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.