NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EAST VALLEY GLENDORA HOSPITAL, 

LLC, DBA Glendora Community Hospital, 

Petitioner, 

 v. 

NATIONAL LABOR RELATIONS 

BOARD, 

Respondent, 

SEIU LOCAL 121RN, 

Intervenor.

No. 19-70292 

NLRB No. 31-CA-229412 

MEMORANDUM*

NATIONAL LABOR RELATIONS 

BOARD, 

Petitioner, 

 v. 

EAST VALLEY GLENDORA HOSPITAL, 

LLC, d/b/a Glendora Community Hospital, 

Respondent, 

______________________________ 

No. 19-70596 

NLRB No. 31-CA-229412 

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

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 29 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

SEIU LOCAL 121RN, 

Intervenor.

On Petition for Review of an Order of the

National Labor Relations Board

Submitted March 30, 2020**

Pasadena, California

Before: PAEZ, CALLAHAN, and BUMATAY, Circuit Judges.

Following a representation election, SEIU 121RN (“the Union”) was 

certified as the exclusive collective-bargaining representative of a unit of nurses 

employed by East Valley Glendora Hospital (“the Hospital”). After the election, 

the Hospital filed twenty-nine objections to the election and submitted an offer of 

proof supporting the allegations. The Regional Director held that the objections 

failed to demonstrate a prima facie showing of objectionable conduct, denied an 

evidentiary hearing, and issued a representative certification.

The Hospital continued to refuse to recognize and bargain with the Union. 

In the ensuing unfair labor practice case, the National Labor Relations Board 

(“NLRB” or “the Board”) issued an order granting summary judgment for the 

Union. The Hospital petitions for review of the NLRB’s order (No. 19-70292), 

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
3 

and the NLRB cross-petitions for enforcement of its order (No. 19-70596). The 

Union intervened on behalf of the Board. We deny the Hospital’s petition for 

review and grant the NLRB’s cross-petition for enforcement in full.

I.

The parties first dispute the scope of our review. We “lack[] jurisdiction to 

review objections that were not urged before the Board,” Woelke & Romero 

Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982), “unless the failure or neglect to 

urge such objection shall be excused because of extraordinary circumstances,” 29 

U.S.C. § 160(e).

The Hospital’s Request for Review does not address eleven of the initial

twenty-nine objections (objections 1, 3, 4, 7, 10, 12, 14, 17, 22, 23, and 28). Those 

objections allege unlawful conduct by the Union. The Request, however, discusses 

only conduct by alleged supervisors or non-employees. The Hospital now argues

that the alleged supervisors had “implied” or “apparent authority” to act on the 

Union’s behalf, see Op. Br. of Hospital 27, but it did not pursue that argument 

before the Board or submit a concomitant offer of proof. We thus lack jurisdiction 

to review these objections.

For similar reasons, we cannot review objections 24 and 25. The Hospital 

now argues that the supervisors’ willingness to provide photographs and 

statements is unlawful even if the conduct cannot be attributed to the Union or was 
4 

conducted on behalf of the Union, but, as the Hospital concedes, this argument was 

never presented before the NLRB. See Reply Br. of Hospital 11 (“[T]he Hospital 

argued below that the supervisors’ appearances in the propaganda were coercive: 

the only ‘new’ aspect is that the conduct need not be attributed to the Union.”).

The Request did not put the NLRB on notice of the separate claims. See, e.g.,

NLRB v. Seven-Up Bottling Co. of Miami, Inc., 344 U.S. 344, 350 (1953).

Finally, objections 20 and 21 are also not sufficiently preserved in the 

Request. They allege that the Union’s organizing drive was initiated by statutory 

supervisors. Although much of the Request discusses other conduct by statutory 

supervisors, there is no mention of the organizing drive.

For these reasons, the only objections reviewable on appeal are the 

remaining fourteen: objections 2, 5, 6, 8, 9, 11, 13, 15, 16, 18, 19, 26, 27, and 29.

II.

To obtain an evidentiary hearing on its objections, the objecting party must 

demonstrate that there is a “substantial material issue of fact relating to the validity 

of a representation election.” Pinetree Transp. Co. v. NLRB, 686 F.2d 740, 744 

(9th Cir. 1982). “Material” facts are those which, “if accepted as true, must 

warrant a conclusion in favor of that party on the issue of the validity of the 

election.” Id. at 745. The offer of proof submitted with the objections must

“summariz[e] each witness’s testimony,” 29 C.F.R. § 102.66(c), and “state the 
5 

specific findings that are controverted and [] show what evidence will be presented 

to support a contrary finding or conclusion. Mere disagreement with the Regional 

Director’s reasoning and conclusions” is insufficient. NLRB v. Kenny, 488 F.2d 

774, 775–76 (9th Cir. 1973) (internal quotation marks and citations omitted).

