Trump Plaza Associates v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 9, 2012 Decided May 11, 2012

No. 10-1412

TRUMP PLAZA ASSOCIATES,

DOING BUSINESS AS TRUMP PLAZA HOTEL AND CASINO,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA, AFL-CIO,

INTERVENOR

Consolidated with 11-1028

On Petition for Review and Cross-Application

for Enforcement of an Order of the National Labor

Relations Board

Theodore M. Eisenberg argued the cause for the

petitioner. Brian A. Caufield was on brief.

Jeffrey Burritt, Attorney, National Labor Relations

Board, argued the cause for the respondent. John H.

2

Ferguson, Associate General Counsel, Linda Dreeben,

Deputy Associate General Counsel, Julie B. Broido,

Supervisory Attorney, and Renée D. McKinney, Attorney,

were on brief. Kira D. Vol, Attorney, entered an appearance.

Cassie Ehrenberg and Blair Katherine Simmons were on

brief for intervenor International Union, United Automobile,

Aerospace & Agricultural Implement Workers of America,

AFL-CIO in support of the respondent.

Before: HENDERSON, GRIFFITH and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner

Trump Plaza Hotel and Casino (Trump Plaza) seeks review of

an order of the National Labor Relations Board (Board,

NLRB), in which order the Board concluded that Trump Plaza

violated section 8(a)(5) and (1) of the National Labor

Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (5), by

refusing to bargain with the International Union, United

Automobile, Aerospace and Agricultural Implement Workers

of America, AFL-CIO (Union). See Trump Plaza Assocs., 356

N.L.R.B. No. 53, 2010 WL 5089764 (Dec. 13, 2010). Trump

Plaza concedes that it refused to bargain with the Union but

claims that the Board erred in certifying the Union. The Board

cross-applied for enforcement. For the reasons set forth

below, we grant Trump Plaza’s petition and vacate the

Board’s order.

I.

In February and March 2007,1 the Union was engaged in

a city-wide campaign to represent the card dealers at several

1

All dates are in 2007 unless otherwise noted.

3

Atlantic City casinos, including Trump Plaza. The centerpiece

of the Union’s strategy was to garner and publicize the

support of local, state and federal government officials. On

March 22, for example, the Union sent a campaign leaflet

entitled “Legislators Sign-On in Support of Atlantic City

Dealers” to all of Trump Plaza’s full-time and part-time

dealers. Employer’s Ex. 2. The leaflet, which was signed by

sixty New Jersey state assemblymen and senators, declared

that Union representation would give the dealers a “powerful

voice to negotiate for better salaries, fair benefits, and a

secure retirement.” Id. The back of the leaflet included copies

of five letters from local, state and federal officials supporting

the Union and unionization. The letters were also made

available on the Union website through the link “Your

Government and Community Support[] You, Click Here!”

Employer’s Ex. 4G.

On March 25, six days before the election, the Union

held a rally and “mock card-check ceremony,” Resp’t’s Br. 7,

at which three public officials (United States Congressman

Robert Andrews, State Senator James “Sonny” McCullough

and State Assemblyman Jim Whelan) signed a document

entitled “Certification of Majority Status.” Employer’s Ex. 3.

According to the document, the officials had “conducted a

confidential examination of Union authorization cards . . . . in

accordance with NLRB rules” and had determined that a

majority of Trump Plaza’s dealers “authorized the [Union] to

represent them for the purposes of collective bargaining.” Id.2

2

Although the record provides little detail about how the mock

card-check was conducted, the Union website advised dealers that

they had a right to submit authorization cards to Union

representatives. Employer’s Ex. 4H. According to the website, the

cards would be counted in confidence and given to the Board,

where they would remain until “we are certified.” Id. (“The

Company has No Right to know who is or is not signing cards!

4

Congressman Andrews led the event, which was attended by

numerous Union representatives as well as a handful of public

officials and at least two Trump Plaza dealers. Atlantic City’s

television station NBC40 reported on the rally on the eleven

o’clock news. The NBC40 reporter explained that:

Representative Robert Andrews led a

bipartisan card-check authorization for Trump

Plaza Casino Dealers. The results of the card-

check showed certification of majority status

for forming a union at Trump Plaza. This

comes on the heels of last week’s similar

election at Caesar’s Casino, when more than

80 per cent voted in favor of forming their own

union as part of the UAW union . . . . State

Senator Sonny McCullough, Assemblyman

Jim Whelan and Reverend Reginald Floyd,

joined Representative Andrews to sign the card

count to confirm verification that the dealers

want to join the UAW union.

