as to who are the representatives of such employees
designated and authorized in accordance with the
requirements of this chapter, it shall be the duty of the
Mediation Board, upon request of either party to the dispute,
to investigate such dispute and to certify to both parties, in
writing, within thirty days after the receipt of the invocation
of its services, the name or names of the individuals or
organizations that have been designated and authorized to
represent the employees involved in the dispute, and certify
the same to the carrier. Upon receipt of such certification the
carrier shall treat with the representative so certified as the
representative of the craft or class for the purposes of this
chapter. In such an investigation, the Mediation Board shall
be authorized to take a secret ballot of the employees
involved, or to utilize any other appropriate method of
ascertaining the names of their duly designated and authorized
representatives in such 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 for the purposes herein indicated the
Board shall designate who may participate in the election and
establish the rules to govern the election, or may appoint a
committee of three neutral persons who after hearing shall
within ten days designate the employees who may participate
in the election. The Board shall have access to and have
power to make copies of the books and records of the carriers
to obtain and utilize such information as may be deemed
2
necessary by it to carry out the purposes and provisions of
this paragraph.
STATEMENT OF THE CASE
A. Summary
In 1995, following an organizing campaign by the
International Brotherhood of Teamsters (“Teamsters”) at
Horizon Air Industries, Inc. (‘Horizon”), a regional airline,
the National Mediation Board (“NMB” or “Board”)
conducted a representation election. Horizon’s pilots failed
to approve the Teamsters as their bargaining representative.
The Teamsters filed a complaint with the NMB, alleging
interference by Horizon in the election. Eighteen months
later, the NMB ordered a new election. The NMB’s order
was based in substantial part on its finding that Horizon’s
communications with its pilots, advocating an existing
employee committee as an alternative to unionization,
constituted “interference” in the first election. (App. C at
85a.) The NMB required Horizon to post a notice concerning
the Board’s findings of interference, and ordered Horizon to
refrain from further interference during the second election.
In late 1997, the pilots cast their second set of ballots and
approved the Teamsters as their representative. Horizon filed
suit in the Western District of Washington, alleging, inter
alia, that the NMB had infringed its First Amendment rights
by basing its order on constitutionally protected speech. The _
district court granted summary judgment in favor of the NMB
and Teamsters, and dismissed the case with prejudice.
Horizon timely appealed to the Ninth Circuit. The appellate
court, after only a “peek at the merits,” affirmed the district
court. The court declined to follow the D.C. Circuit’s
holding in a directly related case, U.S. Airways v. NMB, 177
F.3d 985 (D.C. Cir. 1999), and refused to apply NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969) (defining an
employer’s First Amendment right to communicate its views
-about unionism or a particular union).
B. The Existing Employee Committee and Horizon’s
Communications with Its Pilots During the Union
Campaign
In 1984, Horizon established a “lead pilot program”
to improve communications between the airline’s management
and its pilots. Over the years the program evolved into the
“Pilot Representatives” (“PIREPS”) Program. In 1988,-
representatives from PIREPS and Horizon management
negotiated the terms of a Flight Crew Policy Handbook, and
signed an agreement that made the Handbook binding, with
changes permitted only by agreement of the company and
PIREPS. The Flight Crew Policy Handbook was renegotiated
and its term extended twice prior to 1995.
The Teamsters initially campaigned for unionization
of Horizon’s pilots in late 1993 and early 1994. Having
failed to garner enough support to trigger an election, the
Teamsters abandoned the effort in mid-1994.
In 1995, after a year of tremendous growth, Horizon’s
management and PIREPS met to resolve strains that growth
had put on the Flight Crew Policy Handbook. The Pilot
Representatives and management discussed a number of
issues, but the meetings were hampered by organizational
difficulties within Horizon management, including the lack of
a specific individual in management assigned to work with
PIREPS. In March 1995, the PIREPS board resigned in
frustration. Addressing the pilots’ concerns, Horizon’s
management implemented several immediate changes, and a
new PIREPS board was elected to continue discussions with
4
management. In the midst of this management-pilot tension,
the Teamsters re-entered the representation debate, and
announced the launch of a new unionization campaign.
In the months before the September 1995
representation election, various members of Horizon’s
management communicated directly with the pilots regarding
the Teamsters campaign and the PIREPS Program. While
acknowledging the pilots’ right to choose their representative,
the managers expressed their view that a national union like
the Teamsters was not in the best interest of Horizon’s pilots,
and urged the pilots to consider the PIREPS Program as an
effective alternative.
In January 1996, the NMB counted the ballots cast by
Horizon’s pilots. Finding that less than a majority of eligible
pilots had voted for representation by the Teamsters, the
NMB did not certify the Teamsters. The Teamsters then filed
charges with the NMB, alleging that Horizon had interfered
with the election.
c. The NMB’s Investigation and Order
The Teamsters filed their complaint with the NMB on
January 23, 1996. More than a year after the Teamsters’
filing, and while the NMB’s Horizon investigation remained
pending, the Communications Workers of America (“CWA”)
filed charges against U.S. Airways, Inc., on February 3,
1997, alleging carrier interference in a representation
election. U.S. Airways, 24 N.M.B. 354, 355 (1997). CWA
alleged that after it started an organizational drive,
U.S. Airways established a “system roundtable” employee
committee, and used the roundtable to significantly change
work conditions.
On June 19, 1997, four months after CWA’s
complaint was filed, the NMB issued its order in the
U.S. Airways matter. Jd. at 354. The NMB found that
U.S. Airways had interfered with the representation election
by, among other things, conducting a campaign whose “focus
. . was that the roundtable process was an alternative or
substitute for representation by a labor organization.” /d. at
388. In its decision, the NMB stated that:
The Board has determined that the following
Carrier conduct regarding employee
committees interferes with employee freedom
of choice:
(4) Carrier campaigns which indicate a
pre-existing committee is, or should be, a
substitute for a collective bargaining
representative... .
Id. at 385-86; see U.S. Airways, Inc. v. NMB, 177 F.3d 985,
987-88 (D.C. Cir. 1999).
On July 24, 1997, eighteen months after the
Teamsters’ complaint had been filed, the NMB issued its
order in the Horizon matter. Relying on its decision in U.S.
Airways, the NMB found that: “Horizon’s communication of
the message that the PIREPS program is a substitute for
unionization is a factor leading to the Board’s finding that the
carrier interfered with employee’s [sic] free choice of
representative.” Horizon Airlines, 24 N.M.B. 458, 506
(1997). (App. C at 85a.) The NMB also found that Horizon
had used the PIREPS Program to provide work rule
improvements during the campaign, but described the benefits
as “minimal.” Jd. at 508. (App. C at 86a.)
Based on its findings, the NMB ordered a re-run
election among Horizon’s pilots. Jd. at 509. (App. C at 88a.)
The NMB also ordered Horizon to post at all stations the
Board’s Notice to All Employees, stating its finding that the
carrier had interfered with the first election, and further
stating that: “The Carrier 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.” /d. at 511. (App. C at 89a-90a.)
In September 1997, the NMB counted the second set
of ballots, and certified the Teamsters as the pilots’ bargaining
representative.
D. Proceedings Below
In January 1998, Horizon filed suit in the Western
District of Washington, alleging, inter alia, that the NMB had
abridged Horizon’s First Amendment freedom of speech.
Jurisdiction in the district court was based on 28 U.S.C.
§ 1331. The NMB and the Teamsters moved to dismiss the
complaint. Without allowing oral argument, on July 2, 1998,
Judge Thomas S. Zilly signed an order presented by the
Teamsters granting the NMB’s and the Teamsters’ motions to
dismiss. (App. B at 29a-30a.) The order incorrectly states
that arguments were presented by counsel at a hearing.
On July 31, 1998, Horizon filed its Notice of Appeal,
invoking the appellate court’s jurisdiction pursuant to
28 U.S.C. § 1291. Horizon’s appeal raised several issues,
only one of which is the subject of this petition for certiorari
— whether the NMB’s order violated Horizon’s First
Amendment right of free speech.
While Horizon’s appeal was pending, the D.C. Circuit
ruled in an appeal brought by U.S. Airways arising out of the
same NMB order relied upon by the Board in its Horizon
decision. U.S. Airways v. NMB, 177 F.3d 984, 995 (D.C.
Cir. 1999). The appellate court reversed the district court’s
dismissal of U.S. Airways’ complaint, deciding that the
district court had erred in holding that it was compelled to
take only a “peek at the merits” of U.S. Airways’ First
Amendment constitutional challenge. /d. at 990. Turning to
the merits of U.S. Airways’ constitutional claim, and applying
the teachings of NLRB v. Gissel Packing Co. , 395 U.S. 575
(1969), the court found the NMB’s order unconstitutionally
restrained U.S. Airways’ speech. U.S. Airways, 177 F.3d at
992-94.
In the case sub judice, the Ninth Circuit rejected the
D.C. Circuit’s analysis. Horizon Air Indus., Inc. v. NMB,
232 F.3d 1126, 1133, 1137-38 (9th Cir. 2000). (App. A at
13a, 24a-28a.) First, the court determined that it would take
only a “peek at the merits” in evaluating Horizon’s
constitutional claim:
This court has never used the “peek at the
merits” rubric to evaluate a constitutional
claim, but we have approved the approach
in dicta. See American West II, 119 F.3d at
775 (explaining that the “peek” framework
best suited Congressional intent). We reaffirm
our earlier reasoning and decline to adopt the
D.C. Circuit’s approach to cases alleging
constitutional violations.
Id. at 1133. (App. A at 13a.)
Secondly, the court declined to apply the Gissel
standard. /d. at 1138 n.7. (App. A at 26a.) The court
concluded that in light of the Board’s reliance on the “totality
of the circumstances,” the NMB did not violate Horizon’s
First Amendment rights. /d. at 1137-39. (App. A at 24a-
28a.)
REASONS FOR GRANTING THE WRIT
As the Ninth Circuit acknowledged, its decision in this
case directly conflicts with the decision of the D.C. Circuit in
U.S. Airways, Inc. v. NMB, 177 F.3d 985 (D.C. Cir. 1999).
The conflict involves the constitutional rights of carriers to
express their views regarding unionization. The Ninth
Circuit’s decision was erroneous in concluding that its review
of constitutional claims should be limited to a “peek at the
merits,” and in declining to apply NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). Resolution of this conflict is
important to effectuate the legislative purpose behind the
Railway Labor Act, and “to avoid the haggling and delays of
litigation” in the lower courts that would otherwise ensue.
See Brotherhood of Ry. and Steamship Clerks v. Association
for the Benefit of Non-Contract Employees, 380 U.S. 650,
671 (1965).
I. The Ninth Circuit’s Decision Conflicts with a
Directly Related Decision of the D.C. Circuit and
with Supreme Court Decisions Regarding Judicial
Review of First Amendment Claims.
Ordinarily, federal courts lack jurisdiction to review
certification decisions rendered by the NMB within the scope
of its authority under Section Two, Ninth of the Railway
9
Labor Act (“RLA”). Switchmen’s Union v. NMB., 320 U.S.
297 (1943). Federal courts nonetheless have jurisdiction to
review claims that the NMB violated a party’s constitutional
rights, and claims that the NMB acted in “gross violation” of
the Act. See Railway Labor Executives’ Ass'n v. NMB,
29 F.3d 655, 659 (D.C. Cir. 1994). :
Prior to the U.S. Airways and Horizon decisions, the
D.C. Circuit, the Sixth Circuit, and the Ninth Circuit
suggested in dicta that a “peek at the merits” approach should
be used to evaluate both statutory and constitutional claims
under the RLA.' See American West Airlines, Inc. v. NMB,
119 F.3d 772, 775 (9th Cir. 1997); Brotherhood of
Maintenance of Way Empioyees v. Grand Trunk Western Ry..,
961 F.2d 1245, 1249 (6th Cir. 1992); Professional Cabin
Crew Ass'n v. NMB, 872 F.2d 456, 459 (D.C. Cir. 1989).
But as the Ninth Circuit noted below: “None of these courts,
however, have actually used that approach to determine the
outcome of a [constitutional] controversy.” Horizon Air, 232
F.3d at 1132 (App. A at 13a); see also U.S. Airways, 177
F.3d at 990 n.3.
In its U.S. Airways decision, the D.C. Circuit
disavowed its previous dicta: “[T]he ‘peek’ framework is
simply not suited to the evaluation of constitutional claims.
For constitutional arguments cannot sensibly be restricted to
the plain text of the clause at issue, which is what the ‘peek’
' The Fifth Circuit has held that jurisdiction to review a
constitutional challenge to an NMB decision exists only “where a
complaining party makes a ‘substantial showing’ of a violation of
that party’s constitutional rights as a result of the Board’s action.”
Russell v. NMB, 714 F.2d 1332, 1339 (Sth Cir. 1983) (quoting
United States v. Feaster, 410 F.2d 1354, 1366 (Sth Cir. 1969).
10
framework would require.” U.S. Airways, 177 F.3d at 990.
Instead, a constitutional claim must be evaluated on its “full
merits.” Jd.
The Ninth Circuit declined to follow the D.C. Circuit,
and expressly adopted the “peek” framework for
constitutional claims. Horizon Air, 232 F.3d at 1132-33.
(App. A at 13a-14a.) The court based its holding on the
rationale that the “peek” approach “‘furthers the purpose of
the RLA’ to obtain the speedy resolution of representation
disputes without the ‘haggling and delays of litigation’ that a
full review on the merits would create.” /d. at 1132 (quoting -
America West, 119 F.3d at 775). (App. A at 12a.)
The Ninth Circuit’s holding in Horizon disregards this
Court’s guidance in Switchmen’s: “All constitutional
questions aside, it is for Congress to determine how the rights
which it creates shall be enforced.” Switchmen’s, 320 U.S.
at 301 (emphasis added). Congress could not and did not
restrict the Court’s review of constitutional challenges to
NMB orders.
The Ninth Circuit’s decision also conflicts with the
Supreme Court’s First Amendment jurisprudence: “[I]n cases
raising First Amendment issues we have repeatedly held that
an appellate court has an obligation to ‘make an independent
examination of the whole record’ in order to make sure that
the ‘judgment does not constitute a forbidden intrusion on the
field of free expression.’” Bose Corp. v. Consumers Union
of United States, Inc., 466 U.S. 485, 499 (1984) (citations
omitted). “The requirement of independent appellate review
... is a rule of federal constitutional law.” Jd. at 510 (citing
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)).
The obligation of independent appellate review exists
“because the reaches of the First Amendment are ultimately
defined by the facts it is held to embrace, and [the Court]
must thus decide for [itself] whether a given course of conduct
falls on the near or far side of the line of constitutional
protection.” Hurley v. Irish-American Gay, Lesbian and
Bisexual Group, 515 U.S. 557, 567 (1995) (citing Bose
Corp., 466 U.S. at 503). The Ninth Circuit’s “peek”
framework fails to satisfy this rule of federal constitutional
law. See id.
Il. The Ninth Circuit Also Differed with the
D.C. Circuit in Declining to Apply Gissel.
In the Gissel case, which arose under the National
Labor Relations Act (“NLRA”), the Court recognized the
First Amendment’s protection of “an employer’s free speech
right to communicate his views to his employees... .”
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
“Thus, an employer is free to communicate to his employees
any of his general views about unionism or any of his specific
views about a particular union, so long as the communications
do not contain a ‘threat of reprisal or force or promise of
benefit.’” /d. at 618.
