Alois Box Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 14, 2000 Decided June 27, 2000

No. 99-1340

Alois Box Co., Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application for

Enforcement of an Order of the

National Labor Relations Board

Edward B. Miller argued the cause and filed the briefs for

petitioner.

David A. Fleischer, Senior Attorney, National Labor Rela-

tions Board, argued the cause for respondent. With him on

the brief were Leonard R. Page, General Counsel, Linda R.

Sher, Associate General Counsel, and Aileen A. Armstrong,

Deputy Associate General Counsel. Frederick Havard, Super-

visory Attorney, entered an appearance.

Before: Ginsburg, Henderson and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Concurring opinion filed by Circuit Judge Henderson.

Rogers, Circuit Judge: The Alois Box Company petitions

the court for review of a National Labor Relations Board

order finding that the company violated ss 8(a)(1) and (5) of

the National Labor Relations Act, see 29 U.S.C. s 158(a)(1),

(5) (1994), for refusing to bargain with Graphic Communica-

tions Union Local 415-S, AFL-CIO at the company's factory

in Illinois. The company does not deny that it refused to

bargain but contends that the union was never properly

certified because three ballots were improperly excluded from

the election tally. In addition, the company contends that the

Board's grant of summary judgment was inappropriate, and

contrary to Board Rule 102.24, because the company's re-

sponse to the rule to show cause indicated that a genuine

issue for hearing may exist. Because there is substantial

evidence to support the Board's finding with regard to one of

the three invalidated ballots and the company forfeited its

right to challenge the Board's disposition of a second ballot,

even if the Board's finding with regard to the third ballot is

unsupported by substantial evidence, the result of the election

would not change. Accordingly, because there are no legally

significant factual issues as would preclude summary judg-

ment, we deny the petition and grant the Board's cross-

application for enforcement.

I.

On November 12, 1997, a representation election was con-

ducted by the Board in which ballots were to be cast by

members of the bargaining unit, defined as "[a]ll full-time and

regular part-time production, maintenance and shipping em-

ployees employed by the Employer at its facility ... but

excluding all other employees, office clericals, guards and

supervisors as defined by the Act." The initial tally of the 33

opened ballots was 19 in favor of the union, 14 opposed to the

union. Aside from the 33 opened ballots, seven unopened

ballots were challenged by the union on the ground that they

were cast by employees who were ineligible to vote in the

representation election.

A hearing officer, considering six of the seven challenged

ballots,1 found in favor of the union with respect to four of the

six ballots--those cast by Jeff Miller, Manuel Garcia, Julius

Rimdzuis, and Mato Brasic--on the grounds that Miller and

Garcia are supervisors, that Rimdzuis lacks a community of

interest with the bargaining unit, and that Brasic receives

special privileges as the brother of the plant manager. The

company filed exceptions to the hearing officer's recommen-

dations, and the Board reversed as to Garcia, but otherwise

affirmed the hearing officer's recommendations. As a result,

four of the seven challenged ballots were determined to be

ineligible. With the four ineligible ballots, the total number

of valid ballots was reduced from 40 to 36, with 19 valid and

counted for the union, 14 valid and counted against the union,

and three--Garcia and the two employees the union chal-

lenged unsuccessfully before the hearing officer--uncounted.

Because the three unopened ballots would not be determina-

tive of the result of the election, the Board declined to order

them opened and counted, and issued a certification of repre-

sentation to the union. See Alois Box Co., Inc., 326 N.L.R.B.

No. 110 (1998) (with one member dissenting on the finding

that Miller was a supervisor and another member dissenting

on the finding that Rimdzuis was ineligible to vote).

Seven months later, the union filed an unfair labor practice

charge alleging that the company had refused to bargain

collectively with the union. In its answer, the company

admitted its refusal to bargain in order to challenge the

certification, alleging that the union was not the representa-

tive of a majority of employees in the bargaining unit. The

company asserted that facts would be introduced at a hearing

to show that Miller was not a supervisor because in making

__________

1 The parties stipulated that one of the seven challenged ballots

was filed by an ineligible former employee.

work assignments he did not exercise independent judgment,

as clarified by recent Board and court precedent, and that

Rimdzuis was a regular part-time employee who shared a

community of interest with the unit employees. The Board's

General Counsel moved for summary judgment on the

grounds that the company sought to relitigate eligibility

determinations that were "exhaustively" examined in the

representation case, and that the company's "technical refusal

to bargain" was sufficient to find that the company had

violated ss 8(a)(1) and (5) of the Act, under Skandia Foods,

Inc., 301 N.L.R.B. No. 35 (1991).

