UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MICRO PAC DEVEL INC

v.

NLRB


98-1386a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: Micro Pacific  Development
Company d/b/a Saipan Grand Hotel (Saipan)  petitions the Court to set
aside a final order of the National  Labor Relations Board (NLRB or
Board). Despite Saipan's  assertion that four of its employees were
supervisors engaged  in pro-union, coercive electioneering, the Board
concluded  that the employees were not supervisors as defined in the 
National Labor Relations Act (NLRA or Act) s 2(11), 29  U.S.C. s
152(11). Saipan now attacks the Board's conclusion  as unsupported by
substantial evidence. In the alternative,  Saipan argues that the
results of the union election cannot  stand because the Board erred in
combining Saipan's resident  and nonresident employees into a single
bargaining unit. For  the reasons set forth below, we grant Saipan's
petition for  review in part and grant the NLRB's cross-application
for  enforcement as to the remaining issues.


I. Background


A. The Representation Proceeding


Saipan is a beachfront resort hotel operating on the island  of Saipan
in the Commonwealth of the Northern Mariana  Islands (CNMI).1 On
August 2, 1995 the Commonwealth  Labor Federation and Hotel Employees
and Restaurant Em- ployees, Local 5, AFL-CIO (Union) filed a
representation  petition with the Board, seeking certification as the
represen- tative of Saipan's employees. The parties entered into an 
Election Agreement, stipulating that the Board had jurisdic- tion and
that the appropriate bargaining unit consisted of all  hotel


After changing counsel, apparently due to original counsel's 
"inexperience[ ] in NLRA matters," Pet'r Br. at 3, Saipan 




__________

n 1 The Board's jurisdiction extends to labor cases arising in the 
CNMI. See Micronesian Telecomm. Corp. v. NLRB, 820 F.2d  1097,
1099-1101 (9th Cir. 1987).


sought to withdraw from the stipulated election agreement  and
requested a representation hearing. In its motion, it  asserted inter
alia that the Board lacked jurisdiction over its  nonresident contract
workers.2 The NLRB's Regional Di- rector (RD) denied Saipan's motion,
finding that no changed  circumstances justified withdrawal from the
Election Agree- ment and that the Board had previously asserted
jurisdiction  over nonresidents working in the CNMI. See Micro Pac. 
Dev., Inc., No. 37-RC-3720 (Sept. 20, 1995) (Order Den.  Employer's
Mot. to Withdraw From Stipulated Election  Agreement & Req. for
Representation Hr'g), Joint Appendix  (JA) 17-21. Saipan sought Board
review of the RD's deci- sion.


On October 5, pursuant to the Election Agreement, the  Board conducted
a representation election among Saipan's  employees. From a total of
84 eligible employees, 49 voted  for unionization and 24 voted
against. Three ballots were  challenged, a number insufficient to
affect the results.


Saipan subsequently filed four objections. The first three  objections
asserted that the Board lacked jurisdiction over  nonresident workers
and that, even if the Board had jurisdic- tion, nonresident workers
were ineligible to vote in the elec- tion and could not be included in
a bargaining unit with  resident employees. In the fourth objection,
Saipan claimed  that supervisors engaged in coercive pro-union conduct
re- quiring the election to be set aside.


On January 24, 1996 the Board denied Saipan's request to  review the
RD's denial of its motion to withdraw from the  Election Agreement,
holding that the jurisdictional issues  were raised by Saipan in its
election objections and that the  denial of its request for review was
without prejudice to the  right to pursue its argument in the
representation litigation. 




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n 2 At the time approximately 70 per cent of the hotel's non-
management work force consisted of Filipino nonresidents who  worked
in the CNMI pursuant to one-year contracts.


