USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-1945

TELEMUNDO DE PUERTO RICO, INC.,

Petitioner, Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent, Cross-Petitioner.

_________________________

PETITION FOR REVIEW OF AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD

_________________________

Before

Selya, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

_________________________

Jay A. Garc a-Gregory with whom Trist n Reyes-Gilestra and

______________________
_______________________
Fiddler, Gonzalez & Rodriguez were on brief, for petitioner.
_____________________________
Ginoris Vizcarra de L pez-Lay, with
_____________________________

whom L pez-Lay Vizcarra

__________________

& Porro was on brief, for intervenor.

_______
John

D.

Burgoyne,

Assistant

General

Counsel, with

whom

__________________
Frederick L. Feinstein, General
_______________________
General

Counsel,

General Counsel,

and

Counsel, Linda Sher, Associate

___________

Aileen A. Armstrong,
_____________________

Deputy

National Labor Relations Board,

for respondent.

_________________________

May 15, 1997

_________________________

Associate

were on brief,

SELYA,
SELYA,

television,

Circuit
Judge.
Circuit
Judge.
_______________

We

and the judicial system

however, varies

the usual setting

live

in

the

is not immune.

in which

age

of

This case,

courts and

cameras

coalesce, for our interest lies behind the television screen.

In

pursuing that interest, we entertain today a question familiar to

a generation of television viewers:

The

script for

Puerto Rico, Inc. (the

final order

of the

determining that

this

"Who's the Boss?"

episode

features

Telemundo

Company), which petitions to set

National Labor

Relations Board

it unlawfully refused to

of

aside a

(the Board)

recognize and bargain

with the Uni n de Periodistas, Artes Gr ficas Y Ramas Anexas (the

Union).

The Board cross-petitions for

pursuant

to

the National

Labor

enforcement of its order

Relations Act

(the

Act), and

specifically, 29 U.S.C.

160(e),

(f) (1994).

We enforce

the

television station

in Hato

Rey,

order.

I.
I.

SETTING THE LIGHTS

SETTING THE LIGHTS

Telemundo operates a

Puerto Rico.

this

In December of

venue as

an

intervenor) sought

exclusive collective

of

Company

Telemundo

to

be certified

the

known

as

effort,

technical

casting

taken.

1996,

The

representation

proceeding

record was closed

in April

as

the

tiny group

directors

the

supervisors (and, thus, part of management).

conducted

(which appears in

bargaining representative of a

employees

opposed

1994, the Union

three

(TDs).

TDs

as

Agents of the Board

at which

1995.

evidence

was

On January 30,

the regional director issued a decision finding the TDs to

be run-of-the-mill

election

employees, not supervisors, and

(to take place on

February 28, 1996)

mandating an

for a bargaining

unit composed solely of the three TDs.

On February 12, the Company sought

filed a

dated

request for review

May 15, 1995, in which

superior, Rafael Corps, that

and annexed

reconsideration; it

to the papers

a letter

it had informed the TDs' immediate

his position

technical supervisor

(TS)

was to be eliminated effective June 16, 1995.

On February

28, the three TDs voted unanimously to join the Union.

denied

the Company's

thereafter

request

certified

the

for

Union

review

as

two days

the

The Board

later

bargaining

and

unit's

representative.

It is common ground that employers cannot obtain direct

review

of

unfavorable

Fed'n
of Labor
_________________

certification decisions.

v.

NLRB,
____

308

U.S.

401,

Consequently, if an employer is dissatisfied

See American
___ ________

409-11

(1940).

with the outcome of

a representation proceeding, the option of choice is to refuse to

bargain and to raise any

as

a defense

inevitably

to the

will ensue.

infirmity in the certification decision

unfair labor

practice charge

that almost

See, e.g., Boire v. Greyhound Corp., 376

___

____

_____

_______________

U.S. 473, 477 (1964); S.D. Warren Co. v. NLRB, 342 F.2d 814, 815
________________
____

(1st Cir. 1965).

So here:

the Company stonewalled, the

Union

pressed an unfair labor practice charge, and the Company defended

on the

ground that the bargaining unit was inappropriate because

the TDs were supervisors.

As part of this defense, the

Company

asked the Board to pay special heed to (1) the letter eliminating

the

technical

supervisor's

position,

and

(2)

an

affidavit

executed well after the election by Elizabeth Rivera, a member of

management, purporting to describe changes in the TDs' duties.

The General

Board obliged,

Counsel moved

rejecting the proffered

underlying certification, and

to bargain

The

affidavit, upholding the

ruling that the

violated the Act.

