Trump Plaza Hotel & Casino

National Labor Relations Board - Board Decisions

May 30, 2008

352 N.L.R.B. 628 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 76
628
Trump Plaza Associates d/b/a Trump Plaza Hotel and
Casino and International Union, United Auto-
mobile, Aerospace & Agricultural Implement
Workers of America, AFL–CIO. Case 4–RC–
21263
May 30, 2008
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The National Labor Relations Board has considered
objections to an election held March 31, 2007, and the
administrative law judge’s decision recommending dis-
position of them.1 The election was conducted pursuant
to a Stipulated Election Agreement. The tally of ballots
shows 324 votes for and 149 against the Petitioner, with
1 challenged ballot, an insufficient number to affect the
results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the administrative law
judge’s findings and recommendations as modified be-
low, and finds that a certification of representative
should be issued.
Background
The Union’s victory in the March 31, 20072 election
among the Employer casino’s dealers followed vigorous
critical-period campaigning by both the Union and the
Employer.3 The Union’s campaign materials included
letters and resolutions from Federal, State, and local
elected officials. These materials, collectively, expressed
support for the Union and for employees’ right to organ-
ize, card-check recognition, a peaceful and lawful collec-
tive-bargaining process, and the proposed Employee Free
Choice Act.4 These materials were posted on the Un-
ion’s website and made publicly available to the dealers.5

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 All dates are in 2007, unless otherwise specified.
3 At the start of the campaign, the Union requested recognition from
the Employer and offered to prove its majority status by means of a
card check, but the Employer did not respond.
4 The election at issue was a part of a citywide union campaign to
represent the dealers at Atlantic City’s casinos. Thus, many of the
elected officials’ letters and resolutions addressed the citywide cam-
paign or the March 17 election at Caesar’s Atlantic City, rather than
just the Trump Plaza campaign. The Atlantic City Council’s resolution,
which, inter alia, stated that the dealers were actively organizing and
had “chosen the UAW as their exclusive representative,” was dated
The Union also held a press conference/rally on Sun-
day, March 25, 6 days before the election, at which three
elected officials (United States Representative Robert
Andrews, State Senator James “Sonny” McCullough, and
State Assemblyman Jim Whelan) signed a document
titled “Certification of Majority Status.” This document
states that the signers had conducted a confidential ex-
amination of the authorization cards submitted to the
Union by the Employer’s dealers, and that, based on this
examination, a majority of the employees in the proposed
unit had authorized the Union to represent them for col-
lective-bargaining purposes.6 The document further
states that
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.
Only two Trump Plaza dealers attended the March 25
event.7 The poster-board “Certification” document signed
at this event was kept in the Union’s office from March 26
until the election, and flyer-sized photocopies were left on a
table in the Union’s office, along with other literature, for
visitors to take. However, there is no evidence as to
whether any dealers saw the poster or copies thereof at the
Union’s office prior to the election.
The Employer filed objections relating to the Union’s
use of the Government officials’ letters and resolutions
and the March 25 “Certification of Majority Status.”8
After a hearing, Chief Administrative Law Judge Robert
A. Giannasi recommended finding that none of the alleg-
edly-objectionable conduct justified setting aside the
election.
Analysis
It is well settled that “[r]epresentation elections are not
lightly set aside.” Safeway, Inc., 338 NLRB 525 (2002)

