Durham School Services, LP v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2016 Decided May 17, 2016
No. 14-1284
DURHAM SCHOOL SERVICES, LP,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 15-1017
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Amanda A. Sonneborn argued the cause for petitioner.
With her on the briefs were Charles P. Roberts III and Brian
M. Stolzenbach.
Micah P.S. Jost, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Julie B. Broido,
Supervisory Attorney.
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Before: BROWN and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 2013, in an election
conducted by the National Labor Relations Board (“Board” or
“NLRB”), the International Brotherhood of Teamsters, Local
991 (“Union”) prevailed in its campaign to represent school
bus drivers and monitors working for Petitioner Durham
School Services, LP, in Milton, Pace, and Navarre, Florida.
Petitioner challenged the election, claiming that the Union
had circulated misleading propaganda during the election
campaign, and that a Board Agent had engaged in
inappropriate conduct during the election. After considering
Petitioner’s proffered evidence and claims, the Board’s
Regional Director recommended overruling Petitioner’s
objections without a hearing. The Board adopted the Regional
Director’s findings and recommendations, and certified the
Union as the employees’ lawful bargaining agent. Durham
Sch. Servs., LP, 360 N.L.R.B. No. 108 (May 9, 2014),
reconsideration denied, 361 N.L.R.B. No. 66 (Oct. 20, 2014).
Petitioner refused to bargain, which caused the Union to
file unfair labor practice charges with the NLRB. The
Regional Director then issued a complaint alleging that
Petitioner had violated Section 8(a)(5) and (1) of the National
Labor Relations Act (“Act”), 29 U.S.C. § 158(a)(5), (1), by
refusing to recognize and bargain with the Union following
Board certification. On December 4, 2014, after the case had
been transferred to the NLRB, the Board granted a Motion for
Summary Judgment filed by the Board’s General Counsel.
The Board held that Petitioner had violated the Act as
charged, and ordered it “to cease and desist, to recognize and
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bargain on request with the Union and, if an understanding is
reached, to embody the understanding in a signed agreement.”
Durham Sch. Servs., L.P., 361 N.L.R.B. No. 121, at 2 (Dec. 4,
2014). Petitioner now petitions for review, and the Board has
filed a cross-application for enforcement of its decision and
order.
Petitioner raises three principal grounds in support of its
claim that the Board erred in dismissing its objections to the
election. First, Petitioner contends that the Union
impermissibly deceived voters by distributing a campaign
flyer that contained pictures of eligible voters and statements
misrepresenting their intent to vote for the Union. Second,
Petitioner asserts that the Board Agent handling the election
compromised the integrity of the election in various ways
when, inter alia, she carried the election booth and the ballot
box to Petitioner’s parking lot to permit a disabled employee
to cast a ballot. Finally, for each claim, Petitioner maintains
that its proffered evidence, even if insufficient in itself to
overturn the election, was sufficient to warrant an evidentiary
hearing. We find no merit in these claims.
The Board disposed of the first claim pursuant to
Midland National Life Insurance Co., 263 N.L.R.B. 127
(1982). Under Midland, the Board “will not probe into the
truth or falsity of the parties’ campaign statements and will
not set aside an election on the basis of misleading statements
unless ‘a party has used forged documents which render the
voters unable to recognize propaganda for what it is.’”
Durham, 360 N.L.R.B. No. 108, at 1 (quoting Midland, 263
N.L.R.B. at 133). The Board dismissed the second claim
because there was nothing to indicate that “the manner in
which the election was conducted raise[d] a reasonable doubt
as to the fairness and validity of the election.” Id. at 3
(quoting Polymers, Inc., 174 N.L.R.B. 282, 282 (1969),
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enforced, 414 F.2d 999 (2d Cir. 1969)). Finally, the Board
held that Petitioner was not entitled to a hearing on its
objections because it failed to proffer evidence raising any
substantial and material factual issues.
