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


ALOIS BOX CO INC

v.

NLRB


99-1340a

D.C. Cir. 2000


*	*	*


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


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


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


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 




__________

n 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.


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 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.


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,


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


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 


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 




__________

n 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


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'


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.


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 


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


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




__________

n 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 




__________

n 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


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


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 




__________

n 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