Gimme Coffee, Inc.

372 NLRB No. 75 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Gimme Coffee, Inc., Employer and Courtney Susan Shelton, Petitioner and Workers United Local 2833 Union. Case 03–RD–271639 April 13, 2023 DECISION ON REVIEW AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY The Union’s request for review of the Acting Regional Director’s Supplemental Decision on Challenged Ballots and Certification of Results is granted as it raises substan- tial issues warranting review. The issue in this case is whether employees who had been temporarily laid off due to store closures in response to the COVID-19 pandemic were eligible to vote in a decertification election. The le- gal question turns on whether the potential voters had a reasonable expectancy that they would be recalled in the near future. On review, we find that the Acting Regional Director erred by sustaining the challenges to the ballots of nine laid-off voters on the ground that, as of the payroll eligibility date, they had no reasonable expectancy of re- call in the near future. As explained below, based on the particular facts of this case, we find that the Employer has failed to carry its burden of proving that the nine voters lacked a reasonable expectancy of recall in the near future. The record evidence, rather, is to the contrary. We there- fore reverse the Acting Regional Director, rescind the Cer- tification of Results, and remand this case to the Region for further proceedings, including opening and counting the nine ballots at issue.1 I. BACKGROUND The Union, Workers United Local 2833, represents a unit of full-time, part-time, and variable-hour employees with the job title barista (including lead baristas) em- ployed by the Employer, Gimme Coffee, Inc., at its facil- ities in Ithaca and Trumansburg, New York. The Em- ployer and the Union were parties to a collective-bargain- ing agreement extending from December 28, 2017, to De- cember 28, 2020. On January 22, 2021, the Petitioner filed a petition seek- ing to decertify the Union. On February 10, 2021, the 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has exercised its discretion to read the record in this case. See Board’s Rules and Regu- lations, Sec. 102.67(e). Regional Director approved a Stipulated Election Agree- ment that provided that the election would be conducted by mail, and that employees employed during the payroll period ending January 31, 2021—including, as relevant here, employees who were temporarily laid off—were el- igible to vote. Of the 31 eligible voters, 4 voted for and 7 voted against representation by the Petitioner, with 10 bal- lots challenged by the Employer on the basis that the vot- ers no longer worked for the Employer and had no reason- able expectancy of recall. The Union timely filed an ob- jection to the election; on August 6, 2021, the Acting Re- gional Director overruled the objection without a hearing, but found that the challenged ballots raised substantial and material issues of fact best resolved by a hearing. Follow- ing the hearing, the hearing officer recommended sustain- ing all 10 challenges. The Union filed exceptions with re- spect to nine of the challenges and, as indicated above, the Acting Regional Director agreed with the hearing officer and sustained the challenges in her Supplemental Deci- sion, finding that these employees did not have a reasona- ble expectancy of recall.2 The Union filed the instant Re- quest for Review, and the Employer filed an Opposition. Having carefully considered the entire record, including the request for review and the Employer’ opposition, we find that the challenged employees had a reasonable ex- pectancy of recall in the near future. Accordingly, we re- verse the Acting Regional Director’s Supplemental Deci- sion sustaining the challenges and remand the case to the Regional Director for further appropriate action consistent with this Decision on Review and Order. II. FACTS The Employer operates five cafes serving food, coffee, and other beverages. Two of these—known as Cayuga and MLK—are located in downtown Ithaca, on Cayuga Street and Martin Luther King Street, respectively. Two others—known as Community Corners (or “CoCo”) and Gates Hall (or simply “Gates”)—are located on or near the Cornell University campus. The fifth cafe is located in nearby Trumansburg. Prior to the onset of the COVID-19 pandemic in early 2020, Cayuga, MLK, CoCo, and Tru- mansburg all operated as dine-in facilities; Gates sold food and beverages from a kiosk in the building’s lobby. The Employer used a mix of full-time and part-time baristas to staff these cafes. The Union has represented the baristas 2 The Acting Regional Director also adopted pro forma the recom- mendation to sustain the 10th challenge, noting that neither party had filed an exception to the hearing officer’s finding that the 10th voter was properly challenged and that the challenge should be sustained based on an agreement by the parties. