

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 96-1945

                 TELEMUNDO DE PUERTO RICO, INC.,

                  Petitioner, Cross-Respondent,

                                v.

                 NATIONAL LABOR RELATIONS BOARD,

                  Respondent, Cross-Petitioner.

                                             

                PETITION FOR REVIEW OF AN ORDER OF

                THE NATIONAL LABOR RELATIONS BOARD

                                             

                              Before

                      Selya, Circuit Judge,                                                    

                  Aldrich, Senior Circuit Judge,                                                         

                    and Lynch, Circuit Judge.                                                      

                                             

     Jay A.  Garc a-Gregory with whom Trist n  Reyes-Gilestra and                                                                       
Fiddler, Gonzalez &amp; Rodriguez were on brief, for petitioner.                                       
     Ginoris Vizcarra de L pez-Lay, with  whom L pez-Lay Vizcarra                                                                           
&amp; Porro was on brief, for intervenor.                 
     John  D.  Burgoyne,  Assistant  General  Counsel, with  whom                                 
Frederick L.  Feinstein, General  Counsel, Linda  Sher, Associate                                                                
General  Counsel,  and  Aileen  A.  Armstrong,  Deputy  Associate                                                       
General Counsel,  National Labor Relations Board,  were on brief,
for respondent.

                                             

                           May 15, 1997
                                             

          SELYA,  Circuit   Judge.    We  live  in   the  age  of                    SELYA,  Circuit   Judge.                                           

television,  and the judicial system  is not immune.   This case,

however, varies  the usual setting  in which  courts and  cameras

coalesce, for our interest lies behind the television screen.  In

pursuing that interest, we entertain today a question familiar to

a generation of television viewers:  "Who's the Boss?"

          The  script for  this  episode  features  Telemundo  of

Puerto Rico, Inc. (the  Company), which petitions to set  aside a

final order  of the  National Labor  Relations Board  (the Board)

determining that  it unlawfully refused to  recognize and bargain

with the Uni n de Periodistas, Artes Gr ficas Y Ramas Anexas (the

Union).   The Board cross-petitions for  enforcement of its order

pursuant  to  the National  Labor  Relations Act  (the  Act), and

specifically, 29 U.S.C.    160(e),  (f) (1994).   We enforce  the

order.

I.  SETTING THE LIGHTS          I.  SETTING THE LIGHTS

          Telemundo operates a  television station  in Hato  Rey,

Puerto Rico.   In December of  1994, the Union  (which appears in

this  venue as  an  intervenor) sought  to  be certified  as  the

exclusive collective  bargaining representative of a   tiny group

of  Company  employees  known   as  technical  directors   (TDs).

Telemundo  opposed   the  effort,   casting  the  three   TDs  as

supervisors (and, thus, part of management).  Agents of the Board

conducted  a  representation  proceeding  at which  evidence  was

taken.   The  record was closed  in April  1995.   On January 30,

1996,  the regional director issued a decision finding the TDs to

                                2

be run-of-the-mill  employees, not supervisors, and  mandating an

election  (to take place on  February 28, 1996)  for a bargaining

unit composed solely of the three TDs.

          On February 12, the Company sought  reconsideration; it

filed a  request for review  and annexed  to the papers  a letter

dated  May 15, 1995, in which  it had informed the TDs' immediate

superior, Rafael Corps, that  his position   technical supervisor

(TS)   was to be eliminated effective June 16, 1995.  On February

28, the three TDs voted unanimously to join the Union.  The Board

denied  the Company's  request  for  review  two days  later  and

thereafter   certified  the  Union   as  the   bargaining  unit's

representative.

          It is common ground that employers cannot obtain direct

review  of  unfavorable  certification decisions.    See American                                                                           

Fed'n   of  Labor   v.  NLRB,   308  U.S.  401,   409-11  (1940).                                      

Consequently, if an employer is dissatisfied  with the outcome of

a representation proceeding, the option of choice is to refuse to

bargain and to raise any  infirmity in the certification decision

as  a defense  to the  unfair labor  practice charge  that almost

inevitably  will ensue.  See, e.g., Boire v. Greyhound Corp., 376                                                                      

U.S. 473, 477 (1964); S.D. Warren  Co. v. NLRB, 342 F.2d 814, 815                                                        

(1st Cir. 1965).   So here:   the Company stonewalled, the  Union

pressed an unfair labor practice charge, and the Company defended

on the  ground that the bargaining unit was inappropriate because

the TDs were supervisors.   As part of this defense, the  Company

asked the Board to pay special heed to (1) the letter eliminating

                                3

the  technical  supervisor's  position,   and  (2)  an  affidavit

executed well after the election by Elizabeth Rivera, a member of

management, purporting to describe changes in the TDs' duties.