NLRB No. 133,

for summary judgment.

Company's refusal

See Telemundo of P.R., Inc., 321

___ ________________________

slip op. (NLRB Aug. 16, 1996).

These proceedings

followed apace.

II.
II.

ASSEMBLING THE CAST

ASSEMBLING THE CAST

The employees in the bargaining unit are members of the

Company's

production

services

department,

which

has

the

responsibility for

the

pendency of

comprised,

producing live

and taped telecasts.

the representation

inter
_____

alia,
____

proceeding,

the director

(Rivera),

During

the department

the

technical

supervisor (Corps), three program directors, three TDs, audio and

lighting persons, and

the

TS prepared

daily schedule

would work on which

responsibilities

including

eighteen studio

Typically,

delineating which

employees

programs and establishing a specific

for

technicians

coordinator, audio

technicians.

three

crews,

(e.g.,

each headed

cameramen,

and lighting

persons, a

by

floor

set of

TD

manager

and

or

character generator

operator) assigned to the crew by the TS.

In the pre-production stage, the

dictated

for

the

most part

by

the

crew's activities are

script

for the

upcoming

program.

The TD is

given the script,

sometimes called a

run-

down,

and it is incumbent upon him

prepared

hands

begins,

for production

are present

to ensure that the studio is

according to

and in

program director

the script

their places.

takes over

When

and

and that

all

the performance

the TD

operate the camera control panels in the control room.

retires to

Some crew

members work in the control room alongside the TD; others work on

the floor.

After the performance

fore; in the

as the

ends, the TD again comes

course of an approximately

wrap, the TD and

programming paraphernalia

to the

30-minute process known

his crew store the

in the control

equipment and other

room.

All

three TDs,

but no studio technicians, possess keys to the control room, and,

after

the equipage is stored,

locking the

which

room.

occurred with

the

crew's

membership,

during production, and relates

regard

program director

reports.

The TD also prepares and files a daily report

memorializes

equipment used

the TD assumes responsibility for

to either

and the

personnel

catalogues

the

any problems that

or equipment.

floor coordinator likewise

The

file daily

To achieve a balanced picture,

what TDs

do not

recommendations

supervisor

action

the

do.

They

in their

reads the

ordinarily do not

daily reports;

reports

and

he thinks is appropriate.

disciplining

evaluations.

of

They do

it is important to note

errant

rather, the

takes whatever

technical

disciplinary

The TDs neither participate in

employees

nor

not interview, hire,

make disciplinary

perform

employee

promote, demote, or

terminate

other

workers.

They

do

not

address

employee

grievances.

As in

absence,

find

any workplace, absenteeism

occurs.

another TD or the TS will replace him.

themselves

unable to

secure a replacement.

work must

inform

In a

TD's

Technicians who

the TS,

who will

If neither the department director nor the

TS is at the station (as frequently occurs on weekends, holidays,

and

during some night shifts),

employee

on the

needed

list composed

by the

technical supervisor and posted in the production office.

The TS

from another

As

crew or

such,

be the highest-ranking

recruit

substitutes

premises.

a TD may

he will

from a

often will "pop in" on such occasions, and, in any event, the TDs

have the home telephone

numbers of both the director and the TS,

and they are under instructions

to call either or both of

these

individuals in case of an emergency.

The

receive

more

TDs have some trappings of a higher echelon.

munificent salaries,

larger

benefits than the studio technicians.

spaces

and separate

occasionally

(including

desks (albeit

have been

few

negotiations were

at

discussed).

power to

on such

follow through

when a

tardiness,

work

TD

and

collective

initiatives

care

They

supervisors' meetings

bargaining

have initiated

but they do

notified Rivera

habits,

common office).

Sporadically, TDs

personnel

instance,

in a

which

meetings among technical

and better

They rate reserved parking

invited to attend

meetings

bonuses,

They

not have

unassisted.

of

his wish

of

equipment

to

the

For

discuss

with

the

technicians in his crew, Rivera called such a meeting and the

ran it.

On

memorandum

studios

another occasion, a TD drafted (but did

requesting

that technical

at the entry time set by

assigned

work then

signature

by the

and

TS

there.

and the

personnel

TD

not send) a

report

to the

management even if they had no

Rivera

TD, adding

rewrote the

a reminder

memo

for

about the

possible consequences of noncompliance.

III.
III.

THE RATINGS
THE RATINGS

In rating the Board's

performance, we first review its

determination that the TDs are not supervisors.

A.
A.

Receiving Our Cues.

