216 F.3d 69 (D.C. Cir. 2000)
Alois Box Co., Inc.,Petitionerv.National Labor Relations Board, Respondent
No. 99-1340
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2000Decided June 27, 2000

On Petition for Review and Cross-Application forEnforcement of an Order of the National Labor Relations Board
Edward B. Miller argued the cause and filed the briefs for  petitioner.
David A. Fleischer, Senior Attorney, National Labor Relations Board, argued the cause for respondent.  With him on  the brief were Leonard R. Page, General Counsel, Linda R.  Sher, Associate General Counsel, and Aileen A. Armstrong,
Deputy Associate General Counsel. Frederick Havard, Supervisory Attorney, entered an appearance.
Before:  Ginsburg, Henderson and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Concurring opinion filed by Circuit Judge Henderson.
Rogers, Circuit Judge:


1
The Alois Box Company petitions  the court for review of a National Labor Relations Board  order finding that the company violated  8(a)(1) and (5) of  the National Labor Relations Act, see 29 U.S.C.  158(a)(1),  (5) (1994), for refusing to bargain with Graphic Communications Union Local 415-S, AFL-CIO at the company's factory  in Illinois.  The company does not deny that it refused to  bargain but contends that the union was never properly  certified because three ballots were improperly excluded from  the election tally.  In addition, the company contends that the  Board's grant of summary judgment was inappropriate, and  contrary to Board Rule 102.24, because the company's response to the rule to show cause indicated that a genuine  issue for hearing may exist.  Because there is substantial  evidence to support the Board's finding with regard to one of  the three invalidated ballots and the company forfeited its  right to challenge the Board's disposition of a second ballot,  even if the Board's finding with regard to the third ballot is  unsupported by substantial evidence, the result of the election  would not change.  Accordingly, because there are no legally  significant factual issues as would preclude summary judgment, we deny the petition and grant the Board's cross application for enforcement.

I.

2
On November 12, 1997, a representation election was conducted by the Board in which ballots were to be cast by  members of the bargaining unit, defined as "[a]ll full-time and  regular part-time production, maintenance and shipping employees employed by the Employer at its facility ... but  excluding all other employees, office clericals, guards and  supervisors as defined by the Act."  The initial tally of the 33 opened ballots was 19 in favor of the union, 14 opposed to the  union.  Aside from the 33 opened ballots, seven unopened  ballots were challenged by the union on the ground that they  were cast by employees who were ineligible to vote in the  representation election.


3
A hearing officer, considering six of the seven challenged  ballots,1 found in favor of the union with respect to four of the  six ballots--those cast by Jeff Miller, Manuel Garcia, Julius  Rimdzuis, and Mato Brasic--on the grounds that Miller and  Garcia are supervisors, that Rimdzuis lacks a community of  interest with the bargaining unit, and that Brasic receives  special privileges as the brother of the plant manager.  The  company filed exceptions to the hearing officer's recommendations, and the Board reversed as to Garcia, but otherwise  affirmed the hearing officer's recommendations.  As a result,  four of the seven challenged ballots were determined to be  ineligible.  With the four ineligible ballots, the total number  of valid ballots was reduced from 40 to 36, with 19 valid and  counted for the union, 14 valid and counted against the union,  and three--Garcia and the two employees the union challenged unsuccessfully before the hearing officer--uncounted. Because the three unopened ballots would not be determinative of the result of the election, the Board declined to order  them opened and counted, and issued a certification of representation to the union.  See Alois Box Co., Inc., 326 N.L.R.B.  No. 110 (1998) (with one member dissenting on the finding  that Miller was a supervisor and another member dissenting  on the finding that Rimdzuis was ineligible to vote).


