SSC Mystic Operating Co., LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 24, 2015 Decided September 18, 2015

No. 14-1045

SSC MYSTIC OPERATING COMPANY, LLC, DOING BUSINESS AS

PENDLETON HEALTH & REHABILITATION CENTER,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1089

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

J. Michael McGuire argued the cause and filed the briefs

for petitioner.

Kellie Isbell, Attorney, National Labor Relations Board,

argued the cause for respondent. On the brief were Richard F.

Griffin, Jr., General Counsel, John H. Ferguson, Associate

General Counsel, Linda Dreeben, Deputy Associate General

Counsel, Julie B. Broido, Supervisory Attorney, and Jared D.

Cantor, Attorney.

2

Before: GRIFFITH and SRINIVASAN, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Circuit Judge SRINIVASAN.

Dissenting opinion filed by Senior Circuit Judge

SENTELLE.

GRIFFITH, Circuit Judge:

After agreeing to a representation election in which the

union prevailed, employer SSC Mystic challenged the results.

For the reasons set forth below, we reject each of Mystic’s

arguments and affirm the decision of the National Labor

Relations Board upholding the outcome.

I

SSC Mystic (Mystic) operates Pendleton Health &

Rehabilitation, a nursing home in Mystic, Connecticut. On

February 25, 2013, the Service Employees International

Union, Local 1199 (Union), filed a petition with the National

Labor Relations Board (NLRB) seeking to represent nurses at

the facility. In response, the NLRB Regional Director issued a

Notice of Election. The Union and the company entered a

Stipulated Election Agreement that, among other things,

provided that either party could ask the Board to review any

decision the Regional Directors made. See 29 C.F.R.

§ 102.69(c).

Mystic vigorously opposed the Union. Its campaign

included posting anti-union material in the workplace and

sending the material by mail to employees’ homes. Mystic

3

also held meetings at work to make the case against the Union

to its employees, who were required to attend. It also

distributed anti-union bracelets for employees to wear.

Separately, a supervisor named Diane Mackin engaged in

a campaign of urging employees to sign Union authorization

cards and to vote for the Union in the election. She frequently

discussed the virtues of organizing. To those who opposed the

Union, Mackin would speak coldly or refuse to speak at all.

Mackin also claimed that the Union would help her get her

job back if Mystic fired her for her advocacy.

After an employee reported Mackin’s pro-union conduct

to management, the company reprimanded her on March 12,

2013. Mystic explained to Mackin that her conduct violated

her professional responsibilities as a supervisor and, more

seriously, might be illegal pressure on employees in violation

of the National Labor Relations Act (NLRA). Mystic warned

Mackin that she would be fired if she did not end her support

for the Union. Mystic then posted a notice in the workplace

acknowledging, without identifying Mackin by name, that a

supervisor had been involved in electioneering advocacy on

behalf of the Union. In an effort to limit any effect Mackin’s

conduct may have had on employees’ plans to vote, the notice

explained that neither the company nor its supervisors

intended to place pressure on employees. Despite all this,

Mackin continued to openly advocate for the Union in the

election and Mystic fired her on March 19, 2013.

The election continued for the next sixteen days. On April

4, 2013, the Union won the election. Of the 112 employees in

the bargaining unit, 104 voted in the election: 64 supported

the Union while 40 opposed.

4

Mystic filed objections to the election with the NLRB

arguing principally that Mackin’s conduct had tainted the

election so thoroughly that its result should be set aside.

Mystic also alleged that Mackin was acting as an agent of the

Union when she “polled” employees, or interrogated them

regarding their support for the Union in a way that could

coerce them and infringe on their free choice. Because

Mackin was allegedly acting as a Union agent, the company

argued that the Union should be held responsible for that

misconduct. 1 Finally, Mystic insisted, relying on our decision

in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), 2

that the NLRB lacked a quorum because three of its members

had been placed in their posts through unconstitutional recess

appointments and so had no authority to conduct the election

at all.

On May 8 and 9, 2013, an NLRB Hearing Officer held a

hearing to consider Mystic’s objections. A party to a

representation proceeding may apply for and receive a

subpoena for the production of any evidence. 29 C.F.R.

§ 102.31. Exercising that power, Mystic subpoenaed any

records of telephone calls between Mackin and the Union

organizer assigned to the election. The Union opposed this

subpoena. Mystic argued that it needed these records to prove

that Mackin was a Union agent when she coercively

interrogated employees regarding their support for the Union.

1

Mystic also originally claimed that Mackin had threatened the

job security of employees who did not support the Union and had

accused the company of criminal behavior. Mystic has abandoned

these arguments on appeal.

2

After Mystic filed its objections with the NLRB and after both

the Hearing Officer and the Board made their decisions, the

Supreme Court affirmed our judgment in Noel Canning but on

different grounds. See NLRB v. Noel Canning, 134 S. Ct. 2550

(2014).

5

The Hearing Officer refused to enforce the subpoena,

concluding that records could not prove that Mackin was

acting as the Union’s agent. Instead, the Hearing Officer

directed the Union to produce the organizer himself to testify

about his relationship with Mackin. The Union did not do so.

Neither the parties nor the Hearing Officer mentioned the

subpoena or the organizer again on the record.

At the close of the hearing, the Hearing Officer upheld the

election result, concluding that even though Mackin had

exerted impermissible pressure on employees, her misconduct

had not materially affected the outcome of the election. The

Hearing Officer also rejected Mystic’s argument that Mackin

was acting as a Union agent, reasoning that the company had

failed to present any evidence supporting its claim. Finally,

the Hearing Officer concluded that the Board should continue

conducting elections and adjudicating disputes until the

Supreme Court decided the legality of the Board’s

composition in Noel Canning.

Mystic filed objections to the Hearing Officer’s ruling

with the Board, arguing that the Hearing Officer’s findings

and conclusion were in error. Nonetheless the Board ratified

the Hearing Officer’s legal and factual determinations and

certified the election result. SSC Mystic Operating Co., No.

01-RC-098982, 2013 WL 6252453 (Dec. 3, 2013)

(unreported). The Board agreed with the Hearing Officer that

Mackin’s impermissible conduct had not affected the outcome

of the election, especially on the ground that Mackin’s

activities were offset when Mystic “engaged in an extensive

[anti-union] campaign that included a string of mandatory

meetings during the critical period, the dissemination of [anti-

union] literature via mailings, handouts, and postings, and the

distribution of [anti-union] bracelets.” Id. at *1 n.2.

