National Labor Relations Board v. Media General Operations, Inc. ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.
MEDIA GENERAL OPERATIONS,  No. 03-1469
INCORPORATED, d/b/a Richmond
Times-Dispatch,
Respondent.

MEDIA GENERAL OPERATIONS, 
INCORPORATED, d/b/a Richmond
Times-Dispatch,
Petitioner,
 No. 03-1566
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.

On Application for Enforcement and Cross-petition
for Review of an Order
of the National Labor Relations Board.
(5-CA-29619)
Argued: December 3, 2003
Decided: March 4, 2004
Before WIDENER and KING, Circuit Judges,
and Richard D. BENNETT, District Judge of the
United States District Court for the District of Maryland,
sitting by designation.
2 N.L.R.B. v. MEDIA GENERAL OPERATIONS
Application for enforcement granted and cross-petition for review
denied by published opinion. Judge King wrote the opinion, in which
Judge Widener and Judge Bennett joined.
COUNSEL
ARGUED: Louis Michael Zinser, THE ZINSER LAW FIRM, P.C.,
Nashville, Tennessee, for Media General. James Matthew Oleske, Jr.,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. ON BRIEF: Glenn E. Plosa, THE ZINSER LAW FIRM,
P.C., Nashville, Tennessee, for Media General. Arthur F. Rosenfeld,
General Counsel, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Dep-
uty Associate General Counsel, Fred L. Cornnell, Supervisory Attor-
ney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board.
OPINION
KING, Circuit Judge:
The National Labor Relations Board has applied to this Court for
enforcement of its March 28, 2003, Decision and Order issued against
Media General Operations, Incorporated, d/b/a Richmond Times-
Dispatch. Media General, 338 N.L.R.B. 126 (2003) (the "Order"). By
its Order, the Board found that Media General had violated sections
8(a)(1) and 8(a)(5) of the National Labor Relations Act (the "Act"),
and it ordered Media General to bargain with the International Asso-
ciation of Machinists and Aerospace Workers, AFL-CIO (the "Inter-
national" or "IAM") as the exclusive bargaining representative of
certain Media General employees. Id. Media General has cross-
petitioned for our review of the Order. As explained below, we grant
the Board’s application for enforcement and we deny Media Gener-
al’s cross-petition for review.
NLRB v. MEDIA GENERAL OPERATIONS 3
I.
A.
Media General is a Virginia newspaper publisher that operates a
production facility in Mechanicsville, Virginia. On August 11, 2000,
the International filed a petition with the Board seeking to represent
a group of the Mechanicsville production facility’s maintenance and
facilities employees. On August 25, 2000, Media General and the
International entered into a "Stipulated Election Agreement," which
identified the employees to be included in the bargaining unit and
provided that a secret-ballot election would be held on September 22,
2000, to determine whether those employees would be represented by
the International.1
On September 13, 2000, the International conducted a voluntary
meeting for the employees in the proposed bargaining unit. At the
meeting, an International representative circulated a petition that
reflected a signing employee’s intention to "vote yes" for representa-
tion by the International in the upcoming election (the "Vote Yes Peti-
tion"). The Vote Yes Petition provided, in relevant part:
WE ARE VOTING YES!
We, the undersigned employees of TIMES DISPATCH
located in, [sic] Richmond, Virginia hereby authorize the
International Association of Machinists and Aerospace
Workers (IAM) to represent us in collective bargaining with
our employer.
We have made a commitment and promise to ourselves,
each other, and to the IAM to vote YES! WE WILL NOT
fall for the company’s scare tactics!
1
Pursuant to the Stipulated Election Agreement, the bargaining unit
consisted of all of Media General’s full-time and regular part-time main-
tenance machinists, HVAC technicians, electro-mechanical technicians,
electronic technicians, maintenance utility workers, maintenance
mechanics, electrical technicians, and facilities systems technicians, who
worked in the Mechanicsville production facility.
4 N.L.R.B. v. MEDIA GENERAL OPERATIONS
Furthermore, we AUTHORIZE the IAM to use this petition
THROUGH ANY METHOD to urge our co-workers to vote
YES.