The Board’s findings are supported by substantial
evidence, and its conclusions are consistent with established
precedent. Therefore, because the Board’s Decisions and
Orders are neither arbitrary, capricious, an abuse of
discretion, nor otherwise not in accordance with law, 5 U.S.C.
§ 706(2)(A), we deny the petition for review and grant the
Board’s cross-application for enforcement.
I. BACKGROUND
Petitioner employs full-time and regular part-time school
bus drivers and monitors at its Milton, Pace, and Navarre,
Florida facilities. On January 10, 2013, the Union filed an
election petition with the NLRB to represent these employees.
Pursuant to a Stipulated Election Agreement, Petitioner and
the Union waived their rights to a pre-election hearing and
agreed to a secret-ballot election to be conducted by the
Board’s Regional Director for Region 15 pursuant to the
Board’s regulations then in effect. The applicable regulations,
which were codified in 29 C.F.R. pt. 102, were subsequently
amended effective April 14, 2015. See Representation—Case
Procedures, 79 Fed. Reg. 74,308 (Dec. 15, 2014). All
regulations referenced below refer to the version of the
Board’s regulations that were in effect at the time when the
events at issue took place.
The election took place on February 22, 2013. The Union
prevailed by a wide margin: 112 to 74. Pursuant to 29 C.F.R.
§ 102.69(a), Petitioner timely filed objections with the
Regional Director challenging the election, and proffered
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evidence in support of the objections. The first two objections
were, in relevant part, as follows:
First Objection. Prior to the election, . . . [the
Union] engaged in a deliberate attempt to deceive eligible
voters by distributing a flyer shortly before the election
that contained pictures of eligible voters and language
misrepresenting that the pictured employees . . . intended
to vote in favor of the Union. . . .
Second Objection. During the election, the [Board
Agent] . . . at the Pace [location] engaged in . . . conduct
that destroyed confidence in the Board’s election
processes and impugned the Board’s election
standards[.] . . .
Petitioner’s Objections at 1-2, Joint Appendix (“J.A.”) 16-17.
Petitioner also challenged the authority of the Regional
Director to conduct a representation election at a time when
the Board did not have a quorum. Petitioner now concedes
that, in light of the court’s decision in UC Health v. NLRB,
803 F.3d 669 (D.C. Cir. 2015), this third objection has no
merit.
In support of its first objection, Petitioner submitted the
Union flyer and two affidavits. The flyer’s first page stated:
“On February 22, 2013 WE’RE VOTING YES for Teamsters
Local Union 991! And Here’s Why……” The second page
listed the date, time, and locations of the election, and some
pro-union quotations attributed to the “Santa Rosa County
Durham Teamsters Organizing Committee.” The remaining
pages of the flyer included the names and photographs of
various employees alongside a quotation that said “We are
voting ‘Teamster’s YES!’ for a better future at Durham!”
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The first affidavit was executed by employee April Perez,
who declared that, a week before the election, a Union
representative asked her to sign a document and to allow him
to take her picture. Perez acknowledged that she gave the
representative permission to take her photograph and signed
the document without reading it. Perez’s affidavit also says
that the Union never told her that her picture would be used in
its propaganda, and that she never authorized any quotations
to be attributed to her. The second affidavit, executed by
employee Heidi Gourley, simply stated that various
employees had seen and discussed the Union flyer.