4
Seven months later, the union filed an unfair labor practice  charge alleging that the company had refused to bargain  collectively with the union.  In its answer, the company  admitted its refusal to bargain in order to challenge the  certification, alleging that the union was not the representative of a majority of employees in the bargaining unit.  The  company asserted that facts would be introduced at a hearing  to show that Miller was not a supervisor because in making


5
work assignments he did not exercise independent judgment,  as clarified by recent Board and court precedent, and that  Rimdzuis was a regular part-time employee who shared a  community of interest with the unit employees.  The Board's  General Counsel moved for summary judgment on the  grounds that the company sought to relitigate eligibility  determinations that were "exhaustively" examined in the  representation case, and that the company's "technical refusal  to bargain" was sufficient to find that the company had  violated  8(a)(1) and (5) of the Act, under Skandia Foods,  Inc., 301 N.L.R.B. No. 35 (1991).


6
In response to the notice to show cause why summary  judgment should not be granted, the company argued that  the Board had erroneously adopted the hearing officer's barebones conclusion that Miller was a supervisor based on work  assignments that were never identified and independent judgment that was never described, and that more recent cases  demonstrated the findings were insufficient to show supervisory status.2  With regard to Rimdzuis, the company argued  the Board's error was clear from Time Warner Cable v.  NLRB, 160 F.3d 1 (D.C. Cir. 1998).  The company also  argued that Board Rule  102.24 did not require it to set  forth precise facts through affidavits or exhibits in order to  defeat a motion for summary judgment, as long as it was  clear from the face of the answer that a genuine issue of fact  exists.  The Board granted summary judgment, ruling that  all representation issues were or could have been litigated in  the prior representation proceeding, and noting that the  company neither offered to present at a hearing any newly  discovered and previously unavailable evidence nor alleged  any special circumstances requiring the Board to reexamine  its earlier decision.  See Alois Box Co., 328 N.L.R.B. No. 134  (1999).

II.

7
In petitioning for review of the Board's certification of the  union as the exclusive bargaining representative of all "full  time and regular part-time production, maintenance and shipping employees," the company's contentions that the Board  erred in disqualifying three ballots hinge largely on its interpretation of the evidence in the light most favorable to it, and  with regard to Miller, on its reading of Board and court  precedent regarding supervisors.  If the Board is affirmed  with regard to at least two of the three unopened ballots at  issue here (Miller, Rindzuis, and Brasic), the outcome of the  election remains unchanged regardless of whether the remaining unopened ballots were voted against the union.  The  Board's factual findings are entitled to be affirmed if supported by substantial evidence on the record as a whole, see  Passaic Daily News v. NLRB, 736 F.2d 1543, 1550 (D.C. Cir.  1984), and with regard to the determination of supervisory  status, given the large measure of informed discretion involved and the Board's corresponding expertise in this area,  the substantial evidence test "takes on special significance."Oil, Chemical & Atomic Workers Int'l Union v. NLRB, 445  F.2d 237, 241 (D.C. Cir. 1977).


8
We address first, the company's challenge to the Board's  determination that Miller was a supervisor;  second, the company's challenge to the Board's finding that Rimdzuis lacked  community of interest with members of the bargaining unit;and third, the company's attempt to challenge the Board's  determination that Brasic received special work-related benefits as a result of being the brother of the plant manager.

A.

9
The company maintains that there is not substantial evidence to support the Board's determination that Jeff Miller  was a supervisor and, thus, was ineligible to vote in the  representation election.  Describing Miller as a "maintenance  man," the company maintains that he is nothing more than a  non-supervisory employee of the unit.  The company points  to the evidence that Miller was stripped of his supervisory


10
status in 1995 due to unsatisfactory performance, that he  accepted a non-supervisory position instead, that he eats his  lunch in the maintenance area, that he punches a time clock,  and that his main area of operation is in the maintenance  shop and out on the floor fixing machines.  Although acknowledging that Miller "has been assigned the job of reporting early in the morning and handing out some work orders  which Brasic, the Plant Manager, has assigned for that day,"  the company contends that Miller exercised no independent  judgment in carrying out such tasks and that absent such  evidence he cannot be a supervisor.  Yet there was evidence  that Miller independently assigns work to employees, changes  the plant manager's assignments, instructs employees to  cease work, and has been held out by the company as a  supervisor even after he was officially stripped of supervisory  authority in 1995, causing some employees to regard Miller as  having supervisory authority.  Moreover, the company's failure to call Miller as a witness, and its failure to explain its  decision, warrants the inference that his testimony would  have been unfavorable to the company.  See Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 29 (D.C. Cir. 1998);  UAW v.  NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972).  Given the  evidence to support the Board's determination that Miller is a  supervisor, the underlying issue is whether, as the company  contends, recent Board and judicial precedent require that  more be shown.


