UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-2502

MAIL CONTRACTORS OF AMERICA, INCORPORATED,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent,

TEAMSTERS LOCAL 470,

Intervenor.

No. 04-1050

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

MAIL CONTRACTORS OF AMERICA, INCORPORATED,

Respondent.

On Petition for Review and Cross-application for Enforcement of an

Order of the National Labor Relations Board. (4-CA-32337)

Submitted: September 23, 2004 Decided: February 15, 2005
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Before WIDENER, KING, and DUNCAN, Circuit Judges.

Petition for review denied; cross-application for enforcement

granted by unpublished opinion. Judge Duncan wrote the majority

opinion, in which Judge King concurred. Judge Widener wrote a

separate opinion concurring in the result.

Jeffrey W. Pagano, Jonathan A. Moskowitz, Herbert I. Meyer, KING,

PAGANO & HARRISON, New York, New York, for Mail Contractors of

America, Inc. 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, Christopher W.

Young, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the

Board. William H. Haller, FREEDMAN AND LORRY, P.C., Philadelphia,

Pennsylvania, for Intervenor.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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DUNCAN, Circuit Judge:

Mail Contractors of America, Inc. (MCA) petitions for review

of the final order of the National Labor Relations Board (NLRB) in

an unfair labor practice proceeding, and the NLRB has filed a

cross-application for enforcement of its order. The order at issue

directed MCA to negotiate with Local 470 of the International

Brotherhood of Teamsters, AFL-CIO (Local 470), as the newly

certified collective-bargaining representative of MCA’s employees.

At the proceeding, MCA admitted its refusal to bargain with Local

470 but asserted that it was entitled to do so based on two

challenges it had raised in the earlier election certification

proceeding that resulted in Local 470 being certified as the

collective bargaining representative for MCA’s employees. Because

we find that the NLRB’s decision is reasonable and based upon

substantial evidence, we deny MCA’s petition and grant the NLRB’s

cross-application for enforcement.

I.

On April 15, 2003, Local 470 petitioned the NLRB to be

recognized as the collective bargaining representative of all fulltime and regular part-time drivers and mechanics employed by MCA at

its distribution facilities in Philadelphia, Pennsylvania and

Swedesboro, New Jersey. Local 470 requested that employees

eligible to vote on the matter be allowed to submit their ballots
1

Because the NLRB’s certification of Local 470 as

representative is not a final “order” subject to review, “review of

certification proceedings must await a final order by the [NLRB] in

an unfair labor practice proceeding (often called a ‘technical

refusal to bargain’)” under 29 U.S.C. §§ 160(e), (f) (2000).

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by mail between May 30, 2003 and June 16, 2003. Forty-one of the

forty-seven employees eligible to vote returned ballots by the

deadline, and a majority of twenty-eight voted to appoint Local 470

as their representative. The NLRB’s Regional Director certified

the results on June 17, 2003.

MCA filed objections to the election three days later, arguing

that Local 470 had engaged in two forms of prohibited

electioneering. First, MCA alleged that Local 470 had mailed a

leaflet entitled “WHO IS KIDDING WHOM” to the homes of eligible

voters that discussed purported misrepresentations by MCA regarding

the consequences of unionization. Second, MCA alleged that Local

470 had programmed the screen-saver on a computer terminal used by

voting employees to continuously scroll the message “VOTE YES LOCAL

470 AND JESUS WILL FORGIVE YOUR SINS.” J.A. 11-12. The Regional

Director overruled MCA’s objections, finding that MCA had failed to

sustain its burden of proof as to each allegation and that both

objections were predicated on dubious extensions of NLRB rulings.

On August 20, 2003, the NLRB adopted the Regional Director’s

findings and recommendations.

