Pruitthealth-Virginia Park, LLC v. Nat'l Labor Relations Bd. ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2018 Decided May 1, 2018
No. 16-1350
PRUITTHEALTH-VIRGINIA PARK, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 16-1399
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Jonathan E. Kaplan argued the cause and filed the briefs
for petitioner.
Mischa K. Bauermeister, Attorney, National Labor
Relations Board, argued the cause for respondent. With him on
the brief were Richard F. Griffin, Jr., General Counsel at the
time the brief was filed, John H. Ferguson, Associate General
Counsel, Linda Dreeben, Deputy Associate General Counsel,
and Usha Dheenan, Supervisory Attorney.
2
Before: ROGERS and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: This case concerns a
union representation election in which Retail, Wholesale, and
Department Store Union/UFCW Southeast Council (“the
Union”) prevailed in its campaign to represent certain
employees working for Petitioner PruittHealth-Virginia Park,
LLC (“PruittHealth” or “the Company”) in its Virginia Park
facility (“the Facility”) in Atlanta, Georgia. The election took
place on August 20, 2015 and resulted in a 35–31 vote in favor
of the Union, with two non-determinative challenged ballots.
PruittHealth filed objections to the election with the National
Labor Relations Board (“Board”), claiming that the Union
engaged in misconduct during its election campaign that
destroyed the conditions required for a free and fair election.
Following a hearing conducted by a Hearing Officer, the
Board’s Regional Director overruled the objections and
certified the Union as the employees’ lawful bargaining
representative.
PruittHealth refused to bargain with the Union in order to
contest the validity of the Regional Director’s certification
decision. The Union then filed unfair labor practice charges and
the Board’s General Counsel issued a complaint. A three-
member panel of the Board found that PruittHealth’s refusal to
bargain constituted an unfair labor practice under Section
8(a)(1) and (5) of the National Labor Relations Act (“Act”), 29
U.S.C. § 158(a)(1), (5), and ordered the Company to bargain
with the Union. See Pruitthealth-Virginia Park, LLC, 364
NLRB No. 125, slip op. at 2 (Sept. 22, 2016). PruittHealth now
3
petitions for review, and the Board cross-applies for
enforcement of its decision and order.
In its petition for review, PruittHealth contends that the
Board erred in overruling its objections to the election, which
alleged, in relevant part, that: Union demonstrators repeatedly
and intentionally blocked employees’ vehicles as they were
entering and exiting the Facility’s premises; two employees
were subjected to objectionable threats of physical violence;
and the Union unlawfully photographed employees on
PruittHealth’s premises during the critical period before the
election. PruittHealth also asserts that the Hearing Officer and
Regional Director failed to properly consider the cumulative
impact of the allegedly objectionable conduct and the closeness
of the election results in assessing the Company’s objections.
On the record before us, we find no merit in PruittHealth’s
claims. We hold that the Board’s adoption of the Regional
Director’s decision overruling PruittHealth’s blocking and
threats-related objections is supported by substantial evidence
and consistent with Board precedent. We further hold that we
lack jurisdiction over PruittHealth’s claim that the Board erred
in dismissing its unlawful photographing objection. The
Company failed to raise this claim with the Board in the
representation proceedings, as required by Section 10(e) of the
Act. See 29 U.S.C. § 160(e). We therefore deny the petition for
review and grant the Board’s cross-application for
enforcement.
I. BACKGROUND
PruittHealth operates a nursing home located on Briarcliff
Road in Atlanta, Georgia. The Facility has North and South
entrances, which are 30 to 50 yards apart and lead to a parking
lot in the rear of the Facility. In the summer of 2015, the Union
4
began to organize employees at the Virginia Park Facility. On
July 30, 2015, the Union filed a petition with the Board to
represent an 84-person bargaining unit of certified nursing
assistants, restorative aides, activity assistants, medical record
clerks, and service and maintenance employees. In the August
20, 2015 election, the Union prevailed by a vote of 35 to 31.
There were two non-determinative challenged ballots.
