[Federal Register Volume 85, Number 146 (Wednesday, July 29, 2020)]
[Proposed Rules]
[Pages 45553-45568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15596]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

RIN 3142-AA17


Representation-Case Procedures: Voter List Contact Information; 
Absentee Ballots for Employees on Military Leave

AGENCY: National Labor Relations Board.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: As part of its ongoing efforts to more effectively administer 
the National Labor Relations Act (the Act) and to further the purposes 
of the Act, the National Labor Relations Board (the Board) proposes to 
amend its rules and regulations to eliminate the requirement that 
employers must, as part of the Board's voter list requirement, provide 
available personal email addresses and available home and personal 
cellular telephone numbers of all eligible voters. The Board believes, 
subject to comments, that elimination of this requirement will better 
balance employee privacy interests against those supporting disclosure 
of this information. The Board also proposes an amendment providing for 
absentee mail ballots for employees who are on military leave. The 
Board believes, subject to comments, that it should seek to accommodate 
such voters in light of congressional policies facilitating their 
participation in federal elections and protecting their employment 
rights. The Board further believes, subject to comments, that a 
procedure for providing such voters with absentee ballots can be 
instituted without impeding the expeditious resolution of questions of 
representation.

DATES: Comments regarding this proposed rule must be received by the 
Board on or before September 28, 2020. Comments replying to comments 
submitted during the initial comment period must be received by the 
Board on or before October 13, 2020. Reply comments should be limited 
to replying to comments previously filed by other parties. No late 
comments will be accepted.

ADDRESSES: You may submit comments on this proposed rule only by the 
following methods:
    Internet--Federal eRulemaking Portal. Electronic comments may be 
submitted through http://www.regulations.gov. Follow the instructions 
for submitting comments.
    Delivery--Comments may be sent by mail to: Roxanne L. Rothschild, 
Executive Secretary, National Labor Relations Board, 1015 Half Street 
SE, Washington, DC 20570-0001. Because of security precautions, the 
Board continues to experience delays in U.S. mail delivery. You should 
take this into consideration when preparing to meet the deadline for 
submitting comments. It is not necessary to mail comments if they have 
been filed electronically with regulations.gov. If you mail comments, 
the Board recommends that you confirm receipt of your delivered 
comments by contacting (202) 273-1940 (this is not a toll-free number). 
Individuals with hearing impairments may call 1-866-315-6572 (TTY/TDD). 
Because of precautions in place due to COVID-19, the Board recommends 
that comments be submitted electronically or by mail rather than by 
hand delivery. If you feel you must hand deliver comments to the Board, 
hand delivery will be accepted by appointment only. Please call (202) 
273-1940 to arrange for hand delivery of comments. Please note that 
there may be a delay in the electronic posting of hand-delivered and 
mail comments due to the needs for safe handling and manual scanning of 
the comments. The Board strongly encourages electronic filing over mail 
or hand delivery of comments.
    Only comments submitted through http://www.regulations.gov, hand 
delivered, or mailed will be accepted; ex parte communications received 
by the Board will be made part of the rulemaking record and will be 
treated as comments only insofar as appropriate. Comments will be 
available for public inspection at http://www.regulations.gov.
    The Board will post, as soon as practicable, all comments received 
on http://www.regulations.gov without making any changes to the 
comments, including any personal information provided. The website 
http://www.regulations.gov is the Federal eRulemaking portal, and all 
comments posted there are available and accessible to the public. The 
Board requests that comments include full citations or internet links 
to any authority relied upon. The Board cautions commenters not to 
include personal information such as Social Security numbers, personal 
addresses, telephone numbers, and email addresses in their comments, as 
such submitted information will become viewable by the public via the 
http://www.regulations.gov website. It is the commenter's 
responsibility to safeguard his or her information. Comments submitted 
through http://www.regulations.gov will not include the commenter's 
email address unless the commenter chooses to include that

[[Page 45554]]

information as part of his or her comment.

FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive 
Secretary, National Labor Relations Board, 1015 Half Street SE, 
Washington, DC 20570-0001, (202) 273-1940 (this is not a toll-free 
number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The National Labor Relations Board is 
proposing two amendments to its current rules and regulations governing 
the conduct of elections held pursuant to the Act. The first amendment 
would modify the Board's voter list provisions--set forth in Sec. Sec.  
102.62(d) and 102.67(l) of the Board's Rules and Regulations--to 
eliminate the requirement that the employer provide ``available 
personal email addresses'' and ``available home and personal cellular 
(`cell') telephone numbers'' of all eligible voters (including 
individuals permitted to vote subject to challenge) to the Regional 
Director and the other parties. The second amendment would modify the 
Board's general policy of not providing absentee ballots--not currently 
set forth in the rules and regulations--by establishing a procedure to 
provide absentee ballots to employees who would otherwise be unable to 
vote in the election because they are on military leave.
    The Board believes, subject to comments, that the current voter 
list requirement affords insufficient weight to employee privacy 
interests, and that eliminating the required disclosure of personal 
email addresses and personal telephone numbers will redress this 
imbalance. The Board also believes, subject to comments, that it 
should, consistent with the policies and principles underlying other 
statutes, seek to maximize the opportunity for otherwise-eligible 
voters on military leave to participate in Board-conducted elections, 
and that a practical procedure providing absentee mail ballots for such 
voters can be implemented without impeding the expeditious resolution 
of questions of representation.

I. Background

    The National Labor Relations Board administers the National Labor 
Relations Act, which, among other things, governs the formation of 
collective-bargaining relationships between employers and groups of 
employees in the private sector. Section 7 of the Act, 29 U.S.C. 157, 
gives employees, among other rights, the right to bargain collectively 
through representatives of their own choosing and to refrain from such 
activity.
    When employees and their employer are unable to agree whether 
employees should be represented for purposes of collective bargaining, 
Section 9 of the Act, 29 U.S.C. 159, gives the Board the authority to 
resolve the question of representation. The Supreme Court has 
recognized that ``Congress has entrusted the Board with a wide degree 
of discretion in establishing the procedure and safeguards necessary to 
insure the fair and free choice of bargaining representatives by 
employees.'' NLRB v. A. J. Tower Co., 329 U.S. 324, 330 (1946). ``The 
control of the election proceeding, and the determination of the steps 
necessary to conduct that election fairly were matters which Congress 
entrusted to the Board alone.'' NLRB v. Waterman Steamship Co., 309 
U.S. 206, 226 (1940).
    Representation case procedures are set forth in the statute, in 
Board regulations, and in Board caselaw.\1\ The Board's General Counsel 
has also prepared a non-binding Casehandling Manual describing 
representation case procedures in detail.\2\ With respect to the 
procedures applicable to Board-conducted elections, the Act itself 
provides only that if the Board finds that a question of representation 
exists, ``it shall direct an election by secret ballot and shall 
certify the results thereof.'' The only express provision regarding 
voter eligibility in the Act pertains to employees engaged in an 
economic strike who are not entitled to reinstatement.\3\
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    \1\ The Board's binding rules of representation procedure are 
found primarily in 29 CFR part 102, subpart D. Additional rules 
created by adjudication are found throughout the corpus of Board 
decisional law. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 
770, 777, 779 (1969).
    \2\ NLRB Casehandling Manual (Part Two) Representation 
Proceedings.
    \3\ 29 U.S.C. 159(c)(3) (``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.'').
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    Within this general framework, ``the Board must adopt policies and 
promulgate rules and regulations in order that employees' votes may be 
recorded accurately, efficiently and speedily.'' A. J. Tower Co., 329 
U.S. at 331. In promulgating and applying representation rules and 
regulations, the Board, the General Counsel and the agency's regional 
directors \4\--in addition to seeking efficient and prompt resolution 
of representation cases--have sought to guarantee fair and accurate 
voting, to achieve transparency and uniformity in the Board's 
procedures, and to update those procedures in light of technological 
advances. See, e.g., 79 FR 74308 (Dec. 15, 2014).
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    \4\ The Act permits the Board to delegate its decisional 
authority in representation cases to NLRB regional directors. See 29 
U.S.C. 153(b). The Board did so in 1961. 26 FR 3811 (May 4, 1961). 
The General Counsel administratively oversees the regional 
directors. 29 U.S.C. 153(d).
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A. Required Disclosure of Available Personal Email Addresses and 
Personal Telephone Numbers

