216 F.3d 1146 (D.C. Cir. 2000)
Joseph T. Ryerson & Son, Inc.,Petitionerv.National Labor Relations Board, RespondentInternational Brotherhood of Teamsters, AFL-CIO, Local 714 and United Steelworkers of America, AFL-CIO, Intervenors
No. 99-1327
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 2000Decided July 7, 2000

[Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Stephen D. Erf argued the cause for petitioner.  With him  on the briefs were Michael F. Rosenblum, Timothy S. Bishop  and Jeffrey W. Sarles.
Sonya Spielberg, Attorney, National Labor Relations  Board, argued the cause for respondent.  With her on the  brief were Leonard R. Page, General Counsel, Linda R. Sher,  Associate General Counsel, Aileen A. Armstrong, Deputy  Associate General Counsel, and Peter Winkler, Supervisory  Attorney.
David I. Goldman argued the cause for intervenors.  With  him on the brief was Susan Brannigan.
Before:  Silberman and Rogers, Circuit Judges and  Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
Joseph T. Ryerson & Sons, Inc.  petitions for review of an order of the National Labor Relations Board that the company violated  8(a)(1) and (5) of  the National Labor Relations Act by refusing to bargain with  the certified representative of the bargaining unit, namely  with Local 714 of the International Brotherhood of Teamsters  ("Teamsters") and the United Steelworkers of America  ("Steelworkers"), which jointly petitioned to represent a bargaining unit at four of the company's plants in Chicago,  Illinois.  The company contends that the Board erred in  failing to set aside the election for three reasons:  (1) the Act  does not authorize either joint election petitions or separate  administration by two unions of a collective bargaining agreement;  (2) there is not substantial evidence in the record to  support the Board's finding that the unions did not misrepresent the intended nature of their joint representation to the  bargaining unit employees during the election campaign;  and  (3) the hearing officer abused his discretion in denying the  company's subpoena for the unions' entire joint bargaining  agreement and other internal documents relating to the joint  petitions for representation, thereby denying the company a  full and fair hearing.  Because the company failed to preserve  its statutory argument for review by the court, and because  we conclude that the company's other contentions are unpersuasive, we deny the petition and grant the Board's crossapplication for enforcement of its order.

I.

2
Joseph T. Ryerson & Sons, Inc. operates four plants in  Chicago, Illinois--the 16th Street, 83rd Street, 103rd Street,  and 111th Street--known collectively as the "Chicago Complex."  After a number of unsuccessful attempts by the  Steelworkers--due, in part, to lack of support at the 16th and  83rd Street plants--to organize Ryerson production and  maintenance employees in Chicago, the Teamsters, in 1997,  began a campaign to represent production and maintenance  employees at the 16th and 83rd Street plants.  After the  Teamsters filed a petition with the Board seeking certification  as the exclusive bargaining representative of the bargaining  unit at the 16th and 83rd Street plants, a struggle between  the Teamsters and Steelworkers ensued, resulting in the  Steelworkers' campaign to represent the employees at the  103rd and 111th Street plants.  After the petitions for representation of the 800 employees were consolidated for hearing,  the Steelworkers distributed a flyer at the 103rd Street and  111th Street plants stating that:


3
The workers at 103rd Street don't want to be represent-ed by the Teamsters and have overwhelming[ly] signed Steelworker cards ...  The Teamsters are arguing for one election including 83rd and 16th Street workers....The Steelworkers are fighting to get an election for the103rd Street workers.


4
Employees at the 16th and 83rd Street plants, without objection from the Teamsters, circulated a petition opposing the  Steelworkers:  "We, the undersigned, DO NOT want the  Steelworkers to represent us.  Rather than have them, we  will remain NON-UNION." (emphasis in original)


5
After failed attempts at mediation and on the eve of  arbitration, the unions agreed to file a joint petition for  certification.  Following execution of a joint petition agreement, the unions distributed flyers to the employees that set  out the first two paragraphs of the joint petition agreement:


6
At the National Relations Board hearing, the [Steelwork-ers] and the [Teamsters] agree to engage in a joint organizing/ representa[ ]tion campaign at the Chicago Complex of [the company] for a bargaining unit consist-ing of all four facilities, including 16th Street, 83rdStreet, 103rd and 111th streets.  This will involve an amended representation petition to seek a joint certification, unless otherwise agreed to by the [Teamsters] and [Steelworkers].


