Sitka Sound Seafoods, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 1999 Decided March 28, 2000

No. 98-1624

Sitka Sound Seafoods, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

William T. Grimm argued the cause and filed the briefs

for petitioner.

Sharon I. Block, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the

brief were Linda R. Sher, Associate General Counsel, John

D. Burgoyne, Acting Deputy Associate General Counsel, and

Fred L. Cornnell, Jr., Supervisory Attorney. Aileen A. Arm-

strong, Deputy Associate General Counsel, entered an ap-

pearance.

Before: Ginsburg and Garland, Circuit Judges, and

Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: The National Labor Relations

Board concluded that Sitka Sound Seafoods, Inc. violated

ss 8(a)(1) & (5) of the National Labor Relations Act, 29

U.S.C. ss 158(a)(1) & (5), by refusing to bargain with or to

provide information to Local 200 of the International Long-

shoremen and Warehousemen's Union, AFL-CIO, and or-

dered the Company to comply with the Act. The Company

petitioned for review of the Board's order on the ground that

it is not obligated to bargain with the Union because the

election in which the employees chose the Union as their

exclusive representative is invalid. The Board has cross-

applied for enforcement of its order. Because Sitka has not

shown that the Board abused its broad discretion in conduct-

ing the representation election, we deny the Company's peti-

tion and grant the Board's application.

I. Background

In August 1997 the Union sought to represent the employ-

ees at the Company's seafood processing plant in Sitka,

Alaska. That facility processes seafood throughout the year,

but its busiest time is during the salmon season, that is, July

and August. Consequently, the Sitka facility employs vary-

ing numbers of production workers during the course of a

year. In March 1997, for example, there were only 51

employees, but in August the company employed 186.

The Company places on its "seniority list" those production

employees who work at least 1,200 hours during one year.

Seasonal production workers, those hired to fill temporary

processing demands during the busy periods, do not qualify

for the seniority list. Employees on the seniority list work

significantly more hours than other production employees

(albeit not necessarily full-time year round), receive preferen-

tial rehiring rights, and are eligible for health benefits. Al-

though seasonal employees do not have the same preferential

rehiring rights as those on the seniority list, any seasonal

employee who is laid off (as opposed to fired) is eligible for

rehire and the Company tells all such employees they are

welcome back during the next busy period. One of the

Company's former supervisors testified, however, that on

average only about one third of the seasonal employees

actually return the following year.

On August 17, 1997, about one week before the Union

petitioned for a representation election, the Sitka facility

employed 167 production and maintenance workers, of whom

114 were seasonal employees. Of the 114 seasonal employ-

ees, 23 had worked in both 1995 and 1996, 14 had worked in

either 1995 or 1996, and 77 had not worked for Sitka before.

The Union, seeking to exclude all the seasonal employees

from the bargaining unit, petitioned for an election in which

only the "full-time and regular part-time production and

maintenance employees" would vote. The Company, on the

other hand, asked the Board to include all seasonal employees

in the bargaining unit and to postpone the election until the

next seasonal peak in August 1998.

After an extensive hearing in which both the Company and

the Union presented evidence, the Regional Director of the

Board directed an election to include seasonal employees

because he found that seasonal employees performed work

similar to that done by employees on the seniority list. In

order to limit the franchise to employees with a "substantial

and continuing interest in the unit," however, he provided

that only those seasonal employees who had worked "at least

120 hours in 1997 and at least 120 hours in either 1996 or

1995" could vote. Seasonal employees who met that test, he

reasoned, were sufficiently likely to return to the facility in

the future. The Regional Director rejected the Company's

request to delay the election until the following August

because he found that doing so would unnecessarily deprive

permanent employees and those on the seniority list of repre-

sentation for almost a year. The Board denied the Compa-

ny's request for review.

Subsequently the Regional Director found that a combina-

tion of manual and mail balloting was appropriate. The

manual balloting occurred on November 4, 1997 while the

mail balloting took place over the course of a month, begin-

ning on that date. Of the 92 eligible voters, 66 cast ballots:

36 were in favor of the Union and 28 were against the Union;

two challenged ballots were not considered in the final tally.

The Company objected to the election on the grounds that

it should not have been conducted until the next seasonal

peak, the eligibility formula was unreasonable, and mail bal-

loting should not have been allowed. The Regional Director

overruled the objections and certified the Union as the repre-

sentative of the employees, and the Board again refused the

Company's request for review.

