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

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 10, 2018 Decided May 1, 2018

No. 16-1350

PRUITTHEALTH-VIRGINIA PARK, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 16-1399

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Jonathan E. Kaplan argued the cause and filed the briefs

for petitioner.

Mischa K. Bauermeister, Attorney, National Labor

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

the brief were Richard F. Griffin, Jr., General Counsel at the

time the brief was filed, John H. Ferguson, Associate General

Counsel, Linda Dreeben, Deputy Associate General Counsel,

and Usha Dheenan, Supervisory Attorney.

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Before: ROGERS and TATEL, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: This case concerns a

union representation election in which Retail, Wholesale, and

Department Store Union/UFCW Southeast Council (“the

Union”) prevailed in its campaign to represent certain

employees working for Petitioner PruittHealth-Virginia Park,

LLC (“PruittHealth” or “the Company”) in its Virginia Park

facility (“the Facility”) in Atlanta, Georgia. The election took

place on August 20, 2015 and resulted in a 35–31 vote in favor

of the Union, with two non-determinative challenged ballots.

PruittHealth filed objections to the election with the National

Labor Relations Board (“Board”), claiming that the Union

engaged in misconduct during its election campaign that

destroyed the conditions required for a free and fair election.

Following a hearing conducted by a Hearing Officer, the

Board’s Regional Director overruled the objections and

certified the Union as the employees’ lawful bargaining

representative.

PruittHealth refused to bargain with the Union in order to

contest the validity of the Regional Director’s certification

decision. The Union then filed unfair labor practice charges and

the Board’s General Counsel issued a complaint. A three-

member panel of the Board found that PruittHealth’s refusal to

bargain constituted an unfair labor practice under Section

8(a)(1) and (5) of the National Labor Relations Act (“Act”), 29

U.S.C. § 158(a)(1), (5), and ordered the Company to bargain

with the Union. See Pruitthealth-Virginia Park, LLC, 364

NLRB No. 125, slip op. at 2 (Sept. 22, 2016). PruittHealth now

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petitions for review, and the Board cross-applies for

enforcement of its decision and order.

In its petition for review, PruittHealth contends that the

Board erred in overruling its objections to the election, which

alleged, in relevant part, that: Union demonstrators repeatedly

and intentionally blocked employees’ vehicles as they were

entering and exiting the Facility’s premises; two employees

were subjected to objectionable threats of physical violence;

and the Union unlawfully photographed employees on

PruittHealth’s premises during the critical period before the

election. PruittHealth also asserts that the Hearing Officer and

Regional Director failed to properly consider the cumulative

impact of the allegedly objectionable conduct and the closeness

of the election results in assessing the Company’s objections.

On the record before us, we find no merit in PruittHealth’s

claims. We hold that the Board’s adoption of the Regional

Director’s decision overruling PruittHealth’s blocking and

threats-related objections is supported by substantial evidence

and consistent with Board precedent. We further hold that we

lack jurisdiction over PruittHealth’s claim that the Board erred

in dismissing its unlawful photographing objection. The

Company failed to raise this claim with the Board in the

representation proceedings, as required by Section 10(e) of the

Act. See 29 U.S.C. § 160(e). We therefore deny the petition for

review and grant the Board’s cross-application for

enforcement.

I. BACKGROUND

PruittHealth operates a nursing home located on Briarcliff

Road in Atlanta, Georgia. The Facility has North and South

entrances, which are 30 to 50 yards apart and lead to a parking

lot in the rear of the Facility. In the summer of 2015, the Union

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began to organize employees at the Virginia Park Facility. On

July 30, 2015, the Union filed a petition with the Board to

represent an 84-person bargaining unit of certified nursing

assistants, restorative aides, activity assistants, medical record

clerks, and service and maintenance employees. In the August

20, 2015 election, the Union prevailed by a vote of 35 to 31.

There were two non-determinative challenged ballots.