In response to the notice to show cause why summary

judgment should not be granted, the company argued that

the Board had erroneously adopted the hearing officer's bare-

bones conclusion that Miller was a supervisor based on work

assignments that were never identified and independent judg-

ment that was never described, and that more recent cases

demonstrated the findings were insufficient to show supervi-

sory status.2 With regard to Rimdzuis, the company argued

the Board's error was clear from Time Warner Cable v.

NLRB, 160 F.3d 1 (D.C. Cir. 1998). The company also

argued that Board Rule s 102.24 did not require it to set

forth precise facts through affidavits or exhibits in order to

defeat a motion for summary judgment, as long as it was

clear from the face of the answer that a genuine issue of fact

exists. The Board granted summary judgment, ruling that

all representation issues were or could have been litigated in

the prior representation proceeding, and noting that the

company neither offered to present at a hearing any newly

discovered and previously unavailable evidence nor alleged

any special circumstances requiring the Board to reexamine

its earlier decision. See Alois Box Co., 328 N.L.R.B. No. 134

(1999).

__________

2 The company relied on Custom Mattress Manufacturing, Inc.,

327 N.L.R.B. No. 30 (1998); Ryder Truck Rental, Inc., 326

N.L.R.B. No. 149 (1998); Board of Social Ministry, 327 N.L.R.B.

No. 57 (1998), as well as VIP Health Services, Inc. v. NLRB, 164

F.3d 644 (D.C. Cir. 1999), and Cooper/T. Smith, Inc. v. NLRB, 177

F.3d 1259 (11th Cir. 1999).

II.

In petitioning for review of the Board's certification of the

union as the exclusive bargaining representative of all "full

time and regular part-time production, maintenance and ship-

ping employees," the company's contentions that the Board

erred in disqualifying three ballots hinge largely on its inter-

pretation of the evidence in the light most favorable to it, and

with regard to Miller, on its reading of Board and court

precedent regarding supervisors. If the Board is affirmed

with regard to at least two of the three unopened ballots at

issue here (Miller, Rindzuis, and Brasic), the outcome of the

election remains unchanged regardless of whether the re-

maining unopened ballots were voted against the union. The

Board's factual findings are entitled to be affirmed if sup-

ported by substantial evidence on the record as a whole, see

Passaic Daily News v. NLRB, 736 F.2d 1543, 1550 (D.C. Cir.

1984), and with regard to the determination of supervisory

status, given the large measure of informed discretion in-

volved and the Board's corresponding expertise in this area,

the substantial evidence test "takes on special significance."

Oil, Chemical & Atomic Workers Int'l Union v. NLRB, 445

F.2d 237, 241 (D.C. Cir. 1977).

We address first, the company's challenge to the Board's

determination that Miller was a supervisor; second, the com-

pany's challenge to the Board's finding that Rimdzuis lacked

community of interest with members of the bargaining unit;

and third, the company's attempt to challenge the Board's

determination that Brasic received special work-related bene-

fits as a result of being the brother of the plant manager.

A.

