[House Report 115-325]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-325
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EMPLOYEE PRIVACY PROTECTION ACT
_______
September 25, 2017.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Ms. Foxx, from the Committee on Education and the Workforce, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2775]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce to whom was
referred the bill (H.R. 2775) to amend the National Labor
Relations Act to require that lists of employees eligible to
vote in organizing elections be provided to the National Labor
Relations Board, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Employee Privacy Protection Act''.
SEC. 2. LISTS OF EMPLOYEES ELIGIBLE TO VOTE IN ELECTIONS.
Section 9(c)(1) of the National Labor Relations Act (29 U.S.C.
159(c)(1)) is amended by adding at the end the following: ``Not earlier
than 7 days after a final determination by the Board of the appropriate
bargaining unit, the Board shall acquire from the employer a list of
all employees eligible to vote in the election to be made available to
all parties, which shall include the names of the employees, and not
more than one additional form of personal contact information for the
employee, (such as a telephone number, an email address, or a mailing
address) chosen by the employee in writing.''.
Purpose
H.R. 2775, the Employee Privacy Protection Act, protects
employee privacy, modernizes the voter eligibility list,\1\ and
empowers workers, while ensuring unions can continue to
communicate with employees. The legislation ensures labor
organizations will continue to receive a list of eligible
voters within seven days of an election agreement or direction
of an election. However, rather than requiring employers to
provide each employee's home address, as required under current
law, the bill provides employees the right to choose the
contact information provided to the union.
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\1\The voter eligibility list is a list of employees who are
presumed to be eligible to cast a vote in a union election.
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Committee Action
112TH CONGRESS
Committee Hearing on National Labor Relations Board's Unprecedented
Rulemaking
On July 7, 2011, the Committee on Education and the
Workforce (Committee) held a hearing entitled ``Rushing Union
Elections: Protecting the Interests of Big Labor at the Expense
of Workers' Free Choice'' on the National Labor Relations
Board's (NLRB) June 22, 2011, proposed election procedure
regulation. The proposal expanded the list of required employee
contact information (Excelsior list) and reduced the time for
production. Witnesses before the Committee agreed the proposal
would have significantly hindered an employer's ability to
communicate with his or her employees and crippled an
employee's right to choose whether to be represented by a labor
organization. Witnesses before the panel were the Honorable
Peter C. Schaumber, Former NLRB Chairman, Washington, D.C.; Mr.
Larry Getts, Tube Press Technician, Dana Corporation, Garrett,
Indiana; Mr. John Carew, President, Carew Concrete & Supply
Company, Appleton, Wisconsin, representing himself and the
National Ready Mixed Concrete Association; Mr. Michael J.
Lotito, Attorney, Jackson Lewis LLP, San Francisco, California;
and, Mr. Kenneth Dau-Schmidt, Professor, Indiana University,
Maurer School of Law, Bloomington, Indiana.
Committee Hearing on NLRB's Decision to Disfranchise Employees in Union
Elections
On September 22, 2011, the Committee held a hearing on the
``Culture of Union Favoritism: Recent Actions of the National
Labor Relations Board.'' In August 2011, the NLRB issued a
number of biased anti-worker decisions, including Specialty
Healthcare and Rehabilitation Center of Mobile (Specialty
Healthcare),\2\ Lamons Gasket Company,\3\ and UGL-UNICCO
Service Company.\4\ Additionally, the NLRB finalized a rule
requiring almost every employer to post a vague, union-biased
notice on employee National Labor Relations Act (NLRA) rights.
The NLRB's unbridled overreach of authority demanded a complete
examination by the Committee. Witnesses before the Committee
included Mr. Curtis L. Mack, Partner, McGuireWoods LLP,
Atlanta, Georgia; Ms. Barbara A. Ivey, Employee, Kaiser
Permanente, Keizer, Oregon; Mr. Arthur J. Martin, Partner,
Schuchat, Cook & Werner, St. Louis, Missouri; and Mr. G. Roger
King, Partner, Jones Day, Columbus, Ohio.
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\2\357 NLRB No. 83 (2011).
\3\357 NLRB No. 72 (2011).
\4\357 NLRB No. 76 (2011).
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Introduction of H.R. 3094, Workforce Democracy and Fairness Act
On October 5, 2011, then-Committee Chairman John Kline (R-
MN) introduced H.R. 3094, the Workforce Democracy and Fairness
Act, with 26 cosponsors. Recognizing the NLRB had moved far
beyond an adjudicative body designed to implement congressional
intent under the NLRA, the legislation sought to (1) reinstate
the traditional standard for determining which employees
comprise an appropriate bargaining unit; (2) ensure employers
can participate in a fair union election; (3) guarantee workers
have the ability to make a fully informed decision in a union
election; and, (4) safeguard employee privacy by allowing
workers to decide the type of personal information provided to
a union.
Committee Legislative Hearing on H.R. 3094, Workforce Democracy and
Fairness Act
On October 12, 2011, the Committee held a legislative
hearing on H.R. 3094. Witnesses included the Honorable Charles
Cohen, Senior Counsel, Morgan, Lewis and Bockius LLP and Former
Member, National Labor Relations Board, Washington, D.C.; Mr.
Robert Sullivan, President, RG Sullivan Consulting,
Westmoreland, New Hampshire, representing the Retail Industry
Leaders Association; Mr. Michael J. Hunter, Partner, Hunter,
Carnahan, Shoub, Byard and Harshman, Columbus, Ohio; and, Mr.
Phillip Russell, Attorney, Ogletree Deakins, Tampa, Florida.
Committee Consideration of H.R. 3094, Workforce Democracy and Fairness
Act
On October 26, 2011, the Committee considered H.R. 3094.
Then-Chairman Kline offered an amendment in the nature of a
substitute. Nine additional amendments were offered and
debated; however, no additional amendments were adopted. The
Committee favorably reported H.R. 3094 to the House of
Representatives by a vote of 23 to 16.
House Passage of H.R. 3094, Workforce Democracy and Fairness Act
On November 30, 2011, the House of Representatives
considered H.R. 3094, as amended by the Committee. Four
amendments and an amendment in the nature of a substitute were
offered, but none were adopted. The House passed H.R. 3094 by a
bipartisan vote of 235 to 188. The bill was not considered by
the Senate prior to the conclusion of the 112th Congress.