11
Consistent with the definition of "supervisor" in the Act,3 a  key consideration to the determination of supervisory status  is whether the employee exercises "independent judgment" in  assigning work or performing other tasks set forth in the definition.  See, e.g., Micro Pacific Dev. Inc., v. NLRB, 178  F.3d 1325, 1330-31 (D.C. Cir. 1999).  Necessarily an ambiguous term in contrast to authority of a "routine or clerical  nature," the Board is to be given room to apply the term  "independent judgment."  VIP Health Servs., Inc. v. NLRB,  164 F.3d 644, 647 (D.C. Cir. 1999).  But in concluding an  employee exercises such judgment the Board must be able to  answer three questions in the affirmative:  (1) does the employee have authority to engage in one of the twelve listed  activities;  (2) does the exercise of that authority require the  use of independent judgment;  and (3) does the employee hold  the authority in the interests of the employer.  See NLRB v.  Health Care & Retirement Corp., 511 U.S. 571, 573-74 (1994).With these considerations in mind, however, the court in  Beverly Enter.-Massachusetts, Inc. v. NLRB, 165 F.3d 960,  962 (D.C. Cir. 1999), cautioned that "the Board must guard  against construing supervisory status too broadly to avoid  unnecessarily stripping workers of their organizational  rights."  Id. at 962.  Noting that in construing  2(11) of the Act, the Board has ruled that it is the possession of supervisory authority and not its exercise that is critical, see id., the  court rejected the notion that mere job titles or management's desires could be determinative, and required in the  absence of the exercise of supervisory authority that there be  tangible examples demonstrating the existence of such authority.  See id. at 962-63.


12
Notwithstanding the evidence of Miller's exercise of supervisory authority with regard to other unit employees in the  company's interest that plant operations be maintained  throughout the workday, the company maintains that recent  precedent makes clear that facts of the kind relied on by the  Board are inadequate to establish supervisory status.  The  company points to the Board's decision in Custom Mattress  Manufacturing, Inc., 327 NLRB No. 30 (1998), ruling that  supervisory status had not been shown where the employee  worked side by side with other employees and was responsible for ensuring that work was performed according to a  schedule prepared by the plant manager and even tested job  applicants and received extra pay for his services.  The company considers Ryder Truck Rental, Inc., 326 NLRB No.  149 (1998), to offer an even closer parallel to Miller's situation, for in Ryder the employee followed plant management's  job assignments unless presented with an unanticipated job,  in which event he selected another employee to do the job  based on management's assessment of that employee's skills,  and the Board stated that "[a]ssignment of work by area of  expertise does not involve the exercise of independent judgment when carried out according to the instructions of management."  Id.  The company maintains as well, citing Byers  Engineering Corp., 324 NLRB 740, 741 (1997), that previous  Board precedent indicated that "independent judgment" in  the context of assigning work requires more than merely  equalizing employees' work.


13
But these and other cases relied on by the company are  easily distinguishable, and do not reflect a stricter standard  than the one the Board applied here.  For example, in  Custom Mattress, there was no finding that the employee  could deviate from the work assignment schedule or that, as  here, the management's schedule only covered a part of the  day.  In Ryder Truck and Byers, the employee did not make  his own assessments of employees' skills or expertise but  followed management's evaluations, in contrast with Miller's  situation where there is no evidence he simply followed  management's instructions.  The machinery in Miller's unit  was complicated and, as the company acknowledges in its  briefs, not all of the unit employees knew how to operate all  of the machines, thus requiring Miller to evaluate employee  skills in making assignments.  See Cooper/T. Smith, Inc. v.  NLRB, 177 F.3d 1259 (11th Cir. 1999) (citing Exxon Pipeline  Co. v. NLRB, 596 F.2d 704 (5th Cir. 1979)).  In Board of  Social Ministry, 327 N.L.R.B. No. 57 (1998), other nonsupervisory employees at the company did not have the same  authority over the employees as Miller did when he moved  employees from one machine to another on a daily basis. Similarly, in VIP Health Services, Inc., 164 F.3d at 649, the  employees carried out plans formulated primarily by others,  and did what was routine because it required only common  sense to know what needed to be done, a different situation from assigning employees to work on complicated machines. So, too, in Mississippi Power & Light Co., 328 NLRB No.  146, 1999 WL 551405 (N.L.R.B. July 26, 1999), the Board  relied on evidence, unlike that in Miller's case, that the  employees followed specific instructions or procedures that  management had designed and had to check with higher  authority before performing planned work.  See id. at *4-5.


