In Excelsior Underwear, 156 NLRB 1236 (1966), the National Labor Relations Board (NLRB) first required employers to provide unions with the names and home addresses of eligible voters in advance of representation elections. This list of voters became known as an Excelsior list. In 2014, the NLRB expanded the information required to be on Excelsior lists to include all available personal email addresses and cell phone numbers. On Tuesday, July 29, 2020, the NLRB announced a proposed rule under which employers would no longer have to give unions workers’ personal email addresses, home telephone numbers, and cell phone numbers in advance of pending elections.
This is the third change to union election rules recently proposed by the NLRB. Most of the proposed changes are widely viewed as attempts to roll back union-friendly election rule changes made during the Obama administration. The Board, however, cited employee privacy and protection against abuse, fraud, hacking, identity theft, and other scams as the reason for the change.
The proposed rule would also provide absentee ballots for workers who are on military leave. This would be an exception to the NLRB’s general policy of not allowing absentee ballots for elections. The Board cited increased telecommunication and transportation capabilities, which make it easier to deliver mail and determine the location and addresses of those on military leave. The NLRB believes these advances enable the accommodation of workers on military leave without excessively delaying elections.
The NLRB’s other changes to election rules have resulted in litigation, and this may be headed there as well. The proposed rule was published in the Federal Register today, Wednesday, July 29, 2020, and the public comment period runs through September 27, 2020. You can find the proposed rule here.