NLRB Proposed Rule Signals a Return to the Excelsior Requirement and the Advent of Absentee Ballots for Military Personnel

In another effort to amend the 2014 final rule on “quickie elections,” on July 29, 2020, the National Labor Relations Board published a notice of proposed rulemaking (NPRM) in the Federal Register that, if implemented, would further relieve pre-election burdens on employers and protect voter privacy. Specifically, the NLRB is proposing to limit the amount of personal information employers are obligated to provide to unions in advance of elections.  The NPRM also proposes amending longstanding Board policy to allow employees on military leave to vote by mail ballot. 

The proposed changes to the level of voter information employers must provide is not surprising given the Board’s December 2017 request for information (RFI) regarding its 2014 final rule. As a result of the RFI, the NLRB has engaged in subsequent rulemaking, which resulted in a broad roll-back of the 2014 election changes, including a final rule on representation case procedures and a final election protection rule regarding “blocking charges” (which will take effect on Friday, July 31, 2020).  The comment period for the NPRM will close on September 28, 2020.

The Excelsior Requirement

In 1966, the Board held in Excelsior Underwear, Inc., 156 NLRB 1236 (1966), that employers must file an eligibility list that includes the names and home addresses of eligible voters within seven calendar days after a decision and direction of election (DDE) issues or approval of an election agreement, in order to “maximize the likelihood that all the voters will be exposed to the arguments for, as well as against, union representation.”1  Failure to produce the list was considered interference with the election, and could result in the election being set aside.  The Supreme Court approved the Excelsior requirement three years later, in NLRB v. Wyman Gordon Co., 394 U.S. 759 (1969), and employers were hence required to submit the list to the NLRB regional director, who would in turn disseminate it to the parties.

The Excelsior requirement to provide names and home addresses of eligible voters stood for nearly 60 years before the 2014 amendments made by the final rule markedly expanded the amount of required personal information, commanding that employers provide all “available” personal email addresses and home and personal cell phone numbers directly to the union, rather than to the Board.  The 2014 amendments also hastened the time for production of the expanded information to within two business days of the issuance of the DDE or approval of an election agreement.  Since the 2014 amendments were implemented, employers have been required to produce not only contact information contained in personnel files or human resources databases, but also information in the hands of individual managers, or else risk meritorious objections that could overturn an election. 

Before the 2014 amendments were implemented, employers raised concerns that the additional “available” information requirement is ill-defined, and the information itself is often decentralized.  Employers also expressed concern that the hasty timeline for production substantially burdens resources, particularly in larger elections, and carries significant privacy implications not intended by Excelsior.

In proposing a return to the Excelsior requirement, the NPRM states that the Board “is inclined to find that eliminating mandatory disclosure of employees’ personal telephone numbers and email addresses strikes a better balance between the purposes underlying the voter list requirement and employee privacy concerns,” because (i) disclosure of personal contact information itself impacts the privacy interests of eligible voters, who have an interest in controlling the dissemination of their personal contact information, (ii) the 2014 amendment contains no opt-out procedure, and (iii) employees have a greater privacy interest in their cell phone numbers and email addresses than they do in their home addresses.

If adopted, the revised voter list requirement will obligate employers to provide the full names, work locations, shifts, job classifications, and home addresses of all eligible voters within five business days of an approved election agreement or DDE.

Eligibility of Employees on Military Leave to Receive Absentee Mail Ballots

Despite several shifts beginning in 1940, the Board’s official stance since 1950 has been that “mail balloting of employees on military leave is impracticable.”2  Despite this longstanding position, the Board reasons in the NPRM that it should adopt a limited exception to the general policy of not providing mail ballots in manual elections, “due to advances in transportation and telecommunications that have occurred since 1950.”  As such, the Board opines that the three-month voting period estimated in 1940’s-era Board decisions dealing with military mail balloting is no longer a reliable figure.  The Board also reasons that allowing service members to vote by absentee ballot is in line with changes in the law since 1950, including the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which affords employment protection to individuals on active duty, and the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986.  Taken together, the NPRM states that these and other laws demonstrate “a national policy that favors taking measures to ensure that servicemembers’ employment and electoral rights are preserved.”

Recognizing that providing absentee mail ballots to servicemembers will present logistical challenges, the NPRM invites comment on appropriate time limits for providing and returning mail ballots, and documentary proof of military leave.

What Lies Ahead?

No changes will occur until after the comment period, which will likely evoke substantial discussion before September 28, 2020, and additional discussion during the reply period, which closes on October 13, 2020.  It is uncertain whether, or when, the Board will ultimately implement either election rule change.

See Footnotes

1 Excelsior Underwear, Inc., 156 NLRB at 1241.

2 Link Belt Co., 91 NLRB 1143, 1144 (1950).

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.