WE WILL NOT CHANGE OUR MINDS!
WE WILL STAND BY OUR WORD!
WE WILL VOTE YES!
During this meeting, and at a later meeting, the International solicited
signatures on the Vote Yes Petition. According to two employees in
attendance, one of the International’s representatives stated that he
wanted everyone to sign the Vote Yes Petition, and he commented,
"[t]his is where you separate the men from the boys."
Several employees who attended the meetings discussed the Vote
Yes Petition with Media General officials, and one of them informed
Media General that the Vote Yes Petition would be made public. In
response, Media General, two days before the election, circulated a
Memorandum to the employees in the proposed bargaining unit,
advising them of their unconditional right to "vote no" on union rep-
resentation and of their right to choose not to attend the Internation-
al’s meetings (the "Company Memorandum"). The Company
Memorandum, from Director of Operations William R. Barker
("Director Barker"), characterized the Vote Yes Petition as a "straw
vote" and stated, in relevant part:
Let me make a few things clear. That straw vote means
nothing. It cannot be used in any way at the election on Fri-
day. Regardless of whatever you may have written down at
the "straw vote," on Friday you still get to vote your free
choice in the NRLB-conducted secret ballot election. You
have the absolute right to Vote NO on Friday regardless of
whatever you did in the "straw vote."
I was also told by some of you that the union has a meeting
scheduled tonight. Whether or not you attend that meeting
is your free choice. I wanted to make clear to you that you
NLRB v. MEDIA GENERAL OPERATIONS 5
have no obligation to attend that meeting in order to try to
correct or change your vote in last week’s "straw vote." You
may decide to freely skip tonight’s union meeting and to go
to the polls on Friday, September 22 and VOTE NO in the
NLRB-conducted secret ballot election.
On September 21, 2000, the day before the election, employees in
the proposed bargaining unit distributed copies of the Vote Yes Peti-
tion throughout the Mechanicsville workplace. It contained twenty
employee names, most of which were printed on lines in the left-hand
column of the Vote Yes Petition, with corresponding signatures on
lines in a separate column to the right of the printed names. One
employee, Richard Tingler, had printed his name in the left-hand col-
umn of the Vote Yes Petition, but he had failed to sign his name in
the right-hand column. Instead, the signature of William D. Slayton,
another employee, was on the line in the right-hand column next to
Tingler’s printed name. Slayton’s name was also printed, and signed
for a second time, two lines below Tingler’s printed name.
On September 22, 2000, the Board conducted the scheduled secret-
ballot election. Sixteen employees in the proposed bargaining unit
cast ballots in favor of collective-bargaining representation by the
International, while fifteen employees voted against such representa-
tion.
B.
On September 29, 2000, Media General filed objections to conduct
affecting the results of the election with the Board’s Regional Director.2
2
The applicable regulations provide that "if objections to the conduct
of an election are filed within 7 days after the tally of ballots has been
prepared, the Regional Director . . . conducts an investigation and rules
on the objections." 29 C.F.R. § 101.19(a)(4). The Board’s Region 5,
which includes the Old Dominion, had an Acting Regional Director in
place when Media General filed its objections to the election. By
November 28, 2000, when Media General sought reconsideration by
Region 5, a Regional Director had been appointed. For our purposes, we
refer to the Acting Regional Director and Regional Director as the "Re-
gional Director."
6 N.L.R.B. v. MEDIA GENERAL OPERATIONS
Among its objections, Media General asserted that the International
had violated "established law" by circulating copies of the Vote Yes
Petition on the eve of the election, and it requested that the election
be set aside. Media General also claimed that the Vote Yes Petition
contained a forgery because "the hand that started printing ‘Richard
G. Tingler’ was not the same hand that concluded printing ‘Richard
G. Tingler.’"3 On November 16, 2000, the Regional Director issued
a report recommending that Media General’s objections be overruled
and that a Certification of Representation be issued. Media General,
Case 5-RC-15077, at 9 (Nov. 16, 2000) (the "Report on Objections").
