# Alois Box Co. v. National Labor Relations Board

> Court of Appeals for the D.C. Circuit · June 27, 2000 · 216 F.3d 69

URL: https://www.frixlaw.com/law-library/cases/185176

## Case

- **Full name:** ALOIS BOX CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 27, 2000
- **Citations:** 216 F.3d 69; 342 U.S. App. D.C. 178; 164 L.R.R.M. (BNA) 2745; 2000 U.S. App. LEXIS 14644
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Ginsburg, Henderson, Rogers
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/185176. Public record. Not legal advice.