Trump Plaza Associates, Doing Business As Trump Plaza Hotel and Casino 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 H OTEL AND CASINO,
PETITIONER
v.
NATIONAL L ABOR RELATIONS BOARD ,
RESPONDENT
I NTERNATIONAL UNION , UNITED AUTOMOBILE ,
AEROSPACE & AGRICULTURAL I MPLEMENT WORKERS
OF AMERICA , AFL-CIO,
I NTERVENOR
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.

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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 LE C RAFT 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.

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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!

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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.

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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

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“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

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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).

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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

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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.

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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.

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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

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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

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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

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“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.

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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

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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.

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