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45–364 PDF 2008

NATIONAL MEDIATION BOARD 

OVERSIGHT OF ELECTIONS FOR 

UNION REPRESENTATION 

(110–173) 

HEARING 

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 24, 2008 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ARCURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

LAURA A. RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

ROBERT E. LATTA, Ohio 

(II) 

(III) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... iv 

TESTIMONY 

Friend, Patricia A., International President, Association Of Flight AttendantsCWA, AFL-CIO ..................................................................................................... 4 

Hoglander, Hon. Harry R., Member of the Board, National Mediation Board ... 4 

Van De Water, Hon. Read C., Chairman, National Mediation Board, accompanied by the Hon. Elizabeth Dougherty, Member of the Board, National 

Mediation Board ................................................................................................... 4 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Carnahan, Hon. Russ, of Missouri ......................................................................... 45 

Costello, Hon. Jerry F., of Illinois .......................................................................... 47 

Cummings, Hon. Elijah E., of Maryland ............................................................... 49 

Mitchell, Hon. Harry E., of Arizona ....................................................................... 55 

Oberstar, Hon. James L., of Minnesota ................................................................. 56 

Petri, Hon. Thomas E., of Wisconsin ..................................................................... 61 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Friend, Patricia A. ................................................................................................... 70 

Van De Water, Hon. Read C.; Hoglander, Hon. Harry R.; joint statement ........ 91 

ADDITIONS TO THE RECORD 

National Mediation Board, in the matter of the Representation of Employees 

of Delta Airlines, Inc., Case No. R-7148, the Association of Flight Attendants’ Supplemental Motion for Board Determination of Carrier Interference 96 

iv 


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45364.002
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45364.003
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45364.004
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45364.005
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45364.006
(1) 

HEARING ON NATIONAL MEDIATION BOARD 

OVERSIGHT OF ELECTIONS FOR UNION 

REPRESENTATION 

Wednesday, September 24, 2008, 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The Committee met, pursuant to call, at 2:18 p.m., in Room 

2167, Rayburn House Office Building, the Honorable James L. 

Oberstar [Chairman of the Committee] presiding. 

Mr. OBERSTAR. The Committee on Transportation and Infrastructure will come to order. Apologies for the delays because of the 

votes. 

We are here to evaluate the rules and procedures of the National 

Mediation Board on its oversight of elections for union representation. 

There are a number of important issues we are going to take into 

consideration today, and all of them have significant implications 

for the rights of aviation workers to bargain collectively. 

The National Mediation Board is this year as old as I am. I will 

let you all figure out how old that is. 

[Laughter.] 

Mr. OBERSTAR. It was established as an independent agency to 

oversee labor and management relations in the aftermath of the 

Wagner Act and the Railway Labor Act of 1926. Its role is to govern the statutes covering workers and mediation and arbitration of 

collective bargaining and other issues of that nature in the rail 

and, later, the aviation sectors. 

That very clear purpose is established in the Act, to forbid any 

limitation on freedom of association among employees or any denial 

as condition of employment or otherwise of the right of employees 

to join a labor organization and to maintain labor-management relations to avoid interruption to commerce or the operation of a carrier. 

Over time, there has been a body of regulation established to implement the law, and the NMB has set a high bar for workers to 

win the representation of a union. 

In a Mediation Board election, a majority of workers in a given 

craft or class who are eligible to vote in an election must participate in that election. 

Every employee eligible to vote starts off the election as a presumed vote against representation. Those who do not vote are 

counted as votes against the union. If a majority of all eligible votVerDate Aug 31 2005 17:40 Jun 27, 2009 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 P:\DOCS\45364 JASON
2 

ers do not vote, employees do not vote, it is not possible for a union 

to win the election. 

That is a very different standard than we have for public elections. Even if all those voted, if you had 100 percent of those voting 

choose representation but they are not a majority of all the eligible 

employees, then they lose. 

Now that process differs from the rules applicable to workers 

governed by the National Labor Relations Act, where a simple majority of votes cast, like general elections that Mr. Petri and I and 

other Members of this Committee have to go through, establishes 

the outcome of the election. 

That is a very high bar for a union to organize workers in the 

context of the Railway Labor Act. Given that high bar, we have to 

be very vigilant to ensure that elections are conducted with a clear 

set of rules to ensure that workers are not turned against a union 

by misrepresentation or coercive practices by management, that 

the rules are uniformly applied and that they are fairly and effectively enforced. 

The testimony we will hear today from the Association of Flight 

Attendants and Pat Friend, who is their President, will set forth 

a number of issues in the recent campaign of AFA to organize 

flight attendants at Delta Airlines, and those issues raise a number 

of questions about existing NMB rules that govern representation 

elections. 

These include decisions by the NMB to allow over 1,700 furloughed flight attendants, as well as those who intend to retire 

shortly after the election, to remain eligible to vote in the election. 

NMB standard is that any worker with an existing ‘‘employee-employer relationship’’ at the time the union files for representation 

election is eligible to vote. 

Now I just have a question about how strongly those workers, especially those who are taking themselves out of the active work 

site, are motivated to vote on issues that affect worker-company relationships. If they remain eligible but do not vote, their failure to 

vote counts as a vote against the union. The deck is, in a certain 

way, stacked against organization. 

As I went through the files in preparation for this, I found that 

a determination of the NMB that a deceased flight attendant 

should not be removed from the eligibility list because the request 

to remove that person was not made in a timely fashion. I thought 

that only happened in Chicago or New Jersey where the dead could 

vote. 

I will probably hear from all my friends in Chicago about this. 

Too bad Mr. Lipinski isn’t here. 

[Laughter.] 

Mr. OBERSTAR. Well, because deceased flight attendant, Janette 

Wood, was not removed from the list, she voted no in that election. 

It defies logic. 

There are other actions by the Board that raise questions about 

whether there is any requirement that the NMB adhere strictly to 

its rules. 

AFA, last year, filed for a representation election at Compass 

Airlines, a subsidiary of well-known local airline in Minnesota, 

Northwest. The Board pushed back the cutoff date for the election 

3 

by three months, citing extraordinary circumstances. You can’t just 

shift the rules around for when an election occurs. 

The circumstances the Board cited were that Compass planned 

to increase their hiring over the next several years. So the delay 

in the election allowed additional flight attendants, soon to be 

hired, to be added to the eligibility list because of the employer-employee relationship. 

Last month, the Board attempted to revise its rules in a way 

that may have made it harder for workers to retain their union 

membership in the event of a merger. 

Well, that further highlights the ability of the Board to alter the 

playing field in these representation elections through these seemingly small, but in reality very important, procedural changes. Subsequent to raising this issue by the union and others, the Board decided to drop that proposal. 

The testimony we are going to hear today raises questions about 

the attitude among the leadership of Delta against unionization 

and the implications for flight attendants at Northwest who are 

currently represented by AFA and their status, should they become, God forbid, employees of a new Delta if approved by—I hope 

it doesn’t happen—the Department of Justice. 

Now I am not saying anything I haven’t said before. I am opposed to that merger. I think it is a terrible thing. It would be the 

worst thing that has happened since deregulation. But that is a 

separate matter not subject to this hearing. 

So it is appropriate for the Committee to undertake careful scrutiny of election tactics as they are managed by the NMB and to assure that there is fairness, equity and consistency. 

Mr. Petri had to leave for another event. Does Mr. Coble wish 

to be recognized at this time? 

Mr. COBLE. Very briefly, Mr. Chairman. 

I would just like unanimous consent to have Mr. Petri’s statement entered into the record. 

Mr. OBERSTAR. By unanimous consent, it will be included. 

Mr. Nadler? No questions. 

Mr. Bishop? Mr. Michaud? 

Do any Members wish to be recognized at this point? 

Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chair, and I am very thankful 

to you for holding this hearing in regard to this issue. 

I travel twice a week—most of the Members do—and I am very 

concerned about some of the issues that flight attendants have 

brought to my attention as I am flying back from the East Coast 

to the West Coast and sometimes into Texas and other areas. 

To me, it has always been an opportunity to be able to ask important questions about how they feel, whether it is their job, their 

representation, their hours because I come from the working class, 

and I want to ensure that whoever is out there protecting us in the 

air or helping protect us are well taken care of. 

And I am finding, of course, that there was a great bit of concern 

by some of the individuals that I spoke to in regard to this merger 

and how it was going to affect many of their colleagues, maybe not 

necessarily them. 

4 

This National Mediation Board, you have to be careful. I don’t 

know whether you travel a lot or whether you get a chance to talk 

to these individuals, but my suggestion is please do. You will get 

an earful. 

They get harassed. Whether intentionally or not intentionally, I 

am not quite sure because I am not there, but this intimidation has 

to stop. We don’t take it from a lot of other folks in many of our 

areas. We certainly shouldn’t take it from their bosses. 

Management should be helpful because that will make employees 

happier. They will be able to get better work results out of them. 

I have been and I am a small business owner, and I hear all this, 

well, it is going to affect some business. 

On the contrary, it helps create better working relations and, by 

the same token, they treat us better in the air. Maybe you would 

call it self-serving, if you will. 

But I certainly thank the witnesses, and I look forward to the 

testimony. 

And, I thank you, Mr. Chair. I yield back. 

Mr. OBERSTAR. I thank the gentlewoman. 

Ms. Richardson? 

Ms. RICHARDSON. Nothing at this time, thank you, Mr. Chairman. 

Mr. OBERSTAR. We will begin with the Chair of the National Mediation Board, Read Van de Water, who has had an extensive distinguished career at the Department of Transportation and now at 

the Board and then previously with Northwest Airlines. 

Welcome to the hearing. Thank you very much for being here. 

Ms. Dougherty, thank you very much for participating. 

TESTIMONY OF THE HONORABLE READ C. VAN DE WATER, 

CHAIRMAN, NATIONAL MEDIATION BOARD, ACCOMPANIED 

BY THE HONORABLE ELIZABETH DOUGHERTY, MEMBER OF 

THE BOARD, NATIONAL MEDIATION BOARD; THE HONORABLE HARRY R. HOGLANDER, MEMBER OF THE BOARD, NATIONAL MEDIATION BOARD; AND PATRICIA A. FRIEND, 

INTERNATIONAL PRESIDENT, ASSOCIATION OF FLIGHT ATTENDANTS-CWA, AFL-CIO 

Ms. VAN DE WATER. Thank you, Mr. Oberstar and Members of 

the Committee. 

On behalf of the National Mediation Board, I am pleased to offer 

a brief oral statement today and ask your permission, Mr. Oberstar, to submit a written statement for the record. 

Mr. OBERSTAR. Without objection, so ordered. 

Ms. VAN DE WATER. Thank you. 

I am joined today by my two colleagues, Harry Hoglander and 

Liz Dougherty. Mr. Hoglander has been with the NMB since August of 2002 and has twice served a one-year term as Chairman. 

Ms. Dougherty joined the NMB in December of 2006 and served 

immediately as the Agency’s Chairman for six months. 

As is probably apparent, the chairmanship of the NMB is a rotating position among the three members. I became Chairman this 

past July 1st, replacing Mr. Hoglander, and Ms. Dougherty is slated to resume the chairmanship on July 1st, 2009. 

5 

The National Media Board is a neutral Agency with a variety of 

statutory duties. Although a very small Agency, we have an exceptionally strong and talented professional staff from a variety of 

labor and management backgrounds. 

Although we view our mediation, arbitration and other duties 

arising from the Railway Labor Act as very important, we will 

focus the testimony today on the issue of representation, reflecting 

the direction we have received from the Committee. 

The Railway Labor Act was originally passed in 1926 and covered railroads. Amendments in 1934 created the National Mediation Board and gave the Board jurisdiction over representation 

issues. Airlines were added in 1936. 

The Act has been amended only a few times since then. In the 

mid-1990s, an extensive review of the RLA by a joint labor-management committee called the Dunlop Commission, conducted at 

the request of the Secretaries of Labor and Transportation in the 

Clinton Administration, ultimately recommended that no statutory 

changes be made to the Railway Labor Act. 

As you probably know, both the railroad and airline industries 

are highly unionized, 84 percent for rail and over 60 percent for 

airlines, well above the national average of under 8 percent for 

other private industries that operate under the NLRA. 

One of the Agency’s key functions is resolving representation disputes. This is a brief description of what occurs in such a situation: 

An application is filed with the NMB alleging the existence of a 

representation dispute among a craft or class on a particular carrier. The application must be accompanied by a showing of interest. 

The showing of interest is 35 percent if employees are not represented or 50 percent plus 1 if they are represented by another 

union. 

The NMB dockets the application, assigns an investigator, notifies the carrier and asks the carrier for a list of eligible voters and 

signature samples. 

The NMB next authorizes an election if certain conditions have 

been met. 

Participants may file challenges and objections to the list of voters which must be supported by substantive evidence. The investigator will rule on eligibility issues. 

Ballots and voting instructions are mailed out. Elections usually 

occur within 21 days. Voting is now conducted by telephone and 

internet electronic methods. 

We used to conduct our voting by mail. We added telephone voting in 2002 and internet voting in 2007. In the five years that we 

have had telephone and internet voting, our voting participation 

has gone up substantially. 

After the tally, the Board either certifies the Union or dismisses 

the application depending on the result of the election. 

The National Media Board employs the laboratory conditions test 

to ensure a fair election environment. This protects employees’ 

rights to choose or not choose representation by a particular union. 

Either the union or the carrier may file allegations of election interference up to seven business days after an election. All allegations must be supported by substantive evidence. 

6 

The Agency preliminary investigates all such allegations. If the 

investigation supports a prima facie case that laboratory conditions 

were tainted, the Agency will launch a further onsite investigation. 

Moving to merger situations, the Agency also investigates the 

representation consequences that result from the merger of two 

carriers. In doing so, the Agency first determines if a single transportation system does exist. 

We use a two-part test. It examines, first, whether the two carriers are held out to the public as a single transportation system 

and, secondly, whether there is substantial integration of key functions. 

