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 Counsel, Linda Sher, Associate _______________________ ___________
General Counsel, and Aileen A. Armstrong, Deputy Associate _____________________
General Counsel, National Labor Relations Board, were on brief,
for respondent.
_________________________
May 15, 1997
_________________________
SELYA, Circuit Judge. We live in the age of SELYA, Circuit Judge. _______________
television, and the judicial system is not immune. This case,
however, varies the usual setting in which 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: "Who's the Boss?"
The script for this episode features Telemundo of
Puerto Rico, Inc. (the Company), which petitions to set aside a
final order of the National Labor Relations Board (the Board)
determining that it unlawfully refused to recognize and bargain
with the Uni n de Periodistas, Artes Gr ficas Y Ramas Anexas (the
Union). The Board cross-petitions for enforcement of its order
pursuant to the National Labor Relations Act (the Act), and
specifically, 29 U.S.C. 160(e), (f) (1994). We enforce the
order.
I. SETTING THE LIGHTS I. SETTING THE LIGHTS
Telemundo operates a television station in Hato Rey,
Puerto Rico. In December of 1994, the Union (which appears in
this venue as an intervenor) sought to be certified as the
exclusive collective bargaining representative of a tiny group
of Company employees known as technical directors (TDs).
Telemundo opposed the effort, casting the three TDs as
supervisors (and, thus, part of management). Agents of the Board
conducted a representation proceeding at which evidence was
taken. The record was closed in April 1995. On January 30,
1996, the regional director issued a decision finding the TDs to
2
be run-of-the-mill employees, not supervisors, and mandating an
election (to take place on February 28, 1996) for a bargaining
unit composed solely of the three TDs.
On February 12, the Company sought reconsideration; it
filed a request for review and annexed to the papers a letter
dated May 15, 1995, in which it had informed the TDs' immediate
superior, Rafael Corps, that 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. The Board
denied the Company's request for review two days later and
thereafter certified the Union as the bargaining unit's
representative.
It is common ground that employers cannot obtain direct
review of unfavorable certification decisions. See American ___ ________
Fed'n of Labor v. NLRB, 308 U.S. 401, 409-11 (1940). _________________ ____
Consequently, if an employer is dissatisfied with the outcome of
a representation proceeding, the option of choice is to refuse to
bargain and to raise any infirmity in the certification decision
as a defense to the unfair labor practice charge that almost
inevitably will ensue. 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
3
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 Counsel moved for summary judgment. The
Board obliged, rejecting the proffered affidavit, upholding the
underlying certification, and ruling that the Company's refusal
to bargain violated the Act. See Telemundo of P.R., Inc., 321 ___ ________________________
NLRB No. 133, slip op. (NLRB Aug. 16, 1996). These proceedings
followed apace.
II. ASSEMBLING THE CAST II. ASSEMBLING THE CAST
The employees in the bargaining unit are members of the
Company's production services department, which has the
responsibility for producing live and taped telecasts. During
the pendency of the representation proceeding, the department
comprised, inter alia, the director (Rivera), the technical _____ ____
supervisor (Corps), three program directors, three TDs, audio and
lighting persons, and eighteen studio technicians. Typically,
the TS prepared a daily schedule delineating which employees
would work on which programs and establishing a specific set of
responsibilities for three crews, each headed by a TD and
including technicians (e.g., cameramen, a floor manager or
coordinator, audio and lighting persons, a character generator
operator) assigned to the crew by the TS.
In the pre-production stage, the crew's activities are
dictated for the most part by the script for the upcoming
program. The TD is given the script, sometimes called a run-
4
down, and it is incumbent upon him to ensure that the studio is
prepared for production according to the script and that all
hands are present and in their places. When the performance
begins, a program director takes over and the TD retires to
operate the camera control panels in the control room. Some crew
members work in the control room alongside the TD; others work on
the floor.
After the performance ends, the TD again comes to the
fore; in the course of an approximately 30-minute process known
as the wrap, the TD and his crew store the equipment and other
programming paraphernalia in the control room. All three TDs,
but no studio technicians, possess keys to the control room, and,
after the equipage is stored, the TD assumes responsibility for
locking the room. The TD also prepares and files a daily report
which memorializes the crew's membership, catalogues the
equipment used during production, and relates any problems that
occurred with regard to either personnel or equipment. The
program director and the floor coordinator likewise file daily
reports.
