The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 16, 2002 Decided June 7, 2002
No. 01-1247
King Curb, a Division of Span Construction
and Engineering, 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
Patrick W. Jordan argued the cause and filed the briefs for
petitioner.
Kathleen E. Lyon, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Sharon I. Block,
Supervisory Attorney.
Before: Sentelle, Randolph, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: King Curb petitions for review,
and the National Labor Relations Board cross-petitions for
enforcement, of a Board order finding the company in viola-
tion of s 8(a)(1) and (5) of the National Labor Relations Act,
29 U.S.C. s 158(a)(1) & (5). The questions in the case center
on whether the Board, through its Regional Director, proper-
ly determined that former employees of the company were
eligible to vote in a representation election, in which the
Sheet Metal Workers International, Local Union 162, AFL-
CIO, prevailed.
King Curb is in the metal fabrication business. Located in
Madera, California, the company fabricates fittings--
"curbs"--used for skylights, building ventilation and roof
access systems. Its parent company--Span Construction and
Engineering, Inc.--erects shells of large commercial build-
ings. Ninety-eight percent of King Curb's products are used
in Span's buildings. Span's main customer, Costco, accounts
for 60 percent of Span's business.
King Curb operates year round, but it experiences seasonal
fluctuations because its business is tied to Span's construction
projects. Typically, the fall, winter and early spring are King
Curb's slow times, with production rising in the summer. As
production levels ebb and flow, so do the company's staffing
levels. In 1996, for example, King Curb employed between
10 and 12 employees for seven months of the year, with a
high of 14 employees in June and July and a low of 7 in
November and December. In 1997, the staffing level re-
mained constant at 11 employees throughout the year except
for June and July, when it decreased to 10 employees. In
1998, King Curb employed between 9 and 13 workers for
eight months of the year, with a low of 7 in May and a peak of
21 in August. In 1999, the staffing level ranged from a low of
13 in January to a high of 22 in June.
In 2000--the year at issue--King Curb employed 15 work-
ers in January, 17 from February through April, 19 in May,
24 in June and July, and 26 in August. When the company
then received a request for curbs for ten Costcos, three of
which were large regional distribution centers, it added new
employees to its roster in September and October 2000,
causing staffing levels to swell to 31 in September and 46 in
October. On November 3, 2000, the union filed a representa-
tion petition with the Board, seeking to represent all of King
Curb's regular and part-time employees engaged in the fabri-
cation of sheet metal. Shortly thereafter, Costco delayed
taking delivery of some of the curbs it had ordered. This
caused King Curb to lay off many of its workers. By
November 21, 2000--the day the Board held a representation
hearing--the company's employee roster had dropped to 13.
The Board's Regional Director issued a decision on December
20, 2000, directing an election. He determined that, in addi-
tion to the workers employed at the time of the election, all
laid-off employees who had worked a minimum of 15 days in
either of the two 3-month periods preceding his decision and
direction of election had a reasonable expectation of recall
and were therefore eligible to vote in the election. This
eligibility formula, according to the Regional Director, indi-
cated that there were approximately 30 employees in the unit.
(The formula ultimately yielded 40 employees eligible to
vote.)
The Board denied the company's request for review, and
the election took place on January 18, 2001. In all, there
were 22 votes for the union, 9 votes against, and 5 challenged
ballots. The Board therefore certified the union as the
employees' exclusive bargaining representative. The compa-
ny refused to bargain, precipitating the unfair labor practice
charges. The company argues here, as it did unsuccessfully
in defense to the charges, that the Board's eligibility formula
was arbitrary and contrary to precedent.
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." See
NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). Board
eligibility decisions therefore stand unless they are irrational,
contrary to precedent, or "without justification in law or
reason." See id. at 332; see also Sitka Sound Seafoods, Inc.
v. NLRB, 206 F.3d 1175, 1178 (D.C. Cir. 2000); DIC Enter-
tainment v. NLRB, 238 F.3d 434, 436 (D.C. Cir. 2001).