A week later, PruittHealth filed written objections to the

election with the Regional Director, contending that the Union

engaged in misconduct that tainted the outcome of the election

and warranted setting aside the election results. The Company

alleged, inter alia, that Union demonstrators repeatedly and

intentionally blocked employees’ ingress to and egress from

the Facility’s premises and hindered employees’ access to a

public bus stop in front of the Facility. The Company further

contended that the Union intimidated and coerced employees

by threatening physical violence against individuals who chose

not to vote for the Union. The Company also asserted that the

Union unlawfully photographed employees on PruittHealth’s

premises. After an investigation, the Regional Director ordered

a hearing on the objections.

A Board Hearing Officer presided over the hearing on

PruittHealth’s objections. As relevant here, the parties

presented evidence that, on August 13 and 19, 2015, the Union

conducted demonstrations between approximately 2:30 pm and

4:00 pm. Around 15 to 20 individuals participated in the

demonstrations, including a few Union representatives as well

as individuals from other labor organizations and community

groups. Demonstrators patrolled the area between the Facility’s

two entrances, carrying pro-Union signs and making pro-

Union statements with a bullhorn. PruittHealth called the

police each day, but there was no evidence that any arrests were

made.

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Five witnesses testified for the Company about the alleged

blocking incidents. Employee Yolando Thornton testified that,

as she was driving into the Facility’s premises one day, a

demonstrator stepped off a curb and approached her car to hand

her a pro-Union flyer. Thornton did not take the flyer, told the

man to “move out of the way,” and proceeded into the

driveway. Joint Appendix (“J.A.”) 31. The exchange lasted no

more than 60 seconds. Employee Andrew Johnson testified

that, on August 18 or 19, as he was driving into PruittHealth’s

entrance, a demonstrator came to the driver’s side of the car,

encouraged him to “vote yes [for] the Union,” and attempted to

hand him a flyer. J.A. 61–62, 68. Johnson came to a stop for a

few seconds, gave the man “[a] look,” and proceeded into the

parking lot. J.A. 62–63. Employee Erica Merriweather testified

that as she was driving into the Facility one day, a demonstrator

walked to her driver’s side window and mentioned something

about vacation and holiday pay. She blew her horn, the

demonstrator moved out of her way, and she drove into the

parking lot. She also testified that, on a different day,

demonstrators had the Facility’s driveway blocked in, and a

demonstrator placed a pro-Union flyer on her car while she was

slowly driving into the Facility. Area Vice President Suzanne

Gerhardt testified that, on either August 13 or 19, a

demonstrator obstructed her view of oncoming traffic as she

was exiting the Facility’s grounds by car. Lastly, employee Jan

Marie Benn testified that, on August 18 or 19, demonstrators

“swarm[ed] around the bus stop” in front of the Facility,

chanting “shame on Pruitt” and holding pro-Union signs. J.A.

40. Although she was standing at the bus stop, the bus passed

by without stopping, which, in Benn’s view, occurred because

demonstrators were “swarming around the bus stop.” Id.

PruittHealth’s counsel elicited testimony from Thornton

and Merriweather about the alleged threats. During Thornton’s

direct examination, as she was explaining her encounters with

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demonstrators when she was driving into work, PruittHealth’s

counsel asked her, “Did any union supporters threaten to f---

you up?” to which Thornton replied, “Yes.” J.A. 21. On cross-

examination, she clarified that the demonstrator said, “If you

don’t vote yes for the Union, we will f--- you up.” J.A. 34. She

did not see who made the statement but noted that it came from

someone standing in the crowd of demonstrators who were

about ten feet away. She testified that the comment made her

feel “very uneas[y]” and made her “not want[] to come to

work,” J.A. 22, and that she did not “vote [her] conscience” in

the election “because [of] the threats,” J.A. 23. Thornton did

not testify whether she voted for or against the Union.

Merriweather testified that, as she was clocking into work

one day in the week before the election, she observed four

coworkers about twenty feet away from her talking in a “little

huddle” about “issues that had been going on that week.” J.A.

114. She heard them say, “they don’t know that the Union . . .

the Union will f--- people up or get . . . will f--- people up or

get f---ed up.” J.A. 88. She felt the comment was directed at

her “because of the stuff that had been going on and saying that

week because of the disagreements we were having.” J.A. 114.

Merriweather submitted a resignation notice after she heard

these comments, but she later retracted the resignation. One of

the employees Merriweather claimed was standing in the group

of employees, Deidre Ward, denied that any such statement

was made.