In June 1998 the Union filed a charge with the Board

alleging that the Company had refused to recognize, bargain

with, or provide information to it, in violation of ss 8(a)(1) &

(5) of the Act. The Board determined that "[a]ll representa-

tion issues ... were or could have been litigated in the prior

representation proceeding" and therefore were not subject to

further litigation, and that there were no disputes of material

fact; the Board therefore granted the General Counsel's

motion for summary judgment and ordered the Company to

cease and desist from violating the Act. The Company

petitioned this court for review of the Board's order and the

Board cross-applied for enforcement.

II. Analysis

The Company maintains that the eligibility formula the

Board applied to seasonal workers was unreasonable and

inconsistent with Board precedent; the Board abused its

discretion by not delaying the election until the Company's

next seasonal employment peak; the Board violated its own

policy by allowing mail balloting; and the Board should not

have disposed summarily of the unfair labor practice charges

because there are material facts in dispute.

The Board has "a wide degree of discretion in establishing

the procedure and safeguards necessary to insure the fair and

free choice of bargaining representatives by employees."

NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). The party

objecting to a representation election therefore bears a

"heavy burden," Kwik Care Ltd. v. NLRB, 82 F.3d 1122, 1126

(D.C. Cir. 1996); indeed, we will not overturn the Board's

decision as long as it is merely "rational and in accord with

past precedent." B B & L, Inc. v. NLRB, 52 F.3d 366, 369

(D.C. Cir. 1995). The order under review in this case meets

that standard.

A. Eligibility formula

Ordinarily the Board uses a simple formula to determine

who is eligible to vote in a representation election: Employ-

ees in the bargaining unit are eligible to vote if they were

employed on the date of the election and "during the payroll

period ending immediately prior to the Decision and Direction

of Election." Saltwater, Inc., 324 NLRB 343, 343 n.1 (1997);

see American Zoetrope Productions, Inc., 207 NLRB 621, 622

(1973). In this case the Board adopted an eligibility formula

that excluded some seasonal workers who would have met the

standard eligibility test. The Company raises four challenges

to the special eligibility formula the Board used in this case:

it conflicts with Board precedent because (1) it disenfranchis-

es workers who would have been eligible under the standard

test, and (2) the Board does not ordinarily apply an eligibility

formula to "seasonal" workers; and it is unreasonable be-

cause (3) it disenfranchises employees with a continuing

interest in the unit, and (4) it conflicts with the Regional

Director's own description of the standard for voter eligibility

as set forth in his Decision and Direction of Election and in

the Notice of Election.

As we have noted previously, the Board uses an eligibility

formula in order to limit the franchise to those employees

who work with "sufficient continuity and regularity ... to

establish [a] community of interest with other unit employ-

ees." B B & L, Inc., 52 F.3d at 370; see also Trump Taj

Mahal Associates, 306 NLRB 294, 295 (1992) enforced, 2 F.3d

35 (3d Cir. 1993). Because each employment situation is

different, the Board has an "obligation to tailor [its] general

eligibility formulas to the particular facts of the case,"

B B & L, Inc., 52 F.3d at 370 (quoting American Zoetrope,

207 NLRB at 623); "no single eligibility formula must be

used in all cases." Saratoga County Chapter NYSARC, Inc.,

314 NLRB 609, 609 (1994). Determining which employees

share a community of interest sufficient to entitle them to

vote in a representation election entails, therefore, an inquiry

with multiple facets. For example, the Board has stated that

when assessing the "expectation of future employment among

seasonal employees" it considers:

the size of the area labor force, the stability of the

Employer's labor requirements and the extent to which it

is dependent upon seasonal labor, the actual reemploy-

ment season-to-season of the worker complement, and

the Employer's recall or preference policy regarding

seasonal employees.

Maine Apple Growers, Inc., 254 NLRB 501, 502-03 (1981).

In this case the Regional Director adopted a special eligibility

formula specifically in order to limit the franchise to seasonal

employees with "a substantial and continuing interest in the

unit."

1. The Company's first challenge to the eligibility formula

used in this case is that the Board has never before used a

special formula when the effect would have been to disenfran-

chise workers eligible to vote under the standard test. Al-

though it is true that the Board usually adopts a special

eligibility formula in order to extend the franchise to employ-

ees who would not otherwise be eligible to vote, see, e.g.,

Steiny & Co., 308 NLRB 1323, 1324-27 (1992) (and cases

cited therein), it is not true that the Board has never used

such a formula to narrow the franchise.