Employer’s Ex. 6. A poster-sized version of the “Certification

of Majority Status” document was visible during the segment.

Id. The broadcast then showed Congressman Andrews who

said: “It’s a very American right to bind together with your

neighbors and speak up for yourself. And there are some very

courageous dealers that are doing that and I support them.” Id.

The reporter ended the segment by noting, “[t]he actual vote

will be held this Saturday.” Id. Eighty-seven per cent of the

voting class lived—and one hundred per cent of the voting

Those cards will go . . . [from] the union reps[] to the National

Labor Relations Board, where they stay until we are certified.”).

Instead, the cards were apparently counted by the three public

officials—Andrews, McCullough and Whelan—and, in any event,

were not given to the Board.

5

class worked—in NBC40’s broadcast area. See Employer’s

Ex. 8. Two newspapers also covered the rally. Pet’r’s Br. 44;

see Wayne Parry, Dealers at Another Casino Seek Union,

Mar. 30, 2007, available at http://abclocal.go.com/wpvi/

story?section=news/local&id=5166717; Maya Rao, Dealers

at Plaza Vote Today on Union, ATLANTIC CITY PRESS, Mar.

31, 2007.

After the rally, the Union displayed a copy of the

“Certification of Majority Status” poster in its office and

printed leaflet-sized photocopies, which were “made available

to dealers who came into the union hall so they could read

[them] and take [them].” Transcript of ALJ Hearing at 31-32,

Trump Plaza Assocs., No. 4-RC-21263 (NLRB May 23,

2007) (“There is a document entitled certification of majority

status . . . [that] is identical to the poster that appears in the

video broadcast . . . the actual poster board . . . was kept in the

union hall . . . from the period approximately March 26th

through the date of the election, and . . . the paper copy[] was

reproduced and made available to dealers who came into the

union hall so they could read it and take it.”). On March 31,

the Union won the election by a vote of 324 to 149, with one

challenged ballot.

While the Union had won the hand, Trump Plaza did not

fold. Instead, it filed objections with the Board challenging

the Union’s election. Specifically, it alleged that the Union

“explicitly and implicitly” misled voters to believe that the

government—including the NLRB—“endorsed and supported

the Union in the election, . . . undermining governmental (and

NLRB) neutrality.” Employer’s Objections to Election at 1,

Trump Plaza Assocs., No. 4-RC-21263 (NLRB Apr. 9, 2007).

It further accused the Union of “[a]cting 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” to give the false impression that

6

“the Union was the certified representative of the dealers

before an election was conducted.” Id.

After a one-day hearing, an administrative law judge

(ALJ) recommended that the Board reject Trump Plaza’s

objections and certify the Union as the dealers’ exclusive

bargaining agent. See Trump Plaza Assocs., 352 N.L.R.B.

628, 633-34 (2008). And, on May 30, 2008, a two-member

panel of the Board did just that, albeit for somewhat different

reasons from those relied on by the ALJ. See id. at 629-30.

Thereafter, the Board General Counsel issued a complaint

alleging that Trump Plaza had violated section 8(a)(5) and (1)

of the NLRA in refusing to bargain with the Union. See 29

U.S.C. § 158(a)(1), (5). In its answer, Trump Plaza admitted

its refusal to bargain but challenged the Union’s certification.

On August 29, 2008, the two-member Board again rejected

Trump Plaza’s attempt to set aside the election. Trump Plaza

Assocs., 352 N.L.R.B. No. 146, 2008 WL 4056280 (Aug. 29,

2008). Trump Plaza then petitioned this Court for review,

challenging, inter alia, the two-member Board’s capacity to

act. We held the case in abeyance pending the United States

Supreme Court’s decision in New Process Steel, L.P. v.

NLRB, 130 S. Ct. 488 (2009). The High Court ultimately held

that the two-member Board lacked the authority to act, New

Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2645 (2010);

we then vacated the Board’s decision and “remanded for

further proceedings before the Board.” Trump Plaza Assocs.

v. NLRB, Nos. 08–1304, 08–1340, 2010 WL 4227407 (D.C.

Cir. Sept. 20, 2010).