A week later, PruittHealth filed written objections to the
election with the Regional Director, contending that the Union
engaged in misconduct that tainted the outcome of the election
and warranted setting aside the election results. The Company
alleged, inter alia, that Union demonstrators repeatedly and
intentionally blocked employees’ ingress to and egress from
the Facility’s premises and hindered employees’ access to a
public bus stop in front of the Facility. The Company further
contended that the Union intimidated and coerced employees
by threatening physical violence against individuals who chose
not to vote for the Union. The Company also asserted that the
Union unlawfully photographed employees on PruittHealth’s
premises. After an investigation, the Regional Director ordered
a hearing on the objections.
A Board Hearing Officer presided over the hearing on
PruittHealth’s objections. As relevant here, the parties
presented evidence that, on August 13 and 19, 2015, the Union
conducted demonstrations between approximately 2:30 pm and
4:00 pm. Around 15 to 20 individuals participated in the
demonstrations, including a few Union representatives as well
as individuals from other labor organizations and community
groups. Demonstrators patrolled the area between the Facility’s
two entrances, carrying pro-Union signs and making pro-
Union statements with a bullhorn. PruittHealth called the
police each day, but there was no evidence that any arrests were
made.
5
Five witnesses testified for the Company about the alleged
blocking incidents. Employee Yolando Thornton testified that,
as she was driving into the Facility’s premises one day, a
demonstrator stepped off a curb and approached her car to hand
her a pro-Union flyer. Thornton did not take the flyer, told the
man to “move out of the way,” and proceeded into the
driveway. Joint Appendix (“J.A.”) 31. The exchange lasted no
more than 60 seconds. Employee Andrew Johnson testified
that, on August 18 or 19, as he was driving into PruittHealth’s
entrance, a demonstrator came to the driver’s side of the car,
encouraged him to “vote yes [for] the Union,” and attempted to
hand him a flyer. J.A. 61–62, 68. Johnson came to a stop for a
few seconds, gave the man “[a] look,” and proceeded into the
parking lot. J.A. 62–63. Employee Erica Merriweather testified
that as she was driving into the Facility one day, a demonstrator
walked to her driver’s side window and mentioned something
about vacation and holiday pay. She blew her horn, the
demonstrator moved out of her way, and she drove into the
parking lot. She also testified that, on a different day,
demonstrators had the Facility’s driveway blocked in, and a
demonstrator placed a pro-Union flyer on her car while she was
slowly driving into the Facility. Area Vice President Suzanne
Gerhardt testified that, on either August 13 or 19, a
demonstrator obstructed her view of oncoming traffic as she
was exiting the Facility’s grounds by car. Lastly, employee Jan
Marie Benn testified that, on August 18 or 19, demonstrators
“swarm[ed] around the bus stop” in front of the Facility,
chanting “shame on Pruitt” and holding pro-Union signs. J.A.
40. Although she was standing at the bus stop, the bus passed
by without stopping, which, in Benn’s view, occurred because
demonstrators were “swarming around the bus stop.” Id.PruittHealth’s counsel elicited testimony from Thornton
and Merriweather about the alleged threats. During Thornton’s
direct examination, as she was explaining her encounters with
6
demonstrators when she was driving into work, PruittHealth’s
counsel asked her, “Did any union supporters threaten to f---
you up?” to which Thornton replied, “Yes.” J.A. 21. On cross-
examination, she clarified that the demonstrator said, “If you
don’t vote yes for the Union, we will f--- you up.” J.A. 34. She
did not see who made the statement but noted that it came from
someone standing in the crowd of demonstrators who were
about ten feet away. She testified that the comment made her
feel “very uneas[y]” and made her “not want[] to come to
work,” J.A. 22, and that she did not “vote [her] conscience” in
the election “because [of] the threats,” J.A. 23. Thornton did
not testify whether she voted for or against the Union.
Merriweather testified that, as she was clocking into work
one day in the week before the election, she observed four
coworkers about twenty feet away from her talking in a “little
huddle” about “issues that had been going on that week.” J.A.
114. She heard them say, “they don’t know that the Union . . .
the Union will f--- people up or get . . . will f--- people up or
get f---ed up.” J.A. 88. She felt the comment was directed at
her “because of the stuff that had been going on and saying that
week because of the disagreements we were having.” J.A. 114.