Receiving Our Cues.
__________________

To put this case into perspective, it bears remembering

that

the

management

Act

strives

and labor.

to

To that

excluded from the bargaining

the

interests

of their

their coworkers.

(1st

Cir. 1977).

limn

clear

distinction

end, supervisory

employer rather

Act

employees are

process because they must represent

than the

See Stop & Shop Cos. v. NLRB, 548

___ _________________
____

The

between

defines

interests of

F.2d 17, 19

"supervisor"

as

"any

individual having authority, in the interest of the employer,

hire, transfer,

suspend, lay

assign, reward, or discipline

direct them,

recommend

or to

off,

discharge,

other employees, or responsibly to

adjust their

such action, if

recall, promote,

to

grievances, or effectively

in connection with

to

the foregoing the

exercise of such authority is not of a merely routine or clerical

nature, but requires the use of independent judgment."

152(11).

29 U.S.C.

Because the statute is to be read in the disjunctive,

any one of the enumerated powers may signify supervisory

See
___

Cir.

Northeast Utils. Serv. Corp. v. NLRB,

____________________________
____

1994), cert. denied, 115

_____ ______

Atomic Power Co.

_________________

v. NLRB,
____

S. Ct. 1356

624 F.2d 347,

35 F.3d 621, 624 (1st

(1995); Maine Yankee

____________

360 (1st

Cir. 1980).

Nonetheless, as the definition's final clause reflects,

intended to exclude "`straw

level

employees

supervisor

(7th Cir.

status.1

power

in

order

Congress

bosses,' `lead men,' and other

modest

supervisory

authority"

low-

from

NLRB v. Res-Care, Inc., 705 F.2d 1461, 1466

____
______________

1983) (quoting

enumerated

judgment

having

status.

must

to

legislative history).

involve

brand

the

the

exercise

holder of

Thus,

of

the

even an

independent

power

as

supervisor.

____________________

1The derivation of the term "straw boss" bears mentioning:

In the

early days of logging

country

straw

was

spread

in mountainous
upon

steep for horses to hold back

logs

but

not

"bridling,"

so

steep

slopes too

a sled load of
as

i.e., looping a

to

require

short length of

chain around a sled runner to drag underneath

it, or

holding the load

long rope

attached to

and wound

once or twice

stump

at the

friction.

the rear of

of a

the sled

(snubbed) around

of the

After each

full gallop
load, the

top

back by means

slope to

provide

passage, sometimes at

to keep the horses

ahead of the

straw was naturally displaced so a

man with a pitchfork was posted at each slope

to

keep

the

straw

evenly

distributed.

Although teamsters were men of consequence in

the lumber camps, the rule was that they were
not

to

start down

humbler functionary with

slope

until the

a pitchfork,

his "independent judgment," passed

far
using

word that

the

slope

was

prepared.

Hence the

term

"straw boss."

NLRB v. Swift & Co., 292 F.2d 561, 563 n.2 (1st Cir. 1961).
____
___________

Given

the

myriad

iterations of

possible and

the subtle distinctions

courts

afford

must

determination

great

deference

of which workers

authority

that easily can

to

fall into

the

that

are

be drawn,

Board's

expert

which classification.

See Goldies, Inc. v. NLRB,

___ ______________
____

628 F.2d

706, 710 (1st

Cir. 1980);

Maine Yankee, 624 F.2d at 360; see also Universal Camera Corp. v.
____________
___ ____ ______________________

NLRB, 340 U.S. 474, 488 (1951) (describing the Board as an agency
____

"presumably equipped

or informed

specialized field of knowledge,

carry

by experience to

deal with

whose findings within that field

the authority of an expertness which courts do not possess

and therefore must

respect").

Consequently, we

must accept the

Board's findings as to which employees are supervisors

are

not

unless those

substantial evidence in

Camera,
______

findings

fail

the record

to

derive

as a whole.

and which

support

See
___

from

Universal
_________

340 U.S. at 488; Providence Hosp. v. NLRB, 93 F.3d 1012,

________________
____

1016 (1st Cir. 1996); see also 29 U.S.C.

___ ____

160(e), (f).

B.
B.

The

piecemeal

Addressing the Studio Audience.

Addressing the Studio Audience.
______________________________

Company

analysis

contends

and

ignored

that

the

Board

overwhelming

engaged

record

evidence

indicating that TDs responsibly direct studio technicians.

carefully

examining

the

entire

substantial evidence supports the

record,

we

in

After

conclude

that

Board's determination that the

three TDs are ordinary employees, not supervisors.

