Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: Jeff Bosley
• Publication year: 2022
• Citation: Vol. 36 No. 4

NLRA CASE NOTES

AUTHORS^*

Jeff Bosley

Tyler Maffia

SEASONAL EMPLOYEES OF A FIRST-YEAR EMPLOYER ELIGIBLE TO VOTE IN NLRB ELECTIONS WITHOUT PROOF OF OFFER OF SECOND-YEAR REEMPLOYMENT

Pier 55, Inc., d/b/a Little Island, 371 N.L.R.B. 80 (2022)

In a 2-1 vote, a National Labor Relations Board (NLRB or Board) panel denied review of a Regional Director's Decision and Direction of Election for a unit of seasonal employees. The petition was filed during the employer's first year of operation, and as a result, no offers of seasonal reemployment for the second year had been extended. The Board majority found that the record still demonstrated that the seasonal employees had a reasonable expectation of reemployment and were eligible to vote.

Pier 55 (Employer) operates a public park with an amphitheater in New York City that first opened in May 2021. The 20-year lease required the Employer to organize at least twenty-one artistic events each year. The Employer employed some year-round employees, but also employed certain employees solely during the summer performance season. Offer letters for stage technicians specified that employment was temporary and would terminate on October 1, 2021. Stage technicians were told, though, that the Employer would benefit from hiring technicians who were available to return in future seasons, and the handbook provided that seasonal employees were expected to confirm interest in returning for future seasons. Theatrical Protective Union, Local No. One (Union) petitioned to represent the stage technicians and stagehands employed by the Employer on June 14, 2021. Because the park was only recently opened to the public, the Employer had not made concrete plans for future performances in future seasons. The Employer argued that the petition should be dismissed because the unit consisted entirely of short-term employees with no reasonable expectation of continued employment or reemployment.

The Regional Director found that the petitioned-for unit was appropriate and that the employees were seasonal with a reasonable expectation of reemployment. Under Maine Apple Growers, 254 N.L.R.B. 502 (1981), when deciding whether seasonal employees are eligible to vote, the NLRB looks to the size of the area labor force, the extent of employer reliance on seasonal labor, actual reemployment season-to-season, and the employer's recall preference for prior seasonal employees. The Regional Director relied on the narrow labor pool of available stagehands, the Employer's reliance on seasonal labor and lack of concrete plans to cease using season labor in later years, and the Employer's comments during interviews and in its handbook creating preference for stagehands who would return in future years. Although the recent opening of the park meant that there was no way to determine the actual reemployment season to season, the Regional Director found the unit appropriate.

A majority of a three-member Board panel denied review of the Decision and Direction of Election. Chairman McFerran and Member Wilcox...