For example, the Agency ruled in both 2006 and 2008, at the request of different unions at different times, that the merger of U.S. 

Airways and America West constituted a single transportation system. As a consequence of that merger, the Agency extended certifications in some cases, recognized a unique joint council at the request of two previously opposing unions that would have faced each 

other in an election and, finally, authorized an election just a few 

months ago in early 2008 regarding representation of the pilots, an 

election that resulted in an extraordinary 95 percent voter participation by the pilots on the merged U.S. Airways. 

The NMB is committed to employee choice in representation matters. We allow voluntary recognition, and we also extend certifications without elections when a union and carrier come to an 

agreement and can support that agreement with majority support 

from their employees. 

A recent example of that policy is the NetJet decisions in July, 

2008, which we explained in detail in our written testimony but 

would be happy to take questions on. 

I hope this overview gives you an opportunity to further understand the policies and procedures of the National Mediation Board. 

My colleagues look forward to your questions and comments. 

Mr. OBERSTAR. Thank you very much for your very crisp and 

crisply delivered testimony. 

So, Ms. Dougherty and Mr. Hoglander, you have no supplementary statements. Fine. 

Ms. Friend. 

Ms. FRIEND. Thank you, Chairman Oberstar, and thank you to 

Congressman Costello for holding this hearing this week during a 

very constrained congressional calendar that probably just got 

more crowded than it was when you scheduled the hearing. 

We believe that today’s hearing is historic because in our memory this is the first hearing ever to be held on the policies and practices of the National Mediation Board. 

Congress enacted the NLRA and the Railway Labor Act with an 

intent to protect workers and to promote the national policy declared by Congress to encourage unionization and collective bargaining, but decades of undermining by corporate interests and a 

lack of strong enforcement of those rights and sometimes outright 

hostility from the National Labor Relations Board and the NMB 

have led to an erosion of those rights. 

Representation elections, as you have noted, conducted by the 

NMB pursuant to the RLA are unlike any other election in the free 

world in that winning requires a majority of all eligible voters must 

7 

cast a ballot. But nothing in the RLA requires these voting rules 

that are practiced today, particularly when a comparison of the 

language is made with the NLRA where elections are decided by 

a simple majority of votes cast. 

These NMB rules have made it almost impossible for workers to 

form a union. In addition, the NMB routinely turns a blind eye toward aggressive anti-union behavior by employers. 

A recent and revealing example of this would be the NMB’s practices and decisions during the two representation elections of the 

Delta flight attendants. 

In 2001, AFA-CWA filed for a representation election at Delta 

with support from over 50 percent of the flight attendants. During 

the voting period, Delta management engaged in an intense antiunion campaign. At the end of the election period, less than 50 percent of the Delta flight attendants participated, so the union was 

not certified even though over 98 percent voted for AFA. 

Immediately after that election, we filed interference charges 

against Delta management. The NMB eventually ruled that the 

Board was troubled by Delta’s conduct during the election but that 

a remedy was not necessary. Board Member Harry Hoglander filed 

a very rare dissent in that case. 

Then, in early 2008, AFA again filed for representation election 

at Delta, again with support from well over 50 percent of the flight 

attendants, and again Delta management engaged in an unprecedented campaign of voter suppression. In the end, Delta management was successful, and less than 50 percent of the individuals 

listed on the eligibility list participated in the election even though 

99 percent voted for AFA. 

Included on the list of eligible voters that was submitted by 

Delta were flight attendants whose employer-employee relationship 

was tenuous at best, as you have noted. 

Then on March the 18th, shortly after we filed, Delta management announced an early-out incentive package for flight attendants. Since these individuals would be leaving employment with 

Delta in the immediate future, they clearly had no stake in the outcome of the representation election, yet their names were allowed 

to remain on the eligible voter list. 

In another act which disenfranchised more Delta flight attendants, the NMB, after announcing the dates for the election and the 

voting period, abruptly and arbitrarily and without consultation 

with anyone changed the election dates, shortening the voting period by one week for an 8,000 group class working for an airline 

with an extensive international route structure. 

But in a final insult to democracy, Delta correctly reported a deceased flight attendant on the eligibility list. The NMB was notified 

in less than the seven calendar days that they require for removing 

a name. So the NMB ruled that death is not an extraordinary circumstance, and the flight attendant remained on the eligibility list. 

Incredibly, now almost five months have passed since the election and since AFA filed, again, interference charges against Delta 

management, and the NMB has yet to respond or, to our knowledge, conduct an exhaustive investigation of our charges of interference. 

8 

But the most recent example of overreach by this NMB was its 

attempt to change its representation manual in airline merger situations. Those proposed changes, coming as Delta and Northwest 

prepare to merge and throwing the future of the collective bargaining rights of tens of thousands of Northwest employees into 

doubt, were suspicious at best. 

I want to offer my thanks to the many Members of Congress who 

weighed in with the NMB to express their opposition and outrage 

at the proposals. Fortunately, the NMB withdrew the proposed 

changes after they received overwhelmingly negative comments. 

Lastly, I would like to raise the issue of the possible conflict of 

interest that exists with the current Chair of the NMB. Chair Van 

de Water is a former employee of Northwest Airlines. Her failure 

to recuse herself from decisions involving her former employer, 

Northwest Airlines, has raised serious concerns. 

These actions on behalf of Delta by the NMB jeopardizes over 60 

years of collective bargaining for our Northwest Airlines flight attendants. Should Delta management succeed, with assistance from 

the NMB, in eliminating a flight attendant union, the Northwest 

Airlines collective bargaining agreement will be eliminated in the 

most undemocratic way imaginable. 

We hope that Congress will send a clear message that the NMB 

can no longer be a party to corporate America’s efforts to usurp the 

stated policy and precedent of Congress to encourage unionization 

and collective bargaining. 

In closing, Mr. Chairman, I would point you to the NMB’s web 

site where their 2005 through 2010 strategic plan includes a mission statement that contains 3 principal statutory goals. The second goal warrants mention today. It reads: To ensure employee 

rights of self-organization without interference when representation disputes exist. 

Two of the board members who authored this plan no longer 

serve on the Board, but Board Member Harry Hoglander was one 

of the authors. 

This Board, Mr. Chairman, has ignored its adopted strategic 

plan, and it is time to return the practices of this Board to its stated mission. 

Thank you and I will be happy to answer any questions. 

Mr. OBERSTAR. Thank you very much, Ms. Friend. Of course, as 

with all witnesses, your entire statement will be included in the 

record. 

Chair Van de Water, I am puzzled by this requirement for a majority of all eligible employees. I would like to go back. 

The Railway Labor Act language provides: ‘‘Employees shall have 

the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of 

employee shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter.’’ 

But it doesn’t say anything about requiring the majority of all eligible employees to vote. How did that practice come to be? 

Ms. VAN DE WATER. Mr. Oberstar, it has always been that way 

with the Railway Labor Act, going back over 70 years. 

Mr. OBERSTAR. How did that come? It had to be by regulatory inference. There is no statutory requirement for it. 

9 

Ms. VAN DE WATER. No. It became case law and practice at the 

National Mediation Board, and it was examined by the Dunlop 

Commission, and no recommendations were discussed. 

Mr. OBERSTAR. Do you remember when the first time that decision was made? Do you have any idea when? 

Ms. VAN DE WATER. In 1935. 

Mr. OBERSTAR. In 1935. 

Ms. VAN DE WATER. Yes, sir. 

Mr. OBERSTAR. It goes back that far? 

Ms. VAN DE WATER. Yes, sir. 

Mr. COBLE. It is almost as old as you are. 

Mr. OBERSTAR. No. The Act is as old as I am, not the regulation. 

It is one year younger. 

[Laughter.] 

Ms. VAN DE WATER. Further, Mr. Oberstar, we don’t have any 

process in place for decertification like the NLRA provides for. So, 

in interest of promoting harmonious and stable relationships for 

interstate commerce, that is the way the Act has been interpreted 

over time for both rail and air. 

Mr. OBERSTAR. Well, how is it justifiable to include in the eligible 

list those who have retired and are no longer active employees of 

the company? 

Ms. VAN DE WATER. We include people who are on furlough 

which is very common, as you know, in the airline industry. We 

don’t include people who have been furloughed forever. In a recent 

United Machinists election we had earlier this year, we did remove 

people who had been furloughed for a very extended period of time. 

But if you maintain an employee-employer relationship or a hope 

of returning and you stay on the list to be furloughed, you do have 

the right to vote. 

Mr. OBERSTAR. Even though others have been hired in the meantime and the reality is that they are not going to be called back. 

Ms. VAN DE WATER. We don’t set up the details of the employeremployee relationship. If Delta, for example, in this case, had people furloughed from one particular base but hired at a different 

base, that would be between the carrier and their employees. That 

is not an NMB decision. 

Mr. OBERSTAR. So this standard could vary from carrier to carrier, from case to case. 

Ms. VAN DE WATER. It could, depending on the situation, how 

long someone has been furloughed and what their expectation 

might be and what has been reasonable and practiced in the industry. 

Mr. OBERSTAR. There is a curious term of art in the NMB proceedings called laboratory conditions. How did that come to be and 

what does it mean? 

Ms. VAN DE WATER. Laboratory conditions looks at the totality 

of the circumstances in a particular case and whether the whole 

situation results to be tainted. 

Mr. OBERSTAR. What is meant by laboratory? 

Ms. VAN DE WATER. Laboratory would be the conditions that are 

ideal for a free and fair election and for free employee choice. 

Mr. OBERSTAR. Okay. It is a term of art apparently been in practice for many, many years. 

10 

Ms. VAN DE WATER. It is, and sometimes the Agency has ruled 

that the laboratory conditions have been tainted and has ordered 

remedial actions, and sometimes it has ruled they have not been 

tainted. 

Mr. OBERSTAR. And there is a body of practice in NMB proceeding that makes it clear to all what laboratory conditions 

means? 

Ms. VAN DE WATER. There are a variety of cases that go back for 

quite a period of time. There have been quite a few just in the time 

I have been at the NMB. 

Mr. OBERSTAR. You say in your statement that laboratory conditions are necessary conditions to protect employees’ right to choose 

representation without coercion. How do you make that determination? 

Ms. VAN DE WATER. It depends a lot on what the employer does 

and what the carrier does. We do not prohibit innocent and standard communications between employers and employees. That is actually a court decision upheld in the D.C. Court of Appeals that the 

NMB lost on that issue. 

We ask that the employer not coerce or influence the employees. 

They can offer them information. They can communicate with 

them. They can’t say things like if you vote for that union, we are 

going to fire you or if you vote for that union, you are going to fly 

the worst flights for the next year or that you will lose your health 

care benefits. 

That is the kinds of things we look for. We want business as 

usual to continue during the election period. 

Mr. OBERSTAR. What about circumstances in which an employer 

has its personnel standing at the voting place? 

Ms. VAN DE WATER. We don’t actually have a voting place. Our 

voting is done by telephone and by the internet. So someone could 

do it at their house. 

I doubt many people vote at work. It wouldn’t really be set up 

for that in an airline. 

Mr. OBERSTAR. There are information tables at the work place. 

Ms. VAN DE WATER. There are information tables, yes, if the 

union chooses to set one up or the carrier does. 

We don’t dictate the rules of how unions or employers set up information in the work place. We just ask that the employees not 

be unduly coerced or influenced. 

Mr. OBERSTAR. Is it appropriate for an employer to refuse employees to set up an information place or table on the work site to 

talk and provide information about the union? 

Ms. VAN DE WATER. I think generally employers allow employees 

to set up as long as it doesn’t interfere with the normal course of 

business. 

Again, it depends on the circumstances. It is hard to say across 

the board. We look at the details and the facts before coming to a 

decision. 

Mr. OBERSTAR. Are there cases in which, under your watch, the 

Board has found that employer or employee activities have violated 

the laboratory conditions test? 

Ms. VAN DE WATER. Absolutely. We had one just a few months 

ago with Great Lakes Aviation where we had some what we considVerDate Aug 31 2005 17:40 Jun 27, 2009 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 P:\DOCS\45364 JASON
11 

ered contamination of the cards by an employee trying to overthrow their union. We chose not to accept that, and the union is 

still in place and negotiating with the employer. 

Mr. OBERSTAR. Mr. Hoglander, in 2002, the Board ruled that it 

did not find interference on the part of Delta in the 2001 flight attendant election. 

I reviewed your dissent in the ruling, in which you said: ‘‘In my 

view, Delta’s actions, viewed in the totality of the circumstances, 

tainted laboratory conditions required for an election ... I would 

order a rerun election in this case.’’ 

What did you mean by the totality of circumstances? 

Mr. HOGLANDER. Well, in that particular case, that is the 2002 

election that was being contested, I had strong feelings. 

As you may or may not know, I worked in the airline industry 

as an airline pilot for 28 years. I was a union official, and I had 

some pretty close experience with organizing drives. 

It seemed to me at the time that we handled both cases, both the 

railroads and the airlines, and what I think requires particular attention is the fact that I think I focused if that is the paragraph. 

I don’t recall exactly what my words are, but I think I was focusing 

on supervisory interference, people standing around and trying to 

influence the vote. 

I found there are two parts to that test in my mind. Things are 

different on the airline business where, say, an isolated incident 

that would occur in a shop—we will say in Nashville—where there 

is perhaps some tainting of the situation. It isn’t the same as when 

we are dealing with operating crew members. 

Operating crew members, in my experience as a pilot, when you 

are in Delta’s largest domicile, in Atlanta, where literally hundreds 

of people come through the crew lounge area within an hour or 

two. If there is an incident that is witnessed there within an hour 

or two, these flight attendants, pilots and others who see this are 

on their way to New York, Salt Lake, Cincinnati, and it isn’t an 

isolated instance any longer. 

It is not like that shop in Nashville where what happens in 

Nashville seems to stay in Nashville. Also, I think I found fault 

with that. 

