Jones Lang LaSalle Americas, Inc v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 22, 2024 Decided February 18, 2025

No. 24-1079

JONES LANG LASALLE AMERICAS, INC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL UNION OF OPERATING ENGINEERS,

STATIONARY ENGINEERS, LOCAL 39, AFL-CIO,

INTERVENOR

Consolidated with 24-1098

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Reyburn W. Lominack, III argued the cause for petitioner.

With him on the briefs was Todd A. Lyon.

David A. Seid, Senior Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the brief

were Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick,

Deputy Associate General Counsel, David Habenstreit,

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Assistant General Counsel, and Meredith L. Jason, Deputy

Assistant General Counsel. Milakshmi V. Rajapakse, Attorney,

entered an appearance.

David A. Rosenfeld and Bruce A. Harland were on the

brief for intervenor International Union of Operating

Engineers, Stationary Engineers, Local 39, AFL-CIO in

support of respondent.

Before: SRINIVASAN, Chief Judge, WALKER, Circuit

Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: In 2023, the International

Union of Operating Engineers, Stationary Engineers, Local 39,

AFL-CIO (“Union”) filed a petition with the National Labor

Relations Board (“NLRB” or “Board”), seeking certification as

the bargaining representative of the Maintenance II and III

technicians employed by Petitioner Jones Lang LaSalle

Americas, Inc. (“JLL” or “Company”) at an Amazon, Inc.,

facility in Napa, California. The Union and JLL entered into a

stipulated election agreement which was approved by the

Board’s Regional Director. The parties agreed that the election

would be held on May 17, 2023, during two separate polling

periods. The four eligible employees in the designated

bargaining unit voted unanimously in favor of Union

representation. However, JLL refused to bargain with the

Union and filed an objection to the election.

In its objection to the election, JLL raised two claims

regarding the conduct of the Board agent who was overseeing

the election. First, JLL claimed that the Board Agent

impermissibly left an unsealed ballot box and blank ballots in

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the care of the parties’ designated observers, when he briefly

left the polling area to advise employees that they could vote.

Second, JLL alleged that when the Board Agent told eligible

voters that they could come to the polling place to vote, he

impliedly suggested to the voters that they were compelled to

cast a vote in the election.

After conducting an investigation, the Regional Director

dismissed JLL’s objections as meritless and certified the

election. On March 21, 2024, a three-member panel of the

Board unanimously issued a Decision and Order, granting

summary judgment against JLL, finding that the Company had

violated sections 8(a)(5) and (1) of the National Labor

Relations Act (“NLRA” or “Act”), 29 U.S.C. § 158(a)(5), (1),

by refusing to recognize and bargain with the Union. The

Board concluded that all representation issues that JLL had

raised in the unfair-labor-practice proceeding were, or could

have been, litigated in the underlying representation

proceeding, and that the Company did not offer any newly

discovered or previously unavailable evidence, or allege any

special circumstances that would require the Board to

reexamine its decision in the earlier proceeding to certify the

Union. Accordingly, the Board ordered JLL to recognize and

bargain with the Union. Instead of doing so, JLL filed a petition

for review with this court, reiterating its claim that the election

should be set aside. The Board then cross-petitioned for

enforcement of its order requiring JLL to bargain.

For the reasons that follow, we grant the Board’s cross-

application for enforcement of its order requiring JLL to

recognize and bargain with the Union and deny JLL’s petition

for review.

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I. BACKGROUND

A. Statutory and Regulatory Framework

Section 7 of the NLRA provides that protected

“[e]mployees shall have the right to self-organization, to form,

join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to engage

in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

In furtherance of these statutory objectives, the Act makes it an

unfair labor practice for an employer “to interfere with,

restrain, or coerce employees in the exercise of the rights

guaranteed in section 157,” 29 U.S.C. § 158(a)(1), and “to

refuse to bargain collectively with the representatives of his

employees, subject to the provisions of section 159(a),” 29

U.S.C. § 158(a)(5).

Under the Act, employees, a union, or an employer may

petition the NLRB for a representation election to determine

whether a union will serve as the agent for employees in

collective bargaining with an employer. Id. § 159(c). If a

polling place is designated for the election, an agent of the

Board is sent to the polling place to supervise and monitor the

election process. NLRB Casehandling Manual (Part Two)

Representation Proceedings (hereinafter “NLRB Manual”)

§ 11308. In addition, “[w]hen the election is conducted

manually, any party may be represented by observers of its own

selection, subject to such limitations as the [NLRB] Regional

Director may prescribe.” Id. § 102.69(a)(5). These designated

observers, along with the Board Agent, help monitor the

election. The parties’ observers may also challenge ballots and

voter eligibility. Id. § 102.69(a)(6).

