RADNET MANAGEMENT, INC., D/B/A ORANGE ADVANCED IMAGING, ET AL., PETITIONERS v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT
No. 19-1180
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2021 Decided April 2, 2021
Consolidated with 19-1181, 19-1182, 19-1183, 19-1184, 19-1191, 19-1192, 19-1193, 19-1194, 19-1195, 19-1203, 19-1207
On Petitions for Review and Cross-Applications for Enforcement of Orders of the National Labor Relations Board
Kaitlin Kaseta Lammers argued the cause for petitioner. On the briefs was Bryan T. Carmody.
Heather Beard, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were Peter B. Robb, General Counsel at the time the brief was filed, Ruth E. Burdick, Deputy Associate General Counsel, David S. Habenstreit, Assistant General Counsel, Elizabeth A. Heaney, Supervisory Attorney, and Rebecca J. Johnston, Attorney.
Before: MILLETT, KATSAS and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER,
In 2018, the Union petitioned to represent RadNet employees in a single multi-facility unit comprising registered nurses and technical employees employed across more than a dozen RadNet facilities in Southern California. Following a representation hearing, the Board‘s Regional Director agreed with RadNet that the Union had failed to establish a sufficient community of interest between the employees of separate RadNet facilities; accordingly, he found that multiple single-facility units were more appropriate. On various other representation issues he found in favor of the Union, and he directed separate single-facility elections to occur on October 24th and 25th, 2018. The Union prevailed in the six elections contested here—namely, those concerning RadNet‘s facilities in Anaheim, Garden Grove, La Mirada, Orange, Irvine, and in one of two elections held in Santa Ana—and failed in all others. The elections were certified, and following unfair labor practice complaints for RadNet‘s refusal to bargain, the Board granted summary judgment against RadNet. RadNet petitioned for review, and the Board cross-applied for enforcement. For the following reasons, we deny the petitions for review and grant the cross-applications for enforcement.
I.
We have jurisdiction to review the petitions and cross-applications under
II.
RadNet presses eight objections to the Board‘s election certifications. Four objections concern two or more bargaining units and elections generally, and four additional objections concern the conduct of individual elections. RadNet also complains about the Board‘s refusal to allow relitigation of underlying representation issues during the unfair labor practice proceedings. All of RadNet‘s objections fail because the Board either did not err, or where it did, the error was harmless.
A.
First, RadNet claims that several of the petitioned-for bargaining units were inappropriate because they combined guard and non-guard employees in violation of Section 9(b)(3) of the National Labor Relations Act (NLRA or Act), which prohibits the Board from “decid[ing] that any unit is appropriate . . . if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer‘s premises[.]”
The Regional Director‘s decision on this issue was reasoned, consistent with precedent, and supported by substantial evidence. First, the Regional Director made the factual finding that MRI and Nuclear
B.
Second, RadNet argues that all the elections were a priori defective because they were conducted pursuant to the Board‘s 2014 revised election rules, see Representation-Case Procedures,
On the question of an employer‘s Section 9 right to a pre-election hearing, RadNet appears to take issue with (without actually citing to) a provision of the rules stating that “[d]isputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.”
RadNet‘s argues next that the 2014 rules interfered with protected speech under Sections 7 and 8(c) of the NLRA by shortening the electioneering period. Section 7 of the NLRA guarantees employees the right to organize and bargain through representatives they choose,
RadNet‘s claims related to the privacy of confidential employee information are no more persuasive. RadNet argues that the 2014 Rules violate “federal privacy law and public policy” by requiring employers to share with unions private employee contact information including email addresses and telephone numbers. RadNet Opening Br. at 44. But as the Board explained in enacting the 2014 rules, courts have long approved of Board rules requiring employers to share with unions private employee information, including the names and home addresses of eligible voters. See
That brings us to RadNet‘s arbitrary-and-capricious challenge, which is a nonstarter. RadNet claims that the Board‘s enactment of the 2014 revised rules was arbitrary and capricious insofar as it “relied heavily on factors not considered relevant to representation cases by Congress when it wrote the [NLRA], such as speed in scheduling elections, and the facilitation of organized labor.” RadNet Opening Br. at 45. But RadNet offers no evidence for this assertion, nor is it obvious that the Congress would consider such factors irrelevant. See, e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 48 n.15 (1987) (in balancing interests, the Board generally strives to “permit[] employees who wish to be represented as immediate representation as possible” (quoting Clement-Blythe Cos., 182 NLRB 502 (1970))). RadNet also argues that the Board‘s adoption of new election rules in 2019, which revised some of the 2014 changes, see Representation-Case Procedures,
C.
