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NLRB Proposes Third Set of Changes to Union Election Rules (1)

July 28, 2020, 12:51 PMUpdated: July 28, 2020, 4:33 PM

The National Labor Relations Board has proposed changing its union election procedures for voter lists and military ballots, marking the agency’s third rulemaking during the Trump administration aimed at amending how workers vote for their bargaining representatives.

Employers would no longer have to give unions workers’ personal email addresses, home telephone numbers, and cell phone numbers on the lists of eligible voter information they must provide in advance of pending elections, according to the NLRB’s proposed rulemaking announced Tuesday. The board cited employee privacy concerns in moving to eliminate that contact information from the voter lists.

The NLRB also proposed providing absentee ballots for workers who are on military leave. Union elections can accommodate workers who are serving in the military without causing excessive delay, the board said.

Earlier efforts by the Republican-controlled NLRB to change union election procedures have been met with legal challenges from the AFL-CIO. A federal judge struck down key portions of a broad set of changes, though she kept the bulk of them in place. The lawsuit to block a second set of election modifications is being litigated.

AFL-CIO General Counsel Craig Becker said the latest proposal, like the Trump NLRB’s earlier rulemakings, is “aimed solely at satisfying employer demands to tilt the law in their favor.” There’s no evidence of abuse—or even complaints of abuse—related to worker information that’s required on eligible voter lists, he said.

The NLRB first called on employers to provide names and addresses of eligible voters in its 1966 ruling in Excelsior Underwear. The Obama-era board expanded what’s required in so-called Excelsior lists in 2014 to include workers’ email addresses, phone numbers, and other information.

Employer groups have criticized the additional requirements for voter list information. For example, they don’t include the proper precautions to protect private worker information, the Society for Human Resource Management said in comments responding to the board’s 2017 request for information on election procedures.

National Right to Work Legal Defense Foundation President Mark Mix applauded the board’s proposal as a necessary step to protect worker privacy.

“The Board should resist any calls to delay or extend its rulemaking deadlines announced today so it can implement these common sense worker privacy protections as swiftly as possible,” Mix said in a statement.

The board will collect public comment on its proposals for 60 days after it appears in the Federal Register. While made public on Tuesday, the proposal is officially slated for publication Wednesday, commencing a comment period that will run until Sept. 27.

The NLRB’s GOP majority doesn’t face a tight deadline to finalize its third election rulemaking, despite the possibility that Democrat Joe Biden could win the White House from Republican President Donald Trump in November.

Provided the Senate confirms Republican Marvin Kaplan to a second term on the board, Republican members will retain majority control of the NLRB until William Emanuel’s term expires in August 2021 even if Biden becomes president. The Senate is also slated to approve Democrat Lauren McFerran’s return to the board.

(Updated with additional details.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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