Manhattan Center Studios, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 2011

357 N.L.R.B. 1677 (N.L.R.B. 2011)

MANHATTAN CENTER STUDIOS, INC.
357 NLRB No. 139
1677
Manhattan Center Studios, Inc. and Theatrical Stage
Employees Local No. One, I.A.T.S.E., AFL–
CIO, CLC. Case 02–CA–035394
December 14, 2011
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
This case is before us on remand from the U.S. Court
of Appeals for the District of Columbia Circuit.1 The
court found a lack of clarity in the Board’s original deci-
sion2 and certain other Board decisions regarding the
standard for determining when the record can be reo-
pened in a representation case to receive newly discov-
ered evidence.3 The court remanded the case to the
Board to articulate and explain the standard to be ap-
plied. In accordance with the court’s order, we have re-
viewed and explain the applicable law concerning this
issue. Based on this review and for the reasons discussed
below, we affirm the Board’s prior decision.
I.
A. Facts
The Respondent (also referred to here as MCS) rents
its facility for theatrical and musical productions. On
February 19, 2003,4 the Respondent’s stagehands and
production staff, by a vote of 5 for and 1 against, with 1
challenged ballot, selected Theatrical and Stage Employ-
ees Local No. One (the Union or Local One) as their col-
lective-bargaining representative. The Respondent did
not file objections within the prescribed 7-day period,
and the Board certified the Union on February 27. On
March 7, the Union requested that the Respondent pro-
vide dates to begin bargaining, as well as information
concerning terms and conditions of employment for use
in drafting proposals. On March 20, the Respondent
refused to bargain or furnish the requested information.
The Respondent’s letter stated in part:

It has recently come to our attention that [a] supervisor
was improperly involved in organizational activities on
behalf of Local One. As a result, it appears that Local
One is not validly and lawfully certified as the bargain-
ing representative of an uncoerced majority of MCS’s
stagehands and production employees.

The Union filed charges and, on May 30, the Board is-
sued a complaint alleging that the Respondent’s conduct

1 452 F.3d 813 (D.C. Cir. 2006).
2 342 NLRB 1264 (2004).
3 452 F.3d 813 (D.C. Cir. 2006).
4 All dates are 2003, unless otherwise indicated.
violated Section 8(a)(5) and (1). In its answer to the
complaint, filed on June 26, the Respondent admitted its
refusal to bargain and to provide the information but as-
serted for the first time, as an affirmative defense, that
the “election petition was tainted by unfair labor practic-
es, including improper supervisory involvement in the
organizing campaign.” No other details or allegations
were provided regarding this defense.
On September 9, the General Counsel moved for
summary judgment finding the alleged violation. In its
September 24 opposition to the motion, the Respondent
provided a declaration by its chief executive officer, Rus-
sell Arnold, and an affidavit from a nonunit employee,
Michael Spony. According to the Spony affidavit, in
November 2002, Technical Coordinator Gustavo Garces,
who the Respondent asserts was the “primary point of
contact and immediate supervisor” of the unit employees,
confirmed rumors that he was trying to bring the Union
into MCS. Garces added, “I don’t care who knows—I’m
trying to bring the Union in. Everybody’s getting
screwed.” The Spony affidavit further stated that Garces
said that he had brought “the union card” into the facility
and was soliciting employees to sign up for the Union.
When Spony warned that Garces could be fired for his
activity, Garces replied, “I don’t care . . . Once I get my
union card, and with my knowledge of sound, I can go
anywhere I want.” According to the Arnold declaration,
Spony informed Arnold sometime in March that Garces
had boasted that he had “spearheaded” the Union’s cam-
paign. Arnold’s declaration also reiterated the statements
attributed to Garces by Spony. The Respondent con-
tended that, because it did not learn of Garces’s involve-
ment until after the period for filing objections, it was
entitled to litigate the issue raised by Garces’s alleged
conduct in the unfair labor practice case.
B. The Board’s Decision
In its September 28, 2004 decision in this proceeding,
the Board granted the General Counsel’s motion for
summary judgment and found that the Respondent had
violated Section 8(a)(5) and (1) by refusing to bargain
with the Union as the exclusive collective-bargaining
representative of its unit employees and by refusing to
furnish requested information to the Union. The Board
rejected the Respondent’s defenses, which, among other
things, asserted that newly discovered evidence revealed
improper prounion conduct by an alleged supervisor dur-
ing the organizing campaign. The Board found that the
issues raised by the Respondent were or could have been
litigated in the representation proceeding, and that the
Respondent had failed to establish the due diligence re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1678
quired to reopen the record in that proceeding for the
introduction of newly discovered evidence.5 The Board
determined that, because the Respondent had taken no
steps to uncover possible election improprieties during
the period for filing timely objections, it failed to demon-
strate that the evidence could not have been uncovered
with due diligence.6 The Board accordingly concluded
that the Respondent’s objections to the representation
election and certification were not litigable in the unfair
labor practice proceeding.
C. The Court’s Decision
The Respondent filed a petition for review of the
Board’s Order with the United States Court of Appeals
for the District of Columbia Circuit, and the Board cross-
petitioned for enforcement. On June 23, 2006, the court
held that the Board in this case had misapplied the due
diligence standard for acceptance of untimely election
objections based on newly discovered evidence.7 More-
over, the court concluded that Board precedent includes
at least two formulations of the due diligence standard.
The first, which the court called the “conducted investi-
gation” standard, requires the moving party to show that
it acted with reasonable diligence to discover and intro-
duce the evidence. The second formulation, which the
court referred to as the “hypothetical investigation”
standard, requires a movant to demonstrate that it could
not have uncovered the evidence within the window for
filing objections, even with the exercise of due diligence.
The court stated that the Board, historically, has not
clearly identified which formulation it has applied, and
that in this case the Board confused the two iterations,
treating them as if they were the same. The court re-
manded the case to the Board, identifying four issues that
should be addressed: (1) the relationship between the
“conducted investigation” and “hypothetical investiga-
tion” formulations of the due diligence standard; (2)
which iteration the Board applies in this case and why;
(3) if the Board applies the “conducted investigation”
formulation, whether a party, in the absence of notice,
must conduct a minimum investigation or make specific
inquiries and how it should do so without coercing em-
ployees; and (4) if the Board is applying the “hypothet-
ical investigation” version, how a party without notice
shows that the evidence could not have been discovered
with due diligence.

