By Vin Gurrieri

Law360 (April 24, 2020, 5:57 PM EDT) -- The National Labor Relations Board ruled Thursday that employees at a Philadelphia-area hospital can move forward with a union representation election, despite the hospital's contention that the coronavirus pandemic would rob it of the ability to make its case to workers before they vote.

In an unpublished decision, the NLRB's three members rejected a request by Crozer-Chester Medical Center in Upland, Pennsylvania, to postpone an election to determine whether certain workers could unionize with the Pennsylvania Association of Staff Nurses and Allied Professionals because of various challenges posed by COVID-19.

Instead, the NLRB upheld a March 23 decision by Richard Heller, acting regional director of the NLRB's Region 4 office in Philadelphia, that a vote could be held to determine if certain professional and technical employees at Crozer-Chester who don't fit within existing bargaining units at the hospital can unionize.

A subsequent notice that was issued after Heller's decision said the vote would be conducted by mail, with ballots being sent to eligible voters on April 21 and counting scheduled for June 15.

But even though it refused to postpone the election, the labor board in a footnote to Thursday's order expressed a general acknowledgement that the realities of COVID-19 could warrant some elections being delayed under the right scenario.

"In denying the request to stay the election, we acknowledge that this election involves employees of an acute-care hospital and that conducting an election during the COVID-19 pandemic raises significant challenges for the employees, the petitioner, and the employer, as well as for regional personnel," the board said. "However, we recognize that our general obligation is to maintain operations to the extent that it is safe and feasible to do so. Although there may be circumstances in a particular case that warrant postponing an election, the acting regional director carefully considered the circumstances presented here, and neither the parties nor the record has raised an issue that warrants postponement of the election."

The union filed a petition to represent the workers in late February. The bargaining units it seeks to represent include clinical nutritionists, physical therapists and rehabilitation aides, among numerous other job categories.

In its April 7 request to the NLRB seeking a review of the regional director's election order, Crozer-Chester argued in part that NLRB should reconsider its precedent regarding so-called residual bargaining units in health care facilities, which are groups of workers who fall outside of already-unionized units.

But as part of its brief, the hospital also asked the NLRB to consider issuing a stay of the election while the board considered the hospital's legal arguments, citing the COVID-19 pandemic, which the hospital said "constitutes an extraordinary circumstance justifying a stay of the election."

The hospital, noting that it was expecting "a huge influx of sick patients" in the days and weeks ahead, said that its "operations and human resources personnel should not be focused on a campaign in the middle of a national emergency, given the possibility that review may be granted and the petition dismissed."

Moreover, the hospital said not delaying the election would place the hospital in the position of either having to forgo a campaign to "effectively express its views to its employees regarding unionization" as it is entitled to do under federal labor law or "risk patient care and safety in favor of ... speaking with its employees about this important issue." It also called into question the reliability of the mail ballot process.

"An election at this time also would be inopportune and unfair to the voters, who are tasked with providing [health care services] during a time of crisis," the hospital said in its brief. "They should not have their attention diverted by an election campaign. And the employer should not be deprived of its right under Section 8(c) of the [National Labor Relations Act] to effectively express its views to its employees regarding unionization; by the same token, the employees should not be deprived of such communication."

The union on April 16 sent the NLRB a sharp rebuke to the hospital's pandemic-related arguments, saying in part that the NLRB "obviously considered the ramifications of conducting elections" during the pandemic when it said on April 1 that union elections would restart the following week after they were briefly paused in mid-March.

"All parties will have difficulty campaigning in the traditional manner, i.e. through face-to-face meetings," the union said in its letter, "but obviously this is something the board must have considered when it made its decision to begin conducting representation elections."

The union also took issue with what it called an "almost insulting" insinuation that health care workers eligible to vote in the union election should concentrate only on their work duties amid the pandemic.

"Health care employees generally have serious responsibilities under a variety of circumstances, but that hardly means they are not capable of exercising their franchise," the union said. "Indeed, a number of elections for public office have been conducted over the last several weeks, the only issue being whether manual balloting in those elections can be conducted safely."

Union counsel Jonathan Walters of Markowitz & Richman told Law360 that the outcome "wasn't a great surprise" since the NLRB followed the law that existed for about two decades in upholding the regional official's direction of an election.

"As to the other issue, the board has made it clear they're going to conduct elections," Walters said, noting that the employer in this case wanted a manual ballot that can't be done in Pennsylvania at the moment as Gov. Tom Wolf has issued a stay-at-home order.

"You particularly can't do a [manual] ballot where you have people who have to come to a hospital property during this pandemic," he added. "So, it seems to me that if there was ever an example of extraordinary circumstances that warrant a mail ballot ... then this is it."

Counsel for the hospital was not immediately available for comment.

The union is represented by Jonathan Walters of Markowitz & Richman.

Crozer-Chester is represented by Louis J. Cannon and Christian White of BakerHostetler.

The case is Crozer-Chester Medical Center and Crozer Professionals Union/Pennsylvania Association of Staff Nurses and Allied Professionals, case number 04-RC-257107, before the National Labor Relations Board.

--Editing by John Campbell.

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