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.
2

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 threemember 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 
3

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 
4

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 proUnion 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 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 
6

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 crossexamination, 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 
7

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 
8

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) 
9

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 
10

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 
12

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.
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 secondguess 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. 
14

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 
15

“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.
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 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
17

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 
18

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.