RadNet Management, Inc. v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2021 Decided April 2, 2021

No. 19-1180

RADNET MANAGEMENT, INC., D/B/A ORANGE ADVANCED

IMAGING, ET AL.,

PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 19-1181, 19-1182, 19-1183, 19-1184,

19-1191, 19-1192, 19-1193, 19-1194, 19-1195, 19-1203,

19-1207

On Petitions for Review and Cross-Applications for

Enforcement of Orders of the National Labor Relations Board

Kaitlin Kaseta Lammers argued the cause for petitioner.

On the briefs was Bryan T. Carmody.

Heather Beard, Attorney, National Labor Relations

Board, argued the cause for respondent. On the brief were

Peter B. Robb, General Counsel at the time the brief was filed,

Ruth E. Burdick, Deputy Associate General Counsel, David S.

2

Habenstreit, Assistant General Counsel, Elizabeth A. Heaney,

Supervisory Attorney, and Rebecca J. Johnston, Attorney.

Before: MILLETT , KATSAS and WALKER, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALKER.

WALKER, Circuit Judge: RadNet Management, Inc.

operates a chain of diagnostic medical imaging centers,

including many located in Southern California. In these

consolidated petitions for review, RadNet challenges the

Board’s decisions finding unfair labor practices as a result of

RadNet’s refusal to bargain with the National Union of

Healthcare Workers (the Union) on behalf of six separate

bargaining units, each representing certain technical workers

employed at a different RadNet facility in Southern California.

RadNet does not dispute its refusal to bargain. Rather, RadNet

argues that all six certifications are marred by defects in

election procedure, election misconduct, or underlying

representation issues.

In 2018, the Union petitioned to represent RadNet

employees in a single multi-facility unit comprising registered

nurses and technical employees employed across more than a

dozen RadNet facilities in Southern California. Following a

representation hearing, the Board’s Regional Director agreed

with RadNet that the Union had failed to establish a sufficient

community of interest between the employees of separate

RadNet facilities; accordingly, he found that multiple single-

facility units were more appropriate. On various other

representation issues he found in favor of the Union, and he

directed separate single-facility elections to occur on October

24th and 25th, 2018. The Union prevailed in the six elections

contested here—namely, those concerning RadNet’s facilities

in Anaheim, Garden Grove, La Mirada, Orange, Irvine, and in

3

one of two elections held in Santa Ana—and failed in all others.

The elections were certified, and following unfair labor

practice complaints for RadNet’s refusal to bargain, the Board

granted summary judgment against RadNet. RadNet petitioned

for review, and the Board cross-applied for enforcement. For

the following reasons, we deny the petitions for review and

grant the cross-applications for enforcement.

I.

We have jurisdiction to review the petitions and cross-

applications under 29 U.S.C. § 160(e) and (f). We will uphold

the Board’s decisions if they are not arbitrary, capricious, or

grounded in legal error, and if substantial evidence supports the

Board’s factual findings. Advanced Life Sys. Inc. v. NLRB, 898

F.3d 38, 43 (D.C. Cir. 2018); see 29 U.S.C. § 160(e) & (f). In

cases involving questions of representation and unit

certification, the scope of our review is “extremely limited.”

Amalgamated Clothing & Textile Workers Union v. NLRB, 736

F.2d 1559, 1564 (D.C. Cir. 1984). We afford the Board “an

especially wide degree of discretion” in such cases, and “we

will overturn a Board decision to certify an election in only the

rarest of circumstances.” 800 River Rd. Operating Co. v.

NLRB, 846 F.3d 378, 385–86 (D.C. Cir. 2017) (cleaned up).

We also recognize “the basic truth that union elections are often

not conducted under ideal conditions, that there will be minor

(and sometimes major, but realistically harmless) infractions

by both sides, and that the Board must be given some latitude

in its effort to balance” the rights of various parties. NLRB v.

Mar Salle, Inc., 425 F.2d 566, 571 (D.C. Cir. 1970) (cleaned

up). In short, we will not overturn a Board-administered

election unless the objecting party can produce “specific

evidence” 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

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election.” Amalgamated Clothing Workers v. NLRB, 424 F.2d

818, 827 (D.C. Cir. 1970) (cleaned up). RadNet’s claims are

numerous, but it makes no such showing.

