                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2920
                                    ___________

National Labor Relations Board,          *
                                         *
             Petitioner,                 *
                                         * On Application for Enforcement
      v.                                 * of an Order of the National
                                         * Labor Relations Board.
St. Clair Die Casting, L.L.C.,           *
                                         *
             Respondent.                 *
                                    ___________

                              Submitted: June 22, 2005
                                 Filed: September 13, 2005
                                  ___________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Petitioner National Labor Relations Board (Board) seeks enforcement of its
order that St. Clair Die Casting, L.L.C. (St. Clair) bargain with the union which won
a representation election at its plant and furnish bargaining information. The order
was based on the Board's findings that St. Clair committed unfair labor practices by
refusing to meet and bargain after the union won the election by a vote of 71-51 and
was certified as the exclusive collective bargaining representative. St. Clair contends
that four supervisors were improperly included in the bargaining unit and that this
affected the outcome of the election. We enforce the Board's order.
                                           I.

       St. Clair is located in St. Clair, Missouri, and it manufactures custom aluminum
and zinc die castings. On August 20, 2003, the International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America-UAW
(Union) filed a petition with the Board seeking to represent an employee unit in
collective bargaining. The unit was composed of approximately 131 production,
material handling, and maintenance employees at the plant. St. Clair opposed the
petition, arguing that four setup specialists in the machine and finishing department
should not be included in the unit because they were supervisors within the meaning
of § 2(11) of the National Labor Relations Act (NLRA), 29 U.S.C. § 152(11).

        A Board hearing officer held an evidentiary hearing on September 5, 2003, to
determine the appropriateness of the unit and the status of the four setup specialists:
Raymond Bay, James Price, Robert Sibole, and Harry Kroenlien. Two of the
specialists were called as witnesses: Bay by St. Clair and Price by the Union. Bill
Phillips, the coach or supervisor for the machine and finishing department, also
testified for St. Clair, and it submitted a post hearing brief. The decision and
direction of election, issued after the hearing by the Board's acting regional director,
found that the four setup specialists were not supervisors as defined in § 2(11) of the
NLRA, concluded that they were properly included in the voting unit, and directed
that a secret ballot election be conducted to determine whether the employees wished
to be represented by the Union.

      St. Clair filed a request for review of the decision and direction of election,
arguing that the acting regional director had erred by finding that the challenged
employees were not supervisors and by including them in the voting unit. The Board
decided that the request for review raised only one substantial issue, whether setup
specialist Bay was a supervisor, and that the best way to resolve the issue would be
"through the use of the Board's challenge procedure." The Board then amended the

                                          -2-
decision and direction of election by the acting regional director to provide that Bay
could vote under challenge in the representation election. One member of the three
person Board disagreed and would have entirely denied the request for review.

        The Board conducted the election at the St. Clair plant on October 9, 2003, to
determine whether the employee unit wanted to be represented by the Union. The
Union won the election by a vote of 71 to 51, and the acting regional director certified
it as the exclusive bargaining representative for the employee unit. The unit was
described as all "full-time and regular part-time production and maintenance
employees, including material handling, quality, and tool room employees, team
leaders, and setup specialists employed by the Employer at its St. Clair, Missouri
facility, EXCLUDING temporary employees, office clerical and professional
employees, guards and supervisors as defined in the Act." Challenges were made to
the ballots of the four setup specialists and one other employee, but it is not disputed
that under Board procedure such challenges need not be investigated before
certification unless they are sufficient in number to affect the outcome of the election.

