United States: Are Your Employees' Personal Phone Numbers "Available" To You?

In April of 2015, the National Labor Relations Board ("NLRB") issued its new Election Rule ("Rule") governing representation case procedures. The NLRB recently construed a portion of the Rule in a way which will make it more difficult for an employer to comply.

One provision of the Rule requires an employer to furnish a voter list (generally referred to as an Excelsior List) to the Regional Office and the union within 2 business days after the approval of a stipulated election agreement or the issuance of a decision and direction of election. The Rule requires that the voter list contain, among other detailed information, "available" personal email addresses and personal cellular phone numbers of each eligible voter. The Rule does not define the term, "available." Failure to provide a complete and timely list constitutes grounds to set aside an election. In the case of RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, 365 NLRB No. 88 (2017), the NLRB addressed this issue and construed the term, "available."

RHCG Safety Corp. produced a voter list, however, Local 79 complained that the voter list was missing information including the employees' personal cell phone numbers. Although the employer did not have the employees' personal cell phone numbers in any database or other employer-maintained repository, certain supervisors did have some of the employees' personal cell phone numbers stored in their cell phones. The NLRB found that the numbers stored in the supervisors' cell phones where "available" to the employer and should have been included in the voter list. For this and other reasons, the NLRB set aside the election.

RHCG Safety Corp. should serve as a cautionary tale for employers involved in the NLRB's election process. If numbers stored on a supervisor's cell phone are "available" to an employer, then perhaps a folder in a supervisor's desk drawer containing a list of phone numbers is also available to an employer. Therefore, once an employer receives notice of an election petition, a diligent search amongst supervisors should be undertaken to ensure that all available and necessary information has been unearthed. Under the holding of this case, an employer may not rely solely on the information available in its human resources information system or "official" records.

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