To achieve a balanced picture, it is important to note
what TDs do not do. They ordinarily do not make disciplinary
recommendations in their daily reports; rather, the technical
supervisor reads the reports and takes whatever disciplinary
action he thinks is appropriate. The TDs neither participate in
the disciplining of errant employees nor perform employee
evaluations. They do not interview, hire, promote, demote, or
5
terminate other workers. They do not address employee
grievances.
As in any workplace, absenteeism occurs. In a TD's
absence, another TD or the TS will replace him. Technicians who
find themselves unable to work must inform the TS, who will
secure a replacement. If neither the department director nor the
TS is at the station (as frequently occurs on weekends, holidays,
and during some night shifts), a TD may be the highest-ranking
employee on the premises. As such, he will recruit needed
substitutes from another crew or from a list composed by the
technical supervisor and posted in the production office. The TS
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 TDs have some trappings of a higher echelon. They
receive more munificent salaries, larger bonuses, and better
benefits than the studio technicians. They rate reserved parking
spaces and separate desks (albeit in a common office). They
occasionally have been invited to attend supervisors' meetings
(including a few meetings at which collective bargaining
negotiations were discussed). Sporadically, TDs have initiated
meetings among technical personnel but they do not have the
power to follow through on such initiatives unassisted. For
instance, when a TD notified Rivera of his wish to discuss
tardiness, work habits, and care of equipment with the
6
technicians in his crew, Rivera called such a meeting and the TD
ran it. On another occasion, a TD drafted (but did not send) a
memorandum requesting that technical personnel report to the
studios at the entry time set by management even if they had no
assigned work then and there. Rivera rewrote the memo for
signature by the TS and the TD, adding a reminder about the
possible consequences of noncompliance.
III. THE RATINGS III. THE RATINGS
In rating the Board's performance, we first review its
determination that the TDs are not supervisors.
A. Receiving Our Cues. A. Receiving Our Cues. __________________
To put this case into perspective, it bears remembering
that the Act strives to limn a clear distinction between
management and labor. To that end, supervisory employees are
excluded from the bargaining process because they must represent
the interests of their employer rather than the interests of
their coworkers. See Stop & Shop Cos. v. NLRB, 548 F.2d 17, 19 ___ _________________ ____
(1st Cir. 1977). 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, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment." 29 U.S.C.
152(11). Because the statute is to be read in the disjunctive,
7
any one of the enumerated powers may signify supervisory status.
See Northeast Utils. Serv. Corp. v. NLRB, 35 F.3d 621, 624 (1st ___ ____________________________ ____
Cir. 1994), cert. denied, 115 S. Ct. 1356 (1995); Maine Yankee _____ ______ ____________
Atomic Power Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980). _________________ ____
Nonetheless, as the definition's final clause reflects, Congress
intended to exclude "`straw bosses,' `lead men,' and other low-
level employees having modest supervisory authority" from
supervisor status.1 NLRB v. Res-Care, Inc., 705 F.2d 1461, 1466 ____ ______________
(7th Cir. 1983) (quoting legislative history). Thus, even an
enumerated power must involve the exercise of independent
judgment in order to brand the holder of the power as a
supervisor.
____________________
1The derivation of the term "straw boss" bears mentioning:
In the early days of logging in mountainous
country straw was spread upon slopes too
steep for horses to hold back a sled load of
logs but not so steep as to require
"bridling," i.e., looping a short length of
chain around a sled runner to drag underneath
it, or holding the load back by means of a
long rope attached to the rear of the sled
and wound once or twice (snubbed) around a
stump at the top of the slope to provide
friction. After each passage, sometimes at
full gallop to keep the horses ahead of the
load, 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 a slope until the far
humbler functionary with a pitchfork, using
his "independent judgment," passed 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). ____ ___________
8
Given the myriad iterations of authority that are
possible and the subtle distinctions that easily can be drawn,
courts must afford great deference to the Board's expert
determination of which workers fall into 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 by experience to deal with a
specialized field of knowledge, whose findings within that field
carry 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 and which
are not unless those findings fail to derive support from
substantial evidence in the record as a whole. See Universal ___ _________
Camera, 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. Addressing the Studio Audience. B. Addressing the Studio Audience. ______________________________
The Company contends that the Board engaged in
piecemeal analysis and ignored overwhelming record evidence
indicating that TDs responsibly direct studio technicians. After
carefully examining the entire record, we conclude that
substantial evidence supports the Board's determination that the
three TDs are ordinary employees, not supervisors.