      After the Union was certified, it requested that St. Clair furnish it with "data
pertinent to these negotiations."1 The requests were made in a series of letters to the


      1
       The Union requested eleven categories of information:
      (1) A list of all hourly employees setting forth their date of hire, sex,
      age, and marital status, (2) Classifications and wage rates of all hourly
      employees, (3) Any bonus and/or merit increase(s) and information used
      to grant the same, (4) A copy of any insurance benefits ... along with the
      cost of each benefit per employee, per month to the company and to the
      individual employee, (5) A list of all fringe benefits that employees have
      at the present time ..., (6) Copy of company handbook covering practices
      and policies currently governing employees ..., (7) Copy of pension plan
      for hourly employees, (8) Annual Registration Statement identifying
      separated participants with different vested benefits, (9) Copy of profit
      sharing and 401(k) Plan, (10) Number of work shifts and the starting

                                          -3-
company dated October 31, 2003, December 18, 2003, and January 14, 2004. St.
Clair did not respond to the requests, and the Union filed an unfair labor practice
charge alleging that it had violated §§ 8(a)(1) and (a)(5) of the NLRA. The Union
also sent a letter to St. Clair on February 19, 2004, demanding that the company meet
and bargain with it. The company refused to do so, and the Union filed another unfair
labor practice charge, alleging that St. Clair also violated §§ 8(a)(1) and (a)(5) by
refusing and failing to meet and bargain with the Union.

       The cases were consolidated, and the Board's general counsel issued a
complaint which included allegations that St. Clair's refusal to bargain and furnish
information violated §§ 8(a)(1) and (a)(5). In its answer St. Clair admitted it had
refused to furnish information and to bargain, but it argued that it was not required
to do either because the bargaining unit improperly included one or more setup
specialists who were supervisors under the statute. The general counsel moved for
summary judgment and filed a brief in support, and the Board asked St. Clair to show
cause why the motion should not be granted. St. Clair's response stated that it had not
violated the NLRA because there were supervisors included in the bargaining unit.

       The Board granted the motion for summary judgment, finding that St. Clair had
violated §§ 8(a)(1) and (a)(5) of the NLRA by refusing to bargain with the Union and
to furnish it with pertinent information and that all the issues raised by St. Clair were
or could have been litigated during the earlier representation proceeding. The Board
observed that the company had not offered to produce "any newly discovered and
previously unavailable evidence, nor does it allege any special circumstances that
would require the Board to reexamine the decision made in the representation
proceeding." The Board rejected St. Clair's contention that the Union's certification
was invalid, found that the bargaining unit was appropriate, and ordered St. Clair to


      time of each shift, and (11) Brief explanation of the financial status,
      holdings, and a list of customers under contract.

                                          -4-
bargain with the Union and furnish it with the requested information. The Board now
seeks enforcement of this order.

                                           II.

       St. Clair argues that the Board erred in upholding the acting regional director's
conclusion that the four setup specialists were not supervisors under § 2(11) of the
NLRA. It contends that the setup specialists used independent judgment in assigning
tasks, in issuing secondary disciplinary forms, and in evaluating employees.
According to St. Clair, it need not bargain with the Union because the bargaining unit
includes supervisors. In support it cites 29 U.S.C. § 164(a), a section of the NLRA
which states that "no employer ... shall be compelled to deem individuals defined
herein as supervisors as employees for the purpose of any law ... relating to collective
bargaining"; Pony Express Courier Corp. v. NLRB, 981 F.2d 358, 364 (8th Cir. 1992)
(citing § 164 and stating that employers are not required to bargain with unions that
represent supervisors); and Waverly-Cedar Falls Health Care Ctr., Inc. v. NLRB, 933
F.2d 626, 628-29 (8th Cir. 1991) (same). It further contends that the inclusion of
supervisors in the unit tainted the result of the election. St. Clair contends that it has
never had the opportunity to litigate "substantial issues" with respect to the
supervisory status of Bay and that the Board's order must be reversed and the case
remanded.

       The Board argues that St. Clair has failed to establish that any of the four setup
specialists are supervisors within the meaning of the NLRA. It alternatively contends
that even if the setup specialists were supervisors, its order should be enforced
because the inclusion of the four specialists did not affect the outcome of the
representation election. As to Bay's status, it points out that his vote had no impact
on the election and that several procedural options had been available to St. Clair to
resolve the question of his eligibility, such as negotiating with the Union or
petitioning for unit clarification under § 102.60(b) of the Board's Rules and

                                           -5-
Regulations. The Board also states in a Rule 28(j) letter submitted after oral
argument that St. Clair could have raised any allegation of taint by objecting under
§ 102.69.2 That provision allows a party to raise objections to the conduct of an
election, or conduct affecting the results of the election, within seven days of the tally
of ballots.