Before the Board acted, Media General filed a motion for reconsider-
ation of its objections, which was denied by the Regional Director on
December 27, 2000. Media General, Case 5-RC-15077 (Dec. 27,
2000) (the "Order Denying Reconsideration").
On January 24, 2001, the Board adopted the findings made by the
Regional Director in his report of November 16, 2000. Accordingly,
the Board certified the International as the exclusive collective-
bargaining representative of the employees in the proposed bargaining
unit. Media General, Case 5-RC-15077 (Jan. 24, 2001) (the "Certifi-
cation Decision").
On February 15, 2001, the International’s local affiliate, Richmond
Lodge No. 10, International Association of Machinists and Aerospace
Workers ("Lodge 10"), directed a letter to Media General requesting
bargaining unit information that Lodge 10 considered "essential to
bargain intelligently on the issues of wages and working conditions
in the forthcoming negotiations" (the "February Letter"). Media Gen-
eral responded to the February Letter on March 13, 2001, stating,
"[t]his letter is in response to your letter dated February 15, 2001.
Please be advised, with all due respect, that the Richmond Times-
Dispatch declines to recognize or bargain with your union."
On April 2, 2001, the International filed with the Regional Director
3
The theory that Richard Tingler’s printed name was written by two
persons initially came from an affidavit executed by Director Barker,
who asserted that his "visual inspection of the document quickly con-
firms this."
NLRB v. MEDIA GENERAL OPERATIONS 7
4
an unfair labor practice charge against Media General. The charge
asserted that Media General had interfered with, restrained, and
coerced employees in the exercise of their rights under section 8(a)(1)
of the Act, and that it had refused to bargain in good faith with the
International, in violation of section 8(a)(5) of the Act.5 In support of
its contention that Media General had refused to bargain, the Interna-
tional stated that it had "requested negotiations" on February 15,
2001, and that Media General had "declined our request on March 13,
2001."
Acting on the International’s allegations, the Regional Director, on
April 16, 2001, issued a Complaint and Notice of Hearing against
Media General, asserting violations of sections 8(a)(1) and 8(a)(5) of
the Act.6 In its Answer, filed on April 26, 2001, Media General
denied that it had refused to bargain with the International and
claimed that it was "under no duty to bargain with IAM as the certifi-
cation election was tainted by IAM’s objectionable conduct. IAM’s
objectionable conduct prevented voters from freely and fairly select-
ing whether or not to be represented."
4
An investigation of an alleged unfair labor practice is initiated by fil-
ing a charge with the Regional Director for the Board Region in which
the alleged violation occurred. 29 C.F.R. § 101.2.
5
Pursuant to section 8(a)(1) of the Act "[i]t shall be an unfair labor
practice for an employer M to interfere with, restrain, or coerce employ-
ees in the exercise of their rights guaranteed in section 157 of this title
. . . ." 29 U.S.C. § 158(a)(1). Under § 157 of Title 29:
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection . . . .
Id. § 157.
Section 8(a)(5) of the Act provides that "[i]t shall be an unfair labor
practice for an employer — to refuse to bargain collectively with the rep-
resentatives of his employees . . . ." Id. § 158(a)(5).
6
The regulations provide that "[i]f the charge appears to have merit and
efforts to dispose of it by informal adjustment are unsuccessful, the
Regional Director institutes formal action by issuance of a complaint and
notice of hearing." 29 C.F.R. § 101.8.
8 N.L.R.B. v. MEDIA GENERAL OPERATIONS
On May 11, 2001, the Board’s General Counsel moved for sum-
mary judgment on the Complaint, and on May 16, 2001, the Board
issued a notice to show cause why summary judgment should not be
awarded.7 In response to the show cause notice, Media General reiter-
ated its objection to the Board’s certification of the International, and
it further maintained that "[n]o one on behalf of the IAM has ever
made a demand to bargain." Although Media General admitted that
Lodge 10 had submitted a valid bargaining demand in the February
Letter, it contended that the February Letter was not attributable to the
International.
On March 28, 2003, the Board issued the Order underlying this dis-
pute, granting the General Counsel’s motion for summary judgment.
In so ruling, the Board determined that Media General had presented
no newly discovered evidence on the validity of the election results,
and it declined to reexamine its Certification Decision. Order at 1.