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 since 2017. As previously indicated, the Employer and the Union were parties to a collective-bargaining agreement covering the baristas that was in effect from December 28, 2017, to December 28, 2020. On March 26, 2020,3 the Employer closed all of its retail stores in response to the COVID-19 pandemic and, on March 30, it mailed form letters to all unit employees ter- minating their employment. The Acting Regional Direc- tor found, however—and the Employer does not dispute— that the employees’ employment relationship was not completely severed at this time; rather, these letters were akin to layoff notices (as opposed to permanent termina- tion letters). Soon thereafter, the Employer began taking steps to resume operations, albeit on an initially limited basis. In early April, the Employer started a pilot program at MLK to sell food and beverages via online ordering and delivery/carryout service. The Employer reconfigured MLK’s layout and provided new equipment to facilitate social distancing (both between the staff and the custom- ers and among the staff themselves), and it introduced “pod” staffing—in which two sets of employees worked on separate shifts—to limit COVID-19 exposure among the staff. No unit employees were recalled to MLK at this time, but based on the success of the pilot program the Employer began planning to reopen additional stores. On July 7, the Employer held an operations update meeting (via videoconference) which included unit em- ployees. The meeting was conducted by Claire Christen- sen, the Employer’s co-managing head of operations, who was also one of the Employer’s representatives in the ne- gotiations with the Union. It discussed the MLK pilot pro- gram and announced tentative plans to reopen Trumans- burg sometime in July and to reopen either CoCo or Ca- yuga sometime in August or September. The Employer also explained that it would be staffing these cafes only with full-time employees working in pods. It further indi- cated that it would rehire 10 baristas to staff these loca- tions. Gates, and whichever of CoCo or Cayuga was not selected for the August-September reopening, were listed as question marks extending through December. During July and August, the Employer and the Union bargained over the effect of the pandemic on unit employ- ees. The result was an August 28 memorandum of 3 All dates hereinafter are in 2020, unless otherwise noted. 4 In the MOA, the parties also agreed that “[i]n the event of a perma- nent closure of any locations, Gimme Coffee and representatives from the Gimme Coffee Barista’s Union [Workers United Local 2833] will meet to bargain over the effects of the closure.” 5 After the initial creation of the lists, one employee on the Active Recall list indicated they no longer wished to return to work. Another agreement (“the COVID MOA”) in which the Employer agreed to provide the Union with at least seven days’ no- tice prior to any store reopening. The parties also created three recall lists: “Active Recall” or “Appendix B” for unit employees available for immediate recall; “Waitlist” or “Appendix C” for unit employees available to return at some time in the future; and “Not Returning to Gimme” or “Appendix D” for unit employees not wishing to return to work at all. The employees on the Active Recall list and the Waitlist stated their preferred cafes; employees on each list were ranked by their seniority for recall. As po- sitions became available, the Employer agreed to fill them by consulting the Active Recall list and then the Waitlist before hiring from the public. At the time the parties exe- cuted the COVID MOA, the Active Recall list had 14 names and the Waitlist had 18 names; the 9 employees at issue here were all on the Waitlist.4 By mid-September, the Employer had decided to reopen CoCo (rather than Cayuga), and, by the end of that month, it had recalled 14 employees on the Active Recall list5 to work in the CoCo, MLK, and Trumansburg cafes. Ac- cording to Christensen, at this time the Employer was committed to using the pod system with only full-time em- ployees. As indicated, the collective-bargaining agreement cov- ering the baristas expired on December 28. The parties began successor negotiations in November. Christensen, the Employer’s witness, testified that during the negotia- tions, the parties repeatedly discussed the prospect of reo- pening Cayuga, but the Employer conveyed that it had no immediate plan to reopen that store. Christensen stated that the Employer expressed a theoretical desire to reopen Cayuga while also indicating that certain issues—includ- ing concerns about customer demand and the building’s HVAC system—stood in the way of doing so. The most relevant conversation occurred on December 28, the final day the agreement was in effect, when the parties held a two-hour Zoom session. Christensen and Colleen Anunu represented the Employer at this session. The Union was represented by two union officials (Gary Bonadonna and Richard Bensinger) and several unit em- ployees (including Maggie Lapinski and Jaime Baird). Near the end of the session, Bensinger raised the prospect employee (Wendell Roth) initially on the Waitlist asked to be moved to the Active Recall list in early September and was among the employees recalled to work. Following these 14 recalls, two additional employees moved from the Waitlist