    In Excelsior Underwear, Inc., 156 NLRB 1236, 1239-40 (1966), the 
Board established a requirement that, 7 (calendar) days after approval 
of an election agreement or issuance of a decision and direction of 
election, the employer must file an election eligibility list--
containing the names and home addresses of all eligible voters--with 
the regional director, who in turn was to make the list available to 
all parties. Failure to comply with the requirement constituted grounds 
for setting aside the election whenever proper objections were filed. 
Id. at 1240. In articulating this requirement, the Board reasoned it 
was needed in order to ``maximize the likelihood that all the voters 
will be exposed to the arguments for, as well as against, union 
representation'' and would also ``eliminate the necessity for 
challenges based solely on lack of knowledge as to the voter's 
identity,'' thus furthering the public interest in ``the speedy 
resolution of questions of representation.'' Id. at 1241, 1243. The 
Supreme Court approved the Excelsior requirement in NLRB v. Wyman 
Gordon Co., 394 U.S. 759, 767-768 (1969).
    Aside from subsequent clarification that the list must disclose 
full names and addresses,\5\ the Excelsior requirement stood 
undisturbed until 2014, when a Board majority adopted a series of 
amendments (the 2014 amendments) to its representation case procedures 
that, among other things, codified the voter list requirement.\6\ In 
doing so, the 2014 amendments made a series of modifications to the 
requirement, including mandating that employers disclose ``available'' 
personal

[[Page 45555]]

email addresses and home and personal cellular telephone numbers of all 
eligible voters.\7\ Citing the twin purposes of the original Excelsior 
requirement, the 2014 amendments concluded that, in view of dramatic 
changes in telecommunications since 1966, disclosure of personal email 
addresses and telephone numbers was warranted because it would permit 
nonemployer parties to promptly convey information concerning the 
question of representation to all voters; make it more likely that 
nonemployer parties could respond to employee questions; allow 
nonemployer parties to engage with employees in a more timely manner; 
and facilitate faster union investigation of names included on the 
list, thus reducing the risk that unions would challenge voters based 
solely on lack of knowledge as to their identity. 79 FR 74337-74340.\8\
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    \5\ See North Macon Health Care Facility, 315 NLRB 359 (1994).
    \6\ These changes were made via notice-and-comment rulemaking. 
In the Notice of Proposed Rulemaking (NPRM) issued on February 6, 
2014, a Board majority proposed numerous specific changes to its 
then-current rules governing the representation election process. 
See 79 FR 7318. The 2014 amendments were adopted via a final rule 
issued on December 15, 2014, which became effective on April 14, 
2015. 79 FR 74308. On December 18, 2019, the Board issued a final 
rule that modified the 2014 amendments in various respects; that 
rule (the 2019 amendments) was set to take effect on April 16, 2020, 
see 84 FR 69524, but the effective date was postponed until May 31, 
2020, see 85 FR 17500.
    \7\ The voter list requirement, as codified and modified by the 
2014 amendments, is located at Sec.  102.62(d) (for elections 
conducted pursuant to election agreements) and Sec.  102.67(l) (for 
directed elections). In addition to requiring the disclosure of 
available personal email addresses and telephone numbers, the 2014 
amendments modified the voter list requirement by (1) requiring the 
employer to furnish the work locations, shifts, and job 
classifications of eligible voters; (2) requiring the employer to 
provide the same information for individuals permitted to vote 
subject to challenge as required for undisputedly eligible voters; 
(3) requiring the employer to submit the list in an electronic 
format approved by the General Counsel (unless the employer 
certifies that it does not possess the capacity to produce the list 
in the required form); (4) requiring the employer to serve the list 
on the other parties; (5) requiring the employer to file and serve 
the list electronically when feasible; and (6) specifying that 
parties ``shall not use the list for purposes other than the 
representation proceeding, Board proceedings arising from it, and 
related matters.'' In addition, the 2014 amendments required the 
Employer to provide the list within 2 business days of the approval 
of an election agreement or direction of an election. The 2019 
amendments provide that, for petitions filed on or after the 
effective date of those amendments (now May 31, 2020), the employer 
will have 5 business days to provide the list. 84 FR 69526, 69531-
69532.
    \8\ The 2014 amendments also noted that provision of email 
addresses and telephone numbers would permit unions to contact 
employees more swiftly with respect to post-election matters that 
may arise. 79 FR 74340.
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    More specifically, the 2014 amendments justified the disclosure of 
personal email addresses in light of the dramatically increased role 
electronic communications now play in workplace communication. They 
also noted that, in the Board's experience, employers were making 
increasingly frequent use of email to communicate with employees during 
election campaigns. 79 FR 74336-74338.
    As for personal phone numbers, the 2014 amendments acknowledged 
that--in contrast to email--telephonic communication existed and was 
already in widespread use in 1966, and also acknowledged that Excelsior 
had not required disclosure of personal telephone numbers. The 2014 
amendments nevertheless concluded that personal telephone numbers 
should now be disclosed due to (1) the ubiquity of telephones as 
compared to 1966; \9\ (2) the fact that voicemail and text messaging 
permit callers to leave messages if nobody answers the call, which was 
not possible in 1966; (3) the emergence of cellular and smartphones as 
a ``universal point of contact'' combining telephone, email, and text 
messaging; (4) the need to reach persons--especially low-wage workers--
who rely on the telephone, rather than email, for communication; and 
(5) the fact that some employers may not bother to update physical 
addresses and may contact their employees exclusively via telephone. 79 
FR 74338-74339.
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    \9\ The 2014 amendments cited statistics indicating that as of 
1960, 78% of all U.S. households had a telephone, that 95% had one 
by 1990, and that since 2000 only about 2.4% of households have 
lacked a telephone. 79 FR 74338-74339.
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    The Board's initial proposal to expand the contact information 
required on the voter list \10\ attracted voluminous comments raising 
concerns regarding employee privacy. The 2014 amendments acknowledged 
these privacy concerns, but nevertheless concluded that they were 
outweighed by the twin purposes underlying the disclosure requirement. 
79 FR 74341-74352. More specifically, the 2014 amendments rejected 
comments arguing that the mere potential for misuse of the information 
counseled against disclosure, stated that misuse had not been a 
significant problem in the past, and concluded that any misuse could be 
dealt with if and when it occurred. 79 FR 74342-74343. The 2014 
amendments also found that the limited nature of the information 
disclosed, the limited number of recipients, the limited purposes for 
which it may be used, and the supposedly limited duration of any 
infringement outweighed employees' acknowledged privacy interest in the 
information. 79 FR 74343-74344.\11\ In addition, the 2014 amendments 
rejected claims that the disclosures would run afoul of other statutes 
(including FOIA, the Privacy Act, state privacy laws, the CAN-SPAM Act, 
and the Federal Trade Commission's Do-Not-Call Rule) and prior Board 
precedent. 79 FR 74344-74346, 74351-74352.\12\ Finally, the 2014 
amendments dismissed concerns that unwanted communications could lead 
to significant unwelcome costs for employees. 79 FR 74351.
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    \10\ 79 FR 7326-7328, 7332, 7353-7354, 7360.
    \11\ The 2014 amendments also sympathized with employees who 
wished to reduce the annoyance and irritation of unwanted 
communications, but stated these concerns were outweighed by the 
purposes of the voter list requirement. 79 FR 74350.
    \12\ The 2014 amendments also rejected proposals that the Board 
should provide an opt-in and/or opt-out mechanism for employees who 
do not wish to have their personal phone numbers or email addresses 
disclosed, stating that the Board had rejected similar proposals in 
the past and that they would be burdensome for the Board and the 
parties, would invite new areas of litigation or otherwise lead to 
complicated problems and negative consequences, and could themselves 
invade employee privacy. 79 FR 74346-74349, 74427-74428.
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    Dissenting Board Members Miscimarra and Johnson criticized the 2014 
amendments for failing to adequately address the privacy concerns 
raised by the comments, particularly the majority's failure to provide 
adequate protection of those concerns in the face of the expanded 
disclosure requirement. More specifically, the dissent contended that 
the 2014 amendments did not and could not provide specific appropriate 
restrictions on use, and remedies for misuse, of the information. 
Citing the prevalence of hacking, identity theft, phishing scams, and 
related ills, the dissent emphasized that employees who have provided 
personal email addresses and phone numbers to their employer may have 
good reasons for not wanting to share them with nonemployer parties 
they do not know and trust. The dissent expressed doubt that such 
privacy concerns would be assuaged by the majority's reliance on the 
ostensibly limited nature of the disclosures, observing that the 
disclosed information does not disappear after election day and that 
the limitation on use of the information (for the ``representation 
proceeding, Board proceedings arising from it, and related matters'') 
was troublingly vague and specified no remedy for violations. Finally, 
the dissent took issue with the majority's emphasis on the absence of 
abuses under the original Excelsior requirement, pointing out that 
personal email addresses and telephone numbers pose different privacy 
concerns from home addresses. Whereas a home is a fixed, readily 
identifiable point the public can visit independent of disclosure of 
the address, a personal email address is entirely created by the 
employee and is typically not identifiable at all without the 
employee's consent, and a personal phone number is similarly created in 
part by the employee, who is able to determine whether it is publicly 
listed and identifiable at all. The dissent accordingly asserted that 
employees have a greater privacy interest in

