UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.                                                                    No. 98-1311

QUEENSBORO STEEL CORPORATION,
Respondent.

On Petition for Review of an Order
of the National Labor Relations Board.
(11-CA-17745)

Argued: January 27, 1999

Decided: June 16, 2000

Before WIDENER and MURNAGHAN, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Petition for enforcement granted by unpublished per curiam opinion.

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COUNSEL

ARGUED: Stephen Clay Keim, EDWARDS, BALLARD, CLARK,
BARRETT & CARLSON, P.A., Winston-Salem, North Carolina, for
Queensboro. John Duncan Burgoyne, Assistant General Counsel,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. ON BRIEF: Terry A. Clark, EDWARDS, BALLARD,
CLARK, BARRETT & CARLSON, P.A., Winston-Salem, North
Carolina, for Queensboro. Frederick L. Feinstein, Acting General
Counsel, Linda Sher, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Board.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Queensboro Steel Corporation appeals to this court following a
decision and order by the National Labor Relations Board (the
"Board") finding Queensboro guilty of unfair labor practices in viola-
tion of sections 8(a)(5) and (1) of the National Labor Relations Act
for its refusal to recognize and bargain with the Teamsters Local 391,
International Brotherhood of Teamsters, AFL-CIO following the
Union's election and Board certification. In this context, Queensboro
contests the validity of the election in light of certain events which
Queensboro asserts compromised the fairness of the proceedings. The
Board seeks enforcement of its order directing Queensboro to bargain
with the Union and post appropriate notice. We find that the Board
did not abuse its discretion in certifying the Union and enforce the
Board's order.

Queensboro operates three steel fabrication service facilities -- one
in Wilmington, North Carolina; a second in Greensboro, North Caro-
lina; and a third in Norfolk, Virginia. This case is concerned with a
secret ballot election, conducted by the Board, in which the Union
won the right to represent the employees at Queensboro's Greensboro
facility. All forty-one of the facility's employees voted in a close elec-
tion in which the Union prevailed by a single vote.

During the course of the election, rumors circulated to the effect
that Queensboro had previously bribed the Boilermakers, another
union, paying that union $40,000 in exchange for lighter contracts.1
_________________________________________________________________
1 It is unclear whether this alleged bribe occurred at Queensboro's Wil-
mington facility, where the employees are currently represented by the

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Queensboro's evidence consisted of affidavits which revealed that, on
some four occasions, Queensboro's employees were heard to have
suggested that such occurred. One employee claimed that on one
occasion Teamsters' organizer Chip Roth, in response to another
employee's allegations, asserted something along the lines of "we
work for the employees not the employer" and"we don't take bribes."2

The Union sought certification of the election by the Board, and
following an administrative investigation into the foregoing facts, the
Board concluded 1) that the rumors had been circulated by Queens-
boro employees, not the Union, 2) that those rumors had neither been
condoned nor adopted by the Union, and 3) that even if the Union had
promulgated the rumors, such conduct would not have been sufficient
to set aside the election under Midland National Life Insurance Co.,
263 NLRB 127 (1982). Accordingly, the Board certified the election.

Queensboro refused to recognize the Board's certification and
declined to bargain with the Union. The Union then brought an unfair
labor practice complaint against Queensboro, and the Board granted
summary judgment for the Union finding that Queensboro's conduct
violated sections 8(a)(5) and (1) of the Act.

Queensboro raises a number of issues on appeal, most of which
relate back to the Board's application of Midland to deny its objec-
tions to the election. First, and principally, Queensboro claims that the
Board erred in certifying the election in the face of evidence that mis-
conduct materially affected its results. Second, Queensboro asserts
error in the Board's denial of an evidentiary hearing. Third, Queens-
_________________________________________________________________
Boilermakers, or at an earlier point in time when the employees at the
Greensboro facility themselves were actually represented by the Boiler-
makers. Either way, the implications are substantially the same.

