NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 17 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS No. 19-71261

BOARD,

NLRB Nos. 31-CA-222587 Petitioner, 31-CA-225390

v.

MEMORANDUM*

RADNET MANAGEMENT, INC., DBA

San Fernando Valley Interventional Radiology and Imaging Center; RADNET MANAGEMENT, INC., DBA San Fernando Valley Advanced Imaging Center,

Respondents.

RADNET MANAGEMENT, INC., DBA No. 19-71447 San Fernando Valley Interventional Radiology and Imaging Center; RADNET NLRB Nos. 31-CA-222587 MANAGEMENT, INC., DBA San 31-CA-225390 Fernando Valley Advanced Imaging Center,

Petitioners,

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board

Submitted June 4, 2020** Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

RadNet Management, Inc. (“RadNet”) administers diagnostic imaging

services at various California locations, including San Fernando Valley

Interventional Radiology and Imaging Center (“SFV Interventional”) and San

Fernando Valley Advanced Imaging Center (“SFV Advanced”). After the

National Union of Healthcare Workers (“the Union”) notified RadNet that the

Union sought recognition as the exclusive-bargaining representative of “technical”

employees at these two locations, the National Labor Relations Board (“the

Board”) supervised elections. When the Union prevailed in the elections, RadNet

filed several objections to the elections with the Board. The Board’s Regional

Director overruled each of RadNet’s objections—most without a hearing—and

certified the Union as the exclusive collective-bargaining representative of

technical employees at both RadNet locations. On appeal, the Board denied

RadNet’s Requests for Review of the Regional Director’s certifications,

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 concluding RadNet raised “no substantial issues warranting review.”

RadNet then refused to bargain with the Union, which led the Union to

commence unfair-labor-practices proceedings before the Board. RadNet continued

to argue that alleged defects in the election processes should absolve RadNet from

any duty to bargain with the Union. A three-member panel of the Board issued a

Decision and Order (“Decision”) that declined to reconsider whether it was proper

to certify the Union at both locations, and concluded that RadNet’s refusal to

bargain with the Union is an unfair labor practice affecting commerce in violation

of Sections 8(a)(5) and (1) of the National Labor Relations Act (“NLRA”). The

Board accordingly ordered RadNet to bargain with the Union. When RadNet

continued its refusal to bargain with the Union, the Board filed an application with

this Court for enforcement of its Decision. RadNet cross-petitioned for review of

the Board’s Decision. The Board’s application and RadNet’s cross-petition were

consolidated on appeal.

The Board “has the primary responsibility for developing and applying

national labor policy,” and its rules and interpretations thereof are accorded

“considerable deference.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,

786 (1990). Board decisions are upheld unless factual findings are unsupported by

substantial evidence or if the agency incorrectly applies the law. NLRB v. Calkins,

187 F.3d 1080, 1085 (9th Cir. 1999). We defer to the Board’s application of its

3 own rules and regulations unless the rules themselves are inconsistent with the

NLRA or the Board’s “explication is . . . inadequate, irrational or arbitrary.” Sever

v. NLRB, 231 F.3d 1156, 1164 (9th Cir. 2000) (quoting Allentown Mack Sales &

Serv. Inc. v. NLRB, 522 U.S. 359, 364 (1998)). We have jurisdiction under 29

U.S.C. § 160(e), and we grant the Board’s application for enforcement of its

Decision and deny RadNet’s cross-petition.

1. RadNet waived its objection that the Board erred by declining to vacate

the election results because voters were not told of a purported affiliation between

the Union and another union because RadNet stipulated to the ballots’ form in

advance of the elections. See NLRB v. Sonoma Vineyards, Inc., 727 F.2d 860, 865

(9th Cir. 1984) (“When a union and an employer enter into a stipulation of this

sort, the Board is bound by the stipulation’s terms unless the stipulation violates

applicable statutes or settled Board policy.” (citing NLRB v. Mercy Hosps. of

Sacramento, Inc., 589 F.2d 968, 972 (9th Cir. 1978))). RadNet also waived any

objection to the inclusion of statutory guards in the bargaining unit by failing to

challenge the purported guards as voters before or during the elections. See NLRB

v. A.J. Tower Co., 329 U.S. 324, 331 (1946).

2. The Board did not err in declining to vacate the election results at the two

locations due to a purportedly flawed “challenged ballot” procedure. Although the

Board’s agent who supervised the elections failed to explain to some voters that

4 votes would not be kept secret in unusual circumstances, that oversight does not

call into question the entire elections’ fairness and validity, which is required to set

aside an election. See Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1346 (9th Cir.

1987).

