MJM Studios of New York

National Labor Relations Board - Board Decisions

Dec 14, 2001

336 N.L.R.B. 1255 (N.L.R.B. 2001)

MJM STUDIOS 1255
MJM Studios of New York, Inc. and Local 311 of the
International Alliance of Theatrical, Stage Em-
ployees, Moving Picture Technicians, Artists &
Allied Crafts of the U.S. its Territories, and
Canada, AFL–CIO, CLC. Case 34–RC–1881
December 14, 2001
DECISION ON REVIEW AND ORDER REMANDING
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On April 10, 2001, the Regional Director for Region
34 issued a Decision and Direction of Election in which
he found appropriate a unit of carpenters and welders,
excluding 13 carpenters and welders because they are
“temporary” employees. The Regional Director also
denied the Employer’s request to postpone the election or
dismiss the petition because the petitioned-for unit is
contracting.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Employer and the Petitioner filed timely requests for
review of the Regional Director’s decision. The Em-
ployer contends that the petition should be dismissed
because the unit is not substantial and representative of
the complement of employees to be employed in the rea-
sonably foreseeable future. The Petitioner is seeking to
represent a unit of 27 carpenters and welders, including
the 13 “temporary” carpenters and welders whom the
Regional Director excluded. The Petitioner contends the
13 “temporary” carpenters and welders should be in-
cluded in the unit. On May 3, 2001, the Board granted
the Employer’s and Petitioner’s requests for review. The
Employer filed a brief on review.
Having carefully considered the entire record in this
proceeding, we affirm the Regional Director’s finding
that the unit is substantial and representative of the future
complement of employees and that an immediate elec-
tion is warranted. However, contrary to the Regional
Director, we find that the 13 carpenters and welders at
issue are not “temporary” employees under Board prece-
dent and that they share a sufficient community of inter-
est to be included in the unit.
I. FACTS
The Employer manufactures and installs unique archi-
tectural ornaments for commercial and residential prop-
erties. In business since 1979, the Employer operates six
departments at its Rock Tavern, New York facility: car-
pentry, welding, casting, mold, painting, and shipping.
The Employer operates on a project-by-project basis,
much like a construction industry employer.1 Although
completion dates for projects are scheduled, it is not un-
usual for those dates to change. Changes in completion
dates may be beyond the Employer’s control. The Em-
ployer’s work force fluctuates greatly with many em-
ployment “spikes.” To meet these fluctuations, the Em-
ployer often obtains employees from temporary agencies
and labor organizations, including the Petitioner.
The Employer began work in late 1999 on the Potawa-
tomi Casino, a large-scale project located in Milwaukee,
Wisconsin. In early 2000, the Employer asked the Peti-
tioner to supply workers for this project. On February 1,
2000, the parties entered into a 6-month agreement under
which Petitioner agreed to provide carpentry and welding
employees to the Employer for the Casino project. The
agreement set forth the wages and benefits of the sup-
plied employees. These wages and benefits were differ-
ent from the wages and benefits of the Employer’s regu-
lar employees. The 13 employees supplied by the Peti-
tioner worked alongside the Employer’s regular employ-
ees, performed the same work, and were under the same
supervision.
The Casino project was scheduled for completion on
July 1, 2000. Before finishing the Casino project, the
Employer started work on another large-scale project
located at the John F. Kennedy Airport in New York
(JFK project) with a value of $6,500,000. Because the
Employer needed carpenters and welders to work on the
JFK project and to finish the Casino project, the Em-
ployer and the Petitioner extended their agreement for 60
days to September 30, 2000. During this 60-day period,
the Employer completed the Casino project but not the
JFK project. The parties attempted but failed to agree on
another extension of their agreement, which then expired.
The Employer, nevertheless, retained the 13 employees
on its payroll, and they continued to work on the JFK
project. The original completion date for the JFK project
was February 1, 2001, later extended to April 15, 2001.
Although originally supplied to perform work on the
Casino project, and then later, on the JFK project, the
work of the 13 employees has not been limited to those
projects. Carpenter Frank Coppola and welder Brian
Baringer both testified that they worked on several other
projects. In addition, Carpentry Department Supervisor
Colin Heasman testified that he used the employees for
other projects and that the carpenters under his supervi-
sion could be assigned to work on projects as needed.
The Employer has several projects in progress and others