March 21, by which time the Caesar’s dealers had already voted in
favor of the Union.
5 Most of the documents were also included (albeit in reduced size)
in a mailing the Union sent to all of the dealers on the Excelsior list.
6 This description is consistent with the language of the authorization
cards, which state that the signer authorizes “the United Auto Workers
to represent me in collective bargaining.” The authorization cards’ text
does not limit or condition the Union’s use of them.
7 A local television channel broadcast a brief report about the event
on that evening’s 11 o’clock news, but there is no evidence that any
dealers saw the broadcast.
8 In response to the March 25 “Certification,” National Right to
Work (NRTW) filed an unfair labor practice charge shortly before the
election. That charge is being held in abeyance pending resolution of
the election objections at issue here. In light of NRTW’s interest in the
resolution of the issues raised by the “Certification,” it was permitted to
file amicus briefs in this case.
TRUMP PLAZA HOTEL & CASINO 629
(quotation marks and citations omitted). As the judge
did, we conclude that the Employer failed to meet its
heavy burden of demonstrating that the alleged objec-
tionable conduct reasonably tended to interfere with em-
ployees’ free and uncoerced choice in the election.
1. We adopt the judge’s analysis of the letters and
resolutions by Government officials. We rely, in particu-
lar, on Chipman Union, Inc., 316 NLRB 107 (1995). As
with the Congresswoman’s letter at issue in that case,
reasonable employees would recognize the documents at
issue here as expressions of opinion by the various offi-
cials who composed them.9 Like the judge, we find Co-
lumbia Tanning Corp., 238 NLRB 899 (1978), distin-
guishable in material respects. That case involved a
State Commissioner of Labor’s Greek-language letter,
printed on official stationery, sent 24 hours before an
election to Greek-speaking voters—voters with limited
English proficiency and limited understanding of Federal
and State jurisdiction over labor relations—who cast a
determinative number of votes in the election, which was
decided by a narrow margin. Significantly, the record
evidence in that case, unlike the evidence here, supported
a finding that the voters at issue were particularly suscep-
tible to confusion about the relationship between the
State Commissioner of Labor and the Federal National
Labor Relations Board.10 Further, the close vote margin
in Columbia Tanning made any voter confusion more
likely to affect the outcome than it would be here, where
there was a wide margin, even if any such confusion was
likely. Thus, in this case, we conclude that reasonable
voters would not have concluded that the letters and
resolutions, either individually or in the aggregate, re-

9 The dissemination of multiple documents does not require a differ-
ent result from Chipman Union, which involved a single letter. The
letters and resolutions here differed from one another: some expressly
touted positive aspects of the Union; others stated the hope for a lawful
and peaceful election campaign or for casino neutrality and recognition
by card check; and still others supported the Employee Free Choice Act
(a position essentially immaterial to the imminent Trump Plaza elec-
tion). We conclude that a reasonable employee would recognize these
diverse documents as reflecting various officials’ separate viewpoints.
10 Representative Andrews, who wrote a personal letter of support
for the Union on his personal letterhead, and who participated in the
March 25 card check, is Chairman of the House of Representatives
Subcommittee on Health, Employment, Labor, and Pensions. But the
documents in the record identify him only as “Congressman,” with no
mention of his labor subcommittee affiliation. Thus, his title and af-
filiation simply could not have confused voters in the way that the State
Commissioner of Labor’s title may have confused voters in Columbia
Tanning. Moreover, absent evidence that the Trump Plaza voters were
unusually susceptible to confusion due to limited language skills or
limited understanding of U.S. Government, we will not assume that
they could not differentiate between a legislator’s political role and a
Board representative’s expressly neutral administrative role.
flected the Board’s endorsement of the Union or other-
wise raised doubts about the Board’s neutrality.11
2. Regarding the Union’s March 25 card-check “Certi-
fication,” we conclude that this event/document does not
justify setting aside the election, given the absence of
evidence that more than a few voters were aware of the
“Certification” and the wide margin of the Union’s vic-
tory. Thus, we need not address whether the “Certifica-
tion” would have a tendency to coerce reasonable em-
ployees’ free choice in the election.
As the parties stipulated, only two Trump Plaza dealers
attended the March 25 rally. No evidence was presented
indicating that they told their coworkers about it.12 The
written “Certification” poster and paper copies were kept
in the union hall for almost a week, but again, there is no
record evidence that any dealers saw them or that they
were otherwise disseminated among the voters. These
facts are particularly significant in view of the large size
of the unit (about 530 employees, about 475 of whom
voted) and the 175-vote margin favoring the Union.
The Board’s longstanding rule in assessing election
objections is that the objecting party must show not only
that prohibited conduct occurred but also that, viewed
objectively, it interfered with voters’ exercise of free
choice. See, e.g., Frito Lay, Inc., 341 NLRB 515, 515
(2004); Picoma Industries, 296 NLRB 498, 499 (1989).
The party seeking to set aside an election also bears a
heavier burden where the vote margin is large. Avis
Rent-A-Car System, 280 NLRB 580, 581–582 (1986).

