Oakrheem, Inc. Dba Hayward Convalescent Hospital v. National Labor Relations Board

FILED
NOT FOR PUBLICATION
DEC 13 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 23-47
BOARD,
NLRB No. 32-CA-294577
Petitioner,
MEMORANDUM*
v.
OAKRHEEM, INC., d/b/a Haywood
Convalescent Hospital,
Respondent.
OAKRHEEM, INC., d/b/a Haywood No. 23-77
Convalescent Hospital,
NLRB No. 32-CA-294577
Petitioner,
v.
MEMORANDUM*
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 Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted December 7, 2023
San Francisco, California
Before: S.R. THOMAS, BRESS, and JOHNSTONE, Circuit Judges.
The National Labor Relations Board (“the Board”) petitions for enforcement
of its order determining that Oakrheem, Inc., d/b/a Haywood Convalescent
Hospital (“Oakrheem”) violated Sections 8(a)(5) and (1) of the National Labor
Relations Act by refusing to recognize and bargain with the Service Employees
International Union, Local 2015 (the “Union”). Oakrheem cross-petitions for
review of the Board’s order. We grant the Board’s petition for enforcement and
deny Oakrheem’s cross-petition. Because the parties are familiar with the history
of the case, we need not recount it in any detail.
The issue on appeal is whether the Board erred by refusing to hold an
evidentiary hearing on Oakrheem’s objection to the election. “The Board’s
decision not to grant an evidentiary hearing on election objections is reviewed for
an abuse of discretion.” NLRB v. Valley Bakery, Inc., 1 F.3d 769, 772 (9th Cir.
1993).
To obtain an evidentiary hearing on an election objection, the objecting
party must proffer evidence in its offer of proof which, if true, would warrant
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overturning the election. 29 C.F.R. § 102.69(c)(1)(ii); Valley Bakery, 1 F.3d at
771–72. The Board will only overturn an election due to supervisory pro-union
conduct if (1) “the supervisor’s prounion conduct reasonably tended to coerce or
interfere with the employees’ exercise of free choice in the election,” and (2) “the
conduct interfered with freedom of choice to the extent that it materially affected
the outcome of the election.” Harborside Healthcare, Inc., 343 N.L.R.B. 906, 909
(2004).
The Regional Director did not abuse her discretion in concluding that the
evidence in Oakrheem’s offer of proof would be insufficient to warrant an
evidentiary hearing. “To obtain an evidentiary hearing on an election objection,
the objecting party must make a prima facie showing that substantial and material
issues of fact exist that would warrant setting aside the election.”
Valley Bakery, 1 F.3d at 771–72. “To establish a prima facie case, the objecting
party must plead facts which, if true, would support a finding that (1) threats were
made, and (2) an ‘employee was actually coerced or intimidated’ by the threats.”
Id. at 772 (quoting NLRB v. Belcor, Inc., 652 F.2d 856, 861 (9th Cir. 1981)).
However, “‘[t]he proffer [of evidence] may not be conclusory or vague; it must
point to specific events and specific people.’” Id. (alterations in original) (quoting
Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 296 (3d Cir. 1981)).
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Here, Oakrheem tendered an offer of proof that alleged a supervisor had
distributed some pro-union cards. However, the offer of proof contained only
vague and conclusory allegations concerning whether the identified employee was
a statutory supervisor, whether she possessed supervisory authority, and whether
she actually passed out union cards.
Further, as to the alleged actions, Oakrheem failed to identify specific
evidence to support these allegations. The offer of proof must “identify[] each
witness the party would call to testify concerning the issue and summariz[e] each
witness’s testimony,” 29 C.F.R. § 102.66(c), and cannot be “‘conclusory or
vague.’” Valley Bakery, 1 F.3d at 772 (quoting Anchor Inns, 644 F.2d at 296 (3d
Cir. 1981)). Oakrheem’s offer of proof only described a hearsay report and then
promised it would establish the facts later.
In addition, the offer of proof failed to identify any employee who was
actually coerced or intimidated. And even if the allegation that union cards were
passed out was established, passing out union cards does not necessarily
“reasonably tend[] to coerce.” See Harborside, 343 N.L.R.B. at 909. “A
supervisor’s . . . giving out authorization cards does not invalidate an election.”
NLRB v. Hawaiian Flour Mill, Inc., 792 F.2d 1459, 1463–64 (9th Cir. 1986)
(emphasis added). Thus, Harborside’s holding that solicitation of union cards was
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inherently coercive does not establish that passing out union cards is similarly
coercive.
Finally, even if Oakrheem had established coercive conduct under
Harborside step one, it could not establish a material impact under Harborside step
two. See Harborside, 343 N.L.R.B. at 909; Sanitation Salvage Corp., 359
N.L.R.B. 1129, 1129–31 (2013). The election was a lopsided vote in favor of
unionization, and the alleged supervisor only arguably supervised a few
employees, which would not have been enough to upset the Union’s large margin
of victory.
In short, Oakrheem did not meet its “heavy burden in charging that coercion
prevented a fair election.” Valley Rock Prods., Inc. v. NLRB, 590 F.2d 300, 302
(9th Cir. 1979) (per curiam). It did not tender an offer of proof sufficient to satisfy
the standards established by case law. Thus, the Regional Director did not abuse
her discretion in finding that Oakrheem’s insufficient offer of proof did not warrant
an evidentiary hearing.
The Board’s order is ENFORCED, and Oakrheem’s petition is DENIED.
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