PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

v.  No. 03-1469 MEDIA GENERAL OPERATIONS,

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.
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, Deputy Associate General Counsel, Fred L. Cornnell, Supervisory Attorney, 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 TimesDispatch. 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 Association of Machinists and Aerospace Workers, AFL-CIO (the "International" or "IAM") as the exclusive bargaining representative of

certain Media General employees. Id. Media General has crosspetitioned for our review of the Order. As explained below, we grant

the Board’s application for enforcement and we deny Media General’s cross-petition for review. 

2 NLRB v. MEDIA GENERAL OPERATIONS
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 representation by the International in the upcoming election (the "Vote Yes Petition"). 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! 

1Pursuant to the Stipulated Election Agreement, the bargaining unit

consisted of all of Media General’s full-time and regular part-time maintenance 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. 

NLRB v. MEDIA GENERAL OPERATIONS 3
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 representation and of their right to choose not to attend the International’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 Friday. 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

4 NLRB v. MEDIA GENERAL OPERATIONS
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 Petition 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 column 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 secretballot 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 representation. 

B.

On September 29, 2000, Media General filed objections to conduct

affecting the results of the election with the Board’s Regional Director.2

2The 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 "Regional Director." 

NLRB v. MEDIA GENERAL OPERATIONS 5
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 reconsideration 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 collectivebargaining representative of the employees in the proposed bargaining

unit. Media General, Case 5-RC-15077 (Jan. 24, 2001) (the "Certification 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 General 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 TimesDispatch declines to recognize or bargain with your union." 

On April 2, 2001, the International filed with the Regional Director

3The 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 confirms this." 

6 NLRB v. MEDIA GENERAL OPERATIONS
an unfair labor practice charge against Media General.4

 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 International 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 certification election was tainted by IAM’s objectionable conduct. IAM’s

objectionable conduct prevented voters from freely and fairly selecting whether or not to be represented." 

4An investigation of an alleged unfair labor practice is initiated by filing a charge with the Regional Director for the Board Region in which

the alleged violation occurred. 29 C.F.R. § 101.2. 

5Pursuant 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 employees 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 representatives of their own choosing, and to engage in other concerted 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 representatives of his employees . . . ." Id. § 158(a)(5). 

6The 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. 

NLRB v. MEDIA GENERAL OPERATIONS 7
On May 11, 2001, the Board’s General Counsel moved for summary 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 reiterated 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 dispute, 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 International. 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). 

7The General Counsel of the Board is responsible for prosecuting complaints before the Board. 29 U.S.C. § 153(d). 

8 NLRB v. MEDIA GENERAL OPERATIONS
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 election to be valid, and we may overturn such an election only if the

Board has clearly abused its discretion. NLRB v. Maryland Ambulance 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 improprieties occurred, but also that they prevented a fair election." Elizabethtown 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 "supported 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 contentions in turn. 

A.

Media General first asserts that the Certification Decision constituted an abuse of discretion because the International had "intimidated, threatened, and coerced" employees into signing the Vote Yes

Petition and into ultimately voting for representation by the International. Accordingly, Media General contends that it is under no duty

to recognize the International as the exclusive collective-bargaining

NLRB v. MEDIA GENERAL OPERATIONS 9
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 decision 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 employees to vote for the union . . . ." Id. at 277. As we have explained, however, "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 interference 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 contends that two remarks made by an International representative at a

10 NLRB v. MEDIA GENERAL OPERATIONS
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 relevant facts and deciding whether the union’s conduct interfered with

a reasonable employee’s free and fair choice in a representation election lies with the Board. Id.

Secondly, we have recognized that election campaigns, by their

nature, are rough and tumble affairs, and they typically involve elements 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 Bottling 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 ‘exaggerations, hyperbole, and appeals to emotions are to be expected.’") (citations omitted)). 

In the circumstances of this dispute, the Regional Director found

that a reasonable employee would not have felt coerced into voting

NLRB v. MEDIA GENERAL OPERATIONS 11
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 nothing" and that the employees could still vote "NO" in the election; and

(2) after learning about the Vote Yes Petition, Media General circulated the Company Memorandum to all employees in the proposed

bargaining unit, explaining that they had the right to vote against representation 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 evidence. 

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 influenced to sign the petition by the group dynamic or even a feeling

of peer pressure, and then have had second thoughts about having 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 correctly 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). 

9We 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 International supporters. Nothing in the record suggests that the International

circulated the Vote Yes Petition to ensure that Media General would discriminate 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." 

12 NLRB v. MEDIA GENERAL OPERATIONS
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 General 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 initial claim that Tingler’s printed name was a forgery. It then acknowledged that "Mr. Tingler’s hand-printed name on the petition is

identical to the examples of Mr. Tingler’s hand-printed name supplied" with the reconsideration request. Media General’s second forgery 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: 

NLRB v. MEDIA GENERAL OPERATIONS 13
Region 5 conducted a six (6)-week investigation to declare,

initially, that the signature on the right column that corresponded to Tingler’s printed name was unquestionably

Tingler’s signature. On reconsideration, after receiving copies of Tingler’s signature, Region 5 declared that the signature was unquestionably not Tingler’s signature. This

explicit inconsistency alone entitled Richmond TimesDispatch 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 Reconsideration, was responding to Media General’s second forgery theory, concerning 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 apparent on the face of the Vote Yes Petition.10

10Equally 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 misrepresentation because only sixteen employees actually voted for representation, is untenable. As we have explained, the Board considers employees

to be "‘mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it.’" Case Farms of North Carolina, 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 representation. 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. 

14 NLRB v. MEDIA GENERAL OPERATIONS
C.

Media General next contends that the Board erred in failing to conduct a hearing on Media General’s objections to the International’s

pre-election conduct. On this point, we have explained that "[p]recertification evidentiary hearings are necessary only if there are substantial and material issues of fact relating to the validity of the election." 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 evidentiary 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 affidavits 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 finding of no coercion and rejected Media General’s second forgery theory. 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 consti11Media General suggests that, because the election was decided by a

close vote, it was necessarily entitled to a pre-certification evidentiary

NLRB v. MEDIA GENERAL OPERATIONS 15
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 Manufacturing Co., 190 F.3d 742, 749 (6th Cir. 1999), relied on by Media

General, is readily distinguishable. In Gormac, the union had circulated a vote yes petition in the employer’s offices three hours before

the election, and the court ruled that the Board had abused its discretion 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 confidentiality; 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. 

16 NLRB v. MEDIA GENERAL OPERATIONS
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 parent 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 bargain (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 particular 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 conclusive. Pursuant thereto, this contention must also be rejected.

NLRB v. MEDIA GENERAL OPERATIONS 17
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

18 NLRB v. MEDIA GENERAL OPERATIONS