Trump Plaza Hotel and Casino

National Labor Relations Board - Administrative Judge Opinions

Jun 29, 2007

04-RC-021263 (N.L.R.B. Jun. 29, 2007)

JD-40-07
Philadelphia, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TRUMP PLAZA ASSOCIATES d/b/a TRUMP PLAZA
HOTEL AND CASINO
Employer
and Case 4-RC-21263
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA – AFL-CIO
Petitioner
Henry R, Protas, Esq., of
Philadelphia, PA.,
for the Regional Director.
Theodore M. Eisenberg, Esq. and
Brian A. Caufield, Esq.
(Fox Rothchild, LLP), of Roseland,
NJ, for the Employer.
William T. Josem, Esq.
(Cleary & Josem, LLP), of
Philadelphia, PA., for the
Petitioner.
William L. Messenger, Esq. (National Right
To Work Legal Defense Foundation, Inc.),
for amicus curiae, Mark Mix, on brief.1

1 Mark Mix, the president of the National Right to Work Legal Defense Foundation,
submitted a motion to file a brief amicus curiae, along with the brief itself. Mr. Mix had earlier
filed an unfair labor practice charge in Case 4-CB-9834, alleging that the certification of the
Petitioner Union’s card majority by a panel that included Congressman Robert Andrews
amounted to a violation of the Act. That charge is being held in abeyance pending the outcome
of this case, in which the certification is alleged as an objection to the Petitioner’s election
victory. No party has objected to the motion. I grant the motion and accept the brief because of
the relationship between the objection and the charge and because it is in the interest of the
deciding official to have the benefit of the brief, which I have read and considered. 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.
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RECOMMENDED DECISION AND ORDER ON OBJECTIONS
ROBERT A. GIANNASI, Administrative Law Judge: Pursuant to a notice of hearing on
objections to election issued by the Regional Director for Region 4 on April 23, 2007, I
conducted a hearing on this matter on May 23, 2007, in Philadelphia, Pennsylvania. Based on
the evidence submitted in that hearing, as well as the stipulations and contentions of the parties,
including in their very helpful post-hearing briefs, I make the following findings and conclusions.
Pursuant to a stipulated election agreement, the Board conducted a secret ballot
election on March 31, 2007, in a unit of the Employer’s full-time and regular part time dealers at
its Mississippi and the Boardwalk, Atlantic City, New Jersey facility. The Petitioner Union
(hereafter the Union) won the election by a vote of 324 to 149, with 1 challenged ballot that is
not determinative. The employer submitted the following 5 objections to the election:
Objection 1
Acting in concert with representatives of the federal, state and local
governments, via television, the Union’s web site, and written and other
communications, to secure partisan advantage by misrepresenting
to voters that the government, at all levels and through all of its
agencies, and explicitly and implicitly through its agency, the
National Labor Relations Board, endorsed and supported the Union
in the election, thereby fundamentally undermining governmental
(and NLRB) neutrality, which is the sine qua non of a fair election.
Objection 2
Acting in concert with representatives of the federal government in
“certifying” the Union’s majority status “in accordance with NLRB
rules,” through a sham card check, thereby creating the false
impression that: (a) a valid card check had been conducted, (b) the
NLRB had authorized, approved of and recognized the validity of the
card check, and (c) the Union was the certified representative of the
dealers before an election was conducted.
Objection 3
Acting in concert with representatives of the federal government to
usurp and arrogate to itself the exclusive function of the NLRB to
certify representative status, and thereby create the impression among
voters that the Union was certified before an election was held and that
opposition to the Union was futile.
Objection 4
Acting in concert with members of the federal, state and local
governments, to destroy the laboratory conditions necessary for a
free and fair election by creating the impression that the government
viewed the unionization of the Trump Plaza as a desirable outcome
and governmental objective.
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Objection 5
By the above and other acts, the Union destroyed the laboratory
conditions necessary for a free and fair election.
The Facts
The election in this case was part of an overall organizing campaign by the Union to gain
representation rights for the card dealers employed by all Atlantic City casinos.
The Union filed its election petition with respect to the Employer’s dealers on February
15, 2007. Two days later, the Union sent a letter to the Employer asserting that a majority of its
dealers had designated the Union to serve as their exclusive bargaining representative. The
letter stated that the Union was prepared to prove its majority status “through signed
authorization cards.” It also asked the Employer to contact the Union to agree on a procedure
by which the Employer would recognize the Union “based on a review of the authorization
cards.” Er. Exh. 9. The Employer did not respond to that letter.
