Hunton Employment & Labor Perspectives

In Danbury Hospital (Case 01-RC-153086), after an initial election victory for the employer, an NLRB Regional Director ordered a second election as a result of the employer’s non-compliance with the new ambush election rules. In doing so, the NLRB again demonstrates why employers should be vigilant and proactive in preparing for an election long before the arrival of a union petition.

Under the new rules, employers must, within two business days after the approval of an election agreement or the issuance of a Direction of Election, submit a voter list of employees’ “available” personal email addresses and personal cell phone numbers. These requirements differ from the old election rules in that previously, the employer was only required to provide a voter list of the employees’ full names and home addresses within seven calendar days after the approval of an election agreement or the issuance of a Direction of Election.

The Regional Director in Danbury Hospital determined that although the employer submitted a voter list which included a phone number for approximately 94% of all voters and all personal email addresses in the HR system, the employer did not “exercise reasonable diligence in compiling voter contact information.” The employer’s error, according to the Regional Director, arose from its failure to search within data sources outside of its HR database, which included departmental databases, messaging system databases, unit phone lists, and candidate tracking system databases. The Regional Director determined that the search requirement is a “strict rule,” dismissing the employer’s argument that the absence of complete contact information did not prejudice or adversely impact the union. The Regional Director also rejected the employer’s argument that there was little evidence in the record that supported the amount and type of contact information missing from the voter list, asserting that it was the employer’s non-compliance with the search requirement that lead to such lack of evidence.

The NLRB’s determination in the Danbury Hospital case reaffirms why employers should prepare for a union election well in advance of a union petition. Considering that sources of employee contact information may span across several databases, employers should consider identifying such databases and preparing a process to cull necessary information, given the constricted timeframe to submit the voter list. Foregoing such preparation exposes employers to unnecessary risks, only one of which includes the overturning of a favorable election result.