## Facts

- Brentwood at Hobart operated an assisted-living facility in Hobart, Indiana.
- In August 2009, SEIU began organizing and petitioned for an NLRB representation election.
- The election occurred on September 25, 2009; employees voted 28–12 to select SEIU as their bargaining representative.
- During the campaign, the union distributed flyers using photographs of Brentwood employees, including an August 14 flyer and a September 18 flyer.
- Brentwood filed timely election objections addressing only the September 18 flyer, alleging that use of employee photographs without consent could mislead voters into believing the pictured employees supported the union.
- The Regional Director directed an evidentiary hearing on the objections.
- At the hearing, Brentwood attempted to introduce the August 14 flyer; the hearing officer excluded it because it was not identified in the written objections.
- On the September 18 flyer, the hearing officer found the pictured employees were told the purpose of the photos and gave verbal, and often written, consent; the officer recommended overruling the objections and certifying the union.
- The NLRB affirmed, concluding the August 14 flyer was outside the scope of the objections and adopting the findings that the September 18 flyer did not falsely imply employee support.
- Brentwood refused to bargain with the certified union; the NLRB found an unfair labor practice and issued a bargaining order.
- Brentwood petitioned for review and the NLRB cross-petitioned for enforcement.

## Issues

1. Whether the court should decline review based on venue concerns where the facility was in Indiana but the petition was filed in the Sixth Circuit.
2. Whether the NLRB properly limited the objection hearing to the conduct identified in the employer’s written objections and excluded evidence of the August 14 flyer.
3. Whether substantial evidence supported the NLRB’s finding that employees consented to use of their photographs and that the September 18 flyer did not taint the election.
4. Whether the NLRB lawfully issued and could enforce a bargaining order after Brentwood refused to bargain with the certified union.

## Decision

- The court denied Brentwood’s petition for review and granted the NLRB’s cross-petition for enforcement.
- The court proceeded to the merits despite acknowledging concerns about statutory venue choices and potential circuit shopping.
- The court upheld the Board’s exclusion of the August 14 flyer as outside the scope of the employer’s timely, written objections.
- The court held substantial evidence supported the Board’s finding that employees consented to the photographs’ use and that the September 18 flyer did not misrepresent employee support.
- Because the certification was valid, the court enforced the Board’s order requiring Brentwood to bargain.

## Legal Principles

- Parties challenging a representation election must state objections with sufficient specificity; the Board may confine a hearing to the conduct fairly encompassed by the written objections.
- The NLRB has discretion to apply and enforce its procedural rules in representation proceedings, and reviewing courts generally defer absent abuse of discretion.
- Use of employee images in campaign materials may be objectionable if it creates a false impression of employee endorsement, but evidence of consent supports a finding of no election interference.
- In refusal-to-bargain cases used to obtain judicial review of certification decisions, a valid certification supports an unfair-labor-practice finding and enforcement of a bargaining order.

## Conclusion

The Sixth Circuit enforced the NLRB’s bargaining order, holding that the employer could not expand its election objections beyond the conduct specified in its written filing and that substantial evidence supported the Board’s finding that employees consented to the union’s use of their photographs, leaving the election results and certification intact.


Brentwood at Hobart v. NLRB, 675 F.3d 999 (6th Cir. 2012)