Employers Must Use Reasonable Diligence When Searching for Voter Personal Contact Information for Union Elections

Miles & Stockbridge P.C.

Under the new union election rules which became effective on April 14, 2015, an employer must file with the National Labor Relations Board (“Board”) and provide to the petitioning union, a list of all voters (including those voting under challenge) along with the work locations, shifts, job classifications and contact information (including home address, available personal email addresses and available home and cell phone numbers) of those voters.  The list must be provided within two days of the issuance of a decision and direction of election or the approval of an election agreement. The circumstances under which personal contact information would be deemed “available” to an employer were not defined by the new rules.

On October 1, 2015, the Regional Director for Region 1 addressed this issue in the decision and direction of second election he issued in, Danbury Hospital, Case 01-RC-153086, 10/16/15. The case involved an election held for a unit of 866 non-professional employees of Danbury Hospital. Having lost the election held on June 19, 2015 by a margin of 346-390, the union involved filed four objections. One of the objections claimed that the hospital failed to provide all available voter personal contact information; specifically, all available personal cell phone numbers and all available personal email addresses. The union demanded that the election results be set aside and the election be rerun. The hearing officer sustained this objection and the hospital filed exceptions to the hearing officer’s findings and recommendations.

The hospital argued that it had substantially complied with the rule because it had provided all of the personal contact information contained within its human resources information system (“HRIS”) which resulted in it providing phone numbers for 94% of the voters. The Regional Director disagreed. In affirming the Hearing Officer’s decision, the Regional Director found that the hospital had databases other than its HRIS in addition to non-electronic sources of employee contact information. Specifically, the hospital used a second database in the Nursing Department which contained contact information, the Emergency Department used a separate database to send out multiple messages all at once to employees, one hospital unit maintained an employee phone list and the hospital used an applicant tracking system to process and track candidates for open positions. The Regional Director held that the Hospital had a duty to conduct a reasonably diligent search for the contact information. Reasonable diligence required it to search all potential repositories of the information. Because it did not do so and, in spite of the fact that the union could not show that it was harmed by the missing contact information, the Regional Director ordered a new election.

The hospital recently filed a request for review with the Board which has not yet been ruled on. In the meantime, while this decision is not binding on other regions, an employer should view the decision as a cautionary tale. In creating a voter list an employer should conduct a thorough search of all of its electronic databases in addition to all of the other records available to the employer. Because such a search is likely to be time consuming, and the voter list is due within a very short time frame, an employer who is likely to face a union organizing effort should spend the time now searching for and compiling the contact information that is available to them.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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