14
Contrary to the company's contention, cases such as  Cooper/T. Smith, and NLRB v. Hilliard Development Corp.,  187 F.3d 133 (1st Cir. 1999), do not indicate that the Board is  now applying a stricter standard, but simply reflect differences in the record evidence.  In Cooper, the employee's  decision about the number of tug boats needed to perform a  job was based on a schedule set by management, and there  was no evidence that the employee selected other employees  to do the job based on an independent evaluation about the  individual employees' skills.  See Cooper, 177 F.3d at 1265.In Hilliard, there was evidence that the assignment of work  rarely changed, any assignment power was largely circumscribed, and in that context the matching of skills to requirements was essentially routine.  See Hilliard, 187 F.3d at 145.Indeed, much of the company's challenge goes to the Board's  characterization of the nature of the work actions that Miller  took--the company maintaining that what he did was merely  routine, assigning work that the plant manager had laid out.While the court will reject the Board's determination of  supervisory status when the factual findings point in another  direction, see, e.g., Micro Pacific Dev. Inc. v. NLRB, 178 F.3d  1325, 1330-31 (D.C. Cir. 1999), the hearing officer's findings  here do not support the company's position.  The hearing  officer credited Juan Duran's testimony that Miller moved  him from machine to machine, that employees went to Miller  to receive new assignments, and that Miller had the authority  to determine the acceptability of work performed by certain  employees in the unit.  In addition, the hearing officer was  persuaded that the company led unit members to believe that  Miller was a supervisor, citing testimony by Duran and Cirilo  Garcia that the plant manager had told employees to follow  Miller's instructions.  The hearing officer also pointed to evidence that Miller made adjustments to the work assignments made initially by the plant manager.  Based on this  and other evidence, the hearing officer's finding that Miller  used independent judgment in performing supervisory duties  is supported by substantial evidence.


15
We do not intend to suggest, however, that the evidence of  Miller's supervisory status is more than barely sufficient.  In  this regard, the company correctly notes that the cases on  which it relies provide a fuller record on which to make a  determination of supervisory status.  The evidence to show  that Miller is aligned with management, and thus outside of  the bargaining unit, is thin.  But two considerations lead us  to reject the company's challenge to the Board's determination that Miller is a supervisor.  In large part, the difficulty  for the company's position arises from the fact that it did not  call Miller as a witness, nor explain its failure to do so, giving  rise to an inference that his testimony would have been  unfavorable to the company.  When the company contends  that the Board is now applying a stricter standard for supervisory status, the company essentially views the evidence, or  lack thereof, most favorably to its position.  In relying on  Hilliard, and Precision Fabricators, Inc. v. NLRB, 204 F.2d  567, 568 (2d Cir. 1953), the company maintains that the  routine matching of employee skills with a task betrays no  assignment function that involves independent judgment.Yet in the absence of Miller's testimony or other evidence  that would somehow erode or overcome the evidence that the  plant manager's schedule covered only a part of the day and  that Miller assigned work based on his own evaluations of the  employees' skills and not simply in accordance with management's evaluations, the Board was entitled to rely on the  testimony of the company's employees that the hearing officer  credited regarding Miller's functions and responsibilities.See Precision Fabricators, 204 F.2d at 569.  In addition, of  critical significance is the evidence that the employees regarded Miller as a supervisor consistent with the plant manager's instructions.  See Micro Pacific Dev., 178 F.3d at 1322.Again, the company was in a position to clarify the record but  failed to call Miller, thereby triggering the adverse inference the court has recognized before that can provide a sufficient  evidentiary basis.  See Cadbury Beverages, 160 F.3d at 29;UAW, 459 F.2d at 1336.  While it is undoubtedly true that  the company is confronted with the somewhat unusual circumstance of a former supervisor continuing to function in  critical respects as a supervisor making work assignments  and evaluating employees' skills in making such assignments,  the warning in Beverly Enterprises that titles and management's desires are not dispositive of supervisory status is no  less applicable when management seeks to deny supervisory  status based in part on the absence of such a title and the  absence of evidence it could have presented.


