Labor & Employment Law Daily NLRB declines to postpone union election at hospital during COVID-19 pandemic
Thursday, April 30, 2020

NLRB declines to postpone union election at hospital during COVID-19 pandemic

By Ronald Miller, J.D.

The Board’s Health Care Rule aimed at limiting the proliferation of bargaining units in a health care setting did not require replacement of already existing historical bargaining units.

Rejecting an acute-care hospital’s contention that the COVID-19 pandemic constitutes an extraordinary circumstance justifying a stay of a union election, the NLRB denied the hospital’s request for review of an acting regional director’s decision allowing an election to continue as scheduled, and upheld a ruling on the makeup of bargaining units. The hospital had challenged the appropriateness of a residual unit of unrepresented professional and technical employees. It also argued that as a major hospital, it could expect a huge influx of patients in the coming weeks, and that its operations and HR personnel should not be focused on a union campaign in the midst of a national public health emergency. However, the Board, in an unpublished decision, observed that the acting regional director carefully considered the circumstances presented here, and neither the parties nor the record has raised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 (Crozer-Chester Medical Center, April 23, 2020).

On February 28, 2020, the Crozer Professionals Union filed a petition seeking to represent certain of the hospital’s professional and technical employees, each in a separate unit. The parties stipulated that none of the employees are currently represented in any existing bargaining unit.

Since April 6, 1972, the Laborers union has represented approximately 450 employees at the hospital, approximately 400 of whom are “nonprofessional” employees. The remaining 50 employees are technical employees. Additionally, the National Union of Hospital and Health Care Employees, District 1199C, has represented a bargaining unit of approximately 100 technical employees. Lastly, since 1978, the Society of Pharmacists has represented about 15 hospital pharmacists. At no point have these unions sought to intervene in this matter.

Health Care Rule. In 1989, the Board issued a Health Care Rule which sought to avoid the proliferation of health care bargaining units and limit the possible units to a reasonable, finite number of groups that display a community of interest within themselves and a disparity of interest from other groups. Further, the rule provides for eight appropriate units. In a situation where nonconforming units already exist, the rule provides that additional units will be found appropriate only if they conform “insofar as practicable” to one of the rule’s eight enumerated units.

A gray area. A gray area of the Health Care Rule was at issue in the Board’s 2000 decision in St. Mary’s Duluth Clinic Health System, where the Board considered whether a petitioned-for residual non-conforming unit was appropriate under the rule. The hospital employed a unit of 175 LPNs who were represented by a nurses’ union. That unit was determined to be “non-conforming” to the enumerated units under the Health Care Rule because it excluded 230 technical employees at the hospital. The Steelworkers petitioned to represent these technical employees in a residual technical unit. The hospital challenged the appropriateness of the petitioned-for unit, arguing that “the only appropriate unit would be an all-technical unit that included both the already represented LPNs and remaining technical employees.”

Rejecting the employer’s arguments, the Board in St. Mary’s found that the petitioned-for unit of all remaining technical employees was an appropriate residual unit, explaining that “where there are existing, nonconforming units, additional units will be found appropriate only if they conform ‘insofar as practicable’ to one of the enumerated units.” The Board reasoned that the phrase “insofar as practicable” permits the finding that a petitioned-for residual unit comprising all unrepresented employees is appropriate. It further stated that the Health Care Rule did not require the abandonment of, and replacement of, existing historical units with units that specifically conform to those set forth in the Health Care Rule.

Non-incumbent union. In the present case, a non-incumbent union sought to represent separate units of all currently unrepresented technical and professional employees. It defended the appropriateness of the petitioned-for units based on St. Mary’s. The employer, relying on Member Hurtgen’s dissent in that case, argued that the petitioned-for units were inappropriate as only the incumbent unions currently representing their respective non-conforming professional and technical units should be permitted to organize and represent the petitioned-for residual units.

The existing units here were historical, longstanding relationships that the Board in St. Mary’s chose not to make subordinate to congressional concern for the undue proliferation of bargaining units in the healthcare industry. Determining that the majority opinion in St. Mary’s is the current controlling law, the acting regional director concluded that the petitioned-for units were appropriate, and therefore, directed an election in the units.

COVID-19 pandemic. “It has become obvious that the nation’s infrastructure is not equipped to properly deal with the enormity of this crisis,” the hospital noted in seeking a stay of the pending election, arguing that it “simply would be inappropriate for the Employer to be placed in this position while it is trying to deal with a situation in which the President and Governor of Pennsylvania have declared states of emergency.” Moreover, in the event of a union win, the hospital would be faced with the prospect of risking a violation of Section 8(a)(5) of the Act by doing what is necessary to operate effectively amidst the public health crisis, “or effectively abandon its Request for Review and bargain with the Petitioner out of an abundance of caution.”

Denying the stay, the Board acknowledged 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 union, and the employer, as well as for NLRB regional personnel. Nevertheless, the Board said, its general obligation is to maintain operations to the extent that it is safe and feasible to do so. In this case, neither the parties nor the record raised an issue that warranted postponement of the election.

The regional director mailed ballots to employees on April 21; ballots will be opened June 15, 2020.

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