By: Helios on December 21st, 2015

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New NLRB Rules Expand Employer Requirements

Risk Management

Recently, a National Labor Relations Board (NLRB) Regional Director ruled that an employer failed to comply with a requirement to provide available employee contact information to the union prior to an election, thereby resulting in an order to hold a second election (Danbury Hospital, 01-RC-153086). Although the ruling in such a pro-union political climate was not entirely unexpected, the result is still a cause of concern for employers, in part because of the “quickie” election rule implemented this past April.

Quickie Election Rule Review

New NLRB Rules Expand Employer RequirementsThe “quickie” election rule effectively shortens the voting period for a union election to as early as 14 days following filing for an election. Businesses opposed the new election rule for a variety of reasons, but chief among them was the reduced deadlines businesses now have to file objections, raise disputes, or challenge certain aspects of an election petition and campaign prior to the vote actually taking place. In a nutshell, it makes it exponentially more difficult for companies to conduct a thorough review of the merits of an election petition as they now have significantly less time to discover such issues, investigate and/or substantiate them, respond to them, and ultimately challenge them.

Excelsior List

Another issue was the expanded election rule related to what information companies must provide about the proposed bargaining unit employees to the union as well as the timeline to provide the list of names and addresses of all the employees who were eligible to vote in a consent election (known as the Excelsior List). Prior to the new rules, employers had up to 7 days from the approval of an election or an election directive to provide the union with the Excelsior List. With the new election rules, companies not only have just two days to provide the Excelsior List, the Excelsior list must now include all personal home and cell phone numbers and personal email addresses which are available to the employer. If you’re interested in learning more, you can read a review of all of the new election rules here.

Now, going back to the Danbury Hospital ruling, the employer complied with the spirit of the new rules and provided the union with an Excelsior List within two days and the list contained all of the contact information it had in its centralized Human Resources database, so the union had the names and addresses of all of the 866 eligible voters along with personal phone numbers for approximately 94% of them. When the union lost the election by a vote of 346 in favor of joining a union to 390 opposed, it filed an objection to the election outcome in part by claiming the employer failed to provide a complete Excelsior List that included all available phone numbers, email addresses, and other contact information.

So why did the NLRB rule in favor of the union and order a second election to be held if the company provided all of the contact information it had on its employees within the required timeline?

The reason was because the NLRB determined the Excelsior List provided by the company from its HRIS database was not inclusive of all available contact information the company had within its grasp. Although the company maintained its employee contact information accurately and kept their HRIS database current, there were also separate lists of contact information outside of the HRIS, namely phone numbers and email addresses maintained by some supervisors and benefits administrators working for the company. Thus, the NLRB opined that the company failed to make a reasonable effort to compile and deliver a fully inclusive and comprehensive Excelsior List. In its opinion, the NLRB took the company to task by saying it is not sufficient enough to claim that the employee information maintained in the company HRIS is the only official information to be used when the company’s own managers and vendors maintain their own lists in order to carry out and conduct company business. The NLRB also reiterated that the company’s assertion that it is not reasonable or practical for the company to know of every instance when an employee provides new or updated information outside of the customary process set in place by Human Resources is an inadequate defense.

Consequently, employers should now be even more mindful of how employee information is regarded and maintained within its scope and realm and take certain measures to ensure it can show it has undertaken all reasonable efforts to compile a full and complete Excelsior List, such as:

  1. Set a policy in place to advise managers to avoid soliciting contact information directly from employees and instead only use the information provided by HR.
  2. If maintaining one consolidated or centralized list is not feasible for business reasons, ensure that there is at least a process by which HR has full and complete access to each list.
  3. If an employee tells their manager they have new or updated contact information, have the employee provide it directly to HR instead of collecting it and updating it for them.
  4. Send out regular and routine requests for employees to provide current contact information and the process by which they should follow on how to update it.
  5. Match an employee’s contact information on file with that on any forms or documents the employee has completed. If the information doesn’t match, have the employee verify the correct information and update the information accordingly.
  6. Conduct periodic audits to ensure no separate lists are unwittingly being maintained elsewhere.

The best approach is to have a robust union avoidance program in place that allows your organization to proactively address the risk of unionization.  Taking measures now and building a robust preparation plan to stay ahead of any future election petition is undoubtedly the surest approach to maintaining a strong position throughout the election cycle, as explained here in a post 150-day assessment of the new election rules taking effect.