Trump Taj Mahal Casino

National Labor Relations Board - Board Decisions

Sep 28, 1999

329 N.L.R.B. 256 (N.L.R.B. 1999)

DECISION OF THE NATIONAL LABOR RELATIONS BOARD 256
Trump Taj Mahal Associates, a New Jersey Limited
Partnership d/b/a Trump Taj Majal Casino and
International Union of Operating Engineers,
Local 68–68A–68–B, AFL–CIO and Interna-
tional Alliance of Theatrical Stage Employees
and Motion Picture Machine Operators of the
U.S. and Canada, Local 917 and Leslie Sander,
Petitioner. Case 4–UD–342
September 28, 1999
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
The National Labor Relations Board has considered an
objection to an election held July 31, 1995, and the Act-
ing Regional Director’s report recommending disposition
of it. The election was conducted pursuant to a Stipu-
lated Election Agreement.
The tally of ballots shows that there were approxi-
mately 109 eligible voters and that 59 ballots were cast,
of which 45 were in favor of withdrawing the authority
of the joint bargaining representative (the Unions) to
require, under its agreement with the Employer, that em-
ployees make certain lawful payments to the Unions in
order to retain their jobs. There were 12 votes against
the proposition, 2 void ballots, and no challenged bal-
lots.1
The Board has reviewed the record in light of the ex-
ceptions and briefs filed by Joint Representative IUOE
Local 68 and the Petitioner. For the reasons stated be-
low, we find merit in the Joint Representative’s excep-
tion to the Acting Regional Director’s report and we also
adopt that aspect of his report to which the Petitioner has
excepted.
In her objection, the Petitioner alleged that the Unions
coerced employees by making threatening statements
about what would ensue if the unit employees voted in
favor of deauthorization, including a threat that the Un-
ions would cease to represent the employees and a threat
that their continuation in the union pension fund might
be sacrificed. The Acting Regional Director found that
the threat to cease representation was objectionable con-
duct and recommended setting aside the election on that
ground; however, he found unobjectionable the statement
concerning the pension plan. Joint Representative IUOE
Local 68 has excepted to the finding of objectionable
conduct, and the Petitioner has excepted to the failure to
find that the pension plan statement was also objection-
able.

1 A majority of the employees eligible to vote must vote in favor of
deauthorization in order to withdraw a union’s authority to make and
enforce a union-security clause. Romac Containers, 190 NLRB 238 fn.
1 (1971).
1. In support of her objection regarding a threat to
cease representing unit employees, the Petitioner prof-
fered letters sent by Joint Representative Local 68 that
stated: “It would not be economically feasible for Local
68 to continue to serve as your collective-bargaining rep-
resentative in the absence of a union security provision.”
In ruling on the Petitioner’s objection, the Acting Re-
gional Director relied on Hospital 1115 Joint Board
(Pinebrook Nursing Home), 305 NLRB 802 fn. 1 (1991),
which held that a union’s statement in connection with a
deauthorization election that it would no longer represent
the unit employees if they voted to deauthorize the un-
ion-security clause of the collective-bargaining agree-
ment coerces employees in violation of Section
8(b)(1)(A) of the Act and constitutes objectionable con-
duct unless the union provides the unit employees with
objective evidence that it would be economically infeasi-
ble to represent them in the absence of the clause. The
Acting Regional Director found that the Unions had not
provided such information to the unit employees here,
and therefore had engaged in objectionable conduct.
Accordingly, he sustained the Petitioner’s objection.
The Board has revisited this question and has decided
to overrule the holding in Pinebrook. See Chicago Truck
Drivers Local 101 (Bake-Line Products), 329 NLRB No.
29 (1999). In accordance with the reasoning set forth
fully therein, we reverse the Acting Regional Director’s
finding and hold that the Union’s statements concerning
cessation of representation did not interfere with the con-
duct of the election.
2. In support of her objection that the Unions had
threatened loss of pension coverage, the Petitioner cited
the following paragraph from a letter sent by Joint Rep-
resentative Local 68 to unit employees during the week
before the election:

The select group who is intent on removing the union-
security clause fails to advise you that by jumping over
the dollars to get to the pennies could sacrifice your
continuation in the union’s pension fund and could
jeopardize a secure retirement pension with a maxi-
mum level of participation and a monthly guaranteed
pension of $1,748. The Trump Taj Mahal retirement
savings plan has no guarantees and the money is al-
ways at risk based on their investments on the Wall
Street market. [Emphasis in original.]