On February 22 the RD overruled Saipan's election objec- tions. See
Micro Pac., No. 37-RC-3720 (Feb. 22, 1996) (Rep.  on Objections), JA
45-51. After Saipan filed exceptions, the  Board ordered a hearing
before an administrative law judge  (ALJ) on Saipan's allegations of
supervisory pro-union con- duct. Relying solely on the Election
Agreement, the Board  also adopted the RD's finding that the Board had
jurisdiction  over the nonresident employees. See Micro Pac., No. 37-
RC-3720 (June 24, 1996) (Decision & Order Directing Hr'g),  JA


On July 31, 1997 the ALJ overruled Saipan's objection  alleging
coercive conduct by supervisors. The ALJ found  that Edwin Melon,
Paquito Gonzales, Reynaldo Rojas and  Sesinando Laderas were employees
rather than supervisors  and thus that their pro-union conduct was not
objectionable.  In the alternative, the ALJ found that Rojas's and
Laderas's  pro-union conduct was insufficient to materially affect the
 election results but that, if Melon and Gonzales were found by  the
Board to be supervisors, their conduct materially affected  the
election. See Micro Pac., No. 37-RC-3720 (July 30, 1997)  (ALJ's
Decision), JA 116-46. The Board fully adopted the  ALJ's findings and
recommendation and certified the Union.  Because the Board affirmed
the ALJ's findings that the four  individuals were employees, the
Board found it "unnecessary  to pass on the judge's alternative
findings."3 Micro Pac., No.  37-RC-3720 at 2 n.2 (Mar. 26, 1998)
(Decision & Certification  of Representative), JA 195.


B. The Unfair Labor Practice Proceeding


Following certification, Saipan refused to bargain or fur- nish
requested information to the Union, whereupon the 




__________

n 3 Although the Board did not reach the issue, the ALJ found that 
Melon and Gonzales had engaged in pro-union behavior which 
"reasonably tended to coerce employees in the exercise of their 
Section 7 rights." JA 144-45. Between them, Melon and Gonzales 
supervised 20 employees, enough to change the outcome of the 
election. Indeed, Melon alone supervised enough employees (14) to 
change the result. The NLRB decided the supervisory status issue 
without reaching the coercion issue. See JA 195 n.2.


Union filed an unfair labor practice charge.4 In its answer,  Saipan
admitted the allegations but challenged the validity of  the
certification. Thereafter, the General Counsel moved for  summary
judgment and the Board issued a show cause notice.


On August 19, 1998 the Board granted the General Coun- sel's motion for
summary judgment. In its Decision and  Order, the Board found that
"[a]ll representation issues  raised by [Saipan] were or could have
been litigated in the  prior representation proceeding," and that
Saipan did not  offer to adduce "any newly discovered and previously
unavail- able evidence, nor [did] it allege any special circumstances"
 that would require the Board to modify its decision in the 
representation proceeding. Micro Pac. Dev., Inc., 326  N.L.R.B. No. 20
at 1 (Aug. 19, 1998). Accordingly, the Board  concluded that Saipan's
refusal to bargain and to furnish  requested information violated the
NLRA. The Board re- quired Saipan to cease its unfair labor practices,
post a  remedial notice, bargain with the Union upon request and 
supply the requested information. See id. at 2. Saipan then 
petitioned this Court to review the Board's decision and the  NLRB
cross-applied for enforcement of its order.


II. DISCUSSION


Pursuant to section 10 (e) and (f) of the NLRA, 29 U.S.C.  s 160(e),
(f), we will reverse the Board if, "upon reviewing the  record as a
whole, we conclude that the Board's findings are  not supported by
substantial evidence or that the Board acted  arbitrarily or otherwise
erred in applying established law to 




__________

n 4 The General Counsel issued a complaint, alleging that Saipan's 
refusal to bargain and supply information violated NLRA s 8(a)(1), 
(5), 29 U.S.C. s 158(a)(1), (5). Section 8(a)(1) and (5) of the NLRA 
respectively make it an unfair labor practice for an employer "to 
interfere with, restrain, or coerce employees in the exercise of the 
rights guaranteed in section [7 of title 29]" and "to refuse to
bargain  collectively with the representative of his employees." 29
U.S.C.  s 158(a)(1), (5). Section 7, in turn, grants employees, inter
alia  "the right to self-organization" and "to bargain collectively
through  representatives of their own choosing." 29 U.S.C. s 157.


