Opposition Brief — Media General Operations, Inc. v. National Labor Relations Board

No. 04-154 OFFICE OF THE CLERK _

Jn the Supreme Court of the Gnited States

MEDIA GENERAL OPERATIONS, INCORPORATED, DBA

RICHMOND TIMES-DISPATCH, PETITIONER

Uv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

ARTHUR F. ROSENFELD Department of Justice

General Counsel Washington, D.C. 20530-0001

JOHN E. HIGGINGS, JR. (202) 914-2210

Deputy General Counsel

JOHN H. FERGUSON

Associate General Counsel

LINDA J. DREEBEN

Assistant General Counsel

RUTH E. BURDICK

Attorney

National Labor Relations

Board

Washington, D.C. 20570

QUESTIONS PRESENTED

1. Whether the National Labor Relations Board rea-

sonably concluded that the union’s pre-election circu-

lation of a petition signed by employees to express their

support publicly for the union did not interfere with

employee free choice in selecting the union as their

bargaining representative, and therefore did not war-

rant setting aside the election.

2. Whether the National Labor Relations Board

reasonably found that the union made a valid bar-

gaining demand when it filed an unfair labor practice

charge that clarified that an earlier request to bargain

made by its local affiliate was made on the union’s

behalf.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

CCI Constr. Co., 326 N.L.R.B. 1319 (1998) ..........cccccccscsesees

Fall River Dyeing & Finishing Corp. v. NLRB,

I I itch etaiieritinnieninsndantonneinaninnatinnnstnianden

PPI, TRG Tete ects OUD CRIED cnceernsesnsisssvecinesctcancentnsrcene

International Ladies’ Garment Workers’ Union v.

Quality Mfg. Co., 420 U.S. 276 (1975) oc ccccccscscessessseeees

International Union, United Auto. Workers of Am.

v. NLRB, 394 F.2d 757 (D.C. Cir.), cert. denied,

ee I ihciitiinschtihcehieieiietnigninietennenatsntninnsanencnncennne

Keeler Die Cast v. NLRB, 185 F.3d 535 (6th Cir.

1999), cert. denied, 529 U.S. 1018 (2000) wo. eeeceeees

Marysville Travelodge, 233 N.L.R.B. 527 (1977),

enforced sub nom. NLRB v. Cofer, 637 F.2d

Se EE IE, FIELD sntnpetennasnensncinntnsnnninsnninssennamanapmnannnnnnmes

NLRB v. Fosdal, 367 F.2d 784 (7th Cir. 1966) «0.0...

NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973) ............

NLRB v. VSA, Inc., 24 F.3d 588 (4th Cir.),

cert. denied, 513 U.S. 1041 (1994) ..........ccccssscsscessessssessees

NLRB vy. Williams Enters., Inc., 50 F.3d 1280

IIS SIEIIIED Sietipscniiianescivseiendtnlinsincituceaniintinansinnsinnttsmsetinnnmnnennatanntn

Newell Porcelain Co., 307 N.L.R.B. 877 (1992),

enforced sub nom. United Elec. Workers v. NLRB,

FB TG: ET ne INSTITU TEUIES

Nu Skin Int'l, Inc., 307 N.L.R.B. 223 (1992) .......cccceceesees

Peters v. NLRB, 153 F.3d 289 (6th Cir. 1998) .................

(IIT)

IV

Cases—Continued: Page

RC Aluminum Indus., Inc. v. NLRB, 326 F.3d

Se GLA. GE, SUDUEED consacnnicesonscnadansconnbeanbantenibtaphansamiesinneiesnaiaicesion 9,12

Scobell Chem. Co. v. NLRB, 267 F.2d 922 (2d Cir.

TED scctectnisiniinesciianicabiciciiaciii dia aieaiediaiiaieaiiaiboniiantinles )

Stanford Realty Assocs., Inc., 306 N.L.R.B. 1061

CITT ccctocisinickanstuisthdtishastednrsiteceieiibieninamenansiteaittnearimibanadsiaiaaidinanitanionee i)

United Elec. Workers v. NLRB, 986 F.2d 70 (4th Cir.

