DIC Entertainment, LP v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 3, 2000 Decided January 12, 2001

No. 99-1481

DIC Entertainment, LP,

Petitioner

v.

National Labor Relations Board,

Respondent

International Alliance of Theatrical and

Stage Employees Local 839,

Intervenor

On Petition for Review and Cross-Application for

Enforcement of an Order of the

National Labor Relations Board

Jonathan M. Turner, pro hac vice, argued the cause for

the petitioner. Lawrence J. Song was on brief.

Sonya Spielberg, Attorney, National Labor Relations

Board, argued the cause for the respondent. Leonard R.

Page, General Counsel, Linda Sher, Associate General Coun-

sel, Aileen A. Armstrong, Deputy Associate General Counsel,

and Charles Donnelly, Attorney, National Labor Relations

Board, were on brief.

Leo Geffner and Ira L. Gottlieb were on brief for the

intervenor.

Before: Ginsburg, Sentelle and Henderson, Circuit

Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: DIC Enter-

tainment, LP (DIC), an animation production company, peti-

tions for review of a decision of the National Labor Relations

Board (Board or NLRB) finding that DIC committed an

unfair labor practice when it failed to bargain with Local 839

of the International Alliance of Theatrical Stage Employees

and Moving Pictures Operators (Union), the newly certified

bargaining representative of DIC's production employees.

DIC Entertainment, LP, Case 31-CA-23986 (Oct. 19, 1999)

(Decision and Order). DIC contends the Board's selection of

voting eligibility criteria for the union representation election,

see DIC Entertainment, LP, Case 31-RC-7705 (May 28,

1999) (order denying review) (Review Dec.), is inconsistent

with past Board decisions. Because we conclude the Board

did not deviate from its precedent, we deny DIC's petition for

review. We further grant the Board's cross-application for

enforcement.

DIC produces cartoons for videos and for television series.

Its employees are hired for a fixed term and perform "pre-

production" work for the actual animation. At the time of the

representation proceeding DIC employees were working on

"Sabrina," a 65-episode television cartoon series. During the

proceeding DIC urged the Board's Acting Regional Director

(Director) to limit voting eligibility to employees who worked

on at least two productions for a minimum of 5 days during

the year preceding the election, the eligibility criteria the

Board had used for film production employees in Medion,

Inc., 200 N.L.R.B. 1013 (1972). The Director rejected DIC's

suggestion and instead applied an eligibility formula which

permitted voting by any employee who during the previous

year had worked either for a minimum of five days on two

productions or for a minimum of 15 days regardless of the

number of productions. The Director emphasized that the

Board had previously modified the Medion criteria in Ameri-

can Zoetrope Prods., Inc., 207 N.L.R.B. 621 (1973), to permit

voting by any television production employee who had worked

on two productions in the past year, regardless of the number

of days, and pointed out that the Board there "not[ed] its

'obligation to tailor [its] general eligibility formulas to the

particular facts of the case,' [207 N.L.R.B.] at 623, as well as

its 'responsibility to devise an eligibility formula which will

protect and give full effect to the voting rights of those

employees who have a reasonable expectancy of further em-

ployment.' Id. at 622." Review Dec. 3. Finding that "the

record clearly establishes that the current employees have

worked and will continue to work on the Sabrina project for a

significant period of time," while "[i]n American Zoetrope and

Medion, the employees worked for short-term, sporadic, and

intermittent periods of time," the Director concluded that

here a more inclusive formula was "necessary to avoid disen-

franchising employees who have worked for a significant

period of time, but only on one production." Id.

On review, the Board upheld the Director, concluding that

DIC "ha[d] not shown that the [Director's] added alternative

of requiring a minimum of 15 days work in the year prior to

his decision is unreasonable under the circumstances present

in this case." Review Dec. 1. In doing so, the Board

stressed that it sought in its voting eligibility decisions "to be

flexible in devising various formulas suited to unique condi-

tions in the different entertainment industries where employ-

ees are often hired to help on a day-by-day or production-by-

production basis, to afford employees with a continuing inter-

est in employment the optimum opportunity for meaningful

representation." Id. (citations omitted).

A union certification election was held on June 4, 1999, in

accordance with the Board's eligibility formula. On June 25,

1999 the Union was certified as exclusive bargaining agent of

DIC's production staff. In order to challenge the election,

DIC refused to bargain with the Union and, as a result, the

Board General Counsel issued a complaint on August 6, 1999,

charging DIC with violating section 8(a)(1) and (5) of the

National Labor Relations Act, 29 U.S.C. s 158(a)(1), (5).* As

its defense DIC challenged the validity of the certification and

the election. On October 29, 1999 the Board granted sum-

mary judgment to the NLRB's General Counsel on the

grounds that the certification issue could have been and was

litigated in the representation proceeding and that DIC nei-

ther offered newly discovered, previously unavailable evi-

dence nor alleged any special circumstances that justified

revisiting the certification. DIC petitioned the court for

review.