On September 29, 2010, the Board upheld the

certification of the Union for the reasons stated in the May 30,

2008 order. See Trump Plaza Assocs., 355 N.L.R.B. No. 202,

2010 WL 3813239 (Sept. 29, 2010). Specifically, the Board

found that “reasonable voters would not have concluded that

the letters and resolutions [from government officials], either

7

individually or in the aggregate, reflected the Board’s

endorsement of the Union or otherwise raised doubts about

the Board’s neutrality.” Trump Plaza Assocs. 352 N.L.R.B. at

629. It further found that the mock “card-check ‘Certification’

. . . [did] 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

victory.” Id. The Board then reaffirmed that, by “refusing to

recognize and bargain with the Union as the exclusive

collective-bargaining representative of the unit employees,

[Trump Plaza] ha[d] engaged in unfair labor practices.”

Trump Plaza Assocs., 356 N.L.R.B. No. 53, 2010 WL

5089764 (Dec. 13, 2010).

Trump Plaza timely petitioned for review.

II.

Section 8(a)(5) of the NLRA makes it an unfair labor

practice for an employer “to refuse to bargain collectively

with the representatives of his employees.” See 29 U.S.C.

§ 158(a)(5).3 Trump Plaza does not dispute that it refused to

bargain with the Union but instead challenges the Board’s

certification of the Union. See U-Haul Co. of Nev. v. NLRB,

490 F.3d 957, 960-61 (D.C. Cir. 2007). “[Our] review of

NLRB decisions is deferential.” Pirlott v. NLRB, 522 F.3d

423, 432 (D.C. Cir. 2008). We vacate a Board order “if the

Board’s factual findings are not supported by substantial

evidence[] or the Board acted arbitrarily or otherwise erred in

applying established law to the facts of the case.” Id.

(quotation marks and citation omitted). “On questions

regarding representation, we accord the Board an especially

wide degree of discretion,” Canadian Am. Oil Co. v. NLRB,

3

“A violation of [s]ection 8(a)(5) is also a violation of [s]ection

8(a)(1) . . . .” S. Nuclear Operating Co. v. NLRB, 524 F.3d 1350,

1356 n.6 (D.C. Cir. 2008).

8

82 F.3d 469, 473 (D.C. Cir. 1996) (quotation marks and

citation omitted), “as Congress has charged the Board, a

special and expert body, with the duty of judging the tendency

of electoral flaws to distort the employees’ ability to make a

free choice,” C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 885

(D.C. Cir. 1988) (quotation marks and citation omitted). That

said, the Board cannot “ignore its own relevant precedent but

must explain why it is not controlling.” B B & L, Inc. v.

NLRB, 52 F.3d 366, 369 (D.C. Cir. 1995). “Where an agency

departs from established precedent without a reasoned

explanation, its decision will be vacated as arbitrary and

capricious.” Pirlott, 522 F.3d at 432 (quotation marks and

citation omitted).

A. Government Endorsement

Trump Plaza first argues that the Union—acting in

concert with numerous government officials—sought to make

voters believe that the NLRB (and the government generally)

supported the Union and viewed unionization as a

governmental objective. Trump Plaza points to the Union’s

distribution of the five letters from local, state and federal

officials supporting the Union and unionization in general,

which letters were included in the Union campaign leaflet

mailed to the employees on March 22 and made available on

the Union website. It also highlights repeated statements

made in Union mailings and on its website that the

“Government” and “Legislators” supported the Union’s

campaign. See, e.g., Employer’s Ex. 4A (“These are letters

from our Government in Support of Exercising our Rights

Under State and Federal Laws!”); Employer’s Ex. 2

(“Legislators Sign-On in Support of Atlantic City Dealers”).

The Board maintains that, while the Union used governmental

support as a central component of its campaign strategy, no

reasonable voter would misinterpret the various letters and

9

statements to suggest that the Board itself endorsed the Union.

Resp’t’s Br. 17.

A public official’s involvement in an election campaign

is not by itself objectionable. Affiliated Computer Servs., Inc.,

355 N.L.R.B. No. 163, 2010 WL 3446126, at *2 (Aug. 27,

2010). “[P]ublic officials . . . , like other third parties, are not

required to remain neutral and may properly seek to persuade

employees.” Id. The Board will set aside a representation

election because of a public official’s endorsement only if the

endorsement (1) “create[s] a general atmosphere of fear and

reprisal rendering a free election impossible,” Overnite

Transp. Co. v. NLRB, 140 F.3d 259, 265 (D.C. Cir. 1998)

(quotation marks and citation omitted), or (2) reasonably

suggests that the Board itself endorses a particular outcome,

see Ursery Cos., 311 N.L.R.B. 399, 399 (1993) (“[N]o

participant in a Board election may . . . suggest either directly

or indirectly that this Government Agency endorses a

particular choice in an election.” (emphasis in original)).