to the Active Recall list, but they were not re- called during the relevant period. GIMME COFFEE, INC. 3 of recalling unit employees who had not yet been recalled to work.6 Christensen replied that immediate recall was not a possibility, but then commented that the Employer was planning to hire a store manager for Gates in February 2021. She also stated that, with regard to Cayuga, the Em- ployer needed to solve an issue with the building’s HVAC system before reopening and that the Employer did not have a solution for the issue at that time.7 Christensen tes- tified that she advised the Union that “hopefully, we’ll be looking at rehire or reopening sometime in the spring. But it’s definitely not happening now, and we don’t have those open positions.” Anunu similarly testified that Christen- sen told the Union that immediate recall was not possible, that the Employer was rehiring a manager for Gates “for likely February, and hopefully, Cayuga Street in the fu- ture,” but that the Cayuga HVAC system was “a COVID- spreading tool” for which there was “no infrastructure so- lution.” Three of the Union witnesses who were present at the meeting (Baird, Bensinger, and Lapinski) testified that Christensen told them that Gates would reopen in Febru- ary and that Cayuga would reopen “shortly after” or “very shortly after” that. Lapinski’s contemporaneous bargain- ing notes similarly record “Open Gates early February, opening Cayuga shortly after.” Bonadonna could not re- call the sequence in which Christensen indicated the two stores would reopen, but his bargaining notes state that both Gates and Cayuga would “tentatively” reopen in mid- or late February.8 All four Union witnesses agreed that Christensen identified Cayuga’s HVAC system as an issue that needed to be addressed before that store could reopen, but all indicated, to varying degrees, their perception that Christensen had conveyed that addressing the issue was a question of when, not if. The Employer recalled Christen- sen to the witness stand after the union representatives and, when asked if she had used the phrase “shortly after” at the December 28 bargaining session, she answered “[n]ot to my recollection.” On January 26, 2021, the Employer held an operations meeting for its current employees (which was not open to the laid-off employees) and announced that it would reo- pen the Gates kiosk on February 8, but that it would not be staffed with any unit baristas. On January 27, the 6 According to Christensen and Anunu, Bensinger did so in the con- text of offering a proposal to resolve a seniority issue on which the parties were unable to agree. 7 During the hearing, Christensen offered detailed testimony regard- ing the problem with the Cayuga HVAC system, but this was in response to questions from counsel; Christensen did not state that she conveyed this information to the Union at the December 28 bargaining session. Employer held a meeting with its store managers. During this meeting, Christensen discussed Cayuga’s reopening status. Her notes from this meeting refer to a “[b]unch of things that need to be worked through before we can open” and that reopening therefore will “[l]ikely [be] pushed back later than [M]arch. No solid plan yet.”9 Christen- sen’s notes refer to sales patterns and the store’s layout as issues that need to be addressed. Although the notes do not refer to the HVAC system, Christensen testified that she did refer to that issue during the meeting. On February 8, 2021, the Employer reopened the Gates kiosk with a single manager operating a new automated coffee machine. As of the mailing of the ballots on Feb- ruary 23, the Employer had not reopened Cayuga, nor had it increased staffing at the reopened stores.10 As of the hearing in this case, the nine challenged employees re- mained on the Waitlist and had not worked for the Em- ployer since their March 30, 2020 layoff. III. ANALYSIS A. “It is well established that temporarily laid-off employ- ees are eligible to vote,” and that “[t]he voting eligibility of laid-off employees depends on whether objective fac- tors support a reasonable expectancy of recall in the near future, which establishes the temporary nature of the layoff.” Apex Paper Box Co., 302 NLRB 67, 68 (1991). These factors include “the employer’s past experience and future plans, the circumstances surrounding the layoff, and what the employees were told about the likelihood of recall.” Id. Employees laid off prior to the payroll eligi- bility period must have a reasonable expectancy of recall as of the payroll eligibility date in order to be eligible to vote in the election. Id. The Board accordingly limits its “analysis to events that occurred on or before” the payroll eligibility cutoff date. Osram Sylvania, Inc., 325 NLRB 758, 759–760 (1998). A specific recall date is not re- quired; a “laid-off employee need only have a reasonable expectancy, not a definite date, of recall . . . . ” Atlas Metal Spinning Co., 266 NLRB 180, 180 (1983). Similarly, un- certainty as to when conditions will permit recall “does not establish that an employee has no reasonable expecta- tion of recall in the near future.” Pavilion at Crossing Pointe, 344 NLRB 582, 584 (2005). The Board has 8 Christensen’s notes for this session are also in evidence but do not mention Cayuga or Gates. 