MJM Studios of New York, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 2003

338 N.L.R.B. 980 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980
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 United States & its Territo-
ries, and Canada, AFL–CIO, CLC. Case 34–
RC–1881
April 18, 2003
SUPPLEMENTAL DECISION AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held May 9, 2001,1 and the hearing offi-
cer’s report recommending disposition of them. The
election was held pursuant to a Decision and Direction of
Election. The tally of ballots shows four for and four
against the Petitioner, with nine determinative challenged
ballots.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the hearing officer’s find-
ings and recommendations only to the extent consistent
with this Supplemental Decision, and finds that a certifi-
cation of results of the election should be issued.
The issue presented here is whether the hearing officer
properly recommended overruling the challenges to the
ballots of six employees who were laid off before the
election. (These employees are Mathew Miller, Thomas
Curtin, Francesco Coppola, Michael Dalton, and Kevin
and Brian Baringer.) The hearing officer concluded that
each of these six laid-off temporary employees had a
reasonable expectation of recall. We disagree.2
The Employer is a manufacturer and installer of
unique architectural ornaments for commercial and resi-
dential properties. It operates on a project-by-project
basis. Until April 15, 2001, it performed work on a
large-scale project at the John F. Kennedy Airport in
New York. Its work force on this project included not
only its regular employee complement of carpenters and
welders, but also 13 “temporary” carpenters and welders
originally supplied by the Petitioner for an earlier pro-
ject. The 6 laid-off employees at issue are among these
13 “temporary” workers.
In this representation proceeding, the Petitioner sought
to represent a unit of the Employer’s carpenters and
welders. In a February 2001 preelection Board proceed-

1 All dates are in 2001, unless otherwise noted.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to sustain the challenges to the ballots of three
other temporary employees (Edison Montoya, Michael Nielson, and
Carl Michaud).
ing, the Employer stated that it planned to lay off all 13
temporary employees as well as 8 of its regular welder
employees, and to reduce its active work force to 2 car-
penters and 4 welders. Because of these planned layoffs
and work force contraction, the Employer argued that the
representation election should be postponed. The Board
rejected this request and affirmed the Regional Director’s
direction of an immediate election on the basis that a
substantial and representative complement of unit em-
ployees would remain in the eventual work force after
the planned contraction. See MJM Studios, 336 NLRB
1255 (2001).
In MJM Studios, the Board also affirmed the Regional
Director’s finding that the eight regular welders sched-
uled to be laid off had a reasonable expectation of recall
and were therefore eligible to vote. It left to this post-
election challenge proceeding the question whether any
temporary employees laid off before the election were
eligible to vote for the same reason. We now address
that question in resolving the challenges to ballots cast
by four laid-off carpentry department temporary employ-
ees (Miller, Curtin, Coppola, and Dalton) and two laid-
off welding department temporary employees (K. Bar-
inger and B. Baringer).
The Board’s longstanding test for determining whether
laid-off employees are eligible to vote is whether, based
on objective factors, they have a reasonable expectancy
of reemployment in the near future. This determination
involves consideration of four objective factors: (1) the
employer’s past practice of layoff and recall, (2) the em-
ployer’s future plans, (3) the circumstances surrounding
the layoff, and (4) what employees were told about the
likelihood of recall. Apex Paper Box Co., 302 NLRB 67,
68 (1991). The determination of eligibility is based on
circumstances extant at the time of the payroll eligibility
date and the date of the election. Id. The burden of proof
rests on the party seeking to exclude the challenged indi-
viduals from voting.
Contrary to the hearing officer, we find from our re-
view of the objective factors that the six laid-off tempo-
rary employees had no reasonable expectation of recall.
With respect to the first factor, past practice, the record
shows that the Employer has no relevant prior history of
seasonal or cyclical layoffs nor any systematic recall
policy or practice.3 There were intermittent layoffs dur-
ing the summer of 2000 when there was a lack of work
or when the Employer was waiting for blueprints and/or
materials. The Employer also laid off employees when it
shut down its operations for the holiday season from De-
3 At the preelection hearing in this case, the parties stipulated that
“some” laid-off employees had been recalled and “others” have not.
MJM Studios, supra.
338 NLRB No. 147
MJM STUDIOS OF NEW YORK 981
cember 22, 2000, until January 2, 2001. These layoffs,
however, are insufficient to establish either an employer
practice or policy regarding layoffs. See, e.g., Sol-Jack
Co., 286 NLRB 1173, 1174 (1987).
As for the second factor, the Employer’s future plans,
we find that the record evidence undercuts the expecta-
tion of continued employment by these temporary work-
ers. An auditor’s report, commissioned by the Employer
for fiscal year 2000, showed that the Employer was los-
ing revenue because its overhead was too high. While
the Employer continued to solicit new business, it also
predicted that its revenues for 2001 would be lower than
those for 2000. Accordingly, beginning in December
2000, the Employer cut its administrative overhead and
downsized its managerial staff in an effort to reduce
costs. As demonstrated at the February 2001 preelection
hearing, the Employer also had plans to reduce its work
force of carpenters and welders. With respect to the car-
penters, since the preceding summer of 2000, the Em-
ployer had changed the nature of its carpentry work by
introducing the use of computer-assisted design (CAD)
files and foam molds instead of wood. This change re-
sulted in the elimination of carpentry work, except for
wood to cap the molds. As of the election date, the use
of CAD files was routine and the Employer had plans to
abolish its formal carpentry department altogether by
September 2001. Consistent with these revenue losses,
and change in carpentry processes, the Employer laid off,
among others, all of the temporary employees prior to the
election.
With respect to the third factor, the circumstances sur-
rounding the Employer’s decisions to hire and lay off are
dictated by the individual contract, as each job is staffed
on a project-by-project basis. Because of its fluctuating
workload, the Employer informs employees, without
warning, that their services are no longer needed.
With respect to the fourth factor, the laid-off tempo-
rary employees testified that the Employer’s supervisors
mentioned the possibility of recall. However, the Board
has held that “vague statements by the employer about
the chance or possibility of the employee[s] being hired
will not overcome the totality of the evidence to the con-
trary.” See Sol-Jack Co., supra at 1174. Further, the fact
that the Employer requested telephone numbers from the
laid-off employees does not establish that they had a rea-
sonable expectation of return. See Osram Sylvania, Inc.,
325 NLRB 758, 760 (1998).
Applying the four factors discussed above, and consid-
ering the record as a whole, we find that the hearing offi-
cer failed properly to consider the reasons proffered by
the Employer for its decisions to lay off and not recall
the temporary carpenters and welders. The evidence
shows that the Employer was struggling with a decline in
contracts, coupled with diminished revenues, that re-
quired downsizing in its administrative and managerial
staffs. In addition, the modernization of its form proc-
essing through the use of CAD files decreased the need
for carpenters and resulted in the abolition of the carpen-
try department. In these circumstances, and noting the
lack of established layoff patterns, we find that the Em-
ployer met its burden of proving that the six laid-off
workers had no reasonable expectation of recall.
Accordingly, we reverse the hearing officer’s findings
and sustain the challenges to the six laid-off temporary
employees. In so doing, we find it unnecessary to pass
on the Employer’s alternative argument that some of the
six laid-off temporary employees abandoned interest in
their former jobs when they obtained other employment.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Local 311 of the International Alliance
of Theatrical Stage Employees, Moving Picture Techni-
cians, Artists & Allied Crafts of the United States & its
Territories, and Canada, AFL–CIO, CLC and that it is
not the exclusive representative of these bargaining-unit
employees.