Eligibility formulas are used to ascertain which individuals
work for an employer with sufficient continuity and regularity
so as to establish their community of interest with other unit
employees. See generally Sitka, 206 F.3d at 1178. "Ordi-
narily the Board uses a simple formula to determine who is
eligible to vote in a representation election: Employees 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.' "
Id. (quoting Saltwater, Inc., 324 N.L.R.B. 343, 343 n.1 (1997)).
But employment situations may differ, and "the Board has an
'obligation to tailor [its] general eligibility formulas to the
particular facts of the case.' " Sitka, 206 F.3d at 1178-79
(quoting BB&L, Inc. v. NLRB, 52 F.3d 366, 369 (D.C. Cir.
1995)); see also American Zoetrope Prods., Inc., 207
N.L.R.B. 621, 623 (1973). When employees are temporary or
seasonal, the Board has attempted to devise alternative for-
mulas designed " 'to permit optimum employee enfranchise-
ment and free choice, without enfranchising individuals with
no real continuing interest in the terms and conditions of
employment offered by the employer.' " DIC Entertainment,
238 F.3d at 436 (quoting Trump Taj Mahal Casino Resort,
306 N.L.R.B. 294, 296 (1992)).
Here the Board adopted an eligibility formula that looked
to: (1) whether the employees had worked a minimum of
fifteen days in either of the two 3-month periods immediately
preceding the date of the issuance of the direction of election;
and (2) the employees' eligibility for future employment with
King Curb. The Board borrowed from Daniel Ornamental
Iron Co., 195 N.L.R.B. 334 (1972), which utilized the same
eligibility formula.
Daniel Ornamental was engaged in the fabrication of orna-
mental iron. It operated year-round, employing regular full-
time welders as well as extra part-time welders that it called
upon during peak production periods. Id. The part-time
welders came from a pool of 27 "on-call" welders, and many of
them had substantial histories of employment with the com-
pany. Id. The Board therefore concluded that it was equita-
ble to include in the unit all part-time employees who had
worked a minimum of fifteen days in either of the two 3-
month periods immediately preceding the date of issuance of
the direction of election. Id. at 334-35.
King Curb argues that the Board erred in applying Daniel
Ornamental's eligibility formula without explaining why its
laid-off employees had any continuity or regularity of employ-
ment, or why the Daniel Ornamental formula fit this case.
We agree. There are, to be sure, some similarities between
this case and Daniel Ornamental. For example, both of the
companies were year-round employers with peak production
periods. But there are also significant differences between
the two cases--the most notable being that unlike the "on-
call" welders in Daniel Ornamental, the employees in this
case were hired by King Curb for a very brief period to meet
a short-lived and unprecedented spike in demand. Nowhere
did the Board explain why it was appropriate to enfranchise
these individuals. Nor did the Board discuss the evidence
showing that King Curb had no plans to increase production
to its October 2000 levels ever again. Cf. Heatcraft, 250
N.L.R.B. 58, 58 (1980) (holding that laid-off employees were
not eligible to vote when the employer had "no plans to recall
employees in the near future" due to a severe decline in the
homebuilding industry). In addition, the Board failed to
address evidence indicating that very few of the employees
King Curb had laid off in the past had ever been reemployed
by the company. Finally, the Board did not mention the
Regional Director's mistaken assumption that the eligibility
formula he devised understated the number of eligible em-
ployees by 25 percent: he thought the formula enfranchised
30 employees when it actually enfranchised 40. It is one
thing to approve a formula that is expected to yield a unit
that includes only 4 more employees than were working just
prior to a one-time surge in the unit's work. It is quite
another, however, to approve a formula that, while predicated
on the former assumption, actually yields 14 (54 percent)
more employees--and to do so without explaining why the
mistaken calculation does not render the formula inappropri-
ate.
In short, the Board's decision was devoid of reasoning and
explanation, and we therefore are unable to conclude that the
Board met its " 'obligation to tailor [its] general eligibility
formulas to the particular facts of the case.' " Sitka, 206 F.3d
at 1178-79 (quoting BB&L, Inc., 52 F.3d at 369). According-
ly, King Curb's petition for review is granted, the Board's
order is vacated, and the case is remanded to the Board for
an explanation of why the Daniel Ornamental formula was
appropriate here, or for the development of an eligibility
formula that is adequately justified and tailored to the facts of
this case.
So ordered.