1 There is no contention, however, that the Employer is engaged in
the construction industry.
336 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
with contracts pending. Further, it is actively seeking
new projects, including large ones like the JFK project.
The Employer anticipates that by April 15, 2001, it
will have laid off the 13 “temporary” employees and 8 of
its regular employees in the welding department. The
Employer, however, has not notified any of these 21 em-
ployees of the impending layoffs. In addition, carpenter
Coppola testified that the Employer has never told him
that he is a “temporary” employee or anything else re-
garding his tenure at the Employer.
The Employer’s practice is not to inform employees of
their layoff until the day of the layoff or shortly before it
is to occur. The supervisory personnel making the layoff
decisions testified that the Employer’s current projects
would not require the existing number of carpenters and
welders and that the 21 employees would be laid off on
April 15, 2001. They also testified, however, that the
layoffs “could change” and were “not final,” and that “it
would not be unusual” to learn of additional projects
after the hearing. Although there was some evidence
regarding the Employer’s previous recalls of laid off em-
ployees, the parties stipulated at the end of the hearing
that “some” laid off employees have been recalled and
“others” have not.
II. ANALYSIS
1. Substantial and representative complement.
The Regional Director directed an immediate election,
rejecting the Employer’s contention that the unit was
contracting to such a significant extent that an election
was not appropriate. We agree.
To warrant an immediate election where there is defi-
nite evidence of an expanding or contracting unit, the
present work complement must be substantial and repre-
sentative of the ultimate complement to be employed in
the near future, projected both as to the number of em-
ployees and the number and kind of classifications.
Douglas Motors Corp., 128 NLRB 307, 308 (1960). A
mere reduction in the number of employees is insuffi-
cient to warrant dismissal of the petition; the Board will
examine whether the reduction is a result of a “funda-
mental change in the nature of the Employer’s business
operations.” Id. The Board finds an existing comple-
ment of employees to be “substantial and representative”
when approximately 30 percent of the eventual comple-
ment is employed in 50 percent of the anticipated job
classifications. See Yellowstone International Mailing,
Inc., 332 NLRB 386 (2000), relying on Custom Deliver-
ies, 315 NLRB 1018, 1019 fn. 8 (1994).
We agree with the Regional Director that the Em-
ployer’s present work force constitutes a substantial and
representative complement of employees to be employed
in the near future. The Petitioner seeks a unit of 27 em-
ployees containing two classifications: carpenters and
welders. The Employer plans to retain six employees
(two carpenters and four welders), and the Regional Di-
rector found that eight regular welders scheduled for lay-
off on April 15 had a reasonable expectancy of recall and
are therefore eligible to vote.2 Thus, apart from the 13
employees whose status as “temporary” employees is in
dispute, it is undisputed that at least 14 of the Employer’s
27 current employees, or 52 percent, will remain in the
unit.3 In addition, the projected complement will retain
both classifications of employees, or 100 percent of its
current classifications.
Further, the evidence does not indicate that any reduc-
tion in the Employer’s work force is the result of a “fun-
damental change” in the Employer’s operations. See
Douglas Motors Corp., 128 NLRB at 308. Although the
Employer has several ongoing projects, it contends that it
currently does not have any projects pending in which
wood and steel are the core product to be produced.
Without new projects, the Employer contends that it will
not need the current levels of carpenters and welders.
However, the Employer does not contend that it is shift-
ing to a different type of business operation or eliminat-
ing aspects of its current business. Cf. Plymouth Shoe
Co., 185 NLRB 732 (1970) (employer changed from
shoe manufacturing to shoe warehousing); Douglas Mo-
tors Corp., 128 NLRB at 308 (employer eliminated
manufacturing aspect of operation in favor of new busi-
ness operation confined solely to distribution, warehous-
ing, and certain experimental functions). Rather, the
Employer continues to pursue the same type of work
(wood and steel products) that it performed before the
planned reduction in its work force and is continuing to
pursue new projects.4 In addition, the Employer is
retaining its carpentry and welding departments. Cf.
Plymouth Shoe Co., supra (employer eliminates all job
classifications engaged in production of shoes or mainte-
nance of shoe manufacturing equipment); Douglas Mo-
tors Corp., supra (employer will compress 16 job classi-
fications into 1 to 4 classifications). Accordingly, we

