Museumof Modern Art

National Labor Relations Board - Board Decisions

Aug 24, 2006

347 N.L.R.B. 986 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 96
986
The Museum of Modern Art and Technical, Office
and Professional Union, Local 2110, UAW,
AFL–CIO. Cases 2–CA–34355 and 2–CA–34714
August 24, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On December 16, 2004, Administrative Law Judge
Steven Davis issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, the Respondent filed an answering
brief, and the General Counsel and the Charging Party
filed reply briefs. The Respondent filed cross-exceptions
and a supporting brief, the General Counsel filed an an-
swering brief (adopted by the Charging Party), and the
Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below and to dismiss the complaint.
In the course of comprehensively renovating its Man-
hattan museum facility, the Respondent closed its Film
Stills Archive (the FSA) and laid off the FSA’s two em-
ployees, Mary Corliss and Terry Geesken. Based on
Corliss’ visible role in a strike 16 months before her lay-
off, the judge found that the Respondent harbored ani-
mus against Corliss, but nonetheless determined that Re-
spondent would have closed the FSA and laid off Corliss
and Geesken even in the absence of that activity. Ac-
cordingly, the judge recommended dismissing the 8(a)(3)
and (1) layoff allegations.
Although we agree with the judge’s recommended
dismissal of this allegation, we do not adopt his finding
of animus. The strike had ended 16 months before the
layoffs, there is no evidence that any of the Respondent’s
managers or supervisors ever voiced a desire to retaliate
against the Union or Corliss for the strike, nor is there
evidence of disparate treatment of strikers after they re-
turned to work. Thus, although we agree with the
judge’s conclusion that the layoffs of Corliss and Gees-
ken did not violate Section 8(a)(3) and (1), we do so on

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No exceptions were filed to the judge’s finding that the Respondent
did not violate Sec. 8(a)(3) and (1) by discharging Michael Cinquina.
the basis that the General Counsel failed to raise an
inference that animus against protected activity was a
motivating factor in the decision to lay them off. Fur-
ther, even had the Respondent harbored antiunion ani-
mus, we agree with the judge that the link between any
such animus and the layoffs 16 months later is too at-
tenuated to support a finding that the layoffs were mo-
tivated by antiunion animus.
Also at issue is whether the judge correctly found
that the Respondent violated Section 8(a)(3) and (1) by
accelerating the layoffs of Corliss and Geesken.
Again, there is insufficient evidence that the Respon-
dent’s decision to accelerate the layoffs was motivated
by animus against Section 7 activity. We therefore
reverse the judge and dismiss this allegation.
I. BACKGROUND
A. Overview
The events in the case took place over the course of
2-1/2 years. In 2000, the Museum of Modern Art
(MoMA, the Museum, or the Respondent) began a
major renovation, called the New Building Project,
that entailed closing the museum in Manhattan
(MoMA Manhattan) for renovation and expansion.
The Museum purchased two buildings in Queens—the
Factory and MoMA QNS—to house various collec-
tions and departments from MoMA Manhattan in the
interim. Upon completion of the New Building Pro-
ject, the Museum planned to return some collections
and departments to MoMA Manhattan and retain oth-
ers in Queens permanently. The Museum also planned
to terminate various leases in Manhattan and to move
the art stored at those rental sites to its Queens facili-
ties.
The FSA is one of five subdepartments within the
film and media department. Chief Curator Mary Lea
Bandy oversees the film and media department. Corl-
iss and Geesken reported to Bandy, but they ran the
FSA largely on their own. The FSA is a vast collec-
tion of still images related to film from the earliest
silent movies onward. It was not open to the general
public but was accessible by appointment to individu-
als having a bona fide purpose for using its resources,
including scholars, researchers, writers, and filmmak-
ers. These clients paid the FSA to use images from the
collection.
As the New Building Project unfolded, the plans for
the FSA changed. The Museum originally planned to
move the FSA from MoMA Manhattan to MoMA
QNS permanently. Prior to the anticipated move, the
Museum revised that plan and decided to move the
FSA to its Film Preservation Center in Hamlin, Penn-
MUSEUM OF MODERN ART 987
sylvania. Finally, in 2001, the Museum decided to put its
film stills collection in storage in Hamlin and to close the
FSA.
B. The Variance Process and the 2000 Strike
The Technical, Office and Professional Union, Local
2110, UAW, AFL–CIO (the Union) represents MoMA’s
professional staff. During the planning of the New
Building Project, the collective-bargaining agreement
between the Museum and the Union expired. In April
2000, negotiations became deadlocked, and the Union
called a strike.
As part of the New Building Project, MoMA was re-
quired to obtain variances from New York City through a
process involving hearings before the Manhattan Bor-
ough Board (consisting of city council members from
Manhattan) and the City Planning Commission, and cul-
minating in a vote by the full city council. At the Un-
ion’s request, City Council Member Christine Quinn
opposed the Museum’s variances pending resolution of
the strike and lobbied other members to do likewise. In
an advisory vote on August 24, 2000, the Manhattan
Borough Board rejected MoMA’s variances.
On August 29, MoMA’s director, Glenn Lowry, and
two of MoMA’s attorneys met with the Union’s presi-
dent and the regional director of the UAW and resolved
outstanding collective-bargaining issues.
On September 5, 2000, Lowry informed the executive
committee of the Museum’s board of trustees that a ten-
tative agreement with the Union had been reached, and
the executive committee gave its approval to the agree-
ment.
On September 6, the City Planning Commission held a
hearing on the Museum’s variance applications. Mary
Corliss spoke at the hearing, urging the Commission to
deny the variances pending resolution of the strike.
Lowry also spoke at the hearing, urging approval of the
requested variances.
On September 9, the Union and the Museum signed a
memorandum of agreement, ending the strike. Ulti-
mately, the city council approved the variances. When
later questioned by a supervisor as to whether the strike
had any bearing on the city council hearing, Katie
McDonald, the Museum’s director of government and
community relations, told the supervisor and an em-
ployee that she thought it did, and that the single most
decisive factor in ending the strike was the Union’s abil-
ity to threaten the New Building Project.
Both Corliss and Geesken participated in the strike. In
addition to testifying before the Planning Commission on
September 6, Corliss also was quoted in the media during
the strike, including in Time magazine, the Village
Voice, and the New York Daily News. Lowry was
aware of Corliss’ union activity during the strike, but
he never said anything to her about that activity.
The strikers returned to work after the strike ended.
Of those bargaining unit members MoMA promoted
after the strike ended, almost half were strikers
throughout the strike’s entire duration, while the rest
were nonstrikers or strikers who returned to work be-
fore the strike ended. Likewise, MoMA laid off
roughly equal numbers of strikers and nonstrikers after
the strike ended.
After the strike, Corliss and Geesken returned to
their regular duties at the FSA until they were laid off
16 months later. During the strike, and up until the
time of their layoff, no one in management said any-
thing to them about their strike activities, Corliss’ tes-
timony before the Planning Commission, or Corliss’
articles in the media.
C. The FSA and MoMA QNS
MoMA QNS began a course of extensive renova-
tions to ready it for its role in the New Building Pro-
ject. In August 2000, the Museum informed the head
architect of the MoMA QNS renovation, Scott New-
man, that the renovation was running over budget. In
response, Newman issued a memo on October 22,
2000, containing 16 cost-cutting proposals. One of his
proposals was to cancel plans to construct a new mez-
zanine level, a portion of which was originally planned
to be allocated to the FSA.
Two days later, Architect Newman, Director Lowry,
Deputy Director Karen Davidson, and other construc-
tion personnel met to go over Newman’s proposals. At
that meeting, the proposal to cancel construction of the
entire mezzanine was amended to eliminate only the
FSA portion of the mezzanine. As suggested by
Lowry or Davidson, “To Hamlin” was written next to
the FSA on the notes from the October meeting, refer-
ring to the Museum’s Film Preservation Center in
Hamlin, Pennsylvania, about 100 miles from New
York City. As of October 2000, the FSA had been
storing part of its collection in the Hamlin Center for
10 years. The Center is a state-of-the-art facility spe-
cially designed to preserve film. It has a small staff
and is closed to the public.
On December 4, 2000, the Museum’s board of trus-
tees voted to increase the budget for MoMA QNS,
making Newman’s proposed cost-cutting measures
unnecessary. Thus, the mezzanine level was to be
built in its entirety. Nevertheless, the FSA was omit-
ted from a “Draft Relocation Plan” distributed in De-
cember 2000. At an all-staff meeting on January 31,
2001, Lowry was asked why the FSA was missing
from the relocation plan. He answered that there was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD988
no room for the FSA at MoMA QNS, that there would be
security problems in housing it there, and that Bandy was
considering other locations.
In mid-April 2001, Lowry and Bandy discussed the fu-
ture of the FSA. Bandy asked Lowry if the Museum
could rent space for the FSA in Manhattan. Lowry re-
jected that option, saying that the Museum could not in-
cur any new storage costs.2 Lowry and Bandy then dis-
cussed moving the FSA to Hamlin. Bandy told Lowry
that operating the FSA from Hamlin would result in ad-
ditional costs. Lowry reiterated that the Museum could
not incur any additional costs. Bandy was also told in a
budget meeting in September 2001 that all the depart-
ments had to reduce their operating budgets. The budget
committee’s mandate was “no new expenses.”
In March or April 2001, Architect Newman was re-
ceiving additional requests from museum officials for
space at MoMA QNS. To accommodate these needs, in
late April 2001 Newman proposed using the space origi-
nally allocated for the FSA. Newman testified that decid-
ing to move any other department besides the FSA out of
MoMA QNS would have required renting space. The
Museum accepted his proposal, and on April 30, 2001,
Lowry confirmed to Bandy the final decision that the
FSA would not be relocated to MoMA QNS. A July
2001 revision of the MoMA QNS floor plan showed that
the mezzanine space originally allocated for the FSA had
been reallocated to visitor services, a project called the
“unframing project,” and a curatorial study area.
On July 12, 2001, although Bandy told Corliss that the
FSA was going to Hamlin, she remained uncertain at that
time whether the FSA could operate there. In November
2001, Bandy asked Corliss to prepare a report comparing
how the FSA operated at MoMA Manhattan with how it
might function in Hamlin. Corliss’ report detailed the
FSA’s space and equipment needs and stressed that many
clients would not be willing to travel to Hamlin to access
the FSA. This report reinforced Bandy’s concern that
operating the FSA in Hamlin would not be practical.
Nevertheless, in December 2001 Corliss and Bandy trav-
eled to Hamlin to take a closer look.
D. The FSA is Closed and Its Staff Laid Off
Following her December 2001 trip to Hamlin, Bandy
told MoMA’s human resources director, Oz Zager, that
she had decided to close the FSA and lay off the staff.
Although she wanted to keep it open, she concluded that
operating the FSA from Hamlin was not feasible for sev-
eral reasons, including the comparative remoteness of the
location for users of the FSA’s services and the increased

2 At this point, the Respondent had decided to reduce its existing
lease holdings and not to incur new rental costs.
costs associated with a Hamlin location, such as for
transportation. In sum, Bandy concluded that there
was no way to operate the FSA from Hamlin without
increasing operating costs, and that the severe budget
constraints under which she was operating precluded
any additional expenses.
The FSA was not the only department to be closed
as a result of the New Building Project. The Architec-
ture & Design Study Center and the Photography
Study Center were both temporarily closed during the
project, and the writing services department was per-
manently closed. Similar to the FSA, the Video Study
Center was also closed and its collection sent to Ham-
lin for storage.
In late December 2001, before Bandy’s decision to
close the FSA was announced, the Union requested to
meet with the Museum to discuss the relocation of the
FSA, and a meeting was scheduled for January 9,
2002. After speaking with museum counsel, Human
Resources Director Zager determined that he was obli-
gated to inform the Union at the meeting that the FSA
would be closed and Corliss and Geesken laid off.
Although the Museum had intended to lay off Corliss
and Geesken on February 22, 2002, the date the FSA
was to be closed, once it informed the Union and the
two employees of its decision on January 9, the Re-
spondent followed MoMA’s normal practice of laying
employees off promptly after notifying them of the
decision. Thus, Zager and Bandy met with Corliss and
Geesken on January 9 to inform them directly about
their layoffs, and those layoffs took effect on January
11, 2002.
In February 2002, the New York Observor published
an article criticizing MoMA’s decision to close the
FSA and lay off Corliss and Geesken. Corliss was
quoted in the article as criticizing Bandy and the Mu-
seum’s film and media department. Bandy told Lowry
that film and media employees were upset by their
department’s negative portrayal in the Observor arti-
cle, and she asked Lowry to call staff members to offer
his support. When Lowry suggested that a letter from
the film and media department supporting Bandy and
“perhaps indicating their lack of respect for [Corliss]
may make the strongest case,” Bandy replied that she
did not favor this approach.
II. THE JUDGE’S DECISION
A. Layoffs
In deciding whether the layoffs of Corliss and Gees-
ken violated Section 8(a)(3), the judge recognized that
there were several decisions that led to the layoffs: the
decision to remove the FSA from the MoMA QNS
MUSEUM OF MODERN ART 989
plans; the decision to relocate the FSA to Hamlin; and
the decision to close the FSA and lay off the staff. The
judge addressed each of these decisions in turn.
In addressing the Museum’s decision to remove the
FSA from MoMA QNS, the judge first found that the
Museum bore animus toward the Union for its attempt to
delay or defeat the New Building Project and toward
Corliss for her activities during the strike. This finding
was based on evidence indicating that the Union’s effort
to obstruct the Museum’s variance applications was the
key reason that the Respondent returned to negotiations
with the Union and reached an agreement.3
Because the proposal to remove the FSA from MoMA
QNS first arose in the context of keeping the MoMA
QNS renovation within budget, and because that budget
was increased in December 2000 (removing any imme-
diate financial obstacle to placing the FSA at MoMA
QNS), the judge found that Lowry had no legitimate
business reason for announcing in January 2001 that
there was no room for the FSA at MoMA QNS. He
therefore found Lowry’s announcement was a pretext.
He further found, however, that Architect Newman’s
April 2001 proposal to use the mezzanine space previ-
ously allocated to the FSA to meet other needs was ar-
rived at independently, and was based on legitimate
business reasons that justified the adjustment in space.
Applying Wright Line,4 the judge found that, even as-
suming the General Counsel had sustained his initial
burden of showing that protected activity was a motivat-
ing factor in deleting the FSA from the plans for MoMA
QNS, the Respondent met its rebuttal burden by proving
that it would have removed the FSA from MoMA QNS
based on Newman’s independent April 2001 proposal
even absent Corliss’ protected activity.
Next, the judge analyzed the Museum’s decision to re-
locate the FSA to Hamlin and its subsequent decision to
close the FSA. He found that Corliss and Geesken per-
formed their normal duties without incident for the 16-
month period after the strike, that Bandy treated them in
a professional manner throughout this period, and that
Bandy made a good-faith effort to locate other space for
the FSA in Manhattan and, then, to consider operating it
from Hamlin.

3 In finding animus, the judge relied on Council Member Quinn’s
opposition to the variance applications until the strike was settled, the
Manhattan Borough Board vote rejecting the applications, the close
timing between that vote and the tentative agreement between the Mu-
seum and the Union, and the statements made by museum officials
Lowry and McDonald regarding the strike’s interference with the New
Building Project.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
The judge reasoned that, in order to find the layoffs
unlawful, he “would have to find a plan [that] was de-
vised and implemented from the end of the strike in
September, 2000 to the layoffs 16 months later which
involved personnel from Lowry on down.” Moreover,
because of the 16-month time gap between Corliss’
protected activity and her layoff, he reasoned that such
“latent hostility” would have to be accompanied by a
“high degree of antiunion animus” in order to find a
violation, citing Marcus Management, 292 NLRB 251,
260, 263 (1989). Finding evidence of such animus
lacking, the judge concluded that the General Counsel
failed to meet his initial burden of proving by a pre-
ponderance of the evidence that antiunion animus was
a motivating factor in the layoffs. Thus, the judge
concluded that the layoffs did not violate Section
8(a)(3) and (1).
B. Acceleration of Layoffs
The judge found that although the layoffs them-
selves were lawful, the Museum violated Section
8(a)(3) and (1) by accelerating the layoffs of Corliss
and Geesken because of the Union’s request to meet to
discuss the future of the FSA. The judge found that,
even assuming it was the Museum’s policy to dismiss
employees promptly after announcing their layoffs,
here, the precipitating reason for accelerating the lay-
offs was the Union’s request for a meeting. Thus, he
concluded that the Respondent committed an unfair
labor practice by accelerating planned layoffs because
of union considerations or because the Union inter-
vened on the employees’ behalf.
III. THE PARTIES’ EXCEPTIONS
The General Counsel excepts to the judge’s conclu-
sion that the layoffs of Corliss and Geesken did not
violate Section 8(a)(3) and (1). In support, he relies in
part on the judge’s findings that Lowry harbored ani-
mus toward Corliss for her role in the strike and that
Lowry’s January 2001 statement that there was no
room for the FSA at MoMA QNS was a pretext. The
General Counsel also asserts that even if Architect
Newman independently proposed removing the FSA
from MoMA QNS, the Respondent failed to provide a
legitimate rationale for accepting Newman’s April
2001 proposal. Further, the General Counsel argues
that when Lowry accepted Newman’s April 2001 pro-
posal, Lowry simultaneously imposed budgetary re-
straints that he knew would eventually result in the
FSA’s closure and the layoffs of Corliss and Geesken.
The General Counsel contends that the judge should
have concluded that the layoffs were a foregone con-
clusion as of April 2001. In support, he relies on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD990
facts that Lowry prohibited Bandy from renting space in
Manhattan for the FSA and from incurring additional
costs, even though Bandy told Lowry the FSA could not
operate from Hamlin without increasing costs. The Un-
ion’s exceptions advance similar arguments.
Based on the above, the General Counsel and the Un-
ion argue that the judge should have concluded that the
layoffs were discriminatorily motivated and thus violated
Section 8(a)(3) and (1).
The Respondent excepts to the judge’s finding that the
Museum bore animus toward the Union and Corliss be-
cause of their efforts during the strike. In support of re-
versing this finding, the Respondent emphasizes that
there is no evidence that any manager or agent of the
Museum said or did anything suggesting antiunion ani-
mus toward any strikers, including Corliss. To the con-
trary, the Respondent asserts that it welcomed the strik-
ers back to work and that there is no evidence that it
treated strikers differently than nonstrikers. Addition-
ally, the Respondent asserts that Lowry was not con-
cerned about the Union’s lobbying efforts against the
Museum’s variance applications. According to the Re-
spondent, the tentative agreement reached with the Union
shortly after the Manhattan Borough Board vote denying
its variance applications was unrelated to the Union’s
attempts to interfere with the approval of those applica-
tions.
Additionally, the Respondent excepts to the judge’s
finding that the Museum decided that there was no room
for the FSA at MoMA QNS in January 2001. The Re-
spondent argues that Lowry stated that he had space con-
cerns for all the departments slated for MoMA QNS,
including the FSA, but that he had not yet made a deci-
sion.
The Respondent also excepts to the judge’s finding
that it violated Section 8(a)(3) and (1) by accelerating the
layoffs of Corliss and Geesken. The Museum asserts that
it disclosed the impending layoffs because it was legally
obligated to do so in response to the Union’s inquiries.
That Corliss and Geesken were laid off soon after this
disclosure was consistent with the Museum’s regular
practice of implementing layoffs shortly after giving no-
tice, the Respondent asserts. It also asserts that the Gen-
eral Counsel failed to present evidence that antiunion
animus was a motivating factor in the acceleration of the
layoffs.
IV. ANALYSIS
A. Layoffs of Corliss and Geesken
To prove a violation of Section 8(a)(3) and (1)
under our decision in Wright Line, the General
Counsel must first prove, by a preponderance of the
evidence, that the employee’s protected conduct
was a motivating factor in the employer’s adverse
action. Once the General Counsel makes a show-
ing of discriminatory motivation by proving the
employee’s prounion activity, employer knowl-
edge of the prounion activity, and animus against
the employee’s protected conduct, the burden of
persuasion “shift[s] to the employer to demon-
strate that the same action would have taken place
even in the absence of the protected conduct.”
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961
(2004) (quoting Wright Line, supra; other internal cita-
tions omitted).
In affirming the judge’s conclusion that the Respon-
dent did not violate Section 8(a)(3) and (1) by laying
off employees Mary Corliss and Terry Geesken, we
disagree with his finding that the Respondent harbored
animus against Corliss for her strike-related activities.
Although we reject the Respondent’s assertion that the
Union’s opposition to the Respondent’s variance ap-
plications played no role in the settlement of the strike,
we do not find that the Union’s or Corliss’ actions in
that regard support a finding of animus. When collec-
tive bargaining was at a standstill in the summer of
2000, the Union was free to exert bargaining pressure
on the Respondent. There is no contention that the
pressure exerted here (opposition to the Respondent’s
request for a variance) was unlawful. Although em-
ployers generally do not like bargaining pressure ex-
erted against them (whether the pressure be in the form
of a strike or some other form), the Board does not
infer antiunion animus from such dislike. Thus, with-
out more, the Union’s lobbying against the Museum’s
variance applications, and Corliss’ role in that lobby-
ing, are insufficient to support a finding of animus.5
And, indeed, there is nothing more. There is no evi-
dence that Lowry or other managers ever expressed
bitterness or resentment toward Corliss or any other
strikers about the Union’s strategy to lobby city coun-
cil, let alone an intent to retaliate.6 After the strike