9 Christensen testified that, consistent with these notes, she advised attendees that Cayuga’s reopening would be pushed back beyond March and would not occur “in the next few months.” 10 The Employer eventually reopened the Cayuga café in early July 2021. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 accordingly found a reasonable expectancy of recall in the near future where there was “some likelihood” of recall “within as little as 2 or 3 months” after the election. Atlas Metal Spinning, 266 NLRB at 180.11 See also Hotel Bel- Air, 358 NLRB 1527, 1528 (2012), affirmed by 361 NLRB 898 (2014) (in unfair labor practice case, finding that employees who had been laid off for approximately 10 months due to hotel renovations expected to last as long as 2 years retained a reasonable expectation of recall, even if it was less than certain that all would be recalled), enfd. on other grounds 637 Fed. Appx. 4 (D.C. Cir. 2016). The party challenging an employee’s eligibility to vote bears the burden of establishing the employee had no reasonable expectancy of recall in the near future. Pavilion at Cross- ing Pointe, 344 NLRB at 584; see also Advanced Masonry Assoc., LLC, d/b/a Advanced Masonry Systems, 366 NLRB No. 57, slip op. at 5 (2018) (the party challenging employees’ eligibility bears the burden of proof). As described in more detail below, the hearing officer applied the Apex Paper Box factors and concluded that the nine challenged employees did not have a reasonable ex- pectancy of recall in the near future. In effect, the hearing officer based her finding on: (1) the fact that by late Janu- ary 2021, the Employer had unequivocally advised current employees that Gates would reopen without unit employ- ees; (2) the lack of evidence of any plan to recall additional unit employees to MLK, CoCo, or Trumansburg; and (3) her conclusion that, as of January 31, there was no plan to reopen Cayuga in the near future. Regarding Cayuga, the hearing officer gave “more weight” to Christensen’s testi- mony that at the December 28 meeting she advised the Union that reopening was contingent on addressing the HVAC issue and that there was no solution for the issue at that time. In doing so, the hearing officer found that the Union’s witnesses “appeared to have not fully received Christensen’s sentiment that the lack of resolution to the HVAC problem was an impediment to” Cayuga’s reopen- ing, but she did not explicitly discredit their testimony, ei- ther. Instead, the hearing officer concluded that “[e]ven if one were to credit” the testimony that Christensen had 11 The likelihood of recall in Atlas Metal was based on the Employer’s cyclical workload, which customarily began to increase in July and peaked in December. See id. at 180. By implication, the voter in that case would still have possessed a reasonable expectancy of recall “in the near future” beyond the “as little as 2 or 3 months” cited by the Board. 12 Throughout its opposition, the Employer suggests that employees on the Waitlist could not have possessed a reasonable expectancy of re- call, citing Wendell Roth’s testimony that in early September 2020 he asked to be moved from the Waitlist to the Active Recall list because he was concerned that he would not be recalled if he remained on the Wait- list. Neither the hearing officer nor the Acting Regional Director relied stated that Cayuga would reopen “shortly after” Gates’s planned February reopening, this was an equivocal state- ment “more likely expressed to lend hope to the laid-off employee[s] than to give a realistic assessment” of their being recalled to work. Sol-Jack Co., 286 NLRB 1173, 1174 (1987). In overruling the Union’s exceptions, the Acting Regional Director agreed with the hearing officer’s reasoning and conclusions. In requesting review, the Union contends, among other things, that the hearing officer and Acting Regional Direc- tor incorrectly assessed the evidence regarding Cayuga’s potential reopening and that, when properly viewed, this evidence establishes that the employees at issue possessed a reasonable expectancy of recall in the near future. We conclude that, on the record here, the Employer has failed to carry its burden of proving by a preponderance of the evidence that these challenged employees were not eligi- ble voters because they lacked such a reasonable expec- tancy. See S & G Concrete Co., 274 NLRB 895, 896 (1985) (assessing whether employees had a reasonable ex- pectancy of recall in the near future using the preponder- ance of the evidence standard). B. We begin our analysis with the circumstances surround- ing the layoff, as the unique impacts and adaptations stem- ming from the COVID pandemic are the backdrop of this case. Though neither the hearing officer nor the Acting Regional Director explicitly discussed this factor separate from the others, we conclude that it supports finding a rea- sonable expectancy of recall. The layoffs were caused by the COVID-19 pandemic, a singular and unprecedented situation. The uncertainty and unpredictability that ac- companied