113TH CONGRESS
Subcommittee Hearing on Union Organizing
On September 19, 2013, the Subcommittee on Health,
Employment, Labor, and Pensions (HELP) held a hearing on ``The
Future of Union Organizing'' to examine the future of NLRB
representational elections. Witnesses were Mr. David R. Burton,
General Counsel, National Small Business Association,
Washington, D.C.; Mr. Clarence Adams, Field Technician,
Cablevision, Brooklyn, New York; Mr. Ronald Meisburg, Member of
the Firm, Proskauer, Washington, D.C.; and Mr. Stefan J.
Marculewicz, Shareholder, Littler Mendelson, Washington, D.C.
Committee Hearing on the NLRB's Proposed Ambush Election Rule
On March 5, 2014, the Committee held a hearing entitled
``Culture of Union Favoritism: The Return of the NLRB's Ambush
Election Rule.'' Ms. Doreen S. Davis, Partner, Jones Day, New
York, New York; Mr. Steve Browne, Vice President of Human
Resources, LaRosa, Cincinnati, Ohio; Ms. Caren P. Spencer,
Shareholder, Weinberg, Roger & Rosenfeld P.C., Alameda,
California; and, Mr. William Messenger, Staff Attorney,
National Right to Work Legal Defense Foundation, Inc.,
Springfield, Virginia, testified before the Committee. The
witnesses stated the February 6, 2014, proposed ambush election
rule, like its predecessor, would substantially limit the
opportunity for a full evidentiary hearing or NLRB resolution
of contested issues, including voter eligibility.
Introduction of H.R. 4321, Employee Privacy Protection Act
On March 27, 2014, then-HELP Subcommittee Chairman David
``Phil'' Roe (R-TN) introduced H.R. 4321, the Employee Privacy
Protection Act, with 20 cosponsors. With the NLRB's ambush
election rule undermining employee privacy, the legislation was
necessary to ensure employees could choose what personal
information was provided to a union.
Committee Consideration of H.R. 4321, Employee Privacy Protection Act
On April 9, 2014, the Committee considered H.R. 4321. HELP
Subcommittee Chairman Roe offered an amendment in the nature of
a substitute to make a technical change to clarify employees
only have to provide one form of personal contact information.
Two additional amendments were offered and debated but were not
adopted. The Committee favorably reported H.R. 4321 to the
House of Representatives by a vote of 21 to 17.
114TH CONGRESS
Subcommittee Legislative Hearing on H.J. Res. 29, Providing for
Congressional Disapproval of the NLRB's Ambush Election Rule
On March 4, 2015, the HELP Subcommittee held a legislative
hearing entitled ``H.J. Res. 29, Providing for congressional
disapproval under chapter 8 of title 5, United States Code, of
the rule submitted by the National Labor Relations Board
relating to representation case procedures.'' This Joint
Resolution would have disapproved and nullified the NLRB's
December 15, 2014, rule relating to representation case
procedures. Witnesses testified to the urgent need for Congress
to overturn the NLRB's ambush election rule because of its
negative consequences for workers and families. Witnesses were
Ms. Brenda Crawford, Registered Nurse, Murrieta, California;
Mr. Roger King, Senior Labor and Employment Counsel, testifying
on behalf of the Retail Industry Leaders Association,
Washington, D.C.; Mr. Arnold E. Perl, Member, Glankler Brown,
Memphis, Tennessee; and Mr. Glenn M. Taubman, Staff Attorney,
National Right to Work Legal Defense and Education Foundation,
Inc., Springfield, Virginia.
Introduction of H.R. 1767, Employee Privacy Protection Act
On April 14, 2015, then-HELP Subcommittee Chairman Roe
introduced H.R. 1767, the Employee Privacy Protection Act, with
two original cosponsors. The text of H.R. 1767 was identical to
the text of H.R. 4321 from the 113th Congress.
115TH CONGRESS
Subcommittee Hearing on Restoring Balance and Fairness to the NLRB
On February 14, 2017, the HELP Subcommittee held a hearing
entitled ``Restoring Balance and Fairness to the National Labor
Relations Board.'' Witnesses discussed the harmful consequences
of several NLRB actions, including the ambush election rule,
which cripples worker free choice. Witnesses were Ms. Reem
Aloul, BrightStar Care of Arlington, Arlington, Virginia, on
behalf of the Coalition to Save Local Business; Ms. Susan
Davis, Partner, Cohen, Weiss, and Simon, LLP, New York, New
York; Mr. Raymond J. LaJeunesse, Jr., Vice President and Legal
Director, National Right to Work Legal Defense Foundation,
Inc., Springfield, Virginia; and, Mr. Kurt G. Larkin, Labor
Attorney, Hunton & Williams, LLP, Richmond, Virginia.
Introduction of H.R. 2775, Employee Privacy Protection Act
On June 6, 2017, Rep. Joe Wilson (R-SC) introduced H.R.
2775, the Employee Privacy Protection Act, with seven
cosponsors. The text of H.R. 2775 is identical to the text of
H.R. 1767 from the 114th Congress, which was referred to the
Committee in April 2015.
Subcommittee Legislative Hearing on H.R. 2776, H.R. 2775, and H.R. 2723
On June 14, 2017, the HELP Subcommittee held a hearing
entitled ``Legislative Reforms to the National Labor Relations
Act: H.R. 2776, Workforce Democracy and Fairness Act; H.R.
2775, Employee Privacy Protection Act; and H.R. 2723, Employee
Rights Act.'' Witnesses testified about the need for H.R. 2775
to fix the increased burden on employers of requiring
additional employee information to be given to a union with
little prior notice. Witnesses also testified that H.R. 2775
would protect workers and provide workers' choice in
determining what personal information may be shared with a
union. Witnesses were Mr. Seth H. Borden, Partner, McGuireWoods
LLP, New York, NY.; Mr. Guerino J. Calemine, III, General
Counsel, Communications Workers of America, Washington, D.C.;
Ms. Karen Cox, Dixon, Illinois; and, Ms. Nancy McKeague, Senior
Vice President and Chief of Staff, Michigan Health and Hospital
Association, Okemos, Michigan, on behalf of the Society for
Human Resource Management.
Committee Consideration of H.R. 2775, Employee Privacy Protection Act
On June 29, 2017, the Committee considered H.R. 2775, the
Employee Privacy Protection Act. Rep. Wilson offered an
amendment in the nature of a substitute, making a technical
change to clarify employees only have to provide one form of
personal contact information, which was adopted. Additional
amendments were offered and debated but were not adopted. The
Committee favorably reported H.R. 2775, as amended, to the
House of Representatives by a vote of 22 to 16.