In the U.S. Airways case, the appellate court rejected
the NMB’s argument that the Gissel standard should not be
applied in the context of the RLA. U.S. Airways, 177 F.3d
at 991-92. Observing that “[o]f course the First Amendment
does not ebb and flow with the legislative will,” the court
found that the NMB had not identified any difference between
the NLRA and the RLA that would justify different First
Amendment protections. /d.
12
a
The question presented to the D.C. Circuit and the
Ninth Circuit was whether the following pronouncement in
the Board’s order in U.S. Airways, applied by the NMB in
Horizon, violated the carriers’ First Amendment rights: “The
Board has determined that the following carrier conduct
regarding employee committees interferes with employee
freedom of choice: . . . (4) Carrier campaigns which indicate
a pre-existing committee is, or should be, a substitute for the
collective bargaining representative . . . .” /d.; see also
Horizon Air, 232 F.3d at 1135 (App. A at 20a); Horizon
Airlines, 24 N.M.B. at 503-04. (App. C at 81a-82a.)
The D.C. Circuit noted that the NMB’s order
regulated pure speech. U.S. Airways, 177 F.3d at 992.
Applying Gissel, the court held:
The fourth . . . factor[] proscribe[s] exactly
what Gissel protects. Whereas the fourth
factor would restrict “[c]arrier campaigns
which indicate a pre-existing committee is, or
should be, a substitute for a collective
bargaining representative,” Gissel teaches that
“an employer is free to communicate to his
employees any of his general views about
unionism or any of his specific views about a
particular union, so long as_ the
communications do not contain a ‘threat of
reprisal or force or promise of benefit.’”
Id. (citations omitted).
The Ninth Circuit, however, in taking only a “peek at
the merits,” declined to look behind the Board’s recitation
that its order was based on the “totality of the circumstances,”
and accordingly declined to independently evaluate whether-
13
or not the Board had unconstitutionally based its order on
protected speech. Horizon Air, 232 F.3d at 1137-38 (App. A
at 24a-28a).”
Ili. The Ninth Circuit Erred in Concluding the NMB
Did Not Violate Horizon’s First Amendment
Rights.
Applying its “peek” analysis, the Ninth Circuit
concluded that the NMB did not violate Horizon’s First
Amendment rights. This conclusion was erroneous. The
NMB’s order in the Horizon matter was expressly based on
the Board’s “finding[] that Horizon communicated to pilots
that the PIREPS program was a substitute for a collective
bargaining representative . . . .” Horizon Airlines, 24
N.M.B. at 509. (App. C at 88a.) As the D.C. Circuit held,
the NMB’s order regulates pure speech, and proscribes
exactly what Gissel protects. U.S. Airways, 177 F.3d at 992.
See Gissel, 395 U.S. at 618.
The “most exacting scrutiny” is applied to regulations
that suppress, disadvantage, or impose different burdens upon
speech on the basis of its content. Turner Broad. Sys., Inc.
v. FCC, 512 U.S. 622, 642 (1994). The Ninth Circuit erred
in declining to apply exacting scrutiny to the NMB’s order,
which regulated Horizon’s speech on the basis of its content.
2 The court stated: “[W]e need not comment on, or apply, the
Gissel standard, used by the D.C. Circuit in U.S. Airways... .”
Horizon Air, 232 F.3d at 1138 n.7. (App. A at 26a.)
14
a —
IV. This Petition Raises Important Federal
Constitutional and Statutory Questions.
“The First Amendment presupposes that the freedom
to speak one’s mind is not only an aspect of individual
liberty—and thus a good onto itself—but also is essential to
the common quest for truth and the vitality of society as a
whole.” Bose Corp. , 466 U.S. at 503-04. Above all else, the
First Amendment means that the government has no power to
restrict expression because of its message, its ideas, its subject
matter, or its content. Hudgens v. NLRB, 424 U.S. 507, 521
(1976). In this case, the NMB restricted Horizon’s speech on
the basis of its content - the advocacy of an existing employee
committee as an alternative to unionization. Horizon’s right
to express its views is important not only to the airline, but to
the “vitality of society as a whole.” See Bose Corp., 466
U.S. at 503-04; see also Barthelemy v. Airline Pilots Ass'n,
897 F.2d 999, 1017 (9th Cir. 1990) (“[C]hanging conditions
in the labor-management field seem to have strengthened the
case for providing room for cooperative employer-employee
arrangements as alternatives to the traditional adversary
model.” (quoting NLRB v. Northeastern Univ., 601 F.2d
1208, 1214 (ist Cir. 1979)).
Resolution of the conflict among the circuits regarding
judicial review of constitutional issues in the context of the
RLA is also particularly important. Congress’ purpose in the
RLA was “[t]o avoid any interruption to commerce or to the
operation of any carrier engaged therein... .” 45 U.S.C.
§ 15la. The RLA scheme was structured “to avoid the
haggling and delays of litigation. . . .” Steamship Clerks,
380 U.S. at 671. The uncertainty created by conflicting
appellate court decisions will tend to stimulate litigation in the
lower courts and frustrate the purpose of the RLA.
15
CONCLUSION
The Petition for Writ of Certiorari should be granted.
Respectfully submitted,
/s/
MICHAEL R. SCOTT
Counsel of Record
ERIC D. LANSVERK
HILLIS CLARK MARTIN &
PETERSON, P.S.
500 Galland Building
1221 Second Avenue
Seattle, WA 98101-2925
(206) 623-1745
Counsel for Petitioner
16
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed November 21, 2000]
No. 98-35767
D.C. No. CV-98-00095-TSZ
HORIZON AIR INDUSTRIES, INC.,
a Washington Corporation,
Plaintiff-Appellant,
Vv.
Defendant-Appellee,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, -
)
)
)
)
)
)
NATIONAL MEDIATION BOARD, )
)
)
)
)
Defendant-Intervenor-Appellee. )
)
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
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Argued and Submitted
March 9, 2000-Seattle, Washington
Before: James R. Browning, Betty B. Fletcher, and Ronald
M. Gould, Circuit Judges
Opinion by Judge B. Fletcher
OPINION
B. FLETCHER, Circuit Judge:
This case arises out of a representation dispute
involving pilots at Horizon Air Industries ("Horizon"), a
regional airline. Following an organizing campaign by the
International Brotherhood of Teamsters ("IBT") in 1995, the
National Mediation Board ("NMB" or "Board") conducted a
representation election. Horizon's pilots failed to approve the
IBT as their bargaining representative. The IBT filed a
complaint with the NMB, alleging interference by Horizon in
the election process. After investigation, the NMB found that
Horizon had interfered in the election and ordered a new
election. Horizon was required to post a notice concerning the
finding of interference, and was ordered to refrain from
further interference during the second election. In late 1997,
the pilots cast their second set of ballots and approved the IBT
as their representative. Horizon filed suit in the Western
District of Washington, alleging that the NMB had exceeded
its authority under the Railway Labor Act ("RLA") and
infringed the carrier's First and Fifth Amendment rights. The
district court granted summary judgment in favor of the NMB
and dismissed the case with prejudice. Horizon timely
appealed.
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Reviewing de novo, see Balint v. Carson City, 180
F.3d 1047, 1050 (9th Cir. 1999) (en banc), we find that the
NMB acted within its statutory authority and did not violate
Horizon's constitutional rights. We therefore affirm the
district court.
The PIREPS Program
In 1984, Horizon Air established a "lead captain
program” with the stated goal of improving communication
between the carrier's management and its pilots. The
program's main body was a committee elected by and made
up of non-management pilots. While the committee had a
consultative role in Horizon's decisions concerning the pilots,
this role remained informal, and Horizon unilaterally made all
decisions concerning working conditions, rates of pay, and
work rules.
In 1988, management-pilot relations began to change.
First, Horizon placed all of its policies concerning pilots into
a free-standing document entitled the "Flight Crew Policy
Handbook" ("FCPH"). Second, the lead captain program was
renamed the "Pilot Representatives Program" or "PIREPS."
These changes inaugurated a new era of relations between the
company and its pilots.’
' From its inception, the PIREPS program was funded by
Horizon. This support included production costs for the printing of
a newsletter, compensation for elected pilot representatives, and
administrative support. PIREPS also collected some funds from its
constituency; monies gathered directly from the pilots were used to
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Representatives from PIREPS and the Horizon
management signed an agreement making the FCPH a binding
document with an effective term of September 1, 1988
through September 1, 1990. Horizon told the pilots that the
FCPH could be amended only by agreement of the
management with approval from a majority of the pilot
representatives. In 1990, the PIREPS program was formalized
through the adoption of bylaws and procedures for election of
officers, appointment of committees, and approval of changes
to the FCPH. In 1990, a new FCPH was negotiated by the
management and PIREPS and was ratified by the pilots
according to the bylaws. This FCPH expired on September 1,
1993. A newly negotiated FCPH was ratified by the pilots in
December 1993. The 1993 FCPH was set to expire in 1998,
with an earlier expiration, 1996, set for specific sections of
the agreement concerning compensation and benefits.
The Resignation of the PIREPS Board and the IBT Campaign
IBT initially campaigned for unionization of Horizon's
pilots in late 1993 and early 1994. The campaign was
abandoned in mid-1994, and did not start again until 1995. By
that time, the pilots were dissatisfied with the way the airline
was handling a number of changes that affected them directly.
Horizon had undergone rapid expansion and was suffering
from staffing shortages, particularly in its pilot division. The
shortage put pressures on Horizon pilots, who experienced
scheduling difficulties, safety concerns, and reserve duty
problems. In early 1995, the PIREPS committee began to
compensate an attorney who provided advice on the binding nature
of the FCPH.
as 4a
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meet with Horizon management to discuss these concerns.
Although the PIREPS newsletter presented the initial meeting
as relatively successful, relations between the PIREPS board
and Horizon's management deteriorated quickly.
On March 1, 1995, a member of the PIREPS board
sent a letter to the pilots disclosing the results of a survey
PIREPS had conducted concerning reserve duty. Additional
meetings between the PIREPS board and Horizon
management were held on March 13 and 15, but failed to
yield results. Following the March 15 meeting, the entire
PIREPS board resigned. In individual resignation letters, the
representatives expressed frustration with the Horizon
management, explaining that the carrier was not affording the
pilots sufficient attention. The letters also underscored the
ineffectiveness of the PIREPS program as an institution. One
letter stressed the need for a_ "certified bargaining
representative."
The day after the group resignation, Horizon's Senior
Vice President of Operations sent a letter to the pilots
explaining what had happened and stating that Horizon would
"facilitate" an election for a new board according to the
PIREPS bylaws. In a newsletter published by the resigned
PIREPS board members on March 21, the letters of
resignation were printed alongside an article discussing the
problems that led to the resignation. That article explored the
option of joining a national union. A new PIREPS board was
subsequently elected by the pilots.
In the midst of the management-pilot tension, the
Teamsters re-entered the representation debate. IBT issued a
newsletter on March 30, 1995, announcing the launch of a
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new unionization campaign. On April 3, Horizon's Senior
Vice President of Operations sent a letter to the pilots
stressing the carrier's commitment to improvement, and
announcing a number of changes that would be implemented
immediately. These changes included hiring and training to
alleviate pilot shortages; increases in "premium pay" rates;
lengthened rest hours; increased compensation for PIREPS
members once they were elected; and the hiring of a new
liaison who would work with the PIREPS board and Horizon
management to implement improvements.’
A few weeks later, the same Horizon executive sent
another letter to pilots discussing the IBT campaign. This
letter described the voting process involved in a
representation dispute and corrected some “errors of fact" the
carrier identified in the IBT newsletter. In response to a
statement in an IBT newsletter, the executive stressed:
You are not an ‘at-will’ employee, and the
company cannot change wages, work rules or
benefits without your agreement. Further, the
[FCPH] handbook specifies procedures for
discipline, complaint review and grievance,
with binding arbitration to solve unresolved
> This position was a combination of management-pilot
liaison and safety officer. The NMB explains: "During the Winter
of 1995, the FAA had been critical of regional airline safety and
had recommended the creation of a safety officer at each regional
airline. The carrier combined the [liaison] position . . . with the
safety director position recommended by the FAA.” Horizon
Airlines, 24 N.M.B. 458, 475 (1997).
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matters. These are exactly the same provisions
found in union contracts.
On June 12, 1995, the IBT officially notified Horizon
that it was conducting an organization drive; this notification
listed the names of employees involved in the campaign.
Horizon's recently-hired liaison/safety officer wrote a letter
to the pilots on June 14, discussing the campaign. The letter
situated the IBT campaign in a context of declining union
membership and asserted that a national union was not in the
best interests of the pilots. ;
Discussions between the PIREPS board and Horizon
management continued into June 1995. In mid-June, Horizon
informed PIREPS that the carrier was extending a temporary
increase in "premium pay.” A June 21 letter from the Horizon
liaison addressed to pilots announced a few improvements:
mandatory rest time would be approved for ten hours, and
pilots would now be allowed to remove their neckties in the
cockpit. A postscript to the letter included a lengthy
commentary on inaccuracies in the IBT's campaign literature.
The liaison emphasized once again that the FCPH is a "legally
binding and enforceable document.” In July 1995, Horizon
continued to negotiate with PIREPS on issues such as reserve
_ policies, 401K matching contributions, and reimbursement
policies for “return overnight” expenses. Throughout the IBT
campaign, the PIREPS newsletter presented articles and
letters representing varying perspectives on the unionization
debate.
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IBT's Application with the NMB, the Election, and the IBT's
Complaint
On September 21, 1995, the IBT filed an application
with the NMB claiming that there was a representation dispute
concerning the pilots at Horizon Airlines. In response,
Horizon management informed the PIREPS board on
September 29, 1995 that it would not be able to implement
any new reform proposals because the company was required
to maintain the status quo during the representation dispute
and election. Horizon explained that it would be able to
complete improvements that were already underway. A letter
from the management to all pilots was sent on September 29,
explaining that Horizon would "remain ‘out of the fray,' so to
speak, and allow you to make your own decisions based upon
facts and your own personal convictions.” The letter also
included the personal convictions of the writer: Horizon's
Vice President for Flight Operations opined that IBT
representation was not in the best interests of the pilots. In
October 1995, Horizon's President explained in an interview
with an in-house publication that the Teamsters should be
rejected, since unions tend to create an "us versus them’
mentality."
Following its investigation, the NMB found that there
was indeed a dispute and authorized a mail-in ballot election.
A number of other letters were sent by the Horizon
management to the pilots during the run-up to the election.
These letters stressed that while it was the pilots’ choice
whether to unionize or not, the management felt it was against
the interests of the pilots and Horizon as a whole to have the
IBT acting as a bargaining representative.
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On January 19, 1996, the ballots were counted. Of
594 eligible voters, 240 votes were cast for the IBT, sixteen
for the Airline Pilots Association, five for an in-house union,
one for "PATCO," and one for "RAPA." Because less than
a majority of those eligible had voted, no representative was
certified. On January 23, 1996, the IBT filed a complaint
with the NMB alleging that Horizon had interfered with the
election process. The IBT presented supplementary evidence
and argument to the Board on February 9, 1996, and Horizon
submitted evidence and argument on March 4. Both parties
submitted written responses to the other's submissions.
