These general rules can be hard to apply to specific situations, however, and that’s where the NMB’s precedent comes into play — and where things get well-nigh incomprehensible. Carriers can teach employees how to vote “no,” but can’t run a “pervasive” or “overwhelming” campaign or say things that are “inaccurate” or “misleading.” (Oh, and statements that are “untrue” don’t necessarily meet this criterion.) Companies can’t change “working conditions” during an election period, unless such changes were planned in advance or there is “clear and convincing evidence of a compelling business justification.” “Isolated incidents” can’t support a finding of interference, but the “totality of facts and circumstances” can.
Throw into the mix the rambunctious nature of union elections — aided by huge budgets and teams of lawyers, each side’s leaders go exactly as far as they think they can get away with, and without fail some of each side’s ground troops go too far — and you have a system that’s governed not by law, but by the sympathies of the judges, the ranks of which often include former airline lobbyists or union officials. Businesses simply have to guess how much leeway the current NMB will let them have.
So, what was Delta’s guess? The AFA declined to comment on the record, but provided National Review Online a copy of its complaint. Many of the allegations are frivolous; for example, the union objects to Delta’s encouraging employees to vote from work computers (this supposedly creates a forbidden “on-site polling place”), and want a new election with no Internet or phone voting — even though the union successfully advocated Web voting, over resistance from Delta, under the old system. (Since those who didn’t vote were counted as “no” votes, the unions wanted to make voting as easy as possible.) Other claims are outright assaults on Delta’s First Amendment rights; the AFA finds it nefarious that Delta made accurate statements about the new rules, such as that “to be counted, you must vote,” and that write-in votes “could help AFA win.”
But some claims, if true, do represent misbehavior on the part of some Delta employees. (To be clear, Delta is no angel; it was unanimously found to have interfered in a simulator-technicians election earlier this year.) Someone with any sympathy to business would note that any union-election campaign will have some misbehavior. Such a person might also give some credence to Delta’s allegations that the AFA engaged in equally aggressive tactics. But the NMB’s two former union officials — one of them a former AFA international president, to be precise — might be more inclined to ask: What’s so wrong with seeing the following as a “totality of facts and circumstances” rather than a collection of “isolated incidents”?
Allegedly, numerous supervisors were more thorough in enforcing Delta’s advocacy policy — which, for example, forbids employees to wear pins “larger than the Delta Service award pin” on company time — against pro-union than anti-union workers. In an Atlanta crew lounge, a PA announcement aired claiming that “Everyone must vote!” and advising, “If you have not voted, bring me your [computer-login information] and I will vote for you!” And so on; there are countless tiny violations like these alleged in the brief.
And what about the following description of Delta’s overall campaign? Sounds “overwhelming” and “pervasive,” doesn’t it?
When opening the mail, an employee was likely to find one of Delta’s glossy oversized mailers or a DVD of [Delta CEO] Richard Anderson’s “Nexus” webcast. When answering the phone, an employee might hear the voice of a supervisor instructing them to vote. If staying at a layover hotel, Flight Attendants might have been accosted by a supervisor. This campaign increased when Flight Attendants arrived at work . . .
Also, the gap between the merger and the vote gave rise to some odd situations. For example, when the company gave a raise to its pre-merger Delta attendants, it simply continued to pay former Northwest attendants under their union contract, noting in a communication that it could not “align” pay between the two groups until the unionization issue was resolved. AFA says this is an implicit promise of benefits to employees who go non-union. Also, in a conference call with employees, Anderson noted that other work groups that had voted “no” had received raises, adding suggestively that he could not be more specific about what would happen to flight attendants’ pay without risking an interference claim from the union.
Delta will respond to the allegations later this month, and at that point the NMB will decide whether to allow the case to proceed.
The unions have already succeeded in gaming the system in ways that should appall a disinterested observer: They timed their election filings so they would face a sympathetic NMB, and then audaciously re-filed after that NMB changed a 75-year-old rule in their favor. Now, they are launching a throw-everything-at-the-wall legal campaign to discard the votes of thousands of Delta employees — and because the NMB hasn’t clearly established what is and is not allowed, they very well may succeed in this, too. In the meantime, Delta cannot move forward in aligning its employees’ pay, and those employees must be dreading the prospect of another exhausting barrage of pro- and anti-union propaganda.