SSC Mystic Operating Co., LLC v. National Labor Relations Board
419 U.S. App. D.C. 325
| D.C. Cir. | 2015Background
- SSC Mystic (nursing home) held a representation election after SEIU Local 1199 petitioned; Stipulated Election Agreement allowed Board review of Regional Director decisions.
- Supervisor Diane Mackin openly campaigned for the Union, was reprimanded, continued advocacy, and was fired 16 days before the election; Union won 64–40 of 104 votes cast.
- Mystic objected to the election on multiple grounds: (1) Mackin’s pro‑union supervisory misconduct tainted the election; (2) Mackin acted as an agent of the Union; (3) the Regional Director lacked authority to conduct the election because the NLRB lacked a quorum (relying on Noel Canning/Noel Canning-related arguments).
- At the representation hearing, Mystic subpoenaed Mackin–organizer phone records; the Hearing Officer declined to enforce the subpoena but ordered the organizer produced (the organizer was not produced and the subpoena was not pressed further).
- The Hearing Officer and then the NLRB certified the election; the Board later granted summary judgment in the ensuing unfair‑labor‑practice proceeding when Mystic refused to bargain. Mystic petitioned for review.
Issues
| Issue | Plaintiff's Argument (Mystic) | Defendant's Argument (NLRB/Board/Union) | Held |
|---|---|---|---|
| 1) Authority to conduct the election when Board lacks a quorum | Regional Director had no authority to administer the election because the Board lacked a three‑member quorum; prior appointments during the non‑quorum period invalid | Board: Regional Directors retain delegated authority to conduct (non‑final) elections despite temporary lack of a quorum; court should defer under Chevron | The court upheld the Board’s reasonable interpretation and rejected Mystic’s quorum challenge; Regional Director authority sustained (deference to Board) |
| 2) Whether Mackin’s pro‑union supervisory misconduct invalidated the election | Mackin’s coercive electioneering and alleged union‑agency status tainted the election and required setting it aside | Board/Hearing Officer: Mackin’s conduct did tend to coerce, but Mystic’s timely disavowal, public notice, firing of Mackin, and an extensive employer anti‑union campaign sufficiently mitigated effect; margin of victory large | Substantial evidence supports the Board: Mackin’s misconduct did not materially affect the outcome; election certified remains valid |
| 3) Subpoena enforcement for phone records (and prejudice) | Refusal to enforce subpoena of calls between Mackin and organizer prevented proof Mackin was a Union agent; prejudiced Mystic’s case | Board: Records would only show calls between known individuals and could not have changed the Board’s mitigation‑based outcome; Mystic failed to produce the organizer or press the subpoena at hearing | Court found no prejudicial abuse of discretion in refusing to enforce subpoena; even if records proved agency, outcome would not change |
Key Cases Cited
- NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) (Supreme Court decision on recess‑appointment limits relevant to Board composition arguments)
- UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015) (deferred to Board interpretation that Regional Directors retain delegated election authority absent final Board action)
- Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (earlier panel holding quorum requirement constrains delegees; discussed as circuit precedent)
- New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010) (Supreme Court’s analysis of §153(b) and quorum/delegation issues)
- Ozark Automotive Distributors, Inc. v. NLRB, 779 F.3d 576 (D.C. Cir. 2015) (refusal to enforce subpoena can be prejudicial when documents would materially aid employer’s case)
- Veritas Health Servs. v. NLRB, 671 F.3d 1267 (D.C. Cir. 2012) (Board’s mitigation analysis where supervisors later switched to anti‑union advocacy)
- Kiewit Power Constructors Co. v. NLRB, 652 F.3d 22 (D.C. Cir. 2011) (standard for substantial‑evidence review of Board factual findings)
- Joseph T. Ryerson & Son, Inc. v. NLRB, 216 F.3d 1146 (D.C. Cir. 2000) (standard: reversal of subpoena refusal only for prejudicial abuse of discretion)