I also, having 28 years of bouncing around crew lounges, it was 

rather stunning to me to see that there would be 6 or 7 supervisors 

around to observe. I never saw many supervisors in my years 

there. I mean they came through now and then, but generally there 

wasn’t that. 

In that particular portion that I felt had influenced those conditions, those were the circumstances that I used as a guide. 

Mr. OBERSTAR. That is helpful. Thank you very much. 

Ms. Friend, what was the situation that allowed a deceased flight 

attendant to be counted as eligible and a voter, as an employee? 

The Board apparently said you didn’t file a question about her 

death to remove the person from the list in time? 

Ms. FRIEND. Right. 

Mr. OBERSTAR. Has that happened before? 

Ms. FRIEND. Not to my knowledge with a deceased employee, but 

the Board does have a rule that except in what they call extraordinary circumstances, within the last seven days of the closing of 

12 

the count date, they won’t take anyone off the list who is identified 

as being perhaps not properly on it. 

In this situation, it was actually the management of Delta that 

identified within that last seven-day period that, in fact, there was 

a flight attendant on the eligibility list who is deceased. 

The Board ruled, and they said that they would not remove the 

deceased flight attendant because it didn’t qualify in their opinion 

as an extraordinary circumstance. So that individual was counted 

in the total eligible and counted against the measurement of reaching the 50 percent plus 1 arbitrary threshold. 

Mr. OBERSTAR. That one probably didn’t make a difference. 

Ms. FRIEND. In this instance, no, it didn’t. It did not make a difference. It is merely an example of, I think, arbitrary nature of decisions that are made, that are not made in favor of assisting the 

workers to form a union but rather are made in favor of preventing 

them from reaching the arbitrary 50 percent plus 1 threshold. 

Mr. OBERSTAR. Thank you. I will have other questions later. 

Mr. KUHL. I will yield to Mr. Coble. 

Mr. COBLE. Thank you, Mr. Chairman. Thank you for calling the 

hearing. 

Good to have you all with us. 

Chairman Van de Water, let me put this question to you. I think 

you responded to Chairman Oberstar’s question. The NMB’s election rules were not developed by the current Board members, is 

that correct? 

Ms. VAN DE WATER. No, sir. I am not quite as old as Mr. Oberstar. 

Mr. COBLE. I forgot I implied that. 

Have the same rules been applied without controversy in prior 

mergers where the work groups have been represented by different 

unions prior to the merger, A, and is there any reason that the 

rules should be applied differently where one group has been represented by a union and another group, non-union? 

Ms. VAN DE WATER. No. What we have done in mergers in the 

past when employees have been represented on both sides of the 

carrier, is that the first part of your question? It depends on the 

size of the employee class. 

If one group of employees on one carrier is quite a bit larger than 

the other and the smaller group can’t come up with a showing of 

interest, which would be 35 percent, then we would generally extend the certification to the entire craft or class. 

If one set of employees is represented and the other set of employees is not represented, then it would depend on the sizes of the 

class. If the represented employees are smaller than the unrepresented employees, we would not extend the certification to cover 

the entire craft or class. 

If they came up with a showing of interest, we would certainly 

call an election. They would need a 35 percent showing of interest 

if the employees were not represented by the same union on each 

side. 

But, for example, in the U.S. Airways and America West merger 

where ALPA was the union on both sides, if another union had 

come in to challenge them, they would have needed a showing of 

interest of 50 percent plus 1 to call an election. 

13 

So it just depends on the circumstances of the employee groups 

and whether they are represented by the same union on each side 

or different unions. 

Mr. COBLE. Well, let me put a more narrowly defined question 

to you, Madam Chairman. Since the Northwest unions represent 

approximately 35 percent of the employees in the merger, is there 

any precedent to support the Northwest unions extending their certification to the Delta employees without an election? 

Ms. VAN DE WATER. No, sir, none whatsoever. 

If they came up with enough of a showing of interest, we could 

call an election, and then they would have that opportunity to try 

to extend the certification if they had the support from the majority 

of the employees of the new combined craft or class. 

Mr. COBLE. I thank you. 

Thank you all for being with us. 

I yield back, Mr. Chairman. 

Mr. OBERSTAR. Thank you, Mr. Coble. 

Mr. Nadler. 

Mr. NADLER. Thank you, Chairman. 

Madam Chairman, you said the policy of requiring a majority of 

everyone to certify a union was longstanding. Do you think it 

works out fairly? 

Can you think of any other election where that is the case? 

Ms. VAN DE WATER. I think it does work out fairly if you look 

at the numbers of represented employees. Again, employees that 

are represented under the National Labor Relations Act are represented at about 8 percent nationwide. Employees, airline employees under the RLA are represented at 60 percent. 

Mr. NADLER. But what do you say about an election in which 98 

percent of those who vote, vote one way, and the election is called 

the other way? That is not what we normally would think of as a 

fair count. 

Ms. VAN DE WATER. Well, that may be the case when fewer than 

half of the employees vote. 

Mr. NADLER. Well, which is the case in most of our congressional 

elections and most elections in this Country with the exception of 

the presidency. 

Ms. VAN DE WATER. We also have ways that we count votes that 

actually substantially aid the unions, sir. For example, if we have 

an election with two unions on the ballot and one union gets 25 

percent of the votes and one union gets 20 percent of the votes, we 

still certify the 25 percent union because we count for all votes for 

representation as a vote for the winner. That is also different than 

most elections. 

Mr. NADLER. That may be, but I still see as fundamentally unfair 

that one side gets the burden of everybody who didn’t vote because 

you never get 100 percent turnout. If you mandated 100 percent 

turnout and marched people to the polls with a fine or something 

else, then it would say 50 percent or more, but otherwise I can’t 

think of any democratic theory that would justify that kind of system. 

Ms. VAN DE WATER. That may be, but it does work under our 

system. Generally, that is not a problem. For instance, the U.S. 

Airways pilots, they had 95 participation. 

14 

Mr. NADLER. Ms. Friend, do you think it is a problem? 

Ms. FRIEND. I do think it is a problem. 

In the instance that, with all due respect to the Chair, the instance that she is talking about, there are two unions on the ballot. 

So you have two organizations that are trying to generate votes, 

and you don’t have a management that is campaigning and that is 

running a voter suppression campaign, saying, don’t vote, since 

they know that we have this threshold to meet. 

I think the fact that we have a higher percentage in the airline 

industry of unionization than exists in the private sector under the 

NLRA has nothing to do with the election process under the RLA. 

I think it has to do with tradition, quite frankly. 

Mr. NADLER. Let me ask the Chairman again. Aside from hoary, 

antiquity and tradition, can you think of any reason to justify this 

rather unusual, as far as I know, unique system? 

Ms. VAN DE WATER. Yes, sir. We are dealing with essential 

transportation systems that are treated uniquely under the RLA. 

One of the purposes of the RLA is to prevent disruptions of interstate commerce, and where a union does not represent, truly represent a majority of support that is difficult to do. 

Mr. NADLER. But you would normally measure a majority as the 

majority of those who show up to vote. I have never heard of an 

election system like this. 

So my question is can you think of any reason why you think 

this is a superior way to measure a majority as opposed to every 

other election in the world except in the Soviet Union? 

Ms. VAN DE WATER. It seems to work well for representation 

under the RLA, sir. We are so highly represented. 

Mr. NADLER. Excuse me. That is a judgment call. I am asking 

you as a matter of democratic theory. 

Whether it works well or not is a complete judgment call. You 

say yes, she says no, and there is no basis to decide between that. 

Why would it be disadvantageous to go to a more normal system? 

Ms. VAN DE WATER. Well, we are a little bit different than the 

NLRA in the sense that we have no decertification. 

Mr. NADLER. I am not talking about the NLRA. 

Ms. VAN DE WATER. But that is how the NLRA does it. 

Mr. NADLER. Yes, but it is also how everybody else in the world 

does it. That is why I said why. 

Give me a reason why it is disadvantageous to go to a normal— 

I say normal in the sense of every other election I am aware of— 

system. 

Ms. VAN DE WATER. All I can say to you, sir, is in my almost five 

years at the NMB it has generally worked very well. People who 

have looked at it, including labor and management, have recommended not to change it. 

Mr. NADLER. Mr. Hoglander, could you comment on the same 

question? 

Mr. HOGLANDER. Well, not being a professorial student of the 

RLA, but it seemed to me that when this Act was first passed the 

prime focus of the individuals, both the union and management, 

who were the authors of it was preventing the disruption of an essential piece of industry in this Country. That was in 1926 where 

there was certainly a whole different aspect of what constituted the 

15 

transportation system, and particularly the airlines weren’t included for another 8 years anyway. 

It is also my observation that for many, many decades the organization process was one that was left to the unions, and indeed 

where it says that they shall not interfere, referring to the management, they didn’t interfere. It seemed to me from what I have read 

until at least in the forties or early fifties, that was the case where 

a union was an organization which was run that way and management or the carrier in that case didn’t interfere to a great deal. 

There were several cases that I think brought about by First 

Amendment rights, that management and the carriers then 

interceded in their obvious thoughts on whether their employees 

should be organized or not. 

Having said all of that, I think that things might have changed 

since then. 

We had a hearing in 1985 on a petition from the Brotherhood of 

Teamsters to address this yes/no vote, it is called colloquially, to 

address that sort of situation. The Board then in 1987, I think it 

was, rendered a decision that they weren’t going to change that. 

My own view is that an examination of this probably. Since both 

the airline industry and the rail industry have changed dramatically since that time, my feeling might be that we should at least 

consider, upon petition, a public hearing on such a matter to make 

a judgment in the future. 

Mr. NADLER. Thank you. I have only one more question of the 

Chair. 

You say in your testimony that under longstanding Board policy, 

the Board will extend an organization’s certification to cover unrepresented employees in the merged craft or class only when the 

numbers of represented and unrepresented are not comparable. 

Last month, the Board issued a proposal to extend the union’s 

certification only where the union’s membership is ‘‘more than a 

substantial majority’’ of the merged group. 

What was the rationale for this change in policy and what is the 

significant of it and under the proposed policy how would you define a substantial majority? 

Ms. VAN DE WATER. Well, it is no longer a proposed policy, sir. 

We did withdraw it. We thought it was clearer to say substantial 

majority than not comparable, but clearly no one agreed with us. 

So, since our proposals engendered more confusion than clarity, we 

did withdraw them. 

Mr. NADLER. Okay. Thank you. I yield back. 

Mr. OBERSTAR. I thank the gentleman. 

Mr. Platts. 

Mr. PLATTS. Mr. Chairman, no questions. 

Mr. OBERSTAR. Mr. Kuhl. 

Mr. KUHL. Chairman Van de Water, my colleague has raised a 

couple of issues, and maybe it is only in New York we are not accustomed to these types of elections, but I would like to follow up 

just a little bit. 

You said this has basically, if I heard you correctly, been a standard policy of requiring all eligible people to be notified of a vote and 

in fact requiring 50 percent plus 1 to have a successful vote for organization. Is that correct? 

16 

Ms. VAN DE WATER. That is correct. 

Mr. KUHL. Also, I think I heard you talking about reviewing contact between employers and employees and what was allowable 

and what wasn’t as far as content. Is there any requirement as to 

how many or limit as to how many times an employer can contact 

an employee relative to an upcoming election? 

Ms. VAN DE WATER. I think it is not a quantity issue as much 

as it is a quality issue. We would look at the content of the communications. Were they one-on-one, closed door meetings that could be 

used to influence or intimidate somebody or were they standard 

employer communications like a newsletter that goes out once a 

month, for example? 

We don’t have a hard set of facts that say, you have to do A, B, 

C and D and you can’t do this. We have to look at the totality of 

the circumstances and the facts of each case. 

Mr. KUHL. How much advance notice of an election are the ballots sent out? 

Ms. VAN DE WATER. We generally send them out 21 days before 

a tally. For a larger group or class or extraordinary circumstances, 

we might do a little bit longer voting period. 

Mr. KUHL. What would be a normally acceptable contact number 

between employer and employee? Once? Twice? Ten times? 

Ms. VAN DE WATER. I can’t give you a number, sir, because it depends on what would the normal course of business would have 

been there. Employers have contact with their employees depending on their industry, on and off, I would suppose, all the time. It 

would depend on what kind of contacts or how unusual were they 

or how coercive were they. 

Mr. KUHL. Now is a part of this contact process, upcoming elections, are there lists provided of the employee, of the eligible employees to the union? 

Ms. VAN DE WATER. We have a list, a list of voters. We get a list 

from the carrier of the employees that they have in the proper craft 

or class, for example, the pilots or the mechanics or the flight attendants or whatever the craft and class would be. 

Then the union takes a look at that. The carrier and the union 

exchange what we call challenges and objections. 

One person might say, hey, this is really a management person. 

They shouldn’t be allowed to vote. I want to strike that person. 

Or, this person has moved on to another carrier. They are not 

here anymore. 

Or, this person might have started off as a mechanic but now 

works in a different craft or class. So they shouldn’t be allowed to 

vote in that election. 

So our in-house investigators will rule on eligibility determinations. 

Mr. KUHL. Okay. Now do both sides have the list? 

Ms. VAN DE WATER. Oh, yes, sir. 

Mr. KUHL. With addresses so that they can communicate, the 

union can communicate with workers who are not members of the 

union like in this particular merger where you had a union and a 

non-union shop? 

Ms. VAN DE WATER. We do not give address lists. We just give 

lists of voters. 

17 

Mr. KUHL. You give lists with names. You give them virtually no 

contact availability then. So if a union wanted to say, these are the 

benefits of the merger that would be provided to you, should you 

vote for an organization, they could not ever get that information 

to the individuals. 

Ms. VAN DE WATER. We don’t provide home addresses to them. 

They have other ways of contacting the employees and seem to 

have a pretty good on the ground system of contacting the employees. 

Mr. KUHL. What might they be? I am not familiar with those. I 

am just curious as to what they might be. 

Ms. VAN DE WATER. Email; personal communications; I, myself, 

look at some of the blogs that get put up online during an election 

and see what people are saying about it. 

