Under the new expedited election rules implemented by the Board to facilitate union organizing, within two days of the scheduling of an election, the employer must provide the petitioning union:
with an alphabetized list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters[.]
Previously, the law required that within seven days, the employer turn over a list of employees with their home addresses only. For decades, this was considered adequate to allow a union to communicate the details of the scheduled representation election and its position in favor of representation to all affected employees. In the issuance of its Final Rule effective this year, however, the Board expressed its position that
the provision of only a physical home address no longer serves the primary purpose of the Excelsior list. Communications technology and campaign communications have evolved far beyond the face-to-face conversation on the doorstep imagined by the Board in Excelsior.
Last week, in Danbury Hospital, Case No. 01-RC-153086 (RD, Oct. 16, 2015), a Regional Director ordered a re-run election, demonstrating how far the Board may be willing to go to ensure unions the maximum amount of employee contact possible. In an election held on June 19, 2015, 739 of the 866 eligible voters cast ballots in the election — 346 for the union, 390 against the union, and 3 challenged. Following its loss, the union filed objections blaming the loss, in part, on an eligibility list that did not fully comply with the new rules.
The list, provided by the employer within the new shortened two-day time period, contained the alphabetized names and home addresses of the 866 eligible voters, plus telephone numbers for 94% of them and all personal e-mail addresses contained in the employer's Human Resources database. The Hearing Officer sustained the union's objection, holding that the employer did not "substantially comply" with the new eligibility list requirements because it did not search any and all other potential sources of additional contact information in its possession.
The Regional Director agreed:
Under the Final Rule, the Employer was required to provide all "available" personal email addresses and cell phone numbers. The Rule requires the exercise of reasonable diligence, a standard the Employer failed to meet by limiting its data search to only the information contained in Lawson, despite the fact that it utilizes other databases, as well as other nonelectronic means, to regularly compile and store employee contact information.
The decision then catalogs all of the additional sources the empl0yer was expected to review for additional contact data to provide to the union, including:
- its Staffing Office's separate employee database;
- its Emergency Department's electronic group-messaging system; and
- additional printed lists maintained individually by separate departments or units.
Notably, nowhere in the text of the Final Rule or the Board's extensive explanation thereof, does the expression "reasonable diligence" appear. Moreover, the Regional Director brushed aside supportive case law and evidence that would tend to demonstrate the union was not prejudiced in this particular case. The Regional Director has thus made clear that at least this Region is inclined to impose strict liability on the full range of new requirements under the expedited election rules. If the employer herein pursues full review of this decision from the Board in D.C., it is possible that we will get further clarification or confirmation of the standard to be applied with respect to these new rules. In the meantime, it would behoove employers to review the full range of potential sources of employee contact information at their disposal and to ensure they maintain at least one centralized comprehensive list. It's additional administrative work for sure, but it may be additional administrative work the National Labor Relations Board's new rules will require.
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