Jones Lang Las Alle Americas , Inc v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 22, 2024 Decided February 18, 2025
No. 24-1079
J ONES LANG LAS ALLE A MERICAS , INC ,
P ETITIONER
v.
NATIONAL LABOR R ELATIONS B OARD ,
R ESPONDENT
INTERNATIONAL UNION OF OPERATING E NGINEERS ,
S TATIONARY ENGINEERS , LOCAL 39, AFL-CIO,
INTERVENOR
Consolidated with 24-1098
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Reyburn W. Lominack, III argued the cause for petitioner.
With him on the briefs was Todd A. Lyon.
David A. Seid, Senior Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick,
Deputy Associate General Counsel, David Habenstreit,

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Assistant General Counsel, and Meredith L. Jason, Deputy
Assistant General Counsel. Milakshmi V. Rajapakse, Attorney,
entered an appearance.
David A. Rosenfeld and Bruce A. Harland were on the
brief for intervenor International Union of Operating
Engineers, Stationary Engineers, Local 39, AFL-CIO in
support of respondent.
Before: S RINIVASAN, Chief Judge, WALKER , Circuit
Judge, and EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
EDWARDS , Senior Circuit Judge: In 2023, the International
Union of Operating Engineers, Stationary Engineers, Local 39,
AFL-CIO (“Union”) filed a petition with the National Labor
Relations Board (“NLRB” or “Board”), seeking certification as
the bargaining representative of the Maintenance II and III
technicians employed by Petitioner Jones Lang LaSalle
Americas, Inc. (“JLL” or “Company”) at an Amazon, Inc.,
facility in Napa, California. The Union and JLL entered into a
stipulated election agreement which was approved by the
Board’s Regional Director. The parties agreed that the election
would be held on May 17, 2023, during two separate polling
periods. The four eligible employees in the designated
bargaining unit voted unanimously in favor of Union
representation. However, JLL refused to bargain with the
Union and filed an objection to the election.
In its objection to the election, JLL raised two claims
regarding the conduct of the Board agent who was overseeing
the election. First, JLL claimed that the Board Agent
impermissibly left an unsealed ballot box and blank ballots in

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the care of the parties’ designated observers, when he briefly
left the polling area to advise employees that they could vote.
Second, JLL alleged that when the Board Agent told eligible
voters that they could come to the polling place to vote, he
impliedly suggested to the voters that they were compelled to
cast a vote in the election.
After conducting an investigation, the Regional Director
dismissed JLL’s objections as meritless and certified the
election. On March 21, 2024, a three-member panel of the
Board unanimously issued a Decision and Order, granting
summary judgment against JLL, finding that the Company had
violated sections 8(a)(5) and (1) of the National Labor
Relations Act (“NLRA” or “Act”), 29 U.S.C. § 158(a)(5), (1),
by refusing to recognize and bargain with the Union. The
Board concluded that all representation issues that JLL had
raised in the unfair-labor-practice proceeding were, or could
have been, litigated in the underlying representation
proceeding, and that the Company did not offer any newly
discovered or previously unavailable evidence, or allege any
special circumstances that would require the Board to
reexamine its decision in the earlier proceeding to certify the
Union. Accordingly, the Board ordered JLL to recognize and
bargain with the Union. Instead of doing so, JLL filed a petition
for review with this court, reiterating its claim that the election
should be set aside. The Board then cross-petitioned for
enforcement of its order requiring JLL to bargain.
For the reasons that follow, we grant the Board’s cross-
application for enforcement of its order requiring JLL to
recognize and bargain with the Union and deny JLL’s petition
for review.

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I. B ACKGROUND
A. Statutory and Regulatory Framework
Section 7 of the NLRA provides that protected
“[e]mployees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
In furtherance of these statutory objectives, the Act makes it an
unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in section 157,” 29 U.S.C. § 158(a)(1), and “to
refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 159(a),” 29
U.S.C. § 158(a)(5).
Under the Act, employees, a union, or an employer may
petition the NLRB for a representation election to determine
whether a union will serve as the agent for employees in
collective bargaining with an employer. Id. § 159(c). If a
polling place is designated for the election, an agent of the
Board is sent to the polling place to supervise and monitor the
election process. NLRB Casehandling Manual (Part Two)
Representation Proceedings (hereinafter “NLRB Manual”)
§ 11308. In addition, “[w]hen the election is conducted
manually, any party may be represented by observers of its own
selection, subject to such limitations as the [NLRB] Regional
Director may prescribe.” Id. § 102.69(a)(5). These designated
observers, along with the Board Agent, help monitor the
election. The parties’ observers may also challenge ballots and
voter eligibility. Id. § 102.69(a)(6).

