United States: NLRB Regional Director Finds That Employer Failed To Substantially Comply With New Requirement To Provide "Available" Personal Phone Numbers And Email Addresses For Voters And Directs Second Election

After the NLRB's expedited election rules went into effect last April, the extent to which an employer faced with a union representation petition must search for and provide voters' personal email addresses and cell phone numbers and include them on the voter list provided to the union was somewhat of an open question. On October 16th, Region 01 of the NLRB shed some light on this issue in a decision and direction of second election (The Danbury Hospital, Case 01-RC-153086). The result for employers is not a particularly happy one.


Under the old election rules, after a union filed a petition for an election with the NLRB, the employer was required to provide a list of eligible voters that simply contained the employees' full names and home addresses. This list (known as the Excelsior list) was required to be provided within seven calendar days after the approval of an election agreement or the issuance of a Direction of Election.

Under the new expedited election rules, the Excelsior list must now also include the employees' "available" personal (non-business) email addresses and "available" home and personal cell phone numbers. In addition, the list must now be provided within two business days after the approval of an election agreement or the issuance of a Direction of Election.

This left open the question of what "available" means and how much effort an employer is required to expend to determine what employee contact information is "available" to it. It seemed somewhat obvious that if an employer had previously asked all employees to provide their personal email addresses and then maintained a list of those email addresses in a centralized database, then the employer would need to provide those email addresses on an Excelsior list. But what if only one supervisor out of ten had at some point in the past obtained personal email addresses for some of the employees reporting to him? Would those email addresses be considered "available" to the employer? Region 01's recent decision seems to suggest that they would be, and an employer's failure to provide them on the Excelsior list would be sufficient to set aside a favorable election result.

The Decision and Direction of Second Election

On June 19, 2015, an election was conducted among a unit of 866 employees at a hospital in Connecticut, with 346 employees voting for the union and 390 voting against. The union subsequently filed objections to the election result, one of which was that the employer had failed to provide a complete voter list that included available personal cell phone numbers and personal email addresses.

To compile the voter list, the employer had culled information from "Lawson," its human resources database. The employer provided phone numbers for approximately 94% of the eligible voters, and it also provided all personal email addresses that it had maintained in the Lawson database.

The Hearing Officer (and ultimately the Regional Director for Region 01 of the NLRB), concluded that the employer had not substantially complied with the Board's requirement that an employer exercise "reasonable diligence" in compiling voter contact information, reasoning that the employer had failed to search its other available data sources. In reaching this conclusion, the Hearing Officer and the Regional Director observed that the employer utilized other databases and other non-electronic means to regularly compile and store employee contact information. For example, the nursing department staffing office used a second database to store contact information for employees working on nursing units, the emergency department used yet another database to store employee information in order to send out messages to employees when extra shifts were available, and one unit in the hospital maintained an employee phone list that was "readily available to managers." It was also observed that the employer used an applicant tracking system to process and track candidates for open positions. The employer's argument that it would be unduly burdensome to sort through the 36,000 contacts in that system to locate personal email addresses for the relatively small number of eligible voters included in it was flatly rejected, with the Regional Director reasoning that the system differentiated between internal and external candidates, "a feature that would likely dramatically reduce the number of employees whose records would need to be searched."

The Regional Director also dismissed the employer's argument that the record was devoid of evidence that the employer possessed a significant number of additional cell phone numbers or email addresses that were not provided to the union. The Regional Director reasoned that because the employer did not satisfy its obligation under the rule to conduct a reasonably diligent search, it was impossible to know how many available email addresses and cell phone numbers were omitted from the list. The Regional Director also observed that evidence of bad faith on the employer's part or actual prejudice to the union is unnecessary. Rather, all that is required is a showing that the employer failed to make a "good faith effort" to search its files and databases for the newly required contact information.

Employer Takeaways

It seems clear that under the new election rules, the definition of what employee contact information is "available" to an employer is quite broad. Because the sources of such information may be diffuse, because employers must now compile and provide such information to the union within a very short timeframe after an election petition is filed, and because the consequence of failing to do so is the setting aside of a favorable election result, employers should strongly consider working with their labor counsel to develop proactive strategies for determining what contact information is available to them and for being ready to comply with this new requirement. Seyfarth has many labor attorneys with experience developing and implementing such strategies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.