The company maintains that there is not substantial evi-

dence to support the Board's determination that Jeff Miller

was a supervisor and, thus, was ineligible to vote in the

representation election. Describing Miller as a "maintenance

man," the company maintains that he is nothing more than a

non-supervisory employee of the unit. The company points

to the evidence that Miller was stripped of his supervisory

status in 1995 due to unsatisfactory performance, that he

accepted a non-supervisory position instead, that he eats his

lunch in the maintenance area, that he punches a time clock,

and that his main area of operation is in the maintenance

shop and out on the floor fixing machines. Although ac-

knowledging that Miller "has been assigned the job of report-

ing early in the morning and handing out some work orders

which Brasic, the Plant Manager, has assigned for that day,"

the company contends that Miller exercised no independent

judgment in carrying out such tasks and that absent such

evidence he cannot be a supervisor. Yet there was evidence

that Miller independently assigns work to employees, changes

the plant manager's assignments, instructs employees to

cease work, and has been held out by the company as a

supervisor even after he was officially stripped of supervisory

authority in 1995, causing some employees to regard Miller as

having supervisory authority. Moreover, the company's fail-

ure to call Miller as a witness, and its failure to explain its

decision, warrants the inference that his testimony would

have been unfavorable to the company. See Cadbury Bever-

ages, Inc. v. NLRB, 160 F.3d 24, 29 (D.C. Cir. 1998); UAW v.

NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972). Given the

evidence to support the Board's determination that Miller is a

supervisor, the underlying issue is whether, as the company

contends, recent Board and judicial precedent require that

more be shown.

Consistent with the definition of "supervisor" in the Act,3 a

key consideration to the determination of supervisory status

is whether the employee exercises "independent judgment" in

assigning work or performing other tasks set forth in the

__________

3 Section 2(11) of the Act defines a "supervisor" as:

any individual having authority, in the interest of the employer,

to hire, transfer, suspend, lay off, recall, promote, discharge,

assign, reward, or discipline other employees, or responsibly to

direct them, ... if ... the exercise of such authority is not of a

merely routine ... nature, but requires the use of independent

judgment.

29 U.S.C. s 152(11).

definition. See, e.g., Micro Pacific Dev. Inc., v. NLRB, 178

F.3d 1325, 1330-31 (D.C. Cir. 1999). Necessarily an ambigu-

ous term in contrast to authority of a "routine or clerical

nature," the Board is to be given room to apply the term

"independent judgment." VIP Health Servs., Inc. v. NLRB,

164 F.3d 644, 647 (D.C. Cir. 1999). But in concluding an

employee exercises such judgment the Board must be able to

answer three questions in the affirmative: (1) does the em-

ployee have authority to engage in one of the twelve listed

activities; (2) does the exercise of that authority require the

use of independent judgment; and (3) does the employee hold

the authority in the interests of the employer. See NLRB v.

Health Care & Retirement Corp., 511 U.S. 571, 573-74 (1994).

With these considerations in mind, however, the court in

Beverly Enter.-Massachusetts, Inc. v. NLRB, 165 F.3d 960,

962 (D.C. Cir. 1999), cautioned that "the Board must guard

against construing supervisory status too broadly to avoid

unnecessarily stripping workers of their organizational

rights." Id. at 962. Noting that in construing s 2(11) of the

Act, the Board has ruled that it is the possession of superviso-

ry authority and not its exercise that is critical, see id., the

court rejected the notion that mere job titles or manage-

ment's desires could be determinative, and required in the

absence of the exercise of supervisory authority that there be

tangible examples demonstrating the existence of such au-

thority. See id. at 962-63.

Notwithstanding the evidence of Miller's exercise of super-

visory authority with regard to other unit employees in the

company's interest that plant operations be maintained

throughout the workday, the company maintains that recent

precedent makes clear that facts of the kind relied on by the

Board are inadequate to establish supervisory status. The

company points to the Board's decision in Custom Mattress

Manufacturing, Inc., 327 NLRB No. 30 (1998), ruling that

supervisory status had not been shown where the employee

worked side by side with other employees and was responsi-

ble for ensuring that work was performed according to a

schedule prepared by the plant manager and even tested job

applicants and received extra pay for his services. The

company considers Ryder Truck Rental, Inc., 326 NLRB No.

149 (1998), to offer an even closer parallel to Miller's situa-

tion, for in Ryder the employee followed plant management's

job assignments unless presented with an unanticipated job,

in which event he selected another employee to do the job

based on management's assessment of that employee's skills,

and the Board stated that "[a]ssignment of work by area of

expertise does not involve the exercise of independent judg-

ment when carried out according to the instructions of man-

agement." Id. The company maintains as well, citing Byers

Engineering Corp., 324 NLRB 740, 741 (1997), that previous

Board precedent indicated that "independent judgment" in

the context of assigning work requires more than merely

equalizing employees' work.