5 We observe that, in reaching an agreement, the Museum agreed
to the Union’s proposed union-security clause, and the Union waived
its right to arbitrate or strike over changes the Museum might make
in health benefits. Thus, both parties compromised to reach agree-
ment.
6 As stated above, after the 2002 closure of FSA, when Bandy
told Lowry that film and media department employees were upset
about an Observor article in which Corliss was quoted as criticizing
Bandy and the department, Lowry advised that the department write
that publication to express support for Bandy and “perhaps . . . lack
of respect” for Corliss. The record contains no further explanation
of this “lack of respect” remark, and we can attach no significance to
it. Under the circumstances, however, we think it far more likely to
MUSEUM OF MODERN ART 991
ended, MoMA promoted and laid off roughly equal
numbers of strikers and nonstrikers, and Corliss and
Geesken returned to their normal duties without incident.
On this record, there is simply insufficient evidence to
support a finding of antiunion animus.
We also disagree with the judge’s finding that Lowry’s
January 2001 announcement that there was no room at
MoMA QNS for the FSA was pretextual. The judge
based this finding, in part, on the Respondent’s animus,
which finding we have rejected, above. Further, al-
though the MoMA QNS renovation budget had been
increased before Lowry’s statement, Lowry did not an-
nounce that there was not enough money to move the
FSA to MoMA QNS; he announced that there was not
enough space for the FSA at MoMA QNS.
Even with the eventual addition of a full mezzanine
floor at MoMA QNS, the Museum did not have enough
space to maintain all of its functions during the New
Building Project. The FSA was not the only department
to cease operating in this period of upheaval. As stated
above, the Architecture & Design Study Center and the
Photography Study Center were closed for the duration
of the project, the writing services department was per-
manently closed, and the Video Study Center was closed
and its collection sent to Hamlin for storage. In addition,
the Respondent changed its plans often during the New
Building Project, sometimes changing the function for a
particular location without immediately planning for the
subsequent effects of the change.7
Significantly, MoMA QNS Architect Newman testi-
fied that removing any department from MoMA QNS
other than the FSA would have required renting new
space for that department. This would have run counter
to the Respondent’s plan to end its leases, and reduce
expenditures, in favor of using museum-owned facilities.
The Center in Hamlin was just such a museum-owned
facility. It was specially designed for the storage of film
and photographs, and part of the FSA collection was al-
ready in storage there. So even though the MoMA QNS
budget was increased, the Museum’s decision to remove
the FSA from MoMA QNS with Hamlin in mind as its
ultimate location was reasonable, and thus we do not
consider it to be a pretext for antiunion discrimination.

have been prompted by Corliss’ criticisms in the Observor article than
by her strike-related activities 1-1/2 years earlier.
7 When asked for examples of such changes, Museum Project Direc-
tor William Maloney testified that the Museum decided to expand the
café in MoMA Manhattan, occupying office space without any provi-
sion for where those offices would be relocated. He also stated that the
Education Center displaced two curatorial departments that in turn
displaced the retail group, and the new location for the retail group had
yet to be decided.
The subsequent decision to close the FSA and lay
off Corliss and Geesken was reached in good faith by
Bandy. Bandy considered several options and con-
sulted Corliss by asking her to write a report on how
the FSA might function from Hamlin and by inviting
her to accompany Bandy to Hamlin. We are not per-
suaded by the General Counsel’s argument that Lowry
plotted to place financial restraints on Bandy so that
she was left with no choice but to close the FSA. In
fact, the budget committee told all department heads to
reduce their operating budgets, not just Bandy.
In sum, we find that the link between the layoffs—
16 months after the strike ended—and Corliss’ strike-
related activities is too attenuated to support a finding
that the General Counsel sustained his initial Wright
Line burden. There was insufficient evidence of anti-
union animus even at the time of Corliss’ protected
activities, and this was followed by over a year of
Corliss and Geesken working at the FSA without inci-
dent. In any event, the evidence fails to establish that
animus was a motivating factor in the subsequent lay-
offs. We therefore conclude that the Respondent did
not violate Section 8(a)(3) and (1) by laying off Corliss
and Geesken.
B. Acceleration of Layoffs
The judge found that the Respondent violated Sec-
tion 8(a)(1) and (3) by accelerating the layoffs of Corl-
iss and Geesken as a result of the Union’s request to
meet concerning the future of the FSA. For the fol-
lowing reasons, we disagree.
The record simply does not support the judge’s find-
ing that the decision to accelerate the layoff date was
motivated by antiunion animus. The record shows that
the Museum had already made a decision to close the
FSA and lay off its staff when the Union inquired
about the status of the FSA in late December 2001.
There is no dispute that, at the January 9, 2002 meeting
that followed, the Respondent’s duty to bargain in
good faith obligated it to be truthful with the Union
and disclose its plans. Once the Union had been told
of the planned layoffs, it became necessary to tell Corl-
iss and Geesken as well, since they would have heard
the news from the Union had the Museum not told
them directly.8 The Museum presented evidence es-
tablishing that in moving up the date of the layoffs, it
was adhering to its regular business practice of dis-
missing employees soon after they are informed of
their impending layoffs. The acknowledged purpose
of the policy is to avoid the adverse impact the em-

8 In fact, the Union did tell Corliss and Geesken about the layoffs
immediately before the Respondent met with them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD992
ployees’ continued presence may have on general em-
ployee morale. There is no evidence that Corliss or
Geesken were laid off earlier than planned because they
sought the Union’s assistance or engaged in any other
protected activity. In fact, there is no evidence whatso-
ever of retaliatory motivation of any kind.
For these reasons, the judge’s finding that the Respon-
dent unlawfully accelerated the layoffs of Corliss and
Geesken lacks support in the record and must be re-
versed.
Inasmuch as we have found that the Respondent did
not violate the Act, we shall dismiss the complaint in its
entirety.
ORDER
The complaint is dismissed.
Jamie Rucker and Geoffrey E. Dunham, Esqs., for the General
Counsel.
Peter D. Conrad and Michael J. Lebowich, Esqs. (Proskauer
Rose LLP), of New York, New York, for the Respondent.
Allyson L. Belovin and Daniel Engelstein, Esqs. (Levy, Ratner,
P.C.), of New York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge and a first amended charge filed in Case 2–CA–34335
on February 4, and November 27, 2002, respectively, by Tech-
nical, Office and Professional Union, Local 2110, UAW, AFL–
CIO (Union), and based on a charge and a first amended charge
in Case 2–CA–34714, filed on June 28, 2002, and January 27,
2003, respectively, by the Union, a consolidated complaint was
issued on April 1, 2003 against the The Museum of Modern Art
(Respondent, Museum or MoMA).
The complaint alleges essentially that on about January 11,
2002, the Respondent discharged its employees Mary Corliss
and Terry Geesken, and that on about June 5, 2002, it dis-
charged employee Michael Cinquina. The complaint alleges
that these employees were discharged because of their support
for the Union and because they engaged in activities in behalf
of the Union, and other protected concerted activities. In this
regard, the complaint also alleges that the Union, including its
members, Corliss, Geesken and Cinquina, engaged in a strike
against the Respondent from about April 28, 2000 through
about September 9, 2000.
The Respondent’s answer denied the material allegations of
the complaint, and asserted that the three named employees
were laid off and not discharged, and that they continue in that
status. On 23 days from September, 2003 to January, 2004, a
hearing was held before me in New York, New York.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York not-for-profit corporation,
with offices and places of business located at 11 West 53rd
Street, New York, NY, at 33rd Street and Queens Boulevard,
Long Island City, Queens, NY, and at Hamlin, Pennsylvania,
has been engaged in the operation of a museum and the pro-
vision of related cultural services to the public. Annually, the
Respondent derives gross revenues from its operations in
excess of $1,000,000, and purchases and receives at its facili-
ties, goods and materials valued in excess of $5,000 directly
from suppliers located outside New York State. The Respon-
dent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Respondent also admits and I find that the Un-
ion is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background and contentions
This case has as its background the enormous renovation
of the Respondent’s 53rd Street Manhattan facility, the fore-
most museum of modern art and design in the country. The
renovation involved the demolition of the entire structure, the
acquisition, demolition and inclusion of adjacent properties
into the project, the construction of a new, much larger facil-
ity, and the purchase and redesign of a warehouse/exhibition
facility in Long Island City, New York.
The cost and scope of the renovation were immense. The
new 53rd Street facility would be expanded from about
380,000 to about 680,000 square feet, and the total budgeted
cost for the entire project was about $860 million. In order to
accomplish this ambitious construction project on 53rd Street,
the Respondent filed applications for various building and
zoning variances, and participated in hearings on the applica-
tions, which were voted on by various New York City gov-
ernment offices.
In anticipation of the close of the museum due to its reno-
vation, employees were laid off and its in-house bookstore
was closed.
The foreground of this case is a four-month strike over a
renewal collective-bargaining agreement. More than half of
the unit’s 224 employees engaged in the strike, and remained
on strike throughout its duration.1 Strikers testified at one of
the New York City building variance hearings, engaged in
daily picketing, including picketing at public Museum
events, and the picketing included the maintenance of a
large, inflated rat in front of the Museum. Foremost among
the strikers who engaged in public activities were Corliss and
Cinquina. Both gave testimony at the City Planning Com-
mission hearing, urging the New York City Council mem-
bers to reject the Museum’s application for variances until
the strike was settled, and both were interviewed in the me-

1 One hundred twenty of the 224 unit employees went on strike
and remained on strike.
MUSEUM OF MODERN ART 993
dia concerning the strike. In addition, Corliss spoke with Coun-
cil member Christine Quinn who vigorously lobbied her col-
leagues to reject the requested variances until the strike was
settled. Cinquina, who held a high position in the Union, was
the employee leader of the strike and the picketing.
Counsel for the General Counsel argues that long-term em-
ployee Corliss, her assistant Geesken, and Cinquina were dis-
charged because of their strike activities, as set forth above. He
asserts that the Museum harbored animus toward Corliss and
Cinquina, essentially because their actions (a) threatened to
delay or interfere with the Museum’s expansion plans and (b)
caused the Museum to agree to the Union’s contract terms in
settlement of the strike. It is further alleged that the Respondent
utilized and manipulated its renovation plans as a “cover” to
ultimately discharge them and Geesken.
The Respondent argues that all three employees were not
discharged, but rather were laid off. The Museum first asserts
that it had no reason to believe that Corliss’ Union activities
could threaten its renovation project. It further contends that
such activities, having taken place 16 months years prior to her
layoff, had nothing to do with its business decisions to, first,
remove her department from the Queens building to which it
was originally assigned, and then to move the department to
Pennsylvania, and finally to lay her off when the department
was closed. According to the Respondent, Cinquina was laid
off essentially due to the implementation of an automated book-
ordering system, and because the bookstore in which he worked
was closed during the renovation.
2. The land use proceeding and the strike
a. The land use proceeding
As part of its 53rd Street building project, the Museum filed
various applications for variances from New York City zoning
regulations. The applications are considered in a proceeding
called the Uniform Land Use Review Process (ULURP). The
process included a hearing before the Manhattan Borough
Board, which is comprised of New York City Council members
from the borough of Manhattan, a hearing before the City Plan-
ning Commission, and ultimately a vote by the City Council.
Museum director Glenn Lowry testified that if the variance
approvals were not granted, a “good portion” of the building
would have to be redesigned, at considerable cost.
The ULURP process began in early 1999 with the filing of
the applications. Christine Quinn, the City Council member
whose district included the Museum, was informed in about
early March, 2000 by Lowry and Katy McDonald, the Mu-
seum’s director of government and community relations, about
the upcoming renovations and applications. She expressed un-
qualified support for the project. However, immediately there-
after, she was advised by the Union that collective-bargaining
negotiations for a renewal contract were not going well.
Quinn testified that one or two weeks before the strike began
in April, 2000, she met with Lowry and McDonald, and asked
that the dispute be settled, as soon as possible, “to the satisfac-
tion of the Union.” In early May, when the strike was one
month old, Quinn sent a letter to Lowry, signed by a number of
City Council members, urging a renewed effort to reach agree-
ment on a new contract. At about the same time, Lowry and
McDonald met with Quinn and members of the New York
City Assembly. The politicians urged an end to the strike.
Quinn announced that she could not support the expansion
project and the zoning variance as long as the strike contin-
ued, and that she “would do everything within the power of
my office to make sure that the variance was defeated as long
as the strike continued.” Lowry objected to her approach, and
responded that it was “inappropriate” to connect the two
matters - the strike and the ULURP proceeding. In the next
four months, Quinn had about two similar conversations with
Lowry and McDonald.
In mid May, Quinn told Lowry that she would be “lobby-
ing” her colleagues to vote against the variances requested by
the Museum, and Lowry again told her that the “linkage”
between the two matters was inappropriate. Quinn stated that
she told Lowry and McDonald that her lobbying activities
were “going well.” Quinn believes that she told Lowry that
she was urging her colleagues to vote “no” at the upcoming
Manhattan Borough Board hearing.
Quinn testified that on August 23, one day before the
Manhattan Borough Board hearing, a meeting was held with
Manhattan City Council representatives, Museum officials
including Lowry, Union representatives, and certain residen-
tial neighbors of the Museum who objected to the larger new
building’s expected interference with their homes. Lowry
spoke about the variance and the labor negotiations, and
continued to oppose any linkage between the strike and the
ULURP proceeding.
The following day, the Manhattan Borough Board held a
hearing, at which Quinn spoke against approving the vari-
ances sought by the Museum. Lowry and William Maloney,
the Museum’s building project director spoke in behalf of the
Museum. Certain of the Museum’s neighbors also spoke.
The vote was two votes in favor of approval, four against,
and five abstentions. Inasmuch as there was no majority in
favor of approving the variances, they were rejected. The
vote was advisory only, and not binding. Quinn stated that
after the vote, she lobbied against approval of the variances
with the chairs of the land use committee and zoning sub-
committee, but she did not share her views with the City
Planning Commission.
On August 29, five days after the Manhattan Borough
Board vote, a contract negotiation session took place among
the top officials of the parties at which agreement on the
major terms of a new agreement was reached. On September
5, the Museum’s trustees’ executive committee gave its ap-
proval to the expected settlement.
The following day, September 6, a City Planning Com-
mission hearing was held to consider the Museum’s applica-
tion. A number of people made presentations including
Lowry, Union president Maida Rosenstein, and Corliss.
Corliss accused the Museum of paying “little attention” to its
staff by paying them little, refusing to negotiate with the
Union, “disregard[ing]” the fundamental rights of collective
bargaining by insisting that the workers waive their right to
negotiate medical benefits, and “willfully misrepresent[ing]
the facts at issue.” Corliss stated that “until MoMA treats its
staff with fairness and respect, I find it hard to trust the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD994
promises it makes before the City Council or the City Planning
Commission.”
Maloney testified that as of September 6, the Museum was
“very confident” that its applications would be approved by the
City Planning Commission. The Museum’s only concerns at
that time were its neighbors on 54th Street and at 600 Fifth
Avenue, who threatened lawsuits which could have held up the
approval process.
On September 9, a full agreement was reached on the terms
of a renewal collective-bargaining agreement and the strike
ended. Immediately thereafter, Quinn notified the Museum that
she no longer had any objection to the Museum’s ULURP ap-
plication. Thereafter, the City Planning Commission and the
City Council approved the Museum’s applications.
b. The strike, the negotiations, and the land-use proceeding
The Union, or its predecessor, has represented the profes-
sional staff at the Museum for at least 30 years. 2 Until the cur-
rent agreement, the Respondent has been an open shop. About
20 years ago, the Union began proposing, in negotiations for a
new agreement, that a union security clause be included in the
collective-bargaining contract. The Respondent refused to agree
to such a clause since its staff had agreed years before that un-
ion membership should be the choice of the individual.3
The contract was due to expire on October 31, 1999, and ne-
gotiations began in the late summer of 1999. On about Septem-
ber 8, 1999, the Union presented its proposals, including an
agency shop, in which it was proposed that “employees hired
after the ratification of the contract pay dues or agency fees as a
condition of employment.” That proposal was rejected by the
Museum until the August 29 settlement of the contract.
The General Counsel argues that the union security issue was
of major concern to the Respondent, and therefore the Mu-
seum’s ultimate acceptance of the agency shop clause, as origi-
nally demanded by the Union, demonstrates that the Union
“won” the strike. The General Counsel argues from this that the
Respondent was embittered by the Union’s “victory,” and
sought to punish the people it believed were responsible, Corl-
iss, Geesken and Cinquina.
The employees represented by the Union had, for many
years, participated in the Museum’s health and welfare program
which covers employees represented by other unions, non-
union workers, and management personnel.
L. Robert Batterman, the Respondent’s counsel who negoti-
ated the current contract, testified that early in the negotiations,
in 1999, he understood that the Union believed that it had a
right to bargain over changes that the Museum made to the
health and welfare program. Batterman believed that the Mu-
seum had an understanding with the Union that the Union had
waived its right to bargain over such changes because of its
participation in the Museum’s plan. However, in these negotia-
tions, the Union insisted that it had not waived its right to bar-
gain about such changes.