The linchpin of this assessment is that, as the Board
pointed out, the primary responsibilities of the TDs relate to
safeguarding equipment, ensuring that the crew is positioned in
9
accordance with the script, performing actual production work,
and documenting the events (or nonevents) incident to the
production of particular programs. Although these duties carry
responsibilities greater than those borne by studio technicians,
they do not require 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 fact that an employee gives other
employees instructions from time to time does not in and of
itself render him a supervisor for purposes of the Act. See Stop ___ ____
& Shop, 548 F.2d at 19. Rather, the portent of that fact depends ______
on the relative significance of the instructions given. See id.; ___ ___
see also Goldies, 628 F.2d at 710. In this situation, the TDs do ___ ____ _______
little more than implement the instructions contained in the
program's script. Moreover, because each technician has his own
assignment and performs repetitive tasks day after day, the crew
members require minimal supervision. Viewed in the totality of
the circumstances, the TDs' orders are both perfunctory and
routine. Thus, the instructions, evaluated in context, do not
fairly indicate that the instructors possess authority to
exercise independent judgment in overseeing other employees. See ___
NLRB v. Dickerson-Chapman, Inc., 964 F.2d 493, 496, 499-500 (5th ____ _______________________
Cir. 1992); Goldies, 628 F.2d at 710; see also Westinghouse _______ ___ ____ ____________
Broad. Co., 216 NLRB 327, 329 (1975) (finding that television __________
10
directors did not "responsibly direct" employees where the
directions they gave were routine technical commands "made
pursuant to preconceived production guidelines which ha[d] been
approved by higher authorities").
Although the fact that TDs are the highest-ranking
persons at the station on certain occasions hints at supervisory
status, that fact alone does not convert otherwise routine duties
into supervisory tasks. See Fall River Sav. Bank v. NLRB, 649 ___ _____________________ ____
F.2d 50, 54 (1st Cir. 1981). And, here, the additional duties
performed by the TDs on those occasions are mundane. None of
them necessitates supervisory authority for its due performance.
The technical supervisor, not the TD, is responsible for work
assignments and replacements; only when the TS is unavailable
does the TD locate substitutes, and, even then, the TD must refer
to a list of names prepared by the TS. This function
irregular, mechanical, and devoid of independent judgment does
not constitute true authority to assign work.2 See Northeast ___ _________
Utils., 35 F.3d at 625; Highland Superstores, Inc. v. NLRB, 927 ______ __________________________ ____
F.2d 918, 923 (6th Cir. 1991).
Finally, filing daily reports and attending the
occasional meeting does not make a decisive difference in this
situation. See, e.g., Stop & Shop, 548 F.2d at 20; NLRB v. ___ ____ ____________ ____
Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir.), aff'd, 401 _____________________ _____
____________________
2This conclusion is fortified by the fact that the
department director and the TS are on call, and the Company
provides the TDs with their home telephone numbers for use if an
emergency arises. See North Shore Weeklies, Inc., 317 NLRB 1128, ___ __________________________
1131 (1995); Ball Plastics Div., 228 NLRB 633, 634 (1977). __________________
11
U.S. 137 (1970). The reports are merely informational; the TDs
do not effectively recommend disciplinary action by completing
the forms. Thus, 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 if so,
what) disciplinary action is warranted. In these respects, then,
the TDs are mere scriveners and acting as an amanuensis or
otherwise fulfilling a purely reportorial function is not an
indicium of supervisory status. See Highland Superstores, 927 ___ _____________________
F.2d at 922. The evidence as to meetings is also subject to
conflicting inferences. To be sure, the TDs attended a few
meetings for supervisors but many such meetings were held to
which they were not invited. 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 for supervisory status the TDs' hegemony at certain
times, their pay level, the giving of instructions to others,
occasionally passing out work assignments, filing reports, and
attending meetings but many of them are double-edged. Just as
12
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. It urges that Maine Yankee requires ____________
overturning the Board's decision here. We do not agree. In
Maine Yankee, the Board decided that shift operating supervisors ____________
at a nuclear power plant were not statutory supervisors. We
reversed. 624 F.2d at 366. Because the shift supervisors would
have to answer for anything that went wrong with the plant's
electrical output, management held them fully accountable and
responsible for the employees' performance, and, thus, they
possessed authority responsibly to direct other employees. See ___
id. at 360-61; see also NLRB v. J.K. Elecs., Inc., 592 F.2d 5, 7 ___ ___ ____ ____ _________________
(1st Cir. 1979) (holding as supervisors group leaders who could
lose their positions if employees in their group failed to meet
production quotas). Here, however, the record contains no
compelling evidence that a TD is held accountable for the
adequate performance of the crew's technical work. This
distinction makes a world of difference. See Northeast Utils., ___ ________________
35 F.3d at 625 (distinguishing Maine Yankee in excluding from _____________
supervisory status coordinators who were not responsible for the
actions of other employees).
