Winkie Manufacturing v. NLRB ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1576 & 03-1894
WINKIE MFG. CO., INC.,
Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
____________
Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board.
No. 13-CA-40451
____________
ARGUED SEPTEMBER 26, 2003—DECIDED OCTOBER 27, 2003
____________
Before FLAUM, Chief Judge, BAUER, and MANION, Circuit
Judges.
FLAUM, Chief Judge. The National Labor Relations Board
charged Winkie Manufacturing Company with violating
Section 8(a)(5) and (1) of the National Labor Relations Act,
29 U.S.C. § 158(a)(5) and (1) and ordered it to engage in
collective bargaining with its seasonal employees. Winkie
now appeals from the Board’s order, claiming that its
seasonal employees have no reasonable expectation of
reemployment and are therefore ineligible to participate in
2 Nos. 03-1576 & 03-1894
a collective bargaining unit with Winkie’s full-time em-
ployees. For there reasons stated herein, we affirm the
Board’s order.
I. Background
Winkie operates a dance-wear manufacturing plant in
Chicago. Demand for its costumes fluctuates, reaching a
peak from January to late May. Winkie maintains year-
round employees, but also hires a seasonal force to meet the
high demand of dance season. The seasonal employment
pool is drawn from the greater Chicagoland area, including
the suburbs. Winkie runs advertisements from the end of
December through mid-January or mid-February in the
local Spanish-language newspaper, La Raza. The parties
estimate the labor market to include 385,500 persons.
Winkie’s seasonal employees do not receive vacations, hol-
idays, or other benefits enjoyed by the permanent workers.
Their opportunities for overtime pay are limited to hours in
excess of forty per week, whereas permanent workers may
accrue overtime pay by working in excess of eight hours a
day and by working on the weekends.
When Winkie hired the seasonal workers for the 2000 and
2001 seasons, plant manager Sandra Schiffler told each
applicant that the job was temporary employment and that
it would last through May only. She confirmed that no sea-
sonal employee was eligible for insurance, vacations, or hol-
idays. What is more, each seasonal employee hired for the
2001 season signed a statement printed in both English and
Spanish agreeing to the temporary, casual, seasonal nature
of the job.
Shiffler never promised any temporary or seasonal em-
ployee any employment for any future season. Winkie does
not have a policy of recalling seasonal employees, nor does
Nos. 03-1576 & 03-1894 3
it give them preference in hiring. Winkie does not maintain
a list of former seasonal employees, nor does it attempt to
contact former employees when hiring for a new season
begins. Rather, like any new employee, former seasonal
employees are hired if there is job availability at the time
the application is made. Moreover, when former seasonal
employees are rehired, they are processed as new employ-
ees. In the 2001 season, two former employees were denied
employment because there was no availability when they
applied for work.
In the 2001 season, Winkie hired sixty-three seasonal
workers. In this group, seventy-three percent had no pre-
vious employment with Winkie and twenty-seven percent
had previously worked for Winkie as seasonal employees.
Of the sixty-three workers, thirteen did not remain em-
ployed throughout the season, and six had worked for
Winkie for more than one previous season. In the last two
years, Winkie has hired at least 108 seasonal workers. Only
six of them have become permanent employees. However,
all of Winkie’s new permanent employees were drawn from
the seasonal pool.
For several years, the AFL-CIO (“Union”) has represented
the year-round workers. Historically, the Union has not
represented seasonal workers. In April 2001, the Union
filed a petition seeking to represent a separate unit of
Winkie’s regular seasonal employees. The Acting Regional
Director (“ARD”) found that a separate unit was improper
because the seasonal workers’ interests were too closely
intertwined with those of the permanent employees. Thus,
the ARD found that it was appropriate to include the sea-
sonal workers in the existing unit of permanent employees.
Winkie filed a request for review, on the basis that the
seasonal workers did not have a reasonable expectation of
future employment, and thus did not share a community of
interests with the permanent workers. The Board denied
4 Nos. 03-1576 & 03-1894
the request. The Board conducted a self-determination elec-
tion. Of the nineteen seasonal employees who voted, twelve
cast ballots for representation by the existing unit, and
none voted against it.