Finally, Merriweather and Gerhardt testified regarding

PruittHealth’s allegation that demonstrators photographed

employees on its premises. Merriweather stated that she

observed demonstrators holding their cell phones “toward the

building.” J.A. 112. She assumed this meant that they were

taking pictures. Gerhardt stated that she saw demonstrators

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holding their cell phones toward the Facility, but did not see

anyone take a picture.

After the hearing, the Hearing Officer issued a written

report on the objections, recommending that they be overruled

in their entirety. The Hearing Officer found that “the credited

evidence established that individual demonstrators approached

cars from the side to hand them a flyer, and attempted to

persuade them peacefully to support the [Union].” J.A. 241. He

found no evidence that demonstrators “maneuvered in front of

cars to intentionally block employees from entering the facility,

nor was there evidence that any employees had trouble entering

[PruittHealth’s] facility.” Id. The Hearing Officer also found

“no evidence that demonstrators made any threats, gestures, or

engaged in any other menacing or coercive conduct rendering

a fair election impossible.” J.A. 242. He found the record

devoid of the context necessary to show that the comment

allegedly aimed at Thornton was actually directed at her, and

he afforded Thornton’s testimony “little probative weight”

because it was elicited in response to a leading question. Id. He

similarly declined to credit Merriweather’s testimony about the

incident near the time clock, because it was “too unclear to

establish the employees were threatening [other] employees,”

and instead credited Ward’s denial that any such threat was

made. J.A. 243. The Hearing Officer also found the record

insufficient to show that demonstrators photographed

employees.

PruittHealth timely filed exceptions to the Hearing

Officer’s report with the Regional Director. Its exceptions

stated that, although it “respectfully disagrees with the totality

of the Hearing Officer’s conclusions,” its “[e]xceptions are

focused upon the most egregious, coercive conduct – and the

failure of the Hearing Officer’s Report to reference (let alone

credit) crucial, credible testimony.” J.A. 250. The Company

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specifically raised exceptions to the Hearing Officer’s findings

regarding the blocking and threats objections but not the

photographing objection.

The Regional Director adopted the Hearing Officer’s

recommendation to overrule the objections and certified the

Union as the collective bargaining representative. In addition

to adopting the Hearing Officer’s findings and conclusions, the

Regional Director added that, in his view, the record indicated

that demonstrators caused, at most, “momentary

inconveniences” to some employees as they entered or exited

the Facility. J.A. 271. He also concluded that, on this record,

the Merriweather threat did not rise to the level of objectionable

conduct; the Thornton threat was “too isolated and de minimus

to warrant setting aside the election,” J.A. 272; and the

statements in question “appear[ed] to be the kind of rough

language seen in close elections made as a result of bravado or

over exuberance rather than credible threats,” J.A. 273. The

Board subsequently denied PruittHealth’s request for review of

the Regional Director’s certification.

Following the Union’s certification, PruittHealth refused to

bargain with the Union. The Union then filed unfair labor

practice charges and the Board’s General Counsel issued a

complaint charging PruittHealth with violating 29 U.S.C.

§ 158(a)(1) and (5). PruittHealth admitted its refusal to bargain,

but did so in order to contest the validity of the Union’s

certification on the basis of its objections in the representation

proceeding. See Boire v. Greyhound Corp., 376 U.S. 473, 476–

77 (1964); Durham Sch. Servs., LP v. NLRB, 821 F.3d 52, 57

(D.C. Cir. 2016) (noting that an employer may refuse to

bargain with certified unions “in order to elicit an unfair labor

practice charge and thereby obtain judicial review” of

certification orders). The Board, on a Motion for Summary

Judgment, held that PruittHealth violated 29 U.S.C. § 158(a)(1)

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and (5) and ordered PruittHealth to bargain with the Union. See

Pruitthealth-Virginia Park, 364 NLRB No. 125, slip op. at 2.

PruittHealth then filed a petition for review in this court, and

the Board cross-applied for enforcement of its order.

II. ANALYSIS

A. Standard of Review

The Board is afforded broad discretion in assessing “the

propriety and results of representation elections.” N. of Mkt.

Senior Servs., Inc. v. NLRB, 204 F.3d 1163, 1167 (D.C. Cir.

