Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

1. 430. The complaint is contained in a communication dated 4 December 2008, the Association of Flight Attendants – Communications Workers of America (AFA–CWA) and the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO).
2. 431. The Government sent its observations in communications dated 8 October 2009, 25 January and 25 May 2010.
3. 432. The United States has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 433. In a communication dated 4 December 2008, the complainant alleged that the National Mediation Board (“NMB” or “Board”), an independent agency of the US Government, has erected significant barriers to airline and railway workers in the United States who seek to form unions and obtain collective bargaining representation. The obstacles imposed by the NMB have deprived thousands of flight attendants at Delta Air Lines, Inc. of freedom of association and their rights to organize and bargain collectively.
2. 434. The complainants explain that in 2008, more than 13,000 flight attendants at Delta Air Lines, Inc. (“Delta”) sought to gain union representation with the Association of Flight Attendants – Communications Workers of America (“AFA–CWA”). Their struggle illustrates the severe challenges workers face in organizing under the NMB’s rules and procedures. Delta waged an aggressive anti-union campaign that successfully prevented its flight attendants from freely selecting union representation. The NMB refused to prevent or remedy Delta’s interference, leaving Delta’s flight attendants without union representation as the employer moves to conclude an historic merger that will affect the flight attendants’ work lives for years to come.
3. 435. The National Mediation Board administers the Railway Labor Act (“RLA”), which establishes a separate labour law regime specifically for railways and airlines, distinct from the National Labor Relations Act.
4. 436. The RLA provides the following:
   • Employees shall have 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 ...
5. 437. If any dispute arises regarding representation of a carrier’s employees, the Board will investigate the dispute and certify the authorized representative to the carrier. In conducting such an investigation, the Board may take a secret ballot of the employees concerned or use any other method that will “ensure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier”.
6. 438. The NMB’s standard method for resolving representation disputes is to conduct an election by secret ballot. The NMB will conduct an election where no representation currently exists only after receiving signed authorization cards from at least 35 per cent of the employees in the craft or class concerned. Once sufficient authorization cards are received, the NMB will establish a voting period during which a secret ballot election is conducted. When the election period closes, the NMB tallies the votes in the following manner:
   • - First, the NMB requires an absolute majority of eligible employees to cast a valid ballot in order to have any representative certified as a bargaining agent. Consequently, the NMB counts any eligible employees who do not participate in the election as votes against representation.
   • - Second, the NMB will also invalidate any ballots where the voter’s intent is unclear, votes indicating no desire for representation, votes cast for a carrier or carrier official, and votes where the voter has written in “self”, “self representation”, or the equivalent, as votes against representation.
   • - Finally, if the required majority of eligible employees cast valid ballots, a representative must receive a majority of the ballots that were cast in order to be certified.
7. 439. If the required majorities in favour of representation are not reached, the NMB will dismiss the application and refuse to certify a bargaining representative for the employees concerned.
8. 440. The US Supreme Court has upheld the NMB’s election rules, finding the choice of balloting method to be within the Board’s discretion. In upholding these rules, the Supreme Court noted that, contrary to prevailing wisdom at the time, omitting a “no union” box on the ballot and counting all non-votes as “no” votes could actually make it easier for employers to avoid unionization rather than facilitating worker organization and collective bargaining.
   • Using the Board’s ballot an employee may refrain from joining a union and refuse to bargain collectively. All he need do is not vote and this is considered a vote against representation under the Board’s practice of requiring that a majority of the eligible voters in a craft or class actually vote for some representative before the election is valid. The practicalities of voting -the fact that many who favor some representation will not vote – are in favor of the employee who wants “no union”. Indeed, the method proposed by the Board might well be more effective than providing a “no union” box, since, if one were added, a failure to vote would then be taken as a vote approving the choice of the majority of those voting. This is the practice of the National Labor Relations Board.
9. 441. As foreshadowed by the Court, the NMB’s rules have indeed been extremely effective in preventing workers from unionizing and gaining bargaining representation. Anti-union employers have taken shrewd advantage of the fact that “the practicalities of voting” will often prevent even those who do support representation from casting a vote. It is much easier for an employer to influence an employee to simply take no action and not vote at all than it is to persuade an employee to take the time to actively participate in an election and then cast a vote against representation. Employers can capitalize on this fact to lower participation rates, resulting in more non-voting employees who are counted by the NMB as opponents of representation.
10. 442. Even more troubling is the increasingly common practice among employers such as Delta of waging sophisticated and aggressive campaigns to suppress employee turnout in representation elections. A key element of such campaigns is a pervasive communications strategy, which takes advantage of the employer’s unique position as the only entity in regular and predictable contact with a travelling workforce to inundate workers with antiunion messages. The goal of these campaigns is not just to convince employees to oppose unionization on its merits, but to prevent employees from participating in the election at all. These voter suppression campaigns include coordinated and persistent instructions from employers to their employees to destroy their ballots or the governmentissued balloting information they need to participate in the election. In these campaigns, it is the ballot, the official balloting instructions, and the voting process itself that employers seek to transform into objects of derision, disdain, and fear. Employers direct their employees to rip up or shred the ballot and balloting instructions, warn them not to click or dial into the Internet and telephone voting systems, and alert them to beware of supposed ballot tampering or voter fraud.
11. 443. According to the complainants, through such campaigns, employers hope to avoid an honest debate among employees regarding the potential benefits of unionization. Once an employee follows her employer’s directions to destroy her balloting information, she is divested and disengaged from the election process. By destroying the balloting instructions, the employee has effectively cast a vote against representation before she has had time to discuss the merits of union representation with her co-workers or reflect upon what union representation may mean for her work life.
12. 444. In addition, the NMB rules create an incentive for employers who oppose unionization to try to inflate the number of employees supposedly eligible to participate in the election and thus artificially raise the number of votes required to establish a majority in favour of representation. Since information about employee status is uniquely within the province of the employer, opportunities for such manipulation of the system are rife, requiring constant vigilance by employees, unions, and the NMB itself.
13. 445. Furthermore, the NMB’s rules greatly increase the impact of even minor omissions and oversights by the election administrator on the right to organize. When the NMB fails to fully verify employee eligibility lists, it permits employer manipulation to inflate the number of non-voting employees counted by the NMB as opposing representation. In addition, when the NMB fails to mail balloting instructions properly, or indeed at all, the error carries a much higher cost in light of the NMB’s rules. While such failures may deny affected employees the ability to cast their votes for or against representation under other balloting regimes, under NMB rules these failures result in each affected employee being counted as an opponent of representation.
14. 446. Reflecting an implicit recognition that standard NMB election rules fail to offer adequate safeguards against employer interference, the Board will re-run an election under alternative procedures to remedy carrier interference after it has occurred. The so-called “Laker” ballot the NMB makes available in such cases is in a yes/no format, which permits voters to select a “no union” option. Under this method, the NMB does not require a majority of eligible employees to participate in the election, and the Board will certify a representative as long as it receives a majority of the votes cast.
15. 447. Despite the greater protection from employer interference afforded by this balloting method, the NMB will only provide a “Laker” ballot after an employer has already interfered in an election run under standard procedures. When employees request a “Laker” balloting method at the outset of an election campaign in order to discourage such employer interference from occurring in the first place, the NMB ordinarily denies those requests. Moreover, even after a tainted election has concluded, the NMB will not approve use of the “Laker” ballot until after an investigation and other proceedings establishing the extent of interference have been completed. Employees are deprived of representation during the pendency of these lengthy proceedings.
16. 448. In addition, the NMB has set an exceedingly high bar for access to a “Laker” ballot even after a standard election is completed. First, workers must establish that interference has occurred to a sufficient extent to merit remedial action. In nine out of the 13 interference decisions published by the NMB since 2001, the Board found insufficient evidence of interference to warrant the provision of any remedy. This was the case even where incidents of employer surveillance, harassment, and pervasive anti-union communications campaigns were presented. The NMB has granted particularly broad leeway to employers to mount campaigns urging employees not to participate in union elections. In part, this stems from judicial interpretations of the First Amendment of the US Constitution that protect the right of employers to speak out against unionization. The, NMB applies these protections for employers’ speech to permit carriers to urge workers in the midst of union election campaigns to destroy their ballots and balloting information, as long as such employer communications are not deemed coercive and do not contain material misrepresentations.
17. 449. Even if workers are able to demonstrate the existence of employer interference to the Board’s satisfaction, in some cases the Board still will not remedy such interference through access to a “Laker” ballot. The Board’s practice is to only grant requests for a “Laker” ballot in “unusual and extraordinary circumstances” where “egregious” employer interference has been demonstrated. In the four cases since 2001 where the Board has found that employer interference tainted the election period, a re-run election with a “Laker” ballot was provided in only one case. In that case, the workers were able to gain union representation in the re-run election with a “Laker” ballot. In the other three cases – even where the employers had dismissed union activists, held mandatory anti-union meetings, interviewed workers as to their union preferences, and/or granted benefits during the election period to influence the outcome – the Board authorized a re-run of the election but refused to provide a yes/no ballot that would allow workers to select a union based on a majority of the votes cast. Employees were able to gain union representation in the re-run election under standard NMB procedures in only one of these three cases.
18. 450. The NMB’s refusal to provide a “Laker” ballot or other sufficiently dissuasive remedial measures to protect employees from interference has contributed to the denial of union representation to thousands of railway and airline carrier employees since 2001. By far the most significant recent violation of workers’ freedom of association and rights to organize and bargain collectively under NMB rules has been the dismissal of applications for representation on behalf of flight attendants at Delta Air Lines, Inc.
19. 451. In 2001 and 2008, Delta waged an aggressive and sustained anti-union campaign to suppress voter turnout in the union election and interfere with their workers’ right to organize. As a result, even though AFA–CWA received virtually all of the votes cast in both elections, the NMB did not certify the union for failure to meet quorum requirements. Despite the evidence of Delta’s anti-union tactics presented to it, the Board refused to grant requests for a “Laker” ballot or to take any other measures to redress employer interference. The NMB’s actions facilitated and encouraged Delta’s violations of workers’ rights and denied Delta’s workers union representation.
20. 452. Delta holds a unique position in the US airline industry as the largest single carrier with unrepresented flight attendants. Delta’s non-union status is no accident according to the complainants. It is the result of Delta management’s instillation of a pervasive anti-union culture at the airline and its fierce commitment to fighting all efforts by its employees to organize. Unfortunately, Delta has benefitted in its anti-union campaigns from the rules and decisions of the NMB.
