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.