                                           A.

       In § 10(a) of the NLRA Congress empowered the Board to prevent any person
from engaging in any unfair labor practice affecting commerce. 29 U.S.C. § 160(a).
Section 8(a)(1) of the NLRA provides that it is an unfair labor practice for an
employer "to interfere with, restrain, or coerce" employees in the exercise of their
rights to organize and bargain collectively. 29 U.S.C. § 158(a)(1). Section 8(a)(5)
provides that it is also an unfair labor practice for an employer to "to refuse to bargain
collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). In
order to advance the bargaining process, an employer has an affirmative obligation
to furnish the recognized employee representative with information it needs. NLRB
v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967).

       Whenever the Board receives a charge that a person has engaged in unfair labor
practices, the Board has the power to issue a complaint stating the charges and giving
notice of a hearing. 29 U.S.C. § 160(b). If the Board finds any unfair labor practice,
it must state its findings of fact and issue an order requiring the responsible party to
cease and desist. 29 U.S.C. § 160(c). The Board may petition any federal court of
appeals for enforcement of its order. 29 U.S.C. § 160(e).

      2
        St. Clair asks that the Board's letter be stricken, but it can be considered as a
citation of supplemental authority under Federal Rule of Appellate Procedure 28(j)
responding to St. Clair's statement at oral argument that it had had no opportunity to
present evidence of any taint which may have occurred after the evidentiary hearing
but before the election.

                                           -6-
       Section 9 of the NLRA gives the Board the power to determine the unit
appropriate for the purpose of collective bargaining, to investigate and provide for
hearings and determine whether a question of representation exists, and to direct an
election or provide for secret ballots and certify the results. 29 U.S.C. § 159; see 29
C.F.R. § 101.21. In order to challenge the certification of a collective bargaining
unit, an employer must refuse to recognize the union because certifications under §
9(c) of the NLRA are not reviewable as final orders of the Board. Waverly, 933 F.2d
at 628. If a union files an unfair labor practice charge for refusal to bargain, the
employer may then challenge the certification of the unit as an affirmative defense to
the charges. Id. Review of the Board's certification decision is limited to a
determination of whether the decision is arbitrary, capricious, an abuse of discretion,
or lacking in substantial evidentiary support. Id. at 629.

                                          B.

       Section 2(3) of the NLRA, 29 U.S.C. § 152(3), excludes "any person employed
as a supervisor" from the definition of the term "employee," and supervisors are not
entitled to the protection of any law relating to collective bargaining. 29 U.S.C. §
164; see Beverly Enters. v. NLRB, 148 F.3d 1042, 1045 (8th Cir. 1998). Section
2(11) defines the term 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).



                                         -7-
       This statutory definition of supervisor has two components. First, a supervisor
is someone who has authority to perform one of the listed functions even if the
individual does not exercise it. Beverly Enters., 148 F.3d at 1045; Waverly, 933 F.2d
at 629. Second, a supervisor has the type of authority which involves use of
independent judgment and which is more than routine or clerical in nature. Beverly
Enters., 148 F.3d at 1045. In limiting § 2(11) to employees who exercise independent
judgment, Congress sought to distinguish between "'straw bosses, leadmen, set-up
men, and other minor supervisory employees, on the one hand,'" (emphasis added),
and supervisors vested with "'such genuine management prerogatives as the right to
hire or fire, discipline, or make effective recommendations with respect to such
action'" on the other. NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S.
267, 280-81 (1974) (quoting S. Rep. No. 80-105, at 4 (1947)).

       The burden of proving supervisory status under the NLRA rests with the party
asserting it. NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 711-12 (2001).
Whether a particular employee is a supervisor is a factual question within the Board's
special expertise, and its findings regarding supervisory status will be upheld as long
as they are supported by substantial evidence on the record as a whole. Beverly
Enters., 148 F.3d at 1045.

                                           C.

