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A company facing a vote on unionization may have to ask its supervisors to provide a list of employee phone numbers so it can pass them on to the union, a divided NLRB held ( RHCG Safety Corp. , 2017 BL 192520, 365 N.L.R.B. No. 88, 6/7/17 ).
RHCG Safety Corp. should have retrieved employees’ phone numbers from the company’s supervisors, who had the numbers listed on their own telephones, members Mark Gaston Pearce (D) and Lauren McFerran (D) said in a 2-1 ruling. The New York construction company’s failure to assemble the information justified setting aside a union’s 46-36 election loss, they said.
Chairman Philip A. Miscimarra (R) disagreed. Miscimarra said he wouldn’t require an employer to canvass its supervisors for the information in the very short pre-election period permitted by the NLRB rule.
The National Labor Relations Board nearly two and a half years ago adopted a rule that an employer must give a union the phone numbers of eligible voters, but the NLRB is now split 2-1 on what information is “available” to the employer. The sharp disagreement suggests the issue will continue to divide the board.
Miscimarra dissented from the 2014 rulemaking, and he dissented from the board’s ruling on the omission of telephone numbers in the current case.
The board had never before considered information on supervisors’ phones to be “available” to the employer, Miscimarra said. He warned that because the board’s rules now allow the agency to wait until after an election to identify supervisors, employers may be uncertain before a union vote whether an individual is a supervisor whose phone should be searched for employee phone numbers or a rank-and-file employee who has a right to privacy.
The board’s rules only allow an employer two business days after the approval of an election agreement to furnish the voter list, the chairman said. It was “unrealistic” to require some 14 RHCG supervisors to search their phones for employee phone numbers.
“Either way,” Miscimarra argued, “today’s decision will predictably result in more litigation, more expense for the parties, and ... greater uncertainty and delay” in NLRB election cases.
The Democratic majority’s interpretation of the NLRB rule may not be controlling for very long. President Donald Trump is expected to appoint two Republicans to board vacancies this year, and Miscimarra may be able to secure a new majority to support his critical view of the election rule.
Laborers’ International Union of North America Local 79 filed a petition to represent RHCG’s employees and the company agreed to an NLRB election.
Local 79 filed objections to the election result and argued RHCG failed to comply with the board’s 2014 rule requiring an employer to produce an employee list with names, addresses, and ”available home and personal cellular (‘cell’) telephone numbers of all eligible voters.”
The employer produced a list, but 80 of the 84 addresses were incorrect. The board agreed the high error rate justified holding a new election.
But Pearce and McFerran said RHCG’s failure to put any employee phone numbers on the voter list provided an independent basis for setting the election aside.
The company argued it didn’t have the phone numbers in its computer database, but the board majority said nothing in the NLRB rule requires that “available” information be contained in such a database.
RHCG supervisors kept and used employees’ personal phone numbers for work-related communications, but the company never asked its supervisors to provide the information for use in the required voter list, Pearce and McFerran said.
Attorneys for RHCG and LIUNA Local 79 didn’t respond June 8 to requests for comment on the decision.
David A. Tango of Genova Burns in Newark, N.J., represented RHCG Safety Corp. in the representation case. Tamir Rosenblum in New York represented Laborers Local 79.
To contact the reporter on this story: Lawrence E. Dubé in Washington at firstname.lastname@example.org
Text of the decision is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_RHCG_Safety_Corp_365_NLRB_No_88_2017_BL_19252?doc_id=XJCQI21C.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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