2 In addition to the Union, four other labor organizations have col-
lective-bargaining agreements with the Museum, pursuant to which
they represent various employees.
3 Each of the Museum’s contracts with the other unions contains a
union security clause.
In February, 2000, the Respondent, as one of its new pro-
posals, demanded that the Union “continue to waive its right
to bargain over other terms and conditions of health cover-
age, provided that union staff always receive benefits identi-
cal to those offered to non-union members of staff.” Batter-
man believed that this was a major issue because the Mu-
seum required the flexibility to change its plan due to “ex-
ploding” costs. Batterman testified that in June, 2000, he
believed that the major stumbling block to reaching agree-
ment was that the Union was unwilling to compromise on the
Museum’s demand that it waive its right to bargain on
changes in the health plan.
Batterman advised the Museum that the waiver issue must
be resolved in its favor through collective-bargaining. Bat-
terman and Lowry did not believe, however, that the agency
shop clause demanded by the Union was of major concern,
but when the waiver issue was presented by the Union, man-
agement decided to “stand firm” on the agency shop clause
demand as a “trade” for the important waiver language it
sought.
The health care provision ultimately agreed to requires the
Museum, prior to making any changes in its health and wel-
fare program, to negotiate in good faith with the Union over
its proposed changes. In the absence of agreement over such
changes, the Museum retains the right to implement such
changes, and the Union waives its right to strike or arbitrate
over such changes or the implementation thereof.
Batterman testified that once the Union was prepared to
drop its demand for union security and agree to “grandfa-
ther” existing employees, he knew that the key issue of the
Union’s waiver of bargaining over health benefits would be
resolved. However, the Union’s proposal, from the start, was
identical to what the Museum agreed to following the
lengthy strike—that only workers hired after the contract’s
ratification be required to pay dues or agency fees. Accord-
ingly, nothing prevented the Museum from agreeing, from
the beginning of the strike, to the Union’s proposal. How-
ever, according to Batterman, he rejected the Union’s de-
mand in order to make it appear that it was more important
than it really was—in keeping with this, he told the news
media that if the Museum agreed to an agency shop clause,
the strike would be settled.
According to Batterman, at a point when he believed that
the Union had been weakened, he thought the time was ripe
to settle the strike, but did not know how to do so.4 In about
mid August, 2000, he contacted Bruce Raynor, the interna-
tional president of UNITE, in order to act as a mediator to
encourage the parties to settle.
As set forth above, on August 24, the Manhattan Borough
Board voted to reject the Museum’s applications for vari-
ances.
On August 29, a meeting was held with Lowry, Batter-
man, the Museum’s general counsel Patty Lipshutz, Union
president Rosenstein, Raynor, and Philip Wheeler, the re-
gional director of the United Auto Workers, who was Rosen-

4 Batterman believed that less than half the unit was striking, but,
in fact 53% of the unit employees struck and remained on strike.
MUSEUM OF MODERN ART 995
stein’s superior. This was an off-the-record meeting that the
negotiating committees were not aware of. A long meeting took
place, ending in agreement on the major issues of health bene-
fits and agency shop. Specifically, the Museum agreed to an
agency shop clause for all new employees, and also agreed that
the Union had a right to bargain over the Museum’s changes to
the health plan, and the Union waived its right to strike or arbi-
trate over such changes. A formal meeting was arranged for
September 8.
On September 5, the Museum’s board of trustees executive
committee met. In attendance, in addition to the executive
committee, were Lowry and Batterman. According to Batter-
man, he discussed with Lowry the “politics of the presentation”
Lowry would make, including the reason why agreement was
reached at this time. The committee was told the importance of
the health benefits issue, and the relative unimportance of the
agency shop agreement that had been made. Lowry also said
that he would get the board’s “attention” if he mentioned the
strike’s impact on the building project.
The minutes of the meeting, taken by Lipshutz, included the
following:
Mr. Lowry explored the possible long-term effects of continu-
ing the strike while emphasizing that, to date, these effects
had been minimal with regard to the Museum’s operations.
He asserted that if the strike continues, in all probability, it
would impact the New Building Project and the approval
processes required in conjunction with the Project.
. . . .
During the discussion [the negotiation session of August 29] it
became clear that the UAW would continue its strike indefi-
nitely unless it obtained agreement from the Museum to an
agency shop. The Museum made clear its position on the
health care plan.
Batterman testified that Lowry’s reported comment that the
strike would impact the building project was a “little puffing”
by Lowry, which was directly contrary to what Lowry had been
telling him, even in the prior week, that the strike had no im-
pact on the project or the ULURP proceeding. Indeed, Batter-
man stated that if the minutes reflected that Lowry said that the
strike “could” impact the building project and the approval
process, that would be a truthful statement. Lowry’s testimony
was similar. He said that he would have emphasized that if the
strike continued “at any length” it could have an impact on the
Museum’s ability to get the project finished. However, Lowry
further testified that, as of the date of the executive committee
meeting, the strike had “no impact whatsoever” on the building
project. Lowry sought to give the board “every reason under the
sun . . . even some very remote reasons” to support the settle-
ment which had been reached.5
Lowry told Batterman repeatedly that he was not concerned
about the ULURP proceeding. Indeed, that it was a “done

5 Lowry had been told by one of the Museum’s trustees that the
Teamsters union had advised the investment firm Goldman Sachs &
Co. that it was reviewing its investments with the firm in light of the
strike. Apparently, Goldman Sachs was the underwriter for certain
Museum bonds. Cinquina engaged in informational picketing at that
institution.
deal,” the “politics would play out,” that the politicians
would go through a “song and dance and raise as much of a
stink as possible,” but ultimately, the Museum would get the
necessary approvals. Batterman also stated that Lowry told
him not to be concerned about problems that might arise—
little “firefights” with the Museum’s neighbors on 54th
Street, or the Union “reaching” the Manhattan Borough
Board—because the City of New York would not stop the
Museum’s progress in proceeding with a $600 million ex-
pansion of the world’s premier modern art museum, simply
because of an economic strike by its union.
On September 6, one day after the Museum’s executive
committee meeting, the City Planning Commission held a
hearing on the Museum’s applications at which Corliss and
Cinquina spoke. The Union and the Museum met three days
later, on September 9, at which other outstanding issues were
resolved and the parties signed a memorandum of agreement.
Lowry denied that the September 9 settlement with the Un-
ion was related in any way to the City Planning Commission
hearing held three days earlier.
Anna Hammond, a supervisor and the director of the de-
partment of writing services, testified that in the Fall of 2000,
after the strike ended, she had a conversation with Joe Han-
nan, an editor in that department, and McDonald, the Mu-
seum’s director of government and community relations.
They discussed the reasons for the conclusion of the strike.
McDonald said “well, it got in the way of the building pro-
ject.” Hammond asked if the strike had anything to do with
the City Council hearing in early September. McDonald
answered “yes. I think that that was probably a real turning
factor for the strike.” Hannan testified that McDonald said
that “the single most decisive factor in the conclusion of the
strike was the ability of the Union and the strikers to threaten
the building project.”
McDonald denied the comments attributed to her. She de-
nied speaking with Museum management following the end
of the strike as to the basis of the settlement. She affirma-
tively stated that the strike did not get in the way of the
building project, and the ULRUP process continued on
schedule. However, she conceded telling Hammond and
Hannon that she was aware that the Union had “linked” the
ULURP proceeding with the negotiations as a “strategy” in
which it used ULURP to apply “leverage,” through public
testimony, on the Museum. I cannot credit McDonald’s de-
nial of her conversations with Hammond and Hannon. As the
director of government and community relations, it would be
expected that she would be intimately familiar with the rami-
fications of the ULURP proceeding and the effect of the
strike on that proceeding. I similarly cannot credit her testi-
mony that she did not speak with Quinn during the strike.
Quinn and her assistant Maura Keaney gave detailed testi-
mony about their meetings with Lowry and McDonald.
Lowry conceded speaking with City Council members, and
did not deny that he spoke with Quinn.
The Respondent asks me to find that it was confident in
the success of the ULURP proceeding, and that Lowry be-
lieved that the strike had no effect on the building project.
The evidence is to the contrary. Lowry admitted telling the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD996
Museum’s trustees’ executive committee that the continuation
of the strike “would” or “could” affect those proceedings, and
McDonald, its director of government and community relations,
who was involved in the ULURP matter, told Museum supervi-
sor Hammond and her assistant Hannon that the City Council
hearing was probably a real turning factor in the strike, and the
single most decisive factor in the conclusion of the strike was
the ability of the Union and the strikers to threaten the building
project. I accordingly find that Lowry was concerned and had
reason to be concerned that the strike would have an effect on
the ULURP proceeding.
c. The strike activities of Corliss and Geesken
Lowry testified that the vote of the Manhattan Borough
Board denying approval of the Museum’s applications for vari-
ances was nonbinding and “inconsequential,” and which he
believed would have no impact on the Museum’s ability to get
its zoning variances approved. He was assured of that fact by
members of the City Council, members of the City Planning
Commission, and the Museum’s own advisors. Ultimately, of
course, the City Council approved the Museum’s applications.
Lowry’s understanding was that the City Council and the City
Planning Commission would make their decisions based on
very objective criteria, and that the Museum had an “extremely
compelling” case, which had received much preliminary sup-
port from the members of those two bodies who were strong
supporters of the project. Specifically, Lowry spoke to the
chairman of the City Planning Council, and the council member
who was chair of the subcommittee on land use, and other City
Council members. He was assured by all of them that the City
of New York was “completely behind” the Museum’s applica-
tion, and that it could expect such approval in due course. In
those discussions, the matter of the vote of the Manhattan Bor-
ough Board was not a topic, but earlier in the process he was
told that the vote of such body was inconsequential. Lowry said
that the Museum was “focused” only on the City Planning
Commission, and the City Council vote.
Lowry spoke at a hearing before the City Planning Commis-
sion on September 6. He saw Corliss at that hearing, but did not
hear her speak. He became aware, thereafter, that Corliss had
spoken against the variance at that hearing. He testified that he
did not resent the staff for striking, or hold it against anyone
after the strike, because they had a right to do so.
Lowry did not believe that the strike damaged the Museum,
but conceded that it “was not a good thing either.” The Mu-
seum remained open during the strike, but several programs
were cancelled, such as the twice-weekly summertime per-
formance of Julliard School students who refused to cross the
picket line, a benefit concert featuring Sheryl Crow who re-
fused to cross the picket line, and the summer film series. Cin-
quina estimated that about 10% of the visitors did not patronize
the Museum because of the strike. Building project manager
Maloney testified that the strike and the picketing did not inter-
rupt any demolition work or construction work.
Corliss’ strike activities which were a matter of public record
included her testimony at the City Planning Commission, set
forth above, and quotations of her comments regarding the
strike which were reported in the media, and articles in Time
magazine on August 14, 2000 which Lowry read, the Village
Voice dated June 13, 2000, and her comment in the August
25, 2000 New York Daily News which stated that “the bor-
ough board’s action could pressure museum management to
resolve the labor dispute before the full Council takes up the
zoning issue in about two months.” Geesken was a picket
captain during the strike.
Following the end of the strike, Corliss and Geesken re-
turned to their regular duties in the Film Stills Archive (FSA)
and continued work there until their layoffs16 months later.
During the strike and during their return to work, no one in
management said anything to them about their strike activi-
ties, Corliss’ testimony at the City Planning Commission
hearing, or the articles in the media.
3. The film stills archive
a. The collection
The Museum is comprised of seven curatorial divisions,
one of which is the Film and Media Department whose chief
curator is Mary Lea Bandy. The Film and Media Department
includes five sub departments: film stills archive, exhibition,
archive, film study center, and the circulating film and li-
brary. The primary collection of the Film and Media De-
partment is its original films, consisting of some 22,000 films
from the 1890’s to the present.
The Film Stills Archive (FSA) is essentially a collection of
visual images and other items relating to films from the ear-
liest silent movies and onward, still photographs of films
being made, portrait photos of film stars, and photographs of
filmmakers. The collection is vast, comprising about four
million black and white photo prints, 500,000 slides, and
200,000 negatives contained in about 145 file cabinets. There
are also about 70 to100 boxes of materials obtained over the
years that have not been filed.
The FSA employed two individuals, Corliss, who joined
the Museum’s Film Department in 1967, and then transferred
to the FSA as an archivist. She began as a curatorial assis-
tant, and then became assistant curator, a position she has
held since 1985. Her assistant, Geesken, is a cataloger, hav-
ing been employed in the FSA since 1983.
The collection is used by scholars, teachers, academics,
film makers, photo editors, art directors, newspapers, maga-
zines, researchers and writers, for research and as illustra-
tions in their publications. MoMA staff also had access to,
and used the FSA for its publications. The archive is not
open to the public as a gallery would be. Rather, individuals
having a bona fide purpose in using its resources make ap-
pointments with Corliss and Geesken. Corliss estimated that
about 1000 individuals visit the FSA each year, and an equal
number of people utilize the FSA through e-mail and fax
orders.
In a MoMA publication, Bandy was quoted as saying that
“our colleagues doing research in film history and just about
every other writer on film depend on our still photographic
archive, one of the richest and most comprehensive of its
kind.” The Museum has referred to the FSA as “world-
renowned.”
MUSEUM OF MODERN ART 997
Corliss and Geesken select the stills sought by the user, dur-
ing an in-person visit they monitor the user’s examination of
the stills, and take orders for copies, which are sent to a lab
outside the Museum. They send the copies to the user, and issue
invoices and receive payments for the copies. They also main-
tain the collection by examining the stills for evidence of dam-
age or fading, and when new stills are received, catalog and file
them. Corliss has also designed and installed 41 exhibitions at
the Museum.
b. The renovation of the Museum and its affect
on the FSA
1. The placement and subsequent removal of the FSA
Glenn Lowry, the director of the Museum, was hired in1995.
The renovation of MoMA had been discussed even before his
hire, but shortly after his employment the project began in ear-
nest. By 1996, an architect was retained, and it was apparent
that the Museum would be demolished and totally renovated.
Accordingly, two main activities were called for at that time: a
determination as to where the collections then housed in the
Museum would be placed during the renovation, and a study of
how much space was needed for the Museum’s departments in
that new space.
In August, 1999, the Respondent purchased the Swingline
Staple factory in Long Island City, Queens, a 160,000 square
foot building. The facility, later named MoMA QNS, was ob-
tained for the initial purpose of storage and research, with the
staffs of the relocated departments working there.6 The FSA,
both the collection and its two-person staff, was included in the
early plans for MoMA QNS, and was scheduled to be installed
on the mezzanine of that building. Unlike certain other depart-
ments and staff, which were expected to return to the 53rd Street
location of the Museum upon its renovation, the FSA and its
staff were to remain at MoMA QNS.
In the last half of 1999, it was decided that with the closing
of the Museum for at least two years, MoMA should continue
to have a cultural presence in New York, and that MoMA QNS
should be utilized to present exhibitions as well as store the
various collections.
There was no immediate affect upon FSA of the decision to
mount exhibitions at MoMA QNS, and in fact, on September
29, 1999, the architect, Scott Newman, prepared a sketch of the
proposed FSA layout, which included about 1900 square feet
on the mezzanine of MoMA QNS. On January 10, 2000, New-
man had begun identifying and incorporating the Museum’s
needs for exhibition space into his design for MoMA QNS. On
March 8, 2000, he identified Visitor Services as an area requir-
ing space at MoMA QNS. By April 26, 2000, Newman was
attempting to finalize the layout for the FSA.
Newman was scheduled to meet with Corliss on April 28 to
review final plans for the FSA at MoMA QNS. However, on
that day the strike began, and the meeting did not take place.
During the strike, on July 27, Bandy approved a floor plan for
MoMA QNS, which included space for the FSA. Bandy testi-
fied that she regarded the FSA as a “photo service” and that all