          The General  Counsel moved  for summary judgment.   The

Board obliged,  rejecting the proffered  affidavit, upholding the

underlying certification, and  ruling that the  Company's refusal

to bargain  violated the Act.   See Telemundo of  P.R., Inc., 321                                                                      

NLRB No. 133,  slip op. (NLRB Aug. 16, 1996).   These proceedings

followed apace.

II.  ASSEMBLING THE CAST          II.  ASSEMBLING THE CAST

          The employees in the bargaining unit are members of the

Company's   production  services   department,   which  has   the

responsibility for  producing live  and taped telecasts.   During

the  pendency of  the representation  proceeding,  the department

comprised,  inter  alia,  the director  (Rivera),  the  technical                                 

supervisor (Corps), three program directors, three TDs, audio and

lighting persons, and  eighteen studio  technicians.   Typically,

the  TS prepared  a  daily schedule  delineating which  employees

would work on which  programs and establishing a specific  set of

responsibilities  for  three  crews,  each headed  by  a  TD  and

including  technicians  (e.g.,  cameramen,  a  floor  manager  or

coordinator, audio  and lighting  persons, a  character generator

operator) assigned to the crew by the TS.

          In the pre-production stage, the  crew's activities are

dictated  for  the  most part  by  the  script  for the  upcoming

program.   The TD is  given the script,  sometimes called a  run-

                                4

down,  and it is incumbent upon him  to ensure that the studio is

prepared  for production  according to  the script  and that  all

hands  are present  and in  their places.   When  the performance

begins,  a  program director  takes over  and  the TD  retires to

operate the camera control panels in the control room.  Some crew

members work in the control room alongside the TD; others work on

the floor.

          After the performance  ends, the TD again comes  to the

fore; in the  course of an approximately  30-minute process known

as the  wrap, the TD and  his crew store the  equipment and other

programming paraphernalia  in the control  room.  All  three TDs,

but no studio technicians, possess keys to the control room, and,

after  the equipage is stored,  the TD assumes responsibility for

locking the  room.  The TD also prepares and files a daily report

which   memorializes  the   crew's  membership,   catalogues  the

equipment used  during production, and relates  any problems that

occurred with  regard  to either  personnel  or equipment.    The

program director  and the  floor coordinator likewise  file daily

reports.

          To achieve a balanced picture,  it is important to note

what TDs  do not  do.  They  ordinarily do not  make disciplinary

recommendations  in their  daily reports;  rather, the  technical

supervisor  reads the  reports  and  takes whatever  disciplinary

action  he thinks is appropriate.  The TDs neither participate in

the  disciplining  of  errant  employees  nor   perform  employee

evaluations.   They do  not interview, hire,  promote, demote, or

                                5

terminate  other   workers.     They  do  not   address  employee

grievances.

          As in  any workplace, absenteeism  occurs.   In a  TD's

absence,  another TD or the TS will replace him.  Technicians who

find  themselves  unable to  work must  inform  the TS,  who will

secure a replacement.  If neither the department director nor the

TS is at the station (as frequently occurs on weekends, holidays,

and  during some night shifts),  a TD may  be the highest-ranking

employee  on the  premises.   As  such,  he will  recruit  needed

substitutes  from another  crew or  from a  list composed  by the

technical supervisor and posted in the production office.  The TS

often will "pop in" on such occasions, and, in any event, the TDs

have the home telephone  numbers of both the director and the TS,

and they are under instructions  to call either or both of  these

individuals in case of an emergency.

          The  TDs have some trappings of a higher echelon.  They

receive  more  munificent salaries,  larger  bonuses,  and better

benefits than the studio technicians.  They rate reserved parking

spaces  and separate  desks (albeit  in a  common office).   They

occasionally  have been  invited to attend  supervisors' meetings

(including  a  few  meetings   at  which  collective   bargaining

negotiations were  discussed).  Sporadically, TDs  have initiated

meetings among technical  personnel    but they do  not have  the

power to  follow through  on such  initiatives  unassisted.   For

instance,  when a  TD  notified Rivera  of  his wish  to  discuss

tardiness,  work   habits,  and   care  of  equipment   with  the

                                6

technicians in his crew, Rivera called such a meeting and the  TD

ran it.  On  another occasion, a TD drafted (but did  not send) a

memorandum  requesting  that technical  personnel  report  to the

studios  at the entry time set by  management even if they had no

assigned  work then  and  there.   Rivera  rewrote the  memo  for

signature  by the  TS  and the  TD, adding  a reminder  about the

possible consequences of noncompliance.