2 Roth did not remember making those specific statements on the spe-
cific occasion in question. He did, however, testify to other occasions in
which similar concerns were raised to him by Queensboro employees.
On those occasions, he claims to have made responses similar to those
attributed to him by Queensboro, which consisted of a denial of knowl-
edge about the bribe and reassurance to the employee that, if elected, the
Union would not engage in similar activity.

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boro contests the application of Midland in light of the fact that the
rumors imputed criminal conduct. Fourth, Queensboro cites error in
the Board's failure to declare certain of its own employees to be
agents of the Union, and finally, Queensboro faults the Board for fail-
ing to evaluate the situation based on a third-party interference stan-
dard.

Board-supervised elections are entitled to a presumption of valid-
ity. NLRB v. Columbia Cable TV Co., Inc., 856 F.2d 636, 638 (4th
Cir. 1988); NLRB v. Coca-Cola Bottling Co. Consol., 132 F.3d 1001,
1003 (4th Cir. 1997). We derive this presumption from the substantial
discretion Congress has bestowed upon the Board"to establish proce-
dures and safeguards `to insure the fair and free choice of bargaining
representatives by employees.'" Coca-Cola Bottling, 132 F.3d at 1003
(quoting NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946)). There
is a "heavy burden" borne by the party seeking to invalidate a Board-
supervised representation election. Coca-Cola Bottling, 132 F.3d at
1003 (quoting NLRB v. Herbert Halperin Distrib. Corp., 826 F.2d
287, 290 (4th Cir. 1987)). In light of those principles, we are of the
opinion that the Board's decision in Midland and our subsequent rec-
ognition of its holding in Case Farms of North Carolina v. NLRB, 128
F.3d 841 (4th Cir. 1997), cert. denied, 523 U.S. 1077 (1998), control
the disposition of this case, requiring that the election results be
upheld and the Board's bargaining order enforced.

In keeping with the establishment of representation election proce-
dures, the Board, in Midland, reverted to an earlier standard of Shop-
ping Kart, 228 N.L.R.B. 1311 (1977), regarding misrepresentations
occurring in the context of campaign statements. See Midland, 263
NLRB at 129-33; Case Farms, 128 F.3d at 844. In doing so, the
Board came to the conclusion that it would "no longer probe into the
truth or falsity of the parties' campaign statements" nor "set elections
aside on the basis of misleading campaign statements." Case Farms,
128 F.3d at 844 (quoting Midland, 263 NLRB at 133).

The single exception annunciated by the Board in Midland was
reserved for forged documents. Midland, 263 NLRB at 133. The
premise behind this particular exception evidences the Board's central
concern that voters not be deceived with respect to the true nature of
the statement in question -- campaign propaganda. Midland, 263

                     4
NLRB at 133. In doing so, the Board displayed its faith in the voters'
ability not to accept what they are told at face value, but instead, to
weigh it according to its potential for bias. Accordingly, the Board
determined that it would "set an election aside not because of the sub-
stance of the representation, but because of the deceptive manner in
which it was made, a manner which renders employees unable to
evaluate the forgery for what it is." Midland , 263 NLRB at 133. The
Board further distinguished misrepresentations, which would not
require the election to be set aside, from other types of campaign mis-
conduct, "such as threats, promises, or the like," which if adequately
proven would continue to warrant set aside. Midland, 263 NLRB at
133.

Given the facts of this case, we cannot say that the conduct at issue
failed under "the permissive Midland standard." Case Farms, 128
F.3d at 845. Even if, as Queensboro suggests, evidence were to prove
1) that the Union was responsible for the rumor started by Queens-
boro employees that the company had bribed another union at some
point in the past and 2) that Queensboro did not in fact do so, that
would still amount to a mere misrepresentation in the campaign state-
ment context. It involved no forgery, and there is nothing in the
record to indicate that the voters' ability to recognize the rumors as
campaign propaganda would be compromised. Further, this conduct
by the Union, if proven, would also, under the Midland standard, fail
to rise to the level of an unfair labor practice.

