A
National Labor Relations Board official allowed a decertification election at a party rental company that moved and downsized during the coronavirus pandemic, rejecting union arguments that the vote would be premature because the company will expand once business picks up.
Eric Schechter, acting regional director of the Newark office, called Wednesday for a vote among Broadway Party Rentals' two dozen workers on whether to end representation by
United Food and Commercial Workers Local 2013. Ample evidence, Schechter said, suggests the company won't return to its pre-pandemic complement of 90 to 130 employees any time soon.
"The union cites to a number of sources that forecast growth for the economy and the employer's industry," Schechter said. 'However, the record reflects little evidence of growth in the employer's operations."
Worker Alejandro Moya filed a petition with the NLRB's Newark regional office in late April seeking a decertification election at Broadway, currently operating out of East Rutherford, New Jersey.
The petition followed a year of tumult for the company and its workers during the pandemic. In March 2020, the company told workers it would close its Brooklyn, New York, headquarters and move to East Rutherford, laying off workers who did not want to work from the new location, according to the decision. As of a hearing this spring, the company had 24 active workers, 13 so-called pending workers the company planned to recall when business picked up, and one worker on maternity leave. In the five years before the pandemic, the company typically employed 90 to 130 or more workers, according to the decision.
Local 2013 argued the election should not go forward because the company's current workforce is not representative of its future state. The union argued the company would expand to its regular staffing levels as pandemic restrictions near their end. Among the evidence it cited was a union official's testimony that the company's chief executive officer did not say he planned to operate with fewer staff members, and the company's taking out a federal loan that would be forgivable if used to pay staff members. It also pointed to recent NLRB rulings allowing a company to withdraw from an election agreement because of pandemic-related furloughs and finding a union election petition premature because of uncertainty.
Moya and the company argued that the workers who did not opt to move are no longer part of the bargaining unit and that the company is not actively expanding. They pointed to evidence of the company's continued struggles, including cutting payroll for nonunion staff and attempting to sublease a portion of the new warehouse to boost income.
The union's argument is "unsupported by the record and is merely speculation or conjecture," Schechter said Wednesday. The only evidence suggesting the company is growing is Moya's testimony that business had picked up by 10 to 20%, he said. By contrast, the company does not have definite rehiring plans, it has more workers than business demands, and it has engaged in "numerous actions to cut costs," among other evidence, Schechter said. He added that the board cases are not relevant because the withdrawal decision did not touch on the appropriateness of the petition and the election decision applied to a bargaining unit with no active workers.
Schechter also said the pending employees aren't eligible to vote because they don't have a "reasonable expectation of recall," noting the company has no plan for bringing them back.
The company's attorney, Stanley Goodman of
Fox Rothschild, said "the regional director applied well-established criteria and reached the proper result."
The company is represented by Stanley Goodman of Fox Rothschild.
The union is represented by David Watkins of
O'Brien Belland & Bushinsky LLC.
The case is Broadway Party Rentals, case number 22-RD-276257, before National Labor Relations Board Region 22.
--Editing by Roy LeBlanc.
For a reprint of this article, please contact reprints@law360.com.