the pandemic do not, however, foreclose find- ing a reasonable expectancy of recall where other consid- erations support such a finding. Indeed, the parties clearly contemplated and planned for a return to normalcy. There is no dispute that—by virtue of the COVID MOA—the employees at issue possessed recall rights as of the January 31, 2021 eligibility date.12 The hearing officer and the Acting Regional Director on (or addressed) Roth’s testimony, and rightly so: Roth’s subjective rea- sons for moving from the Waitlist to the Active Recall list in September 2020 are not relevant to whether the challenged employees had a reason- able expectancy of recall on January 31, 2021. In any event, any argu- ment that employees on the Waitlist did not possess a reasonable expec- tancy of recall simply because they were on the Waitlist, as opposed to the Active Recall list, is flatly contrary to the COVID MOA, which pro- vided for recall from the Waitlist, and is also at odds with the parties’ stipulation that the nine employees in question did possess recall rights as of January 31, 2021. GIMME COFFEE, INC. 5 correctly observed that this circumstance does not, by it- self, establish a reasonable expectancy of recall in the near future. See, e.g., Higgins, Inc., 111 NLRB 797, 799 (1955).13 Even so, it is an important consideration. In ad- dition, provision 10 of the COVID MOA states that in the event of permanent closure of any locations, the parties will meet to bargain over the effects of the closure. The Employer never notified the Union of the permanent clo- sure of the Cayuga location nor bargained over the effects of that closure. This is further evidence that the question at issue was when, not if, the Cayuga store would reopen. There are additional circumstances surrounding the layoff that support a reasonable expectancy of recall. Namely, by the eligibility date, the Employer had reo- pened three of its cafes (and had made clear that Gates would also be reopening) and had recalled 14 baristas from Active Recall list. The unmistakable picture that emerges in the 10 months from the layoffs to the eligibility date is of the Employer gradually reopening and resuming its former operations.14 This distinguishes the circum- stances of the layoffs in this case from those in the cases cited by the Employer,15 and supports finding that the overall circumstances of the layoff—including events be- tween the layoff and the eligibility date—favor finding that the employees had a reasonable expectancy of recall. At the very least, the Employer—the party that bears the burden here—has not established that the circumstances surrounding the layoff suffice to establish no reasonable expectancy of recall. Turning to the Employer’s past experience with layoffs, the hearing officer found (and the Acting Regional Direc- tor apparently agreed) that this factor was neutral because the record contained no evidence that the Employer had laid off employees prior to March 2020. This is inaccu- rate: Christensen testified that the Employer’s historical practice was to recall laid-off employees by seniority on a store-by-store basis. But more importantly, the relevant question here is whether employees possessed a 13 This circumstance does, however, distinguish this case from NP Texas LLC, d/b/a Texas Station Gambling Hall and Hotel, 370 NLRB No. 11 (2020), as well as the unpublished (and non-binding) regional decisions cited by the Employer. 14 We acknowledge that during the relevant period the Employer re- mained committed to using only full-time employees working in pods. This does not, however, offset the general trend towards reopening. Based on the Employer’s commitment to these changes, however, there is no merit to the Union’s argument that the possibility of resumed part- time employment contributed to a reasonable expectancy of recall. Ad- ditionally, while the Employer announced that it would reopen the Gates kiosk with an automated coffee machine operated by a manager, we find that the introduction of this machine would not impact employees’ reasonable expectancy of recall as of the January 31, 2021 eligibility date. And by that point, as detailed with respect to the circumstance of the layoff, the Employer had long since executed the COVID MOA and, pursuant to it, had recalled 14 employees the previous September. Thus, there is evidence of past experience with layoffs here, in- cluding in the context of the pandemic.16 Based on this recent experience, the employees at issue could reasona- bly expect to be recalled if and when the Employer reo- pened additional stores. We therefore find that this factor also favors finding a reasonable expectancy of recall. As the hearing officer recognized, the final two fac- tors—the employer’s future plans and what it told the em- ployees—are closely intertwined and best considered in tandem. These are also crucial factors in this case, be- cause whether the employees had a reasonable expectancy of recall “in the near future” largely turns on them. As indicated above, the hearing officer concluded (and the Acting Regional Director agreed) that, as of January 31, 2021, there was no plan to reopen Cayuga and that