5 The Board cited, inter alia, APL Logistics, 341 NLRB 994 (2004)
(erroneously cited as 341 NLRB 955).
6 Sec. 102.65(e)(1) and (2) of the Board’s Rules and Regulations.
7 452 F.3d 813 (D.C. Cir. 2006).
D. Post-Remand Proceedings
By letter dated October 19, 2006, the Board notified
the parties that it had accepted the remand. On August
29, 2008, the Board issued a notice to show cause why
the General Counsel’s motion for summary judgment
should not be granted because the Respondent failed to
show that it conducted an investigation of potential elec-
tion irregularities before the deadline for filing objec-
tions; failed to show that the “newly discovered evi-
dence” could not have been timely discovered through
due diligence; failed to demonstrate that, if adduced and
credited, the “newly discovered evidence” would have
required a different result under then-current law; and
failed to file a motion to reopen the record in accordance
with Section 102.65(e)(2) of the Board’s Rules and Reg-
ulations or otherwise exercise due diligence in presenting
the evidence. The Respondent filed a response to the
notice.
Having considered the issues raised by the court, as
discussed below, we find that the Respondent violated
Section 8(a)(5) and (1) by refusing to bargain with the
Union and furnish it with requested information.
II.
It has long been established that a party may not reliti-
gate in an unfair labor practice proceeding any issue that
was or could have been raised in the underlying represen-
tation proceeding.8 The defense asserted by the Re-
spondent based on alleged supervisory “taint” is a repre-
sentation-case issue that would properly have been raised
as an objection in the representation proceeding follow-
ing the election.9 If the objection could not have been
timely asserted because the objecting party was unaware
of the factual basis for the objection, the proper course
would have been to file a motion to reopen the record in
the representation case upon learning of the objectionable
conduct. Accordingly, we treat the Respondent’s de-
fense as a motion to reopen the record in Case 02–RC–
022677.
Section 102.69(a) of the Board’s Rules and Regula-
tions (R&R) provides that objections must be filed within
7 days after the tally of ballots, and evidence to support
the objections must be provided within 7 days thereafter,
unless the Regional Director permits additional time.
When, as in this case, no party to a representation pro-
ceeding files timely election objections or challenges a
determinative number of ballots, the Regional Director is
to “issue a certification of the results of the election, in-

8 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941);
Sec. 102.67(f) of the Board’s Rules and Regulations.
9 E.g., Fidelity Healthcare & Rehab Center, 349 NLRB 1372
(2007); SNE Enterprises, 348 NLRB 1041 (2006).
MANHATTAN CENTER STUDIOS 1679
cluding certifications of representative where appropri-
ate, . . . and the proceeding will thereupon be closed.”
R&R § 102.69(b).
Section 102.65(e)(1) permits a party to move to reopen
the record to introduce additional evidence, including
newly discovered evidence, “because of extraordinary
circumstances.”10 The rule specifies the requirements for
such a motion:

A motion for rehearing or to reopen the record shall
specify briefly . . . the additional evidence sought to be
adduced, why it was not presented previously, and
what result it would require if adduced and credited.
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.