II.

RadNet presses eight objections to the Board’s election

certifications. Four objections concern two or more bargaining

units and elections generally, and four additional objections

concern the conduct of individual elections. RadNet also

complains about the Board’s refusal to allow relitigation of

underlying representation issues during the unfair labor

practice proceedings. All of RadNet’s objections fail because

the Board either did not err, or where it did, the error was

harmless.

A.

First, RadNet claims that several of the petitioned-for

bargaining units were inappropriate because they combined

guard and non-guard employees in violation of Section 9(b)(3)

of the National Labor Relations Act (NLRA or Act), which

prohibits the Board from “decid[ing] that any unit is

appropriate . . . if it includes, together with other employees,

any individual employed as a guard to enforce against

employees and other persons rules to protect property of the

employer or to protect the safety of persons on the employer’s

premises[.]” 29 U.S.C. § 159(b)(3). Specifically, RadNet

alleges that certain Magnetic Resonance Imaging (MRI)

Technologists employed at its Anaheim, Garden Grove, Irvine,

Santa Ana, and Orange facilities and certain Nuclear

Technologists employed at Orange and Santa Ana 1 were

1

RadNet’s opening brief states that the two “Nuclear Medicine

Technologists (including Nuclear Medicine / PET Technologists)

[were] employed by Irvine and Orange,” Br. at 6, but the record

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guards within the meaning of Section 9(b)(3), because their

duties in enforcing rules related to the safe operation of

dangerous equipment. Following a representation hearing, the

Regional Director determined that these employees were not

guards within the meaning of the Act, and we agree with the

Board that the Regional Director did not abuse his discretion.

The Regional Director’s decision on this issue was

reasoned, consistent with precedent, and supported by

substantial evidence. First, the Regional Director made the

factual finding that MRI and Nuclear Technologists’ primary

duties related to medical diagnostics, not safety and security,

and any guard-like duties were “merely incidental” to their

primary responsibilities. J.A. 1571–73, 1577–78; cf. Wolverine

Dispatch, Inc., 321 NLRB 796, 798 (1996) (employees are not

guards when their guard-like duties are “incidental” to their

primary non-guard duties). The Regional Director also found

that the employees at issue lacked many of the “common

indicia” of guard status—they “do not carry weapons, clubs,

wear uniforms or badges . . . they [are not] physically situated

in a security booth . . . [nor do they] receive specialized

instructions on what to do in the event that there is a threat to

the security of the premises, except that they are to contact the

site manager and/or call 9-1-1.” J.A. 1577–78; cf. Boeing Co.,

328 NLRB 128, 130 (1999) (describing guard-like duties as

“those typically associated with traditional police and plant

security functions” as evidenced by, among other things,

“wearing guard-type uniforms or displaying other indicia of

guard status”). In short, the Regional Director’s determination

on the contested employees’ guard status was consistent with

Board precedent and easily supported by substantial evidence.

indicates—and RadNet’s reply brief confirms—that they were

employed at Orange and Santa Ana. J.A. 79; see also Respondent’s

Br. at 27 n.11; RadNet Reply Br. at 5 n.2.

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See Bellagio, LLC v. NLRB, 863 F.3d 839, 847 (D.C. Cir. 2017)

(because the question of guard status is “predominantly factual,

[] we will disturb the Board’s determination only if it is

unsupported by substantial evidence”) (cleaned up); see also

Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1250 (D.C. Cir.

2012) (giving “substantial deference to inferences the Board

draws from the facts”) (cleaned up).

B.