In August 2002, the Union requested that Winkie bar-
gain with it. After Winkie refused the Union’s request, the
Union filed an unfair labor practices charge. Based on the
Union’s charge, the Board’s General Counsel issued an un-
fair labor practice complaint, to which Winkie filed an an-
swer admitting its refusal to bargain with the Union, but
disputing the propriety of the Union’s certification.
The Board granted the General Counsel’s motion for
summary judgment, finding that Winkie’s refusal to bar-
gain violated Section 8(a) and (1) of 29 U.S.C. § 158(a)(5)
and (1). Winkie Mfg. Co., Inc., 338 NLRB No. 106. The
Board ordered Winkie to bargain with the Union as the ex-
clusive representative of Winkie’s seasonal employees.
Winkie now appeals from the Board’s decision and the
Board seeks enforcement of its order.
II. Discussion
Standard of Review
Appellate review of the Board’s representation proceed-
ings is limited. NLRB v. Tom Wood Datsun, Inc., 767 F.2d
350, 352 (7th Cir. 1985). As we have said before, “[w]hile
our review is meaningful, it is decidedly deferential: ‘The
Board’s reasonable inferences may not be displaced on re-
view even though [we] might justifiably have reached a dif-
ferent conclusion . . . .’ ” Dunbar Armored, Inc. v. NLRB, 186
F.3d 844, 846-47 (7th Cir. 1999) (citing U.S. Marine Corp.
v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir. 1991) (en banc)).
This court is to review the bargaining unit determination to
ensure that it is not arbitrary, unreasonable, capricious, or
unsupported by substantial evidence. Id. at 847. The
Nos. 03-1576 & 03-1894 5
substantial evidence test “requires not the degree of
evidence which satisfies the court that the requisite fact
exists, but merely the degree that could satisfy a reasonable
fact finder.” Allentown Mack Sales & Serv., Inc. v. NLRB,
522 U.S. 359, 377 (1998) (emphasis in original). Given this
substantial degree of deference, the limited role of this
court is to insist that the Board apply with reasonable
consistency whatever standard it adopts to guide the
exercise of its delegated power. Continental Web Press, Inc.
v. NLRB, 742 F.2d 1087, 1089 (7th Cir. 1984).
Seasonal Worker Eligibility Determination
The parties do not dispute the standards governing this
case. Under Board policy, unit placement and voting eligi-
bility are inseparable issues; if an employee is to be placed
in a unit, that employee may vote in the representation
election. See Post Houses, Inc., 161 NLRB 1159, 1172
(1966). The Board’s test for determining whether seasonal
workers are eligible to vote is whether the “seasonal em-
ployees . . . share sufficient interests in employment con-
ditions with the other employees to warrant their inclusion
in the unit.” Kelly Bros. Nurseries, Inc., 140 NLRB 82, 85-86
(1962). This determination depends upon those employees’
expectation of future reemployment: regular seasonal
employees with a reasonable expectation of reemploy-
ment in the foreseeable future are sufficiently interested in
the working conditions of the unit and are eligible to vote
on placement in a unit with permanent employees, whereas
casual employees with no such expectation are not. Kelly
Bros., 140 NLRB at 85-86. While the determination of
whether a group of employees has a reasonable expetation
of future reemployment is a fact-intensive determination for
which there is no “hard and fast rule,” see NLRB v. Bar-
Brook Mfg. Co., 220 F.2d 832, 834 (5th Cir. 1955), the Board
regularly assesses the following factors: the size of the area
6 Nos. 03-1576 & 03-1894
labor force, the stability of the employer’s labor require-
ments and the extent to which it is dependent upon sea-
sonal labor, the actual reemployment season-to-season of
the worker complement, and the employer’s recall or pre-
ference policy regarding seasonal employees. Maine Apple
Growers, Inc., 254 NLRB 501, 502 (1981). See also Sitka
Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1179 (D.C.
Cir. 2000) (citing the Maine Apple Growers factors); Office
of the Gen. Counsel, Nat’l Labor Relations Bd., An Outline
of Law and Procedure in Representation Cases, 199 (1999)
(listing factors militating in favor of finding employees
regular seasonal employees inclusion as: same labor force;
preferences in rehiring former employees; similarity of
duties and benefits; stabilized demand for and dependence
on seasonal employees).