The Company also claims that Maine Yankee bears upon ____________
the question of whether TDs perforce exercise independent
13
judgment because they cannot always reach the department director
or the technical supervisor by telephone for emergency
consultation. 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 & n.14, 363, and distinguished a shift supervisor
there who had to initiate remedial measures quickly whether or
not he could reach his superiors from "a dispatcher who assigns
employees and equipment according to a relatively simple pre-
programmed plan" developed by the employer, id. at 363. There is ___
no evidence in the instant record of comparable complexity or
dangerousness, nor is there evidence that a TD may have to make
emergency decisions on hazardous or even intricate matters.
Indeed, the only relevant proof relates to decisions such as
whether to proceed with two cameras instead of three if a
cameraman is missing. Under these circumstances, we cannot fault
the Board's conclusion that the TDs act more as dispatchers,
performing routine tasks and conveying boilerplate instructions,
than as supervisors. And, moreover, the Board's conclusion is
wholly consistent with the TDs' stated self-perception that they
are crew leaders, no more.
To conclude, there is a fine line between the upper
strata of employees and the lowest rungs of the management
ladder. We freely acknowledge that the Board, had it chosen to
weight the TDs' responsibilities differently, could have reached
the opposite result. The question is admittedly close, yet its
14
very closeness argues persuasively in favor of deference to the
Board. It is particularly in the close cases that judges, who
are generalists, should respect the specialized knowledge of the
Board and accede to its factbound determinations as long as they
are rooted in the record. See Universal Camera, 340 U.S. at 488. ___ ________________
Put bluntly, courts must be careful not to substitute their
judgments for the Board's where, on whole-record review, the
evidence supports any of several views and the Board has chosen
among them. See NLRB v. Auciello Iron Works, Inc., 980 F.2d 804, ___ ____ _________________________
808 (1st Cir. 1992); Stop & Shop, 548 F.2d at 20. ___________
IV. THE LATE SHOW IV. THE LATE SHOW
As a fallback position, the Company implores us to
remand the case for reconsideration in light of newly submitted
evidence which it says signifies expanded responsibilities for
the TDs. The Company's request hinges on the import of
circumstances that allegedly have arisen since the conclusion of
the representation hearing: the elimination of the technical
supervisor's position, the ostensible transfer of some of his
duties to the TDs, and the inclusion of the TDs as members of a
fledgling evaluation committee. This initiative squarely
presents the question of when changes in employment
responsibilities require reexamination of an earlier
determination of employee status.
A. Reshooting the Scene. A. Reshooting the Scene. ____________________
It is well settled that an employer defending against
15
an unfair labor practice charge cannot relitigate issues which
were (or could have been) contested in the underlying
representation proceeding. See 29 C.F.R. 102.65(e)(1), ___
102.67(f); see also Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. ___ ____ __________________________ ____
146, 162 (1941); Fall River Sav. Bank, 649 F.2d at 58. There is _____________________
an exception to this salutary rule for extraordinary
circumstances, usually embodying the emergence of evidence
previously undiscovered (or, at least, unavailable). See 29 ___
C.F.R. 102.65(e)(1);3 see also Fall River Sav. Bank, 649 F.2d ___ ____ ____________________
at 58; East Mich. Care Corp., 246 NLRB 458, 459 (1979), enforced ______________________ ________
without opinion, 655 F.2d 721 (6th Cir. 1981). But this _______ _______
exception should be invoked sparingly, and a court should
hesitate to second-guess the Board's assessment that particular
circumstances do not qualify for it.