the facts of the case." International Union of Elec., Elec.,  Salaried.
Mach. & Furniture Workers v. NLRB, 41 F.3d  1532, 1536 (D.C. Cir.
1994) (quotations omitted). Substantial  evidence is "more than a mere
scintilla. It means such  relevant evidence as a reasonable mind might
accept as  adequate to support a conclusion." Consolidated Edison Co. 
v. NLRB, 305 U.S. 197, 229 (1938); see also Universal  Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951) ("[A]  reviewing court is not barred
from setting aside a Board  decision when it cannot conscientiously
find that the evidence  supporting that decision is substantial, when
viewed in the  light that the record in its entirety furnishes,
including the  body of evidence opposed to the Board's view.").
Moreover,  the Board "is not free to prescribe what inferences from
the  evidence it will accept and reject, but must draw all those 
inferences that the evidence fairly demands." Allentown  Mack Sales &
Serv., Inc. v. NLRB, 118 S. Ct. 818, 829 (1998).5


A. Supervisors


Section 2(3) of the NLRA excludes from the term "employ- ee" "any
individual employed as a supervisor." 29 U.S.C.  s 152(3). Section
2(11) defines "supervisor" as follows:


any individual having authority, in the interest of the  employer, to
hire, transfer, suspend, lay off, recall, pro- mote, discharge,
assign, reward, or discipline other em- ployees, or responsibly to
direct them, or to adjust their  grievances, or effectively to
recommend such action, if in  connection with the foregoing the
exercise of such au- thority is not of a merely routine or clerical
nature, but  requires the use of independent judgment.




__________

n 5 Saipan urges us to abandon our traditional deference standard  and
instead engage in a more probing review of the Board's  supervisory
status determinations, pointing to other circuits which  have taken
this approach. See, e.g., Beverly Enters. v. NLRB, 148  F.3d 1042,
1045 (8th Cir. 1998); NLRB v. Meenan Oil Co., 139 F.3d  311, 321 (2d
Cir. 1998); NLRB v. St. Mary's Home, Inc., 690 F.2d  1062, 1067 (4th
Cir. 1982). We give the Board's supervisory  findings their
traditional "special weight." Desert Hosp. v. NLRB,  91 F.3d 187, 193


29 U.S.C. s 152(11). The first portion of section 2(11) is  stated
disjunctively--the possession of any of the enumerated  powers is
sufficient to establish supervisory status. Section  2(11)'s
conjunctive language, however, mandates that the  exercise of any of
the powers "must require independent  judgment, ... and cannot be
merely routine, clerical, perfunc- tory, or sporadic." Desert Hosp.,
91 F.3d at 193. In short, to  be considered a supervisor, one must
exercise only one of the  enumerated supervisory functions, using
independent judg- ment in doing so.


In its main attack on the ALJ's and the Board's findings,  Saipan
asserts that Edwin Melon should have been consid- ered a statutory
supervisor. Melon was one of three "house- keeping supervisors"
reporting directly to Atsushi Suzuki, the  Assistant Front Manager in
charge of Saipan's housekeeping  department. According to the ALJ's
finding, Melon was the  only employee with that title from at least
1993 until six  months before the election.6 Even though the ALJ found
 that Melon possessed several supervisory indicia7 and exer-




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n 6 After two other employees were promoted to supervisor, Melon  acted
as a supervisor three days per week while the other two each  acted as
supervisor two days per week. There was never more  than one
housekeeping supervisor on duty during the day, except  during brief
training periods. Melon was the highest paid non- managerial
housekeeping employee and was identified by the maids  as their
primary supervisor before the election. Most of the  housekeeping
staff worked from 9:00 a.m. to 5:00 p.m., with one  maid scheduled
from noon to 8:00 p.m. and another scheduled from  5:00 p.m. to 1:00
a.m. High occupancy periods were dealt with by:  (1) overtime; (2)
calling in maids who were not scheduled to work;  (3) adding "bonus"
rooms--additional rooms for which the maid  received no compensation
other than tips--to a maid's schedule; or  (4) scheduling maids for
"back-to-back" room preparation, which  required them to return to the
hotel in the early morning hours to  prepare vacated rooms. The maids
viewed "back-to-back" assign- ments as valuable because they were paid
double time with a two- hour minimum.