[[Page 45556]]

personal email addresses and telephone numbers than they do in their 
physical addresses. 79 FR 74452-74454.
    In litigation that followed the 2014 amendments, several trade and 
employer advocacy associations contended that the expanded disclosure 
requirements were unlawful, and among other arguments specifically 
contended that employee privacy rights ``should outweigh the desire of 
unions to use the latest technology to facilitate their organizing 
efforts.'' Associated Builders & Contractors of Texas, Inc. v. NLRB, 
826 F.3d 215, 224 (5th Cir. 2016). Although the court upheld the facial 
validity of the required disclosure of personal email addresses and 
telephone numbers as a valid balancing of competing interests, see id. 
at 225-226,\13\ the court also made clear that a different balancing of 
the relevant interests was permissible and even preferable, stating: 
``We may favor greater privacy protections over disclosure, but . . . 
it is not the province of this court to inject a contrary policy 
preference.'' Id. at 226.
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    \13\ See also Chamber of Commerce of the United States of 
America v. NLRB, 118 F. Supp. 3d 171, 213-215 (D.D.C. 2015) 
(rejecting challenges to expanded disclosures and specifically 
finding that Board had not acted arbitrarily and capriciously in 
expanding disclosures despite implications for employee privacy).
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    The mandatory disclosure of available personal email addresses and 
telephone numbers has continued to garner criticism. In RHCG Safety 
Corp., 365 NLRB No. 88, slip op. at 9-12 (2017), Chairman Miscimarra 
reiterated his view that the required disclosure of personal phone 
numbers does not adequately accommodate employees' privacy interests in 
their personal phone numbers, which they may provide to a supervisor 
without consenting to their dissemination to third parties. On December 
12, 2017, the Board issued a Request for Information that generally 
invited the public to respond with information about whether the 2014 
amendments should be retained without change, retained with 
modifications, or rescinded. 82 FR 58783. Virtually every responder 
addressed the expanded voter list disclosures.\14\ Supportive responses 
generally praised the provision of available personal email addresses 
and telephone numbers as a desirable modernization of the Excelsior 
requirement and a great help to fostering union campaign communications 
(and in offsetting employers' greater access to employees); \15\ 
critical responses alleged that the 2014 amendments had not adequately 
considered employee privacy interests and forcefully contended that 
such interests should have been (or, based on subsequent developments, 
should now be) afforded greater weight than the 2014 amendments gave 
them.\16\ Critical responses also reported employee complaints over the 
disclosures,\17\ asserted that disclosures have led to harassment or 
excessive communications from nonemployer parties,\18\ and generally 
contended that disclosure of contact information beyond employee names 
and home addresses was not necessary.\19\
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    \14\ See generally the responses to the 2017 Request for 
Information (available at https://www.nlrb.gov/reports-guidance/public-notices/request-information/submissions).
    \15\ See, e.g., Sen. Patty Murray et al. at 4-5 (discussing how 
the pre-2014 voter list requirement had not been adapted to growing 
use of telephone and email communication); United Association of 
Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry at 
4 (praising expanded contact information disclosures in light of 
advances in communications technology); California Nurses 
Association/National Nurses United, AFL-CIO at 10 (access to phone 
numbers and email addresses has fostered communications among 
employees and ``create[d] a more equal playing field in terms of 
information dissemination''); Patricia M. Shea at 4 (union had 
better access to employees through additional voter information); 
Service Employees International Union, CTW, CLC at 5 (modernization 
of voter list helps ``ensure a more fully informed electorate, 
rectify the imbalance in communication inherent under the old rules, 
and accommodate changes in technology'').
    \16\ See, e.g., National Grocers Association at 3-4 (urging 
limits on disclosure of contact information because ``[a] glance at 
recent headlines reveals that Americans today are increasingly 
concerned, with good reason, about their privacy rights'').
    \17\ See, e.g., Associated Builders and Contractors, Inc. at 4-5 
(stating that 90% of respondents to responder's internal survey 
``report complaints by employees about the infringement of their 
privacy rights'' based on disclosure of email addresses and 
telephone numbers).
    \18\ See, e.g., Independent Bakers Association at 7 (``[O]ur 
research found examples where labor organizations used the personal 
contact information provided on the Voter List to send hundreds or 
even thousands of unsolicited text messages, calls and emails to 
employees' cellphones.'').
    \19\ See, e.g., Society for Human Rights Management and the 
Council on Labor Law Equality at 10 (disclosure of names and home 
addresses ``proved more than adequate for unions, employers, and the 
Board alike for nearly 50 years'').
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B. Absentee Mail Ballots for Employees on Military Leave

    As noted above, the Act contains a single provision regarding voter 
eligibility that pertains only to certain economic strikers, and thus 
neither provides for nor prohibits absentee balloting. Similarly, the 
Board's Rules and Regulations neither provide for nor prohibit absentee 
balloting. But as a general policy matter, the Board has long declined 
to provide absentee mail ballots. See, e.g., NLRB v. Cedar Tree Press, 
Inc., 169 F.3d 794 (3d Cir. 1999) (upholding Board's absentee ballot 
policy). This policy is articulated in the Board's Casehandling Manual 
(Part Two), section 11302.4, which states that where an election is 
conducted manually, ``ballots for voting by mail should not be provided 
to, inter alia, those who are in the Armed Forces, ill at home or in a 
hospital, on vacation, or on leave of absence due to their own decision 
or condition.'' \20\ Further, with specific reference to employees 
engaged in military service, Form NLRB-652--the template usually used 
for election agreements \21\--provides that ``[e]mployees who are 
otherwise eligible but who are in the military services of the United 
States may vote if they appear in person at the polls.''
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    \20\ This policy also applies to mixed manual-mail ballot 
elections. See id. section 11335.1 (cross-referencing section 
11302.4).
    \21\ The vast majority of Board elections are conducted pursuant 
to election agreements. See https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/percentage-elections-conducted-pursuant-election (91.3% of all Board elections in Fiscal Year 2019 
conducted pursuant to election agreement).
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    The Board's general policy of not providing absentee mail ballots 
for employees on sick, vacation, or related types of leave on the day 
of election appears to have cohered relatively early in the Board's 
history.\22\ The Board's experience with providing absentee mail 
ballots to employees on military leave presents a more complex picture. 
In December 1940, a union asked the Board to determine whether 
employees selected for military service would be permitted to vote by 
absentee ballot; the Board answered in the affirmative. American Enka 
Corp., 28 NLRB 423, 427 (1940). Two months later, in Cudahy Packing 
Co., 29 NLRB 830, 835-836 (1941), the Board announced that, because 
employees in active military

