UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SITKA SOUND SEAFOODS

v.

NLRB


98-1624a

D.C. Cir. 2000


*	*	*


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


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


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


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,"


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


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


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


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 




__________

n * 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


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


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


[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 


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


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


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 


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


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.