7 Melon assigned housekeepers, directed their work, disciplined  them
and recommended whether their contracts should be renewed.  See JA
125-28.


cised this authority "in the interest" of Saipan, see NLRB v.  Health
Care & Retirement Corp. of Am., 511 U.S. 571, 578  (1994) ("[A]cts
within the scope of employment or on the  authorized business of the
employer are 'in the interest of the  employer.' "), he nevertheless
concluded that Melon was not a  section 2(11) supervisor because he
failed to meet the "inde- pendent judgment" test of section 2(11). JA
130-31. The  Board adopted the ALJ's findings, concluding that there
was  "no evidence that Melon's duties required the exercise of 
independent judgment or that Melon effectively recom- mended changes
in the employees' terms and conditions of  employment." JA 195 n.2.
For the following reasons, we  reject the Board's conclusion that
Melon did not exercise  independent judgment as unsupported by


The Board's conclusion that Melon exercised no indepen- dent judgment
but rather performed duties that were "rou- tine for the most part and
decidedly clerical for the remain- der" contradicts the ALJ's factual
findings, which manifest  that Melon had substantial autonomy in
dealing with the  housekeeping staff regarding scheduling, assignment
and dis- cipline. JA 130. As to assignments and scheduling, the 
record established that Melon dealt with these issues often  "without
regular or concerned oversight by Suzuki or another  assistant
manager." JA 127; see Eskaton Sunrise Commu- nity, 279 N.L.R.B. 68, 75
(1986) (employee who assigned  housekeeping duties, checked employees'
work, obtained re- placements for sick employees and performed written
evalua- tions held to be supervisor); Mr. Steak, Inc., 267 N.L.R.B. 
553, 555 n.3 (1983) (scheduling employee working hours con- fers
supervisory status). As the ALJ noted, "[T]he more  typical handling
[of overtime] was for Melon to recognize [a]  need, [and] merely
inform Suzuki as to what he would do."  JA 128 (when the late shift
maid did not report, "the problem  devolved to Melon for solution,"
and he was "both initiator of  the overtime inquiry, and also did so
by one-on-one conversa- tions rather than throwing the opportunity
open to shift  members as a whole"). "[M]anagers [also] did not
participate  in the decision" as to who received back-to-back


Id.8 Moreover, because of the "focused, sudden needs" asso- ciated with
occupancy surges, Melon was often required to  draw on "his awareness
from experience and observation  about whether the composite
capabilities of scheduled house- keepers on a given day was sufficient
to complete all readying  work throughout the hotel's guest rooms." JA
127, 128; see  Glenmark, 147 F.3d at 343 ("[T]he decisions of whether
to call  in additional staff and whether to reorganize the schedule to
 accommodate ... emergencies require the exercise of inde- pendent
judgment."). Thus, rather than being "practically  automatic", JA 130,
"guest room preparation was greatly  affected by surges of people
[which], in turn, created an array  of special procedures" and
required Melon to make indepen- dent determinations in scheduling and
assigning the employ- ees, JA 123; JA 860-61 (if Melon did not deem
maid's reasons  for switching days "important" enough, he did not
permit  switch even though another maid agreed); id. 714 (Melon 
assigned bonus rooms without management oversight or com- plaint); id.
127 (when need arose to have rooms "quick  cleaned," Melon's
assignment process was not "given regular  or concerned oversight by
Suzuki or another assistant manag- er").


Moreover, it appears that Melon exercised independent  judgment in
rewarding employees. For instance, the ALJ  found that the "potential
of rewarding housekeeping employ- ees was constantly present" and
mentioned the distribution of 




__________

n 8 In its brief, the Board even admits that Melon exercised inde-
pendent judgment. According to the Board,


At the start of each day, Manager Suzuki notified Melon if he  needed
to distribute "bonus rooms" because of a housekeeper's  absence. Melon
distributed the absent housekeeper's preas- signed rooms by taking
into account workload--that is, trying  to give extra rooms to the
housekeepers whose preassigned  block of rooms contained few
checkouts--and capability.


Resp't Br. at 17; see NLRB v. McCullough Envtl. Servs., 5 F.3d  923,
941 (5th Cir. 1993) ("the authority to assign operators to  specific
tasks, based in part on their assessment of the employees'  ability
and the expertise required" indicates supervisory status).


back-to-back room assignments, with their "prized overtime 
guarantees," as the "most striking instance" of Melon's ability  to
reward. JA 127. Although the selection process is un- clear, "managers
did not participate in the decision." JA 127.  We also note that
Melon's usual practice of coupling a back- to-back assignment with
days off "was not always carried  through that mechanically." JA
127-28. The ALJ, however,  suggested that, in making the prized
assignments, Melon was  not rewarding employees "within the meaning of
the Act"  since "the employees earned their extra pay either by
extend- ing their shift or by appearing for odd late night times when 
back to back was performed." JA 131 (emphasis original).  But we
disagree with the ALJ's underlying inference that a  reward must be
wholly gratuitous--Melon used independent  judgment in determining who
received the choice assignments  notwithstanding the fact he did not


