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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2003 Decided July 13, 2004
No. 03-1088
MAJESTIC STAR CASINO, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED STEELWORKERS OF AMERICA,
INTERVENOR
Consolidated with
03-1101
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
James Baird argued the cause for petitioner. With him on
the briefs were Joshua L. Ditelberg and James R. Cho.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Eric D. Duryea, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Howard E. Perlstein,
Deputy Assistant General Counsel. David S. Habenstreit
and Kira D. Vol, Attorneys, entered appearances.
Amanda Green argued the cause for intervenor. With her
on the brief was Richard J. Brean.
Before: EDWARDS, SENTELLE and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Majestic Star Casino, LLC (‘‘Ma-
jestic’’ and ‘‘the company’’) petitions this Court for review of a
decision and order of the National Labor Relations Board
(‘‘NLRB’’ and ‘‘Board’’) in an unfair labor practice proceed-
ing. Majestic contests the Board’s underlying certification of
the union, arguing both that the Board erred in ruling on its
election objections, and further that the company was improp-
erly denied an evidentiary hearing on some of those objec-
tions. For the reasons more fully set forth below, we deny
the petition and grant the Board’s cross-application for en-
forcement.
I. Background
Majestic operates a casino in Gary, Indiana. In April 2002,
United Steelworkers of America (‘‘Steelworkers’’ and ‘‘union’’)
sought certification from the Board as the collective-
bargaining representative for the company’s slot-machine
technicians.
On May 21, three days before the election, the union
distributed a flier to the company’s bargaining unit employ-
ees. The flier was styled a ‘‘Steelworkers Guarantee.’’ The
flier stated, in part:
3
We Guarantee the following to the Bargaining Unit
Employees of: MAJESTIC STAR CASINO (SLOT
TECHNICIANS)
1 The opportunity for you to elect your own negoti-
ating committeeTTTT
1 [T]hat [any approved contract will be one that]
YOU and your CO–WORKERS negotiated and have
VOTED by a MAJORITY to ACCEPTTTTT
1 That YOU have the right to ELECT your union
representative from your immediate house, who WILL
REPRESENT YOU before managementTTTT
On May 24—pursuant to a stipulated election agreement—
the Board conducted a secret-ballot election. Thirteen em-
ployees voted for representation and eight voted against. On
May 31, the company filed four objections to the election
conduct.
Majestic alleged that the election should be set aside
because the union, it claimed, misrepresented material facts,
impermissibly promised waiver of union initiation fees, im-
properly offered to waive or defer union dues payments, and
improperly influenced the outcome of the election.
The NLRB Regional Director (‘‘RD’’) issued an eighteen-
page report on the company’s objections, recommending that
the Board overrule all four. Majestic filed exceptions with
the Board to the RD’s report and recommendations.
The Board issued its unpublished Decision and Certifica-
tion of Representative on August 28, 2002 (the ‘‘Decision’’).
The Decision adopted the report, dismissed Majestic’s objec-
tions, and certified the union.
On September 17, 2002, the union requested that Majestic
begin bargaining. On October 9, Majestic refused. Two
months later, on December 2, the union filed a charge against
Majestic with the Board. The union alleged that Majestic
violated section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the ‘‘Act’’) by its refusal to bargain. 29 U.S.C.
4
§ 158(a)(1) & (5). The RD issued a Complaint and Notice of
Hearing based on the charge.
Majestic answered on December 27, admitting its refusal to
bargain, but maintaining that for the reasons it cited in its
election objections, the Board invalidly certified the union.
The company argued that by ruling as it did—and by not
holding an evidentiary hearing on all of Majestic’s points—the
NLRB ‘‘improperly applied the legal standards governing the
proper conduct of a representative election.’’
On January 13, 2003, NLRB Counsel moved for summary
judgment on the refusal-to-bargain complaint. In response,
the Board directed Majestic to show cause why it should not
grant the motion. Majestic responded—reasserting that the
election should have been set aside for all the reasons it gave
earlier—by repeating that the Board improperly certified the
union.