[[Page 45557]]

service or training ``will be entitled to reinstatement on their return 
to civilian life'' pursuant to selective service laws, they were 
entitled to participate in the election even if they had not worked 
during the payroll eligibility period.\23\ Although Cudahy Packing did 
not itself expressly provide for absentee ballots for such employees, 
the Board subsequently provided absentee mail ballots to employees in 
military service. See Truscon Steel Co., 36 NLRB 983, 986 (1941) (25 
employees in the military service supplied with absentee ballots); see 
also Wilson & Co., 37 NLRB 944, 951 (1941) (stating that since Cudahy 
Packing, employees in military service or training had been permitted 
to vote ``principally by mail ballots'').
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    \22\ In an early case, the Board directed a regional director to 
provide absentee mail ballots for employees ``who are now on leave 
of absence.'' Hirsch Shirt Corp., 12 NLRB 553, 567 (1939). By late 
1941, however, the Board appears to have distinguished between 
absentee balloting by employees on military leave (which, as 
discussed below, was then permitted in some circumstances) and other 
types of absentee balloting, which were apparently not permitted. 
See Bunker Hill & Sullivan Mining & Concentrating Co., 42 NLRB 33, 
33-34 (1942). Later cases occasionally suggest a willingness to 
provide absentee ballots given a showing that it was necessary under 
the circumstances, but the Board rejected contentions that an 
election should be set aside because such ballots were not provided. 
See, e.g., Electric Machine Controller & Manufacturing Co., 71 NLRB 
410, 411-412 (1946); McFarling Bros. Midstate Poultry & Egg Co., 123 
NLRB 1384, 1391-1392 (1959). In any event, by 1966 an employer could 
(apparently accurately) refer to an overall Board policy of not 
permitting absentee balloting. See Bray Oil Co., 169 NLRB 1076, 1081 
(1968) (1966 letter referenced policy); Progressive Supermarkets, 
Inc., 259 NLRB 512, 526 (1981) (employer speech referenced policy).
    \23\ Subject to certain exceptions, to be eligible to vote in a 
Board election, an employee must be employed on the eligibility date 
(usually the payroll period immediately preceding the date of the 
direction of election or approval of the election agreement) and on 
the date of the election. See, e.g., Plymouth Towing Co., 178 NLRB 
651, 651 (1969).
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    In December 1941, however, the Board reversed course. In Wilson & 
Co., supra, the Board held that although the reasons for extending 
eligibility to employees in military service or training remained 
valid,

administrative experience in the ensuing months has demonstrated 
conclusively that it is impracticable to provide for mail balloting 
by this group. Administrative difficulties in determining the 
present location of men in military service have constantly 
increased with concomitant delays in arrangements for elections. The 
actual voting of the group by mail has seriously retarded the 
completion of elections in many cases, since substantial time has 
had to be allowed for receipt and return of mail ballots by 
eligibles in remote sections of the country. In addition, this form 
of balloting has frequently raised material and substantial issues 
relating to the conduct of the ballot and the election. On the other 
hand, actual returns from such mail ballots have been relatively 
small.

37 NLRB at 951-952. Stating that ``time is of the essence'' in 
resolving questions concerning representation, the Board determined 
that although it would continue to recognize the eligibility of such 
employees, it would discontinue the practice of absentee mail balloting 
and would instead only permit them to vote if they appeared in person 
at the polls. Id. at 952.
    Following Wilson, the Board initially strictly adhered to both 
aspects of its holding regarding absentee ballots. Thus, in a series of 
cases the Board refused to permit absentee voting by mail,\24\ even 
where a party claimed to have current addresses of employees in 
military service \25\ or offered to make other accommodations to 
facilitate election finality.\26\ As in Wilson, the Board emphasized 
the administrative difficulties of providing absentee mail ballots 
while also promptly resolving elections, noting that ``with individuals 
scattered in various units of the armed forces throughout the world, it 
would be virtually impossible to insure a ballot reaching each man and 
affording him an opportunity to return it by mail to the Regional 
Director unless a period of 3 months was established between the date 
of the Direction and the return date.'' Mine Safety Appliances Co., 55 
NLRB 1190, 1194 (1944). At the same time, the Board reiterated that 
employees in military service or training were eligible voters, and in 
doing so rejected stipulations that would have excluded such employees 
from the unit at issue. See, e.g., Yates-American Machine Co., 40 NLRB 
519, 522 fn. 2 (1942).\27\
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    \24\ See, e.g., R.C. Mahon Co., 49 NLRB 142, 144 (1943).
    \25\ See, e.g., Magnolia Petroleum Co., 52 NLRB 984, 988 (1943).
    \26\ See, e.g., Magnetic Pigment Division of Columbia Carbon 
Co., 51 NLRB 337, 339 (1943) (refusing to provide for absentee 
ballots for employees in military service despite employer offer to 
place 14-day deadline on receipt of absentee ballots from service 
members stationed inside the country and to waive votes for those 
stationed abroad).
    \27\ See also Rudolph Wurlitzer Co., 41 NLRB 1074, 1076 & fn. 1 
(1942) (denying effect to stipulation ``insofar as it deprives 
persons in the armed forces of the right to vote'').
---------------------------------------------------------------------------

    Shortly after the end of the Second World War, the Board softened 
its stance towards absentee mail balloting by employees in military 
service or training. In South West Pennsylvania Pipe Lines, 64 NLRB 
1384 (1945), the Board entertained an employer's request to provide 
absentee mail ballots and--after noting that no party was opposed to 
the use of absentee ballots ``so long as such alteration does not 
effect an undue delay in the final disposition''--concluded as follows:

    Under the circumstances of this case, we are of the opinion that 
balloting by mail of the 15 or less employees of the Company now on 
military leave may be accomplished so that no undue delay in 
determining the election will result. It is also apparent that many 
of the administrative complexities necessarily involved in 
conducting a mail ballot of absent employees--problems arising out 
of overlapping bargaining units, the contraction of wartime 
operations, conflicting reemployment rights of servicemen--are not 
present here. There is evidence in this record to show that ballots 
can be returned within 20 days. We refer, moreover, to the 
relatively small size of the unit involved [124 employees], the 
presence of adequate and accurate data (with names and addresses of 
servicemen) in the original record, and the fact that no substantial 
reconversion question is present. This is not a war plant with a 
rapidly diminishing work force. Certain other cases may require 
other action.

Id. at 1387-1388. The Board accordingly authorized the Regional 
Director to use absentee ballots for employees on military leave 
provided that one or more of the parties filed with the Regional 
Director ``a list containing the names, most recent addresses, and work 
classifications of such employees'' within 7 days of the direction of 
election. Id. at 1388. The Board further provided that such ballots 
would be opened and counted provided they were ``returned to and 
received at'' the regional office within 30 days ``from the date they 
are mailed to the employees by the Regional Director.'' Id.\28\
---------------------------------------------------------------------------

    \28\ In addition, the Board stated that because ``free 
interchange between the interested parties of information on the 
addresses and work categories'' of the absentee voters was necessary 
to avoid challenges and objections, the Board would make available 
to all interested parties any such information furnished to it by 
any other party. The Board determined that ``any information or 
literature bearing directly or indirectly on the election'' that 
parties sent to absentee voters would also need to be filed with the 
Board ``for inspection by or transmittal to the other parties.'' Id. 
at 1388 (footnote omitted).
---------------------------------------------------------------------------

    South West Pennsylvania Pipe Lines issued on December 13, 1945, and 
over the next year the Board--usually citing that case--permitted 
employees on military leave to vote by absentee ballot in roughly 40 
cases. Despite South West Pennsylvania Pipe Lines' stated reliance on 
the relatively small size of the unit and the relatively few employees 
on military leave, many subsequent cases involved significantly larger 
units \29\ and significantly larger percentages of employees on 
military leave permitted to vote by absentee ballot.\30\ Similarly,

[[Page 45558]]

despite South West Pennsylvania Pipe Lines' emphasis on the agreement 
of the parties to permit absentee balloting, in several cases the Board 
directed absentee balloting even over a party's objection.\31\ True to 
its suggestion that ``other cases may require other action,'' however, 
the Board did not simply permit absentee balloting in all cases raising 
the issue; in a series of cases, the Board found that the South West 
Pennsylvania Pipe Lines' conditions for permitting absentee balloting 
had not been met due to a lack of evidence regarding the number, names, 
and/or addresses of unit employees on military leave.\32\
---------------------------------------------------------------------------

