# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A rgued January 10, 2018 Decided May 1, 2018

No. 16

- 1350

P RUITT H EALTH

- V IRGINIA P ARK
, LLC,
P ETITIONER

v.

N ATIONAL L ABOR R ELATIONS B OARD
, R ESPONDENT

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, ar gued 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.2

Before: R OGERS and T ATEL
, Circuit Judges , and
E DWARDS
, Senior Circuit Judge

.

Opinion for the Court filed by Senior Circuit Judge
E DWARDS

.

E DWARDS
, 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 conducte d 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 Dir ector’s certification
decision. The Union t hen file d unfair labor practice charges and
the Board’s General Counsel issue d 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 Pruitth ealth

- Virginia Park, LLC , 364 NLRB No. 125, slip op. at 2 (Sept. 22, 2016). PruittHealth now3

pet itions 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 d emonstrators 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 t he election results in assessing the Company’s objections

.

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

. 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 photographi ng objection. T he Company failed to raise th is 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 cr oss

- application for

en forcement

.

I. B ACKGROUND

PruittHealth operates a nursing home located on Briarcliff Road in Atlanta, Georgia. The Facility has North and South

entrance s , 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 Union4

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, medica l 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. T he 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 Uni on intimidated and coerced employees by threatening physical violence against individuals who chose
not to vote for the Union. T he 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 hearin g on PruittHealth’s objections. As relevant here, the parties presented evidence that

, on August 13 and 19, 2015

, the Union
conducted demonstration s between ap proximately 2:30 pm and 4:00 pm. Around 15 to 20 individuals participated in t he 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.5

Five witnesses testified for the Company about t he 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 demons trator 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 cam e 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, an d she drove into the parking lot. She also testified that, on a different day,
dem onstrators 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 “swa rming 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 encounter s with6

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 standin g 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

wor k,” J.A. 22, and that she did not “vote [her] conscience” in
the ele ction “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 g oing 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 a nd Gerhardt testified regarding PruittHealth’s allegation that demonstrators photographed employees on its premises. Merriweather stated that she observed demonstrators holding their cell p hones “toward the building. ” J.A. 112. S he assumed this meant that they were taking pictures

. Gerhardt stated that she saw demonstrators7

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

any one take a picture

.

A fter the hearing, the Hearing Officer issued a written report on the objections

, recommending th at 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 al so 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 testimo ny 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. T he Hearing Officer also found the record
ins ufficient 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 up on the most egregious, coercive conduct

– and the failure of the Hearing Officer’s Report to reference (let alone credit) crucia l, credible testimony.” J.A. 250. The Company8

specifically raised excep tions to the Hearing Officer’s findings regarding the blocking and threats objections but not the photographing o bjection.

The Regional Director adopted the Hearing Officer’s
recommendation to overrule the objections and certified the
Union as the collec tive 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 exuberan ce rather than credible threa ts, ” 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 t hen file d unfair labor practice charges and the Board’s General Counsel issue d 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

procee ding

. See Boire v. Greyhound Corp. , 376 U.S. 473, 4 7 6

– 7 7 (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 t hereb y obtain judicial r eview” of
certification order s) . The Board, on a Motion for Summary Judgment, held that PruittHealth violated 29 U.S.C. § 158(a)(1)9

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

- Virginia Park , 364 NLRB No . 125, slip op. at 2.
PruittHealth then filed a petition for review in this court, and

t he Board cross

- applied for enforcement of its order.

II. A NALYSIS

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 i n “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. S ervs. , 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 applyi ng 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 coer ce 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 the10

Union, as opposed to third parties, the Boa rd 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
elec tion.” 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 w ere 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 o ne 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 2 2

.

As an initial matter, we discount PruittHealth’s allegations
that Ben n 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.11

Under Board precedent, unions are pe rmitted 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 whe n 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 harass ing contact

, ” id. at 1016; s ee 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 en tering or exiting the facility

, i d. 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 t he 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 the12

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.

Substa ntial evidence supports th ese determination s . 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 w as “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 specific s, 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 a re shown to be “patently insupportable”).

The remaining, credited testimony from Thornton, Johnson, and Merriweather indicates that demonst rators 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 U nion supporters interfered with employees’ Section 7 rights by blocking access to or from the Facility during the
election campaign

.13

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 the se determination s because they are supp orted by
substantial evidence and applicab le 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
d emonstrate that the comment” was actually directed at
Thornton. J.A. 242.

Likewise, t he 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

c redited 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 i f the statement was made

, it was not objectionable under controlling precedent. On this point, t he 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 s ubstantial 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.14

1972) (deferring to a Board trial examiner’s decision to accord limited prob ative 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 mad e 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 f or 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 . A ll of this suggests the employees were talking amongst themselves rather than directing threats toward Merriweather or any othe r 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 C ompany’s request that we overturn the Board’s credibility determinations , to which he responded he
had not. See Oral Arg. Recordi ng at 6:39

– 7:12. On the record before us, we find that t he C ompany’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 reje ct PruittHealth’s contention that the Regional Director and Hearing Officer failed to properly consider the15

“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 su bmitted a letter of resignation

– although she later retracted it ). The Board applies an objecti ve 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 claim s was supported by substantial
evidence and i s 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. T his
claim is not properly before us, however, becau se PruittHealth
failed to properly raise it with the Board.16

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 proc eedings 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 fo r its objection[] .” Nova Se.
Univ. v. NLRB , 807 F.3d 308, 313 (D.C. Cir. 2015); see also17

29 C.F.R. § 1 02.46(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 th e 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 a dditional arguments as to why the Board erred in adopting the Regional Director’s findings and
recommend ations and certifying the Union . N either argument has merit.

First, the Company asserts that the Regional Director and Hearing Officer analyzed each a llegation 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 review s and weigh s the seriousness of the specific
i ncidents of alleged misconduct. See Amalgamated Clothing &
Textile Worke rs 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

. . . , both18

in isolation and cumulatively.” J.A. 237. And the Regional Director explained in his decision that “the question which must be asked [in det ermining whether to set aside the election
results ] is whether bas ed 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.

A s we have explained before, a petitioner may not use a
cumulativ e

- 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 set ting 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
B oard ’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 th e Board found that19

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. C ONCLUSI ON

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

.