A union will have a second chance at winning an election at Connecticut hospital after the National Labor Relations Board, the main federal labor law enforcement agency, ruled that the hospital’s managers did not comply with a controversial new rule requiring them to turn over all employee contact information to the union.
The ruling was made even though it was undisputed that the hospital’s human resources department turned over all of the data that it had. The decision illustrates the extensive burden the rule places on businesses and how difficult compliance can be for employers.
The order followed a failed bid by the American Federation of Teachers to organize workers at Danbury Hospital June 19. The workers voted 390-346 against the union. The union contested the outcome, and a regional director for the labor board ordered the re-do Friday. The director said that because the human resources department had current phone numbers for only 94 percent of the workers, the hospital had failed to comply with the disclosure rule. The employer was obligated to track down all of the numbers — within the two-day period mandated by the rule.
“Under the final rule, the employer was required to provide all ‘available’ personal email addresses and cell phone numbers. The rule requires the exercise of reasonable diligence, a standard the employer failed to meet by limiting its data search to only the information contained in (the human resource files), despite the fact that it utilizes other databases, as well as other nonelectronic means, to regularly compile and store employee contact information,” the labor board director said.
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The director said the hospital should have scoured those other databases and was unmoved by the hospital’s argument that there was no evidence that the missing information was in any of those either. The director also rejected the argument that one of main databases cited in the complaint would have required the managers to sort through an estimated 36,000 listings to find the missing ones, which numbered about four dozen.
“What the rule requires is an employer’s good faith effort to search its files and databases for the newly required contact information. Clearly, by any standard, the employer did not do so here,” the director ruled.
It is not clear why the hospital did not have all of the information. Neither the hospital nor the union’s Connecticut branch responded to a request for comment.
The employee contact requirement is part of an expansive new rule the board adopted in December intended to speed up union elections. The rule’s other provisions include shortening the time frame from when an election is ordered to when it was held and sharply limiting the ability of employers to raise objections to the elections.
The requirement that employee contact information be disclosed has been one of the more controversial aspects because of its expansiveness. “It is already bad enough that the NLRB is forcing employers to betray employee trust by handing over their private information to labor unions that do not represent them. Now the NLRB is using the expanded [rule] to give unions another avenue to object to elections results that are unfavorable and force another vote,” said Trey Kovacs, policy analyst at the conservative Competitive Enterprise Institute.
In the Connecticut case, the hospital argued that its inability to provide phone numbers for all employees should not invalidate the election since the union had been running a public organizing campaign for a year. Any employee who wanted to join the union could have simply called it, an argument the board rejected.
The labor board said in the final rulemaking announcement in December that every effort must be made to provide the contact information to the union and that employees have no right to privacy. The rule trumps any state privacy laws, too.
“We have concluded that employees’ legitimate interest in the confidentiality of their personal email addresses and phone numbers is outweighed by the substantial public interest in … insuring a free and fair election and expeditious resolution of the question of (union) representation,” the board said.
The board’s opinion updates a precedent from a 1966 NLRB case called Excelsior Underwear Inc. That precedent held that in cases where the board has authorized a workplace election, the employer must turn over a list of employees and their home addresses. The board said that standard needed an update in light of a half-century’s worth of advances in communications technology.
“Disclosure of the employees’ personal email addresses, like the disclosure of personal phone numbers … will allow the nonemployer parties (including unions and decertification petitioners) to promptly convey their information concerning the question of representation to all the eligible voters,” the board said. Employers also must turn over workers’ job locations and shifts. Concerns that the disclosure could lead to “harassment and coercion of employees … have failed to persuade us.”
The board did acknowledge that some employees would consider the disclosure requirement “to invade their privacy, even if they are never contacted.” That failed to persuade the board, which argued that it was not really invasion of privacy since the voter list will be provided to a “limited set of recipients” and unions are instructed to use the information for organizing purposes only.
During the rule’s public comment period, many urged that the board institute a “do not call” policy so that employees who don’t want to be contacted can tell their employers to keep their information private.
The board rejected that on the grounds that such a policy would invade workers’ privacy.
“Each employee would have to be asked whether he or she wished to share his or her contact information with the nonemployer parties, and the questioning would necessarily result in a list indicating which employees had authorized their additional contact information to be shared with the nonemployer parties,” the board concluded.
Companies cannot adopt a blanket policy of nondisclosure.
The board even indicated that employees who went to their bosses on their own initiative to request that the information be kept private would have to rejected, stating that any opt-out or opt-in process would “invite new areas of litigation.” For the workers’ own good, the information has to be turned over.
“The board has recognized that even unsolicited contact by the union remains an important part of the basic Section 9 process. Indeed, a wide open debate cannot take place unless employees are able to hear all parties’ views concerning an organizing campaign — even views to which they may not be predisposed at the campaign’s inception,” the board said.