Furthermore, the Board counsel's endorsement of the  Board's conclusion
is based on insufficient evidence arbitrari- ly culled from the
record. See Universal Camera, 340 U.S. at  488 ("[A] reviewing court
is not barred from setting aside a  Board decision when it cannot
conscientiously find that the  evidence supporting that decision is
substantial, when viewed  in the light that the record in its entirety
furnishes, including  the body of evidence opposed to the Board's
view."). For  example, the Board counsel relied on eleven portions of 
transcript to support his conclusion that "Suzuki [rather than  Melon]
preassigned the housekeepers to specific sections,  rotating their
assignments periodically." Resp't Br. at 15.  Eight of the citations,
however, involve witnesses whom the  ALJ disbelieved, two provide only
weak support and the last  contradicts the Board's conclusion, see JA
864-65 (testimony  of Darlin Rebusquillo, noting that Melon assigned
all bonus  rooms on days he acted as supervisor). Since the counsel 
relied on evidence the ALJ deemed unreliable or untrustwor- thy while
at the same time accepting the ALJ's credibility 




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n 9 Melon also exercised independent judgment by withholding 
assignments from those who alienated him. See JA 1021.


findings, we reject his assertion that Melon's supervisory  status is
based on substantial evidence from the record as a  whole. See Air
Canada v. DOT, 148 F.3d 1142, 1151 n.15  (D.C. Cir. 1998) ("[W]here
credibility of witnesses is at stake,  an [ALJ's] evaluation of the
witness' testimony can be an  indicator of the substantiality of the
evidence.") (citations  omitted); Capital Cleaning Contractors v.
NLRB, 147 F.3d  999, 1004 (D.C. Cir. 1998) ("[A] court must uphold
Board- approved credibility determinations of an ALJ unless they  are
hopelessly incredible or self-contradictory or patently 
insupportable.") (quotations omitted).


Finally, we disagree with the Board's treatment of Perry  d/b/a Holiday
Inn-Glendale, 277 N.L.R.B. 1254 (1985), which  Saipan relied on for
the proposition that deciding whether an  employee should be asked to
work overtime requires the  exercise of independent judgment. The ALJ
initially refused  to use the decision "for any comparative purposes"
because  (1) the individual held to be a supervisor in Glendale held
the  position temporarily and could only authorize 10 to 20 min- utes
of overtime and (2) if he had been found not to be a  supervisor,
there would have been 70 unsupervised employees  in the department. JA
132. Melon exercised much more  independent judgment than the
temporary supervisor with  limited overtime authority in Glendale. Not
surprisingly, the  Board also attempts to distinguish Glendale in its
brief by  pointing to several facts which it claims are not present
here.  See Resp't Br. at 29 n.l3. At least one fact in common with 
Glendale was present here: the housekeeping employees  believed that
Melon was in charge of them. He was identi- fied by the maids as their
primary supervisor in the months  immediately before the election, and
in December 1993, a  number of housekeepers petitioned Saipan to
replace him  because of supervisory shortcomings. This situation and 
Saipan's response to it--which was to counsel Melon on  improved
supervisory techniques--would not have occurred  unless Melon was both
treated as a supervisor by Saipan and,  more importantly, viewed as
such by the other employees.


Saipan also argues that the Board erred by not finding  Waiter
Supervisor Paquito Gonzales, Waiter Supervisor Rey-


naldo Rojas and Bartender Supervisor Sesinando Laderas to  be statutory
supervisors.10 As it does with regard to Melon,  Saipan contends that
Gonzales, Rojas and Laderas exhibited  independent judgment by
assigning, evaluating and disciplin- ing other employees. But several
factors distinguish Gon- zales, Rojas and Laderas from Melon.
Accordingly, we af- firm the Board's decision not to classify
Gonzales, Rojas and  Laderas as section 2(11) supervisors. See
International Un- ion, 41 F.3d at 1536.


