Bill Would Prevent Excelsior List Rulemaking

As a preemptive strike against further development of a National Labor Relations Board representation election rule, Rep. Sandy Adams (R-FL) has introduced a bill that would prohibit the Board from requiring employers to provide to the union or Board employee telephone numbers or email addresses. The Keeping Employees' Emails and Phones (KEEP) Secure Act (H.R. 3991) (pdf) would add the following provision to the end of Section 9(c) of the National Labor Relations Act: “In no circumstances shall the Board require an employer to provide to the Board or to a labor organization the telephone number or email address of any employee.’’

The NLRB’s proposed changes to representation election procedures issued in June 2011 would, among other controversial revisions, require employers to provide a final voter or “Excelsior” list that includes the employees’ names, addresses, phone numbers and email addresses to the union within two days after the representation election is scheduled. In addition to facilitating union organizing, providing an expedited Excelsior list to unions potentially raises employee privacy issues. While the final rule issued in December 2011 does not contain these provisions, Board Chairman Mark Pearce has stated that he intends to proceed with consideration of the omitted portions of the earlier proposed rule. The Board’s most recent regulatory agenda supports the Chairman’s plan.

In November 2011, the House passed a more extensive bill that would similarly restrict the types of employee contact information that would have to be provided. Specifically, the Workforce Democracy and Fairness Act (H.R. 3094) would stipulate that an employer would provide the union with a list of eligible voters no sooner than 7 days after the Board determines the appropriate bargaining unit, and allow employees to decide in writing which one form of personal contact information is to be provided to the union. The Senate has not yet acted on this bill, nor is it expected to in the near future.

The KEEP Secure Act – which was introduced with 33 co-sponsors – has been referred to the House Committee on Education and the Workforce.

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