        The testimony at the representation hearing showed that the setup specialists
at St. Clair assisted machine operators by setting up and programming machines for
particular jobs and by making sure that the operators have the necessary materials to
perform a task and move material to and from the machines during the shift. All of
the setup specialists reported to Bill Phillips, the department's coach, and he testified
that all of the setup specialists had the same duties and responsibilities. St. Clair's
machine and finishing department operated twenty four hours per day with three
shifts, and Phillips was at the facility daily until 5:00 or 6:00 p.m. He and two setup

                                          -8-
specialists worked the first shift with a team leader and other employees who are
classified either as operators or advanced operators. One setup specialist worked on
the second and third shifts, but there was no coach or team leader present during these
shifts.

       St. Clair argues that the setup specialists were supervisors under § 2(11) of the
NLRA because they exercised independent judgment in assigning tasks to other
employees, but there was evidence at the representation hearing showing that the
setup specialists did not have independent authority to assign operators their initial
tasks or to prioritize the work to be done on the shift. Phillips prioritized the work
assignments of the operators on all three shifts, and Bay testified he would call
Phillips at home if he needed further direction. Although the setup specialists could
assign employees to train other employees, training was a routine process within the
department. St. Clair did not produce evidence establishing that the specialists used
their independent judgment in assigning work, as opposed to following routine or
standardized practices, so their assistance in assigning work did not make them
supervisors under the NLRA. See Providence Alaska Medical Ctr. v. NLRB, 121 F.3d
548, 552-53 (9th Cir. 1997) (assignment of nurses at the beginning of each shift was
routine activity done within the parameters of a set schedule and did not require
independent judgment); Panaro and Grimes, 321 N.L.R.B. 811, 812 (1996)
(individual who exercised supervisory authority only in routine, clerical, or
perfunctory manner was not a supervisor).

      St. Clair also contends that the setup specialists were supervisors under § 2(11)
because they exercised independent judgment in disciplining other employees,
pointing to Phillips' testimony that all of the setup specialists had authority to issue
secondary disciplinary warning forms used to report employee rule violations. The
testimony showed that Bay was the only setup specialist to have filled out or signed
such a form, and Price, a setup specialist on the first shift, testified that he was not
even aware the form existed. Moreover, the warning forms were not part of St. Clair's

                                          -9-
formal disciplinary system; instead they were developed by Phillips solely for the use
in the machine and finishing department. The forms did not automatically lead to
formal discipline within the company, and Phillips testified that he had revoked a
warning form in the past. The Board has stated that "'for the issuance of reprimands
or warnings to constitute statutory supervisory authority, the warning must not only
initiate, or be considered in determining future disciplinary action, but also it must be
the basis of later personnel action without independent investigation or review by
other supervisors.'" Waverly, 933 F.2d at 630 (quoting Passavant Health Center, 284
N.L.R.B. 887, 890 (1987)). It appears from the record here that the setup specialists
were not an integral part of the disciplinary process, but that they reported infractions
to Phillips who had discretion to decide how much weight to give the forms and when
to issue formal discipline. See Beverly Enters., 148 F.3d at 1046 ("'The mere
reporting of facts is not enough to make the reporter a supervisor.'") (quoting
Highland Superstores, Inc. v. NLRB, 927 F.2d 918, 922 (6th Cir. 1991)).
Participation by the specialists in secondary disciplinary warning forms did not
establish that they were supervisors exercising independent judgment to discipline
other employees.

        According to St. Clair, the setup specialists exercised independent judgment
in evaluating the work of other employees. The testimony showed that on several
occasions Phillips asked Bay to rate employees from 1 to 5 in areas such as attitude,
safety, quality, and absenteeism. Phillips would then discuss the form with Bay and
fill out an evaluation form and sign it. The form would be presented to the employee,
and Bay said that he was asked to sign the form as a witness. The authority to
evaluate employees is not included in the listed functions of a supervisor in § 2(11)
of the NLRA, however, and the Board has stated that the authority to evaluate
employees without the authority to recommend specific personnel action is
insufficient to confer supervisory status. Passavant Health Center, 284 N.L.R.B. 887,
891 (1987). Here, there were no evaluations by setup specialists which recommended
any specific personnel action, and St. Clair has presented no evidence that any

                                          -10-
evaluations by the specialists resulted in any such action. We conclude that
substantial evidence supports the conclusion that the setup specialists' role in
evaluating other employees was primarily one of reporting, and that did not make
them supervisors under the NLRA. See Beverly Enters., 148 F.3d at 1046-47.