B. Switching Stations. B. Switching Stations. __________________
The proffered evidence is of two types. We treat each
type separately.
____________________
3The applicable agency rule provides in pertinent part:
A party to a proceeding may, because of
extraordinary circumstances, move after the
close of the hearing for reopening of the
record, or move after the decision or report
for reconsideration, for rehearing, or to
reopen the record . . . . Only newly
discovered evidence evidence which has
become available only since the close of the
hearing or evidence which the regional
director or the Board believes should have
been taken at the hearing will be taken at
any further hearing.
29 C.F.R. 102.65(e)(1).
16
1. The evidence concerning the elimination of Corps' 1.
position as technical supervisor the May 15 letter requires
scant comment. This letter had been submitted as an attachment
to the request for review filed in the wake of the regional
director's adverse decision in the representation proceeding.
Because a request for review "may not raise any issue or allege
any facts not timely presented to the regional director," 29
C.F.R. 102.67(d), the submission of the letter imposed no
obligation on the Board to consider the implications of Corps'
termination, especially in the absence of a motion to reopen the
record. See generally East Mich. Care, 246 NLRB at 459 (dictum). ___ _________ _______________
Beyond that pitfall, a second obstacle looms. The
Board, in its own phrase, "fully considered" the May 15 letter.
Telemundo, slip op. at 1 n.1. We think it would be curious to _________
remand a case for consideration of evidence that an agency
already has fully considered, and we will not do so here.4
2. The more nettlesome question relates to the claim 2.
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. The Board's first
notice of these alleged innovations came on July 16, 1996 (after _____
the bargaining unit had been certified), when the Company
____________________
4Moreover, we readily appreciate the Board's refusal to
attach decretory significance to the epistle. The letter states
only that the Company had decided to eliminate the position of
technical supervisor. It furnishes no indication that this
position elimination might alter or affect the scope of the
technical directors' duties.
17
submitted, as part of its reply to the unfair labor practice
charge, an affidavit executed on May 9 by Elizabeth Rivera, the
department director. The Rivera affidavit claimed, for the first
time, that "some administrative duties that were performed by the
Technical Supervisor, such as the preparation of the daily
schedules and the revision and approval of the weekly payroll,
are now performed by the Technical Directors." The affidavit
also disclosed that in March 1996 the Company had created a
committee to evaluate the technicians' 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 affidavit is strangely silent as to when the
changes transpired its text states only that the TDs assumed
the additional duties; it does not broadcast the time frame in
which the Company made the reallocation it is transparently
clear that the attempted expansion of the TDs' job description
took place at some time after the record had closed in the
representation proceeding. Thus, those changes, no matter when
thereafter they were effectuated, do not constitute evidence that
can vitiate the Board's determination of the propriety of the
bargaining unit. It follows that the Board acted well within its
lawful authority in refusing to entertain the proffer.
If an employer could insist that evidence of this kind
be considered by 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. Indeed,
doing so would require no greater effort than modifying the
affected employees' duties. Such a regime would be antithetical
not only to the Board's regulations but also to precedent,
policy, and the objectives of the Act.
The regulatory scheme is explicit; the Board determines
the appropriateness of a bargaining unit based upon the
conditions of employment as they exist at the time of the
hearing, and, at least in the absence of extraordinary
circumstances,5 the record thereafter may be augmented only by
newly discovered evidence. See 29 C.F.R. 102.65(e)(1). This ___
regulation limits the rubric "newly discovered evidence" to
"evidence which has become available only since the close of the
hearing, or evidence which the regional director or the Board
believes should have been taken at the hearing." Id. This ___
definition effectively demarcates the representation proceeding
as the outermost point in time to which evidence can relate.