On February 26, the Board granted the union’s Motion for
Summary Judgment and found that Majestic’s conduct consti-
tuted an unlawful refusal to bargain in violation of section
8(a)(5) and (1) of the Act. The Majestic Star Casino, 338
NLRB No. 107 (February 26, 2003) (the ‘‘Decision and Or-
der’’). The Board reasoned that it had already ruled against
Majestic’s objections when it had certified the union, and that
Majestic thus already had or could have litigated these issues
then. Decision and Order at 1. Moreover, the Board contin-
ued, Majestic did not ‘‘offer to adduce at a hearing any newly
discovered and previously unavailable evidence, nor [did] it
allege any special circumstances that would require the Board
to reexamine’’ its decision to certify the union. Id. The
Board reasoned that because the factual issues relating to the
election were litigated in the representation proceeding, there
were no genuine issues of material fact in the unfair labor
proceeding. Id. (citing Pittsburgh Plate Glass Co. v. NLRB,
313 U.S. 146, 162 (1941)). The Board therefore denied Majes-
tic an evidentiary hearing, reasoning that it would serve no
purpose. See, e.g., Alois Box Co. v. NLRB, 216 F.3d 69, 78
(D.C. Cir. 2000) (‘‘[b]ecause [a] company had an opportunity
to litigate all relevant issues of fact TTT an evidentiary
5
hearing would have served no purpose’’). The Board thus
ordered Majestic to, inter alia, bargain with the union upon
request, to embody any agreement reached in a signed docu-
ment, and to post an appropriate remedial notice at its plant
in Gary, Indiana. Decision and Order at 2.
II. Analysis
A. Material Misrepresentations
The company contends that various statements contained in
the ‘‘Steelworkers Guarantee’’ flier misrepresented material
facts, and the flier’s distribution thus tainted the election.
The company argues that the statements constitute a materi-
al misrepresentation because the union failed to disclose that:
(1) only members of the union and not all employees vote for
ratification of a contract, (2) only members of the union and
not all employees are allowed to elect negotiation committee
members, and (3) the International Union and not the em-
ployees themselves approve or reject contract provisions.
Thus, the flier failed to disclose certain limitations on the unit
employees’ opportunity to participate in certain internal union
affairs, such as choosing their union representatives and
approving any agreement reached with the company. The
company argues that voting employees were swayed by the
statements in the flier. In support of this assertion, the
company relies on affidavits it claims show that the state-
ments led employees to form certain beliefs before the elec-
tion, and that after the election they realized those beliefs
were mistaken. The company further contends that the
issues concerned were important to the employees. The RD,
whose findings were adopted by the Board, considered and
resolved this objection with longstanding and controlling
precedent.
The RD, and by adoption the Board, reviewed the allegedly
misleading campaign statements under the standards set
forth in Midland National Life Insurance Company, 263
NLRB 127 (1982). Under the Midland rule, the Board
refrains from inquiring into the truth or falsity of the parties’
campaign statements, and will not set elections aside on the
6
basis of misleading campaign statements. The Board will
intervene and set aside an election only in ‘‘cases where a
party has used forged documents which render the voters
unable to recognize propaganda for what it is.’’ Id. at 133.
While acknowledging the existence of the Board’s prece-
dent, the company argues that the Board erred by ‘‘blindly
following Midland.’’ Rather, the company argues, the Board
should have adopted the United States Court of Appeals for
the Sixth Circuit’s exception to Midland. That circuit has
carved out a narrow exception to Midland for purposes of
‘‘evaluating whether campaign literature unlawfully interfered
with the employees’ free choice in a representation election.’’
NLRB v. St. Francis Healthcare Centre, 212 F.3d 945, 964
(6th Cir. 2000). That Court has applied the exception in
cases where no forgery is involved, ‘‘but where the misrepre-
sentation is so pervasive and the deception so artful that
employees will be unable to separate truth from untruth and
where their right to a free and fair choice will be affected.’’
Id.
