By Braden Campbell

Law360 (September 1, 2020, 4:14 PM EDT ) The National Labor Relations Board has canceled a union election involving workers at the shuttered Texas Station Casino in Las Vegas, saying it's unclear when and if the workers will get their jobs back as the coronavirus pandemic clouds reopening plans.

While board precedent makes clear workers who are temporarily laid off still have a right to form a union, the Texas Station workers can't count on getting their jobs back despite some "vague and hopeful" statements by the company, the board panel said Monday.

"None of the petitioned-for employees currently has a reasonable expectation of recall, and [Station] therefore has no eligible voters that could vote in any election to be held in the foreseeable future," the panel said.

Monday's ruling reverses NLRB Phoenix office Director Cornele Overstreet's July decision letting food services and other workers vote on whether to elect Culinary Workers Union Local 226 as their collective bargaining representative.

The workers asked the board to hold an election in late May, about two months after Station Casinos said it was temporarily closing its properties due to the pandemic.

Station objected to the workers' petition, saying they were ineligible to unionize because they had been let go. But Overstreet said the workers still have "a reasonable expectancy of employment in the near future," citing Station statements including a website pop-up indicating the company looks "forward to opening soon and welcoming you back."

Station asked the board to review Overstreet's decision, saying it does not have imminent plans to reopen and that the regional director misunderstood board precedent regarding laid-off workers' rights to form unions. The company also called "wildly speculative" his findings that the workers could expect to be rehired soon, saying its statements reflect only that it "aspires to reopen when economic and operational conditions permit it to."

Whether workers who have been laid off can vote to organize depends on "whether objective factors support a reasonable expectancy of recall in the near future," the board said Monday, citing its precedent. Those factors include the employer's history and its plans, the circumstances surrounding the layoff and what the employer told workers about returning to their jobs. That test favors Station, the panel said.

The company has not indicated when it will resume operations, and managers' March statements that they hoped to rehire workers in late April are outdated, the panel said. Its history offers no insight "in the face of an unprecedented pandemic" and it "continues to have no set time frame for when — if ever — Texas Station Casino will reopen," the panel added.

"Under such circumstances, the totality of the evidence indicates that the employer cannot reasonably predict when Texas Station Casino will reopen or whether (much less when) any of the laid-off employees will be recalled or rehired," the panel said.

A representative for the union said Tuesday the company is pushing Clark County, Nevada, to adopt an ordinance requiring businesses to rehire workers when they reopen.

"There will be an NLRB election at Texas Station," representative Bethany Khan said.

Republican board members John Ring, Marvin Kaplan and Bill Emanuel comprised the panel. Lauren McFerran, the board's sole Democrat, did not participate.

A Station representative did not immediately respond to request for comment Tuesday.

The union is represented by Kimberley C. Weber of McCracken Stemerman & Holsberry LLP.

The casino is represented by Reyburn Lominack of Fisher Phillips.

The case is NP Texas LLC dba Texas Station Gambling Hall and Hotel and Local Joint Executive Board of Las Vegas, case number 28-RC-261253, before the National Labor Relations Board.

--Editing by Stephen Berg.

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