The NMB held a second investigation, this time to
determine whether the carrier interfered with, influenced or
coerced employees in their selection of a representative. After
examining the history of the PIREPS program, as well as the
carrier's actions during the IBT campaign, the Board found
that, "based upon the totality of the circumstances," Horizon
had interfered with employee free choice when it
"communicated to pilots that the PIREPS Program was a
substitute for a collective bargaining representative; used the
PIREPS program to provide work rule improvements during
the organizing campaign; represented that PIREPS had
undergone significant changes that responded to pilot
concerns and permitted more impact from the pilots." Horizon
Airlines, 24 N.M.B. 458, 508-09 (1997). The NMB ordered
a re-run election using the Board's standard ballot. The Board
also informed the company that it would send a notice to
employees explaining why the re-run election had been
ordered, and it required the company to post an identical
notice "at all stations.” The notice stated that the NMB found
employer interference during the election process, and
included those portions of the RLA that make such
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interference unlawful. The second set of ballots were counted
on September 12, 1997, and the Teamsters were certified as
the pilots’ bargaining representative on September 17, 1997.
On January 23, 1998, Horizon filed suit in the
Western District of Washington, alleging that the NMB had
acted outside the scope of its authority by finding that the
company had interfered in the election and by applying a new
standard retroactively, and that the NMB had violated
Horizon's constitutional rights by abridging its freedom of
speech and forcing it to make a legal admission of
interference. The district court dismissed the case with
prejudice.
II.
Jurisdiction to Review NMB Actions
Federal court jurisdiction over NMB actions is
extraordinarily limited. Switchmen's Union v. Nat'l
Mediation Bd., 320 U.S. 297, 300-01 (1943); Am. West
Airlines v. Nat'l Mediation Bd., 986 F.2d 1252, 1256 (9th
Cir. 1993) ("America West I"). In fact, it has been observed
to be “one of the narrowest known to the law." /nt'l Ass'n of
Machinists & Aerospace Workers v. Trans-World Airlines,
839 F.2d 809, 811 (D.C. Cir. 1988). This limited jurisdiction
is directly tied to the Board's unique role in labor disputes.
Unlike the NLRB, which has broad adjudicatory and remedial
powers, the NMB was set up to help the parties to a dispute
reach quick resolution themselves. See 9 THEODORE KHEEL,
LABOR LAW § 50.04[1] (1964). To achieve this goal, the
NMB focuses on the administration and determination of
representation disputes, and the mediation of collective
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bargaining controversies. See id. Since its role was limited to
assistance in dispute resolution rather than punishment of
violators, judicial oversight of the NMB's actions has been far
more limited than the review afforded to NLRB actions. See
id. § 50.04[1], [2][c]; see also Switchmen's Union of N. Am.
v. Nat'l Mediation Bd., 320 U.S. 297, 300-01 (1943) (Article
III courts are without jurisdiction to review certification
decisions by the NMB); Bhd. of Ry. & S.S. Clerks v. Assoc.
for the Benefit of Non-Contract Employees, 380 U.S. 650,
661 (1965) (courts may review claims that the NMB "ignored
an express command of the Act.").
The courts’ limited role in reviewing the NMB's
decisions was explained by the Supreme Court in Switchmen's
Union of North America v. National Mediation Board, 320
U.S. 297 (1943), which involved a challenge to the
certification of a union by the NMB. The Court closely
examined the portions of the Railway Labor Act's legislative
history that created the NMB. See id. at 301-07. Discussing
the purpose of the RLA scheme, the Court concluded that
Congress intended to give the Board discretion over, and the
power to resolve finally, representation disputes. Jd. For that
reason, federal courts have, ever since, had no jurisdiction
over the merits of a representation dispute decided by the
NMB. See Kheel, supra, § 50.04{2][c]. Asa practical matter,
this means that the NMB's decisions regarding its methods of
investigation, balloting procedures, and findings regarding
employer interference, influence, or coercion, have been
largely unreviewable.
There are two kinds of challenges to NMB action over
which federal courts may exercise jurisdiction, however.
First, federal courts have jurisdiction to review allegations
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that the NMB has acted outside its legislative authority. In
Brotherhood of Railway & Steamship Clerks, the Supreme
Court explained that the actions of the NMB were reviewable
"only to the extent that [the review] bears on the question of
whether [the NMB] performed its statutory duty to
‘investigate’ the dispute." 380 U.S. at 661 (quoting the RLA,
45 U.S.C. § 152, Ninth). This court has explained that "the
federal courts have jurisdiction to determine whether the
Board has mistakenly stepped out of the investigator's
inverness into the robe of the adjudicator. If the Board has
done so, it has exceeded its statutory authority - regardless of
whether its action also happens to be employed as an
investigatory tool." Am. West Airlines v. Nat'l Mediation Bd.,
986 F.2d 1252, 1258 (9th Cir. 1993) (hereinafter "America
West I"). Second, federal courts have jurisdiction to review
allegations that the Board has acted unconstitutionally in
carrying out an investigation. See Am. West v. Nat'l
Mediation Bd., 119 F.3d 772, 775 (9th Cir. 1997)
(hereinafter "America West II").
We take only a "peek at the merits" to determine if the
NMB has committed an error of these dimensions. Unless the
"peek" reveals an error that is obvious on the face of the
papers without extension to “arguing in terms of policy and
broad generalities as to what the Railway Labor Act should
provide," the court is without jurisdiction to proceed further.
See Bhd. of Ry. & S.S. Clerks v. Assoc. for the Benefit of
Non-Contract Employees, 380 U.S. 650, 671 (1965). We
have adopted the "peek" framework - for both statutory and
constitutional claims - because it "furthers the purpose of the
RLA" to obtain the speedy resolution of representation
disputes without the "haggling and delays of litigation" that a
full review on the merits would create. See America West II,
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119 F.3d at 775 (quoting Bhd. of Ry. & S.S. Clerks v. Assoc.
for the Benefit of Non-Contract Employees, 380 U.S. at 67 1).
The rule “enables a court to determine if the NMB has
- committed a gross violation of the RLA without Causing
undue delay.” /d.
Regarding the second kind of claim - that the NMB
has violated the constitutional rights of the employer - this
court, the D.C. Circuit, and the Sixth Circuit have all stated
in dicta that the same "peek at the merits" approach should be
used. See id.; Prof'l Cabin Crew Ass'n v. Nat'l Mediation
Bd., 872 F.2d 456, 459 (D.C. Cir. 1989); Bhd. of
Maintenance of Way Employees v. Grand Trunk W. R.R. Co.,
961 F.2d 1245, 1249 (6th Cir. 1992). None of these courts,
however, have actually used that approach to determine the
outcome of a controversy. In May 1999, the D.C. Circuit
rejected its own earlier dicta that claims of constitutional
violations by the NMB should both be examined under the
"peek at the merits" framework. See U.S. Airways, 177 F.3d
at 990. The court did not disturb the "peek" framework in
relation to claims of ultra vires action, but held that
constitutional challenges should be examined on their "full
merits." /d. ("Constitutional arguments cannot sensibly be
restricted to the plain text of the clause at issue, which is what
the 'peek' framework would require."). This court has never
used the "peek at the merits" rubric to evaluate a
constitutional claim, but we have approved the approach in
dicta. See America West II, 119 F.3d at 775 (explaining that
the "peek" framework best suited Congressional intent). We
reaffirm our earlier reasoning and decline to adopt the D.C.
Circuit's approach to cases alleging constitutional violations.
Instead, we will "peek at the merits" of Horizon's claims that
the NMB took ultra vires actions and violated its
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constitutional rights. This approach is best suited to fulfill
Congressional intent, since it will aliow courts to check
improper NMB actions without causing undue delay in the
determination of valid labor representation.
Il.
A. Allegation of Statutory Violation
Horizon alleges that the NMB acted outside its
statutory authority when it sent a notice to Horizon pilots
stating that the carrier had interfered in the election to
determine the employees' representative. The notice, Horizon
contends, constituted an unauthorized adjudication of an
unfair labor practice, outside the NMB's statutory authority
to investigate representation disputes. Under the Railway
Labor Act, the NMB is authorized (1) to investigate "any
dispute" regarding "who are the representatives" of
employees covered by the RLA, and (2) to certify the
representative once identified. 45 U.S.C. § 152, Ninth
(2000). It has "no authority to adjudicate unfair labor
practices." See America West I, 986 F.2d at 1257. In
undertaking its investigation, the Board may use any
"appropriate method" to determine the identity of the
representative. 45 U.S.C. § 152, Ninth. The NMB employs
such methods to ensure that balloting is carried out without
interference, influence, or coercion by employers, perfecting
the election atmosphere so the NMB may make an accurate,
independent determination of who the employees want to act
as their representative. The atmosphere required for such a
determination is characterized by what the NMB calls
"laboratory conditions." See Evergreen Int'l Airlines, 20
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N.M.B. 675, 711 (1993). As we have stated, however, in
employing these investigatory tools, the NMB may not "step
[ ] out of the investigator's inverness into the robe of the
adjudicator." America West I, 986 F.2d at 1258. Horizon
claims NMB took such a Step by sending a notice to the pilots
Stating that the carrier had interfered in the election.
“Peeking” at the merits, we hold the NMB did not exceed its
Statutory authority.
Horizon relies on America West I for its argument. In
that case, we determined that while the Board has the
authority to use a notice as an investigatory tool, it could not
make a finding that the carrier “improperly interfered" with
an election, since such a finding implied an adjudication of
unlawful action by the carrier. 986 F.2d at 1259.
In this case, the NMB found that Horizon's actions,
taken as a whole, involved interference. The NMB
summarized its findings as follows: "Horizon communicated
a Clear message to the pilots that it preferred PIREPS, the
quasi-pilot bargaining program it had created and supported,
to the IBT. Horizon also used the PIREPS program to provide
work rule improvements after the carrier learned of the IBT's
campaign." Horizon Airlines, 24 N.M.B. at 500. Based on
this finding of interference, the NMB ordered a re-run
election, and sent a notice to the employees with their ballots
explaining this finding.
Horizon objects to the notice on the grounds that it
involved an "adjudication" of interference, something that
was beyond the Board's power. The carrier relies on a Ninth
Circuit case to make this argument. In America West I, this
court examined a notice very similar to the one at issue here.
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In that case, we determined that while the Board did have the
authority to use the notice as an investigatory tool, it could
not make a finding that the carrier "improperly interfered"
with an election, since such a finding implied that the Board
had made a determination of unlawful action by the carrier.
See America West I, 986 F.2d at 1259. Such a determination
was outside the scope of the NMB's limited authority, and —
therefore the notice was improper. In this case, the notice
stated that "the National Mediation Board found that the
Carrier's conduct, taken as a whole, interfered with,
influenced or coerced employees’ choice of representative
under Section 2, Ninth, of the Act.” Horizon Airlines, 24
N.M.B. at 510. The word "improperly" was omitted, and the
Statutory authority cited in the notice is to the section of the
RLA outlining the NMB's powers, instead of the section
setting out criminal sanctions for employers who violate the
act. Unlike the notice in America West I, the notice here does
not follow the finding immediately with a recitation of the
legal standard governing the carrier's conduct.’ See America
West I, 986 F.2d at 1255. Instead, it includes two paragraphs
concerning the re-run election, making clear that the finding
was announced in order to explain the purpose of the re-run
election. See Horizon Airlines, 24 N.M.B. at 510. This
court's holding in America West I was based on the
misleading nature of the notice, which, when examined
structurally, could lead the reader to conclude that the NMB
had adjudicated the carrier to have acted illegally by
interfering. See America West I, 986 F.2d at 1259. Indeed,
> Ina different section, the notice does include a quotation
from the RLA, stating that it is unlawful for a carrier to interfere
with its employees’ choice of a representative.
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the court noted that no one suggested that the sending of a
notice stating that the election was being re-run because of
Carrier interference was in itself outside the scope of the
NMB's authority. See id. at 1255. What mattered was the
phrasing. See id. Because the phrasing of the notice in this
case does not contain the errors found in the America West I
case, and because it does not read like an adjudication, we
decline, under the "peek at the merits” standard, to find this
notice outside the Board's authority.‘
B. Allegations of Constitutional Violations
1. Posting Notice as Violation of Horizon's Fifth
Amendment Rights
In its order setting aside the first election, the NMB
ordered Horizon to post the same notice it mailed discussing
the need for the second election in all workstations. Horizon
argued that this required posting violated its Fifth Amendment
rights because it "appeared Horizon was forced to admit past
unfair labor practices to all employees." Brief for appellant at
27. Horizon is entitled to relief under the Fifth Amendment
only if it demonstrates the notice appeared to be a carrier-
issued admission concerning the NMB's adjudication of
* Another important difference between America West I
and this case is that the America West I court was reviewing a
preliminary injunction entered by the district court enjoining use,
pendente lite, of the notice. The court was limited to determining,
therefore, whether the injunction was an abuse of discretion, and
could not undertake a complete review of the merits of the case. See
America West I at 1259.
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employer interference. If this were the case, the required
posting could be found to be the equivalent of compelled self-
incrimination. Taking a "peek," we find that it does not.
Like the argument that the NMB's mailed notice was
an ultra vires act, this argument draws on our decision in
America West I, where we stated that the NMB may not use
a notice as a remedy for unfair labor practices. America West
I, 986 F.2d at 1257. The issue turns on whether the notice
appears to have been a carrier-issued admission concerning
the NMB's adjudication of Horizon's actions, or alternatively,
whether it appeared to be a notification to Horizon employees
of the reasons underlying the re-run election. Horizon is
entitled to relief under the Fifth Amendment only if it has
demonstrated that the notice appeared to be a Horizon-
generated description of an adjudication, and that the required
posting was thus the equivalent of compelled self-
incrimination.
As explained above, the notice in this case did not
present the NMB's finding as an adjudication of the
interference issue. Nor did the notice appear to have been
issued by the company itself: the notice included the address
and phone number of the NMB, as well as information
concerning the standards guiding representation elections. A
rational reader would not have inferred that it was written by
Horizon. The carrier's argument thus fails on both prongs.
Horizon's due process rights were not violated by the
required posting of the notice.
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2. Horizon's First Amendment Rights
Horizon further claims that the NMB's finding of
election interference violated its First Amendment rights by
punishing it for engaging in "pure speech." Horizon's
appellate brief presented this argument as a post hoc challenge
to the NMB's finding that the carrier's speech was a factor in
its interference finding and suggested that the appropriate
remedy was to invalidate the second election and reinstate the
results of the first one. Under this analysis, the second
election was not required at all, since the first election had
been improperly invalidated. At oral argument, Horizon
changed its emphasis. The carrier focused on both the NMB's
order concerning the first election and on the second election
independently, claiming (1) that the NMB's order concerning
communications prior to the first election impermissibly
punished speech that was protected by the First Amendment,
and (2) that Horizon was subjected to a prior restraint on
speech during the second election, since the NMB's findings
concerning the first election effectively circumscribed the
content of the carrier's speech during the second election.
Based on this argument, Horizon asks the court to invalidate
the second election and reinstate the first one.
To make its case, Horizon relied heavily on a D.C.
Circuit case concerning an NMB order very similar to the one
at issue here. U.S. Airways v. Nat'l Mediation Bd., 177 F.3d
985 (D.C. Cir. 1999), was decided between the close of
briefing and oral argument in this case.* In that case, the
> The D.C. Circuit's U.S. Airways opinion was filed on
May 28, 1999. Briefing in this case was completed on December
19a
Court of Appeals Opinion - 11/21/00
NMB was concerned with U.S. Airways’ relationship to and
use of employee committees during a unionization campaign
at the carrier. In response, the NMB articulated and applied
a five-factor test concerning carrier manipulation of employee
committees. See U.S. Airways, 24 N.M.B. 354, 385 (1997).