Second, RadNet argues that all the elections were a priori

defective because they were conducted pursuant to the Board’s

2014 revised election rules, see Representation-Case

Procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014), which,

according to RadNet, were facially unlawful. 2 Specifically,

RadNet claims that the revised election rules were unlawful

because (1) they violate Section 9 of the NLRA by denying

employers their right to a pre-election hearing, (2) they violate

Sections 7 and 8(c) of the NLRA by restricting employee and

employer free speech during a union organizing campaign, (3)

they violate federal privacy law and public policy by expanding

the requirement for employers to share private employee

information, and (4) they were promulgated in a manner that

was arbitrary and capricious insofar as the Board considered

irrelevant factors in reaching its decision to enact the revised

rules. Each of RadNet’s claims lacks merit. See Associated

Builders & Contractors of Tex., Inc. v. NLRB (ABC), 826 F.3d

215, 229 (5th Cir. 2016) (rejecting APA challenge to the

Board’s enactment of the 2014 rules); Chamber of Commerce

2

RadNet also purports to advance an as-applied challenge to

the 2014 revised rules, RadNet Opening Br. at 45–46, but RadNet

fails to articulate any concrete basis for an as-applied challenge as

distinct from its facial challenge.

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of U.S. v. NLRB, 118 F. Supp. 3d 171, 220 (D.D.C. 2015)

(rejecting constitutional, APA, and other statutory challenges).

On the question of an employer’s Section 9 right to a pre-

election hearing, RadNet appears to take issue with (without

actually citing to) a provision of the rules stating that

“[d]isputes concerning individuals’ eligibility to vote or

inclusion in an appropriate unit ordinarily need not be litigated

or resolved before an election is conducted.” 79 Fed. Reg. at

74381 (codified at 29 C.F.R. § 102.64(a) (2015)). This,

according to RadNet, is in contravention of Section 9(c)’s

requirement that the Board “shall investigate [representation]

petition[s] and if it has reasonable cause to believe that a

question of representation affecting commerce exists shall

provide for an appropriate hearing upon due notice.” 29 U.S.C.

§ 159(c)(1)(B). But neither the statute nor Board precedent

guarantees parties an absolute right to pre-election hearings

specifically concerning “individuals’ eligibility to vote or

inclusion in an appropriate unit.” Furthermore, this provision

of the 2014 revised rules “neither precludes nor prevents the

presentation of evidence regarding voter eligibility.” ABC, 826

F.3d at 222 (cleaned up). The rule simply states that such issues

ordinarily need not be litigated before an election. Chamber of

Commerce, 118 F. Supp. 3d at 199. And in any case, RadNet

received precisely what it requested: a pre-election hearing on

the eligibility of certain voters.

RadNet’s argues next that the 2014 rules interfered with

protected speech under Sections 7 and 8(c) of the NLRA by

shortening the electioneering period. Section 7 of the NLRA

guarantees employees the right to organize and bargain through

representatives they choose, 29 U.S.C. § 157, and Section 8(c)

provides that parties to a labor dispute may generally express

their views without such views constituting evidence of an

unfair labor practice. Id. at § 158(c). But rather than directing

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us to any concrete right contained in Sections 7 and 8(c),

RadNet merely gestures to the Congress’s broader intent,

which was to “encourage free debate on issues dividing labor

and management.” Chamber of Commerce of U.S. v. Brown,

554 U.S. 60, 67 (2008) (quoting Linn v. Plant Guard Workers,

383 U.S. 53, 62 (1966)). Nor does RadNet explain precisely

how the revised rules undermined this intent. The revised rules

departed from the Board’s prior practice of automatically

staying elections in anticipation of requests for review and

codified the Board’s existing practice of scheduling elections

“for the earliest date practicable,” see 79 Fed. Reg. at 74310,

but the rules also explicitly avoided “establish[ing] any rigid

timeline for the conduct of the election itself.” Id. at 74318.

And the rules contemplated that the regional director would

consider the parties’ “opportunity for meaningful speech about

the election” in setting an election date. Id. RadNet fails to

articulate how such general amendments facially conflict with

their right to a “free debate” on the issues. And, again, RadNet

received the very thing of which it claims to have been

deprived—the Board scheduled the elections to occur two full

months after the Union filed its petition, which is slightly more

time than RadNet had originally requested.