In support of its second objection, Petitioner submitted
two affidavits. The first affidavit was executed by employee
Barbara Nelson, who had served as Petitioner’s election
observer at the Pace, Florida, location. Nelson declared that,
during the election, an employee who was not on the voter
eligibility list was in the parking lot and wanted to vote, but
was physically unable to get to the voting area. In order to
accommodate the disabled employee, Nelson and the Board
Agent carried the unsealed ballot box and voting booth
outside to the parking lot. Nelson believed that if the Board
Agent had noticed anyone entering the voting area when they
were in the parking lot, the Agent would have asked the
prospective voter to wait. Because it was raining, Nelson left
the Board Agent for 30 seconds to get her umbrella; she could
not see the ballot box when she did this. As it turned out,
Nelson and the Board Agent were in the parking lot for only
about 2 to 3 minutes. When they were returning to the polling
area, the Board Agent realized that she had forgotten to put
the disabled employee’s ballot in an envelope reserved for
challenged ballots. The Board Agent telephoned her
supervisor to explain what had happened, and she talked on
the telephone with her supervisor and another Board
representative for about 20 minutes. During this time, eligible
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voters continued to cast their ballots. The second affidavit,
executed by employee Cal Schmidt, simply stated that the
Board Agent acknowledged that she had failed to put the
disabled employee’s ballot in an envelope reserved for
challenged ballots.
In light of the foregoing objections and supporting
evidence, Petitioner asked that the election be set aside and
that a second election be directed. Petitioner also requested
that, if necessary, a full hearing on its objections be conducted
on the record before a Hearing Officer pursuant to 29 C.F.R.
§ 102.69(e).
A. The Representation Proceeding
In response to Petitioner’s objections, the Regional
Director initiated an investigation pursuant to 29 C.F.R.
§ 102.69(c)(1). The Regional Director received a position
statement and supporting documents from the Union. These
documents purported to show that April Perez backed the
Union and that she had given the Union permission to use her
name and picture in its propaganda.
On March 25, 2013, the Regional Director issued a
Report and Recommendation, recommending that Petitioner’s
objections be dismissed and that a Certification of
Representative be issued to the Union. With respect to
Petitioner’s first objection, the Regional Director concluded
that the Union’s flyer did not violate the standard set forth in
Midland, 263 N.L.R.B. 127. With respect to the second
objection, the Regional Director found, inter alia, that
Petitioner had provided no evidence that the security of the
ballot box or the voting area had been compromised or that
the Board Agent’s phone call had adversely affected the
election; that Petitioner had not alleged that any unauthorized
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ballots were cast; and that Petitioner was estopped from
relying on Nelson’s voluntary decision to leave her station at
the ballot box for 30 seconds to get an umbrella. The Regional
Director also found that, although one ballot had been
inadvertently mishandled, this could not have tainted the
election process because the Union won by 38 votes.
Petitioner filed timely exceptions with the Board pursuant
to 29 C.F.R. § 102.69(c)(2), challenging the Regional
Director’s Report and Recommendation. Petitioner asserted
that the Regional Director had impermissibly relied on the
documentation provided by the Union. Petitioner additionally
claimed that the Regional Director had erred in concluding
that the Union had not misrepresented Perez’s views, used her
photograph without permission, or compromised the rights of
employees to cast a secret ballot. Petitioner also contended
that the Regional Director had impermissibly applied the law
to the facts. Finally, in a separate motion, Petitioner requested
that the Board reopen the record for Petitioner to submit a
supplemental affidavit executed by Perez. In that affidavit,
Perez declared that she never executed any documents
indicating that she supported the Union, and that she feared
that her signature may have been forged on the documents
proffered by the Union.
On May 9, 2014, the Board dismissed Petitioner’s
objections, denied the motion to reopen the record, and issued
the Union a Certification of Representative. Durham, 360
N.L.R.B. No. 108. In its decision, the Board noted that the
Union’s documentation appeared to show that Perez was in
fact a Union supporter. Id. at 2. However, the Board held that,
“even assuming, as the Employer claims, that Perez did not in
fact support the Union and did not write [that she supported
the Union], we would still affirm the Regional Director’s
decision to overrule Objection 1 without a hearing, under the
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Midland standard.” Id. The Board further held that no
employee right to cast a secret ballot had been compromised
because all of the employees’ actual votes had remained
secret. See id. at 2-3 (citing Somerset Valley Rehab. &
Nursing Ctr., 357 N.L.R.B. 736, 737 n.5 (2011)). Finally,
with regard to the second objection, the Board held that,
contrary to Petitioner’s claim, “the Regional Director actually
applied th[e] correct standard in her thorough analysis of the
Employer’s evidence [regarding the Board Agent’s conduct],
and [agreed] with her conclusion that no hearing was
necessary.” Id. at 3. The Board therefore dismissed
Petitioner’s objections without a hearing.
