Union Gets Second Bite of the Apple Over Technicality
Letter of the Law
By OLGA M. SERAFIMOVA, Esq.Having to deal with a unionization effort is challenging enough, but having to do it a second time after a narrow success would be truly taxing.
Yet, Danbury Hospital is faced with exactly this task.
Specifically, Danbury Hospital’s workforce voted 346 for and 390 against joining AFT Connecticut, which is a union comprised of teachers, nurses, and other healthcare workers. However, last month, the National Labor Relations Board (NLRB) — the federal agency responsible for the implementation of the National Labor Relations Act — set aside these results and ordered a re-run election. The reason for this development was that the NLRB concluded that the hospital had violated a recent amendment to its rules requiring employers to provide available personal e-mail addresses and telephone numbers for employees included on a voter list.
When a petition is filed with the NLRB seeking to form or join a union, the employer must comply with a number of requirements with short deadlines, such as compiling and providing a voter list. A voter list contains specific information about all employees who would be included in the proposed union if the unionization effort is successful, as these are the employees who get to vote on whether or not to unionize. After the petition is filed, the proposed union and the employer may agree to put the matter to a vote by entering into an election agreement, or may have the NLRB decide whether or not a vote should occur.
To be entitled to a vote, the proposed union must comply with a number of specific requirements, and unless an agreement is reached, the issue is decided at a hearing before the NLRB. This hearing may result in the dismissal of the petition or the issuance of a direction of election, in which case the matter is put to a vote by the employees.
Generally speaking, the voter list must be provided to the NLRB and the proposed union within two business days after the approval of the agreement or the issuance of the direction of election. This deadline is very strict. To get an extension, the employer must be able to show ‘extraordinary circumstances.’
The fact that the employer may be decentralized, have a large workforce, or rely on an outside payroll company, all of which would make gathering the required information more time-consuming, are not sufficient to meet this test. Other aspects of the rule that render the task time-consuming are the very specific format requirements. The NLRB rule controls the file format to be used, the order of the columns, the order of the names, and the font to be used, and failing to comply with any of these requirements could potentially result in a re-run election.
The information required to be on a voting list includes the employees’ full names, job classifications, work locations, shifts, and contact information, including their home addresses, available personal e-mail addresses, and available home and personal cell-phone numbers. In compiling the voter list, Danbury Hospital relied exclusively on the information contained in the employee database maintained by its Human Resources Department.
In so doing, the hospital provided all personal e-mails in that database, as well as telephone numbers for 94% of the employees on the list. Nevertheless, the NLRB held that its rules had been violated.
The NLRB reached this decision not because it found that the hospital had failed to provide any e-mail addresses and telephone numbers, but because it found that the hospital had failed to search diligently enough for any additional e-mail addresses and telephone numbers that may exist.
The NLRB reasoned that, by failing to look into other databases, such as those maintained by its Emergency and Nursing departments, the hospital had not exercised the necessary level of due diligence to comply with the rule.
Given the grave consequences of failing to comply with the requirements of the voter list and the broad interpretation of the new rule in the case of Danbury Hospital, employers facing a unionization effort are advised to start preparing the list as soon as they know the likely scope of the bargaining unit at issue.
A similar result could follow if an employer is found to have failed to properly post or distribute the notice of election, the document informing the parties and employees that a vote will be held. Under the NLRB’s new rule, this notice must be posted in conspicuous places in the workplace, including all places where notices to employees are “customarily posted.”
The employer must also e-mail the notice to all employees with whom the employer “customarily communicates” electronically.
Given these vague definitions, further litigation is bound to happen.
Olga M. Serafimova, Esq. is an attorney at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm. Royal LLP is a certified women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]