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Once ballots have been cast and the polls close, the ballot

box should be sealed securely, in the presence of the observers,

who ensure that no tampering occurs. NLRB Manual

§§ 11318.4, 11332, 11340. The ballots are then tallied in the

presence of the parties’ representatives. Id. § 11340.2. Finally,

the representatives sign the tally, certifying that the tabulation

is correct. Id. § 11340.10.

The parties to a representation election may challenge how

an election was conducted and/or the election results by filing

objections and offers of proof with the Regional Director. 29

C.F.R. § 102.69(a)(8). Applicable procedural rules explain

that:

If timely objections are filed to the conduct of an

election or to conduct affecting the results of the

election, and the Regional Director determines that the

evidence described in the accompanying offer of proof

would not constitute grounds for setting aside the

election if introduced at a hearing, and the Regional

Director determines that any determinative challenges

do not raise substantial and material factual issues, the

Regional Director shall issue a decision disposing of

the objections and determinative challenges, and a

certification of the results of the election, including

certification of representative where appropriate.

Id. § 102.69(c)(1)(i). Objectors may appeal decisions by the

Regional Director to the Board. Id. §§ 102.69(c)(2), 102.67(c).

The Board will grant a petition for review “only where

compelling reasons exist therefor,” and review, if granted, is

limited to issues properly raised before the Regional Director.

Id. § 102.67(d), (e).

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Once the Regional Director or the Board certifies an

election, employers are required to bargain with the

employees’ elected representative. See 29 U.S.C. § 158(a)(5).

If an employer persists in refusing to bargain with a certified

Union, a complaint may be issued by the Board’s General

Counsel, which in turn may result in an order from the Board

finding that the employer has engaged in an unfair labor

practice in violation of the NLRA. See 29 U.S.C. § 160(b); 29

C.F.R. § 102.15. Such orders are subject to enforcement in

federal court. 29 U.S.C. § 160(e).

B. Factual Background

Petitioner JLL provides building management services to

third-party companies in facilities across the country. The

events in this case involve the Union’s attempt to secure

collective bargaining rights on behalf of four employees at

JLL’s facility in Napa, California. As explained above, the

Union requested an NLRB certification election. The Union

and JLL reached a stipulated agreement regarding the terms of

the election. The agreement was approved by the NLRB

Regional Director. The election was set for May 17, 2023, and

the parties agreed that it would take place during two polling

periods, one from 3:30 pm to 4:00 pm, and the other from 6:45

pm to 7:15 pm.

On the day of the election, Board Agent Matt Peterson

hosted a pre-election conference before the first polling period.

Joining him were JLL’s representative, Deven Villarin, and

Union representative, Moses Portillo. JLL’s designated

observer, Diane Donohoe, was also present, as well as the

Union observer for the first polling period, JLL employee

Denis Vicenzini. The Union’s observer for the second polling

period was JLL employee Eric Buckley.

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During the first polling period, Union observer Vincenzini

cast his own ballot, then remained in the room along with JLL’s

observer Donahoe and the Board Agent. At around 3:45 pm,

the Board Agent told the observers that he would step out

briefly to check to see if the other employee whose shift had

ended before the first polling period was nearby. He then left

the polling area for approximately one minute, and returned

with the second employee, Maynard Bumagat. Bumagat cast

his ballot and left the polling area. During the one minute when

the Board Agent stepped out, the ballot box and the unmarked

ballots remained in the room, as did both observers. There is

nothing in the record to indicate that the ballot box or the

unmarked ballots were touched by either the JLL or the Union

observer, or by anyone else, during the one minute when the

Board Agent was out of the room.

During the second polling period, the Board Agent repeated

what he had done during the first polling period. After the

Union observer for the second period cast his ballot, the Board

Agent again said that he would go check to see if the fourth

eligible employee was nearby. He briefly stepped out, leaving

the ballot box and unmarked ballots in the room with the JLL

and Union observers. As before, the Board Agent returned

shortly with the fourth employee, Roy Aninon, explaining that

Aninon had been waiting outside under the mistaken

impression that he had to be notified to come into the room to

vote. Aninon, the fourth and final employee, cast his ballot and

left. During the brief moments when the Board Agent stepped

out, the ballot box and the unmarked ballots remained in the

room, as did both observers. There is nothing in the record to

indicate that the ballot box or the unmarked ballots were

touched by either the JLL or the Union observer, or by anyone

else, during the moments when the Board Agent was out of the

room.

