Court Orders a Do-Over In NLRB's Certification of Union as Exclusive Representative

In an interesting private sector unfair labor practice case, an Atlantic City casino has won an appeals court decision setting aside the NLRB’s decision finding that Trump Plaza had violated labor laws when it refused to bargain with a union that the hotel claimed had been improperly certified by the Board in the first place. (Trump Plaza Associates v National Labor Relations Board, CADC No. 10-1412 (5/11/12))

While not specifically involving the federal sector, the facts that gave rise to the court tossing the case back to the NLRB to try again demonstrate that unions can in fact step over the line in organizing campaigns.

According to the court’s decision, in 2007 the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“Union”) campaigned citywide to represent the card dealers at several Atlantic City casinos. The Union enlisted support of numerous government officials—local, state and federal—and widely publicized their support. A campaign leaflet included signatures of 60 state legislators as well as letters from government types expressing support for the Union and its efforts. (Opinion pp. 2-3)

Just a few days before the actual election, the Union held a public ceremony with participation of U.S. Congressman Robert Andrews, a state senator, a state assemblyman, a few other public officials, at least one local TV station, and some dealers from Trump Plaza. Billed as a “mock card-check,” and apparently led by Rep. Andrews while the TV cameras rolled, the three elected officials signed a document called “Certification of Majority Status.” This “Certification” indicated the officials had “conducted a confidential examination of Union authorization cards … in accordance with NLRB rules…” and a majority of the Trump Plaza’s dealers had “authorized” representation by the Union. (pp. 3-4)

The evening TV news covered the ceremony and reported “the results of the card-check showed certification of majority status for forming a union at Trump Plaza…” (p. 4) At the very tail end of the news report it was noted that the actual vote would be a few days later. Apparently every one of the voting class worked in the local TV broadcast area. The Union made copies of the “mock” certification available to dealers in the Union hall. When the actual vote was held, the Union won hands down (324 to 149). (p. 5)

As the appeals court noted in its opinion, “While the Union had won the hand, Trump Plaza did not fold.” (p. 5) The casino challenged the Union’s election based on its misleading voters through the mock card check ceremony and by indicating that the “government—including the NLRB—‘endorsed and supported the Union in the election….undermining governmental (and NLRB) neutrality.’ “ (p. 5)

NLRB brushed aside the casino’s objections and certified the Union as the exclusive bargaining representative of the Trump Towers dealers. The casino refused to bargain with the Union and the NLRB General Counsel filed a complaint against the casino. Trump Plaza admitted that it refused to bargain but challenged the certification of the Union by NLRB. When the Board refused to rule in favor of Trump Towers, the casino took the NLRB to court. (pp. 6-7)

The appeals court was troubled by the mock card check ceremony, holding that the NLRB was “plainly wrong…” when it concluded tat there was no evidence that information on the mock card check had been disseminated. The court pointed to what it considered plenty of evidence of the dissemination of the information that the Board “ignored”–the TV and newspaper coverage, its reach to the voters, the presence of Trump Plaza dealers at the event, the display of the “mock” certification poster for all to see.  (p. 16)

The court has tossed out the NLRB order, sent the case back to the Board and ordered a do-over.

Trump Plaza v NLRB 10-1412

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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