6

Once the Board had certified the election result, the Union

asked Mystic to bargain, but the company refused.

Accordingly, the Union filed an unfair labor practice charge

against Mystic, alleging that its refusal to bargain violated the

NLRA. See 29 U.S.C. § 158(a)(1), (5) (prohibiting an

employer from refusing to bargain with representatives of its

employees or interfering with employees’ rights to organize).

The Board’s General Counsel issued a complaint and moved

for summary judgment. In response, Mystic argued that the

Hearing Officer erred in refusing to enforce Mystic’s

subpoena and should have held that Mackin’s conduct

impermissibly contaminated the election. For the first time,

Mystic also raised the argument that the Regional Director, as

opposed to the Board itself, had no power to conduct the

representation election because he could not exercise the

Board’s delegated authority when the Board had no quorum

and could not act itself.

The Board granted summary judgment against Mystic on

March 31, 2014. SSC Mystic Operating Co. LLC d/b/a

Pendleton Health & Rehab. Ctr., 360 N.L.R.B. No. 68 (2014).

The Board rejected Mystic’s arguments that the Hearing

Officer had made substantive and procedural errors, finding

that Mystic had not produced any arguments or evidence not

already made and rejected when the Board certified the

election result. The Board also rejected Mystic’s new

argument that the Regional Director lacked authority to

administer this representation election because the Board

lacked a quorum. The Board interpreted the statute to mean

that the Regional Directors “remain vested with the authority

to conduct elections,” pursuant to the Board’s original

delegation of that authority in 1961, “regardless of the

Board’s composition at any given moment.” Id. at *1 n.1.

7

Mystic filed a timely petition for review of the Board’s

order, and the Board cross-applied for enforcement. We have

jurisdiction under 29 U.S.C. § 160(e), (f).

On appeal, Mystic raises three challenges, each with its

own standard of review. First, Mystic argues that the Board

could not interpret the NLRA to permit Regional Directors to

continue conducting elections when the Board lacked

authority to act due to lack of a quorum. Absent plain

meaning to the contrary, a court is obliged to defer to an

agency’s reasonable interpretation of its statutory jurisdiction

pursuant to the familiar Chevron doctrine. City of Arlington v.

FCC, 133 S. Ct. 1863, 1870-71 (2013).

Second, Mystic argues that substantial evidence did not

support the Hearing Officer’s decision to certify the election

results. We review the substance of NLRB decisions under a

“highly deferential standard” and will set them aside only “if

the Board ‘acted arbitrarily or otherwise erred in applying

established law to the facts at issue, or if its findings are not

supported by substantial evidence.’” Waterbury Hotel Mgmt.,

LLC v. NLRB, 314 F.3d 645, 650 (D.C. Cir. 2003) (quoting

Plumbers & Pipe Fitters Local Union No. 32 v. NLRB, 50

F.3d 29, 32 (D.C. Cir. 1995)).

Finally, Mystic challenges the Hearing Officer’s refusal to

enforce its subpoena. We review refusals to enforce

subpoenas for abuse of discretion. Joseph T. Ryerson & Son,

Inc. v. NLRB, 216 F.3d 1146, 1153 (D.C. Cir. 2000).

II

A

8

Mystic insists that the Regional Director did not have

authority to conduct this election because the Board had no

quorum at the time the representation election took place. We

disagree; as we recently explained in UC Health v. NLRB, No.

14-1049, slip op. at 8-19 (D.C. Cir. 2015), we must defer to

the Board’s reasonable interpretation that the lack of a

quorum at the Board does not prevent Regional Directors

from continuing to exercise delegated authority that is not

final because it is subject to eventual review by the Board.

As an initial matter, the Board argues that Mystic waived

this argument by failing to raise it during the representation

proceeding. The Board made the same argument in UC

Health, and we rejected it there. We do so here for the same

reasons: Our precedents make clear that a challenge to agency

action based on the agency’s lack of authority to take any

action at all need not be raised below and may be made for

the first time on appeal. See UC Health, No. 14-1049, slip op.

at 6-7. 3 Nor do we agree with the Board that Mystic

abandoned this argument when it executed the Stipulated

Election Agreement. Id. at 7-8. Nonetheless, just as in UC

Health, we disagree with Mystic on the merits of its claim.

The Regional Director had authority to conduct this election

even though the Board had no quorum. See id. at 8-19.

3

We note that the employer in UC Health and in this case

raised their objections to the authority of the Regional Director at

different points in the administrative process. But these slight

factual differences between the cases are immaterial because, as we

explained in UC Health, our precedents make clear that an

employer can raise for the first time on appeal a challenge to the

authority of the Board to take any action at all, irrespective of

whether the employer ever made that objection below. See UC

Health, No. 14-1049, slip op. at 6-7.

9

Mystic makes one additional argument on this score that

we did not confront in UC Health. Mystic insists that

Regional Director Jonathan Kreisberg did not have authority

to conduct this election even if the Regional Directors as a

class could do so. In 2010, Kreisberg was appointed as the

Regional Director for Connecticut, which was at that time

Region 34 of the NLRB’s regions. In 2012, while the Board

lacked a quorum, the NLRB reorganized the regions and

Kreisberg’s jurisdiction expanded to cover both Connecticut

and Massachusetts, now identified as new Region 1. Mystic

insists that because the Board had no quorum in 2012, it could

not validly appoint Kreisberg to his new post as the Regional

Director of new Region 1 at that time.

The Board again argues that Mystic waived this argument

because it was never made until the opening brief in this

appeal. We disagree. Because this challenge and the argument

that Regional Directors may not conduct elections while the

Board lacks a quorum are both premised on the Board’s lack

of authority to act, we believe both are properly before us no

matter when they were first raised. Nonetheless we reject

Mystic’s argument on the merits here as well. Mystic’s

nursing home is located in Mystic, Connecticut, inside the

boundaries of old Region 34, which covered Connecticut

alone. Mystic does not and could not contest that Kreisberg

was validly appointed to administer old Region 34. There may

be some question whether the Board had authority in 2012 to

expand Kreisberg’s jurisdiction to include Massachusetts, but

that seems irrelevant to the question of whether he continued

to have authority to conduct elections in Connecticut as he

had since 2010. Surely adding Massachusetts to his

jurisdiction or renaming the region he administered did not

10

impair his preexisting authority. Therefore we believe that his

ability to conduct this election remains beyond dispute. 4

B

Mystic argues that Diane Mackin’s supervisory

misconduct tainted the outcome of the election. We find that

substantial evidence supports the Board’s conclusion to the

contrary.

