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Law360 (July 1, 2020, 6:41 PM EDT) -- Workers at a Hawaii hotel can hold an election to decide if they want to be represented by a union even though most of them are currently furloughed due to the coronavirus pandemic, a National Labor Relations Board official has ruled, rejecting the employer's argument the vote should be indefinitely delayed.
Jill H. Coffman, director of the NLRB's Region 20 office in San Francisco, issued an order Tuesday that an election move ahead to determine if workers at the Prince Waikiki luxury hotel in Honolulu will be represented by UNITE HERE.
The Prince Waikiki, which operates officially as Hawaii Prince Hotel Waikiki LLC, had unsuccessfully argued that the election should be put off for the time being since its operations were grounded to a halt by the coronavirus pandemic and a majority of its workforce was laid off.
But in rejecting that position, Coffman concluded that the hotel failed to prove that the layoffs are permanent.
"I find that the employer has not met its burden to show that the layoffs are permanent, rather than temporary," Coffman said. "Accordingly, the temporarily laid-off employees are eligible to vote and an election is appropriate at this time."
The regional director also resolved a side issue that has come up regularly over the past few months in union representation cases, ordering that the election be held by mail. Prince Waikiki has argued that the vote should be in person, or at a minimum be a mixture of live voting and mail ballots.
Coffman noted that the majority of workers by virtue of being laid-off "could be located anywhere" and, even if they are in Honolulu, would have to travel to the hotel to vote if the election were held in person.
"This scattering of employees, standing alone, is enough to justify a mail-ballot election," Coffman said. "Under normal circumstances, and absent employee scatter, I would almost certainly direct a manual election. However, the current pandemic does not present normal circumstances. … Although requirements have been eased and a slow reopening has begun, guidelines continue to be in place at the federal, state and local level recommending avoiding unnecessary travel, social contact, and conducting business remotely when possible."
Election ballots will be mailed out July 9. UNITE HERE is seeking to represent a bargaining unit of about 350 workers.
According to the RD's decision, the hotel's operations were dealt severe blows when Hawaii officials in late March began mandating that out-of-state visitors quarantine for 14 days when they travel to the state, which prompted the hotel to suspend its operations, save for a small number of rooms that were occupied in June by airline crews, and employ only a skeleton crew of about 50 people. The state's quarantine order will remain in place at least through the end of July.
Workers who were furloughed in late March didn't receive any pay for the first month unless they used accrued paid time off. Although the workers were added back to the payroll in late April, the hotel in mid-June started paying only those who are actually working, but still maintains health insurance for all its workers and allows them to contribute to retirement plans, according to the NLRB's order, which noted that the hotel has held ZOOM meetings with staff.
Coffman said that both the hotel and the laid-off workers in this case "understand that the layoffs are temporary, that the employer has intended all along to reemploy them, and that there is a date certain for reopening the hotel in full."
"Coupled with the constant communication, training, and the continuation of benefits, I conclude that the employees have a reasonable expectation of reemployment in the near future and are thus eligible to vote in the election," Coffman said.
The hotel is represented by Richard Rand of Marr Jones & Wang LLP.
The union is represented by Kristin Martin of McCracken Stemerman & Holsberry LLP.
The case is Hawaii Prince Hotel Waikiki LLC and UNITE HERE Local 5, case number 20-RC-261009, before the National Labor Relations Board.
--Editing by Orlando Lorenzo.
For a reprint of this article, please contact reprints@law360.com.