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Once ballots have been cast and the polls close, the ballot
box should be sealed securely, in the presence of the observers,
who ensure that no tampering occurs. NLRB Manual
§§ 11318.4, 11332, 11340. The ballots are then tallied in the
presence of the parties’ representatives. Id. § 11340.2. Finally,
the representatives sign the tally, certifying that the tabulation
is correct. Id. § 11340.10.
The parties to a representation election may challenge how
an election was conducted and/or the election results by filing
objections and offers of proof with the Regional Director. 29
C.F.R. § 102.69(a)(8). Applicable procedural rules explain
that:
If timely objections are filed to the conduct of an
election or to conduct affecting the results of the
election, and the Regional Director determines that the
evidence described in the accompanying offer of proof
would not constitute grounds for setting aside the
election if introduced at a hearing, and the Regional
Director determines that any determinative challenges
do not raise substantial and material factual issues, the
Regional Director shall issue a decision disposing of
the objections and determinative challenges, and a
certification of the results of the election, including
certification of representative where appropriate.
Id. § 102.69(c)(1)(i). Objectors may appeal decisions by the
Regional Director to the Board. Id. §§ 102.69(c)(2), 102.67(c).
The Board will grant a petition for review “only where
compelling reasons exist therefor,” and review, if granted, is
limited to issues properly raised before the Regional Director.
Id. § 102.67(d), (e).

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Once the Regional Director or the Board certifies an
election, employers are required to bargain with the
employees’ elected representative. See 29 U.S.C. § 158(a)(5).
If an employer persists in refusing to bargain with a certified
Union, a complaint may be issued by the Board’s General
Counsel, which in turn may result in an order from the Board
finding that the employer has engaged in an unfair labor
practice in violation of the NLRA. See 29 U.S.C. § 160(b); 29
C.F.R. § 102.15. Such orders are subject to enforcement in
federal court. 29 U.S.C. § 160(e).
B. Factual Background
Petitioner JLL provides building management services to
third-party companies in facilities across the country. The
events in this case involve the Union’s attempt to secure
collective bargaining rights on behalf of four employees at
JLL’s facility in Napa, California. As explained above, the
Union requested an NLRB certification election. The Union
and JLL reached a stipulated agreement regarding the terms of
the election. The agreement was approved by the NLRB
Regional Director. The election was set for May 17, 2023, and
the parties agreed that it would take place during two polling
periods, one from 3:30 pm to 4:00 pm, and the other from 6:45
pm to 7:15 pm.
On the day of the election, Board Agent Matt Peterson
hosted a pre-election conference before the first polling period.
Joining him were JLL’s representative, Deven Villarin, and
Union representative, Moses Portillo. JLL’s designated
observer, Diane Donohoe, was also present, as well as the
Union observer for the first polling period, JLL employee
Denis Vicenzini. The Union’s observer for the second polling
period was JLL employee Eric Buckley.

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During the first polling period, Union observer Vincenzini
cast his own ballot, then remained in the room along with JLL’s
observer Donahoe and the Board Agent. At around 3:45 pm,
the Board Agent told the observers that he would step out
briefly to check to see if the other employee whose shift had
ended before the first polling period was nearby. He then left
the polling area for approximately one minute, and returned
with the second employee, Maynard Bumagat. Bumagat cast
his ballot and left the polling area. During the one minute when
the Board Agent stepped out, the ballot box and the unmarked
ballots remained in the room, as did both observers. There is
nothing in the record to indicate that the ballot box or the
unmarked ballots were touched by either the JLL or the Union
observer, or by anyone else, during the one minute when the
Board Agent was out of the room.
During the second polling period, the Board Agent repeated
what he had done during the first polling period. After the
Union observer for the second period cast his ballot, the Board
Agent again said that he would go check to see if the fourth
eligible employee was nearby. He briefly stepped out, leaving
the ballot box and unmarked ballots in the room with the JLL
and Union observers. As before, the Board Agent returned
shortly with the fourth employee, Roy Aninon, explaining that
Aninon had been waiting outside under the mistaken
impression that he had to be notified to come into the room to
vote. Aninon, the fourth and final employee, cast his ballot and
left. During the brief moments when the Board Agent stepped
out, the ballot box and the unmarked ballots remained in the
room, as did both observers. There is nothing in the record to
indicate that the ballot box or the unmarked ballots were
touched by either the JLL or the Union observer, or by anyone
else, during the moments when the Board Agent was out of the
room.