Third, RadNet claims that the Board abused its discretion in choosing to postpone the counting of ballots and the disclosure of results until the conclusion of voting in all ten of the individual unit elections. Here, we agree with RadNet that the Board has abused its discretion, but because the error was harmless, we nonetheless deny RadNet‘s petitions for review. See 800 River Rd., 846 F.3d at 386 (“We will affirm the Board‘s order to bargain unless the Board abused its discretion in overruling [an employer‘s] objections, and the abuse of discretion was prejudicial.“) (cleaned up).
The Board‘s error was straightforward: in directing ballots to be impounded and vote tallies to be delayed, the Regional Director departed without reasoned explanation from the Board‘s prior policy and practice, and the Board summarily affirmed the Regional Director‘s faulty decision. The Board‘s own rules and regulations provide that “[u]pon the conclusion of the election the ballots will be counted and a tally of ballots prepared and immediately made available to the parties,”
Here, too, the Board relies on an insufficient explanation from the Regional Director.
The Board‘s error, however, did not prejudice either party. “In administrative law, as in federal civil and criminal litigation, there is a harmless error rule: . . . the Administrative Procedure Act,
RadNet has failed to show any prejudice from the Regional Director‘s impoundment decision. First, of the six units that voted in favor of the Union, five did so by healthy margins. Cf. C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 884 (D.C. Cir. 1988) (applying greater scrutiny to the Board‘s decisions in close elections). One unit—Unit J-2 in Santa Ana—was close, with a vote of 10 in favor versus 9 opposed. But even there, RadNet does not clearly articulate the nature of the prejudice it has suffered. RadNet claims that that it was denied its free speech rights because it
D.
Fourth, RadNet contends that the elections must be set aside because the Union failed to disclose to employees its alleged affiliation with another union, the International Association of Machinists and Aerospace Workers (IAMAW). Because the “statutory right [to select a bargaining representative] can only be meaningfully exercised if the employees are presented on the election ballot with the choice of a clearly identified labor organization[,]” O & T Warehousing Co., 240 NLRB 386, 386 (1979), the Board will sometimes set aside elections where the evidence supports an inference of voter confusion over the identity of the bargaining representative. See, e.g., Pac. Sw. Container, 283 NLRB 79, 80 (1987) (vacating election where, due to a merger of unions, the sole union listed on ballots ceased to exist prior to certification); Humane Soc‘y for Seattle/King Cty., 356 NLRB 32, 35 (2010) (setting aside election where the petitioning union falsely assured employees that they would be represented by their own independent union, resulting in a “strong showing of employee confusion over the identity of the organization seeking representative status“). Less frequently, the Board sets aside elections where issues of union affiliation contribute to voter confusion. See, e.g., Woods Quality Cabinetry Co., 340 NLRB 1355, 1356 (2003) (setting aside election where petitioning union affirmatively misrepresented itself as affiliated with the AFL-CIO and affiliation issue was “material to the election campaign“); cf. Nev. Sec. Innovations, Ltd., 337 NLRB 1108, 1109 (2002) (declining to set aside election where employees received a letter from a local affiliate union erroneously stating that it too would participate in their representation but where the letter was unlikely to generate widespread voter confusion).
