Trump Plaza

National Labor Relations Board - Board Decisions

Sep 29, 2010

355 N.L.R.B. 1245 (N.L.R.B. 2010)

TRUMP PLAZA HOTEL
355 NLRB No. 202
1245
Trump Plaza Associates d/b/a Trump Plaza Hotel and
Casino and International Union, United Auto-
mobile, Aerospace & Agricultural Implement
Workers of America—AFL–CIO, Petitioner.
Cases 4–CA–36217 and 4–RC–21263
September 29, 2010
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On August 29, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 352 NLRB No. 146 (2008), not re-
ported in Board volume.1 Thereafter, the Respondent
filed a petition for review in the United States Court of
Appeals for the District of Columbia Circuit, and the
General Counsel filed a cross-application for enforce-
ment. On June 17, 2010, the United States Supreme
Court issued its decision in New Process Steel, L.P. v.
NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of
the Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. Thereafter, the court of appeals remanded
this case for further proceedings consistent with the Su-
preme Court’s decision.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.2
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. The Board’s August 29, 2008 decision states that
the Respondent is precluded from litigating any represen-
tation issues because, in relevant part, they were or could
have been litigated in the prior representation proceed-
ing. The prior proceeding, however, was also a two-
member decision, and we do not give it preclusive effect.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the remaining member who participated in the origi-
nal decision. Furthermore, under the Board’s standard procedures
applicable to all cases assigned to a panel, the Board Members not
assigned to the panel had the opportunity to participate in the adjudica-
tion of this case prior to the issuance of this decision.
We have considered the post-election representation
issues raised by the Respondent. The Board has re-
viewed the record in light of the exceptions and briefs,
and has adopted the judge’s findings and recommenda-
tions to the extent and for the reasons stated in the May
30, 2008 Decision and Certification of Representative as
modified below,3 which is incorporated herein by refer-
ence.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Union, United Automobile,
Aerospace & Agricultural Implement Workers of Amer-
ica, AFL–CIO, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:4

Included: All full-time and regular part-time dealers
employed by the Employer at its Mississippi and the
Boardwalk, Atlantic City, NJ facility.

Excluded: All other employees, cashiers, pit clerks,
clerical employees, engineers, guards and supervisors
as defined in the Act.

Notice to Show Cause
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. Courts of Appeals. Al-
though Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,

3 In incorporating the prior decision, we revise fn. 7 to read, “A local
television channel broadcast a brief report about the event on that eve-
ning’s 11 o’clock news, and three newspaper stories mentioned the
event (although none described it using the word ‘certification’), but
the stipulated facts do not state that any dealers saw the broadcast or
read the stories or otherwise satisfy the Employer’s burden of proof on
the issue.” See Trump Plaza Hotel & Casino, 352 NLRB 628, 628 fn.
7 (2008). We also revise the prior decision’s description of the record
evidence pertaining to whether any dealers saw the poster, or copies
thereof, prior to the election; we note that the stipulated facts do not
state that any dealers saw the poster or copies thereof at the Union’s
office prior to the election and the Employer did not otherwise satisfy
its burden of proof on that issue. See id. at 628.
4 The Stipulated Election Agreement further stated:
Voting Subject to Challenge: All full-time and regular part-time dual-
rate dealers/supervisors may vote subject to challenge by the parties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
1. The General Counsel is granted leave to amend the
complaint on or before October 8, 2010 to conform with
the current state of the evidence;
2. The Respondent’s answer to the amended complaint
is due on or before October 22, 2010; and
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before November 12, 2010 (with affidavit
of service on the parties to this proceeding), as to why
the Board should not grant the General Counsel’s motion
for summary judgment. Any briefs or statements in sup-
port of the motion shall be filed by the same date.