RadNet’s claims related to the privacy of confidential

employee information are no more persuasive. RadNet argues

that the 2014 Rules violate “federal privacy law and public

policy” by requiring employers to share with unions private

employee contact information including email addresses and

telephone numbers. RadNet Opening Br. at 44. But as the

Board explained in enacting the 2014 rules, courts have long

approved of Board rules requiring employers to share with

unions private employee information, including the names and

home addresses of eligible voters. See 79 Fed. Reg. at 74335

(citing Excelsior Underwear, Inc., 156 NLRB 1236, 1239–40

(1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767–68

9

(1969)). Thus, it was entirely reasonable for the Board to

extend information-sharing requirements to cover employees’

personal email addresses, see 79 Fed. Reg. at 74341, which are

hardly more confidential or invasive than home addresses or

phone numbers.

That brings us to RadNet’s arbitrary-and-capricious

challenge, which is a nonstarter. RadNet claims that the

Board’s enactment of the 2014 revised rules was arbitrary and

capricious insofar as it “relied heavily on factors not considered

relevant to representation cases by Congress when it wrote the

[NLRA], such as speed in scheduling elections, and the

facilitation of organized labor.” RadNet Opening Br. at 45. But

RadNet offers no evidence for this assertion, nor is it obvious

that the Congress would consider such factors irrelevant. See,

e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S.

27, 48 n.15 (1987) (in balancing interests, the Board generally

strives to “permit[] employees who wish to be represented as

immediate representation as possible” (quoting Clement-Blythe

Cos., 182 NLRB 502 (1970)). RadNet also argues that the

Board’s adoption of new election rules in 2019, which revised

some of the 2014 changes, see Representation-Case

Procedures, 84 Fed. Reg. 69524 (Dec. 18, 2019), rendered the

2014 rules arbitrary and capricious. But agencies can change

their policies as long as they provide a reasoned explanation for

doing so, see FCC v. Fox Television Stations, Inc., 556 U.S.

502, 515–16 (2009), and RadNet makes no argument that the

Board failed to provide a sufficient explanation in 2019. And

to the extent that an agency’s change of heart casts any doubt

on a rulemaking, such doubt is more likely cast upon the

subsequent rulemaking, not the prior. In short, RadNet’s

arguments do not come close to overcoming the presumption

of validity we are required to apply to an agency’s actions when

subject to arbitrary and capricious review. See Envt’l Def.

Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981)

10

(“arbitrary and capricious standard of review is a highly

deferential one . . . which presumes the agency’s action to be

valid.”) (cleaned up).

C.

Third, RadNet claims that the Board abused its discretion

in choosing to postpone the counting of ballots and the

disclosure of results until the conclusion of voting in all ten of

the individual unit elections. Here, we agree with RadNet that

the Board has abused its discretion, but because the error was

harmless, we nonetheless deny RadNet’s petitions for review.

See 800 River Rd., 846 F.3d at 386 (“We will affirm the

Board’s order to bargain unless the Board abused its discretion

in overruling [an employer’s] objections, and the abuse of

discretion was prejudicial.”) (cleaned up).

The Board’s error was straightforward: in directing ballots

to be impounded and vote tallies to be delayed, the Regional

Director departed without reasoned explanation from the

Board’s prior policy and practice, and the Board summarily

affirmed the Regional Director’s faulty decision. The Board’s

own rules and regulations provide that “[u]pon the conclusion

of the election the ballots will be counted and a tally of ballots

prepared and immediately made available to the parties,” 29

C.F.R. § 102.69(a)(7), and Board guidance is similarly clear

that “[t]he count of ballots should take place as soon after the

close of voting [] as possible.” NLRB Casehandling Manual

(Part Two) Representation Proceedings § 11340.1 (2020).

“Indeed, if [the Board] choose[s] to depart from usual election

procedures, they must provide a reasoned explanation.” Nathan

Katz Realty, LLC v. NLRB, 251 F.3d 981, 994 (D.C. Cir. 2001).