SETUTED . ceciniciscceeninnninnenideistanntasianaaiiiabantiabaseibaidaidimnipaaantiniammatinn 9,10, 11

United States v. Al-Hamdi, 356 F.3d 564 (4th

CO Be iceiciesissensesnitintaneimnsdolatnniasalldmalabibetbaiemdigitineh 7

United States Postal Serv., 310 N.L.R.B. 391

CITED cencninitensntiscsieisnanicscitetieinciiiultaiaianinninnmeaiidipicinsainidicniieeiininaicidnne 11

Woelke & Romero Framing, Inc. v. NLRB, 456

BE a Ce wiieetinsinicstieiniiantehiepieibenieiasdatatiaisniitabeibitbiniapipianaiiciins 7

Statutes:

National Labor Relations Act, 29 U.S.C. 151 et seq.:

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Jn the Supreme Court of the Gnited States

No. 04-154

MEDIA GENERAL OPERATIONS, INCORPORATED, DBA

RICHMOND TIMES-DISPATCH, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-24a)

is reported at 360 F.3d 434. The decision and order of

the National Labor Relations Board (Board) in the

unfair labor practice proceeding (Pet. App. 25a-36a) is

reported at 338 N.L.R.B. No. 126. The Board’s under-

lying decision and certification of representative (App.,

infra, la-2a) is unreported. The regional director’s

order denying a motion for reconsideration (App., infra,

3a-6a) is unreported.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

March 4, 2004. A petition for rehearing was denied on

May 4, 2004 (Pet. App. 37a-38a). The petition for a writ

of certiorari was filed on Augast 2, 2004. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner publishes the Richmond Times-Dis-

patch, a daily newspaper, and maintains a production

facility in Mechanicsville, Virginia. Pet. App. 29a.

Pursuant to a stipulated election agreement between

petitioner and the International Association of Machin-

ists and Aerospace Workers, AFL-CIO (Union or

International Union), the Board conducted a secret-

ballot election among petitioner’s maintenance em-

ployees on September 22, 2000, which the Union won by

a vote of 16 to 15. Jd. at 3a, 6a.

On September 29, 2000, petitioner filed objections

with the Board’s acting regional director alleging, inter

alia, that the Union had violated “established law” by

circulating a “Vote Yes” petition among employees

before the election. Pet. App. 6a.’ Petitioner submitted

affidavits alleging that, about nine days before the

election, the Union began circulating the petition

among the employees for their signature. Jd. at 3a.

The petition stated, in part, that the « gning employees

“have made a commitment * * * te vote YES” in the

election, and “AUTHORIZE the [Union] to use this

1! Petitioner also alleged that the Union engaged in a variety of

improprieties in the solicitation and circulation of the petition. See

Pet. App. 6a, 12a-16a. The court of appeals rejected those con-

tentions (see id. at 12a-16a), and petitioner has not renewed them

in this Court.

3

petition THROUGH ANY METH D to urge our co-

workers to vote YES.” Jd. at 4a, 40a, 42a. The day

before the election, the Union distributed throughout

the workplace copies of the petition containing the

signatures of 20 employees. Jd. at 5a.

After conducting an investigation, the Board’s acting

regional director issued a report recommending that

the Board overrule petitioner’s objections. Pet. App.

6a. Petitioner filed a motion for reconsideration alleg-

ing that the Union had engaged in objectionable elec-

tion conduct proscribed by NLRB v. Savair Manu-

facturing Co., 414 U.S. 270 (1973). In Savair, the Court

held that a union engaged in objectionable conduct by

inducing employees to sign recognition slips before an

election by offering to waive initiation fees only for

those employees who signed the slips. Jd. at 277-281.

The regional director denied the motion for reconsi-

deration, explaining that Savair was inapplicable be-

cause “the actions of the Union did not involve induce-

ments.” App., infra, 4a. Moreover, the regional director

noted that the Union had asked the employees to sign a

petition that “on its face expressly authorized the

Union to use it through any method to urge co-workers

to vote yes.” Jd. at 5a.

Petitioner filed with the Board exceptions to the

report and to the order denying reconsideration. On

January 24, 2001, the Board adopted the findings of the

report and the order denying reconsideration, over-

ruled petitioner’s objections, and certified the Union as

the employees’ exclusive bargaining representative.

App., infra, la-2a; Pet. App. 7a, 30a.