21. The 2001 flight attendant election at Delta
22. 453. A brief summary of the 2001 representation election provides important context for the 2008 election that is the chief subject of this complaint. On 29 August 200I, the AFA filed an application for investigation of a representation dispute with the NMB involving the unrepresented flight attendants at Delta.
23. 454. Before the application was filed and during the election itself, Delta engaged in numerous tactics to coerce flight attendants into not participating in the election. These interference tactics included the following: (1) the establishment of an employer-dominated “Flight Attendant Advisory Forum” to discuss wages and working conditions directly with employees; (2) company sponsorship of, and coordination with, an anti-union employee group called the “Freedom Force” and company promotion of the group’s anti-union message over that of pro-union workers; (3) management harassment, interrogation, and surveillance of AFA supporters, including through increased presence of supervisors in crew lounges where employee discussions regarding the representation election would otherwise occur; (4) a coordinated communications campaign that pervaded the workplace with anti-union messages; and (5) misinformation to employees regarding the election process and repeated entreaties from management to employees to “give a rip” and destroy their ballots.
24. 455. The AFA twice sought the NMB’s assistance to combat this employer interference, once before the election took place and again after the election was completed. In both instances, the NMB refused to take action to protect the flight attendants’ right to organize.
25. 456. On 6 September 2001, the AFA filed a motion with the NMB seeking a determination that Delta was interfering with its employees’ right to organize and requesting that the election be conducted with a “Laker” ballot. On 26 October 2001, the NMB found that a prima facie case of interference had been established, but denied the request for a “Laker” ballot and committed to further investigate the interference allegations after the election took place. On 7 November 2001, the Board determined that the election would take place under standard balloting procedures.
26. 457. Delta continued to wage its aggressive anti-union campaign, distributing and promoting anti-union messages, harassing union supporters, and urging flight attendants to destroy their ballots and not participate in the election. The NMB counted the ballots on 1 February 2002. The AFA received 5,520 votes, accounting for 98 per cent of the nonvoid ballots that were cast. However, since only 30 per cent of the 19,033 eligible employees participated in the election, the NMB dismissed the AFA’s application.
27. 458. After the election, the Board continued the interference investigation it had initiated in response to the AFA’s pre-election motion. The NMB issued its findings on 12 December 2002. While the Board found an array of evidence supporting the AFA’s interference claims, and announced that it was “troubled” and “disturbed” by Delta’s anti-union conduct, the Board ultimately concluded in a split decision that these instances of employer interference did not merit ordering a repeat election with a “Laker” ballot: One member of the threeperson Board issued a strongly-worded dissent, stating that he was “at a loss to understand [the majority’s] tortured reasoning”. The dissenting Board member concluded that Delta’s interference had tainted the laboratory conditions necessary to conduct a free and fair election.
28. 459. Because the NMB refused to act on this “troubling” and “disturbing” evidence of employer interference, Delta’s flight attendants were denied the opportunity to use a yes/no “Laker” ballot. Unable to overcome Delta’s anti-union voter suppression campaign, and denied redress by the NMB, the flight attendants were deprived of bargaining representation.
29. The 2008 flight attendant election at Delta
30. 460. In 2008, Delta’s flight attendants once again sought union representation. On 14 February 2008, AFA–CWA filed an application for investigation of a representation dispute with the NMB. The NMB authorized an election on 18 March 2008. The election period was set to run from 23 April 2008 through 28 May 2008.
31. 461. During the 2008 election, the NMB once again permitted Delta to wage a comprehensive interference campaign that successfully suppressed turnout in the representation election and effectively denied Delta’s flight attendants freedom of association and the right to organize and bargain collectively. The NMB, both through its standard rules and procedures and its specific actions in this case, allowed Delta’s campaign to proceed unchecked and even abetted that campaign.
32. 462. On 1 April 2008, AFA–CWA filed a request with the Board that a “Laker” ballot be used in the Delta election, particularly in light of the employer’s past practice of interfering with its employees’ right to organize. On 15 April 2008, the Board rejected the request, concluding that “unusual and extraordinary” circumstances meriting the use of alternative election procedures did not exist. Thus, as in the 2001 election, the NMB provided no additional protection to flight attendants and allowed Delta to continue to deploy interference tactics aimed at suppressing turnout in the election.
33. 463. On 5 May 2008, AFA–CWA filed another letter with the NMB regarding Delta’s interference with flight attendants’ right to select a representative of their own choosing, requesting that the NMB conduct an investigation. The submission described the company’s recently-launched anti-union campaign, including Delta’s repeated instructions to employees to destroy their NMB balloting information and misleading management communications regarding employees’ eligibility to participate in the election. The same day it received the letter, the NMB determined that no action was required to address Delta’s conduct during the election period.
34. 464. Throughout the election period, Delta again waged a vigorous campaign to interfere with the flight attendants’ right to organize. A detailed account of Delta’s anti-union campaign, and documentation of the campaign, is attached to the complaint. Key elements of Delta’s antiunion conduct are summarized below.
    • - Anti-union communications campaign: Delta instituted a pervasive communications campaign against the union that saturated the flight attendants’ workplace with an overwhelming anti-union message. A key element of the campaign was consistent instructions from Delta management to destroy the government-issued voting instructions that flight attendants needed to participate in the election. The communications campaign also included false claims that the confidentiality of the instructions may have been compromised to commit voter fraud. The communications campaign was designed to inundate employees with anti-union messages and misleading information so they would not participate in the representation election.
    • - As part of this campaign, Delta erected information tables and displayed large posters and banners in every Delta crew lounge imploring flight attendants to destroy the voting instructions they received from the NMB. The materials all carried the same slogan: “Give a rip – Don’t click, don’t dial”. The company also distributed “shred-it” pins to those attendants who opposed unionization to wear during flights, in order to urge others to shred their instructions. The campaign was designed to suppress turnout by instructing flight attendants to permanently destroy their voting instructions before they had time to think about voting and discuss their options with their co-workers.
    • - The company further inundated flight attendants with anti-union messages through its “I believe in our Delta” newsletter. The newsletters instructed employees to destroy their voting instructions and made the baseless claim that destroying the voting instructions was necessary to prevent the union from committing voter fraud. In addition, the newsletter warned employees against engaging in union activity on aircraft and derided the benefits of unionization. Delta programmed an electronic version of the newsletter to appear on the company’s computer system every time flight attendants logged in to check their work schedules, and management also distributed copies in crew lounges and airport concourses.
    • - Delta also produced a DVD and sent it to each flight attendant’s home. The DVD included a personal message from Delta’s CEO stating that selecting union representation would harm the “great relationship” between Delta and its employees. The DVD contained a variety of misinformation regarding the benefits of a union-free workplace and the hardships that would result from selecting union representation. A copy of the DVD was enclosed with the complaint.
    • - Harassment, intimidation, and surveillance of union supporters: Delta management further interfered with the election process by harassing and intimidating flight attendants who supported the union. Management and sympathetic employees were deployed to create a constant anti-union presence in crew lounges and airport concourses, as well as a presence on aircraft at times. Management and their representatives told union activists to remove pro-union signs and materials, interrogated flight attendants about their union sympathies, watched over union supporters, and harassed those supporters. These activities interfered with the ability of flight attendants to communicate with their co-workers about unionization and to participate in the election without fear of recrimination.
    • - Conferral of benefits to influence employees during the election period: Delta further sought to influence the outcome of the election by announcing two new benefits for employees during the period. Conferral of such benefits tilts the playing field during the election period, as it reminds employees of the employer’s ability to give (and take away) benefits and uses the power of the employer’s purse to influence employees in a way that a union cannot. In the middle of the election period, Delta announced a raise for non-contract employees that would be effective after the last day of the union election period, successfully undermining support for union representation. In addition, after AFA–CWA filed its election application, Delta announced two new voluntary early retirement programmes for employees – the enrolment period for the programmes overlapped substantially with the election period, and the last day to designate an exit date coincided with the day of the ballot count. Employees participating in the retirement programmes had little incentive to participate in the election given their imminent departures, but they were all still on the Delta payroll during the election period (even if they notified the employer of their intent to sever employment before the end of the election period). The leave programmes thus enabled Delta to maintain an artificially high number of votes required to meet the NMB’s quorum while simultaneously eliminating the incentive for many employees to participate in the election at all.
35. 465. Delta’s interference campaign successfully suppressed employee turnout in the representation election. The NMB counted the ballots on 28 May 2008. In the final vote tally, 5,253, or 99 per cent, selected AFA–CWA as a bargaining representative. However, because only 5,322 of the 13,380 eligible employees cast non-void ballots, the NMB again refused to certify AFA–CWA as the flight attendants’ bargaining representative.
36. 466. After the Board tallied the votes and dismissed the application, the AFA–CWA filed another complaint with the NMB detailing the employer’s interference campaign and seeking a new election. After nearly four months, the Board issued a decision declining to initiate an investigation into the interference complaint. The Board found that the tactics documented by the union were isolated incidents that failed to establish a prima facie case of employer interference. Moreover, the NMB concluded that urging employees to destroy their balloting information did not constitute employer interference, because Delta’s instructions accurately informed employees how they could vote against the union. In a vigorous dissent, a member of the Board stated that the majority had abrogated its duty by refusing to initiate an investigation. As a result of the Board’s decision, there can be no rerun of the election with a “Laker” ballot and Delta’s flight attendants will remain without union representation.
37. 467. In addition, the NMB unilaterally curtailed the election period. On 24 March 2008, the NMB issued a notice establishing the election period from 23 April 2008 through 3 June 2008. After receiving the AFA’s concerns regarding employer interference on 1 April 2008, the Board decided unilaterally and without consultations to curtail the election period. On 3 April 2008, the NMB changed the ballot count date from 3 June 2008 to 28 May 2008. AFA–CWA protested the decision, noting that a smaller unit of flight attendants in another election had been granted a six-week election period while the Delta flight attendants were being granted only five weeks. The Board rejected the AFA–CWA’s concerns, reiterating without explanation that the election period would be shortened by one week. By cutting the election period short, the Board denied AFA–CWA sufficient opportunity to reach out to flight attendants and counteract Delta’s anti-union campaign.
38. 468. An adequate election period was particularly important in the case of Delta, where thousands of flight attendants are spread out all over the United States and indeed the world at any one time. The employer is in a unique position as the only entity in regular contact with each of these employees. This gives the employer a profound advantage in communicating its anti-union message to workers. The union and its supporters, on the other hand, face an uphill battle in their efforts to reach out to as many of their broadly dispersed and constantly travelling colleagues as possible in a short period of time.