The Board set out five different kinds of conduct regarding
such committees that should be considered when determining,
under the totality of the circumstances, whether the carrier
had sullied the "laboratory conditions" required for an
election:
1) The establishment of a committee at any
time after the carrier becomes aware of a labor
organization's organizing efforts;
2) A_ material change or a _ carrier
representation of such a change, during the
critical period in the purpose or activities of a
pre-existing committee;
3) The use of a pre-existing committee to
expand employee benefits during the critical
period (the continuation of existing benefits is
a prerequisite of a fair election);
4) Carrier campaigns which indicate a pre-
existing committee is, or should be, a
substitute for a collective bargaining
representative;
11, 1998 and oral argument was conducted on March 8, 2000.
20a
Court of Appeals Opinion - 11/21/00
5) Carrier campaigns which indicate that the
certification of a labor organization as the
representative of the employees will lead to the
termination of a pre-existing committee.
Id. The NMB found that U.S. Airways had interfered in the
election, and ordered a re-run election. See id. U.S. Airways
appealed this finding under the First Amendment in federal
district court. The district court rejected the carrier's free
speech challenge, and U.S. Airways appealed. See US
Airways v. Nat'l Mediation Bd., No. 97-1508 (GK), 1998 WL
464945 (D.D.C. July 26, 1998).
On appeal, the D.C. Circuit rejected the district
court's analysis. First, the court adopted the Supreme Court's
rule concerning employer speech, developed in the NLRB
context, as the appropriate standard for considering NMB
findings that examine employer speech. The Supreme Court's
rule is set out in Nat'l Labor Relations Board v. Gissel
Packing Co., 395 U.S. 575 (1969). In Gissel, the Court
explained that “an employer's free speech right to
communicate his views to his employees is firmly established
and cannot be infringed by a union or the Board." /d. at 617.
This right is not absolute, however, and must be balanced
against the employees' rights to associate freely and to be free
of coercion, which can sneak in through seemingly-neutral
employer communications. /d. To separate acceptable speech
from coercive speech, the Court laid out the following rule:
{A]n employer is free to communicate to his
employees any of his general views about
unionism or any of his specific views about a
particular union, so long as_ the
2la
Court of Appeals Opinion - 11/21/00
communications do not contain a ‘threat of
reprisal or force or promise of benefit.' He
may even make a prediction as to the precise
effects he believes unionization will have on
his company. In such a case, however, the
prediction must be carefully phrased on the
basis of objective fact to convey an employer's
belief as to demonstrably probable
consequences beyond his control or to convey
a management decision already arrived at. . .
in the case of unionization.
Id. at 618 (internal citation omitted).
In U.S. Airways, the D.C. Circuit applied the Gissel
rule to the NMB's five-factor standard. The court approached
the list of factors disjunctively, and found that factors four
and five acted independently and apart from other
considerations to restrain the employer's speech during the
NMB-ordered re-run election. U.S. Airways, 177 F.3d at 992-
93. Factor four concerned carrier communications that
indicated that a pre-existing employee committee was a
substitute for a collective bargaining representative, and factor
five dealt with carrier communications that indicated the pre-
existing committee would cease to exist if employees
approved the union as their representative. /d. at 992. The
court found that these factors regulated pure speech, and that
they were overly broad, since they did not distinguish
between communications that made (permissible) objective
predictions and (impermissible) subjective predictions about
the consequences of the election's outcome. /d. at 992-93.
Since this distinction was required under the Supreme Court's
Gissel standard, the court found that the carrier's speech had
22a
Court of Appeals Opinion - 11/21/00
been unconstitutionally chilled during the re-run election. /d.
at 992-94. The court found that the only appropriate remedy
was to set aside the results of the second election. It remanded
the case to the district court with instructions to remand to the
NMB to set aside the election and proceed in accord with the
court's decision. Jd. at 994.
On remand, the NMB clarified its finding of
interference, stating that "[t]he Board concludes that the
Carrier engaged in conduct, independent of the Carrier's
constitutionally protected speech, which tainted the laboratory
conditions essential to representation elections by interfering
with the employees’ selection of a collective bargaining
representative." U.S. Airways, 26 N.M.B. 323, 326-27
(1999).° For these reasons, the NMB ordered another re-run
election. Id. :
In the instant case, the NMB applied the same five
factors it articulated in U.S. Airways to analyze Horizon's
conduct during the first election. It explained that the factors
"were designed to provide ' general guidance concerning
Carrier actions in connection with employee committees.'"
Horizon Airlines, 24 N.M.B. at 504. The Board relied in part
on three of the five factors to conclude there had been
interference by Horizon in the election: (a) the fact that
Horizon “sought to convince the pilots that PIREPS was a
substitute for a collective bargaining representative" (factor
four); (b) Horizon's use of the PIREPS program to implement
changes in working conditions during the critical period
° This order was made public on June 25, 1999.
23a
Court of Appeals Opinion - 11/21/00
(factor three); and (c) Horizon's representation "that PIREPS
had undergone significant changes that responded to pilot
concerns and created more input from pilots" (factor two).
See id. at 504-05. The Board stressed that its findings were
"[b]ased upon the totality of the circumstances.” See id. at
500. Further, the NMB used only one of the factors discussed
by the D.C. Circuit (factor four) in making its findings
regarding Horizon.
We must decide two issues regarding Horizon's First
Amendment rights in this case. First, we must determine
whether the NMB's order finding interference in the first
election violated Horizon's free speech, requiring us to
reinstate the results of that election. Second, if we determine
that there was no constitutional violation regarding the NMB's
invalidation of the first election, we must decide whether the
NMB's order had an impermissible chilling effect on the
carrier during the second election, requiring us to overturn
the results of that election.
Regarding the first issue, we hold that the Board's
finding that there was carrier interference was not based
solely on the carrier's speech. We do not follow the D.C.
Circuit's treatment of the NMB's five factor test. The U.S.
Airways court found that the NMB's factors must be read
disjunctively, since the Board had not made clear whether any
one of the factors, standing alone, would have amounted to
interference. U.S. Airways, 177 F.3d at 992. We disagree
with this interpretation. It is established NMB practice to
examine the “totality of the circumstances" in order to
determine whether a carrier has interfered with a
representation election. See Daniel M. Katz & Erica J.
Dominitz, Recent Developments in NMB Election Interference
24a
Court of Appeals Opinion - 11/21/00
Cases and Employee Committees, ALI-ABA 109, 111 (1999)
(in determining whether an employer has disturbed the
"laboratory conditions" necessary for an election, the NMB
looks for "sterile conditions" by examining "the ‘totality of
the circumstances'") (citing Continental Airlines, 221 N.M.B.
229 (1994)). In light of this practice, we believe the most
plausible reading of the NMB's five factor standard treats the
factors as examples of specific conduct the Board considers
alongside others when making its “totality of the
circumstances" finding. None were presented as
independently dispositive. In this case, the NMB order
repeatedly referred to the aggregate effects of Horizon's
speech-related activities and interfering conduct. A rational
employer reading the NMB's order would have understood
the standard being applied here; it was the traditional
“totality” test, refined in the context of employer-sponsored
committees.
A set of NMB cases decided before the Board
articulated its five-factor test in U.S. Airways supports this
interpretation. In Metroflight, 18 N.M.B 532 (1991), Federal
Express, 20 N.M.B. 7 (1992), Evergreen Int'l Airlines, 20
N.M.B. 675 (1993), and Continental Airlines, 21 N.M.B 229
(1994), the NMB considered allegations that carriers had used
employee committees during election Campaigns to interfere
with employee choice. In all but Continental Airlines, the
Board found that the employer had disturbed the sterile
conditions necessary for the election and ordered a re-run
election. These cases give context to the NMB's U. S. Airways
five-factor test, used to evaluate Horizon's conduct. In each
case, the NMB examined the totality of the circumstances
when considering whether carriers manipulated employee
committees. Given this context, there was no reason for
25a
Court of Appeals Opinion - 11/21/00
Horizon to interpret the NMB's order as a major,
unconstitutional change from the past; instead, the order
articulated a set of factors that could be used when
considering whether an employer interfered, under the totality
of the circumstances, with their employees' choice of a
representative.’ See Katz & Dominitz, supra, at 112-15
("[T]he Board's decision in U.S. Airways did not differ in
degree or kind from previous policies") (citation omitted).
Further, the NMB repeatedly made reference to the totality of
the circumstances in its order. For these reasons, we reject
Horizon's argument that its First Amendment rights were
violated when the Board invalidated the first election.
We are similarly unconvinced that the carrier was
subjected to a prior restraint on speech during the second
election. In U.S. Airways, the D.C. Circuit stressed that the
carrier made a request for a temporary restraining order
7 Because we do not treat the factors disjunctively, we
need not comment on, or apply, the Gissel standard, used by the
D.C. Circuit in U.S. Airways and discussed supra. See U.S.
Airways, 177 F.3d at 991-94. We note, however, that standards like
Gissel, developed in the NLRA context, must be very carefully
imported into the RLA context. As the Supreme Court has
explained, "the National Labor Relations Act cannot be imported
wholesale into the railway labor arena. Even rough analogies must
be drawn circumspectly, with due regard for the many differences
between the statutory schemes." Bhd. of R.R. Trainmen v.
Jacksonville Terminal Co., 394 U.S. 369, 383 (1968). This is
especially true in cases dealing with the NMB, whose purpose and
powers are so very different from those of the NLRB.
26a
Court of Appeals Opinion - 11/21/00
("TRO") following the NMB's invalidation of the initial
unionization election. The TRO application was "predicated
in part on its chill theory, after the Board had issued its order
and before the re-run election was held," and by filing suit
immediately, the carrier "was hardly sitting on its claim."
U.S. Airways, 177 F.3d at 994. Here, in contrast, Horizon
did not file for a TRO, but waited for the results of the second
election. Only when the outcome of the second election was
against its interests, did Horizon file suit. Our Cases, as well
as those handed down by the Supreme Court, have repeatedly
stressed that the NMB was created to dispose of certification
disputes quickly and efficiently. See America West II, 119
F.3d at 775 (NMB part of statutory scheme aimed at "speedy
resolution" of representation disputes); Switchmen's Union of
N. Am., 320 U.S. at 303 (1943) (NMB created to "get the
matter settled") (internal citation omitted). Likewise, the
extraordinarily narrow scope of our jurisdiction to review the
NMB's actions was established to avoid "causing undue
delay." America West II, 119 F.3d at 775; see also
Switchmen's Union of N. Am., 320 U.S. at 305 (federal courts
not given jurisdiction to review the merits of the NMB's
actions, since it was Congress’ intent that "there was to be no
dragging out of the controversy into other tribunals of law").
Allowing a carrier to wait to press its claim until after it has
lost the second election would be contrary to Congressional
intent in establishing the NMB.
Further, we distinguish the D.C. Circuit's decision,
which was based on the proposition that factors four and five
(not applied here) could be read to apply separately to speech
alone. As discussed above, we find that the NMB's totality of
the circumstances approach was both well established and
emphasized in the order, such that a reasonable carrier would
27a
Court of Appeals Opinion - 11/21/00
understand it need not refrain from political speech. But see
U.S. Airways, 177 F.3d at 994 (stating that the NMB order
"informed U.S. Airways of what sort of expression was
proscribed"). Certainly, if Horizon was confused about the
NMB's order, it could have sought a TRO before the second
election. In light of the NMB's totality of the circumstances
standard, we will not invalidate the second election on the
grounds that the carrier of its own volition may have taken a
Cautious approach. A "peek at the merits" has revealed no
constitutional violation.
For these reasons, we AFFIRM the district court.®
The results of the second election shall stand.
8 In addition to the allegations discussed supra, Horizon
objected to the NMB's application of its five-factor standard
described in Section III, arguing that the rubric was created after
the election to which it was subsequently applied. Under the "peek
at the merits" standard, we find this argument unavailing. See
discussion concerning development of NMB's five-factor standard,
supra pages 15051-53. Further, Horizon relies on this court's
general rules concerning retroactivity in making this argument,
neglecting to assert that the challenged actions amount to ultra vires
acts. Absent such a showing, we will not disturb the NMB's
caselaw. As discussed in Section II, this court does not stand as a
court of errors vis-a-vis the NMB.
28a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
IN SEATTLE
[Filed July 6, 1998]
No. C98-0095Z
HORIZON AIR INDUSTRIES, INC.,
Plaintiff.
V.
NATIONAL MEDIATION BOARD,
Defendant.
ee Nee le oe we
ORDER
Upon consideration of the complaint, the Motions to
Dismiss filed by the National Mediation Board and by the
International Brotherhood of Teamsters with memoranda and
exhibits in support thereof and in opposition thereto, and the
arguments presented by counsel at the hearing on this matter,
the Court is of the opinion that the Motions to Dismiss should
be in all respects GRANTED, and it is therefore
29a
ORDERED that the motions of Defendants National
Mediation Board and International Brotherhood of Teamsters
to dismiss are GRANTED, and it is
FURTHER ORDERED that this case is dismissed with
prejudice.
Dated this 2™ day of July, 1998.
/s/
The Honorable Thomas S. Zilly
Presented by: /s/
Robert H. Gibbs, WSBA 5932
Attorney for International Brotherhood of Teamsters
30a
APPENDIX C
NATIONAL MEDIATION BOARD
WASHINGTON, D.C. 20572
(202) 523-5920
[Filed July 24, 1997]
Labor Act, as amended
involving employees of
Horizon Airlines
In the Matter of the ) 24 NMB No. 89
Application of the )
) NMB CASE NO. R-6407
INTERNATIONAL )
BROTHERHOOD OF )
TEAMSTERS ) FINDINGS UPON
) INVESTIGATION-
alleging a representation ) ORDER
dispute pursuant to Section )
2, Ninth, of the Railway ) July 24, 1997
)
)
)
)
)
)
On September 21, 1995, the International Brotherhood
of Teamsters (IBT) filed an application alleging a
representation dispute among "Pilots" employed by Horizon
Air.
3la
NMB Findings Upon Investigation-Order - 7/24/97
The Board assigned Mediator Robert Martin to
investigate. On November 13, 1995, the Board found a
dispute to exist and authorized an all mail ballot election. The
ballots were mailed on November 29, 1995 and were
scheduled to be counted on December 28, 1995. However,
due to the government furlough, the ballots were impounded
on December 28, 1995. After the furlough and subsequent
weather related closures, the ballots were counted on January
19, 1996.
The ballot count resulted in the IBT receiving 240
votes out of 594 eligible voters. Sixteen valid votes were cast
for the Air Line Pilots Association and "in house" received
five votes, "PATCO" received one vote and "RAPA"
received one vote. Less than a majority of eligible voters
voted for representation.
On January 23, 1996, the IBT filed charges alleging
that Horizon had interfered with the election process.
Pursuant to the Board's Representation Manual, the IBT
supplemented its allegations with evidence and argument on
February 9, 1996. Horizon submitted a response, including
evidence and argument on March 4, 1996. The IBT submitted
its rebuttal on March 11, and the carrier filed its sur-rebuttal
on March 18, 1996.
ISSUES
Has the carrier interfered with, influenced or coerced
employees in their selection of a representative? If so, what
is the appropriate method of ascertaining the employees'
choice without interference, influence or coercion by the
carrier?