III.  THE RATINGS          III.  THE RATINGS

          In rating the Board's  performance, we first review its

determination that the TDs are not supervisors.

                     A.  Receiving Our Cues.                               A.  Receiving Our Cues.                                                     

          To put this case into perspective, it bears remembering

that  the  Act  strives  to  limn  a  clear  distinction  between

management  and labor.   To that  end, supervisory  employees are

excluded from the bargaining  process because they must represent

the  interests  of their  employer rather  than the  interests of

their coworkers.  See Stop  &amp; Shop Cos. v. NLRB, 548  F.2d 17, 19                                                         

(1st  Cir. 1977).    The  Act  defines  a  "supervisor"  as  "any

individual having authority, in the interest of the employer,  to

hire, transfer,  suspend, lay  off,  recall, promote,  discharge,

assign, reward, or discipline  other employees, or responsibly to

direct them,  or to  adjust their  grievances, or effectively  to

recommend  such action, if  in connection with  the foregoing the

exercise of such authority is not of a merely routine or clerical

nature, but requires the use of independent judgment."  29 U.S.C.

  152(11).  Because the statute is to be read in the disjunctive,

                                7

any one of the enumerated powers may signify supervisory  status.

See  Northeast Utils. Serv. Corp. v. NLRB,  35 F.3d 621, 624 (1st                                                   

Cir.  1994), cert. denied, 115  S. Ct. 1356  (1995); Maine Yankee                                                                           

Atomic  Power Co.  v. NLRB,  624 F.2d 347,  360 (1st  Cir. 1980).                                    

Nonetheless, as the definition's final clause reflects,  Congress

intended to exclude "`straw  bosses,' `lead men,' and other  low-

level  employees  having   modest  supervisory  authority"   from

supervisor  status.1  NLRB v. Res-Care, Inc., 705 F.2d 1461, 1466                                                      

(7th Cir.  1983) (quoting  legislative history).   Thus,  even an

enumerated  power  must  involve  the   exercise  of  independent

judgment  in  order  to  brand  the  holder of  the  power  as  a

supervisor.

                                                  

     1The derivation of the term "straw boss" bears mentioning:

          In the  early days of logging  in mountainous
          country  straw  was  spread  upon  slopes too
          steep for horses to hold back  a sled load of
          logs   but  not   so  steep  as   to  require
          "bridling,"  i.e., looping a  short length of
          chain around a sled runner to drag underneath
          it, or  holding the load  back by means  of a
          long rope  attached to  the rear of  the sled
          and wound  once or twice  (snubbed) around  a
          stump  at the  top  of the  slope to  provide
          friction.   After each  passage, sometimes at
          full gallop  to keep the horses  ahead of the
          load, the  straw was naturally displaced so a
          man with a pitchfork was posted at each slope
          to   keep   the  straw   evenly  distributed.
          Although teamsters were men of consequence in
          the lumber camps, the rule was that they were
          not  to  start down  a  slope  until the  far
          humbler functionary with  a pitchfork,  using
          his "independent judgment," passed  word that
          the  slope  was  prepared.    Hence the  term
          "straw boss."

NLRB v. Swift &amp; Co., 292 F.2d 561, 563 n.2 (1st Cir. 1961).                             

                                8

          Given  the  myriad  iterations of  authority  that  are

possible and  the subtle distinctions  that easily can  be drawn,

courts  must  afford  great   deference  to  the  Board's  expert

determination  of which workers  fall into  which classification.

See Goldies,  Inc. v. NLRB,  628 F.2d  706, 710 (1st  Cir. 1980);                                    

Maine Yankee, 624 F.2d at 360; see also Universal Camera Corp. v.                                                                        

NLRB, 340 U.S. 474, 488 (1951) (describing the Board as an agency              

"presumably equipped  or informed  by experience to  deal with  a

specialized field of knowledge,  whose findings within that field

carry  the authority of an expertness which courts do not possess

and therefore must  respect").  Consequently, we  must accept the

Board's findings as to which employees are supervisors  and which

are  not  unless those  findings  fail  to  derive  support  from

substantial evidence in  the record  as a whole.   See  Universal                                                                           

Camera,  340 U.S. at 488; Providence Hosp. v. NLRB, 93 F.3d 1012,                                                            

1016 (1st Cir. 1996); see also 29 U.S.C.   160(e), (f).                                        

               B.  Addressing the Studio Audience.                         B.  Addressing the Studio Audience.                                                           

          The   Company  contends  that   the  Board  engaged  in

piecemeal  analysis  and  ignored  overwhelming  record  evidence

indicating that TDs responsibly direct studio technicians.  After

carefully  examining   the  entire   record,  we  conclude   that

substantial evidence supports the  Board's determination that the

three TDs are ordinary employees, not supervisors.