Mr. KUHL. Okay. Well, in my district, not everybody has a computer. So I don’t know how effective a blog would be. Maybe that 

is just New York. I am sure in Mr. Nadler’s district, they all have 

computers, but mine is a little different. 

[Laughter.] 

Mr. KUHL. I am just trying to understand the fairness and the 

equality issues of people who might want to join and getting the 

information that they would otherwise not be provided, and I am 

just curious as to why isn’t that information given out. 

I mean I understand enough about, I think, employer-employee 

relationships that an employer who is opposing unionization or organization is not going to allow union members to go about their 

employees at work and conduct sessions individually with them as 

to what the benefits would be of voting yes. 

Ms. VAN DE WATER. Actually, I think in employee lounges, particularly for airlines, there is quite a bit of that kind of communication. I know in some of the recent cases the unions have set up tables with information. They can wear usually your union pin if 

they want to and can discuss it freely with other flight attendants 

or pilots or whatever the group might be. 

Mr. KUHL. But that is the only access that you are aware of that 

they have? 

Ms. VAN DE WATER. I don’t know what other access they have. 

Mr. KUHL. Okay. Also, relative to the actual election process 

itself, I still don’t think I have heard the answer. Why was it 50 

percent of eligible voters plus one? Why was that determination? 

Ms. VAN DE WATER. The Act calls for a majority of the craft or 

class voting in favor of the union or supporting the union, and a 

majority, of course, is 50 percent plus 1. 

Mr. KUHL. So that is what it says. I am, again, from New York. 

I am not aware of any other election that is held that way. 

Do you think that is fair? 

Ms. VAN DE WATER. I think it has resulted in an extremely high 

level of unionization among the railroad and airline industries, significantly higher than the rest of the private sector. 

Mr. KUHL. I appreciate your observation. The question is whether you think it is fair. 

Ms. VAN DE WATER. I think it has worked very well. 

Mr. KUHL. In other words, you are not going to answer that 

question. 

18 

Ms. VAN DE WATER. I think it is fair. 

Mr. KUHL. Ms. Friend, let me ask you the question. Do you think 

it is fair? 

I will start there and work back. 

Ms. FRIEND. Well, no, of course I don’t think it is fair. 

On the question of addresses, we refer to it—another one of those 

terms of art—as an excelsior list. 

Up until 1977, the union did get an address list. Then there was 

a dispute on American Airlines, as I understand it, and American 

persuaded the Board at that time to change the policy. And so, 

since 1977, we do not get the address lists, but we used to. 

Mr. KUHL. I assume that you would prefer to get the lists? 

Ms. FRIEND. Absolutely. I mean it is a painstaking, very, very inexact effort to collect mailing addresses to attempt to communicate. 

It is even more difficult, of course, since the tragic events of 2001. 

I always tell people if you want to organize flight attendants, 

first you have to find them, and they are behind security. If you 

don’t have access behind security and even our flight attendant organizers who can get behind security can’t get into the actual crew 

lounges. 

Our experience in Atlanta, attempting to stand in the concourse, 

uniformed other airline flight attendants to talk to the Delta flight 

attendants, Delta management called the airport police to have 

them removed. So it really is a battle. 

Meantime, Delta management mails to every flight attendant’s 

home a DVD with the CEO explaining to them how if they vote for 

the union it is going to destroy years and years of this family culture that has been developed at Delta, and they will no longer have 

an open door policy with their supervisor, and the world as they 

know it will come to an end. 

That gets mailed to every flight attendant, every Delta flight attendant. We don’t have the same access. 

Mr. KUHL. So you feel disadvantaged from that standpoint. 

Ms. FRIEND. Extremely disadvantaged. 

Mr. KUHL. I understand in today’s world there certainly is a feeling of confidentiality, and some people obviously wouldn’t want 

their home addresses. I assume that you wouldn’t have any problem if a list were run by the employees and it said, if you don’t 

want to be contacted by a union, check here, and then being excluded from that list. 

Ms. FRIEND. Exactly right. I mean there are any number of ways. 

We protect our list as well. If there is an organization that we 

believe has valuable information for some of our members, then we 

have them send that information to our mail house, and our mail 

house does the mailing for them. They can do that. 

Every airline that I am aware of, what we refer to as the crew 

room or the report to work area has a company-provided mail file 

for company mail. We would be happy to have access to that for 

union literature. 

Within AFA, we don’t do house calls. We don’t go knocking on 

people’s doors because the second problem with finding flight attendants to organize is they don’t live where they work. They commute from all over the world, literally. 

19 

We are not looking for their home addresses so that we can go 

and bang on their front door. We just want to be able to communicate with them. 

Mr. KUHL. Thank you. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. We will have another round of questions, but I 

appreciate the gentleman’s line of questioning. It is logical to continue. 

Mr. Bishop. 

Mr. BISHOP. Thank you, Mr. Chairman. I thank you for holding 

this hearing, and I thank the witnesses for their testimony. 

I want to stay on this issue of the ability of organizers to communicate with the workforce that they hope to organize. 

My understanding is that in industries covered by the NLRA, 

that this so-called excelsior list is routinely provided to union organizers. Is that your understanding as well, Madam Chair? 

Ms. VAN DE WATER. I am not that familiar with the NLRA, sir. 

Mr. BISHOP. It is the case that in the NLRA those industries routinely provide home address of all employees. 

My question is this: Since the threshold that the NMB has for 

organization is so high, 50 percent plus 1 of all those eligible to 

vote as opposed to those actually voting, which is the NLRA 

threshold, wouldn’t it be just a gesture of fairness to help the organizers have at least some means of communicating with the potential workforce by giving them the home addresses? 

Anyone, please. 

Ms. DOUGHERTY. As Ms. Friend noted, we did used to give the 

list of addresses to the labor organizations, and there was a case 

in 1977 where the labor organization involved sold the list to another labor organization. After that time period, the Board determined that the privacy interests of the employees involved weighed 

in favor of not providing the address list to the labor organizations. 

There have been cases where labor organizations have requested 

address lists because of extraordinary circumstances making it 

very difficult to communicate with the flight attendants, for example, very, very large groups on furlough. And, in those cases, where 

it is warranted the Board has provided address lists, and that is 

certainly still an available avenue for a labor organization to pursue, to request an address list in a case where there are excessive 

communications challenges. 

But barring those, the Board has for over 30 years determined 

that the privacy rights of the employees weigh in favor of not providing the address lists. 

Mr. BISHOP. I understand that decision. It just seems to me that 

there is a concerted effort, and I understand what you are going 

to say, Madam Chair, which is that the high proportion of the industry is organized. But there appears to be a concerted effort here 

to thwart efforts to organize. 

The 50 percent plus 1 just strikes me as impossible to justify. I 

mean if we conducted elections in this Congress that way, if we 

conducted elections in this Country that way, there would be outrage across the Country. 

20 

We are now compounding it by saying to management, of course, 

you have the names and address of those who work for you and oh, 

by the way, communicate with them. 

But we say to the potential organizers, sorry, we can’t provide 

you equal footing in terms of reaching your workforce. 

It seems to me in this industry where the workforce is very 

spread out all over the Country and, in some cases, all over the 

world at least for part of the time. I mean they are not reporting 

to a central plant every morning where the union could set up a 

table and get information to workers. 

It just seems to me to be just so profoundly unfair. I understand 

that you had a circumstance in which a union abused a right that 

they were given, but that is forming policy by exception as opposed 

to policy by the rule. 

This just strikes me, as I say, as so profoundly unfair, and I 

would welcome your comment. 

Ms. VAN DE WATER. But the majority of elections, sir, do result 

in certification, and I could get you a chart. We do have one, and 

we could submit it for the record if you like, that shows every year 

the number of elections we had and the percentages that result in 

certification. It is generally a majority every year. 

Ms. DOUGHERTY. And I would just like to add, if I could, an observation about the requirement that a majority of eligible voters 

vote. 

That may be an unusual voting process, but the Railway Labor 

Act is an unusual statute. If you will just bear with me, there are 

a couple things that I would like to point out about the Railway 

Labor Act, one of which has been already noted. 

The primary, the first listed purpose of the Railway Labor Act 

is to avoid any interruption to commerce or to the operation of any 

carrier engaged therein. 

The Board has for over 70 years determined, and it stated specifically in 1950 and then again in 1987, that that duty is better 

carried out by having this method of election. There are a couple 

of reasons for that. 

One is that, as you know, labor organizations, when they negotiate a collective bargaining agreement, are required to take a tentative agreement back to membership to be voted on. 

The Board stated in 1950 and again reiterated in 1987 a labor 

organization that truly enjoys the true majority support of all the 

membership is going to have an easier time having that tentative 

agreement ratified. The consequences of having an agreement fail 

ratification could be more of concern under the Railway Labor Act. 

And, another point that my colleague has raised before also is 

that the Railway Labor Act does not provide for a decertification 

process which is provided under the National Labor Relations Act. 

Mr. BISHOP. Thank you. 

My time has expired, Mr. Chairman. 

Mr. OBERSTAR. I thank the gentleman. 

Ms. Fallin, we have three votes. I think we can get through another 10 minutes of questioning. Ms. Fallin. 

Ms. FALLIN. Thank you, Mr. Chairman. I just have a couple of 

quick questions. 

21 

Were the proposed clarifications to the NMB’s representation 

manual, specifically proposed in the Section 19.701, designed to 

change the NMB’s practices or was it to be consistent with how the 

NMB has historically addressed the representation issues arising 

out of mergers in the airline industry? 

Ms. VAN DE WATER. It was meant to be consistent and further 

clarify our existing policies. It was not meant to change our policies. 

Ms. FALLIN. It wasn’t meant to change your policy, okay. 

So was Section 19.701 preventing a union from representing the 

post-merger work group or does it simply follow the past practices 

and the historical ways that things have been done? 

Ms. VAN DE WATER. It was not intended to prevent representation of employees, and it was intended to reflect our past practice. 

Ms. FALLIN. So would that section be consistent with the Railway 

Labor Act requirement that a majority of the employees in a craft 

or class have the right to determine if they want to be represented? 

Ms. VAN DE WATER. That is my interpretation, yes, ma’am. 

Ms. FALLIN. Okay. Were the NMB’s election rules developed by 

the current Board members recently or have you had them for a 

long time and you have been just been following historical practices? 

Ms. VAN DE WATER. We have had merger guidelines for over 30 

years, and we put out clarifications to our representation manual 

periodically. We put out a clarification in 2007 about internet voting. We put out some merger clarifications in 2005, and there have 

been other cases in the past 30 years where we have had clarifications. 

Ms. FALLIN. Do you believe the rules are clear? 

Ms. VAN DE WATER. I thought they were. 

Ms. FALLIN. All right. So is it clear then, do you believe it is clear 

to the attendants that in voting a non-vote is a no vote? 

Ms. VAN DE WATER. Oh, I think that is very clear. 

Ms. FALLIN. Okay. 

Ms. VAN DE WATER. And we spell it out in the voting instructions 

that are sent. 

Ms. FALLIN. Okay. Is it clear that the RLA says that a majority 

must want representation to be represented? 

Ms. VAN DE WATER. Yes, ma’am. 

Ms. FALLIN. And that majority would be 50 plus 1? 

Ms. VAN DE WATER. Yes, ma’am. 

Ms. FALLIN. You had, how much was the percentage? 

Ms. VAN DE WATER. For which election? 

Ms. FALLIN. For the one that we are talking about right now, it 

was 39 percent? 

Ms. VAN DE WATER. Yes, ma’am, for the Delta AFA election. 

Ms. FALLIN. So not 50.1? 

Ms. VAN DE WATER. No, it was not 50.1 

Ms. FALLIN. Okay. All right. Thank you, Mr. Chairman. 

Mr. OBERSTAR. We will take one more Member, and that will be 

Mrs. Napolitano. Then we will recess for the series of three votes 

and resume within ten minutes after the last vote. 

Mrs. NAPOLITANO. Thank you, Mr. Chair. I will try to be very 

brief. 

22 

Mr. OBERSTAR. I am sorry, Mrs. Napolitano. I misspoke. Mr. 

Michaud is next in line. 

Mr. MICHAUD. Thank you, Mr. Chairman. 

A quick question for Madam Chairman. AFA had requested that 

you remove someone who had passed away from the list, and NMB 

said no because it did not come within the seven days prior to the 

election, because it wasn’t an extraordinary circumstance. 

If that is not an extraordinary circumstance, what do you consider is an extraordinary circumstance? 

Ms. VAN DE WATER. Actually, sir, Delta asked to have the flight 

attendant removed, but they did not provide us with any documentation that the person had actually died. Generally, the unions 

don’t want us to accept carrier last minute changes to the voting 

list without some kind of substantive evidence to back it up. 

That vote was not determinative. If it had been, we would have 

treated it differently. If we had not counted that vote, they would 

have only been short 1,384 votes, not 1,385. 

Mr. MICHAUD. So what is an extraordinary circumstance, though, 

in your opinion? 

Ms. VAN DE WATER. Well, we might get last minute additions or 

subtractions from a list that were not anticipated by anybody and 

to keep those people from voting would be unfair. So that might be 

considered an extraordinarily circumstance. 

Generally, our rulings are designed to help employee choice as 

much as possible. 

Mr. MICHAUD. Speaking about fairness, we heard a lot about the 

unions not being able to get the addresses, names and addresses. 

However, the employers can mail to the employees with whatever 

propaganda they want to mail. Don’t you think it would be fair? 

Could you restrict the employers from mailing as well? 

Ms. VAN DE WATER. I don’t think we have the ability to restrict 

employers from communicating with their employees. But the 

unions do have the names, sir, just not the home addresses. 

Mr. MICHAUD. If you did have the ability, as it relates to unionizing, to restrict employers from mailing propaganda as it relates 

to whether they form a union or not, would you support that? 

Ms. VAN DE WATER. I would have to consider it with the Board. 

