
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