Merriweather submitted a resignation notice after she heard
these comments, but she later retracted the resignation. One of
the employees Merriweather claimed was standing in the group
of employees, Deidre Ward, denied that any such statement
was made.
Finally, Merriweather and Gerhardt testified regarding
PruittHealth’s allegation that demonstrators photographed
employees on its premises. Merriweather stated that she
observed demonstrators holding their cell phones “toward the
building.” J.A. 112. She assumed this meant that they were
taking pictures. Gerhardt stated that she saw demonstrators
7
holding their cell phones toward the Facility, but did not see
anyone take a picture.
After the hearing, the Hearing Officer issued a written
report on the objections, recommending that they be overruled
in their entirety. The Hearing Officer found that “the credited
evidence established that individual demonstrators approached
cars from the side to hand them a flyer, and attempted to
persuade them peacefully to support the [Union].” J.A. 241. He
found no evidence that demonstrators “maneuvered in front of
cars to intentionally block employees from entering the facility,
nor was there evidence that any employees had trouble entering
[PruittHealth’s] facility.” Id. The Hearing Officer also found
“no evidence that demonstrators made any threats, gestures, or
engaged in any other menacing or coercive conduct rendering
a fair election impossible.” J.A. 242. He found the record
devoid of the context necessary to show that the comment
allegedly aimed at Thornton was actually directed at her, and
he afforded Thornton’s testimony “little probative weight”
because it was elicited in response to a leading question. Id. He
similarly declined to credit Merriweather’s testimony about the
incident near the time clock, because it was “too unclear to
establish the employees were threatening [other] employees,”
and instead credited Ward’s denial that any such threat was
made. J.A. 243. The Hearing Officer also found the record
insufficient to show that demonstrators photographed
employees.
PruittHealth timely filed exceptions to the Hearing
Officer’s report with the Regional Director. Its exceptions
stated that, although it “respectfully disagrees with the totality
of the Hearing Officer’s conclusions,” its “[e]xceptions are
focused upon the most egregious, coercive conduct – and the
failure of the Hearing Officer’s Report to reference (let alone
credit) crucial, credible testimony.” J.A. 250. The Company
8
specifically raised exceptions to the Hearing Officer’s findings
regarding the blocking and threats objections but not the
photographing objection.
The Regional Director adopted the Hearing Officer’s
recommendation to overrule the objections and certified the
Union as the collective bargaining representative. In addition
to adopting the Hearing Officer’s findings and conclusions, the
Regional Director added that, in his view, the record indicated
that demonstrators caused, at most, “momentary
inconveniences” to some employees as they entered or exited
the Facility. J.A. 271. He also concluded that, on this record,
the Merriweather threat did not rise to the level of objectionable
conduct; the Thornton threat was “too isolated and de minimus
to warrant setting aside the election,” J.A. 272; and the
statements in question “appear[ed] to be the kind of rough
language seen in close elections made as a result of bravado or
over exuberance rather than credible threats,” J.A. 273. The
Board subsequently denied PruittHealth’s request for review of
the Regional Director’s certification.
Following the Union’s certification, PruittHealth refused to
bargain with the Union. The Union then filed unfair labor
practice charges and the Board’s General Counsel issued a
complaint charging PruittHealth with violating 29 U.S.C.
§ 158(a)(1) and (5). PruittHealth admitted its refusal to bargain,
but did so in order to contest the validity of the Union’s
certification on the basis of its objections in the representation
proceeding. See Boire v. Greyhound Corp., 376 U.S. 473, 476–
77 (1964); Durham Sch. Servs., LP v. NLRB, 821 F.3d 52, 57
(D.C. Cir. 2016) (noting that an employer may refuse to
bargain with certified unions “in order to elicit an unfair labor
practice charge and thereby obtain judicial review” of
certification orders). The Board, on a Motion for Summary
Judgment, held that PruittHealth violated 29 U.S.C. § 158(a)(1)
9
and (5) and ordered PruittHealth to bargain with the Union. See
Pruitthealth-Virginia Park, 364 NLRB No. 125, slip op. at 2.
PruittHealth then filed a petition for review in this court, and
the Board cross-applied for enforcement of its order.