The circumstances here are not so extreme: even crediting RadNet‘s allegation of an undisclosed affiliation, there is no evidence that the Union affirmatively misrepresented its affiliation with IAMAW or that the Union‘s relationship with IAMAW or any other union was at all material to the election campaign. Nor is there any indication that the voters were confused as to the identity of their prospective bargaining representative. Rather, as the
E.
Fifth, RadNet raises four separate objections concerning the conduct of individual elections. In Irvine, RadNet alleges that the Board Agent failed to maintain security of the ballot box and that the Union observer continuously used her cellular telephone during the election and in the vicinity of voters. In Santa Ana, RadNet alleges that the Board Agent failed to post the proper “Voting Place” sign prior to the start of the election. And in Garden Grove, RadNet alleges that the Board agent permitted a pro-Union employee to loiter in the polling area and attempt to engage the Union observer in a conversation about workplace issues. The Regional Director overruled all four objections without a hearing, and the Board affirmed, also without a hearing.
We review the Board‘s decision to overrule post-election objections under the deferential abuse of discretion standard. Amalgamated Clothing Workers, 424 F.2d at 827 (“The only question presented on judicial review is whether the Board has reasonably exercised its discretion in the matter.“). To succeed in overturning an election, “the objecting party must produce specific evidence that the election was improperly conducted and that the acts complained of interfered with the employees’ exercise of free choice to such an extent that they materially affected the results of the election.” Id. (cleaned up). “In short, there is a heavy burden on the [objecting party] in showing that the election was improper.” Id. Nor does the objecting party possess an “automatic right” to a post-election hearing on all objections properly lodged. Durham Sch. Servs., LP v. NLRB, 821 F.3d 52, 58 (D.C. Cir. 2016) (cleaned up). Rather, “[w]hen a party‘s evidence, even if credited, would not justify setting aside the election,” the Board may overrule the objection without a hearing. Id. (cleaned up); see also Amalgamated Clothing Workers, 424 F.2d at 829. Here, even assuming the veracity of RadNet‘s factual allegations, we are unpersuaded that the Board abused its discretion in overruling the objections, and we see no specific evidence of prejudice to the fairness of the election.
Starting with the Irvine ballot box security objection, RadNet asserts that the “Board Agent failed to maintain the security of the ballot box, insofar as the ballot box was consistently out of her line of sight.” J.A. 1758. In support of its claim, RadNet would have offered testimony from its own election observer to the effect that “for nearly the entirety of [the election]” the Board Agent was “seated in a chair that faced a wall and her back was turned to the entrance . . . and the ballot box . . . [and] had her head down and was reading a newspaper [and/or] using a cellular telephone.” J.A. 1063. Without question, failure to maintain ballot box security can constitute grounds for setting aside an election. See, e.g., Austill Waxed Paper Co., 169 NLRB 1109, 1109–10 (1968). Even in cases where physical custody of the ballot box was compromised, however, the Board has declined to set aside the election unless the facts support a reasonable inference of ballot box tampering. See, e.g., Polymers, Inc., 174 NLRB 282, 283 (1969) (declining to set aside election where Board agent failed to retain continuous physical custody of the ballot box and blank ballots, but “the security afforded
The Board‘s decision on the Irvine cell phone objection was similarly consistent with Board precedent. RadNet alleges that the Union‘s observer “continuously” used her cellular phone during the Irvine election in violation of the Board agent‘s instructions and in plain view of eligible voters. J.A. 1758. RadNet also claims, “upon information and belief,” that the Union observer used her cellphone at least in part for the purpose of contacting potential voters. Id. at 1758–59. The implication, it seems, is that the Union observer may have used her cell phone in order to keep (or communicate with others who were keeping) a list of eligible voters. The only evidence offered, however, was testimony from RadNet‘s own observer, who would have testified that the Union observer “continuously” used her phone, sent text messages, and received at least one call during the election. J.A. 1063–64.