The Board exercises broad discretion when determining

bargaining unit composition and we overturn the Board's

exercise of discretion only if its action is unreasonable, arbi-

trary or unsupported by the evidence. B B & L, Inc. v.

NLRB, 52 F.3d 366, 369 (D.C. Cir. 1995). So long as the

Board's decision is rational and in accord with past precedent,

it will be upheld. Id. DIC contends that in choosing the

eligibility formula here the Board impermissibly deviated

from its precedent. We disagree.

"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.' " Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d

__________

* These two provisions make it an unfair labor practice for an

employer "to interfere with, restrain, or coerce employees in the

exercise of the rights [of employees as to organization, collective

bargaining, etc.]," 29 U.S.C. s 158(a)(1), and "to refuse to bargain

collectively with the representatives of his employees," id.

s 158(a)(5).

1175, 1181 (D.C. Cir. 2000) (quoting Saltwater, Inc., 324

N.L.R.B. 343, 343 n.1 (1997); citing American Zoetrope, 207

N.L.R.B. at 622). When employees are temporary or season-

al, however, the Board has devised alternative formulae which

are calculated "to permit optimum employee enfranchisement

and free choice, without enfranchising individuals with no real

continuing interest in the terms and conditions of employ-

ment offered by the employer." Trump Taj Mahal Casino

Resort, 306 N.L.R.B. 294, 296 (1992). In such cases the Board

has generally applied a standard eligibility formula, limiting

voting to those who "average four or more hours of work per

week during the quarter preceding the election eligibility

date." B B & L, Inc. v. NLRB, 52 F.3d at 369. Neverthe-

less, because of its acknowledged "obligation to tailor [its]

general eligibility formulas to the particular facts of the case,"

American Zoetrope Prods., Inc., 207 N.L.R.B. 621, 623 (1973),

the Board has on occasion fashioned a variant formula which

takes into account the nature of work performed in a particu-

lar industry or facility, as it did in American Zoetrope and

Medion. See generally B B & L, Inc., 52 F.3d at 370-71.

The Board did so here consistently with those past cases. In

fact, in Juilliard School, 208 N.L.R.B. 153 (1974), the Board

devised for temporary stage production personnel a similar,

yet more inclusive, formula, authorizing voting by any em-

ployee who had worked two productions for a total of 5 days

over one year or at least 15 days over a 2-year period. Cf.

Sitka Sound Seafoods, Inc., 327 N.L.R.B. No. 55, 1998 WL

876891 (Nov 30, 1998), affirmed, Sitka Sound Seafoods, Inc.

v. NLRB, 206 F.3d 1175, 1182-83 (D.C. Cir. 2000) (seasonal

production workers at seafood processing plant deemed eligi-

ble if they worked 120 hours (15 8-hour shifts) in each of two

of preceding three years).

Further, to the extent that the criteria used in Medion and

Zoetrope indicate likelihood of future employment of "short-

term, sporadic, and intermittent short term employees," the

Director reasonably concluded that the longer-term DIC em-

ployees would have a greater expectation of continued em-

ployment. See Review Dec. at 3. We admit considerable

doubt that the formula in any of these cases effectively

identifies those employees "who have a reasonable expectancy

of further employment with the Employer," as the Board has

so repeatedly declared. See, e.g., Review Dec. at 1-2; Me-

dion, 200 N.L.R.B. at 1014; American Zoetrope, 207

N.L.R.B. at 622-23; National Opinion Research Ctr., 187

N.L.R.B. 583, 585 (1970). Certainly the record below fails to

demonstrate that DIC employees who worked 15 days in the

previous year possessed an expectation of employment at

DIC after their work on Sabrina concludes. Nevertheless,

the validity of the Board's presumption of such expectation is

not before us. DIC challenged the Board's decision on the

sole ground that it deviates from Board precedent and did not

question the rationale underlying the line of cases on which

the Board relied. As we explained above, the Board's deci-

sion here squares with that line of cases, be they correctly

decided or no. We therefore reject DIC's claim that the

Board deviated from precedent.

For the reasons set forth above, DIC's petition for review

is denied and the Board's cross-application for enforcement is

granted.

So ordered.