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Law360 (March 24, 2021, 6:08 PM EDT) -- The National Labor Relations Board on Wednesday paused a union election at a Chicago hospital where most voters are vaccinated against COVID-19, intervening to block a mail vote for the first time since it set guidelines for safe in-person votes in November.
A panel majority comprising Republican members Marvin Kaplan and John Ring granted Rush University Medical Center's request to stay the union vote in a brief order hours before the board's Chicago office was set to mail out ballots. Chairman Lauren McFerran, the board's sole Democrat, said she would deny the motion in a similarly bare dissent.
The hospital filed an emergency motion to block the vote last week, days after Chicago office acting head Paul Hitterman said about 60 phlebotomists could vote by mail on whether to join Teamsters Local 743.
The NLRB prefers to hold union votes in person when possible, but regional overseers have typically called for mail-ballot elections since the start of the coronavirus pandemic, and have done so exclusively amid the nationwide surge in cases that began last fall. Hitterman alluded to arguments the hospital made for staging the election in-person but did not analyze them, noting regional officials have sole discretion to decide the format of union elections.
Rush urged the board to pause the vote and review Hitterman's decision in Friday motions, accusing Hitterman of "sidestepping the board's guidance in Aspirus Keweenaw," the November decision in which it set out a framework for analyzing whether so-called manual votes are safe.
In Aspirus, the board directed regional officials to consider several factors, including 14-day case trends in the immediate area, whether the company's proposed voting location accommodates certain precautions and whether the involved facility has a current outbreak.
Rush argued that its circumstances more than clear the bar set in Aspirus, most notably the high vaccination rate among its staff. The hospital said just under three-quarters of its workers have received the full two-dose course and several more have received the first shot and are awaiting their second. There have been no recent cases of COVID-19, the respiratory ailment caused by the coronavirus, among the phlebotomists and few across the workforce generally, and local case trends are below thresholds set out in Aspirus, the hospital said.
Finally, Rush noted that it has pledged to set up a physical voting area that meets standards discussed in Aspirus and related guidance by the NLRB general counsel for conducting safe elections.
Hospital spokesperson Tobin Klinger said the hospital "appreciates that the National Labor Relations Board is considering this request."
"Ultimately, Rush leaders want an election format that allows all phlebotomists to easily and safely participate during their regular workday -- so we can have 100% voter participation," Klinger said.
An attorney for the union did not immediately respond Wednesday to a request for comment.
The hospital is represented by Kenneth Sparks and Mark Stolzenburg.
The union is represented by Brendan Crowley of Teamsters Local 743.
The case is Rush University Medical Center v. Teamsters Local 743, case number 13-RC-272731, in the National Labor Relations Board.
--Additional reporting by Danielle Nichole Smith. Editing by Neil Cohen.
Update: This story has been updated with comment from the hospital.
For a reprint of this article, please contact reprints@law360.com.