After the parties agreed to the details of a Board election, both the Employer and the
Union engaged in extensive campaigning to convince the voters of the soundness of their
positions. The parties stipulated that the Employer distributed “numerous handouts” during the
election period, “urging the dealers to vote no.” Tr. 48-49. The Employer concedes that it
“waged a vigorous campaign” against selection of the Union (Er. Br. 21). The Press of Atlantic
City, the main local newspaper, covered the campaign, especially during the last few days
before the March 31 election ( Un. Exh. 2, 3 & 4, Tr. 51-53).
In addition, the Union obtained the support of local and federal elected officials, who
issued letters and resolutions that were carried on the Union’s website and made publicly
available to the dealers, as well as other interested individuals and groups. Most of the letters
generally supported the Union’s overall campaign to represent the Atlantic City dealers, with a
specific focus, at least in terms of the timing of the letters, on the first of the Board elections in
the campaign. The dealers working for Caesar’s Atlantic City voted on March 17, 2007; the
Union won that election by a margin of 572 to 128, a fact that the Union trumpeted in its
campaign literature in advance of the election in this case (Er. Exh. 2).
On March 22, 2007, the Union addressed a letter to the Employer’s dealers in advance
of the March 31 election. That letter included attachments of earlier letters of support from
elected officials that had been prepared before the Caesar’s election (Er. Exh. 2, Tr. 30-31).
Those letters also appeared separately on the Union’s website (Er. Exhs. 4a, 4g, Tr. 33-34, 35-
36). One attachment was a March 12, 2007, letter addressed to “Dear Friends,” from United
States Congressmen Christopher Smith and Frank LoBiondo, expressing their support for the
Union in its overall campaign. The letter stated that the congressmen understood that 75% of
the dealers had signed authorization cards, but that there was “still the important election vote
set for this Saturday,” referring to the Caesar’s election. The rest of the letter discussed the
recently introduced Free Choice Act, proposed legislation that would provide for union
recognition based solely on authorization cards. The letter ended by reiterating the
congressmen’s support for the employees’ right to join a union and also the Free Choice Act.
Er. Exh. 4b. Another attachment was a similar letter of support, addressed to “Casino
Employees” and dated March 8, 2007, and it came from State Senate President Richard Codey
and State Assembly Speaker Joseph Roberts. The letter stated that the authors “strongly
support [the] dealers’ rights to decide whether or not they wish to join a labor union.” It closed
by stating an expectation that “all parties involved will allow the collective bargaining process to
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proceed in a peaceful and lawful manner that respects our State’s proud labor tradition.” Er.
Exh. 4c. Also attached was a letter, addressed to casino employees and dated March 9, 2007,
and came from U.S. Congressman Robert Andrews. It referred to the Union’s overall campaign,
with particular emphasis on the “important decision” the employees faced as to “whether you
and your co-workers will unionize.” Still another attachment was a March 6, 2007, letter from
Joe Kelly, an Atlantic County Freeholder, to the General Manager of Caesar’s Atlantic City,
urging that employer not to engage in an “aggressive campaign” that would “spread fear and
intimidate workers.” His letter also offered to help in discussing a code of conduct for the
upcoming election “or any other issue.” Er. Exh. 4e.
The Union’s March 22 letter also contained, as an attachment, an undated resolution of
support signed by about 60 elected State Assemblymen and Senators. The resolution
supported the Union’s effort to organize the dealers and urged “casino management” to respect
its employees’ opinions and democratic right to organize a union free from employer
interference and abuse of power.” It also stated that this is what the signers expected from
“responsible businesses,” and noted that they would be “paying attention to how employees are
treated throughout this process.” Er. Exh. 2 (attachment); Tr. 30-31.
Another Union website item included a favorable resolution by the Atlantic City Council.
On March 21, the Council passed a resolution calling on all Atlantic City casinos to remain
neutral with respect to the organizing rights of the dealers. The resolution stated that the
dealers were actively engaged in organizing drives and had “chosen the UAW as their exclusive
representative.” The resolution further affirmed the right of employees to form unions and
supported the Employee Free Choice Act, referred to above. The resolution also called on the
casinos to honor a request for majority card check recognition with an agreement for a “neutral
third party verification and appropriate negotiations.” Er. Exh. 4f.
On March 25, about a week before the election in this case, the Union held a press
conference, at which three elected officials signed and displayed a so-called Certification of
Majority Status. The certification, which specifically focused on the Employer’s dealers, stated
as follows:
We, the undersigned, conducted a confidential examination of Union authorization
cards for the purpose of determining whether a majority of full time and regular
part-time dealers, dual-rate dealers, and dual-rate supervisors at Trump Plaza
Hotel and Casino have authorized the International Union, UAW (the “Union”) to
represent them in collective bargaining.