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After polling closed, votes were tallied, showing that all
four votes were cast for the Union. Both parties’
representatives signed the tally, certifying that the counting and
tabulating were fairly and accurately done, that the secrecy of
the ballots was maintained, and that the results were as
indicated.
C. Procedural Background
JLL filed a timely objection to the election and an offer of
proof on May 24, 2023. JLL’s objection focused on the Board
Agent leaving the polling area, which JLL contended was
problematic in two respects: first, the Board Agent should not
have left the ballots and ballot box in the room; and second, the
Board Agent should not have stepped out to remind employees
that the polls were open. According to JLL, such conduct was
“sufficiently material” so as to constitute grounds for
invalidating the election because, as relevant here, it “impinged
on the voters’ right not to cast a ballot” and because it “could
be reasonably interpreted as impugning” election standards.
JLL’s Offer of Proof 4-5, Joint Appendix (“J.A.”) 18-19
(citations omitted).
The Regional Director overruled JLL’s objection without a
hearing, finding that JLL failed to allege specific facts which,
if credited, would prima facie warrant setting aside the election,
and thus failed to raise material and substantial issues of fact
sufficient to warrant a hearing. See 29 C.F.R. § 102.69(c)(1)(i).
Distinguishing the cases relied upon by JLL in its offer of
proof, the Regional Director explained that because the ballots
were only left temporarily and in the care of the JLL and Union
election observers, and because JLL did not offer anything to
support any allegations that the election process had been
compromised or that any eligible employee had been coerced
into voting, it could not be shown that the Board Agent had

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acted in a manner that would warrant overturning the election’s
results. JLL’s objection was thus found to be insufficient to set
aside the election. Accordingly, the Regional Director
overruled JLL’s objection and certified the election.
JLL appealed to the Board, contending that the Regional
Director had erred in certifying the election. On September 7,
2023, a three-member panel of the Board summarily denied
review, with one member noting separately that even if the
“Board agent took an unnecessary risk” in leaving the unsealed
ballot box in the room while he briefly stepped out, such
conduct did not raise a reasonable doubt as to the election’s
fairness. Board Order of September 7, 2023 (“September
Order”), J.A. 152 & n.1.
JLL continued to refuse to bargain with the Union,
reiterating its certification objection in a letter sent to the Union
on October 12, 2023. In response, the Board’s General Counsel
filed a complaint with the Board seeking summary judgment
against JLL for its continued violations of the Act. In March
2024, the Board found no merit in JLL’s attempt to relitigate
certification issues, issued a summary judgment against JLL,
and ordered the Company to bargain with the Union. JLL then
filed this petition for review, and the Board cross-filed for
enforcement of the March Order.
II. ANALYSIS
A. Standard of Review
The Supreme Court long ago recognized that, under the
National Labor Relations Act, “Congress has entrusted the
Board with a wide degree of discretion in establishing the
procedure and safeguards necessary to insure the fair and free
choice of bargaining representatives by employees.” NLRB v.

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A.J. Tower Co., 329 U.S. 324, 330 (1946). The Court has never
wavered in this view of the Board’s delegated authority under
the NLRA. Given the Board’s broad and undisputed
“discretion to assess the propriety and results of representation
elections,” Am. Bottling Co. v. NLRB, 992 F.3d 1129, 1140
(D.C. Cir. 2021), this court has made it clear that it “will
overturn a Board decision to certify an election in only the
rarest of circumstances.” N. of Mkt. Senior Servs., Inc. v. NLRB,
204 F.3d 1163, 1167 (D.C. Cir. 2000). These circumstances are
limited to situations where the objector can show 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.” RadNet Mgmt.,
Inc. v. NLRB, 992 F.3d 1114, 1120 (D.C. Cir. 2021) (internal
quotation marks and citation omitted).
We thus uphold a Board’s judgment regarding a
representation election unless “we conclude that the Board’s
findings are not supported by substantial evidence, or that the
Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” Troutbrook Co. LLC
v. NLRB, 107 F.4th 994, 1000 (D.C. Cir. 2024) (citations
omitted). As the Supreme Court noted in Allentown Mack Sales
& Serv., Inc. v. NLRB, “[t]he substantial evidence test . . .
requires not the degree of evidence which satisfies the court
that the requisite fact exists, but merely the degree which could
satisfy a reasonable factfinder.” 522 U.S. 359, 377 (1998). In
other words, “we reverse the Board only when the record is so
compelling that no reasonable factfinder could fail to find to
the contrary.” Troutbrook, 107 F.4th at 1000 (internal
quotation marks and citations omitted).