2. On February 15, 2001, the Union’s local affiliate,

Richmond Lodge No. 10, sent petitioner a letter re-

questing information “relative to the IAM bargaining

unit” and asking for available dates to begin bargaining.

4

Pet. App. 27a-28a, 46a-51a. On March 13, 2001, peti-

tioner replied by letter stating that it would not “recog-

nize or bargain with your union.” Jd. at 7a, 27a-28a. On

April 2, 2001, the Union filed an unfair labor practice

charge with the Board that stated:

The NLRB conducted an election that resulted in

[the Union’s] receiving a majority of the vote and,

after much delay bly] the Employer’s attorney, the

NLRB issued a Certification of Representative on

January 24, 2001. On February 15, 2001, the [Union]

requested negotiations begin * * * and the

Employer declined our request on March 13, 2001.

Id. at 44a. Acting on the charge, the Board’s General

Counsel issued a complaint alleging that petitioner’s

refusal to bargain with the Union violated Section

8(a)(5) and (1) of the National Labor Relations Act

(NLRA), 29 U.S.C. 158(a)(5) and (1). Pet. App. 25a.

Petitioner filed an answer in which it asserted that it

was “under no duty to bargain with [the Union] as the

certification election was tainted by [the Union’s]

objectionable conduct.” Jd. at 8a.

The Board granted summary judgment in favor of

the General Counsel, finding that petitioner’s refusal to

bargain on and after April 2, 2001, violated the Act, and

ordering petitioner to bargain with the Union. Pet.

App. 26a-29a. The Board rejected petitioner’s conten-

tion that the International Union had never made a

bargaining demand. Jd. at 28a. The Board found that,

“even if the February 15 letter” from the local affiliate

—‘was not, in itself, a sufficient demand by the Inter-

national Union, the refusal-to-bargain charge filed by

the International Union on April 2, 2001, which referred

to that letter, clarified any ambiguity as to which entity

was requesting bargaining.” Jbid. The Board observed

5

that the Union’s charge “clearly alleged” that the

February 15 letter had requested that petitioner begin

bargaining and that petitioner had declined “our re-

quest.” Ibid. The Board concluded that “the charge,

together with the letter, constituted a valid demand for

bargaining by the International Union.” /d. at 28a-29a.

On April 23, 2003, petitioner filed a motion for recon-

sideration and a motion to stay the Board’s order, both

of which the Board denied. Jd. at 9a.

_ 8. The court of appeals eu.forced the Board’s order

and denied petitioner’s cross-petition for review. Pet.

App. 1la-24a.

a. The court rejected petitioner’s contention that the

“Vote Yes” petition was “inherently coercive” under

Savair. Pet. App. 1la-12a. The court explained that

“the linchpin of Savair is the linkage between the offer

to waive the initiation fee and a pre-election commit-

ment to support the union. It is this linkage that consti-

tutes the union’s impermissible interference in the

election.” Jbid. (quoting NLRB v. VSA, Inc., 24 F.3d

588, 593 (4th Cir.), cert. denied, 513 U.S. 1041 (1994)).

“Here,” the court concluded, “the International made

no offer to waive the union fees or dues of signing em-

ployees, and the [Savair] decision is easily distinguish-

able.” Id. at 12a.

b. The court also rejected petitioner’s contention

that the Union did not make a valid bargaining demand.

Pet. App. 18a-19a. The court noted that it had pre-

viously “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 bar-

gaining demand.” Jd. at 19a. The court explained that

in this case, “the February Letter, standing alone, may

have constituted an inadequate bargaining request, but

it did not stand alone.” Jbid. Rather, “the Board found

ee

6

that any ambiguity as to which entity was requesting to

bargain for the employees at Mechanicsville was clari-

fied when the International filed its unfair labor prac-

tice charge against Media General on April 2, 2001,

adopting the February Letter.” J/bid. The court

concluded that the “Board’s finding on this point is sup-

ported by substantial evidence.” Jbid.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

another court of appeals. This Court’s review is there-

fore not warranted.