R&R § 102.65(e)(1). The rule further requires that a mo-
vant act without delay to introduce newly discovered evi-
dence, stating in relevant part:

A motion to reopen the record shall be filed promptly
on discovery of the evidence sought to be adduced.

R&R § 102.65(e)(2).

A party seeking to introduce new evidence after the
record of a representation proceeding has been closed
must therefore establish (1) that the evidence existed but
was unavailable to the party before the close of the pro-
ceeding; (2) that the evidence would have changed the
result of the proceeding; and (3) that it moved promptly
upon discovery of the evidence.11 The Respondent failed
to establish any of these three requirements.
A.
In order to establish that the evidence for which reo-
pening of the record is sought was unavailable before the
close of the proceeding, the moving party must prove

10 Sec. 102.65(e) is among the rules which address preelection hear-
ings but are incorporated by reference for application to postelection
proceedings. R&R § 102.69(e).
11 The Rules provide virtually identical requirements for motions to
reopen the record in an unfair labor practice proceeding. Sec.
102.48(d) states in relevant part:
(1) . . . A motion to reopen the record shall state briefly the
additional evidence sought to be adduced, why it was not present-
ed previously, and that, if adduced and credited, it would require a
different result. Only newly discovered evidence, evidence which
has become available only since the close of the hearing, or evi-
dence which the Board believes should have been taken at the
hearing will be taken at any further hearing.
(2) . . . [A] motion to adduce additional evidence shall be
filed promptly on discovery of such evidence.
that it was “excusably ignorant” of the evidence at the
time it was required to act.12 As the court observed in
NLRB v. Jacob E. Decker & Sons, the Board’s disposi-
tion of this kind of motion is “controlled by the same
considerations that control motions for a new trial or to
reopen a case under [Rule] 60(b)(2) of the Federal Rules
of Civil Procedure,”13 which requires a showing that the
proffered evidence, “with reasonable diligence, could not
have been discovered in time” to take the required action
in a timely manner.14 Thus, in order to determine wheth-
er the movant was excusably ignorant of the proffered
evidence, the Board asks whether the movant has estab-
lished that the evidence “could not be discovered by rea-
sonable diligence.”15 For example, in Prudential Insur-
ance Co.,16 the respondent in a technical refusal-to-
bargain case sought to attack the certification in the un-
derlying representation proceeding through a proffer of
evidence that “employees were offered a financial in-
ducement in the form of a dues waiver for their support
of the Union.”17 The Board ruled that the respondent
was precluded from litigating the issue: “[T]here is no
showing that, with due diligence, the Respondent could
not have uncovered the evidence in time to file timely
objections.”18
Of course, a movant may prove that the proffered evi-
dence could not have been discovered in a timely manner
even with reasonable diligence by establishing that it did
in fact act with reasonable diligence to uncover evidence
of objectionable conduct and that despite those efforts it
failed to discover the proffered evidence. A movant’s
failure to exercise due diligence, however, will foreclose
that avenue of establishing excusable ignorance of the
proffered evidence.19