The Board then addressed Media General’s contention that only
Lodge 10 had demanded bargaining rights, and that the International
had never made a bargaining demand. On this point, the Board found
that "even if the February 15, 2001 letter was not, in itself, a sufficient
demand by the International, the refusal-to-bargain charge filed by the
International on April 2, 2001, which referred to that letter, clarified
any ambiguity as to which entity was requesting bargaining." Id. at
2. Accordingly, the Board concluded that Media General’s refusal to
bargain with the International violated sections 8(a)(1) and 8(a)(5) of
the Act, and it ordered Media General to bargain with the Interna-
tional. Id. at 3. On April 23, 2003, Media General filed a motion for
a stay of the Order, along with a motion for reconsideration. On May
8, 2003, both motions were denied.
The Board thereafter applied to this Court for enforcement of the
Order, and Media General has cross-petitioned for our review thereof.
We possess jurisdiction pursuant to sections 10(e) and (f) of the Act.
See 29 U.S.C. § 160(e), (f).
7
The General Counsel of the Board is responsible for prosecuting com-
plaints before the Board. 29 U.S.C. § 153(d).
NLRB v. MEDIA GENERAL OPERATIONS 9
II.
The Board’s conclusion that an election resulted in a fair vote for
union representation is a discretionary matter, and we are obliged to
accord it great deference. NLRB v. Columbia Cable TV Co., Inc., 856
F.2d 636, 638 (4th Cir. 1988). We presume a Board-supervised elec-
tion to be valid, and we may overturn such an election only if the
Board has clearly abused its discretion. NLRB v. Maryland Ambu-
lance Servs. Inc., 192 F.3d 430, 433 (4th Cir. 1999); Case Farms of
North Carolina, Inc. v. NLRB, 128 F.3d 841, 844 (4th Cir. 1997). A
party seeking to overturn an election "bears a heavy burden" and
"must prove by specific evidence not only that campaign improprie-
ties occurred, but also that they prevented a fair election." Elizabeth-
town Gas Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000). The Act
requires that we treat as conclusive any Board findings that are "sup-
ported by substantial evidence on the record considered as a whole
. . . ." 29 U.S.C. § 160(e).
III.
In its opposition to the Board’s application for enforcement and in
its cross-petition for review, Media General maintains that the Board
erred in ordering it to bargain with the International. In support of this
contention, Media General asserts: (1) that circulation of the Vote Yes
Petition "intimidated, threatened, and coerced employees" into voting
"yes" for representation by the International; (2) that the Vote Yes
Petition contained a forgery; (3) that the Board should have accorded
Media General an evidentiary hearing before making its Certification
Decision; and (4) that, if certification was proper, the International
failed to make a proper bargaining demand. We address these conten-
tions in turn.
A.
Media General first asserts that the Certification Decision consti-
tuted an abuse of discretion because the International had "intimi-
dated, threatened, and coerced" employees into signing the Vote Yes
Petition and into ultimately voting for representation by the Interna-
tional. Accordingly, Media General contends that it is under no duty
to recognize the International as the exclusive collective-bargaining
10 N.L.R.B. v. MEDIA GENERAL OPERATIONS
representative of the employees in the bargaining unit. We are obliged
to reject this contention.
1.
As an initial matter, we reject Media General’s suggestion that vote
yes petitions are per se coercive. As the Sixth Circuit has explained,
"although pre-election polling by an employer is per se objectionable,
a union seeking to represent employees has a different relationship to
them that makes pre-election polling less coercive." Maremont Corp.
v. NLRB, 177 F.3d 573, 578 (6th Cir. 1999) (citing Kusan Mfg. Co.
v. NLRB, 749 F.2d 362, 364 (6th Cir. 1984)). The proper inquiry is
whether circulation of the Vote Yes Petition, under the circumstances
leading to this election, interfered with the free and fair choice of the
employees. See id.; Van Leer Containers, Inc. v. NLRB, 841 F.2d 779,
785 (7th Cir. 1988); Nu Skin Int’l, 307 N.L.R.B. 223, 223 (1992).