6 The move to MoMA QNS of artwork and staff took place between
March and August, 2002.
photo services of the Film and Media Department, including
the digital imaging area, and the archive of the history of
MoMA which includes photographs, should be kept together
in MoMA QNS. She believed that MoMA QNS could be a
recognized research facility, to which users could visit and
easily perform research. Lowry told Bandy that any area that
needed to be housed in its entirety, such as the FSA, would
go to MoMA QNS.
The General Counsel argues that Corliss’ strike activities
were a motivating factor in the Museum’s actions, made after
the strike ended, to (a) decide not to locate the FSA at
MoMA QNS (b) move the FSA to Hamlin, Pennsylvania and
(c) close the FSA and lay off Corliss and Geesken.
In analyzing the General Counsel’s contentions, it is im-
portant to identify the sequence of events that occurred re-
garding the renovation and the intended use of MoMA QNS,
during and after the strike, which ran from April 28 through
September 9, 2000.
In an August 22, 2000 memo, the Museum’s construction
department noted that the MoMA QNS’ budget of $15 mil-
lion had been increased to $22 million due to the addition of
the mezzanine. Architect Newman testified that when he
received that memo, he became aware that Lowry had placed
a “hold” on the MoMA QNS project by reevaluating the
plans. Newman was asked to propose measures to bring the
project within budget, and in late September, he began work
on a proposal.
The strike ended in early September, 2000, and one month
later Corliss asked Karen Davidson, the Respondent’s deputy
director of policy, planning and administrator and the Mu-
seum’s prime liaison to the building project, to bring her up
to date regarding any changes to the FSA floor plan. David-
son replied on October 9, that she would see if she could
arrange another appointment with Newman to review the
plans. On October 13, Davidson told Corliss that she spoke
with Newman, and that during the summer several meetings
took place concerning “departmental layouts” for the MoMA
QNS building and another building in Long Island City, and
that “subsequently, construction issues on 53rd Street as well
as budget issues for MoMA QNS have caused Glenn
[Lowry] to re-visit all plans for spaces and locations. He will
assemble a team to address these. So for now, everything is
on hold.” Clearly, these references to a “hold” related to the
budgetary concerns for the continuation of the MoMA QNS
project, and not, as the General Counsel argues, to the strike
activities of Corliss and Geesken.
On October 22, Newman issued a memo containing 16
proposals to reduce the estimated construction cost of
MoMA QNS by $5 million. They included the deletion of the
mezzanine where the FSA was scheduled to be installed, and
a recommendation that space outside the Museum’s proper-
ties be leased for the FSA. It was further noted that a deletion
of the mezzanine would require that space be leased for col-
lection storage and for the Paper Conservation lab. It is clear
that focusing on the removal of the mezzanine was consid-
ered as a way to reduce the budgetary increase resulting from
its installation, as set forth in the August 22 memo. Accord-
ingly, I find no improper motive in the attention given to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD998
mezzanine inasmuch as the August 22 memo was generated
before the Manhattan Borough Board hearing and Corliss’ later
remarks at the City Planning Commission.
Newman said that he did not discuss any of the proposals
with MoMA’s personnel before he wrote the memo. He made
these proposals in the hope that none would be approved since
their elimination would reduce the functionality of the facility.
Indeed, it appears that their very proposal invited their rejec-
tion, as follows: (a) delete new elevator which would require
larger art works to be transported outside when moved between
floors (b) delete sprinkler system and reduce security systems
(c) reduce the size of air conditioning which would cause the
building to be hot on hot days. Newman estimated that many of
the changes would result in a delay in the construction start
date, amounting to a loss of $200,000 per month.
Two days later, on October 24, a meeting was held at which
Lowry, Davidson and construction personnel were present. It
was agreed that only four of the sixteen proposals would be
studied by the design team with the MoMA staff before final
decisions were made. One of the proposals was to delete a por-
tion of the mezzanine, and relocate the FSA to the Museum’s
state of the art Film Preservation Center in Hamlin, Pennsyl-
vania. Newman testified that during those discussions, there
was no mention of the strike or anyone’s participation therein.
Lowry testified that during that discussion, when the partici-
pants considered where the FSA could go if the mezzanine was
eliminated, Hamlin was discussed. Either Lowry or Davidson
mentioned Hamlin as a possible destination for the FSA. Ham-
lin is located 100 miles, and a two hour drive from Manhattan.
The General Counsel notes that this revised proposal con-
cerning the mezzanine and the FSA differed markedly from
Newman’s earlier proposal. Whereas, the original proposal
required the deletion of the entire mezzanine and the conse-
quent loss of space for three areas, the revised proposal recom-
mended a deletion of only that space slated for the FSA. It must
be pointed out, however, that collection storage would also be
moved off the mezzanine and stored in the space allocated for
the Study Center and Conference Room. Maloney, the Mu-
seum’s building project director, stated that greater savings
would be achieved if the entire mezzanine was deleted as op-
posed to only a part of it.
With respect to these proposals, it must be emphasized that
Newman, without input from Museum personnel, made the
initial proposal to delete the entire mezzanine.
On December 4, 2000, the Museum’s Board of Trustees
voted to increase the budget for MoMA QNS, thereby making
it unnecessary to implement any of the four proposals, except
for a rooftop revision. Accordingly, at that time the FSA was
scheduled to be installed on the mezzanine at MoMA QNS as
originally planned.
Nevertheless, in a “Draft Relocation Plan” distributed in De-
cember, 2000, the FSA was the only department not listed.
Other departments were listed with their relocation date and
destination. The General Counsel argues from this that, by De-
cember, 2000, a decision had been made, probably by Lowry,
that the FSA would be removed from MoMA QNS and relo-
cated to Hamlin, notwithstanding that the Board of Trustees
had voted to increase the budget and, in effect, save the space
allocated to the FSA at MoMA QNS. Therefore, according to
the General Counsel, the Museum had decided to take this
action for reasons unrelated to any space or budgetary con-
sideration.
Michael Cinquina testified that on January 31, 2001, at an
all-staff meeting, he asked Lowry why the FSA was absent
from the December, 2000 Draft Relocation Plan. Lowry
replied that Bandy was “pondering the future” of the FSA,
and looking for off-site locations, adding that there was no
room for it at MoMA QNS, and that there would be “security
problems” in its operation there.
Lowry testified that in answer to the question, he said that
he was not certain where the FSA would be located because
other “pressures” had begun to develop concerning finding
appropriate space for a “number of functions” at MoMA
QNS, and that he had become aware that the FSA might not
be able to be accommodated there. Lowry added that every-
thing was in a “state of flux,” and he could not assert that it
would be located at MoMA QNS, adding that everything was
under consideration. He also stated that he had become “in-
creasingly convinced” that it was going to be “extremely
difficult to accommodate everything that everyone wanted,
including the FSA.” Lowry also may have said that Bandy
was looking for an alternate location for the FSA. Davidson
agreed with Lowry’s testimony that he was not definite as to
whether the FSA would be located at MoMA QNS.
Corliss was informed of Lowry’s January 31 statement,
and informed Davidson in an e-mail that she was told that
Lowry mentioned at the meeting that “the location for the
Spring 2002 move of the [FSA] would not be in the MoMA
QNS building, but rather in an off-site location unknown at
this time.” Corliss asked for an explanation as to the “future
plans” for the FSA. Davidson replied: “Your information
was correct; it is not clear where Film Stills will be located
once this building is closed for renovation.”
Bandy testified that, as of January 31, she had thought
about Hamlin as a possible location for the FSA, but did not
recall if she discussed her thoughts with anyone. She denied
that she was “actively” looking for alternative sites at that
time.
On February 15, Geesken wrote to human resources direc-
tor Olon (Oz) Zager, asking about the future of the FSA. Her
letter stated that Lowry said, on January 31, that there was no
space for the FSA at the MoMA QNS building, and that
Bandy was looking for another location. Geesken’s letter
closed by asking whether a new location had been found, and
what happened to the space that was designated for the FSA
at MoMA QNS. Geesken did not get a written reply, but
testified that a few days later, Zager told her that there was a
lot of “jockeying for position for space in the MoMA QNS
building, and that we had been jockeyed out of our space.”
Geesken asked him who had received the FSA space at
MoMA QNS, and Zager did not reply. Geesken’s testimony
was uncontradicted.
The evidence set forth above demonstrates clearly that as
of January 31, Lowry had decided that the FSA would not be
located at MoMA QNS. First, I credit Cinquina’s testimony
that Lowry said on that date that there was no room for it at
MUSEUM OF MODERN ART 999
that location. Lowry’s testimony that he had become “increas-
ingly convinced” that it would be extremely difficult to ac-
commodate the FSA there strongly suggests that a firm decision
was made by then. Davidson’s e-mail to Corliss that her infor-
mation was correct, in reply to Corliss being told that the FSA
would not be at MoMA QNS, supports such a finding. Finally,
Geesken’s letter only two weeks after the all-staff meeting
quoted Lowry as saying that there was no space for the FSA at
MoMA QNS. This was met by Zager’s response to Geesken
that the FSA had been “jockeyed out” of its space. Accord-
ingly, Lowry’s January 31 comment that the FSA would not be
at MoMA QNS is consistent with the December, 2000 Draft
Relocation Plan which did not list any plans for relocation of
the FSA to MoMA QNS.
The evidence further suggests, as set forth below, a finding
that there was no business justification for Lowry’s statement
on January 31 that there was no room for the FSA at MoMA
QNS. The space allocated for the FSA was ultimately replaced
by a projects room for the unframing project, space for Visitor
Services staff, and a curators study area.
Lowry testified that Bandy had been “urging us as we were
going through the exercise throughout late 2000 and even into
2001 as to what to do to find space in MoMA QNS to accom-
modate the functions that were going to be necessary as a result
of the exhibition program; and therefore, displacing other func-
tions to try and keep the FSA at MoMA QNS. And I ultimately
decided that we needed that space for other more pressing mat-
ters” which was dealing with the exhibition program that was
added to the building. However, Bandy testified that in early
January, 2001, she believed that the MoMA QNS mezzanine
had been retained and the FSA would be installed there.
Bandy stated that in 1999, when the plans for MoMA QNS
were first modified to provide for exhibition space, the space
needs for the Visitor Services Department were underestimated
in that its managerial and supervisory staff were at first deemed
to be unnecessary at MoMA QNS. Later, from January through
March, 2001, when the FSA was still included in MoMA QNS,
it was believed necessary to have those staff at MoMA QNS.
Additional space was also needed for an employees’ lounge,
Acousti-Guide equipment, cashiers’ area, and storage space for
floor mats, signs and stanchions. In addition, according to
Bandy, the original plans did not take into consideration the
unframing project. That project involved removing the frames
from drawings at MoMA QNS and storing them there until they
were returned to the renovated museum where they would be
stored in an unframed state. The unframing project was ex-
pected to take about two years to complete, and was planned to
take place in a projects workroom on the mezzanine in prox-
imity to the drawings and paper conservations areas.
The General Counsel argues that all these needs were either
already accommodated, could easily have been accommodated
without the removal of the FSA, or were not necessary. In sup-
port of his theory, architect Newman testified that as of January
10, 2000, the plan for MoMA QNS included an Acousti-Guide
office, and storage for brochures, stanchions, mats and wheel-
chairs, items which Bandy stated required additional, un-
planned for space in 2001.
The General Counsel further argues that the unframing
project and the additional Visitor Services personnel could
have been accommodated without the removal of the FSA –
by changing the FSA file cabinet layout used to store the
collection more than half the floor space in the collection
storage room would have been available for the unframing
project, while the Visitor Services personnel could have been
housed in the space designated as a “work area” for the FSA.
On February 23, 2001, Cinquina e-mailed Zager with a re-
quest for an update on Bandy’s “search for sites to relocate
the Film Stills Department.” He made follow-up requests for
such information, but apparently received no response from
Zager.
An architectural drawing dated March 7, 2001, showed the
FSA as still occupying its planned space on the mezzanine at
MoMA QNS. This would tend to show that a final decision
had not yet been made to remove the FSA from MoMA
QNS. However, Newman testified that all that this shows is
that the architects had not yet been told by the Museum that
the FSA would be removed from the mezzanine.
Newman’s implication is borne out by what occurred next.
Corliss testified that only five days later, on March 12,
Stephen Weinstein, the Museum’s move-scheduler, men-
tioned that a decision had been made concerning the location
for the FSA, but that he was “not at liberty” to disclose its
location. Corliss e-mailed Bandy, with a copy to Davidson,
advising them of this new information, and asking for a re-
sponse. Bandy, who had just begun the actual move of her
department from the Museum, replied that she would meet
with Davidson as soon as she completed the current moves.
Corliss inquired whether Bandy knew the new location of the
FSA. Bandy answered on March 14, “when I know, you’ll
know. I will ask Karen [Davidson] to meet with us asap, next
week, to review. I am making every effort to review every
location for every area of our department, and to adapt as we
go along to the beat of the project. This is what we have done
with shipping and the study center.” Corliss apologized for
the “panic,” saying that, obviously she was “misinformed
that the FSA space had already been determined.”
Bandy testified that plans for MoMA QNS were in a “con-
stant state of flux,” and that between March 14 and April 30,
she wanted the FSA to remain at MoMA QNS, and asked
Lowry in mid April about that possibility. He did not believe
that the FSA could remain on the mezzanine at MoMA QNS.
Bandy was disappointed with the news. Bandy also asked
him whether space could be rented in Manhattan for the
FSA, but was refused by Lowry who said that the Museum
could not incur any additional storage costs. It should be
noted that up until that point MoMA had leased 12 locations
for its collections in the amount of nearly $1 million per
year, and it had been decided that the Museum would reduce
its leased holdings thereafter and not incur any new rental
costs.
On April 30, 2001, Lowry sent an e-mail to Bandy in
which he stated that “we have spent the last couple of months
reviewing space allocations at MoMA QNS and I want to
now confirm that we are unable to accommodate Film Stills
there. I know you have already begun thinking about alterna-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1000
tive locations and I must say the more I think about it the more
sense it makes to me to take advantage of the space that we
have at [Hamlin] for this material. . . .” Lowry testified that by
April 30, he had decided that the FSA should be relocated to
Hamlin.
The important question thus becomes what caused Lowry to
announce to the staff on January 31, 2001, and tell Bandy on
April 30 that the FSA would not be located at MoMA QNS.
The General Counsel argues that his decision was motivated by
the strike activities of Corliss, including the Museum’s settle-
ment of the strike on terms favorable to the Union five months
earlier. The Respondent argues that business decisions justified
the relocation of the FSA, including the need for space for the
unframing project and Visitor Services staff in that portion of
the mezzanine previously allocated to the FSA.
Newman testified that a need for an unframing project was
identified in 1998, and the paper conservator recommended that
project in late 1999 or early 2000.7 In late Spring, 2000, he
received a proposal from the paper conservator. In late 2000 or
early 2001 he was asked to seriously consider trying to accom-
modate that project, and his search for space for that project
continued into 2001. Jennifer Russell, the Museum’s building
project coordinator with Davidson, asked Newman to look for
space for the project in the Drawings Department, because a
contiguous workspace for the drawings and their unframing
would better protect the drawings from damage.
Newman stated that he looked at other areas for the project
but found them unsatisfactory. At first, he did not consider the
space allocated for the FSA for such a use because that space
was too large for the project, and if he took only some of the
FSA space, the collection would be separate from the staff area
which would not be workable. In determining whether certain
areas would be suitable for the unframing project Newman
“communicated . . . and tested out those ideas with museum
staff.” In doing so, he obtained the opinions of the departments
which would be impacted by the inclusion of the project in their
space.
During Newman’s search for a place for the unframing pro-
ject, other space needs came to his attention. The first was the
Visitor Services Department staff space. Newman stated that in
March or April, 2001, Davidson and Diana Simpson, a supervi-
sor in the Visitor Services staff, told him that Visitor Services
needed more space. The Museum left it to Newman to identify
and recommend space for these additional needs and he then
made proposals for the Museum’s review. He considered
whether the first floor would be suitable for such space, but
rejected it. He identified the FSA area as a possible space for
Visitor Services staff because the Visitor Services’ space needs
were more closely related to the space that was to be occupied
by the FSA, and the location of that space made it amenable to
the placement of the Visitor Services staff. Davidson testified
that Newman told her that the mezzanine was the best space to
locate the Visitor Services staff. Similarly, the FSA space for
the unframing project would be proximate to the drawings col-
lection from which the framed drawings would come, and into