Queensboro suggests that because the conduct it was rumored to
have engaged in amounted to a violation of criminal law, the rumor
somehow operates as an unfair labor practice as well as a new excep-
tion to the Midland rule. To support this argument, Queensboro relies
on the Board's decision in Hillhaven Rehabilitation Ctr., 325 NLRB
202 (1997). While we would not be inclined to apply Hillhaven to this
case, we need not address it because the Sixth Circuit vacated the por-
tion of Hillhaven concerning unfair labor practices that may have per-
tained to this case. See Rehabilitation and Healthcare Center of Cape
Coral v. NLRB, 178 F.3d 1296 (6th Cir. 1999) (unpublished). The
Board has not followed the Hillhaven rule since the Sixth Circuit's
action, and we decline to do so as well. Because Queensboro has no
other legal support for its argument that we should find a new excep-

                    5
tion to the Midland rule, that argument merits no further consideration
here.

Queensboro also cites NLRB v. VSA, Inc., 24 F.3d 588, 598 n.22
(4th Cir. 1994), and suggests that the closeness of the results in this
particular election warrant its set aside regardless of the Board's pol-
icy not to involve itself in disputes over campaign misrepresentations.
As VSA recognizes, the Supreme Court has suggested that, in the con-
text of close elections, objections require close scrutiny. See VSA, 24
F.3d at 598 n.22 (citing NLRB v. Savvair Mfg. Co., 414 U.S. 270, 278
(1973)). That does not, however, translate into an assumption that
contested elections should be set aside simply because their outcomes
were close. On the contrary, in VSA, this court upheld a contested
election where a change of two votes would have reversed the out-
come of the election finding that "even close scrutiny here discloses
no abuse of discretion." VSA, 24 F.3d at 598 n.22. We come to the
same conclusion in this case.

Queensboro further argues that the Board erred when it failed to
order an evidentiary hearing regarding the election conduct it con-
tests. As we have noted, "[p]re-certification evidentiary hearings are
necessary only if there are substantial and material issues of fact relat-
ing to the validity of the election." NLRB v. VSA, Inc., 24 F.3d at 588,
596 (4th Cir. 1994). Thus, in order to reach this threshold, Queens-
boro must demonstrate some significant dispute surrounding the fac-
tual allegations on which it bases its objections to the election.
Queensboro cannot meet this threshold requirement.

There is little disagreement as to the facts of this case. While Roth
is unable to recall the subject of the bribe coming up at the initial
meeting as alleged by a Queensboro employee's affidavit, Roth does
not dispute that similar discussions occurred during the course of the
campaign. This does not amount to a substantial issue of fact.
Queens-
boro is further concerned that an evidentiary hearing might have bol-
stered its suggestion that its employees were operating as Union
agents when they spread the rumors in question. This becomes irrele-
vant in light of our holding that the Midland rule, upon the facts pre-
sented here, does not consider the truth or falsity of the rumors even

                     6
if the Union was responsible for them. Thus, the Board did not abuse
its discretion by failing to hold an evidentiary hearing.

Finally, we address Queensboro's assertion that, in the event its ini-
tial argument proved false and the Union was not responsible for the
rumors circulated by Queensboro's employees, the possible effect of
those rumors on the election should have been considered under a
third-party interference standard. Were that the case, we do not find
the rumors significant enough to warrant setting aside the election.

We think the rule which should be applied in this case is that of
Intertype Co. v. NLRB, 401 F.2d 41 (4th Cir. 1968). In that case, a
rumor circulated by known union adherents attributed pro-union state-
ments to a highly respected supervisor. The union, however, was not
responsible for the employee who circulated the rumor, which was
false. We held that "the test . . . is whether the rumor, even if
improper, materially affected the election by precluding employees
from exercising their own free choice." Intertype, 401 F.2d at 46. We
are of opinion the rumor in this case, which was not attributable to
the union, did not materially affect the election by precluding employ-
ees from exercising their own free choice.

Accordingly, the election will not be set aside and the petition of
the NLRB is

GRANTED.

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