The linchpin of this

pointed out, the

assessment is that, as the

primary responsibilities of

safeguarding equipment,

ensuring that the crew

Board

the TDs relate

to

is positioned in

accordance with

and

the script,

documenting

production of

the

events

performing actual

(or

particular programs.

nonevents)

Although

responsibilities greater than those borne by

they do not require

production work,

incident

to

the

these duties carry

studio technicians,

the exercise of independent judgment

in any

legally meaningful sense.

Certainly,

superintending the

maintenance and

use of

equipment is not commonly thought to be a supervisory function or

to require managerial authority.

See Maine Yankee, 624

___ ____________

F.2d at

361-62.

Similarly, the mere

employees

instructions

fact that an

from time

to time

employee gives other

does

not in

itself render him a supervisor for purposes of the Act.

& Shop, 548 F.2d at 19.

______

see also Goldies, 628 F.2d at 710.

___ ____ _______

more than

program's

implement

script.

the

the instructions

routine.

contained in

the

Moreover, because each technician has his own

minimal supervision.

circumstances,

See id.;
___ ___

In this situation, the TDs do

assignment and performs repetitive tasks

members require

See Stop
___ ____

Rather, the portent of that fact depends

on the relative significance of the instructions given.

little

and of

the TDs'

orders

Thus, the instructions,

day after day, the crew

Viewed in

are

the totality of

both perfunctory

evaluated in context,

and

do not

fairly

indicate

that

the

instructors

possess

authority

exercise independent judgment in overseeing other employees.

NLRB v.
____

Cir.

to

See
___

Dickerson-Chapman, Inc., 964 F.2d 493, 496, 499-500 (5th

_______________________

1992);

Broad. Co.,
__________

Goldies, 628
_______

216 NLRB

F.2d

at 710;

327, 329 (1975)

10

see
___

also Westinghouse
____ ____________

(finding that

television

directors

did

directions

not

they

"responsibly

gave

were

pursuant to preconceived

direct"

routine

employees

technical

where

commands

the

"made

production guidelines which ha[d]

been

approved by higher authorities").

Although

persons at

the fact

that

TDs are

the

highest-ranking

the station on certain occasions hints at supervisory

status, that fact alone does not convert otherwise routine duties

into supervisory

F.2d 50, 54

performed by

tasks.

See Fall River Sav. Bank v.

___ _____________________

(1st Cir. 1981).

the TDs

And, here, the

on those occasions

additional duties

are mundane.

them necessitates supervisory authority for its

The technical

assignments

supervisor, not the

and replacements;

TD, is

only when

NLRB, 649
____

None of

due performance.

responsible for

the TS

work

is unavailable

does the TD locate substitutes, and, even then, the TD must refer

to

list

of names

prepared

by

irregular, mechanical, and devoid

not constitute

true authority

Utils., 35 F.3d at
______

the

TS.

This

function

of independent judgment

to assign work.2

does

See
___

Northeast
_________

625; Highland Superstores, Inc. v.

__________________________

NLRB, 927
____

F.2d 918, 923 (6th Cir. 1991).

Finally,

filing

occasional meeting

situation.

See,
___

daily

does not make

reports

attending

a decisive difference

e.g., Stop & Shop,

____ ____________

Magnesium Casting Co., 427

_____________________

and

548 F.2d

in this

at 20;

F.2d 114, 117 (1st Cir.),

the

NLRB v.
____

aff'd, 401
_____

____________________

2This
department

conclusion
director

is

fortified

and the

TS are

by
on

the

fact

call, and

that

the Company

provides the TDs with their home telephone numbers for use
emergency arises.

the

if an

See North Shore Weeklies, Inc., 317 NLRB 1128,

___ __________________________
1131 (1995); Ball Plastics Div., 228 NLRB 633, 634 (1977).
__________________

11

U.S. 137 (1970).

do not

The reports are merely informational;

effectively recommend

the forms.

Thus,

disciplinary action

the TDs

by completing

even though the information conveyed

in these

reports sometimes may lead to the imposition of discipline, it is

not the writers who make

the call.

Even on those

few occasions

when the TDs have submitted recommendations, their superiors have

exercised independent

judgment in

deciding whether (and

what) disciplinary action is warranted.

the

TDs are

otherwise

fulfilling a

indicium of

F.2d at

922.

conflicting

meetings

which

mere scriveners

In these respects, then,

and acting

purely

if so,

as an

amanuensis or

reportorial function

is not

an

supervisory status.

