Cite as: 532 U. S. 706 (2001)
Opinion of the Court
union that is co-respondent here, supporting petitioner) petitioned the National Labor Relations Board to represent a single unit of all 110 potentially eligible employees at Caney Creek. See National Labor Relations Act (Act) § 9(c), 49 Stat. 453, 29 U. S. C. § 159(c).
At the ensuing representation hearing, respondent objected to the inclusion of Caney Creek's six registered nurses in the bargaining unit, arguing that they were "super-visors" under § 2(11) of the Act, 29 U. S. C. § 152(11), and therefore excluded from the class of "employees" subject to the Act's protection and includable in the bargaining unit. See § 2(3), 29 U. S. C. § 152(3). The Board's Regional Director, to whom the Board has delegated its initial authority to determine an appropriate bargaining unit, see § 3(b), 29 U. S. C. § 153(b); 29 CFR § 101.21 (2000), placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and therefore included the nurses in the bargaining unit. The Regional Director accordingly directed an election to determine whether the union would represent the unit. See § 9(c)(1), 29 U. S. C. § 159(c)(1). The Board denied respondent's request for review of the Regional Director's decision and direction of election, and the union won the election and was certified as the representative of the Caney Creek employees.
Because direct judicial review of representation determinations is unavailable, AFL v. NLRB, 308 U. S. 401, 409-411 (1940), respondent sought indirect review by refusing to bargain with the union, thereby inducing the General Counsel of the Board to file an unfair labor practice complaint under §§ 8(a)(1) and 8(a)(5) of the Act, 29 U. S. C. §§ 158(a)(1), (5). The Board granted summary judgment to the General Counsel pursuant to regulations providing that, absent newly developed evidence, the propriety of a bargaining unit may not be relitigated in an unfair labor practice hearing predicated on a challenge to the representation determination. 29 CFR § 102.67(f) (2000); see Magnesium Casting Co. v.
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