The D.C. Circuit vacated the National Labor Relation Board’s decision that Trump Plaza Hotel and Casino had unlawfully refused to bargain with the union that purports to represent the Casino’s card dealers. [Slip op. pdf.] The court remanded the Board’s order for further consideration of the Casino’s argument that a mock card-check certification, which union supporters claimed was conducted “in accordance with NLRB rules,” misled voters about the real union election that followed.
Applying the Board’s own precedent, Judge Henderson’s opinion for the court agreed with the Board that advertising “Government” support for the union, in the form of local politicians’ endorsements, would not lead reasonable employees to believe the Board itself endorsed unionization.
But the court agreed with the Casino that the Board had departed from its own precedent without a “reasoned explanation” when it relied on the “wide margin of the Union’s victory” to disregard circumstantial evidence that the misleading pro-union message of the mock check-card certification was extensively disseminated to the voters.
Although the Casino won a remand, the case presents a mixed outcome for business and labor. The decision may embolden union organizers to solicit and advertise non-NLRB governmental support, but it also makes clear that a lopsided union victory is no reason to overlook possible election improprieties. The decision also clarifies that the dissemination of a coercive electioneering message may be proven by circumstantial evidence.
The most important aspect of the case for future challenges to NLRB actions may be the court’s holding that the employer’s objections to the administrative law judge’s decision adequately preserved the dissemination issue for the D.C. Circuit’s review. Section 10(e) of the National Labor Relations Act generally bars a court from considering issues that were not raised in administrative proceedings. The Board argued that the Casino should have moved for reconsideration if it intended to challenge the Board’s ruling on the dissemination issue, since the Board’s ground for decision was different from the ALJ’s. Although the Casino could not have challenged the Board’s reading of its own precedent until the Board’s decision issued, the D.C. Circuit held that a party may satisfy the exhaustion requirement without articulating such a specific argument before the agency. ”Trump Plaza’s argument that the mock card-check was adequately disseminated to affect the election necessarily includes the argument that it was adequately disseminated under Board precedent.”
The court held that the employer had put the Board on notice of its position by arguing that “the certification message was distributed throughout the voting community” by means of the certification rally, a television news broadcast, and leaflets at the union hall. Seeking reconsideration by the Board would thus have been an “empty formality.”
On remand, the Board will have to assess–in accord with its precedent–the extent of the dissemination of the faux card-check certification in light of the severity of the misleading message it communicated.