We would take it under advisement and ask for public comment on 

it like we do with any changes. 

Mr. MICHAUD. Okay. Why did you keep changing the date when 

you look at, actually, the Delta voting? It is my understanding that 

you set a date, and then after AFA had sent out the notification 

you changed the date. 

Ms. VAN DE WATER. We shortened the date by one week. So it 

was still five weeks. That is two weeks longer than our usual 

three-week voting period. We thought that was all the time we 

needed to address the challenges and objections which is generally 

why we have a long voting period, because we get so many challenges and objections. 

Mr. MICHAUD. Why did you send that out after AFA sent a notification of what the dates were? If that is not interference, I don’t 

know what is. So why was it after they sent out the notification? 

Ms. VAN DE WATER. It wasn’t intended to be after. I don’t believe 

I even knew they had sent anything out. 

23 

We sent something around to be posted, and our voting instructions had not gone out. The voting instructions clearly articulated 

the date to all the employees getting them. 

Mr. MICHAUD. We heard earlier about the situation dealing with 

yourself, where you did not recuse yourself from decision-making. 

Do you feel that you should recuse yourself from any decisions involving Delta, Northwest or Compass because of your relationship? 

Ms. VAN DE WATER. Absolutely not. I was hired by Northwest 

Airlines 17 years ago. It has been a while. I was not an officer. I 

was not a senior level employee. 

I have since then had a long career in aviation including a term 

under Secretary Mineta, whom I consider to be an outstanding Secretary, and I notice his picture is right behind me there. 

I have had a long career in aviation. I have never been accused 

of having any conflict of interest. I might note for the record that 

my colleagues also have some extensive experience in the aviation 

industry, and they have never been asked to recuse themselves on 

any issue involving their past employers. 

Mr. MICHAUD. Is your job full-time? 

Ms. VAN DE WATER. Yes, sir. All the Board serves full-time. 

Mr. MICHAUD. Okay. And your office is in D.C.? 

Ms. VAN DE WATER. It is on K Street, 1301 K Street. 

Mr. MICHAUD. K Street. 

Ms. VAN DE WATER. Yes. 

Mr. MICHAUD. How many days last year have you actually 

worked out of your office? 

Ms. VAN DE WATER. I work out of my office some days. I telecommute some days. I consider that I work five days a week. 

Mr. MICHAUD. I would be interested in how many days you physically worked out of your office, if you can provide that to the Committee as well. 

Ms. VAN DE WATER. I really don’t have a count, sir. I come in 

and go and work some at a home office as well, something that is 

very supported by OPM, telecommuting for Federal employees, and 

we have a telecommuting policy for our entire Agency. 

Mr. MICHAUD. Getting back to my previous questions about the 

change in the date, which I feel probably was changed to interfere, 

how do you find interference? What is your definition of interference? 

Ms. VAN DE WATER. Are you talking about carrier interference, 

sir? 

Mr. MICHAUD. Any type of interference. 

Ms. VAN DE WATER. Carrier interference is determined by the totality of the circumstances. 

Mr. MICHAUD. When you look at the interference of an election, 

what would you consider interference of an election? Do you think 

the Board changing the date would be interference? 

What is your overall definition of interference? What would be 

considered interference? 

Ms. VAN DE WATER. It would be considered interference if perhaps the Board had not mailed out ballot instructions in a timely 

manner and a large percentage of people didn’t get their ballots 

perhaps or that there was a problem with the U.S. Mail, anything 

that impinged on employee free choice. 

24 

Five weeks voting period generally does not impinge on employee 

free choice. That is a pretty long voting period, but it was a large 

group as well. 

Mr. MICHAUD. Okay. Once again, Mr. Chairman, I want to thank 

you. I know my time is running out. I want to thank you very 

much for having this hearing, and I look forward to working with 

this because I think it is definitely something we have to deal with 

because I think there is a lot of interference. 

I am concerned about the way the Board has been operating and 

would like to get into further details on the Board operation overall 

and also individually, particularly when you look at what is happening this week in Wall Street and what appears to have been 

greed that has caused a lot of the concerns today on Wall Street. 

I appreciate this very much, and I look forward to working with 

you, Mr. Chairman, as we move forward in this whole issue of 

unionization as it relates to the airline industry. 

Mr. OBERSTAR. I thank the gentleman. 

There are other Members who have questions. We will recess for 

the three votes and reconvene within ten minutes after the last 

vote. 

The Committee stands in recess. 

[Recess.] 

Mr. OBERSTAR. The Committee will resume its sitting following 

the series of votes. 

We have a number of Members yet who wish to pose questions, 

and we will continue with Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. I appreciate this 

hearing in regard to this particular issue. 

I do have a couple of questions to the Chairwoman. 

I am not sure who mentioned it. In 1977, the list was provided 

up to that time, and then apparently there was some sale of that 

from one union to another. And so, AA requested—American Airlines I am assuming—that you no longer mail the list. Now this is 

an airline asking. 

If labor asked you to be able to put it back into use, would you 

do it just the way you did comply with AA’s request, providing 

there were several provisos and understand that now things have 

changed? 

Seventy-seven, that is, what, thirty-one years ago. Things have 

changed. Now there is a privacy issue, that you would be able to 

have them sign that you would not sell not, the way it is right now 

with the banks. Would that be feasible? 

Ms. VAN DE WATER. I think it is certainly feasible. What we 

would probably do if the Union asked us to change our interpretation of the rules is to do what we did when we put out the representation manual proposals, to try to get input from all the participants who come before our Agency and put something out for 

public comment, possibly have a hearing. 

I don’t know. I mean we wouldn’t just announce one day, this is 

what we are going to do. If we are going to change our policies, we 

would certainly give people a chance to comment on it and give us 

the value of their input. 

Mrs. NAPOLITANO. Did you use those same steps with the AA request? 

25 

Ms. VAN DE WATER. I wasn’t on the Board then. I can ask our 

general counsel. 

She wasn’t on the Board then either. I really don’t know what 

happened in that case. 

Mrs. NAPOLITANO. I would like that in writing, please, a reply. 

Ms. VAN DE WATER. We would be happy to do that for the record. 

Mrs. NAPOLITANO. Then I would ask labor if they would go ahead 

and provide that request from you with a copy to this Committee 

and then what the results would be. 

Ms. VAN DE WATER. We would be happy to provide that. 

Mrs. NAPOLITANO. If you do one, you should be able to do the 

other. That is my analogy. 

There is a question in my mind on the definition of furlough. 

What does it mean, first of all? 

What is the definition you use for furlough to say, okay, this person should remain on the list, this person should not? 

Ms. VAN DE WATER. May Ms. Dougherty answer that question 

for you? 

Mrs. NAPOLITANO. Sure, anyone. 

Ms. DOUGHERTY. We generally look to what the policy agreed 

upon between the airline and the union as to the rights of recall 

are in determining what the length of furlough is or whether or not 

a furloughee would be eligible to vote because they have to have 

a valid right of recall and a reasonable expectation of returning to 

employment in order to be eligible to vote. 

Mrs. NAPOLITANO. That is determined by what, in writing, by 

each airline, by the Board? 

Ms. DOUGHERTY. Each airline has a different policy on what the 

recall rights are, and that policy would determine whether the employees had a right to return to work. 

Mrs. NAPOLITANO. Okay. How often do you clean your list? 

Ms. DOUGHERTY. Pardon me? 

Mrs. NAPOLITANO. Scrubbing the list, cleaning it out for people 

who are dead or no longer employed? 

Ms. DOUGHERTY. The eligibility list? There is an opportunity 

when the list is first provided for challenges and objections to the 

list, for both sides to challenge or object to the eligibility of people 

on the list. 

Then there is also what is called an opportunity for status 

changes near the end of the voting period. So, for example, if someone was employed at a carrier on the cutoff date but had left the 

employ of the carrier by the end of the voting period, that would 

be a status change. We would be notified of that, and we would 

take the person off the list. 

Mrs. NAPOLITANO. And you are notified by the airline? 

Ms. DOUGHERTY. Or the union. 

Mrs. NAPOLITANO. I am wondering if the list is updated before 

or after you have elections. 

Ms. DOUGHERTY. It is updated both before and during. We listen 

to both sides for challenges and objections and then status changes. 

So we look at it twice. 

Ms. VAN DE WATER. But we try to have the list finalized before 

the tally, if that is what you are asking. 

26 

Mrs. NAPOLITANO. Yes, because then if you are sending to an address no longer valid, then you know you are not going to get somebody sending in a vote. So that is an automatic no vote because 

they are not participating. 

Ms. VAN DE WATER. If somebody, for instance, leaves the employment of the carrier during the term. They were on the cutoff list 

when we got the cutoff list and then they left the employ of the carrier, for example, that person would no longer be on the list. 

But we at the NMB wouldn’t know that. We would have to be 

notified of that either by the carrier or by the union. 

Ms. DOUGHERTY. My colleague may have just said this, but if a 

ballot was returned to us with an incorrect address, we would take 

that person off the eligibility list. 

Mrs. NAPOLITANO. Given now that we have the internet and all 

the wonderful new technology, how hard would it be to be able to 

clean and scrub those files and be able to share that information 

with labor to ensure that those are valid? You say that you do that 

already? 

Ms. VAN DE WATER. Are you talking about the furlough list or 

the list of eligible voters? 

Mrs. NAPOLITANO. Eligible voters. 

Ms. VAN DE WATER. We actually rely on the carrier and the 

union to challenge the eligibility list, and that is a process that 

generally does take place in every election. 

Mrs. NAPOLITANO. And you do that prior to the election and during the election? 

Ms. VAN DE WATER. We do it, yes. We try to have all that done 

before the tally, but we do do some of it while the votes are out 

because it is usually a three weeks or so voting period. So, during 

that three-week period, we might still be working on the list, and 

that is done just to make the process move as smoothly as possible. 

Mrs. NAPOLITANO. Ms. Friend, would there be any ability for you 

to be able to know their list, from looking at their list, whether or 

not that is a valid employee or not? 

Ms. FRIEND. We will just use Delta, for example. When we get 

the list that the company provides to the NMB as a list of eligible 

voters, we give that. 

We share that list with our Delta flight attendant activists, the 

ones that are working to form a union. They have to rely on word 

of mouth, what they know about. 

For example, we would give it to an activist from Salt Lake City 

and say, do you recognize anybody on this list that you know of 

that has retired or has quit? That is the very unscientific way that 

we have to try to make sure that everybody is eligible. 

On the question of furlough, the reason that we believe that the 

furloughed Delta flight attendants should not have remained on 

the list is because, while the company claimed that they were furloughed and they had some sort of indeterminate right to return 

to work, they were hiring hundreds, over a thousand, new hires. 

Nowhere in the industry is an airline allowed to hire new employees while they have workers that have been furloughed as a result of a reduction in force and not been offered their job back. 

Mrs. NAPOLITANO. Aren’t those called scabs? 

Ms. FRIEND. No. There is no strike. 

27 

It is just that they furloughed these people. These are people 

that were furloughed in the wake of the events of 2001, where we 

had furloughs all across, all across the industry, and right of recall 

varying number of years. 

Five years is about average. These flight attendants had been 

furloughed way beyond, and the company was hiring new people to 

fill their staffing needs. Yet, these people were allegedly on a recall 

list of some sort. 

Mrs. NAPOLITANO. Okay. 

Mr. HOGLANDER. If I might, just to add there for a point of clarification, many of the furlough lists, at least in organized companies, it is determined by the collective bargaining agreement of who 

is eligible and who isn’t and how they are eligible and in what 

order they are recalled. 

In this particular instance, I think we are talking about the 

NMB will recognize either the collective bargaining agreement or 

the company’s policies. So that is just in order to keep that. 

Some other minor sophistications of what happens when you are 

on furlough: If you are a pilot or flight attendant that goes to work 

in the same class or craft for another airline, you automatically 

come off that list, additionally. 

Mrs. NAPOLITANO. I am sorry. Thanks for the indulgence, Mr. 

Chair. 

Ms. Van de Water, isn’t this kind of inhibiting the association of 

the employees to be able to talk to each other? 

Ms. VAN DE WATER. I am not sure I understand that question, 

ma’am. 

Mrs. NAPOLITANO. The purpose of the RLA is to avoid interruption of commerce or operations, et cetera. Freedom of association by 

employees or any denial as a condition of employment or otherwise, 

that is kind of a nebulous way of putting it. 

But this to me sounds like they are struggling to try to get their 

employees to try to participate, and you are saying, no, you can’t 

have that list because back 30-some odd years ago something happened, without the opportunity for them to come back and say, 

okay, we will abide by rules set by you, so this does not happen 

again. 

Ms. VAN DE WATER. Well, they do get the list of names. 

Mrs. NAPOLITANO. But not addresses. 

Ms. VAN DE WATER. Not addresses, that is correct. 

Mrs. NAPOLITANO. Well, that is what I am referring to. How are 

they going to communicate with these individuals? 

Ms. VAN DE WATER. They seem to do a pretty good job of it. 

Mrs. NAPOLITANO. Now that is sidestepping it a little bit, I think, 

and I think you are hearing that they are. 

Thank you for the indulgence, Mr. Chair. 

Mr. OBERSTAR. Mr. Westmoreland. 

Mr. WESTMORELAND. Thank you, Mr. Chairman. 

Could I ask the Board to give your professional backgrounds before becoming on the Board right now? 

Ms. VAN DE WATER. Of course, yes, sir. I graduated from law 

school from Georgetown Law School. I worked on Capitol Hill during the time I was at law school at night. 

28 

I also worked for Northwest Airlines as a Director of Government 

Affairs. After that, I worked for the Business Roundtable for a couple of years, primarily handling trade issues. 

I ran a home-based consulting business for about six months before I was nominated to go to the Department of Transportation. 

I served as Secretary of Aviation and International Affairs from 

2001 to 2003. I left that and six months later was confirmed to the 

Board. 

Mr. WESTMORELAND. Thank you. 

Ms. Dougherty. 