          The linchpin of this  assessment is that, as the  Board

pointed out, the  primary responsibilities of  the TDs relate  to

safeguarding equipment,  ensuring that the crew  is positioned in

                                9

accordance with  the script,  performing actual  production work,

and  documenting  the  events  (or  nonevents)  incident  to  the

production of  particular programs.  Although  these duties carry

responsibilities greater than those borne by  studio technicians,

they do not require  the exercise of independent judgment  in any

legally meaningful sense.

          Certainly,  superintending the  maintenance and  use of

equipment is not commonly thought to be a supervisory function or

to require managerial authority.   See Maine Yankee, 624  F.2d at                                                             

361-62.   Similarly, the mere  fact that an  employee gives other

employees  instructions  from time  to time  does  not in  and of

itself render him a supervisor for purposes of the Act.  See Stop                                                                           

&amp; Shop, 548 F.2d at 19.  Rather, the portent of that fact depends                

on the relative significance of the instructions given.  See id.;                                                                          

see also Goldies, 628 F.2d at 710.  In this situation, the TDs do                          

little  more than  implement  the instructions  contained in  the

program's  script.  Moreover, because each technician has his own

assignment and performs repetitive tasks  day after day, the crew

members require  minimal supervision.  Viewed in  the totality of

the  circumstances,  the TDs'  orders  are  both perfunctory  and

routine.   Thus, the instructions,  evaluated in context,  do not

fairly  indicate  that  the   instructors  possess  authority  to

exercise independent judgment in overseeing other employees.  See                                                                           

NLRB v.  Dickerson-Chapman, Inc., 964 F.2d 493, 496, 499-500 (5th                                          

Cir.  1992);  Goldies, 628  F.2d  at 710;  see  also Westinghouse                                                                           

Broad. Co.,  216 NLRB  327, 329 (1975)  (finding that  television                    

                                10

directors  did  not  "responsibly  direct"  employees  where  the

directions  they  gave  were  routine  technical  commands  "made

pursuant to preconceived  production guidelines which ha[d]  been

approved by higher authorities").

          Although  the fact  that  TDs are  the  highest-ranking

persons at  the station on certain occasions hints at supervisory

status, that fact alone does not convert otherwise routine duties

into supervisory  tasks.  See Fall  River Sav. Bank v.  NLRB, 649                                                                      

F.2d 50, 54  (1st Cir. 1981).   And, here, the  additional duties

performed by  the TDs  on those occasions  are mundane.   None of

them necessitates supervisory authority for its  due performance.

The technical  supervisor, not the  TD, is  responsible for  work

assignments  and replacements;  only when  the TS  is unavailable

does the TD locate substitutes, and, even then, the TD must refer

to  a  list  of names  prepared  by  the  TS.   This  function   

irregular, mechanical, and devoid  of independent judgment   does

not constitute  true authority  to assign work.2   See  Northeast                                                                           

Utils., 35 F.3d at  625; Highland Superstores, Inc. v.  NLRB, 927                                                                      

F.2d 918, 923 (6th Cir. 1991).

          Finally,   filing  daily  reports   and  attending  the

occasional meeting  does not make  a decisive difference  in this

situation.   See,  e.g., Stop  &amp; Shop,  548 F.2d  at 20;  NLRB v.                                                                        

Magnesium Casting Co., 427  F.2d 114, 117 (1st Cir.),  aff'd, 401                                                                      
                                                  

     2This  conclusion   is  fortified  by  the   fact  that  the
department  director  and the  TS are  on  call, and  the Company
provides the TDs with their home telephone numbers for use  if an
emergency arises.  See North Shore Weeklies, Inc., 317 NLRB 1128,                                                           
1131 (1995); Ball Plastics Div., 228 NLRB 633, 634 (1977).                                         

                                11

U.S. 137 (1970).   The reports are merely informational;  the TDs

do not  effectively recommend  disciplinary action  by completing

the forms.  Thus,  even though the information conveyed  in these

reports sometimes may lead to the imposition of discipline, it is

not the writers who make  the call.  Even on those  few occasions

when the TDs have submitted recommendations, their superiors have

exercised independent  judgment in  deciding whether (and  if so,

what) disciplinary action is warranted.  In these respects, then,

the  TDs are  mere scriveners    and acting  as an  amanuensis or

otherwise  fulfilling a  purely  reportorial function  is not  an

indicium of  supervisory status.   See Highland  Superstores, 927                                                                      

F.2d at  922.   The evidence  as to meetings  is also  subject to

conflicting  inferences.   To  be sure,  the  TDs attended  a few

meetings  for supervisors   but  many such meetings  were held to

which  they were not invited.  And when they attempted to arrange

technicians' meetings, they were stymied unless they received the

blessing of Rivera and Corps.

