By Tim Ryan

Law360 (October 22, 2020, 8:31 PM EDT) -- Workers who were laid off from their jobs at an Oakland, California, Marriott due to the COVID-19 pandemic cannot vote in an upcoming union election because they don't have reason to believe they will be rehired soon, a National Labor Relations Board official said Thursday.

The decision from NLRB Oakland office director Valerie Hardy-Mahoney approved a union election at the Courtyard by Marriott Oakland airport hotel, but limited participation to workers who would be members of the unit and were on the hotel's payroll on Oct. 14.

Hardy-Mahoney said that because former employees the hotel laid off in early May in response to the pandemic have not been given any indication of if or when they might return to work, they do not have a reasonable expectation of being rehired and are ineligible to vote under NLRB precedent.

"I find the record demonstrates the permanently laid off employees have been given no estimate as to the duration of their layoff, nor any specific indication as to when, if at all, they will be recalled, and as such no reasonable expectancy of recall exists," Hardy-Mahoney wrote.

Though the numbers are not yet finalized, the order says approximately 15 workers will be able to vote while roughly 35 who were laid off permanently will not get ballots. 

Before the pandemic broke out earlier this year, the Courtyard by Marriott Oakland Airport had roughly 50 employees who performed jobs that fit in a unit that Unite Here Local 2850 seeks to represent. The pandemic fell particularly hard on the travel industry, dropping reservations at the hotel below expectations and leading to furloughs for some employees that became layoffs in May.

The union argued that workers who were part of the May layoffs should be eligible to participate in the upcoming union election under an NLRB precedent called Apex Paper Box Co., which allows workers to cast ballots if the company laid them off with the expectation they would return to work. That decision said a layoff is temporary if an employee has a reasonable expectation that they will be rehired in the near future.

As the economy recovers and hotel bookings increase, the union argued the hotel could bring back more workers, and those rehires should have a say in the representation of their workplace.

But Hardy-Mahoney said any effort to predict a rebound in the hotel industry or economy during a global pandemic would be little more than "an educated guess." She also noted there is no history of similar layoffs at the company that could inform when and if laid off workers might return and no official guidance from Remington beyond the optimistic tone it struck when the layoffs first hit.

While she limited the number of workers who may cast ballots, Hardy-Mahoney said the election should be conducted by mail given health concerns from the ongoing pandemic. She said the constant flow of guests in and out of the hotel makes it impossible to ensure the election would be conducted safely in-person even with the best preventative measures.

Counsel for the union and the union itself did not immediately return requests for comment on the decision.

Counsel for Remington declined to comment and a spokesperson for the company did not immediately return a request for comment.

Unite Here Local 2850 is represented by Kimberley Weber of McCracken Stemerman & Holsberry LLP.

Remington Lodging & Hospitality LLC is represented by Hayden Pace and Christina Tantoy of Stokes Wagner LLC.

The case is Remington Lodging & Hospitality LLC dba Courtyard by Marriott Oakland Airport and Unite Here Local 2850, case number 32-RC-259953, before the National Labor Relations Board.

--Editing by Haylee Pearl.

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