NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAPAY, INC., DBA Farm Fresh To You, 

Petitioner, 

 v. 

NATIONAL LABOR RELATIONS 

BOARD, 

Respondent, 

BAKERY, CONFECTIONERY, 

TOBACCO WORKERS & GRAIN 

MILLERS UNION LOCAL 85, 

Respondent-Intervenor.

No. 16-70699 

NLRB No. 20-CA-166233 

MEMORANDUM*

NATIONAL LABOR RELATIONS 

BOARD, 

Petitioner, 

BAKERY, CONFECTIONERY, 

TOBACCO WORKERS & GRAIN 

MILLERS UNION LOCAL 85, 

Intervenor, 

 v. 

No. 16-71001 

NLRB No. 20-CA-166233 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

NOV 2 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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.
3 

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, because the Board’s decision and order 

only requires Capay to bargain with the Union representing the bargaining unit, 
4 

which currently does not include the sanitation workers, Capay has not been 

aggrieved as to Objection 1.

Objections 2–4—which involve the Union’s purported home visits, telephone 

calls, and electioneering outside the election location within twenty-four hours of 

the election—fail to raise substantial and material factual issues. First, the Union’s 

purported conduct is not proscribed by the Board’s “captive audience” rule. Under 

that rule, employers and unions are “prohibited from making election speeches on 

company time to massed assemblies of employees within 24 hours before the 

scheduled time for conducting an election.” Peerless Plywood Co., 107 N.L.R.B. 

427, 429 (1953). This rule is limited to “one form of electioneering: ‘captive 

audience speeches’ made on company time within the twenty-four hour period 

preceding an election.” US Ecology, Inc. v. NLRB, 772 F.2d 1478, 1481 (9th Cir. 

1985). Here, Capay’s objections fail to allege that any of the Union’s conduct 

occurred on company time or included mandatory meetings with employees. Thus, 

the Union’s pre-election conduct occurring within twenty-four hours of the election 

is not presumptively objectionable under the “captive audience” rule.

Second, the Union’s purported conduct is not sufficiently coercive or 

objectionable to warrant invalidating the election. “[W]hether an election should be 

invalidated based on alleged misconduct . . . turn[s] on . . . an analysis of the 

character and circumstances of the alleged objectionable conduct” and whether such 
5 

conduct “is coercive and has a tendency to affect or interfere with the employees’ 

actions at the polls.” May Dep’t Stores Co. v. NLRB, 707 F.2d 430, 434 

(9th Cir. 1983) (quotation marks and citations omitted). This is an objective test. 

See NLRB v. Enter. Leasing Co. Se., 722 F.3d 609, 619 (4th Cir. 2013). Here, 

beyond legally insufficient subjective impressions by employees, Capay’s 

allegations and offer of proof do not allege any accompanying conduct by Union 

representatives that would render the home visits and telephone calls objectionable 

or coercive. See, e.g., Melrose-Wakefield Hosp. Ass’n v. NLRB, 615 F.2d 563, 569 

(1st Cir. 1980) (recognizing no need to overturn a regional director’s finding that 

“neither threatening nor coercive” phone calls made to employees constituted 

objectionable conduct); Randall Warehouse of Ariz., Inc., 328 N.L.R.B. 1034, 1037 

(1999) (“Home visits by union representatives . . . are unobjectionable so long as 

they are unaccompanied by threats or other coercive conduct.” (citing Canton, 

Carp’s, Inc., 127 N.L.R.B. 513, 513 n.3 (1960))).

Additionally, Capay did not allege facts that would make the Union’s 

electioneering sufficiently objectionable. When “prolonged conversations between 

representatives of any party to the election and voters waiting to cast ballots” take 

place, the Board will order a new election. Milchem, Inc., 170 N.L.R.B. 362, 362 

(1968). This inquiry is highly contextualized, but there are a number of factors that 

guide our decision, including the “nature and extent of the electioneering, whether it 
6 

happened within a designated ‘no electioneering’ area, whether it was contrary to 

the instructions of the Board’s election agent, whether a party to the election objected 

to it, and whether a party to the election engaged in it.” Overnite Transp. Co. v. 

NLRB, 140 F.3d 259, 270 (D.C. Cir. 1998). Here, Capay’s allegations establish that 

only one factor—the Union’s involvement in the electioneering—was present. This 

is insufficient to establish that the Union’s purported conduct was objectionable. 

See, e.g., NLRB v. Hudson Oxygen Therapy Sales Co., 764 F.2d 729, 732 (9th Cir. 

1985) (“Electioneering that occurs before the polls are open is simply not in violation 

of the [Milchem] rule.”).

Objection 5—which involves purported threats by Union representatives that 

Capay would fire or check the immigration status of employees who voted for the 

Union—also fails to raise substantial and material factual issues. “Where a free 

election is rendered impossible by misrepresentation, threats or coercion, the 

election must be set aside.” NLRB v. Mike Yurosek & Sons, Inc., 597 F.2d 661, 663 

(9th Cir. 1979) (citations omitted). This objection was supported by one signed 

employee declaration that alleged the Union representative said Capay “can check 

[his] [i]mmigration status” and “can fire[] me (or everyone)” if the employee voted 

against Union representation. These vague allegations are insufficient to support 

Capay’s contention that a free election was rendered impossible. Further, the 

allegations failed to allege how Capay would be able to determine who to retaliate 
7 

against for voting for the Union in the secret ballot election. See Valley Bakery, 

1 F.3d at 773 (holding that a union’s similar threats of job loss could have logically 

affected the election where employees had signed union authorization cards). 

Finally, these allegations are more akin to campaign propaganda, which is 

insufficient to warrant a hearing unless the union is alleged to have used forged 

documents. See Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127, 133 (1982). Capay 

made no such allegation here.1

Capay’s objections, even when viewed in the aggregate, fail to raise 

substantial and material factual issues necessary for a hearing. See NLRB v. Van 

Gorp Corp., 615 F.2d 759, 765 (8th Cir. 1980) (noting that “a number of 

insubstantial objections to an election” are insufficient to overturn an election).

Capay’s petition for review is DENIED, and the Board’s cross-application for 

full enforcement of its order is GRANTED.

 

1 Capay also alleged that the Union promised an ineligible employee $30.00 

per hour and a new position if he voted in favor of the Union. The Court lacks 

jurisdiction for this claim because Capay failed to initially present it to the regional 

director in its objections. See 29 U.S.C. § 160(e) (“No objection that has not been 

urged before the Board . . . shall be considered by the court, unless the failure or 

neglect to urge such objection shall be excused because of extraordinary 

circumstances.”).