However, under section 10(e) of the National Labor Rela-
tions Act, ‘‘[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 company never argued to the RD or
the Board that the Board should adopt the exception that the
company now supports, nor any other exceptions to the
Midland rule. Before the RD and the Board, the company
put forward the wholly distinct argument that the Board
should reject its Midland standard, and revert to the prior
standard of Hollywood Ceramics, Co., 140 NLRB 221 (1962),
under which the Board did evaluate the veracity of objection-
able statements. Thus, under section 10(e), this court is
without jurisdiction to consider the argument which the com-
pany never made before the Board.1
1We are aware that the Board itself has in recent opinions
expressly distinguished between misrepresentations covered by the
Midland precedent and coercive threats. As to the latter, it has in
7
B. Economic Inducements
We likewise conclude that the Board did not err in finding
that the union did not act improperly by offering to waive
initiation fees or to defer collection of dues.
The company argues that the union’s promise to waive
initiation fees constituted objectionable conduct and amounted
to an economic inducement which inhibited employees’ free
choice, constituted the purchase of endorsements, and painted
a false portrait of employee support during the election
campaign. Under judicial and Board precedent, an offer to
waive initiation fees is not impermissible unless it is condi-
tioned upon an employee’s demonstration of support for the
union. See NLRB v. Savair Mfg. Co., 414 U.S. 270, 274 n.4
(1973); Deming Div., Crane Co., 225 N.L.R.B. 657, 659
(1976). A review of the two written statements cited by the
company shows that they neither allege, nor even suggest,
any conditioning of the waiver on the employees’ pre-election
support for the union; there is no evidence that the union’s
fee waiver was not available to all employees on equal terms.
The company also argues that the union’s promise—con-
tained in the ‘‘Steelworkers Guarantee’’ flier—to initially
waive the employees’ dues similarly amounted to an improper
economic inducement. But there is no evidence that any
company employees, at the time of the campaign, owed any
dues to the union. Thus, the union’s deferral of dues until
the signing of a contract was not an improper conferral of
economic benefits. Cf. McCarty Processors, Inc., 286
N.L.R.B. 703, 703 (1987); Loubella Extendables, Inc., 206
N.L.R.B. 183, 183–84 (1973).
And with respect to the union’s alleged promise to fund a
raise for employees, the company has tendered no evidence
fact subjected the objectionable statements to a more searching
examination. See Pearson Education, Inc., 336 NLRB 92 (October
31, 2001), affirmed in Pearson Education Inc. v. NLRB, F.3d
(D.C. Cir. 2004). Majestic makes no claim of coercion, and in
any event we are without jurisdiction under NLRA section 10(e) to
examine any possible inconsistency in the Board’s decision.
8
that the union actually made any such promise. The Board
therefore did not abuse its discretion by overruling these
objections without an evidentiary hearing.
C. Voter Intimidation
Finally, the company argues that the union impaired the
fairness of the election by the unlawful intimidation of non-
union supporters. The company’s evidence in support of this
allegation is—in its entirety—as follows:
[A]t the change of shifts at 4 pm [conduct occurred that
was] directed at the no voters—me, Gary Metros, and
Jeff Brolmsa. It happened about 3 times. It was about
2 weeks prior to the election. As the swing shift came
in, there was obvious yes voters. As they came into the
shop, Marty Torrez would shout: it’s time to light them
up fellas. The other yes voters that we were aware of
(Ray , and Albert ,) would start laughingTTTT
That was it as far as that goes. (Sanchez Affidavit).
The company argues, on the basis of this scant evidence, that
the Board should have set aside the election or held a hearing
to determine the extent of the intimidation. We disagree.
That employee’s conduct does not satisfy the standard for
intimidation that applies to conduct not attributable to the
union. His single cited comment was not ‘‘so aggravated as
to create a general atmosphere of fear and reprisal rendering
a free election impossible.’’ Overnite Transp. Co. v. NLRB,
140 F.3d 259, 264 (D.C. Cir. 1998) (internal quotations and
citation omitted). The Board therefore did not abuse its
discretion in overruling this objection without an evidentiary
hearing.
III. Conclusion
For the reasons set forth above, we deny the petition and
affirm the Board’s decision.