11 Contrary to the judge, we find it unnecessary to apply Board law
regarding a party’s dissemination, as election propaganda, of altered
ballots or Board notices. See SDC Investment, Inc., 274 NLRB 556
(1985), superseded by Ryder Memorial Hospital, 351 NLRB No. 26
(2007). The judge also considered, inter alia, the Board’s more general
standard regarding misleading election propaganda. See Midland Na-
tional Life Insurance Co., 263 NLRB 127, 131–133 (1982) (holding
that the Board would not set aside elections because of a party’s mis-
leading campaign propaganda, except in cases of forgery that preclude
employees from recognizing campaign propaganda for what it is). To
the extent that it may be appropriate to assess the letters and resolutions
as misleading propaganda, we agree with the judge’s analysis of Mid-
land National. We further find that the election propaganda at issue
would not be objectionable under the standard that the U.S. Sixth Cir-
cuit Court of Appeals applies. See Van Dorn Plastic Machinery Co. v.
NLRB, 736 F.2d 343, 348 (6th Cir. 1984) (“There may be cases where
no forgery can be proved, but where the misrepresentation is so perva-
sive and the deception so artful that employees will be unable to sepa-
rate truth from untruth and where their right to a free and fair choice
will be affected.”). Under either standard, reasonable voters would
have recognized the representations as originating from the Union or
from third parties, rather than from the Board, and would have identi-
fied them as propaganda. We also find it unnecessary to rely on the
judge’s speculation about Representative Andrews’ motives for con-
ducting the card check. Chipman Union, 316 NLRB at 107 fn. 3.
12 Similarly, no evidence was presented that even a single employee
saw the March 25 television news report about that day’s events.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD630
In the absence of evidence establishing that the Certi-
fication was widely disseminated among the unit em-
ployees, and given the Union’s substantial margin of
victory (175 votes and more than a 2–1 margin), we find
that the record does not permit a reasonable inference
that the document could have influenced enough em-
ployees to affect the results of the election. See Amveco
Magnetics, Inc., 338 NLRB 905 (2003). We thus decline
to set aside the election.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Union, United Automobile,
Aerospace & Agricultural Implement Workers of Amer-
ica, AFL–CIO, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:13
Included: All full-time and regular part-time
dealers employed by the Employer at its Mississippi
and the Boardwalk, Atlantic City, NJ facility.
Excluded: All other employees, cashiers, pit
clerks, clerical employees, engineers, guards and su-
pervisors as defined in the Act.
Henry R. Protas, Esq., for the Regional Director.
Theodore M. Eisenberg, Esq. and Brian A. Caufield, Esq. (Fox
Rothchild, LLP), of Roseland, New Jersey, for the Em-
ployer.
William T. Josem, Esq. (Cleary & Josem, LLP), of Philadel-
phia, Pennsylvania, for the Petitioner.
William L. Messenger, Esq. (National Right To Work Legal
Defense Foundation, Inc.), for amicus curiae, Mark Mix, on
brief.1