2000). A court will set aside a Board decision to certify an

election only in “the rarest of circumstances.” Id. “In reviewing

the validity of election results, we ask whether the Board ‘has

followed appropriate and fair procedures, and has reached a

rational conclusion’ in addressing any objections to the

election.” Durham Sch. Servs., 821 F.3d at 58 (quoting Serv.

Corp. Int’l v. NLRB, 495 F.3d 681, 684 (D.C. Cir. 2007)). We

will uphold the Board’s decision unless it “acted arbitrarily or

otherwise erred in applying established law to the facts at issue,

or if its findings are not supported by substantial evidence.”

Plumbers & Pipe Fitters Local Union No. 32 v. NLRB, 50 F.3d

29, 32 (D.C. Cir. 1995) (citations omitted); see also 29 U.S.C.

§ 160(e), (f).

“[T]he Board requires that elections take place under

‘laboratory conditions’ free from coercion by the union or the

employer.” SSC Mystic Operating Co., LLC v. NLRB, 801 F.3d

302, 309 (D.C. Cir. 2015) (citation omitted). Employers and

unions may not “‘interfere with, restrain, or coerce employees

in the exercise’ of their Section 7 rights” to participate in labor

organizations, collectively bargain, or refrain from such

activities. Id. (quoting 29 U.S.C. § 158(a)(1), (b)(1)(A)).

Where the alleged interference is attributed to agents of the

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Union, as opposed to third parties, the Board determines

“whether the conduct has the tendency to interfere with

employees’ freedom of choice.” Cambridge Tool & Mfg. Co.,

316 NLRB 716, 716 (1995).

B. Objection to Alleged Blocking

PruittHealth first asserts that the Board erroneously

declined to find that Union agents “engaged in repeated acts of

intentional, objectionable blocking of ingress and egress” to the

Facility that “interfered with employees’ Section 7 rights and

was sufficiently objectionable to warrant setting aside the

election.” Petitioner’s Br. 20–21. As support, PruittHealth

points to Yolando Thornton’s, Erica Merriweather’s, and

Andrew Johnson’s testimony that, in the week before the

election, pro-Union demonstrators approached their cars as

they were driving into the Facility to distribute flyers and

encourage them to vote for the Union. See id. at 21–22. The

Company also relies on Jan Marie Benn’s testimony that she

was unable to catch her bus one day when demonstrators were

“‘swarming’ around the bus stop,” id. at 22–23, as well as

Suzanne Gerhardt’s testimony that demonstrators obstructed

her view of traffic as she was exiting the Facility’s premises

one afternoon, id. at 22.

As an initial matter, we discount PruittHealth’s allegations

that Benn and Gerhardt were unlawfully blocked because the

Company failed to raise these arguments in its request for

Board review of the Regional Director’s certification decision.

See 29 U.S.C. § 160(e) (“No objection that has not been urged

before the Board . . . shall be considered by the court, unless

the failure or neglect to urge such objection shall be excused

because of extraordinary circumstances.”). We find no merit to

the objection based on the remaining evidence.

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Under Board precedent, unions are permitted to hold

demonstrations outside employers’ premises and engage with

employees on their way to work to peacefully encourage them

to support the union and distribute union literature. For

example, in Chrill Care, Inc., 340 NLRB 1016 (2003), the

Board found there to have been no objectionable conduct when

union supporters attempted to speak with employees entering

the work area and momentarily hindered their access to the

building, where there was no evidence of “any forceful or . . .

threatening harassing contact,” id. at 1016; see also Comcast

Cablevision of New Haven, Inc., 325 NLRB 833, 833 & n.3,

838 (1998). And in Firestone Textiles Co., 244 NLRB 168

(1979), the Board concluded that derogatory comments union

supporters made at the entrance to the employer’s facility were

“regret[t]able” but not coercive under the circumstances, where

“the overall conduct” was “generally peaceful” and there was

no evidence that employees were prevented from entering or

exiting the facility, id. at 168, 170–71. There are limits,

however. See, e.g., Local 3, Int’l Bhd. of Elec. Workers, 312

NLRB 487, 489–90, 492–93 (1993) (finding objectionable

conduct where demonstrators yelled, cursed, and threatened

individual employees; banged on, and threw pamphlets into,

vehicles; and stood in front of vehicles, refusing to step aside).