1

Section 7 of the NLRA secures the rights of employees

“to form, join, or assist labor organizations, to bargain

collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose of

collective bargaining,” as well as to refrain from all such

activities. 29 U.S.C. § 157. To ensure that employees are fully

able to exercise their section 7 rights, the Board requires that

elections take place under “laboratory conditions” free from

coercion by the union or the employer. Harborside

Healthcare, Inc., 343 N.L.R.B. 906, 909 (2004). Neither

employers nor unions may “interfere with, restrain, or coerce

employees in the exercise” of their section 7 rights. 29 U.S.C.

4

Mystic made two other arguments attacking other potential

bases for Kreisberg’s authority: The Acting General Counsel,

despite an authorization to manage the Board’s internal

administrative affairs while it lacked a quorum, did not have

authority to appoint Kreisberg as Regional Director over new

Region 1 in 2012; and a nunc pro tunc order the Board issued in

2014 to approve retroactively the acts it took while it lacked a

quorum could not legitimately ratify Kreisberg’s control of new

Region 1. The Board has clarified that it does not rely on either of

these rationales to justify Kreisberg’s power to conduct this election

and so we need not consider Mystic’s arguments against them.

11

§ 158(a)(1), (b)(1)(A). Supervisors, defined as individuals

with authority to direct, reward, or punish employees, id.

§ 152(11), do not hold section 7 rights. To the contrary,

supervisors may not participate in or try to influence the

outcome of an election any more than an employer itself is

permitted to do so: “Election campaign statements by

supervisors which reasonably cause [pro-union] employees to

fear reprisal or to expect reward if they exercise their section

7 rights will ordinarily be attributed to the employer and

found objectionable.” Harborside, 343 N.L.R.B. at 906.

Of course, as a general matter, supervisors may be more

likely to urge employees to oppose union organization than to

support it because their interests are more aligned with those

of the employer than those of the employees who seek to

organize. However, pro-union supervisory conduct is just as

impermissible because it poses the same risk of interfering

with the free choice of employees. Harborside, 343 N.L.R.B.

at 906. In other words, the law always forbids a supervisor

from trying to influence the free choice of employees in

exercising their section 7 rights, regardless of what outcome

the supervisor is seeking to achieve. “This is true whether or

not the statements or actions of the supervisor are consistent

with the views of the employer.” Id. at 907. After all, the

average “employee is more concerned about the attitude of his

immediate supervisor[s] than he is with the feelings of the

company president,” as his immediate supervisors “control his

day to day life.” Id. at 907 n.3 (quoting Turner’s Express, Inc.

v. NLRB, 456 F.2d 289, 292-93 (4th Cir. 1972)).

In Harborside, the Board established a two-step inquiry to

determine “whether supervisory [pro-union] conduct upsets

the requisite laboratory conditions for a fair election” such

that the election result is invalid. 343 N.L.R.B. at 909. At the

first step, the Board asks “[w]hether the

12

supervisor’s . . . conduct reasonably tended to coerce or

interfere with the employees’ exercise of free choice in the

election.” Id. If so, the Board moves to the second step and

asks “[w]hether the conduct interfered with freedom of choice

to the extent that it materially affected the outcome of the

election.” Id. The effect of an individual episode of

supervisory misconduct depends on “factors such as (a) the

margin of victory in the election; (b) whether the conduct at

issue was widespread or isolated; (c) the timing of the

conduct; (d) the extent to which the conduct became known;

and (e) the lingering effect of the conduct.” Id. In other words,

even conduct that actually interferes with employee choice

will not invalidate the election result unless it actually

influenced the outcome. But if a supervisor’s pressure on

employees played a meaningful role in the union’s victory or

the union’s defeat, the Board will throw out the result and

order a new election.

The Board measures the effect of a supervisor’s

impermissible conduct by also taking into account any

“mitigating circumstances” that may have “sufficiently

negated” the coercive activities such that the election result

was not materially affected. Veritas Health Servs., Inc. v.

NLRB, 671 F.3d 1267, 1272 (D.C. Cir. 2012) (quoting SNE

Enters., Inc., 348 N.L.R.B. 1041, 1042 (2006)). For example,

the employer can mitigate a supervisor’s conduct if it “‘takes

timely and effective steps to disavow’ the conduct.” SNE

Enters., 348 N.L.R.B. at 1043 (quoting Harborside, 343

N.L.R.B. at 914). That is, if the employer publicly announces

that a supervisor lobbying on the union’s behalf is acting

against the employer’s wishes, the employer limits the risk

that employees will feel coerced. Employees will understand

that the supervisor is simply a rogue agent and does not have

the employer’s support.

13

Separately, the Board also determines whether any anti-

union effort by the employer itself had the effect of

counteracting a supervisor’s pro-union conduct. Harborside,

343 N.L.R.B. at 914. Of course, the NLRA forbids employer

anti-union campaigns just as surely as it forbids pro-union

lobbying by supervisors. However, the Board’s inquiry

focuses on the validity of the election as a whole, not simply

on whether inappropriate conduct took place during the

election period. An employer’s effort to defeat a union does

not violate the law if the union wins. More to the point, if the

employer works at cross-purposes to a supervisor’s pro-union

activity during an election, the employer may end up

neutralizing the supervisor’s wrongdoing and inadvertently

preserve the conditions necessary to reach a valid election

result.

The record is clear and both parties acknowledge that

Mackin’s pro-union conduct satisfies the first step of the

Harborside analysis. Nonetheless, at the second step of

Harborside, the Board reasonably determined that Mackin’s

efforts did not materially affect the election’s outcome

because Mystic adequately made up for them by disavowing

Mackin’s conduct and by running its own anti-union

campaign.