13 The Stipulated Election Agreement further stated:
Voting Subject to Challenge: All full-time and regular part-
time dual-rate dealers/supervisors may vote subject to challenge
by the parties.
1 Mark Mix, the president of the National Right to Work Legal De-
fense 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 Con-
gressman 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 mo-
tion and accept the brief because of the relationship between the objec-
tion 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 consid-
ered. 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.
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, includ-
ing in their very helpful post-hearing briefs, I make the follow-
ing findings and conclusions.
Pursuant to a stipulated election agreement, the Board con-
ducted 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 facil-
ity. The Petitioner Union (hereafter the Union) won the elec-
tion by a vote of 324 to 149, with 1 challenged ballot that is not
determinative. The employer submitted the following 5 objec-
tions 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 Na-
tional 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 opposi-
tion to the Union was futile.
Objection 4
Acting in concert with members of the federal, state
and local governments, to destroy the laboratory condi-
tions 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.
TRUMP PLAZA HOTEL & CASINO 631
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 Em-
ployer’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 authoriza-
tion 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 cam-
paigning to convince the voters of the soundness of their posi-
tions. 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 news-
paper, 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 fed-
eral elected officials, who issued letters and resolutions that
were carried on the Union’s website and made publicly avail-
able 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 Em-
ployer’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 Christo-
pher 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 elec-
tion vote set for this Saturday,” referring to the Caesar’s elec-
tion. 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 proceed in a peaceful and law-
ful manner that respects our State’s proud labor tradition.” Er.
Exh. 4c. Also attached was a letter, addressed to casino em-
ployees and dated March 9, 2007, and came from U.S. Con-
gressman 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 em-
ployer 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 attach-
ment, an undated resolution of support signed by about 60
elected State Assemblymen and Senators. The resolution sup-
ported 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 inter-
ference 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 neu-
tral with respect to the organizing rights of the dealers. The
resolution stated that the dealers were actively engaged in orga-
nizing drives and had “chosen the UAW as their exclusive rep-
resentative.” The resolution further affirmed the right of em-
ployees 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 offi-
cials 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 exami-
nation of Union authorization cards for the purpose of de-
termining 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 Inter-
national Union, UAW (the “Union”) to represent them in
collective bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD632
The verification of the Union’s majority was con-
ducted 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 Ca-
sino 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 supervi-
sors 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 Sena-
tor James “Sonny” McCullough; and State Assemblyman Jim
Whelan. Er. Exh. 3. The original of the certification docu-
ment, which was in poster board form, was kept in the Union’s
offices from March 26 until the date of the election on 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 biparti-
san “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 Con-
gressman Andrews stated his support for the dealers, the broad-
cast continued by stating that the three legislators listed above
and Reverend Reginald Floyd signed the “card count” to “con-
firm 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 web-
site postings (Er. Exh. 4h) includes a statement that the Em-
ployer “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 assur-
ing employees that they would be protected from such interfer-
ence. The authorization cards that were collected during the
Union campaign were straightforward and contained no limita-
tions or conditions as to their use. They provided that the em-
ployee 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 “labora-
tory conditions” of a Board election were violated, the deci-
sional standard—an objective test—is “whether the conduct
reasonably tends to interfere with the employees’ free and un-
coerced choice in the election.” Double J Services, 347 NLRB
No. 58, slip op. at 1–2 (2006) (not reported in Board volumes),
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 presump-
tion 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 dis-
tinguish 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 bal-
lot is clearly identified on the face of the material itself, em-
ployees 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), 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 mis-
representations 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 evi-
dence that voters could not discern the difference between
statements about labor relations by those officials and state-
ments by the Board and its representatives. See Chipman Un-
ion, 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 em-
ployees, many of whom were recent Greek immigrants, lacked
familiarity both with English and the complexities of state and
Federal jurisdiction over labor relations. Consequently, accord-
ing 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 commis-
TRUMP PLAZA HOTEL & CASINO 633
sioner 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 vic-
tory.
The Employer’s efforts to distinguish this case from Chip-
man Union and related cases adverse to its position are unper-
suasive. 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 represen-
tatives 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 sub-
mitted any evidence that any voters were so limited in intelli-
gence, 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 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

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 let-
ters of endorsement. But there is no basis in the cases or in common
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 offend-
ing 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 per-
ceived 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 Un-
ion possessed a majority of cards signed by the Employer’s
dealers authorizing the Union to represent them. But that certi-
fication 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 charac-
terization of the panel certification as amounting to a “declara-
tion 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 be-
yond 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 Un-
ion had asked the Employer to do just that in a letter sent con-
temporaneously with the election petition. The Employer de-
clined to even answer that letter. To a certain extent, Con-
gressman 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD634
check certification with a Board certification of election re-
sults.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 state-
ment 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 certifica-
tion 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 certi-
fication 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 Satur

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 con-
tained 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 Un-
ion’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 fur-
ther stated that the cards would eventually go to the Board and stay
there. None of those statements, however, prohibited use of the au-
thorizations 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 vic-
tory by the Union. Indeed, the website statements clearly came from
the Union, not the Board or any other government entity.
day, March 31, an election that the Union won by a margin of 2
to 1. Thus, in these circumstances, it was clear to any reason-
able viewer that the card check certification was not the equiva-
lent of a Board election and that neither the Board nor the fed-
eral government favored the Union’s victory in the actual
Board election.
Nor did the Employer show that the employees had limita-
tions 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 certifica-
tion by non-Board officials of a card majority and a certifica-
tion or other endorsement of the Union by the Board or its rep-
resentatives. 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 reason-
able tendency to interfere with the Board election in this case.
Conclusions and Recommended Order
In accordance with the above findings, I overrule the Em-
ployer’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

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 rec-
ommended 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 Direc-
tor. If no exceptions are filed to this decision and recommended order,
the Board may adopt the decision and order as its own.