12 Superior Protection, Inc., 341 NLRB 614, 614 (2004) (internal
quotation marks omitted); Fitel/Lucent Technologies, Inc., 326 NLRB
46, 46 fn. 1 (1998) (internal quotation marks omitted); Seder Foods
Corp., 286 NLRB 215, 216 (1987); Owen Lee Floor Service, 260
NLRB 651, 651 fn. 2 (1980); Mary Thompson Hospital, 241 NLRB
766, 766 (1979); see also NLRB v. Jacob E. Decker & Sons, 569 F.2d
357, 363 (5th Cir. 1978) (internal quotation marks omitted).
13 NLRB v. Jacob E. Decker & Sons, supra at 363.
14 Fed. R. Civ. P. 60(b)(2).
15 APL Logistics, Inc., 341 NLRB at 994.
16 215 NLRB 66 (1974).
17 Id. at 66.
18 Id. at 67; see also Jason/Empire, Inc., 212 NLRB 137, 138 (1974)
(respondent failed “to show that with due diligence it could not have
uncovered the evidence in time to file timely objections”); Muscogee
Lumber Co., 188 NLRB 869 (1971) (“it cannot be said that the infor-
mation now being advanced constitutes newly discovered or previously
unavailable evidence which, with the exercise of reasonable diligence,
could not have been presented during the representation proceeding”).
19 E.g., Fitel/Lucent Technologies, 326 NLRB at 46; Superior Pro-
tection, 341 NLRB at 614.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1680
In the instant case, the Respondent has failed to estab-
lish excusable ignorance by demonstrating that it exer-
cised reasonable diligence. It has not offered evidence
that it made efforts of any kind to uncover evidence of
objectionable conduct prior to the deadline for filing ob-
jections. Doing nothing at all cannot be deemed reason-
able diligence. Nor has the Respondent established that
the evidence would not have been discovered even if it
had exercised reasonable diligence. The evidence it
sought belatedly to introduce was of a conversation that
took place in November 2002, well over 2 months prior
to the February 19, 2003 election. The purported admis-
sions by alleged Supervisor Garces were made to a non-
unit employee, Spony, who was evidently on speaking
terms with the Respondent’s chief executive officer.
Moreover, there is nothing in Spony’s account of the
conversation to suggest that it was confidential in nature:
to the contrary, Garces appears to have been boasting
openly to Spony about his involvement in the organizing
effort and his support for the Union, and he explicitly
declared that he did not care whether he got fired because
of his support for the Union. Indeed, according to
Spony, rumors of Garces’s prounion activity had been
circulating even before the November 2002 conversation.
Nothing in Spony’s account suggests that the Respond-
ent, with reasonable diligence and without questioning
any employees in the voting unit, could not have discov-
ered Garces’s activity in time to file a timely objection.
As the asserted primary supervisor in the very small unit
at issue (with only seven ballots cast), he would certainly
have been among the first potential witnesses inter-
viewed by any reasonably diligent employer. The ques-
tion of whether Garces or any other supervisor was in-
volved in the solicitation of cards would have been asked
by any reasonably diligent party since supervisory taint is
a well-known and common basis for objection. See, e.g.,
Chinese Daily News, 344 NLRB 1071 (2005); Harbor-
side Healthcare, Inc., 343 NLRB 906 (2004). Garces
remained in Respondent’s employ and available to the
Respondent after the election and, in fact, the Respond-
ent interacted with him immediately after the election
when it terminated him in February 2003, days after the
February 19 election. The Respondent provided no other
evidence bearing on whether it might have learned of
Garces’s conduct before the late February deadline for
filing objections. We find that the Respondent has failed
to establish that, with reasonable diligence, it could not
have discovered evidence of Garces’s conduct in time to
file a timely objection.
B.
We now address the court of appeals’ questions con-
cerning the standard we have applied.20 First, as to the
appearance of multiple versions of the standard, we em-
phasize that the Board has never applied more than one
standard for determining whether a party was excusably
ignorant of evidence that it seeks to add to the record of a
closed representation proceeding. There is but a single
standard for establishing excusable ignorance: the pro-
ponent of the evidence must show that, with reasonable
diligence, the evidence could not have been discovered in
time to take appropriate and timely action in the repre-
sentation proceeding.21
The inquiry called for by this standard is highly fact-
intensive, and admits of as many variations as the cir-
cumstances presented by the facts of the various cases.
As discussed above, a party may make the required
showing by proving that it did in fact exercise reasonable
diligence in seeking evidence of objectionable conduct
and that despite those efforts it failed to find the prof-
fered evidence. In such a case, the Board must determine
whether the party’s investigative conduct exhibited rea-
sonable diligence. This inquiry, however, does not
amount to a different standard or iteration of a standard;
it is simply the analysis demanded by the facts advanced
by the party in seeking to meet the reasonable diligence
standard. This, then, is the answer to the court’s question