The Board found that the Union did not exceed the limits

of the law in its election campaign activities. It adopted the

Hearing Officer’s determination that the challenged conduct in

this case fell far short of the kind of egregious blocking

behavior the Board has deemed objectionable. For example, the

Hearing Officer found that “the credited evidence established

that individual demonstrators approached cars from the side to

hand them a flyer, and attempted to persuade them peacefully

to support the [Union].” J.A. 241. He further found that “[t]here

was no evidence [that] the demonstrators . . . maneuvered in

front of cars to intentionally block employees from entering the

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facility, nor was there evidence that any employees had trouble

entering” the Facility. Id. The Regional Director agreed and

concluded that the disputed conduct caused, at most,

“momentary inconveniences” to employees. J.A. 271.

Substantial evidence supports these determinations. The

Hearing Officer found much of the testimony forming the basis

of this objection not credible. He declined to credit Thornton’s

testimony that a demonstrator stood in front of her car because

her testimony was “conclusory and contradictory.” J.A. 239

n.8. He likewise refused to credit Merriweather’s testimony

that she was blocked because her testimony was “conclusory,

largely devoid of any specifics, contradictory, and confusing.”

J.A. 240. PruittHealth does not contest these credibility

determinations on appeal and we have no basis to doubt their

validity. See Alden Leeds, Inc. v. NLRB, 812 F.3d 159, 165

(D.C. Cir. 2016) (court accepts credibility findings made by an

ALJ and adopted by the Board unless they are shown to be

“patently insupportable”).

The remaining, credited testimony from Thornton,

Johnson, and Merriweather indicates that demonstrators

approached employees in a peaceful manner to try to persuade

them to vote for the Union, but did not prevent access to the

premises. These encounters lasted for at most a few minutes

and there is no evidence in the record that the encounters

disrupted the Company’s operations. In sum, the Board

reasonably concluded that there was no merit to the Company’s

claim that Union supporters interfered with employees’ Section

7 rights by blocking access to or from the Facility during the

election campaign.

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C. Objection to Alleged Threats

PruittHealth next attacks the Board’s determinations that

threats allegedly directed at Thornton and Merriweather did not

constitute objectionable conduct. We have no basis to second-

guess these determinations because they are supported by

substantial evidence and applicable precedent.

As noted above, the Hearing Officer found that Thornton’s

testimony lacked credibility. He afforded her testimony “little

probative weight” because it was elicited from a leading

question, and he found the record “devoid of any context to

demonstrate that the comment” was actually directed at

Thornton. J.A. 242.

Likewise, the Hearing Officer was unpersuaded by

Merriweather’s testimony because he found it “too unclear” to

establish that the four employees who had been standing in the

group made a threatening statement. J.A. 243. He instead

credited the testimony of one of those four employees, Deidre

Ward, who the Hearing Officer found credibly denied hearing

anyone make any such statement. The Hearing Officer properly

concluded that, even if the statement was made, it was not

objectionable under controlling precedent. On this point, the

Board has made it clear that in assessing alleged third-party

misconduct, an election will be set aside only when the conduct

“was so aggravated as to create a general atmosphere of fear

and reprisal rendering a free election impossible.” Westwood

Horizons Hotel, 270 NLRB 802, 803 (1984).

We have no grounds to overturn the Board. The findings

and conclusions underlying the Board’s decision are supported

by substantial evidence. Thornton’s testimony was less reliable

because it was initially procured through a leading question.

See NLRB v. Furnas Elec. Co., 463 F.2d 665, 668 (7th Cir.

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1972) (deferring to a Board trial examiner’s decision to accord

limited probative weight to testimony that “resulted from the

propounding of leading questions requiring little more than a

‘yes’ or ‘no’ answer”). And the circumstances surrounding the

alleged threat suggested that it was not directed at Thornton: it

was a remark made by an individual in a crowd of noisy

demonstrators standing several feet away from Thornton’s

vehicle. Merriweather’s testimony was similarly unconvincing.