Substantial evidence supported this determination. Mystic

required employees to attend anti-union meetings, sent

materials to their homes, posted materials in the workplace,

and even distributed anti-union bracelets for employees to

wear at work as a way of showing their opposition to the

Union. Mystic’s campaign was much like another employer’s

efforts to defeat a union that the Board found neutralized pro-

union conduct by supervisors. In Terry Machine Co., 356

N.L.R.B. No. 120 (2011), supervisors who oversaw the

bargaining unit were “actively involved” in a union

14

organizing drive. Id. at *2. At the same time, the employer

“engaged in an extensive [anti-union] campaign,” including

mandatory company-wide meetings, individual meetings with

employees, anti-union videos, anti-union postings, home

mailings, and distribution of anti-union buttons to wear at

work. Id. at *3. The Board upheld the election result despite

the supervisors’ substantial pro-union conduct, concluding

that the employer’s own anti-union campaign had adequately

offset the supervisors’ efforts. Id. at *5. The Board here

reasonably concluded, just as it did in Terry Machine, that the

combination of tactics Mystic deployed in its extensive effort

to defeat the Union cancelled out Mackin’s own attempt to

help the Union prevail.

Mystic argues otherwise by attempting to minimize the

significance of each element of its own anti-union program. It

insists that few employees saw the anti-union materials,

attended the anti-union meetings, or understood the intent

behind the anti-union bracelets. None of these challenges to

the Board’s determination succeed. A number of employees

testified that they received Mystic’s anti-union materials

through the mail or saw them posted in the workplace, and

one even testified that she knew of other employees who had

discussed the materials during the election. Although some

employees testified that the anti-union meetings were sparsely

attended, there was also testimony that “a lot” of the staff

attended a meeting at one point or another. And while one

employee testified that she did not recognize Mystic’s anti-

union bracelet, a number of other employees testified that

they knew what the bracelets were for, wore bracelets

themselves, and saw others wearing them. We cannot say that

“no reasonable factfinder” could decide, as the Board did

here, that Mystic’s campaign was effective at neutralizing

Mackin’s pro-union advocacy. Kiewit Power Constructors

Co. v. NLRB, 652 F.3d 22, 25 (D.C. Cir. 2011) (quoting

15

United Steelworkers of Am., AFL-CIO-CLC, Local Union

14534 v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993)).

Substantial evidence also supported the conclusion that

Mystic limited the effect of Mackin’s conduct when it posted

a public notice that disavowed her pro-union behavior,

discussed the notice at mandatory employee meetings, and

ultimately fired her. See, e.g., Terry Machine, 356 N.L.R.B.

No. 120, at *3 (finding that an employer’s “explicit

disavowals” and “widely disseminated termination

threat . . . relieved any potential continuing pressure

employees might have felt” from pro-union supervisory

conduct). Mystic argues otherwise by suggesting that few

employees ever saw the notice, that most employees did not

attend the mandatory meetings and so would never have heard

it discussed, and that any employees who were aware that the

notice existed would not have realized it referred to Mackin

because it did not identify her by name. We think the Board

could reasonably reach the opposite conclusion on each count.

Five employees testified that they saw the notice, and we have

already noted that there was testimony indicating that “a lot”

of employees attended the mandatory anti-union meetings at

which the notice was discussed. One employee who saw the

notice indicated that she knew the notice applied to Mackin in

particular. Another testified that she understood the notice to

refer to all supervisors who may have been inappropriately

discussing the election—obviously including Mackin. Most

significantly, Mackin told a number of employees around the

time the notice was posted that Mystic had reprimanded her

for advocating on behalf of the Union. In one case, she told an

employee that the notice addressed her own behavior in

particular. The Board could reasonably rely on all this

evidence to conclude that employees knew of the notice and

understood that Mystic was disavowing Mackin’s conduct.

16

Even if employees somehow missed the existence or

significance of the notice, they could not have misunderstood

that Mystic was disavowing Mackin’s pro-union behavior

when it took the much more dramatic step of firing her.

Though some employees testified that they did not know why

Mackin was terminated, the Hearing Officer specifically

found, and the Board subsequently agreed, that this testimony

was not credible. See SSC Mystic, 2013 WL 6252453, at *1

n.2. Mystic has not challenged that credibility determination

on appeal. Thus the only credible testimony before us comes

from employees who said that they knew Mackin had been

fired because of her pro-Union efforts. Joint Appendix 152.

The Board was entitled to rely on this undisputed testimony to

reach the commonsense conclusion that employees knew

Mystic was conclusively disavowing Mackin’s conduct by

firing her. See SNE Enters., 348 N.L.R.B. at 1043 (noting that

an election result can be valid despite inappropriate pro-union

supervisory conduct where an employer “‘takes timely and

effective steps to disavow’ the conduct” (quoting Harborside,

343 N.L.R.B. at 913)).

We also agree with the Board that Mackin’s firing limited

the effect of her conduct despite the fact that she assured

employees that the Union would help her get her job back.

Mystic insists to the contrary that these assurances “blunted

the impact” of Mackin’s discharge by leading employees to

believe that she would return to the workplace and regain the

power to retaliate against the Union’s opponents. But the

opposite seems to be true. The record shows that several

different employees who were subject to Mackin’s pro-union

pressure ended up opposing the Union by the time of the

election, two weeks after Mackin was fired. Whatever the

immediate effect of Mackin’s campaign, employees who were

among its targets were unafraid to oppose the Union after her

discharge. And Mystic produced no evidence indicating that

17

employees she pressured to support the Union actually did so.

The Board was entitled to conclude from this that Mackin’s

firing had broken whatever hold she might have exercised

over employees.

In short, substantial evidence supports the Board’s

conclusion that Mystic’s efforts to limit Mackin’s

effectiveness and its own anti-union campaign cancelled out

Mackin’s efforts on the Union’s behalf and preserved the

environment necessary for a valid representation election.

The Hearing Officer also noted that a number of other

factors diminished the likelihood that Mackin influenced the

election result. For example, Mackin was the sole pro-union

organizer, naturally limiting the total amount of pressure that

could be brought to bear on the Union’s side of the ledger.

