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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS 

BOARD, 

Petitioner,

v.

NATURAL LIFE, INC. D/B/A HEART 

AND WEIGHT INSTITUTE, 

Respondent.

No. 19-70392

NLRB No. 28-CA-181573

MEMORANDUM*

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.

FILED

OCT 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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.
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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.
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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.