NLRB Proposes Changes to Union Voter List Requirement

Allen Smith, J.D. By Allen Smith, J.D. July 30, 2020
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​The National Labor Relations Board (NLRB) proposed on July 28 to stop requiring employers to give unions employees' e-mail addresses and home telephone and personal cellphone numbers during union election campaigns. The NLRB still would require the disclosure of the names and home addresses of all eligible voters in a union election, as had been the requirement prior to a 2014 final rule that took effect in 2015 and modified the board's representation case procedures.

The NLRB also proposed providing absentee ballots for employees who are on military leave.

The Society for Human Resource Management (SHRM) "supports the NLRB's efforts to protect workforce privacy interests. For our members, protecting the personal data of employees is essential to upholding compliant and ethical HR standards. SHRM has consistently advocated for policies to safeguard the privacy and confidentiality of all employee data," said Emily M. Dickens, SHRM corporate secretary, chief of staff and head, Government Affairs.

"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."

Todd Lyon, an attorney with Fisher Phillips in Portland, Ore., and Seattle, said that the 2014 final rule required employers to provide "available" personal e-mail addresses and phone numbers.

Pryzbylski said the 2014 final rule required employers to furnish the personal contact information of employees, even if companies did not have it in a central database. "The board previously held [that] a company failed to meet its disclosure requirements when it did not provide personal phone numbers of employees of which its various supervisors had possession," he said. "That is problematic for companies facing union elections, especially those of significant size."

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."

Excelsior List

Since its 1966 Excelsior Underwear Inc. decision, the board has required the disclosure of the names and home addresses of employees to a NLRB regional director, who provides that information to unions. Failure to comply with the requirement constituted grounds for setting aside a union election.

In articulating the Excelsior list requirement, the board reasoned it was needed to "maximize the likelihood that all the voters will be exposed to the arguments for, as well as against, union representation" and would "eliminate the necessity for challenges based solely on lack of knowledge as to the voter's identity."

2014 Amendments

The Excelsior list requirement remained undisturbed, except for a clarification that the list must disclose full names and addresses, until 2014, the board noted in the preamble to its July 28 proposed rule.

The 2014 amendments concluded that, in light of dramatic changes in telecommunications since 1966, disclosure of personal e-mail addresses and phone numbers was warranted because it would:

  • Permit unions to promptly convey information concerning the question of representation to all voters.
  • Make it more likely that unions could respond to employee questions.

The 2014 amendments required the employer to provide the list within two business days of the approval of an election agreement or direction of an election. Amendments created in 2019 stated that for petitions filed on or after the effective date of those amendments—May 31, 2020—the employer will have five business days to provide the list.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Privacy Concerns

The 2014 amendments imprecisely identified the privacy interest at stake, according to the board in the preamble to its proposed rule. The privacy interest is not solely limited to that of being left alone. As the 2014 amendments recognized, "some employees will consider disclosure of the additional contact information … to invade their privacy, even if they are never contacted."

Moreover, privacy interests have grown, as data and identity theft has become increasingly rampant, the preamble added.

"The news is rife with stories of large-scale data theft, as well as thefts of individual phone numbers and the mischief that can result, such as 'SIM [subscriber identification module] swap' attacks, in which hackers convince a target's phone company to direct the target's text messages to a different SIM card, thereby intercepting two-factor authentication login codes, enabling hackers to infiltrate the target's accounts," the board stated. "Personal e-mail addresses present similar concerns, as they are the principal point of attack for ever-expanding forms of e-mail fraud—such as spoofing, phishing and other forms of social engineering—scams and hacking."

In addition, the lack of an opt-out procedure entitles the privacy interest in personal telephone numbers and e-mail addresses to greater weight, the NLRB stated.

But Craig Becker, AFL-CIO general counsel, said there was no evidence of abuse related to information on eligible voter lists, Bloomberg reported, and that the proposed rule is "aimed solely at satisfying employer demands to tilt the law in their favor."

Absentee Ballots for Workers on Military Leave

Up to now, the board has adhered to a rule that voters in a union election must appear in person, said Michael Lotito, an attorney with Littler in San Francisco.

That in-person requirement prohibited many members of the military from voting.

Absentee ballots seem like a sensible alternative for members of the military, Lotito said. "The board's rulemaking will explore how voting for members of the military can be enabled while they are serving our country."

The NLRB will continue to prohibit others, including individuals who are injured and can't go to a polling place or employees who are on vacation, from voting in union elections if they are not present in person, noted Phillip Wilson, president and general counsel of Labor Relations Institute in Broken Arrow, Okla. 

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