See Highland Superstores, 927

___ _____________________

The evidence

is also

inferences.

for supervisors

as to meetings

To

but

they were not invited.

be sure,

the

subject to

TDs attended

many such meetings

a few

were held to

And when they attempted to arrange

technicians' meetings, they were stymied unless they received the

blessing of Rivera and Corps.

We

do not mean to imply that the evidence is one-sided

or

that the

pivotal question

is free

from doubt.

There

are

several evidentiary trails in the record, some leading toward one

destination at which the Board arrived and some leading away from

it.

Some of the factors which we have discussed argue in varying

degrees

times,

for supervisory status

their pay

occasionally

attending

level, the

passing out work

meetings

the

TDs' hegemony

at certain

giving of instructions

to others,

assignments, filing

reports, and

but many of them are double-edged.

12

Just as

important,

the Board

considered the

collective force

of these

factors and rejected the inference hawked by the Company in favor

of

a different, equally supported inference.

On reflection, we

cannot say that the Board's choice was arbitrary or capricious.

In a last-ditch effort to save the show, the petitioner

flips

to another channel.

overturning the

Board's decision

Maine Yankee, the Board

____________

at

a nuclear

reversed.

have

624

to answer

It urges that

here.

Maine Yankee requires

____________

We do not

agree.

In

decided that shift operating supervisors

power plant

were not

F.2d at 366.

for anything

statutory supervisors.

We

Because the shift supervisors would

that went

wrong with

the plant's

electrical

output, management

responsible for

the

possessed authority

id.
___

held

employees'

them fully

performance,

accountable and

and,

responsibly to direct other

thus,

employees.

they

See
___

at 360-61; see also NLRB v. J.K. Elecs., Inc., 592 F.2d 5, 7

___ ____ ____
_________________

(1st Cir. 1979) (holding

as supervisors group leaders

lose their positions if

employees in their group failed

production

quotas).

compelling

evidence

that

performance

of

the

adequate

distinction

35 F.3d

Here,

however, the

record

TD

accountable

is

held

crew's

makes a world of difference.

at 625

technical

who could

to meet

contains

for the

work.

actions of other employees).

This

See Northeast Utils.,

___ ________________

(distinguishing Maine Yankee in excluding

_____________

supervisory status coordinators who

no

from

were not responsible for the

The Company

the

question

of

also claims

whether

TDs

that Maine Yankee

____________

perforce

exercise

bears upon

independent

13

judgment because they cannot always reach the department director

or

the

technical

consultation.

supervisor

by

telephone

for

emergency

But Maine Yankee reflects a vastly different plot.

____________

In

that case, the panel

emphasized the complexity, variety, and

dangerousness of operational duties at an atomic power plant, 624

F.2d at 361

there

& n.14,

363, and distinguished

a shift

supervisor

who had to initiate remedial measures quickly whether or

not he could reach his superiors

employees

and equipment

from "a dispatcher who assigns

according to

a relatively

simple pre-

programmed plan" developed by the employer, id. at 363.

___

no evidence

in the

instant record

dangerousness, nor is

emergency

there evidence that a TD

decisions on hazardous

Indeed, the

only

whether

proceed

to

relevant proof

with two

cameraman is missing.

the

of comparable

Board's conclusion

complexity or

may have to make

or even intricate

relates to

cameras

There is

matters.

decisions such

instead

of

three if

as

Under these circumstances, we cannot fault

that the

TDs

act more

as dispatchers,

performing routine tasks

than as supervisors.

and conveying boilerplate instructions,

And, moreover,

wholly consistent with the

the Board's conclusion

is

TDs' stated self-perception that they

are crew leaders, no more.

To conclude,

strata

ladder.

of

employees

there is

and

a fine

the lowest

We freely acknowledge that the

line between the

rungs

of

the management

Board, had it chosen to

weight the TDs' responsibilities differently, could

the opposite result.

have reached

The question is admittedly close,

14

upper

yet its

very closeness

Board.

It is

argues persuasively in favor of

particularly in the close

are generalists, should respect

Board

cases that judges,

who

the specialized knowledge of the

and accede to its factbound determinations as long as they

are rooted in the record.

Put

deference to the

bluntly, courts

judgments

for the

must

be careful

Board's

where, on

evidence supports any of

among them.

See Universal Camera, 340 U.S. at 488.

___ ________________

not

to substitute

whole-record review,

several views and the Board

their

the

has chosen

See NLRB v. Auciello Iron Works, Inc., 980 F.2d 804,

___ ____
_________________________

808 (1st Cir. 1992); Stop & Shop, 548 F.2d at 20.

