August 15, 2010 - Following a unanimous ruling earlier this week that Delta Air Lines illegally interfered with a representational election for Flight Simulator Technicians at Delta Air Lines, the National Mediation Board (NMB) has scheduled a rerun election to begin on August 25, 2010.

Prior to scheduling the new election, the Board determined that laboratory conditions for a fair election were tainted when Delta promised pay raises for non-union workers.  The Board described as ?troubling? the timing of Delta?s pay raise announcement - made on the first full day of voting in the Sim Tech election.

Federal labor law requires carriers to act in a manner that does not influence, interfere with, or coerce the employees? selection of a collective bargaining representative.

On August 13, 2009, the IAM filed an application with the Board pursuant to the Railway Labor Act2 (RLA), 45 U.S.C. ? 152, Ninth (Section 2, Ninth), requesting the Board to investigate whether Delta and Northwest Airlines, Inc. (NWA) were operating as a single transportation system for the craft or class of Flight Simulator Technicians (Sim Techs). The investigation established that Delta and Northwest constitute a single transportation system for the craft or class of Sim Techs.

On January 11, 2010, the Board authorized an election in this matter. On January 12, 2010, the Board scheduled the tally for February 25, 2010 with the voting period beginning on February 3, 2010. The February 25, 2010 Report of Election results reflected that less than a majority of eligible voters cast valid votes for representation: of the 91 eligible voters, 40 voted for the IAM, and there were 3 valid votes for other organizations or individuals. Therefore, the Board issued a Dismissal on March 1, 2010.

On March 5, 2010, pursuant to the Board?s Representation Manual (Manual) Section 17.0, the IAM filed allegations of election interference, seeking a re-run election using a Laker ballot. Delta responded on March 22, 2010. The IAM filed an additional response on April 7, 2010, and Delta replied on April 9, 2010.

Participants submitted sworn statements and other documentary evidence in support of their positions. On May 5, 2010, the Board found that the IAM?s allegations stated a prima facie case that the laboratory conditions were tainted and notified participants that it would conduct further investigation.

On June 8-10, 2010, twenty in-person interviews with management officials, union representatives, and employees were conducted in Minneapolis, Minnesota and Atlanta, Georgia by Investigators Cristina Bonaca and Timothy Sweeney. This determination is based upon the entire record in the case. Were the laboratory conditions required for a fair election tainted? If so, what is the appropriate Board response? The IAM made a number of allegations which it argued, in aggregate, tainted the laboratory conditions required for a fair election. The IAM believed the actions of Delta necessitate a re-run election using a Laker ballot.

First, the IAM contend that a pay raise announcement made February 4, 2010 to non-contract employees tainted laboratory conditions necessary for a fair election. The announcement was made on the first full day of voting in the election, with voting materials mailed on February 3, 2010, and amounted up to a 10 percent increase for premerger Delta (PMDL) Sim Techs and up to a 16 percent increase for premerger NWA (PMNW) Sim Techs.

The IAM questioned the timing of the announcement ? made eight months before the October 1, 2010 effective date. The Organization argued that this was a deviation from Delta?s standard practice of making announcements at most four months before the effective date. The IAM also challenged a January 1, 2009 pay increase of 3 percent to non-contract employees. The IAM argued that Delta distorted the facts and the law when it communicated to employees that it was prohibited from offering the pay increase to contract employees, in light of the fact that the IAM had expressly communicated to Delta in a February 5, 2010 letter that Delta ?can apply these raises to contract employees as well.?

The IAM also contended that a Delta supervisor promised to change work schedules to grant more weekends off so as to mirror what the PMNW Sim Techs receive under their contract with the IAM. In addition, the Organization argueed that Delta prematurely used seniority integration committees to offer Sim Techs more favorable seniority integration than the IAM?s standard methodology of straight seniority.

The IAM alleged instances of discriminatory treatment which include denying a union representative access to Atlanta break rooms, and allowing the distribution of a petition during work hours which stated that the Sim Techs were properly part of the Mechanics and Related Employees craft or class in an effort to prevent an election.

Further, the IAM alleged that a Delta Supervisor conducted one-on-one meetings designed to influence junior Sim Techs not to vote for the IAM. There was also an allegation that a Delta Supervisor conducted surveillance outside of a Tech Storage Room with the intent of discouraging employees from talking about the benefits of a union contract.

Finally, the IAM contended that Delta routinely misstated Board procedures, rulings, and law which resulted in confusing employees and distorting the facts. One example is the circulation of a ?Monthly Base Rate Comparison? contrasting monthly pay and benefits for Sim Techs at Delta and other airlines, which included an average number representing union dues which was higher than the amount PMNW Sim Techs pay. Delta responded that the pay increases were pre-planned, and since its emergence from bankruptcy, it had consistently and publicly committed to its non-contract employees that they would receive industry-wide standard pay by the end of 2010.

The Carrier stated that it did not accept the IAM?s offer to increase pay rates for its contract employees as it wanted to align pay, benefits, and work rules and would not piecemeal the process. As for the timing between the announcement and the increase, Delta argued that this has varied depending on the circumstances.

The pay raise would apply to the non-contract employees even if they voted for representation, but only until those employees were covered by the applicable collective bargaining agreement (CBA). Delta denied that its supervisors offered to change work schedules, had coercive one-on-one meetings, denied access to break rooms for union representatives, distributed petitions on the proper craft or class of the Sim Techs, or conducted surveillance.

Delta stated that its communications with employees were truthful and protected by the First Amendment. Further, Delta argued that it diligently trained its managers and supervisors about obligations under the RLA and allowed the IAM many forums through which to communicate with employees.

With respect to the Monthly Base Rate Comparison, Delta circulated a number of these documents most of which represented the ?average? dues as less than what PMNW Sim Techs pay. The comparison highlighted by the IAM was in actuality only $2.22 in excess of what the PMNW Sim Techs were paying.

Delta contended ?Such a minute difference would not be material in any event, even if it was a mistake or misrepresentation, which it was not.? Finally, Delta viewed the McCaskill-Bond legislation, Public Law 110-161, Div. K, Title I, ? 117, as legally requiring it to create seniority integration committees before representation was resolved.

Delta and the IAM are currently litigating the McCaskill-Bond requirements in federal court. Int?l Assoc. of Machinists and Aerospace Workers, AFL-CIO v. Delta Air Lines, No.1:08-cv-02114 (RWR) (D.D.C). As a result, Delta suggested that the Board should exercise its discretion and decline making a decision on the permissibility of the seniority committees as the lawsuit is still pending with the United States District Court for the District of Columbia.