Summary
The Employee Privacy Protection Act, H.R. 2775, ensures
labor organizations will continue to receive a list of eligible
voters within seven days of an election agreement or direction
of election. The bill modernizes the process, while providing
employees the right to choose how they wish to be contacted by
a union.
Committee Views
In 1935, Congress passed the NLRA, guaranteeing the right
of most private sector employees\5\ to organize and select
their own representative. In 1947, Congress passed the most
significant amendment to the NLRA, the Taft-Hartley Act\6\
(Taft-Hartley), abandoning ``the policy of affirmatively
encouraging the spread of collective bargaining [and] striking
a new balance between protection of the right to self-
organization and various opposing claims.''\7\ Taft-Hartley
clarified employees have the right to refrain from
participating in union activity,\8\ created new union unfair
labor practices,\9\ codified employer free speech,\10\ and made
changes to the determination of bargaining units.\11\
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\5\The NLRA does not cover all employees and employers in the
United States. For example, public sector employers (state, local, and
federal employees), employers covered by the Railway Labor Act
(airlines and railroads), agricultural labor, and supervisors are not
covered by the act. 29 USC Sec. 152(2).
\6\29 U.S.C. Sec. 141 et. seq.
\7\Archibald Cox, Some Aspects of the Labor Management Relations
Act of 1974, 61 Harv. L. Rev. 1, 4 (1947).
\8\29 U.S.C. Sec. 157.
\9\29 U.S.C. Sec. 158.
\10\29 U.S.C. Sec. 158(c).
\11\29 U.S.C. Sec. 159(d).
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The NLRA established the NLRB, an independent federal
agency, to fulfill two principal functions: (1) to prevent and
remedy employer and union unlawful acts (called unfair labor
practices or ULPs) and (2) to determine by secret ballot
election whether employees wish to be represented by a union.
In determining whether employees wish to be represented by a
union, the NLRA is wholly neutral.\12\
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\12\NLRB v. Savair Mfg, 414 U.S. 270, 278 (1973).
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To promote free and informed choice in union elections, in
the 1966 Excelsior Underwear Inc. case, the NLRB created a
requirement that employers must provide a list of all eligible
voters and their home addresses to the union(s) seeking
representation prior to the election.\13\ This list is commonly
referred to as the Excelsior list. Currently, within two days
of the regional director's pre-election decision or approval of
the election agreement, the employer must file the Excelsior
list with the regional director (from 1996 through 2014,
employers had seven days to provide this information).\14\ The
regional director makes the list available to all parties.
Unless waived, the non-employer parties, most commonly the
union(s) seeking representation, must have at least 10 days to
review the list prior to the election.\15\ Under this procedure
(including the seven-day timeframe), unions won over two-thirds
of representational elections in Fiscal Year (FY) 2014.\16\
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\13\Excelsior Underwear Inc., 156 NLRB 1236 (1966).
\14\National Labor Relations NLRB Casehandling Manual para. 11312.
\15\Id.
\16\NLRB, REPRESENTATION PETITIONS (2017), https://www.nlrb.gov/
news-outreach/graphs-data/petitions-and-elections/representation-
petitions-rc.
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In February 2014, in a rare exercise of formal rulemaking,
the NLRB published in the Federal Register a Notice of Proposed
Rulemaking, which became final on December 15, 2014, and took
effect on April 14, 2015. This rule adds additional information
to the Excelsior list and cuts the timeframe for its
production.\17\ In addition to employee names and addresses,
the employer now must provide unit employees' phone numbers,
email addresses, work locations, shift information, and job
classifications.\18\ Absent extraordinary circumstances or
party agreement, this information must be provided to the union
within two days of the regional director's decision or approval
of the election agreement.\19\ Under this new procedure, unions
won over 72 percent of representational elections in FY
2016.\20\
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\17\79 Fed. Reg. at 7324.
\18\Id.
\19\Id.
\20\NLRB, supra note 15.
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Privacy Implications of an Expanded Excelsior List
The inclusion of employee phone numbers and email addresses
on the Excelsior list further encroaches on employee privacy.
Moreover, providing unions with employees' phone numbers, email
addresses, and home addresses without consent puts employees
and their families at risk of coercion and intimidation. The
NLRB reported that in FY 2010 unions faced a total of 6,338
unfair labor practice allegations; 80.6 percent of those
charges were cases where a union attempted to ``restrain or
coerce employees in the exercise of the rights guaranteed'' by
the NLRA (Sec. 8(b)(1)).\21\
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\21\NLRB, TABLE 2: TYPES OF UNFAIR LABOR PRACTICES ALLEGED, FISCAL
YEAR 2010, https://www.nlrb.gov/sites/default/files/attachments/basic-
page/node-1696/table_2.pdf.
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The December 2014 rule provides only a vague warning that
this information should not be misused. It states that employee
information shall not be used ``for purposes other than the
representation proceeding, Board proceedings arising from it,
and related matters.'' Seth Borden, a Partner at McGuireWoods
LLP, testified at a June 14, 2017, HELP Subcommittee hearing
that ``despite numerous comments seeking assurances about
enforcement of this provision, the Board declined to include
any specific mechanisms to protect against abuse.''\22\
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\22\Legislative Reforms to the National Labor Relations Act: H.R.
2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee Privacy
Protection Act; and, H.R. 2723, Employee Rights Act: Hearing before the
Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on
Educ. and the Workforce, 115th Cong., 12 (2017). (written testimony of
Seth Borden) [hereinafter Borden].
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Employees clearly face significant and, at times, unlawful
union pressure.\23\ However, union communications need not be
unfair labor practices or criminal acts to be unwelcome. In
testimony before the HELP Subcommittee witnesses described
their negative and unwelcome experiences with union organizers.
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\23\NLRB, supra note 21.
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In her June 2013 testimony, Ms. Marlene Felter, a medical
records coder at Chapman Medical Center in Orange, California,
stated the following:
From July to November 2011, my co-workers reported
that [Service Employees International Union] operatives
were calling them on their cell phones, coming to their
homes, stalking them, harassing them, and even offering
to buy them meals at restaurants to convince them to
sign union cards.\24\
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\24\Legislative Hearing on H.R. 2346, Secret Ballot Protection Act,
and H.R. 2347, Representation Fairness Restoration Act: Hearing before
the Subcomm. on Health, Employment, Labor and Pensions of the H. Comm.
on Educ. and the Workforce, 113th Cong., 2 (2013) (written testimony of
Marlene Felter).
