Sitka Sound Seafoods v. Nat'l Labor Bd.
| Citation | 206 F.3d 1175 |
| Decision Date | 28 March 2000 |
| Docket Number | No. 98-1624,98-1624 |
| Parties | (D.C. Cir. 2000) Sitka Sound Seafoods, Inc.,Petitioner v. National Labor Relations Board, Respondent |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
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. Armstrong, Deputy Associate General Counsel, entered an appearance.
Before: Ginsburg and Garland, Circuit Judges, and Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Ginsburg.
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 Longshoremen and Warehousemen's Union, AFL-CIO, and ordered 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 conducting the representation election, we deny the Company's petition and grant the Board's application.
In August 1997 the Union sought to represent the employees 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 varying 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 preferential rehiring rights, and are eligible for health benefits. Although 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 employees, 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 representation for almost a year. The Board denied the Company's request for review.
Subsequently the Regional Director found that a combination 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, beginning 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 balloting should not have been allowed. The Regional Director overruled the objections and certified the Union as the representative 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 representation 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.
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.
Ordinarily 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." 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 disenfranchises 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 because (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 employees." 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 reemployment season-to-season of the worker complement, and the Employer's recall or preference policy regarding seasonal employees.
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