39. 469. Furthermore, the NMB permitted employer manipulation of the eligible employee list on 29 February 2008, Delta submitted to the NMB a list of the names it wished to include among the group of employees eligible to participate in the election. As noted above, the employer has an incentive to pad the eligibility list with as many names as possible in order to drive up the number of participating voters required to certify a union. On 9 May and 15 May 2008, after reviewing Delta’s list and challenges submitted by AFA–CWA, the NMB’s investigators ruled on the eligibility of employees to participate in the election. AFA–CWA appealed the investigators’ eligibility rulings, and their appeal was dismissed by the NMB in a determination issued on 28 May 2008. In its dismissal, the NMB ruled that 82 trainees who had completed training, but had not yet been assigned to work as required crewmembers, could nonetheless be included on the eligibility list that is supposed to be limited to employees “working regularly” in the bargaining unit. In addition, the NMB ruled that 901 flight attendants on voluntary furlough could also be included on the list of eligible employees, even though the furlough could last as long as five years and Delta had chosen to hire new flight attendants rather than recall furloughed attendants into service.
40. 470. The NMB thus permitted flight attendants with only minimal connections to the workplace – trainees not yet assigned to regular work and furloughed attendants whom the airline did not bother to recall when it had unmet staffing needs – to remain on the eligibility list. The NMB’s ruling allowed Delta to inflate the universe of eligible employees by 983 workers, and thus increase the number of votes required to reach a quorum by 492 votes. At the same time, by permitting those employees with the least incentive to participate in an election to remain on the list, the NMB increased the likely incidence of non-votes that would later count as votes against representation.
41. 471. The NMB’s lack of concern for the integrity of the employee eligibility list is also apparent in the manner in which the Board addressed the inclusion of a deceased flight attendant on the list. When the Board was notified that one of the flight attendants on the eligibility list was deceased, the Board refused to remove her from the list because the notice was received less than seven days before the ballot count. The Board stuck to its standard rules regarding the cut-off date for notification of status changes, finding that death was not an “extraordinary circumstance” that would warrant waiving the deadline. As a result, the deceased flight attendant stayed on the eligibility list, and the Board counted her non-vote as one more vote in opposition to union representation. The Board later reversed this decision in its review of the union’s post-election interference charges, noting that it made no difference to the election outcome. However, the decision highlights the Board’s practice of refusing to protect workers’ right to freely select union representation when that protection is most needed – that is, before and during the election period itself.
42. 472. Moreover, the NMB failed to ensure that all employees received proper voting instructions. Under the NMB’s election procedures, flight attendants were able to cast their vote over the telephone or the Internet. To ensure the integrity and secrecy of the balloting process, the NMB’s practice is to mail each flight attendant an individual, confidential identification number to enter over the telephone or the Internet. However, numerous Delta flight attendants reported receiving their balloting information in envelopes that were damaged, unsealed, or stuck to other attendants’ envelopes. These mailing errors occurred against the backdrop of Delta’s campaign (described in more detail below) to dissuade employees from voting by, among other things, suggesting that the confidentiality of personal identification numbers may have been violated in order to commit voter fraud. As a result, a number of flight attendants who received balloting information that appeared to have been tampered with or otherwise mishandled refused to vote. Under NMB rules, each of these non-votes was counted as a vote against representation.
43. 473. Finally, the NMB further thwarted Delta flight attendants’ ability to gain bargaining representation by failing to promptly provide replacement voting information when requested. As discussed below, Delta repeatedly urged its employees to destroy the voting information mailed to them by the NMB. In addition, several flight attendants received voting instructions that appeared to have been tampered with or mishandled. The NMB received numerous requests for duplicate voting information from flight attendants, but failed to act promptly on those requests. As of the day before the final ballot count, at least 58 flight attendants had still not received the duplicate voting information they had requested from the Board. Every flight attendant who lacked balloting instructions was not only denied the opportunity to vote, but was also counted by the NMB as an opponent of union representation in the final tally.
44. 474. As an ILO Member, the United States is responsible for ensuring that all workers in the country can exercise freedom of association and their rights to organize and bargain collectively. The NMB, an independent US government agency, has failed to live up to that responsibility in several respects.
45. 475. The NMB’s rules and conduct are not only inadequate to protect workers from employer interference as required by the Conventions – they actually encourage and reward such interference. The NMB facilitates employer interference in a variety of ways.
46. 476. First, the NMB’s rules and procedures permit employers to avoid unionization by suppressing employee turnout in representation elections. Employers depress turnout by capitalizing on employee ambivalence and inertia, fomenting unfounded fears and misunderstandings about the balloting process, and deriding the election itself. Such employer communications campaigns, including those urging workers to destroy their voting materials, are protected as free speech by the NMB. Employers can also lower turnout by offering benefits and other inducements during the election period to reduce beneficiary employees’ interest in the election. All of these tactics were evident in the Delta campaign. Anti-union employers do not have to convince employees on the merits that union representation is not in their interests, nor do employers need to persuade workers to actively participate in an election and cast their vote against representation. All the employer needs to do is sow enough doubts and confusion to keep employees from voting. The NMB counts every employee who fails to vote as a result of these tactics as a vote against representation.
47. 477. Second, NMB rules and practice encourage employers to manipulate the lists of eligible employees they provide to the Board in order to artificially inflate the number of votes required to meet the NMB’s majority requirement. By maximizing the number of votes required while simultaneously minimizing the number of employees who actually participate in the election, employers can avoid unionization. Delta employed this strategy in the most recent campaign. The cost of failing to guarantee the accuracy of the list is high. Each inaccurate name remaining on the list represents one more non-vote, and, under the NMB’s rules, one more vote against union representation.
48. 478. Finally, the NMB continues to conduct elections under these rules even though the Board recognizes that the rules provide employees with inferior protection from employer interference. The Board has found that employees receive greater protection from interference when elections are conducted with a yes/no ballot and a representative is selected by a majority of votes actually cast. This “Laker” ballot method eliminates some of the incentives for employer interference outlined above. But the Board will only provide a “Laker” ballot in “unusual and extraordinary circumstances,” ordinarily only after employees have already endured “egregious” employer interference during an election conducted under the Board’s standard procedures. When such ballots are requested at the outset of a campaign, as they were in the Delta case, the NMB generally denies the request. Even after an election is concluded and interference is found to have tainted the election period, the Board will still deny workers access to a “Laker” ballot – in 13 published interference decisions since 2001, the Board has granted a re-election using a “Laker” ballot in only one instance.
49. 479. The Board’s standard election rules deny employees the ability to select their bargaining representative by a majority of votes actually cast, and the Board maintains these rules with the knowledge that its decision subjects workers to greater interference from their employers. Even when confronted with evidence of interference, the Board fails to act to prevent and remedy such actions in order to protect workers’ rights. The NMB’s rules and conduct thus fail to ensure that workers may freely exercise the right to organize, provide inadequate protection against acts of employer interference, fall short of the government machinery required to ensure respect for the right to organize, and neither encourage nor promote collective bargaining.
50. 480. The action and inaction by the NMB in the Delta elections clearly demonstrated the inadequate protection provided by the Board for the exercise of workers’ freedom of association and collective bargaining rights. First, the NMB refused to address concerns about Delta’s history of anti-union behaviour and failed to act even when it was notified of a renewed interference campaign by the company. The NMB legitimized employer instructions to destroy balloting information as a permissible exercise of free speech. The Board denied requests to provide a “Laker” ballot despite the evidence of interference it was presented with.
51. 481. Second, the NMB further tilted the playing field towards Delta and away from the flight attendants when it unilaterally curtailed the election period and thus cut short the time in which the union and its supporters could reach out to their co-workers. This action was taken without prior notice to, or consultation with, the parties involved.
52. 482. Third, the Board permitted Delta to manipulate the roster of eligible employees by allowing trainees, inactive furloughed employees, and even a deceased flight attendant to remain on the employee list.
53. 483. Fourth, the NMB contributed to employee scepticism about the integrity of the election process and further lowered turnout by failing to ensure that all balloting instructions were properly mailed and by not promptly fulfilling requests for replacement instructions.
54. 484. In conclusion, the AFA–CWA and the AFL–CIO respectfully request the Committee to urge the following steps in order to ensure respect for workers’ rights and bring the United States into compliance with its responsibilities as an ILO Member:
    • - First, the NMB should amend its election rules to provide employees with the option of a yes/no ballot to select an exclusive bargaining representative in all cases –workers should not have to demonstrate that interference has already occurred before having access to such balloting procedures. At a minimum, access to such balloting procedures should not be restricted to “extraordinary and unusual” circumstances where “egregious” interference has already occurred.
    • - Second, the NMB should ensure that it provides workers with adequate protection against employer interference in practice, through the availability of swift and efficient procedures and sufficiently dissuasive sanctions.
    • - Finally, the NMB should take prompt action to remedy the employer interference perpetrated by Delta and to ensure that Delta’s flight attendants can freely elect a bargaining representative of their own choosing.

B. The Government’s reply

1. 485. In a communication dated 8 October 2009 the Government recalled that the United States has not ratified ILO Conventions Nos 87 and 98, and therefore has no international law obligations pursuant to these instruments and thus no obligation to accord their provisions domestic effect in US law. Nonetheless, the US Government has on numerous occasions demonstrated that its labour law and practice are in general conformity with Conventions Nos 87 and 98, and the ILO supervisory bodies have generally upheld this view.
2. 486. The Government states that the complaint does not assert any concern with relevant US law. Rather, it focuses on the 2008 Delta representation election to assert general defects in the NMB election process along with specific errors in election administration. Therefore, the observations below will address the NMB process and then focus on the 2008 Delta election case to demonstrate that the NMB’s actions in determining whether to certify a collective bargaining representative were consistent with US law and did not conflict with ILO principles of freedom of association, the right to organize, or collective bargaining.
3. 487. The Government adds that on 29 October 2008, Delta purchased Northwest Airlines. Subsequent to this merger, the AFA filed an application with the NMB seeking a determination that Delta and Northwest Airlines are a single transportation system for purposes of representation. If the NMB rules, as it has in the recent case involving the carriers, that there is a single transportation system at Delta/Northwest, the AFA would have 14 calendar days from the decision date to submit evidence of representation from at least 35 per cent of the employees in the craft or class. This submission would be facilitated by the fact that the AFA would get credit for all of the Northwest flight attendants that they presently represent. If the AFA is successful, an NMB-administered representation election will be initiated. Additional information on this situation will be provided as it becomes available.
4. 488. The Government asserts nonetheless that, despite the complainants’ allegations, the NMB process used in the 2008 Delta election is consistent with freedom of association principles. The Railway Labor Act (RLA) is the principal statute for the extension of rights to private sector employees who wish to form, join or support unions in the railroad or airline industries, (45 USC 151-188). In authorizing the NMB to conduct representation elections, the RLA provides:
   • 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 ...