    \29\ See, e.g., Johnson-Carper Furniture Co., 65 NLRB 414, 416 
(1946) (providing for absentee balloting by 176 employees out of 
unit of 393); Mayfair Cotton Mills, 65 NLRB 511, 512 fn. 1, 513 
(1946) (providing for absentee balloting by 222 employees out of 
unit of 625); Thomasville Chair Co., 65 NLRB 1290, 1291 fn. 2, 1292 
& fn. 6 (1946) (providing for absentee balloting by over 500 
employees out of unit of about 1500); Cushman Motor Works, 66 NLRB 
1413, 1415 fn. 1, 1417 & fn. 2 (1946) (providing for absentee 
balloting by 140 employees out of unit of 840); Dictaphone Corp., 67 
NLRB 307, 308 fn. 1, 312 (1946) (providing for absentee balloting by 
62 employees out of unit of 690); Endicott Johnson Corp., 67 NLRB 
1342, 1343 fn. 2, 1348 (1946) (providing for absentee balloting by 
99 employees out of unit of 476); Swift & Co., 68 NLRB 440, 445 
(1946) (providing for absentee balloting by 800 employees out of 
unit of unspecified size).
    \30\ In addition to several of the cases cited immediately 
above, see, e.g., U.S. Gypsum Co., 65 NLRB 575, 576 fn. 3, 578 
(1946) (providing for absentee balloting by 65 employees out of unit 
of 108); Victor Adding Machine Co., 65 NLRB 653, 654 (1946) 
(providing for absentee balloting by 24 employees out of unit of 
27); Hoosier Desk Co., 65 NLRB 785, 787 & fn. 4 (1946) (providing 
for absentee balloting by 48 employees out of unit of 109); Raleigh 
Coca Cola Bottling Works, 65 NLRB 1010, 1012-1013 (1946) (providing 
for absentee balloting by 38 employees out of unit of 70); Welch 
Furniture Co., 65 NLRB 1197, 1198 fn. 1, 1199 & fn. 4 (1946) 
(providing for absentee balloting by 46 employees out of unit of 
99); Thompson Products, Inc., 66 NLRB 123, 124 fn. 2, 125-126 (1946) 
(providing for absentee balloting by 115 employees out of unit of 
171); U.S. Gypsum Co., 66 NLRB 619, 623-624 (1946) (providing for 
absentee balloting by 150 employees out of unit of 270).
    \31\ See, e.g., Keystone Steel & Wire Co., 65 NLRB 274, 280 
(1946); U.S. Gypsum Co., 65 NLRB 1427, 1429 (1946); Rockford Metal 
Products Co., 66 NLRB 538, 543 (1946); Marsh Furniture Co., 66 NLRB 
133, 136 & fn. 6 (1946).
    \32\ See, e.g., Tennessee Coal, Iron & Railroad Co., 65 NLRB 
1416, 1418 (1946) (declining to permit absentee balloting due to 
inadequate evidence regarding the number, names, and addresses of 
employees in the unit on military leave and insufficient evidence 
``as to the availability of such information''); Joseph Bancroft & 
Sons Co., 67 NLRB 678, 681 (1946) (declining to provide for absentee 
balloting given employer's admission that it did not have, and would 
not be able to obtain, addresses of employees in the armed forces); 
Swift & Co., 71 NLRB 727, 729 (1946) (declining to permit absentee 
balloting where employer had addresses for only 247 of 566 employees 
still on military leave, and correctness of addresses for those 247 
employees was doubtful). See also Scripto Manufacturing Co., 67 NLRB 
1078, 1080 (1946) (overruling objection alleging that run-off 
election should have provided for absentee balloting by employees in 
the armed forces because issue had not been raised at pre-election 
hearing and there was no showing that mail ballot was ``feasible'' 
under the particular circumstances of that case).
---------------------------------------------------------------------------

    The Board continued to permit absentee balloting pursuant to South 
West Pennsylvania Pipe Lines into early 1947,\33\ but then effectively 
discontinued the practice. A decision from July 1947 found, citing 
South West Pennsylvania Pipe Lines, that the conditions for absentee 
balloting had not been met,\34\ as did a decision issued in July 
1949,\35\ but otherwise no Board decisions from this period even 
mention South West Pennsylvania Pipe Lines. Then, in Link Belt Co., 91 
NLRB 1143, 1144 (1950), the Board refused to allow an employee on 
military leave to vote by absentee mail ballot despite the parties' 
agreement to permit that employee to do so. By way of explanation, the 
Board simply stated that ``[w]e have found . . . that mail balloting of 
employees on military leave is impracticable,'' and added that, 
``[f]rom Board administrative experience, we conclude that it will best 
effectuate the policies and purposes of the Act to declare eligible to 
vote only those employees in the military service who appear in person 
at the polls.'' By way of support, the Board simply cited Wilson and 
described South West Pennsylvania Pipe Lines as having ``followed a 
different procedure in a factual situation unlike that here 
presented.'' \36\
---------------------------------------------------------------------------

    \33\ See Kennametal, Inc., 72 NLRB 837 (1947).
    \34\ See Iowa Packing Co., 74 NLRB 434, 437 (1947) (employer 
only had correct addresses for 12 of 404 employees in military 
service who had not yet applied for reemployment).
    \35\ See Frank Ix & Sons Pennsylvania Corp., 85 NLRB 492, 493 
(1949) (although parties agreed to permit absentee balloting for 10 
employees, Board did not provide for it due to lack of information 
regarding addresses and employer's mere contention that ``we think . 
. . we can obtain their whereabouts at the time the ballots would be 
mailed to them'').
    \36\ A subsequent Board decision indicates that the Board's 
decision in Link Belt followed ``an extensive survey conducted among 
the Board's Regional Directors,'' but does not elaborate on the 
results of this survey. Atlantic Refining Co., 106 NLRB 1268, 1275 
(1953).
---------------------------------------------------------------------------

    Since Link Belt, Wilson has governed the Board's policy with 
respect to employees on military leave (i.e., they are eligible to 
vote, but only if they appear at the polls), and South West 
Pennsylvania Pipe Lines has been neither discussed nor cited in any 
published Board decisions. Indeed, aside from reaffirming Wilson and 
Link Belt in 1953, no published Board decisions have engaged in any 
discussion of absentee balloting for military employees at all.\37\
---------------------------------------------------------------------------

    \37\ In Pepsi Cola Bottling Co. of Princeton, Inc., 176 NLRB 
716, 726, 729 (1969), a trial examiner sustained an objection 
alleging that because the employer was aware, two weeks before the 
election, that 3 employees would be absent due to National Guard 
duty on the day of the election, and because the employer had made 
no effort to secure absentee ballots for them, the employer had 
improperly prevented these employees from voting. The Board did not 
pass on this finding, however. See id. at 716 fn. 1.
---------------------------------------------------------------------------

    That said, the Board, on at least one occasion, has expressed 
willingness to revisit its approach to absentee balloting for employees 
on military leave. On January 8, 1992, the Board's Division of 
Operations-Management issued Memorandum OM 92-2, ``Mail Ballot 
Elections and Absentee Mail Ballots,'' informing Regional Directors 
that the Board ``has decided to review the Agency's current practice 
and experience both with respect to mail ballot elections and with 
respect to the use of absentee mail ballots for employees on military 
leave.'' The Memorandum asked Regional Directors to provide information 
including the number of elections in Fiscal Years 1990 and 1991 in 
which absentee ballots were requested for employees on military leave, 
the number of cases in which objections were filed based on a refusal 
to supply such ballots, and the number of elections in which such 
requested ballots might have been determinative had they been provided, 
returned, opened, and counted. By internal memorandum dated March 17, 
1992, the General Counsel transmitted the survey results to the 
Board,\38\ but thereafter the Board does not appear to have taken 
further action with respect to reviewing (or reconsidering) its 
approach to absentee ballots for employees on military leave.
---------------------------------------------------------------------------

    \38\ The results revealed 6 cases each in Fiscal Years 1990 and 
1991 in which absentee ballots for employees on military leave had 
been requested, with no objections filed based on the refusal to 
provide them and no elections in which such ballots might have been 
determinative had they been provided, returned, opened, and counted.
---------------------------------------------------------------------------