A. Objections 2, 5, 6, 8, 9, 11, 13, 15, 16, 18, 19, and 29

The Board did not abuse its discretion in affirming the Regional Director’s 

denial of an evidentiary hearing on these objections. They allege either that (1)

supervisors improperly attended meetings, solicited cards from employees,

engaged in electioneering activities, distributed campaign materials, directed that 

employees support the union, or engaged in other pro-union activity (objections 2,

5, 8, 11, 15, 18, 29), or (2) employees “were advised and made aware” that 

supervisors supported the union or were otherwise engaged in pro-union activity 

(objections 6, 9, 13, 16, 19).

Even if fully credited, these objections do not establish with sufficient 

specificity that the alleged supervisors’ conduct surpassed participation and 

amounted to coercion or interference, or “materially affected the outcome of the 

election.” Harborside Healthcare, Inc., 343 N.L.R.B. 906, 909 (2004).

The offer of proof also fails to raise a substantial and material issue of fact. 

The regulations do not explicitly require that “each witness’s testimony [ ] be 

summarized separately from every other witness,” Op. Br. of Hospital 14, but the 
6 

offer submitted by the Hospital states only that the witnesses will testify about “the 

facts presented in the objections,” facts which are themselves insufficiently 

specific. To warrant an evidentiary hearing, a prima facie showing of election 

interference “may not be conclusory or vague.” NLRB v. Valley Bakery, Inc., 1 

F.3d 769, 772 (9th Cir. 1993) (quoting Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 

296 (3d Cir. 1981)).

B. Objection 26

Objection 26 alleges that the Union assigned a statutory supervisor as its 

election observer. The Regional Director explained that the objecting party must 

raise the allegedly supervisory status of an election observer during the Board’s 

pre-election conference or it will be precluded. See Liquid Transp. Inc., 336 

N.L.R.B. 420, 420 (2001). The Hospital does not dispute the applicability of this 

requirement; it instead argues that it sufficiently objected to the supervisory status 

of the observer in the Stipulated Election Agreement. But the Agreement contains 

no mention or objection of charge nurses as election observers; the Hospital 

objected only to the inclusion of charge nurses in the bargaining unit.

1

1 We do not address the applicability of the waiver bar raised by Judge Bumatay in 

dissent because the Hospital did not present that argument to the NLRB or to this 

court. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259–60 (9th Cir. 1996) 

(issues not raised and argued in a party’s opening brief are waived). Before us, the 

Hospital argues only that it sufficiently preserved objection 26 in the Stipulated 

Election Agreement, and that its offer of proof was sufficient to merit an 

evidentiary hearing.
7 

Even assuming the Hospital preserved this objection, the offer of proof again 

fails to raise a substantial and material issue of fact. It does not identify the 

supervisor, list facts supporting the individual’s supervisory status, or provide any 

specificity to the facts underlying the objection. See Valley Bakery, 1 F.3d at 772.

C. Objection 27

Objection 27 is a catch-all statement comprised of legal conclusions. 

Unsupported by more specific statements, it does not introduce a “substantial 

material issue of fact relating to the validity of a representation election.” Pinetree 

Transp. Co., 686 F.2d at 744.

* * *

For the reasons stated, we DENY the Hospital’s petition for review (No. 19-

70292). We AFFIRM the decision and order of the NLRB and GRANT the 

NLRB’s cross-petition for enforcement of its order (No. 19-70596).
1

East Valley Glendora Hospital v. NLRB, No. 19-70292+

BUMATAY, Circuit Judge, dissenting:

In a fair election, your boss shouldn’t be watching over your shoulder as you 

vote. As such, the National Labor Relations Board has a well-established rule 

against supervisors serving as observers in elections over union representation. See 

Mid-Continent Spring Co., 273 NLRB 884, 887 (1984) (“The use of [supervisors as] 

observers is such a material and fundamental deviation from the Board’s established 

rules for the conduct of an election, that [the Board] will set aside an election without 

any showing of actual interference in the way the employees voted in the election.”). 

In this case, East Valley Glendora Hospital alleges that a charge nurse—a 

statutory supervisor in its view—monitored the election securing union 

representation for its nurses. Instead of investigating this “material and fundamental 

deviation,” the Board held that the Hospital waived its objection by failing to make 

the allegation at a pre-election conference. In doing so, the Board ignored that the 

parties agreed to forego the pre-election conference, and thus, none was held. Yet 

the Board still persisted with its waiver ruling. For this reason, I would grant the 

petition and remand. 

