NLRB v. Natural Life, Inc. ( 2020 )

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NOT FOR PUBLICATION OCT 8 2020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.
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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
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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.
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