    More recently, individual Board members have suggested that the 
Board should reconsider its policy in this area. In U.S. Foods, Inc., 
Case No. 15-RC-076271 (May 23, 2012) (not reported in Board volumes), 
Member Hayes stated his view that ``at some point . . . the Board 
should reconsider its general policy of not providing mail ballots to 
employees who are unable to participate in a manual ballot election 
because they are in the military service.'' And in Tri-County Refuse 
Services, Inc. d/b/a Republic Services of Pinconning, Case No. 07-RC-
122650 (Sep. 9, 2014) (not reported in Board volumes), a case in which 
the Board overruled an employer's objection contending that the voting 
period should have been extended to accommodate an employee who was out 
of state on military leave on the election date, Member Johnson agreed 
that the objection should be overruled, but also found merit

in the Employer's argument that Board policies in this area may run 
afoul of the spirit, if not the letter, of the Uniformed Services 
Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-4355 
(1994), and other laws and public policies designed to protect the 
rights of service members to vote. Moreover, the Board should remove 
any impediment to military service in interpreting election rules 
under the Act. As a result, he believes the Board in the future 
should provide military ballots to employees who are unable to 
participate in manual ballot elections as a result of military 
service obligations that call them away from the workplace.

    Although the Board majority in both U.S. Foods and Tri-County 
Refuse did not similarly state an interest in

[[Page 45559]]

reconsidering the Board's absentee ballot policy, in both cases the 
Board seemingly signaled a willingness to permit absentee ballots for 
employees on military leave under at least some circumstances. Thus, in 
U.S. Foods, the Board, in the context of a mixed manual-mail ballot 
election, directed the Regional Director to provide a mail ballot to an 
employee based at the manual balloting location who was abroad on 
military leave.\39\ And in Tri-County Refuse, the Board suggested that 
parties could enter into stipulated election agreements providing for 
absentee ballots for employees on military leave.
---------------------------------------------------------------------------

    \39\ The Board specified, however, that the employee on military 
leave was being provided with a mail ballot ``consistent with the 
election arrangements pertaining to mail ballots,'' that ballots 
were to be counted on time, and that the employee's ballot was 
``subject to the same challenges as any other ballot.'' Even with 
these caveats, the Board's provision of the ballot in U.S. Foods 
appears to be in at least some tension with the nonbinding 
Casehandling Manual (Part Two), which states, even in the context of 
mixed manual-mail ballot elections, that absentee ballots are not 
provided in Board elections. See section 11335.1 (citing section 
11302.4).
---------------------------------------------------------------------------

II. Statutory Authority and Desirability of Rulemaking

    Section 6 of the Act, 29 U.S.C. 156, provides that ``[t]he Board 
shall have authority from time to time to make, amend, and rescind, in 
the manner prescribed by subchapter II of chapter 5 of Title 5 [the 
Administrative Procedure Act], such rules and regulations as may be 
necessary to carry out the provisions of this Act.'' The Board 
interprets Section 6 as authorizing the proposed rules and invites 
comments on these issues. Although the Board historically has made most 
substantive policy determinations through case adjudication, the Board 
has, with Supreme Court approval, engaged in substantive rulemaking. 
American Hospital Assn. v. NLRB, 499 U.S. 606 (1991) (upholding Board's 
rulemaking on appropriate bargaining units in the healthcare industry); 
see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (``[T]he 
choice between rulemaking and adjudication lies in the first instance 
within the Board's discretion.'').
    The Board finds that informal notice-and-comment rulemaking with 
respect to the policies at issue here is desirable for several 
important reasons. First, rulemaking presents the opportunity to 
solicit broad public comment on, and to address in a single proceeding, 
two related issues that would not necessarily arise in the adjudication 
of a single case. By engaging in rulemaking after receiving public 
comment on the issues presented, the Board will be better able to make 
informed judgments as to (1) whether the current voter list disclosures 
sufficiently account for employee privacy concerns, and (2) whether it 
should provide absentee ballots for employees on military leave. 
Second, the proposed amendments will be rules of general application in 
representation cases, and thus the types of rules for which the Act's 
rulemaking provisions ``were designed to assure fairness and mature 
consideration.'' Wyman-Gordon Co., 394 U.S. at 764. Third, the proposed 
amendment to the voter list requirement would affect all parties to 
virtually all Board-conducted elections, and the proposed amendment 
permitting absentee ballots for employees on military leave would 
additionally affect individual voters in many Board-conducted 
elections. Notice-and-comment rulemaking will accordingly ``provide the 
Board with a forum for soliciting the informed views of those affected 
in industry and labor before embarking on a new course.'' Bell 
Aerospace, 416 U.S. at 295. Fourth, by establishing the new policies 
with respect to voter lists and absentee ballots for employees on 
military leave in the Board's Rules & Regulations, the Board will 
enable employers, unions, and employees to plan their affairs free of 
the uncertainty that the legal regime may change on a moment's notice 
(and possibly retroactively) through the adjudication process. See 
Wyman-Gordon, 394 U.S. at 777 (``The rule-making procedure performs 
important functions. It gives notice to an entire segment of society of 
those controls or regimentation that is forthcoming.'') (Douglas, J., 
dissenting). Finally, with respect to the proposed amendment providing 
absentee ballots for employees on military leave, the Board wishes to 
facilitate maximum participation by the Board's stakeholders, the 
general public, and other government agencies in order to ensure that, 
if adopted, the proposed amendment is accompanied by procedures that 
also continue to effectuate the Board's commitment to the expeditious 
resolution of questions of representation.

III. The Proposed Rule Amendments

A. Elimination of Provision of Personal Email Addresses and Telephone 
Numbers in Voter List

    The Board is inclined to believe, subject to comments, that the 
required provision of available personal email addresses and home and 
cellular telephone numbers should be eliminated in light of 
technological developments since 2014 and ongoing privacy concerns.\40\
---------------------------------------------------------------------------

    \40\ The Board is not proposing any further changes to the voter 
list requirement as codified and modified by the 2014 amendments.
---------------------------------------------------------------------------

    The 2014 amendments in effect concluded that disclosure of this 
contact information was required because, due to changes in 
communications technology since 1966, supplying nonemployer parties 
with such information would better serve the twin purposes underlying 
the original Excelsior requirement (i.e., facilitating a more informed 
electorate and expeditiously resolving questions of representation by 
avoiding challenges). The 2014 amendments acknowledged that these same 
changes in technology have also raised concerns regarding privacy, but 
ultimately concluded that the admitted interest in privacy was 
outweighed by the importance of expanding unions' access to voters. 79 
FR 74315, 74341-74343.
    The Board acknowledges that the Excelsior Board did not necessarily 
intend to limit the Excelsior requirement to full names and physical 
addresses alone for all time, and that it accordingly was appropriate 
for the 2014 amendments to consider whether changes in 
telecommunications that have taken place since 1966 warranted 
additional disclosures. The Board also agrees that privacy interests 
must be weighed against the potential benefits of disclosure, and it 
defers to the judgment of the courts that the 2014 amendments reached a 
permissible result in requiring the disclosure of personal telephone 
numbers despite privacy concerns.\41\ Nevertheless, upon reflection the 
Board is inclined, as a policy matter, to conclude that privacy 
interests and their protection should be entitled to greater weight 
than the 2014 amendments accorded them, and that when given proper 
weight the privacy interests at stake outweigh the interests favoring 
mandatory disclosure of available personal email addresses and 
telephone numbers.
---------------------------------------------------------------------------

    \41\ See Associated Builders and Contractors of Texas, Inc. v. 
NLRB, 826 F.3d at 224-226; Chamber of Commerce of the United States 
of America v. NLRB, 118 F. Supp. 3d at 171, 212-215.
---------------------------------------------------------------------------

    To begin, the Board is inclined to believe that the 2014 amendments 
overemphasized the degree to which disclosure of personal email 
addresses and telephone numbers advanced the twin purposes of the 
Excelsior requirement. Although the supplementary information to the 
2014 amendments repeatedly stated that disclosure would advance these 
purposes, it identified no tangible