32a
NMB Findings Upon Investigation-Order - 7/24/97
CONTENTIONS
IBT's Position
The IBT alleges that the carrier's support for the Pilot
Representative Program (PIREPS) interfered with the election
process. Overall, the IBT asserts that Horizon's support for
PIREPS coupled with its "clear statements and presentation of
itself as 'neutral'" in the representation matter tainted the
laboratory conditions.
Specifically, the IBT alleges that the carrier
Significantly increased support for the PIREPS program and
used the PIREPS newsletter as a vehicle for communicating
the carrier's anti-union message. IBT further alleges that,
while the carrier was providing support for the PIREPS
program and for the distribution of an anti-union message in
the PIREPS newsletter, the carrier was denying Teamsters’
Supporters equal access to the pilot group. The IBT
particularly cites an incident involving removal of IBT
communications from pilot folders in which PIREPS
newsletters were distributed. !
The IBT also alleges that the carrier created the
position of Director of Safety and Pilot Relations to "more
' The IBT also alleges that the address list used to mail
ballots to employees during the election may have been faulty,
resulting in pilots not receiving ballots. A review of the record in
this case reveals that only two names were struck from the list
because their ballots were undeliverable. The evidence does not
support this allegation.
33a
NMB Findings Upon Investigation-Order - 7/24/97
actively control both the agenda and the message
communicated . . . to the pilots."
Furthermore, the IBT asserts that the carrier changed
working conditions in response to the IBT organizing
campaign and in order to influence the election. The IBT
asserts that more amendments to the Flight Crew Policy
Handbook (FCPH) were made during the campaign than in
the entire prior history of the FCPH.
Horizon's Position
The carrier characterizes the IBT's claim as a request
for the Board to "declare that the mere existence of a non-
union employee group constitutes per se interference in an
NMB election." Horizon asserts that it did not "dominate or
control" the pilot representative program or the pilot
representative officers.
The carrier alleges that the PIREPS program was in
operation long before the IBT organizing campaign and that
no significant changes or increases in support were made to
this program during the IBT campaign.
The carrier further alleges that it exercised no editorial
control over the contents of the PIREPS newsletter and that
any changes in the format of the newsletter were initiated by
the employee elected representatives of PIREPS. Further the
carrier asserts that, as a result of changes to the PIREPS
newsletter, the carrier actually paid less for printing than it
had prior to the IBT campaign. The carrier also asserts that it
did not unfairly limit access to the IBT for campaign
purposes. According to the carrier, the Director of Safety and
34a
NMB Findings Upon Investigation-Order - 7/24/97
Pilot Relations was initially conceived in response to Federal
Aviation Administration recommendations and the pilot
communication responsibilities were added to the Position as
a result of pilot discontent in February 1995.
The carrier asserts that any changes were made in
response to the resignations of the Pilot Representatives
which occurred prior to the organizing campaign or in
response to problems resulting from unprecedented expansion
of the carrier during the previous year. The carrier further
asserts that there were seventeen amendments made to the
FCPH prior to the organizing campaign and that such
amendments were not unusual or related to the organizing
campaign.
IN W
Determination of the issues in this case is governed by
the Railway Labor Act, as amended, 45 U.S.C. §151 et seq.
Accordingly, the Board finds as follows:
I.
Horizon Air is a common Carrier as defined in 45
U.S.C. §151, First.
I.
IBT is a labor organization or representative as
provided by 45 U.S.C. $151, Sixth and §152, Ninth of the
Act.
35a
NMB Findings Upon Investigation-Order - 7/24/97
If.
45 U.S.C. § 152, Third provides, in part:
Representatives . . . shall be designated... .
without interference, influence, or coercion
. . . (Emphasis added).
IV.
45 U.S.C. § 152, Fourth, 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 em 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
rf f_any_ work for t
influence or coerce employees in an effort to
remain m rs of any la rganization
. . . (Emphasis added).
36a
NMB Findings Upon Investigation-Order - 7/24/97
7.
45 U.S.C. §152, Ninth, provides that the Board has
the duty to investigate representation disputes and to designate
who may participate as eligible voters in the event an election
is required. In determining the choice of the majority of
employees, the Board is "authorized to take a secret ballot of
the employees involved, or to utilize any other appropriate
method of ascertaining the names of their duly designated and
authorized representatives by the employees without
interference, influence or coercion exercised by the carrier."
(Emphasis added).
STATEMENT OF FACTS
I. History of the PIREPS Program
In 1984, Horizon established a "lead Captain
program", with employee representatives selected by
management. Management pilots were not eligible to
participate in the program. The program was created as a
conduit for the transmittal of information between
management and the pilots. In December of 1984, the
program was changed to allow the pilots to elect
representatives to the "lead captain program".
Until 1988, rates of pay, work rules and conditions of
employment were unilaterally established by the carrier and
were incorporated into the "Policies and Procedures" section
of the Horizon Air Flight Operation Manual. In January of
1988, these provisions were moved into a separate document
called the "Flight Crew Policy Handbook" (FCPH) and the
program was renamed the "Pilot Representative Program"
37a
NMB Findings Upon Investigation-Order - 7/24/97
(PIREPS). In August of 1988, representatives from Horizon
management and PIREPS signed an agreement making the
FCPH a binding agreement with a term of September 1,
1988, through September 1, 1990. During the term of that
agreement, the FCPH was amended eight times. According to
George Bageley, Horizon's President and Chief Executive
Officer, the agreement stated that changes to the FCPH
"could only be made with the agreement of management and
a majority of the pilot representatives".
In 1990, PIREPS developed bylaws and procedures
governing the election of officers, appointment of committees,
and approval of changes to the FCPH. Management and
PIREPS negotiated and signed a new FCPH which was
ratified by the pilots under the PIREPS bylaws. The term of
this agreement was September 1, 1990 through September 1,
1993.
According to Bageley, discussions in 1993 led to a
new FCPH, but the changes were not ratified by the pilots.
After additional discussions, the pilots ratified a new FCPH.
The new FCPH stated that the new document would be:
. . . effective December 23, 1993, and will
remain in effect through December 22, 1998.
The Pilot Compensation and Benefits section is
effective December 23, 1993 and will remain
in effect through December 22, 1996. Changes
to the policies and procedures during the
effective period can be made at any time, but
only after receiving concurrence from both the
company and a majority of the Pilot
Representatives.
38a
NMB Findings Upon Investigation-Order - 7/24/97
There were three amendments to the 1993 FCPH prior to
March of 1995.
I. PIREPS Funding
Historically, the carrier provided financial support to
PIREPS in several ways. First, the carrier paid production
Costs for the PIREPS newsletter. Second, in accordance with
the provisions of the FCPH effective on December 23, 1993,
the carrier paid each pilot representative $100 per five week
bid period for "expenses incurred". The pilot representative
was required to list this expense on the per diem report for
each bid period. Third, the carrier provided administrative
support for PIREPS in the form of meeting rooms, copying,
telephones and voice mail boxes. The FCPH specifically
States:
There shall be no initiation fee, periodic dues,
or other monetary assessments associated with
this program, however, voluntary
contributions may be made to offset the
legitimate expenses of the pilot group. These
funds shall be subject to strict accounting and
Shall be disbursed only as directed by the
Executive Board.
Board minutes from the August 9, 1995 meeting
indicate that, as of August 2, 1995, PIREPS had an account
of $6694.68, based on funds voluntarily collected from
members. These funds were used, in part, to pay independent
counsel to review the enforceability of the FCPH.
39a
NMB F indings Upon Investigation-Order - 7/24/97
At a meeting in July, 1995, the PIREPS Board
considered the issue of whether to amend the FCPH to
eliminate the carrier funding. Board minutes describe the
discussion as follows:
The point was made that calculating the
compensation in question needs to include, not
only the dollar amount stipulated in the FCPH,
but also the cost of Representatives’ days off
for Board meetings and additional activities.
Would complete Pilot Group financial
sponsorship include those costs as well or the
printing budget, which can (and has) become
substantial during particularly active periods?
Pilot sponsorship would necessitate significant
dues collection for normal monthly functions,
which some already acknowledge will require
payroll deduction... .
Rep. Larson offered a substitute motion to
table the issue until the next meeting, so more
Pilot Group input could be collected. . . .
There is no evidence on the record that PIREPS ever
voted on this issue.
Ill. Events Preceding the IBT Campaign
In late 1993 and early 1994, the IBT attempted to
organize the Horizon pilots. That campaign was aborted in
mid-1994. By early 1995, the pilots were dissatisfied with the
status quo. In particular, Horizon's rapid growth had led to
staffing shortages which, among the pilots, raised several
40a
NMB Findings Upon Investigation-Order - 7/24/97
scheduling, safety and reserve duty issues. Apparently,
PIREPS, which had been less active in the latter part of 1994,
attempted to address the pilots' concerns at a February 21,
1995 meeting with carrier representatives. An article in the
February 28, 1995 PIREPS newsletter described the meeting
as "productive", listed the pilot concerns, and described the
carrier's interest in maintaining the "spirit and intention" of
the FCPH as a "low priority". The Newsletter continued:
We explained that our first priority is to fix the
Pilot Representative Program and our interface
with Flight Operations management. Our
second option was to formalize an in house
program. Our third and least desirable option
was to let a national organization have at it.
*ke
This we agreed is true: Kathy Iskra and Bill
Ayer are in positions to affect change. We
don't know their management style. We owe
them a chance to show us. Our collective
feeling is everyone involved with Flight
Operations would benefit if the Pilot
Representative Program can adapt and survive.
We don't think anyone looks forward to the
day when they have to pay union dues. Having
a disinterested third party from a national
union, representing your local interest, we
don't feel would be in anyone's best interest.
Your Reps see a possibility of a new Pilot
Representative Program that can be as
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effective as the alternative. We have to believe
this, until we see it is not going to happer.
So our position is to see what will transpire in
the next month or so. We know the issues that
need immediate attention. Safety, Scheduling,
Reserve. . . . (Emphasis in original).
On March 1, 1995, Alan Hinton, a PIREPS Board
Member, sent a letter to pilots detailing results of a survey it
conducted on reserve duty issues and summarizing PIREPS'
reserve duty proposals to the carrier. One of these proposals
was for ten hours minimum rest and ten hours maximum
duty.
Although the PIREPS board had been "encouraged"
by their February 21, meeting with the carrier, subsequent
meetings on March 13 and 15 did not lead to changes,
particularly on the reserve duty issues. As a result, on March
15, 1995, all of the pilot representatives resigned from
PIREPS. The individual resignation letters submitted by the
Pilot Representatives portrayed their frustration with the lack
of attention the pilots received from Horizon and the belief
that the PIREPS program was ineffective. In his resignation
letter, one of the Pilot Representatives stated his belief that
the pilots needed a "certified bargaining representative" .
On March 16, 1995, Horizon's Senior Vice President
of Operations, Bill Ayer, announced to the pilots that the
PIREPS officers had resigned and that Horizon would
"facilitate" the election of new PIREPS officers in accordance
with the by-laws contained in the FCPH. Ayer's letter stated
in part:
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. .. am writing to let you know that we were
informed yesterday afternoon that each of the
Pilot Representatives has decided to resign his
position effective immediately, and resume
full-time duties as a line pilot. To say that I am
disappointed is a major understatement.
I believe that in the three weeks since our
meeting, we developed a much greater
understanding of the issues. We were (and still
are) prepared to propose _ specific
improvements in the areas of scheduling
(reserve utilization), communication and
problem solving with maintenance, dispatch,
and passenger service, Pilot Representatives
compensation, and a leadership development
program for Pilot Representatives similar to
what we provide for our manager and director
level people.
So what's the plan now? First, the Flight Crew
Policy Handbook is an agreement with each of
you, and remains in full effect. We strongly
support the Pilot Representative concept, and
are anxious to continue the progress that has
begun, including implementing the changes
mentioned above. We will facilitate the
process to elect a new eight member board. In
accordance with your Handbook, that process
involves a three week nomination period,
followed by a three week voting period. The
nomination period will start on March 27, and
the election period on April 17. In order to
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ensure that you have well qualified candidates
to choose from, we would like to ask each of
you to consider nominating someone
(including yourself) who is interested in
becoming actively involved in helping shape
our future. An effective program requires
people (on both sides) who share a desire for
a unique work environment, are good
communicators, are in close touch with the
pilot group and the issues, have a solid grasp
of our economic and competitive climate, and
are logical and independent thinkers. We're
reviewing the same list of criteria to ensure
that we have the right people involved from
the Flight Operations Department. A
nomination letter will be sent next week which
will provide more details on _ time
requirements, compensation, and other
expectations. .. .
The PIREPS officers who resigned on March 15, 1995
issued a PIREPS Newsletter dated March 21, 1995. The
Newsletter included the officers’ resignation letters and an
article detailing the problems the pilots on Horizon were
experiencing and the officers’ frustration with management's
response. The possibility of joining a national union was
mentioned twice.
NMB Findings Upon Investigation-Order - 7/24/97
IV. The IBT's Campaign
A.
The IBT issued a newsletter dated March 30, 1995,
recounting the IBT's organizing history at Horizon and
announcing the start of the new campaign.
On April 3, Ayer sent a letter to the pilots reiterating
Horizon's commitment to "future communication and
responsiveness" and announcing several immediate changes:
I got together with the Flight Ops management
team right after the Pilot Meeting, and
discussed what we could do immediately to
provide some solutions. I have asked that the
following be implemented immediately. Of
course, formal ratification would be required
once the new Pilot Representatives are in
place, but I believe that these items are too
important to wait.
The immediate changes were (1) hiring and training to
alleviate the pilot shortage, and (2) effective April 16, 1995:
a) premium pay rates will be increased to
$20/hour for captains and $13/hour for first
officers, b) premium pay one day revenue trips
will be compensated with 4.0 hours of
premium pay in addition to the actual duty
time. . . . These changes will expire June 25,
when we expect to be fully staffed. and,
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3) Open trips in all equipment types and
positions will be paid at premium pay rates,
also effective beginning April 16.
4) We will apply the same rules to building
reserve trips as we do for building bid trips.
5) Change the minimum scheduled rest (in
domiciles) between non-CDO trips to 10
hours, including reserve assignments.
6) Pilot Representative compensation will be
changed to $300 per bid period.
7) Pilot Representatives will receive a special
five day "Leadership Principles" class, similar
in content to what we provide our regular
management employees.
The letter continued by announcing that Horizon would add
a "Communication/Pilot Relations position in Flight
Operations" to improve its "effectiveness in supporting pilots
and the Pilot Representative Program." According to the
letter:
This person will have decision-making
authority, and, in concert with the Pilot
Representatives, will be responsible for
prioritizing issues, researching problems with
the appropriate manager, and following up
with evaluation, action, and explanations. The
Pilot Representatives will be involved in the
selection of the person for this position. The
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new organization chart was attached to the
notes from the Pilot Meeting.
Ayer also suggested that once new Pilot Representatives were
elected, it would "support" a program of legal representation
for pilots charged with FAA violations and a "safety and
Standards problem resolution process". Ayer's letter
concluded:
While we might be criticized for making
unilateral changes, I believe that taken
together, these items represent solutions to a
large majority of the problems that I have been
made aware of. . . . As we head toward the
election for new pilot representatives, I
encourage each of you to discuss openly (I
probably don't have to worry about that!),
factually and honestly. We'll do the same, and
the result will be a head-start on taking
necessary additional action when the new
Board is in place beginning in early May.