Here, too, the Board relies on an insufficient explanation

from the Regional Director. First, the Regional Director offered

a fairness-based rationale, reasoning that impoundment was

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preferable to immediate tallies since “everyone would know the

outcomes of all elections at the same time.” See, e.g., J.A. 1604

(emphasis in original). This, according to the Regional

Director, would prevent anyone from disseminating

information about the results of early elections to influence

subsequent elections. The Regional Director did not explain,

however, what is objectionable about disseminating

presumably truthful information. Second, the Regional

Director concluded that “administrative efficiency” favored

impoundment and delayed tallying of ballots since “it allowed

all parties and their representatives to be present at one

designated time in one centralized location to observe the ballot

counts” and receive the results. See, e.g., J.A. 1604 n.3. The

Board summarily affirmed, adding only that “[u]nder the

unusual circumstances of this case, the earliest practicable time

at which the count could take place was after the completion of

voting in all units.” See, e.g., J.A. 1621 n.1. But simply

declaring the usual procedure not “practicable” does not make

it so, and given that a Board Agent was already required to be

present at each separate election, it is not obvious what was so

administratively burdensome about separate vote counts

immediately following the individual elections, none of which

involved more than two dozen eligible voters. 3 When the

Board departed from prior policy without providing a reasoned

3

The record shows that Unit G (Anaheim) comprised 12

eligible voters; Unit E (Garden Grove) comprised 9 eligible voters;

Unit B (La Mirada) comprised 3 eligible voters; Unit C (Orange)

comprised 13 eligible voters; Unit H (Irvine) comprised 6 eligible

voters; and Unit J-2 (Santa Ana) comprised 21 eligible voters. See

J.A. 1139, 1296, 1451, 1589, 1753, 1916. The record does not

disclose the number of eligible voters in the uncontested elections

where the Union did not prevail, but RadNet asserts that none

involved more than two dozen employees. RadNet Opening Br. at

37.

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justification, the Board abused its discretion. See Pittsburgh

Press Co. v. NLRB, 977 F.2d 652, 655 (D.C. Cir. 1992).

The Board’s error, however, did not prejudice either party.

“In administrative law, as in federal civil and criminal

litigation, there is a harmless error rule: . . . the Administrative

Procedure Act, 5 U.S.C. § 706, instructs reviewing courts to

take due account of the rule of prejudicial error.” Ozark Auto.

Distribs., Inc. v. NLRB, 779 F.3d 576, 582 (D.C. Cir. 2015)

(cleaned up). And it is the burden of the party challenging the

election to show that “prejudice resulted from the Board’s

lapses.” Salem Hosp. Corp. v. NLRB, 808 F.3d 59, 67 (D.C.

Cir. 2015) (declining to set aside an election despite “the

Board’s faulty adherence to its procedure”) (cleaned up).

“Whether an error is prejudicial ‘depends on a number of

factors, including the closeness of the case, the centrality of the

issue in question, and the effectiveness of any steps taken to

mitigate the effects of the error.’” 800 River Rd., 846 F.3d at

386 (quoting Huthnance v. District of Columbia, 722 F.3d 371,

381 (D.C. Cir. 2013)).

RadNet has failed to show any prejudice from the Regional

Director’s impoundment decision. First, of the six units that

voted in favor of the Union, five did so by healthy margins. Cf.

C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 884 (D.C. Cir. 1988)

(applying greater scrutiny to the Board’s decisions in close

elections). One unit—Unit J-2 in Santa Ana—was close, with

a vote of 10 in favor versus 9 opposed. But even there, RadNet

does not clearly articulate the nature of the prejudice it has

suffered. RadNet claims that that it was denied its free speech

rights because it could not advertise election results as they

occurred. The implication—which RadNet makes explicit in its

opening brief, RadNet Opening Br. 35–36—is that early wins

by the Union would tend to favor the Union in subsequent

elections, since the Union would be able to boast stronger

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overall bargaining power with RadNet corporate management,

whereas early defeats would tend to disfavor the Union in

subsequent elections. But the early results almost uniformly

favored the Union, with the Union prevailing in both elections

decided at or before 3:30pm on October 24th and five out of

six elections decided at or before 6:30pm on October 24th.

Thus, if anything, it would appear that it was the Union—not

RadNet—that was prejudiced by the Board’s impoundment

decision. The case is therefore distinguishable from Nathan

Katz, where the union was defeated in the first of its two same-

day elections before prevailing in the second election by the

narrowest of majorities. 251 F.3d at 984. And while RadNet

proffered two employees willing to “testify that they would

have preferred to have known the outcome of any of the other

elections” prior to casting votes in their own elections, see, e.g.,

J.A. 1602, that hardly indicates that prior election results were

a central issue in any of the campaigns. Thus, in the absence of

a showing of actual prejudice, we decline to set aside the

elections on the basis of the Board’s impoundment decision.