1. Petitioner errs in contending (Pet. 14-16) that the

court of appeals’ decision conflicts with NLRB v. Savair

Manufacturing Co., 414 U.S. 270 (1973). As noted,

Savair held that a union engaged in objectionable

election conduct by offering to waive the initiation fees

for employees who signed recognition slips before the

election. Jd. at 277-281. The Court explained that

“permitting the union to offer to waive an initiation fee

for those employees signing a recognition slip prior to

the election” would allow “the union to buy endorse-

ments and paint a false portrait of employee support

during its election campaign.” Jd. at 277. “In addition,”

the Court noted, some employees, after accepting the

inducement, “would feel obliged to carry through on

their stated intention to support the union.” Jd. at 277-

278.

The court of appeals correctly held Savair to be

“easily distinguishable” from this case. Pet. App. 12a.

Here, the Union did not offer employees an economic or

other inducement to sign the “Vote Yes” petition. As

the court explained, absent a linkage between an

7

inducement and a pre-election commitment to support

the Union, the principles of Savair are not implicated.

Petitioner also contends (Pet. 14, 16) that the Board’s

decision in this case is “arbitrary and inconsistent” with

the Board’s “interpretation of Savair” in Fermont, 286

N.L.R.B. 920 (1987). Petitioner is barred from raising

that claim in this Court because petitioner failed to

urge such an objection before the Board and has alleged

no “extraordinary circumstances” excusing its failure to

do so. 29 U.S.C. 160(e); see Woelke & Romero Fram-

ing, Inc. v. NLRB, 456 U.S. 645, 665-666 (1982); Inter-

national Ladies’ Garment Workers’ Union v. Quality

Mfg. Co., 420 U.S. 276, 281 n.3 (1975). Petitioner raised

that issue for the first time in its reply brief in the court

of appeals, and the court did not address it. See United

States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)

(contentions not raised in the opening brief are aban-

doned).

In any event, the Board’s decision is not inconsistent

with Fermont. In Fermont, the employer sponsored a

contest asking employees to “point out something good

about [the employer] or why everyone should VOTE

NEITHER?” in the election between two unions. 286

N.L.R.B. at 920. Prizes included a 19-inch color tele-

vision, a microwave oven, and a food processor. Ibid.

On the morning of the election, the employer gathered

the employees together, presented the entries, an-

nounced the winners, and asked the winners to come

forward and receive their prizes. Jbid. “On this re-

cord,” the Board found, “it is obvious that the [em-

ployer] was buying endorsements,” as proscribed by

Savair. Ibid.

Petitioner incorrectly asserts (Pet. 15-16) that the

Board in Fermont recognized that a Savair violation

may be found without an unlawful inducement and

8

> 6

based solely on employees’ “sense of obligation to vote

in accordance with expressed sentiments, be they an

individual’s sentiments, or the sentiments of a co-

worker.” Neither the holding of Fermont nor the

language quoted by petitioner (Pet. 15) supports that

assertion. To the contrary, the Board, relying on

Savair, explained in the quoted language that it is the

offer of economic inducements for pre-election support

that gives rise to a false indication of support for the

union and a sense of obligation on the part of some

employees “to carry through on their stated intention

to support the union.” Savair, 414 U.S. at 278; see 286

N.L.R.B. at 920-921.

Indeed, after Fermont, the Board has continued to

recognize that Savair applies only where there is an

inducement in exchange for pre-election support. For

instance, in Nu Skin International, Inc., 307 N.L.R.B.

223 (1992), the Board found that there was no Savair

violation where a union offered employees a “Union

Yes” T-shirt if they signed a “Vote Yes” petition for the

union’s use in the election campaign. The Board con-

cluded that the T-shirts “would not reasonably induce

nonsupporters to sign the petition” because the T-shirts

were “inexpensive items” that “would reasonably be

desirable only to employees who favored the [uJnion

and wanted to proclaim their prounion view.” Id. at

223-224. See also Keeler Die Cast v. NLRB, 185 F.3d '

535, 538-539 (6th Cir. 1999) (upholding Board’s con- ’

clusion that Savair is inapplicable where no inducement |

was offered for signing a “Vote Yes” petition), cert.

denied, 529 U.S. 1018 (2000). Accordingly, the court

correctly upheld the Board’s overruling of petitioner’s

election objection.