Ms. DOUGHERTY. Thank you. I graduated from undergraduate 

school at Duke University and law school at the University of Virginia. 

I worked in New York City and in Washington, D.C. at law firms 

as a Labor and Employment Attorney, and then I worked for the 

Bush Administration as a Labor and Transportation Policy Advisor, and I have been on the Board for almost two years. 

Mr. WESTMORELAND. Mr. Hoglander. 

Mr. HOGLANDER. I was initially in the Air Force. I started out 

that way, and then I went to Florida State University, graduated 

from that, went back in the Air Force and was in and out of the 

Air Force and the National Guard for a total of about 30 years. 

In the meantime, I joined up with TWA as a pilot, spent 30 years 

with them also, and I was a representative of the TWA pilots, the 

Master Chairman, and also Vice President for the Air Line Pilots 

Association. 

When I left the airline, I worked for Congressman John Tierney 

for seven years and did his labor work, both in the district and 

down here, in the home district—both in the District of Columbia 

and here on the Hill. 

Then I have been on the Board for six years. 

Mr. WESTMORELAND. Thank you. Mr. Chairman, it sounds like 

we have a pretty qualified Board out there. 

Questions to the Board: Have the same election rules that we are 

talking about today been applied without controversy in the past 

for prior mergers or where the work groups have been both represented by different unions or union/non-union? Are these same 

rules applying today that have applied in the past? 

Ms. VAN DE WATER. Yes, sir, they have. 

We have had our merger guidelines. Is that what you are talking 

about? We have had them for about 30 years. They have been subject to some clarification along the way but no substantial changes. 

Mr. WESTMORELAND. Would all of you agree those same rules 

have been applied? 

Mr. HOGLANDER. Overall, they have. There have been a few exceptions along the way where there has been certain egregious conduct by one of the parties, and we have changed that to some degree. We haven’t, but the Board. 

Mr. WESTMORELAND. In talking about rules of conduct, I would 

like to ask Ms. Friend if I could, what was the ruling of the NMB 

issue during the election with regard to the AFA communication to 

the Delta employees? 

Did the NMB rule that AFA had violated its own rules of conduct? Was that a decision that the Board made? 

29 

Ms. FRIEND. That is not my recollection. 

My recollection is that we were asked to remove directions from 

our web site that directed the Delta flight attendants to the polling 

place, and we were asked to remove that from our web site because 

some of the Board members or Delta management—I am not sure 

which—believed that somehow we could get behind our web site 

and learn how many people actually clicked on the link that directed them to the polling place. 

Then we would know how many people had voted, and we would 

know whether or not we had to increase our get out the vote activities. And so, they found that that was an inappropriate direction 

on our web site to the polling and asked us to remove it which we 

did. 

Mr. WESTMORELAND. Ms. Friend, let me clarify this for the 

record. So did the NMB rule that the AFA had violated its rules 

of conduct? 

Ms. FRIEND. No. 

Mr. WESTMORELAND. May I ask the Board members their impression of was there any violations of the rules of conduct by the AFA? 

Ms. VAN DE WATER. Yes, sir, yes. 

The National Mediation Board had put out a notice in February. 

It was prompted by an earlier election in which a union had had 

a hyperlink to our web site. We did feel that a hyperlink had the 

possibility of violating somebody’s confidentiality. We would have 

felt the same way if a carrier had done it. 

No one should know who has voted or how they voted. Since 

under our rules, as we have discussed extensively, a vote means a 

vote yes, we thought that that was a way of tracking votes. 

We asked everyone, carriers and unions, not to hyperlink to our 

web site. AFA did it, nonetheless. We asked them to remove it immediately, and they did. 

Mr. WESTMORELAND. So your answer is yes. 

Ms. VAN DE WATER. Yes. 

Mr. WESTMORELAND. You did issue that the rules of conduct had 

been broken. 

Ms. VAN DE WATER. Yes. We had asked all participants not to 

have hyperlinks. 

Mr. WESTMORELAND. You might want to send them a refresher 

letter. 

Mr. Chairman, with that, I will yield back the balance of my 

time. 

Mr. OBERSTAR. You may have additional time. 

Mr. WESTMORELAND. Oh, okay. Well, thank you very much. 

Mr. OBERSTAR. We have few Members. 

Mr. WESTMORELAND. There is not anybody else to ask questions. 

[Laughter.] 

Mr. OBERSTAR. Well, no. We have two more on our side, but the 

gentleman may have another minute. 

Mr. WESTMORELAND. Well, has the NMB in the past ruled that 

it is permissible to accurately explain how the voting process works 

and to urge employees to support either the company’s or the 

union’s position? 

30 

Ms. VAN DE WATER. The company may have standard communications with its employees, absolutely. They cannot have coercive 

communications with their employees. 

Mr. WESTMORELAND. So this isn’t you all’s first rodeo of doing 

this? 

Ms. VAN DE WATER. Yes, sir, we have had these kinds of allegations, and we have resolved them in different ways many times. 

Mr. WESTMORELAND. How many of these hearings have you ever 

been called to testify at as a result of a merger where there may 

be two different unions or a union and a non-union company? 

Ms. VAN DE WATER. This is the first hearing I have been called 

to in my time at the National Mediation Board. 

Mr. WESTMORELAND. How long has that been? 

Ms. VAN DE WATER. It will be five years in December. 

Mr. WESTMORELAND. Have there been mergers that you are 

aware of that have taken place between union and non-union companies and companies that may have two different unions? 

Ms. VAN DE WATER. Yes, sir. Certainly, the U.S. Airways and 

America West was a very large aviation merger. 

Mr. WESTMORELAND. So this is a little out of normal of what you 

all have typically done in these types of transactions? 

Ms. VAN DE WATER. We are happy to come up whenever we are 

called, sir. 

Mr. WESTMORELAND. I understand. Thank you for your service. 

Ms. VAN DE WATER. Thank you. 

Mr. OBERSTAR. I just want to observe for the gentleman that 

there have been other issues raised in the previous 12 years before 

our majority in Congress, and there were never any hearings permitted. So this will not be the first. This will not be the last, I will 

say. 

Ms. Hirono. 

Ms. HIRONO. Thank you, Mr. Chairman. 

Ms. Friend, in the discussion relating to the rationale regarding 

the majority participation rule, the Madam Chair has mentioned 

several times that under the RLA there is no decertification process, and the implication being that somehow this extraordinary 

participation rule is justified because there is no decertification 

process. 

Isn’t there a process that is akin to decertification because I cannot imagine that once a union is certified that they are certified 

forever and ever? So there must be, I would think, some kind of 

a decertification process, correct? 

Ms. FRIEND. There is. 

Ms. HIRONO. Could you briefly describe that? 

Ms. FRIEND. Correct, there is a process to either replace the 

union or it could get rid of the union. 

In fact, the flight attendants that joined AFA two years ago at 

Northwest Airlines have actually used the process a number of 

times. They were members of the AFA predecessor union up until 

1976 where they triggered an election. Under the RLA, they triggered a dispute and left our union and joined the Teamsters. 

Then about 25 years later, they were dissatisfied with that 

union, and they triggered another representational dispute with 

31 

the National Mediation Board, had an election and joined an independent union. 

And then about three years after that, that didn’t work out. So 

they triggered another election, another representational dispute, 

and joined AFA. 

So it is a process that is available and it is, as the Northwest 

flight attendants have demonstrated, not that difficult to use. It 

simply involves triggering another election which could result in 

them either changing unions or going non-union, not certifying a 

union. 

Ms. HIRONO. Thank you. 

Madam Chair, regarding the majority participation rule, I realize 

that this is a decades long interpretation and years and decades of 

precedence. So is it likely that NMB will change this interpretation 

anytime soon? 

Ms. VAN DE WATER. We would certainly consider it if we were 

asked. I can’t say we would just categorically say, no, we are not 

interested in anyone’s opinion, because we would not. 

Ms. HIRONO. On the other hand, based on listening to your testimony, I draw the conclusion that your belief is that this is a good 

rule, and I get no impression at all that you would be open to 

changing it. But if so, that is great. 

On the other hand, this is a Board interpretation of a statute, 

and it is Congress that drafts the statute. So if we don’t agree with 

your interpretation of the statute, certainly Congress could provide 

clarifying language to the statute itself so that we would put in a 

majority of those voting kind of a clarification, right? 

Ms. VAN DE WATER. Congress can certainly address any statute, 

yes, ma’am. 

Ms. HIRONO. Okay. Thank you. 

Then going on to the ability of the unions to get the addresses 

of the employees, is this by rule or is this by practice of the Board? 

Is this by some of court ruling that you no longer provide the addresses? 

Ms. VAN DE WATER. It is not by a court ruling, no, but it is by 

long-term practice of the Board. 

Ms. HIRONO. So, again, the Board could revisit this, recognizing 

you could place various kinds of limitations on the use by the 

unions of the addresses of the employees. 

Ms. VAN DE WATER. The Board can certainly look at that. 

Ms. HIRONO. If we were to ask you to do that, would you do that? 

Ms. VAN DE WATER. We would certainly take that under advisement. 

Ms. HIRONO. On the other hand, we could also do that by statute. 

Ms. VAN DE WATER. Yes, ma’am, you could. 

Ms. HIRONO. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Our next is Ms. Edwards, the newest Member of 

the Committee. 

Ms. EDWARDS. Thank you, Mr. Chairman, and thanks for holding 

this hearing. 

My question is to the Chairwoman. If the employer can contact 

every employee by mail, would it be your view that it would also 

be fair then for the union to be able to contact every employee by 

mail? 

32 

Ms. VAN DE WATER. I don’t know that that is necessarily required for election fairness, but obviously we have heard to the contrary from many members today. 

Ms. EDWARDS. Let me just ask this. Don’t you think it would be 

less onerous, even by practice, if you simply provided a certain set 

of prohibitions on the use of the employees’ addresses to be able to 

provide that level playing field for both the union and the employer? 

Ms. VAN DE WATER. Oh, I am sure we could put conditions on 

any use that unions would agree to. Yes, I think we could do that. 

Ms. EDWARDS. And, obviously, it has been pointed out we could 

do that also by clarifying statute. 

Ms. VAN DE WATER. Yes, ma’am. 

Ms. EDWARDS. Thank you. 

I have some questions about your representation manual. Is your 

representation manual a guideline? Are they rules and regulations? 

Ms. VAN DE WATER. They are guidelines for people who practice 

before the Agency. They are not binding on the Board, but they are 

meant to provide helpful information to participants and to our 

own staff. 

Ms. EDWARDS. If I read about a proposed change to your representation manual that would then require union card check, in 

your view, would that make it actually more difficult for the union 

to actually organize workers in furtherance of your mandate? 

Ms. VAN DE WATER. I am not sure which proposal you are referring to. 

If you are referring to the statement that we don’t accept card 

checks to extend certifications, that reflects existing law. We do accept card checks to call an election and have a showing of interest. 

Ms. EDWARDS. I guess I am trying to get a sense, though. 

Wouldn’t it be in greater furtherance to your mandate that you 

simply allow the union without card check per se to simply organize the workers? 

Ms. VAN DE WATER. They can show us a showing of interest of 

at least 35 percent if the employees are unrepresented to call an 

election to reflect employee choice. Cards are used for that purpose 

as well. 

Ms. EDWARDS. Thank you. 

Then I want to get back to the eligibility considerations because 

as I sat here and listened I dare say that, save those of us from 

Wisconsin and Minnesota, none of us would be seated if we required a 50 plus 1 eligibility rule. And so I am curious. 

I understand the history, but I am curious as to why you 

wouldn’t simply go back to the drawing board and do what we do 

with every other election and make it a majority or those who vote. 

Ms. VAN DE WATER. Well, the Railway Labor Act does call for a 

majority of the employees in the craft or class to support a union 

or not support a union. So that is the rule we do follow. 

Ms. EDWARDS. But, again, it is your interpretation of that rule. 

Ms. VAN DE WATER. Well, actually, I believe the Act itself calls 

for the majority. Yes, it does. 

Ms. EDWARDS. Ms. Friend, back the eligibility again and the eligibility list, if a dead person on the list is not an extraordinary cirVerDate Aug 31 2005 17:40 Jun 27, 2009 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 P:\DOCS\45364 JASON
33 

cumstance, can you describe to me what an extraordinary circumstance would be? 

Ms. FRIEND. I am sorry. Are you asking me? 

Ms. EDWARDS. Well, Ms. Friend or Madam Chair. 

Ms. FRIEND. I believe that a deceased person on the list is an extraordinary circumstance. It was the Board that ruled that it 

wasn’t. 

Ms. EDWARDS. And the Chairwoman? 

Ms. VAN DE WATER. If we had evidence for the person’s death before the tally, that would have made a difference. No one presented 

us with evidence. 

If Delta had come forward and said, we think these 20 people are 

dead, and they were AFA activists, we would probably be hearing 

a different story from the union. 

Ms. EDWARDS. Even within that seven-day period? 

Ms. VAN DE WATER. Yes. We have to have some kind of substantive evidence. We can’t just say, oh, okay, thanks for telling us. 

Ms. EDWARDS. Ms. Friend, in that circumstance, was there any 

substantive evidence that the person was dead? 

Ms. FRIEND. The deceased person was reported by Delta management. I don’t know whether or not the Board asked them for any 

evidence, but surely management did have the evidence if the person was deceased because they have certain death benefits that 

they would have had to pay out. So, had they been asked to provide 

it, I am certain that it would have been provided. 

Ms. VAN DE WATER. But it was not determinative in the election? 

Ms. EDWARDS. I don’t know that that really matters. The question is the process and what the rules are and whether they are 

being followed, not whether it is dispositive in the election. 

Ms. VAN DE WATER. We actually did follow the rules. The rules 

are you can’t bring in anything within seven days unless you have 

some substantive evidence to back it up. 

Ms. EDWARDS. Thank you. 

Barring your ruling, you would agree that a deceased person on 

a list is a pretty extraordinary circumstance. 