And the election was not a close one. The Union won by

sixty-four votes to forty, or almost one quarter of the entire

voting population, indicating that any influence Mackin might

have wielded over a few employees could not possibly have

altered the result. Nor did Mackin’s conduct “linger[],”

Harborside, 343 N.L.R.B. at 909, as any influence she might

have wielded at one time apparently dissipated before the end

of the election period. The Board was entitled to rely on all

these factors as part of its conclusion that Mackin’s campaign

did not materially alter the election outcome.

The Board was also entitled to conclude that the length of

the time between Mackin’s discharge and the election further

limited the impact Mackin’s efforts could have had on the

outcome. Mystic insists that this decision was forbidden in

light of Board decisions in which, it argues, the Board

invalidated an election despite even longer intervals between

the end of inappropriate supervisory conduct and an election.

But in each of the cases Mackin cites, supervisors either

18

continued to lobby for the union throughout the election

period, or the interval was immaterial because other factors

helped the supervisors’ influence linger. For example, in

several of the cases, supervisors continued to campaign for

the union “right up until the . . . election” took place. Madison

Square Garden CT, LLC, 350 N.L.R.B. 117, 122 (2007); see

also Millard Refrigerated Servs., Inc., 345 N.L.R.B. 1143,

1144 (2005); Harborside, 343 N.L.R.B. at 913-14. And in the

others, though the supervisors stopped campaigning before

the election, the employer never publicly disavowed the

supervisors’ conduct and the supervisors remained in the

workplace, allowing their pro-union pressure to linger. See

SNE Enters., 348 N.L.R.B. at 1044; Chinese Daily News, 344

N.L.R.B. 1071, 1072 (2005). This case is quite different.

Mystic forcefully disavowed Mackin’s conduct and fired her,

dispelling the influence she might otherwise have exercised.

No case forbids the Board’s conclusion on this score. Absent

such precedent, we cannot say the Board was wrong to decide

that the effects of Mackin’s conduct had at least in part

evaporated by the time the election took place, especially

when considered in conjunction with the other factors we

have already discussed that limited Mackin’s possible

influence on the election.

Mystic points to Veritas Health Services, arguing that

much more is required to neutralize the impact of a

supervisor’s pro-union activity than was present here. In

Veritas, supervisors who pressured employees on behalf of

the union ultimately switched sides and became fervent anti-

union advocates, speaking directly to employees in the

workplace and sending letters to most of the staff explaining

that they no longer supported unionization. Veritas, 671 F.3d

at 1273. This about-face, the Board found, neutralized the

supervisors’ previous pro-union conduct. Id. Mystic relies on

Veritas to argue that Mackin’s pro-union conduct was not

19

mitigated here because Mackin herself never disavowed her

past support for the Union. But Veritas does not suggest that

the only permissible form of mitigation is personal disavowal

by the supervisor. And the Board has elsewhere found that an

employer’s own anti-union campaign can cancel out

supervisory conduct like Mackin’s. See, e.g., Terry Machine,

356 N.L.R.B. No. 120, at *3, *5. The Board was entitled to do

the same here.

Finally, Mystic insists that the Board unfairly showed

more lenience toward Mackin’s pro-union conduct than it

would have shown had Mackin successfully urged employees

to vote against the Union instead. See Harborside, 343

N.L.R.B. at 906-07 (holding that both pro- and anti-union

coercion are equally impermissible). We need not engage

with the hypothetical circumstance Mystic would have us

imagine. Mystic has offered no support for its assertion that

the Board displayed bias. The Board ruled that Mystic’s anti-

union campaign made up for Mackin’s impermissible pro-

union conduct, just as it has found in the past. There is no

basis to criticize the Board’s conclusion regarding what

actually transpired here.

Mackin’s campaign to help the Union succeed was

inappropriate. However, a number of factors showed its

limited effectiveness: Mackin acted alone; she was dismissed

from the workplace well before the election took place; her

conduct apparently had little lingering effect; and the Union

prevailed by a substantial margin. By disavowing Mackin’s

pro-union advocacy and ultimately firing her, Mystic further

minimized her impact on the result of the election. And

Mystic’s own efforts to defeat the union provided a powerful

counterbalance to Mackin’s lobbying. Based on this record,

the Board was entitled to conclude that the election result

challenged here was valid.

20

C

Finally, Mystic argues that the Hearing Officer erred by

refusing to enforce Mystic’s subpoena of Mackin’s telephone

records, which the company claims would show that Mackin

was acting as the Union’s agent. Refusing to enforce this

subpoena did not prejudice Mystic. See Ryerson, 216 F.3d at

1154 (noting that we will only reverse the Board’s decision

not to enforce a subpoena “if prejudicial”). Even proving that

Mackin was a Union agent would not have altered the Board’s

determination that the election was valid. It is true that

coercively interrogating an employee is yet another way in

which employers and unions can violate the section 7 rights of

employees. See Millard Refrigerated Servs., 345 N.L.R.B. at

1146. But we have already found that substantial evidence

supports the Board’s determination that all of Mackin’s

inappropriate conduct was adequately offset by Mystic’s own

conduct with respect to Mackin in particular and the overall

election in general. The Board’s ultimate conclusion as to the

propriety of the election remains valid regardless of whether

Mackin was acting as an agent of the Union.

Mystic insists otherwise and points to our recent decision

in Ozark Automotive Distributors, Inc. v. NLRB, 779 F.3d 576

(D.C. Cir. 2015). There, an NLRB hearing officer had refused

an employer’s effort to subpoena documents it believed might

show that employees who had advocated on behalf of the

union during a representation election were union agents who

had played a large role in influencing the election. We found

that refusing to enforce the subpoena in that case was

prejudicial because obtaining the records would have given

the employer critical advantages that it otherwise lacked in

putting on its case. But those considerations are not present

here. The records would not have revealed any information

21

other than the existence of conversations between Mackin and

the Union organizer, two individuals already well known to

Mystic. The records could not have served as new evidence or

helped to identify new leads or witnesses. And because

Mystic failed to call either Mackin or the Union organizer to

testify, the records could not have helped impeach or examine

them. Id. at 585. Admittedly, the Hearing Officer directed the

Union to produce the organizer and the Union failed to do so.

But Mystic also failed to remind the Hearing Officer of her

instruction or to mention the organizer or the subpoena again

in any way. Mystic cannot complain that it was prejudiced

when it failed to call the only witness whose testimony might

have made the records relevant.

