NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel

National Labor Relations Board - Board Decisions

Aug 31, 2020

370 N.L.R.B. 11 (N.L.R.B. 2020)

370 NLRB No. 11
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
NP Texas LLC d/b/a Texas Station Gambling Hall and
Hotel and Local Joint Executive Board of Las Ve-
gas, Petitioner. Case 28–RC–261253
August 31, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On May 28, 2020,1 the Petitioner filed a petition to rep-
resent a unit of employees at the Employer’s casino and
hotel in Las Vegas, Nevada (the Texas Station Casino).
On July 2, the Regional Director issued a Decision and
Direction of Election, directing a mail-ballot election and
scheduling the ballots for mailing on July 23. Thereafter,
in accordance with Section 102.67 of the National Labor
Relations Board’s Rules and Regulations, as amended, the
Employer filed a request for review, along with a request
to stay the election. On July 13, the Board issued an order
staying the election.
The issue in this case is whether the Regional Director
erred in scheduling an election during a time in which the
Employer has indefinitely suspended its operations and
laid off all of its employees, due to the Coronavirus Dis-
ease 2019 (COVID-19) pandemic. For the reasons stated
below, the Employer’s request for review of the Regional
Director’s Decision and Direction of Election is granted,
as it raises substantial issues warranting review. Upon re-
view, we find that the Employer’s laid-off employees have
no reasonable expectation of recall and are therefore inel-
igible to vote. Thus, there are no eligible voters at this
time. Under such circumstances, we conclude that the best
course of action is to dismiss the petition, without preju-
dice and subject to reinstatement when the Employer re-
sumes its operations.
A. Facts
On March 18, the Governor of Nevada issued an emer-
gency directive, directing all of the state’s casinos to cease
operations until April 16. In accordance with this di-
rective, the Employer’s parent company, Station Casinos,
alerted its employees that it would be temporarily closing
all 20 of its Las Vegas properties. While some of the pe-
titioned-for employees continued working through the end
of March in order to prepare the casino for an extended
shutdown, most of the petitioned-for employees had their
last day of work on or about March 18. At that time, some
employees’ managers or supervisors informed them that
1 All dates 2020 unless otherwise noted.
they would likely be recalled probably at the end of April
or in early May pursuant to the recall provisions of the
Employer’s Reduction-in-Force policy. The policy states
that “if a laid off Team Member returns to a position
within the Company within 90 days, the Team Member
will be reinstated with his or her original hire date.”
The casino, however, did not reopen before August 1.
The Governor extended the casino closure order on March
31, and then again on April 29; with the second extension,
the Governor ordered gaming operations to remain closed
through May 15, and until the Nevada Gaming Control
Board determined that operations could safely resume. In
response to these orders, on May 1, Station Casinos issued
a letter to all of its employees, outlining a reopening plan.
Under the first phase of its reopening plan, Station Casinos
would reopen several of its properties (collectively the
Phase One Properties). The non-Phase One Properties, in-
cluding Texas Station Casino, would remain closed, and
Station Casinos would “look at reopening them once we
have had a chance to assess how our business is perform-
ing in a post COVID-19 world.” The letter stated that
there would be meaningful staffing-level reductions but
that it was “hopeful . . . that Las Vegas will rebound
swiftly and allow us to rehire many of our valued team
members when we emerge on the other side of this crisis.”
It concluded by observing that “[e]ach team member will
separately receive a communication with respect to his or
her employment status.”
For the petitioned-for employees at Texas Station Ca-
sino, this “separate communication” was a May 1 termi-
nation letter. The letter explained that “[t]he Company’s
casino operations in Nevada have been temporarily closed
for business since the [Governor’s] order became effec-
tive[,] and the uncertainties facing the Company prevent
us from predicting whether or when we can resume nor-
mal operations.” The letter further explained that, due to
these circumstances, Station Casinos “made the difficult
decision to temporarily close its Texas Station casino ef-
fective May 1, 2020, and your employment will end at that
time.” Consistent with its practices and policies for termi-
nated employees, the Employer paid out unused vacation,
accrued vacation, and floater days to the terminated em-
ployees; required those employees to return their uni-
forms; cleaned out their lockers and allowed them to re-
claim the contents; and helped them process unemploy-
ment claims by taking the position that the employees had
been permanently terminated. Full-time employees would
have their medical, dental, and vision benefits extended
through September 30, and the employees were paid
through May 16.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On May 7, the Governor issued another directive, stat-
ing that gaming operations would remain closed through
Nevada’s first phase of reopening, effective through May
30. On May 19, the Chief Financial Officer (CFO) of Red
Rock Resorts, a publicly traded company that manages
Station Casinos, announced Station Casinos’ plans with
respect to the Phase One Properties, as outlined above.
