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NOT FOR PUBLICATION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

2 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)).

3 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

4 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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