D.

Fourth, RadNet contends that the elections must be set

aside because the Union failed to disclose to employees its

alleged affiliation with another union, the International

Association of Machinists and Aerospace Workers (IAMAW).

Because the “statutory right [to select a bargaining

representative] can only be meaningfully exercised if the

employees are presented on the election ballot with the choice

of a clearly identified labor organization[,]” O & T

Warehousing Co., 240 NLRB 386, 386 (1979), the Board will

sometimes set aside elections where the evidence supports an

inference of voter confusion over the identity of the bargaining

representative. See, e.g., Pac. Sw. Container, 283 NLRB 79, 80

(1987) (vacating election where, due to a merger of unions, the

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sole union listed on ballots ceased to exist prior to

certification); Humane Soc’y for Seattle/King Cty., 356 NLRB

32, 35 (2010) (setting aside election where the petitioning

union falsely assured employees that they would be represented

by their own independent union, resulting in a “strong showing

of employee confusion over the identity of the organization

seeking representative status”). Less frequently, the Board sets

aside elections where issues of union affiliation contribute to

voter confusion. See, e.g., Woods Quality Cabinetry Co., 340

NLRB 1355, 1356 (2003) (setting aside election where

petitioning union affirmatively misrepresented itself as

affiliated with the AFL-CIO and affiliation issue was “material

to the election campaign”); cf. Nev. Sec. Innovations, Ltd., 337

NLRB 1108, 1109 (2002) (declining to set aside election where

employees received a letter from a local affiliate union

erroneously stating that it too would participate in their

representation but where the letter was unlikely to generate

widespread voter confusion).

The circumstances here are not so extreme: even crediting

RadNet’s allegation of an undisclosed affiliation, there is no

evidence that the Union affirmatively misrepresented its

affiliation with IAMAW or that the Union’s relationship with

IAMAW or any other union was at all material to the election

campaign. Nor is there any indication that the voters were

confused as to the identity of their prospective bargaining

representative. Rather, as the Board found in its certification

decision, the Union was “the sole labor organization seeking to

represent the employees,” and “[n]o other labor organization

claimed or attempted to claim any interest in representing the

employees in the units.” J.A. 1606. Accordingly, the Board did

not abuse its discretion by overruling RadNet’s union

affiliation objection, and in any event, RadNet has shown no

prejudice.

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E.

Fifth, RadNet raises four separate objections concerning

the conduct of individual elections. In Irvine, RadNet alleges

that the Board Agent failed to maintain security of the ballot

box and that the Union observer continuously used her cellular

telephone during the election and in the vicinity of voters. In

Santa Ana, RadNet alleges that the Board Agent failed to post

the proper “Voting Place” sign prior to the start of the election.

And in Garden Grove, RadNet alleges that the Board agent

permitted a pro-Union employee to loiter in the polling area

and attempt to engage the Union observer in a conversation

about workplace issues. The Regional Director overruled all

four objections without a hearing, and the Board affirmed, also

without a hearing.

We review the Board’s decision to overrule post-election

objections under the deferential abuse of discretion standard.

Amalgamated Clothing Workers, 424 F.2d at 827 (“The only

question presented on judicial review is whether the Board has

reasonably exercised its discretion in the matter.”). To succeed

in overturning an election, “the objecting party must produce

specific evidence that the election was improperly conducted

and that the acts complained of interfered with the employees’

exercise of free choice to such an extent that they materially

affected the results of the election.” Id. (cleaned up). “In short,

there is a heavy burden on the [objecting party] in showing that

the election was improper.” Id. Nor does the objecting party

possess an “automatic right” to a post-election hearing on all

objections properly lodged. Durham Sch. Servs., LP v. NLRB,

821 F.3d 52, 58 (D.C. Cir. 2016) (cleaned up). Rather, “[w]hen

a party’s evidence, even if credited, would not justify setting

aside the election,” the Board may overrule the objection

without a hearing. Id. (cleaned up); see also Amalgamated

Clothing Workers, 424 F.2d at 829. Here, even assuming the

16

veracity of RadNet’s factual allegations, we are unpersuaded

that the Board abused its discretion in overruling the

objections, and we see no specific evidence of prejudice to the

fairness of the election.