B. The Unfair Labor Practice Proceeding
Following its certification, the Union requested that
Petitioner schedule a meeting to begin negotiating a collective
bargaining agreement. Petitioner refused to bargain with the
Union in order to elicit an unfair labor practice charge and
thereby obtain judicial review. See Boire v. Greyhound Corp.,
376 U.S. 473, 476-77 (1964) (explaining that, in the normal
course, Board certification orders are not directly reviewable
in the courts). As anticipated, the Union filed unfair labor
practice charges with the NLRB, and the Regional Director
issued a Complaint and Notice of Hearing. Subsequently, the
Board’s General Counsel moved to transfer and continue the
proceeding before the Board and moved for summary
judgment. The Board transferred the proceeding and ordered
Petitioner to show cause why summary judgment should not
be granted. Petitioner acknowledged that it had refused to
bargain with the Union, but contended that the Union had
been improperly certified.
On December 4, 2014, the Board issued a Decision and
Order finding that Petitioner had unlawfully refused to
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bargain with the Union in violation of Section 8(a)(5) and (1)
of the Act, 29 U.S.C. § 158(a)(5), (1), and ordering Petitioner
to bargain upon the Union’s request. Durham, 361 N.L.R.B.
No. 121. Petitioner filed a timely petition for review, arguing
that the Board, in certifying the Union, had erred in declining
to grant Petitioner an evidentiary hearing on its objections and
in refusing to reopen the record. The Board cross-applied for
enforcement.
II. ANALYSIS
The Board’s position in this case is quite straightforward
and compelling: “With regard to both [of Petitioner’s]
objections . . . the Board properly assumed the truth of all
[of Petitioner’s] relevant evidence, but found it wanting under
its well-established law. Because the specific evidence
[Petitioner] proffered falls far short of establishing a prima
facie case of conduct that would warrant setting aside the
election, [Petitioner] was not entitled to an evidentiary
hearing and [the] Board acted within its discretion in
declining to conduct one.” Br. for Respondent at 11-12. We
agree.
Congress has vested the Board with the “responsibility to
supervise representation elections.” Serv. Corp. Int’l v. NLRB,
495 F.3d 681, 684 (D.C. Cir. 2007); see also 29 U.S.C.
§ 159(c). For this reason, Board decisions regarding
representation elections are “entitled to ‘a wide degree of
discretion.’” Serv. Corp., 495 F.3d at 684 (quoting NLRB v.
A.J. Tower Co., 329 U.S. 324, 330 (1946)). 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. Id. (citation and ellipsis omitted). “We will uphold
the Board’s decision unless ‘upon reviewing the record as a
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whole, we conclude that the Board’s findings are not
supported by “substantial evidence,” 29 U.S.C. § 160(e), (f),’
or that its interpretation of the Act is not ‘reasonable and
consistent with applicable precedent.’” Id. (citations omitted).
Objecting parties do not have an automatic “right to a
post-election hearing.” Amalgamated Clothing Workers of
Am. v. NLRB, 424 F.2d 818, 828 (D.C. Cir. 1970). Rather, to
receive a hearing, “[t]he burden is on the objecting party to
present evidence that raises substantial and material factual
issues.” Park Chevrolet-Geo, Inc., 308 N.L.R.B. 1010, 1010
n.1 (1992); see also 29 C.F.R. § 102.69(d). In each case,
“[w]hether [an objecting party’s] evidence was sufficient
depends upon the Board’s ‘substantive criteria’” for the
relevant claim of election misconduct. AOTOP, LLC v. NLRB,
331 F.3d 100, 103 (D.C. Cir. 2003) (quoting Swing Staging,
Inc. v. NLRB, 994 F.2d 859, 862 (D.C. Cir. 1993)). Thus, as
the Board appropriately notes:
When [a] party’s evidence, even if credited, would not
justify setting aside the election under those criteria as a
matter of law, there is simply “nothing to hear,” and the
Regional Director may resolve the objections on the basis
of an administrative investigation.