       Setup specialists, like the other production and maintenance employees, were
paid by the hour and received a paycheck each week. They received the same
benefits and were subject to the same disciplinary procedures as others in the unit.
They worked the same hours, had the same number of breaks and the same fifteen
minute lunch period, and used the same break room and locker areas as the other
production and maintenance employees working on the shift. They did not wear
distinctive clothing, badges, or other insignia marking them as separate from other
employees. In addition both Bay and Price testified that they had voted in a previous
representation election in 1999. These factors support the Board's findings that the
setup specialists were not supervisors.

       We conclude that there is substantial evidence in the record to support the
Board's finding that the bargaining unit was appropriate since the setup specialists did
not exercise independent judgment in disciplining other employees or in assigning
tasks and did not recommend personnel action in their evaluations.

       Although there is substantial evidence in the record that setup specialist Bay
was not a supervisor, St. Clair claims that the Board erred by failing to resolve
"substantial issues" regarding his status. The Board was not required to undertake
more detailed review, however, because Bay's status would not have affected the
certification decision since the Union won the representation election by twenty votes
and St. Clair could have petitioned the Board for unit clarification or negotiated with
the Union over Bay's status. See Glen Manor Home for Jewish Aged v. NLRB, 474
F.2d 1145, 1150 (6th Cir. 1973) (no need to rule on supervisory status where
inclusion in unit did not affect the outcome of the representation election).

                                         -11-
       St. Clair had the opportunity to present evidence at the representation
proceeding to support its argument that all four setup specialists were supervisors,
and it called witnesses of its own choosing. Setup specialist Bay and coach Phillips
both testified for it at the representation hearing. As the Board stated in its decision,
St. Clair failed to bring forward any newly discovered or previously unavailable
evidence, and St. Clair identifies none at this point. We conclude that St. Clair has
failed to establish its affirmative defense that it was not required to bargain with the
Union because the employee unit was improperly certified.

       St. Clair also argues that inclusion of the setup specialists in the unit tainted the
results of the election because they allegedly had influence over other employees in
the bargaining unit. A party challenging a representation election carries the heavy
burden of proving that there were improprieties which interfered with employee free
choice to such an extent that they materially affected the outcome of the election.
Deffenbaugh Indus. v. NLRB, 122 F.3d 582, 586 (8th Cir. 1997). Although Board
procedures would have allowed the company to raise this argument as a challenge to
the results of the election within seven days of the tally of the vote under § 102.69 of
the Board's Rules and Regulations, it did not and it offers no evidence of actual taint.
We conclude St. Clair has also failed to meet its burden on this issue.

        St. Clair conceded at oral argument that the information sought by the Union
would likely be relevant bargaining information about employees in the bargaining
unit if the Union had been properly certified. The type of information sought by the
Union is presumptively relevant for purposes of collective bargaining. See e.g., Metro
Health Foundation, Inc., 338 N.L.R.B. 802, 802-03 (2003); Maple View Manor, Inc.,
320 N.L.R.B. 1149, 1151 (1996). Since St. Clair has not shown that the four setup
specialists were improperly included in the bargaining unit or the Union was
improperly certified, the company is obligated to bargain with the Union and furnish
it with the requested information under §§ 8(a)(1) and (a)(5) of the NLRA.



                                           -12-
                                            III.
       Having found no issues of material fact relating to the status of the setup
specialists, the alleged taint in the election, or the bargaining information sought by
the Union, we conclude the Board did not err by granting summary judgment. Since
there is substantial evidence in the record to support the Board's finding that the
bargaining unit was appropriate, we enforce its order.
                        ______________________________




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