On April 14, 1995, Ayer wrote to the pilots again.
This letter addressed the IBT organizing campaign as follows:
With all the discussion and opinions about
union representation, I thought I should write,
not so much to persuade you, but to give you
some facts. Voting for a union is not the
democratic process that it might appear to be,
and you really need to understand how it
works. Like every other aspect of your job, I
trust that you will make good decisions if you
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have good information. Ultimately, it's your
choice. And we will continue to work with you
to solve problems and to succeed in the
marketplace, regardless of your choice on
representation.
Here's how the process works: Once a
particular union receives organizing cards
from 35% of the group (and they have a 12
month period in which to collect them) they
may file for an election. Every union that has
collected enough cards may be on the ballot,
and there is also a "write in" option on the
ballot. A valid election requires voting by at
least 50% of the eligible group, and receiving
a majority of the votes cast is required to win.
So if there were two or more organizations on
the ballot, the winner could be decided by as
little as 26% of the entire group. It seems to
me that an issue as important as union
representation ought to be decided by a larger
percentage of the total.
Several things are clear: 1) Turning in a card
is asking for an election. 2) While an election
seems like a fair way to decide things, its very
possible that you could elect a union that most
of you do not want. 3) During card
solicitation, the only way to vote "No" for a
particular organization is to not send in a card.
4) Once there is an election, the only way to
vote "No" for that organization is to not vote
at all, even if there is someone on the ballot
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that you would like to vote for. This
mechanism is certainly not intuitive, and many
employee groups have voted in unions that
very few individuals wanted.
**e# &*%
In the case of Horizon, however, I do have a
bias. A major factor in our success is our
people, and the ability to work directly with
them on issues and Opportunities without a
third party intermediary. . . .
If I were in your shoes, I'd look at the issues
from a practical perspective. What are you
going to get for your dues? Talk to your
friends at unionized regionals and compare
numbers. We continually monitor pay and
work rules at comparable carriers, both union
and non-union. We have shared those studies
with you, and we are at the top in most all
areas and positions.
Last week's Teamsters newsletter contains
some errors of fact. The FCPH is your
agreement with the company. You are not an
"at will" employee, and the company cannot
change wages, work rules or benefits without
your agreement. Further, the handbook
specifies procedures for discipline, complaint
review and grievance, with binding arbitration
to solve unresolved matters. These are exactly
the same provisions found in union contracts.
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The newsletter correctly states that the
Teamsters are a business. They are very
interested in representing you, since after
America West pilots voted in ALPA last year,
your dues are collectively probably the largest
source of income available in the airline
industry today.
I just re-read the PIREPS February 5 news
letter which is largely devoted to the subject of
unions. I think it does a pretty good job of
presenting various points of view. Ron Hugie
said it well: "Our choice need to be one that its
based upon reason, not emotion. . . . No
matter who represents us, it's the people we
elect and support that make the difference."
Tom Taylor's article was also insightful. I,
too, remember when the Air Oregon pilots
disbanded the union. As Tom says, "It was
simple, we no longer needed the union."
That's where I come out- it's simple, you
don't need a union. But you expected me to
say that. You also may have expected me to
say that all sorts of terrible things will happen
if you do vote for representation. I won't say
that. I don't believe that our economics will
change significantly with a union, and that's
the driver for future growth. But I do think it
will change the company and add an
unfortunate and unavoidable adversarial
element to our relationship. And I believe you
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will be spending hard-earned dollars for no
benefit.
During the Winter of 1995, the FAA had been critical
of regional airline safety and had recommended the creation
of a safety officer at each regional airline. The carrier
combined the communication Position discussed in Ayer's
letter with the safety director Position recommended by the
FAA. The resulting "Director of Safety and Pilot Relations”
Position was posted in May of 1995. The job description for
the "Director Safety/Pilot Relations" provided in part:
The Director of Safety and Pilot Relations is
accountable to the Vice President, Flight
Operations. . . The Director of Safety and
Pilot Relations will be the primary point of
contact for the Pilot Representatives, and will
be responsible for representing the interests of
Horizon Air pilots to the Vice President,
Flight Operations. As an advocate for the pilot
group, this person will be responsible for
maintaining a program that enhances
communications at all levels between Pilots
and Flight Operations management.
Additionally, he will maintain flight line
currency as a Horizon Air pilot.
Ayer asked the PIREPS Board to interview Candidates
for the position. The PIREPS Board recommended three
individuals, including Chris Keniath, the newly elected
secretary-treasurer of PIREPS. Keniath was selected as
Director Safety/Pilot Relations and resigned from the PIREPS
Board upon accepting the Position. While a significant portion
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of the duties of this position were safety related, Keniath
played a primary role for the carrier in subsequent discussions
with PIREPS.
The IBT formally notified the carrier, by letter dated
June 12, 1995, that they were organizing pilots and listed the
names of employees involved in the organizing effort.
On June 14, 1995, Keniath sent a letter to all pilots
discussing the IBT campaign. He began by discussing
common goals and suggesting the “union road" was not the
best path toward those goals. His letter continued by quoting
news sources discussing the decline in unionization and citing
Studies supporting the use of "individual company work
groups" instead of "national unions.” The letter continued:
Consider the Southwest Pilots Association,
which just reached an innovative agreement
described by CEO Herb Kelleher as ‘a bold
statement by our pilots that they stand ready to
lead SW into the next century as the low-cost
leader of the airline industry' (Labor Review,
March 95). Does this not sound like a more
reasonable, more desirable solution?
Moving from the general to the specific, let's
look at what you have indicated are the real
issues. First, ‘Quality of Life.’ You are being
heard loud and clear. The latest Teamster's
newsletter is right on target; you do deserve
the things they mention: ‘look forward to your
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work, respect for your employer, a schedule
you can count on, reasonable staffing and
scheduling, trust that your employer wants you
to have a quality of life.' Please be assured, I
want you to have all of these things. As I
wrote last week, I am committed to working
with all of my strength toward this end. I am
convinced from what I have seen and heard
that your managers all, likewise, are
committed to this goal.
To restate the company's position: ‘do we
have a problem with FCPH?' Yes. And, we
will work with your Pilot Reps to clarify
problem areas. Not in the indeterminate
future, right now. I am meeting with the Pilot
Rep group on Thursday (6/15) to formulate the
first proposal of amendments to the FCPH
which they will bring to you for approval. ‘Is
the company willing to make improvements,
where necessary, to address your most
important (quality of life) concerns?’ Yes.
Again, your Pilot Reps are working hard to
identify these needs.
The remaining issues addressed in a recent
letter signed by a number of your fellow pilots
were retirement pay, and legal protection
assistance. The company has already expressed
a desire to work with you to develop a
program that would address your concerns
regarding legal protection. Regarding pay,
work rules, and benefits/retirement, I can only
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challenge you to point to any other regional
Carrier-union or non-union-which offers a
better overall package.
Examine the facts: read all there is to read
about the International Brotherhood of
Teamsters; talk with pilots at other carriers
who are/have been affiliated with the
Teamster's; look rationally at what the Airline
Division will provide to you (for the more than
$250,000 that you will pay them per year.)
Consider the long term ramifications of your
affiliation with such an organization. If this is
truly seen as your best option, then do the
deed and let's get on with our future!
(Although this must be considered as one of
the disadvantages of such a relationship: we
will not be able to ‘get on with our future’
right away-to your disadvantage; to the
company's disadvantage.) (Emphasis in
original).
The PIREPS Board met with Keniath on June 15. At
that meeting, the reduction of premium rates’, then scheduled
for June 25, 1995, was discussed and, according to the
minutes of that meeting, the members of the PIREPS Board
objected to the reduction of premium rates. The minutes
continue with the following note highlighted:
2 Premium rates had been increased temporarily on April
14 in response to the pilot shortage.
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Tom Gerhater subsequently announced that
due to unforeseen circumstances - continued
crew shortages resulting from pilots leaving -
the increased Premium rate of $20/13-hr. will
continue to be paid throughout Bid 68.
The minutes of that meeting also reflect that Keniath informed
the PIREPS board that four voice maij lines had been
provided by the carrier to facilitate their communications with
the pilots.
On June 21, 1995, Keniath issued another letter to the
pilots "in the interest of keeping [the pilots} fully informed”,
summarizing the issues discussed at the meeting and listing
proposed changes which have been agreed upon, including ten
hours rest, permitting neckties to be removed in the cockpit
and staggering elections of Pilot Representatives. Keniath also
listed items discussed including 401K benefits, FCPH buyout
clause in event the carrier is sold, and revisions to the reserve
utilization policy. The postscript to the letter provided:
One final note: I cannot express how frustrated
I am with the continual attacks on the validity
of our FCPH as a legally binding and
enforceable document. Let me try to put this
matter to rest once and for all. 'The FCPH is,
in fact, a legal contract which could be
enforced through the grievance and arbitration
procedure in the handbook. An arbitrator's
decision would, in turn, be enforced in a court
* Bid 68 continued through July 1995.
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of law' (this according to Art Thomas,
Horizon's General Counsel). For example, any
abrogation of some part of the FCPH could
(and has been) contested. Should you, the pilot
group, decide to contest the decision to
temporarily increase premium pay rates, you
could-and the company doubtless would be
required to cease from paying a (higher) rate
outside the written provisions of the contract.
So, I find it ridiculous to twist the company's
good faith effort to solve problems into an
argument which somehow undermines the
legal force of your FCPH! You believe that the
company might, without your concurrence,
reduce your pay or benefits! _I believe that
(for the sake of argument) you would
immediately respond with legal action-
resulting in a ruling against the company!
The Flight Crew Policy Handbook is a valid,
legally binding, and enforceable contract.
(Emphasis in original).
The PIREPS newsletter for June 1995, the first issued by the
newly elected pilot representatives, included the following:
. .. When gnawing issues are resolved, things
like sick leave over-utilization cease to be a
problem as well. Modifying intrusive,
increasingly demanding work rules (like
unfettered reserve utilization, drafting, ever
lengthening trips, adversely defined and
inconsistent rest) is not only a fiscally
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responsible path to the long term health of the
company, it's the right thing to do!!
I am convinced the company will, finally make
those corrections. Even while the form that
our pilot organization will take has been
kicked around; while we debate the question -
‘what will get management's attention?' - the
company continuously provided our Pilot
Group the financial resources running to
thousands of dollars per year, to communicate
freely and efficiently. They pay for all the
printed material we distribute, as well as a
voice mail system! They allow us hundreds of
paid duty hours per bid to address issues we
decide are important to us. We do enjoy some
enlightenment among management personnel.
. . . We can choose union representation and
get more strictly enforced work rules; but what
will those rules be like? Westair's? We would
still face the same management, with their
same ethics. And the ongoing Mesa-Westair
conflict illustrates well that a union does not
ensure ethical progress (a given since unions
historically are ‘ethically Challenged'
themselves).
Our forum allows exceptional communication
with management if we pursue it. The small
improvements we are about to present the Pilot
Group may be baby steps, but they are headed
in the right direction. More will be coming,
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As long as we are not ‘dead in the water,’ we
are making progress toward that desired
objective - improved qualify of life. (Emphasis
in original).
Evidently, the carrier and PIREPS reached an
agreement with regard to the premium pay, and it remained
in effect while an amendment to the FCPH was put out for
ratification by the pilot group. Three additional amendments
to the FCPH were agreed to by the company and PIREPS and
submitted to the pilots for ratification at this same time. These
included formalizing the 10 hours rest, including reserve
assignments (a unilateral change announced by the carrier on
April 3, 1995), a change to the uniform section allowing the
removal of ties in the cockpit, and a change to stagger
elections for pilot representatives. According to the minutes
of the next PIREPS Board meeting, on July 6, 1995, Keniath
distributed "company produced final version ballots" for
approval of amendments to the FCPH that the PIREPS Board
had decided to send to the pilots for ratification. The minutes
reflect that the PIREPS board accepted them "[s]ince they
were substantially the same content the Board produced".
Finally, at the July 6, meeting, Keniath presented
information from "Agreement Dynamics," a consulting firm
providing seminars in team building, negotiating, and
innovative problem solving. According to the minutes,
Horizon had agreed to send the Pilot Representatives to these
seminars. At the next PIREPS Board meeting on July 20, the
Pilot Representatives met with a representative from
Agreement Dynamics who indicated that she would not be a
"union buster."
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During July, the carrier and PIREPS continued to
negotiate reserve issues and a guaranteed company match on
401K contributions. The carrier had a practice of matching
contributions but this was not formalized in the FCPH. The
carrier agreed to pay all RON (remain over-night) trip time at
the RON regardless of domicile pass through, effective July
30. Apparently, the RON rate issue did not require pilot
ratification as i< .epresented resolution of a long standing
dispute over interpretation of the existing FCPH.
By letter dated July 31, 1995, Keniath sent a detailed
update to all pilots. The update include a briefing on "pilot
representative meetings" and discussion of how the FCPH has
evolved, in discussing the IBT's organizing campaign,
Keniath stated:
As a clear and unbiased understanding of the
facts is essential to both change and good
decision-making, allow me to clarify a few of
the pertinent issues and facts.
That letter continued by providing in pertinent part:
You want the Pilot Representative Program to
change. Change is good - there need to be
changes for you [to] believe that you have a
credible program. My job is to give your Pilot
Representatives the tools they need to properly
represent you and your interests. Current Pilot
Reps, far from being under ‘management
control,’ are working hard to deliver the
changes which you are asking for. I resent
allegations (as I know your pilot reps do) that
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they somehow cannot do a credible job
because management supports the program.
This attacks not only the current program, but
all of the previous representatives who have
worked hard to build what you have today.
The minutes of the August 9 meeting of the PIREPS
Board reflect that Horizon had identified an office which
would be provided to the Pilot Representatives. Those
minutes also reflect that Kathy Iskra, then Horizon's President
and CEO and Ayer‘, joined the meeting. The minutes
described Iskra's participation as follows:
Kathy pointed out that in her past experience
with unions the contract is unchangeable for 3
years. The brainstorming session for shared
ideas with management and employees
wouldn't happen. In a union environment there
is no sharing. Horizon is not stonewalling.
Current issues are being approved under
Horizon's own agenda, not in response to a
union drive. (Emphasis in original).
The minutes of that meeting also reflect that "[aJn
office has been identified and will be provided for the Pilot
Representatives”.
In September, additional amendments to the FCPH
were authorized and sent out for ratification. Most of these
* At that meeting, Ayer announced that he would be
leaving Horizon.
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amendments codified and clarified the unilateral changes
imposed by Horizon in Ayer's April 3, 1995 letter.
Amendments also included improvements in reserve policies
and a new proposal providing a compensatory day off plus
premium pay for a drafted pilot.
V. Communications after the IBT Applied
for the Board's Servi
A.
The IBT filed its Application with the Board on
September 21, 1995. The minutes of a PIREPS Board meeting
on September 28, 1995, reflect that Keniath informed PIREPS
that, as a result of the IBT's "notification of representational
election", Horizon and the PIREPS board were "officially in
Status quo". The minutes state:
For our purposes it means no new reform
proposals can be introduced, either by the
company, or by the pilot group. It does,
however, allow completion of those items and
issues currently under consideration.
On September 29, 1995, Dan Scott, then Horizon's
Vice President for Flight Operations, sent a letter to all pilots
discussing the IBT's application and the Board's processes.
