On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge:
Before: HENDERSON, GRIFFITH and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
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.
In February and March 2007,*fn1 the Union was engaged in a city-wide campaign to represent the card dealers at several 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.*fn2
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 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 "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 ...