          We  do not mean to imply that the evidence is one-sided

or  that the  pivotal question  is free  from doubt.   There  are

several evidentiary trails in the record, some leading toward one

destination at which the Board arrived and some leading away from

it.  Some of the factors which we have discussed argue in varying

degrees  for supervisory status    the  TDs' hegemony  at certain

times,  their pay  level, the  giving of instructions  to others,

occasionally  passing out work  assignments, filing  reports, and

attending  meetings   but many of them are double-edged.  Just as

                                12

important,  the Board  considered the  collective force  of these

factors and rejected the inference hawked by the Company in favor

of  a different, equally supported inference.   On reflection, we

cannot say that the Board's choice was arbitrary or capricious.

          In a last-ditch effort to save the show, the petitioner

flips  to another channel.   It urges that  Maine Yankee requires                                                                  

overturning the  Board's decision  here.   We do not  agree.   In

Maine Yankee, the Board  decided that shift operating supervisors                      

at  a nuclear  power plant  were not  statutory supervisors.   We

reversed.  624  F.2d at 366.  Because the shift supervisors would

have  to answer  for anything  that went  wrong with  the plant's

electrical  output, management  held  them fully  accountable and

responsible for  the  employees'  performance,  and,  thus,  they

possessed authority  responsibly to direct other  employees.  See                                                                           

id.  at 360-61; see also NLRB v. J.K. Elecs., Inc., 592 F.2d 5, 7                                                            

(1st Cir. 1979) (holding  as supervisors group leaders  who could

lose their positions if  employees in their group failed  to meet

production  quotas).    Here,  however, the  record  contains  no

compelling  evidence  that  a  TD  is  held  accountable  for the

adequate  performance  of  the   crew's  technical  work.    This

distinction  makes a world of difference.   See Northeast Utils.,                                                                          

35 F.3d  at 625  (distinguishing Maine  Yankee in excluding  from                                                        

supervisory status coordinators who  were not responsible for the

actions of other employees).

          The Company  also claims  that Maine Yankee  bears upon                                                               

the  question  of  whether  TDs  perforce  exercise   independent

                                13

judgment because they cannot always reach the department director

or   the  technical   supervisor  by   telephone  for   emergency

consultation.  But Maine Yankee reflects a vastly different plot.                                         

In  that case, the panel  emphasized the complexity, variety, and

dangerousness of operational duties at an atomic power plant, 624

F.2d at 361  &amp; n.14,  363, and distinguished  a shift  supervisor

there    who had to initiate remedial measures quickly whether or

not he could reach his superiors   from "a dispatcher who assigns

employees  and equipment  according to  a relatively  simple pre-

programmed plan" developed by the employer, id. at 363.  There is                                                         

no evidence  in the  instant record  of comparable  complexity or

dangerousness, nor is  there evidence that a TD  may have to make

emergency  decisions on hazardous    or even intricate   matters.

Indeed, the  only  relevant proof  relates to  decisions such  as

whether  to  proceed  with two  cameras  instead  of  three if  a

cameraman is missing.  Under these circumstances, we cannot fault

the  Board's conclusion  that the  TDs  act more  as dispatchers,

performing routine tasks  and conveying boilerplate instructions,

than as supervisors.   And, moreover,  the Board's conclusion  is

wholly consistent with the  TDs' stated self-perception that they

are crew leaders, no more.

          To conclude,  there is  a fine  line between the  upper

strata  of  employees  and  the lowest  rungs  of  the management

ladder.   We freely acknowledge that the  Board, had it chosen to

weight the TDs' responsibilities differently, could  have reached

the opposite result.   The question is admittedly close,  yet its

                                14

very closeness  argues persuasively in favor of  deference to the

Board.  It is  particularly in the close  cases that judges,  who

are generalists, should respect  the specialized knowledge of the

Board  and accede to its factbound determinations as long as they

are rooted in the record.  See Universal Camera, 340 U.S. at 488.                                                         

Put  bluntly, courts  must  be careful  not  to substitute  their

judgments  for the  Board's  where, on  whole-record review,  the

evidence supports any of  several views and the Board  has chosen

among them.  See NLRB v. Auciello Iron Works, Inc., 980 F.2d 804,                                                            

808 (1st Cir. 1992); Stop &amp; Shop, 548 F.2d at 20.                                          