Contrary to Media General’s contention, the Supreme Court’s deci-
sion in NLRB v. Savair Manufacturing Co., 414 U.S. 270 (1973), does
not mandate a finding that vote yes petitions are inherently coercive.
In Savair, the union had circulated recognition slips reflecting the
names of the employees who had agreed to support it. Id. at 272. As
incentive for signing these slips prior to the election, the union had
offered to waive the employees’ union initiation fees. Id. at 273. In
finding this practice objectionable, the Court recognized that an
employee’s "outward manifestation of support must often serve as a
useful campaign tool in the union’s hands to convince other employ-
ees to vote for the union . . . ." Id. at 277. As we have explained, how-
ever, "the linchpin of Savair is the linkage between the offer to waive
the initiation fee and a pre-election commitment to support the union.
It is this linkage that constitutes the union’s impermissible interfer-
ence in the election." NLRB v. VSA, Inc., 24 F.3d 588, 593 (4th Cir.
1994) (citing Savair, 414 U.S. at 275-78). Here, the International
made no offer to waive the union fees or dues of signing employees,
and the Savair decision is easily distinguishable.
2.
Turning to the facts relating to this election, Media General con-
tends that two remarks made by an International representative at a
NLRB v. MEDIA GENERAL OPERATIONS 11
meeting with the employees in the proposed bargaining unit — "I
want everyone to sign this" and "[t]his is where you separate the men
from the boys" — rendered a fair election impossible. In support of
this contention, Media General relies on the subjective reactions of
two of those employees, who stated that they "felt pressure to sign the
petition." The Board found, however, that these employee statements
failed to establish that the free choice of a reasonable employee would
have been hindered, and we are unable to disagree with that finding.
First of all, the "[s]ubjective reactions of employees are irrelevant
to the question of whether there was, in fact, objectionable conduct."
Kmart Corp., 322 N.L.R.B. 1014, 1015 (1997). As one of our sister
circuits has explained, the test for coercion is an objective one, and
the relevant question is "whether the alleged misconduct is of a type
that would cause interference with the free choice of a reasonable
employee." AOTOP, LLC v. NLRB, 331 F.3d 100, 104 (D.C. Cir.
2003) (affirming Board’s finding that union agent did not engage in
objectionable conduct when she advised employees that they "had to"
vote for union). Furthermore, the responsibility for assessing the rele-
vant facts and deciding whether the union’s conduct interfered with
a reasonable employee’s free and fair choice in a representation elec-
tion lies with the Board. Id.
Secondly, we have recognized that election campaigns, by their
nature, are rough and tumble affairs, and they typically involve ele-
ments of pressure or inducement. See, e.g., VSA, 24 F.3d at 595
(upholding union’s offer to waive union initiation fees if union won
election as permissible campaign tactic, where offer applied equally
to all employees). And, "while ‘[c]oercive conduct is never condoned
during the election process . . . the Board will not set aside an election
unless an atmosphere of fear and coercion rendered free choice
impossible.’" Id. (quoting NLRB v. Herbert Halperin Distrib. Corp.,
826 F.2d 287, 290 (4th Cir. 1987)); see also NLRB v. Coca-Cola Bot-
tling Co., 132 F.3d 1001, 1003 (4th Cir. 1997) ("An election is by its
nature a rough and tumble affair, and a certain amount of ‘exaggera-
tions, hyperbole, and appeals to emotions are to be expected.’") (cita-
tions omitted)).
In the circumstances of this dispute, the Regional Director found
that a reasonable employee would not have felt coerced into voting
12 N.L.R.B. v. MEDIA GENERAL OPERATIONS
for the International.8 His finding on this point is amply supported for
at least two reasons: (1) Media General officials spoke to those
employees who had expressed concern about signing the Vote Yes
Petition, and those officials explained that the "petition meant noth-
ing" and that the employees could still vote "NO" in the election; and
(2) after learning about the Vote Yes Petition, Media General circu-
lated the Company Memorandum to all employees in the proposed
bargaining unit, explaining that they had the right to vote against rep-
resentation in the election.9 Accordingly, the Board’s determination
that the employees in the proposed bargaining unit were not coerced
into supporting the International was supported by substantial evi-
dence.