5. 489. As stated above, the NMB is charged with the duty of investigating disputes among a carrier’s employees to determine their representative and to certify to the parties the name of the representative. The NMB initiates an investigation when a union files an application alleging a representation dispute, within a craft or class of employees on a particular carrier, and seeking an election to determine worker choice of representative for collective bargaining purposes. Where the workers are unrepresented, the application must include authorization cards from 35 per cent of the workers. The Board’s “investigation” encompasses oversight of the entire representation election process.
6. 490. The RLA grants broad discretion to the NMB in running the election and the Supreme Court has recognized the Board’s authority in making final determinations as to the details in representation elections.
7. 491. The RLA requires that “[t]he majority of any craft or class of employees shall have the right to determine who will be the representative of the craft or class ...” (45 USC 152, fourth). The NMB is granted discretion to determine by any appropriate method who will be the employees’ representative, and this discretion includes the authority to reasonably construe this statutory requirement. For 70 years the Board has required, when there is no representative and just one organization is seeking to be the representative, a majority of the workers in the craft or class to vote for that organization.
8. 492. The Board’s long-standing practice of requiring a majority of eligible voters to cast valid ballots is true to the RLA’s first general purpose, which is “[t]o avoid any interruption to commerce or to the operation of any carrier engaged therein” (45 USC 151a), and provides an effective safeguard to maintain stable labour relations. As a strike at an RLA-covered carrier could effectively shut down interstate commerce, it is critical to maintain harmonious labour relations, which is more effectively accomplished if the union involved represents a majority of the workers on whose behalf it is negotiating.
9. 493. The Supreme Court has affirmed the NMB’s balloting standard, stating “[t]he selection of a ballot is a necessary incident of the Board’s duty to resolve disputes. The [Railway Labor] Act expressly says as much, instructing the Board alone to establish the rules governing elections.”
10. 494. The Committee has consistently recognized the significance of a union representing a majority of workers:
    • The competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer’s recognition of that union for collective bargaining purposes [see Digest of decisions and principles of the Freedom of Association Committee, 2006, para. 959].
11. 495. Unlike the National Labor Relations Act (NLRA), the RLA does not provide for a decertification process. Therefore, the union’s certification continues until another union makes a showing of interest to represent the respective class or craft. In this circumstance, as this showing requires authorizations from at least a majority of the class or craft, the alleged disadvantage of the NMB certifying method works to the advantage of the incumbent union. Consequently, it is of utmost importance that a certified union has the support of the workers it is certified to represent.
12. 496. The NMB election standard has not resulted in a suppression of unions. In fact, 84 per cent of rail employees and 60 per cent of airline employees are unionized, whereas less than 10 per cent of private sector employees under the jurisdiction of the NLRA are unionized. Further, a review of NMB elections held since 1990 shows that union certifications were achieved in over 60 per cent of elections. Significantly, the NMB recently certified the Air Line Pilots Association as the representative of Delta’s flight deck crewmembers and the Professional Airline Flight Control Association as the representative of Delta’s flight dispatchers.
13. 497. If the complainants believe that the Board exceeded its statutory authority in selecting the proposed ballot, they could have appealed any of the 2008 decisions in Delta. There is no indication that this occurred.
14. 498. Reading the complaint broadly, it appears that a question is raised as to the NMB’s ability “to offer adequate safeguards against employer interference” during a representation election. However, an examination of the law and NMB practice indicates that the Board is intimately involved in the administration of representation elections and empowered to employ a variety of remedies where improper conduct is established.
15. 499. The Committee has consistently stated that pre-established, precise and objective criteria for the determination as to representativity of workers’ organizations should exist in the legislation and such a determination should not be left to the discretion of government [see Digest, op. cit., para. 348]. Beyond this general principle and the directive to follow established procedures in determining the most representative organization for collective bargaining purposes, the Committee has allowed member nations to define in law and practice the specific methods and procedures for certifying a representative union for collective bargaining purposes [see Digest, op. cit., para. 971].
16. 500. The Board’s process in administering a representation election is described in part above. The RLA imposes upon the Board the duty to conduct the election so as to ensure that the employees have an opportunity to make a choice free of interference, influence or coercion by the carrier. Therefore, if the Board determines that due to employer conduct such conditions have not been achieved, a rerun election is the appropriate remedy.
17. 501. Although the issue of “interference” is discussed at length below, it is critical to note that the Board’s investigation of a representation dispute includes adjudging union objections asserting that a carrier has exercised unlawful influence or coercion, or has otherwise unlawfully interfered with the free choice of a representative. In making these determinations, the Board examines the totality of the circumstances as established through its investigation.
18. 502. Where the Board determines that the employer interfered with the employees’ free choice, the Board remedies the violations based on the severity of employer conduct and the extent to which a future representation election may be rerun in laboratory conditions.
19. 503. If the NMB determines that the carrier’s unlawful conduct has interfered with the employees’ choice of a representative, it may employ any of a variety of remedies in order to “eliminate the taint of interference on the employees’ freedom of choice of representative”. The remedy designated by the Board to provide employees a choice of representative varies on a continuum determined by the extent of the carrier interference found. “The continuum begins with a finding that the carrier ha[s] 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.”
20. 504. The NMB typically calls for a rerun election where interference is found, but it has an array of remedies as to how the rerun election is administered. These remedies include changing the form of the ballot, e.g., using a yes/no ballot with no write-in space provided (known as a “Laker” ballot, discussed below); sending copies of findings upon investigation citing the carrier with violations of the RLA to employees eligible to vote; posting a notice stating that the employer will not influence, interfere or coerce employees; ordering a rerun election using the Board’s standard ballot procedures and a special notice; and devising a ballot procedure in which the union would be certified unless a majority of eligible voters returned votes opposing union representation. In the most extreme cases, the Board can certify the applicant union based on submission of authorization cards from a majority of the class or craft. For example, in Sky Valet, the Board, without holding an election, certified the union based on a mere check of authorization cards as a remedy for what it found to be “egregious” interference (including terminating union supporters and giving the impression of surveillance of those signing authorization cards).
21. 505. The complaint makes a specific assertion that goes to the NMB’s use of a “Laker” ballot. This remedy is only available where the Board has found carrier interference and ordered a rerun election. The reference is to Laker Airways Ltd, 8 NMB 236 (1981), where Laker’s conduct was among “the most egregious violations of employee rights in memory” and required an “extraordinary” remedy.
22. 506. In Laker, the Board found that the carrier had violated the RLA by actions such as: soliciting employees to turn their ballots to carrier officials; increasing pay immediately prior to the election period; and polling employees as to their representation choice. Based on this egregious conduct, the NMB ordered a rerun election with a ballot that contained a “yes” or “no” vote as to the applicant organization with no space for write-ins, and with the majority of the ballots cast determining the outcome of the election.
23. 507. The “Laker” ballot remedy is imposed only in truly exceptional cases. In fact, of the 172 representation elections handled by the NMB since 2003, only 11 (6 per cent) involved allegations of employer interference and none rose to the level of behaviour necessary to employ “Laker” ballot procedures.
24. 508. Before ballots were sent for the 2008 Delta election, the AFA requested the use of a “Laker” ballot based on previous representation efforts in 2000 and 2002. The AFA asserted that the NMB procedures should be changed as a prophylactic measure to prevent interference in the election. The NMB rejected the request on two grounds. First, the Board was unwilling to assume employer interference in advance of the election period. Second, the appropriate response to allegations and findings of employer interference is to set aside an initial election and to rerun the election. Moreover, it is only in cases of egregious employer interference that the Board orders the second election be conducted under the “Laker” ballot procedures requested by the AFA.
25. 509. The NMB acted consistent with the RLA and Board practice in using a certification standard that requires a majority of workers to evince their desire that a union have exclusive bargaining status. The Board also acted consistent with the RLA and Board precedent in denying the AFA’s April request for the use of a “Laker” ballot, which was not supported by sufficient evidence to require a rerun election under such circumstances. This decision was appropriate and does not demonstrate inadequate safeguards in the administration of representation elections. In both instances, the Board’s decisions were not inconsistent with ILO principles.
26. 510. The complaint disputes several decisions of a factual nature made by the NMB. Did the NMB improperly change the election date? Did the NMB err in not finding “interference” by the employer? Did the NMB properly define those eligible to vote and were they provided voting instructions? In its 2008 decisions, the Board appears to have considered the entire set of issues raised here and in each instance, discussed and reasonably resolved these matters consistent with US law and practice and ILO principles.
27. 511. As established above, the NMB is uniquely qualified to administer a representation election and to adjudge whether events occurring in the course of the election constitute illegal interference under the RLA. In Delta, the NMB considered the facts in a thoroughly litigated case and produced extensive decisions on 28 May 2008 (addressing voter eligibility issues) and 30 September 2008 (addressing election interference issues). Significantly, these decisions were not appealed.
28. 512. The observations below specifically address the complainants’ concerns as to the decisions of the NMB. These matters are discussed in chronological order to illustrate the NMB’s involvement in the election process and the soundness of the Board’s decisions.
    • Election period
29. 513. The NMB’s standard practice is to provide three weeks from distribution of ballots to election tally in a representation election. For larger groups, longer periods of time may be allotted to allow the Board investigator sufficient time to process challenges and objections.
30. 514. In the 2008 Delta election, the investigator initially suggested a period of six weeks to allow for resolution of such issues as election eligibility challenges and objections. As most elections, even involving large groups, are completed within five weeks, the Board decided to shorten the election period by six days. This administrative decision was within the Board’s broad discretion, based on the typical time frames of NMB elections. The change was made prior to the start of the election period, and there is no evidence that the decision either caused voter confusion or affected the election results. This decision was not inconsistent with ILO principles of freedom of association.
31. 515. The RLA provides that:
    • No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees ... or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization ...
32. (45 USC 152, fourth (emphasis added)).
33. 516. Section 17.0 of the NMB’s Representation manual discusses “Allegations of election interference” and provides, in relevant part, that:
    • Allegations of election interference must state a prima facie case that the laboratory conditions were tainted and must be supported by substantive evidence. Allegations of election interference not sufficiently supported by substantive evidence will be dismissed.
34. 517. The Board has stressed that the “laboratory conditions” test in representation election cases focuses on whether employees’ rights to choose representation free of coercion or influence was protected, rather than upon whether the carrier violated the law. The “laboratory conditions” standard requires that, under the “totality of the circumstances”, sterile conditions, without contamination by carrier interference, be maintained. The Board will generally consider, except in extraordinary circumstances, evidence of occurrences from up to one year before the representation application was filed, through the election and any subsequent investigation.
