NLRB Election Rules Update: Employers must exercise due diligence in searching for and disclosing “available” voter contact information

Franczek P.C.

In April of this year, the National Labor Relations Board’s new expedited election rules went into effect. Under the new rules, employers are required to provide unions with “available” personal e-mail addresses and personal cell phone numbers for all eligible voters. Although “available” is not defined under the new rules, an employer found out the hard way what at least one NLRB Regional Director thinks it means.

In Danbury Hospital, the Hospital successfully fought off a year-long organizing campaign by AFT Connecticut when 52% of the voters cast ballots against the union. The union then filed several objections to the election, including one that asserted the Hospital had failed to provide a complete voter list as required by the NLRB’s new election rules.

The specific issue before the Regional Director for Region 1 (which covers several states on the East Coast) was whether the information provided by the employer satisfied its obligation to provide all “available” personal e-mail addresses and personal cell phone numbers of the 866 eligible voters. In compiling the information, the Hospital had relied solely on the “Lawson” database used by its Human Resources department. Although the Hospital provided telephone numbers for 94% of the eligible voters and all personal e-mail addresses contained in “Lawson,” the Regional Director determined that the Hospital failed to comply with the new rules because it did not search other databases and other non-electronic sources that contained “readily available” employee contact information.

The Regional Director rejected the employer’s argument that its failure to scour all of its databases caused no harm to the union. According to the Regional Director, neither NLRB precedent nor the new election rules required the union to show that it was prejudiced by an incomplete voter contact list. In the end, the Regional Director concluded that the new rules require “an Employer’s good faith effort to search its files and databases” and that the Hospital simply had not met its burden. As a result, the Regional Director nullified the results of the first election and ordered a second election.

The lesson here for employers is that if you have employee contact information – somewhere, anywhere – it is “available” and you must produce it to meet the requirements of the NLRB’s new election rules.

Whether other NLRB Regional Directors take the same position as the Regional Director for Region 1 remains to be seen, but for now, employers should take stock of their procedures for compiling and storing employee contact information, both electronically and non-electronically, and be prepared to meet the disclosure obligations under the new NLRB rules.

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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