Br. for Respondent at 16 (quoting Amalgamated, 424 F.2d at
829). That is the sum and substance of this case.
A. Petitioner’s First Objection
Before the Board, Petitioner claimed that “the Union
deceived voters by distributing a campaign flyer that
contained pictures of eligible voters and statements
misrepresenting their intent to vote for the Union.” Durham,
360 N.L.R.B. No. 108, at 1. The Board agreed with the
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Regional Director that Petitioner’s evidence did not raise any
substantial and material factual issues under Midland. Id.
As noted above, the Board in Midland set forth the
standard governing objections to campaign propaganda:
[W]e rule today that we will no longer probe into the
truth or falsity of the parties’ campaign statements, and
that we will not set elections aside on the basis of
misleading campaign statements. We will, however,
intervene in cases where a party has used forged
documents which render the voters unable to recognize
propaganda for what it is.
263 N.L.R.B. at 133 (footnote omitted). The Board held that
Midland controlled here because
[t]here is no claim (much less evidence) of forgery here.
Nor is there any dispute that the Union’s flyer was easily
recognizable as campaign propaganda. At most, then, the
Employer’s evidence suggests a possible
misrepresentation of an employee’s sentiments which,
under Midland, provides no basis for setting aside the
election. Thus, there was no need for a hearing much less
grounds to warrant setting aside the election, which we
note the Union won by a considerable margin.
Durham, 360 N.L.R.B. No. 108, at 2. We have no grounds
upon which to overturn the Board’s decision on this point.
The Midland rule has been accepted by both this court
and a number of our sister circuits. See, e.g., U-Haul Co. of
Nev. Inc. v. NLRB, 490 F.3d 957, 963 (D.C. Cir. 2007);
Durham, 360 N.L.R.B. No. 108, at 1 n.2 (citing cases). And
the Board has routinely applied Midland in situations similar
13
to the present case: that is, in situations in which unions
allegedly have engaged in misrepresentation by distributing
campaign flyers designed to suggest that specified employees
supported the union. See, e.g., U-Haul, 490 F.3d at 962-63;
NLRB v. Media Gen. Operations, Inc., 360 F.3d 434, 444 n.10
(4th Cir. 2004); Somerset, 357 N.L.R.B. at 736; BFI Waste
Servs., 343 N.L.R.B. 254, 254 n.2 (2004). In each case, the
Board found that, under Midland, the contested election
propaganda was not of the type sufficient to set aside the
election.
Petitioner does not contend that the Union’s flyer was a
forged document that was unrecognizable as propaganda.
Rather, it appears that Petitioner simply seeks to avoid the
Midland rule by minimizing the precedent. Petitioner first
contends that the Regional Director improperly relied on
evidence, uncovered during an ex parte investigation, that
portrayed April Perez as a Union supporter. Petitioner thus
argues that that Board erred in adopting the Regional
Director’s recommendation to dismiss its objections. The
Board, however, made it clear that, “even assuming . . . that
Perez did not in fact support the Union” and that the Union
had misrepresented her views, Petitioner’s objection did not
meet the Midland standard. Durham, 360 N.L.R.B. No. 108,
at 2.
Petitioner also asserts that Midland does not establish a
hard-and-fast rule. In Petitioner’s view, the applicability of
Midland “all depends upon the circumstances.” Br. of
Petitioner at 22. In particular, Petitioner points out that
evidentiary hearings have been granted in many cases
involving Midland, hearings that, according to Petitioner,
“would have been wholly unnecessary if the Midland rule
were to be rigidly applied.” Id. (citing cases). This argument
claims too much. The Board does not contend that the
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Midland rule automatically forecloses evidentiary hearings.
