Will the Fifth Circuit Try to Turn Back the Clock on the NLRB?

April 14th will mark the first anniversary of the NLRB’s new election rules.  Before the rules went into effect, employer groups predictably fretted about what they saw as the dire consequences that would result.  Yet, so far the rule changes have had little effect on union organizing.  The number of election petitions has not increased, nor has the percentage of cases in which workers vote for union representation.  Two lawsuits challenging the rules were dismissed, but two employer associations have appealed one of those cases to the Fifth Circuit.  While the Fifth Circuit will almost certainly uphold most of the rule changes, the oral argument left some doubt about whether the court will uphold the requirement that employers provide unions with available e-mail addresses and phone numbers of eligible voters.

At the oral argument, the weaknesses in the employer challenges to the new rules were readily apparent.  The new rule gives NLRB Regional Directors discretion to limit the scope of pre-election hearings, postponing many questions of voter eligibility until after the election where they may be moot, or easily resolved, depending upon the vote count.  (For instance, an employer may be more willing to exclude an anti-union group of workers from the bargaining unit if their votes are insufficient to affect the election outcome.)  The employer groups insist that a pre-election hearing is always necessary when supervisory status is at issue for any worker.  But, the statute says that the purpose of a hearing is to determine whether “a question of representation exists,” not to resolve all issues relating to voter eligibility.  Furthermore, under the old rule even if a Regional Director issued a decision on supervisory status before an election, that determination could always be overturned later by the Board or by a circuit court.  At the oral argument, the employer’s lawyer, Maurice Baskin, was reduced to making the argument that employers need evidentiary hearings in order to figure out how much authority they have granted to their putative supervisors.

Unfortunately, the judges on the Fifth Circuit panel seemed more receptive to the argument that the Board had acted in an arbitrary and capricious manner when it decided that employers ought to provide petitioning unions with available e-mail addresses and phone numbers in addition to the home addresses that they have been required to provide for 50 years.  When the Board issued its proposed rule, it received thousands of comments.  Many employer groups retained high-priced law firms to draft lengthy comments.  The Board also held public hearings on the proposed rules.  During the rulemaking process, concerns were raised about privacy, but as far as I can tell, there was no evidence in the record that giving out an e-mail address or a cell phone number creates a greater risk of identity theft than providing a home address.  Despite this lack of evidence, Judge Catharina Haynes seemed very concerned that giving out workers’ email addresses and phone numbers would make them vulnerable to identity theft.  Judge Haynes thought the NLRB should have let workers opt out of sharing their contact information.  But, this kind of thinking is exactly why judges should give deference to administrative agencies.  Allowing workers to opt out only sounds like a solution until you think about how the opt-out would work in real life.  It is illegal for an employer to ask a worker to state her opinion about unions, and any opt-out administered by the employer would effectively involve the same inquiry.  And, for the NLRB to administer the opt-out, the employer would need to turn over the information to the NLRB, raising the same (minimal) risk of data breach that would happen if the information is given directly to a union.  After all, you may recall that last year hackers gained access to U.S. government databases containing personnel records of 22 million people.  Further, administering the opt-out process would impose substantial costs on the NLRB – the Board would have to contact workers, and redact lists.  This would also unnecessarily delay elections while the NLRB waited to hear if any worker wanted to opt out.

Almost fifty years ago, the Supreme Court heard a challenge to the rule requiring employers to provide a list of names and home addresses to petitioning unions.  The Court rejected the challenge, explaining that Congress granted the NLRB “wide discretion to ensure the fair and free choice of bargaining representatives,” and the disclosure requirement “furthers this objective by encouraging an informed electorate.”  The Court held that it “is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present.”  Those words are no less true today.  If the goal is to ensure that all workers in a bargaining unit have an opportunity to hear from a petitioning union (or from a worker filing a decertification petition), it’s hard to understand why you wouldn’t provide e-mail addresses and phone numbers.  The way we communicate with each other has changed a lot since the 1960s.  The NLRB should be allowed to acknowledge those changes in its election rules.