20 The court directed the Board to address the following questions on
remand:
On remand, the Board should explain (1) the relationship be-
tween the “conducted investigation” and “hypothetical investiga-
tion” iterations of the due diligence standard, (2) which iteration it
is applying here and why it chose that iteration under the facts of
this case, (3) if the Board is applying the “conducted investiga-
tion” iteration of the standard, whether there is a minimum level
of investigation in the absence of notice of a violation or, alterna-
tively, whether that standard requires specific inquiries in the ab-
sence of some notice of misconduct, and, if so, what these inquir-
ies must be and how they are to be conducted without engaging in
coercive and unlawful interrogation or interfering with the elec-
tion in violation of § 8(a)(1) or § 8(b)(1) and (4) if the Board is
applying the “hypothetical investigation” iteration, how a party in
MCS’s position-that is, an employer without notice-shows that the
information sought to be admitted as new could not have been
discovered in the exercise of due diligence.
Manhattan Center Studios, Inc. v. NLRB, 452 F.3d at 821.
21 While there may not ultimately be a substantive difference, we
prefer “reasonable diligence” to “due diligence” as the articulation of
the standard. “Due” begs the question of the degree of diligence re-
quired. “Reasonable” describes the requirement that we apply: the
party’s investigation must be reasonably thorough under the circum-
stances of the case and in light of both the relatively short time frame
for filing objections in a representation proceeding and the Act’s poli-
cies favoring expeditious and and definitive resolution of questions
concerning representation. See, e.g., NLRB v. A.J. Tower Co., 329 U.S.
324, 330–331 (1946); Northeastern University, 261 NLRB 1001, 1002
(1982).
MANHATTAN CENTER STUDIOS 1681
concerning the relationship between the so-called “hypo-
thetical investigation” and “conducted investigation”
“iterations” of the standard: the former reflects the
standard applied by the Board, and the latter reflects the
application of that standard when a party introduces evi-
dence of an actual, unsuccessful search for evidence of
objectionable conduct. To the extent that an appearance
of multiple standards or iterations has been created by
some of the Board’s prior decisions, it has been the result
of the elision of analytical steps leading to the absence of
a clear statement of the well-known general standard.
We take this opportunity to clarify that there is only one
standard applied by the Board, and it is as articulated
above.
The answer to the court’s second question follows
from the above explanation and our ruling set forth
above in part A: We have in this case applied the single,
reasonable diligence standard, which the court referred to
as addressing a “hypothetical investigation.” As to the
third question, we hold that a party need not question
employees in a way that might arguably constitute inter-
ference with rights protected by the Act or objectionable
conduct, in order to be found to have exercised reasona-
ble diligence.
Finally, the fourth question posed by the court is how
can a party that has no notice of the facts supporting a
potential objection show that evidence proving those
facts could not have been discovered in the exercise of
reasonable diligence? Certainly, if the party has notice
of a fact but fails to take reasonable action to locate the
evidence to prove it, the determination concerning rea-
sonable diligence is greatly simplified. However, there
are many facts that a party exercising reasonable dili-
gence would discover even in the absence of notice of
those facts. This is because reasonable diligence certain-
ly entails making inquiry of available potential witnesses,
such as asserted supervisor Garces, concerning their
knowledge of common forms of objectionable conduct,
such as supervisory taint. Whether evidence could not
have been discovered even through the exercise of rea-
sonable diligence depends on the circumstances of the
particular case, such as the nature of the evidence, the
number of persons with knowledge of the evidence and
their relationship to the party, and how well known the
potential objection is, among many others. Whether the
party had notice of the significant fact is just one of
many factors for the Board to consider. Accordingly, we
decline to create a blanket exception to the requirement
of reasonable diligence for issues of which the proponent
of additional evidence had no notice.
As noted above, the judgment to be made under the
Board’s standard is essentially the same as the judgment
exercised by a trial court under Rule 60(b)(2) of the Fed-
eral Rules of Civil Procedure. It would be no more ap-
propriate to impose a no-notice exception to the reasona-
ble diligence requirement of Rule 60(b)(2). In fact, the
considerations favoring a firm rule of repose are even
stronger in representation cases under the Act than in
civil litigation. As discussed below, there is a strong
statutory interest in the prompt and definitive resolution
of questions concerning representation. Those resolu-
tions, moreover, unlike court judgments, do not bind the
parties for all time. In the absence of employer unfair
labor practices, a Board certification of a representative
will bar a new election for only 1 year if no contract is
agreed to, and for no more than an additional 3 years if
an agreement is reached. The provisional and perishable
nature of the consequences of the Board’s decisions in
representation proceedings heightens the importance of
finality.
C.
In addition to showing that the evidence was unavaila-
ble at the time it was required to act, a party seeking to
reopen the record of a representation proceeding under
Section 102.65(e) to present newly discovered evidence
must establish that the evidence would have compelled a
different result.22 By definition, objectionable election
conduct is conduct “affecting the results of the election.”
R&R § 102.69(a). The Board finds conduct objectiona-
ble if it “has the tendency to interfere with the employ-
ees’ freedom of choice” and it “could well have affected
the outcome of the election.”23 The objecting party must
submit evidence sufficient to establish a prima facie case
in support of its objection.24
Here, the evidence that the Respondent seeks to intro-
duce as newly discovered does not establish that Garces’
actions constituted objectionable conduct. According to
Spony’s affidavit, Garces told him that “he had brought
the union card into the workplace and was taking the
card around for employees to sign up for the union.”
This evidence does not establish the number of employ-
ees solicited or whether any of Garces’ solicitations were
successful.25 In fact, the vague language used, “taking
the card around for employees to sign up for the union,”
could encompass giving cards to one employee to circu-
late among the others. The Respondent has therefore
failed to show that the proffered evidence would have
changed the result of the representation proceeding.