II. ANALYSIS
A. Standard of Review
The Board is afforded broad discretion in assessing “the
propriety and results of representation elections.” N. of Mkt.
Senior Servs., Inc. v. NLRB, 204 F.3d 1163, 1167 (D.C. Cir.
2000). A court will set aside a Board decision to certify an
election only in “the rarest of circumstances.” Id. “In reviewing
the validity of election results, we ask whether the Board ‘has
followed appropriate and fair procedures, and has reached a
rational conclusion’ in addressing any objections to the
election.” Durham Sch. Servs., 821 F.3d at 58 (quoting Serv.
Corp. Int’l v. NLRB, 495 F.3d 681, 684 (D.C. Cir. 2007)). We
will uphold the Board’s decision unless it “acted arbitrarily or
otherwise erred in applying established law to the facts at issue,
or if its findings are not supported by substantial evidence.”
Plumbers & Pipe Fitters Local Union No. 32 v. NLRB, 50 F.3d
29, 32 (D.C. Cir. 1995) (citations omitted); see also 29 U.S.C.
§ 160(e), (f).
“[T]he Board requires that elections take place under
‘laboratory conditions’ free from coercion by the union or the
employer.” SSC Mystic Operating Co., LLC v. NLRB, 801 F.3d
302, 309 (D.C. Cir. 2015) (citation omitted). Employers and
unions may not “‘interfere with, restrain, or coerce employees
in the exercise’ of their Section 7 rights” to participate in labor
organizations, collectively bargain, or refrain from such
activities. Id. (quoting 29 U.S.C. § 158(a)(1), (b)(1)(A)).
Where the alleged interference is attributed to agents of the
10
Union, as opposed to third parties, the Board determines
“whether the conduct has the tendency to interfere with
employees’ freedom of choice.” Cambridge Tool & Mfg. Co.,
316 NLRB 716, 716 (1995).
B. Objection to Alleged Blocking
PruittHealth first asserts that the Board erroneously
declined to find that Union agents “engaged in repeated acts of
intentional, objectionable blocking of ingress and egress” to the
Facility that “interfered with employees’ Section 7 rights and
was sufficiently objectionable to warrant setting aside the
election.” Petitioner’s Br. 20–21. As support, PruittHealth
points to Yolando Thornton’s, Erica Merriweather’s, and
Andrew Johnson’s testimony that, in the week before the
election, pro-Union demonstrators approached their cars as
they were driving into the Facility to distribute flyers and
encourage them to vote for the Union. See id. at 21–22. The
Company also relies on Jan Marie Benn’s testimony that she
was unable to catch her bus one day when demonstrators were
“‘swarming’ around the bus stop,” id. at 22–23, as well as
Suzanne Gerhardt’s testimony that demonstrators obstructed
her view of traffic as she was exiting the Facility’s premises
one afternoon, id. at 22.
As an initial matter, we discount PruittHealth’s allegations
that Benn and Gerhardt were unlawfully blocked because the
Company failed to raise these arguments in its request for
Board review of the Regional Director’s certification decision.
See 29 U.S.C. § 160(e) (“No objection that has not been urged
before the Board . . . shall be considered by the court, unless
the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances.”). We find no merit to
the objection based on the remaining evidence.
11
Under Board precedent, unions are permitted to hold
demonstrations outside employers’ premises and engage with
employees on their way to work to peacefully encourage them
to support the union and distribute union literature. For
example, in Chrill Care, Inc., 340 NLRB 1016 (2003), the
Board found there to have been no objectionable conduct when
union supporters attempted to speak with employees entering
the work area and momentarily hindered their access to the
building, where there was no evidence of “any forceful or . . .
threatening harassing contact,” id. at 1016; see also Comcast
Cablevision of New Haven, Inc., 325 NLRB 833, 833 & n.3,
838 (1998). And in Firestone Textiles Co., 244 NLRB 168(1979), the Board concluded that derogatory comments union
supporters made at the entrance to the employer’s facility were
“regret[t]able” but not coercive under the circumstances, where
“the overall conduct” was “generally peaceful” and there was
no evidence that employees were prevented from entering or
exiting the facility, id. at 168, 170–71. There are limits,
however. See, e.g., Local 3, Int’l Bhd. of Elec. Workers, 312
NLRB 487, 489–90, 492–93 (1993) (finding objectionable
conduct where demonstrators yelled, cursed, and threatened
individual employees; banged on, and threw pamphlets into,
vehicles; and stood in front of vehicles, refusing to step aside).