The verification of the Union’s majority was conducted by means of a comparison
of a copy of the original signed cards and a list of current eligible employees in the
bargaining unit provided by Trump Plaza Hotel and Casino to the Union in
accordance with NLRB rules.
The undersigned certify that, based on our confidential examination of the cards,
as described above, the majority of Trump Plaza Hotel and Casino full-time and
regular part-time dealers, dual-rate dealers and dual-rate supervisors have
authorized the UAW to represent them for the purposes of collective bargaining.
After the date, the following names and signatures appear on the document: U.S.
Congressman Robert Andrews; State Senator James “Sonny” McCullough; and State
Assemblyman Jim Whelan. Er. Exh. 3. The original of the certification document, which was in
poster board form, was kept in the Union’s offices from March 26 until the date of the election on
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March 31. Paper copies were also reproduced and made available on a table in the Union’s
offices for whoever wanted to take them (Tr. 31-32).
On the evening of March 25, on the eleven o’clock news, a local television station,
WMGM-TV, Channel 40, aired a report on the press conference. The report, which featured a
snippet from Congressman Andrews, stated that Andrews led a bipartisan “card check”
authorization for the dealers at the Employer. The report stated that the results of the “card
check” showed “certification of majority status for forming a Union at Trump Plaza, and that this
came on the heels of an election victory by the Union at Caesar’s Casino the week before. After
Congressman Andrews stated his support for the dealers, the broadcast continued by stating
that the three legislators listed above and Reverend Reginald Floyd signed the “card count” to
“confirm verification that the dealers want to join [the Union]” The broadcast, which lasted about
one minute, ended by stating that “[t]he actual vote will be held this Saturday.” The station’s
broadcast viewing area includes the areas in which most, if not all, of the Employer’s dealers
live. Er. Exhs. 5,6, 7 and 8; Tr. 37-40.
The Employer also points out that one of the Union’s website postings (Er. Exh. 4h)
includes a statement that the Employer “has No Right to know who is or is not signing card!
Those cards will go from the person you return them to, to the union reps, to the National Labor
Relations Board, where they stay until we are certified.” The posting generally dealt with
possible employer interference with employee rights and assuring employees that they would be
protected from such interference. The authorization cards that were collected during the Union
campaign were straightforward and contained no limitations or conditions as to their use. They
provided that the employee signing the card authorized “the United Auto Workers to represent
me in collective bargaining.” Un. Exh. 1.
Discussion and Analysis
When, as here, an objection is filed alleging that the “laboratory conditions” of a Board
election were violated, the decisional standard—an objective test—is “whether the conduct
reasonably tends to interfere with the employees’ free and uncoerced choice in the election.”
Double J Services, 347 NLRB No. 58 (2006) (slip op. 1-2), quoting from Baja’s Place, Inc., 268
NLRB 868 (1964). The burden of proof on that issue, which is on the party asserting the
objection, is a heavy one because there is a strong presumption that ballots cast under Board
rules and supervision reflect the true desires of the electorate. See Safeway, Inc., 338 NLRB
525 (2002) and Antioch Rock & Ready Mix, 327 NLRB 1091, 1092 (1999). As shown below, I
find that the Employer has not met its burden in this case.
No participant in a Board election is permitted to suggest that the agency conducting the
election endorses a particular choice in that election. But the Board trusts employees to
distinguish between Board endorsements and election propaganda by parties. See SDC
Investment, Inc., 274 NLRB 556 (1985), in which the Board clarified its position on the issue of
whether circulation by a party of altered reproductions of Board ballots during an election
campaign is objectionable conduct. The Board does not apply a per se rule in those
circumstances. “When the party responsible for preparation of the altered ballot is clearly
identified on the face of the material itself, employees would know that the document emanated
from a party, not the Board, and thus would not be led to believe that the party has been
endorsed by the Board.” On the other hand, “[w]hen the source of the altered ballot is not
clearly identified, it becomes necessary to examine the nature and contents of the material in
order to determine whether the document has the tendency to mislead employees into believing
that the Board favors one party’s cause.” Id. at 557. See also 3-Day Blinds, 299 NLRB 110
(1990). Indeed, since its decision in Midland National Life Insurance Co., 263 NLRB 127 (1982),
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the Board has eschewed making judgments on alleged misrepresentations by parties, leaving
assessment of alleged misrepresentations to the good judgment of the voters. This applies as
well to misrepresentations of Board law or Board actions, which in no way impugn the Board’s
neutrality. Riveredge Hospital, 264 NLRB 1094, 1095 (1982). “[T]he mere fact that a party
makes an untrue statement, whether of law or fact, is not grounds for setting aside an election.”