But these and other cases relied on by the company are

easily distinguishable, and do not reflect a stricter standard

than the one the Board applied here. For example, in

Custom Mattress, there was no finding that the employee

could deviate from the work assignment schedule or that, as

here, the management's schedule only covered a part of the

day. In Ryder Truck and Byers, the employee did not make

his own assessments of employees' skills or expertise but

followed management's evaluations, in contrast with Miller's

situation where there is no evidence he simply followed

management's instructions. The machinery in Miller's unit

was complicated and, as the company acknowledges in its

briefs, not all of the unit employees knew how to operate all

of the machines, thus requiring Miller to evaluate employee

skills in making assignments. See Cooper/T. Smith, Inc. v.

NLRB, 177 F.3d 1259 (11th Cir. 1999) (citing Exxon Pipeline

Co. v. NLRB, 596 F.2d 704 (5th Cir. 1979)). In Board of

Social Ministry, 327 N.L.R.B. No. 57 (1998), other non-

supervisory employees at the company did not have the same

authority over the employees as Miller did when he moved

employees from one machine to another on a daily basis.

Similarly, in VIP Health Services, Inc., 164 F.3d at 649, the

employees carried out plans formulated primarily by others,

and did what was routine because it required only common

sense to know what needed to be done, a different situation

from assigning employees to work on complicated machines.

So, too, in Mississippi Power & Light Co., 328 NLRB No.

146, 1999 WL 551405 (N.L.R.B. July 26, 1999), the Board

relied on evidence, unlike that in Miller's case, that the

employees followed specific instructions or procedures that

management had designed and had to check with higher

authority before performing planned work. See id. at *4-5.

Contrary to the company's contention, cases such as

Cooper/T. Smith, and NLRB v. Hilliard Development Corp.,

187 F.3d 133 (1st Cir. 1999), do not indicate that the Board is

now applying a stricter standard, but simply reflect differ-

ences in the record evidence. In Cooper, the employee's

decision about the number of tug boats needed to perform a

job was based on a schedule set by management, and there

was no evidence that the employee selected other employees

to do the job based on an independent evaluation about the

individual employees' skills. See Cooper, 177 F.3d at 1265.

In Hilliard, there was evidence that the assignment of work

rarely changed, any assignment power was largely circum-

scribed, and in that context the matching of skills to require-

ments was essentially routine. See Hilliard, 187 F.3d at 145.

Indeed, much of the company's challenge goes to the Board's

characterization of the nature of the work actions that Miller

took--the company maintaining that what he did was merely

routine, assigning work that the plant manager had laid out.

While the court will reject the Board's determination of

supervisory status when the factual findings point in another

direction, see, e.g., Micro Pacific Dev. Inc. v. NLRB, 178 F.3d

1325, 1330-31 (D.C. Cir. 1999), the hearing officer's findings

here do not support the company's position. The hearing

officer credited Juan Duran's testimony that Miller moved

him from machine to machine, that employees went to Miller

to receive new assignments, and that Miller had the authority

to determine the acceptability of work performed by certain

employees in the unit. In addition, the hearing officer was

persuaded that the company led unit members to believe that

Miller was a supervisor, citing testimony by Duran and Cirilo

Garcia that the plant manager had told employees to follow

Miller's instructions. The hearing officer also pointed to

evidence that Miller made adjustments to the work assign-

ments made initially by the plant manager. Based on this

and other evidence, the hearing officer's finding that Miller

used independent judgment in performing supervisory duties

is supported by substantial evidence.

