NLRB's Boston Office Confirms That Employer Must Provide All Relevant Contact Info During Union Campaign

New federal election rules require that Employers produce all available contact information, within two days, for workers eligible to vote in a union election, even if the information must be obtained through several different lists or database.

A fair and democratic election requires that parties to an election have appropriate access to the voters. That's one reason why the National Labor Relations Act requires an employer to provide contact info about employees who are eligible to vote in whether a union should help them bargain for better working conditions. (This is commonly known as the Excelsior list). An employer typically has unfettered and unrestricted ability to lobby employees during the work day against unions. An employer typically has multiple other ways to communicate with employees, such as paystubs, newsletters, email messages, text messages and mailings.

By contrast, a union typically very little means to discuss the economic benefits of collective action. Until 2015, the NLRB only required employers provide home addresses of employees - even if the employer possessed other information, such as cell phone and email information, and regularly used this information to communicate with employees. And employers had seven days to provide this information and then to provide it only to the NLRB.

That changed in 2015, when the NLRB modernized the election process. Employers now must provide, in addition to home addresses, the available personal email addresses and phone numbers of voters on the voter list. This must be provided within two days directly to the Union.

In an important test case, the Regional Director of the NLRB Boston office concluded that an employer must provide voter contact information from all databases the employer uses to retain the information.

The Danbury Hospital case, which is attached, involved a union that lost an election 47-53 percent. The Employer provided an Excelsior list that included cell phone and email contact information, where available, for some employees. But the Employer deliberately ignored three other major database and at least two department contact information lists. This omission resulted, in part, in the election being set aside, regardless of whether the Employer acted in good or bad faith and regardless of whether there was evidence that the Union would have prevailed if it had the relevant contact information.

The Regional Director noted that the Employer could have, if it chose, provided multiple lists of contact information from several sources, rather than collating the information into a single list.

He wrote, "It is impossible to know exactly how many available email addresses and cell phone numbers were omitted from the voter list precisely because the Employer did not satisfy its obligation under the Rule to conduct a reasonably diligent search. No union can possibly produce evidence of exactly what information was available to the Employer but missing from the voter list. What the Rule requires is an Employer’s good faith effort to search its files and databases for the newly required contact information."