In his June 2011 testimony, Mr. Larry Getts, a Dana
Corporation employee in Fort Wayne, Indiana, stated the
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following:
On a daily basis[,] my coworkers and I would find UAW
officials waiting in our break room. They'd approach us
during our lunch breaks. They would even follow us to
our vehicles at the end of the day and some of us even
to our homes.\25\
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\25\Rushing Union Elections: Protecting the Interests of Big Labor
at the Expense of Workers' Free Choice: Hearing before the H. Comm. on
Educ. and the Workforce, 112th Cong., 2 (2011) (written testimony of
Larry Getts).
Not surprisingly, Mr. Getts said he would object to his
employer providing his phone number and email address to a
union.\26\
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\26\Id. at 2-3.
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In a 2014 Washington Times article, Ms. Jennifer Parrish
described her alarming experience with a Service Employees
International Union organizer, saying:
My story starts in the spring of 2006, when a man I'd
never met walked into my Minnesota home and asked for
my signature on what he claimed was a petition asking
the state for health insurance for child care providers
like myself (sic). As it happened, I already had health
insurance, and I didn't feel it was the state's
responsibility to provide it to me.
I repeatedly declined to sign his petition, but this
wasn't enough. The gentleman grew angry, and his
demands became louder and more insistent. His behavior
was alarming; to get him to leave, I promised to sign
his card later if he would return after I had time to
look it over.\27\
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\27\Parrish, Jennifer, A breath of employee freedom, The Washington
Times (Aug. 7, 2014), http://www.washingtontimes.com/news/2014/aug/7/
parrish-a-breath-of-employee-freedom/.
On June 14, 2017, at a HELP Subcommittee hearing, Ms. Karen
Cox testified about her experience attempting to decertify an
unwanted union and how her privacy was infringed upon as a
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result. She stated the following:
In November 2012, I made the two-hour trip to Peoria
and filed the first petition with the NLRB. On my way
back[,] I got a phone call from my dad. He told me a
union rep contacted him and mentioned something about
people losing their jobs and said that I needed to
settle my grievances. My dad said, `Watch your back,
because that was a threat.' I was shocked.\28\
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\28\Legislative Reforms to the National Labor Relations Act: H.R.
2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee Privacy
Protection Act; and, H.R. 2723, Employee Rights Act: Hearing before the
Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on
Educ. and the Workforce, 115th Cong., 2 (2017) (written testimony of
Karen Cox).
Of equal concern are alleged union misuses of personal
employee information outside an organizing campaign. In the
fall of 2007, 33 AT&T employees at the company's Burlington,
North Carolina facility resigned from Communication Workers of
America (CWA) membership and ceased paying union dues.\29\ In
apparent retaliation, the CWA Local posted the 33 AT&T
employees' names and social security numbers on a publicly
accessible bulletin board located in a hallway close to the
building entrance, stating the employees had resigned from the
union and ceased paying dues.\30\
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\29\AT&T Workers Petition U.S. Supreme Court to Overturn Union
Exemption for Identity Theft Laws, National Right to Work Legal Defense
Foundation, Inc. (July 19, 2012), http://www.nrtw.org/en/press/2012/07/
fisher-supreme-court-appeal-07192012.
\30\Id.
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In 2009, Ms. Patricia Pelletier, an employee of the
Connecticut Student Loan Foundation, organized an effort to
decertify the CWA.\31\ In response, CWA representatives
allegedly forged Pelletier's signature on numerous magazine
subscriptions and product solicitations.\32\ As a result,
Pelletier received numerous unwanted pieces of mail. Not only
was Pelletier forced to spend many hours canceling
subscriptions, she was also billed for thousands of dollars by
magazine companies.\33\ Ultimately, Ms. Pelletier filed a
lawsuit against the union that was settled.\34\
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\31\Union Settles Lawsuit Alleging Identity Theft in Retaliation
Campaign against Independent Worker, National Right to Work Legal
Defense Foundation, Inc. (May 9, 2009), http://www.nrtw.org/en/press/
2009/05/union-settles-lawsuit-alleging-ident.
\32\Id.
\33\Id.
\34\Id.
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At a June 14, 2017, HELP Subcommittee hearing, Ms. Nancy
McKeague, Senior Vice President and Chief of Staff of the
Michigan Health and Hospital Association, testifying on behalf
of the Society of Human Resource Management, noted that from a
HR professional's perspective the new requirements were
``abhorrent.'' She stated, ``If we begin to provide to a third
party, without employees' consent, personal information such as
home addresses, home telephone numbers, cell phone numbers, and
shift schedules, how long do you think the employee will trust
us with the rest of the employment information we keep?''\35\
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\35\Legislative Reforms to the National Labor Relations Act: H.R.
2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee Privacy
Protection Act; and, H.R. 2723, Employee Rights Act: Hearing before the
Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on
Educ. and the Workforce, 115th Cong., 5 (2017) (written testimony of
Nancy McKeague).
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Additionally, there is a threat from mishandled or
unprotected personal data. At the same hearing, Mr. Seth H.
Borden, Partner at McGuireWoods LLP in New York City, New York,
testified to the following:
The more significant risks, however, go far beyond
the prospect that a union might intentionally misuse
this employee personal contact information. Nowadays,
no one is immune from the dangers of data piracy. The
risks of falling victim to hacking, `phishing' attacks,
and/or identity theft are all increased by the volume
of unwanted email or text message engagement directed
at employees. Nothing in the rule dictates what
measures should be taken to protect this information
for example, whether it might be stored on secured
networks only, or whether it must be destroyed upon
resolution of the petition, etc. The [NLRB] glossed
over all these very real concerns.\36\
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\36\Borden, supra note 22 at 12.
As these examples illustrate, employees face unwelcome,
even unlawful, union coercion and intimidation, as well as
union misuse of their personally identifiable information.
Providing additional private personal information to unions
will only increase these incidents.
Necessary Legislation To Address Unnecessary Encroachment on Employee
Privacy
The Employee Privacy Protection Act addresses the
shortcomings of the NLRB's December 15, 2014, changes to union
election procedures by modernizing the Excelsior list, while
protecting employee privacy by empowering workers. Seven days
after the regional director's pre-election decision or approval
of the election agreement, employers will be required to
provide a list of eligible employees. The list shall include
employee names and one additional piece of personal contact
information. The additional piece of information, such as a
phone number, an email address, or a home address, will be
chosen in writing by employees, thereby ensuring effective
union communication and modernizing the Excelsior list while
protecting employee privacy by allowing employees to choose how
to be contacted by the union.
