206 F.3d 1175 (D.C. Cir. 2000)
Sitka Sound Seafoods, Inc.,Petitionerv.National Labor Relations Board, Respondent
No. 98-1624
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 1999Decided March 28, 2000

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.
Ginsburg, Circuit Judge:


1
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 andWarehousemen'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.

I. Background

2
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.


3
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.


4
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.


5
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.


6
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 Unionand 28 were against the Union; two challenged ballots were not considered in the final tally.


7
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.


8
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.

II. Analysis

9
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.


10
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

11
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.


12
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 "obligationto 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:


13
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.


14
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."


15
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 disenfranchise workers eligible to vote under the standard test.  Although it is true that the Board usually adopts a special  eligibility formula in order to extend the franchise to employees 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.


16
In American Zoetrope, for example, the union sought to  represent a bargaining unit composed of "all editorial employees, 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 sporadically;  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 preceding [the Board's decision]" and were not terminated or voluntarily 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).  Obviously, an employee who met the standard eligibility test of  employment on the day of the election and during the preceding 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 immediately preceding the election eligibility date");  DIC Entertainment, 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 formula);  Artcraft Displays, Inc., 263 NLRB 804 (1982) (seasonal  part-time employees eligible to vote if workedminimum of 15  hours during quarter spanning seasonal peak or had accumulated 1,000 "seniority hours," were working or available to  work and were on seniority list).


17
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 Regional 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.


18
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:


19
The Employer's principal customers are in the housing and construction industries, and because of the seasonality of those industries business usually experiences as lack period in the fall of the year, beginning in September 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 equitable to include in the unit ... all extra or part-time employees [who meet the eligibility formula quoted above]....


20
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 Ornamental.  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 seasonal workers).  Accordingly, we reject its second challenge to the eligibility formula.


21
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 employees 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.


22
4. Finally, the Company argues that the eligibility formula 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 purportsto 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 standard criterion--and seasonal employees who met the special  eligibility formula crafted for this case.


23
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, understandably does not respond to the argument.  In order to  prevent "this sort of sandbagging of appellees and respondents, 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

24
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.


25
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, during 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:


26
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 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 operations.  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.


27
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.  Although 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 significant.  Therefore, the Board's determination that the purposes  of the Act would best be effectuated if the permanent employees 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

28
According to S 11336.1 of the Board's Case handling Manual, in a " 'mixed' manual-mail election" ballots should not be  mailed to "those [employees] on layoff status unless all parties 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.


29
We note first that the Case handling 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.  Therefore, the relevant question is whether, quite apart from the  Manual, the Board acted unreasonably.  The answer is obvious:  Having decided to include in the representation election  seasonal employees who were eligible under the special formula 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 predictably substantial disenfranchisement that would otherwise  have occurred.  We therefore reject the Company's challenge  on this issue.

D. Summary judgment

30
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 conflicts 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.


31
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:


32
[I]n the absence of newly discovered evidence or other special circumstances requiring reexamination of the decision 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.


33
Thomas-Davis Medical Centers, P.C. v. NLRB, 157 F.3d 909,  912 (1998).  The party objecting to the representation election 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 evidence of specific events from or about specific people" will do .Id.;  see North of Market Senior Services, Inc. v. NLRB, 204 F.3d 1163, 1167 (D.C. Cir. March 10, 2000) (evidence  "must point to specific events and specific people").


34
In this case, the Company participated in an extensive  hearing, at which both it and the Union presented documentary evidence and testimony, prior to the representation election.  The Company claims, however, that it raised "substantial 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 Companydevotes all of two sentences to its supposedly new factual evidence-and they are wholly conclusory.  In its reply brief the Company repeats the assertion that its "objections [to the representation election] raised substantial issues of fact," and gives  as examples "whether a representative complement of employees 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:  representativeness, 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.


35
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 subsequent unfair labor practice proceedings where the employer  raises substantial factual issues material thereto."  Id.


36
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 community of interest" with the others in the bargaining unit and  was therefore ineligible to vote.  Linn Gear, 608 F.2d at 79293.  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.


37
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 comparable to this case, we reject the Company's challenge to the  grant of summary judgment.

III. Conclusion

38
For the foregoing reasons, we deny the Company's petition  for review and grant the Board's cross-application for enforcement.


39
So ordered.



Notes:


*
 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/election dates, to vote, while denying that right to laid-off employees 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.


