SW Legal studies in Business

Laid-Off Workers Unlikely to Return to Work May Not Vote in Union Representation Election
Description Appeals court reversed NLRB holding that all workers who had been laid off by an employer two months before a union representation election could vote in the election. Unless laid-off workers have a reasonable expectation of returning to work, which did not exist here, they do not have the right to vote in an election.
Topic Labor Law
Key Words Union Representation Election; Laid-off Workers
C A S E   S U M M A R Y
Facts Seawin owned a manufacturing facility in Ohio that lost some major customers and had other problems that caused its profits to fall to a very low level. In January the company laid-off seventeen workers and restructured operations. A few laid-off workers were rehired when other workers quit or were fired, but there was no expectation of rehiring the rest of the workers. In March, the NLRB held a union representation election in which laid-off workers were allowed by the NLRB to vote. The vote was 31-21 in favor of union representation. Seawin challenged the election, saying that the eleven laid-off workers who voted should not have been allowed to vote. The NLRB upheld the election results. Seawin appealed.
Decision Reversed. If there is a reasonable expectancy of recall in the near future, a laid-off employee has the right to vote in a union representation election. The test is whether there is a reasonable expectation of recall at the time of the election. Here the evidence was that there was no reasonable expectation. The company suffered a decline in sales, high inventory, and had restructured operations so it would need fewer employees. Even though the company would lose a tax abatement granted to it by the city where it was located if it kept its labor force above 54 employees, there was no reason to believe that factor would control employment decisions.
Citation NLRB v. Seawin, Inc., 2001 WL 421223 (6th Cir., 2001)

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