Privacy Protection
Congress has acted repeatedly to protect personally
identifiable information. The following are examples of federal
laws that include protections for personally identifiable
information:\37\
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\37\E-mail from Gina Stevens, Congressional Research Service
American Law Division, to Marvin Kaplan, former-Workforce Policy
Counsel, House Education and the Workforce Committee (Aug. 12, 2014,
11:08 EST) (on file with author).
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The Fair Credit Reporting Act of 1970 (FCRA)
sets forth rights for individuals and responsibilities
for consumer ``credit reporting agencies'' in
connection with the preparation and dissemination of
personal information in a consumer report. Under the
FCRA, consumer reporting agencies are prohibited from
disclosing consumer reports to anyone who does not have
a permissible purpose.
The Family Educational Rights and Privacy
Act of 1974 governs access to and disclosure of
educational records to parents, students, and third
parties.
The Right to Financial Privacy Act of 1978
restricts the ability of the federal government to
obtain bank records from financial institutions and
sets forth procedures for the federal government's
access to bank customer records.
The Cable Communications Policy Act of 1984
limits the disclosure of cable television subscriber
names, addresses, and utilization information for mail
solicitation purposes.
The Video Privacy Protection Act of 1988
regulates the treatment of personal information
collected in connection with video sales and rentals.
The Driver's Privacy Protection Act of 1994
regulates the use and disclosure of personal
information from state motor vehicle records.
The Health Insurance Portability and
Accountability Act of 1996 set a deadline of August
1999 for congressional action on privacy legislation
for electronically transmitted health information and
required the secretary of Health and Human Services to
issue final privacy regulations by February 2000 in the
absence of congressional action.
The Communications Act of 1934, as amended
by the Telecommunications Act of 1996, limits the use
and disclosure of customer proprietary network
information by telecommunications service providers and
provides a right of access for individuals.
The Children's Online Privacy Protection Act
of 1998 requires parental consent to collect a child's
age or address and requires sites collecting
information from children to disclose how they plan to
use the data.
The Gramm-Leach-Bliley Act of 1999 requires
financial institutions to disclose their privacy
policies to their customers. Customers may opt out of
sharing personal information, and the institutions may
not share account numbers with non-affiliated
telemarketers and direct marketers.
The National Do Not Call Registry, authorized by the
bipartisan Telemarketing and Consumer Fraud and Abuse
Prevention Act, provides insight into American sentiment on
this issue. The National Do Not Call Registry gives Americans
the opportunity to limit the telemarketing calls they
receive.\38\ Once registered on the National Do Not Call
Registry, covered telemarketers must cease calling the
registered number within 31 days.\39\ According to the Federal
Trade Commission, at the end of FY 2012 the National Do Not
Call Registry contained approximately 217 million actively
registered phone numbers.\40\ In 2012, the U.S. population was
approximately 314 million,\41\ suggesting the vast majority of
Americans would object to having an employer provide their
personal information to any third party.
---------------------------------------------------------------------------
\38\National Do Not Call Registry, Federal Trade Commission, http:/
/www.consumer.ftc.gov/articles/0108-national-do-not-call-registry (last
visited Aug. 2, 2017).
\39\Id.
\40\FTC Issues FY 2012 National Do Not Call Registry Data Book,
Federal Trade Commission, http://www.ftc.gov/news-events/press-
releases/2012/10/ftc-issues-fy-2012-national-do-not-call-registry-data-
book (last visited Aug. 2, 2017).
\41\Annual Estimates of the Resident Population for Selected Age
Groups by Sex for the United States, States, Counties, and Puerto Rico
Commonwealth and Municipios: April 1, 2010 to July 1, 2014. United
States Census Bureau, https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml?src=bkmk (last visited on
Sep. 8, 2017).
---------------------------------------------------------------------------
Former Rep. John Dingell (D-MI) stated during debate on the
Do-Not-Call Implementation Act that the ``national [Do Not Call
Registry] will allow consumers to limit . . . unwanted
intrusions and once again answer their telephones without
aggravation.''\42\ Like the National Do Not Call Registry, the
Employee Privacy Protection Act limits unwanted intrusions.
However, recognizing the importance of a free and informed
choice in union elections, the Employee Privacy Protection Act
does not forbid employers from providing employee information
to a union. Instead, the Employee Privacy Protection Act
modernizes the Excelsior list and allows employees to choose
what personal information is provided to the union.
---------------------------------------------------------------------------
\42\DO-NOT-CALL IMPLEMENTATION ACT. Congressional Record. February
12, 2003, 108th Congress, 1st Session .Issue: Vol. 149, No. 26
---------------------------------------------------------------------------
Modernized Union Communication
Under current rules, labor organizations have multiple
avenues through which they may contact employees to encourage
support for the union. In general, employees may solicit
support in the workplace during non-work time, including breaks
and lunch.\43\ Given that unions win over two-thirds of
representational elections, having employee phone numbers and
email addresses is not essential to secure employee support.
However, the Employee Privacy Protection Act recognizes that
the Excelsior list promotes free and informed choice, but it is
outdated. As such, the Employee Privacy Protection Act codifies
a modernized Excelsior list that protects employee privacy and
choice.
---------------------------------------------------------------------------
\43\Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
---------------------------------------------------------------------------
The ways individuals communicate has changed significantly
since 1966 when the NLRB created the Excelsior list. At the
time, traditional mail was one of the most widely used forms of
communication.\44\ However, the use of traditional mail has
declined significantly in recent years. From 2007 to 2016,
single-piece First-Class Mail volume dropped by approximately
22.6 billion pieces.\45\ In contrast, the use of email and cell
phones has risen significantly. According to Statista, there
are 203.8 million adult email users in the United States.\46\
According to Pew Research, as of January 2017 95 percent of
American adults have a cell phone, 77 percent of which are
smartphones.\47\ The Employee Privacy Protection Act modernizes
the Excelsior list to allow employees to provide a personal
email address or phone number in lieu of a home address.
However, to ensure employee privacy and choice, the Employee
Privacy Protection Act leaves it to the individual employee to
choose which piece of personal information is provided to the
union.
---------------------------------------------------------------------------
\44\Excelsior Underwear Inc., 156 NLRB 1236 (1966).
\45\U.S. Postal Service: A decade of facts and figures, United
States Postal Service, https://about.usps.com/who-we-are/postal-facts/
decade-of-facts-and-figures.htm (last visited Aug. 2, 2017).
\46\Number of Adult e-mail users in the United States from 2012 to
2017 (in millions), Statista, https://www.statista.com/statistics/
253794/number-of-adult-e-mail-users-in-the-united-states/ (last visited
Aug. 2, 2017).
