Changes to union election rules took effect on April 14, 2015. Now, a company must give the regional director and the union the contact information for eligible voters, including “available personal e-mail addresses, and available home and personal cellular (cell) telephone numbers of all eligible voters.” This poses a challenge for employers that do not regularly maintain a database including all of this personal contact information.
Prior to a union election at a hospital, the hospital searched its human resources database to produce the voter list. It provided phone numbers for about 94% of the listed voters and included all of the personal e-mail addresses contained in its system. The union lost the election 390-346. The union objected to the election based on the allegation that the hospital’s search of its human resources database did not fulfill its obligation to produce all available voter contact information.
The NLRB hearing officer found that the hospital’s nursing department and its emergency department used different databases to store employee contact information. The hospital did not pull information from those systems or other systems when it prepared the list for the NLRB election. Notably, the union did not have to show actual prejudice from the employer’s non-compliance with the Board rule. A second election to determine union representation was ordered thus giving the union another chance at winning the election it didn’t win the first time.
The Board’s election rules are still relatively new and will be subject to interpretation for many years to come. Companies should take note that the Board expects employers to utilize multiple resources when providing contact information for the union. A company cannot check one source and confidently proceed assuming that it has satisfied its burden of producing personal contact information of its employees.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.