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.