No Reasonable Expectation of Recall? No Election: Board Cancels Union Election at Casino Closed During COVID-19

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Proskauer - Labor Relations

The National Labor Relations Board recently cancelled a union election at a Las Vegas casino that suspended its operations and laid off employees amid the COVID-19 pandemic. In NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel and Local Joint Executive Board of Las Vegas, 370 NLRB No. 11 (2020), the Board found that the Regional Director erred in scheduling the election given that the laid-off employees had no “reasonable expectation of recall” and thus were ineligible to vote.

Texas Station Casino and the COVID-19 Pandemic

On March 18, 2020, the Governor of Nevada issued an emergency declaration directing that all casinos cease operations until April 16. In accordance with the Governor’s order, Station Casinos informed its employees that it would be temporarily closing its properties, including Texas Station Gambling Hall and Hotel (the “Texas Station Casino”). Although some supervisors at the Texas Station Casino informed their subordinates in early March that they would likely be recalled in April or May, the Governor twice extended its emergency order and all casinos remained closed.

On April 29, the Governor ordered gaming operations to remain closed through May 15, and until the Nevada Gaming Control Board determined that operations could safely resume. On May 1, Station Casinos sent a letter to all of its employees outlining a reopening plan at its “Phase One” properties. According to the letter, all “Phase Two” properties, including the Texas Station Casino, would remain closed. The letter further stated that while there would be staff reductions, Station Casinos was hopeful that it would be able to “rehire many of our valued team members when we emerge on the other side of the crisis.”

Each team member separately received a communication with respect to his or her employment status. The petitioned-for employees received termination letters, which indicated that their employment would be terminated because the Texas Station Casino “made the difficult decision to temporarily close.”

Over the next several weeks, the Governor issued additional emergency directives and the Texas Station Casino remained closed. However, the Texas Station Casino displayed a marquee which read, “STAY SAFE, WE’LL BE BACK!”, and its website displayed a pop-up window indicating that while the casino was “temporarily closed,” it “looked forward to opening soon.”

On May 28, 2020, the union filed a petition to represent a unit of employees at the employer. On July 2, the Regional Director directed a mail-ballot election, reasoning that although the petitioned-for employees were laid off, they had a reasonable expectation of recall. Among other things, the Regional Director cited the Texas Station Casino’s public statements (i.e., the marquee and representations of various supervisors in early March) to support his position.

The Board’s Decision

In an August 31 decision, the Board disagreed with the Regional Director’s reliance on “vague and hopeful” statements by Station Casinos and dismissed the petition. According to the Board, the employer had not indicated when (if ever) it would resume operations or recall employees, and laid-off employees could not reasonably rely on the representations of supervisors dating back to early March. Further, because the employer did not have any “past practice” relating to layoffs of employees amid a pandemic, it could not easily predict when it would be able to resume operations and recall employees.

Given that none of the petitioned-for employees had a reasonable expectation of recall, the Board determined that there were no eligible voters who could vote in an election held in the foreseeable future. The Board therefore dismissed the petition, but indicated that the Petitioner could refile if and when the Texas Station Casino resumes operations.

Implications

The Board’s decision here illustrates the Board’s attempt to navigate the unique circumstances presented by the COVID-19 pandemic. Board precedent is clear that workers who are temporarily laid off from their employment have a right to form a union and may even vote in an election. However, the Board’s decision in NP Texas LLC makes plain that workers affected by the COVID-19 pandemic, an uncertain and continuously evolving situation, need more than “vague and hopeful” statements by their employer in order to have a reasonable expectation of recall.

We will continue to keep you posted on the Board’s decisions related to the COVID-19 pandemic.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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