ALJ Recommends UAW Be Certified
To Represent Dealers at Trump Plaza

A National Labor Relations Board administrative law judge June 29 overruled objections filed by Trump Plaza Hotel and Casino to a March 31 representation election won by the United Auto Workers and recommended that UAW be certified to represent some 530 dealers at the company's Atlantic City, N.J., property (Trump Plaza Assocs. d/b/a Trump Plaza Hotel and Casino, NLRB ALJ, No. 4-RC-21263, 6/29/07.
ALJ Robert A. Giannasi found that the employer did not meet its burden of proving that statements made prior to the election by three local and federal elected officials and a member of the clergy that the union had received a majority of signed union authorization cards "had a reasonable tendency to interfere with the board election."

As part of a citywide organizing drive, UAW filed a petition with NLRB Feb. 15, 2007, seeking an election among the dealers at Trump Plaza. On Feb. 17, UAW informed the company that a majority of the dealers had designated the union and asked Trump to agree to a card-check authorization procedure. The company never replied to the UAW letter.

The parties agreed to details of an NLRB election to be held March 31. Once the election date was set, the employer engaged in a "vigorous campaign" urging the dealers to vote "no" in the election, according to the ALJ's decision.

The first election among dealers in the citywide drive was held March 17 at Caesar's Atlantic City. Prior to that election, the union obtained endorsements from local and federal elected officials, who issued letters and resolutions supporting the union's overall campaign to organize all the dealers in Atlantic City. The letters were posted on the union's Web site.

On March 22, in advance of the March 31 election at Trump Plaza, the union sent those dealers a letter that included attachments of earlier letters of support from several congressional leaders. Those letters expressed support for the workers' right to join a union and also support of the pending Employee Free Choice Act (H.R. 800, S. 1041) that would provide for union recognition based solely on authorization cards. EFCA was passed in the House March 1 by a 241-185 vote, but supporters in the Senate fell short of the 60 votes needed to limit debate and proceed to final consideration of the bill (123 DLR AA-2, 6/27/07) .

Officials Verified Majority Status at Press Briefing

One week prior to the election, the union held a press conference at which three elected officials--U.S. Rep. Robert Andrews (D-N.J.), New Jersey state Sen. James Sonny McCullough (R), and New Jersey state Assemblyman Jim Whelan (D), signed and displayed a "so-called Certification of Majority Status." The document stated that the three officials had examined the union authorization cards and verified that a majority of the dealers had authorized UAW to represent them.
That evening, a local television station broadcast a story about the press conference and stated that Andrews had led a bipartisan card-check authorization for the dealers at Trump Plaza. After showing Andrews expressing his support for the dealers, the reporter said the three lawmakers and a clergyman signed the card count to confirm verification that the dealers want to join the union. The broadcast ended with the reporter stating that the "actual vote will be held this Saturday."

After the union won the election by a vote of 324-149 (63 DLR A-8, 4/3/07) , the employer filed a number of objections alleging that the union, in conjunction with representatives of the federal government, had destroyed the laboratory conditions necessary for a free and fair election by certifying the union's majority status through a "sham card check" creating the false impression that a card check had been conducted and the union was the certified representative of the dealers before an election was held. It also alleged that the union, in conjunction with officials of federal, state, and local governments, misrepresented to voters on television, on the union's Web site, and through written communications that NLRB had endorsed and supported the union in the election (70 DLR A-3, 4/12/07) .

Objector Has Heavy Burden of Proof

According to the ALJ, when an objection is filed alleging that the laboratory conditions of an election were violated, the objecting party has a "heavy burden of proof" to show that the conduct interfered with the employees' free and uncoerced choice in the election.
The board repeatedly has held that letters of endorsement by elected officials do not "compromise the board's neutrality, absent specific evidence that voters could not discern the difference between statements about labor relations by those officials and statements by the board and its representatives," the ALJ said. Citing a board decision in Chipman Union (316 N.L.R.B. No. 107. 148 LRRM 1161 (1995)), Giannasi said the board made clear that the objector "must show that the employees could not distinguish between statements of other governmental officials and statements by the board and its officials."

"Applying these principles to the facts in this case, I find the employer has not shown that the alleged endorsements by elected public officials amounted to an endorsement of the union by the board or the government generally," Giannasi wrote. The employer also has not shown that the "certification" of the unions' card majority by a panel of elected officials and a clergyman "amounted to the board's certification of a union election victory," he said.

In discussing the certification by the elected officials, Giannasi said the certification was "simply a verification" that the union possessed a majority of signed authorization cards and was limited to the card majority, not a union victory in an election. Noting that it is "perfectly lawful" for a company to recognize a union based on a majority of signed cards, the ALJ said the union had asked Trump Plaza to participate in a card check and the employer refused.

"To a certain extent, Congressman Andrews was participating in the verification of the union's card majority as a counter to the employer's failure to submit to a card check," Giannasi said. "He also sought to illustrate his support for the [Employee] Free Choice Act, which would mandate recognition after a card check of majority status. He made clear his support for the [Employee] Free Choice Act in the letter he sent to the dealers. In these circumstances, I find that no one would equate the card check certification with a board certification of election results."

The ALJ also found that Trump Plaza did not show that the dealers were limited in their understanding of the role of NLRB in the election, as opposed to the role of other government officials. "Thus, the employer has not shown that the employees could not discern the difference between a certification by non-board officials of a card majority and a certification or other endorsement of the union by the board or its representatives."

In a footnote, Giannasi noted that Mark Mix, the president of the National Right to Work Legal Defense Foundation, had filed an unfair labor practice charge involving this case as well as an amicus curie brief alleging that the certification by the panel of the union's card majority violated the National Labor Relations Act. Stating that he had read and considered the brief, Giannasi said "nothing in the helpful brief submitted by amicus is persuasive enough to convince me that the certification of the card majority by the panel of non-board officials warrants overturning the results of the election."