IV.  THE LATE SHOW          IV.  THE LATE SHOW

          As  a fallback  position,  the Company  implores us  to

remand the case for reconsideration  in light of newly  submitted

evidence which  it says  signifies expanded  responsibilities for

the  TDs.    The  Company's  request  hinges  on  the  import  of

circumstances that allegedly have  arisen since the conclusion of

the  representation hearing:   the  elimination of  the technical

supervisor's  position, the  ostensible transfer  of some  of his

duties to  the TDs, and the inclusion of the  TDs as members of a

fledgling  evaluation   committee.    This   initiative  squarely

presents   the   question   of   when   changes   in   employment

responsibilities    require    reexamination   of    an   earlier

determination of employee status.

                    A.  Reshooting the Scene.                              A.  Reshooting the Scene.                                                      

          It is  well settled that an  employer defending against

                                15

an unfair  labor practice  charge cannot relitigate  issues which

were   (or  could   have  been)   contested  in   the  underlying

representation  proceeding.   See  29  C.F.R.       102.65(e)(1),                                           

102.67(f);  see also Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.                                                                 

146, 162 (1941); Fall River  Sav. Bank, 649 F.2d at 58.  There is                                                

an  exception   to   this   salutary   rule   for   extraordinary

circumstances,   usually  embodying  the  emergence  of  evidence

previously  undiscovered (or,  at  least, unavailable).   See  29                                                                       

C.F.R.   102.65(e)(1);3 see  also Fall River Sav. Bank,  649 F.2d                                                                

at 58; East  Mich. Care Corp., 246 NLRB 458, 459 (1979), enforced                                                                           

without  opinion, 655  F.2d  721  (6th  Cir.  1981).    But  this                          

exception  should  be  invoked  sparingly,  and  a  court  should

hesitate to second-guess  the Board's assessment  that particular

circumstances do not qualify for it.

                     B.  Switching Stations.                               B.  Switching Stations.                                                     

          The  proffered evidence is of two types.  We treat each

type separately.

                                                  

     3The applicable agency rule provides in pertinent part:

               A  party to a proceeding may, because of
          extraordinary  circumstances, move  after the
          close  of the  hearing for  reopening  of the
          record, or move after the decision  or report
          for  reconsideration,  for  rehearing, or  to
          reopen  the  record  .  . .  .    Only  newly
          discovered  evidence     evidence  which  has
          become  available only since the close of the
          hearing     or  evidence which  the  regional
          director  or the  Board believes  should have
          been taken  at the  hearing will be  taken at
          any further hearing.

29 C.F.R.   102.65(e)(1).

                                16

          1.   The evidence concerning the  elimination of Corps'                    1.

position as technical supervisor    the May 15 letter    requires

scant comment.  This  letter had been submitted as  an attachment

to the  request for  review filed  in  the wake  of the  regional

director's adverse  decision  in the  representation  proceeding.

Because  a request for review "may  not raise any issue or allege

any  facts  not timely  presented to  the regional  director," 29

C.F.R.    102.67(d),  the submission  of  the letter  imposed  no

obligation on  the Board to  consider the implications  of Corps'

termination,  especially in the absence of a motion to reopen the

record.  See generally East Mich. Care, 246 NLRB at 459 (dictum).                                                

          Beyond  that pitfall,  a  second obstacle  looms.   The

Board, in its own  phrase, "fully considered" the May  15 letter.

Telemundo, slip op. at  1 n.1.  We  think it would be curious  to                   

remand  a  case  for consideration  of  evidence  that  an agency

already has fully considered, and we will not do so here.4

          2.  The  more nettlesome question relates to  the claim                    2.

that the TDs had been vested with some managerial duties formerly

handled by  the technical supervisor and had  been assigned added

responsibility for evaluating other employees.  The Board's first

notice  of these alleged innovations came on July 16, 1996 (after                                                                           

the  bargaining  unit  had  been  certified),  when  the  Company

                                                  

     4Moreover,  we  readily appreciate  the  Board's  refusal to
attach decretory significance to the  epistle.  The letter states
only  that the Company had  decided to eliminate  the position of
technical  supervisor.   It  furnishes  no  indication that  this
position elimination  might  alter or  affect  the scope  of  the
technical directors' duties.

