NLRB v. Natural Life, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 8, 2020
• Docket: 19-70392
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS No. 19-70392 BOARD, NLRB No. 28-CA-181573 Petitioner,

v. MEMORANDUM*

NATURAL LIFE, INC. D/B/A HEART AND WEIGHT INSTITUTE,

Respondent.

On Application to Enforce an order of the National Labor Relations Board

Argued and Submitted August 31, 2020 Seattle, Washington

Before: BYBEE and COLLINS, Circuit Judges, and BASTIAN,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stanley Allen Bastian, United States Chief District Judge for the Eastern District of Washington, sitting by designation.

1 The National Labor Relations Board (“NLRB” or “Board”) petitioned for

enforcement of its order issued against Natural Life d/b/a Heart and Weight

Institute (Natural Life) finding that Natural Life violated section 8(a)(1) of the

National Labor Relations Act (“NLRA” or “Act”) when it: (1) discharged nine

employees after they engaged in protected concerted activities; (2) created an

impression of surveillance of the protected activities; and (3) informed employees

they were discharged and would not be rehired because of their protected

concerted activities. We have jurisdiction pursuant to 29 U.S.C. § 160(e) and will

enforce the NLRB’s order.

“We will uphold decisions of the NLRB if its findings of fact are supported

by substantial evidence and if it correctly applied the law.” N.L.R.B. v.

Unbelievable, Inc., 71 F.3d 1434, 1438 (9th Cir. 1995) (citation omitted).

“Substantial evidence is more than a mere scintilla, but less than a preponderance.”

N.L.R.B. v. Int’l Bhd. of Elec. Workers, Local 48, AFL-CIO, 345 F.3d 1049, 1053–

54 (9th Cir. 2003) (quotation omitted). On questions of law, we will uphold the

Board’s decisions interpreting the NLRA as long as they are reasonably defensible.

Id.

2 A party challenging an evidentiary ruling on appeal must show not only that

the Board abused its discretion, but that its case was prejudiced as a result of the

Board’s error. N.L.R.B. v. Bakers of Paris, Inc., 929 F.2d 1427, 1434 (9th Cir.

1991).

1. Natural Life forfeited its objections to the ALJ’s findings that it violated

§ 8(a)(1) by creating an impression of surveillance and by telling employees they

were terminated and would not be rehired because of their protected concerted

activities. The Board specifically held that Natural Life had not properly raised any

objection to these findings before the Board, and Natural Life waived these

objections when it failed to challenge the Board’s ruling on this score. See Friends

of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008) (noting

that arguments not raised by a party in its opening brief are deemed waived).

2. Substantial evidence supports the ALJ’s finding that Natural Life employee

Linda Guggia had actual and apparent authority when she told employees they

were terminated for their protected activities. Under the NLRA, an employer is

liable for the unlawful actions of its agents. 29 U.S.C. §§ 152(2), 158(a). The

Board applies common law agency principles to determine whether an employee,

in taking a particular action, is acting with authority on behalf of her employer.

3 N.L.R.B. v. Friendly Cab Co., Inc., 512 F.3d 1090, 1096 (9th Cir. 2008). “An

employer may be held responsible for anyone acting as its agent if employees

could reasonably believe that the agent was speaking for the employer.” Idaho

Falls Consol. Hosp., Inc. v. N.L.R.B., 731 F.2d 1384, 1387 (9th Cir. 1984) (citation

omitted).

Konstantine Stoyanov, owner and president of Natural Life, admitted he

gave Guggia authority to hold the July 27, 2016 meeting, inform employees they

were being discharged, and rehire some of them a few days later. He admitted that

Guggia represented him when she explained to the employees “why the room was

closing.” Moreover, Guggia testified that Stoyanov gave her authority to conduct

the meeting. Also, Guggia’s statements at the meeting, as well as her prior history

of being the sales manager and filling in for the manager when he was absent,

would have led employees to reasonably believe she was speaking as a

management representative.

3. While the ALJ erred in drawing an adverse inference based on the missing

witness rule, the Board correctly concluded such error was harmless, given that the

ALJ properly concluded that Natural Life discharged its employees in retaliation

4 for their engaging in protected concerted activity, not because there was no

available manager.

4. Even if the ALJ erred in rejecting the one-page profit and losses document,

Natural Life has not shown how it was prejudiced, given that the ALJ considered

its financial situation as reflected in the rejected document and in Stoyanov’s

testimony when it concluded Natural Life’s proffered reason for its actions

(financial distress) was pretextual.

ORDER ENFORCED.