\47\Mobile Technology Fact Sheet, Pew Research Center Internet
Project, http://www.pewinternet.org/fact-sheet/mobile/ (last visited
Aug. 2, 2017).
---------------------------------------------------------------------------
Conclusion
Over the last several years, the NLRB has issued multiple
decisions and rules intended to unbalance labor relations to
benefit organized labor. One of the most significant of these
recent actions was the NLRB's December 15, 2014, rulemaking
regarding election procedures. The changes to the Excelsior
list unnecessarily infringe on employee privacy. The Employee
Privacy Protection Act protects employee privacy by providing
employees with the power to choose what personal contact
information is provided to the union.
Section-by-Section
The following is a section-by-section analysis of the
Amendment in the Nature of a Substitute offered by Rep. Wilson
and reported favorably by the Committee.
Section 1. Provides that the short title is the ``Employee
Privacy Protection Act.''
Section 2. Amends the National Labor Relations Act to
reverse the December 15, 2014, changes to representational
election procedures by establishing the composition of and
timetable upon which the employer must provide a list of
eligible voters. Seven days after the final determination by
the NLRB of the appropriate bargaining unit, the NLRB shall
acquire the list of eligible employees from the employer and
make it available to all parties. The list shall include the
employee names and one additional form of personal employee
contact information, such as telephone number, email address,
or mailing address, chosen by the employee in writing.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. H.R. 2775, the Employee Privacy Protection Act,
protects employee privacy, modernizes the voter eligibility
list, and empowers workers, while ensuring unions can continue
to communicate with employees.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This issue is addressed in the CBO letter.
Earmark Statement
H.R. 2775 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of House Rule XXI.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of House Rule XIII, the
goal of H.R. 2775 are to protect employee privacy, modernize
the voter eligibility list, and empower workers, while ensuring
unions can continue to communicate with employees.
Duplication of Federal Programs
No provision of H.R. 2775 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 2775 does not
specifically direct the completion of any specific rule makings
within the meaning of 5 U.S.C. 551.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following estimate for H.R. 2775 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 24, 2017.
Hon. Virginia Foxx,
Chairwoman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Madam Chairwoman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R 2775, the Employee
Privacy Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Anthony.
Sincerely,
Mark P. Hadley
(For Keith Hall, Director).
Enclosure.
H.R. 2775--Employee Privacy Protection Act
H.R. 2775 would amend the National Labor Relations Act to
require the National Labor Relations Board wait at least seven
days after the board has issued its final determination on a
petition for collective bargaining representation before
obtaining from an employer a list of employees who are eligible
to vote in an election for such representation. CBO estimates
that enacting H.R. 2775 would not affect the federal budget.
Enacting the bill would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 2775 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
The bill contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments.
The bill would impose a private-sector mandate as defined
in UMRA by requiring employers to obtain, in writing, their
employees' preferred method of being contacted by union
representatives. The bill would allow employees to choose what
type of personal contact information (telephone number, email
address, or mailing address) to share with union organizers
seeking to establish a union in their workplace. Because
complying with the mandate would only entail a small change
relative to current requirements, CBO estimates that the
aggregate cost of the mandate would fall well below the annual
threshold established in UMRA for private-sector mandates ($156
million, in 2017, adjusted annually for inflation).
The CBO staff contacts for this estimate are Christina
Hawley Anthony (for federal costs) and Logan Smith (for
private-sector mandates). The estimate was approved by H.
Samuel Papenfuss, Deputy Assistant Director for Budget
Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 2775.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
NATIONAL LABOR RELATIONS ACT
* * * * * * *
representatives and elections
Sec. 9. (a) Representatives designated or selected for the
purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit for
the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, or other conditions of
employment: Provided, That any individual employees or a group
of employees shall have the right at any time at present
grievances to their employer and to have such grievances
adjusted, without the intervention of the bargaining
representative, as long as the adjustment is not inconsistent
with the terms of a collective-bargaining contract or agreement
then in effect: Provided further, That the bargaining
representative has been given opportunity to be present at such
adjustment.
(b) The Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercisiong the
rights guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof: Provided, That
the Board shall not (1) decide that any unit is appropriate for
such purposes if such unit includes both professional employees
and employees who are not professional employees unless a
majority of such professional employees vote for inclusion in
such unit; or (2) decide that any craft unit is inappropriate
for such purposes on the ground that a different unit has been
established by a prior Board determination, unless a majority
of the employees in the proposed craft unit vote against
separate representation or (3) decide that any unit is
appropriate for such purposes if it includes, together with
other employees, any individual employed as a guard to enforce
against employees and other persons rules to protect property
of the employer or to protect the safety of persons on the
employer's premises; but no labor organization shall be
certified as the representative of employees in a bargaining
unit of guards if such organization admits to membership, or is
affiliated directly or indirectly with an organization which
admits to membership, employees other than guards.
(c)(1) Whenever a petition shall have been filed, in
accordance with such regulations as may be prescribed by the
Board--
(A) by an employee or group of employees or any
individual or labor organization acting in their behalf
alleging that a substantial number of employees (i)
wish to be represented for collective bargaining and
that their employer declines to recognize their
representative as the representative defined in section
9(a), or (ii) assert that the individual or labor
organization, which has been certified or is being
currently recognized by their employer as the
bargaining representative, is no longer a
representative as defind in section 9(a); or
(B) by an employer, alleging that one or more
individuals or labor organizations have presented to
him a claim to be recognized as the representative
defined in section 9(a);
the Board shall investigate such petition and if it has
reasonable cause to believe that a question of representation
affecting commerce exists shall provide for an appropriate
hearing upon due notice. Such hearing may be conducted by an
officer or employee of the regional office, who shall not make
any recommendations with respect thereto. If the Board finds
upon the record of such hearing that such a question of
representation exists, it shall direct an election by secret
ballot and shall certify the results thereof. Not earlier than
7 days after a final determination by the Board of the
appropriate bargaining unit, the Board shall acquire from the
employer a list of all employees eligible to vote in the
election to be made available to all parties, which shall
include the names of the employees, and not more than one
additional form of personal contact information for the
employee, (such as a telephone number, an email address, or a
mailing address) chosen by the employee in writing.
(2) In determining whether or not a question or
representation affecting commerce exists, the same regulations
and rules of decision shall apply irrespective of the identity
of the persons filing the petition or the kind of relief sought
and in no case shall the Board deny a labor organization a
place on the ballot by reason of an order with respect to such
labor organization or its predecessor not issued in conformity
with section 10(c).
