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.

Background

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.