In a split decision, NLRB stands by its rule requiring production of employee phone numbers

During President Obama’s administration, the NLRB adopted controversial new election rules. Depending on a speaker’s perspective, they are often called either the expedited election rules, the quickie election rules or the ambush election rules. No matter what one calls them, the new rules greatly accelerated the timeline for an election when a union files with the NLRB to represent a group of workers. One controversial aspect has been a requirement that the company produce phone numbers for its workers to the union, and in this case, the Board, in a 2-1 decision, affirmed that requirement, holding that even where the company does not have such a list, it must go so far as to compile the list for the union.

The dissent noted that it was impractical to think a company could even find the time in a 2-day window to survey its supervisors and do all that might be needed to compile phone numbers.

First, such a requirement is unrealistic given the 2-business-day time limit imposed by the Election Rule for the employer to transmit the eligible-voter list. According to my colleagues, employers like RHCG must contact each and every supervisor and require them to search their phones for employees’ personal phone numbers (and, under the Election Rule, their personal email addresses as well)going back 2 years … and to transmit this information to management officials who, in turn, must aggregate this data for inclusion in mandatory disclosures that must be filed and served within 2 business days after the Regional Director issues the decision and direction of election or approves an election agreement. In addition, and at the same time, RHCG was required to manually search 24 months’ worth of sign-in sheets to identify … eligible voters …. In my view, it is unreasonable for the Board to conclude that employees’ personal phone numbers are “available” and must be disclosed under the Election Rule under any circumstances, but especially under circumstances such as these.

The issue, indeed the entirety of the new election rules, is likely to be a hot topic for consideration by the NLRB under the Trump Administration.

Source: RHCG Safety Corp., 365 N.L.R.B. No. 88 (6/8/17).

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