I.

Under Board regulation, any objection to the conduct of an election must be 

filed within seven days after the election. 29 C.F.R. § 102.69(a). Glendora Hospital

FILED

MAY 29 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

did this. But instead of following its own regulation, the Board held that the Hospital 

waived the objection under the “longstanding” rule that a challenge to a supervisor 

acting as an election observer must be made at the pre-election conference. See In 

Re Liquid Transp., Inc, 336 NLRB 420, 420 (2001). This rule, however, is patently 

inapplicable here: the parties, with the Board’s assent, stipulated to do without a preelection conference. See 29 C.F.R. § 102.62. 

From its earliest implementation, the Board’s waiver rule requires that an 

objecting party have advance notice of the identity of the election observers before 

a waiver occurs. Compare Northrop Aircraft, Inc., 106 NLRB 23, 26 (1953) 

(holding an election-observer objection waived when, “although on notice of their 

status prior to the election,” the employer raised no objection) with Bosart Co., 314 

NLRB 245, 247 (1994) (explaining that when no evidence showed that the objecting 

party was aware that a supervisor would serve as an observer, an objection made 

after the election was not waived). 

Here, since no pre-election conference was held, nothing in the record 

suggests that Glendora Hospital received advanced notice of the identity of the

Union’s election observers. Neither the Board nor the Union states otherwise. In

fact, the Hospital entered a Board-approved, pre-election agreement with the Union 

that specifically prohibited the use of any supervisors as election observers and 

preserved its claim that charge nurses are statutory supervisors. So, the Union and 
3

the Board were well aware of the Hospital’s objection prior to the election. To my 

knowledge, the Board has never applied this waiver rule under similar 

circumstances. Accordingly, I would hold that the Board abused its discretion in 

holding that the Hospital waived Objection 26.1 

II.

Board regulations only require that an offer of proof summarize each 

witness’s testimony and raise material and substantial factual issues. See 29 C.F.R. 

§§ 102.69(a), (c)(1)(i), 102.66(c). Glendora Hospital’s offer of proof was sufficient 

to preserve its objection. In its offer, it alleged that a charge nurse, a supervisory 

employee, served as an election observer on the date of the vote—all in violation of 

the Board’s rules. So, we have the who, what, where, and when of the violation. 

Nothing more should be required. It’s true that Glendora didn’t name which charge 

nurse served as the election observer. But our precedent doesn’t require that. See

1 Contrary to the majority’s holding, the Hospital raised the applicability of the 

waiver rule in its opening brief. Broadly, the Hospital argued that the Board’s waiver 

ruling was “arbitrary,” “capricious,” and “wrong on the facts and the law.” Pet’r Br. 

at 28. Specifically, the Hospital challenged whether the pre-election conference was 

the only venue to fully assert an election observer challenge. See id. (“The Board 

does not require a party to fully articulate the nature of its objection at the preelection conference.”) (simplified). Instead, the Hospital contendsthat it sufficiently 

preserved its claim by raising the election-observer issue in the pre-election 

statement of position (in lieu of the pre-election conference). Id. Accordingly, the 

Hospital is necessarily raising the applicability of the waiver rule imposed by the 

Board.
4

NLRB v. Valley Bakery, Inc., 1 F.3d 769, 770–72 (9th Cir. 1993) (holding employer’s 

offer of proof sufficient to trigger an investigation even though the name of the 

employee who threatened those who voted against the union was kept confidential).

Accordingly, I would hold that the Hospital was entitled to an evidentiary hearing 

on Objection 26. See Pinetree Transp. Co. v. NLRB, 686 F.2d 740, 745 (9th Cir. 

1982) (“[T]he right to a hearing attaches immediately once the objecting party 

supplies prima facie evidence presenting substantial material factual issues.”).

III.

I concur with the majority that the Hospital abandoned Objections 1, 3–4, 7, 

10, 12, 14, 17, 20–23, and 28, but I would find them waived because the Hospital 

failed to raise them in its opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 

(9th Cir. 1999). I would decline to reach the other objections at this time since an 

evidentiary hearing on Objection 26 could change the Board’s mind with respect to 

those objections. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (declining 

to reach alternative grounds for remand). For the foregoing reasons, I respectfully 

dissent from the denial of the petition for Objections 2, 5–6, 8–9, 11, 13, 15–16, 18–

19, 24–27, and 29.