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NLRB proposal rolls back email, phone number voter list requirements

By Pamela Wolf, J.D.

The proposed rule would repeal the Obama-era 2014 amendment to the voter list rule, reverting to the name and address requirement established in the Board’s 1966 Excelsior Underwear decision.

Using privacy concerns as its justification, the National Labor Relations Board proposes to amend its rules and regulations to eliminate the requirement that employers must, as part of the Board’s voter list requirement, provide available personal email addresses and available home and personal cellular telephone numbers of all eligible voters. The Board also wants to provide absentee mail ballots for employees who are on military leave, according to the proposed rule notice slated for publication in the Federal Register July 29.

Voter lists. According to the Board, the elimination of the requirement that employers provide available personal email addresses and available home and personal cellular telephone numbers of all eligible voters during an election campaign “will better balance employee privacy interests against those supporting disclosure of this information.” The current voter list requirement affords insufficient weight to employee privacy interests, the Board contends. Eliminating the required disclosure of personal email addresses and personal telephone numbers will purportedly redress this imbalance.

2014 modifications. Until 2014, under the Board’s 1966 Excelsior Underwear decision (156 NLRB 1236), only the voter’s name and address was required. However, in 2014, the Obama-era Board adopted a series of amendments to its representation case procedures that, among other things, codified the voter list requirement with a series of modifications that included mandating that employers disclose “available” personal email addresses and home and personal cellular telephone numbers of all eligible voters. The change was made in part based on dramatic changes in telecommunications that warranted disclosure of email addresses and telephone numbers because it would permit non-employer parties to:

  • promptly convey information concerning the question of representation to all voters;
  • make it more likely that non-employer parties could respond to employee questions;
  • allow non-employer parties to engage with employees in a more timely manner; and
  • facilitate faster union investigation of names included on the list, thus reducing the risk that unions would challenge voters based solely on lack of knowledge as to their identity.

2017 request for information. Those amendments, however, continued to garner criticism largely centered around privacy concerns. On December 12, 2017, the Board issued a Request for Information that generally solicited information about whether the 2014 amendments should be retained without change, retained with modifications, or rescinded (published in the Federal Register December 14, 2017).

Fosters union campaign communications. The Board said that virtually every responder addressed the expanded voter list disclosures. Supportive responses generally praised the provision of available personal email addresses and telephone numbers as a desirable modernization of the Excelsior requirement and a great help to fostering union campaign communications (and in offsetting employers’ greater access to employees).

Privacy interests not adequately considered. Critical responses asserted that the 2014 amendments had not adequately considered employee privacy interests and contended those interests should have been (or, based on subsequent developments, should now be) afforded greater weight than they were. Critical responses also reported:

  • employee complaints over the disclosures;
  • disclosures have led to harassment or excessive communications from non-employer parties; and
  • disclosure of contact information beyond employee names and home addresses was not necessary.

And another thing—absentee ballots. The Board also proposes an amendment that would modify its current general policy of not providing absentee ballots (not set forth in the rules and regulations, though) so that absentee mail ballots for employees who are on military leave would be permitted. The Board believes that it should seek to accommodate these voters in light of congressional policies facilitating their participation in federal elections and protecting their employment rights.

Further, a procedure for providing these voters with absentee ballots may be instituted without impeding the expeditious resolution of questions of representation, according to the Board.

Comments. Comments on the proposed rule must be received by the Board on or before 60 days after the proposal is published in the Federal Register. Comments replying to comments submitted during the initial comment period must be received by the Board on or before October 13, 2020. Reply comments should be limited to replying to comments previously filed by other parties. No late comments will be accepted.