In order to secure further review of the NLRB’s certification

decision,1 MCA refused to bargain with Local 470, precipitating the
Family Serv. Agency San Francisco v. NLRB, 163 F.3d 1369, 1373 n.2

(D.C. Cir. 1999) (citing Am. Fed’n of Labor v. NLRB, 308 U.S. 401

(1940)). The certification proceeding then becomes part of the

record for review in the unfair labor practice case pursuant to 29

U.S.C. § 159(d) (2000). See id.

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commencement of an unfair labor practice proceeding. In that

proceeding, MCA simply reiterated its objections to the validity of

the election without presenting new evidence. Because MCA failed

to allege new legal or factual issues in its defense to the unfair

labor practice charge, the NLRB entered an order granted summary

judgement against MCA. MCA thereafter petitioned this court for

review, and the NLRB filed its cross-application for enforcement.

II.

This court will uphold the certification of an NLRB-supervised

election “[s]o long as the NLRB’s decision is reasonable and based

upon substantial evidence in the record considered as a whole.” 

Elizabethtown Gas Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000).

Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion,” Consol.

Diesel Co. v. NLRB, 263 F.3d 345, 351 (4th Cir. 2001) (internal

quotation omitted). Additionally, “[t]he results of an

NLRB-supervised representative election are presumptively valid.”

NLRB v. Ky. Tenn. Clay Co., 295 F.3d 436, 441 (4th Cir. 2002)

(internal quotations omitted). Consequently, the challenging party

must bear the heavy burden of proving, by specific evidence, both
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that improprieties occurred and that these improprieties prevented

a fair election. By extension, “minor violations . . . of

‘policy,’ having no apparent affect on an election result, may not

serve as the basis to overturn such election.” Elizabethtown Gas,

212 F.3d at 268; Case Farms of N.C., Inc. v. NLRB, 128 F.3d 841,

844 (4th Cir. 1997) (noting that while the NLRB’s goal in

supervising elections is to create “laboratory conditions” in which

to ascertain the desires of the employees,“elections do not occur

in a laboratory,” and, accordingly, “the actual facts must be

assessed in the light of realistic standards of human conduct”

(internal quotations omitted)).

A.

Turning to MCA’s first allegation, that Local 470 committed

prohibited electioneering by mailing the “WHO IS KIDDING WHOM”

pamphlet to the homes of eligible voters, we find no error. In

support of its claim, MCA presented a copy of the leaflet and an

envelope bearing a United States Mail postmark from which it had

redacted the addressee. MCA alleges, without additional support,

that this envelope was sent to an eligible voter and received

during the balloting period. Based on this evidence, MCA argues

Local 470 violated the rule announced in Milchem, Inc., 170 NLRB

362 (1968), in which the NLRB set aside the results of an election
2

In resolving MCA’s objection, we assume without deciding that

the Milchem rule applies to elections by mail ballot.

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because a union representative spoke with employees as they waited

in line to vote.2

 

We agree with the NLRB that MCA’s evidence is inadequate to

sustain this objection. The party objecting to the results of a

certification election bears an affirmative burden of “adducing

prima facie facts that, if proven true, would invalidate the

election.” NLRB v. McCarty Farms, Inc., 24 F.3d 725, 728 (5th

Cir. 1994) (emphasis added); see also NLRB v. Regional Home Care

Servs., Inc., 237 F.3d 62, 67 (1st Cir. 2001) (“The side claiming

taint of an election, or any unfairness that warrants the election

being set aside, bears the burden of proof on the issue.”). Thus,

MCA must present evidence that Local 470 a) engaged in the

equivalent of “prolonged conversations,” b) with an employee

eligible to vote, c) before the employee cast his or her ballot.

See NLRB v. WFMT, 997 F.2d 269, 274-75 (7th Cir. 1993) (discussing

Milchem).

Conclusory allegations as to the Milchem elements are

insufficient to satisfy the heavy burden attendant to proving an

election violation. See Selkirk Metalbestos v. NLRB, 116 F.3d 782,

787 (5th Cir. 1997). There is nothing in the record to support

MCA’s assertion that the pamphlet was actually received by eligible

voters during the voting period, that any of the voters had yet to
3To the extent MCA argues its otherwise unsupported

allegations should be accepted as fact because Local 470 did not

present contrary evidence, we note that Universal Camera Corp. v.