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After polling closed, votes were tallied, showing that all

four votes were cast for the Union. Both parties’

representatives signed the tally, certifying that the counting and

tabulating were fairly and accurately done, that the secrecy of

the ballots was maintained, and that the results were as

indicated.

C. Procedural Background

JLL filed a timely objection to the election and an offer of

proof on May 24, 2023. JLL’s objection focused on the Board

Agent leaving the polling area, which JLL contended was

problematic in two respects: first, the Board Agent should not

have left the ballots and ballot box in the room; and second, the

Board Agent should not have stepped out to remind employees

that the polls were open. According to JLL, such conduct was

“sufficiently material” so as to constitute grounds for

invalidating the election because, as relevant here, it “impinged

on the voters’ right not to cast a ballot” and because it “could

be reasonably interpreted as impugning” election standards.

JLL’s Offer of Proof 4-5, Joint Appendix (“J.A.”) 18-19

(citations omitted).

The Regional Director overruled JLL’s objection without a

hearing, finding that JLL failed to allege specific facts which,

if credited, would prima facie warrant setting aside the election,

and thus failed to raise material and substantial issues of fact

sufficient to warrant a hearing. See 29 C.F.R. § 102.69(c)(1)(i).

Distinguishing the cases relied upon by JLL in its offer of

proof, the Regional Director explained that because the ballots

were only left temporarily and in the care of the JLL and Union

election observers, and because JLL did not offer anything to

support any allegations that the election process had been

compromised or that any eligible employee had been coerced

into voting, it could not be shown that the Board Agent had

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acted in a manner that would warrant overturning the election’s

results. JLL’s objection was thus found to be insufficient to set

aside the election. Accordingly, the Regional Director

overruled JLL’s objection and certified the election.

JLL appealed to the Board, contending that the Regional

Director had erred in certifying the election. On September 7,

2023, a three-member panel of the Board summarily denied

review, with one member noting separately that even if the

“Board agent took an unnecessary risk” in leaving the unsealed

ballot box in the room while he briefly stepped out, such

conduct did not raise a reasonable doubt as to the election’s

fairness. Board Order of September 7, 2023 (“September

Order”), J.A. 152 & n.1.

JLL continued to refuse to bargain with the Union,

reiterating its certification objection in a letter sent to the Union

on October 12, 2023. In response, the Board’s General Counsel

filed a complaint with the Board seeking summary judgment

against JLL for its continued violations of the Act. In March

2024, the Board found no merit in JLL’s attempt to relitigate

certification issues, issued a summary judgment against JLL,

and ordered the Company to bargain with the Union. JLL then

filed this petition for review, and the Board cross-filed for

enforcement of the March Order.

II. ANALYSIS

A. Standard of Review

The Supreme Court long ago recognized that, under the

National Labor Relations Act, “Congress has entrusted the

Board with a wide degree of discretion in establishing the

procedure and safeguards necessary to insure the fair and free

choice of bargaining representatives by employees.” NLRB v.

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A.J. Tower Co., 329 U.S. 324, 330 (1946). The Court has never

wavered in this view of the Board’s delegated authority under

the NLRA. Given the Board’s broad and undisputed

“discretion to assess the propriety and results of representation

elections,” Am. Bottling Co. v. NLRB, 992 F.3d 1129, 1140

(D.C. Cir. 2021), this court has made it clear that it “will

overturn a Board decision to certify an election in only the

rarest of circumstances.” N. of Mkt. Senior Servs., Inc. v. NLRB,

204 F.3d 1163, 1167 (D.C. Cir. 2000). These circumstances are

limited to situations where the objector can show that “the

alleged defects in election administration interfered with the

employees’ exercise of free choice to such an extent that they

materially affected the results of the election.” RadNet Mgmt.,

Inc. v. NLRB, 992 F.3d 1114, 1120 (D.C. Cir. 2021) (internal

quotation marks and citation omitted).

We thus uphold a Board’s judgment regarding a

representation election unless “we conclude that the Board’s

findings are not supported by substantial evidence, or that the

Board acted arbitrarily or otherwise erred in applying

established law to the facts of the case.” Troutbrook Co. LLC

v. NLRB, 107 F.4th 994, 1000 (D.C. Cir. 2024) (citations

omitted). As the Supreme Court noted in Allentown Mack Sales

& Serv., Inc. v. NLRB, “[t]he substantial evidence test . . .

requires not the degree of evidence which satisfies the court

that the requisite fact exists, but merely the degree which could

satisfy a reasonable factfinder.” 522 U.S. 359, 377 (1998). In

other words, “we reverse the Board only when the record is so

compelling that no reasonable factfinder could fail to find to

the contrary.” Troutbrook, 107 F.4th at 1000 (internal

quotation marks and citations omitted).