She characterized the group’s conversation as “kind of like a

debate about the Union – yes or no for the Union,” J.A. 87–88,

and stated that the employees were talking in a “little huddle”

about twenty feet away, J.A. 114–15. All of this suggests the

employees were talking amongst themselves rather than

directing threats toward Merriweather or any other employee.

As we have previously made clear, this court does not

overturn “Board-approved credibility determinations” unless

they are “hopelessly incredible,” “self-contradictory,” or

“patently insupportable.” Capital Cleaning Contractors, Inc. v.

NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998) (citations omitted).

We are “hard-pressed to imagine any legitimate basis for the

Company’s petition for review” challenging the Board’s

credibility determinations in this case. E.N. Bisso & Son, Inc.

v. NLRB, 84 F.3d 1443, 1445 (D.C. Cir. 1996). Counsel for

PruittHealth was asked at oral argument whether he had found

any case to support the Company’s request that we overturn the

Board’s credibility determinations, to which he responded he

had not. See Oral Arg. Recording at 6:39–7:12. On the record

before us, we find that the Company’s challenge “is at best

specious” and “border[s] on frivolous.” E.N. Bisso & Son, 84

F.3d at 1445; see also Cadbury Beverages, Inc. v. NLRB, 160

F.3d 24, 28 (D.C. Cir. 1998).

We also reject PruittHealth’s contention that the Regional

Director and Hearing Officer failed to properly consider the

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“significant impact” the alleged threats had on Thornton and

Merriweather. See Petitioner’s Br. 28–30; see id. at 29 (noting

that Thornton testified that she changed her vote because of the

Union’s conduct, and that Merriweather testified that she was

so frightened by the statement she overheard that she submitted

a letter of resignation – although she later retracted it). The

Board applies an objective test to determine “whether the

alleged misconduct is of a type that would cause interference

with the free choice of a reasonable employee.” AOTOP, LLC

v. NLRB, 331 F.3d 100, 104 (D.C. Cir. 2003). “[T]he subjective

reactions of employees are irrelevant to the question of whether

there was in fact objectionable conduct.” Lake Mary Health

Care Assocs., LLC, 345 NLRB 544, 545 (2005). When the

disputed conduct involves an alleged threatening remark, “[t]he

test is not the actual intent of the speaker or the actual effect on

the listener,” but “whether [the] remark can reasonably be

interpreted by an employee as a threat.” Smithers Tire & Auto.

Testing of Texas, Inc., 308 NLRB 72, 72 (1992).

On this record, the Board properly concluded that a

reasonable employee would not have interpreted the statements

Thornton and Merriweather heard as threats of reprisal,

directed at them, for non-support of the Union. The Board’s

decision rejecting these claims was supported by substantial

evidence and is well within the bounds of established

precedent.

D. Objection to Alleged Photographing

PruittHealth additionally contends that the Board erred in

failing to credit its unlawful photographing objection. This

claim is not properly before us, however, because PruittHealth

failed to properly raise it with the Board.

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Section 10(e) of the Act provides that “[n]o objection that

has not been urged before the Board, its member, agent, or

agency, shall be considered by the court, unless the failure or

neglect to urge such objection shall be excused because of

extraordinary circumstances.” 29 U.S.C. § 160(e). The Board’s

regulations interpreting Section 10(e) require parties to raise

objections in their request for Board review of the underlying

representation proceedings in order to preserve the issues for

consideration in subsequent unfair labor practice proceedings.

See 29 C.F.R. § 102.67(g); see also Matson Terminals, Inc.,

361 NLRB No. 50, slip op. at 1 n.1 (Sept. 26, 2014), enforced,

637 F. App’x 609 (D.C. Cir. 2016) (per curiam). If a party fails

to raise an objection “in the time and manner that the Board’s

regulations require,” this court lacks jurisdiction to consider the

claim. Spectrum Health–Kent Cmty. Campus v. NLRB, 647

F.3d 341, 349 (D.C. Cir. 2011).

Here, although PruittHealth raised its objection to alleged

photographing in its initial objections to the election, it failed

to include this objection in its request for Board review.

PruittHealth therefore waived this objection. See 29 C.F.R.