In American Zoetrope, for example, the union sought to

represent a bargaining unit composed of "all editorial employ-

ees, including film editors, sound editors, assistant editors,

and negative cutters" employed by a film company. 207

NLRB at 622. Employees in the unit worked only sporadi-

cally; they were "hired for a particular production, sometimes

only for a day's work," and then recalled when and if future

work became available. Id. The union asked the Board to

determine eligibility to vote using the standard test, but the

Board declined. Finding that a history of reemployment was

the only credible evidence that any particular employee had a

reasonable expectation of future employment--and hence a

continuing interest in the bargaining unit--the Board limited

the franchise to employees who were "employed by the

Employer on at least two productions during the year preced-

ing [the Board's decision]" and were not terminated or volun-

tarily released prior to "completion of the last job for which

they were employed." Id. at 623; see also Medion, Inc., 200

NLRB No. 145 (1972) (adopting a similar formula). Obvious-

ly, an employee who met the standard eligibility test of

employment on the day of the election and during the preced-

ing payroll period might not have passed the special test used

in American Zoetrope because it required work on at least

two productions in the preceding year. Therefore, the special

eligibility formula the Board used in this case is not a break

with precedent, and cannot be faulted on the basis of an

argument that proceeds from the contrary premise. See

NLRB v. Western Temporary Services, Inc., 821 F.2d 1258,

1262 (7th Cir. 1987) (upholding eligibility formula allowing

part-time employees to vote only if "worked at least an

average of four hours per week during the six months imme-

diately preceding the election eligibility date"); DIC Enter-

tainment, LP, 328 NLRB No. 86 (1999) (allowing part-time

employees in entertainment industry to vote if worked on two

productions for total of five days in year prior to direction of

election or for total of 15 days in year prior to direction of

election); Steiny & Co., 308 NLRB at 1325 (citing American

Zoetrope with approval as example of valid eligibility formu-

la); Artcraft Displays, Inc., 263 NLRB 804 (1982) (seasonal

part-time employees eligible to vote if worked minimum of 15

hours during quarter spanning seasonal peak or had accumu-

lated 1,000 "seniority hours," were working or available to

work and were on seniority list).

2. The Company next argues that while the Board may

have applied a special eligibility formula in "short term,

sporadic and intermittent employment situations," the Board

has not (except in "rare instances," which the Company

attempts to distinguish), applied such a formula to "seasonal"

workers, by which the Company means "full-time regular

employees who are utilized during clearly defined periods of

peak operations that recur the same time(s) from year-to-

year." Assuming the Company does not, in fact, employ its

seasonal workers on a short term, sporadic, or intermittent

basis, however, its legal argument fails because, as the Re-

gional Director noted, the Board has indeed applied special

eligibility formulae to regularly employed "seasonal" workers

before; therefore its adoption of the formula in this case does

not conflict with Board precedent.

Consider, for example, Daniel Ornamental Iron Co., 195

NLRB 334 (1972). Whenever the employer there could not

meet customers' demands using its regular staff, it hired

part-time workers from a pool of 27 who regularly performed

such work for the employer. See id. Having included the

part-time workers in the bargaining unit, the Board eschewed

the standard eligibility test and limited the vote among the

part-time employees to those who had "worked a minimum of

15 days in either of the two 3-month periods immediately

preceding the date of issuance of the direction of election."

Id. at 334-35. The Board explained:

The Employer's principal customers are in the housing

and construction industries, and because of the seasonali-

ty of those industries business usually experiences a

slack period in the fall of the year, beginning in Septem-

ber or October, during which period [the Employer's]

need for the part-time welders drops sharply. In cases

involving year-round operations with fluctuating need for

extra or on-call employees, the Board has found it equita-

ble to include in the unit ... all extra or part-time

employees [who meet the eligibility formula quoted

above]....

Id. at 334. Like the employer in Daniel Ornamental, Sitka

employs a core group of workers year round and hires extra

production employees for the seasonal peaks. However the

Company may wish to characterize its "seasonal" employees,

it has not distinguished them from those in Daniel Ornamen-

tal. See also Trump Taj Mahal Associates, 306 NLRB at

295 (applying eligibility formula to temporary employees

whom employer "regularly called" and who had "averaged a

substantial number of work hours since the opening" of

employer's facility); Artcraft Displays, Inc., 263 NLRB at

804 (applying eligibility formula to regularly employed sea-

sonal workers). Accordingly, we reject its second challenge

to the eligibility formula.

3. The Company next argues that the special eligibility

formula is unreasonable because it disenfranchises employees

who have a "reasonable expectancy of recall." In fact, the

Regional Director found that of the 114 seasonal employees

listed on the Company's employment roster as of August 17,

1997, only 37 had worked in either of the two previous years.

Of those 37, all but five were eligible to vote under the

formula the Board used in this case. Based upon these facts,

the Regional Director concluded that the eligibility formula

would accurately enough limit the franchise to seasonal em-

ployees who had demonstrated a continuing interest in the

unit. In light of this evidence, we cannot say that the Board

abused its discretion by adopting the eligibility formula in this

case.