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B. The Regional Director’s Decision to Certify the

Election Without a Hearing Was Reasonable and

Supported by the Record

To receive a hearing on election objections, “the burden is

on the objecting party to present evidence that raises substantial

and material factual issues.” Durham Sch. Servs., LP v. NLRB,

821 F.3d 52, 58 (D.C. Cir. 2016) (citations and brackets

omitted). Therefore, “[w]hen a party’s evidence, even if

credited, would not justify setting aside the election . . . 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.” Id. (citation and bracket

omitted).

Under Board precedent, objections grounded in the conduct

of the Board Agent require that the objector demonstrate that

such conduct “raised . . . reasonable doubts as to the fairness

and validity of the election.” Id. at 61; see also Polymers, Inc.,

174 N.L.R.B. 282, 282 (1969), enforced 414 F.2d 999 (2d Cir.

1969), cert. denied, 396 U.S. 1010 (1970) (describing the same

standard). As we have explained, “mere speculative harm is

insufficient.” Durham, 821 F.3d at 61 (cleaned up). Even for

allegations that the Board Agent did not “maintain an

appearance of neutrality in conducting fair and impartial

elections,” the objector must still demonstrate that the conduct

was serious enough to “destroy confidence” in the election

process or “could reasonably be interpreted as impugning”

election standards or the Board’s neutrality. N. of Mkt. Senior

Servs., 204 F.3d at 1168.

On the record before us, it is clear that the Regional

Director properly concluded that JLL’s objection did not

present “substantial and material factual issues” which, “if

credited, would . . . justify setting aside the election” under the

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applicable legal standard. Durham, 821 F.3d at 58.

Accordingly, we find that the dismissal of JLL’s objection

without a hearing was reasonable and based on substantial

evidence in the record, as was the Board’s denial of JLL’s

petition for review.

First, the Regional Director reasonably concluded that the

Board Agent’s briefly leaving the ballot box in the room with

the designated observers is not conduct that raises “reasonable

doubts” about the election’s validity. Id. at 61. As in Durham,

JLL does not “allege that any unauthorized ballots were cast,”

or that “the Board Agent’s conduct in any way affected the

election’s outcome.” Id. Indeed, the evidence on the record is

to the contrary: The Company’s representative certified that the

secrecy of the ballots was maintained and that all four votes

were accurately tallied. Neither JLL’s observers nor its

representative objected to a single ballot. JLL’s claims that an

irregularity may have occurred is thus not only “mere[ly]

speculative,” but plainly contradicted by the facts. Id. Such a

claim is “insufficient to overturn an election,” id. (cleaned up),

as Board precedent has held. See Benavent & Fournier, Inc.,

208 N.L.R.B. 636, 636, n.2 (1974) (overruling objection where

“the ballots were in the custody of the observers during the

short time” the Board Agent stepped out, and “[n]o one touched

the ballots during that period” so “there could not have been

any effect on the election”).

Similarly, the Board Agent’s conduct also did not “cast[]

a doubt or cloud over the integrity of the ballot box.” JLL’s

Offer of Proof 5 (quoting Austill Waxed Paper Co., 169

N.L.R.B. 1109, 1109 (1968)), J.A. 19. As the Regional Director

explained below, not every deviation from best practices

warrants setting an election aside. Thus, although the NLRB

Manual directs that unused ballots must remain in the “personal

custody” of the Board Agent, NLRB Manual § 11322.1,

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“neither the Casehandling Manual nor Board’s Rules and

Regulations addresses the specific situation here,” as Member

Kaplan observed below. September Order, J.A. 152 & n.1.

And, in any event, the Manual is not binding, and the Board

has found that “[p]urported noncompliance with those

provisions [of the NLRB Manual] does not warrant setting

aside an election, absent a showing that the deviations from the

guidelines raised a reasonable doubt as to the fairness and

validity of the election.” Patient Care of Pennsylvania, 360

N.L.R.B. 637, 638 (2014).

Where, as here, the box “remained in the voting room

under the ‘watchful eyes’ of both election observers,” the

conduct in question does not rise to the level justifying setting

the election aside under Board precedent. Sawyer Lumber Co.,

L.L.C., 326 N.L.R.B. 1331, 1332 (1998) (dismissing similar

objection where it was clear that no extra ballots were cast,

there was no evidence of election tampering, and both

observers monitored the ballot box at all times). After all, the

parties’ designated observers are tasked with “represent[ing]

their principals” in “generally monitoring the election process.”