Rather, the Board’s position here is that Petitioner proffered
no evidence raising substantial and material factual issues
under Midland. The Board accepted all of Petitioner’s factual
assertions as true and concluded that there was nothing to
indicate that the Union had used forged documents that
rendered the voters unable to recognize propaganda for what
it is. Thus, there was no reason for a hearing.
Petitioner further contends that Midland should not apply
where a Union publicizes without permission how an
employee intends to vote. Br. of Petitioner at 23-29. We need
not address this issue, however, because Petitioner failed to
raise it in the first instance with the Board. Petitioner did not
mention this claim in its exceptions to the Board. Rather, in
its exceptions to the Board, Petitioner focused on its claim
that “the statutory rights of employees to cast a secret ballot
were compromised” by the Union’s misleading election
campaign propaganda. Petitioner’s Exceptions at 3, J.A. 88.
And the Board addressed this issue in its response to
Petitioner’s exceptions:
[O]ur [dissenting] colleague insists that accurately
revealing an employee’s expressed voting intentions,
absent the employee’s express consent, violates the
principle of ballot secrecy. That claim is mistaken. If
ballot secrecy were genuinely implicated, then even an
employee’s express consent to disclose her voting
intentions would be insufficient to authorize publication
of an employee’s intended vote. More significantly,
whatever an employee may tell a union about how she
intends to vote, and however a union may publicize that
disclosure, the fact remains that the employee’s actual
vote will be secret. See Somerset Valley, [357 N.L.R.B. at
737 n.5] (citing ballot secrecy in rejecting argument that
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employees whose names and pictures appeared in flyer
would feel compelled to support union). The Board has
consistently focused on protecting ballot secrecy during
the voting process. When the employee enters the voting
booth, whether she votes against the union—either
because she changed her mind or because she misled the
union originally—or for the union, her vote is known
only to her. There is no basis, then, for imposing
precisely the sort of restriction on free campaign speech
that the Midland Board rejected.
Durham, 360 N.L.R.B. No. 108, at 2-3 (footnotes omitted).
It is true that the Board member who dissented on the
Midland issue argued that he “would hold that a party engages
in objectionable conduct when it publicizes how specific,
named employees intend to vote unless the party obtained
express consent from those employees to disclose how they
intended to vote.” Id. at 4 (Miscimarra, Member, dissenting).
This, however, was not the issue raised in Petitioner’s
exceptions to the Board. And, as the opinion for the majority
points out, the position advanced by the dissenting Board
member was inconsistent with Board precedent. Id. at 2
(majority opinion). This may explain why it was not the focus
of Petitioner’s exceptions. The main point here, however, is
that because Petitioner failed to raise the issue with the Board
in the first instance, the claim has been forfeited. See 29
U.S.C. § 160(e); U-Haul, 490 F.3d at 963; Parsippany Hotel
Mgmt. Co. v. NLRB, 99 F.3d 413, 417 (D.C. Cir. 1996); Int’l
Union of Elec., Radio & Mach. Workers, AFL-CIO v. NLRB,
418 F.2d 1191, 1195 n.10 (D.C. Cir. 1969).
Finally, Petitioner argues that the Board erred in denying
its request to reopen the record to consider Perez’s
supplemental affidavit. According to Petitioner, the proffered
16
affidavit was necessary to respond to the evidence, uncovered
by the Regional Director during an ex parte investigation,
supporting the Union’s claim that April Perez was a Union
supporter. Br. of Petitioner at 29-31. As explained above,
however, the Board’s decision in this case did not rely on this
evidence. Therefore, there was no need for the Board to
reopen the record.