The Board found that the Union did not exceed the limits
of the law in its election campaign activities. It adopted the
Hearing Officer’s determination that the challenged conduct in
this case fell far short of the kind of egregious blocking
behavior the Board has deemed objectionable. For example, the
Hearing Officer found that “the credited evidence established
that individual demonstrators approached cars from the side to
hand them a flyer, and attempted to persuade them peacefully
to support the [Union].” J.A. 241. He further found that “[t]here
was no evidence [that] the demonstrators . . . maneuvered in
front of cars to intentionally block employees from entering the
12
facility, nor was there evidence that any employees had trouble
entering” the Facility. Id. The Regional Director agreed and
concluded that the disputed conduct caused, at most,
“momentary inconveniences” to employees. J.A. 271.
Substantial evidence supports these determinations. The
Hearing Officer found much of the testimony forming the basis
of this objection not credible. He declined to credit Thornton’s
testimony that a demonstrator stood in front of her car because
her testimony was “conclusory and contradictory.” J.A. 239
n.8. He likewise refused to credit Merriweather’s testimony
that she was blocked because her testimony was “conclusory,
largely devoid of any specifics, contradictory, and confusing.”
J.A. 240. PruittHealth does not contest these credibility
determinations on appeal and we have no basis to doubt their
validity. See Alden Leeds, Inc. v. NLRB, 812 F.3d 159, 165
(D.C. Cir. 2016) (court accepts credibility findings made by an
ALJ and adopted by the Board unless they are shown to be
“patently insupportable”).
The remaining, credited testimony from Thornton,
Johnson, and Merriweather indicates that demonstrators
approached employees in a peaceful manner to try to persuade
them to vote for the Union, but did not prevent access to the
premises. These encounters lasted for at most a few minutes
and there is no evidence in the record that the encounters
disrupted the Company’s operations. In sum, the Board
reasonably concluded that there was no merit to the Company’s
claim that Union supporters interfered with employees’ Section
7 rights by blocking access to or from the Facility during the
election campaign.
13
C. Objection to Alleged Threats
PruittHealth next attacks the Board’s determinations that
threats allegedly directed at Thornton and Merriweather did not
constitute objectionable conduct. We have no basis to second-
guess these determinations because they are supported by
substantial evidence and applicable precedent.
As noted above, the Hearing Officer found that Thornton’s
testimony lacked credibility. He afforded her testimony “little
probative weight” because it was elicited from a leading
question, and he found the record “devoid of any context to
demonstrate that the comment” was actually directed at
Thornton. J.A. 242.
Likewise, the Hearing Officer was unpersuaded by
Merriweather’s testimony because he found it “too unclear” to
establish that the four employees who had been standing in the
group made a threatening statement. J.A. 243. He instead
credited the testimony of one of those four employees, Deidre
Ward, who the Hearing Officer found credibly denied hearing
anyone make any such statement. The Hearing Officer properly
concluded that, even if the statement was made, it was not
objectionable under controlling precedent. On this point, the
Board has made it clear that in assessing alleged third-party
misconduct, an election will be set aside only when the conduct
“was so aggravated as to create a general atmosphere of fear
and reprisal rendering a free election impossible.” Westwood
Horizons Hotel, 270 NLRB 802, 803 (1984).
We have no grounds to overturn the Board. The findings
and conclusions underlying the Board’s decision are supported
by substantial evidence. Thornton’s testimony was less reliable
because it was initially procured through a leading question.
See NLRB v. Furnas Elec. Co., 463 F.2d 665, 668 (7th Cir.
14
1972) (deferring to a Board trial examiner’s decision to accord
limited probative weight to testimony that “resulted from the
propounding of leading questions requiring little more than a
‘yes’ or ‘no’ answer”). And the circumstances surrounding the
alleged threat suggested that it was not directed at Thornton: it
was a remark made by an individual in a crowd of noisy
demonstrators standing several feet away from Thornton’s
vehicle. Merriweather’s testimony was similarly unconvincing.