Ms. VAN DE WATER. That is a very extraordinary circumstance 

if we have evidence they are dead. 

Ms. EDWARDS. Then I would like to get back. Going back to the 

employees’ representation, if the carrier’s employees are trying to 

organize and aren’t currently represented by any union, is there 

anyone besides the carriers who review the eligibility list? 

Ms. VAN DE WATER. Yes, ma’am. The eligibility list is first given 

to us by the carrier, but at that point both the union and carrier 

file challenges and objections to the list. That is a process that can 

go on for a little while as they each review the other’s filings. 

For instance, the union can say, no, we think these 20 people 

should be included or these 20 people should be removed for whatever reason. Perhaps they are management. Perhaps they have 

changed crafts or classes or they don’t work at the carrier anymore. 

I mean it is an ongoing process. 

Then the carrier responds. 

Ms. EDWARDS. I wasn’t clear about this. How long does it take 

you? What is the average length of time that it takes the Board to 

investigate interference? 

34 

Ms. VAN DE WATER. That completely depends on the circumstances of the case and how large the craft or class is and how 

extensive the allegations are and for us to review the facts. It is 

not something we want to rush. 

Ms. EDWARDS. But you don’t have some general sense of how 

long it takes to investigate allegations? 

Ms. VAN DE WATER. Most of our cases are resolved within 90 

days, start to finish. We do handle quite a large number of very 

small cases as well that are much easier, obviously, to investigate. 

Ms. EDWARDS. How do you define undue interference? 

Ms. VAN DE WATER. It is influencing or having coercive action by 

the carrier against the employees primarily, but we look at the totality of the circumstances and the evidence in each case. 

Ms. EDWARDS. Are those standards set forth in your representation manual or some place in your rules? 

Ms. VAN DE WATER. It is set forth in our representation manual 

as well as extensively in the case law of the Agency. 

Ms. EDWARDS. But your representation manual is not dispositive. 

Ms. VAN DE WATER. No, it is not, and actually my counsel tells 

me it is more in the case law. 

Ms. EDWARDS. Thank you. No further questions. 

Mr. OBERSTAR. I thank the gentlewoman. 

The gentleman from Georgia. 

Mr. WESTMORELAND. Thank you, Mr. Chairman. 

Since we were kind of talking about card check, and I would like 

to hear from each one of you on the panel, do you believe that 

American workers should have the same rights or circumstances as 

Mexican workers about how to go about organizing? 

Ms. VAN DE WATER. Do I get to start with that, sir? 

I have to say I don’t know much about the rights in Mexico. I 

do know more about the rights in the United States. I would hope 

that our rights would exceed that, those of the employees in Mexico, but I really don’t know. 

Mr. WESTMORELAND. Well, there was a letter written to the 

Mexican government in 2001 by then, I guess, Ranking Member 

Mr. Miller of the Education and Workforce Committee, asking the 

Mexican government to have secret ballots for choosing as to 

whether to organize a union. 

Then this year, we had a bill that passed through the House that 

would say that the secret ballot would be a method that would not 

or could not be used, and some other method could be used in organizing a union. 

So I was just wondering, and I guess I should have explained 

that a little bit. Don’t you feel like that our workers, that we 

should want for our workers the same thing that some of the Majority Party wanted for the Mexican workers in organizing their 

unions? 

Ms. VAN DE WATER. I think we would want as many protections 

for our workers as possible, but that is my own personal opinion 

and not an opinion of the Agency. 

Mr. WESTMORELAND. Thank you. 

Ms. Dougherty? 

Ms. DOUGHERTY. I would agree. I would agree that our workers 

should have the best protections possible. 

35 

Mr. HOGLANDER. We actually do make exceptions to that when 

we have the agreement of both the—— 

Mr. WESTMORELAND. Just a simple yes or no is fine, Mr. 

Hoglander. 

Mr. HOGLANDER. Do I agree that our workers should have? 

Mr. WESTMORELAND. The same rights, the same abilities as the 

Mexican government or that our Members of Congress want the 

Mexican workers to have? Shouldn’t they want the same thing for 

our workers? 

Mr. HOGLANDER. I think we should those as goals? 

Mr. WESTMORELAND. Thank you. 

Ms. Friend? 

Ms. FRIEND. I have to respectfully disagree with your characterization of the Employee Free Choice Act because it does contain a 

provision that allows for a secret ballot. It gives the employees a 

choice. 

What we are looking for here for our workers is an opportunity 

to make a decision without undue coercion from the management. 

Mr. WESTMORELAND. So you don’t think that. Do you think we 

need to continue to insist with other governments that they use a 

secret ballot when we insist that ours don’t? 

Ms. FRIEND. If that were the position we were taking, then I 

would agree, but that is not the position. 

Mr. WESTMORELAND. I didn’t say you, personally. I am talking 

about other members of this body. 

Ms. FRIEND. Well, I can only speak for myself, not for the other 

members of the body. 

Mr. WESTMORELAND. Well, Ms. Friend, now that we are talking 

about it, is this the first time that AFA has raised any concerns 

regarding the majority participation rule? 

Ms. FRIEND. No. It has been a concern of ours for a long time. 

This is the first in my memory where there has been a congressional hearing that focuses on the representation rules of the National Mediation Board. So it is the first time we had an opportunity to raise it. 

Mr. WESTMORELAND. Okay. This has not been raised in any of 

the previous mergers? 

Ms. FRIEND. It has been since the last eighties. It has been over 

20 years since our union was involved in a merger that required 

an election. 

The most recent mergers have been between airlines where we 

represent the workers on both sides. So it has not been an issue 

for us. 

Mr. WESTMORELAND. When was the AFA-CWA certified to represent the Northwest flight attendants? 

Ms. FRIEND. July, something or another, 2006. 

Mr. WESTMORELAND. How many unions have been certified to 

represent the Northwest flight attendants in the last 10 years? Do 

you know the answer to that? 

Ms. FRIEND. I just went through the history with Congresswoman Hirono. I am not sure of the exact dates. In the last 10 

years, they are probably the second union. They left the Teamsters 

and went to an independent union, PFAA, and then they left PFAA 

and came to AFA-CWA. 

36 

Mr. WESTMORELAND. So you are the third union in 10 years. 

Ms. FRIEND. Yes, that would be correct. 

Mr. WESTMORELAND. By what percentage was the AFA-CWA certified to represent the Northwest Airlines flight attendants? 

Ms. FRIEND. There were two unions on the ballot, AFA-CWA and 

PFAA, and I believe the spread between the two unions was about 

1,000 votes. I am not recalling the exact numbers. But, obviously, 

the combined votes for both unions exceeded 50 percent plus 1 or 

no one would have been certified. 

Mr. WESTMORELAND. But you don’t know what percentage your 

union was? 

Ms. FRIEND. I don’t remember the numbers. My recollection is we 

had about 1,000 more votes than the independent union. 

Mr. WESTMORELAND. See, that’s a difference, Mr. Chairman, in 

a politician. You always remember what you won or lost by, don’t 

you? 

Mr. OBERSTAR. Oh, yes. Oh, yes. 

I think Ms. Van de Water has a number. 

Ms. VAN DE WATER. I do have a number, sir. The AFA received 

just under 48 percent of the vote. They were a couple hundred 

votes short of having 50 percent. But when combined with the 

PFAA votes, they were able to exceed 50 percent. 

Mr. WESTMORELAND. Thank you. 

Mr. Chairman, I will yield back the balance. 

Mr. OBERSTAR. I thank the gentleman. 

Ms. Van de Water, this document is the rulebook, the National 

Mediation Board Representation Manual, but it is not codified in 

Federal Regulation. It is not part of the Code of Federal Regulations, is that correct? 

Ms. VAN DE WATER. That is correct. 

Mr. OBERSTAR. Why is that the case? 

Ms. VAN DE WATER. I am going to have to refer to my counsel 

on that, sir. 

It was originally designed as internal guidance, and then we use 

it for participants before the Agency. 

Mr. OBERSTAR. I wonder. As I began digging into this, all the 

facts and the details of the issues that we have been exploring, I 

said, get the Code of Federal Regulations, so I can understand how 

the Board is proceeding. I got this document instead. 

It occurs to me that this manual is subject to change as the 

Board decides to change it, is that correct? 

Ms. VAN DE WATER. It is subject to change by the Board, yes, sir. 

We don’t just change it willy-nilly. We do try to put it out for 

public comment if we are going to make changes. 

Mr. OBERSTAR. I am not saying that you change it willy-nilly. I 

am just saying it is subject to change by the Board. 

Ms. VAN DE WATER. It is. 

Mr. OBERSTAR. Without going through a public notification procedure as you go through the notice of proposed rulemakings, the 

procedure that is required under the Federal Register. 

Ms. VAN DE WATER. Yes. It is not. We do not follow that procedure. That is correct. 

Mr. OBERSTAR. That is historical for 74 years. 

37 

Ms. VAN DE WATER. Yes, sir. I don’t think we have had the representation manual that long. 

Mr. OBERSTAR. On page 24, I tried to figure out now how you do 

these votes. In 13.304-2, it says: Void Votes. The following votes 

are void and will not be counted. 

It goes though a list, and then it says: Votes indicating no desire 

for representation such as write-ins indicating no or no union. 

So does that mean that if you vote no, that vote is not counted? 

Ms. VAN DE WATER. Yes, it does mean that. You can write in a 

no vote. 

Mr. OBERSTAR. A no vote is not a valid vote. The only valid vote 

is yes. 

Ms. VAN DE WATER. Well, we also accept quite a few answers for 

yes. If you go in and vote for Mickey Mouse, we probably won’t accept that because that is not a valid vote. But if you go in and vote 

for John Smith who happens to work at the carrier and just happens not to be part of the union trying to certify or just some person who works there, we would probably count that as yes. 

We show great latitude to the union to count as many votes as 

possible as yes. 

Mr. OBERSTAR. That is a very curious kind of voting system, 

don’t you think? 

Ms. VAN DE WATER. It is curious. 

Mr. OBERSTAR. When there are ballot issues, referenda in States, 

as our State has had several times and California is notorious for 

ballot referenda, there is a box for yes and a box for no. But there 

is no such box for the Board. 

Ms. VAN DE WATER. Yes, sir. 

Mr. OBERSTAR. The Board has reviewed a number of representation elections and has then taken this procedure of notifying workers that the best way to vote no is to tear up your ballot or just 

not vote. 

Ms. VAN DE WATER. We don’t instruct voters to tear up their ballots, sir. We tell them how to vote. 

Mr. OBERSTAR. I am sorry. Not you, but carriers have done that. 

I am sorry. I didn’t mean to say the Board. The carriers have 

said that. That was a slip of tongue. 

Ms. VAN DE WATER. I can’t comment on the pending Delta-AFA. 

Mr. OBERSTAR. Not this pending, in the past, that has happened 

because I went back and looked through records and found that 

carriers, at various times, have said, just tear up your ballot. 

Ms. VAN DE WATER. Carriers can communicate and tell employees if they don’t want to vote or if they don’t want the union, then 

they shouldn’t vote. 

Mr. OBERSTAR. Well, what is done in that situation, well, before 

I go to that question, who determines eligibility lists if there is no 

union in place? 

Ms. VAN DE WATER. The carriers. 

Mr. OBERSTAR. If we are starting ab initio in a representation 

issue, then who determines? 

Ms. VAN DE WATER. Well, the union how is applying for representation. So if a union has come to us with a showing of interest 

of 35 percent of the cards for a class or craft that is unrepresented, 

then the carrier still has to provide the list of people, and the union 

38 

still gets a chance to look at it and make changes or make recommendations on how to add or subtract people from the list. 

Just because they are not already in place doesn’t mean that 

they don’t get to look at the list. 

Mr. OBERSTAR. Who determines the eligibility, though, in that 

case? 

Ms. VAN DE WATER. We ask the carrier for an eligibility list, and 

then we provide it to the union to look at as well, but the carrier 

has to give us the original list. We don’t keep those kinds of lists. 

Mr. OBERSTAR. Then does the Board validate that list to determine that they are all living people? 

Ms. VAN DE WATER. We go through the challenges and objections. We don’t personally track down the people. 

We do check the signature cards that come in. The carrier also 

has to provide us with a list of employee signatures. We check that 

out. 

Then we have the parties file and, as I said, that can go on for 

quite a while because they respond to each other’s filings as to who 

the valid voters are or are not. 

Mr. OBERSTAR. Ms. Friend, have you gone through this type of 

situation where you have started? 

I am really trying to understand how this Board operates. It is 

the most curious of agencies. 

Have you gone through this practice now where you have started? There isn’t a union in place. Members want to have a union. 

Now you get a list. How do you validate? 

You heard what Chair Van de Water said. 

Ms. FRIEND. I have gone through it numerous times, and it is a 

very inexact science. 

And, it is very time consuming because it requires having as 

many as possible of our flight attendant activists on the carrier, the 

flight attendant group that is trying to form a union, look at the 

list and, using just their own personal information and personal 

contact, tell us is there anybody on this list that is now a supervisor in management or that you know has left or has retired or 

has quit or is deceased. 

We only rely on what those activists that work for that airline 

know about these individuals. That is the only way we have of confirming that the list has not been padded to a larger number. 

Mr. OBERSTAR. So the issue in the current situation but also in 

previous situations is coercive communication. That is also referenced in the manual. What does the Board consider coercive communication? 

Ms. VAN DE WATER. We have had multiple cases with coercive 

communication. It could mean something as dramatic as if you vote 

for the union, your pay gets cut in half tomorrow if the union is 

voted in or you are going to be fired or you are going to be demoted 

or that kind of communication, one on one, that is mean to intimidate is an example of some things we have seen in the past. 

Having a mandatory meeting with every member of the craft or 

class and shutting everybody up in a room and giving them dire 

consequences would be tough for us to accept. 

39 

But standard communications between employers and employees 

or the employer exercising their free rights, freedom of speech, we 

would not consider coercive. 