That letter provided in pertinent part:
You are probably aware: that I (and many
others) do not believe representation by the
Teamsters to be in the best interest of the pilot
group. The company will remain ‘out of the
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fray,’ so to speak, and allow you to make your
own decision based upon facts and your own
personal convictions. At the same time, of
course, I would like to be able to present you
with information as well as an explanation of
my position.
Accordingly, this is my plan:
e to provide clear, factual
information; and to ensure that
all pilots have the opportunity
to have any question answered
regarding unions, the
company's position, or the
NMB election process.
e to ensure managers are
available to answer your
questions.
e to clearly articulate the reasons
why I do not believe union
representation to be in your
best interest.
Let me begin by answering some frequently
asked questions:
How does the NMB election process work?
All eligible pilots will receive a ballot. If you
desire a union, you indicate this on the ballot
and return it to the NMB via mail. If 50%,
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MB Findings Upon Investigation-Order - 7/24/97
plus one, of eligible voters return a ballot
requesting some sort of representation, a union
will be certified. The union chosen as your
bargaining representative will be the one
which has the majority of votes (out of that
50% plus one).
Scott's letter continued by demonstrating that the IBT
could be certified with only 25% plus one of the votes if other
organizations received the remaining 25% of the votes. The
letter posed another question:
Is my decision to vote (or not to vote) in this
election a secret?
Absolutely. No one, neither Horizon nor the
union, has any right to know whether you
voted or not. If anyone asks how you voted, or
puts any pressure on you to vote one way or
the other, that is illegal. What you decide is
secret. You can rest assured that Horizon will
do everything we can to ensure that no one
violates your rights with regard to the secrecy
of your vote... .
Why do I not favor Teamster
representation?
It is my personal belief, which your other
flight operations managers share, that union
representation is not in the best interests of our
pilot group. First, a union becomes an
additional layer which separates pilots from
their managers. We need better, closer
communication and understanding; not the
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increased bureaucratic structure which a union
could impose.
Secondly, I believe the union element makes it
more difficult to work together directly. It is
no coincidence that the most successful
companies in the 90's are characterized by
close-knit, cooperative employee/management
relationships. I believe that we can develop
this relationship-for the good of everyone. In
our highly competitive and dynamic
marketplace, Horizon will benefit from the
continued ability to respond quickly to changes
and demands. You will benefit from the
greater health and profitability of the company
and from a closer, more personal relationship
with your managers.
Finally, the business nature of union, in my
opinion, works against the close cooperative
relationship mentioned above. To continue to
justify their existence, to justify your need for
their services, unions must perpetuate a
climate of fear and distrust. If there were not
this continual distrust of the company, of your
managers, you wouldn't need a union! What
has been identified as one of our biggest
problems-this lack of trust-could be made
worse, not better. We seek to find solutions
and achieve a positive environment where
relationships and people are more important
than objectives and things. Unions, I think,
characteristically work against this, with a
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constant negative slant, mistrust of
management motives, and characterization of
‘the company’ as your enemy.
If I do not support the Teamsters, how can
I vote against them in an election?
As explained above, it is easy to vote for a
union-you must mail in your ballot. However,
the best way to vote against the Teamsters is
not to vote at all-just do not return your ballot.
Under the law, if a majority of eligible pilots
return valid ballots to the NMB, then a union
with a majority of the votes cast will be elected
to represent the entire pilot group.
I hope that the above remarks answer some of
the initial questions which you may have.
Union membership in the United States has
declined over the years-less than 11% of
private sector employees belong to a union. I
honestly believe that we can work better in a
non-union environment toward common goals
and a better future. Please contact me, or any
of your flight ops managers if you have any
questions.
The October 1995 issue of “Operations Monthly", a
publication of Horizon Air Flight Operations, published an
interview with Iskra which stated in part:
LH: What are your thoughts on _ the
Teamster's election?
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KI: With my heart and head, I strongly
believed that retaining the pilot representation
program is the way to go. I think our pilots are
best represented by fellow pilots, whether it's
negotiating scheduling rules or pay levels or
anything else.
Too often it seems, an ‘us versus them’
mentality grows between labor union
leadership and company leadership. That's
unfortunate because it has the potential to
erode the trust so necessary to compete
successfully in this day and age. I respect the
pilots' right to vote in a union. It is their
choice. The pilots will be making an historic
decision for Horizon. If the Teamsters are
voted in, the decision effectively is permanent
--they'll probably represent the pilots for the
rest of their careers. I believe it would be
unfortunate to make such a permanent decision
without giving our new management team
more time. I would encourage pilots to ask
themselves what they will really gain, and
what could be lost forever.
The same issue included the following one page article
written by the Chief Pilot:
I was a member of a pilot union at Air
Wisconsin a number of years ago. It was a
local in-house union intimately familiar with
the company and the challenges it faced in the
industry at the time. Later, Air Wisconsin
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pilots joined a national union for many of the
same reasons being discussed here at Horizon.
Most of you know the story at Air Wisconsin
now and it is not pretty. This summer, while
on vacation with my family in Wisconsin, I
stopped by and talked with a few of the pilots
I used to fly with there. I heard some long sad
tales and walked around in a lot of empty
office space that once was needed to support
the finest Commuter/Regional airline in the
business. I am not saying that the pilot's [sic]
joining a national union did all of this; I am
Saying that we need to stay a family and the
Teamsters are not our family.
In any representative group of people, Say a
group of 100 or more, there is a natural
difference in how we see the world. Usually
it's something like 30-40-30. Thirty percent of
. the people see it one way, thirty percent see it
the opposite way and forty percent will be
neutral or open to either way. The important
thing to remember is that these ‘other people'
may be our co-workers. It is okay for others to
see things as they do. We can agree to
disagree and live together. I believe it's even
better when we work together and focus our
combined efforts toward building a better
future for all of us, without a third party -
especially one with national priorities.
George Bageley, Horizon's new President and Chief
Executive Officer, attended the October 19, 1995 meeting of
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the PIREPS Board. The minutes of that meeting characterized
his participation as follows:
He also made it clear that our choice of future
organization is entirely in our own hands, and
will not be interfered with at all, by
management. His evaluation though, for
various reasons, was that the degree of pilot-
management cohesion follows the descending
order: current representation; in-house union;
and nationally affiliated union.
The October 19th meeting was the last meeting of the PIREPS
Board before the election of new Pilot Representatives. The
entire Board ran for reelection and won.
B.
During the next week, a Horizon official removed
invitations to a meeting with IBT organizers from pilot mail
folders. Invitations to a meeting with IBT organizers were
placed in pilot mail folders in the crew ready room at the
Portland International Airport on October 23, 1995. When the
pilot who had placed the invitations in the pilot folders arrived
in the crew ready room the next day, he found that the
invitations had been removed from the pilot folders. So the
pilot wrote new invitations informing Portland-based pilots
that the first invitations had been removed and inviting them
to the upcoming meeting. The new invitations were placed in
pilot folders during the morning of October 25, 1995.
Later that day, when the pilot walked into the crew
ready room, Assistant Chief Pilot Todd Henion was removing
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unclaimed invitations from the pilot folders. Henion did not
disturb a campaign message from an anti-Teamster pilot
which was also in the pilot folders. When confronted by the
pilot, Henion gave several reasons for removing the pro-
Teamster invitations, including that they were unsigned.
Horizon later asserted that Henion was correct in removing
the initial invitation because it was unsigned. However,
Horizon acknowledged that the second invitation was signed
and that under Horizon's policies, Henion should not have
removed it.
Cc.
On November 30, 1995, Bageley, Horizon's President
and Chief Executive Officer, sent the following letter to the
pilots:
You are probably tired of hearing about the
vote for representation by the Teamsters. I am
--and I have only been back a few weeks.
However, because it is such an important
decision for you and Horizon, I want to ensure
there is no misunderstanding about my
position.
Simply stated, I want a no vote - I want you
to throw away your ballot.
Representation by the Teamsters, in my
opinion, is a bad idea whose time has not
come.
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Recently, a Teamster supporter quoted from a
letter I wrote in 1987. Here again is the quote:
'I do not believe it is in everyone's best
interest to join ALPA (Teamsters) . . . We
would destroy the single most important
element necessary for a happy and harmonious
environment - trust. The feeling of shared
- beliefs and common goals with your co-
workers and managers is what makes this a
good job; it is what attracts people to small
companies and small town:. Without it, we are
just another airline and we have destroyed the
dream that was Horizon.’
I like what I said then, and I still believe it
today. It is my personal belief that union
representation, especially a national union like
the Teamsters, is not in the best interest of our
pilot group. I believe the union element makes
it more difficult, time consuming and costly to
work together, and over time, results in less to
the pilots and not more. What we have today
is not perfect - it's just far better than any
other alternative.
Of course the choice is yours. It is an
important one - I trust you will do the right
thing.
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D.
During the Fall of 1995, Horizon and PIREPS
continued to negotiate the reserve policy. Apparently, an
agreement was reached, but that agreement was not put out
for a ratification vote as were most other amendments
discussed herein. Instead, the reserve policy was voted on by
the PIREPS Board on December 28, 1995, the date of the
scheduled NMB count. The PIREPS Board explained this
action as follows:
. .. We invoked the voting provision of FCPH
6.A.1 page 70 for 2 reasons. First because of
the Teamster vote. Essentially, if the
Teamsters were voted in before the voting
period was complete, we would revert to a
hard and fast status quo. You would not have
the revision and we would have wasted seven
months of labor. Secondly, we did not want to
be accused of attempting to influence the
outcome of the vote by submitting this to the
pilot group during the balloting period. ore
V. EMPLOYEE COMMUNICATIONS DURING
THE CAMPAIGN
A. IBT Communications
During the campaign, the IBT held employee meetings
and issued over 24 newsletters, most of which were titled
"Horizon Air Pilots Newsletters." In addition, a variety of
publications supportive of the IBT were issued under the
letterhead "HAFTU" or "Horizon Air Fliers Talking
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Unionization". Some of these documents were on IBT
letterhead, others were not so identified.
B. PIREPS Communications
During the Spring and Summer of 1995, the PIREPS
typically published a monthly Newsletter that was usually
about ten double-sided typed pages. Beginning with the
September 1995 issue, the PIREPS Newsletter had a more
professional typeset appearance. The print was smaller and
laid out in columns like a newspaper. The September and
- October issues consisted of four single-sided pages each.
Statements provided by PIREPS Board members and
a pilot indicate that the redesign of the newsletter was planned
by the PIREPS Board and implemented by a pilot volunteer
who offered to do the design and layout work on his home
computer. The statements indicate that the new format
reduced the cost of reproduction significantly. Before the
format was changed, publishing the newsletter cost Horizon
about $500 per month.
The IBT asserts that the PIREPS Newsletters were
used by Horizon as a means of using employees to convey an
anti-union message to the pilots. In support of its arguments,
the IBT submitted voice mail messages from Keniath to
PIREPS. One message, in response to the Newsletter's new
format in September of 1995, included the following
statement:
Not only does it look good. I mean it is just
such a quality looking professional put
together publication but in (sic) the content is
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just tremendous. Ah . . . especially thank Joe
Wydronek for his Article there, 'Why do we
have to’, and it has a catchy title and you can't
Say it any better than that. . . .[I]t's the best
argument coming from somebody like Joe who
carries a lot more weight than obviously
anybody else. He's been there. . . .
The PIREPS Newsletters contained articles and letters
critical of management. According to the PIREPS Board
Member who edited the newsletter, the carrier did not
exercise editorial control or influence and articles by Board
members opposing the IBT campaign were expressions of
their personal opinions and were in no way influenced by the
carrier. Statements by current and prior Board members of
PIREPS indicated that the long-standing policy of the
Newsletter was to publish any letter which did not include
profanity or personal attacks. PIREPS Newsletters included
letters critical of PIREPS and supportive of the IBT
campaign. One letter supportive of the IBT campaign stated:
First things first - we have to have an election.
Send in your cards and vote for the union you
think would do the best job by us.
Other letters published in the Newsletter were supportive of
PIREPS and critical of the IBT. For example, one letter had
an article attached to it which contained allegations of
corruption and organized crime involvement in IBT.
The October issue of PIREPS announced an election
for PIREPS Board Members and contained letters and articles
written by the current Board Members who were running for
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re-election. There were no other candidates. Most of the
articles and letters were supportive-of the PIREPS program
and critical of the IBT.
A "Special Edition" of the PIREPS newsletter was
issued dated October 27, 1995. It contained articles written by
the Pilot Representative candidates and coincided with the
Pilot Representative elections. It also coincided with the
mailing of NMB ballots. The lead article was titled "Pilot
Reps, In-House, or Teamsters?" Most of the articles were in
favor of pilot representative or in-house representation.
The November issue of the PIREPS Newsletter
focused largely on newly proposed FAA rules but included
both pro and anti iBT letters.
DISCUSSION
Under Section 2, Ninth, of the Act, the Board is
charged with the responsibility of assuring that employees are
provided the opportunity to make a choice concerning
representation free of interference, influence or coercion by
. the carrier. This duty requires that, where there are
allegations of carrier interference, the Board has the
responsibility to investigate such claims. Metroflight, 13
NMB 284 (1986), and Key Airlines, 13 NMB 153, (1986).
When considering whether employees' freedom of
choice of a collective bargaining representative has been
impaired, the Board examines the totality of the circumstances
as revealed through its investigation. The Board makes an
evaluation of the facts developed from its investigation
including submissions provided by the organizations and the
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carrier and past Board experience. America West Airlines,
Inc., 17 NMB 79 (1990), Evergreen International Airlines, 20
NMB 675 (1993).
Il.
The carrier is under an obligation imposed by the
Railway Labor Act to act in a manner which does not
influence, interfere or coerce the employees’ selection of a
collective bargaining representative. Metroflight, supra. In
Texas & New Orleans Railway v. Brotherhood of Railway
and Steamship Clerks, 281 U.S. 548, 567 (1930), the
Supreme Court stated:
'‘Interference' with freedom of action and
‘coercion’ in this case may be gathered from
the context . . . The use of the word is not to
be taken as interdicting the normal relations
and innocent communications which are a part
of all friendly intercourse, albeit between
employer and employee. ‘Influence’ in this
context plainly means pressure, the use of
authority or power of either party to induce
action by the other in derogation of what the
Statute calls 'self-organization.' The phrase
covers the abuse of relation or opportunity so
as to corrupt or override the will, and it is not
more difficult to appraise conduct of this sort
in connection with the selection of
representatives for the purposes of this Act
than in relation to well-known applications of
law with respect to fraud, duress and undue
influence.
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Under Section 2, Ninth of the Act, the Board has
broad discretion to tailor its investigation to the facts and
circumstances of each case. Evergreen International Airlines,
supra; Florida East Coast Railway, 17 NMB 177 (1990); Key
Airlines, 16 NMB 296 (1989). When the Board has found
carrier interference, it has employed a variety of special
ballots and notices intended to eliminate the taint of
interference on the employees' freedom of choice of
representative. The Board's methods of determining the
employees' choice of representative vary on a continuum
determined by the extent of the carrier interference found.
The continuum begins with a finding that the carrier had not
interfered with the employees’ choice of representative. The
continuum ends with interference so outrageous that, in the
Board's judgment, alternate means of gauging employee
sentiment other than a secret ballot election are appropriate.