7 On January 3, 2000, a memo suggesting an unframing project was
sent from the Drawings Department to Jennifer Russell.
which they would be returned. During his consideration of
that space, Newman did not tell Bandy that the FSA may be
eliminated from the mezzanine so that other uses may be
made of that area. Likewise, during the time that he at-
tempted to identify space that might be put to these other
uses, he kept such information “internally” within the archi-
tectural firm. “Until we felt that we had a viable proposal, it
didn’t come out.”
Newman also stated that in about March, 2001, when he
searched for space for the unframing project and the Visitor
Services staff area, he was advised by Milan Hughston, the
head of MoMA’s library and archives, that he wanted a cura-
tors study area at the MoMA QNS facility because the li-
brary in the Factory, the other building in Long Island City to
which various departments were relocated, was too small to
accommodate curatorial staff research. Hughston asked
Newman for a study area, and thereafter Newman told
Davidson that a new need had been identified.
Newman testified that, in considering the FSA space at
MoMA QNS for these other uses, he was aware that if the
FSA would not be placed at MoMA QNS, the Hamlin Pres-
ervation Center could be used to receive the collection.
Finally, in about late April, 2001, Newman proposed to
Davidson and Russell that he had other uses for the space
allocated for the FSA at MoMA QNS. Between that meeting
and July, 2001, the FSA space was removed from MoMA
QNS and in its place space for Visitor Services staff, a pro-
jects room for drawings and the unframing project, and a
curatorial study area were allocated there. Newman testified
that after determining that the FSA would not remain at
MoMA QNS, he did not search for any places at MoMA
QNS in which the FSA could be placed since there was no
other available space.
Newman stated that while deliberating the use of the FSA
space for other purposes, and prior to making his late April,
2001 proposal, he did not discuss with any Museum person-
nel the utilization of the FSA space for other purposes. Fol-
lowing the presentation of the proposal, which he was asked
to implement by Davidson and Russell, Newman then spoke
to the Visitor Services Department to find out specifically
what their needs were so that the space could be laid out, and
then the drawings were done.
The General Counsel argues that inasmuch as Newman
testified that, prior to late April, 2001, he did not raise the
possibility of using the FSA for some other purpose with
anyone in Museum management, coupled with Museum’s
witnesses’ admissions that it was not until March or April,
2001, that anyone in Museum management had any reason to
believe that the mezzanine at MoMA QNS which had been
designated for the FSA would be used for any other purpose,
therefore, no one in Museum management had any reason to
believe, in December, 2000 and January, 2001, that the FSA
might not or would not have space available for it at MoMA
QNS.
Accordingly, the General Counsel argues that Lowry’s
testimony that the Museum had been aware in January, 2001
through March, 2001 that the space allocated to the FSA on
the mezzanine at MoMA QNS might be needed for other
MUSEUM OF MODERN ART 1001
uses was false. Lowry testified that in late 2000 into 2001,
Bandy spoke to him about the need to find space at MoMA
QNS to accommodate the functions which were necessary due
to the addition of the exhibition program, but at the same time
keeping the FSA there. The General Counsel argues that
Lowry’s testimony is in conflict with Newman’s, who said that
he did not raise the possibility of using the FSA space on the
mezzanine for other purposes until late April, 2001. The Gen-
eral Counsel also argues that Lowry’s testimony is at odds with
Bandy’s, who stated that she believed, as of early January,
2001, that the FSA space had been retained.
Bandy testified that Davidson told her in early Spring, 2001
that the FSA space was being “actively considered” for other
purposes, and that sketches involving a “redesign” of the mez-
zanine to accommodate other uses for the FSA space were
planned.
The evidence supports a finding that Lowry’s April 30, 2001
e-mail to Bandy announcing a decision that the FSA would not
be located at MoMA QNS was prompted by Newman’s inde-
pendent search and discovery of space at that location to ac-
commodate other uses. Thus, I credit Newman’s testimony that
he first considered the FSA’s space for the unframing project,
then rejected it as being too large, but then, as additional uses
such as for the Visitor Services staff and curatorial study area
were identified, he settled on the FSA space as the logical place
for all those uses. I also credit Newman’s testimony that during
his examination of areas in which to place these services, he did
not mention to Museum personnel that he was considering the
use of the FSA area. Finally, his presentation of a proposal to
the Museum in late April coincides with Lowry’s message to
Bandy that the FSA could not be accommodated at MoMA
QNS.
I reject the General Counsel’s argument that the FSA could
have been accommodated at MoMA QNS by the placement of
its cabinets in a different manner and moving the Visitor Ser-
vices staff to a different place. These matters were apparently
considered by the Museum’s architect, who attempted to retain
the FSA at MoMA QNS.
Although I find that the April 30 decision to remove the FSA
from MoMA QNS was not unlawful and was based on a legiti-
mate business decision, the earlier, January 31, 2001 an-
nouncement by Lowry that it would not be located at MoMA
QNS is more troubling and suspicious. As set forth above,
Lowry’s announcement at the January 31 all staff meeting came
three months before Newman proposed that the FSA’s space be
used for other purposes. Although Lowry may not have known
specifically that the FSA space would be removed, it is appar-
ent that he was apprised in January that there were space issues
at MoMA QNS. Thus, Davidson testified that at the time of the
January 31 meeting, Newman was “still working through trying
to find space for all the support activities for the exhibition, and
that he’d been receiving calls and e-mails directly. I’d received
some e-mails about space needs, and so I knew we were . . .
stretched for finding enough space to support the exhibitions.”
She stated that Newman communicated these general needs to
Lowry at a building project meeting, and she may have done
the same. It is true, as testified by Newman, that in late 2000
and early 2001 he was searching for space for the unframing
project and at that time considered the FSA space for that
project, but according to his testimony he did not share his
belief that the FSA space might be utilized for those areas
with Museum staff.
Accordingly, I find that although Lowry may have been
apprised that Newman was engaged in a search for space at
MoMA QNS for the unframing project as of January, 2001,
he could not have been aware at that time that Newman
would ultimately decide, in late April, that the FSA’s space
had been designated for that purpose. This is particularly so
since Newman first considered and rejected that space, and
then only in March, when he became aware that the Visitor
Services staff and the curatorial work areas also needed
space, he concluded that the FSA space must be relinquished.
I thus find that Lowry had no factual or legitimate basis in
announcing on January 31 that there was no room at MoMA
QNS for the FSA.
2. The relocation of the FSA to Hamlin
Bandy was on leave from the Museum at the time Lowry’s
April 30 e-mail was sent, and did not see it until her return
on about May 20. She gleaned from the e-mail only that the
FSA would not be going to MoMA QNS. She did not be-
lieve, at the time, that Lowry had decided that the FSA
would go to Hamlin. She stated that when she received the e-
mail she did not suggest to Corliss or Geesken that if they
reduced the scope of the FSA collection the FSA might be
able to remain at MoMA QNS.
Bandy stated that, as of March 14, she had not identified
any possible locations for FSA other than Hamlin. Lowry
told Bandy that Hamlin was an alternative location for the
FSA which she should take “very seriously” because it was
owned and operated by MoMA and its placement there
would incur no additional storage costs. Bandy and Lowry
spoke about the feasibility of the FSA operating in Hamlin.
She told him that she would try to “figure out how to make it
work,” but that operating the FSA in Hamlin would result in
additional costs. Lowry advised her that it could operate
there if it could be operated without incurring any additional
costs.8 Bandy stated that in May or June, she asked Lowry if
she could rent space in New York in order to operate the
FSA, but he rejected the idea since the Museum intended to
terminate all leases it had.
Bandy stated that she made the decision in late June or in
July, 2001, that the FSA would move to Hamlin. This con-
trasts with Lowry’s testimony that by the time of his April 30
e-mail he had decided that the FSA would be sent to Hamlin.
Bandy stated that from mid April to July 12, 2001, she had
not identified any possible locations for the FSA other than
Hamlin, and had thought, in a general sense, about how the
FSA could operate there. She also did not consider, until
July, the costs involved in having staff operate the FSA
there. She conceded that between mid April and October,
2001, she did not discuss with Corliss the possible operation
of the FSA in Hamlin.

8 Bandy stated that at a March or April budget committee meet-
ing, she was told that no additional expenses could be incurred in the
operation of the Film and Media Department.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1002
Corliss testified that on July 12, 2001, she met with Bandy
and Davidson, at which time Bandy announced that the FSA
would be moving to the conference room in Hamlin, essentially
because of “space considerations”—the Visitor Services de-
partment needs space—and because of the Museum’s interest
in preservation of the collection. Corliss testified that she said
that she “suspected” that the FSA would move to Hamlin, and
in fact, Geesken was considering moving there. Bandy asked
whether Corliss also intended to move, and was told that she
would move to “wherever the job is,” and looked forward to
working in the conference room, but would like to work a cou-
ple of days per week in Manhattan. Corliss added that it would
be very difficult for the FSA’s clients to have access to it in
Hamlin, and Bandy replied that when she returned from vaca-
tion after Labor Day, they would discuss that aspect. Corliss
asked Bandy if she could inform the users of the FSA about the
move to Hamlin. Bandy said that there was no need to do so at
that time, and that everything would be held in abeyance until
after she returned. Corliss testified that she agreed with Bandy
that relocating the FSA to Hamlin would “severely discourage”
its regular clients based in New York from using the archive
through personal visits.
Corliss raised the issue of the purchase or lease of a car to
commute to Hamlin, and Bandy replied that inasmuch as she
believed that such costs would be borne by the Museum, she
understood that no additional costs could be incurred by the
Museum for those purposes.
Bandy testified that by the time of the July 12 meeting, she
had not thought through the operation of the FSA at Hamlin.
She believed that its operation in Hamlin was “uncertain”—
because of the distance from the Museum there would be less
usage, it would cost more money to operate there, there was
very limited public access to the facility, and there were other
sources for the same kinds of material in the New York City
area. Bandy conceded that at the July 12 meeting Corliss asked
how the FSA would operate in Hamlin. Bandy said that films
were shipped daily from Hamlin, and that any materials could
be sent the same way. She told Corliss that there was sufficient
space in the conference room for the storage of the collection,
and believed that the staff lounge could be used by the FSA
staff as office space. Corliss testified that at the meeting, she
asked how the FSA would operate in Hamlin, and Bandy said
that she had not thought that matter through and was not pre-
pared to answer such questions, but said that they would dis-
cuss it later in the year, since she believed that the FSA would
remain at 53rd Street for one more year.
On November 13, Corliss met with Bandy and Steve Hig-
gins, Hamlin’s film archive curator.9 They discussed the possi-
ble operation of the FSA in Hamlin. Higgins said there may be
problems with its operation since Hamlin was not designed for
public access. Bandy asked Corliss to write a report on how the
FSA is operated at the Museum and how it could function in
Hamlin. Corliss gave the report to Bandy on November 16. It
outlined the space and equipment needs for the archive’s opera-
tion in Hamlin, and stressed that due to the distance from Man-
hattan, the FSA would probably lose its media client base. Ac-

9 The film archive is a separate department from the FSA.
cording to Bandy, the report reinforced her view that it
would not be practical to operate the FSA in Hamlin since
many clients would not visit the archive, and there would be
problems in transportation and communication between per-
sonnel and the users and materials. Further, in November and
December, Bandy received letters from many users of the
FSA, in which they mentioned that because of the distance to
Hamlin, they would not use its services there. At the same
time, each curatorial department had been asked to curtail its
non-essential activities, and she did not believe that it was
essential to operate the FSA at that time.
On December 10, Corliss, Bandy, Higgins, and Natalie
Hirniak, the manager of the Film and Media Department,
traveled to Hamlin. They decided that the conference room
would not be suitable for the placement of the collection
since it had many windows and was not climate controlled. It
was believed that the cabinets containing the collection could
be placed in the hallways and corridors outside the vault
area. Corliss testified that she discussed using the confer-
ence room as an office and work space for the FSA staff.
Corliss stated that neither Bandy nor the Hamlin staff spoke
to her regarding how the FSA would operate, and those dis-
cussions were “deferred.” Corliss found a “lack of enthusi-
asm” from the Hamlin staff for the operation of the FSA
there. Corliss at first believed that Bandy and Higgins were
“moving forward” with the idea of FSA becoming opera-
tional at Hamlin, and even noted that Bandy pointed out that
she and Geesken could work in the conference room. Bandy
denied telling her that. But later, Corliss came to the conclu-
sion, based on the lack of discussion during the return trip
from Hamlin, that Bandy and Higgins were not in favor of
operating the FSA in Hamlin. Indeed, Bandy testified that
she did not recall discussing how the FSA might operate
there, and was “vague” regarding whether it would be open
in Hamlin.
3. The closure of the FSA and the layoffs of Corliss
and Geesken
Shortly after her return from Hamlin, Bandy spoke twice
with human resources director Zager regarding the possible
operation of the FSA in Hamlin. By the second meeting,
after December 25, Bandy had concluded that the FSA
would not operate in Hamlin since it was not practical to
operate it so far away without supervision. She reasoned that
neither Higgins nor she would be able to supervise the daily
activities of Corliss or Geesken at Hamlin, particularly since
the manager of Hamlin, Artie Weirhans, had his “hands full”
handling the regular work of the Film Preservation Center.
Bandy conceded that Corliss and Geesken were capable of
operating the FSA in Hamlin, but that doing so required
managerial supervision regarding issues of security, access,
and shipping. She noted that at 53rd Street, Corliss and Gees-
ken were not responsible for access to and from the Museum,
the collection or delivery of mail, or the operation of the
building. She conceded not knowing how many FSA users
would require access to Hamlin, a highly secured facility,
and how much of a burden such access would cause the secu-
rity staff there. Bandy also expressed the belief that shipping
MUSEUM OF MODERN ART 1003
of FSA materials from Hamlin to Manhattan and other loca-
tions would have been an added expense for the Film and Me-
dia Department. Nevertheless she did not believe that shipping
charges were a major factor compared with the costs of housing
and transportation at a time when she was aware that no addi-
tional expenses could be incurred for the operation of the Film
and Media Department.
Zager testified that, in the December meeting, Bandy told
him that she was “struggling” with whether to keep the FSA
open in Hamlin. She told him that she always wanted to keep it
open, but now did not know whether she would be able to do
so. She told Zager that following her visit to Hamlin, she be-
lieved that many additional expenses would have to be in-
curred, and that she believed that she would have to close it.
About one to two weeks later, Bandy told him that although she
was not happy with her decision, she had concluded that she
must close the FSA and lay off its staff during the Museum’s
renovation. Her reasons included the difficulty of users travel-
ing to Hamlin, and expenses such as transportation in operating
it there given the “severe budget constraints” she was operating
under. In that regard, Bandy testified that she cut the budget of
her department, reduced certain activities, did not replace staff
who left, closed one of the theaters the department was using,
and reduced the public program.
On December 27, Union representative Cinquina requested a
meeting to discuss the relocation of the FSA. A meeting was
arranged for January 9, 2002. Zager, upon advice from counsel,
decided that inasmuch as the Union wanted to discuss the move
of the FSA, he and Bandy must tell the Union that the FSA
would be closed and Corliss and Geesken would be laid off.
Although the layoff of Corliss and Geesken was to have taken
place upon the move of the FSA one month later in February,
Zager testified that as a result of the Union’s request for the
meeting, he decided to lay off the two employees earlier than
they otherwise would have been.
At the January 9 meeting, Zager told Cinquina that the FSA
would be closed and Corliss and Geesken laid off. Cinquina
asked about other positions for them, and Zager replied that
Corliss was not qualified to do anything else at her grade level,
and management had not looked at any other positions at a
lower grade level. Similarly, management had not thought of
looking at other positions for Geesken. At hearing, Zager testi-
fied that, although he did not discuss with Bandy whether there
were other positions available for Corliss and Geesken, he be-
lieved that their skills had been exclusively in one very specific
area, and he did not pursue the concept that the skills that they
had were transferable to other areas of the Museum. Nor did he
believe that either was qualified to perform any other position
at the Museum. Bandy stated that she did not consider any
other possible positions for Corliss or Geesken at the Museum.
Theirs were the only layoffs of unit employees in the Film and
Media Department
Immediately after that meeting, Zager and Bandy met with
Corliss and Geesken, and told them that the FSA would be put
in “cold storage” in Hamlin and they would be laid off. Corliss
replied that she did not understand the reasons for the layoff.
Bandy answered that this was her decision, and that at this time,
preservation is more important than research materials or exhi-
bition, and that Hamlin had always been designed for preser-
vation. Bandy believed that, inasmuch as the primary mis-
sion of the Museum during construction was the placement
of the collection in a safe, secure environment, such mission
was accomplished in sending the FSA to Hamlin. Bandy
testified that she also told Corliss and Geesken that she did
not see how an operational program would work in Hamlin.
Corliss answered that if the reason is preservation, why are
you laying off the two people needed to maintain the collec-
tion? Bandy replied that those duties would be hers and Hig-
gins’s. Corliss offered to stay at work until the collection was
moved in order to help in Hamlin getting the FSA put in
place. Zager said they would consider that, but two days
later, on January 11, they were told to leave that day. Bandy
noted that it was her prerogative to bring the collection back
at any time, even before the renovation was completed. The
FSA was moved to Hamlin on about February 22.
Bandy decided that the FSA would not operate in Hamlin
because (a) she believed that fewer users would use the FSA
since it was located 100 miles and a two-hour commute from
Manhattan (b) Corliss and Geesken would be unsupervised
during their operation of the FSA and (c) the Museum budget
would not permit the increased costs of housing and trans-
portation by the staff of the FSA. Bandy learned in March or
April, 2001 that there was no additional funding available in
her department’s budget for the operation of the FSA. The
General Counsel notes that Bandy gave no opportunity to
Corliss or Geesken to address her concerns, or to overcome
her reasons for deciding that the FSA could not operate in
Hamlin. Rather, she simply laid them off.
The General Counsel asserts that Bandy found none of
above reasons objectionable when she discussed the possible
operation of the FSA in Hamlin with Lowry in March or
April, 2001, and therefore questions what changed her mind
in mid December, 2001 following her visit to Hamlin. In
March or April, 2001, as set forth above, Bandy told Lowry
that if there was a way to operate the FSA in Hamlin, she
would find a way. I credit Bandy’s testimony that, following
the December visit she became convinced that it could not
operate in Hamlin. However, I cannot agree that the lack of
supervision was a valid reason for concluding that the FSA
could not operate in Hamlin. In New York, Bandy exercised
little, if any, supervision of the FSA staff, and had little con-
tact with it. It operated, according to Bandy, “independently”
and she agreed with that.
James Frasher, the personal manager of the late actress
Lillian Gish, and a friend of both Bandy and Corliss who
used the FSA, testified that following the close of the FSA,
he had lunch with Bandy, at which she blurted out without a
question being asked, “I’m sorry about Mary Corliss and
Terry Geesken, but I had nothing to do with it. It was the
museum.” Bandy denied that remark. Her version of her
remarks was that she expressed her regret that they had been
laid off because she knew that he was a good friend of theirs.
In early February, 2002, an article appeared in the New
York Observor, generally criticizing the Museum’s decision
to close the FSA and lay off Corliss and Geesken. It also
criticized the Film and Media department and its leadership,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1004
specifically Bandy. It quoted Corliss as criticizing Bandy’s
appointment in 1980. In response, Bandy wrote to Lowry, stat-
ing that her staff believed that the department was “erroneously
described” and asking him to call two current staff members in
effect to offer his support for the department. Lowry replied,
suggesting a letter from the department supporting Bandy and
“perhaps indicating their lack of respect for [Corliss] may make
the strongest case.” Bandy replied that she was not in favor of
that approach.
On February 8, Higgins sent an e-mail to Lowry regarding
the Film and Media Department and the layoffs of Corliss and
Geesken:
Internally, the problem is different. The closing of the Film
Stills Archive and Mary and Terry’s layoffs happened swiftly,
and with no word from the administration. I understand that
this sequence of events was precipitated by the union itself,
but the total silence from above has, indeed, created an at-
mosphere of unease and suspicion toward the administration,
and not only within [the Union]. My evidence is, obviously,
only anecdotal and scattered, but it certainly appears to many
that the museum is trying to hide something by not making
some sort of announcement. I certainly know that this isn’t the
case, but perceptions outrun facts when one doesn’t have ac-
cess to the facts. As I said yesterday, the closing of Offset
merited more notice from the museum, and Mary’s was a cu-
ratorial position. It may well be that the time has already
passed for a statement, but this situation has made it clear to
me that when the only source of information concerning such
an action comes from the aggrieved parties, through a sympa-
thetic press, the effect on staff is pronounced.
This message from Higgins, the Museum’s film archive cu-
rator, underscores the secrecy surrounding the layoffs of Corliss
and Geesken. This stands in stark contrast to Lowry’s assertion
that with respect to layoffs caused by the renovation, he “would
have tried to assure staff that they were not going to wake up in
the morning and get a pink slip. But rather, that we would try to
have to the degree that we could as deliberative a process as
possible.” However, long-term employees Corliss and Geesken
were not involved in any deliberative process, and in fact their
layoff was scheduled to be announced upon the move of the
FSA to Hamlin. It was only when the Union pressed for infor-
mation concerning the effect of the move on the two employees
was it revealed that they would be laid off.
On July 12, 2002, a press release by the Museum stated:
To accommodate its building project, The Museum of Mod-
ern Art in early 2002 moved its film stills archive to The
Celeste Bartos Center. This move to the Museum’s film pres-
ervation center in Hamlin, Pennsylvania, temporarily re-
stricted access to the collection.
It has always been the Museum’s aim to restore public access
to the archive, a world-renowned collection of over four mil-
lion stills. Limited access to the archive is available to film
scholars who are not able to locate specific stills in other ar-
chives.
All queries will be dealt with on a case-by-case basis.
It should be noted that Corliss testified that in 1999, dur-
ing a tour of the Swingline facility, Lowry told the assembled
curators that they should use the “down-time” period of the
renovation to work on maintaining their collections. Corliss
estimated that it would take several years to examine and
integrate into the collection the 70 to 100 boxes of uncata-
logued and unfiled materials which had been received over
the years.
4. Alleged animus
The General Counsel’s witnesses testified to Lowry’s atti-
tude toward the strike on the picket line, giving examples of
him acting as if leading an orchestra to the pickets’ chants,
beckoning them to shout louder, and bowing to the inflated
rat on the last day of the picketing. Lowry denied all such
theatrics. Even assuming that Lowry engaged in such behav-
ior he was simply responding and reacting, in his own way,
to the loud picketing and the increased chanting when he
entered or left the Museum. Such a performance, if it did
occur, cannot establish animus where it does not exist.
Corliss maintained that Bandy had less frequent contacts
with her following the strike, and had difficulty having calls
returned. However, they were always civilized, cordial and
friendly, and worked together, when necessary, in a profes-
sional, businesslike manner. Bandy gave her permission to
attend the Toronto Film Festival as a juror for 10 days in
2001 on Museum time for which she was paid her salary, but
not expenses. Bandy also permitted her to collaborate with
an author on a book about film. Bandy was not required to
agree to those requests. Corliss also asserted that Lowry was
cold to her following the strike, and would not respond to her
greeting. Lowry denied doing so. Geesken also described a
similar change in attitude which was denied by Lowry.
On September 29, 2000, about three weeks after the end of
the strike, John Johnson, an employee in the Film and Media
Department, sent an e-mail to Bandy, referring to their meet-
ing the day before. Johnson wrote that he Bandy “re-
proached” him, “if not personally, then by association—for
the events of the strike and your stated perception that those
of us on strike in the Film Department were betraying, if not
you, then the Department itself.” Johnson also wrote that
Bandy said that the strikers were “hurting the Department,”
and further told him that “things were not going to be the
same from now on,” mentioning that he had been spending
too much time on the sixth floor, he was being watched, and
that working hours were from 9:30 to 5:30 with one hour for
lunch, and that she hoped he would be courteous to the non-
strikers. Johnson also quoted Bandy as saying that “some
scars would never heal but that [Bandy] wished to clear the
air and move on.” Bandy replied, saying only that she did not
believe that she used the word “betrayal, nor did I say that
you were being watched.”10 Bandy testified that she told
Johnson that the strike had been hard on the staff in that there
were “very strong feelings” in the department on both sides

