Several deficiencies in a voter eligibility list justified rerunning an election that the employer had won, the NLRB has held, 2-1 (Chairman Philip Miscimarra dissenting in part). RHCG Safety Corp., 365 NLRB No. 88 (June 7, 2017).
The Board found that more than 90% of the voters’ addresses on the list provided by the employer were wrong, 15 of the 99 eligible voters were left off, and no phone numbers were provided (HR did not maintain them in its database) despite supervisors and foremen informally having this information and using it for work-related contacts with employees.
Beginning April 2015, under the new NLRB election rules, employers must provide an expanded voter eligibility list – including not only the names and home addresses required under the old rule, but also “available” home and cell phone numbers (as well as job titles, work locations, and “available” email addresses) to the union filing an election petition. On top of that, employers have only two days from finalization of the election details to assemble and serve this comprehensive list.
Employers must complete the list with care. Failure to provide a thorough and accurate list will be grounds for an “objection” filed by the union should it lose the election. The usual remedy is rerunning the vote if the company wins.
The problem with incorrect addresses and omitted names is straightforward, but what does the Board mean by “available” phone numbers and e-addresses? The rules’ preamble retains the traditional understanding that employers do not have to solicit information from voters in order to compile the list. So, does that mean HR’s information is sufficient under the new voter list rule? The Board in RHCG said no. That the employer did not keep formal HR records of employees’ phone numbers did not shield the company – because members of management had the information, and called employees for work reasons, the phone numbers were deemed “available” to the company. The employer should have investigated and collected these numbers from supervisors, the Board said.
Among other things, the employer argued its mistakes were inadvertent. The Board responded that a reason for the new rule is to maximize the “likelihood that voters will be exposed to the non-employer party arguments” concerning the election. Good faith by the employer is not necessarily relevant.
If your company is facing a Board election, be very careful in compiling the voter list. The NLRB’s election rules will be interpreted strictly. In our firm’s long experience, employer compilation of this list frequently is more time consuming than one might expect – that is underscored by the new rules (and now this case). Start assembling the needed data as soon as an election petition is filed.