NLRB Manual § 11310.3. Compare Austill, 169 N.L.R.B. at

1109-10 (setting election aside where ballot box was left

wholly unattended), with Anchor Coupling Co., Inc., 171

N.L.R.B. 1196, 1196 n.2 (1968) (distinguishing the facts in

Austill where, as here, “the box was not left wholly unattended,

and both of the Employer’s observers certified that the ballot

box was protected”).

Second, the Regional Director reasonably concluded that

the act of stepping out to check in on remaining voters did not

rise to the kind of election irregularity that warrants

invalidating an election. Instead, as the Regional Director

concluded, JLL’s allegations are purely conclusory: there is no

evidence that the Board Agent stepped out with the intent to

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solicit or compel votes. JLL only proffered that Board Agent

Peterson stepped out briefly, and then returned each time with

an employee who had yet to vote. Such evidence does not raise

a “reasonable possibility,” based on more than “mere

speculative harm,” that any “irregularity inhered” in the

conduct of the election. Peoples Drug Stores, Inc., 202

N.L.R.B. 1145, 1145 (1973); J.C. Brock Corp., 318 N.L.R.B.

403, 404 (1995) (internal quotation marks and citation

omitted).

In sum, we find no merit to JLL’s challenges to the

Regional Director’s decision to certify the election and the

Board’s decision sustaining the certification.

C. JLL Has Forfeited Its Belatedly Proffered Claim That

the Board Should be Reversed Because It Applied

Inconsistent Standards

Finally, we reject JLL’s contention that the Regional

Director adopted inconsistent legal standards in assessing its

objection. This argument was raised for the first time in JLL’s

reply brief. We need not address the merits of JLL’s position

because the claim has been forfeited. It is well established that

issues not raised until the reply brief are forfeited. See Tramont

Mfg., LLC v. NLRB, 890 F.3d 1114, 1121 (D.C. Cir. 2018)

(holding that because a party had failed to properly raise an

argument in its opening brief it had forfeited any right to pursue

the matter with the court); New York Rehab. Care Mgmt., LLC

v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007) (finding that a

party had “forfeited any right to challenge” an issue it had not

raised in its opening brief before the court).

In the decision overruling JLL’s objections and certifying

the Union, the Regional Director said that:

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The question which the Board must decide in each case

in which there is a challenge to conduct of the election

is whether the manner in which the election was

conducted raises a reasonable doubt as to the fairness

and validity of the election.

Regional Director’s Decision 4, J.A. 40 (quoting Polymers,

Inc., 174 N.L.R.B. at 282).

This is the same standard that JLL argued was applicable

in its opening brief to this court. See JLL Opening Br. 10 (“The

Court should grant JLL’s petition for review and deny the

Board’s cross-application for enforcement . . . because the

Board agent’s misconduct . . . raised a reasonable doubt as to

the fairness and validity of the election.”). Indeed, in the

“Standard of Review” section of its brief to the court, JLL

stated that:

Where a Board agent’s conduct during an election is at

issue, the question is whether “the manner in which the

election was conducted raises a reasonable doubt as to

the fairness and validity of the election.”

Id. at 12 (quoting Durham, 821 F.3d at 54 (quoting Polymers

Inc., 174 N.L.R.B. at 282)).

JLL never suggested in its opening brief that the Regional

Director’s standard was in error or somehow at odds with a

different standard applied by the Regional Director or the

Board. In its reply brief, however, JLL argued for the first time

to this court that the Regional Director and the Board applied

inconsistent standards of review.

JLL’s failure to argue in its opening brief that the Regional

Director had impermissibly adopted inconsistent legal

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standards in assessing its objection “deprived the [Board] of the

opportunity to respond. To prevent this sort of sandbagging of

appellees and respondents, we have generally held that issues

not raised until the reply brief are [forfeited].” Bd. of Regents

of Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996);

Dist. No. 1, Pac. Coast Dist., Marine Engineers’ Beneficial

Ass’n v. Mar. Admin., 215 F.3d 37, 43 (D.C. Cir. 2000)

(similar); Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50 n.4

(D.C. Cir. 1990) (similar). Apart from the problem of

sandbagging other parties, we have also explained that issues

not raised until the reply brief are forfeited because “[j]udges

are not expected to be mindreaders. Consequently, a litigant

has an obligation to spell out its arguments squarely and

distinctly, or else forever hold its peace.” Schneider v.

Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005).

III. CONCLUSION

For the foregoing reasons, we deny JLL’s petition for

review and grant the Board’s cross-petition for enforcement of

its order.

So ordered.