234 F.3d 1321 (D.C. Cir. 2000)
Corrections Corporation of America, d/b/a Servicios Correcionales de Puerto Rico, Petitionerv.National Labor Relations Board, Respondent
No. 00-1135
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2000Decided December 26, 2000

On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Carlos A. Del Valle Cruz, pro hac vice, argued the cause  for petitioner.  With him on the brief was Angel MuNoz  Noya.
David A. Seid, Attorney, National Labor Relations Board,  argued the cause for respondent.  With him on the brief were  Leonard R. Page, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David Habenstreit,  Supervisory Attorney.
Before:  Edwards, Chief Judge, Rogers and Garland,  Circuit Judges
Opinion for the Court filed Per Curiam:


1
In this case, the  National Labor Relations Board ("NLRB" or "Board") found  that petitioner Corrections Corporation of America ("Company") violated section 8(a)(1) and 8(a)(5) of the National Labor  Relations Act ("Act"), 29 U.S.C. § 158(a)(1), (5) (1994), when  the Company refused to recognize and bargain with the  Union General de Trabajadores de Puerto Rico ("Union"),  and unilaterally changed the work schedules of its social  penal workers.  The Company, in its petition for review,  contends, first, that the Board lacks jurisdiction over private  correctional institutions;  second, that the Board erred in  disposing of the unfair labor practice complaint on summary  judgement;  and, third, that persons employed as "social penal  workers" are either guards or supervisors under the Act, and,  therefore, should not have been included in the unit that was  certified for bargaining.  The Company's arguments are meritless.


2
"Because of its expertise, the Board 'necessarily has a large  measure of informed discretion,' and this court will sustain  the Board's determination that an individual is an 'employee'  and not a 'supervisor' if it is supported by substantial evidence."  Passaic Daily News v. NLRB, 736 F.2d 1543, 1550  (D.C. Cir. 1984) (quoting Amalgamated Clothing Workers of  America v. NLRB, 420 F.2d 1296, 1300 (D.C. Cir. 1969)). "Substantial evidence means 'such relevant evidence as a  reasonable mind might accept as adequate to support a  conclusion.' "  MECO Corp. v. NLRB, 986 F.2d 1434, 1436  (D.C. Cir. 1993) (quoting Richardson v. Perales, 402 U.S. 389,  401 (1971)).  The Regional Director found, and the Board  affirmed, that there was no evidence in the record that the  alleged supervisory duties listed in the job description and job  postings for social penal workers had actually been exercised  by the employees assigned to the job.  The Board found no  reliable evidence demonstrating that social penal workers had disciplined, recruited, transferred, laid off, or promoted any  employees, and no reliable evidence that social penal supervisors ever gave instructions to other employees.  And where  there was any disagreement over these issues, the Regional  Director discredited the Company's witnesses.  There is no  doubt that, on the record at hand, the Board's decision is  supported by substantial evidence.


3
Likewise, the record clearly supports the Board's finding  that social penal workers are not correctional guards. Though the record shows that social penal workers are  trained in security functions, it is clear that enforcement is  not essential to their main duties.  And while security functions are included in the job descriptions of social penal  workers, there is no substantial evidence that employees in  this job actually perform security tasks.  Rather, as the  NLRB found, it is the correctional officers, not the social  penal workers, who have the primary responsibility of enforcing prison protection rules.


4
There is no merit whatsoever to the Company's claim that  the Board erred in entering a summary judgment.  The  Board routinely decides cases involving an alleged refusal to  bargain after a Board certification, where the controlling  issues have been, or could have been, litigated in the underlying representation hearing.  See, e.g., Spectrum Healthcare  Servs., Inc., 325 N.L.R.B. 1061 (1998) (granting General  Counsel's motion for summary judgment where representation issues were or could have been litigated in prior representation proceeding).  In such circumstances, the Board may  rely on findings from the representation hearing in determining whether there has been a violation of section 8(a)(5) of the  Act.  See, e.g., E.N. Bisso & Son, Inc., 84 F.3d 1443, 1444 n.1  (D.C. Cir. 1996).  The Board's application of the summary  judgment procedure was fully justified in this case.  The  Company had a full and fair opportunity to litigate all issues  during the representation hearing, the issues were fully and  fairly considered by the Board, and the Company offered no  new evidence at the unfair labor practice stage that warranted a second hearing on the disputed issues.


5
Finally, we reject the Company's so-called "jurisdictional"  issues.  At oral argument, counsel for the Company conceded  that the Company had waived any claim resting on 29 U.S.C.  § 164(c)(1) (1994) ("The Board, in its discretion, may ...  decline to assert jurisdiction over any labor dispute involving  any class or category of employers, where, in the opinion of  the Board, the effect of such labor dispute on commerce is not  sufficiently substantial to warrant the exercise of its jurisdiction.").  Therefore, we offer no opinion on whether and under  what circumstances the NLRB should, pursuant to this discretionary jurisdictional provision, decline to assert jurisdiction over private venture correctional institutions.


6
The Company asserts that, quite apart from the dictates of  29 U.S.C. § 164(c)(1), the NLRB has no jurisdiction under  the Act over any employees in any private correctional institution.  Actually, the Company's argument on this point has  varied between a claim that the Board has no jurisdiction  over any correctional institution and one that the Board has  no jurisdiction over any maximum security correctional institution.  In either case, however, the Company can cite to no  statutory support for its position (nor is there record evidence  that a maximum security institution is at issue here).  It is  clear that the Company is not excluded from the Act under 29  U.S.C. § 152(2) (1994) ("The term 'employer' ... shall not  include the United States or any wholly owned Government  corporation, or any Federal Reserve Bank, or any State or  political subdivision thereof.").  It is also clear that there is  nothing in the Act that excludes privately run correctional  institutions from coverage.  And since the employees at issue  here are not correctional guards, the Company's argument  that we should "imply" an exclusion for such workers from  the term "employee" is irrelevant.  If good policy militates in  favor of exclusion, that will be a matter for the NLRB  (exercising its discretionary authority) or for Congress to  decide, not this court.  In short, there is no basis on this  record to overturn the decision of the NLRB for lack of  jurisdiction.


7
Accordingly, the petition for review is hereby denied, and  the Board's cross-application for enforcement is granted.


8
So ordered.