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B. The Regional Director’s Decision to Certify the
Election Without a Hearing Was Reasonable and
Supported by the Record
To receive a hearing on election objections, “the burden is
on the objecting party to present evidence that raises substantial
and material factual issues.” Durham Sch. Servs., LP v. NLRB,
821 F.3d 52, 58 (D.C. Cir. 2016) (citations and brackets
omitted). Therefore, “[w]hen a party’s evidence, even if
credited, would not justify setting aside the election . . . as a
matter of law, there is simply ‘nothing to hear,’ and the
Regional Director may resolve the objections on the basis of an
administrative investigation.” Id. (citation and bracket
omitted).
Under Board precedent, objections grounded in the conduct
of the Board Agent require that the objector demonstrate that
such conduct “raised . . . reasonable doubts as to the fairness
and validity of the election.” Id. at 61; see also Polymers, Inc.,
174 N.L.R.B. 282, 282 (1969), enforced 414 F.2d 999 (2d Cir.
1969), cert. denied, 396 U.S. 1010 (1970) (describing the same
standard). As we have explained, “mere speculative harm is
insufficient.” Durham, 821 F.3d at 61 (cleaned up). Even for
allegations that the Board Agent did not “maintain an
appearance of neutrality in conducting fair and impartial
elections,” the objector must still demonstrate that the conduct
was serious enough to “destroy confidence” in the election
process or “could reasonably be interpreted as impugning”
election standards or the Board’s neutrality. N. of Mkt. Senior
Servs., 204 F.3d at 1168.
On the record before us, it is clear that the Regional
Director properly concluded that JLL’s objection did not
present “substantial and material factual issues” which, “if
credited, would . . . justify setting aside the election” under the

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applicable legal standard. Durham, 821 F.3d at 58.
Accordingly, we find that the dismissal of JLL’s objection
without a hearing was reasonable and based on substantial
evidence in the record, as was the Board’s denial of JLL’s
petition for review.
First, the Regional Director reasonably concluded that the
Board Agent’s briefly leaving the ballot box in the room with
the designated observers is not conduct that raises “reasonable
doubts” about the election’s validity. Id. at 61. As in Durham,
JLL does not “allege that any unauthorized ballots were cast,”
or that “the Board Agent’s conduct in any way affected the
election’s outcome.” Id. Indeed, the evidence on the record is
to the contrary: The Company’s representative certified that the
secrecy of the ballots was maintained and that all four votes
were accurately tallied. Neither JLL’s observers nor its
representative objected to a single ballot. JLL’s claims that an
irregularity may have occurred is thus not only “mere[ly]
speculative,” but plainly contradicted by the facts. Id. Such a
claim is “insufficient to overturn an election,” id. (cleaned up),
as Board precedent has held. See Benavent & Fournier, Inc.,
208 N.L.R.B. 636, 636, n.2 (1974) (overruling objection where
“the ballots were in the custody of the observers during the
short time” the Board Agent stepped out, and “[n]o one touched
the ballots during that period” so “there could not have been
any effect on the election”).
Similarly, the Board Agent’s conduct also did not “cast[]
a doubt or cloud over the integrity of the ballot box.” JLL’s
Offer of Proof 5 (quoting Austill Waxed Paper Co., 169
N.L.R.B. 1109, 1109 (1968)), J.A. 19. As the Regional Director
explained below, not every deviation from best practices
warrants setting an election aside. Thus, although the NLRB
Manual directs that unused ballots must remain in the “personal
custody” of the Board Agent, NLRB Manual § 11322.1,

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“neither the Casehandling Manual nor Board’s Rules and
Regulations addresses the specific situation here,” as Member
Kaplan observed below. September Order, J.A. 152 & n.1.
And, in any event, the Manual is not binding, and the Board
has found that “[p]urported noncompliance with those
provisions [of the NLRB Manual] does not warrant setting
aside an election, absent a showing that the deviations from the
guidelines raised a reasonable doubt as to the fairness and
validity of the election.” Patient Care of Pennsylvania, 360
N.L.R.B. 637, 638 (2014).
Where, as here, the box “remained in the voting room
under the ‘watchful eyes’ of both election observers,” the
conduct in question does not rise to the level justifying setting
the election aside under Board precedent. Sawyer Lumber Co.,
L.L.C., 326 N.L.R.B. 1331, 1332 (1998) (dismissing similar
objection where it was clear that no extra ballots were cast,
there was no evidence of election tampering, and both
observers monitored the ballot box at all times). After all, the
parties’ designated observers are tasked with “represent[ing]
their principals” in “generally monitoring the election process.”
NLRB Manual § 11310.3. Compare Austill, 169 N.L.R.B. at
1109-10 (setting election aside where ballot box was left
wholly unattended), with Anchor Coupling Co., Inc., 171
N.L.R.B. 1196, 1196 n.2 (1968) (distinguishing the facts in
Austill where, as here, “the box was not left wholly unattended,
and both of the Employer’s observers certified that the ballot
box was protected”).
Second, the Regional Director reasonably concluded that
the act of stepping out to check in on remaining voters did not
rise to the kind of election irregularity that warrants
invalidating an election. Instead, as the Regional Director
concluded, JLL’s allegations are purely conclusory: there is no
evidence that the Board Agent stepped out with the intent to