[[Page 45560]]

evidence that unions were previously unable to contact eligible voters 
in a timely fashion when limited to physical addresses, nor did it 
establish that challenges based on a union's lack of knowledge of a 
voter's identity were responsible for undue delays in resolving 
questions of representation. This is not to suggest that disclosure of 
personal telephone numbers and email addresses did not or could never 
advance the purposes of the Excelsior requirement; it is only to state 
that the Board is inclined to believe that those purposes were already 
being sufficiently served prior to the 2014 amendments.
    Turning to the countervailing privacy interests, the Board is of 
the view that the 2014 amendments imprecisely identified the privacy 
interest at stake. To be sure, one dimension of the privacy interest in 
telephone numbers and email addresses--or, indeed, any type of contact 
information--is the right of the individual to be left alone. In 
upholding the Excelsior rule, the Supreme Court recognized that it is 
for the Board to weigh the interest in the fair and free choice of 
bargaining representatives against ``the asserted interest of employees 
in avoiding the problems that union solicitation may present.'' Wyman-
Gordon, 394 U.S. at 767. Generally speaking, the ``problems of union 
solicitation'' can be described as infringements of or intrusions into 
the employees' personal spheres. See, e.g., 79 FR 74344. If, however, 
the privacy interest is defined solely in these terms, then under the 
rationale of Excelsior the interest in being left alone should always 
be outweighed by the interests served by disclosing contact information 
because any such disclosure ``remove[s an] impediment to 
communication,'' and the ``mere possibility that a union will abuse the 
opportunity to communicate with employees'' does not, by itself, 
outweigh the removal of the impediment. Excelsior, 156 NLRB at 1240, 
1244.
    But the Board is inclined to find that the privacy interest at 
stake is not solely limited to the interest in being left alone. As the 
2014 amendments recognized, the privacy interest is also implicated by 
the fact of disclosure itself because ``some employees will consider 
disclosure of the additional contact information * * * to invade their 
privacy, even if they are never contacted.'' 79 FR 74343. Put 
differently, an individual has a privacy interest ``in controlling the 
dissemination of information regarding personal matters.'' U.S. Dept. 
of Defense v. FLRA, 510 U.S. 478, 500 (1994).\42\ Despite recognizing 
this aspect of the privacy interest at stake, the 2014 amendments do 
not appear to have fully appreciated it. In this regard, almost 
immediately after acknowledging that disclosure itself implicates 
privacy interests, the 2014 amendments reverted to explaining how 
``many features of the voter list amendments help to minimize any 
invasion of employee privacy caused by disclosure of the information.'' 
79 FR 74343 (emphasis added). Specifically, the 2014 amendments 
emphasized that the information disclosed is limited in scope, 
available only to a limited group of recipients, and can be used only 
for limited purposes, and that any infringement it occasions will 
likely be of relatively limited duration. 79 FR 74343-74344.\43\ All 
well and good, but if disclosure itself implicates privacy concerns, 
limitations on what can be done with the information after disclosure 
are beside the point.\44\
---------------------------------------------------------------------------

    \42\ U.S. Dept. of Defense v. FLRA involved the interaction of 
FOIA and the Privacy Act. The Board does not suggest that this case 
mandates eliminating the mandatory disclosure of available personal 
telephone numbers and email addresses, but it is clearly instructive 
regarding the nature of employee privacy interests in employees' 
personal contact information.
    \43\ The 2014 amendments also suggested that employees have some 
measure of control over whether their email addresses and telephone 
numbers are disclosed based on the fact that the employees have 
already disclosed such information to the employer. 79 FR 74343 
n.169. The Board is not inclined to agree with this assessment. 
Employers may require provision of personal contact information as a 
condition of hire or continued employment (in which case the 
employees' ``control'' is limited to a choice between working or not 
working), and in any event the Board thinks it is misguided to 
suggest that employees should somehow anticipate in advance that 
their contact information might be disclosed to a third party at 
some future point.
    \44\ Several submissions in response to the 2017 Request for 
Information anecdotally illustrate that disclosure itself implicates 
the privacy interest at stake here. In this regard, several 
commenters, including employer groups, reported that since the 2014 
amendments have taken effect, employees have lodged complaints with 
their employers upon discovering that their contact information had 
been disclosed to a union pursuant to the voter list requirement.
---------------------------------------------------------------------------

    Mindful that the fact of disclosure itself, not just undesired 
contact that may follow from it, is part of the privacy interest at 
stake here, the Board is inclined to find that the privacy interest in 
nondisclosure of personal telephone numbers and email addresses is 
entitled to substantially greater weight than it was given by the 2014 
amendments. First, concerns about the protection of privacy interests 
have grown exponentially in conjunction with the accompanying rapid 
development of communications technology and the novel problems that 
have come with it. Just as the Board in 1966 could not possibly have 
imagined the proliferation of mobile smartphones, the Board could not 
have envisioned the rampancy of data and identity theft in today's 
information- and data-based society. Personal telephone numbers present 
special concerns in this regard: As explained in a recent Wired 
article, ``phone numbers have become more than just a way to contact 
someone,'' but have increasingly been used by companies and services as 
a means for both identification and verification of identity, thereby 
turning phone numbers into ``a skeleton key into your entire online 
life.'' \45\ The news is rife with stories of large-scale data theft as 
well as thefts of individual phone numbers and the mischief that can 
result, such as ``SIM swap'' attacks in which hackers convince a 
target's phone company to direct the target's text messages to a 
different SIM card, thereby intercepting two-factor authentication 
login codes enabling hackers to infiltrate the target's accounts.\46\ 
Personal email addresses present similar concerns, as they are the 
principal point of attack for ever-expanding forms of email fraud (such 
as spoofing, phishing, and other forms of social engineering), scams, 
and hacking.\47\ This is not to suggest that unions would be tempted to 
engage in such behavior upon receiving employee telephone numbers or 
email addresses, but rather to illustrate that there is a heightened 
privacy interest with respect to controlling the disclosure itself.
---------------------------------------------------------------------------

    \45\ Lily Hay Newman, ``Phone Numbers Were Never Meant as ID. 
Now We're All At Risk,'' Wired (Aug. 25, 2018), https://www.wired.com/story/phone-numbers-indentification-authentication/?verso=true.
    \46\ Andy Greenberg, ``So Hey You Should Stop Using Texts For 
Two-Factor Authentication,'' Wired (June 26, 2016), https://www.wired.com/2016/06/hey-stop-using-texts-two-factor-authentication/.
    \47\ See, e.g., Federal Bureau of Investigation Alert Number I-
071218-PSA (Jul. 12, 2018), available at https://www.ic3.gov/media/2018/180712.aspx (detailing growth of Business Email Compromise/
Email Account Compromise scam). See generally Federal Bureau of 
Investigation internet Crime Complaint Center, ``2018 internet Crime 
Report,'' available at https://pdf.ic3.gov/2018_IC3Report.pdf 
(detailing internet crimes, including email fraud, in 2018); Federal 
Bureau of Investigation internet Crime Complaint Center Press Room, 
available at https://www.ic3.gov/media/default.aspx (containing 
press releases describing various email and internet-related scams).
---------------------------------------------------------------------------

    Second, the lack of an opt-out procedure entitles the privacy 
interest in personal telephone numbers and email addresses to greater 
weight. For the purposes of this proceeding, the Board assumes that the 
2014 amendments were correct that crafting an opt-out provision would 
be difficult