The letters distributed by the Union here are plainly the

opinions of the various officials who wrote them.

Congressman Andrews’s letter, for example, recounts his

personal experience working with the Union: “I have had the

privilege of working closely with the [Union] and . . . think

very highly of them and what they represent. I am confident

that the [Union] will continue to zealously represent its

members to protect their rights.” Employer’s Ex. 4D.

Although some of the letters suggest that the “Government”

supported the Union’s campaign, e.g., Employer’s Ex. 4C

(“Government’s advocacy for casino workers has been very

successful, securing a stable workforce for casinos while

protecting employees’ rights . . . .”), nothing suggests that the

officials’ statements intended to speak for or otherwise

indicate that the Board itself supported unionization.

10

For this reason, Trump Plaza’s reliance on Columbia

Tanning Corp., 238 N.L.R.B. 899 (1978), is misplaced. In

Columbia Tanning, a letter endorsing unionization was

written in Greek on stationary with the Massachusetts

Department of Labor letterhead and mailed to a group of

twenty-six Greek employees, about half of whom did not

speak English. Id. at 899. The next day, the union narrowly

won the election. When Columbia Tanning challenged the

election, the Board determined that, because the laborers were

“recent immigrants who in all likelihood were not familiar

with the complexities of state and Federal jurisdiction over

labor relations,” the letter created a “potential for confusion”

that threatened the “Board’s appearance of impartiality” and

“thereby interfere[d] with the exercise of a free choice in the

election.” Id. at 900 (emphasis added). Given the union’s

narrow margin of victory and the special circumstances, the

Board set aside the election. Id.

Since Columbia Tanning, however, the Board has

repeatedly upheld union elections where a public official

supported a particular election outcome but nothing in the

record suggested that the voters could have reasonably

believed the Board itself endorsed that outcome. See, e.g.,

Chipman Union, Inc., 316 N.L.R.B. 107, 107-08 (1995)

(“[T]he Employer [here] has not referred to any potential

evidence which would show that its employees could not

discern the difference between statements about labor

relations by an individual member of Congress and statements

by the Board and its representative.”). Unlike the Greek

immigrants in Columbia Tanning who “could not be expected

to discern readily the difference between [a letter from] the

state ‘Department of Labor’ and the Federal ‘National Labor

Relations Board,’ particularly in light of the fact that both

contain the word ‘Labor’ in their titles,” 238 N.L.R.B. at 900,

nothing in the record suggests that Trump Plaza dealers were

similarly susceptible to confusion. See also Huntsville Mfg.

11

Co., 240 N.L.R.B. 1220, 1223 (1979) (“Our concern [after

Columbia Tanning] is . . . with how closely a document

mimics a Board publication—an[d] under what circumstances

it can be said that employees might be susceptible to such

mimicry.” (emphasis added)); Ursery Cos., 311 N.L.R.B. at

399 n.2 (“[E]mployees are not so politically naïve that they

would be unable to distinguish between a Connecticut State

Representative and the NLRB . . . .”). Accordingly, we

believe that the Trump Plaza dealers could not reasonably

have read the leaflet or website to suggest that the Board

endorsed unionization.

B. Mock Card-Check

Trump Plaza also challenges the mock card-check rally

and its corresponding certification document. The ALJ

recommended overruling the objection on the ground that “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.” Trump Plaza

Assocs., 352 N.L.R.B. at 634. The Board, however, dismissed

Trump Plaza’s challenge on a different ground. It held that

“[i]n the absence of evidence establishing that the

Certification was widely disseminated among the unit

employees, and given the Union’s substantial margin of

victory . . . , the record does not permit a reasonable inference

that the document could have influenced enough employees to

affect the results of the election.” Id. at 630. Trump Plaza

argues that, in so holding, the Board departed from its

precedent and, without explanation, set a new standard for

establishing dissemination. The Board meets this argument at

the threshold, claiming that section 10(e) of the NLRA, 29

U.S.C. § 160(e), bars our review. Specifically, it argues that

Trump Plaza was obligated to move for reconsideration

12

challenging the Board’s different basis for its decision in

order to preserve the issue for our review.