4. Finally, the Company argues that the eligibility formu-

la is unreasonable because it conflicts with the Regional

Director's description of the voter eligibility criterion in his

own Decision and in the Notice of Election. As the Company

purports to read them, the Decision and Notice granted the

franchise to all production employees, including both seasonal

employees who were employed on the date of the election and

during the previous payroll period--as provided by the stan-

dard criterion--and seasonal employees who met the special

eligibility formula crafted for this case.

In its opening brief before this court the Company merely

refers to this argument; only in its reply brief does it actually

argue the point. As a result the Board, in its brief, under-

standably does not respond to the argument. In order to

prevent "this sort of sandbagging of appellees and respon-

dents, we have generally held that issues not raised until the

reply brief are waived." Board of Regents of University of

Washington v. EPA, 86 F.3d 1214, 1221 (1996) (citations

omitted). So we hold again.*

B. Timing of the election

The Regional Director ordered that the representation

election be held in November 1997, rejecting the Company's

request that it be delayed until the next seasonal peak in

August 1998. The Company contends that failure to delay

the election was an unexplained break with the Board's past

practice. We reject the Company's challenge because holding

the election prior to the seasonal peak was both reasonable

and fully consistent with the Board's precedent.

As the Regional Director noted, the Board has in the past

"declined to postpone elections in facilities having seasonal

peaks where production operations continue throughout the

year." For example, in Baugh Chemical Co., 150 NLRB 1034

(1965), the employer had 40 year-round employees and, dur-

ing its seasonal peak, hired 40 additional employees. See id.

at 1035. The Regional Director had ordered that the election

be delayed about nine months until the next seasonal peak,

but the Board reversed:

Unlike the seasonal industry cases where production

operations are carried on only during a certain portion of

the year, on a seasonal basis, here the Employer is

__________

* Solely for the benefit of the curious reader, we note that the

Regional Director rejected this argument as follows:

It is obvious that employees who were not on the seniority list,

and who did not meet the [eligibility formula], were not eligible.

To do [sic] otherwise, would be to permit new hires with very

few hours who just happen to be working on the eligibility/elec-

tion dates, to vote, while denying that right to laid-off employ-

ees who worked a similar number of hours, but who happen not

to be working on the eligibility/election dates. That, of course,

would defeat the very purpose of the eligibility formula, i.e., to

distinguish those individuals with substantial continuing work

ties to the Employer from those with only a minimal, casual

interest.

engaged virtually in year-round production operations.

Further, the number of employees in the Employer's

year-round complement is substantial compared to the

number in the complement employed during peak opera-

tions. In circumstances such as these a postponement of

the election until a seasonal peak would in our opinion,

unduly hamper year-round employees in the enjoyment

of their rights under the Act. We believe, therefore, that

it will best effectuate the purposes of the Act to direct an

immediate election herein.

Id. at 1035-36. As in Baugh Chemical Co., the employer's

facility in this case operates throughout the year with a

substantial number of permanent production employees. Al-

though the ratio of seasonal to permanent employees is of

course greater at the seasonal peak, the number of employees

who work throughout the year at the Sitka facility is signifi-

cant. Therefore, the Board's determination that the purposes

of the Act would best be effectuated if the permanent employ-

ees at the Sitka facility were allowed to vote for or against

representation without significant delay was neither an abuse

of discretion nor inconsistent with past practice.

C. Mixed manual-mail balloting

According to s 11336.1 of the Board's Casehandling Manu-

al, in a " 'mixed' manual-mail election" ballots should not be

mailed to "those [employees] on layoff status unless all par-

ties agree." The Company argues that the Board abused its

discretion by mailing ballots, over the Company's objection, to

seasonal employees who were not employed on the date of the

election.

We note first that the Casehandling Manual does not bind

the Board; it is intended merely to provide guidance to the

Board's staff. See Kwik Care Ltd., 82 F.3d at 1126. There-

fore, the relevant question is whether, quite apart from the

Manual, the Board acted unreasonably. The answer is obvi-

ous: Having decided to include in the representation election

seasonal employees who were eligible under the special for-

mula validly adopted in this case, the Board reasonably

determined that mail was the only effective way to reach

employees who were not in the Sitka area when the election

was held, about three months after the peak season. Had the

Board upheld the Company's objection to the mail ballots

then it would have denied 41 otherwise eligible seasonal

employees the chance to vote. The Board's use of the mixed

balloting system was a reasonable attempt to avoid the pre-

dictably substantial disenfranchisement that would otherwise

have occurred. We therefore reject the Company's challenge

on this issue.