§ 102.46(a)(1)(ii) (“Any exception to a ruling, finding,

conclusion, or recommendation which is not specifically urged

will be deemed to have been waived.”).

PruittHealth contends that it preserved this claim by

objecting, in its exceptions to the Hearing Officer’s report, to

the “totality of the Hearing Officer’s conclusions,” including

findings regarding conduct that involved “menacing eligible

voters.” Petitioner’s Reply Br. 19. This argument lacks merit

because it merely states a “generalized objection” to the

Hearing Officer’s analysis “without providing the detail

required by the Board’s rules or otherwise putting the Board on

notice of the specific grounds for its objection[].” Nova Se.

Univ. v. NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015); see also

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29 C.F.R. § 102.46(a)(1)(i) (requiring that parties “[s]pecify

the questions of procedure, fact, law, or policy to which

exception is taken” and “[c]oncisely state the grounds for the

exception”). PruittHealth’s unspecified, generalized exception

to the “totality of the Hearing Officer’s conclusions” was

insufficient to preserve its objection to allegedly objectionable

photographing. Accordingly, Section 10(e)’s jurisdictional bar

applies here.

E. Cumulative Impact and Closeness of the Election

PruittHealth raises two additional arguments as to why the

Board erred in adopting the Regional Director’s findings and

recommendations and certifying the Union. Neither argument

has merit.

First, the Company asserts that the Regional Director and

Hearing Officer analyzed each allegation of objectionable

conduct in isolation rather than, as Board law requires,

cumulatively to determine whether the conduct as a whole

destroyed the conditions required for a free and fair election.

See Petitioner’s Br. 41–42; Petitioner’s Reply Br. 24–26. It is

true that the Board is required to assess the cumulative impact

of alleged incidents of misconduct in order to determine

whether such conduct tainted the results of the election. See

Swing Staging, Inc. v. NLRB, 994 F.2d 859, 863 (D.C. Cir.

1993). However, in order to make that “overall judgment,” the

Board first reviews and weighs the seriousness of the specific

incidents of alleged misconduct. See Amalgamated Clothing &

Textile Workers Union v. NLRB, 736 F.2d 1559, 1569 (D.C.

Cir. 1984). The Hearing Officer and Regional Director here did

just that.

The Hearing Officer stated at the outset of his report that he

had assessed the “conduct alleged in the Objections . . . , both

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in isolation and cumulatively.” J.A. 237. And the Regional

Director explained in his decision that “the question which

must be asked [in determining whether to set aside the election

results] is whether based on the objective evidence . . . the

alleged objectionable conduct can be reasonably said to have

affected the outcome of the election.” J.A. 273. He then held

that, “[b]ased on the record [in this case], I do not believe it can

be.” Id. This determination is unassailable.

As we have explained before, a petitioner may not use a

cumulative-impact argument “to turn a number of insubstantial

objections to an election into a serious challenge.”

Amalgamated Clothing & Textile Workers Union, 736 F.2d at

1569 (quoting NLRB v. Van Gorp Corp., 615 F.2d 759, 765

(8th Cir. 1980)). Zero plus zero equals nothing. That is what

we have here.

Second, PruittHealth argues that the Regional Director

gave “[in]sufficient consideration to the number of employees

impacted by the objectionable conduct and the closeness of the

election results.” Petitioner’s Br. 41. The Regional Director

found that the close vote here did not warrant setting aside the

election results because the record did not support

PruittHealth’s contention that the Union engaged in

misconduct during the election campaign. Therefore, the

Board’s determination that misconduct did not taint the

election can hardly be doubted.

A close election result may or may not be caused by Union

misconduct. If there has been no misconduct, however, then a

close vote is simply an indication of divided views among the

employees. Therefore, a close vote, without more, is

insufficient to require the rerun of an election. Indeed, any

suggestion to the contrary is specious. The Union garnered a

majority of the votes in the election, and the Board found that

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the allegations of objectionable conduct were meritless. That is

the end of the matter. Accordingly, we decline to overturn the

Board’s decision to certify the Union as the lawful bargaining

representative.

III. CONCLUSION

For the reasons set forth in the foregoing opinion, we deny

PruittHealth’s petition for review, and we grant the Board’s

cross-application for enforcement.

So ordered.