Starting with the Irvine ballot box security objection,

RadNet asserts that the “Board Agent failed to maintain the

security of the ballot box, insofar as the ballot box was

consistently out of her line of sight.” J.A. 1758. In support of

its claim, RadNet would have offered testimony from its own

election observer to the effect that “for nearly the entirety of

[the election]” the Board Agent was “seated in a chair that

faced a wall and her back was turned to the entrance . . . and

the ballot box . . . [and] had her head down and was reading a

newspaper [and/or] using a cellular telephone.” J.A. 1063.

Without question, failure to maintain ballot box security can

constitute grounds for setting aside an election. See, e.g., Austill

Waxed Paper Co., 169 NLRB 1109, 1109–10 (1968). Even in

cases where physical custody of the ballot box was

compromised, however, the Board has declined to set aside the

election unless the facts support a reasonable inference of

ballot box tampering. See, e.g., Polymers, Inc., 174 NLRB 282,

283 (1969) (declining to set aside election where Board agent

failed to retain continuous physical custody of the ballot box

and blank ballots, but “the security afforded these items was

such that there was only the most remote possibility that

anything untoward occurred”), enforced, Polymers, Inc. v.

NLRB, 414 F.2d 999, 1001 (2d Cir. 1969); Dunham’s

Athleisure Corp., 315 NLRB 689, 689 (1994) (declining to set

aside election where employer’s observer could not see ballot

box and box was left “virtually unattended” for more than two-

thirds of the voting period, but there was otherwise no

affirmative indication of tampering). Here, RadNet offered no

affirmative evidence of ballot box tampering, and tampering in

the Union’s favor was all the more unlikely given the presence

17

of RadNet’s election observer, see J.A. 1772–73. Compare

Elizabethtown Gas Co. v. NLRB, 212 F.3d 257, 267–68 (4th

Cir. 2000) (declining to overturn election where Board agent

left ballot box unattended and unsecured but other observers

were present and observed no tampering), and Benavent &

Fournier, Inc., 208 NLRB 636, 636 n.2 (1974) (same), with

Austill Waxed Paper Co., 169 NLRB at 1109–10 & n.2 (setting

aside election where ballot box was left “wholly unattended”

after observers were drawn away by an altercation occurring

outside the polling place). The Board’s dismissal of RadNet’s

objection was in keeping with precedent.

The Board’s decision on the Irvine cell phone objection

was similarly consistent with Board precedent. RadNet alleges

that the Union’s observer “continuously” used her cellular

phone during the Irvine election in violation of the Board

agent’s instructions and in plain view of eligible voters. J.A.

1758. RadNet also claims, “upon information and belief,” that

the Union observer used her cellphone at least in part for the

purpose of contacting potential voters. Id. at 1758–59. The

implication, it seems, is that the Union observer may have used

her cell phone in order to keep (or communicate with others

who were keeping) a list of eligible voters. The only evidence

offered, however, was testimony from RadNet’s own observer,

who would have testified that the Union observer

“continuously” used her phone, sent text messages, and

received at least one call during the election. J.A. 1063–64.

Even crediting RadNet’s allegations, the Board was

justified in overruling RadNet’s cell phone objection. RadNet

appeals to Board guidance and precedent prohibiting parties’

election observers from making lists of voters “who have or

have not voted,” Casehandling Manual § 11322.1; Int’l

Stamping Co., 97 NLRB 921, 922–923 (1951) (setting aside an

election where agent for the employer kept a list of voters), and

18

RadNet is correct that, under Board precedent, a reasonable

perception of list-keeping may be enough to overturn an

election, see Piggly-Wiggly #011, 168 NLRB 792, 793 (1967)

(setting aside election where union agent had a sheet of paper

in hand, and employees were able to observe him notating the

names of those who had voted). But conversely, the Board will

not disturb an election where voters were not aware of potential

list-keeping. See A.D. Juilliard & Co., 110 NLRB 2197, 2199

(1954). Because RadNet offered no evidence of actual or even

perceived list-keeping, the Board reasonably overruled the

objection.

