The Workforce Fairness Institute (WFI) is an organization committed to educating workers, their employers and citizens in general on important issues affecting the workplace. We write in strong support of H.R. 3991, the Keeping Employees’ Emails & Phones Secure Act (KEEP Secure Act).
This legislation will prevent the National Labor Relations Board (i.e. Board or NLRB) from violating employee privacy by requiring employers to turn over employees’ personal e-mail addresses and telephone numbers for use by union bosses prior to a Board election.
The Board’s Existing Excelsior Rule Requirement
In December 2011, the NLRB promulgated a final rule (hereinafter the “Election Rule”) that substantially shortened the time between a petition and election, while leaving intact the requirements of the Board’s Excelsior Rule. Pursuant to the latter, an employer is required to provide an NLRB Regional Office within seven days of an election being scheduled and at least 10 days prior to an election being held the names and addresses of unit employees. The list is provided to union organizers to enable them to contact employees prior to the election.
The Election Rule, as originally proposed by the Board last June, would have changed the Excelsior Rule by requiring employers to disclose their employees’ personal e-mail address and telephone numbers.
The decision to leave the Excelsior Rule unchanged was likely a tactical one. The Board’s final rule was issued by only two Board members without the participation of the NLRB’s third member. That member objected to the rule’s promulgation because the majority members had not given him a reasonable opportunity to consider the rule’s contents. By not adopting the proposed changes to the Excelsior Rule, the Board can argue that its promulgation of the Election Rule did not violate the three-member quorum requirement of the National Labor Relations Act because the Election Rule made only procedural changes to the Board’s election processes, not to Board law.
Recent Proposal To Revise The Excelsior Rule
The ink was hardly dry on President Obama’s recess appointments of three new Board members, when the NLRB Chairman Mark Pearce announced that he would ask the newly-formed Board to adopt the balance of the Board’s originally proposed Election Rule including its proposed revisions to the Excelsior Rule that would require the disclosure of employees’ personal contact information.
The KEEP Secure Act Will Protect Employee Privacy
To the extent employees provide their employer with their personal e-mail addresses and telephone numbers it is with the expectation that that information will be used for the purposes for which it was provided, which more often than not, is to contact the employee or his/her family in the event of emergency. There is no federal law; however, that protects such private contact information from unwanted disclosure to third parties. The KEEP Secure Act will fill that void during a union organizing campaign by making the requirements of the Board’s existing Excelsior Rule a matter of federal statutory law.
Forcing employers to turn over their employees’ personal contact information is not only inconsistent with employees’ privacy expectations; it is also ruinous public policy. Whether to unionize or not is one of the most important decisions an employee will make. It is a difficult question and for that reason, union elections are often contentious with strong feelings being expressed on both sides of the question. Employees need their private space to calmly consider the issue. Providing union leadership with the personal contact information of workers, however, will enable a union to invade that space and rob employees of the opportunity to carefully consider the union question free from undue influence. Such access could also tempt some unions to use it to pressure, even intimidate and coerce an employee.
The KEEP Secure Act protects employee privacy and a public policy that has been in place for nearly 50 years. It should be supported by all Members of Congress, who value workforce fairness.