2. Petitioner argues (Pet. 17-27) that the court of

appeals erred in holding that the Union made a valid

9

bargaining demand. That claim lacks merit and does

not warrant review.

a. Section 8(a)(5) of the NLRA (29 U.S.C. 158(a)(5))

makes it an unfair labor practice for an employer “to

refuse to bargain collectively with the representatives

of [its] employees.” An employer’s duty to bargain is

triggered by the union’s request for bargaining. See

Fall River Dyeing & Finishing Corp. v. NLRB, 482

U.S. 27, 52-53 (1987).’ If the union’s request is vague,

ambiguous, or confusing, the Board may properly find

_ that the union did not make a valid demand. See, e.g.,

United Elec. Workers v. NLRB, 986 F.2d 70, 76 (4th

Cir. 1993). Where an initial request is unclear, how-

ever, the Board, with court approval, has found that the

employer’s duty to bargain is subsequently triggered

when the union files an unfair labor practice charge that

clarifies the earlier request. See RC Alwminum

Indus., Inc. v. NLRB, 326 F.3d 235, 243 (D.C. Cir.

2003); NLRB v. Williams Enters., Inc., 50 F.3d 1280,

1286 (4th Cir. 1995).

Under those settled principles, the court of appeals

correctly upheld the Board’s finding that the unfair

labor practice charge filed by the Union, together with

the letter requesting bargaining previously sent by the

Union’s local affiliate, constituted a valid demand for

2 A “valid request to bargain need not be made in any parti-

cular form * * * so long as the request clearly indicates a desire

to negotiate and bargain on behalf of the employees.” NLRB v.

Williams Enters., Inc., 50 F.3d 1280, 1286 (4th Cir. 1995) (quoting

Stanford Realty Assocs., Inc., 306 N.L.R.B. 1061, 1066 (1992)). See

also Peters v. NLRB, 153 F.3d 289, 299 (6th Cir. 1998); NLRB v.

Fosdal, 367 F.2d 784, 788 (7th Cir. 1966); Scobell Chem. Co. v.

NLRB, 267 F.2d 922, 925 (2d Cir. 1959); Marysville Travelodge,

233 N.L.R.B. 527, 582 (1977), enforced sub nom. NLRB v. Cofer,

637 F.2d 1309 (9th Cir. 1981).

10

bargaining by the Union. The Union’s charge referred

to the earlier letter and alleged that petitioner denied

“our request” to bargain. Pet. App. 44a. In those cir-

cumstances, the court properly upheld the Board’s

determination that any ambiguity regarding which

entity was requesting bargaining was clarified when

the Union filed its unfair labor practice charge ref-

erencing the February 15 letter. See id. at 19a.

b. Contrary to petitioner’s contention (Pet. 17-21,

24), the court of appeals’ holding that the Union made a

valid bargaining demand is not in conflict with the

established principles that an international union and

its local affiliate are separate and distinct labor organi-

zations, that no automatic agency relationship exists

between them, and that such entities are not inter-

changeable for purposes of an employer’s recognition of

an exclusive, certified bargaining representative. In-

deed, the court correctly acknowledged that “a local

union affiliate, for purposes of the exclusivity of bar-

gaining requirement, is an entity separate and distinct

from its international parent.” Pet. App. 18a. The

court also quoted its holding in United Electrical

Workers, 982 F.2d at 75-76, that, under the facts in that

case, “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 certi-

fied, or from the parent international union, which was

not certified.” Pet. App. 18a. Petitioner’s actual dis-

agreement, therefore, is with the court’s conclusion in

this case that the Union was the entity requesting

11

bargaining.” That fact-bound disagreement does not

warrant further consideration by this Court.‘

Because the Union’s unfair labor practice charge

clarified that the local affiliate’s bargaining request was

on the Union’s behalf, this case is distinct from cases

cited by petitioner (Pet. 20-21) in which an uncertified

union sought to “inject itself . . . into a labor relation-

ship where there is a certification.” Newell Porcelain

Co., 307 N.L.R.B. 877, 878 (1992) (citation omitted),

enforced sub nom. United Elec. Workers v. NLRB, 986

F.2d 70 (4th Cir. 1993). In Newell Porcelain, the

employer was asked to recognize an uncertified union,

which refused to clarify that the demand was on behalf

of the certified entity. 307 N.L.R.B. at 878. See Inter-

national Union, United Auto Workers v. NLRB, 394

* The Union’s use of its local affiliate to send the initial letter on

its behalf was neither inappropriate nor uncommon. See CCI

Constr. Co., 326 N.L.R.B. 1319, 1319 (1998) Citis * * * well

established that an exclusive [bargaining] representative ‘is em-

powered to designate and authorize agents, including other labor

organizations, to act on its behalf.’ ”) (quoting United States Postal

Serv., 310 N.L.R.B. 391, 391 (1993)).

