Capay, Inc. v. NLRB

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CAPAY, INC., DBA Farm Fresh To You, No. 16-70699 Petitioner, NLRB No. 20-CA-166233 v. MEMORANDUM* NATIONAL LABOR RELATIONS BOARD, Respondent, BAKERY, CONFECTIONERY, TOBACCO WORKERS & GRAIN MILLERS UNION LOCAL 85, Respondent-Intervenor. NATIONAL LABOR RELATIONS No. 16-71001 BOARD, NLRB No. 20-CA-166233 Petitioner, BAKERY, CONFECTIONERY, TOBACCO WORKERS & GRAIN MILLERS UNION LOCAL 85, Intervenor, v. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. CAPAY, INC., DBA Farm Fresh To You, Respondent. On Petition for Review of an Order of the National Labor Relations Board Argued and Submitted October 16, 2017 San Francisco, California Before: HAWKINS and W. FLETCHER, Circuit Judges, and KRONSTADT, ** District Judge. Capay, Inc. dba Farm Fresh to You (“Capay”) seeks review of a decision of the National Labor Relations Board (“Board”), finding Capay violated Sections 8(a)(5) and (1) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(5), (1) (2012), by failing and refusing to recognize and bargain with the Bakery, Confectionary, Tobacco Workers & Grain Millers Union Local 85 (“Union”) following the Union’s certification. The Board cross-petitions for enforcement of its order. We deny Capay’s petition for review and grant the Board’s cross-application for enforcement. Capay argues it was not obligated to bargain with the Union because the election establishing the Union’s representation of the bargaining unit was tainted by various improprieties. Capay cites its five election objections as presenting ** The Honorable John A. Kronstadt, United States District Judge for the Central District of California, sitting by designation. 2 substantial and material factual issues which required the Board to hold an evidentiary hearing. A “decision not to grant an evidentiary hearing on election objections is reviewed for an abuse of discretion.” NLRB v. Valley Bakery, 1 F.3d 769, 772 (9th Cir. 1993) (citing Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1344 (9th Cir. 1987)). The Board is required to grant an evidentiary hearing only when a party’s objections raise “substantial and material factual issues,” 29 C.F.R. § 102.69(c) (2017), and the objecting party supplies evidence establishing a prima facie case for disturbing the election results, Pinetree Transp. Co. v. NLRB, 686 F.2d 740, 744–45 (9th Cir. 1982). We lack jurisdiction over Objection 1, which protests the inclusion of four sanitation employees in the bargaining unit. Section 10(f) of the NLRA provides that “[a]ny person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order . . . .” 29 U.S.C. § 160(f) (2012) (emphasis added). Reasoning that the Union would prevail regardless of the votes of the four sanitation employees, the Board declined to determine the exact bargaining unit composition in resolving Capay’s election objections. Instead, the Board indicated Capay may seek to resolve this issue at a future unit-clarification proceeding. Thus, ...

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