16
Accordingly, having failed to show either a change in the  law or the lack of substantial evidence to support the Board's  determination that Miller is a supervisor, the company fails to  gain another vote against the union.

B.

17
In challenging the Board's determination that Rimdzuis  does not have a community of interest with unit employees,  and thus is not a regular part time employee, the company  persuasively contends that Rimdzuis "regularly perform[s]  duties similar to those performed by unit employees for  sufficient periods of time to demonstrate that [he] ha[s] a  substantial interest in working conditions in the unit."  Martin Enters., Inc., 325 N.L.R.B. 714 (1998).  But we need not  decide this question because even were the company to gain a  vote against the union from Rimdzuis' ballot, it needs at least  two votes to change the election result, and the company has  forfeited its right to challenge the Board's decision that Mato  Brasic was ineligible to vote.

C.

18
The company contends that there is not substantial evidence in the record to support the Board's exclusion of Mato  Brasic from the bargaining unit, and hence his ballot should  have been counted.  The Board responds that the company is  precluded from challenging the Board's disposition of Brasic's ballot in the court by not raising it in the unfair labor practice  proceeding, and, alternatively, that the Board's decision in the  representation proceeding excluding Brasic from the bargaining unit is supported by substantial evidence in the record.We do not reach the merits of the company's contention,  however, because we agree with the Board that the company  has forfeited its right to challenge Brasic's exclusion in this  court.


19
Under  10(e) of the Act, any objection not raised before  the Board cannot be raised on appeal from the Board's  decision absent "extraordinary circumstances."  29 U.S.C.   160(e).4  As the court explained in The Wackenhut Corp. v.  NLRB, 178 F.3d 543, 548 (D.C. Cir. 1999), "[r]epresentation  proceedings before the Board are not subject to direct judicial review because they do not result in a final agency  order," and "[a]n employer seeking review of the record in a  representation proceeding must refuse to bargain with the  union, [and] suffer an unfair labor practice charge," the  Board's disposition of which is appealable to the court of  appeals.  Id. at 548;  see also Family Servs. Agency v.  NLRB, 163 F.3d 1369, 1380 (D.C. Cir. 1999);  Thomas-Davis  Med. Ctrs., P.C., v. NLRB, 157 F.3d 909, 911 (D.C. Cir. 1998).Although the company did prompt an unfair labor practice  charge by its technical refusal to bargain, it did not challenge  in the unfair labor practice proceeding the Board's earlier  disqualification of Brasic's ballot.  The record reflects that  the company made no reference to Brasic in its answer to the  unfair labor practice charge or its reply to the order to show  cause why summary judgment should not be granted on that  charge.  Instead, the company maintains on appeal that once  the unfair labor practice charge was made, it was unnecessary  to "provide yet another detailed notice" to the Board of the issues already presented to the Board in the representation  hearing.