(3) No election shall be directed in any bargaining unit or
any subdivision within which, in the preceding twelve-month
period, a valid election shall have been held. Employees
engaged in an economic strike who are not entitled to
reinstatement shall be eligible to vote under such regulations
as the Board shall find are consistent with the purposes and
provisions of this Act in any election conducted within twelve
months after the commencement of the strike. In any election
where none of the choices on the ballot receives a majority, a
run-off shall be conducted, the ballot providing for a
selection between the two choices receiving the largest and
second largest number of valid votes cast in the election.
(4) Nothing in this section shall be construed to prohibit
the waiving of hearings by stipulation for the purpose of a
consent election in conformity with regulations and rules of
decision of the Board.
(5) In determining whether a unit is appropriate for the
purposes specified in subsection (b) the extent to which the
employees have organized shall not be controlling.
(d) Whenever an order of the Board made pursuant to section
10(c) is based in whole or in part upon facts certified
following an investigation pursuant to subsection (c) of this
section and there is a petition for the enforcement or review
of such order, such certification and the record of such
investigatioon shall be included in the transcript of the
entire record required to be filed under section 10(e) or
10(f), and thereupon the decree of the court enforcing,
modifying, or setting aside in whole or in part the order of
the Board shall be made and entered upon the pleadings,
testimony, and proceedings set forth in such transcript.
(e)(1) Upon the filing with the Board, by 30 per centum or
more of the employees in a bargaining unit covered by an
agreement between their employer and a labor organization made
pursuant to section 8(a)(3), of a petition alleging they desire
that such authority be rescinded, the Board shall take a secret
ballot of the employees in such unit and certify the results
thereof to such labor organization and to the employer.
(2) No election shall be conducted pursuant to this
subsection in any bargaining unit or any subdivision within
which, in the preceding twelve-month period, a valid election
shall have been held.
* * * * * * *
MINORITY VIEWS
This bill overturns the National Labor Relations Board's
(NLRB) 2015 election rule that levels the playing field by
ensuring that a union has access to the same employee contact
information as the employer prior to a union representation
election. The bill tilts the playing field against workers'
efforts to unionize by unfairly restricting employee contact
information that an employer must provide to a union after the
NLRB orders a union representation election, and then by
imposing needless delays in providing such contact information.
The bill was approved and reported out of the Committee with 22
Republicans voting ``aye'' and all 16 Democrats present
opposing H.R. 2775.
Background
Since the NLRB's Excelsior Underwear decision\1\ over 60
years ago, the NLRB has required the employer to provide a list
of employee names and home addresses prior to a representation
election. The ``Excelsior list'' had to be provided to the NLRB
within 7 days of the direction of an election by the NLRB,
which, in turn, provided the list to the union. The reason for
this mandate was to address the problem where only one side--
the employer--had the opportunity to communicate by mail with
all workers prior to the election, and the union did not have
an equivalent ability to respond. The employer, unlike the
union, is also free to contact employees one-on-one in the
workplace, and can lawfully require employees to attend captive
audience meetings on the worksite where they must listen to the
employer's views regarding unionization. Given the employer's
advantages in contacting employees during a union election, the
Excelsior list attempts to level the playing field.
---------------------------------------------------------------------------
\1\156 NLRB 1236 (1966).
---------------------------------------------------------------------------
In 2015, the NLRB's election rule updated the requirements
for the Excelsior list to better effectuate the list's purpose.
The NLRB's current rule requires the employer to provide the
list directly to the union in electronic form within 2 days of
the ordering of an election.\2\ Further, the contents of the
list now must include, in addition to the employees' names and
home addresses, their work locations, shifts, job
classifications, available personal email addresses, and
available home and cell phone numbers.
---------------------------------------------------------------------------
\2\29 C.F.R. Sec. 102.62(d).
---------------------------------------------------------------------------
Impact of the Legislation
H.R. 2775 does not simply reverse the NLRB's 2015 rule
governing the Excelsior list, it undermines the list's purpose.
The bill does not replace the 2-day deadline with the 7-day
deadline that existed prior to the rule. Instead, it mandates a
minimum 7-day waiting period before the employer can submit the
list to the NLRB, with no maximum timeframe for submission. The
bill ``does not limit how long the union may be forced to wait
for this basic information. The union could receive the list of
voters the night before the election under EPPA,'' according to
the testimony of Jody Calemine, General Counsel of the
Communications Workers of America, before a June 14, 2017
legislative hearing on H.R. 2775.\3\ Adding further delay, the
bill requires the employer to send the list to the NLRB, rather
than directly to the union.
---------------------------------------------------------------------------
\3\Testimony of Guerino J. Calemine, III, Before the U.S. House of
Representatives Subcommittee on Health, Labor, Employment, and Pensions
(June 14, 2017) https://edworkforce.house.gov/uploadedfiles/calemine_-
_testimony.pdf.
---------------------------------------------------------------------------
This bill goes even further by limiting the amount of
information that the employer must include in the list. Under
H.R. 2775, the employer only must include the employee's name
and one of three forms of contact information--a mailing
address, email address, or telephone number--to be selected by
each employee and provided to his or her supervisor. This
procedure invites intimidation, where employers can pressure
their workers to provide outdated contact information.
In undermining the effectiveness of the Excelsior list,
H.R. 2775 unnecessarily interferes with settled law. The NLRB's
2015 election rule, which governs the Excelsior list, has been
upheld in every court where the rule has been challenged.\4\
---------------------------------------------------------------------------
\4\Associated Builders & Contractors of Texas, Inc. v. NLRB, 826
F.3d 215 (5th Cir. 2016); Chamber of Commerce of the United States of
America v. NLRB, 118 F. Supp. 3d 171 (D.C. Cir. 2015).
---------------------------------------------------------------------------
Republican Arguments Regarding Employee Privacy Are Hypothetical and
Are Not Supported by Evidence
Committee Republicans contend that the new NLRB rule
``jeopardizes the privacy of workers'' because unions will
abuse this contact information. They rely upon anecdotes that
have not been substantiated by NLRB complaints or proceedings.
To assess the merits of this contention, the NLRB was asked
whether there have been any unfair labor practice charges or
cases adjudicated regarding the improper use of Excelsior list
contact information by a union, or complaints filed about
improper contact with eligible voters during a union election
campaign using information provided through the Excelsior list.
If such cases exist, the NLRB was asked how many of these cases
have there been since April 2015 when the NLRB election rule
went into effect.