22 See, e.g., APL Logistics, 341 NLRB at 994; Superior Protection,
341 NLRB at 614.
23 Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995).
24 Park Chevrolet-Geo, 308 NLRB 1010 (1992).
25 As noted above, the election tally showed 5 votes for the Union, 1
vote against the Union, and 1 challenged ballot.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1682
Compare Chinese Daily News, supra at 1072–1073 (elec-
tions results overturned where seven of eight employees
solicited signed cards and election decided by four
votes).
D.
Finally, in order to succeed in reopening the represen-
tation case record the Respondent must also establish that
it moved “promptly on discovery of the evidence sought
to be adduced.”26 The imperative of prompt action is
particularly strong in representation cases in light of “the
Act’s policy of expeditiously resolving questions con-
cerning representation.”27 The Board’s Rules require
objections to be filed within 7 days after the tally of bal-
lots,28 and “strict adherence” to the Board’s Rules in this
area is “essential.”29
Here, the Respondent learned of the evidence no later
than March 20, 2003, 3 weeks after the deadline for fil-
ing objections. Yet it did not disclose to the Board the
existence of a possible basis for objections until over 14
weeks later, in its answer to the complaint in this matter,
and it did not file anything approximating a motion to
reopen the record until almost 27 weeks later, in its op-
position to the summary judgment motion. The Re-
spondent has provided no explanation for its 27-week
delay in seeking to reopen the record. It has utterly
failed to establish that it moved promptly on discovery of
the evidence. For this reason, independently of the other
reasons discussed above, the Respondent’s evidence may

26 R&R § 102.65(e)(2).
27 Northeastern University, supra, 261 NLRB at 1002.
28 R&R § 102.69(a).
29 Heritage Nursing Center, Inc., 207 NLRB 826, 827 (1973).
not be received, and the issue it seeks to raise may not be
litigated.
ORDER
The National Labor Relations Board affirms its origi-
nal Decision and Order, 342 NLRB 1264 (2004).

MEMBER HAYES, concurring.
In agreement with my colleagues, I grant the General
Counsel’s motion for summary judgment. I do so simply
because, by any reasonable interpretation of the Board’s
Rules, the Respondent did not promptly come forward
with its newly discovered evidence relative to a claim of
previously unalleged objectionable conduct in the under-
lying representation proceeding. The Respondent
learned of possible prounion supervisory involvement in
the election campaign less than a month after the dead-
line for filing objections, but did not even suggest the
existence of newly discovered evidence to the Board
until 3 months later, and did not actually submit this evi-
dence for several more months in opposition to the Gen-
eral Counsel’s motion. I therefore find no need to pass
on whether the Respondent proved that the evidence
which it sought to adduce in a reopened representation
proceeding was unavailable prior to the close of that pro-
ceeding, or whether the evidence would have compelled
a different result.1

1 I recognize that the court of appeals stated that the Board “should”
explain its original rationale and remanded for “further proceedings
consistent with this opinion.” Manhattan Center Studios, Inc. v. NLRB,
452 F.3d 813, 821 (D.C. Cir. 2006). In my view, this mandate does not
preclude the Board from reaching the same result on a different ra-
tionale. City of Charlottesville, Va. v. FERC, 774 F.2d 1205, 1212
(D.C. Cir. 1985) (“As a general proposition, an administrative tribunal
is free on remand to reach the same result on different grounds.”), cert
denied 475 U.S. 1108 (1986).