Again, it just depends on the facts of the case. It is as much quality as quantity, as I stated before. It is not that you can’t talk to 

people. It is just you can’t threaten them or be coercive. 

Mr. OBERSTAR. Did you happen to see Ms. Friend’s testimony before the hearing? 

Ms. VAN DE WATER. Yes, I did. 

Mr. OBERSTAR. She lists numbers of situations in the instant 

case, you may not feel capable or appropriate to comment on. 

Ms. VAN DE WATER. Right. 

Mr. OBERSTAR. But what caught my attention was Delta setting 

up information tables with banners in the crew lounge, with posters, imploring flight attendants to give a rip, don’t click, don’t dial. 

In other words, rip up your ballot, don’t use the internet, don’t 

call in to vote. Is that an example of coercive communication? 

Ms. VAN DE WATER. I can’t comment on the instant case, sir, 

where that is under consideration by the Board at this point. 

Mr. OBERSTAR. Do you consider it coercive communication, Mr. 

Hoglander or are you not commenting either? 

Mr. HOGLANDER. Well, actually, I can’t comment on that case either. 

But I can comment on the 2002 case where conduct of that sort 

is what gave the Board at least the understanding that there was 

prima facie evidence of interference, and we did have an investigation. 

We went into that, which involved not only those particular acts 

by the company, but also there was some other communications by 

groups called the Freedom Force and things of that nature. 

The problem that the NMB also seems to have in these sorts of 

situations is that we don’t have subpoena power. So when we send 

an investigator—an investigator is an attorney from our legal department who is in charge of that particular election—we don’t 

have the ability to seek any or issue any subpoenas for that sort 

of testimony. 

Mr. OBERSTAR. Sorry for the interruptions on this separate Committee matter. 

What examples do you have, Ms. Friend, of coercive communication and interference? 

Ms. FRIEND. Well, I feel perfectly comfortable commenting on the 

instant case. We actually, four months after filing, would be interested in one question, and that is are we ever going to get an answer on our interference charges? 

The interference I think that stands out in my mind, I mean you 

have described the literally wallpapering the crew rooms and the 

check-in areas with these instructions about not voting. 

But our activists were allowed to set up an information table to 

communicate with their fellow flight attendants, but the problem 

is every time a flight attendant would approach the table to talk 

with them about the union, three, four or five supervisors would 

suddenly show up and hang around the table at the same time. 

That is intimidation. 

40 

That drives the flight attendants because this is essentially their 

boss with the power to hire and fire them because they are employees at will. So the ability to communicate, really there is a barrier 

there that management throws up that we find definitely interfering with the flight attendants’ free right. 

Another thing that happened in this case is that just as we were 

starting to vote, a company announcement came out—and the vote 

was taking place into May—that on July 1st, all non-contract employees would get a 3 percent raise. 

So, immediately the question the flight attendants ask themselves is: Well, if I vote for the union I am going to be a contract 

employee. So what happens to my 3 percent raise? 

So it is very subtle, but it is definitely a deterrent. It is definitely 

saying: You want a 3 percent raise? Don’t vote. 

Mr. OBERSTAR. Well, since the Board can’t comment on the situation at hand and will not do so, I can’t refer this back to Ms. Van 

de Water. 

Mr. Westmoreland. 

Mr. WESTMORELAND. Yes, thank you, Mr. Chairman. 

Ms. Friend, talking about the 3 percent, I am assuming that you 

are talking about what is going on now with the Delta/Northwest 

merger and the flight attendants? 

Ms. FRIEND. I was talking about the most recent representational 

election that took place among just the Delta flight attendants completely unrelated to the merger. 

Mr. WESTMORELAND. How many times has the AFA tried to organize the Delta flight attendants? 

Ms. FRIEND. We have assisted the Delta flight attendants in 

their efforts to form a union twice. 

Mr. WESTMORELAND. You may not know the results of those elections, but do you remember what percentage wanted to organize? 

Ms. FRIEND. In the first election, it was around 38 percent. In 

this most recent one, it was 40 percent. 

Mr. WESTMORELAND. Forty percent? 

Ms. FRIEND. That actually participated, that actually cast a vote. 

Mr. WESTMORELAND. Yes, ma’am. Do you know what the salary 

is or what the difference is in the wage and benefits of a Delta 

flight attendant and a Northwest flight attendant? 

Ms. FRIEND. I can’t. I can’t give you actual numbers, but interesting enough, just this morning, we had a presentation from a 

labor economist on our industry overall. One of the pieces of information that he provided is a chart that really shows, starting in 

2001, each of the carriers’ flights attendants groups and taking us 

through the various bankruptcies. 

Interesting enough, when we get to the very end, when we get 

to this year, the Delta flights attendants are lowest, below all of 

the other major carriers. 

Mr. WESTMORELAND. So Delta flight attendants make less than 

any other flight attendant? 

Ms. FRIEND. The unit labor costs for Delta flight attendants are 

lower than any other major carrier, network carrier in the U.S. 

Mr. WESTMORELAND. Okay. 

Ms. FRIEND. Unit costs include salary, benefits. 

Mr. WESTMORELAND. And it is the lowest of all the carriers? 

41 

Ms. FRIEND. Yes. 

Mr. WESTMORELAND. That is interesting. 

Let me ask you this. The Chairman mentioned, which was very 

interesting to me, about the cards that you fill out, that they don’t 

have a no box. So I guess the safest way to know, and not that anybody would and I am not suggesting that, but to keep anybody 

from maybe fraudulently filling out one of these cards, the best 

thing to do would be to tear them up, would it not? 

Ms. FRIEND. That is not how. That is not how they vote. They 

don’t vote with a paper ballot. 

Mr. WESTMORELAND. What do they vote with? 

Ms. FRIEND. They vote on an internet on the computer or by telephone. There is no paper ballot. 

Mr. WESTMORELAND. Okay. So it is an electronic thing. So how 

would you tear one up and post it on a wall? 

Ms. FRIEND. You tear up your voting instructions. In order to 

protect the secrecy of the ballot, the voting instructions and certainly Ms. Van de Water can speak to this as well, the voting instructions tell them the web site to go to or the phone number to 

dial. Then they have to have a PIN. They have to have a personal 

identification number in order to get in. 

So if I get that in the mail and I tear it up, then I have no way 

to vote because I have destroyed my access. 

I no longer know the web site. Somebody could tell me the web 

site, but I no longer have a personal identification number in order 

to cast my ballot. 

Mr. WESTMORELAND. I am really confused because the Chairwoman was talking about a signature card that you compared signatures. 

Ms. VAN DE WATER. That is actually a little bit separate. When 

a union comes in and presents us with a showing of interest to trigger a election, they have authorization cards, and those are actually real cards. 

On those, it will say something along the lines of I authorized 

the AFA to seek an election with the National Mediation Board, 

and it will have identifying information on it. It will have the employee’s name and their address, and they have to sign. 

Then when we get the signature samples from the carrier, we do 

actually physically compare the signatures on the card to the signature we got on the list just to make sure the employee did sign 

it. 

Mr. WESTMORELAND. Okay. 

Ms. VAN DE WATER. But the actual vote itself, as Ms. Friend 

said, is done either on the phone or on the internet, and there are 

two separate identification numbers each employee gets that they 

have to enter at different stages in the process to make sure that 

integrity of the process is protected. 

Mr. WESTMORELAND. Thank you. 

Ms. Friend, are these pieces of paper with the web site and the 

PIN number sent to someone’s personal address or is this given out 

at the work place? 

Ms. FRIEND. They are mailed. The National Mediation Board actually conducts the election. So they, the National Mediation 

42 

Board, mails the voting instructions to the address provided by the 

carrier. 

Ms. VAN DE WATER. To home addresses. We would never send 

them to people’s places of business. That would not be a fair election. 

Ms. FRIEND. They are sent to the address of record that the employee has provided. It may or may not be their home as we have 

learned. It may be their tax ID place. 

Mr. WESTMORELAND. But I think the correct answer is it is being 

mailed to where the employee wants it mailed to, is that not true? 

Ms. VAN DE WATER. Right. That is right. 

Mr. WESTMORELAND. You mentioned unit cost for compensation, 

okay. I am not in the airline business, and I don’t understand 

about the unit cost. I just want to make sure I understand this because I represent a lot of Delta employees. 

Ms. FRIEND. Yes, you do. 

Mr. WESTMORELAND. So I just want to make sure I understand 

that in total compensation, the Delta flight attendants are the least 

paid in the industry. 

Ms. FRIEND. Yes. The unit cost is what it cost Delta Airlines to 

put one flight attendant on an airplane. 

That is what it costs, and that cost includes their wages and all 

components of their wages, their hourly salary as well as any incentives for language qualification or any number of things. It includes the cost of providing their health care, the cost of providing 

their pension. It includes the employer share of social security, and 

it includes the employer cost to provide worker’s compensation insurance. 

All of those costs, and then you take the total labor cost for all 

the flight attendants on the payroll and divide it by the number of 

flight attendants you have on the payroll, and you get the cost to 

put one flight attendant on an airplane. 

Mr. WESTMORELAND. But that is a unit cost. 

Ms. FRIEND. That is a unit cost. And so that, using that measurement, using the same calculation, that measurement, Delta flight 

attendants ended up lower. They may actually have a higher hourly rate of pay, but they have a lower per diem cost or they have 

a lower language qualification cost. 

Mr. WESTMORELAND. Okay. Let’s say that Debbie is the Delta 

flight attendant and that Nora is the Northwest flight attendant, 

when they get their paycheck, who gets the most money? 

Ms. FRIEND. It is hard to say. It depends on how many hours 

Nora flew that month and how many hours Debbie flew that 

month. 

Mr. WESTMORELAND. Let’s say they flew the same amount of 

hours. 

Ms. FRIEND. All things being equal, Nora’s paycheck will be larger. 

Mr. WESTMORELAND. Okay. Thank you. 

Mr. OBERSTAR. Thank you very much, Mr. Westmoreland. That 

was a very interesting line of questioning. We got to know Nora 

and Debbie, and that was very useful. 

[Laughter.] 

43 

Mr. OBERSTAR. Ms. Friend, would it make a difference in the outcome of elections if members were allowed to vote no? 

Ms. FRIEND. Absolutely. If it was a yes/no ballot, then those people who care one way or another, who very much passionately want 

to have a voice in their workplace through a union, would vote, and 

those who are adamant that they want no part of having or being 

part of a collective group, being part of a union, would vote no. 

Those people that don’t care wouldn’t participate, just like they 

do in any other election, and so the people that care would actually 

make the decision. 

I would like to, just for the record, point out that the language 

in the RLA and the language in the NLRA are virtually identical, 

that this is an interpretation, that the RLA says the majority of 

any craft or class of employee shall have the right to determine, 

and the NLRA says that representatives designated or selected by 

the majority of the employees in a unit. 

The language is virtually indistinguishable. This is simply an interpretation. 

Mr. OBERSTAR. But they are written for two different organizations. 

Ms. FRIEND. Exactly. 

Mr. OBERSTAR. The Railway Labor Act dealt with that before the 

National Labor Relations Act was passed. 

Ms. FRIEND. Right. 

Mr. OBERSTAR. And it dealt with all the 13 crafts in the railroad 

sector. So the language, craft or class of employees, deals with the 

realities of the railroad sector and was applied to aviation after 

aviation became a very commercial activity in the 1930s. 

The National Labor Relations Act says a majority of employees 

in a unit. That is the shop floor in an auto workers plant. That is 

a shop floor at Diamond Tool and Horseshoe. That is the underground mine in the Mesabi Iron Range of northern Minnesota, and 

it is mine by mine or later they changed it to iron ore mining 

range-wide. 

So those are very different, and I think that we ought to give this 

whole sector of law a very thorough review. This is the first in a 

series of hearings we will have that will be continued next year to 

understand how this whole process operates and to perhaps reevaluate the fairness and the equity of the process. 

I wonder what difference would it make, Chair Van de Water, if 

the Board’s manual were required to be published in the Federal 

Register. 

Ms. VAN DE WATER. I think then we would be subject to certain 

comment periods and procedures and things like that. 

Mr. OBERSTAR. I am sorry? 

Ms. VAN DE WATER. I said, we would be subject to procedures 

that are set in law, administrative law procedures. 

Mr. OBERSTAR. What difference, in your view, would it make if 

employees were allowed to vote no? 

Ms. VAN DE WATER. I don’t know what difference it would be. We 

would have to study that and look at some of what happens under 

the NLRA and see what happens when people vote no. It is just 

anything we have considered at the Agency. 

44 

Mr. OBERSTAR. Right. Well, give it some thought. We will be 

coming back to that. 

Ms. VAN DE WATER. Yes, sir. 

Mr. OBERSTAR. As for the interference issue, I am just always 

haunted by the memory of my father working in the underground 

mine in Minnesota. 

After the 1932 election, the mining captain came to him at the 

300 foot level in the Godfrey Underground and said: Say, Oberstar, 

you voted Democrat yesterday. You know you better think about 

how you voted or you may not have a job around here in the future. 

I won’t say what my father responded or how he responded, but 

he was angry, very angry, and I carry that anger with me. Because 

in those days you had to go and ask for a Democratic or Republican 

ballot. The mining company had poll watchers. The miners called 

them stool pigeons. 

They also had spies in the library to see what books the miners 

were taking out because you might be taking subversive literature 

like how to organize a union. They had spies in the pool halls, and 

they spies, stool pigeons, in the barber shops. 

The one in our town was a letter carrier. His name appeared on 

the list of U.S. Steel, paid $100 a month to report back to the company what the miners were saying in the barber shop, in the pool 

hall, what they were taking out in the libraries. 

That is coercive. It has haunted my memory and shaped my existence, and we are going to do something to clarify and to end 

these coercive practices. 

That will do for this hearing. We will have further in the future. 

Ms. VAN DE WATER. Thank you, Mr. Chairman. 

Mr. OBERSTAR. The Committee is adjourned. 

[Whereupon, at 5:19 p.m., the Committee was adjourned.] 

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