RadNet’s Santa Ana objection—alleging that the Board

Agent failed to post any “Voting Place” signs in connection

with the election—is no more successful. RadNet appeals to

the Board’s non-binding Casehandling Manual, which directs

Board agents to examine the polling place prior to the election

and to post “Voting [P]lace” signs “if needed.” Id. § 11318.

Board precedent clearly provides, however, that the Board

“do[es] not invalidate elections based on minor deviations from

the guidelines,” including an agent’s failure to place “Voting

Place” signs. See Pac. Grain Prods., 309 NLRB 690, 690–91

& n.5 (1992) (specifically declining to set aside an election

because the Board Agent failed to post “Voting Area” signs);

see also Hard Rock Holdings, LLC v. NLRB, 672 F.3d 1117,

1123 (D.C. Cir. 2012) (Board Agent’s failure to follow

Casehandling Manual’s guideline that observers wear a badge

did not warrant setting aside election). The Board’s decision on

the Santa Ana objection was consistent with this precedent.

Last, the Board did not abuse its discretion in overruling

the Garden Grove objection. There, RadNet alleges that the

Board agent permitted a pro-Union employee to loiter in the

polling area and to attempt to engage the Union observer in

approximately two minutes of conversation about “workplace

19

subjects, such as patient procedures and patient work flow.”

J.A. 1042; see also id. at 1301–02. This, according to RadNet,

is a violation of the so-called Milchem rule, which holds that a

party’s “sustained conversation with prospective voters

waiting to cast their ballots, regardless of the content of the

remarks exchanged,” is grounds for setting aside an election.

Milchem, Inc., 170 NLRB 362, 362 (1968); accord Overnite

Transp. Co. v. NLRB, 140 F.3d 259, 269–70 (D.C. Cir. 1998).

But the Board, crediting RadNet’s allegations, determined that

Milchem did not apply, and we agree. First, no party engaged

in a sustained conversation with prospective voters. At most,

RadNet alleges only a brief conversation between a non-voting

employee and a Union observer. Second, even assuming

Milchem were to apply to conversations between non-voting

employees and party observers, the alleged conversation

consisted of little more than a “chance, isolated, innocuous

comment or inquiry”—just the type of conversation that

Milchem exempts. Milchem, Inc., 170 NLRB at 363.

Accordingly, the Board did not abuse its discretion in

overruling the Santa Ana objection, and even if it had, RadNet

produces no evidence of actual prejudice.

F.

Finally, we briefly dispatch with RadNet’s argument that

the Board abused its discretion in granting summary judgment

to the General Counsel without allowing relitigation of certain

underlying representation issues. RadNet’s argument is

without merit. The Board was merely following its “well[-

]settled” rule that, “in the absence of newly discovered or

previously unavailable evidence, the Board will not relitigate

in a subsequent refusal-to-bargain proceeding matters which

have been disposed of in a prior related representation case.”

Pepsi-Cola Buffalo Bottling Co., 171 NLRB 157, 158 (1968).

The basic rule, moreover, has long been met with judicial

20

approval. See, e.g., Pittsburgh Plate Glass Co. v. NLRB, 313

U.S. 146, 162 (1941); NLRB v. Mar Salle, Inc., 425 F.2d 566,

572 (D.C. Cir. 1970). To the extent that the Board has

occasionally departed from its rule against relitigation, see,

e.g., Sub-Zero Freezer Co., 271 NLRB 47, 47 (1984), such

exceptions merely demonstrate that the Board may—exercising

appropriate discretion—allow relitigation in certain cases,

particularly when the alleged pre-election misconduct is so

severe that it calls into question whether the election was “free

and fair.” See id. Absent similarly extreme circumstances, the

Board reasonably hewed to its general rule against relitigation.

III.

We deny the petitions for review and grant the cross-

applications for enforcement.

So ordered.