The NLRB Defines “Available” in Yet Another Slanted Decision | U.S. Chamber of Commerce

The NLRB Defines “Available” in Yet Another Slanted Decision

As readers of this blog know, the National Labor Relations Board (NLRB) issued a great number of slanted decisions during the Obama era.  Unfortunately, that trend has continued under the current 2-1 Democrat majority, highlighted by a recent case RHCG Safety Corp.  In it, the Board not only established yet another illogical and impractical precedent, but also exposed some of the flaws of the ambush election rule.

The case concerned a union election at RHCG Safety Corp., a firm involved in demolition and concrete work.  In the election, held on September 18, 2015, the union lost by a vote of 46-36.  However, the Board found that of 84 home addresses provided to the union, only 4 of them were correct.  The Board unanimously ruled that this was grounds for overturning the election.  Longstanding precedent has required employers to turn over home addresses of employees to union organizers to facilitate communication with those workers.  Clearly, the employer did not meet that obligation.

However, the Democrat majority also argued that the election should be set aside because the employer had not provided home phone numbers to the union.  RHCG stated that it did not maintain such information in its employee database, and therefore such information was not available to it.  This is a key point, as under the NLRB’s final ambush election rule, employers are required to provide to the union “available home and personal cell telephone numbers.”

The Democrat majority on the Board determined that this information should have been “available” to RHCG because some supervisors had stored some employee phone numbers on their cell phones.  As Board Chairman Phil Miscimarra noted in his dissent, this determination raises a number of concerns.

First, the ambush election rule does not define the term “available.”  Thus, in RHCG, the Board has established a new precedent that an employer has the obligation to search its supervisors’ cell phones to determine if they have contact information for workers (note that a supervisor may have an employee’s number in his or her call log simply as the result of an incoming call). Second, all of this searching must be accomplished within the two-day window the ambush election rule mandates for employers to provide their workers’ contact information to a union.  Third, and very importantly, employers often do not know who will be officially deemed a “supervisor” by the NLRB because, under the ambush election rule, an election can take place while that question is still being litigated, which is not an uncommon occurrence.

Thus, what the Democrat majority on the Board has now established as precedent is that an employer must search the cell phones of its “supervisors” to extract contact information for employees even though the employer does not know who actually qualifies as a “supervisor” in the eyes of the Board.  And, if an employer has failed to search the cell phones of whomever the Board ultimately decides qualifies as a supervisor, an election result can be overturned.

This gives the Board quite a bit of discretion to determine when it may, or may not, apply RHCG to try and overturn an election result.  With the current majority in place, one can guess it will only do so if a union loses.

The RHCG opinion provides yet another example of the slanted decisions still being issued by the Democrat majority on the Board.  It also highlights the flaws of the ambush election rule, which a new majority will hopefully repeal.  When nominees for the two vacant Board seats reach the Senate, one hopes they will be swiftly confirmed.