The NLRB's response: There are no such cases.\5\
---------------------------------------------------------------------------
\5\Email communications to the Education and Workforce Committee
Democratic staff from the NLRB, July 6, 2017.
---------------------------------------------------------------------------
This is unsurprising since the NLRB rule states that
``[t]he parties shall not use the list for purposes other than
the representation proceeding, Board proceedings arising from
it, and related matters.''\6\
---------------------------------------------------------------------------
\6\29 CFR 102.62(d)
---------------------------------------------------------------------------
Given the absolute lack of evidence, it appears that this
legislation is a solution in search of a problem, and is
nothing more than a pretext to undermine the ability of workers
to band together and attempt to bargain with their employers to
improve the employees' wellbeing.
COMMITTEE DEMOCRATS OFFER AMENDMENTS TO FIX FLAWS IN H.R. 2775
Democrats offered the following amendments to H.R. 2775 at
the June 29, 2017 markup:
AMENDMENT 1--TO AMEND THE TIMING AND CONTENT OF THE VOTER INFORMATION
LIST
In order to ensure that employee contact information is
provided to unions in a timely manner and to assure adequate
modes of communication, Ranking Member Bobby Scott offered an
amendment to codify the NLRB's 2015 election rule. This
amendment requires employers to provide the union with the
Excelsior list of eligible voters within 2 days of the
direction of an election, instead of setting a minimum 7-day
waiting period to provide the list to the NLRB (and not
directly to the union) provided in the bill. The amendment
ensures that the employer provides the employee's name, mailing
address, phone number, or email if available. This amendment
assures unions have access to all modes of contact information,
in addition to work locations, shifts, and job classifications.
The amendment was rejected 16-22, with all present
Committee Democrats voting for the amendment.
AMENDMENT 2--PROTECTING EMPLOYEE PRIVACY REGARDING EMPLOYERS THAT
REQUIRE ACCESS TO EMPLOYEES' SOCIAL MEDIA ACCOUNTS
In order to ensure that the Employee Privacy Protection Act
improves employee privacy, Representative Jared Polis offered
an amendment that would limit application of the bill to
employers who adopt policies barring management from requiring
employees' email and social media names, user names, and
passwords. Currently, federal law does not protect employees
from employers requiring such disclosures. Although 25 states
have enacted some protections for employees, they vary greatly
across the states.\7\ The amendment, unlike the bill text,
actually protects the employee privacy that the bill's title
purports to protect.
---------------------------------------------------------------------------
\7\See, e.g. Utah Code Sec. 34-48-102 (prohibits employers from
requiring employees to provide passwords); N.H. Rev. Stat. Sec. 275:74
(prohibits employers from requiring passwords, requiring employees to
add themselves to a list of contacts, or to change privacy settings of
social media accounts). See generally State Social Media Privacy Laws,
National Conference of State Legislatures http://www.ncsl.org/research/
telecommunications-and-information-technology/state-laws-prohibiting-
access-to-social-media-usernames-and-passwords.aspx (May 5, 2017).
---------------------------------------------------------------------------
The amendment was rejected 16-22, with all present
Committee Democrats voting for the amendment.
AMENDMENT 3--PROTECTING EMPLOYEE PRIVACY REGARDING EMPLOYERS ENGAGING
IN GPS TRACKING OF EMPLOYEES DURING NON-WORK HOURS
In order to ensure that the Employee Privacy Protection Act
actually improves employee privacy, Representative Carol Shea-
Porter offered an amendment that would limit application of the
bill to employers who adopt policies that prohibit management
from installing and activating GPS tracking through employer-
provided cellular phones, unless the employee provides written
consent. Although employers may have reason to track employees
during working hours, such tracking of employees during their
personal time is an unwarranted violation of employees' privacy
without any legitimate business purposes. No federal law
currently protects employee privacy from GPS tracking by their
employers outside working hours.
The amendment was rejected 16-22, with all present
Committee Democrats voting for the amendment.
AMENDMENT 4--PROTECTING EMPLOYEE PRIVACY REGARDING EMPLOYERS CONDUCTING
VIDEO SURVEILLANCE IN EMPLOYEE BATHROOMS AND LOCKER ROOMS
In order to ensure that the Employee Privacy Protection Act
actually improves employee privacy, Representative Alma Adams
offered an amendment that would limit application of the bill
to employers who prohibit management from conducting video
surveillance of employees in designated private areas, such as
bathrooms and locker rooms. Although at least six states have
codified this principle, most jurisdictions allow this
surveillance and no federal protections exist.\8\
---------------------------------------------------------------------------
\8\See Cal. Lab. Code Sec. 435; Conn. Gen. Stat. Sec. 31-48b; Del.
Code tit. 11, Sec. 1335; N.Y. Lab. Law Sec. 203-c; R.I. Gen. Laws
Sec. 28-6.12-1; W. Va. Code Sec. 21-3-20.
---------------------------------------------------------------------------
The amendment was rejected 17-21, with all present
Committee Democrats and one Republican voting for the
amendment.
AMENDMENT 5--TO SUBSTITUTE THE TEXT OF THE BILL WITH THE GIVING WORKERS
A FAIR SHOT ACT
Representative Polis offered an amendment to replace the
bill with the Giving Workers a Fair Shot Act (H.R. 2275). This
amendment promotes collective bargaining by authorizing
mandatory arbitration for a first contract following an
election if the parties cannot reach agreement after a
reasonable period of time. It also prohibits federal
contractors from seeking reimbursement for union avoidance
activity, and prohibits the CEO and Chairman of a publically
traded company from being the same person. The bill also
establishes monetary sanctions for violations of the NLRA, and
strengthens the enforcement of the Occupational Safety and
Health Act, the Fair Labor Standards Act, the Federal Mine
Safety and Health Act, and the Migrant and Seasonal
Agricultural Worker Protection Act.
The amendment was ruled non-germane. The appeal of the
ruling was tabled on a vote of 22-16, with all present
Committee Democrats voting for the amendment.
Robert C. ``Bobby'' Scott,
Ranking Member.
Susan A. Davis.
Raul M. Grijalva.
Joe Courtney.
Marcia L. Fudge.
Jared Polis.
Gregorio Kilili Camacho Sablan.
Frederica S. Wilson.
Suzanne Bonamici.
Mark Takano.
Alma S. Adams.
Mark DeSaulnier.
Donald Norcross.
Lisa Blunt Rochester.
Raja Krishnamoorthi.
Carol Shea-Porter.
Adriano Espaillat.
[all]