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Trump Marina Associates, LLC v. National Labor Relations Board
Citation: 445 F. App'x 362Docket: Nos. 10-1317, 10-1323
Court: Court of Appeals for the D.C. Circuit; October 14, 2011; Federal Appellate Court
The court issued a per curiam judgment denying the petition for review regarding Petitioner’s claims under sections 8(a)(1) and 8(a)(8) of the National Labor Relations Act (NLRA) and dismissing the petition related to the challenge against the National Labor Relations Board's (NLRB) order for a second election due to lack of jurisdiction. The court granted the cross-application for enforcement. The case stemmed from a union representation election on May 11, 2007, at Trump Marina, where a narrow vote against union representation led to the Union filing unfair labor practice charges. The NLRB found that Trump Marina violated sections 8(a)(1) and 8(a)(3) of the NLRA by engaging in coercive conduct and retaliating against a union activist. Following a remand due to a Supreme Court decision, a three-member NLRB panel affirmed the earlier findings. The court upheld the NLRB's factual determinations as they were supported by substantial evidence. It clarified that under section 8(a)(1), employer conduct is evaluated based on its potential to coerce employees rather than actual coercion. The Board's assessment of five conversations between casino managers and employees during the campaign was deemed appropriate, with evidence suggesting that these interactions were coercive attempts to influence employee opinions about the Union. The court concluded that the comments made by management about future operational changes if the Union was elected constituted threats that went beyond mere commentary on unionization implications. Supervisor Mangione's speculation regarding layoffs was deemed an unlawful threat by the Board, as it lacked objective evidence and did not reflect a belief in probable consequences beyond Trump Marina's control. Additionally, floor supervisor Ferrare's comments to employee Spina implied that voting for the Union would be futile, violating section 8(a)(1) of the National Labor Relations Act (NLRA). Section 8(a)(3) prohibits discrimination related to employment terms to influence labor organization membership. The Board found substantial evidence that Trump Marina retaliated against a union activist by disciplining him for engaging in protected activities, dismissing the employer's non-discriminatory reasoning as pretextual. Furthermore, Trump Marina's request to overturn the Board's decision for a second election was rejected due to lack of jurisdiction, as such an order is not considered a "final order" eligible for judicial review under the NLRA. The Clerk will withhold the issuance of the mandate until any timely petitions for rehearing are resolved.