20
However, the company cites no authority for its position,  and both the Second and Ninth Circuits have held to the  contrary.  See NLRB v. Star Color Plate Serv., 843 F.2d  1507, 1510 n.3 (2d Cir. 1988);  NLRB v. Best Prods. Co., 765  F.2d 903, 910 (9th Cir. 1985).  The company distinguishes the  Second Circuit's case on the basis that in Star Color, the issue  in question was first presented to the court in the reply brief,  ignoring the fact that the Second Circuit made clear that was  an independent alternative holding to its holding that, by  failing to raise the issue before the Board in the unfair labor  practice proceeding, the issue regarding the Board's decision  in the representation proceeding could not be raised in the  court on appeal from the unfair labor practice decision.  See  Star Color, 843 F.2d at 1510, n.3.  Neither the Board nor the  employer cites or discusses Best Products setting forth the  Ninth Circuit's rationale that issues can be abandoned and  that the Board is entitled to know in the unfair labor practice  proceeding what objections to its representation decision are  being pursued.  See Best Prods., 765 F.2d at 903.  Thus, in  Best Products, the Ninth Circuit concluded that while it  would not require a party to give in the unfair labor practice  proceeding "a full-blown, yet necessarily unavailing, reargument of an issue that has already been decided against  that party in a representation hearing," a party must at least  give "[a] firm indication to the Board of the objecting party's  non-abandonment of the issue ... to preserve it for ...  review [by the court on appeal from the unfair labor practice  proceeding under section 10(e)]."  Id. at 910.


21
Responding to the Board's position that the company's  challenge to Brasic's exclusion from the bargaining unit is  precluded under  10(e), the company states in its Reply  Brief that "[i]t is certainly not necessary for the respondent,  once the refusal to bargain charge has been made, to provide  yet another detailed notice of the issues which have already  been presented to the Board in the representation cases."  (emphasis added).  We agree, but here the company gave no  notice whatsoever to the Board in the unfair labor practice proceeding that it was continuing to contest the Board's  disposition of Brasic's ballot in the representation proceeding.


22
The company's position would have the court treat the  Board's decision in the representation proceeding as a final  order, contrary to  10 of the Act and Supreme Court  precedent that a Board certification is not a final order under   10(f), see American Fed'n of Labor v. NLRB, 308 U.S. 401,  409 (1940).  Neither Congress nor the Supreme Court has  countenanced such avoidance of the unfair labor practice  proceeding in a technical refusal-to-bargain case.  Because  the company did not raise this issue in the unfair labor  practice proceeding, the Board was entitled to treat the issue  as abandoned.  See Best Prods., 765 F.2d at 903.  Although  the company maintains that because it did not seek a hearing  with regard to its challenge to the Board's disposition of  Brasic's ballot in the representation decision, it was "unnecessary" to provide the Board with "another detailed notice" of  the company's contention about Brasic's inclusion in the  bargaining unit, the company was obligated to proceed in the  unfair labor practice proceeding with the understanding that  the Board's representation decision was not a final appealable  order under the Act.5  Unless the company's objections were  noted in the unfair labor practice proceeding, the order  appealed from would not respond to those objections and   10(e) would bar their consideration by the court in reviewing the Board's unfair labor practice decision.  Cf. American  Fed'n of Labor, 303 U.S. at 409.  While we have no occasion  to decide what would provide sufficient notice in the unfair  labor practice proceeding, see, e.g., Best Prods., 765 F.2d at 909 (citing NLRB v. Southwest Equip. Corp., 736 F.2d 1332  (9th Cir. 1984), and NLRB v. Giustina Bros. Lumber Co., 253  F.2d 371, 374 (9th Cir. 1958)), absent any notice to the Board  in the unfair labor practice proceeding, the company has  forfeited its right to challenge the Board's disposition of  Brasic's ballot in the representation proceeding.

III.

23
Finally, the company contends that the Board erred in  granting summary judgment because it was entitled to a  hearing in the unfair labor practice proceeding, in accordance  with the Board's rules.  Section 102.24(b) of the Board Rules  on motions provides that a motion for summary judgment  may, in the Board's discretion, be denied "where the opposing  party's pleadings, opposition and/or response indicate on their  face that a genuine issue may exist."  29 C.F.R.  102.24(b)  (1999).  The Rule states further that "[i]t is not required that  either the opposition or the response be supported by affidavits or other documentary evidence showing that there is a  genuine issue for hearing."  Id.  Because the company presented new cases affecting the Board's interpretation of supervisory status, the company maintains that a hearing was  required.  This contention is meritless.


