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.

 

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.