On July 28, 2020, the NLRB issued a Notice of Proposed Rulemaking (NPRM) calling for public comments as to two important changes to its regulations governing representation elections.
The first change would modify the current Voter List requirements, set forth in §§ 102.62(d) and 102.67(l) of the Board’s Rules and Regulations, by reversing the requirement that employers provide the personal email addresses and home and personal phone numbers of eligible voters to the Board’s Regional Director, unions and other interested parties, abrogating a requirement mandated by the Obama Board’s omnibus election regulations enacted in 2014. The Board is proposing to promulgate this new rule in the interests of advancing employee privacy interests which the Board’s current election rules do not protect.
Unions are the typical beneficiaries of the current email/phone number disclosure requirement as it enables them to reach workers with whom they have had little to no contact. Accordingly, this new rule will be a blow to labor’s organizing interests, making it more difficult for labor’s ability to reach and persuade workers as to the upside of union representation.
The second change would require that employees who are otherwise eligible to vote but who are on military leave be allowed to vote by absentee ballot. This is a change from established Board practice since there is no right to absentee voting unless an employer, the interested union and any other interested party participating in an election case agree to allow absentee voting. The Board called this proposed change as an accommodation to voters serving in the Armed Services, consistent with maximizing participation in representation elections and without delaying the resolution of questions concerning representation through the election process.
Though seemingly a neutral change, this new rule will also likely disadvantage unions, especially in closely decided, hard-fought elections, by expanding voting units as a matter of right beyond eligible voters who are currently performing work at an employer’s workplace and with whom unions have ready access. It may also give employers a leg up to expand petitioned for units and to argue, on policy and equity grounds, that other workers who cannot be present at work on an election day be allowed to vote by absentee ballot or to contest elections where absentee voters are denied the opportunity to vote by absentee ballot.
What is also significant about these proposed new rule changes is that they are, in fact, changes being accomplished by formal rulemaking under the Administrative Procedures Act. Indeed, such rules are treated as rules of law that an agency must abide by unless and until the rule is abrogated or amended by subsequent APA rulemaking. Accordingly, if these new rules go into effect, then any subsequent change in the composition of the NLRB appointed by Joe Biden or other Democratic president will not be able to reverse these regulatory requirements by case decision. Instead, they will be compelled to comply with these requirements unless and until these requirements are changed or eliminated by formal APA rulemaking.
This NPRM is expected to be published in the Federal Register tomorrow. Interested parties wanting to submit comments on these proposed changes must do so within 60 days of that publication.
As we recently outlined, the AFL-CIO has made a recent habit of suing the Board to have its proposed rulemaking overturned. Even though these proposed new rules protect the privacy rights of employees and enlarge their franchise, they may damage the economic interests of labor. Accordingly, if enacted, these new rules are likely to be challenged by Big Labor.