7
Assuming that the campaign is successful, the union [s] will jointly negotiate for a collective bargaining agreement and will divide responsibility for administering the contract as follows:


8
-16th and 83rd streets -[Teamsters]-103rd and 111th Streets -[Steelworkers]


9
Dues and membership will follow the same lines.


10
No other portion of the joint petition agreement was divulged  to the employees.  The unions circulated separate authorization cards, and filed amended petitions to jointly petition to  represent "[a]ll full-time and regular part-time production  and maintenance employees" at the four Chicago Complex  plants.


11
During the election campaign, the Steelworkers distributed  literature and campaigned exclusively at 103rd and 111th  Streets, while the Teamsters distributed literature and campaigned exclusively at 16th and 83rd Streets.  Each union  held its own rallies.  Organizers from both unions made  statements to employees that the unions would part ways  with respect to representation after the certification, dividing  the four plants between them for the election campaign and  thereafter for contract administration.1


12
On September 25, 1997, the unions won the election.2  The  company filed objections to the election, noting among other things that the unions "stated [their] intention to negotiate as  separate unions in separate bargaining units, and not as a  joint bargaining representative" and "misrepresented how  bargaining and contract administration would occur if [they]  won the election."  The company also served a subpoena on  the unions for "[a]ll documents relating to the joint representation arrangement" between the Teamsters and the Steelworkers.  The unions objected to the subpoena as seeking  irrelevant documents and as vague and unduly burdensome.The hearing officer denied the subpoena except as to the first  two paragraphs of the joint petition agreement that had been  disclosed to the employees during the election campaign, on  the ground that the unions' internal communications were  irrelevant because they did not shed light on what the unions  had communicated to the employees during the election campaign.  Following a hearing over the course of several days,  the hearing officer found "no direct evidence that the [unions]  do not intend to bargain jointly," observing that the unions  had "consistently maintained that they would bargain jointly,  but administer the jointly-negotiated contract separately at  specific locations," and that there was no evidence "that the  [unions] misrepresented how bargaining and contract administration would occur if [they] won the election." The Board  adopted the hearing officer's findings and recommendations  in the unions' favor, and certified the unions as the exclusive  bargaining representative of the bargaining unit employees.


13
When the company subsequently refused to bargain, the  unions filed an unfair labor practice charge.  The Board, in  response to the company's attack on the certification because  of the unions' conduct during the election campaign, ruled  that the company could not relitigate issues litigated in the  representation proceeding, and granted the General Counsel's  motion for summary judgment on the complaint charging the  company with violating  8(a)(1) and (5) of the Act.  See  Joseph T. Ryerson & Sons, Inc. v. NLRB, 328 NLRB No. 168  (August 6, 1999).  The company petitions for review of the  Board's unfair labor practice order, and the Board filed a  cross-application for enforcement of its order.

II.

14
In contending that the Board erred by failing to set aside  the election, the company makes three challenges.  We address each in turn.


15
A. Statutory challenge.  The company contends that the  National Labor Relations Act does not authorize the Board  to certify more than one union as exclusive bargaining representative, or to divide a bargaining unit for purposes of  contract administration.3  Specifically, the company makes  two statutory contentions.  First, it maintains that the Board  acted contrary to the Act, which authorizes a union to become the exclusive bargaining-unit representative only if it  obtains the support of a majority of the bargaining unit  employees, by certifying two unions, each of which garnered  only minority support, as the "exclusive representative" for  the company's single Chicago Complex bargaining unit.  Second, the company maintains that, even if the Act did permit  joint petitioning and representation, it does not permit the  unions to divide up a bargaining unit for purposes of bargaining, contract administration, and representation.  As explained in its brief, in the company's view, the Board's  authorization for the unions to divide up the Chicago Complex bargaining unit and administer the contract separately  rests on "a false dichotomy between contract bargaining and  contract administration" inasmuch as contract administration,  and in particular the processing of grievances, is "inextricably linked with collective bargaining."  While the second  statutory contention poses a serious legal issue that the court  has not yet addressed, see supra note 3, a threshold issue is  whether these contentions are properly before the court.The Board maintains that the company "waived" its statutory  contentions by failing to raise them in the representation  proceeding before the Board and waiting until its opposition  to the General Counsel's motion for summary judgment on  the unfair labor practice complaint to raise the issues for the  first time.


