D.C. Circuit Requires Employers to Turn Over Union Voter Lists Faster

Allen Smith, J.D. By Allen Smith, J.D. January 17, 2023
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Someone submitting a ballot in a union ballot box

​Employers ordered by a National Labor Relations Board (NLRB) regional director to participate in a secret-ballot union election have only two days to provide unions with employees' personal contact information, as a result of a decision handed down on Jan. 17 by the U.S. Court of Appeals for the District of Columbia Circuit. The court struck down the voter list portion of a 2019 final rule that had given employers five days to provide the information, favoring a 2014 final rule.

The court also struck down two other provisions of the 2019 rule, noting it was issued without going through the public notice-and-comment period, and a fourth that it found contradicted the text of the law. The court upheld two other provisions as procedural.

The loss of three days in turning over voter lists may not sound like a significant change, but handing over the lists can rile employees if they are taken off guard. This decision may leave employers scrambling both to provide the lists and to alert employees that they are required to do so.

"Many employees may not want their personal contact information disclosed to third parties, like unions, without their consent," said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. "This could be due to wanting to avoid incessant solicitation or just general privacy concerns."

Mark Kisicki, an attorney with Ogletree Deakins in Phoenix, said, "Many employees have expressed anger and a sense of betrayal when they learn their employers have given unions private information they assumed would be held in confidence."

Voter List Requirement

The NLRB didn't seriously dispute that the primary purpose of the voter list is to facilitate the union's campaign activities, the court noted. Before receiving the list, the union doesn't have the same ability as the employer to contact employee-voters.

"By delaying the employer's obligation to share with the union the employee-voters' contact information, the provision trenches on the union's substantive interest in campaigning on equal footing with the employer," the court stated. Therefore, the requirement wasn't procedural and had to go through the notice-and-comment period to be changed.

In support of the 2019 change to five days from the 2014 rule's two, the NLRB emphasized the significance of the added time for employers, which may not have personal contact information in a central database, Pryzbylski noted.

Now that employers again must turn the voter lists over to unions in two days, they may have difficulty providing the personal contact information that must be supplied, information that includes cellphone numbers, said Phillip Wilson, president and general counsel with Labor Relations Institute in Broken Arrow, Okla. The employer may not know that a supervisor alone has this information.

The pre-election period is presumptively set at 20 days but is often shorter, the court noted.

"In any event, a three-day head start on campaigning by employers before a union can even access employee contact information to reach potential voters is not erased by the addition of other days both parties might use to campaign," it stated. "The asymmetry of three additional days of employers' exclusive access to employee-voters' contact information substantively burdens the union's ability to campaign on equal footing."

Three Other Provisions Struck Down

Under the 2019 rule, a regional director will certify election results only after resolving any requests for review concerning the decision and direction of election or objections to the conduct of the election, or after the time for seeking such board review has passed.

The 2014 rule, which had by contrast gone through notice and comment, provided that a regional director would certify election results without regard to whether a request for review was pending or still might be timely filed.

The court held that the 2019 provisions delaying the certification of election results were substantive and therefore should have gone through notice and comment.

The 2019 rule also noted that election observers play "the indisputably important role" of "representing their principals, challenging voters, generally monitoring the election process, and assisting the board agent in the conduct of the election."

That rule provided that for in-person elections, any party may be represented by observers of its own selection. Whenever possible, a party should select a current member of the voting unit as its observer, and when no such individual is available, a party should select a current nonsupervisory employee as its observer. Selection of observers is also subject to such limitations as the regional director may provide, the rule stated.

By comparison, the 2014 rule stated that when the election is conducted in person, any party may be represented by observers of its own selection, subject to limitations provided by the regional director.

The AFL-CIO, the plaintiff in this case, argued that the 2019 rule limited unions' ability to select as observers former employees or union staff members who are less likely to be subject to intimidation.

The court concluded that the election-observer provision was not procedural and should have been subject to the notice-and-comment period.

This 2019 rule's impoundment provision said that if a party files a request for review of a direction of election within 10 business days of its issuance by the regional director and the NLRB either grants the request or doesn't rule on it before the election, all ballots should be impounded and remain unopened pending such ruling or decision. This provision was contrary to the text of the National Labor Relations Act, the court ruled.

Two Provisions Upheld

The court upheld the pre-election litigation of certain issues as procedural and something the NLRB could change in the 2019 rule without notice and comment.

Under the 2019 rule, disputes concerning unit scope, voter eligibility and supervisory status will normally be litigated and resolved by the regional director before an election is directed. Under the 2014 rule, disputes concerning individuals' eligibility to vote or inclusion in an appropriate unit ordinarily do not need to be litigated or resolved before an election is conducted.
The court rejected the AFL-CIO's argument that this provision of the 2019 rule wasn't procedural because the employer usually received a pre-election advisory opinion regarding the status of individual employees.

In addition, under the 2019 rule, there is a presumptive waiting period of 20 business days immediately following the direction of election to let the board rule on disputes between the parties. The 2014 rule provided that the regional director should schedule the election for the earliest date possible.

Changes to timetables are procedural, so notice and comment weren't needed to make this change, the court concluded.

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