MARCH ASSOCIATES CONSTRUCTION

National Labor Relations Board - Unpublished Board Decisions

Apr 27, 2012

22-RC-075268 (N.L.R.B. Apr. 27, 2012)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MARCH ASSOCIATES CONSTRUCTION, INC.
Employer
and Case 22-RC-075268
NEW JERSEY BUILDING CONSTRUCTION
LABORERS DISTRICT COUNCIL
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and
Direction of Election is denied as it raises no substantial issues warranting review.1
MARK GASTON PEARCE, CHAIRMAN
SHARON BLOCK, MEMBER
Member Flynn, dissenting:
I would grant review.
The RD directed an election in a unit of laborers employed by the Employer. The
election is slated for April 27, 2012. The Employer’s president and owner, Louis March, Jr.,
testified that the Employer intends to cease employing laborers. March testified that he has
offered the two laborers he currently employs promotions to nonunit positions effective May 1,
2012. According to the Employer, March further testified that he told the laborers that their
options were to accept the promotions or be laid off. No evidence to the contrary was
introduced.

1 We adopt the Regional Director’s findings, and agree with his conclusion that Louis
March, Jr.’s unsubstantiated, uncorroborated testimony that, beginning May 1, 2012, the
Employer intends to subcontract all bargaining-unit work on its projects is insufficient to
establish the imminent and certain elimination of the unit. Our colleague’s reliance on Davey
McKee Corp., 308 NLRB 839 (1992), is misplaced. In that case, unlike here, the employer
supported its claim of imminent cessation with the mutually corroborative testimony of two
witnesses along with recent reports documenting the completion dates of the projects at issue.
Id. at 839. In addition, and again unlike this case, the evidence established that the employer had
no other ongoing or prospective projects within the relevant geographical area, further
confirming the employer’s claim. Id. at 840; see also Fish Engineering & Construction, 308
NLRB 836, 836 (1992) (distinguishing Davey McKee). By comparison, March’s bare claim that
the Employer intends to abandon its use of laborers to do future clean-up work is decidedly
inadequate.
2
In finding March’s testimony insufficient to establish that the elimination of the
petitioned-for unit is imminent and certain, the RD cited cases in which something more than
testimony was introduced. See, e.g., Hughes Aircraft Co., 308 NLRB 82 (1992); Larson
Plywood Company, Inc., 223 NLRB 1161 (1976). Those cases stand for the unremarkable
proposition that more than enough evidence is enough evidence. It does not follow that
uncontroverted testimony, without more, is not enough. Indeed, in another case presenting the
issue before us here, the Board dismissed a petition based almost exclusively on testimony that
work within the ambit of the petitioned-for unit would be completed on schedule, and that the
employer had no other work under bid in the geographical area. See Davey McKee Corp., 308
NLRB 839 (1992). That March did not testify that he has no projects in prospect is true, but
irrelevant. The unit work here will disappear for a different reason—not because there will be no
projects, but because unit employees will not be needed to perform them. The RD also cited
Canterbury of Puerto Rico, Inc., 225 NLRB 309 (1976), for the proposition that an employer’s
mere stated intention to cease employing unit employees is insufficient. But in that case,
evidence was introduced contradicting the employer’s stated intention. Here, the RD pointed to
no evidence contradicting March’s testimony that he will no longer employ laborers after May 1.
Thus, Canterbury of Puerto Rico is distinguishable.
TERENCE F. FLYNN, MEMBER
Dated, Washington, D.C., April 27, 2012