any statement by Christensen at the December 28 meeting concerning Cayuga’s reopening was an inadequate basis for finding a reasonable expectancy of recall; the hearing officer therefore found that these factors did not support finding a reasonable expectancy of recall in the near fu- ture. We disagree. As described above, the prospect of reopening Cayuga was raised already in July 2020. Its reopening was not stated as a certainty, but neither was its permanent closure. It is true that at the July 7 meeting the Employer indicated that CoCo might reopen instead of Cayuga, but the Em- ployer further conveyed that even in that event, Cayuga’s reopening was still being contemplated, although the time- line was (literally) a question mark. The Employer did, indeed, opt to reopen CoCo instead of Cayuga in Septem- ber 2020, but as Christensen testified, Cayuga’s potential reopening was repeatedly discussed in negotiations lead- ing up to the December 28 meeting. As for the December reasonable expectancy of recall to Cayuga, a dine-in location similar to the locations in which unit employees had been recalled. 15 See NLRB v. Seawin, Inc., 248 F.3d 551 (6th Cir. 2001) (layoffs caused by reduced need for employees due to loss of customers and sub- sequent modernization of production processes); NLRB v. Ideal Maca- roni Co., 989 F.2d 880, 882 (6th Cir. 1993) (layoffs based on installation of new machinery); MJM Studios, 338 NLRB 980 (2003) (layoffs due to loss of business and downsizing); Osram Sylvania, 325 NLRB at 760 (mass layoffs due to decline in sales and changes to production process); Apex Paper Box, 302 NLRB at 68-69 (layoffs due to fire causing “total loss” of employer facility); Sterling Process Corp., 291 NLRB 208, 210 (1988) (layoffs based on permanent closure of employer facility). 16 Here too, this circumstance distinguishes this case from NP Texas, 370 NLRB No. 11, slip op. at 3. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 28 meeting itself, there does not appear to be any dispute that Christensen mentioned the potential for reopening Cayuga at that meeting, nor is there any dispute that that she reiterated that reopening was contingent on addressing the HVAC issue. In addition, there is no dispute that Christensen stated that “hopefully, we’ll be looking at re- hire or reopening sometime in the spring.” The circumstances of the January 27 meeting also sup- port a reasonable expectancy of recall in the near future. While not discussed by the hearing officer or the Acting Regional Director, Christensen’s notes from the January 27 meeting overtly state that Cayuga’s reopening would be “pushed back later than [M]arch.” The fact that there was something to “push[] back” is strong evidence that the Employer did, indeed, have a plan to reopen Cayuga in the near future and that the plan was a topic of discussion in the workplace. That plan may have been tentative and conditioned on addressing the HVAC issue, but Christen- sen’s January 27 notes establish that—consistent with the Union witnesses’ understanding of Christensen’s remarks on December 28—addressing the HVAC issue was a question of when, not if. On that note, Christensen never communicated—even privately to her store managers on January 27—that the HVAC issue was a permanent obsta- cle to reopening Cayuga.17 In sum, we conclude that the Employer did have a plan to reopen Cayuga; although that plan was contingent on addressing the HVAC issue, it 17 We reiterate here that there is no dispute that Christensen stated, on December 28, that she did not have a solution to the HVAC issue. But Christensen’s testimony does not indicate that she elaborated on this statement during the December 28 meeting. Bearing in mind that the Employer bears the burden of disproving eligibility here, we find that this lone statement did not clearly convey that the Employer had yet to decide whether to address the HVAC issue at all—and, again, the “push- ing back” comment in Christensen’s notes from the January 27 meeting suggests there was an intent to address the issue, even if the specifics remained undetermined. Contrary to the hearing officer and Acting Re- gional Director’s apparent understanding, the employees did not need to be advised of a specific plan to address HVAC issue in order to have a reasonable expectancy of recall; indeed, adopting such an approach would improperly shift the burden to the Union. 18 In making these findings, we do not disturb any credibility resolu- tions made by the hearing officer with respect to the December 28 meet- ing. But that said, it is unclear whether the hearing officer made any credibility resolutions. Although she gave “more weight” to Christen- sen’s testimony that the HVAC issue had to be addressed in order for Cayuga to reopen, the hearing officer did not discredit the Union wit- nesses’ testimony indicating their understanding that addressing the HVAC issue was a question of when, not if (which, we observe, is not necessarily inconsistent with Christensen’s testimony that she told the Union she did not have a solution for the HVAC problem). Similarly, the hearing officer does not appear to have discredited the Union wit- nesses’ testimony