John W. Galbreath & Co., 288 NLRB 876, 877 (1988).
Using a similar analysis, the Board has repeatedly held that letters of endorsement by
elected state or Federal 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. See Chipman Union,
Inc., 316 NLRB 107,108 (1995) and cases there cited. In Chipman Union, the Board readily
distinguished the only Board case that overturned an election on somewhat similar grounds,
Columbia Tanning Corp., 238 NLRB 899 (1978). In Columbia Tanning, a state commissioner of
labor had sent a letter, in Greek, specifically endorsing the petitioning union 24 hours before the
election. The Board ruled in that case that the employees, many of whom were recent Greek
immigrants, lacked familiarity both with English and the complexities of state and Federal
jurisdiction over labor relations. Consequently, according to the Board, in a fairly close election
in which the number of Greek employees was twice the margin of victory, those employees
could reasonably have confused the state commissioner of labor with the Board. As the Board
made clear in Chipman Union, the proponent of the objection must show that the employees
could not distinguish between statements by other governmental officials and statements by the
Board and its officials. See also Saint-Gobain Abrasives, Inc., 337 NLRB 82 (2001) and Ursery
Companies, 311 NLRB 399 (1993), which rejected claims similar to that made by the Employer
in this case.
Applying these principles to the facts in this case, I find that 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. Nor has the Employer shown that the
certification by a panel of certain elected officials and a cleric of the Union’s card majority
amounted to the Board’s certification of a Union election victory.
The Employer’s efforts to distinguish this case from Chipman Union and related cases
adverse to its position are unpersuasive. First of all, the statements of support from the elected
officials in this case were at most implicit endorsements. They generally supported the right of
the dealers to form a union and asked for the casinos to recognize this right. Moreover, the
alleged endorsements, both in the cited cases adverse to the Employer’s position and in this
case, were from officials who are elected representatives. Those representatives speak for
themselves, not for the government generally or for any agency of the government with authority
over the Board. Some of the officials who made statements in this case were state
representatives with no possible authority over the Board, which is a federal agency. These
officials do not run elections and no reasonable person voting in a Board election and reading
those letters would think any differently, particularly since the Union was clearly identified as the
party distributing or disseminating the letters of support. Thus, unlike in Columbia Tanning,
there is no inherent confusion in the electorate that the officials who issued the statements of
support could be representatives of the National Labor Relations Board. Nor has the Employer
submitted any evidence that any voters were so limited in intelligence, the English language, or
common knowledge that they would believe that the Board endorsed the Union.
Indeed, the letters by the elected officials in this case were addressed generally to the
Union’s campaign to organize all the dealers working for Atlantic City casinos, not just the
dealers of the Employer. Most urged the casinos, including the Employer, to remain neutral and
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not interfere with employee rights; others asked for a card check to determine whether the
Union had majority support without the need for an election. None of the letters or resolutions
suggested that the Board election was futile because some governmental entity over which the
authors had control would supersede the Board in its supervision of the election. Nor would any
reasonable voter think that was the case.2
In its brief (Br. 15-17, 18), the Employer attempts to bring this case within the orbit of
Columbia Tanning. That attempt is unavailing. For example, the Employer states that the
offending letter in Columbia Tanning did not mention the NLRB or the federal government
whereas the letters in this case did. But, unlike in Columbia Tanning, the references to the
Board and the federal government in the letters involved in this case had nothing to do with
whether either of those entities endorsed the Union. The Board’s concern with the use of the
word “labor” in the title of the letter writer in Columbia Tanning was that the employees could, in
the circumstances of that case, have perceived the writer to be somehow connected to the
Labor Board. No such references to the NLRB in the letters sent in this case could be so
viewed. Thus, the Employer has failed to show that the Union’s distribution of the letters of
support from elected representatives interfered with employee free choice.
The Employer also focuses on the “certification” of a panel of state and federal officials—
as well as a cleric—that the Union possessed a majority of cards signed by the Employer’s
dealers authorizing the Union to represent them. But that certification contained nothing
indicating that it was a document of the National Labor Relations Board and it could not possibly
be equated with the Board’s certification of the results of a Board election. If that were true,
there would be no reason for the Board to hold the election at all. Thus, the Employer’s
characterization of the panel certification as amounting to a “declaration of Union victory with the
NLRB’s imprimatur” (Er. Br. 16) is unpersuasive. Likewise unpersuasive is the contention by
amicus (Br. 8) that the panel certification essentially states “that a particular [party] has actually
won the election.”