The CFO stated that “[w]e remain hopeful that Las Vegas
and our business will rebound quickly and allow us to re-
hire many of these valued team members when we emerge
on the other side of this crisis,” and that “casinos will be
permitted to reopen in the coming weeks.” With respect
to Texas Station Casino and other non-Phase One Proper-
ties, the CFO stated that “we will look at reopening these
properties once we have had a chance to fully assess how
our first-to-open properties are performing post-crisis, as
well as the recovery of the Las Vegas market and the econ-
omy as a whole.”
On May 27, the Governor ordered the Nevada Gaming
Control Board to promulgate requirements for a phased
and incremental resumption of gaming operations, with
openings commencing no sooner than June 4. Station Ca-
sinos immediately announced that it would reopen its
Phase One properties on June 4, as it had planned. Station
Casinos made no announcements or remarks with respect
to reopening Texas Station Casino or the other non-Phase
One properties. As of June 11, the marquee outside the
Texas Station Casino read, in part, “STAY SAFE, WE’LL
BE BACK!”; around June 15, the Texas Station Casino
website began to display a pop-up window that stated
“[w]e are temporarily closed and currently not taking res-
ervations. We look forward to opening soon and welcom-
ing you back.”
As of the June 16 hearing in this case, none of the four
non-Phase One Properties had reopened to the public. At
the hearing, the Executive Vice President (EVP) and Chief
Legal Officer (CLO) of Red Rock Resorts and Station Ca-
sinos LLC, Jeffrey Welch, stated unequivocally that
“[t]here is no current plan to reopen Texas Station.”
Welch testified that there was no timetable in place for re-
opening any of the non-Phase One Properties, and that he
did not “anticipate that a decision will be made about what
to do about Texas Station for quite some time.” Accord-
ing to Welch, “the decision on Texas Station . . . would be
the last decision that we would make,” and was “likely to
be at the very tail end of our decision-making process.”
While he acknowledged being “not displeased” with re-
spect to the reopening of the Phase One Properties, and
noted that there appeared to be a lot of “pent-up demand”
for casinos to reopen, he stated that any reopening deci-
sion would involve a multi-factor analysis, including the
performance of any reopened casino; the state of the
economy as a whole; how Las Vegas, in particular, was
doing; and whether there was any “backsliding” with re-
spect to the ongoing health crisis. Under these circum-
stances, it was Welch’s view that “[i]t is possible that we
will open one or more of those properties [non-Phase One
casinos],” but that “[i]t is also possible that one or more of
those properties will never reopen.” He further testified
that there was “no reasonable likelihood,” “whatsoever,”
that Texas Station Casino would reopen in 2020. As of
our decision today, Texas Station Casino remains closed.
B. Analysis
“It is well established that temporarily laid-off employ-
ees are eligible to vote,” and that “[t]he voting eligibility
of laid-off employees depends on whether objective fac-
tors support a reasonable expectancy of recall in the near
future, which establishes the temporary nature of the
layoff.” Apex Paper Box Co., 302 NLRB 67, 68 (1991).
These factors include “the employer’s past experience and
future plans, the circumstances surrounding the layoff,
and what the employees were told about the likelihood of
recall.” Id. In order for employees to be eligible to vote,
a reasonable expectation of recall must exist at the time of
the payroll-eligibility period, regardless of whether the
employees have been recalled by the date of the election.
Id. Permanently laid-off employees—i.e., those laid off
with no reasonable expectation of recall—are not eligible
to vote. Id. at fn. 2.
Here, the Regional Director concluded that “the peti-
tioned-for employees are laid off employees with the rea-
sonable expectation of recall.” In this regard, he observed
that “[t]he Employer’s public statements, e.g. the marquee
outside Texas Station, the statements made during the
quarterly earnings call, supervisors’ statements to individ-
ual employees, the Employer’s human resources policies,
and the testimony of the Employer’s own witnesses shows
that the Employer has not permanently closed its Texas
Station casino and that it may reopen depending on” sev-
eral factors, including the performance of the Phase One
Properties. The Regional Director further observed that
“the Employer has not announced and/or does not have
current plans to fundamentally change the nature of its
business at Texas Station,” and that “the employees may
reapply for work with the Employer, even after the 90-day
recall period.”