We do not intend to suggest, however, that the evidence of

Miller's supervisory status is more than barely sufficient. In

this regard, the company correctly notes that the cases on

which it relies provide a fuller record on which to make a

determination of supervisory status. The evidence to show

that Miller is aligned with management, and thus outside of

the bargaining unit, is thin. But two considerations lead us

to reject the company's challenge to the Board's determina-

tion that Miller is a supervisor. In large part, the difficulty

for the company's position arises from the fact that it did not

call Miller as a witness, nor explain its failure to do so, giving

rise to an inference that his testimony would have been

unfavorable to the company. When the company contends

that the Board is now applying a stricter standard for super-

visory status, the company essentially views the evidence, or

lack thereof, most favorably to its position. In relying on

Hilliard, and Precision Fabricators, Inc. v. NLRB, 204 F.2d

567, 568 (2d Cir. 1953), the company maintains that the

routine matching of employee skills with a task betrays no

assignment function that involves independent judgment.

Yet in the absence of Miller's testimony or other evidence

that would somehow erode or overcome the evidence that the

plant manager's schedule covered only a part of the day and

that Miller assigned work based on his own evaluations of the

employees' skills and not simply in accordance with manage-

ment's evaluations, the Board was entitled to rely on the

testimony of the company's employees that the hearing officer

credited regarding Miller's functions and responsibilities.

See Precision Fabricators, 204 F.2d at 569. In addition, of

critical significance is the evidence that the employees re-

garded Miller as a supervisor consistent with the plant man-

ager's instructions. See Micro Pacific Dev., 178 F.3d at 1322.

Again, the company was in a position to clarify the record but

failed to call Miller, thereby triggering the adverse inference

the court has recognized before that can provide a sufficient

evidentiary basis. See Cadbury Beverages, 160 F.3d at 29;

UAW, 459 F.2d at 1336. While it is undoubtedly true that

the company is confronted with the somewhat unusual cir-

cumstance of a former supervisor continuing to function in

critical respects as a supervisor making work assignments

and evaluating employees' skills in making such assignments,

the warning in Beverly Enterprises that titles and manage-

ment's desires are not dispositive of supervisory status is no

less applicable when management seeks to deny supervisory

status based in part on the absence of such a title and the

absence of evidence it could have presented.

Accordingly, having failed to show either a change in the

law or the lack of substantial evidence to support the Board's

determination that Miller is a supervisor, the company fails to

gain another vote against the union.

B.

In challenging the Board's determination that Rimdzuis

does not have a community of interest with unit employees,

and thus is not a regular part time employee, the company

persuasively contends that Rimdzuis "regularly perform[s]

duties similar to those performed by unit employees for

sufficient periods of time to demonstrate that [he] ha[s] a

substantial interest in working conditions in the unit." Mar-

tin Enters., Inc., 325 N.L.R.B. 714 (1998). But we need not

decide this question because even were the company to gain a

vote against the union from Rimdzuis' ballot, it needs at least

two votes to change the election result, and the company has

forfeited its right to challenge the Board's decision that Mato

Brasic was ineligible to vote.

C.

The company contends that there is not substantial evi-

dence in the record to support the Board's exclusion of Mato

Brasic from the bargaining unit, and hence his ballot should

have been counted. The Board responds that the company is

precluded from challenging the Board's disposition of Brasic's

ballot in the court by not raising it in the unfair labor practice

proceeding, and, alternatively, that the Board's decision in the

representation proceeding excluding Brasic from the bargain-

ing unit is supported by substantial evidence in the record.

We do not reach the merits of the company's contention,

however, because we agree with the Board that the company

has forfeited its right to challenge Brasic's exclusion in this

court.

Under s 10(e) of the Act, any objection not raised before

the Board cannot be raised on appeal from the Board's

decision absent "extraordinary circumstances." 29 U.S.C.

s 160(e).4 As the court explained in The Wackenhut Corp. v.

NLRB, 178 F.3d 543, 548 (D.C. Cir. 1999), "[r]epresentation

proceedings before the Board are not subject to direct judi-

cial review because they do not result in a final agency

order," and "[a]n employer seeking review of the record in a

representation proceeding must refuse to bargain with the

union, [and] suffer an unfair labor practice charge," the

Board's disposition of which is appealable to the court of

appeals. Id. at 548; see also Family Servs. Agency v.

NLRB, 163 F.3d 1369, 1380 (D.C. Cir. 1999); Thomas-Davis

Med. Ctrs., P.C., v. NLRB, 157 F.3d 909, 911 (D.C. Cir. 1998).