2 The Employer did not seek review of this finding.
3 The Regional Director found that the employee complement might
also include three current employees from other departments that the
Employer plans to transfer into the carpenter classification following
the April 15 layoffs. Since we find the undisputed employee comple-
ment of 14 employees to be substantial and representative of the Em-
ployer’s ultimate complement, it is unnecessary to determine whether
these three employees are also part of the Employer’s projected com-
plement.
4 The Employer’s president testified he was looking for projects
“like JFK,” which involved extensive carpentry and metal work.
MJM STUDIOS 1257
affirm the Regional Director’s decision to conduct an
immediate election.
2. Temporary employees
The Regional Director excluded the 13 disputed car-
penters and welders from the unit because he found that
they were “temporary employees” under Board prece-
dent. The Regional Director relied on evidence that the
Employer has a history of hiring temporary employees
from temporary agencies and union hiring halls to sup-
plement its work force, particularly when completing a
project. He also relied on the agreement between the
Employer and the Petitioner, which was for a set duration
and was specifically limited to the Potawatomi Casino
and JFK Airport projects. The Petitioner contends that
the 13 employees should be included in the unit based on
their substantial work histories and the fluctuating nature
of the Employer’s business. The Employer contends that
these employees have a definite termination date and no
community of interest with employees in the unit.
“[T]emporary employees, who are employed on the
eligibility date, and whose tenure of employment remains
uncertain, are eligible to vote.” Personal Products
Corp., 114 NLRB 959, 960 (1955). Accord: WDAF Fox
4, 328 NLRB 3 (1999), enfd. 232 F.3d 943 (8th Cir.
2000). The “date certain” test, however, does not neces-
sarily require that the employee’s tenure is “certain to
expire on an exact calendar date”; it is only necessary
that the “prospect of termination [is] sufficiently finite on
the eligibility date to dispel reasonable contemplation of
continued employment beyond the term for which the
employee was hired.” St. Thomas-St. John Cable TV,
309 NLRB 712, 713 (1992), citing Pen-Mar Packaging
Corp., 261 NLRB 874 (1982). On the other hand, em-
ployees originally hired as temporary employees, re-
tained beyond the original term of their employment, and
subsequently employed for an indefinite period, are in-
cluded in the unit. Orchard Industries, 118 NLRB 798,
799 (1957). We find that, while the Regional Director
was correct in finding that the 13 employees initially
were employed for a set duration, their tenure of em-
ployment subsequently became uncertain.
The 13 employees were first employed to work on the
Casino project pursuant to a 6-month agreement between
the Employer and Petitioner beginning in early 2000.
That agreement later was extended an additional 2
months to complete the Casino project and to perform
work on the JFK project. Although the agreement ex-
pired, the employees continued to work on the JFK pro-
ject for over 6 additional months. Moreover, the JFK
project originally was scheduled for completion on Feb-
ruary 1, 2001, but at the hearing the Employer antici-
pated a completion date of April 15, 2001. Further, the
Employer at no time notified the temporary employees
that their tenure was coming to an end. This evidence
illustrates that the Employer has retained the 13 employ-
ees for a substantial period beyond the original term of
their employment, that the Employer’s project comple-
tion dates are subject to change and remain uncertain,
and that their prospect of termination is not certain, even
at the end of a particular project.
In addition, the fact that the Employer has assigned
these employees to work on other projects not specifi-
cally covered by the agreement demonstrates that the
temporary employees were not employed solely to com-
plete the Casino and JFK Airport projects, or any particu-
lar project. Further, the likelihood of a continuing need
for the temporary employees is indicated by the existence
of several projects in progress or pending and evidence
that the Employer is actively seeking new projects that
would require the skills of these employees.
Accordingly, we find the evidence is insufficient to
support a “date certain” for the termination of the tempo-
rary employees or to dispel reasonable contemplation of
continued employment beyond the term for which the
employees were hired. See Ameritech Communications,
297 NLRB 654 (1990); Horizon House 1, 151 NLRB
766, 768 (1965); Hollingsworth & Whitney, 97 NLRB
599 (1951). Further, we find that the 13 employees share
a sufficient community of interest to be included in the
unit with the Employer’s “regular” employees because
there is no dispute that they work side-by-side with the
regular employees, performing the same work, under the
same supervision. See Interstate Warehousing of Ohio,
333 NLRB 682 (2001); Pandick Press Midwest, 251
NLRB 473, 474 (1980); Fatato, Inc., 87 NLRB 546, 548
(1949). The fact that they receive different wages and
benefits than the “regular” employees does not require
their exclusion from the unit. See NLRB v. New England
Lithographic, 589 F.2d 29, 36 (1st Cir. 1978); Interstate
Warehousing of Ohio, 333 NLRB at 683 fn. 5; Pandick
Press Midwest, 251 NLRB at 474; Lloyd A. Fry Roofing
121 NLRB 1433, 1437 (1958); Fatato, Inc., 87 NLRB at
548.5

5 In Chairman Hurtgen’s view, if the wages and benefits of the tem-
porary employees are different from those of the regular employees,
and if the wages and benefits of the temporary employees are set by an
employer who is not to be at the bargaining table, it may well be that
there is no community of interests between the temporary and regular
employees. See Chairman Hurtgen’s dissent in Interstate Warehous-
ing, above. However in the instant case, the Union is the entity that
refers the temporary employees to the Employer, and the wages and
benefits are set in discussions between the Employer and the Union.
The Union, if selected, would obviously be at the bargaining table. In
these circumstances, Chairman Hurtgen would include the temporary
employees in the unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
Although, as discussed above, we have included these
13 employees in the unit based on the evidence adduced
at the hearing, it is possible that some or all of these em-
ployees were laid off prior to the May 3, 2001 election
date. If those employees voted in the election, it would
be necessary to determine, in order to resolve their voting
eligibility, whether they had a reasonable expectancy of
recall. We leave this issue to the post-election challenge
procedure. See Bituma Corp. v. NLRB, 23 F.3d 1432,
1436 (8th Cir. 1994).
ORDER
The Regional Director’s decision to conduct an imme-
diate election is affirmed, but his decision to exclude the
13 temporary employees from the unit because they are
“temporary” employees is reversed. This case is re-
manded to the Regional Director for further appropriate
action.