___________

IV.
IV.

THE LATE SHOW

THE LATE SHOW

As

a fallback

position,

the Company

remand the case for reconsideration

evidence which

the

TDs.

it says

The

request

circumstances that allegedly have

the

representation hearing:

supervisor's

in light of newly

signifies expanded

Company's

position, the

hinges

the

fledgling

evaluation

presents

the

committee.

require

on

the

elimination of

the TDs, and the inclusion of the

responsibilities

submitted

responsibilities for

ostensible transfer

of

to

import

of

arisen since the conclusion of

duties to

question

implores us

when

This

of some

of his

TDs as members of a

initiative

changes

reexamination

the technical

in

of

squarely

employment

an

earlier

determination of employee status.

A.
A.

It is

Reshooting the Scene.

Reshooting the Scene.
____________________

well settled that an

employer defending against

15

an unfair

were

(or

labor practice

could

have

charge cannot relitigate

been)

contested

in

the

issues which

underlying

representation

102.67(f);

proceeding.

See
___

29

C.F.R.

102.65(e)(1),

see also Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.

___ ____ __________________________
____

146, 162 (1941); Fall River Sav. Bank, 649 F.2d at 58.
_____________________

an

exception

to

circumstances,

previously

C.F.R.

this

usually

salutary

embodying

undiscovered (or,

102.65(e)(1);3 see
___

at

rule

the

for

There is

extraordinary

emergence

of

evidence

least, unavailable).

See
___

also Fall River Sav. Bank,

____ ____________________

29

649 F.2d

at 58; East Mich. Care Corp., 246 NLRB 458, 459 (1979), enforced
______________________
________

without
_______

exception

opinion, 655
_______

should

be

F.2d

721

invoked

hesitate to second-guess

(6th

Cir.

sparingly,

1981).

and

the Board's assessment

circumstances do not qualify for it.

But

court

this

should

that particular

B.
B.

The

Switching Stations.
Switching Stations.
__________________

proffered evidence is of two types.

We treat each

type separately.

____________________

3The applicable agency rule provides in pertinent part:

party to a proceeding may, because of

extraordinary

circumstances, move

close

hearing for

of the

after the

reopening

record, or move after the decision

for

reconsideration,

reopen

the

discovered
become

record
evidence

. .

or report

rehearing, or
.

Only

evidence

which

to

newly
has

available only since the close of the

hearing

or

director

or the

been taken

evidence which
Board believes

at the

any further hearing.

29 C.F.R.

for

of the

102.65(e)(1).

the

regional

should have

hearing will be

taken at

16

1.
1.

The evidence concerning the

position as technical supervisor

scant comment.

to the

This

request for

director's adverse

Because

elimination of Corps'

the May 15 letter

letter had been submitted as

review filed

decision

in

in the

a request for review "may

the wake

requires

an attachment

of the

representation

regional

proceeding.

not raise any issue or allege

any

facts

C.F.R.

not timely

102.67(d),

obligation on

termination,

record.

the regional

the submission

the Board to

of

director," 29

the letter

imposed

consider the implications

no

of Corps'

especially in the absence of a motion to reopen the

See generally East Mich. Care, 246 NLRB at 459 (dictum).

___ _________ _______________

Beyond

Board, in its own

that pitfall,

case

second obstacle

looms.

phrase, "fully considered" the May

Telemundo, slip op. at

_________

remand

presented to

1 n.1.

We

for consideration

15 letter.

think it would be curious

of

evidence

that

The

to

an agency

already has fully considered, and we will not do so here.4

2.
2.

The

more nettlesome question relates to

the claim

that the TDs had been vested with some managerial duties formerly

handled by

the technical supervisor and had

been assigned added

responsibility for evaluating other employees.

notice

the

The Board's first

of these alleged innovations came on July 16, 1996 (after

_____

bargaining

unit

had

been

certified),

when

the

Company

____________________

4Moreover,

we

readily appreciate

attach decretory significance to the

only

that the Company had

technical

supervisor.

position elimination

It
might

the

Board's

epistle.

The letter states

decided to eliminate
furnishes
alter or

technical directors' duties.

17

no

refusal to

the position of

indication that

affect

the scope

of

this

the

submitted,

as part

of its

reply to

charge, an affidavit executed

department director.

the unfair

labor practice

on May 9 by Elizabeth

Rivera, the

The Rivera affidavit claimed, for the first

time, that "some administrative duties that were performed by the

Technical

Supervisor,

schedules and

disclosed

committee

as

the revision and

are now performed

also

such

by the

that in

to evaluate

the preparation

approval of the

Technical Directors."

