N.L.R.B. v. Media General Operations, Inc.
| Decision Date | 04 March 2004 |
| Docket Number | No. 03-1566.,No. 03-1469.,03-1469.,03-1566. |
| Citation | 360 F.3d 434 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a Richmond Times-Dispatch, Respondent. Media General Operations, Incorporated, d/b/a Richmond Times-Dispatch, Petitioner, v. National Labor Relations Board, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
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.
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.
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 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 cross-petitioned 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.
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!
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 NLRB-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 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 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 representation.
On September 29, 2000, Media General filed objections to conduct affecting the results of the election with the Board's Regional Director.2 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 collective-bargaining 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,
On April 2, 2001, the International filed with the Regional Director 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 ...
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