Although the company did prompt an unfair labor practice

charge by its technical refusal to bargain, it did not challenge

in the unfair labor practice proceeding the Board's earlier

disqualification of Brasic's ballot. The record reflects that

the company made no reference to Brasic in its answer to the

unfair labor practice charge or its reply to the order to show

cause why summary judgment should not be granted on that

charge. Instead, the company maintains on appeal that once

the unfair labor practice charge was made, it was unnecessary

to "provide yet another detailed notice" to the Board of the

__________

4 Section 10(e) of the Act provides in pertinent part that:

no objection that has not been urged before the Board ... shall

be considered by the court, unless the failure ... shall be

excused because of extraordinary circumstances.

29 U.S.C. s 160(e).

issues already presented to the Board in the representation

hearing.

However, the company cites no authority for its position,

and both the Second and Ninth Circuits have held to the

contrary. See NLRB v. Star Color Plate Serv., 843 F.2d

1507, 1510 n.3 (2d Cir. 1988); NLRB v. Best Prods. Co., 765

F.2d 903, 910 (9th Cir. 1985). The company distinguishes the

Second Circuit's case on the basis that in Star Color, the issue

in question was first presented to the court in the reply brief,

ignoring the fact that the Second Circuit made clear that was

an independent alternative holding to its holding that, by

failing to raise the issue before the Board in the unfair labor

practice proceeding, the issue regarding the Board's decision

in the representation proceeding could not be raised in the

court on appeal from the unfair labor practice decision. See

Star Color, 843 F.2d at 1510, n.3. Neither the Board nor the

employer cites or discusses Best Products setting forth the

Ninth Circuit's rationale that issues can be abandoned and

that the Board is entitled to know in the unfair labor practice

proceeding what objections to its representation decision are

being pursued. See Best Prods., 765 F.2d at 903. Thus, in

Best Products, the Ninth Circuit concluded that while it

would not require a party to give in the unfair labor practice

proceeding "a full-blown, yet necessarily unavailing, re-

argument of an issue that has already been decided against

that party in a representation hearing," a party must at least

give "[a] firm indication to the Board of the objecting party's

non-abandonment of the issue ... to preserve it for ...

review [by the court on appeal from the unfair labor practice

proceeding under section 10(e)]." Id. at 910.

Responding to the Board's position that the company's

challenge to Brasic's exclusion from the bargaining unit is

precluded under s 10(e), the company states in its Reply

Brief that "[i]t is certainly not necessary for the respondent,

once the refusal to bargain charge has been made, to provide

yet another detailed notice of the issues which have already

been presented to the Board in the representation cases."

(emphasis added). We agree, but here the company gave no

notice whatsoever to the Board in the unfair labor practice

proceeding that it was continuing to contest the Board's

disposition of Brasic's ballot in the representation proceeding.

The company's position would have the court treat the

Board's decision in the representation proceeding as a final

order, contrary to s 10 of the Act and Supreme Court

precedent that a Board certification is not a final order under

s 10(f), see American Fed'n of Labor v. NLRB, 308 U.S. 401,

409 (1940). Neither Congress nor the Supreme Court has

countenanced such avoidance of the unfair labor practice

proceeding in a technical refusal-to-bargain case. Because

the company did not raise this issue in the unfair labor

practice proceeding, the Board was entitled to treat the issue

as abandoned. See Best Prods., 765 F.2d at 903. Although

the company maintains that because it did not seek a hearing

with regard to its challenge to the Board's disposition of

Brasic's ballot in the representation decision, it was "unneces-

sary" to provide the Board with "another detailed notice" of

the company's contention about Brasic's inclusion in the

bargaining unit, the company was obligated to proceed in the

unfair labor practice proceeding with the understanding that

the Board's representation decision was not a final appealable

order under the Act.5 Unless the company's objections were

noted in the unfair labor practice proceeding, the order

appealed from would not respond to those objections and

s 10(e) would bar their consideration by the court in review-

ing the Board's unfair labor practice decision. Cf. American

Fed'n of Labor, 303 U.S. at 409. While we have no occasion

to decide what would provide sufficient notice in the unfair

labor practice proceeding, see, e.g., Best Prods., 765 F.2d at

__________

5 In any event, an employer will not necessarily pursue all

objections in the unfair labor practice proceeding that it raised in

the representation proceeding, and the Board is entitled to know

which objections are being pursued because its decision in the

unfair labor practice proceeding is a final appealable order. See

Best Prods., 765 F.2d at 903.