3. The Board also did not err in declining to vacate the SFV Interventional

election because its agent did not establish a “no-electioneering zone” at the

polling place and allegedly failed to police electioneering. Board agents

supervising elections are not required to designate an official no-electioneering

zone around polling places. See NLRB v. Aaron Bros. Corp., 563 F.2d 409, 412

(9th Cir. 1977) (“‘The establishment of an area in which electioneering is not

permitted, must in the first instance be left to the informed judgment of the

Regional Director and his agents conducting the election’ on a case to case basis.”

(quoting Marvil Int’l Sec. Serv., 173 N.L.R.B. 1260, 1260 (1968)); see also Nat’l

Labor Relations Board, Casehandling Manual (Part Two), Representation

Proceedings § 11318 (Jan. 2017). And although RadNet objected—after the

election—that the Board agent supervising the SFV Interventional election should

have undertaken greater efforts to police electioneering, RadNet never alleged the

Board agent failed to prevent any actual unlawful electioneering. Absent any

specific allegations of unlawful electioneering taking place, there is “no basis for

setting the election[] aside.” Victoria Station, Inc. v. NLRB, 586 F.2d 672, 675 (9th

5 Cir. 1978) (“While it is true that the Board's agent at times might have been more

attentive to the election, these lapses caused no harm and provide no basis for

setting the elections aside.”).

4. The Board further did not err in declining to vacate the SFV

Interventional election result for possible list-keeping by the Union’s election

observer. As the Regional Director rightly noted in overruling this objection

during the representation proceedings, even accepting RadNet’s implausible

contention that the Union observer was keeping a secret list of voting employees,

RadNet proffered no evidence that any voting employee saw the Union observer

highlighting her study guide or “knew their names were being recorded.” Chrill

Care, Inc., 340 N.L.R.B. 1016, 1016 (2003).

5. The Board did not err in declining to vacate the SFV Advanced election’s

results on account of alleged voter harassment. Whether voter harassment

warrants setting aside an election turns on a multi-factored objective test of the

nature, severity, and timing of the harassment. See Taylor Wharton Div. Harsco

Corp. (“Taylor Wharton”), 336 N.L.R.B. 157, 158 (2001) (listing nine factors

relevant to determining if a Union’s conduct “has the tendency to interfere with

employees’ freedom of choice”). Here, RadNet’s sole alleged instance of

harassment was a pro-Union RadNet employee “cornering” another employee and

urging the employee to sign a Union petition. As the Regional Director reasonably

6 concluded, however, this one instance of harassment does not warrant setting aside

an election under Taylor Wharton.

6. The Board again did not err in declining to vacate the elections based on

allegations that the Union or agent of the Union filed false police reports. First, the

Hearing Officer did not err by refusing to enforce certain RadNet subpoenas and

then closing the evidentiary record without waiting for responses to the subpoenas.

Those subpoenas, as the Hearing Officer detailed, were mere “fishing expeditions

with no basis of belief or knowledge that they would provide any probative

information.” RadNet also fails to explain why the Hearing Officer should have

kept the record open when, even assuming that the subpoenas revealed that the

Union and/or its purportedly affiliated union filed the allegedly false police reports,

RadNet failed to introduce any evidence that employees at the relevant locations

knew about these false police reports. See Lockheed Martin Skunk Works, 331

N.L.R.B. 852, 854 (2000) (explaining that conduct allegedly interfering with pre-

election conditions must be known by employees in the voting unit to warrant

setting aside an election). In fact, the Regional Director noted his skepticism that

allegedly false police reports filed against employees of other RadNet locations

could create an atmosphere of fear at the RadNet locations where elections were

held. At the hearing, rather than introduce employee testimony demonstrating such

an atmosphere of fear to buttress the need to execute the outstanding subpoenas,

7 RadNet chose not to introduce any evidence.

7. Finally, it was not arbitrary and capricious for the Board to decline to

reconsider RadNet’s objections to the elections in the unfair-labor-practice

proceedings after the Board rejected those objections during the prior

representation proceedings. The Board long ago promulgated a regulation, upheld

by this Court, that “preclude[s] relitigating any [representation-proceeding] issues

in any related subsequent labor practice proceeding,” which relitigation bar this

Court has upheld. 29 C.F.R. § 102.67(g); see also NLRB v. W.S. Hatch Co., 474

F.2d 558, 562–63 (9th Cir. 1973). Contrary to RadNet’s arguments on appeal,

there is nothing inherently inconsistent with the Board having a regulation that

generally prohibits parties from relitigating representation issues in subsequent

unfair-labor-practice proceedings while reserving some discretion not to apply the

relitigation bar in special circumstances.

APPLICATION GRANTED.

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