Mystic also argues that the Board’s decision in this case is

undermined by its decision in Voith Industrial Services, Inc.,

No. 09-CA-075496, 2012 WL 4169024 (Sept. 19, 2012). In

Voith, the Board found an abuse of discretion where a

Hearing Officer refused to enforce a subpoena for records

regarding the relationship between an employer and the union

that represented its employees because the records were at

least “potentially relevant.” Id. at *1. But here, regardless of

whether the records were relevant to the question of Mackin’s

status as a Union agent, they could not have altered the

Board’s decision that Mackin’s lobbying did not contaminate

the election result because it was offset by Mystic’s public

discipline of Mackin and Mystic’s own anti-union conduct.

Mystic was not prejudiced because these records simply could

not have changed the outcome. And absent any prejudice we

have no basis to reverse the Board with respect to the

subpoena. Ryerson, 216 F.3d at 1154.

22

III

For the foregoing reasons, we deny Mystic’s petition for

review and grant the NLRB’s cross-application for

enforcement of its order.

SRINIVASAN, Circuit Judge, concurring: I join the court’s

opinion, including its rejection of Mystic’s argument that the

Regional Director had no authority to conduct the

representation election given the absence of a Board quorum.

In rejecting that argument, our opinion relies on the

explanation set forth in UC Health v. NLRB, F.3d (D.C.

Cir. 2015), which rejected the same argument in an opinion

issued contemporaneously with ours in this case. I fully agree

with the conclusion of UC Health as described in our opinion

here: that we “must defer to the Board’s reasonable

interpretation that the lack of a quorum at the Board does not

prevent Regional Directors from continuing to exercise

delegated authority.” Ante at 8.

I write separately to note that, with regard to one aspect

of the explanation in UC Health for rejecting the Board-

quorum argument, I see things a bit differently. In both cases,

the employer argues that our prior decision in Laurel Baye

Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C.

Cir. 2009), precludes the Board from adopting the

interpretation of the quorum statute we now review. I agree

with the UC Health majority that Laurel Baye poses no bar to

the Board’s reaching that interpretation. My reasons for

reaching that conclusion, though, vary in some measure from

those of the UC Health majority.

I would rely on the approach set out in National Cable &

Telecommunications Ass’n v. Brand X Internet Services, 545

U.S. 967 (2005). In Brand X, the Supreme Court established

a rule for determining when a prior judicial interpretation of a

statute forecloses an agency from adopting a contrary reading.

The rule set forth in Brand X governs an agency’s freedom to

depart from a prior judicial interpretation regardless of

whether that interpretation was set out in a “pre-Chevron

judicial decision,” UC Health, slip op. at 7-8 (Silberman, J.,

dissenting), or instead in a post-Chevron judicial decision, as

was the case in Brand X itself. See 545 U.S. at 979-80. In

2

either situation, Brand X establishes that an agency remains

free to construe a statute it administers in a manner at odds

with the prior judicial interpretation unless the court’s

decision purported to define the “only permissible reading” of

the statute, id. at 984—“the same demanding Chevron step

one standard that applies if the court is reviewing the agency’s

construction on a blank slate,” id. at 982. If the court instead

articulated only the “best reading” of the statute, the agency

retains discretion to implement a contrary interpretation. Id. I

believe Laurel Baye is best read to have done the latter.

As a result, while the UC Health majority and dissent

disagree over whether Laurel Baye’s statutory holding

governs delegations of the Board’s authority to Regional

Directors (as the dissent contends) or instead pertains only to

delegations to Board sub-groups (as the majority holds), see

29 U.S.C. §153(b), I view that question to be beside the point.

Laurel Baye’s holding, regardless of whether it reaches

delegations to Regional Directors, does not purport to adopt

the only permissible reading (as opposed to merely the best

reading) of the statute. Brand X therefore left the Board room

to adopt a contrary reading, which the Board has now done.

Of course, there would be no dispute about how best to

understand Laurel Baye if our court had occasion in that case

expressly to apply Chevron’s two-step framework. Had we

had occasion to do so, and had we resolved the interpretive

question at Chevron step one, we would have confirmed that

our interpretation was the “only permissible” one. See Brand

X, 545 U.S. at 982-83. But Laurel Baye contains no mention

of Chevron, much less any express application of its two-step

test. That is presumably because the Board did not seek

Chevron deference in Laurel Baye. And insofar as the

applicability of Chevron presents no issue of jurisdiction, see

Lubow v. Dep’t of State, 783 F.3d 877, 884 (D.C. Cir. 2015),

3

we had no obligation to walk through the Chevron framework

in our opinion in the absence of a request by the Board to do

so. I assume the Laurel Baye court made no express reference

to Chevron for that reason.

In saying so, I am in no way “essentially accus[ing] the

Laurel Baye panel of disregarding governing law applying to

judicial review of agency statutory interpretations,” i.e.,

Chevron deference. UC Health, slip. op. at 7 (Silberman, J.,

dissenting). The point here is not that the Laurel Baye court

shirked any requirement to apply the Chevron framework.

The point instead is that, because the Board did not claim any

entitlement to Chevron deference, the Laurel Baye court

presumably felt it had no obligation expressly to march

through Chevron’s two steps in its opinion. Regardless of

whether, by failing to argue any entitlement to it, an agency

can forfeit a claim to Chevron deference, it is fully

understandable why the Laurel Baye opinion makes no effort

expressly to apply Chevron’s two-step test. Why walk

through Chevron’s two-step deference framework in the

opinion if the Board made no claim of entitlement to Chevron

deference in the first place?

This is all a fairly roundabout way of making what I see

as the ultimate point for purposes of determining whether the

Board retained freedom under Brand X to disagree with the

Laurel Baye court’s interpretation: because Laurel Baye did

not explicitly invoke the Chevron framework

(understandably, given that the court was not asked to), we

simply do not know from the Laurel Baye decision whether

its rejection of the Board’s interpretation fell at Chevron step

one. Judge Silberman, in his dissent in UC Health, posits

that, even though Laurel Baye does not say a word about

Chevron, its rejection of the Board’s interpretation must have

been at Chevron step one. He suggests that, in the era of

4

Chevron, a reviewing court can never adopt merely a “best

reading” of a statute when—as in Laurel Baye—the court is

faced with a contrary agency interpretation. Id. at 7-9.

