Continuing its quest to roll back rules put in place during the Obama era, the National Labor Relations Board (NLRB) is proposing ending a requirement that employers turn over available employee personal e-mail addresses and cell phone numbers to union organizers.
The Board published a Notice of Proposed Rulemaking (NPRM) in the July 29 Federal Register, citing a need to protect employee privacy.
“This is a good development for employers,” Kevin C. McCormick, an attorney with Whiteford, Taylor & Preston, L.L.P. in Baltimore, Maryland, says. “Providing personal e-mails and cell phone numbers was problematic for many employers and their employees.”
McCormick says often an employer has e-mail and cell phone information for some employees but not for all. Most employers didn’t want to be required to develop that information, especially if it wasn’t used often. Also, most employees are often protective of that kind of personal information out of concern about identity theft.
“We all get too many ‘robo’ calls now, and the last thing most employees would need is to get more calls or e-mails from a union organizer,” McCormick says.
Latest Rollback of Rules
The new proposed rule is among other changes the Board has made recently that have been well-received by most employers. Among the recent significant changes, McCormick cites:
- A rollback of the Board’s controversial “quickie elections” rule put in place in 2015. That rule reduced the time between the filing of a petition for a union election and the vote. The Obama-era rule had the effect of reducing an employer’s opportunities to communicate to employees any downsides to union representation. The new rule took effect May 31.
- The July 21 General Motors decision, in which the Board modified the standard for addressing offensive outbursts by employees. The decision makes it easier for employers to discipline or fire employees for offensive speech without violating rights guaranteed in the National Labor Relations Act (NLRA). Section 7 of the NLRA prohibits employer policies or conduct that may impede employee efforts to organize.
- The June 23 decision in 800 River Road Operating Company, LLC. That case addressed the standard for imposing employee discipline in situations in which a union has been voted in but has not yet negotiated a collective bargaining agreement.
- The Wynn Las Vegas, LLC case decided May 29. That case clarifies what constitutes solicitation in relation to an employer’s nonsolicitation policy. The Board determined that “solicitation” includes conversations about a union vote that did not involve a request to sign a union authorization card.
Absentee Ballots
The Board’s NPRM also proposes an amendment providing for absentee ballots for employees who are on military leave. The Board’s announcement of the NPRM said that, subject to comments, it believes a procedure for providing members of the armed forces with absentee ballots “can be instituted without impeding the expeditious resolution of representation elections.”
Public Comments
Public comments on the NPRM are invited. The comment deadline is September 28, 2020. Comments can be submitted electronically to www.regulations.gov or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half St. S.E., Washington, D.C. 20570-0001.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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