16
"It is well established that in the absence of newly discovered evidence or other special circumstances requiring reexamination of the decision in the representation proceeding, a  respondent is not entitled to relitigate in a subsequent refusal-to-bargain proceeding representation issues that were or  could have been litigated in the prior representation proceeding."  Thomas-Davis Med. Ctrs., P.C. v. NLRB, 157 F.3d 909,  912 (D.C. Cir 1998) (quoting Westwood One Broad. Servs.,  Inc., 323 N.L.R.B. No. 175 (June 16, 1997) (citing Pittsburgh  Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941))).  The  company, seeming to acknowledge the need to have raised its  statutory argument in the representation proceeding, attempts to demonstrate that it did by pointing to various pages  in the record.  The assertion that it raised the statutory  challenge in that proceeding is not borne out by the record.Neither the company's citations to the record nor counsel's  response at oral argument demonstrates that the company  made its statutory argument during the representation proceeding.


17
Apparently aware of the weakness of its position, the  company falls back on its assertion that its statutory challenge was "implicit" in its argument that the unions' conduct demonstrated that they intended to divide the bargaining unit  for separate representation.  But the thrust of the company's  reliance on the unions' conduct was to show that the joint  representation agreement was a sham and the bargaining  unit employees were confused about what they were voting  for in the election, which is unrelated to the statutory challenge it raised in opposing summary judgment.  Furthermore, as the Board stated in granting summary judgment on  the unfair labor practice charge, the company did not "offer  to adduce at a hearing any newly discovered and previously  unavailable evidence, nor [did] it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding."  Ryerson, 328  NLRB No. 168, at 1.  In any event, an implicit argument is  hardly the same as giving notice so the Board has an opportunity to rule on the argument.  Cf. Alois Box Co. v. NLRB,  216 (D.C. Cir. June 30, 2000).Indeed, the record suggests that rather than being an implicit  argument in the company's arsenal attacking the election, the  statutory challenge was an afterthought, interposed as a new  argument aimed at avoiding summary judgment.  This is  evident from the fact that the company did not file an  exception to the certification decision on statutory grounds  muchless thereafter raise a statutory challenge in its answer  to the unfair labor practice charge.


18
The company's explanation that it was unable to litigate its  statutory objections "with all of the information it needed" as  a result of the denial of its subpoena for the entire joint  representation agreement rings hollow.  Even if access to the  entire agreement might possibly have strengthened a statutory challenge, cf. Construction & Gen. Laborers' Local Union  No. 190 v. NLRB, 998 F.2d 1064, 1066-67 (D.C. Cir. 1993),  the lack of such access did not preclude the company from  raising the statutory challenge, particularly as it was suggested by the evidence on which the company relies to show that  the unions did not intend to bargain jointly or to administer  the parties' contract jointly.  See infra Part II(B).  Had the  company made a statutory challenge during the representation proceeding, moreover, it might well have had a better argument in favor of enforcing the subpoena.  See infra Part  III(C).


19
The company's current contention that the Board failed in  its responsibility to ensure that "fundamental labor principles" are not violated, see Associated Milk Producers, Inc. v.  NLRB, 193 F.3d 539, 543 (D.C. Cir. 1999), misses the mark.


20
Although it is not entirely clear, the company appears to be  contending that the Board's responsibility to protect fundamental principles of labor law constitutes a "special circumstance" as would excuse the company's failure to raise its  statutory argument during the representation proceeding.Were that the case, the Board's non-relitigation rule would be  seriously compromised, eviscerating the non-relitigation rule  for legal arguments having to do with the Board's authority  under the Act.  On the other hand, to the extent the company  is suggesting that it is foreclosed from obtaining relief if its  suspicions about how the unions will conduct themselves are  confirmed, it is in error.  Were the unions, for example, not  to engage jointly in the collective bargaining process or not to  engage in joint contract administration by taking divergent  grievance and arbitration positions, cf. International Bhd. of  Teamsters v. NLRB, 587 F.2d 1176, 1181 (D.C. Cir. 1978), the  company would not be without a remedy.  The Board acknowledged in the certification order that the company could  then file a petition to modify or revoke the unions certification, or file a refusal to bargain charge, or, as the Board  acknowledged at oral argument, the company could simply  refuse to bargain with an inappropriate unit.  See Utility  Servs., 158 N.L.R.B. 592, 593 (1966).


21
Because the company did not preserve its right to raise its  statutory contentions in appealing the Board's unfair labor  practice order, those contentions are not properly before the  court and we do not address them.