Winkie focuses its analysis on the following cases where
the Board found that seasonal employees should not be
included in the bargaining unit because they did not have
a reasonable expectation of reemployment: Macy’s East, 327
NLRB 73 (1998); Freeman Loader Corp., 127 NLRB 514(1960); F.W. Woolworth Co., 119 NLRB 480 (1957); Indi-
vidual Drinking Cup Inc., 115 NLRB 947 (1956); Great
Atlantic and Pacific Tea Co., 116 NLRB 1463 (1956); and
Montgomery Ward & Co., 110 NLRB 256 (1954). Factor for
factor, we agree with Winkie that the Board’s decision in
this case does not precisely comport with many conclusions
drawn in those cases. For example, in Freeman, there was
a twenty percent turnover rate within the seasonal em-
ployees. Winkie also has a twenty percent turnover. More-
over, as with Winkie’s seasonal employees, the seasonal
employees in Freeman did not enjoy benefits conferred on
the permanent employees. Most notably, in Freeman twen-
ty-nine percent of seasonal workers had previously worked
for Freeman while Winkie has just twenty-seven percent re-
turning seasonal employees. Indeed, it appears that the
Nos. 03-1576 & 03-1894 7
Board has set a lower bar by finding a reasonable expecta-
tion for reemployment where Winkie’s seasonal employees
have a twenty-seven percent return rate.
Furthermore, in Woolworth the employer had a policy of
recalling its seasonal employees and in Individual Drinking
Cup the company maintained a list of former seasonal
workers. In contrast, Winkie has no formal recall policy, nor
does it notify former employees of openings or give them
preferences in the hiring process. Additionally, of Winkie’s
108 employees of the last two seasons, only six, or five
percent, became permanent employees. In Individual
Drinking Cup the Board found no reasonable expectation of
reemployment despite evidence that twenty-five percent of
seasonal employees became permanent employees.
In response, the Board argues that other considerations
outweighed these factors. Indeed, a number of elements in
the cases Winkie cites cut against Winkie. Specificially,
Winkie depends on approximately sixty employees every
January through May—compared to thirty-five seasonal
workers in Freeman and just eight in Macy’s. The Board
maintains that this regular need for a large labor force en-
ables current seasonal employees to anticipate future open-
ings. The Board also argues that Winkie’s employees are
drawn from a static and definable pool: the Chicago His-
panic community. Because Winkie advertises in La Raza,
the Board maintains that the labor pool remains small,
specifically Spanish-speaking individuals who read La Raza
and know how to operate a sewing machine.
Furthermore, the Board disputes Winkie’s method for
understanding the “transition to permanent employment”
factor. Rather than focusing on how few employees become
permanent employees, the Board claims that the test fo-
cuses on the source of the new employees—all of Winkie’s
new permanent employees came from the seasonal pool.
8 Nos. 03-1576 & 03-1894
We are not unsympathetic to Winkie’s position that the
Board’s decision in this case conflicts with aspects of its
past cases. Understandably, companies like Winkie often
look to the Board’s decisions for guidance in how to handle
their employment policies. Ultimately, however, we accept
the Board’s position that the multi-factor test is flexible.
Rather than setting numeric minimums for each factor, the
Board may evaluate whether the totality of a company’s ac-
tual hiring practices foster a reasonable expectation of re-
employment among seasonal workers. See Maine Apple
Growers, 254 NLRB at 503 (1981) (explaining that an
employer need not demonstrate a positive finding for each
factor in order to sustain a finding of reasonable expectation
of future employment).
In this case, the Board’s finding is supported by substan-
tial evidence. The Board focused its analysis on the factors
that it typically employs. Although we may have reached
a different conclusion had we been the trier of fact, we can-
not say that the Board’s finding was arbitrary, unreason-
able, capricious, or unsupported by substantial evidence.
See Dunbar, 186 F.3d at 847. As we have stated before, the
Board uses a common law method and is permitted to draw
new distinctions. See Continental Web Press, 742 F.2d at
1093. While the Board may have deviated somewhat from
its precedent here, we cannot conclude that it abandoned its
stated policy of employing the factors set out in its previous
decisions and listed in the Outline of Law and Procedure in
Representation Cases.
Conclusion
The Board’s order is AFFIRMED.
Nos. 03-1576 & 03-1894 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-27-03