10 Johnson gave a pre-trial affidavit in April, 2002 to a Board
agent. He died before the hearing opened. Although I received the
affidavit in evidence, it does not contain substantive matters beyond
the e-mail message, above.
MUSEUM OF MODERN ART 1005
of the matter. Her reference to things not being the same re-
ferred only to her desire that Johnson adhere to the established
working hours of the Museum. Johnson continued to work in
the department until his death in July, 2002. He was a friend of
Corliss and Geesken, who were beneficiaries of his estate.
As set forth above, Lowry testified that he did not resent the
staff for striking, or hold it against anyone after the strike, be-
cause they had a right to do so. Museum attorney Clark testified
that Lowry announced at staff meetings attended by all em-
ployees during the strike that the strikers are their friends and
colleagues, and they must work with them after the strike.
As evidence of its lack of union animus, the Respondent
notes, and it was stipulated, that following the conclusion of the
strike, 34 of the 120 employees who remained on strike for its
entire duration were promoted to higher positions. Twelve of
those 34 employees were no longer employed by the Museum
at the time of the hearing. Further, 37 of the 104 employees
who either did not strike or returned to work before the end of
the strike have been promoted. Ten of those 37 employees were
no longer employed by the Museum at the time of the hearing.
It was further stipulated that since July 1, 2001, the Museum
laid off 19 employees represented by the Union. Of those 19
employees, 9 engaged in the strike and 10 did not engage in the
strike. Of those 19 employees, four were employed in curatorial
departments, and only one, Corliss, held the position of associ-
ate curator.
5. The book buying department and Michael Cinquina
a. Cinquina’s union activities
Cinquina began his employment with the Museum in 1988 as
the assistant to the book buyer, and was promoted to assistant
book buyer in 1996. Cinquina was extremely active in the Un-
ion, his first position being the secretary treasurer in 1989. In
1992, he was elected steward and secretary-treasurer of the
Program Committee, a group of seven stewards who conduct
the Union’s business. He was a member of the negotiating
committee in 1993, and was the chair of the negotiating com-
mittee in 1996 and 1999. He was elected the unit chair in 1997,
and held that position until 1999, when he was elected as a
trustee of the Union and had to give up the unit chair position.
At the time of his termination in 2002, Cinquina was a trustee
of the Union, a steward of the Program Committee, the chair of
the grievance committee, and the chair of the negotiating com-
mittee.
It is undisputed that the Museum was aware of Cinquina’s
position on the Program Committee in that he attended depart-
ment head meetings in such position, and he was present at the
negotiation sessions in 1999 and 2000. He had extensive in-
volvement with Zager, the director of human resources, who
called him “absolutely aggressive” in carrying out his Union
responsibilities, and observed that he was in charge of, and
“very vocal” on the picket line.
Cinquina did not work in the Museum building on 53rd
Street, however his duties included periodic visits to the book-
store, where he picked up mail, delivered materials and checked
inventory. During the most recent contract negotiations in No-
vember, 1999, Zager suggested to Cinquina’s supervisor Rich-
ard Dobbs, that a new mail delivery system be implemented so
that Cinquina would be kept out of the bookstore—“with
negotiations heating up, we don’t need more excuses for
Michael to be in the . . . 53rd Street building.” Respondent’s
officials, including Director of Operations Joe Meany told
Dobbs that Cinquina engaged bookstore employees in dis-
cussions about the Union during work hours. The General
Counsel argues that this is evidence of the Respondent’s
animus toward Cinquina.
Museum attorney Stephen Clark did not recall Cinquina
asking him for a room at the Museum where the Union could
conduct a strike authorization vote, and also could not recall
telling him that he would hold him to the letter of the law
regarding the contract as Cinquina testified. He stated that
his relationship with Cinquina was cordial before and after
the strike.
Cinquina was extensively involved in the 2000 strike. He
was present at the picket line each day of the strike, spoke
through a bullhorn, established and dismantled the picket line
each day, inflated and deflated the large rat in front of the
Museum, was interviewed by the media, and spoke at rallies
in front of the Museum, and at the City Planning Commis-
sion hearing on September 6. He also shouted “shame on you
Mary Lea” to Bandy. Dobbs also described a conversation
with Zager during the strike concerning Cinquina, in which
Zager said “oh well, here’s your buddy out here stirring up
trouble again. Can’t you do something about that?”
Cinquina testified that in about late May, 2000, he con-
fronted Lowry on the picket line as he walked by, accusing
him of misrepresenting to his staff, certain off-the-record
negotiations, and asserting that his intention is to “bust” the
Union. Lowry did not reply, however a couple of days later,
Lowry handed him a letter which stated, inter alia, that they
both agreed that the strike should end, and that Cinquina and
his negotiating team should contact the mediators and advise
them that the Union’s position has changed on the major
outstanding issues. Lowry noted that he has insisted to his
staff that the Union has the right to strike and everyone re-
spects that right, but that Cinquina should show “similar
tolerance and understanding” by focusing on the Museum’s
proposal, rather than shouting at working staff members.
Cinquina further stated that thereafter, Lowry approached
him on the picket line and said that the strike would not end
until the Union gives up on union security, and signs a
waiver on health care. Two months later, in late July, an
alleged anti-semitic statement was made to Ronald Lauder, a
Museum trustee, by a picket who stood near Cinquina.
Lowry, who was present, accused Cinquina orally and in
writing of making the comment, and demanded that an apol-
ogy be made to Lauder.11 Cinquina denied making the com-
ment, and demanded that Lowry apologize to him for defam-
ing him.
Cinquina also testified at the City Planning Commission
hearing on September 6. His point was that since the City
had given the Museum at least $65 million toward the build-
ing project for the ostensible purpose of promoting educa-
tional initiatives, it was ironic that most of the education

11 Lauder did not know who made the statement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1006
department was on strike. He noted that the City should not
permit the Museum to continue the project when it refused to
settle its labor dispute.
Cinquina stated that his relationship with Lowry was “cor-
dial in a very superficial way,” conceding that they had infre-
quent, hallway contact, but following the strike Lowry would
not return his greeting.
Following the strike, Cinquina filed about 20 grievances,
40% of which were taken to arbitration. Museum counsel Bat-
terman stated that there had been an “avalanche” of grievances
following the strike, and more demands for arbitration, whereas
before the strike there were very few. Cinquina claimed that the
Museum was not processing the grievances expeditiously,
wanting more information about the facts of the grievance. At a
meeting with Zager and Clark, Cinquina told them that they
must establish a “foundation of trust.” Clark replied that it was
hard to trust the union when “you are filing so many frivolous
grievances.” Joe Hannan, the chair of the Program Committee,
corroborated that Clark made that comment. Hannan, who was
also active in the strike, stated that after the strike ended, Clark
asked him to become involved with a grievance filed by Cin-
quina in behalf of a striker. Clark proposed a resolution of the
grievance, and Hannan asked why he wanted to meet with him
and not Cinquina. Clark replied that he believed that Hannan
was a “rational” person, unlike Cinquina whose Union advo-
cacy had become “fanatical” and “off the deep end.”
Clark testified that Cinquina was a “little fanatical” on the
picket line, but not in his day-to-day dealings with him, al-
though in those instances he was “not reasonable,” as compared
to Hannan. Clark denied referring to the grievances as “frivo-
lous,” but did tell the Union at a meeting that the grievance at
hand was “hard to take seriously” when the Union refused to
give the Museum any facts concerning it.
Dobbs testified that in late September, 2000, after the strike
ended, he spoke with Ruth Shapiro, the director of merchandis-
ing and his supervisor, concerning the direction of the book
department. Shapiro said that she supported the mission of the
department as envisioned by Dobbs, and was happy with its
performance, but that “we were also going to have to be very
careful in our dealings with Michael going forward because the
Museum was going to be paying very close attention to any
interaction with Michael in the future.” Shapiro denied making
such comments.
Cinquina was not threatened with reprisals because of his
participation in the strike, and no management official men-
tioned his strike activities following his return to work.
b. Cinquina’s work duties
Cinquina was the assistant book buyer in a two-person de-
partment comprised of himself and the book buyer, Norman
Laurila. Prior to Laurila’s arrival in July, 2001, the book de-
partment consisted of book buyer Adam Bunney. Richard
Dobbs was the merchandise manager for books. When Bunney
and Dobbs left the Museum, in about December, 2000, Cin-
quina operated the book-buying department alone for about
seven to eight months until Laurila’s hire.
There are two main operations in book ordering, the front
list, and the back list. The front list consists of those books
which have never been carried by the Museum. The back list
consists of those books which have been ordered and sold,
for which there is a sales history.
Cinquina’s main responsibility, which comprised about
55% of his workday, consisted of ordering the back list titles
using the Lawson computer book ordering system.12 He or-
dered about 1000 titles per month. Twenty per cent of his
day involved inventory, and the movement of inventory; the
special order program, in which customers request a specific
title, comprised 10% of his day; and ordering for the Mu-
seum’s exhibitions and shows was 10%. Cinquina worked on
returns to vendors for 5% of his day, and he also negotiated
prices with small vendors. Laurila disputed this last duty,
saying that he, and not Cinquina decided which books to
return to vendors. In making such a decision, he generated an
excess inventory report, and consulted with Cinquina and the
bookstore managers, and Cinquina prepared a negative pur-
chase order based on the list given to him by Laurila.
Cinquina created orders for the back list based upon his
review of the daily sales reports. He generated daily sales
reports for each of the three locations at which books were
sold. Laurila testified that Cinquina ordered the back list
titles on his own, subject to Laurila’s buying criteria. Cin-
quina testified that the only buying criterion given by Laurila
was that if a book was selling less than four or five copies
per month, he should not continue to order it. However, Cin-
quina used that criterion only as a starting point. He stated
that he would then look at each title individually. Cinquina
considered the following factors in ordering books from the
back list. Using the sales history of the books, he considered
how the book has sold in the past, including whether it is
popular only on a seasonal basis; he analyzed the prior sales
pattern; and he considered the current exhibitions at other
New York City museums and current newspaper reviews of
an exhibit or a performance. In addition, curators of exhibits
at the Museum may request books, and members of the pub-
lic may order books. Shapiro stated that 80% to 90% of back
list ordering is determined by the sales history, and that fac-
tors subjectively considered by Cinquina such as the plans
for the future in terms of anticipated demand, will an upcom-
ing holiday affect sales, exhibition attendance, requests by
curators, books available only at MoMA, cannot be consid-
ered by any software program.
Dobbs, Cinquina and Laurila all agreed that Lawson was
not a good system in that it was not designed for retail book
operations. Cinquina said that it was not effective in ordering
books with the software that was used. It also did not address
certain problems, such as “phantom stock,” where the com-
puter states that a certain number of books are on hand, but
the actual numbers are fewer, either because of theft, misfil-
ing, or the book is in another store. Cinquina said that he had
advocated for a better system for years, and had been told by

12 Ninety per cent of the book ordering he does is back list order-
ing. Sixty eight per cent of the book ordering was for the main Mu-
seum bookstore on 53rd Street; 20% for the SOHO store, and 10%
for the Design Store.
MUSEUM OF MODERN ART 1007
book buyers before Laurila that such systems would work bet-
ter.
Dobbs wanted Cinquina to spend more time in the bookstore
working on the phantom stock issue and making customer con-
tact. However, Museum management did not want Cinquina in
the bookstore any more than necessary, and particularly ob-
jected to his engaging the bookstore staff in conversations con-
cerning the Union on work time.
Laurila conceded that it was part of Cinquina’s responsibility
to check the accuracy of the inventory due to theft, misfiling,
and the books being in the wrong place, but such was also the
duty of the bookstore staff. Laurila received numerous calls
from the bookstore staff questioning quantities of books in the
store. Cinquina disputed Laurila’s testimony that phantom
stock is discovered through the sales staff. He stated that, in a
three-month cycle, he reviews every book in the bookstore,
including its month-by-month sales reports. In making such
reviews, he notes that, for example, there are a certain number
of copies of a book on hand, but that there had been no sales
and therefore discovers the problem. Laurila, on the other hand,
stated that the bookstore staff, which was in the best position to
check the inventory, could discover those issues.
Laurila began work in July, 2001. He reports to Ruth
Shapiro, the director of merchandising and acting director of
MoMA retail. About one year after his hire, the 53rd Street Mu-
seum and its bookstore were closed during the renovation.
The General Counsel asserts that Laurila’s hire presented the
opportunity for the Museum to discharge Cinquina. He argues
that within one month after his hire, Laurila had determined,
with the approval of management, to implement a computer
software program which would supplant Cinquina’s job.
Laurila testified that during his job interview, he was told
that his duties included making sure that the bookstore was
closed in an orderly way, supervise the books to be placed in
the Design Store in SOHO that was scheduled to open in Sep-
tember, 2001, plan for books to be sold at MoMA QNS, and
plan for the reopening of the bookstore on 53rd Street. Zager
testified that he participated with Shapiro in the interviews of
Laurila. Zager stated that Laurila’s familiarity with bookstore
computer software contributed to his hire, as did his current
ideas concerning the running of a book operation. Laurila stated
that during the interviews, there was no discussion regarding
updating the computer programs, or his plans for the book buy-
ing staff. Shapiro testified that Laurila was hired because of his
understanding of the book business and art book buying, and
because she believed that he could manage the business more
profitably and in a “different way” than had been done in the
past. She also described “endless inventory control problems.”
She denied discussing inventory systems with Laurila, but did
speak with him about inventory management. Shapiro con-
ceded that she was told by Laurila “very early on—perhaps
even in the interviewing process” that a system existed which
could “significantly streamline what were very labor-intensive
systems that we were currently employing.” Shapiro expected
Laurila to evaluate how the book buying business was operat-
ing at that time, and recommend ways to improve it.
Laurila testified that upon his hire, he met with Cinquina to
determine the nature of his duties. He did not specifically in-
struct Cinquina as to what to do. They did not have a formal
meeting, but they spent five to thirty minutes each day speak-
ing about work that had to be done. Cinquina’s job duties
remained the same from Laurila’s hire until he was laid off.
Cinquina did not discuss with Laurila what his job duties
entailed. According to Cinquina, he first discussed his work
with Laurila when Cinquina went on vacation in November,
2001. He had little interaction with Laurila—they worked
two floors apart—occurring only when, twice daily, Cin-
quina picked up mail or reports from Laurila, or Laurila gave
him some papers. He stated that Laurila never questioned
any decision he made with respect to any aspect of his work.
In about September or October, 2001, Laurila became in-
creasingly aware of the shortcomings of the Lawson book
ordering system, notwithstanding that he referred to Lawson
as the “bible,” which is still being used and constantly up-
dated and downloaded each day.
c. The consideration of books-in-store (BIS)
Shapiro testified that in the past the Museum had at-
tempted to modify Lawson to fit the Museum’s needs, but
ultimately found that it did not serve the functions needed.
Shapiro stated that she was aware of Dobbs’ dissatisfaction
with Lawson, and was aware that he wanted to make that
system accommodate the Museum’s needs. She agreed with
Dobbs, but told him that she did not want to adapt a system
that was not intended for the Museum’s type of business, and
in any event he did not make a specific proposal as to how
Lawson might be adapted. Thus, no additional changes in
Lawson were pursued until Laurila introduced a software
program named Books-in-Store (BIS), which could solve
many of these problems.
Laurila spoke with Ray Martinelli, the Museum’s director
of finance and retail operations, and Michael Maegraith, the
head of the Museum’s publications department regarding
BIS. Laurila had extensive experience with BIS, which he
used for 22 years as the owner of three or four small book-
stores.13 Laurila said that he wanted to research the available
software.
Laurila researched a number of programs, but BIS stood
out, basically because he was most familiar with it, it was not
too expensive, and presented a “possible short term solution”
to be used at least through the close of the bookstore.14 He
envisioned BIS as helping him analyze and manipulate sales
data so that ordering would be based on sales history, thereby
eliminating some of the “guess work” involved in such or-
dering.
Shapiro testified that Laurila told her, in late September,
2001, that the tedious and labor-intensive book ordering
procedure could be significantly expedited by using BIS,
which could be implemented easily and could interface with

