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


CORR CORP AMER

v.

NLRB


00-1135a

D.C. Cir. 2000


*	*	*


Opinion for the Court filed Per Curiam: In this case, the  National
Labor Relations Board ("NLRB" or "Board") found  that petitioner
Corrections Corporation of America ("Compa- ny") violated section
8(a)(1) and 8(a)(5) of the National Labor  Relations Act ("Act"), 29
U.S.C. s 158(a)(1), (5) (1994), when  the Company refused to recognize
and bargain with the  Union General de Trabajadores de Puerto Rico
("Union"),  and unilaterally changed the work schedules of its social 
penal workers. The Company, in its petition for review,  contends,
first, that the Board lacks jurisdiction over private  correctional
institutions; second, that the Board erred in  disposing of the unfair
labor practice complaint on summary  judgement; and, third, that
persons employed as "social penal  workers" are either guards or
supervisors under the Act, and,  therefore, should not have been
included in the unit that was  certified for bargaining. The Company's


"Because of its expertise, the Board 'necessarily has a large  measure
of informed discretion,' and this court will sustain  the Board's
determination that an individual is an 'employee'  and not a
'supervisor' if it is supported by substantial evi- dence." Passaic
Daily News v. NLRB, 736 F.2d 1543, 1550  (D.C. Cir. 1984) (quoting
Amalgamated Clothing Workers of  America v. NLRB, 420 F.2d 1296, 1300
(D.C. Cir. 1969)).  "Substantial evidence means 'such relevant
evidence as a  reasonable mind might accept as adequate to support a 
conclusion.' " MECO Corp. v. NLRB, 986 F.2d 1434, 1436  (D.C. Cir.
1993) (quoting Richardson v. Perales, 402 U.S. 389,  401 (1971)). The
Regional Director found, and the Board  affirmed, that there was no
evidence in the record that the  alleged supervisory duties listed in
the job description and job  postings for social penal workers had
actually been exercised  by the employees assigned to the job. The
Board found no  reliable evidence demonstrating that social penal


disciplined, recruited, transferred, laid off, or promoted any 
employees, and no reliable evidence that social penal supervi- sors
ever gave instructions to other employees. And where  there was any
disagreement over these issues, the Regional  Director discredited the
Company's witnesses. There is no  doubt that, on the record at hand,
the Board's decision is  supported by substantial evidence.


Likewise, the record clearly supports the Board's finding  that social
penal workers are not correctional guards.  Though the record shows
that social penal workers are  trained in security functions, it is
clear that enforcement is  not essential to their main duties. And
while security func- tions are included in the job descriptions of
social penal  workers, there is no substantial evidence that employees
in  this job actually perform security tasks. Rather, as the  NLRB
found, it is the correctional officers, not the social  penal workers,
who have the primary responsibility of enforc- ing prison protection


There is no merit whatsoever to the Company's claim that  the Board
erred in entering a summary judgment. The  Board routinely decides
cases involving an alleged refusal to  bargain after a Board
certification, where the controlling  issues have been, or could have
been, litigated in the underly- ing representation hearing. See, e.g.,
Spectrum Healthcare  Servs., Inc., 325 N.L.R.B. 1061 (1998) (granting
General  Counsel's motion for summary judgment where representa- tion
issues were or could have been litigated in prior repre- sentation
proceeding). In such circumstances, the Board may  rely on findings
from the representation hearing in determin- ing whether there has
been a violation of section 8(a)(5) of the  Act. See, e.g., E.N. Bisso
& Son, Inc., 84 F.3d 1443, 1444 n.1  (D.C. Cir. 1996). The Board's
application of the summary  judgment procedure was fully justified in
this case. The  Company had a full and fair opportunity to litigate
all issues  during the representation hearing, the issues were fully
and  fairly considered by the Board, and the Company offered no  new
evidence at the unfair labor practice stage that warrant- ed a second
hearing on the disputed issues.


Finally, we reject the Company's so-called "jurisdictional"  issues. At
oral argument, counsel for the Company conceded  that the Company had
waived any claim resting on 29 U.S.C.  s 164(c)(1) (1994) ("The Board,
in its discretion, may ...  decline to assert jurisdiction over any
labor dispute involving  any class or category of employers, where, in
the opinion of  the Board, the effect of such labor dispute on
commerce is not  sufficiently substantial to warrant the exercise of
its jurisdic- tion."). Therefore, we offer no opinion on whether and
under  what circumstances the NLRB should, pursuant to this dis-
cretionary jurisdictional provision, decline to assert jurisdic- tion
over private venture correctional institutions.


The Company asserts that, quite apart from the dictates of  29 U.S.C. s
164(c)(1), the NLRB has no jurisdiction under  the Act over any
employees in any private correctional insti- tution. Actually, the
Company's argument on this point has  varied between a claim that the
Board has no jurisdiction  over any correctional institution and one
that the Board has  no jurisdiction over any maximum security
correctional insti- tution. In either case, however, the Company can
cite to no  statutory support for its position (nor is there record
evidence  that a maximum security institution is at issue here). It is
 clear that the Company is not excluded from the Act under 29  U.S.C.
s 152(2) (1994) ("The term 'employer' ... shall not  include the
United States or any wholly owned Government  corporation, or any
Federal Reserve Bank, or any State or  political subdivision
thereof."). It is also clear that there is  nothing in the Act that
excludes privately run correctional  institutions from coverage. And
since the employees at issue  here are not correctional guards, the
Company's argument  that we should "imply" an exclusion for such
workers from  the term "employee" is irrelevant. If good policy
militates in  favor of exclusion, that will be a matter for the NLRB 
(exercising its discretionary authority) or for Congress to  decide,
not this court. In short, there is no basis on this  record to


Accordingly, the petition for review is hereby denied, and  the Board's
cross-application for enforcement is granted.


So ordered.