35. 518. In Delta, the NMB found that the AFA failed to establish a prima facie case of interference. Specifically, the Board concluded that the AFA’s assertions regarding interference were not supported by substantive evidence, did not establish interference under long-standing NMB precedent, and, in several cases, constituted “isolated incidents out of a workforce of 13,000 that do not amount to the kind of systematic, pervasive conduct that would have tainted laboratory conditions”.
36. 519. Consistent with law, the Board determined that the employer was within its rights in communicating with workers and expressing its views on the election (citing the Supreme Court position 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’”. NLRB v. Gissel Packing Co., 395 US 575, 618 (1969)). The Board thoroughly analysed the Delta DVD and newsletters and reasonably found that they did not establish employer interference.
37. 520. The complaint repeatedly asserts that Delta’s anti-union campaign, which encouraged workers to destroy their ballots, was improper. However, the NMB has consistently held that informing workers that they can express their desire to remain unrepresented by ripping up their ballots is not “interference” and does not taint laboratory conditions.
38. 521. In Delta, the NMB noted that a finding of interference is justified where employer surveillance is established. Similarly, it stated that interrogation of workers regarding their election preference is evidence of interference. Although there were assertions of surveillance and harassment, there was insufficient evidence proffered to support these claims. The Board performed a thorough analysis of the 23 alleged instances of harassment and found that they did not constitute interference with a worker’s free choice or tainted laboratory conditions.
39. 522. The complaint also asserts that Delta improperly offered employees benefits during the election period. The RLA prohibits the offer of benefits during an organizational campaign to influence the outcome of an organizing campaign. Board precedent is clear that “either the promise or actual conferral of benefits during the laboratory period has the effect of coercing and influencing employees in their choice of representation”. The Board has generally held that laboratory conditions are not tainted where changes in benefits were planned before the election period or where there is “clear and convincing evidence of a compelling business justification ...”.
40. 523. The Board’s conclusion that Delta’s 1 July 2008, 3 per cent pay increase to all noncontract employees was awarded for legitimate business reasons is supported by the record evidence and consistent with NMB precedent. Similarly, the Board found the voluntary retirement programme to be business based and not merely directed to Delta flight attendants. Moreover, the Board noted that the number of flight attendants participating in the voluntary programmes, even if dissuaded from voting, would not have affected the election outcome.
41. 524. The Board’s findings as to interference were reasonable, consistent with the law and past practice, and supported by the evidence. These decisions were not inconsistent with 1LO principles of freedom of association.
    • Voting
42. 525. The RLA bestows broad discretion to the NMB to “designate who may participate in the election and establish the rules to govern the election ...”. In Delta, the NMB’s handling of the eligibility and voting processes were within this broad discretion in running representation elections, consistent with NMB procedure and practice, and reasonable in light of the case facts.
43. 526. The NMB investigator for the Delta election agreed with the AFA’s challenge to the election eligibility list with regard to 245 trainees, who were then deemed ineligible to vote in the election. However, the investigator ruled that 82 other trainees challenged by the AFA were to remain on the election eligibility list; a ruling that was upheld on appeal by the NMB. The Board found, consistent with the NMB Manual’s eligibility standard and with precedent, that since these trainees had completed their initial operating experience prior to the eligibility cut-off date, which included services under the employer’s supervision, they were eligible to vote.
44. 527. The NMB investigator also agreed with the AFA that 31 flight attendants on voluntary furlough should be removed from the eligibility list, based on their change of status. However, the investigator ruled that 901 other flight attendants on furlough were eligible to vote, as they were entitled to five-year recall rights, had not refused recall, and their positions had not been eliminated. This ruling was upheld by the Board on appeal. There has not been any evidence proffered to put the accuracy of these decisions into question.
45. 528. The NMB concluded that there was not widespread voter confusion due to four ballots, which were alleged to have been either received open or misdirected, among the more than 13,000 election ballots sent to eligible voters. The Board found “no evidence that the unsealed and misdirected voting instructions were the result of anything other than the normal wear and tear that results from a mass mailing”.
46. 529. Similarly, the Board addressed the AFA’s concerns regarding duplicate ballots. The entire universe of such ballots was only 64, far fewer than would have affected the outcome of the election. Nonetheless, it appears that the Board provided duplicate ballots to 15 requesting voters and that 40 of the workers named by the AFA had not requested a duplicate ballot. Three others were apparently not on the eligibility list.
47. 530. The Board’s findings were reasonable, consistent with the law and past practice, and supported by the evidence. These decisions were not inconsistent with ILO principles of freedom of association.
    • Recent NMB developments
48. 531. On 11 September 2009, the Board announced the formation of a new joint labour–management committee to examine recommendations made in the 1990s by the Commission on the Future of Worker–Management Relations (commonly known as the “Dunlop Commission”), as well as the NMB’s internal functions, policies, and procedures. The Dunlop Commission, in part, focused on methods to resolve disputes that arise during collective bargaining. The new committee has been asked to issue recommendations for agency improvement by 1 November 2009.
49. 532. On 22 September 2009, in response to an AFA request, the Board announced that it will consider allowing participants in a representation election to post hyperlinks to the voting web site. This practice has been restricted in the past because of NMB concerns that the identities of those visiting the voter web site could be tracked. Comments are being accepted until 22 October 2009.
50. 533. In a September 2009 letter to the NMB, the AFL–CIO proposed changing the board policy that requires a majority of employees in a class or craft to vote in favour of union representation for the Board to certify a union as the exclusive bargaining agent. The proposal suggests that the outcome in a representation election should be determined by a majority of those who cast ballots, even if fewer than half of eligible workers participate in the election. The NMB has not yet commented on the proposal.
51. 534. Additional information on these board-related developments will be provided as it becomes available.
    • Conclusion
52. 535. The foregoing observations demonstrate that neither NMB procedures nor the Board’s handling of the 2008 representation election involving the AFA and Delta resulted in denials of freedom of association, the right to organize or to bargain collectively. Accordingly, the remedies requested by the complainants are neither necessary nor appropriate.
53. 536. The Government also transmitted the comments made by the United States Council for International Business (USCIB) and Delta Air Lines, Inc. in their communication of 25 January 2010. The USCIB maintains that, contrary to the complainants’ claims, the long-established procedure for designating a collective bargaining representative under the Railway Labor Act (RLA) fully embraces the principles of freedom of association, as those principles have been defined by the Committee. Indeed, it is through this well-tested, seventy year old system that a majority of all US airline industry employees have come to be represented by a union. It is inappropriate for the AFA to blame the RLA, the NMB or Delta for its failure to convince Delta flight attendants to designate it as their collective bargaining representative. Simply put, the AFA lost the 2002 and 2008 representation elections because a majority of Delta’s flight attendants did not wish to have it represent them. The flight attendants’ decision to reject representation was based in no small part on Delta’s corporate culture of mutual respect among employees and the corporation, and has nothing to do with the RLA’s election procedure or the policies of the NMB.
54. 537. The USCIB asserts that the complaint is unfounded for the following reasons: (1) the Committee may not apply specific elements of Conventions Nos 87 and 98 to the United States because the United States has not ratified either Convention. Instead, the Committee must limit its examination of this case to application of principles of freedom of association as the Committee has defined them; (2) the naming of Delta in the complaint is inappropriate because the arguments advanced therein are ostensibly directed toward the laws of the United States, and not a specific enterprise or group of enterprises; (3) the complaint is procedurally defective because it has initiated a proceeding before the Committee without first exhausting available remedies before effective judicial authorities at the national level; (4) it is inappropriate for the complainants to seek to have the Committee act as a “super-appellate body” to review or otherwise substitute its own conclusions for those of a well-established, independent government agency (in this case the NMB) that reached its decisions with the benefit of a full evidentiary record created by the AFA and Delta; and (5) the RLA procedures provide employees an effective, pre-established means to select a representative of their own choosing without prior authorization or risks of reprisal. Those procedures are wholly consistent with the principles of freedom of association at the international level.
55. 538. The USCIB states that events involving Delta have made the complaint, which was premised upon allegations involving an election that occurred in 2008, moot. On 27 July 2009, the AFA filed its third application with the NMB for investigation of a representation dispute involving the flight attendants. In the application, the AFA sought to represent the 20,640 flight attendants who work for the now-combined Delta (which merged in 2008 with Northwest Airlines). This application renders further consideration of the allegations of the complaint by the Committee unnecessary.
56. 539. Under normal circumstances, the NMB would have promptly conducted an investigation and scheduled a secret ballot election. Without explanation, it did not do so. Instead, it placed the July representation application involving Delta on “hold”. At the same time, it processed representation applications involving other carriers within the normal time frame of approximately two months. Delta believes the reason for such disparate treatment was the result of an ex parte request by the AFL–CIO to have the NMB change its election rules in the middle of Delta’s merger with Northwest and after the AFA submitted its election application. Following an unprecedented period of delay in the processing of the AFA application by the NMB, the AFA withdrew its application for representation of the Delta flight attendants on 3 November 2009. On the very same day, the NMB published a notice of proposed rule making and request for comments, pursuant to which it has proposed to change the balloting procedure in the representation election. Whether the AFA even seeks to have the NMB conduct another election has yet to be determined. Even so, the events that have transpired since the 2008 election have rendered the current complaint moot, for the following three reasons.
57. 540. Firstly, the current complement of flight attendants employed by Delta is far different from the group the AFA sought to represent in 2008. The number of flight attendants in the craft or class is 35 per cent larger now than it was in 2008, and consists of a substantial complement of former Northwest Airlines flight attendants who had already worked under a collective bargaining agreement negotiated by the AFA. Secondly, the makeup of the NMB today is substantially different from what it was when it resolved issues related to the 2008 election. Linda Puchala, a former International President of the AFA, was appointed by President Obama to serve as a Member of the NMB and was confirmed by the United States Senate on 21 May 2009. She joined NMB Chairperson Elizabeth Dougherty and Member Harry Hoglander, a former Executive Vice-President of the Airline Pilots Association, on the three member Board. Finally, the fact that the AFA again resorted to the NMB process to establish representation rights for the flight attendants in the newly combined Delta, shows that the issues raised in the complaint have more to do with how the NMB ruled on facts related to the 2008 election than with problems concerning the RLA or the NMB as an institution. The allegations that gave rise to the complaint have been superseded and no longer have a bearing on the outcome of the case. Were the Committee to examine the complaint now, it would reach conclusions and recommendations that will have been effectively superseded by the time they are written. Accordingly, the Committee should dismiss the complaint.