                                17

submitted,  as part  of its  reply to  the unfair  labor practice

charge, an affidavit executed  on May 9 by Elizabeth  Rivera, the

department director.  The Rivera affidavit claimed, for the first

time, that "some administrative duties that were performed by the

Technical  Supervisor,  such  as  the preparation  of  the  daily

schedules and  the revision and  approval of the  weekly payroll,

are now performed  by the  Technical Directors."   The  affidavit

also  disclosed  that in  March 1996  the  Company had  created a

committee  to evaluate  the technicians'  work and  made the  TDs

members of it (thus enhancing their supervisory roles).

          Assuming   arguendo   the   truth   of   the  Company's                                       

description of these augmented duties, the timing gives us pause.

While  Rivera's  affidavit is  strangely  silent as  to  when the

changes  transpired   its text  states only that  the TDs assumed

the  additional duties; it does  not broadcast the  time frame in

which the Company  made the  reallocation    it is  transparently

clear  that the attempted  expansion of the  TDs' job description

took place  at some  time  after the  record  had closed  in  the

representation proceeding.   Thus, those changes,  no matter when

thereafter they were effectuated, do not constitute evidence that

can vitiate  the Board's determination  of the  propriety of  the

bargaining unit.  It follows that the Board acted well within its

lawful authority in refusing to entertain the proffer.

          If an  employer could insist that evidence of this kind

be considered by  a reviewing  tribunal (be it  court or  agency)

after  the  administrative  record  had  been  closed,  then  the

                                18

employer routinely  could defease  a bargaining unit  despite the

fact that the Board had determined it to be appropriate.  Indeed,

doing  so would  require  no greater  effort  than modifying  the

affected employees' duties.   Such a regime would be antithetical

not  only  to  the  Board's regulations  but  also  to precedent,

policy, and the objectives of the Act.

          The regulatory scheme is explicit; the Board determines

the  appropriateness   of  a  bargaining  unit   based  upon  the

conditions  of  employment  as they  exist  at  the  time of  the

hearing,  and,   at  least   in  the  absence   of  extraordinary

circumstances,5 the  record thereafter  may be augmented  only by

newly discovered evidence.   See 29 C.F.R.   102.65(e)(1).   This                                          

regulation limits  the  rubric  "newly  discovered  evidence"  to

"evidence  which has become available only since the close of the

hearing,  or evidence  which the  regional director or  the Board

believes  should have  been taken  at the  hearing."   Id.   This                                                                    

definition effectively demarcates  the representation  proceeding

as  the outermost  point in  time to  which evidence  can relate.

Facts which arise only  after the hearing has been  concluded and                           

the record  closed are  irrelevant, whereas  facts which  are not

discovered  until then  (but which  relate to  the time  frame at                    

                                                  

     5We reject  out  of hand  the  Company's argument  that  the
change  in  duties here  constitutes  extraordinary circumstances
requiring  the  Board to  reexamine  the  appropriateness of  the
bargaining unit.  If an employer, dissatisfied with the upshot of
a  representation  proceeding,  could  manufacture  circumstances
sufficient to  require reconsideration simply by  shifting duties
around,  then  Board certifications  would  be  little more  than
hollow gestures.

                                19

issue  in  the  hearing)  are  potentially  relevant  and  may be

considered in the Board's discretion.

          Precedent fully  supports the general  proposition that

unilateral changes  to  employment parameters  occurring after  a

representation  hearing has  been completed  can have  no bearing

upon the  outcome of that  proceeding.  See K-Mart,  322 NLRB No.                                                            

98, slip op.  at 1 (NLRB Nov. 22,  1996) ("If the change  was the

result of unilateral actions by the Respondent, it would normally

not be a  basis for reconsidering  the certification .  . .  ."),

petition for review pending (D.C. Cir., No. 96-1461); East  Mich.                                                                           

Care,  246  NLRB at  459  (holding  that evidence  of  subsequent              

changes made  in the duties  of unit  employees lacked  relevance

because the evidence  "d[id] not involve  facts which existed  at

the  time  of  the  hearing  in  the underlying  proceeding  and,

therefore, d[id]  not constitute newly discovered  and previously

unavailable evidence").

          This proposition also  comports with  sound policy  and

core purposes  of the  Act.   Affording an employer  (or a  labor

union, for that matter)  unilateral control over critical aspects

of the  collective bargaining process would  dislodge the balance

and weaken the structure  of the collective bargaining framework.

See Auciello Iron Works,  Inc. v. NLRB, 116 S. Ct.  1754, 1758-60                                                

(1996).  What is  more, enforcing this policy furthers  the broad

objective of  restoring the equality of  bargaining power between

employers  and employees  that is  so central  to the  Act, while

simultaneously securing stability in labor relations.  See id. at                                                                        

                                20

1759; see also 29 U.S.C.   151.                        