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solicit or compel votes. JLL only proffered that Board Agent
Peterson stepped out briefly, and then returned each time with
an employee who had yet to vote. Such evidence does not raise
a “reasonable possibility,” based on more than “mere
speculative harm,” that any “irregularity inhered” in the
conduct of the election. Peoples Drug Stores, Inc., 202
N.L.R.B. 1145, 1145 (1973); J.C. Brock Corp., 318 N.L.R.B.
403, 404 (1995) (internal quotation marks and citation
omitted).
In sum, we find no merit to JLL’s challenges to the
Regional Director’s decision to certify the election and the
Board’s decision sustaining the certification.
C. JLL Has Forfeited Its Belatedly Proffered Claim That
the Board Should be Reversed Because It Applied
Inconsistent Standards
Finally, we reject JLL’s contention that the Regional
Director adopted inconsistent legal standards in assessing its
objection. This argument was raised for the first time in JLL’s
reply brief. We need not address the merits of JLL’s position
because the claim has been forfeited. It is well established that
issues not raised until the reply brief are forfeited. See Tramont
Mfg., LLC v. NLRB, 890 F.3d 1114, 1121 (D.C. Cir. 2018)
(holding that because a party had failed to properly raise an
argument in its opening brief it had forfeited any right to pursue
the matter with the court); New York Rehab. Care Mgmt., LLC
v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007) (finding that a
party had “forfeited any right to challenge” an issue it had not
raised in its opening brief before the court).
In the decision overruling JLL’s objections and certifying
the Union, the Regional Director said that:

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The question which the Board must decide in each case
in which there is a challenge to conduct of the election
is whether the manner in which the election was
conducted raises a reasonable doubt as to the fairness
and validity of the election.
Regional Director’s Decision 4, J.A. 40 (quoting Polymers,
Inc., 174 N.L.R.B. at 282).
This is the same standard that JLL argued was applicable
in its opening brief to this court. See JLL Opening Br. 10 (“The
Court should grant JLL’s petition for review and deny the
Board’s cross-application for enforcement . . . because the
Board agent’s misconduct . . . raised a reasonable doubt as to
the fairness and validity of the election.”). Indeed, in the
“Standard of Review” section of its brief to the court, JLL
stated that:
Where a Board agent’s conduct during an election is at
issue, the question is whether “the manner in which the
election was conducted raises a reasonable doubt as to
the fairness and validity of the election.”
Id. at 12 (quoting Durham, 821 F.3d at 54 (quoting Polymers
Inc., 174 N.L.R.B. at 282)).
JLL never suggested in its opening brief that the Regional
Director’s standard was in error or somehow at odds with a
different standard applied by the Regional Director or the
Board. In its reply brief, however, JLL argued for the first time
to this court that the Regional Director and the Board applied
inconsistent standards of review.
JLL’s failure to argue in its opening brief that the Regional
Director had impermissibly adopted inconsistent legal

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standards in assessing its objection “deprived the [Board] of the
opportunity to respond. To prevent this sort of sandbagging of
appellees and respondents, we have generally held that issues
not raised until the reply brief are [forfeited].” Bd. of Regents
of Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996);
Dist. No. 1, Pac. Coast Dist., Marine Engineers’ Beneficial
Ass’n v. Mar. Admin., 215 F.3d 37, 43 (D.C. Cir. 2000)
(similar); Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50 n.4
(D.C. Cir. 1990) (similar). Apart from the problem of
sandbagging other parties, we have also explained that issues
not raised until the reply brief are forfeited because “[j]udges
are not expected to be mindreaders. Consequently, a litigant
has an obligation to spell out its arguments squarely and
distinctly, or else forever hold its peace.” Schneider v.
Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005).
III. CONCLUSION
For the foregoing reasons, we deny JLL’s petition for
review and grant the Board’s cross-petition for enforcement of
its order.
So ordered.

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