58. 541. The USCIB explains that Delta employs nearly 80,000 people throughout the world. It offers excellent wages and benefits to its employees that are well within industry standards, and has a top-tier profit sharing and operational rewards program, which enable employees at all levels to receive compensation that frequently exceeds industry standards. Delta has demonstrated a strong commitment to business ethics and doing what is right when it comes to its employees; it embraces diversity, fosters a workplace that is safe, professional, and values teamwork and trust. Delta has historically enjoyed excellent employee relations and has received numerous industry awards for its outstanding customer service. Such repeated success in these areas can only be achieved in a work environment that consists of mutual commitment and respect between an employer and its employees.
59. 542. An example of Delta’s culture of mutual commitment occurred in the late 1980s when Delta’s financial health was in question. Three Delta flight attendants started a campaign to collect donations from the company’s employees worldwide and donated them to Delta for the purchase of a new Boeing 767 aircraft. The aircraft is now on display in the Delta employee museum at the company’s headquarters, in Atlanta, Georgia. It serves as a symbol of the special relationship between Delta and its employees, and is a tangible and lasting example of the strong bond between them. Consistent with its commitment to preserving a culture of positive labour relations after the merger with Northwest, Delta has taken measures that benefit all employees, including the new arrivals from Northwest. First, it has committed not to involuntary furlough flight attendants, ground crew, pilots and other operations personnel as a result of the merger. Second, as part of the merger, 15 per cent of the stock in the combined company is set aside for distribution to employees. These acts demonstrate Delta’s continued commitment to fostering positive employee relations.
60. 543. Historically, only a small portion of Delta’s workforce has been represented by a labour organization because most Delta employees do not believe they need representation in their dealings with the company. Delta’s pilots and flight dispatchers are the only post-merger crafts or classes of workers currently represented by a union. The pilots have been represented by the Air Line Pilots Association (ALPA) for many years, and the flight dispatchers have been represented by the Professional Airline Flight Control Association. There has never been a strike or other work stoppage at Delta. Shortly after the announcement of the merger, Delta finalized a collective bargaining agreement with ALPA covering all pilots of the combined company. As a result, Delta pilots are now the single largest group of pilots in the world represented by the ALPA.
61. 544. Delta’s flight attendants have never chosen to be represented by a labour organization. On two occasions, first in 2002 and later in 2008, the AFA sought to represent Delta’s flight attendants. On both occasions, the AFA lost the representation election by a significant margin. Pre-merger Northwest flight attendants were represented by the AFA, but pursuant to the NMB rules, the newly merged company cannot consolidate the craft or class of flight attendants until representation in the combined group has been resolved. On 27 July 2009, the AFA filed an application to consolidate the craft or class of 20,640 flight attendants. As described above, the AFA has since withdrawn that application.
62. 545. Recently, Delta participated in two NMB elections following the merger. The first election involved individuals employed by the two airlines as meteorologists. In that election, only six of the thirty-two eligible employees cast votes for the named union, and the petition was dismissed. The second election involved individuals employed in the craft or class of flight dispatchers. In that election, 306 of the 335 eligible voters cast votes in favour of representation, and the Professional Airline Flight Control Association was certified as the employees’ representative. In both elections, there were neither allegations nor findings of interference by Delta.
63. 546. The USCIB contends that the RLA representation procedure is a highly effective method for employees to secure representation by a labour union. In the US, approximately 84 per cent of employees in the railroad industry and 60 per cent of employees in the airline industry are represented by labour unions. The AFA has also benefitted from the existing election procedure: excluding the Delta elections at issue here, the AFA has prevailed in a majority (13 of 20) of representation elections in which it has participated over the past ten years. Furthermore, an assessment of NMB representation elections involving other labour unions reflects a similar success rate. In light of their recent successes under the RLA, it is difficult to believe the AFA is in fact even making the allegations they have made in the complaint.
64. 547. As regards the 2002 election, the USCIB recalls that only 5,609 out of a total of 19,033 eligible voters cast ballots for representation. The AFA asked the NMB to investigate allegations of interference by Delta in the election. The NMB conducted an on-site investigation into the allegations, and at the conclusion of the investigation found that none of the conduct attributed to Delta tainted the laboratory conditions for the election.
65. 548. On the 2008 election, the AFA again lost by a significant margin: of the 13,380 eligible voters, only 5,306 voted for representation. The AFA again sought to have the NMB investigate allegations of interference; however, the AFA supplied little, if any, credible evidence to support their interference claims. On 30 September 2008, the NMB concluded that the AFA failed to establish even a prima facie case for interference and closed the case. It is this decision that forms the foundation of the AFA’s complaint to the Committee. Almost immediately after losing the 2008 election, the AFA started the process of garnering support among the flight attendants of the combined airline with the expectation of filing another application for a representation election with the NMB. While the AFA initially filed an application to consolidate the craft or class of 20,640 flight attendants, after a lengthy and unprecedented delay by the NMB in processing, the AFA withdrew its application.
66. 549. As the US has not ratified Conventions Nos 87 or 98, the USCIB objects to the AFA’s repeated allegations that the NMB in general, and the alleged conduct of Delta in particular, violate specific provisions of these Conventions. Under the Charter of the United Nations and the Constitution of the ILO, the United States has no international law obligations to comply with Conventions it does not ratify. Although the AFA acknowledged this reality, it nonetheless premised the arguments in its complaint on specific provisions of both Conventions. Furthermore it is incumbent upon the Committee not to conduct its examination using components of either Convention, but to base its analysis on the general principles of freedom of association outlined in the ILO Constitution, and to determine whether the application of labour laws in the United States is consistent with those principles.
67. 550. The ILO Constitution mentions the freedom of association exactly once, in its preamble. The US, through its comprehensive system of laws and regulations, supports the principles of freedom of association as articulated in the ILO’s Constitution. In fact, it presents a model of how a system of laws can achieve the optimum balance of power between labour and management while respecting the rights of individual workers vis-à-vis their employers and labour organizations that represent or desire to represent them. It also presents a model of how that system of laws and their protections are accessible by, and available to, everyone. Indeed, the US has made freedom of association one of the cornerstone principles of its own labour laws and international labour policy and is party to numerous international agreements and treaties that make reference to freedom of association and the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work. A principle-based examination of the RLA and the NMB’s administration of that law shows that the US recognizes, both in law and practice, the freedom of American workers to associate with whom they choose, as well as the freedom of workers not to associate.
68. 551. The present complaint against Delta is one more example of the increasingly popular, and disturbing, practice of workers’ organizations using the Committee as a weapon to attack companies with which they have a dispute. The practice dilutes the core mission of the Committee which “is not to blame or punish anyone, but rather to engage in a constructive tripartite dialogue to promote respect for trade union rights in law and practice”. Implicit in the act of naming an enterprise in a complaint to the Committee is the request that the latter pass judgement on the enterprise and its conduct. Similarly, inclusion of reference to the enterprise in the Committee’s report implies that the Committee has indeed passed judgement on the enterprise and its conduct. The Committee’s mandate does not extend to an analysis or critique of the conduct of individual parties, because those inquires are made at the national level. If a nation’s laws and practices permit conduct inconsistent with the principles of freedom of association, then it is the province of the Committee to provide guidance as to how those national laws and practices should be corrected. It is not within the province of the Committee to provide guidance as to how enterprises are to comply with those national laws and practices.
69. 552. In May of 2008, the International Organisation of Employers (IOE) submitted a letter to the ILO seeking fundamental changes to the procedures of the Committee. The Secretary-General raised the IOE’s concern about the increasing number of references to private companies in CFA case examinations and observed that “complaints are increasingly being submitted to the Committee by the unions with the clear intention of attacking and discrediting multinational enterprises”. He further observed that “the mandate of the Committee is to ensure that governments apply the principles of freedom of association; (the Committee) has no authority to make reference to or directly comment upon private companies”. We support this position, and encourage the Committee to adopt it. The fact that the NMB has conducted thousands of representation elections without its conduct having ever been called into question before the ILO, along with the prominence of Delta in the dispute, show that the complainants’ true motives are to attack the company and not the legal system. That is wrong; to preserve its ability to guide national law and practice, the Committee should remove any identifying reference to enterprises from this and all future reports containing case examinations.
70. 553. The Committee has repeatedly observed that “national machinery” should be used to address complaints against acts of anti-union discrimination. However, here the complainant had immediate and unrestricted access to national courts to stop and/or remedy any acts of interference or discrimination it could attribute to Delta, yet never pursued these remedies. It simply chose to file its complaint with the Committee. By filing its complaint without even initiating the process to obtain available remedies at the national level, the AFA has created an awkward dilemma for the Committee, for if it examines the case, the Committee will effectively disregard its own observations that encourage the creation of effective mechanisms at the national level to remedy and prevent anti-union discrimination.
71. 554. The Committee states that it “has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures”. However, it has also maintained that “the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration”. Indeed, the Committee has long promoted the creation of these internal legal procedures at the national level to provide rapid and effective protection against anti-union discrimination. Therefore, the Committee must carefully assess whether its decision to examine a particular case justifies its disregard of the national machinery that it works so hard to promote. Certainly, where the complaining party can articulate that the national mechanism is ineffective or otherwise does not conform to the principles of freedom of association, then CFA examination of the case before exhaustion of national procedures may be justified. However, where there is no explanation for the failure to even engage available procedures at the national level, the Committee should not examine the case. The present complaint falls into the latter category of cases, and the Committee should treat it accordingly.
72. 555. Through its complaint, the AFA asks the Committee to serve as a super-appellate body providing a version of events which is merely a cursory summation of convenient facts assembled to portray its plight in the best light. This is a one-sided version of events. It is not what the NMB considered when it reached its decisions and it should not be what the Committee considers when examining the instant case.
73. 556. Contrary to the complainants’ assertions Delta did not wage a vigorous campaign to interfere with the right of flight attendants to organize. Delta merely communicated its opinions on unionization and provided accurate information to employees about the election process, all of which the NMB found to be in compliance with Delta’s obligations under the RLA. Such communications are wholly consistent with core principles of freedom of association, which provide both workers and employers the right to freedom of opinion and expression. The Committee has written that “(t)he full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities”. On numerous occasions, the Committee has sought to ensure that governments “guarantee through the existence of independent means of expression, the free flow of ideas, essential to the life and well-being of employers’ and workers’ organizations”. All social partners, including employers’ representatives, enjoy the exercise of civil liberties which include freedom of opinion and expression.