March 1996

the

the technicians'

of

the

daily

weekly payroll,

The

affidavit

Company had

created a

work and

made the

TDs

members of it (thus enhancing their supervisory roles).

Assuming

arguendo
________

the

truth

of

the

Company's

description of these augmented duties, the timing gives us pause.

While

Rivera's

changes

the

affidavit is

transpired

its text

additional duties; it does

which the Company

clear

strangely

made the

that the attempted

took place

at some

time

silent as

states only that

expansion of the

after the

representation proceeding.

when the

the TDs assumed

not broadcast the

reallocation

to

it is

time frame in

transparently

TDs' job description

record

had closed

Thus, those changes,

in

the

no matter when

thereafter they were effectuated, do not constitute evidence that

can vitiate

the Board's determination

bargaining unit.

of the

propriety of

the

It follows that the Board acted well within its

lawful authority in refusing to entertain the proffer.

If an

be considered by

employer could insist that evidence of this kind

a reviewing

tribunal (be it

court or

agency)

after

the

administrative

record

had

been

closed,

then

the

18

employer routinely

could defease

a bargaining unit

despite the

fact that the Board had determined it to be appropriate.

doing

so would

require

no greater

affected employees' duties.

not

only

to

the

effort

Indeed,

than modifying

the

Such a regime would be antithetical

Board's regulations

but

also

to precedent,

policy, and the objectives of the Act.

The regulatory scheme is explicit; the Board determines

the

appropriateness

conditions

hearing,

of

of

employment

and,

at

least

circumstances,5 the

"evidence

bargaining

as they

in

the

the

rubric

"newly

at

absence

based

the

of

upon

the

time of

the

extraordinary

may be augmented

See 29 C.F.R.
___

only by

102.65(e)(1).

discovered

evidence"

This

to

which has become available only since the close of the

hearing,

or evidence

which the

believes

should have

been taken

definition effectively demarcates

as

unit

exist

record thereafter

newly discovered evidence.

regulation limits

the outermost

point in

regional director or

at the

hearing."

the representation

time to

which evidence

the Board

Id.
___

This

proceeding

can relate.

Facts which arise only

_____

after the hearing has been

the record

closed are

irrelevant, whereas

discovered
__________

until then

(but which

concluded and

facts which

are not

the time

frame at

relate to

____________________

5We reject
change

in

requiring

out

duties here
the

Board to

bargaining unit.
a

of hand

representation

the

Company's argument

constitutes
reexamine

the

extraordinary circumstances
the

appropriateness of

the

If an employer, dissatisfied with the upshot of

proceeding,

could

manufacture

sufficient to

require reconsideration simply by

around,

Board certifications

then

that

hollow gestures.

19

would

be

circumstances

shifting duties
little more

than

issue

in

the

hearing)

are

potentially

relevant

and

may be

considered in the Board's discretion.

Precedent fully

unilateral changes

representation

upon the

to

employment parameters

hearing has

outcome of that

98, slip op.

supports the general

been completed

proceeding.

at 1 (NLRB Nov. 22,

proposition that

occurring after

can have

See K-Mart,
___ ______

no bearing

322 NLRB No.

1996) ("If the change

was the

result of unilateral actions by the Respondent, it would normally

not be a

basis for reconsidering

the certification .

. .

."),

petition for review pending (D.C. Cir., No. 96-1461); East Mich.
________ ___ ______ _______
___________

Care,

246

NLRB at

459

(holding

that evidence

of

subsequent

____

changes made

in the duties

because the evidence

the

time

of

the

therefore, d[id]

of unit

employees lacked

"d[id] not involve

hearing

in

relevance

facts which existed

the underlying

proceeding

not constitute newly discovered

at

and,

and previously

unavailable evidence").

This proposition also

core purposes

of the

Act.

union, for that matter)

of the

comports with

Affording an employer

What is

objective of

labor

dislodge the balance

of the collective bargaining framework.

See Auciello Iron Works, Inc. v. NLRB, 116 S. Ct.

___ __________________________
____

(1996).

(or a

and

unilateral control over critical aspects

collective bargaining process would

and weaken the structure

sound policy

1754, 1758-60

more, enforcing this policy furthers

restoring the equality of

the broad

bargaining power between

employers

and employees

that is

so central

to the

Act, while

simultaneously securing stability in labor relations.

See id. at
___ ___

20

1759; see also 29 U.S.C.