24
The Board properly applied its "rule against relitigation,"  Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941),  in ruling that because the factual issues relating to the  eligibility of Miller and Rimdzuis were litigated in the representation proceeding, there were no genuine issues of material fact in the unfair labor proceeding.  The company presented neither newly discovered evidence nor legal authority that  was not readily distinguishable or that changed governing  law.  While the Board's rule does not require affidavits and  documentary evidence to demonstrate that a factual issue  exists, whether to grant a hearing lies in the Board's discretion and the company could not show an abuse of that  discretion simply by asserting that the governing law had changed.  Because the company had an opportunity to litigate all relevant issues of fact and only determinations of law  remained, as set forth in the company's filings with the  Board, an evidentiary hearing would have served no purpose.See NLRB v. Mar Salle, Inc. 425 F.2d 566, 572 (D.C. Cir.  1969).  The company submitted its legal arguments in its  filings to the Board, and as noted in Part II(A), the cases  relied upon by the company did not show a change in  governing law.  Thus, in the absence of any basis for the  Board to reconsider its previous decision, the Board properly  granted summary judgment.  See Sitka Sound Seafoods, Inc.  v. NLRB, 206 F.3d 1175, 1182-83 (D.C. Cir. 2000);  Thomas Davis Med. Ctrs., P.C. v. NLRB, 157 F.3d 909, 912 (D.C. Cir.  1998).


25
*  *  *  *  *


26
Because we conclude that there is substantial evidence in  the record to support the Board's finding that Miller was a  supervisor and that the company forfeited its right to challenge the Board's disposition of Brasic's ballot, and, therefore,  both were ineligible to vote in the representation election, the  outcome of the election is unchanged even assuming the  Board erred by excluding Rimdzuis' ballot.  Because, further,  the company failed to present legal authority indicating that  the Board had changed its standard for determining supervisory status, or to claim to have newly discovered evidence,  summary judgment was appropriate.  Accordingly, we deny the petition for review and grant the Board's cross-application  for enforcement.



Notes:


1
 The parties stipulated that one of the seven challenged ballots  was filed by an ineligible former employee.


2
 The company relied on Custom Mattress Manufacturing, Inc.,  327 N.L.R.B. No. 30 (1998);  Ryder Truck Rental, Inc., 326  N.L.R.B. No. 149 (1998);  Board of Social Ministry, 327 N.L.R.B.  No. 57 (1998), as well as VIP Health Services, Inc. v. NLRB, 164  F.3d 644 (D.C. Cir. 1999), and Cooper/T. Smith, Inc. v. NLRB, 177  F.3d 1259 (11th Cir. 1999).


3
 Section 2(11) of 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 todirect them, ... if ... the exercise of such authority is not of amerely routine ... nature, but requires the use of independentjudgment.
29 U.S.C.  152(11).


4
 Section 10(e) of the Act provides in pertinent part that:
no objection that has not been urged before the Board ... shallbe considered by the court, unless the failure ... shall beexcused because of extraordinary circumstances.
29 U.S.C.  160(e).


5
 In any event, an employer will not necessarily pursue all  objections in the unfair labor practice proceeding that it raised in  the representation proceeding, and the Board is entitled to know  which objections are being pursued because its decision in the  unfair labor practice proceeding is a final appealable order.  See  Best Prods., 765 F.2d at 903.



27
Karen LeCraft Henderson, Circuit Judge concurring:


28
Although I agree with my colleagues that we need not  resolve Rimdzuis's eligibility to vote, I write separately to  emphasize the Board's clear error in sustaining the challenge  to Rimdzuis's ballot on the basis that he was not a regular  part-time employee.  Rimdzuis was 78 years old at the time  of the hearing and had then worked at the company for seven  years.  His duties include trouble-shooting, machine repair  and procuring spare parts.  Rimdzuis works approximately  twenty hours a week but works more when his job demands  it.  Which days and hours he works, however, are largely  within his discretion.  Although he spends considerable time  away from the plant, he generally works in the same area as  all other mechanics, that is, the "mechanics crib" where the  tools are stored.  Joint Appendix (JA) 46.  He earns a fixed  weekly wage of $300, has never been given a raise and  receives no overtime pay or fringe benefits.