13 According to Laurila, BIS is used by 500 to 800 small to me-
dium sized bookstores in the U.S.
14 BIS monthly costs are $150 for the software, $120 of which is
paid towards its purchase, and $40 for maintenance. It also costs
$600 per year to subscribe for “pop up” books. Its installation was
done by the Museum’s Information Technology staff.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1008
Lawson. She told Laurila to investigate the utility of the system
with the Information Technology Department.
Laurila met with Maegraith and Martinelli and Bob Rocco,
from the Museum’s Information Technology department. They
were not familiar with BIS, but agreed to see if it was worth
their time to implement a system which would interface with
Lawson. About one month later, Rocco told Laurila that it was
feasible to use BIS, but with “many caveats.”
Shapiro testified that in late 2001, she was informed by the
Information Technology department that BIS could be imple-
mented with some changes to the system without a great finan-
cial commitment. At that time there was no discussion concern-
ing whether the implementation of BIS would result in the loss
of any positions. Shapiro stated that in December, 2001 and
January, 2002, Laurila believed that it would be possible to go
forward with BIS, and in January, 2002, the Information Tech-
nology Department said that it could implement it.
Shapiro testified that ultimately BIS was acquired because it
was “promoted very vigorously” by Laurila, who mentioned, in
the Fall of 2001, that he had worked with that system for many
years, and he believed it would be appropriate and inexpensive.
She stated that it was implemented essentially because it was
inexpensive, it required a minimum amount of work for the
Information Technology department, and the scope of the book
buying business was so reduced due to the upcoming closing of
the Museum, that the risk of implementing it was minimal.
Laurila testified that between February, 2002 and June, 2002,
BIS was implemented in stages. First, it was used to create an
original database, then it became able to talk to Lawson, with
Lawson telling BIS what was sold, and finally it became able to
make electronic orders.
Zager testified that he first became aware of BIS in January,
2002, in that Laurila wanted to buy software that would make
the book-buying department more efficient. Zager stated that he
was not involved in the implementation of BIS, and did not
give his approval for such implementation. James Gara, the
chief operating officer of the Museum and responsible for its
retail function, testified that he involved Zager in BIS in 2002
because he knew that he had a background in retail operations,
and Gara had just become responsible for that department.
Zager’s e-mail of January 22 supports that Gara, and not Zager,
approved the project and its implementation.
Zager stated that on about April 1, 2002, Gara told him that
Laurila was making progress on BIS, and he believed that there
was a possibility that BIS might lead to a reduction in staff,
namely Cinquina. Gara noted, however, that BIS was still in a
“pilot stage” and he just wanted to give him advance notice.
Zager said that he had not realized that BIS would result in a
reduction in staff, and that “further discussions” would have to
be held since Cinquina was a long service employee and held a
responsible position in the Union. Zager’s reason for mention-
ing this was so that Gara would review all the “implications” of
a reduction in staff.
Shapiro stated that in mid to late April, 2002, Laurila told her
that he expected BIS to operate as he expected, and that he
believed that it would eliminate many of Cinquina’s responsi-
bilities, particularly in view of the closing of the bookstore, and
in fact he was not certain that Cinquina’s job would “exist.”
Laurila outlined his reasons: the reordering of front list and
back list books would be reduced from what had been done
previously; special orders would not be continued; and Cin-
quina’s reconciling inaccuracies between invoicing and ship-
ments and movement of inventory between the warehouse
and store would be drastically curtailed due to the close of
the bookstore. In about July, 2001, the bookstore carried
10,000 titles. Following the close of the bookstore, there
were a total of 2500 titles in the back list of all the stores.
Shapiro said that she was under “great pressure” at that time
to reduce expenses and personnel.
Laurila stated that before BIS, Cinquina did back list or-
dering each day through the use of a large number of reports
which showed how many copies were sold the day before,
how many copies were on hand at the bookstore and at the
warehouse, and how many were currently on order. He se-
lected the books for such buying. Next, Cinquina generated a
purchase order, which had to be approved by Laurila, but
was not electronically transmitted to the vendor, but rather
was sent by mail, fax or phone.
According to Laurila, BIS determines which and how
many books to order. Lawson did not perform that function,
and because the orders are transmitted electronically, there
are fewer errors in shipments. Cinquina spent about 25 to 30
hours per week doing back list ordering, including following
up on such orders, and correcting problems related to such
orders. With BIS, the majority of back list ordering con-
sumes only one hour or less per week, and it does not involve
a review of daily sales reports.
Laurila testified that Lawson did not have the ability to
place electronic orders to vendors, or to prepare purchase
orders for books based on the books’ sales history. He stated
that, with BIS, it takes about one to two hours per week to
prepare a back list order, the same work that Cinquina testi-
fied took him six hours per day to perform. Laurila sets crite-
ria, for example, that he wants to maintain a one week or a
10 week supply of a specific book. BIS will then produce a
suggested purchase order, which he reviews and then uses
other information to decide whether to agree with its sugges-
tion.
Such other information includes his knowledge that a
book sold 100 copies this week because the author was at the
Museum, but fewer will be sold the following week; a book
will sell well because it is seasonal, for Christmas, but on
January 1 it will not sell; and he knows that an exhibition is
opening at another museum, or that a book has just been
reviewed in the newspaper. Thus, Laurila modifies the order
by adding or reducing the number of books ordered based
upon his personal, “subjective, intuitive” knowledge. Of
course, this is the same subjective information that Cinquina
used.
Upon his approval, the purchase order becomes final and
he sends it electronically to the vendor. The vendor immedi-
ately confirms what books it has and how many it will send.
When the confirmation is received, and fewer books will be
sent than ordered, BIS asks the user if he wants to separate
the titles that the vendor will not send, and create a second
purchase order to send to a second vendor selected by the
MUSEUM OF MODERN ART 1009
user. This “cascading order” system facilitates speedy and more
accurate ordering. Previously, with Lawson, if a vendor did not
have the book requested on the purchase order, the user did not
become aware of that when he placed the order unless he made
a telephone order, asking how many books the vendor had.
Otherwise, the user did not know how many books he would
get, or if back ordered, when the new shipment would arrive.
This uncertainty with Lawson made it much more difficult for
the book department to manage its inventory—it would not
know whether a title it ordered would ever arrive.
Laurila attributes the saving of time with BIS to his ability to
give the computer the criteria needed to suggest an order based
on the sales history of the book. It provides a “wealth of infor-
mation” including a database of nearly 2 million books. The
user need only enter four fields of information instead of the 20
done previously with Lawson.
Regarding orders for exhibitions, the curators advise Laurila
as to which books they want to be on sale with the exhibition,
he then researched the list to determine which books are avail-
able, and then gives Cinquina the list with the quantity Laurila
decided to order. Cinquina prepared the purchase order and
sends it to the vendor.
Cinquina also decided which books should be removed from
the back list, which meant that it would not be reordered, based
on the criteria Laurila gave him. Occasionally, Cinquina asked
him what number of books should be ordered, but Laurila
stated that in the course of his work, Cinquina used his discre-
tion and independent judgment in determining the back list
books to be ordered, separate from the criteria Laurila estab-
lished.
As to the front list which Laurila ordered, Cinquina entered
in the records a new vendor when one was used, he created an
individual sku for each title ordered, and generated a purchase
order in which he entered 20 fields of information for each
book ordered. With BIS, Laurila enters the ISBN book number
and four other numbers, and the rest of the fields are automati-
cally entered.
In late April or early May, Shapiro met with Gara and Ray
Martinelli regarding Laurila’s comments about Cinquina’s job.
They did not discuss his activities as a Union representative.
She stated that, based on what Laurila told her, she did not
believe that Cinquina’s position was needed particularly in light
of the continued pressure to reduce expenses and lay off em-
ployees. They discussed the fact that Cinquina was a long-term
employee, and they considered that he had great experience, but
that Laurila was developing expertise and familiarity with the
business. They also considered that Cinquina was a Union rep-
resentative, and that the layoff “would not be received well,”
however his Union activities were not a factor in the decision to
lay him off. Gara asked if the book business could be managed
with only one person. Shapiro had further discussions with
Laurila and Martinelli and she recommended to Gara that Cin-
quina’s position be eliminated.
In May, 2002, Laurila was told that the Information Tech-
nology department was confident that BIS would work properly
without interfering with Lawson. That department took about
four to five months on a part-time basis to implement and test
BIS. At the same time it was planning all the new systems
for the relocation to MoMA QNS which was to open in July,
2002.
In May, 2002, Laurila spoke for the first time with Gara
regarding BIS, who asked for a report on what BIS could do
and how it would interface with Lawson. Zager also spoke
with Gara at about that time, who told him that Laurila tested
BIS and believed that it could do the “bulk” of Cinquina’s
job. Zager again advised him that he should consider the
proposed layoff of Cinquina carefully since he believed that
there would be “ramifications” from the Union. Gara replied
that he took those aspects into consideration.
Laurila also spoke with Shapiro in that month, and told her
that he had determined, based on how BIS was working with
Lawson, that there was no longer enough work for the posi-
tion of assistant book buyer. His conclusion was based on the
use of BIS with Lawson to do the back list ordering, the
clerical aspect of the front list ordering that Cinquina per-
formed, together with the closing of the bookstore and the
fact that the Museum would be carrying fewer titles thereaf-
ter. He believed that BIS would supplant a majority or a
significant part of Cinquina’s job.
Laurila testified that no one suggested to him that BIS
would cause Cinquina’s job to be superfluous. Laurila
deemed it his obligation to keep the assistant book buyer
busy, but when he realized that there would not be enough
work, he believed that he had a duty to inform Shapiro that
Cinquina’s job would no longer be needed. Laurila stated
that not even a part time job would be sustainable among
Cinquina’s remaining duties, particularly with the close of
the bookstore and the changes brought about by BIS. Laurila
stated that, even if the bookstore had not closed, he would
have made the same recommendation concerning the absence
of work for Cinquina. Cinquina stated that with Laurila’s
arrival in July, 2001, his department was geared toward the
close of the bookstore one year later, but nevertheless, the
bookstores had daily sales targets to reach, and he worked on
that aspect, in other words, ordering the books so that they
would be sold.
Shapiro testified that she asked for details as to why BIS
made Cinquina’s position unnecessary. Laurila explained
that BIS uses daily sales levels history and current inventory
to predict, based on parameters it is given, what quantity of
books should be ordered. The parameters, which the person
inputs, includes the number of copies the Museum wants to
keep in stock for the next three weeks or two months, etc.
BIS then suggests the number of copies that should be or-
dered, and generates a purchase order. Laurila also explained
that BIS would eliminate the majority of time spent in reor-
dering the back lists, and would facilitate the ordering and
entering of front lists. Laurila did the front lists, but Cinquina
did some clerical aspects of front list ordering which Laurila
now did. Shapiro asked Laurila pointedly if he was certain
that BIS could do the majority of the work that the position
of the assistant book buyer had been doing. Laurila replied
that “it is possible.” He did not recommend that Cinquina be
laid off, and did not offer any alternatives to his layoff. Nei-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1010
ther Martinelli, Gara nor Zager asked him whether there was
sufficient work to employ Cinquina on a part time basis.
Thereafter, Zager met with Gara and Shapiro. They agreed
that BIS was accomplishing everything Laurila said it could,
and that Laurila and Gara determined that BIS replaced the
bulk of Cinquina’s job. They then discussed the effect of the
closing of the bookstore, and when Cinquina should be told that
he would be laid off. They considered offering bookstore em-
ployees transfer to MoMA’s other bookstores which would
remain open during the renovation. Cinquina was not offered a
transfer, however, because he was not employed in the book-
store. Zager believed that Cinquina was a “book specialist,” and
that given his “very narrow background,” no other appropriate
position existed for him in MoMA. Zager stated, however, that
they considered whether the Museum could “create” a part-time
position for Cinquina, but decided that there was not enough
work to justify such a position, and that the work that remained
could be shifted to other unit employees. Shapiro stated that she
was not aware of any other position in the Museum that was
available and that she knew that the retail department was try-
ing to reduce its staffing levels wherever possible. There were
no other jobs available in the retail department, and the Mu-
seum was laying off employees in the stores.
Shapiro stated that Cinquina spent much of his time attempt-
ing to reconcile inventory levels of books, invoices and pur-
chase orders for books that did not match. She believed that
ordering through BIS would be more accurate and therefore
avoid many of these problems in the future. She further stated
that missing inventory was not the root of the inventory prob-
lems.
Shapiro stated that Cinquina’s layoff was based on the fol-
lowing factors: his job duties were drastically reduced or elimi-
nated by BIS, the Museum sought to save money and reduce
expenses in every way it could, and the upcoming close of the
bookstore.
Gara reviewed the recommendations made to him by
Shapiro, and Martinelli, and made the ultimate decision to lay
off Cinquina. He stated that the reasons for the layoff included
(a) the finances of the retail department were poor (b) Cin-
quina’s position was “not required” because of the implementa-
tion of BIS and (c) the Museum was closing in early June, and
it would be losing its most profitable source of revenue, the
bookstore.
In mid to late May, 2002, Shapiro and Zager decided to lay
off Cinquina at a time proximate to the close of the bookstore.
At the same time, Laurila was told that a decision was made to
lay off Cinquina based on his assessment that BIS could per-
form the tasks he said it could do, and that there would not be
sufficient work for an assistant book buyer.
Laurila did not tell Cinquina that BIS was being considered
for use in the department, and also did not tell him that his posi-
tion was at risk of being eliminated due to BIS. Cinquina first
heard about BIS when he was laid off. Laurila testified that he
did not advise Cinquina of BIS notwithstanding his 14 years
experience in the book buying department, because Cinquina
was not knowledgeable as to BIS, and because, first, he did not
know whether it would be implemented, and then when it be-
came clear that it would be implemented, he did not consider
whether it would affect Cinquina’s employment.
The General Counsel argues that the alleged secrecy sur-
rounding the consideration of BIS, and its implementation
were part of the Respondent’s plan, initiated with the hiring
of Laurila, to discharge Cinquina. The General Counsel fur-
ther argues that BIS was suggested and implemented in se-
cret so that Cinquina would not question its implementation
or its impact on his job. In January, 2002, Zager urged that
BIS be implemented “as quickly as is feasible.” Zager testi-
fied that since he believed that BIS would be more efficient,
he wanted it in place as soon as possible. He also labeled his
e-mails in January and May, 2002 regarding BIS as “confi-
dential,” thanking those he wrote for their “discretion,” and
asking them to “keep it low key.” However, Zager testified
that there was nothing confidential about the implementation
of the BIS program. Gara denied telling Zager that BIS was a
confidential project, but did urge that it be finished so that it
would not “linger” into the opening of MoMA QNS. Laurila
stated that initially, from September, 2001 to early 2002,
there seemed to be no urgency to implement BIS. However,
the project became somewhat more urgent because the In-
formation Technology department was “getting tired” of
working on it.
Dobbs testified that, at the time of the hearing, with the
bookstore closed and only 25% of the titles being sold, with
fewer people visiting the Museum, with electronic ordering
through BIS being operated by Laurila, only one individual
in the book buying department, Laurila, is appropriate.
d. Cinquina’s layoff
On June 5, 2002, Cinquina learned that he was being dis-
charged. On that day he met with Zager and Ruth Shapiro.
Zager told him that the Museum decided to computerize the
back list ordering, and since the bookstore was being closed,
it would be carrying a reduced number of titles. Accordingly,
the administrative work in the department was being “se-
verely reduced” and he was no longer needed. Cinquina re-
plied that administrative work was eliminated from his job in
1996 when he was promoted to assistant book buyer, but that
now he makes subjective decisions in ordering books.
Shapiro then said that the department had problems with
money and space which resulted in his layoff. Cinquina an-
swered that he was only making about $33,000, and he had
no dedicated office space, but rather occupied space below
the stairway.
Although it did not have to, the Museum treated Cin-
quina’s layoff as being building-related, thereby permitting
him certain recall opportunities, which he would not other-
wise be entitled to. John Harris, whose layoff was also not
building related, was also offered the same building-related
recall options. Cinquina’s layoff letter, stated, in part, that
“the computerization of the book reorder and return to ven-
dor functions has dramatically reduced the volume of admin-
istrative work required of the Book Buying Office.” He was
further advised that “there is at least a significant possibility,
if not a probability, that your position will not exist at the
time the Museum reopens. The duties of your current posi-
MUSEUM OF MODERN ART 1011
tion may be eliminated, combined with other duties for which
you may or may not be qualified or, it may be recreated as a
part-time position. We do not envision a full-time position lim-
ited to the duties you have been performing.”
It is expected that the reopened bookstore at the Museum
will be substantially smaller than the old bookstore, both in
titles carried and in space. Maloney, the project director, esti-
mated that the space for retail sales in the renovated museum
will consist of only 60% of the space it formerly had, and books
in the new bookstore will occupy only one-third of its previous
space.
III. ANALYSIS AND DISCUSSION
A. Corliss and Geesken
1. The layoffs
The evidence establishes, as set forth above, that the ULURP
proceedings were of major concern to the Respondent. It was
essential that the Museum receive the variances and approvals
it applied for in order to successfully conclude its ambitious,
expensive renovation and expansion project on 53rd Street.
It is also clear that the ULURP process was threatened by the
continuation of the strike, as Lowry himself acknowledged to
the Museum’s trustees’ executive committee, and as established
through the credited testimony regarding Museum official
McDonald’s statements to Hammond and Hannan. Although
Lowry continued to object to the connection between the two
matters, the tie between them was obvious. I find that part of
the reason that he believed that the strike could interfere with
the ULURP proceeding was the intervention of New York City
Council member Quinn, and her determination to oppose the
applications until the strike was settled. The evidence supports
a finding that the strike was settled in response to the Manhat-
tan Borough Board vote rejecting the Museum’s applications.
Although that vote was nonbinding, Lowry was concerned
enough about the vote that he made presentations before that
Board on two consecutive days.
Only five days after the vote, a secret contract negotiation
session was held at which a tentative new agreement was made.
The timing of the session, which was held at the urging of Mu-
seum counsel Batterman, was clearly in response to the vote.
As set forth above, I do not accept Batterman’s testimony that
the time was simply ripe for agreement. The strike had been in
progress for 4-1/2 months, there was no diminution in the num-
ber of the strikers, no indication that the Union had been weak-
ened by the strike as he testified, and the Union had not
dropped its demand for an agency shop clause, also as he testi-
fied. On the other hand, Museum events had been cancelled due
