SSC Mystic Operating Co. v. Nat'l Labor Relations Bd.

• Decision Date: 18 September 2015
• Docket Number: 14–1089.,Nos. 14–1045,s. 14–1045
• Citation: 801 F.3d 302
• Parties: SSC MYSTIC OPERATING COMPANY, LLC, doing business as Pendleton Health & Rehabilitation Center, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

801 F.3d 302

SSC MYSTIC OPERATING COMPANY, LLC, doing business as Pendleton Health & Rehabilitation Center, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 14–1045

14–1089.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 24, 2015.

Decided Sept. 18, 2015.

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.

Before: GRIFFITH and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge.

Opinion

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 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.

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. 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.

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.

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, ––– U.S. ––––, 133 S.Ct. 1863, 1870–71, –––L.Ed.2d –––– (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,...