Macy's East

National Labor Relations Board - Board Decisions

Oct 30, 1998

327 N.L.R.B. 73 (N.L.R.B. 1998)

MACY’S EAST 73
Macy’s East and Theatrical Wardrobe Union Local
764, I.A.T.S.E., AFL–CIO, Petitioner. Case 29–
RC–8936
October 30, 1998
DECISION ON REVIEW AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On November 14, 1997, the Regional Director for Re-
gion 29 issued a Decision and Direction of Election in
this proceeding in which he found appropriate the peti-
tioned-for unit of eight wardrobe personnel, including all
sewers and stitchers, in the Employer’s Special Produc-
tion Department (costume shop) at its Brooklyn, New
York facility. The Regional Director found that the dis-
puted employees are seasonal employees with a reason-
able expectation of recall in 1998 and thus are eligible to
vote in the election.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review of the
Regional Director’s decision, contending, inter alia, that
the petitioned-for employees are temporary employees
and therefore are not eligible to vote. By Order dated
December 4, 1997, the Board granted the Employer’s
request for review solely with respect to this issue. The
election was held as scheduled on December 5, 1997,
and the ballots were impounded pending the Board’s
Decision on Review. Thereafter, by Order dated De-
cember 16, 1997, the Board denied the Petitioner’s Mo-
tion for Reconsideration.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this pro-
ceeding, including the Employer’s brief on review, and
finds, in agreement with the Employer, that the disputed
employees are temporary employees with no reasonable
expectation of future employment and, therefore, that
they are ineligible to vote.
The Employer is engaged in the retail sale of clothing
and household goods. The Employer has a costume shop
in its Brooklyn, New York facility, which operates only
for a short period of time each year for the limited pur-
pose of preparing costumes for the Macy’s Thanksgiving
Day parade, and for cleaning and packing them away
after the parade is over. The costume shop employees
are employed from August/September to late Decem-
ber/early January. They are the only employees em-
ployed to work in the costume shop.
In deciding whether seasonal employees’ are eligible
voters, the Board assesses their expectation of future
employment. Factors which the Board considers in find-
ing employees to be regular seasonal employees include
the size of the area labor force, the stability of the em-
ployer’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 em-
ployer’s recall or preference policy regarding seasonal
employees. Maine Apple Growers, 254 NLRB 501, 502
(1981).1 Temporary or casual seasonal employees are
ineligible.
Applying this test to the instant case, we find, contrary
to the Regional Director, that the eight employees at the
Employer’s costume shop are not seasonal employees
with a reasonable expectation of future employment.
Rather, we find that they are temporary employees with a
finite employment termination date. Although the Em-
ployer has a recurrent need to staff its costume shop with
employees for a limited time each year, and therefore is
dependent upon seasonal labor, the record does not
establish that the Employer has a practice of employing
the same costume-shop employees from year-to-year, or
that any costume shop employee obtains permanent
employment with the Employer.2 The record contains
evidence that at least some employees hired in 1997 were
led to believe at their initial interview that there was a
possibility that they could be rehired in 1998.
Specifically, Kevin Ritter, the costume shop coordinator,
testified that he was asked on October 31, 1997, by Laura
Lerner, the Employer’s production manager and
supervisor of the costume shop, whether he was inter-
ested in assuming the position for the following year
because Jean McFadden, senior vice president for sales
promotion and advertising, wished to keep continuity in
the department. Ritter responded in the affirmative.
Similarly, Lerner told Elizabeth Cassin during the
interview that if they liked each other and everything
worked out, Cassin could come back next year. Finally,
Lerner told Abigail Stowe during her interview that if
this year went really well, then she would be welco

me to
come back in the future.

Notwithstanding this evidence, however, we find that
the record as a whole does not establish that the Em-
ployer in fact had a policy of recalling or giving prefer-
ence in future years to former employees. In this regard,
the Employer does not keep a list of previously em-
ployed costume shop employees for use in future hiring.
Instead, each June the Employer places advertisements
seeking to fill the costume shop positions. Significantly,
the Employer had not previously employed the eight dis-
puted employees hired for the 1997 season. In addition,
all three costume shop employee witnesses were told at
the interview that their employment would end after the
1 Compare this approach to the test for determining whether non-
seasonal employees are temporary employees. See, e.g., Personal
Products Corp., 114 NLRB 959, 960 (1955); Lloyd A. Fry Roofing Co.,
121 NLRB 1433 (1958).
2 Mark Schonberg, director of operations for annual events for 22
years, testified that he could not recall any instance where costume
shop employees were kept on in the employ of the Employer once the
clean up period was over. Schonberg also testified that he could not
provide a percentage of costume shop employees over a 22-year period
that returned to the costume shop for further employment in another
year.
327 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74
clean-up process was over. Further, the Employer’s per-
sonnel records indicated that each of the eight positions
was temporary, and each of the three employee witnesses
testified that the Employer issued them a temporary iden-
tification card with a finite expiration date, indicating the
last day of employment. We note that the record pro-
vides no evidence concerning the size of the available
labor force from which the Employer draws its costume
shop employees.
Based on the above, we conclude that the petitioned-
for employees in the Employer’s costume shop are tem-
porary employees as the Board defines that term, and that
they therefore do not constitute an appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act. See Root Dry Goods Co., 126
NLRB 953 fn. 10 (1960); F. W. Woolworth Co., 119
NLRB 480, 484 (1957). Accordingly, the Regional Di-
rector’s decision is reversed.
ORDER
The petition is dismissed.