to the strike, the daily picketing took its toll on attendance, and
according to Lowry the strike “was not a good thing.” Ulti-
mately the Respondent agreed to the agency shop clause origi-
nally proposed by the Union, and the Union agreed to waive its
right to strike after bargaining on changes to the Museum’s
health benefits.
The evidence supports a finding that the Respondent was
motivated to accept the terms of a new agreement, including the
agency shop clause which it opposed for decades and publicly
opposed during the strike, in order to ensure the removal of
political objections to its ULURP applications, and to assure
the approval of its applications. Under these circumstances, it
therefore follows, and I find that the Respondent bore animus
toward the Union for its attempt to delay or defeat its exten-
sive renovation plans.
I further find that the Respondent bore animus toward
Corliss who spoke at the City Planning Commission hearing
urging rejection of the Museum’s applications, and was the
subject of several print media articles critical of the Museum.
She spoke in support of the strike, and before the City Plan-
ning Commission she made a connection between the Mu-
seum’s applications and its bargaining, accusing it of negoti-
ating in bad faith, and poorly paying its employees. Although
her City Planning Commission remarks took place after the
tentative contract agreement was reached, nevertheless I
believe that she was viewed as someone who also publicly
opposed the Museum’s applications and threatened that pro-
ject. Her actions were protected and concerted. Triangle
Electric Co., 335 NLRB 1037, 1038–1039 (2001); St. Luke’s
Episcopal-Presbyterian Hospitals, 331 NLRB 761, 762
(2000).
As set forth above, the evidence establishes that when
Lowry announced on January 31, 2001 that there was no
room at MoMA QNS for the FSA, his comment was not
based upon any legitimate business justification. At that
time, no plans had been developed, proposed or adopted
which would eliminate the FSA from the mezzanine at
MoMA QNS. The architect’s proposal was not made for
another three months, in late April, 2001, to eliminate the
FSA. I accordingly find that Lowry’s announcement of Janu-
ary 31 was a pretext—“the reasons advanced by the em-
ployer either did not exist or were not in fact relied upon,
thereby leaving intact the inference of wrongful motive es-
tablished by the General Counsel.” Limestone Apparel Corp.,
255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
I find that thereafter, however, the Respondent lawfully
decided to remove the FSA from the mezzanine at MoMA
QNS, and then lawfully relocate it to Hamlin, and then close
it and lay off Corliss and Geesken.
Thus, architect Newman conducted an independent and
thorough search at MoMA QNS for space for the unframing
project, Visitor Services staff and a curatorial work room. It
is not contended that Newman’s study was prompted or ma-
nipulated by the Museum in an effort to eliminate the FSA
from the facility. Indeed, the evidence is to the contrary.
Newman did not consult with any Museum personnel con-
cerning the need to use the FSA space for such purposes. The
General Counsel alleges only that the Museum seized on
Newman’s conclusion to support Lowry’s January an-
nouncement.
I accordingly find that the Respondent, through Newman,
made an independent search for space for additional, unex-
pected uses that came to his attention, and properly proposed
that the space, formerly allocated to the FSA, be utilized for
these added services. Although no charge was filed concern-
ing the removal of the FSA from MoMA QNS, I find that,
even assuming the General Counsel has made a prima facie
showing that the January 31 announcement of the elimina-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1012
tion of the FSA from MoMA QNS was motivated by the Un-
ion’s strike and Corliss’ activities in behalf of the strike, the
Museum met its burden of proving that on April 30 it elimi-
nated the FSA even in the absence of those activities. Wright
Line, 251 NLRB 1083 (1980). The Museum’s acceptance of
Newman’s proposal was based on proper business reasons
which justified the adjustment in space.
Thereafter, the Museum decided to send the FSA to Hamlin,
Pennsylvania, and then to close it and lay off its staff. The Gen-
eral Counsel argues that those decisions were the product of the
Respondent’s secret, but ongoing purpose to eventually lay off
Corliss and Geesken.
The evidence is to the contrary. Following their return to
work Corliss and Geesken continued their normal work rou-
tines without incident until their layoffs 16 months later. They
were not the subject of any statements of displeasure at their
striking or Corliss’ testimony at the City Planning Commission
hearing. They were not subject to any recriminations or dis-
crimination until their layoff. In fact, Corliss continued to inter-
act with Bandy in a businesslike, professional way. Indeed,
following the end of the strike, Bandy gave her permission to
attend the Toronto Film Festival as a juror for 10 days on Mu-
seum time for which she was paid her salary. It may be true, as
the General Counsel contends, that serving as a juror may bene-
fit the Museum as well as Corliss, but nevertheless Bandy could
have denied permission for that activity if she was intent on
punishing her for her strike activities. Bandy also permitted her
to collaborate with an author on a book about film.
The evidence permits a fair inference that Bandy, as the head
of the Film and Media Department, had a strong interest in
keeping the department together, sought to have it remain
whole, and urged that it remain at the FSA, and was disap-
pointed that it could not do so. She also sought to rent space in
Manhattan so that it would not be sent to Hamlin, but was de-
nied permission to do so under across-the-board restrictions on
leasing space and incurring further expenses during the renova-
tion. Further, the evidence supports a finding that Bandy en-
gaged in a good faith effort to consider the operation of the
FSA at Hamlin. In doing so, she requested and obtained a re-
port from Corliss as to the FSA’s current operations, and how it
could be expected to operate in Hamlin.
In addition, Bandy traveled to Hamlin with Corliss with the
purpose of finding suitable space for the collection there, and in
a good faith attempt to consider its operation at that location. I
am convinced that if Bandy had already decided to close the
FSA and lay off its staff, she would not have involved Corliss
or traveled to Hamlin. Following her return from Hamlin,
Bandy continued to give careful consideration to the operation
of the FSA there. However, she legitimately concluded that it
could not operate at Hamlin. The trip to Hamlin convinced her
that it was not practical to do so.
Assuming I find that the General Counsel has made a prima
facie showing that the closure of the FSA and the layoffs of
Corliss and Geesken were motivated by unlawful considera-
tions, I find that the Museum’s decision to close the FSA and
lay off its staff were the result of proper business considera-
tions. Bandy’s decision was based on the distance between
Hamlin and the main users of the FSA, a factor supported by
the users themselves who said that they would not patronize
the FSA if it was located in Hamlin, the added cost of hous-
ing and transportation which would be borne by the Mu-
seum, and the lack of supervision. Although I find this last
reason somewhat implausible since Corliss and Geesken
were subject to little supervision on 53rd Street, nevertheless
there is a difference between them being on a separate floor
at the Museum and 100 miles away in Hamlin. These deci-
sions were hers, and not Lowry’s. Frasher’s remark that
Bandy told him she had nothing to do with the layoffs—that
it “was the Museum” can be explained by Bandy’s under-
standable desire to shift the responsibility for the layoffs
because of her friendship with Frasher, who she knew was
also a friend of Corliss and Geesken.
The General Counsel argues that Bandy’s reasons for not
operating the FSA in Hamlin were known to her months
before, and she kept her decision secret until the last mo-
ment, apparently to avoid a confrontation with the Union.
This theory is somewhat supported by Museum official Hig-
gins’ e-mail, set forth above, in which he states that the “per-
ception” although not the fact, is that the layoffs were suspi-
cious because they were made quickly and in silence. I can-
not, however, on this record, particularly in the absence of
persuasive evidence of animus toward Corliss during the
long period of time that she continued at work before her
layoff, conclude that the Respondent has violated the Act in
its layoffs of Corliss and Geesken.
In order to find a violation in the Respondent’s decision to
lay off Corliss and Geesken, I would have to find that a plan
was devised and implemented from the end of the strike in
September, 2000 to the layoffs 16 months later which in-
volved personnel from Lowry on down. Those involved in
such a conspiracy would include at least, architect Newman,
Davidson and Bandy. The scheme would involve the hope
that Newman would propose the removal of the FSA from
MoMA QNS, then that it would be located distant enough to
be unusable to its patrons, then that it would be found to be
impractical to operate it, then to lay off its two staff mem-
bers. On the contrary, it has not been contended that New-
man made his proposal by the use of anything but lawful,
neutral considerations. Although “there is no specified time
lag between union activity and discharge that serves to im-
munize an employer from responsibility under the Act,” such
“latent hostility” must be accompanied by a “high degree of
antiunion animus.” Marcus Management, 292 NLRB 251,
260, 263 (1989). Evidence of such animus is lacking here. I
recognize that it is possible that Lowry conceived such a
plan and implemented it, using the renovation of the Mu-
seum as a cover. However, this record does not support such
a finding. The General Counsel bears the initial burden of
proving by a preponderance of the evidence that antiunion
animus was a motivating factor in the layoffs. “Mere suspi-
cion cannot substitute for proof of unlawful motivation.”
Fierson Building Supply Co., 328 NLRB 1023, 1024 (1999).
This record contains only suspicion and inferences of im-
proper conduct from an alleged withholding of plans from
Corliss, and an alleged change in attitude by Lowry toward
her in their infrequent contacts. I similarly cannot infer any
MUSEUM OF MODERN ART 1013
animus toward Corliss and Geesken from Bandy’s remarks to
Johnson, set forth above. Her comments related to Johnson’s
work hours, and although she claimed that the strikers hurt the
department, she expressed a desire to clear the air and move on.
Her working relationship with Corliss following the strike es-
tablishes that she did just that.
As proof of the Museum’s improper motive, the General
Counsel argues that the Museum refused to discuss the future
of the FSA and refused to consider its continued operation. He
argues that Bandy did not discuss the alleged budgetary con-
straints with Corliss and Geesken, or seek their advice as to
how the FSA could operate within those alleged constraints, or
how the FSA might operate in Hamlin. On the contrary, the
evidence establishes that Bandy dealt with matters as they
arose, given her numerous responsibilities in her department
and with respect to the renovation. The fact that Corliss and
Geesken were not advised of the move of the FSA from the
time of Newman’s proposal in late April can be explained
based on the fact that the plans did not become final in July, the
same time that Corliss and Geesken were in fact advised that
the FSA would not be at MoMA QNS. In addition, as testified
by Bandy, she still sought to keep the FSA in New York and
asked Lowry, in May and June for permission to lease space
there. Further, Bandy did consult with Corliss regarding the
operation of the FSA at Hamlin, and she requested a report
concerning Corliss’ view of how it would operate there.
The General Counsel also faults the Respondent for not con-
sidering the possibility of closing the Film Study Center, and
moving it to Hamlin rather than the FSA, citing the facts that
the Film Study Center did not generate any revenue for the
Museum, unlike the FSA. Further, that the Film Study Center
served a smaller population than the FSA, and closed for part of
each year. Moreover, according to the General Counsel, inas-
much as part of the Film Study Center was already at Hamlin,
the remainder of it which was then at the Factory in Long Is-
land City, could also be moved there, and the FSA replace it at
in the Factory. The General Counsel also notes that the associ-
ate curator of the Film Study Center, Charles Silver, was op-
posed to, and did not strike, and received the only sabbatical
leave granted during Lowry’s tenure as Director. The sabbatical
was for a period of six months, from April to October, 2002. Its
purpose was a research project. It must be noted, however, that
no one was hired at the Film Study Center to replace him, and
the cost of the sabbatical was borne by department funds. Fur-
ther, the General Counsel notes that inasmuch as the Film
Study Center staff worked in both the Factory and at Hamlin,
the FSA could also be operated in that manner. However,
Bandy said that the operation of the Film Study Center by staff
in Hamlin was difficult, with the Museum paying for transpor-
tation and housing, and that had not been a satisfactory way of
operating the Center. In addition, the Film Study Center had
already moved to the Factory by the time the FSA was sched-
uled to move. It was in place there and operating there. It was
therefore understandable, even if Bandy considered such a
change, that she would want to avoid further disruption in her
department.
The General Counsel further asserts that the March, 2001
hire of Helena Robinson to work in the Film and Media De-
partment as a researcher is evidence of unlawful motive. The
department had received a $100,000 grant from Celeste Bar-
tos for the purpose of research, and $25,000 to $30,000 of
that amount was utilized as Robinson’s salary. The General
Counsel asserts that all or part of the grant could have been
used to offset any additional expenses the FSA would incur
in operating from Hamlin. It was Bandy’s prerogative to use
the grant money as she saw fit. She believed that such funds
could not properly be used to operate department functions.
2. The acceleration of the layoffs
Although I cannot find that the decision to lay off Corliss
and Geesken violated the Act, I find, however, that the Re-
spondent unlawfully accelerated their layoffs because of
union considerations and because the Union requested a
meeting in order to discuss the relocation of the FSA.
Corliss and Geesken were not scheduled to be laid off un-
til the move of the FSA on February 22, 2002. However,
because the Union in January asked for a meeting to discuss
the status of the FSA, Zager decided that, having already
decided that the FSA would be closed, he must honestly
inform the Union of that decision, and therefore was obli-
gated to tell the employees immediately.
Accordingly, Zager told the Union that the FSA would be
closed, and that Corliss and Geesken would be laid off. In-
stead of laying them off upon the close of the FSA which
was the original plan, Zager decided to lay them off that
week. Immediately following the meeting with the Union,
Zager told them that they would be laid off, and that the lay-
off would occur that week. It does not matter that the Re-
spondent acted because it believed that it had to give the
Union all the information it possessed regarding the closure.
The violation is that the Respondent accelerated the layoffs
in response to the Union’s request, and it and would not have
laid them off at that time but for that request. In fact, Zager
admitted that “as a result of the Union’s request for a meet-
ing [he] decided to lay off Mary Corliss and Terry Geesken
earlier than they otherwise might have been laid off.”
Even assuming that it was Museum policy that once a lay-
off is announced the employees are not permitted to remain
employed for any period of time because of staff morale or
other reasons, nevertheless the precipitating reason for the
acceleration of the layoffs was the Union’s request for in-
formation. Thus, the Respondent’s “primary defense, in and
of itself [that the Union prompted the accelerated layoffs]
amounts to an unfair labor practice because the events setting
it in motion were initially prompted by union considera-
tions.”
The Union’s request for a meeting concerning the status of
the FSA was the sole cause of the Respondent’s decision to
lay off Corliss and Geesken earlier than planned. Instead of
being laid off on February 22, their layoffs were accelerated
to January 11. It is an unfair labor practice for an employer to
accelerate an already planned lawful layoff because of union
considerations, or because the Union intervened in their be-
half. See Laben Electric Co., 323 NLRB 428, 432 (1997);
Yellow Freight System, 290 NLRB 1090, 1094 (1990); Hemi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1014
sphere Broadcasting Corp., 290 NLRB 394, 395 (1988); Ohio
Valley Graphic Arts, Inc., 234 NLRB 493 (1978).
No charge has been filed alleging the unlawful acceleration
of the layoffs. However, in Pergament United Sales, 296
NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2nd Cir. 1990), the
Board held that it “may find and remedy a violation even in the
absence of a specified allegation in the complaint if the issue is
closely connected to the subject matter of the complaint and has
been fully litigated.” Here, a close connection clearly exists
between the complaint allegation that the employees had been
terminated, and the question whether the Respondent violated
the Act by accelerating their termination. Further, as in Perga-
ment, here the Respondent’s official Zager admitted that he
accelerated the layoffs of Corliss and Geesken because the
Union asked about their status. The Board in Pergament based
its finding that the issue had been fully and fairly litigated on an
admission by a company official that he refused the rehire of
employees because charges had been filed. Accordingly, Per-
gament clearly compels a finding, which I make, that that the
Respondent unlawfully accelerated the layoffs of Corliss and
Geesken from February 22, 2002 to January 11, 2002.
B. Michael Cinquina
Cinquina had extensive union activities, as outlined above.
He was the person most identified with the picketing, testified
at the City Planning Commission hearing, and had two confron-
tations with Lowry on the picket line. Nevertheless, he returned
to work following the strike and continued to perform his duties
for two years until his layoff without any adverse employment
action or comments concerning the strike. He was aggressive in
his representation of the unit employees, even being called
“fanatical” by Museum attorney Clark, and he filed an “ava-
lanche” of grievances. But even assuming those grievances
were deemed “frivolous” by the Museum there is no evidence
that it took any reprisals against him for engaging in such ac-
tivities. The Respondent cannot be faulted for attempting to
prevent him from speaking to unit members about the Union
while they were working. Shapiro’s comment to Dobbs that the
Museum would pay close attention to any interaction with Cin-
quina was vague, and also occurred nearly two years before his
layoff.
The credited testimony establishes that Laurila independ-
ently utilized his experience with BIS to attempt to improve a
computer system which Cinquina and his prior supervisor,
Dobbs, acknowledged, was lacking. Perhaps Lawson should
have been modified before Laurila’s hire, but the fact that it
was not does not alter Laurila’s autonomous role in recom-
mending BIS. There is no evidence that Laurila was prompted
to find a software system which would ultimately cause Cin-
quina’s layoff. He sought to improve a system that everyone
recognized was flawed. The Museum set about in a systematic
way to test the system, a process that took months. I can find no
rush to implement the system as alleged by the General Coun-
sel. Even if there was a desire to implement BIS quickly, that
was done to coincide with the close of the bookstore, a lawful
reason.
It is clear that BIS eliminated much of Cinquina’s work in
ordering back list titles. Although Cinquina considered certain
subjective areas in “sculpting” the back list, which cannot be
performed by a computer, nevertheless Laurila believed that
given the amount of time saved by BIS in the routine order-
ing functions which was automated by BIS, he could perform
those functions alone. In addition, Laurila, as the book buyer,
lawfully determined that Cinquina need not undertake a
physical inventory of the books in the bookstore, but rather,
that task should be performed by the bookstore staff, which
is primarily responsible for that responsibility.
Accordingly, the elimination of a major part of Cinquina’s
duties through the implementation of BIS, taken together
with the close of the bookstore for the renovation project, led
to the lawful decision to lay off Cinquina. Dobbs, the former
book buyer and a witness who testified for the General
Counsel, testified that given the circumstances as they ex-
isted at the time of Cinquina’s lay off, only one person,
Laurila, was necessary to operate the book buying depart-
ment. The fact that the Museum’s exercised caution because
of Cinquina’s prominence in the Union does not alter the fact
that the decision to lay him off was based on lawful consid-
erations.
I accordingly find that even assuming the General Counsel
has made a prima facie showing that Cinquina’s layoff was
motivated by his union activities, I would find that the Re-
spondent met its burden of proving that he would have been
laid off even in the absence of such union activities. Wright
Line, above.
CONCLUSION OF LAW
By accelerating the layoffs of Mary Corliss and Terry
Geesken because of union considerations or because the
Union requested a meeting to learn the status of the FSA, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
MUSEUM OF MODERN ART 1015
Having found that the layoffs of Corliss and Geesken were
unlawfully accelerated from February 22, 2002 to January 9,
2002 because the Union requested a meeting to learn the status
of the FSA, I shall order that they be made whole for any loss
of earnings and other benefits, from January 9, 2002 to Febru-
ary 22, 2002, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987); Hemisphere Broadcasting, above.
[Recommended Order omitted from publication.]