909 (citing NLRB v. Southwest Equip. Corp., 736 F.2d 1332

(9th Cir. 1984), and NLRB v. Giustina Bros. Lumber Co., 253

F.2d 371, 374 (9th Cir. 1958)), absent any notice to the Board

in the unfair labor practice proceeding, the company has

forfeited its right to challenge the Board's disposition of

Brasic's ballot in the representation proceeding.

III.

Finally, the company contends that the Board erred in

granting summary judgment because it was entitled to a

hearing in the unfair labor practice proceeding, in accordance

with the Board's rules. Section 102.24(b) of the Board Rules

on motions provides that a motion for summary judgment

may, in the Board's discretion, be denied "where the opposing

party's pleadings, opposition and/or response indicate on their

face that a genuine issue may exist." 29 C.F.R. s 102.24(b)

(1999). The Rule states further that "[i]t is not required that

either the opposition or the response be supported by affida-

vits or other documentary evidence showing that there is a

genuine issue for hearing." Id. Because the company pre-

sented new cases affecting the Board's interpretation of su-

pervisory status, the company maintains that a hearing was

required. This contention is meritless.

The Board properly applied its "rule against relitigation,"

Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941),

in ruling that because the factual issues relating to the

eligibility of Miller and Rimdzuis were litigated in the repre-

sentation proceeding, there were no genuine issues of materi-

al fact in the unfair labor proceeding. The company present-

ed neither newly discovered evidence nor legal authority that

was not readily distinguishable or that changed governing

law. While the Board's rule does not require affidavits and

documentary evidence to demonstrate that a factual issue

exists, whether to grant a hearing lies in the Board's discre-

tion and the company could not show an abuse of that

discretion simply by asserting that the governing law had

changed. Because the company had an opportunity to liti-

gate all relevant issues of fact and only determinations of law

remained, as set forth in the company's filings with the

Board, an evidentiary hearing would have served no purpose.

See NLRB v. Mar Salle, Inc. 425 F.2d 566, 572 (D.C. Cir.

1969). The company submitted its legal arguments in its

filings to the Board, and as noted in Part II(A), the cases

relied upon by the company did not show a change in

governing law. Thus, in the absence of any basis for the

Board to reconsider its previous decision, the Board properly

granted summary judgment. See Sitka Sound Seafoods, Inc.

v. NLRB, 206 F.3d 1175, 1182-83 (D.C. Cir. 2000); Thomas-

Davis Med. Ctrs., P.C. v. NLRB, 157 F.3d 909, 912 (D.C. Cir.

1998).

* * * * *

Because we conclude that there is substantial evidence in

the record to support the Board's finding that Miller was a

supervisor and that the company forfeited its right to chal-

lenge the Board's disposition of Brasic's ballot, and, therefore,

both were ineligible to vote in the representation election, the

outcome of the election is unchanged even assuming the

Board erred by excluding Rimdzuis' ballot. Because, further,

the company failed to present legal authority indicating that

the Board had changed its standard for determining supervi-

sory status, or to claim to have newly discovered evidence,

summary judgment was appropriate. Accordingly, we deny

the petition for review and grant the Board's cross-application

for enforcement.

Karen LeCraft Henderson, Circuit Judge concurring:

Although I agree with my colleagues that we need not

resolve Rimdzuis's eligibility to vote, I write separately to

emphasize the Board's clear error in sustaining the challenge

to Rimdzuis's ballot on the basis that he was not a regular

part-time employee. Rimdzuis was 78 years old at the time

of the hearing and had then worked at the company for seven

years. His duties include trouble-shooting, machine repair

and procuring spare parts. Rimdzuis works approximately

twenty hours a week but works more when his job demands

it. Which days and hours he works, however, are largely

within his discretion. Although he spends considerable time

away from the plant, he generally works in the same area as

all other mechanics, that is, the "mechanics crib" where the

tools are stored. Joint Appendix (JA) 46. He earns a fixed

weekly wage of $300, has never been given a raise and

receives no overtime pay or fringe benefits.