We agree with the Regional Director that this is not a threat
to retaliate against employees but a permissible statement
about the consequence of a termination of the collective-
bargaining relationship between the Joint Representative
and the Employer. Without such a relationship, the Em-
ployer could no longer lawfully contribute to the contractual
pension plan on behalf of the employees, and their “con-
tinuation” in the plan would therefore cease. This could
well jeopardize their entitlement to a full pension under that
329 NLRB No. 30
TRUMP TAJ MAHAL ASSOCIATES 257
plan when they reach retirement age. Contrary to the Peti-
tioner’s claim, this is not a threat to cancel previously vested
benefits and the failure to spell out the distinction between
vested sums and continued contributions in fuller detail does
not make it so.
This is clearly distinguishable from Bell Security, 308
NLRB 80 (1992), on which the Petitioner chiefly relies.
There, an incumbent union threatened that if the employ-
ees voted for a petitioner union, their health and welfare
coverage under the incumbent’s contractual plan with the
employer would terminate and they would have no bene-
fits under any plan sponsored by the petitioner union for
at least 2–1/2 years, since it would take at least that long
for the Board’s certification to become final. An affidavit
by an incumbent representative submitted in the objec-
tions investigation said the affiant did not “expect” the
employer to continue contributing to the incumbent’s
plan. There was no evidence that such coverage would
cease by operation of law upon the petitioner’s success in
the election, however, and as the Acting Regional Direc-
tor found, the employees could reasonably infer that the
incumbent was threatening to terminate the coverage
during the hiatus between the election result and a final
certification, if the petitioner won.
The other cases on which the Petitioner relies are also
distinguishable. In Willey’s Express, 275 NLRB 631
(1985), a week before the representation election, an
agent of the petitioner union actually took steps towards
termination of dental and vision insurance benefits of
employees under a union plan that had been extended
from one of the employer’s trucking terminals that al-
ready had union representation, and he advised the em-
ployees that they could retain such benefits only if they
voted for the union. The Board found this objectionable
because of the timing of the investigation into the propri-
ety of the coverage for non-represented employees.2 No

2 The Board cited Sure Tan, Inc, 234 NLRB 1187 (1978), enfd. 672
F.2d 592 (7th Cir. 1982), affd. in relevant part 424 U.S. 351 (1984),
holding it a violation of the Act for an employer to report his employ-
such actions were taken here. Joint Representative Local
68 was merely describing a consequence of an action
that, as we have found above, it was permitted to take.
In Springfield Jewish Nursing Home, 292 NLRB 1266,
1275 (1989), the Board found that an employer violated
Section 8(a)(1) of the Act by threatening that employees
would lose their current pension plan if the union were
voted in, where the evidence showed nothing more than
that the petitioning union had agreed to a less generous
pension plan in bargaining with a different employer.
That clearly could be seen as a threat to withdraw bene-
fits rather than, as here, a description of consequences
that would necessarily follow from a lawful action.
Having concluded that all aspects of the objection filed
by the Petitioner are without merit, we find that the elec-
tion results should be certified.
CERTIFICATION OF RESULTS OF ELECTION
It is certified that a majority of employees eligible to
vote have not voted to withdraw the authority of Interna-
tional Union of Operating Engineers, Local 68–68A–
68B, AFL–CIO and International Alliance of Theatrical
Stage Employees and Motion Picture Machine Operators
of the U.S. and Canada, Local 917 to require, under their
agreement with the Employer, that employees make cer-
tain lawful payments to the Union as a condition of em-
ployment, in conformity with Section 8(a)(3) of the Na-
tional Labor Relations Act.

MEMBER HURTGEN, dissenting in part.
For the reasons set forth in my dissenting opinion in
See Chicago Truck Drivers Local 101 (Bake-Line Prod-
ucts), 329 NLRB No. 29 (1999), I find the Joint Repre-
sentative Union’s threat to cease representation if the unit
employees voted in favor of deauthorization to be objec-
tionable conduct sufficient to set aside the election re-
sults. I therefore need not pass on the statement concern-
ing the pension plan.

ees as illegal aliens in response to their involvement in a union organiz-
ing campaign.