22
B. Misrepresentation challenge.  Seeking to overturn  the election on other grounds, the company contends that the  Board's finding that the unions did not misrepresent to the  bargaining unit employees during the election campaign the  character of their proposed joint representation is unsupported by substantial evidence in the record.  Because the unions  engaged in misrepresentation, the company maintains, the  Board erred in failing to set aside the result of the tainted  election.  The company relies on evidence in the record that  certain individuals told bargaining unit employees that the  Steelworkers and Teamsters intended to bargain separately  and that this message was reinforced by the separate campaigns waged by the unions. Specifically, the company relies  upon statements attributed to union officials such as "don't  worry about the Teamsters, we're gonna be Steelworkers  here," and the "Teamsters [are] going to be at 16th and 83rd  and we are not worried about what the Steelworkers are  going to do."


23
Obviously, the members of the bargaining unit must have  accurate information to inform their election decisions.  See,  e.g., General Teamsters Local Union No. 174 v. NLRB, 723  F.2d 966, 972 (D.C. Cir. 1983);  Automatic Heating & Serv.  Co., 194 N.L.R.B. 1065 (1972);  Suburban Newspaper Pubs.,  Inc., 230 N.L.R.B. 1215, 1217 (1977).  However, the problem  for the company's position is two-fold.


24
First, the Board's rejection of the company's contention is  well founded.  The court must affirm the Board's decision if it  reasonably rests on factual findings supported by substantial  evidence.  See Family Serv. Agency San Francisco v. NLRB,  163 F.3d 1369, 1377 (D.C. Cir. 1999);  Amalgamated Clothing  & Textile Workers Union v. NLRB, 736 F.2d 1559, 1562-63  (D.C. Cir. 1984).  The Board's finding that there were no  misrepresentations by the unions during the election campaign rests on two grounds.  First, the testimony of union  supporters and officials was clear about the unions' intention  to bargain jointly.  Thus, Denise Williams, a Steelworkers  organizer, testified that she informed bargaining unit employees that the unions would bargain jointly.  Likewise, Gerald  Jagodzinski, an organizer for Teamsters Local 714, testified  that he never told employees that the unions would bargain  separately.  The Board also points to statements made by  Jagodzinski to a reporter that "the two unions plan to negotiate a collective bargaining agreement" once they were certified. Second, the evidence showed that management from the company distributed fliers during the election campaign informing employees that the unions would bargain jointly, and  that no fewer than seven managers spoke directly to employees telling them they would be voting for both unions. Viewed together, these grounds establish substantial evidence  to support the Board's finding that the members of the  bargaining unit had accurate data to inform their election  choices.4


25
Second, the evidence the company cites is insufficient to  rebut even the prima facie showing.  See, e.g., Gene Fielder  Chevrolet Co., 245 N.L.R.B. 1075, 1076 n.3 (1979);  Utility  Servs., Inc., 158 N.L.R.B. 592, 592 (1966);  Florida Tile  Indus., Inc., 130 N.L.R.B. 897, 897 (1961).  The statements  on which the company relies are consistent with the interpretation that contract administration would be handled at the  separate plants while joint bargaining would occur in a joint  fashion.  Administration without deviation at the separate  plants clearly would not be inconsistent with joint representation.  Further, a number of the allegedly misleading statements that the company claims were made by the unions  were in fact made by employees in the bargaining unit--John  Jeziorski, James Malizio, Ron Butler, John Grey, Jesus Gomez, Mike Ross--not union officials.  Because the Board  reasonably found that the company did not show that these  employees were acting as agents of the unions when these  statements were made, it was justified in not attributing the  statements to the unions.  See, e.g., Overnite Transp. Co. v.  NLRB, 140 F.3d 259, 266 (D.C. Cir. 1998);  Amalgamated  Clothing, 736 F.2d at 1565.


26
Thus, absent evidence that could rebut the substantial  evidence on which the Board relied in finding that the unions  did not misrepresent their intent to bargain jointly, the  company fails to show that the Board erred in refusing to set  aside the election for the alleged misrepresentation.


27
C. Subpoena challenge.  Finally, the company contends  that it was denied a full and fair hearing because the hearing  officer denied the company's subpoena for the unions' entire  joint representation agreement and other internal union communications about jointly representing the bargaining unit.  The company maintains that the entire agreement was "highly relevant" and "central" to its argument that the unions did  not intend to bargain jointly and the joint representation  agreement was a sham.  Reviewing the hearing officer's  partial denial of the company's subpoena for abuse of discretion, we find none in view of the nature of the arguments that  the company presented during the representation proceeding. See Perdue Farms, Inc., Cookin' Good v. NLRB, 144 F.3d  830, 834 (D.C. Cir. 1998).