          Of   course,   the  closing   of   the   record  in   a

representation  proceeding  does not  freeze  the  duties of  the

members of the proposed  bargaining unit for all time  and in all

circumstances.    When  the  motion  to  reopen  is  premised  on

subsequently  conferred  duties,   the  Board  is   warranted  in

presuming  that such duties are irrelevant to its conclusion.  An

employer who  seeks to  overcome that presumption  bears a  heavy

burden of  showing that  a legitimate business  necessity arising

out of circumstances that were in play before the  representation

proceeding concluded forced him to recast job descriptions.  See,                                                                          

e.g.,  Frito  Lay, Inc.,  177 NLRB  820,  821 (1969)  (vacating a                                 

certification after ensuring that changes in duties were effected

pursuant to "legitimate business  purposes, and without intent to

evade the Respondent's obligation under the certification").6

          We  need  not  tarry.   The  Company  has presented  no

evidence that  either the shifting of  the technical supervisor's

duties or the creation of  the evaluation committee resulted from

events  set   in  motion  prior  to,  and   independent  of,  the

                                                  

     6In Frito Lay, the Board dismissed an unfair  labor practice                            
complaint,  finding that subsequent  changes attributable  to the
company's  nationwide  reorganization  eliminated the  "essential
factor"  which made  the  previously certified  unit appropriate.
820 NLRB at 821.  As was repeatedly underscored in the  decision,
the  employer undertook  this reorganization as  a result  of the
recommendations  provided  by a  management consultant  which had
begun  a study  of  the employer's  operations  before the  union                                                                
instituted the representation proceeding.  The timing enabled the
Board to find  that the  "restructuring was clearly  not for  the
purpose of  avoiding compliance  with the Board's  unit finding."
Id.  Telemundo has sketched no comparable story line.             

                                21

representation  proceeding.    Thus, the  evidence  contained  in

Rivera's affidavit  falls well  outside the compass  of relevance

and cannot justify a  remand for the purpose of  relitigating the

issue of supervisory status.

          There is,  moreover, another basis  for sustaining  the

Board's  order in  the  face of  the  Company's proffer.   As  we

previously mentioned, the evidence  is cloudy as to  exactly when

Telemundo first  purposed to  augment the  TDs' responsibilities.

See supra p.  17-18.  It is, however, pellucid  that the TDs were                   

not assigned to positions on the evaluation committee until March

1996  at  the earliest.   By  that time,  any proposed  change in                                

duties that would convert unit employees to statutory supervisory

status  (and thereby eliminate the  bargaining unit) had become a

mandatory subject of collective bargaining.  See East Mich. Care,                                                                          

246 NLRB at 459-60 &amp; n.4; Highland Terrace Convalescent Ctr., 233                                                                      

NLRB  87,  88 (1977);  Kendall  College, 228  NLRB  1083, 1087-89                                                 

(1977),  enforced,  570 F.2d  216 (7th  Cir.  1978); see  also 29                                                                        

U.S.C.    158(d)  (designating as  mandatory bargaining  subjects

wages, hours,  and "other  terms and conditions  of employment").

Because the  change in duties  that Telemundo attempted  here was

done unilaterally and, in the Company's own words,  "should carry

the day" in its quest to incorporate the TDs into management, the

change  transgressed  the  obligation  to  bargain  collectively.

Therefore,     rather     than    constituting     evidence    of

misclassification,   the   new  assignment   constitutes  further

evidence of an unlawful  refusal to bargain.  See,  e.g., NLRB v.                                                                        

                                22

Westinghouse Broad. &amp; Cable, Inc., 849 F.2d 15, 20, 22 (1st  Cir.                                           

1988); East Mich. Care, 246 NLRB at 459-50 &amp; n.4.7                                

V.  THE WRAP          V.  THE WRAP

          We need go  no further.  The Board's determination that

the  TDs   are  employees,  not  supervisors,   is  supported  by

substantial evidence on  the record  as a whole.   Moreover,  the

Board  did  not err  in  holding its  ground  notwithstanding the

unilateral changes that the Company made in the TDs' duties after

the record in the representation proceeding had been closed.

          The  petition for review  is denied, the cross-petition                    The  petition for review  is denied, the cross-petition                                                                           

is granted, and the Board's order is enforced.          is granted, and the Board's order is enforced.                                                        

                                                  

     7To be sure, there is an exception to this longstanding rule
in cases  where compelling  economic considerations are  present.
See Westinghouse,  849  F.2d at  20.    The exception  is  of  no                          
consequence here, however, as  the Company does not rely  upon it
and the record does not disclose any facts that would support its
invocation.

                                23
