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Law360 (September 10, 2020, 5:28 PM EDT ) A National Labor Relations Board official has said security staff at SeaWorld can vote on whether to unionize but excluded from the voter rolls dozens of furloughed workers who haven't been offered their jobs back, citing a recent board ruling canceling an election at a shuttered Las Vegas casino.
NLRB Tampa regional director David Cohen on Wednesday granted the workers' petition for an election to join the International Union, Security, Police and Fire Professionals of America and directed that the vote be held by mail ballot over the amusement park's objections.
But workers who were furloughed due to the coronavirus-related business shutdown in March and haven't been tapped for rehire following the park's June reopening can't take part per recent board precedent, Cohen said.
"I find insufficient evidence to establish a reasonable expectancy of recall in the near future, and therefore any such employees are not eligible to vote," Cohen said, echoing the labor board's Aug. 31 decision stopping a vote at Texas Station Casino.
Security staffers at SeaWorld's three Orlando-area parks filed a petition on March 11 to organize with the SPFPA, proposing to form a unit comprising 64 security officers, 11 senior security officers and five security investigators. Five days later, SeaWorld shuttered its parks and furloughed 41 members of the proposed unit but kept the rest on to monitor its facilities. SeaWorld partially reopened its three parks in early June and recalled some of the furloughed workers, but 31 were still out of work as of a late June hearing.
Long-standing NLRB case law allows workers who have been laid off to vote in union elections if they have "a reasonable expectancy of recall in the near future" based on certain factors, including their employer's past practices and future plans, the circumstances of their layoff, and what they were told about being recalled. This doctrine allows workers in seasonal jobs to take part in votes during their offseason, for example.
The labor board applied this precedent to pandemic-related furloughs for the first time last month, reversing a decision greenlighting a vote by laid-off food service workers at Texas Station. Because the circumstances of these layoffs are unprecedented and the casino had no plan for reopening let alone bringing back the laid-off workers, they're not eligible to form a union, a board panel said.
There are some differences between the circumstances at SeaWorld and at Texas Station, including that SeaWorld has reopened and recalled some of the workers, that it told workers their layoffs are temporary, and that it instructed them to keep their uniforms and identification cards in the hopes of recalling them, Cohen said.
But other factors undermine the workers' expectation of getting back to work, including that SeaWorld's reopening statements have been "vague," conditions are unpredictable and outside SeaWorld's control, and the workers have been out of work for nearly six months, he said.
"In these circumstances, absent more specific information from the employer as to whether or when they will be recalled, it cannot be said that the remaining furloughed employees who have not been recalled have a reasonable expectancy of recall in the near future," Cohen said, limiting the voter pool to workers tapped for recall as of Aug. 26.
Separately, Cohen said the vote should be held via mail, because it's unsafe to vote in person. NLRB regional directors have ordered mail ballot elections in almost all cases during the pandemic, though the board is mulling parameters for in-person votes.
SeaWorld is represented by John Merrell of Ogletree Deakins Nash Smoak & Stewart PC.
The union is represented by Gordon Gregory of Gregory Moore Jeakle & Brooks PC.
The case is Seaworld Parks & Entertainment and International Union, Security, Police and Fire Professionals of America, case number 12-RC-257917, before National Labor Relations Board Region 12.
--Editing by Nicole Bleier.
For a reprint of this article, please contact reprints@law360.com.