Facts which arise only after the hearing has been concluded and _____
the record closed are irrelevant, whereas facts which are not
discovered until then (but which relate to the time frame at __________
____________________
5We reject out of hand the Company's argument that the
change in duties here constitutes extraordinary circumstances
requiring the Board to reexamine the appropriateness of the
bargaining unit. If an employer, dissatisfied with the upshot of
a representation proceeding, could manufacture circumstances
sufficient to require reconsideration simply by shifting duties
around, then Board certifications would be little more than
hollow gestures.
19
issue in the hearing) are potentially relevant and may be
considered in the Board's discretion.
Precedent fully supports the general proposition that
unilateral changes to employment parameters occurring after a
representation hearing has been completed can have no bearing
upon the outcome of that proceeding. See K-Mart, 322 NLRB No. ___ ______
98, slip op. at 1 (NLRB Nov. 22, 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 of unit employees lacked relevance
because the evidence "d[id] not involve facts which existed at
the time of the hearing in the underlying proceeding and,
therefore, d[id] not constitute newly discovered and previously
unavailable evidence").
This proposition also comports with sound policy and
core purposes of the Act. Affording an employer (or a labor
union, for that matter) unilateral control over critical aspects
of the collective bargaining process would dislodge the balance
and weaken the structure of the collective bargaining framework.
See Auciello Iron Works, Inc. v. NLRB, 116 S. Ct. 1754, 1758-60 ___ __________________________ ____
(1996). What is more, enforcing this policy furthers the broad
objective of restoring the equality of 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. 151. ___ ____
Of course, the closing of the record in a
representation proceeding does not freeze the duties of the
members of the proposed bargaining unit for all time and in all
circumstances. When the motion to reopen is premised on
subsequently conferred duties, the Board is warranted in
presuming that such duties are irrelevant to its conclusion. An
employer who seeks to overcome that presumption bears a heavy
burden of showing that a legitimate business necessity arising
out of circumstances that were in play before the representation
proceeding concluded forced him to recast job descriptions. See, ___
e.g., Frito Lay, Inc., 177 NLRB 820, 821 (1969) (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 the technical supervisor's
duties or the creation of the evaluation committee resulted from
events set in motion prior to, and independent of, the
____________________
6In Frito Lay, the Board dismissed an unfair labor practice _________
complaint, finding that subsequent changes attributable to the
company's nationwide reorganization eliminated the "essential
factor" which made the previously certified unit appropriate.
820 NLRB at 821. As was repeatedly underscored in the decision,
the employer undertook this reorganization as a result of the
recommendations provided by a management consultant which had
begun a study of the employer's operations before the union ______
instituted the representation proceeding. The timing enabled the
Board to find that the "restructuring was clearly not for the
purpose of avoiding compliance with the Board's unit finding."
Id. Telemundo has sketched no comparable story line. ___
21
representation proceeding. Thus, the evidence contained in
Rivera's affidavit falls well outside the compass of relevance
and cannot justify a remand for the purpose of relitigating the
issue of supervisory status.
There is, moreover, another basis for sustaining the
Board's order in the face of the Company's proffer. As we
previously mentioned, the evidence is cloudy as to exactly when
Telemundo first purposed to augment the TDs' responsibilities.
See supra p. 17-18. 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); Kendall College, 228 NLRB 1083, 1087-89 ________________
(1977), enforced, 570 F.2d 216 (7th Cir. 1978); see also 29 ________ ___ ____
U.S.C. 158(d) (designating as mandatory bargaining subjects
wages, hours, and "other terms and conditions of employment").
Because the change in duties that Telemundo attempted here was
done unilaterally and, in the Company's own words, "should carry
the day" in its quest to incorporate the TDs into management, the
change transgressed the obligation to bargain collectively.
Therefore, rather than constituting evidence of
misclassification, the new assignment constitutes further
evidence of an unlawful refusal to bargain. See, e.g., NLRB v. ___ ____ ____
22
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. THE WRAP V. THE WRAP
We need go no further. The Board's determination that
the TDs are employees, not supervisors, is supported by
substantial evidence on the record as a whole. Moreover, the
Board did not err in holding its ground 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 economic considerations are present.
See Westinghouse, 849 F.2d at 20. The exception is of no ___ ____________
consequence here, however, as the Company does not rely upon it
and the record does not disclose any facts that would support its
invocation.
23