We disagree with the Regional Director. “In the ab-
sence of evidence of past practice regarding layoffs, where
an employee is given no estimate as to the duration of the
layoff or any specific indication as to when, if at all, the
employee will be recalled, the Board has found that no
reasonable expectancy of recall exists.” Id. at 69; see also
Foam Fabricators, 273 NLRB 511, 512 (1984); Tomadur,
Inc., 196 NLRB 706, 707 (1972). The Board has observed
NP TEXAS LLC D/B/A TEXAS STATION GAMBLING HALL AND HOTEL 3
that “[w]hen the employer has had a past history of layoffs
and recalls it is somewhat easier to determine exactly what
would be a reasonable expectancy of reemployment in the
near future,” such that “[i]f the business pattern follows a
cyclical or seasonal term and employees who are laid off
are usually rehired, the prediction can be made with some
accuracy.” Foam Fabricators, supra at 512. But, if the
employer has no reasonable way to predict when it will
recall employees—especially where the employer is fac-
ing a situation for which it has no past practice or where
the employees at issue were hired for a specific, non-sea-
sonal project—the Board will find that the employees at
issue are not eligible to vote. See id.; see also S&G Con-
crete Co., 274 NLRB 895, 896 (1985). Under such cir-
cumstances, “[v]ague statements by the employer as to the
‘chance’ or ‘possibility’ of the employee being rehired do
not provide an adequate basis for concluding that the em-
ployee had a reasonable expectancy of reemployment.”
Foam Fabricators, supra at 512; see also Sol-Jack Co.,
286 NLRB 1173, 1173–1174 (1987); S&G Concrete, su-
pra at 897 (“[W]hen the other factors involved do not sup-
port a laid-off employee’s having a reasonable expectancy
of recall, verbal statements indicating possible recall will
not overcome the totality of the evidence to the con-
trary.”).
Here, the Employer has not indicated, and there is no
basis for finding that it could have indicated, when it will
resume operations and/or recall the employees at issue.
While the Employer’s managers may have made state-
ments suggesting that the laid-off employees would be re-
called in late April, they made these statements in early
March. By the time the employees were laid off on May
1, it was clear that the Employer had no idea of when (or
whether) the Texas Station Casino would reopen and re-
sume operations. Nor does the Employer have any “past
practice” relating to laying off employees in the face of an
unprecedented pandemic. Moreover, the Employer con-
tinues to have no set timeframe for when—if ever—Texas
Station Casino will reopen. Under such circumstances,
the totality of the evidence indicates that the Employer
cannot reasonably predict when Texas Station Casino will
2 We agree with the Regional Director that the Board’s cessation-of-
operations precedent ordinarily would not warrant a dismissal here. Un-
der that line of cases, the Board will dismiss a petition “when cessation
of the employer’s operations is imminent, such as when an employer
completely ceases to operate, sells its operations, or fundamentally
changes the nature of its business.” Retro Environmental, Inc./Green
Jobworks, LLC, 364 NLRB No. 70, slip op. at 4 (2016). Here, however,
there is no dispute that, at a minimum, the Employer hopes to resume
operations in the future without substantially altering its business. In that
event, the unit would continue to exist, and should employees select the
Union as their exclusive representative, there would be ample oppor-
tunity for bargaining. Thus, this case is distinguishable from typical
reopen or whether (much less when) any of the laid-off
employees will be recalled or rehired. Combined with the
May 1 termination letters to employees, there is no basis
for finding that any unit employees have a reasonable ex-
pectation of recall at this time. Under Board precedent,
the vague and hopeful statements cited by the Regional
Director, such as those on the Employer’s website and
marquee, are not sufficient to find otherwise.
In short, under Board precedent, none of the petitioned-
for employees currently has a reasonable expectation of
recall, and Employer therefore has no eligible voters that
could vote in any election to be held in the foreseeable fu-
ture. Thus, as a practical matter, the Board cannot hold an
election at this time,2 and at this juncture and on this rec-
ord any prediction for when there may once more be eli-
gible voters in this unit would be unduly speculative. Ac-
cordingly, we shall dismiss the petition, without prejudice
and subject to reinstatement when the Employer resumes
operations.3
ORDER
IT IS ORDERED that the petition is dismissed.
Dated, Washington, D.C. August 31, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
cessation-of-operations cases in which the employers were permanently
shutting down their operations and effectively erasing the bargaining
units, with no possibility of returning. Rather, a temporary-closure situ-
ation like this presents a different question: whether the employer’s clo-
sure is sufficiently indefinite so as to remove any reasonable expectation
of recall in the foreseeable future, rendering all of the laid-off employees
ineligible to vote. Because we conclude that the Employer’s closure is
sufficiently indefinite to remove any reasonable expectation of recall at
this juncture, there are no presently eligible voters for which an election
can be held.
3 See, e.g., Cal-Neva Lodge, 235 NLRB 1167, 1167 (1978); Todd-
Galveston Dry Docks, Inc., 54 NLRB 625, 626 (1944).