that Christensen stated that Cayuga would reopen “shortly after” Gates; instead, she simply stated that “if one were to credit the Union’s witnesses,” the statement would be too equivocal to establish nevertheless contemplated a spring 2021 reopening, as was conveyed to the Union witnesses at the December 28 meeting.18 Christensen’s statement that Cayuga would “hopefully” reopen “sometime in the spring” was, admittedly, an im- precise estimate for reopening. But it was an estimate nonetheless, which distinguishes this case from those cited by the Employer where there was no estimate at all.19 The Employer contends that under Sol-Jack, 286 NLRB at 1173–1174, this statement is too vague to establish a rea- sonable expectancy of recall in the near future.20 Sol-Jack, however, is distinguishable. In that case, there was no past practice regarding layoffs, the layoff was based on the shrinking of the employer’s business, and these two fac- tors made the employer’s future plans difficult to assess; as such, the employer’s one remark about possible recall was at odds with all other factors—and, moreover, had been expressly disavowed by the date of the election. Here, by contrast, there are other factors and considera- tions that favor finding a reasonable expectancy of recall in the near future; Christensen’s December 28 statement (which there is no evidence she disavowed) is not the sole evidence supporting a reasonable expectancy of recall.21 Other cases cited by the Employer are distinguishable on similar grounds. See Seawin, 248 F.3d at 557–558 (equiv- ocal statements about possible recall were not supported by any other factors);22 Ideal Macaroni, 989 F.2d at 882 a reasonable expectancy of recall. Of note, Christensen did not overtly deny using the phrase “shortly after”; instead, she stated that she did not “recollect[]” using it. The “shortly after” testimony clearly lends addi- tional support to our conclusion that the Employer’s plans and what em- ployees were told supports finding a reasonable expectancy of recall in the near future. If the hearing officer did implicitly discredit this testi- mony, we note that this credibility resolution failed to address the con- temporaneous notes from the December 28 meeting. But even if the hearing officer properly discredited the “shortly after” testimony, we find that the other evidence regarding these factors supports finding a reason- able expectancy of recall in the near future. 19 See Apex Paper Box, 302 NLRB at 69; Foam Fabricators, 273 NLRB 511, 512 (1984); Tomadur, Inc., 196 NLRB 706, 707 (1972). See also Osram Sylvania, 325 NLRB at 760 (employees were told layoffs were “indefinite” and employer could give “no firm and realistic” date for possible return to work as chances for recall “depended” and “things could change”). 20 The hearing officer and the Acting Regional Director did not ad- dress this statement in their analysis. 21 For the same reason, we also do not agree with the hearing officer and Acting Regional Director that, under Sol-Jack, Christensen’s “shortly after” remark—if it was made—would not support finding a rea- sonable expectancy of recall in the near future. 22 Seawin is also distinguishable on the ground that there was no evi- dence the employer in that case was expanding its operations. 248 F.3d at 558–559. Here, by contrast, the Employer had reopened three stores (and clearly announced plans to reopen a fourth) since the original shut- down and layoffs. GIMME COFFEE, INC. 7 (ambiguous statements that layoffs were temporary and employees would be recalled were “inconsistent with the actual employment facts”); MJM Studios, 338 NLRB at 980–981 (vague mention of recall insufficient where all other factors showed no reasonable expectation of recall). We acknowledge that Christensen’s statement about a spring reopening was accompanied by a “hopefully” ca- veat, but—again—this is not the sole evidence supporting a reasonable expectancy of recall; rather, it must be con- sidered in the context of the Employer’s gradual reopening of locations, the months-long discussion of a possible Ca- yuga reopening, Christensen’s January 27 notes reflecting a plan (if not a definite timeline) to reopen Cayuga, and in light of the fact that the Employer bears the burden of dis- proving eligibility. The fact that none of Christensen’s remarks set out a specific date for Cayuga’s reopening is not determinative, as no date certain is required to establish a reasonable ex- pectancy of recall in the near future. See Pavilion at Crossing Pointe, 344 NLRB at 583. In addition, the fact that a possible spring reopening was several months away does not show that there was no reasonable expectancy of recall in the near future. In Atlas Metal Spinning, 266 NLRB at 180, the Board found that a disputed voter pos- sessed a reasonable expectancy of recall in the near future where “there was some likelihood” of the employee’s re- call “within as little as 2 or 3 months.” Here, a possible spring recall was similarly within as little as two or three months as of the eligibility date.23 Cf. Hotel Bel-Air, 358 NLRB at 1527–1528 (finding laid-off employees had rea- sonable expectation of recall even though layoffs were due to hotel renovations expected to last up to two years). Based on the stated possibility of Cayuga reopening in the near future, the nine eligible employees possessed a reasonable expectation of recall in the near future. In this regard, we note that—based on the experience of 23 The Employer is correct that Atlas Metal Spinning is distinguishable from this case on other grounds, including the cyclical nature of that em- ployer’s business. Even so, Atlas Metal Spinning remains instructive for determining whether the evidence of potential recall here was “in the near future.” 