In an unpublished decision, the National Labor Relations Board (NLRB) has denied an acute- care hospital’s request to stay a representation election based on the COVID-19 pandemic. Crozer-Chester Medical Center, Case 04-RC-257107 (Apr. 23, 2020).

The union’s representation petition was filed on February 28, 2020. The union, which did not represent any of the other employees in the hospital, sought to represent separate units of all unrepresented technical and professional employees employed at the hospital. The hospital argued that only the union that represented the other hospital employees should be permitted to represent the unrepresented employees. After a hearing, the Acting Regional Director for NLRB region four issued a Decision and Direction of Election on March 23 in favor of the union.

In his Decision and Direction of Election, the Acting Regional Director wrote that the details of the election, including the date, would be determined by the regional office “after consultation with the parties.” The union requested a mail ballot election; the employer opposed the union’s request. However, the Acting Regional Director agreed with the union. (NLRB elections were suspended at the time but were reinstated as of the week of April 6.)

On April 7, 2020, the hospital filed an appeal (request for review) of the unit determination and the decision to hold a mail ballot election. In that appeal, the employer also requested the election be stayed pending the NLRB’s decision on the unit determination portion of the appeal. The hospital argued that the COVID-19 pandemic was “an extraordinary circumstance justifying a stay of the election” and that the hospital “expects a huge influx of sick patients in the coming days and weeks.” More specifically, among others, the hospital argued that its operations and human resources personnel should not be focused on an election campaign during a national emergency; that an election would be unfair to the voters, who, as healthcare employees, should not have their attention diverted by an election campaign; and that the hospital should not be deprived of its right under Section 8(c) of the NLRA to effectively express its views to its employees regarding unionization.

The NLRB denied the appeal of the Acting Regional Director’s unit determination and mail ballot election order. It also refused to stay the election. In denying the stay, the NLRB “acknowledge[d] that . . . conducting an election [at an acute-care hospital] during the COVID-19 pandemic raises significant challenges for the employees, the Petitioner, and the employees, as well as for Regional personnel.” Nevertheless, the NLRB denied the appeal based on its “general obligation … to maintain operations to the extent that it is safe and feasible to do so.” The NLRB acknowledged that there might be circumstances justifying the postponement of an election but decided that those circumstances were not present in this case.

Takeaway

Regarding the NLRB’s refusal to stay the election, it appears the decision was the result of the employer’s failure to provide arguments sufficient to convince the NLRB that a postponement was warranted. Although doing so may be difficult, employers should not give up hope — a more specific argument, perhaps supported by statistics, may yield a different result.

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993