Although Gonzales, Rojas and Laderas had some authority  to make
assignments within shifts and to assign occasional  overtime, their
decisions were reviewed by management and,  in the case of Laderas,
often overruled. We agree with the  ALJ that the hotel's "rigidly
structured management team for  food and beverage operations ... was a
dominating feature of 




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n 10 The hotel has several restaurants and two bars. Yoshitaka 
Mitsuda, the restaurant manager, oversaw restaurant operations.  He
worked 6 days per week, generally from 9:00 a.m. to 11:00 p.m. 
Mitsuda spent approximately 2 to 3 hours per day observing  employees
and also approved all vacation and sick leave. Five  assistant
restaurant managers (ARM) assisted Mitsuda in supervis- ing restaurant
operations. The ARMs worked six days per week  from mid-morning to
approximately 11:00 p.m. The ARMs sched- uled employees for shifts and
decided whether to replace sick  employees. In addition to providing
general oversight throughout  all of the restaurants, the ARMs also
assisted in serving customers  when the restaurants were busy. Also,
Adelaida Ventura and  Melinda Javier served as "head supervisors" in
the hotel's food  services operation although they usually spent up to
90 per cent of  their time performing regular waitress duties.


Gonzales and Rojas began working for Saipan in 1991. In 1994  Gonzales
became a "waiter supervisor" in which capacity he served  until the
spring of 1996, when his contract was not renewed. Rojas  also became
a "waiter supervisor" in 1994. Gonzales and Rojas  reported to head
supervisors Ventura and Javier. Laderas began  working at the hotel in
1991. In 1993 he was appointed "bartender  supervisor," a position he
held until his contract was not renewed in  December 1995. Laderas
reported to ARM Takeo Yamashiro, who  managed the Southern Cross bar
and Coral restaurant.


the various restaurant and food serving operations." JA 138,  140. We
find this finding significant because the managers'  overlapping
six-day work weeks and their continuous, on-site  oversight of
operations leaves no doubt that they, rather than  the waiter and
bartender supervisors, were in charge. Thus,  the Board reasonably
concluded that Gonzales, Rojas and  Laderas acted only as "leadmen"
regarding assignments and  scheduling with limited authority to assist
in operations but  with no true decision making power. NLRB v. Bell
Aero- space Co., 416 U.S. 267, 280-81 (1974) (Congress sought to 
distinguish between supervisory personnel, vested with "gen- uine
management prerogatives," and employees--such as  "straw bosses,
leadmen, and set-up men, and other minor  supervisory employees"--who
enjoy NLRA's protections even  though they perform "minor supervisory
duties." (quotation  omitted)); see JA 138-43 ("all true judgmental
factors were  absorbed into the layered array of manage[rs] above").


In addition, Gonzales and Rojas occasionally informed man- agement
about the performance of other employees but the  Board reasonably
found no evidence that Saipan made any  decision to adjust the wages
of any employee based upon  their opinions. See Beverly-Enters.-Pa.,
Inc. v. NLRB, 129  F.3d 1269, 1270 (D.C. Cir. 1997); see also NLRB v.
Adco  Elec., Inc., 6 F.3d 1110, 1117 (5th Cir. 1993) (reporting 
problems "is nothing more than ... any ... employer would  expect of
experienced employees"). Although a manager  suggested that Rojas
effectively evaluated other employees,  the ALJ discredited his
testimony with Rojas's own state- ment. See JA 140-41. Nor does Saipan
advance its case by  showing that Laderas completed written
evaluations of other  employees. The evaluations contained no
recommendation  and failed to affect any employee's terms and
conditions of  employment. Laderas received no instructions about the 
evaluations and never spoke to employees about them. In- stead,
Laderas believed that Saipan used the evaluation to  choose the


Similarly, we find no evidence that Gonzales, Rojas and  Laderas ever
effectively disciplined other employees. Al- though Saipan relied on
(to support their disciplinary authori-


ty) a document that they were asked to draft, the document  speaks of
voluntary compliance and the ALJ reasonably  discredited evidence
suggesting that Gonzales had in fact  exerted his disciplinary
authority. See Capital Cleaning  Contractors, 147 F.3d at 1004; JA
137, 982-87 (policy state- ment). Thus, the Board reasonably refused
to classify Gon- zales, Rojas and Laderas as section 2(11) supervisors
because  their exercise of supervisory authority was at best
"perfuncto- ry" and "sporadic." Desert Hosp., 91 F.3d at 193.