4 Petitioner fails to acknowledge the Board’s finding (Pet. App.

30a) that petitioner’s refusal to bargain commenced only as of April

2, 2001, the date the Union filed the unfair labor practice charge.

Because there is no finding that petitioner unlawfully refused to

bargain solely on the basis of the February 15 letter, many of

petitioner’s arguments are wide of the mark. For example, this

case does not implicate the issues of whether, prior to the filing of

the unfair labor practice charge, the Union designated its local

affiliate to bargain as its agent or notified petitioner of any such

designation. See Pet. 20-22. For the same reason, there is no

merit to petitioner’s assertions (Pet. 26, 27) that the Board held

that the charge “retroactively” put petitioner on notice of a dele-

gation to the Union’s local affiliate or that the Board’s decision

would require employers to risk violating the NLRA by bar-

gaining with an uncertified entity.

12

F.2d 757, 760-761 (D.C. Cir.) (employer excused from

bargaining with uncertified local union that formally

requested recognition as the employees’ exclusive

bargaining representative, where international union

was certified), cert. denied, 393 U.S. 831 (1968).

c. Petitioner errs in contending (Pet. 27) that the

court of appeals held that an unfair labor practice

charge, standing alone, constitutes a bargaining de-

mand. The court did not so hold. Rather, it held that

the February 15 letter and the unfair labor practice

charge together constituted a valid bargaining demand.

See Pet. App. 19a. Contrary to petitioner’s assertion

(Pet. 27), therefore, the decision below is consistent on

that score with RC Aluminum, where the D.C. Circuit

observed that it did not need to “go so far as” to say

“that a charge alone could constitute a valid demand.”

326 F.3d at 248. Here, it was similarly unnecessary for

the court to reach that issue, and it did not do so.

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

ARTHUR F. ROSENFELD

General Counsel

JOHN E. HIGGINGS, JR.

Deputy General Counsel

JOHN H. FERGUSON

Associate General Counsel

LINDA J. DREEBEN

Assistant General Counsel

RUTH E. BURDICK

Attorney

National Labor Relations

Board

OCTOBER 2004

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

CASE 5-RC-15077

MEDIA GENERAL OPERATIONS, INC. d/b/a RICHMOND

TIMES-DISPATCH, EMPLOYER

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS &

AEROSPACE WoRKERS, AFL-CIO, PETITIONER

DECISION AND CERTIFICATION OF

REPRESENTATIVE

The National Labor Relations Board, by a three

member panel, has considered objections to an election

held on August 25, 2000, the Acting Regional Director’s

report recommending disposition of them, and the

Regional Director’s Order Denying the Employer’s

Motion for Reconsideration of the Acting Regional

Director’s report. The election was conducted pursuant

to a Stipulated Election Agreement. The tally of

ballots shows 16 ballots for and 15 ballots against the

Petitioner, with no challenged ballots.

The Board has reviewed the record in light of the

exceptions and briefs, has adopted the Acting Regional

Director’s and Regional Director’s findings and recom-

mendations, and finds that a certification of representa-

tive should be issued.

(la)

2a

CERTIFICATION OF REPRESENTATIVE

IT IS CERTIFIED that majority of the valid ballots

have been cast for International Association of Machin-

ists & Aerospace Workers, AFL-CIO, and that it is the

exclusive collective-bargaining representative of the

employees in the following appropriate unit:

All 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 em-

ployed by the Employer at its Hanover County,

Mechanicsville, VA facility; but excluding all other

employees, office clerical employees, professional

and managerial employees, watchmen and guards

and supervisors as defined in the Act.

Dated, Washington, D.C., January 24, 2001.