She characterized the group’s conversation as “kind of like a
debate about the Union – yes or no for the Union,” J.A. 87–88,
and stated that the employees were talking in a “little huddle”
about twenty feet away, J.A. 114–15. All of this suggests the
employees were talking amongst themselves rather than
directing threats toward Merriweather or any other employee.
As we have previously made clear, this court does not
overturn “Board-approved credibility determinations” unless
they are “hopelessly incredible,” “self-contradictory,” or
“patently insupportable.” Capital Cleaning Contractors, Inc. v.
NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998) (citations omitted).
We are “hard-pressed to imagine any legitimate basis for the
Company’s petition for review” challenging the Board’s
credibility determinations in this case. E.N. Bisso & Son, Inc.
v. NLRB, 84 F.3d 1443, 1445 (D.C. Cir. 1996). Counsel for
PruittHealth was asked at oral argument whether he had found
any case to support the Company’s request that we overturn the
Board’s credibility determinations, to which he responded he
had not. See Oral Arg. Recording at 6:39–7:12. On the record
before us, we find that the Company’s challenge “is at best
specious” and “border[s] on frivolous.” E.N. Bisso & Son, 84
F.3d at 1445; see also Cadbury Beverages, Inc. v. NLRB, 160
F.3d 24, 28 (D.C. Cir. 1998).
We also reject PruittHealth’s contention that the Regional
Director and Hearing Officer failed to properly consider the
15
“significant impact” the alleged threats had on Thornton and
Merriweather. See Petitioner’s Br. 28–30; see id. at 29 (noting
that Thornton testified that she changed her vote because of the
Union’s conduct, and that Merriweather testified that she was
so frightened by the statement she overheard that she submitted
a letter of resignation – although she later retracted it). The
Board applies an objective test to determine “whether the
alleged misconduct is of a type that would cause interference
with the free choice of a reasonable employee.” AOTOP, LLC
v. NLRB, 331 F.3d 100, 104 (D.C. Cir. 2003). “[T]he subjective
reactions of employees are irrelevant to the question of whether
there was in fact objectionable conduct.” Lake Mary Health
Care Assocs., LLC, 345 NLRB 544, 545 (2005). When the
disputed conduct involves an alleged threatening remark, “[t]he
test is not the actual intent of the speaker or the actual effect on
the listener,” but “whether [the] remark can reasonably be
interpreted by an employee as a threat.” Smithers Tire & Auto.
Testing of Texas, Inc., 308 NLRB 72, 72 (1992).
On this record, the Board properly concluded that a
reasonable employee would not have interpreted the statements
Thornton and Merriweather heard as threats of reprisal,
directed at them, for non-support of the Union. The Board’s
decision rejecting these claims was supported by substantial
evidence and is well within the bounds of established
precedent.
D. Objection to Alleged Photographing
PruittHealth additionally contends that the Board erred in
failing to credit its unlawful photographing objection. This
claim is not properly before us, however, because PruittHealth
failed to properly raise it with the Board.
16
Section 10(e) of the Act provides that “[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 Board’s
regulations interpreting Section 10(e) require parties to raise
objections in their request for Board review of the underlying
representation proceedings in order to preserve the issues for
consideration in subsequent unfair labor practice proceedings.
See 29 C.F.R. § 102.67(g); see also Matson Terminals, Inc.,
361 NLRB No. 50, slip op. at 1 n.1 (Sept. 26, 2014), enforced,
637 F. App’x 609 (D.C. Cir. 2016) (per curiam). If a party fails
to raise an objection “in the time and manner that the Board’s
regulations require,” this court lacks jurisdiction to consider the
claim. Spectrum Health–Kent Cmty. Campus v. NLRB, 647
F.3d 341, 349 (D.C. Cir. 2011).
Here, although PruittHealth raised its objection to alleged
photographing in its initial objections to the election, it failed
to include this objection in its request for Board review.
PruittHealth therefore waived this objection. See 29 C.F.R.
§ 102.46(a)(1)(ii) (“Any exception to a ruling, finding,
conclusion, or recommendation which is not specifically urged
will be deemed to have been waived.”).