B.
Media General next contends that the Vote Yes Petition contained
8
In his Order Denying Reconsideration, the Regional Director stated as
follows:
[The] actions of the [International] did not involve inducements
or coercion. . . . Although some employees may have been influ-
enced to sign the petition by the group dynamic or even a feeling
of peer pressure, and then have had second thoughts about hav-
ing done so, there is no requirement that such employee petitions
be signed in solitary sanctity such as accompanies the marking
of ballots in a Board-conducted election. As the Employer cor-
rectly explained to employees in its September 20 memorandum,
the petition, "means nothing"; voters have the "absolute right" to
vote "yes" or "no" in the Board-conducted secret ballot election
regardless of whether they signed the petition.
Media General, Case 5-RC-15077 (Dec. 27, 2000).
9
We also find meritless Media General’s convoluted contention that
the Vote Yes Petition "was circulated to ensure that management saw it,"
as part of the International’s "calculated strategy of coercion" and as a
"first step" toward causing Media General to discriminate against Inter-
national supporters. Nothing in the record suggests that the International
circulated the Vote Yes Petition to ensure that Media General would dis-
criminate against International supporters. And in signing the Vote Yes
Petition, the employees authorized the International to "use the petition
THROUGH ANY METHOD to urge [their] co-workers to vote YES."
NLRB v. MEDIA GENERAL OPERATIONS 13
a forgery that requires the representation election at Mechanicsville
to be set aside. As the Board found, however, this contention must
also be rejected.
In support of its initial objections to the election result, Media Gen-
eral submitted the affidavit of Director Barker, who had performed "a
visual inspection" of the Vote Yes Petition, stating his view that the
printed name, "Richard G. Tingler," appeared to have been written by
two different persons — the "Richard G. T" portion being written by
one person, and the last six printed letters, the "ingler" portion
thereof, being written by another person. The Regional Director
rejected this claim in his Report on Objections, observing that (1)
Director Barker was not a handwriting expert; (2) Media General had
failed to produce any samples of Richard Tingler’s handwriting; and
(3) review of other available materials indicated that Tingler’s name
was printed by him. Media General, Case 5-RC-15077, at 9 (Nov. 16,
2000).
In its motion for reconsideration, Media General abandoned its ini-
tial claim that Tingler’s printed name was a forgery. It then acknowl-
edged that "Mr. Tingler’s hand-printed name on the petition is
identical to the examples of Mr. Tingler’s hand-printed name sup-
plied" with the reconsideration request. Media General’s second for-
gery theory on Tingler, as presented in its motion for reconsideration,
was that William Slayton’s signature, in the right-hand column next
to Tingler’s printed name, was a forgery of Tingler’s signature.
Rejecting this contention, the Regional Director, in his Order Denying
Reconsideration, observed that it was "obvious" from the face of the
Vote Yes Petition that "William B. Slayton signed his name in cursive
in the space next to where Richard Tingler signed his name in printed
form." Media General, Case 5-RC-15077 (Dec. 27, 2000). That is,
Slayton did not forge Tingler’s signature; he signed his own name in
the right-hand column of the Vote Yes Petition, immediately to the
right of Tingler’s printed name.
Seeking to utilize these findings of the Regional Director in support
of its contention on Tingler and the forgery claim, Media General
now asserts that the Region’s handling of its two forgery theories has
been inconsistent. More specifically, it now asserts:
14 N.L.R.B. v. MEDIA GENERAL OPERATIONS
Region 5 conducted a six (6)-week investigation to declare,
initially, that the signature on the right column that corre-
sponded to Tingler’s printed name was unquestionably
Tingler’s signature. On reconsideration, after receiving cop-
ies of Tingler’s signature, Region 5 declared that the signa-
ture was unquestionably not Tingler’s signature. This
explicit inconsistency alone entitled Richmond Times-
Dispatch to a re-running of the election.
Contrary to Media General’s assertions, the Regional Director, in his
Report on Objections, did not conclude that the signature next to
Tingler’s printed name was that of Richard Tingler. Although he
referred to a "signature," the Regional Director was addressing Media
General’s initial theory about Tingler’s printed name being forged.