NLRB, 340 U.S. 474 (1951), concluded that the substantial evidence

standard requires the petitioner “do more than create a suspicion

of the existence of the fact to be established.” Id. at 477

(internal quotations omitted and emphasis added).

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vote when it was received, or even that Local 470 sent it. In

light of these and other deficiencies, we find no reason to

overturn the NLRB’s decision that MCA failed to demonstrate

prohibited electioneering with respect to the “WHO IS KIDDING WHOM”

pamphlets.3

B.

We find MCA’s second objection, predicated on an extension of

the rule in Peerless Plywood Co., 107 NLRB 427 (1953) (prohibiting

employers from giving mass “captive audience” speeches to employees

during the period beginning 24 hours before the actual balloting

period begins), to be equally lacking in merit. In its objection,

MCA alleged that an agent of Local 470 programmed the screen saver

on a computer in the employees’ work room to scroll the words “VOTE

YES LOCAL 470 AND JESUS WILL FORGIVE YOUR SINS.” MCA argues that

this message constituted mass speech to the “captive audience” of

employees on shift on the three days during which the message was

displayed, as MCA used this computer terminal to communicate safety

messages to the drivers at that facility.
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In Peerless Plywood the NLRB explicitly prohibited employers

and unions “from making election speeches on company time to massed

assemblies of employees within 24 hours before the scheduled time

for conducting an election.” 107 NLRB at 429. However, the NLRB

later clarified that Peerless Plywood does not prevent either the

employer or the union from campaigning, even during the “Plywood”

period, “through mailings to employees at their homes, [and] in the

workplace, where they can distribute and post literature,

communicate with employees one-on-one, and even continue to conduct

mass meetings, as long as the meetings are on the employees’ own

time and attendance is not mandatory.” San Diego Gas & Elec., 325

NLRB 1143, 1146 (1998) (emphasis added). The screen saver message

falls well within the scope of such permitted conduct.

Additionally, a scrolling message on a single computer is

dissimilar from the “captive audience” speech at issue in Peerless

Plywood, as it lacks the potential “to create a mass psychology

which overrides arguments made through other campaign media.” 107

NLRB at 429. 

MCA’s Peerless Plywood objection further suffers from the same

evidentiary deficiencies that doomed its Milchem objection. MCA

offers nothing beyond bare allegations that Local 470 was

responsible for generating the screen saver message or that any of

the employees working at MCA’s facility on the weekend when the

screen saver message was displayed could have seen it. MCA’s
4Similarly, MCA offers no basis on which to constructively

charge Local 470 with responsibility or to assume that the

employees witnessed the message. Although actions taken by a

“Union adherent” may nevertheless be “sufficiently substantial in

nature to create a general environment of fear and reprisal such as

to render a free choice of representation impossible,” and thus

require that the election be voided, Methodist Home v. NLRB, 596

F.2d 1173, 1183 (4th Cir. 1979), the screen saver message is so

innocuous as to make Methodist Home inapposite. 

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unsupported assertions fall short of its obligation to provide

“specific evidence of specific [violations].”4 Selkirk

Metalbestos, 116 F.3d at 787. 

III.

In light of the foregoing, we find that MCA’s objections to

the certification election were meritless. The NLRB precedents on

which MCA relied were easily distinguishable, particularly given

the paucity of evidence adduced by MCA. Accordingly, we deny MCA’s

petition for review and grant the NLRB’s cross-application for

enforcement of its order.

 PETITION FOR REVIEW DENIED;

 CROSS-APPLICATION FOR

 ENFORCEMENT GRANTED

 
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WIDENER, Circuit Judge, concurring:

I concur in the result.