238 F.3d 434 (D.C. Cir. 2001)
DIC Entertainment, LP, Petitionerv.National Labor Relations Board, RespondentInternational Alliance of Theatrical and Stage Employees Local 839, Intervenor
No. 99-1481
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 3, 2000Decided January 12, 2001

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 Counsel, 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:


1
DIC Entertainment, LP (DIC), an animation production company, petitions 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.


2
DIC produces cartoons for videos and for television series. Its employees are hired for a fixed term and perform "preproduction" 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 American 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 employment.'  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 disenfranchising employees who have worked for a significant  period of time, but only on one production."  Id.


3
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 conditions in the different entertainment industries where employees are often hired to help on a day-by-day or production-byproduction basis, to afford employees with a continuing interest in employment the optimum opportunity for meaningful  representation."  Id. (citations omitted).


4
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 summary 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 neither offered newly discovered, previously unavailable evidence nor alleged any special circumstances that justified  revisiting the certification.  DIC petitioned the court for  review.


5
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, arbitrary 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.


6
"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.' "  Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d   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 seasonal, 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 employment 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.  Nevertheless, 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 particular 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 employee 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, 327 N.L.R.B. No. 55, 1998 WL 876891 (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 eligible if they worked 120 hours (15 8-hour shifts) in each of two  of preceding three years).


7
Further, to the extent that the criteria used in Medion and  Zoetrope indicate likelihood of future employment of "shortterm, sporadic, and intermittent short term employees," the  Director reasonably concluded that the longer-term DIC employees would have a greater expectation of continued employment.  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;  Medion, 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 decision 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.


8
For the reasons set forth above, DIC's petition for review  is denied and the Board's cross-application for enforcement is  granted.


9
So ordered.



Notes:


*
 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. § 158(a)(1), and "to refuse to bargain  collectively with the representatives of his employees," id.  S 158(a)(5).


