By Danielle Nichole Smith

Law360 (November 20, 2020, 4:51 PM EST ) The uncertainty surrounding the layoffs and furloughs caused by the coronavirus pandemic has raised questions for National Labor Relations Board officials deciding when those workers can vote in a union election, and that uncertainty might also result in more discretion for employers, experts say.

Long-standing case law from the NLRB says that temporarily laid off workers can vote in a union election if they have a "reasonable expectancy of recall in the near future" based on certain factors, including the employer's history and its future plans, the circumstances of the layoff and what workers were told about their likelihood of coming back to work.

The NLRB applied this precedent to pandemic-related furloughs for the first time in August, when it reversed a regional director's decision ordering an election for workers' bid to unionize with the Local Joint Executive Board of Las Vegas at the closed Texas Station Casino. In its reversal, the board said the workers didn't have a reasonable expectation of being recalled despite "vague and hopeful statements" on the casino's marquee and website and comments managers made back in March about laid off employees being recalled.

Stoel Rives LLP's Bryan Hawkins said he thinks employers are being given more discretion now in light of the "unprecedented pandemic" than they've had "in any other time in recent history."

"Whenever you see the word 'reasonable' in a standard, you're going to get a very diverse range of decisions, and ... a lot of this is just based on the evidence before the board at the time, how it's presented, what the specific factors are," Hawkins said. "But I think that as this proceeds and the longer this goes on for, I think you're going to see the term 'reasonable' interpreted in a way that's more deferential to employers going forward."

Here, Law360 brings you up to speed on some of the election calls regional directors have made during the pandemic.

Furloughed Workers Included

In June, an NLRB regional director cleared the way for furloughed workers at the Prince Waikiki luxury hotel in Honolulu to participate in an election to affiliate with UNITE HERE Local 5.

The regional director found the hotel didn't demonstrate that the layoffs were permanent, noting there had been "constant communication, training, and the continuation of benefits."

However, Hawkins said the decision might have been a reflection of a more optimistic outlook earlier in the pandemic about how long the situation would last.

"When this pandemic first started — at least in the U.S. and early spring — people thought, including myself, that this was going to be a short-term thing," Hawkins said. "I had no idea that I'd still be working from home eight or nine months later."

Jonathan Turner of Mitchell Silberberg & Knupp LLP also said he was doubtful that the regional director would have reached the same conclusion now, noting that the decision was made before we saw the "moving target of the continual spike" in COVID-19 cases.

"No one can reasonably look at this and say we've got control over this," Turner said. "And so I don't think that we come out with the same result today with that regional director."

Furloughed Workers Excluded

Turner said that we're seeing more decisions like the one issued in October regarding the Courtyard by Marriott Oakland Airport hotel, in which a regional director ordered an election but limited it to the workers who were on the hotel's payroll at a certain date.

Both the company and UNITE HERE Local 2850 introduced evidence about future projections for the hotel and hotel industry in making their case about whether the layoffs were temporary or permanent. But the regional director said she couldn't weigh the merits of their arguments or divine how the industry would recover, since "much about the COVID-19 pandemic is unknown."

But Larry Cary of Cary Kane LLP said the regional director wrongly concluded in her decision that a local ordinance creating a right to recall for the hospitality industry wasn't relevant.

"That makes no sense," Cary said. "If there's a legal right to return to the job, they're temporary employees, they're not permanently laid off employees."

The attorney said that the decision was the outcome of the board's recent ruling in Texas Station Gambling Hall, which he said was an example of the board's anti-worker and anti-union animus.

"What they've done is they've said, basically, the issue of whether it's reasonable for an employee to think they're going to be recalled turns on what is in the employer's mind, and that really shouldn't be the standard," Cary said.

Similarly, in September, an NLRB regional director excluded dozens of furloughed workers from a union election for SeaWorld security staff following a petition from the International Union, Security, Police and Fire Professionals of America on March 11.

SeaWorld had shuttered its three Orlando-area parks several days after the petition was filed, furloughing 41 members of the proposed unit of 64 security officers. Some workers were recalled when the parks partially reopened, but 31 were still out in late June, the decision said.

Ultimately, the regional director concluded that the furloughed workers didn't have a reasonable expectation of recall, citing Texas Station.

Hawkins said the regional directors seem to be saying that they're "not going to hold employers to a strict time frame in regards to bringing back employees" in light of the shelter-in-place orders and uncertainty regarding a vaccine, and that "if there's any question about when they're going to be brought back or what that's going to look like, we're going to defer to the employer."

No Worker Vote

Another October decision from an NLRB regional director dismissed a petition entirely, finding that laid off bus drivers for schools in Oregon's Lake Oswego School District couldn't vote on whether to unionize with Teamsters Local 206 because it was unclear when schools would reopen.

"I'm not really shocked by what the regions are doing here, because if the employer isn't closing totally and keeps a skeleton crew or a small group, then they're directing an election," said David Rosenfeld of Weinberg Roger & Rosenfeld PC. "If the employer comes and says we're closed, we have no idea when we're going to reopen, if ever, they're not directing an election, which seems appropriate. If the employer's saying we're closed, but we're likely to reopen, but we're just not sure when, then they're saying there's an election."

The situation can be tricky for employers who don't want to tell laid off employees that they're closed and not going to reopen, Rosenfeld noted. The attorney also pointed out that it would be a different situation if there were evidence an employer had layoffs to avoid the union election.

Turner and Hawkins both cautioned employers against making overly optimistic statements about reopening, even if the decisions demonstrate cases won't hinge on stray comments.

For laid off workers who want to unionize, Turner said that they'll have to do everything they can to persuade the NLRB that there's a meaningful chance they'll be called back to work.

"That's a tough one for them because they're restrained and they're handicapped by the fact that they're not the person who's best informed about the realities of whether or not that's going to happen," Turner said.

According to Cary, the regions have been "frustrating the desire of employees to have a union at a time when it's more important than ever to have a union."

"We're in the middle of the pandemic," Cary said. "Workers should have some say."

Hawkins also pointed out that facts are going to "play a really key role" in decisions going forward.

"We're all kind of grasping with what the future looks like, what today looks like, given COVID," Hawkins said, "and I think that given that, you're going to see a lot more fact-sensitive decisions by both regional directors and the board."

--Additional reporting by Braden Campbell, Vin Gurrieri and Tim Ryan. Editing by Haylee Pearl.

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