24 Even if employees reasonably expected the store to reopen, the Em- ployer argues that changes to the pod staffing system resulted in an in- crease in full-time staff and consequently that not all of the employees on the Waitlist would be recalled. The alleged permanency of the change to the pod system notwithstanding, the fact that some unknown number of employees may not be recalled does not support the notion that all of the potential voters should be ineligible to vote. As the Board has held, employees could retain a reasonable expectancy of recall even when business model changes “made it less than certain that the [Employer] would recall all of them.” Hotel Bel-Air, 358 NLRB at 1528. The Em- ployer’s citation to the Sixth Circuit decision in NLRB v. Seawin is reopening Trumansburg, MLK, and CoCo—the employ- ees could reasonably anticipate that the Employer would offer recall to at least some employees from the Waitlist in order to staff the reopened Cayuga (as at most only 2 employees were on the Active list in December and Janu- ary).24 In sum, we find that the Apex Paper Box factors favor— in varying degrees—finding that the nine challenged em- ployees had a reasonable expectancy of recall in the near future and thus that the Employer has failed to carry its burden of proof here. The circumstances of the layoffs, as well as the Employer’s past experience, favor finding a reasonable expectancy of recall, particularly in view of the recall rights enshrined in the COVID MOA and the trend towards gradual reopening in the months leading up to the election. Similarly, the evidence reflects that the Em- ployer had a plan to reopen Cayuga in the near future and communicated that plan to the employees. Although that plan was explicitly conditioned on addressing the HVAC issue, the evidence indicates that addressing the issue was a question of when, not if; indeed, at the December 28 meeting Christensen estimated that Cayuga would reopen “sometime in the spring,” an estimate consistent with her January 27 remark that reopening would be “pushed back” until after March. Taken together, these considerations support finding that, as of the eligibility cut-off date, the nine challenged employees had a reasonable expectancy of recall in the near future. As such, the Employer has not met its burden of demonstrating the ineligibility of these employees.25 CONCLUSION For the foregoing reasons, we reverse the hearing of- ficer and Acting Regional Director’s finding that the nine challenged voters did not possess a reasonable expectancy of recall in the near future and thus were ineligible to vote. We therefore rescind the Certification of Results and inapposite. 248 F.3d 551. As discussed above, the court applied Board precedent holding that equivocal statements by an employer are not con- trolling if the surrounding objective facts do not support a reasonable expectancy of recall and found that the changes in the business practice at issue were such objective facts. Here, though, the employees do not solely rely on an equivocal statement, but on a legal right to be recalled and an agreement that prevented the employer from unilaterally closing the store. Moreover, for the reasons discussed in this decision, the sur- rounding objective facts support the reasonable expectation that they would return to work in the near future. 25 Based on the foregoing analysis, it is unnecessary to address the Union’s additional argument that the Region should have taken notice of, or otherwise investigated, the likely effect of the introduction of COVID-19 vaccines in early 2021. Similarly, it is unnecessary to ad- dress the matter of Cornell University’s reopening plans for the spring and fall 2021 semesters. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 remand the case for further action consistent with this de- cision and order, including the opening and counting of these nine ballots. ORDER The Acting Regional Director’s Supplemental Decision on Challenged Ballots and Certification of Results is re- versed and the December 21, 2021 Certification of Results is rescinded. The case is remanded to the Regional Direc- tor for Region 3 for further appropriate action consistent with this Decision on Review and Order. Dated, Washington, D.C. April 13, 2023 ______________________________________ Lauren McFerran, Chairman ________________________________________ Gwynne A. Wilcox, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD The Board’s decision can be found at www.nlrb.gov/case/03-RD-271639 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.