74. 557. The AFA relies on the Digest of decisions and principles of the Freedom of Association Committee to support its contention that Delta’s communications to employees about the election process and how to vote were in fact “attempts by the employer to persuade employees to withdraw authorizations given to a trade union”. The AFA argument is misplaced. Delta’s communications were to employees who had yet to make any designation of a representative; there were no authorizations to withdraw because the employees first had to vote through secret ballot to designate the AFA as their representative.
75. 558. In addition to, and consistent with, the principles stated by the Committee with respect to free speech, the First Amendment of the United States Constitution protects the freedom of speech by employers and workers in the context of unionization efforts so long as those communications “do not contain a threat of reprisal or force or promise of benefit”. While employers under the RLA enjoy a certain amount of latitude to communicate with employees during elections, such speech is not without limit. “Carriers may accurately portray the way an employee can vote no, and disseminate publications expressing their views on the representation election.” However, when carrier statements exceed acceptable norms, there may be a finding of election interference, particularly where such statements misrepresent NMB voting procedures. To that end, a carrier must not engage in a systematic and pervasive campaign to “overwhelm the employees’ ability to choose a representative freely” or the NMB will find interference. The AFA’s claim that Delta’s statements to employees through newsletters, banners, videos, and other materials, including “shred it” pins, amounted to interference with the election process is simply not correct either under the law of the NMB or principles of freedom of association. Not surprisingly, the NMB found that the statements were in fact accurate representations of the NMB process and the actions employees needed to take if they did not wish to be represented by the AFA. Moreover, the NMB noted that on several occasions in the allegedly offensive communications, Delta specifically acknowledged the employees’ right to make their own choice regarding representation. Finally, the AFA’s argument that Delta’s communications campaign was “pervasive,” “overwhelming,” and “designed to inundate employees”, was not accepted by the NMB.
76. 559. Like the NMB, the Committee has concluded that the display of flags and insignia, as well as the publication and distribution of newsletters and leaflets, is consistent with the principles of freedom of association. While the preponderance of case examinations by the Committee address this right as exercised by labour unions and their supporters, the Committee has repeatedly emphasized that these rights apply equally to employers and their representatives. Indeed, the principles of freedom of association draw little distinction between the expression of an opinion about union representation by a trade union supporter or an employer, so long as it is done in an atmosphere that is free of coercion, intimidation, or fear of reprisal.
77. 560. The NMB concluded that Delta did not engage in the harassment, intimidation, and surveillance alleged by the AFA. The NMB views harassment, intimidation, and surveillance, if supported by substantive evidence, as interference with a representation election and may result in the rerun of the election. This NMB principle is wholly consistent with the concept of freedom of association promoted by the Committee.
78. 561. Furthermore, the AFA failed to meet its evidentiary burden to present credible, reliable evidence of such conduct by Delta to the NMB. To the extent the AFA presented any evidence to the NMB, the facts did not establish that Delta engaged in any harassment, intimidation, or surveillance. First, with respect to surveillance, the AFA merely presented evidence that supervisors were present in crew lounges where AFA supporters and activists were working. Nothing under the RLA or principles of freedom of association requires employer representatives to vacate employer-controlled premises just because union supporters are present. Second, with respect to the alleged harassment, the AFA presented 23 instances of alleged harassment. Not one of these allegations was supported by direct evidence as is required for a finding of interference. The NMB concluded that the 23 alleged incidents in an election involving over 13,000 eligible voters over a five-week period did not amount to any “systematic pattern” of harassment to constitute interference even if they were supported by viable evidence.
79. 562. As regards the allegation that Delta conferred benefits to influence employees, the law governing the granting of benefits to employees in representation cases under the RLA is well settled. “Changes in working conditions during the laboratory period may taint laboratory conditions, except if the changes were planned before the laboratory conditions attached, or there is clear and convincing evidence of a compelling business justification.” The AFA wrongly asserted that Delta conferred a 3 per cent pay increase to the flight attendants on 1 July 2008 in violation of the RLA. The NMB found upon review of the facts that the 2008 increase not only was announced before the laboratory conditions attached to the 2008 election, but was planned in 2007 when Delta emerged from bankruptcy. Had the facts revealed that Delta instituted the pay increase to influence the results of the election, then the NMB would have found it to constitute interference.
80. 563. As concerns the allegation that the NMB unilaterally curtailed the election period, the AFA attempts to mislead the Committee with its allegation that the NMB engaged in misconduct when it moved the tally date from 3 June 2008 to 23 May 2008. Although required to do so, the AFA could produce no evidence that it suffered any prejudice by the date change. The NMB Representation Manual, which sets forth the rules by which all parties are obligated to abide, provides that the voting period shall be at least 21 days. In this case, it was actually 35 days, which is ample time for the employees to vote using the Internet and telephone voting procedure which takes mere minutes to complete.
81. 564. As concerns the allegation that the NMB permitted manipulation of the employee list, the NMB has a well-established procedure for determining voter eligibility, and the AFA’s assertion that Delta gerrymandered the list to its advantage with the NMB’s approval is patently false. The NMB rules governing voter e1igibility have existed for years, and were scrupulously followed in the Delta election. Indeed, when provided the list of eligible voters following its application for representation, the AFA requested, and was granted additional time to challenge names of employees on the list it believed were ineligible to vote. The very assertions the AFA made to the Committee were considered and resolved by the NMB after the customary investigation. Moreover, in many of the situations raised by the AFA, the NMB ruled in the AFA’s favour, proving that the procedure in fact worked as planned.
82. 565. The AFA seeks to further misrepresent facts of the case to the Committee by raising its objection to the inclusion of one deceased flight attendant on the eligibility list. Once this was brought to the attention of the NMB, the NMB removed the name from the list of eligible voters, and issued a revised tally of ballots. Ultimately the presence of one ineligible voter on a list containing over 13,000 names has no actual bearing on the outcome of the election, which as described above, was not even close.
83. 566. The AFA alleges that the NMB failed to ensure all employees received proper voting instructions, as 64 of the more than 13,000 eligible voters did not receive ballots. Curiously, 40 of the individuals identified by the AFA never requested duplicate ballots as they must do under the rules if they wish to vote. Fifteen were mailed duplicate ballots, and the remaining individuals either were not eligible voters, the ballots were returned as undeliverable, or their request was untimely. As for the four ballots that were allegedly opened or unsealed, once the issue was brought to the NMB’s attention, the NMB conducted an investigation and found “no evidence that the (four) unsealed and misdirected voting instructions were the result of anything other than the normal wear and tear that results from a mass mailing”. Per its rules, the NMB sent duplicate instructions to the four attendants promptly. If anything, the fact that such a small number of individuals claimed not to receive ballots out of an electorate so large demonstrates how effective the NMB election process in fact is. As with other AFA criticisms of the NMB election process, the claim that the NMB process somehow violates the principles of freedom of association in this context is simply not plausible.
84. 567. As concerns the allegation that the Laker Ballot procedure is inappropriate, the AFA’s request that that procedure be replaced by a different one is not within the province of the Committee. A method that enables workers to designate their exclusive collective bargaining representative based upon “pre-established, precise and objective criteria ... (that exist) in the legislation” conforms to the principles of freedom of association. The NMB has not deviated for over 70 years from its established election process that requires a majority vote of the total number of eligible voters in the craft or class unless there has first been interference in the election process. No doubt, this legacy is the result of plain language in the statute that provides a clear directive to the NMB that a majority of the craft or class must determine a representative. The only practical way to implement the directive of the statute is to require that a majority of the members of the craft or class vote in favour of representation. Anything less would amount to a contravention of those “pre-established, precise and objective criteria” unambiguously set forth in the legislation.
85. 568. If, upon the filing of allegations of election interference, the NMB concludes that a carrier did not interfere with the election, or the conduct was sufficiently isolated so as not to constitute a “systematic effort to interfere with the election” it will sustain the result of the election. However, where the NMB finds interference, in most cases it will order a rerun election using the standard NMB election process. Occasionally, if the circumstances require, it may extend the duration of the voting period.
86. 569. By way of exception only, and a rare exception at that, the NMB will vary the election process after it has concluded that a carrier has substantially interfered with the laboratory conditions of the election. To remedy the most egregious election interference and to mitigate the effects of an environment in which the “independence of judgement” of the voters has been eroded by the carrier’s conduct, the NMB has altered the balloting procedures altogether for a rerun election. This is known as a Laker election after the case Laker Airways, Ltd (1981). In Laker, the NMB found the carrier’s conduct to be “among the most egregious violations of employee rights in memory”, when it effectively interrogated employees about their sentiment towards union representation. The infractions of the employer in Laker included polling employee sentiment; interfering with the mailing process used by the NMB to conduct the first election; and engaging in conduct to keep track of those who did or did not have ballots.
87. 570. As a response to the NMB’s finding of such egregious misconduct in Laker, it reconfigured the election process for the rerun. In doing so, the NMB wrote, “the actions we take here should not be considered a precedent for the usual election situation, but is limited to situations where there is gross interference with a Board conducted election”. In the rerun election in Laker, the NMB conducted the election using a ballot box located on premises, and modified the form of the ballot to give employees the choice of voting “yes” or “no”, with no place for a write-in candidate. Finally, the NMB held that the election outcome would be determined by a majority of those who cast valid ballots instead of a majority of those eligible to vote. In a few cases after Laker, the NMB has similarly ordered modifications to the voting procedure for rerun elections when it has concluded the carrier engaged in misconduct akin to polling employees as to their sentiments in the election or the equivalent. Again, such action by the NMB is the exception, not the rule.
88. 571. The AFA’s claim that the NMB’s use of the standard election procedure, instead of a Laker ballot, demonstrates that the NMB “rules provide employees with inferior protection from employer interference” is false. In Laker the NMB used the on-site ballot box and the modified vote tally to encourage maximum employee participation and provide complete safeguarding of ballots and voting procedures. In Laker, the employer had already interfered with the mail ballot procedure and it was feasible to use a ballot box because of the employer’s small size. Within the context of the facts of the Laker case, the NMB concluded the modified process would achieve the desired remedy. In the case involving Delta, the NMB confronted neither the same facts nor the same outrageous conduct. As such, the NMB correctly concluded that a Laker election was unnecessary in the Delta case.
89. 572. In concluding, the USCIB maintains that the AFA’s complaint fails to demonstrate that the NMB’s election procedures diminish the rights of workers to associate freely or bargain collectively. The right to organize and designate a representative of one’s own choosing is alive and well under the RLA. The Committee often has to wrestle with cases involving murder, incarceration, death threats, and other horrific violations of basic human rights of individuals who seek to exercise their freedom of association. In the face of such serious cases, it seems hardly appropriate for the AFA, a well-financed labour union that has the benefit of enforceable legal mechanisms to perfect its rights under the laws of the US, to distract the Committee from its good work with complaints about nuances in an election it lost by a significant margin.