John C. Truesdale, Chairman

Peter J. Hurtgen, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS

BOARD

3a

UNITED STATES GOVERNMENT

NATIONAL LABOR RELATIONS BOARD

REGION 5

CASE 5-RC-15077

MEDIA GENERAL OPERATIONS, INC. d/b/a RICHMOND

TIMES-DISPATCH, EMPLOYER

AND

INTERNATIONAL ASSOCIATION OF MACHINISTS &

AEROSPACE WORKERS, AFL-CIO, PETITIONER

ORDER DENYING MOTION FOR

RECONSIDERATION

The Employer’s Motion for Reconsideration of the

Acting Regional Director’s Report on Objections has

been carefully considered. The Employer’s Motion is

denied. As explained below, the Employer fails to raise

a substantial and material issue with respect to the

circumstances surrounding the signing or distribution

of the employee petition sufficient to warrant a hearing.

The Employer argues that the Acting Regional

Director erred by failing to conclude that Richard G.

Tingler’s name on the “We Are Voting Yes” petition at

issue was a forgery. The Employer acknowledges, how-

ever, that it did not produce a timely handwriting

exemplar from employee Tingler in support of its objec-

tions. The Employer also concedes what is obvious,

that is, William B. Slayton signed his name in cursive in

the space next to where Richard Tingler signed his

name in printed form, and then Mr. Slayton again

printed and signed his name two lines below. In

4a

addition, the exemplars of Mr. Tingler’s hand-printed

name in the Appendixes attached to the Employer’s

Motion for Reconsideration fail to establish a forgery.

In fact, an examination of the hand-printed exemplars

and Mr. Tingler’s hand-printed name on the petition

reveals that the writings appear to be virtually identi-

cal. Most importantly, however, Mr. Tingler confirmed

during the Region’s investigation of the Employer’s

objections that he placed his name on the petition and

that no one coerced him to do so. That fact remains

unquestioned and unrebutted. In these circumstances,

the Employer’s contention that it was prejudiced by

denial of a hearing on this issue lacks merit.

Apart from the alleged forgery, the Employer also

argues that the Union somehow improperly used an

employee petition to paint a false portrait of employee

support during the election campaign. In making this

argument, the Employer relies on NLRB v. Savair, 414

U.S. 270 (1973), and its progeny. Savair and progeny

are inapposite. The Supreme Court in Savair con-

demned the union’s preelection tactic of offering to

waive initiation fees for employees who signed authori-

zation cards before the election. The Court found this

to be an improper inducement, since it would allow

unions to “buy endorsements and paint a false portrait

of employee support during its election campaign.” Id.

at 277. Where, however, the offer is not limited to

those who sign authorization cards before the election,

but also is available to employees who sign cards after

the election, the offer is not objectionable. Id. at 274

n.4. In the instant case, the actions of the Union did not

involve inducements or coercion. The Union did not

offer any inducements or confer or promise any benefits

in its effort to ascertain the level of its support among

5a

employees. Rather, it asked them to sign the “We Are

Voting Yes” petition, which on its face expressly

authorized the Union to use it through any method to

urge co-workers to vote yes. There is no evidence to

support the Employer’s contention that “(t]he union

‘railroaded’ sixteen employees to vote “yes” in the

election by inducing them to sign their petition, then

using it against them on the eve and morning of the

vote.” 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.

Finally, the Employer’s reliance on Comcast Cable-

vision-Taylor v. NLRB, [232 F.3d 490], 2000 WL

1692757 (6th Cir. 2000), and Harborside Healthcare v.

NLRB, 230 F.3d 206 (6th Cir. 2000), is misplaced.

Unlike the court’s finding in Comcast, here the Peti-

tioner made no promise of benefit. In Harborside, the

court found that a supervisor’s active support of, and

solicitation of authorization cards for, the union re-

quired that the election be set aside. No supervisory

involvement is alleged here. Hence, even assuming the

Sixth Circuit precedents properly are considered in this

6a

proceeding,’ their application does not require a

different result.

In sum, although the election was decided by only

one vote, the evidence proffered in support of the

Employer’s Objections and Motion for Reconsideration

raises no substantial and material issues that warrant a

hearing or departure from the recommendation that a

Certification of Representative issue.

Dated at Baltimore, Maryland this 27th day of

December, 2000.

/s/) WAYNE R. GOLD

WAYNE R. GOLD,

Regional Director

National Labor Relations

Board, Region 5

103 S. Gay Street, 8th Floor

Baltimore, Maryland 21202

! In this regard, I note that this proceeding arises within the

geographic area served by the United States Court of Appeals for

the Fourth Circuit.