[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                        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



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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
Vice Chair                           DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
Columbia                             WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York             VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida               STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California               FRANK A. LoBIONDO, New Jersey
EDDIE BERNICE JOHNSON, Texas         JERRY MORAN, Kansas
GENE TAYLOR, Mississippi             GARY G. MILLER, California
ELIJAH E. CUMMINGS, Maryland         ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California        HENRY E. BROWN, Jr., South 
LEONARD L. BOSWELL, Iowa             Carolina
TIM HOLDEN, Pennsylvania             TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington              TODD RUSSELL PLATTS, Pennsylvania
RICK LARSEN, Washington              SAM GRAVES, Missouri
MICHAEL E. CAPUANO, Massachusetts    BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York          JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine            SHELLEY MOORE CAPITO, West 
BRIAN HIGGINS, New York              Virginia
RUSS CARNAHAN, Missouri              JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado            MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            TED POE, Texas
NICK LAMPSON, Texas                  DAVID G. REICHERT, Washington
ZACHARY T. SPACE, Ohio               CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii              JOHN R. `RANDY' KUHL, Jr., New 
BRUCE L. BRALEY, Iowa                York
JASON ALTMIRE, Pennsylvania          LYNN A WESTMORELAND, Georgia
TIMOTHY J. WALZ, Minnesota           CHARLES W. BOUSTANY, Jr., 
HEATH SHULER, North Carolina         Louisiana
MICHAEL A. ARCURI, New York          JEAN SCHMIDT, Ohio
HARRY E. MITCHELL, Arizona           CANDICE S. MILLER, Michigan
CHRISTOPHER P. CARNEY, Pennsylvania  THELMA D. DRAKE, Virginia
JOHN J. HALL, New York               MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin               VERN BUCHANAN, Florida
STEVE COHEN, Tennessee               ROBERT E. LATTA, Ohio
JERRY McNERNEY, California
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland

                                  (ii)

                                CONTENTS

                                                                   Page

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

                               TESTIMONY

Friend, Patricia A., International President, Association Of 
  Flight Attendants-CWA, 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

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[GRAPHIC] [TIFF OMITTED] T5364.003

[GRAPHIC] [TIFF OMITTED] T5364.004

[GRAPHIC] [TIFF OMITTED] T5364.005

[GRAPHIC] [TIFF OMITTED] T5364.006



 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 voters 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 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.
    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.
    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.
    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 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 anti-union 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.
    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.
    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 
employer-employee 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.
    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 
considered 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 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.
    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.
    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 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?
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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.
    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?
    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.
    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.
    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.
    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?
    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?
    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 
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?
    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 circumstance, 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?
    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.
    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.
    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.
    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 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.
    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.
    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?
    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 
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.]
    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.
    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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