What constitutes objectionable conduct during a union campaign is an ongoing question for employers. Analyzing particularly blatant, albeit creative, union activities, the U.S. Court of Appeals for the D.C. Circuit recently reversed a National Labor Relations Board ruling that had rejected an employer’s challenge to election results based on alleged improper conduct by a union attempting to organize casino dealers. Trump Plaza Hotel & Casino v. NLRB (D.C. Cir. May 11, 2012).

In March 2007, the employer’s casino dealers voted 324-149 to be represented by the United Auto Workers Union. The employer filed objections to the election, alleging that union tactics interfered with the results. In particular, the employer took exception to the union’s prominent use of state and federal legislators in campaign propaganda. This included a letter of support and leaflet signed by numerous public officials (including over 60 state legislators), which was distributed and posted on the union’s website, as well as a “mock card check” ceremony conducted six days before the election, in which three public officials (state and federal legislators) signed a “certification of majority status” indicating that the officials had conducted a review of signed authorization cards and, “in accordance with NLRB rules,” had determined the union to be the majority representative of the dealers. The poster-sized “certification” was touted at a “ceremony” that was broadcast on a local NBC affiliate in an area in which 87% of the voting employees resided, and 100% worked, although there was no specific evidence regarding how many actually viewed the broadcast. Two newspapers also covered the rally, and the union later posted and distributed copies of the “certification” to members.

The employer challenged these tactics, alleging that they interfered with employee free choice by conveying the message that: (1) the union had already been certified, and thus an election was meaningless; and (2) the government (including the NLRB) endorsed the union in the election. The NLRB rejected these arguments, finding that “reasonable voters” would not have construed the union’s propaganda that way. The NLRB emphasized with respect to the mock card check that there was scant evidence that many voters were actually aware of ceremony. The Board focused on the absence of “wide dissemination” of the message, as well as the large union margin of victory, to support its conclusion that the conduct did not affect the election results.

The D.C. Circuit first rejected the employer’s argument that public officials’ involvement tainted the election. The court found that governmental involvement in an election, including public officials’ endorsement of a party to an election, was not itself objectionable conduct, unless it tended to create an atmosphere of fear and coercion, or was indicative of support by the NLRB for one party or the other.

But the court sustained the employer’s challenge to the NLRB’s holding regarding the mock card check, ruling that the Board departed from its own precedent when it determined the message had not been widely disseminated. The court found that the NLRB erroneously appeared to require “direct evidence” of dissemination of the allegedly unlawful statements, stating that such standard was too strict and inconsistent with prior Board precedent. The court noted that a “direct evidence” requirement would effectively require a party to poll each employee to determine whether he or she was aware of the offending conduct.

The court focused on the fact that: (1) several dealers attended the mock card check ceremony; (2) the ceremony was widely publicized both on television and in print media in the market where voting employees lived and worked; and (3) the “certification” was distributed by the union and posted at the union hall. The court noted that “given the substantial media coverage” of the mock card check, it “blinks reality” to suggest the message was not “widely disseminated” to voting employees. 

The court also found that the NLRB’s emphasis on lack of dissemination and the wide vote margin was inconsistent with prior precedent, which also focused on the “severity” of the objectionable conduct. The court remanded the case to the NLRB to assess the severity of the card check ceremony, strongly suggesting in a footnote that the conduct was objectionable, and further requiring the Board to re-assess the dissemination findings in light of its prior precedent.

The decision should cause both employers and unions to take note, because it may open the door for setting aside elections even in the absence of extensive evidence of dissemination, if the challenged conduct is of a sufficiently serious nature. The result might also encourage the losing party to file objections notwithstanding a large voting margin. It is worth noting, however, that the level of publicity present in the Trump case will not be present in many cases, so it may be more difficult to establish the standard has been met, even under the D.C. Circuit’s analysis.