Illustrative of one end of the continuum are those cases
in which the Board has found that the allegations of election
interference were not supported by the record. For example,
in USAir, Inc., 18 NMB 290 (1991), the Board's
investigation established that, although there were isolated
objectionable incidents, the carrier did not engage in a
"systematic" effort to interfere in an election. See also
Northwest Airlines, 19 NMB 94 (1991).
There have been a number of cases in which the Board
has found that the level of interference warranted a re-run
election using the Board's standard ballot procedures and a
special notice. Examples of such cases include America West,
Inc., 17 NMB 79, 102 (1990), where the carrier's conduct
under the totality of the circumstances, including the timing
of new benefits during the election campaign, interfered with
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the initial election. See also USAir, Inc., 17 NMB 377
(1990).
Moving along the continuum of approaches for
ensuring the employees’ free choice of representative, the
Board changes its balloting procedures in response to conduct
interfering with employees’ choice. In Laker Airways, Lid.,
8 NMB 236 (1981), the Board ordered a re-run election using
a "Yes" or "No" ballot. No write-in space was provided, and
the majority of votes cast determined the outcome of the
election. The Board's approach in Laker was based upon the
totality of the carrier's conduct, which included soliciting
employees to turn in their ballots to a carrier official,
increasing pay immediately before the election period, and
polling employees as to their representation choice. The
decision in Laker was the Board's first response to election
interference by means of a revised balloting process.
As the conduct grows more egregious, the Board
employs procedures designed to provide increasing safeguards
for employees’ freedom of choice of their representative. In
Key Airlines, 16 NMB 296 (1989), the Board used a ballot
which would result in certification of the organization unless
a majority of eligible voters returned votes opposing union
representation. No write-in space was provided. In Key, the
Board's approach was based upon the totality of the carrier's
activities, which included denying a scheduled pay increase to
employees in one craft or class immediately after a
representation application was filed, holding meetings for the
express purpose of discouraging organization, and threatening
employees’ job security should they vote for representation.
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At the end of the continuum where the carrier's
conduct is so pervasive and egregious that it can be
considered outrageous, the Board will employ alternate means
of gauging employee sentiment such as a check of
authorization cards. Sky Valet, 23 NMB 276, 298-299
(1996). In Sky Valet, supra, the Board's approach was based
upon the totality of the carrier's activities which included
creating the impression of surveillance by repeatedly telling
employees they knew who signed authorization cards,
questioning employees as to whether they signed authorization
cards, threatening employees with discharge if they supported
the organization by signing an authorization card, and
discharging employees within days after they had signed
authorization cards because they had exercised their right to
select a representative pursuant to Section 2, Ninth of the Act.
lif.
Based upon the totality of the circumstances in this
case, the Board finds that Horizon's actions during the IBT's
organizing campaign tainted the laboratory conditions
necessary for a free and fair election. Horizon communicated
a clear message to the pilots that it preferred PIREPS, the
quasi-pilot bargaining program it had created and supported,
to the IBT. Horizon also used the PIREPS program to provide _
work rule improvements after the carrier learned of the IBT's
campaign.
A.
The Board has stated repeatedly that the laboratory
conditions must be maintained from the moment the carrier is
aware of the organizational drive, Key Airlines, 16 NMB at
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311 (1989); US Airways, supra. In this case, the carrier was
aware of the pilots’ discontent as early as the February 21,
1995 PIREPS Board meeting. Shortly after that meeting, the
PIREPS Newsletter listed three options available to the pilots,
a continuation of PIREPS, an in-house union or a national
union. The Pilot Representatives resigned on March 15. In his
resignation letter, a former Pilot Representative mentioned a
national union as the next step. The March 21, PIREPS
Newsletter mentioned a national union twice. On March 30,
the IBT issued a newsletter opening its organizing drive.
While it is not clear exactly when the carrier became
aware of the IBT's organizing drive, Horizon was aware of
talk of a national union by late February of 1995 and was
certainly aware of the IBT's campaign on or shortly after
March 30, 1997.
B.
The Board has previously considered the question of
whether a carrier's role in connection with employee
committees or similar entities constitutes election interference
and has made its determinations based upon the particular
facts of each case. The Board has taken the view that the
existence of active employee committees at a carrier is not
necessarily improper interference with an election. Federal
Express Corporation, 20 NMB 7 (1992). The Board looks at
factors such as the timing of the formation of the committee
and whether a carrier encourages employees to form
committees as an alternative to unionization. Where employee
committees are instituted or used to interfere with employees’
freedom of choice to select a representative for collective
bargaining purposes, the Board will take appropriate action.
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For example, in Metroflight, 18 NMB 532 (1991), the
Board found interference and ordered a re-run with a "Laker"
ballot because the investigation revealed, inter alia, that
Carrier Officials “attempted or offered to assist in the
formation of an in-house group of employees, whether they
referred to it as a union, or as a committee, during the time
period in which the Board has repeatedly stated that
laboratory conditions must be maintained." The Board also
found that certain carrier officials “attempted to influence the
outcome of the election by encouraging employees to directly
deal with management, either individually or through an
employee committee." However, in making its determination,
the Board stated that it does not make a finding that
"employee committees in and of themselves violate the Act."
In Federal Express Corporation, supra, the Board
focused on the timing of the formation of a “cope committee."
While noting that the carrier had “historically used
committees to deal with or to enhance communications on
various work-related problems,” the Board was “disturbed by
the timing of the formation of the committee, in the middle of
the election period." Based upon the totality of circumstances,
the Board ordered a re-run election, using its standard ballot.
The Board ordered a re-run election using a "Laker"
ballot in Evergreen International Airlines, 20 NMB 675
(1993), based upon a number of factors. The carrier granted
benefits, held 51 meetings with employees in a one-month
period, and encouraged “at least some of its employees to
form or join” an in-house association in the time period after
an organization had filed its application and the Board had
authorized an election.
NMB Findings Upon Investigation-Order - 7/24/97
The Board took no further investigatory action in
Continental Airlines, 21 NMB 229 (1994), where the
applicant organization had alleged that the carrier “unlawfully
bargained with the carrier-assisted Employee Council" and
"utilized the council to wage an anti-union campaign." The
investigation established that the Council had been in
existence for ten years prior to the election and had been used
to "provide management with employee input and to create a
forum for discussing operational issues of mutual concern."
Changes made as the result of Council meetings were the
result of "an ongoing discussion . . . which spanned several
years." The Board also found that a company-wide “pay
restoration” announced and implemented during the
applicant's organizing campaign did not taint the laboratory
conditions. The Board:
[R]ecognize[d] that the Council's discussion
with the carrier progressed during the course
of [the] organizing drive. However, there is
insufficient evidence that this progress came in
response to or as a result of the . . . campaign.
Most recently, in US Airways, 24 NMB 354, 385
(1997), the Board specifically addressed some of the complex
factors associated with employee committees. In that case, the
Board identified initial standards applicable to carrier election
conduct in the context of employee committees or in-house
groups of employees. Based upon past precedent, the Board
gave examples of carrier conduct vis a vis employee
committees which interferes with employee freedom of
choice. US Airways, supra. Those examples are:
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1) The establishment of a committee at any
time after the carrier becomes aware of a labor
organization's organizing efforts;
2) A material change, or a carrier
representation of such a change, during the
critical period in the purpose or activities of a
pre-existing committee;
3) The use of a pre-existing committee to
expand employee benefits during the critical
period (the continuation of existing benefits is
a prerequisite of a fair election);
4) Carrier campaigns which indicate a pre-
existing committee is, or should be, a
substitute for a collective bargaining
representative;
5) Carrier campaigns which indicate that the
certification of a labor organization as the
representative of the employees will lead to the
termination of a preexisting committee.
The Board noted that the examples were designed to
provide "general guidance concerning carrier actions in
connection with employee committees." US Airways, 24
NMB at 386. These examples are not exclusive, and any of
them may be considered when evaluating carrier conduct
during an election campaign. In US Airways, supra., the
carrier had engaged in each of those activities. In response,
the Board ordered a new election with a special notice to each
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eligible voter, and provided the organization with a list of
home addresses.
C.
In this case, the PIREPS program was functioning
long before the IBT's organizing drive. However, the record
establishes that, after learning of the IBT's organizing drive,
Horizon sought to convince the pilots that PIREPS was a
substitute for a collective bargaining representative, used the
PIREPS program to make changes in working conditions,
represented that PIREPS had undergone significant changes
that responded to pilot concerns and created more input from
pilots.
~ After the IBT announced its organizing campaign,
Horizon, in its communications, began to portray PIREPS as
a hybrid between an in-house labor organization and an
employee committee. For example, Ayer's April 14, 1995
letter to the pilots characterized the FCPH as "your agreement
with the company” and told the pilots they were not "at will"
employees because they had a binding agreement with
Horizon which included wages, rules and provision for
binding arbitration. That letter specifically detailed all of the
attributes of a typical collective bargaining agreement which
are included in the FCPH. That letter also said to the pilots
explicitly, "you don't need a union."
Two months later on June 14, Keniath wrote to the
pilots suggesting that their goals could be achieved best by
"individual company work groups" rather than "national
unions" and touted the agreement Southwest Airlines had
reached with its in-house pilot union. Keniath also told the
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pilots that Horizon acknowledged a problem with the FCPH
and would work to amend the FCPH to address pilot
concerns. Keniath continued by describing to the pilots how
the IBT would take a long time to achieve change, while
change with PIREPS would be immediate.
Keniath reiterated Ayer's message in a June 21, 1995
letter stating that if Horizon violated the FCPH, the "pilot
group" could choose to enforce the "agreement" through
binding arbitration or in court, and emphasized the benefits of
immediate amendments to the FCPH.
By letter dated July 31, Keniath again wrote to the
pilots suggesting that the Pilot Representative Program was an
instrument of change and described his job as providing the
Pilot Representatives with the "tools they need to properly
represent [the pilots]."
In October of 1995, Kathy Iskra, then Horizon's
President and CEO, stated her view that Horizon's pilots "are
best represented by fellow pilots." In that same publication,
Horizon's Chief Pilot discussed the situation at a regional air
carrier where pilots represented by an "in-house" union joined
a national union, which led to "long sad tales" and "lots of
empty office space."
These messages, and other similar messages which
discussed the problems with a "national" union, stressed that
the best representation is local and that the FCPH is a binding
agreement, while stressing the delay, cost and potential
consequences allegedly associated with the IBT. The messages
illustrate Horizon's message to the pilots that they did not
need a national union because they had the PIREPS program.
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A carrier is free to communicate its views regarding
representation in a non-coercive manner during an election to
its employees. Federal Express Corporation, 20 NMB 659
(1993), USAir/Shuttle, 20 NMB 162 (1992), USAir, 17 NMB
377 (1990). However, the Board also has found that a
carrier's right to communicate "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). Horizon’s
communication of the message that the PIREPS program is a
substitute for unionization is a factor leading to the Board's
finding that the carrier interfered with employee's free choice
of representative.
Additionally, the PIREPS Board, which had been
complaining that it had difficulty gaining management's
attention during the Winter of 1995, received significant
attention from Horizon management in the form of the
creation of the Director Safety/Pilot Communications.
Horizon's top management, including its President and CEO
and the Senior Vice President for Flight Operations attended
several PIREPS meetings.
D.
Horizon used the PIREPS program to implement work
rule changes during the IBT's campaign. After the IBT
announced its organizing campaign, PIREPS was able to
achieve changes to the FCPH on several issues that had been
longstanding problems for the pilots. Throughout the IBT's
organizing drive, Horizon continuously made agreements with
the Pilot Representatives which resulted in either small
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increases in pay (i.e. change in the RON rule) or in work rule
changes long sought by the pilots (ten hour rest).
Horizon granted a series of benefits in a letter to the
pilots on April 3, 1995, four days after the IBT announced its
organizing campaign. Specifically, in the April 3 letter,
Horizon increased premium pay, expanded the rules for
bidding on reserve trips, extended the minimum scheduled
rest time and increased compensation for pilot representatives
from $100 to $300 per bid period.
Furthermore, Horizon used the Pilot representative
Program to ratify the benefits granted in April 1995 over the
course of the IBT's organizing drive. Horizon also used the
Pilot Representative Program to enhance work rules during
the IBT's campaign. For example, at the July meeting, the
carrier and the pilot representatives agreed to pay all RON
trip time at the RON rate regardless of domicile pass through.
During the Summer and Fall of 1995, the Pilot
Representatives and Keniath continued to discuss reserve and
scheduling issues. PIREPS and Keniath also proceeded
quickly to agree to several amendments to the FCPH which
codified changes implemented by the carrier in April. The
carrier also provided amendments for PIREPS which included
ten hour rest periods and permitting neckties to be removed
in the cockpit. After each PIREPS meeting, Keniath wrote to
the pilots summarizing the progress they had made. Horizon,
through Keniath, ensured that pilots were constantly reminded
that the Pilot Representatives were successful at achieving
quality of life benefits and other gains throughout the
organizing drive. While Horizon's grant of benefits to pilots
during the organizing drive were minimal, when combined
with Keniath's communications about the benefits, they
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effectively continued to reinforce the message that the
PIREPS program could get immediate positive results for
pilots. Therefore, the Board finds that the grant of these
benefits are a factor leading to the finding that the laboratory
conditions were tainted. See Evergreen, supra.
E.
The IBT alleges that the carrier used the PIREPS
Newsletter to support its campaign against the IBT. In
particular, the IBT points to the Newsletter's new format in
September of 1995 and voice mail messages from Keniath to
the Pilot Representatives congratulating them on an anti-union
article in the Newsletter. The record establishes that the
change in the Newsletter's format was employee generated.
The record further establishes that, despite carrier funding,
the Pilot Representatives exercised complete editorial control
over the PIREPS Newsletter.
F.
Citing the invitations to an IBT meeting which Henion
removed from pilot folders, the IBT asserts that it was denied
access to Horizon's pilots. However, the record demonstrates
that the IBT was able to spread its message in the PIREPS
Newsletter and in at least 24 of its own newsletters. It appears
that Henion's removal of IBT invitations from pilot mailboxes
at Portland International Airport was an isolated incident. The
Board does not find that the IBT was improperly denied
access to the voters.
87a
NMB Findings Upon Investigation-Order - 7/24/97
CONCLUSION AND ORDER
Based upon the totality of the circumstances in this
case, the Board finds that the laboratory conditions required
for a fair election were tainted. The Board's decision is based
upon its findings that Horizon communicated to pilots that the
PIREPS Program was a substitute for a collective bargaining
representative; used the PIREPS program to provide work
rule improvements during the organizing campaign;
represented that PIREPS had undergone significant changes
that responded to pilot concerns and permitted more impact
from the pilots. The Board has determined these actions to
constitute interference with employee free choice. Therefore,
pursuant to its authority under Section 2, Ninth, the Board
hereby ORDERS a re-run election, using the Board's standard
ballot. The Board will also mail a special "Notice to All
Employees" identical to the Notice attached to this decision.
‘That "Notice" will be included with the election materials.
The Carrier must post this Notice at all stations, making sure
both pages are visible. Failure to post the Notice will be
considered as a basis for overturning the election results. In
addition, the carrier must provide the IBT with a list of
employee home addresses at the same time the carrier
provides the Board with mailing labels, i.e., five calendar
days from the date of this decision. The addresses should
correspond with the list of eligible voters as finalized at the
count on January 23, 1996, with the exception of employees
who have left the craft or class since that point. No em
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