NLRB Issues Proposal on Employee Privacy and Absentee Ballots for Workers on Military Leave

On July 29, the National Labor Relations Board issued a proposed rule titled Representation-Case Procedures: Voter List Contact Information; Absentee Ballots for Employees on Military Leave, which proposes two amendments to the representation election regulations under the National Labor Relations Act.

An NLRB news release states the first amendment would amend the agency’s rules and regulations to eliminate the requirement that employers provide available personal email addresses and home and personal cellular telephone numbers of all eligible voters to the regional director and other parties during an election campaign. The second amendment would provide absentee ballots for employees who are on military leave.

According to an analysis from ABC’s general counsel, Littler Mendelson P.C., the first amendment signals the NLRB’s return to requirements established in the Excelsior Underwear,Inc., 156 NLRB 1236 (1966) decision, which required employers to provide the full names, work locations, shifts, job classifications and home addresses of all eligible voters before an approved election agreement or decision and direction of election.

The Littler analysis further states, “The Excelsior requirement to provide names and home addresses of eligible voters stood for nearly 60 years before the 2014 amendments made by the final rule markedly expanded the amount of required personal information, commanding that employers provide all ‘available’ personal email addresses and home and personal cell phone numbers directly to the union, rather than to the Board.” According to the NLRB news release, the Board believes, subject to comments, that elimination of the requirement that employers provide available personal email addresses and home and personal cellular telephone numbers of all eligible voters to the regional director and other parties during an election campaign will advance important employee privacy interests that the current rules do not sufficiently protect.” 

Additionally, the analysis states the NLRB believes that the three-month voting period estimated in 1940’s-era Board decisions dealing with military mail balloting is no longer a reliable figure, and the Board also reasons that allowing service members to vote by absentee ballot is in line with changes in the law since 1950.

ABC plans to submit comments on the NLRB proposal before the Sept. 28, 2020, deadline and will provide updates on the rulemaking process through Newsline.