1. Waiver Vel Non

Under section 10(e) of the NLRA, “[n]o objection that

has not been urged before the Board, its member, agent, or

agency, shall be considered by the court, unless the failure or

neglect to urge such objection shall be excused because of

extraordinary circumstances.” 29 U.S.C. § 160(e). The

provision promotes the “salutary policy . . . of affording the

Board opportunity to consider on the merits questions to be

urged upon review of its order.” Marshall Field & Co. v.

NLRB, 318 U.S. 253, 256 (1943). “Cases interpreting section

10(e) look to whether a party’s exceptions are sufficiently

specific to apprise the Board that an issue might be pursued

on appeal.” Consol. Freightways v. NLRB, 669 F.2d 790, 793

(D.C. Cir. 1981). “While we have not required that the ground

for the exception be stated explicitly in the written exceptions

filed with the Board, we have required, at a minimum, that the

ground for the exception be evident by the context in which

the exception is raised.” Parsippany Hotel Mgmt. Co. v.

NLRB, 99 F.3d 413, 417 (D.C. Cir. 1996) (brackets, quotation

marks and citation omitted). “In each case, the critical inquiry

is whether the objections made before the Board were

adequate to put the Board on notice that the issue might be

pursued on appeal.” Consol. Freightways, 669 F.2d at 794

(emphasis added).

Although Trump Plaza did not move for

reconsideration—raising a specific challenge to the Board’s

alleged departure from precedent—it did emphasize the scope

of the mock card-check’s dissemination in excepting to the

ALJ’s decision. See, e.g., Employer’s Exceptions to the ALJ’s

Decision at 2, 3-4, Trump Plaza Assocs., No. 4-RC-21263

(July 12, 2007) (Trump Plaza “takes exception” to “[t]he

ALJ’s finding that the airing of a television news program, six

13

days before the election, throughout the viewing area where

87% of the voters lived and 100% worked, . . . did not

reasonably tend to mislead voters as to the impartiality of the

Board and/or Government.”); Employer’s Br. in Support of Its

Exceptions to ALJ’s Decision at 22, Trump Plaza Assocs.,

No. 4-RC-21263 (July 12, 2007) (“[T]he certification

message was distributed throughout the voting community . . .

.”); id. at 28 n.19 (“The misrepresentation of governmental

certification was disseminated first via two Trump dealers

who attended the certification rally; second by television

broadcast . . . ; and, third . . . by handouts to dealers who came

to the hall . . . .”). The Union also argued the dissemination

issue. See Union’s Br. in Answer to Trump Plaza’s

Exceptions to the ALJ’s Decision at 18 n.13, Trump Plaza

Assocs., No. 4-RC-21263 (July 23, 2007) (“[N]o evidence

was introduced as to the general viewership ratings for the

particular broadcast nor was there any evidence that any voter

actually saw the broadcast.”); id. at 17 n.12 (“[O]nly two

Trump dealers attended this event.”).

We believe Trump Plaza’s objections “were adequate to

put the Board on notice” that the Board’s treatment of the

dissemination issue inexplicably departed from precedent. Its

failure to seek reconsideration, then, is not fatal to its petition

for review. 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. See BPH & Co. v. NLRB, 333 F.3d

213, 219 (D.C. Cir. 2003) (“[D]espite the fact that the

Company’s attack on the Board’s new application [of its

precedent] is made for the first time before us, the Board was

sufficiently apprised, for the purpose of section 10(e), of the

critical issue—whether the Board’s [unfair labor practice]

findings are supported by substantial evidence.”). Raising the

issue by seeking Board reconsideration would have been an

14

“empty formality.” Local 900, Int’l Union of Elec., Radio &

Mach. Workers v. NLRB, 727 F.2d 1184, 1192 (D.C. Cir.

1984).