B. Bargaining Unit


Saipan also argues that the Board's decision to include its  resident
and nonresident employees in the same bargaining  unit was not
supported by substantial evidence. According to  Saipan, its resident
and nonresident employees do not share a  sufficient "community of
interest" to permit their combination  into one bargaining unit
because of the control over the terms  and conditions of nonresident
employment imposed by CNMI  immigration law. Pursuant to the CNMI's
Non-resident  Workers' Act (NWA) and the regulations promulgated
there- under,11 Saipan must follow specific procedures in hiring, 
employing, retaining and terminating nonresident workers  and must
adopt wages, benefits and other terms and condi- tions of employment
applicable only to nonresident employ- ees. Besides creating
differences in the wages and benefits  of nonresidents and residents,
the provisions mandate a mini- mum number of hours per week that
nonresidents must work  and effectively prohibit nonresidents--but not
residents-- from transferring to other positions. See NWA, 3 N. Mar.
I.  Code Ch. 4 (1983); Alien Labor Rules & Regulations  (ALRR), 10 N.




__________

n 11 The CNMI retains "local control over immigration," H. R. Rep.  No.
94-364, at 9 (1975), because the covenant that delineates the 
political relationship between the United States and the CNMI and 
enumerates which federal laws apply expressly excludes the "immi-
gration and naturalization laws of the United States." Covenant to 
Establish a Commonwealth of the N. Mariana Islands in Political  Union
With the United States, s 503(a), reprinted at 48 U.S.C.  s 1681.


these differences, Saipan contends that a unit consisting of  residents
and nonresidents is inappropriate because their  conflicting interests
make it impossible for a union to carry  out its duty to fairly
represent both groups. As a result,  Saipan concludes that nonresident
and resident workers do  not share a community of interest and
requests a Board  hearing on the issue.


Were Saipan writing on a clean slate, it could argue that  the Board
erred by combining its resident and nonresident  employees into a
single bargaining unit. See, e.g., Lycee  Francais de New York, 273
N.L.R.B. 1538 (1985) (finding no  community of interest between
resident and nonresident em- ployees at private school); but see
Saipan Hotel Corp., d/b/a  Hafadai Beach Hotel, 320 N.L.R.B. 192
(1995); see also  Thomas-Davis Med. Ctrs., P.C. v. NLRB, 157 F.3d 909,
914  (D.C. Cir. 1998) (Board must provide "reasoned explanation, 
either consistent with precedent or explaining its departure 
therefrom" in interpreting its rules). But Saipan is not  writing on a
clean slate because in the Election Agreement, it  stipulated that a
unit containing all of its employees constitut- ed an appropriate
bargaining unit.12 See JA 3. Aside from  asserting that it changed its
original counsel who was appar- ently inexperienced in labor matters,
Saipan offers no  changed or unusual circumstances entitling it to
withdraw its  stipulation. See NLRB v. Unifemme, Inc., 570 F.2d 230
(8th  Cir. 1978) (requiring changed or unusual circumstance to 
withdraw stipulation); Sunnyvale Med. Clinic, 241 N.L.R.B.  1156
(1979) (similar); cf. NLRB v. Local Union No. 74,  International Ass'n
of Marble, Slate & Stone Polishers,  Rubbers & Sawyers, Tile & Marble
Setters' Helpers, &  Marble Mosaic & Terrazzo Workers' Helpers of U.S.
&  Canada, 471 F.2d 43, 45-46 (7th Cir. 1973) (alleged inexperi- ence
and lack of knowledge of NLRB procedures of union's  first counsel did
not constitute "extraordinary circumstances"  under NLRA s 10(e)). In
its motion to withdraw, see JA 10,  Saipan argued that "unusual"




__________

n 12 Saipan also admitted in its pleadings that the bargaining unit is 
appropriate. See JA 215, 224, 228.