90. 573. In its communication dated 25 May 2010, the Government draws the Committee’s attention to the fact that, on 11 May 2010, the NMB published a final rule that amends its election procedures so that, in representation disputes, a majority of valid ballots cast will determine the craft or class representative. The new rule, which takes effect 30 days after publication, will end the NMB’s 75-year-old practice that required a majority of workers to vote for representation before a union would be certified as the representative and where those workers who did not participate in the election were counted as “no” votes. In adopting the new rule, the NMB noted that the new election procedures will more accurately measure employee sentiment in representation disputes and provide employees with clear choices in representation matters. The change, therefore, appears to resolve the chief concern raised by the complainants in this case.
91. 574. The US Government will provide further information relevant to this case and the new NMB rule as it becomes available. It is reasonable to expect that the complainants and the USCIB will wish to share their perspectives on the new rule as well. Under the circumstances, the Government suggests that it might be in the Committee’s interest to postpone briefly its consideration of the case. In any event, the Government trusts that this new development will be taken into account in the Committee’s examination.

C. The Committee’s conclusions

1. 575. The Committee observes that the allegations in this case concern anti-union acts at Delta Air Lines and insufficient national mechanisms and procedures for the protection of the right to organize. In particular the complainants allege a number of failures on the part of the NMB to effectively ensure their rights under the RLA with respect to the 2002 and especially the 2008 certification elections held for flight attendants at the airlines.
2. 576. The Government, for its part, states that its law and practice are in general conformity with Conventions Nos 87 and 98 and with the principles of freedom of association. The Government describes in detail the procedures followed by the NMB and concludes that its findings in the specific case before the Committee were reasonable and wholly within the NMB’s discretion in implementing the RLA.
3. 577. In addition, the Government forwards a communication from the USCIB asserting, among other things, that the complaint is not admissible because: (1) the proceeding before the Committee has been initiated without first exhausting available remedies before effective judicial authorities at the national level and; (2) it is inappropriate for the complainants to seek to have the Committee act as a “super-appellate body” to review or otherwise substitute its own conclusions for those of a well-established, independent government agency that reached its decisions with the benefit of a full evidentiary record created by the AFA and the airline. In addition, the USCIB asserts that the Committee’s mandate does not extend to an analysis or critique of the conduct of individual parties, because those inquiries are made at the national level. It therefore calls upon the Committee to remove any identifying references to enterprises.
4. 578. As regards the first matter of the admissibility of the complaint raised by the USCIB, the Committee indeed takes into account, when examining a complaint, the situation whereby available national appeal procedures before independent courts have not been used by the complainant. The Committee observes in this specific case that the complainants do not only contest the specific alleged anti-union acts on the part of the airline – for which the degree of review of the finding on the facts is uncertain – but more importantly draw a link between those findings and what they contend to be an inadequacy in the national legislation to ensure effective protection of the right to organize. It is within this light that the Committee will proceed with its examination of the case. As regards the question of naming of enterprises, the Committee considers that the decisions it has reached in this regard following important discussions during the examination of other complaints to the effect that the repetitive use of company names should be avoided remain valid in this particular case and it will proceed on that same basis.
5. 579. The Committee notes that the complainant makes a number of allegations in relation to acts of interference on the part of employers generally, and in this specific case of the airlines, to try to interfere with the rights of workers to freely choose the organization to represent them. Such alleged acts range from abuse of the employers’ freedom of speech through the waging of anti-union communication campaigns, harassment and intimidation of employees, manipulating employee eligibility lists to raise the amount that needs to be obtained to demonstrate majority representation, and the conferral of benefits in order to influence employees.
6. 580. The Government responds to each of these allegations stating that the NMB thoroughly considered all of the issues raised and reasonably resolved them in a manner consistent with US law and practice and ILO principles. More specifically, the Government refers to the NMB jurisprudence that allegations of election interference must meet a prima facie case that the laboratory conditions were tainted and must be supported by substantive evidence. In the specific circumstances of this case, the NMB found that the allegations were not supported by substantive evidence and did not establish interference. Similarly, the USCIB asserts that the complainant AFA failed to meet its evidentiary burden to present credible, reliable evidence of anti-union conduct on the part of the airline to the NMB and responds to each of the claims made by the complainants. The USCIB further asserts that, to the contrary, the airline has always had a special relationship with its employees in a culture of mutual commitment.
7. 581. The Committee observes that some of the information with respect to the actions of the airlines provided by the complainants, on the one hand, and the Government and the USCIB, on the other, is contradictory. As asserted by the USCIB, and more indirectly by the Government, the Committee is not in a position to assess the factual evidence in this specific case and weigh the various elements with meaningful authority, especially in the light of the contradictions brought to light between the complainants’ allegations and the information transmitted by the Government. The Committee therefore will not attempt to re-evaluate the assessments already undertaken by the NMB of the facts in this particular dispute.
8. 582. The Committee does, however, take due note of the stress placed by the complainants on what they consider to be the unacceptable practice of encouraging employees to rip up their voting instructions, displaying posters and banners calling on employees to shred their ballots and distributing similar pins to flight attendants. The complainants have explained that such campaigns are especially damaging to an industrial relations system based on majority representation where the union must obtain the majority of all employees, not just those voting, before being certified as the bargaining representative. In the case at hand, while over 5,000 flight attendants expressed their desire to be represented by AFA–CWA, they were left without trade union representation as they did not meet the 50 per cent requirement of the over 13,000 eligible employees.
9. 583. The Government and the USCIB do not challenge the facts as set out above but rather contend that such actions are fully in conformity with established national jurisprudence and the principles of the Committee in relation to freedom of expression. The Government refers in particular to the Supreme Court position 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’”. According to the USCIB, the airline merely communicated its opinions on unionization and provided accurate information to employees about the election process, including about how to vote against the union by shredding their ballot.
10. 584. While having stressed the importance which it attaches to freedom of expression as a fundamental corollary to freedom of association and the exercise of trade union rights on numerous occasions, the Committee also considers that they must not become competing rights, one aimed at eliminating the other. While noting that the national process did not find interference with freedom of association, the Committee expresses a general concern at the use of “shred it” buttons in this regard. While providing all relevant ballot information, including how to vote against a union, would be acceptable as part of the process of a certification election, the Committee considers that the active participation by an employer in a way that interferes in any way with an employee exercising his or her free choice would be a violation of freedom of association and disrepect for workers’ fundamental right to organize.
11. 585. In this regard, the Committee wishes to recall that it has had the opportunity to review the question of employers’ freedom of expression in a recent case where, observing that the protection afforded by unfair labour practices in the country included protection against freedom of speech that would interfere with the formation of any labour organization or with the selection of a trade union as a representative for the purpose of bargaining collectively, found that the principles of freedom of association did not appear to be violated (see Case No. 2654, 356th Report, para. 381.) In addition, it has requested a Government in another case to ensure that employers do not express opinions which would intimidate workers in the exercise of their organizational rights, such as claiming that the establishment of an association is unlawful, or warning against affiliation with a higher-level organization, or encouraging workers to withdraw their membership (see Case No. 2301, 356th Report, para. 80). The Committee draws the Government’s attention to the importance of providing for specific and effective protection in relation to the right to organize and the selection of a collective bargaining agent and requests it to review the current application of the RLA, in respect of the issues raised in this specific case, with the social partners with a view to taking the necessary measures so as to ensure full respect for these principles in practice.
12. 586. The Committee further observes that the complainants had linked the risks of an abuse of the right to free speech on the meaningful exercise of the right to organize to the special process of elections as carried out by the NMB on the basis of the requirement for a majority of the employees to vote in favour of the union for it to be certified as bargaining agent. It is within this context that the complainant not only states that a “Laker” ballot (a “yes” or “no” ballot with certification being granted if the union wins the majority of the votes cast) should have been used in the specific case before it, but argues more generally that the NMB election rules should provide employees with an option for a “Laker” ballot or should at the very least no longer restrict such balloting procedures to “extraordinary and unusual” circumstances.
13. 587. The Committee notes that the Government refers in this regard to the special concerns of the sector covered by the RLA and the need to ensure stable labour relations so as to avoid any interruption to inter-state commerce. In addition, the Government refers to the fact that the RLA does not provide for a decertification process and therefore it is of the utmost importance that the certified union have the support of the workers it is certified to represent. The Government further describes the extraordinary circumstances giving rise to the “Laker” ballot and puts forward that the NMB’s decision not to use the ballot in the circumstances at hand in this case were fully concordant with its use over the years. Finally, the Committee notes the information provided by the USCIB which set out the distinction between the present case and the egregious case which gave rise to the “Laker” ballot.
14. 588. The Committee recalls that it has considered numerous labour relations systems over the years to be in conformity with freedom of association principles, including both systems requiring majority representation and those that do not. It is not necessarily incompatible with Convention No. 87 to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit. This is the case, however, only if a number of safeguards are provided. The Committee has pointed out that in several countries in which the procedure of certifying unions as exclusive bargaining agents has been established, it has been regarded as essential that such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organizations to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organization which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; and (d) the right of an organization other than certified organizations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election. The Committee further recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 969 and 976). The Committee observes that the system practiced by the NMB would appear to correspond to these essential safeguards in relation to systems based on exclusive bargaining rights for the most representative union: (1) the certification is made by an independent body; (2) the representative organization is chosen by a majority vote of the employees in the unit concerned; and (3) a non-certified organization has the right to request a new election after a stipulated period.
15. 589. The Committee further observes that the request made by the complainants in relation to a greater use of the “Laker” ballot appears largely to be linked to what they perceive as an imbalance of power in favour of the employer rendering success on a normal ballot, where all eligible votes count, excessively difficult to achieve. The Government in its initial reply maintains to the contrary that the election standard as practised by the NMB had not resulted in the suppression of unions and that there is a significantly higher percentage of unionization in the workforce covered by the RLA. The Committee welcomes in this regard the social dialogue described by the Government currently taking place. This dialogue includes the information from the Government’s most recent communication that the NMB published a final rule on 11 May 2010 that amends its election procedures so that, in representation disputes, a majority of valid ballots cast will determine the craft or class representative, apparently resolving the chief concern raised by the complainant; the review of that new rule under applicable law; and the formation by the NMB of a new joint labour–management committee to examine the recommendations made in the 1990s by the Commission on the Future of Worker–Management Relations (the “Dunlop Commission”). The Committee expects that the issues raised in this case and the principles of freedom of association will be fully borne in mind within this framework and within any other review processes undertaken.