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Law360 (January 15, 2021, 6:58 PM EST ) Audiovisual technicians for an event services provider cannot vote to unionize because the company laid them off due to the coronavirus pandemic with no expectation of their returning anytime soon, a National Labor Relations Board official has ruled.
An NLRB regional director dismissed the petition by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Local 611 for an election among Audio Visual Services Group LLC technicians in Monterey, California, in a supplemental decision and order Thursday. The official said that even though the company characterized the layoffs as temporary furloughs, the future was uncertain enough to prohibit an election under board standards.
"While employees may return to work at some point, there is no basis to conclude they will return in the near and foreseeable future," Valerie Hardy-Mahoney, regional director for the NLRB's Region 32, said in the decision.
Under NLRB standards, laid-off employees can vote in a union election when the layoffs are temporary, but not when they are permanent, the regional director said.
When there is a dispute about the length of the layoffs, the board considers "whether objective factors support a reasonable expectancy of recall in the near future," according to the decision. Those factors include past experience, future plans, the layoff circumstances and communications to workers about their return, the decision said.
In the case of the AV technicians, COVID-19 has made the situation so unprecedented and unpredictable that none of those factors point to their returning to work any time soon, according to the regional director.
"When facing a situation where an employer has no reasonable way to predict when it will recall employees, such as a situation where it has no past practice and no knowledge of when circumstances will support recall or reemployment, no reasonable expectancy of recall exists," the regional director said.
The NLRB official cited an August decision involving Texas Station Gambling Hall and Hotel, in which the board canceled a union election among workers a Las Vegas casino had laid off due to COVID-19.
The employer in the casino case had eventually told the workers the layoffs would be permanent, whereas the AV technicians still understood their furloughs to be temporary, according to Thursday's decision. But the regional director said the decision in the earlier case could still apply to the AV technicians because both cases involved "an essentially identical cessation of all business as the result of a worldwide pandemic."
The regional director pushed back against the union's argument that business could increase in the near future if the pandemic improved, calling the notion "speculative and unpersuasive." There was no evidence that business would return, and the opposite seemed more likely, according to the regional director.
"While we all certainly hope that a return to normal will occur in 2021, and soon, the speed of the vaccination effort and what impact this will have on the economy is ultimately an unknown," the director said.
IATSE Local 611 filed its initial petition for an election on March 6, days before the World Health Organization declared COVID-19 a pandemic. The same month, Audio Visual Services Group furloughed about 7,000 workers, including the technicians in Monterey, according to Thursday's decision.
The company sent additional notices over the next few months to employees extending the furlough, most recently in August, according to the decision.
Audio Visual Services Group told the NLRB that its business had declined 99% from what it expected, and that its outlook for 2021 was "similarly bleak," the regional director said. The employees seeking the union vote all worked at hotels or conference centers, places the pandemic has hit especially hard, according to the decision.
Counsel and spokespeople for the company and union were not immediately available to comment.
The union is represented by David Fujimoto of Weinberg Roger & Rosenfeld.
The company is represented by David Shankman and Michael Willats of Shankman Leone PA.
The case is Audio Visual Services Group LLC v. IATSE Local 611, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, case number 32-RC-257578, in the National Labor Relations Board Region 32.
--Additional reporting by Braden Campbell. Editing by Neil Cohen.
For a reprint of this article, please contact reprints@law360.com.