the stipulated unit contained "nonresident employees who are  outside
the Board's jurisdiction." The RD, however, found  that Saipan failed
to present evidence of unusual or changed  circumstances. The RD
further noted that the Board previ- ously asserted its jurisdiction
over both resident and nonresi- dent workers in the CNMI, see Saipan
Hotel Corp., d/b/a  Hafadai Beach Hotel, 320 N.L.R.B. 192 (1995)
(Hafadai), and  the Ninth Circuit enforced the Board's decision, see
114 F.3d  994 (9th Cir. 1997), cert. denied, 118 S. Ct. 1034 (1998).
Thus,  the RD, and ultimately the Board, rejected Saipan's argu-


Saipan now claims that the RD and the Board abdicated  their
responsibilities under the Act by relying on Hafadai  and by not
making an independent determination about the  appropriateness of the
bargaining unit in this case.13 Saipan,  however, ignores our
precedent in asserting that the Board  must determine the
appropriateness of the bargaining unit  notwithstanding its


When it sets out de novo to define a bargaining unit, the  NLRB
determines which employees share common inter- ests.... This is a
matter for the Board's expertise, and  we will rarely disturb its
conclusion. When the parties  stipulate the bargaining unit, however,
the Board has a  more limited role. First it must ensure that the
stipu- lated terms do not conflict with fundamental labor princi-
ples. Having done so, its task is simply to enforce the  agreement. If
the terms of the stipulation are unambig- uous, the Board must hold
the parties to its text.




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n 13 Saipan relies primarily on NLRB v. Indianapolis Mack Sales  &
Serv., Inc., 802 F.2d 280, 284 (7th Cir. 1986) ("Section 9(b)  imposes
a nondelegable duty on the Board to determine appropri- ateness" of
bargaining unit), to support its argument. But Mack  Sales is
inapposite because there the employer refused to stipulate  to the
bargaining unit and the ALJ then declined to receive  evidence on the
issue. See 802 F.2d at 284 ("NLRB cannot  discharge [its] obligation
by simply finding that the parties did not  vigorously pursue the
issue" (emphasis added)).


Avecor, Inc. v. NLRB, 931 F.2d 924, 932 (D.C. Cir. 1991), cert.  denied
sub nom. Oil, Chem. & Atomic Workers Intern.  Union v. Avecor, Inc.,
502 U.S. 1048 (1992); accord NLRB v.  Southern Indiana Gas & Elec.
Co., 853 F.2d 580, 582 (7th  Cir. 1988), cert. denied, 488 U.S. 1031
(1989) ("Once parties  enter into a stipulation ... the parties are
bound by their  agreement unless it violates the Act or Board


Saipan nevertheless asserts that its stipulation placing resi- dents
and nonresidents in the same bargaining unit was  improper because
both the NWA and the ALRR set forth  requirements that do not apply to
resident employees. See  Pet'r Br. at 35-43. Yet in Hafadai, the Board
held, with  Ninth Circuit approval, that the CNMI labor and
immigration  laws and regulations do not preclude residents and
nonresi- dents from comprising a single bargaining unit. See 320 
N.L.R.B. 192 (1995), enforced, 114 F.3d 994, 997-99 (9th Cir.  1997).
Although Saipan argues that the Board improperly  relied on this
authority, the Board cannot ignore its precedent  without a "reasoned
explanation." Thomas-Davis Med. Ctrs.,  157 F.3d at 914.14


Accordingly, we grant the petition for review in part and  remand to
the Board to determine whether Melon's conduct  violated the NLRA. In
all other respects, we deny the 




__________

n 14 We also find no merit in Saipan's request for a hearing to 
determine whether the stipulated bargaining unit was appropriate. 
Pursuant to 29 C.F.R. s 102.69(d), the Board conducts a hearing if 
the objecting party has raised substantial and material factual 
issues. See Amalgamated Clothing Workers, 424 F.2d 818, 828  (D.C.
Cir. 1970). Where, as here, the RD assumed the facts alleged  in the
objections to be true but found, as a matter of law, that those  facts
did not justify setting aside the election, no hearing is re- quired.
See NLRB v. Air Control Prods., 335 F.2d 245, 249 (5th  Cir. 1964).
Because Saipan offered no evidence in support of its  objection except
the CNMI regulations, there were no material  facts at issue and the
RD (and later the Board) could rely on  Hafadai to answer the purely
legal question whether the CNMI  regulations prevent resident and
nonresident employees from inclu- sion in a single bargaining unit.


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


So ordered.