By contrast, the Regional Director, in his Order Denying Reconsider-
ation, was responding to Media General’s second forgery theory, con-
cerning whether Slayton’s signed name was a forgery of Tingler’s
signed name. These separate findings, responding to the alternative
theories presented by Media General, are not inconsistent with one
another, and we agree with the Board that there was no forgery appar-
ent on the face of the Vote Yes Petition.10
10
Equally unavailing is the suggestion that employees in the proposed
bargaining unit were misled by Richard Tingler’s printed name on the
Vote Yes Petition — believing that he had signed it, when in fact he had
not. This contention, similar to the contention that the appearance of
twenty names on the face of the Vote Yes Petition constituted a misrep-
resentation because only sixteen employees actually voted for representa-
tion, is untenable. As we have explained, the Board considers employees
to be "‘mature individuals who are capable of recognizing campaign pro-
paganda for what it is and discounting it.’" Case Farms of North Caro-
lina, Inc. v. NLRB, 128 F.3d 841, 844 (4th Cir. 1997) (quoting Midland
Nat’l Life Ins. Co., 263 N.L.R.B. 127, 132 (1982) (quoting Shopping
Kart Food Mkt., Inc., 228 N.L.R.B. 1311, 1313 (1977))).
The Regional Director concluded that the employees in the proposed
bargaining unit could recognize the obvious: that William Slayton signed
his name in the column next to Richard Tingler’s name. Furthermore, the
employees were informed by the Company Memorandum that signing
the Vote Yes Petition did not require an employee to vote in favor of rep-
resentation. Accordingly, the appearance on the Vote Yes Petition of
names of employees who may not have voted for representation is not
misleading. If anything, it demonstrates that employees felt free to vote
"no" in the election even though they had subscribed to the Vote Yes
Petition.
NLRB v. MEDIA GENERAL OPERATIONS 15
C.
Media General next contends that the Board erred in failing to con-
duct a hearing on Media General’s objections to the International’s
pre-election conduct. On this point, we have explained that "[p]re-
certification evidentiary hearings are necessary only if there are sub-
stantial and material issues of fact relating to the validity of the elec-
tion." VSA, 24 F.3d at 596 (citing Columbia Cable, 856 F.2d at 639;
NLRB v. Hydrotherm, 824 F.2d 332, 335 (4th Cir. 1987); NLRB v.
Bata Shoe Co., 377 F.2d 821, 825 (4th Cir. 1967))). In deciding
whether "substantial and material issues" exist, the allegations of the
objecting party are to be accepted as true; however, an objecting
party’s disagreement with the inferences or interpretations placed on
the findings of the Board does not mean that a pre-certification evi-
dentiary hearing should have been conducted. Id. at 597-98 (citations
omitted).
In support of this contention, Media General submitted, and the
Regional Director accepted as true, the affidavits of certain employees
in the proposed bargaining unit. Those affidavits reflected statements
made by an International agent and set forth the affiants’ subjective
feelings of pressure to vote for representation. Accepting those affida-
vits as true, the Regional Director nevertheless found no coercion or
interference with the employees’ free choice. Additionally, he found
no validity in Media General’s contention that Richard Tingler’s
printed name was written by two different individuals. In denying
Media General’s motion for reconsideration, the Regional Director
reviewed these assertions a second time. He then reaffirmed his find-
ing of no coercion and rejected Media General’s second forgery the-
ory. Finally, the Board, by its Certification Decision, adopted the
Regional Director’s findings and recommendations and certified the
election.
In sum, Media General now contends that the Board should have
ruled in its favor, and that it abused its discretion in not granting a
pre-certification evidentiary hearing.11 This contention simply consti-
11
Media General suggests that, because the election was decided by a
close vote, it was necessarily entitled to a pre-certification evidentiary
16 N.L.R.B. v. MEDIA GENERAL OPERATIONS
tutes a disagreement with the Board’s factual findings, and it does not
warrant a pre-certification evidentiary hearing. See VSA, 24 F.3d at
598.
