National Labor Relations Board
1015 Half Street, SE
Washington, DC 20570
Re: Voter List Contact Information; Absentee Ballots for Employees on Military Leave (RIN 3142-AA17)
Members of the National Labor Relations Board:
The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of law- and middle-income workers, and assesses policies with respect to how well they further those goals.
EPI strongly opposes the National Labor Relations Board’s proposed rule on Representation Case Procedures and Voter Lists. The rule would eliminate the mandatory disclosure of employees’ personal telephone numbers and email addresses during a union organizing campaign. At a time when electronic and telephonic communication is increasingly important given concerns over the COVID-19 pandemic, the NLRB is once again advancing a proposal that will make it more difficult for working people to receive information about workplace representation. Failing to cite a single example of an employee’s personal contact information being misused or their privacy being compromised, the board simply concludes that privacy concerns and unspecified “technological developments since 2014” require the elimination of the requirement that employers provide employees’ personal telephone and email contact information during a union election campaign.
Access to employees’ modern contact information, including available, personal email addresses, and home and personal cell phone numbers is as fundamental to a fair and free election and the expeditious resolution of questions concerning representation. Since 1966, the board has required that an employer must provide a list of all employees eligible to vote in a union election.1 This list must include employee contact information as well. This was originally the names and home addresses of all eligible voters. In 2014, the board amended this requirement to include available personal email addresses and available personal cellular telephone numbers. The board concluded that access to employees’ more modern contact information simply modernized the longstanding requirement established in Excelsior and later approved by the Supreme Court in NLRB v Wyman-Gordon Co. (394 U.S. at 768). The board concluded that “in this day and age, providing such tools of communication to the nonemployer parties…will significantly advance the objectives of the original Excelsior policy: Ensuring the fair and free choice of bargaining representatives by maximizing the likelihood that all voters will be exposed to the nonemployer party arguments concerning representation.”2
The board balanced this requirement with privacy concerns in 2014 and concluded that features of the requirement helped to minimize any invasion of employee privacy caused by disclosure of the information. The information itself was limited in scope. Only a limited group of recipients have access to the information and the information is used for limited purposes. These factors persuaded the board majority that the public interest in free and fair elections outweighed the employees’ privacy interest in the information that will be disclosed. It is unsurprising that this board reaches an opposite conclusion, placing the interest in fair and free workplace elections below privacy considerations. This is only the most recent representation case proposed rule that would make it more difficult for working people to have free and fair workplace elections.3
The board’s proposal ignores the reality of the increased role electronic communication now plays on and returns the voter list requirement to outdated means of communication, effectively depriving workers of information on workplace representation. It is a flawed proposal that betrays the requirement established over 50 years ago in Excelsior to say nothing of the board’s statutory requirement to ensure free and fair elections. EPI urges the NLRB to abandon this flawed rulemaking to ensure workers’ access to free and fair elections as guaranteed to them under the National Labor Relations Act.
Labor Counsel and Director of Government Affairs
Economic Policy Institute
Economic Policy Institute
1. Excelsior Underwear, Inc., 156 NLRB 1236, 1239-40 (1966).
2. 79 Federal Register at 74341
3. Celine McNicholas “In Midst of a Pandemic, Trump’s NLRB Makes it Nearly Impossible for Workers to Organize a Union,” Working Economics Blog (Economic Policy Institute), March 31, 2020.