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Law360 (August 26, 2020, 5:37 PM EDT ) The National Labor Relations Board may soon lay out parameters for in-person union elections during the COVID-19 pandemic after the panel's Republican majority voted to review a regional official's decision calling for a mail-ballot election at a Michigan hospital.
Chairman John Ring and members Marvin Kaplan and Bill Emanuel said Aspirus Keweenaw Hospital raised "substantial issues warranting review" in its appeal of Minneapolis office head Jennifer Hadsall's Aug. 17 decision, staying the impending mail vote in a decision issued Tuesday and released Wednesday.
Hadsall said a so-called manual election would be unsafe despite the relatively low COVID-19 risk in Michigan's Upper Peninsula and Aspirus' proposal to implement certain precautions.
Lauren McFerran, the board's sole Democrat, dissented from the vote. She said "there is no basis for even suggesting, let alone concluding, that [Hadsall] abused her discretion in ordering a mail-ballot election," referencing the board's high bar for overturning regional directors' election decisions.
The board's decision will likely come as a relief to the business lobby, which has pushed for a return to manual elections as the coronavirus pandemic slows in parts of the country.
The board paused most operations when the pandemic exploded in March but resumed processing elections in April, giving the regional directors who oversee votes the discretion to decide how they proceed. Regional directors have used that discretion to call for mail-ballot elections in almost all cases, even after general counsel Peter Robb issued protocols for safely holding manual votes last month.
The board upheld those decisions in all cases until Tuesday.
Aspirus pushed for an in-person vote after its workers petitioned to affiliate with Michigan Nurses United, arguing that COVID-19 is under control in the Upper Peninsula and offering to implement safety measures, including requiring that anyone entering its building wear a mask and turning away anyone who exhibits virus symptoms.
But Hadsall said virus transmission is still too high and Aspirus' safety plan is too porous to ensure workers could vote safely.
Aspirus asked the board to review Hadsall's decision two days after she ruled, arguing that she applied the "densely populated urban lens of her environs" to an area with much lower COVID-19 risk. Hadsall placed "undue focus" on rising case numbers in other areas of the state while disregarding the low rates of infection in the Upper Peninsula and misrepresented Michigan Gov. Gretchen Whitmer's executive order calling for "greater vigilance" amid a rise in cases, the company argued.
The majority on Tuesday said little aside from granting the company's request, while McFerran panned the move in a modest dissent. She said Hadsall "clearly and rationally weighed all the relevant factors," including a recent rise in COVID-19 cases in the Upper Peninsula in July and continuing through August.
"The employer certainly has not met the high bar of demonstrating that the regional directors' thoughtful conclusions about how to best preserve public safety constituted an abuse of discretion," McFerran said.
--Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