Even crediting RadNet‘s allegations, the Board was justified in overruling RadNet‘s cell phone objection. RadNet appeals to Board guidance and precedent prohibiting parties’ election observers from making lists of voters “who have or have not voted,” Casehandling Manual § 11322.1; Int‘l Stamping Co., 97 NLRB 921, 921, 922–923 (1951) (setting aside an election where agent for the employer kept a list of voters), and RadNet is correct that, under Board precedent, a reasonable perception of list-keeping may be enough to overturn an election, see Piggly-Wiggly #011, 168 NLRB 792, 793 (1967) (setting aside election where union agent had a sheet of paper in hand, and employees were able to observe him notating the names of those who had voted). But conversely, the Board will not disturb an election where voters were not aware of potential list-keeping. See A.D. Juilliard & Co., 110 NLRB 2197, 2199 (1954). Because RadNet offered no evidence of actual or even perceived list-keeping, the Board reasonably overruled the objection.
RadNet‘s Santa Ana objection—alleging that the Board Agent failed to post any “Voting Place” signs in connection with the election—is no more successful. RadNet appeals to the Board‘s non-binding Casehandling Manual, which directs Board agents to examine the polling place prior to the election and to post “Voting [P]lace” signs “if needed.” Id. § 11318. Board precedent clearly provides, however, that the Board “do[es] not invalidate elections based on minor deviations from the guidelines,” including an agent‘s failure to place “Voting Place” signs. See Pac. Grain Prods., 309 NLRB 690, 690–91 & n.5 (1992) (specifically declining to set
Last, the Board did not abuse its discretion in overruling the Garden Grove objection. There, RadNet alleges that the Board agent permitted a pro-Union employee to loiter in the polling area and to attempt to engage the Union observer in approximately two minutes of conversation about “workplace subjects, such as patient procedures and patient work flow.” J.A. 1042; see also id. at 1301–02. This, according to RadNet, is a violation of the so-called Milchem rule, which holds that a party‘s “sustained conversation with prospective voters waiting to cast their ballots, regardless of the content of the remarks exchanged,” is grounds for setting aside an election. Milchem, Inc., 170 NLRB 362, 362 (1968); accord Overnite Transp. Co. v. NLRB, 140 F.3d 259, 269–70 (D.C. Cir. 1998). But the Board, crediting RadNet‘s allegations, determined that Milchem did not apply, and we agree. First, no party engaged in a sustained conversation with prospective voters. At most, RadNet alleges only a brief conversation between a non-voting employee and a Union observer. Second, even assuming Milchem were to apply to conversations between non-voting employees and party observers, the alleged conversation consisted of little more than a “chance, isolated, innocuous comment or inquiry“—just the type of conversation that Milchem exempts. Milchem, Inc., 170 NLRB at 363. Accordingly, the Board did not abuse its discretion in overruling the Santa Ana objection, and even if it had, RadNet produces no evidence of actual prejudice.
F.
Finally, we briefly dispatch with RadNet‘s argument that the Board abused its discretion in granting summary judgment to the General Counsel without allowing relitigation of certain underlying representation issues. RadNet‘s argument is without merit. The Board was merely following its “well-settled” rule that, “in the absence of newly discovered or previously unavailable evidence, the Board will not relitigate in a subsequent refusal-to-bargain proceeding matters which have been disposed of in a prior related representation case.” Pepsi-Cola Buffalo Bottling Co., 171 NLRB 157, 158 (1968). The basic rule, moreover, has long been met with judicial approval. See, e.g., Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); NLRB v. Mar Salle, Inc., 425 F.2d 566, 572 (D.C. Cir. 1970). To the extent that the Board has occasionally departed from its rule against relitigation, see, e.g., Sub-Zero Freezer Co., 271 NLRB 47, 47 (1984), such exceptions merely demonstrate that the Board may—exercising appropriate discretion—allow relitigation in certain cases, particularly when the alleged pre-election misconduct is so severe that it calls into question whether the election was “free and fair.” See id. Absent similarly extreme circumstances, the Board reasonably hewed to its general rule against relitigation.
III.
We deny the petitions for review and grant the cross-applications for enforcement.
So ordered.