___ ____

Of

representation

course,

151.

the

proceeding

closing

does not

of

freeze

the

the

record

in

duties of

the

members of the proposed

circumstances.

on

warranted

in

presuming

that such duties are irrelevant to its conclusion.

An

employer who

burden of

conferred

seeks to

showing that

the

motion

duties,

to

reopen

the

Board

is

and in all

premised

subsequently

When

bargaining unit for all time

is

overcome that presumption

a legitimate business

bears a

heavy

necessity arising

out of circumstances that were in play before the

representation

proceeding concluded forced him to recast job descriptions.

e.g.,
____

Frito Lay, Inc.,

________________

177 NLRB

820,

821 (1969)

See,
___

(vacating a

certification after ensuring that changes in duties were effected

pursuant to "legitimate business

purposes, and without intent to

evade the Respondent's obligation under the certification").6

We

need

not

tarry.

The

Company

has presented

no

evidence that

either the shifting of

duties or the creation of

events

set

in

motion

the technical supervisor's

the evaluation committee resulted from

prior

to,

and

independent

of,

the

____________________

6In Frito Lay, the Board dismissed an unfair

_________
complaint,
company's
factor"

finding that subsequent

nationwide

which made

820 NLRB at 821.

the

begun

a study

eliminated the

previously certified

provided
of

the employer's

operations

purpose of
Id.
___

that the

which had

union

The timing enabled the

with the Board's

not for

the

unit finding."

Telemundo has sketched no comparable story line.

21

of the

before the
______

"restructuring was clearly

avoiding compliance

decision,

a result

management consultant

instituted the representation proceeding.

Board to find

unit appropriate.

this reorganization as
by a

to the

"essential

As was repeatedly underscored in the

employer undertook

recommendations

changes attributable

reorganization
the

labor practice

representation

proceeding.

Rivera's affidavit

Thus, the

falls well

and cannot justify a

evidence

outside the compass

remand for the purpose of

contained

in

of relevance

relitigating the

issue of supervisory status.

There is,

Board's

order in

moreover, another basis

the

face of

the

previously mentioned, the evidence

Telemundo first

See supra p.

purposed to

17-18.

for sustaining

Company's proffer.

is cloudy as to

augment the

As

the

we

exactly when

TDs' responsibilities.

It is, however, pellucid

that the TDs were

___ _____

not assigned to positions on the evaluation committee until March

1996

at
__

the earliest.
___ ________

By

that time,

any proposed

change in

duties that would convert unit employees to statutory supervisory

status

(and thereby eliminate the

bargaining unit) had become a

mandatory subject of collective bargaining.

See East Mich. Care,

___ _______________

246 NLRB at 459-60 & n.4; Highland Terrace Convalescent Ctr., 233
__________________________________

NLRB

87,

88 (1977);

(1977),

enforced,
________

U.S.C.

158(d)

wages, hours,

Because the

Kendall College, 228

________________

570 F.2d

216 (7th

(designating as

and "other

Cir.

NLRB

1978); see
___

mandatory bargaining

terms and conditions

change in duties

1083, 1087-89

also 29
____

subjects

of employment").

that Telemundo attempted

done unilaterally and, in the Company's own words,

here was

"should carry

the day" in its quest to incorporate the TDs into management, the

change

transgressed

Therefore,

the

rather

misclassification,

obligation

than

the

evidence of an unlawful

new

to

bargain

constituting

assignment

refusal to bargain.

22

collectively.

evidence

constitutes

See,
___

of

further

e.g., NLRB v.
____ ____

Westinghouse Broad. & Cable, Inc., 849 F.2d 15, 20, 22 (1st
_________________________________

Cir.

1988); East Mich. Care, 246 NLRB at 459-50 & n.4.7

_______________

V.
V.

THE WRAP
THE WRAP

We need go

the

TDs

are

no further.

employees,

not

The Board's determination that

supervisors,

substantial evidence on

the record

Board

holding its

did

not err

in

is

as a whole.

ground

supported

Moreover,

by

the

notwithstanding the

unilateral changes that the Company made in the TDs' duties after

the record in the representation proceeding had been closed.

The petition for review is denied, the cross-petition

The petition for review is denied, the cross-petition
_______________________________________________________

is granted, and the Board's order is enforced.

is granted, and the Board's order is enforced.
______________________________________________

____________________

7To be sure, there is an exception to this longstanding rule

in cases

where compelling

See Westinghouse,
___ ____________

849

economic considerations are

F.2d at

consequence here, however, as

20.

The exception

present.
is

the Company does not rely

of

no

upon it

and the record does not disclose any facts that would support its
invocation.

23