29
The hearing officer seized on the differences between  Rimdzuis's working conditions and those of other employees  and determined the differences left Rimdzuis without sufficient connection to the bargaining unit, that is, without a  "community of interest."  JA 178.  The Board, over the  dissent of Member Hurtgen, adopted the hearing officer's  recommendation and the reasoning therefor.  Hurtgen relied  on Rimdzuis's twenty hours of unit work weekly for seven  years and determined that "[t]he fact that he schedules his  own 20 hours does not detract from his regular part-time  status."  JA 171 n.4.  Our precedent as well as the Board's  precedent plainly support the dissent.


30
As we have often noted, the Board has established an  inclusive eligibility formula designed to allow "optimum employee enfranchisement ... without enfranchising individuals  with no real continuing interest in the terms and conditions of  employment offered by the employer."  B B & L, Inc. v.  NLRB, 52 F.3d 366, 370 (D.C. Cir. 1995) (quoting Trump Taj  Mahal, 306 N.L.R.B. 294, 306 (1992)) (internal quotation  marks omitted).  In its case by case determination, the Board  asks "whether the employee regularly performs duties similar  to those performed by unit employees for sufficient periods of  time to demonstrate that [he has] a substantial interest in the unit's working conditions."  Time Warner Cable v. NLRB,  160 F.3d1, 6 (D.C. Cir. 1998) (quoting Martin Enters., Inc.,  325 N.L.R.B. 714 (1998)) (internal quotation marks omitted).While noting that it occasionally considers other evidence, the  Board has consistently held that the amount of time an  employee spends performing unit work can be sufficient to  demonstrate "substantial and continuing interest in the terms  and conditions of employment."  Oxford Chemicals, Inc., 286  N.L.R.B. 187, 188 (1987).  More important here, the Board in  Oxford rejected resort to the community-of-interest analysis  once the hour-inquiry has proven satisfactory:


31
[W]e find that once this standard has been met, it is both unnecessary and inappropriate to evaluate other aspects of the [part-time1] employee's terms and conditions of employment in a kind of second tier community-of-interest analysis.  That is, inclusion of a [part-time] employee within a particular unit does not depend on as howing of community-of-interest factors in addition to the regular performance of a substantial amount of unit work.


32
286 N.L.R.B. at 188 (footnote and internal citation omitted).


33
Rimdzuis undisputedly performs unit work for at least  twenty hours a week. This is sufficient "to demonstrate that  [he has] a substantial interest in the unit's working conditions."  Time Warner Cable v. NLRB, 160 F.3d at 6 (forty  hours of unit work for only one month preceding election  satisfies standard).  I do not believe the flexibility of his work  schedule removes him from the community of interest shared  by the bargaining unit.  Cf. Leaders-Nameoki, Inc., 237  N.L.R.B. 1269, 1269 (1978) ("It is well established in department store cases that part-time employees who regularly  work an average of 4 hours or more per week are considered  to be eligible regular part-time employees ... even though  they may work full-time for another employer or are free to


34
reject work when offered.");  Henry Lee Co., 194 N.L.R.B.  1107, 1107 (1972) ("Where, as here, part-time employees are  engaged in unit work for substantial periods each week, even  though on an unscheduled basis, it is customary Board policy  to include them in the unit as regular part-time employees.").Moreover, neither Rimdzuis's fixed wage nor his exclusion  from certain fringe benefits negates the substantial interest  he has in the working conditions he shares with others in the  bargaining unit approximately twenty hours each week.  Accordingly, I believe the Board clearly erred in disenfranchising Rimdzuis.



Notes:


1
 The Board in Oxford Chemicals addresses "dual function" employees but notes that the same standard applies for determining  eligibility of part-time employees.  See 286 N.L.R.B. at 187;  see  also Time Warner, 160 F.3d at 6 n.12.