The Sixth Circuit’s decision in NLRB v. Gormac Custom Manufac-
turing Co., 190 F.3d 742, 749 (6th Cir. 1999), relied on by Media
General, is readily distinguishable. In Gormac, the union had circu-
lated a vote yes petition in the employer’s offices three hours before
the election, and the court ruled that the Board had abused its discre-
tion in denying a pre-certification hearing. Id. at 751. In Gormac,
there was a disputed issue of material fact on whether union officials
had promised employees that their signing of the Vote Yes Petition
would be confidential. Id. There is no such disputed issue here. The
employees in the proposed bargaining unit were not promised confi-
dentiality; in fact, the Vote Yes Petition stated on its face that "we
AUTHORIZE the IAM to use this petition THROUGH ANY
METHOD to urge our co-workers to vote YES."
In these circumstances, the Board did not abuse its discretion in
failing to conduct a pre-certification evidentiary hearing.
D.
Finally, Media General contends that, even if the Certification
Decision was appropriate, the International failed to validly request
bargaining with Media General. It premises this contention on the fact
that the February Letter was sent to Media General by Local 10 rather
than by the International.
hearing. We agree that closer scrutiny is warranted when an election is
decided by a close vote. See Savair, 414 U.S. at 278 (applying stricter
scrutiny when one vote would have altered election’s outcome). We have
examined each of Media General’s contentions carefully and with strict
scrutiny, however, and as we observed in VSA, "even close scrutiny here
discloses no abuse of discretion by the Board in . . . not granting [the
employer] an evidentiary hearing." VSA, 24 F.3d at 598 n.22.
NLRB v. MEDIA GENERAL OPERATIONS 17
As we have acknowledged, a local union affiliate, for purposes of
the exclusivity of bargaining requirement, is an entity separate and
distinct from its international parent. United Elec., Radio & Mach.
Workers (UE) v. NLRB, 986 F.2d 70, 75 (4th Cir. 1993). Accordingly,
in UE, we upheld the Board’s decision that an employer was not
required to bargain with either the international or its local affiliate
when the employer was confused about whether the demand came
from the union’s local affiliate, which was certified, or from the par-
ent international union, which was not certified. Id. at 76. As Judge
Wilkinson explained, an employer has "a negative duty to bargain
with no other entity than the certified bargaining representative. . . .
The Company thus risked committing an unfair labor practice if it
negotiated with a labor organization other than the properly affiliated
[certified union]." Id. at 75.
Media General contends that, because it was required to bargain
only with the certified International, and the February Letter came
from Local 10, legitimate confusion arose as to which entity had
demanded bargaining. In NLRB v. Williams Enterprises, Inc., 50 F.3d
1280, 1287 (4th Cir. 1995), we held that an inadequate request to bar-
gain (a telephone call by a union agent), plus the filing of an unfair
labor practice charge, constituted a valid bargaining demand. As we
explained, "‘[a] valid request to bargain need not be made in any par-
ticular form, or in haec verba, so long as the request clearly indicates
a desire to negotiate and bargain on behalf of the employees.’" Id. at
1286 (quoting Stanford Realty Assocs. v. NLRB, 306 N.L.R.B. 1061,
1066 (1992)). In this instance, the February Letter, standing alone,
may have constituted an inadequate bargaining request, but it did not
stand alone. The Board found that any ambiguity as to which entity
was requesting to bargain for the employees at Mechanicsville was
clarified when the International filed its unfair labor practice charge
against Media General on April 2, 2001, adopting the February Letter.
The International there stated that it had "requested negotiations" on
February 15, 2001, and that Media General had "declined our request
on March 13, 2001" (emphasis added). The Board’s finding on this
point is supported by substantial evidence, and it is therefore conclu-
sive. Pursuant thereto, this contention must also be rejected.
18 N.L.R.B. v. MEDIA GENERAL OPERATIONS
IV.
Pursuant to the foregoing, we grant the Board’s application for
enforcement and deny Media General’s cross-petition for review.
APPLICATION FOR ENFORCEMENT GRANTED AND
CROSS-PETITION FOR REVIEW DENIED