First of all, the word “certify” has a generic meaning far beyond that used in Board
parlance for the verification of election results. Its dictionary meaning is “to attest as certain” or
“to testify to or vouch for in writing.” Random House Webster’s Unabridged Dictionary (Second
Edition, 1998). In this respect, the certification complained about was simply a verification by
the panel that certain facts existed, namely the Union possessed a majority of cards. Secondly,
the certification was limited to the Union’s card majority, not its victory in a Board election. It is,
of course, perfectly lawful for an employer to recognize a union on the basis of a verified card
majority. Indeed, the Union had asked the Employer to do just that in a letter sent
contemporaneously with the election petition. The Employer declined to even answer that letter.
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. He also sought to
illustrate his support for the Free Choice Act, which would mandate recognition after a card
check of majority status. He made clear his support for the Free Choice Act in the letter he sent
to the dealers. In these circumstances, I find that no one would equate the card check

2 At the hearing (Tr. 19), and again in its brief (Er. Br. 17, 19), the Employer seems to
distinguish the cases adverse to its position by stating that, in those cases, there were single
letters of endorsement from one Congressman in each, whereas here there were multiple letters
of endorsement. But there is no basis in the cases or in common sense for the proposition that
the number of letters of endorsement would make a difference, where, as here, the letters are
all from sources that could not reasonably equated to a Board endorsement.
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certification with a Board certification of election results.3
Contrary to the contentions of the Employer (Er. Br. 13) and of amicus (Br. 7), the
statement that the certification of the Union’s card majority was done “in accordance with NLRB
rules” does not advance their positions. It is clear that the statement about Board rules applied
only to the comparison of the cards with the Employer’s list of employees. No reasonable
person would have believed that this was the equivalent of a Board election. That distinction
has long been recognized in Board law. An employer who does not commit serious unfair labor
practices may insist on a Board election, whether or not a union obtains a card majority. See
Linden Lumber v. NLRB, 419 U.S. 301 (1974).
The public broadcast of the press conference of the certification adds nothing of
substance to the alleged objection, except that the “certification” was widely reported. Although
the newscaster reporting on the certification stated that it came on “the heels of last week’s
similar election at Caesar’s Casino,” neither the Union nor the elected officials involved in the
certification were responsible for that statement. It was made by a private third party. Indeed,
in its last few words, the broadcast made clear that the “actual election” would be held on
Saturday, March 31, an election that the Union won by a margin of 2 to 1. Thus, in these
circumstances, it was clear to any reasonable viewer that the card check certification was not
the equivalent of a Board election and that neither the Board nor the federal government
favored the Union’s victory in the actual Board election.
Nor did the Employer show that the employees had limitations in their understanding of
the role of the Labor Board in Board elections, as opposed to the role of other government
entities or 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. Accordingly, the Employer
has not met its burden of proving that the statements by three elected officials and a cleric with
respect to the Union’s a card majority had a reasonable tendency to interfere with the Board
election in this case.

3 The Employer also contends (Er. Br. 15) that the panel’s use of the authorization cards in
determining whether a majority of the unit had signed cards somehow amounted to a misuse of
the cards and misled “dealers as to the legal import of the certification.” That contention is
without merit. Significantly, the authorization cards themselves contained no limitation on their
use. The signers simply authorized the Union to represent them in collective bargaining. They
certainly could be used to request voluntary recognition from the Employer, which the Union
unsuccessfully attempted to accomplish in this case. The Union’s website did emphasize that
the Employer had no right to know who signed the cards. And it was in this context that the
website further stated that the cards would eventually go to the Board and stay there. None of
those statements, however, prohibited use of the authorizations for card check purposes. Nor
do the website statements add anything that would reasonably convert the panel’s certification
of the card majority into an endorsement by the Board of an election victory by the Union.
Indeed, the website statements clearly came from the Union, not the Board or any other
government entity.
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Conclusions and Recommended Order
In accordance with the above findings, I overrule the Employer’s objections to the
election in this case and conclude that the election was valid. Accordingly, I order that the
Regional Director issue the appropriate certification.4
Dated at Washington, D.C., June 29, 2007.
______________________
Robert A. Giannasi
Administrative Law Judge

4 Pursuant to the provisions of Section 102.69 of the Board’s Rules and Regulations, within
14 days from the date of issuance of this recommended decision and order, either party may file
with the Board in Washington, D.C. an original and eight copies of exceptions thereto.
Immediately upon filing such exceptions, the party filing them shall serve a copy upon the other
parties and a copy with the Regional Director. If no exceptions are filed to this decision and
recommended order, the Board may adopt the decision and order as its own.