The hearing officer seized on the differences between

Rimdzuis's working conditions and those of other employees

and determined the differences left Rimdzuis without suffi-

cient connection to the bargaining unit, that is, without a

"community of interest." JA 178. The Board, over the

dissent of Member Hurtgen, adopted the hearing officer's

recommendation and the reasoning therefor. Hurtgen relied

on Rimdzuis's twenty hours of unit work weekly for seven

years and determined that "[t]he fact that he schedules his

own 20 hours does not detract from his regular part-time

status." JA 171 n.4. Our precedent as well as the Board's

precedent plainly support the dissent.

As we have often noted, the Board has established an

inclusive eligibility formula designed to allow "optimum em-

ployee enfranchisement ... without enfranchising individuals

with no real continuing interest in the terms and conditions of

employment offered by the employer." B B & L, Inc. v.

NLRB, 52 F.3d 366, 370 (D.C. Cir. 1995) (quoting Trump Taj

Mahal, 306 N.L.R.B. 294, 306 (1992)) (internal quotation

marks omitted). In its case by case determination, the Board

asks "whether the employee regularly performs duties similar

to those performed by unit employees for sufficient periods of

time to demonstrate that [he has] a substantial interest in the

unit's working conditions." Time Warner Cable v. NLRB,

160 F.3d 1, 6 (D.C. Cir. 1998) (quoting Martin Enters., Inc.,

325 N.L.R.B. 714 (1998)) (internal quotation marks omitted).

While noting that it occasionally considers other evidence, the

Board has consistently held that the amount of time an

employee spends performing unit work can be sufficient to

demonstrate "substantial and continuing interest in the terms

and conditions of employment." Oxford Chemicals, Inc., 286

N.L.R.B. 187, 188 (1987). More important here, the Board in

Oxford rejected resort to the community-of-interest analysis

once the hour-inquiry has proven satisfactory:

[W]e find that once this standard has been met, it is both

unnecessary and inappropriate to evaluate other aspects

of the [part-time1] employee's terms and conditions of

employment in a kind of second tier community-of-

interest analysis. That is, inclusion of a [part-time]

employee within a particular unit does not depend on a

showing of community-of-interest factors in addition to

the regular performance of a substantial amount of unit

work.

286 N.L.R.B. at 188 (footnote and internal citation omitted).

Rimdzuis undisputedly performs unit work for at least

twenty hours a week. This is sufficient "to demonstrate that

[he has] a substantial interest in the unit's working condi-

tions." Time Warner Cable v. NLRB, 160 F.3d at 6 (forty

hours of unit work for only one month preceding election

satisfies standard). I do not believe the flexibility of his work

schedule removes him from the community of interest shared

by the bargaining unit. Cf. Leaders-Nameoki, Inc., 237

N.L.R.B. 1269, 1269 (1978) ("It is well established in depart-

ment store cases that part-time employees who regularly

work an average of 4 hours or more per week are considered

to be eligible regular part-time employees ... even though

they may work full-time for another employer or are free to

__________

1 The Board in Oxford Chemicals addresses "dual function" em-

ployees but notes that the same standard applies for determining

eligibility of part-time employees. See 286 N.L.R.B. at 187; see

also Time Warner, 160 F.3d at 6 n.12.

reject work when offered."); Henry Lee Co., 194 N.L.R.B.

1107, 1107 (1972) ("Where, as here, part-time employees are

engaged in unit work for substantial periods each week, even

though on an unscheduled basis, it is customary Board policy

to include them in the unit as regular part-time employees.").

Moreover, neither Rimdzuis's fixed wage nor his exclusion

from certain fringe benefits negates the substantial interest

he has in the working conditions he shares with others in the

bargaining unit approximately twenty hours each week. Ac-

cordingly, I believe the Board clearly erred in disenfranchis-

ing Rimdzuis.