Furthermore, Perez’s supplemental affidavit lends
nothing of substance to Petitioner’s position. In her affidavit,
Perez merely asserts that her signature may have been forged
by the Union. The affidavit does not assert that the Union’s
campaign flyer was somehow a “forgery” under Midland
rendering voters unable to recognize the flyer as campaign
propaganda. See U-Haul, 490 F.3d at 963 (affirming the
Board’s determination that “allegedly forged signatures,
which suggested more employees supported the Union than
may have been the case, would not have prevented employees
from recognizing that the Union was circulating the petition
to garner support for its cause”).
B. Petitioner’s Second Objection
Petitioner’s second objection borders on frivolous.
Petitioner contends “that the Board agent handling the
election compromised the integrity of the election in various
ways when the agent carried the election booth and the ballot
box to the Employer’s parking lot in order to permit a
disabled employee to cast a ballot.” Durham, 360 N.L.R.B.
No. 108, at 3. Given the record in this case, it is clear that the
Board did not err in concluding that the manner in which the
election was conducted raised no reasonable doubts as to the
fairness and validity of the election, and in holding that no
hearing was necessary.
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The Regional Director found that Petitioner did not allege
that any unauthorized ballots were cast. Nor was there
evidence that the Board Agent’s conduct in any way affected
the election’s outcome. Petitioner does not dispute these
findings. Rather, Petitioner argues that its objection and
supporting evidence, even if not sufficient to overturn the
election outright, were enough to warrant an evidentiary
hearing. Petitioner is mistaken. As noted above, to merit an
evidentiary hearing, an objecting party must “raise[]
substantial and material issues of fact sufficient to support a
prima facie showing of objectionable conduct.” Swing
Staging, 994 F.2d at 862 (emphasis added). Whether such a
showing has been made depends on the same “substantive
criteria” that govern the Board’s ultimate determination.
AOTOP, 331 F.3d at 103 (quoting Swing Staging, 994 F.2d at
862). When the conduct of a Board Agent is at issue, one
substantive criterion is that “mere speculative harm [is
insufficient] to overturn an election.” Fresenius USA Mfg.,
352 N.L.R.B. 679, 680 (2008) (citation omitted).
The case law is clear that Petitioner must rely on its
proffered evidence to support a request for an evidentiary
hearing. And only if that evidence raises issues of fact
sufficient to support Petitioner’s prima facie case is a hearing
then warranted to address issues concerning the fairness and
validity of the election. See, e.g., N.Y. Rehab. Care Mgmt.,
LLC v. NLRB, 506 F.3d 1070, 1077 (D.C. Cir. 2007);
Majestic Star Casino, LLC v. NLRB, 373 F.3d 1345, 1347-50
(D.C. Cir. 2004); AOTOP, 331 F.3d at 102-05.
Petitioner responds that requiring a party to be precise in
its objections and evidence would effectively place the burden
on that party to prove its case without a hearing. This is a
specious claim that misapprehends the requirements of the
law. An objecting party is not entitled to a hearing merely by
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imagining fanciful acts of misconduct that find no support in
the evidence. Rather, an objecting party must offer concrete
evidence that is sufficient to give reasonable cause for
concern and thus justify a hearing. See, e.g., NLRB v. J-
Wood/A Tappan Div., 720 F.2d 309, 311-14 (3d Cir. 1983)
(remanding for a hearing where, although not yet proven, the
employer’s evidence demonstrated that a “union agent” might
have threatened employees’ jobs prior to an election). In this
case, Petitioner points to nothing in the record to support a
claim that the Board Agent engaged in any conduct that might
have tainted the election proceeding. Because Petitioner’s
proffered evidence raised no reasonable concerns regarding
the propriety of the election, the Board did not err in denying
the request for an evidentiary hearing.
III. CONCLUSION
For the reasons set forth in the foregoing opinion, we
deny Petitioner’s petition for review, and we grant the
Board’s cross-application for enforcement.
So ordered.