Over the Author’s lengthy career in practicing Labor and Employment Law (since November, 1972), I have had the privilege to represent a vast number of Employers in National Labor Relations Board matters (representation in Elections and Unfair Labor Practice Charges). Over that period of time, I have seen numerous vacillations with regard to Board Policy, but none strike me as more vindictive towards Employers than the NLRB’s recent position taken with regard to Voter Eligibility Lists.

As any Employer who has participated in an NLRB Election (RC Case) knows, it is the responsibility of the Employer to provide to the NLRB and the Petitioning Union a “list of Eligible Voters” which is commonly referred to as the Excelsior List. For decades that List was required to provide in an alphabetized fashion, the name of the Eligible Voter and their home address. Effective April, 2015, the NLRB processed what it called “New Election Rules” that required the Employer to provide a vastly expanded Voter Edibility List that not only includes the names and home addresses of Eligible Voters, but also “available home and cell phone numbers, job titles, work locations and e-mail addresses”. More importantly, that vast list must be provided within two (2) calendar days after finalization of Election details.

The Board has recently taken the position that, even though the HR Department may not have in its possession all of the above indicated information, if that information exists in the possession of Members of Management (First Line Supervisors, Lead Workers, etc.), if the Employer fails to provide that information and it wins the Union Election, it will be overturned (see, for example, HRGC Safety Corporation 365 NLRB No. 88 – June 7, 2017).

It is strongly recommended that, since the preparation of a Voter Eligibility List is extremely time consuming and can degenerate quickly into a Keystone Cops traffic scenario, action be taken by all Employers to modify their HR records to include home and cell phone numbers, e-mail addresses, job titles and work locations for its Employee Complement. Rest assured, that an ounce of prevention (i.e. preparation) is worth much more than a pound of cure (i.e. attempting to craft arguments to substantiate Employer good faith in providing information). 

Questions? Contact attorney Walter Liszka at (312) 629-9300 or by email at waliszka@wesselssherman.com