PruittHealth contends that it preserved this claim by
objecting, in its exceptions to the Hearing Officer’s report, to
the “totality of the Hearing Officer’s conclusions,” including
findings regarding conduct that involved “menacing eligible
voters.” Petitioner’s Reply Br. 19. This argument lacks merit
because it merely states a “generalized objection” to the
Hearing Officer’s analysis “without providing the detail
required by the Board’s rules or otherwise putting the Board on
notice of the specific grounds for its objection[].” Nova Se.
Univ. v. NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015); see also
17
29 C.F.R. § 102.46(a)(1)(i) (requiring that parties “[s]pecify
the questions of procedure, fact, law, or policy to which
exception is taken” and “[c]oncisely state the grounds for the
exception”). PruittHealth’s unspecified, generalized exception
to the “totality of the Hearing Officer’s conclusions” was
insufficient to preserve its objection to allegedly objectionable
photographing. Accordingly, Section 10(e)’s jurisdictional bar
applies here.
E. Cumulative Impact and Closeness of the Election
PruittHealth raises two additional arguments as to why the
Board erred in adopting the Regional Director’s findings and
recommendations and certifying the Union. Neither argument
has merit.
First, the Company asserts that the Regional Director and
Hearing Officer analyzed each allegation of objectionable
conduct in isolation rather than, as Board law requires,
cumulatively to determine whether the conduct as a whole
destroyed the conditions required for a free and fair election.
See Petitioner’s Br. 41–42; Petitioner’s Reply Br. 24–26. It is
true that the Board is required to assess the cumulative impact
of alleged incidents of misconduct in order to determine
whether such conduct tainted the results of the election. See
Swing Staging, Inc. v. NLRB, 994 F.2d 859, 863 (D.C. Cir.
1993). However, in order to make that “overall judgment,” the
Board first reviews and weighs the seriousness of the specific
incidents of alleged misconduct. See Amalgamated Clothing &
Textile Workers Union v. NLRB, 736 F.2d 1559, 1569 (D.C.
Cir. 1984). The Hearing Officer and Regional Director here did
just that.
The Hearing Officer stated at the outset of his report that he
had assessed the “conduct alleged in the Objections . . . , both
18
in isolation and cumulatively.” J.A. 237. And the Regional
Director explained in his decision that “the question which
must be asked [in determining whether to set aside the election
results] is whether based on the objective evidence . . . the
alleged objectionable conduct can be reasonably said to have
affected the outcome of the election.” J.A. 273. He then held
that, “[b]ased on the record [in this case], I do not believe it can
be.” Id. This determination is unassailable.
As we have explained before, a petitioner may not use a
cumulative-impact argument “to turn a number of insubstantial
objections to an election into a serious challenge.”
Amalgamated Clothing & Textile Workers Union, 736 F.2d at
1569 (quoting NLRB v. Van Gorp Corp., 615 F.2d 759, 765
(8th Cir. 1980)). Zero plus zero equals nothing. That is what
we have here.
Second, PruittHealth argues that the Regional Director
gave “[in]sufficient consideration to the number of employees
impacted by the objectionable conduct and the closeness of the
election results.” Petitioner’s Br. 41. The Regional Director
found that the close vote here did not warrant setting aside the
election results because the record did not support
PruittHealth’s contention that the Union engaged in
misconduct during the election campaign. Therefore, the
Board’s determination that misconduct did not taint the
election can hardly be doubted.
A close election result may or may not be caused by Union
misconduct. If there has been no misconduct, however, then a
close vote is simply an indication of divided views among the
employees. Therefore, a close vote, without more, is
insufficient to require the rerun of an election. Indeed, any
suggestion to the contrary is specious. The Union garnered a
majority of the votes in the election, and the Board found that
19
the allegations of objectionable conduct were meritless. That is
the end of the matter. Accordingly, we decline to overturn the
Board’s decision to certify the Union as the lawful bargaining
representative.
III. CONCLUSION
For the reasons set forth in the foregoing opinion, we deny
PruittHealth’s petition for review, and we grant the Board’s
cross-application for enforcement.
So ordered.