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

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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

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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.