D. Summary judgment

Finally, the Company objects to the Board's summary

disposition of the unfair labor practice charges against it.

The Company contends that it raised substantial factual

issues that demanded resolution at a post-election hearing

and that the Board's failure to conduct such a hearing con-

flicts with our decision in Garlock Equipment Co. v. NLRB,

709 F.2d 722 (1983), and with Linn Gear Co. v. NLRB, 608

F.2d 791 (9th Cir. 1979). We reject the challenge because the

Company did not present evidence meriting a hearing and the

grant of summary judgment does not conflict with either

Garlock or Linn Gear.

The Supreme Court established long ago that the Board

need not afford a party objecting to a representation hearing

more than one opportunity to litigate any particular issue.

See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162

(1941). More specifically, we have held:

[I]n the absence of newly discovered evidence or other

special circumstances requiring reexamination of the de-

cision 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 Medical Centers, P.C. v. NLRB, 157 F.3d 909,

912 (1998). The party objecting to the representation elec-

tion bears the burden of producing "specific evidence which

prima facie would warrant setting aside the election, for it is

not up to the Board staff to seek out [such] evidence."

Amalgamated Clothing Workers of America v. NLRB, 424

F.2d 818, 828 (D.C. Cir. 1970). This burden cannot be met by

"[n]ebulous and declaratory assertions"; only "specific evi-

dence of specific events from or about specific people" will do.

Id.; see North of Market Senior Services, Inc. v. NLRB, No.

99-1178, slip op. at 6 (D.C. Cir. March 10, 2000) (evidence

"must point to specific events and specific people").

In this case, the Company participated in an extensive

hearing, at which both it and the Union presented documenta-

ry evidence and testimony, prior to the representation elec-

tion. The Company claims, however, that it raised "substan-

tial issues of fact" after the election. Exactly what those

factual issues are, however, the Company does not make

clear. Nowhere in the brief it submitted to the Board in

opposition to the General Counsel's motion for summary

judgment did the Company discuss any new factual evidence.

In its opening brief before this court, the Company devotes

all of two sentences to its supposedly new factual evidence--

and they are wholly conclusory. In its reply brief the Com-

pany repeats the assertion that its "objections [to the repre-

sentation election] raised substantial issues of fact," and gives

as examples "whether a representative complement of em-

ployees was working during the election period, and whether

the mechanics of the election unfairly deprived even those

employees who were found eligible a reasonable opportunity

to vote." These are not issues of fact, of course: representa-

tiveness, like reasonableness, is a legal standard. Nor did the

Company present "specific evidence" of any factual dispute

underlying the application of those standards; therefore it is

not entitled to another hearing.

The reader will hardly be surprised if Garlock and Linn

Gear are not contrary to so obvious a conclusion. In Garlock,

the Board amended a union's certification to reflect a "formal

affiliation" between that union and another. See Garlock, 709

F.2d at 723. Although the Board could not properly make

such an amendment without finding that "as a factual matter

... [the] affiliation did not result in a fundamental change in

the bargaining representative," id., the Board had granted

the amendment "based solely upon findings in an ex parte

administrative investigation." Id. We held that "[i]f the

Board holds no hearing in amending a certification, it may not

summarily dispose of a ... representation question in subse-

quent unfair labor practice proceedings where the employer

raises substantial factual issues material thereto." Id.

Linn Gear, in turn, involved a disputed ballot cast in a

representation election by an employee who was also the son

of the employer. Without holding a hearing, the Regional

Director concluded that the employee did not "share a com-

munity of interest" with the others in the bargaining unit and

was therefore ineligible to vote. Linn Gear, 608 F.2d at 792-

93. The Board summarily affirmed, but the Ninth Circuit

reversed the Board, holding that the company was entitled to

a hearing to resolve the disputed facts relevant to whether

the employee had a community of interest with those in the

bargaining unit. Id.

Both Garlock and Linn Gear differ from the case at bar in

two critical respects. First, in neither of those cases did the

Board hold even one hearing; here the Board held a hearing

prior to the representation election at which it afforded the

Company an opportunity to present any objections it had as

of that time. Second, in both Garlock and Linn Gear the

party objecting to summary judgment had proffered to the

Board specific evidence putting material facts in dispute;

here the Company has not presented any evidence of a

"substantial factual issue" that arose since the pre-election

hearing. Because neither Linn Gear nor Garlock is compara-

ble to this case, we reject the Company's challenge to the

grant of summary judgment.

III. Conclusion

For the foregoing reasons, we deny the Company's petition

for review and grant the Board's cross-application for en-

forcement.

So ordered.