Radnet Mgmt., Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 02 April 2021
• Docket Number: 19-1182, 19-1194, 19-1195, 19-1192,No. 19-1180, 19-1183, 19-1203, 19-1193, 19-1191, 19-1184, C/w 19-1181, 19-1207,19-1180
• Citation: 992 F.3d 1114
• Parties: RADNET MANAGEMENT, INC., d/b/a Orange Advanced Imaging, et al., Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

992 F.3d 1114

RADNET MANAGEMENT, INC., d/b/a Orange Advanced Imaging, et al., Petitioners

v.NATIONAL LABOR RELATIONS BOARD, Respondent

No. 19-1180

C/w 19-1181

19-1182

19-1183

19-1184

19-1191

19-1192

19-1193

19-1194

19-1195

19-1203

19-1207

United States Court of Appeals, District of Columbia Circuit.

Argued January 12, 2021

Decided April 2, 2021

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. Habenstreit, Assistant General Counsel, Elizabeth A. Heaney, Supervisory Attorney, and Rebecca J. Johnston, Attorney.

Before: Millett, Katsas and Walker, Circuit Judges.

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 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 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 Ana¹ were 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. 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 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...