I disagree. For instance, what if an agency’s

interpretation is ineligible for Chevron treatment because it

was issued without the requisite procedures? See United

States v. Mead Corp., 533 U.S. 218, 231-32 (2001). In that

event, a reviewing court surely can reject the agency’s

interpretation in favor of the court’s “best reading” without

necessarily having to decide whether the “best reading” is

also the “only permissible” one (or without remanding to the

agency). See Christensen v. Harris Cty., 529 U.S. 576, 586-

87 (2000); Miller v. Clinton, 687 F.3d 1332, 1342, 1352 (D.C.

Cir. 2012). As we have said in such a situation, “[w]ith

Chevron inapplicable,” we “must decide for ourselves the best

reading.” Miller, 687 F.3d at 1342 (internal quotation marks

omitted); see id. at 1352. If the court then were to reach a

“best reading” contrary to the agency’s interpretation, the

agency, as Brand X makes clear, could later disagree and

issue a new interpretation (which, if adopted pursuant to the

requisite procedures, would be entitled to Chevron deference).

See Richard J. Pierce, Jr., 1 Administrative Law Treatise §3.5,

at 182 (5th ed. 2010). In short, there certainly can be

situations in which a reviewing court rejects an agency’s

interpretation in favor of the “best reading” (rather than in

favor of the “only permissible reading”), in which case the

agency would retain leeway under Brand X to disagree.

So where does that leave us here? The question is

whether, notwithstanding the Laurel Baye court’s

understandable decision to refrain from expressly invoking

Chevron’s two-step framework, we somehow know that the

court in fact rejected the Board’s interpretation as a step one

“only permissible reading” resolution. We do not. Even

5

assuming, arguendo, that the Laurel Baye court was required

to entertain Chevron at all despite the Board’s failure to claim

any entitlement to Chevron deference (and assuming that the

Laurel Baye court believed it was required to do so), we do

not know why the court declined to give effect to the agency’s

interpretation.

As Judge Silberman suggests, it might have been based

on a conclusion that the Board, rather than arriving at an

interpretation as a matter of discretion, simply believed its

reading to be compelled by the statute (in which case, for the

reasons he argues, the absence of a remand would tend to

indicate a step one resolution). UC Health, slip op. at 6, 8

(Silberman, J., dissenting). But perhaps the court instead

believed that the Board, as the petitioning company argued,

lacked Chevron authority to construe this particular statute in

the first place because it “presents a question of power or

jurisdiction[.]” Brief for Petitioner at 10, Laurel Baye

Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C.

Cir. Nos. 08-1162(L), 08-1214). That argument could have

had more purchase before the Supreme Court’s decision in

City of Arlington v. FCC, 133 S. Ct. 1863 (2013), when this

court had held that “the existence of ambiguity is not enough

per se to warrant deference to the agency’s interpretation”

because the agency may lack delegated authority “to make a

deference-worthy interpretation of the statute” at issue. Am.

Bar Ass'n v. FTC, 430 F.3d 457, 468-69 (D.C. Cir. 2005); see

Motion Picture Ass'n of Am., Inc. v. FCC, 309 F.3d 796, 801

(D.C. Cir. 2002); see also Nathan Alexander & Jonathan H.

Adler, The Rest Is Silence: Chevron Deference, Agency

Jurisdiction, and Statutory Silences, 2009 U. Ill. L. Rev.

1497, 1499-1500 (2009) (describing Am. Bar Ass’n as a

decision about “agency jurisdictional determinations”). After

all, the Board in its brief raised no objection to that argument

by the company. If the Laurel Baye court thought Chevron

6

might be inapplicable for that reason, the court would have

been free to reject the agency’s interpretation based on a “best

reading.” The bottom line is that we cannot be certain from

the Laurel Baye opinion that the court issued the equivalent of

a Chevron step one “only permissible reading.”

While the Laurel Baye court understandably did not

expressly work through Chevron’s two-step framework given

the absence of any request by the Board to do so, there is

another way in which the Laurel Baye court could have

removed any doubt about whether it considered its rejection

of the Board’s interpretation to rest on the “only permissible

reading” of the statute. Brand X, 545 U.S. at 984. The court

could have said so. Laurel Baye came after Brand X. And

post-Brand X, we issue decisions in awareness of the

interpretive backdrop against which our opinions construe

statutes administered by an agency. Following Brand X’s

roadmap, a court could preclude an agency’s adoption of a

contrary interpretation by saying expressly that the court’s

holding rests on the “only permissible reading” of the statute,

id., or by explicitly “hold[ing] that the statute unambiguously

requires the court’s construction,” id. at 985. In the absence

of any definitive formulation of that variety, we are in the

position of having to parse a prior opinion’s language to

divine whether it expressed with adequate clarity the

equivalent of a Chevron step one holding—i.e., an “only

permissible reading” resolution.

I do not read Laurel Baye to have done so. The opinion

stops short of concluding that the statutory terms

accommodate only one permissible interpretation concerning

whether a Board delegee can continue to act if the Board

ceases to maintain a three-member quorum. To be sure, the

opinion necessarily holds that such a reading at least presents

the best interpretation of the statute. But we did not go

7

further to—and we had no necessary occasion to—decide that

the best reading also was the only permissible one. To the

contrary, we said that “the case before us presents a close

question,” and that the Board’s interpretation was not

“entirely indefensible” (which is essentially to say, it was

“defensible”). Laurel Baye, 564 F.3d at 476 (emphasis

added). Those words suggest something considerably less

than a definitive, Chevron step one interpretation.

Of course, we also did not go so far as to say that a

contrary reading necessarily would be reasonable. One can

certainly locate language in the opinion that might have been

used in service of an “only permissible reading” resolution.

E.g., id. at 473 (noting that, because “[t]he statute confers no

authority on” the delegee and “[t]he only authority by which

the [delegee] can act is that of the Board,” if “the Board has

no authority, it follows that the [delegee] has none”). But

when read in the context of an opinion that considered the

question to be “close” and a contrary reading to be

somewhere in the neighborhood of a “defensible” one, the

cited language is no less consistent with a “best reading”

holding than with an “only permissible reading” holding.

And while Laurel Baye at times invokes terms such as

“unequivocal[]” and “clearly” in discussing the statute, it does

so only in making the predicate point that—as the plain terms

of the statute themselves specify—the Board must “at all

times” satisfy a three-member quorum requirement. Id.