28
The hearing officer partially denied the subpoena on the  ground that he found relevant only "whatever communications have been made to employees regarding the status of  the joint petitioners," observing that the company "will have  the right to file an unfair labor practice charge" if the unions  do not bargain jointly.  Given the nature of the company's  challenge to the union election in the representation proceeding, that the unions made misrepresentations to the bargaining unit employees during the campaign, and given the historical antagonism that the company identified between the two  unions, the company's position that it was deprived of information relevant to its reasonable suspicion is plausible, see  Surburban Newspapers, 230 N.L.R.B. at 1216, and the denial  of the subpoena is thus troubling.  Placing a barrier in the  way of a party's ability to present its case would, if prejudicial, be grounds for reversing the Board.  Cf. Drukker Communications, Inc. v. NLRB, 700 F.2d 727, 731, 734;  (D.C.  Cir. 1983);  Indiana Hosp., Inc. v. NLRB, 10 F.3d 151, 154  (3d Cir. 1993).


29
Nevertheless, under the abuse of discretion standard, we  conclude that it was still reasonable for the hearing officer to  find that the full joint petition agreement and like internal  communications had little relevance to the misrepresentation  issue.  See NLRB v. Blackstone Mfg. Co., 123 F.2d 633, 635  (2d Cir. 1944);  cf. Carothers v. Pressler, 818 F.2d 926, 934  (D.C. Cir. 1987) (observing that viewing Labor Management  Reporting and Disclosure Act as creating a substantive "right  of access" to a union's mailing list could subvert union's  legitimate role as bargaining representative).  Because the  company has not shown that it was prejudiced by the Board's  denial of the subpoena inasmuch as it is not without a remedy  if the unions fail to bargain jointly, see supra Part III(A),  when a subpoena of the entire agreement would no longer be  premature and would arguably be enforceable, we conclude  that the reasons given by the hearing officer for partially  denying the subpoena fall within the alternatives available to  him in the exercise of reasoned discretion.  See generally  Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir.  1995).


30
Accordingly, because the company failed to preserve its  statutory challenge to the certification of the unions as the  exclusive representative for the bargaining unit, and because  the company's other contentions are unpersuasive, we deny  the petition for review and grant the Board's cross application  for enforcement of its order.



Notes:


1
  According to the Bureau of National Affairs, under the joint  representation agreement, the Teamsters will represent 525 employees at two plants and the Steelworkers will represent 275  employees at the other two Chicago Complex plants.  See BNA  Daily Labor Report, Nov. 6, 1997, at A3.


2
  Of the 820 employees eligible to vote in the election, 786  voted:  418 voted for the unions and 352 voted against the unions,  with 16 ballots challenged and one declared void.


3
  While acknowledging that the court rejected a challenge to  joint petitioning in NLRB v. National Truck Rental Co., 239 F.2d  422 (D.C. Cir. 1986), the company maintains that the issue should  be revisited because the court's rationale is "obsolete and legally  invalid."  To support its contention that the Board exceeded its  authority under the National Labor Relations Act, the company  cites cases for the propositions that (1) an exclusive collective  bargaining agent must enjoy the support of the majority of employees in the unit, see, e.g., Carothers v. Presser, 818 F.2d 926, 934  (D.C. Cir. 1987);  Human Dev. Ass'n v. NLRB, 937 F.2d 657, 665  (D.C. Cir. 1991), and (2) contract bargaining and contract administration are linked, such that allowing separate administration would  violate the Act.  See, e.g., Air Line Pilots Ass'n, Int'l v. O'Neill, 499  U.S. 65, 77 (1991);  United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 581 (1960).  The Board, in turn, cites  National Truck Rental as to joint representation, and cites several  Board decisions for the proposition that a bargaining unit may be  divided by unions for purposes of contract administration, Utility  Servs., Inc., 158 NLRB 592, 593 (1966);  Swift & Co., 114 NLRB  159, 160 (1955).


4
  The cases on which the company relies are readily distinguishable.  In Suburban Newspaper Publications, Inc., 230  N.L.R.B. 1215, 1217 (1977), the Board nullified an election because  "the employees were told [by the unions and their representatives]  there would be separate units represented by the respective labor  organizations, not merely serviced by them."  Id. at 1217 n.5.Likewise, in Automatic Heating & Service Co., 194 N.L.R.B. 1065  (1972), union officials admitted at the hearing that they had no  intention of jointly bargaining or representing all the bargaining  unit employees.


