Rad Net Management , Inc., D / B/a Orange Advanced Imaging , Et Al . v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2021 Decided April 2, 2021
No. 19-1180
RAD N ET MANAGEMENT , I NC., D / B/A O RANGE A DVANCED
I MAGING , ET AL .,
PETITIONERS
v.
N ATIONAL 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.

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Habenstreit, Assistant General Counsel, Elizabeth A. Heaney,
Supervisory Attorney, and Rebecca J. Johnston, Attorney.
Before: M ILLETT , K ATSAS and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge W ALKER .
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

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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

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(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)

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(“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

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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

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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

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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

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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

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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.

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