(quoting 29 U.S.C. § 153(b)). In my reading, we did not use

those sorts of definitive terms in resolving the subsequent

question ultimately at issue: whether a delegee appointed by

a properly constituted Board can itself continue to act in the

event the Board later slips below three members. As to the

latter question, I understand our opinion to have reached a

“best reading,” not an “only permissible reading.”

8

The cited language and other such passages, at most,

would render it fairly debatable whether Laurel Baye intended

to adopt the equivalent of a Chevron step one holding. I

would not strain to find a step one resolution in an opinion

amenable to a contrary understanding. If anything, I would

err on the side of construing a decision to have reached a

“best reading” (rather than an “only permissible reading”)

resolution.

Mistakenly understanding a prior decision to have

adopted a step one interpretation would have significant

consequences. In that event, we would erroneously freeze in

place our “best reading” of a statute even though Congress,

according to the basic assumptions underlying Chevron,

would have intended to delegate to an agency primary

authority to construe the statute as it sees fit within the scope

of its delegation. The result would be one Brand X

specifically sought to avoid: “‘ossification of large portions

of our statutory law,’ by precluding agencies from revising

unwise judicial constructions of ambiguous statutes.” 545

U.S. at 983 (quoting Mead, 533 U.S. at 247 (Scalia, J.,

dissenting)).

Now suppose, conversely, that we instead err in favor of

perceiving a “best reading” resolution in a prior opinion that

in fact intended to go further and establish the “only

permissible reading” of a statute (and thus to preclude an

agency from adopting a contrary interpretation). In that

event, the error would have become salient only because the

agency later elected to implement a reading of the statute

contrary to our prior interpretation. And the error would be

short-lived: Our court (or the Supreme Court), in the process

of judicial review, would have the final word on whether the

agency’s reading could be squared with the statute. Our

9

review of the Board’s interpretation in this case (and in UC

Health) perfectly illustrates the point.

For those reasons, I read Laurel Baye to have decided the

best reading of the Board quorum statute, not the only

permissible reading, leaving the Board free under Brand X to

adopt a contrary interpretation. The Board has done so, and

here (and in UC Health)—unlike in Laurel Baye—seeks

Chevron deference for its interpretation. For the reasons

explained by the UC Health majority, I believe the Board is

entitled to that deference.

SENTELLE , Senior Circuit Judge, dissenting: Relying on

UC Health v. NLRB, __ F.3d __ (D.C. Cir. 2015), the majority

concludes that a regional director has the authority to conduct

an election even if the Board lacks a quorum. I disagree and

would instead set aside the election because the regional

director’s authority to act “ceased the moment the Board’s

membership dropped below its quorum requirement of three

members.” Laurel Baye Healthcare of Lake Lanier, Inc. v.

NLRB, 564 F.3d 469, 473 (D.C. Cir. 2009).

Section 153(b) contains four provisions: (1) the

delegation clause; (2) the vacancy clause; (3) the Board

quorum requirement; and (4) the group quorum provision.

New Process Steel, L.P. v. NLRB, 560 U.S. 674, 680 (2010)

(summarizing 29 U.S.C. § 153(b)). In Laurel Baye, we held

that the third provision, the quorum requirement, “clearly

requires that a quorum of the Board is, ‘at all times,’ three

members.” 564 F.3d at 473. The phrase “at all times,” we

explained, is “unambiguous” and “denotes that there is no

instance in which this Board quorum requirement may be

disregarded.” Id.; see also id. (“Congress provided

unequivocally that a quorum of the Board is three members,

and that this requirement must be met at all times.”). Simply

put, we held that “the Board cannot by delegating its authority

circumvent the statutory Board quorum requirement, because

this requirement must always be satisfied.” Id.

The majority in UC Health purports to create an

exception for regional directors. I reject UC Health’s analysis

for the same reason the Supreme Court rejected the Board’s

rationale in New Process Steel: it “dramatically undercuts the

significance of the Board quorum requirement by allowing its

permanent circumvention.” 560 U.S. at 681. Even though

New Process Steel did not rely on our discussion of agency,

see id. at 684 n.4 (“our decision does not address” that

“separate question”), neither did the Supreme Court overrule

2

our decision in Laurel Baye. We remain bound by it as circuit

law.

I see little point in rehashing the debate between Judge

Silberman in the companion case and Judge Srinivasan in this

one over the absence of a Chevron discussion in Laurel Baye.

I do think it worth at least passing mention that in the

Supreme Court decision which ultimately construed the same

statute as Laurel Baye, New Process Steel, L.P. v. NLRB, 560

U.S. 674 (2010), neither the majority nor the dissent makes

any reference to Chevron. Neither, apparently, did the

government, since all references to the government argument

in New Process Steel deal with interpretation of the statute per

se, rather than an analysis of the NLRB’s administrative

conduct. For example, at 680, the Court states, “One

interpretation, put forward by the Government, would read the

clause to require only that a delegee group contain three

members at the precise time the Board delegates its powers

.…” In analyzing the government’s position, the Court stated,

“Hence, while the Government’s reading of the delegation

clause is textually permissible in a narrow sense, it is

structurally implausible, as it would render two of § 3(b)’s

provisions functionally void.” Id. at 681. For what it’s worth,

the Seventh Circuit in the decision reviewed by the Supreme

Court in New Process Steel also made no reference to

Chevron. See New Process Steel, L.P. v. NLRB, 564 F.3d 840

(7th Cir. 2009). That said, the fact that the Laurel Baye court

did not discuss a government position that the government did

not raise seems to me to be of little consequence.

Because Laurel Baye concluded that § 153(b)’s quorum

requirement provision unambiguously requires the Board to

have a quorum for a delegee to exercise its authority, National

Cable & Telecommunications Association v. Brand X Internet

Services, 545 U.S. 967 (2005), does not apply. And, for the

3

reasons discussed by Judge Silberman, we may not apply

Chevron deference to the Board’s interpretation of § 153(b).

See UC Health, Slip op. at 5–6 (Silberman, J., dissenting).

Even if Chevron deference applied, the Board’s interpretation

of § 153(b) is unreasonable under step two. See id. at 5.

I respectfully dissent.