2. Merits

Satisfied with our jurisdiction to review the mock card-

check challenge, we turn to the merits thereof. First, the

Board was plainly wrong to conclude that there was an

“absence of evidence” of dissemination. Trump Plaza Assocs.,

352 N.L.R.B. at 630. It is undisputed that (1) at least two

Trump Plaza dealers attended the mock-certification rally; (2)

the rally was covered by NBC40 on its 11 o’clock news that

evening; (3) eighty-seven per cent of Trump Plaza dealers

resided, and one hundred per cent of them worked, in the

station’s broadcast area; (4) the certification poster was

displayed in the Union hall for six days before the election;

(5) copies of the certification were available for distribution in

the Union hall; and (6) two local newspapers published stories

of the certification rally. Given the substantial media coverage

of the event, it blinks reality to say that Trump Plaza failed to

provide “evidence establishing that the Certification was

widely disseminated among the unit employees.” Id. This

statement suggests that the Board requires direct evidence of

dissemination. But nothing in our case law or in Board

precedent supports such a requirement. See, e.g., Crown Bolt,

Inc., 343 N.L.R.B. 776, 779 (2004) (“Where proof of

dissemination of coercive statements . . . is required, the

objecting party will have the burden of proving it and its

impact on the election by direct and circumstantial evidence.”

(emphasis added)). Indeed, a direct-evidence requirement

could unfairly burden the party challenging the election,

obligating it to poll each member of the voting class—or at

least a sufficient number to affect the election—to determine

whether they were aware of the challenged conduct.

15

In evaluating the adequacy of dissemination, moreover,

the Board looks to the gravity and severity of the conduct. In

basing its decision solely on lack of dissemination and margin

of victory without considering the nature of the challenged

conduct, the Board put the cart before the horse. See id.

(“[T]he severity of a threat is one factor, among several, to be

considered in deciding whether to set aside an election.”); see

also Caron Int’l, Inc., 246 N.L.R.B. 1120, 1120 (1979)

(factors Board considers in resolving whether misconduct

affected results of election include number of violations,

severity, extent of dissemination and size of unit). In Archer

Services, Inc., 298 N.L.R.B. 312 (1990), for example, the

Board relied largely on circumstantial evidence of

dissemination and the severity of the challenged conduct to

set aside an election with a substantial voting margin (382 to

41). Archer Services involved a union challenge to an election

on grounds similar to those at issue here. The union alleged

the employer distributed a document—an altered NLRB

ballot—that impugned the Board’s impartiality. The Board

determined that “employees could reasonably believe that the

document came from the Board or that the Board favored the

[e]mployer,” and, given the employer’s stipulation that it

distributed the altered ballot during the campaign, the Board

adopted the ALJ’s recommendation to set aside the election—

“notwithstanding the large size of the unit and the decisive

outcome of the vote” and the fact that only two voters

admitted to having seen the altered ballot. Id. at 314.

Similarly, in Mount Carmel Medical Center, 306

N.L.R.B. 1060 (1992), the Board set aside a lopsided election

(185 to 77) because the employer had posted a “forged”

document in the workplace. Id. at 1060 n.2. The Board

explained that “[c]ontrary to the Employer’s assertion that

few employees saw the document in question,” it was

“distributed to [non-voting] managers, . . . posted by the

Employer’s basement timeclock, on the bulletin board of its

16

fourth floor medical department, and on restroom doors.” Id.

Thus, the Board held the hearing officer was “justified in

drawing an inference that the [] document was widely

disseminated and therefore could have affected the election

outcome.” Id.

It escapes us how the evidence of dissemination here is

weaker than in Archer Services or Mount Carmel Medical. In

both of those cases, the Board, relying largely on the gravity

of the challenged conduct and circumstantial evidence of

dissemination, set aside the election. And it did so despite

wide voting margins. Here, however, the Board ignored the

substantial circumstantial evidence of dissemination and

relied almost entirely on the “wide margin of the Union’s

victory” (324 to 149), which was no larger than the margin of

victory in Archer Services (382 to 41) or Mount Carmel

Medical (185 to 77). See Trump Plaza Assocs., 352 N.L.R.B.

at 629-30. The Board has given no “reasoned explanation” for

its departure from this precedent. Pirlott, 522 F.3d at 432.

For the foregoing reasons, we grant Trump Plaza’s

petition, vacate the Board’s order and remand to the Board to,

first, assess the severity of the challenged conduct—to wit,

Trump Plaza’s contention that the mock card-check

constituted “a fundamental breach of Board neutrality,”4

Pet’r’s Br. 17, which misled voters to believe the election was

a “foregone conclusion,” id. at 33—and second, to reassess

the extent of the mock card-check dissemination under its

precedent.

So ordered.

4

In this regard, we note the “Certification of Majority Status”

recited that Andrews’s, McCullough’s and Whelan’s examination

of Union authorization cards was conducted “in accordance with

NLRB rules,” Employer’s Ex. 3, suggesting the Board could have

had a role therein.