[[Page 45561]]

and impractical and would also be of limited utility given the 
relatively short period of time during which contacts would occur 
between the union and the employees. See 79 FR 74348-74349. The lack of 
a practical opt-out mechanism raises immediate concerns with respect to 
telephone numbers, given that telephone calls and text messages are 
subject to the user's talk, text, and/or data plan. Although many such 
plans are unlimited, many are not or are ``pay-as-you-go'' plans. A 
user may still be able to avoid depleting any minutes limit or 
incurring additional charges by declining an incoming phone call, but 
users typically will not be in a position to avoid unsolicited text 
messages in advance of receiving one from a particular sender, and 
although they may be able to block such messages thereafter, the text 
has already been counted towards the plan limit and/or charges may have 
been incurred. The 2014 amendments responded to this risk by predicting 
it was unlikely that a union would place so many calls or send so many 
texts as to financially harm recipients without unlimited calling and 
text plans, reiterating that the use of telephone numbers would be 
restricted to the representation and related proceedings, and referring 
to the Federal Communications Commission's initiatives to address 
``bill shock.'' 79 FR 74351. All of this misses the point, however, 
because for individuals with limited plans a single answered telephone 
call or a single unsolicited text message counts toward their plan 
limit at best or exceeds that limit and results in additional charges 
at worst. This concern is also present for email addresses, as email is 
increasingly accessed from smartphones,\48\ and accessing email via 
such devices also counts toward a user's data limits. Here, too, the 
point is not that the disclosure can lead, or has led, to larger bills 
for employees; it is that employees have a stronger privacy interest in 
their telephone numbers and email addresses for this reason.
---------------------------------------------------------------------------

    \48\ As of February 2019, approximately 81% of U.S. adults owned 
a smartphone. Pew Research Center internet & Technology, Mobile Fact 
Sheet (Jun. 12, 2019), available at https://www.pewresearch.org/internet/fact-sheet/mobile/.
---------------------------------------------------------------------------

    Third, the Board is inclined to agree with the view, expressed by 
dissenting Members Miscimarra and Johnson in 2014, that employees have 
a greater privacy interest in personal phone numbers and email 
addresses than they do in home addresses. As the dissenting members 
stated, a home is a fixed point that can be visited independent of 
disclosure of the address, whereas a personal email address is entirely 
the creation of the employee and typically is not identifiable at all 
without the employee's consent. A personal phone number is also created 
in part by the employee, who can determine whether it is publicly 
listed. Further, the Board is inclined to find that the emergence of 
smartphones as a ``universal point of contact,'' as well as the general 
proliferation of cellular telephones, also heightens the privacy 
interest in telephone numbers. As cellular telephone ownership has 
increased, and as more households have abandoned landlines,\49\ 
specific phone numbers have become increasingly associated with 
particular individuals and their particular mobile device of choice, 
and this association can persist despite relocations that, in another 
era, would have required changing telephone numbers. Thus, although the 
ubiquity and convenience of cellular telephones means that disclosure 
of telephone numbers could serve the Excelsior purposes, the close 
association of telephone numbers with particular individuals also 
increases the privacy interest that those individuals have in their 
personal telephone numbers.
---------------------------------------------------------------------------

    \49\ As of the second half of 2018, 57.1% of all households did 
not have a landline telephone but did have at least one wireless 
telephone, and approximately 56.7% of all adults in the U.S. lived 
in wireless telephone-only households. Stephen J. Blumberg and 
Julian V. Luke, ``Wireless Substitution: Early Release of Estimates 
From the National Health Interview Survey, July-December 2018,'' 
National Center for Health Statistics (Jun. 2019), https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201906.pdf.
---------------------------------------------------------------------------

    Taking these considerations together, the Board believes, subject 
to comments, that employees clearly have a heightened privacy interest 
in their personal email addresses and telephone numbers.\50\ The Board 
is also inclined to find that this heightened privacy interest 
outweighs the competing interest in disclosure not only for the reasons 
listed above, but also because (1) unions will continue to have 
adequate alternative means of reaching employees, just as they did 
before the 2014 amendments; (2) unions will continue to be able to 
avail themselves of the other expanded disclosures required by the 2014 
amendments, which the Board does not propose eliminating; and (3) 
unions will, of course, continue to be able to avail themselves of the 
traditional tools and techniques they have at their disposal to 
encourage employees to voluntarily disclose other contact information.
---------------------------------------------------------------------------

    \50\ The Board is also inclined, subject to comments, to find 
that there is no meaningful distinction between personal email 
addresses and telephone numbers with respect to the privacy 
interests at stake. Although there may be minor distinctions between 
the two, the considerations identified above apply to both types of 
contact information. In addition, the 2014 amendments do not appear 
to have suggested any meaningful difference in the privacy interests 
involved, nor did the courts who considered challenges to the 2014 
amendments suggest there is any such difference. See Associated 
Builders and Contractors of Texas v. NLRB, 826 F.3d at 225-226; 
Associated Builders and Contractors of Texas v. NLRB, 2015 WL 
3609116 at *9-11 (W.D. Tex. June 1, 2015); Chamber of Commerce v. 
NLRB, 118 F. Supp. 3d at 213.
---------------------------------------------------------------------------

    In sum, the Board is inclined to find that eliminating the 
mandatory disclosure of employees' personal telephone numbers and email 
addresses strikes a better balance between the purposes underlying the 
voter list requirement and employee privacy concerns.

B. Provision of Absentee Ballots to Individuals on Military Leave

    The Board is inclined, subject to comments, to adopt a procedure 
that will provide absentee mail ballots for employees on military 
leave.\51\ This proposal represents a limited exception to the Board's 
general policy of not providing absentee ballots; the Board is not 
inclined to modify that policy in any further respects.\52\
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    \51\ The Board is currently subject to a budgetary rider that 
prohibits it from using any appropriated funds ``to issue any new 
administrative directive or regulation that would provide employees 
any means of voting through any electronic means in an election to 
determine a representative for the purposes of collective 
bargaining.'' See, e.g., ``Justification of Performance Budget for 
Committee on Appropriations, Fiscal Year 2020'' at 5, available at 
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1706/performance_justification_2020.pdf. Accordingly, at this 
time any absentee balloting must be accomplished by mail ballot.
    \52\ On this count, the Board is inclined to find that military 
leave presents distinct concerns and considerations from other types 
of leave. As previously indicated, although the Board has changed 
course at least three times with respect to absentee balloting by 
employees on military leave, the Board has much more consistently 
rejected arguments that absentee ballots should have been provided 
to employees on other types of leave. The Board is inclined to 
believe this distinction is justified due to the fact that other 
types of leave are more readily within an employee's control (e.g., 
vacation) or frequently cannot be anticipated ahead of time (e.g., 
sick leave). And as a general matter, for employees on other types 
of leave, the Board is inclined to agree with the Third Circuit's 
enumeration of the policy reasons for not permitting absentee 
ballots. See Cedar Tree, 169 F.3d at 797-798.
---------------------------------------------------------------------------

    To begin, the Board has, from its earliest days, zealously 
protected the eligibility of employees on military leave. From Cudahy 
forward, the Board has held that such employees are eligible voters, 
even if they would not otherwise meet the Board's eligibility criteria, 
and the Board has refused to honor stipulations that would have 
excluded such employees from the

[[Page 45562]]

bargaining unit. Although the Wilson Board may have had valid reasons 
for declaring absentee ballots for military personnel 
``impracticable,'' the Board's subsequent experience under South West 
Pennsylvania Pipe Lines demonstrates that absentee balloting was 
nevertheless feasible, even in situations involving large units and 
large percentages of employees on military leave voting by absentee 
ballot. The Link Belt Board's reversion to declaring such balloting 
``impracticable'' was ill-explained, as was its purported distinction 
of South West Pennsylvania Pipe Lines. The Board is accordingly 
inclined to find, subject to comments, that it should not continue 
deferring to the judgment expressed in Wilson and Link Belt.
    In addition, the Board is also inclined to find, subject to 
comments, that the types of administrative difficulties cited in Wilson 
and Link Belt are less pronounced, and/or more easily dealt with, due 
to advances in transportation and telecommunications that have occurred 
since 1950. At present, first-class domestic mail is delivered within 1 
to 3 business days.\53\ And even for those service members stationed 
abroad, it appears that letters sent via priority mail can usually be 
delivered within two weeks.\54\ Based on these estimates, the Board is 
inclined to find that there is no longer any basis to conclude, as the 
Board did under Wilson, that 3 months from the Direction of Election to 
the return date would be required to accommodate absentee balloting by 
employees on military leave. See Mine Safety Appliances, 55 NLRB at 
1194.
---------------------------------------------------------------------------

    \53\ See https://www.usps.com/ship/first-class-mail.htm.
    \54\ According to the United States Post Office, the normal mail 
transit times for Priority Mail Letters via Military APO/FPO/DPO 
Mail are as follows: 7-9 days for locations in Germany, 11-13 days 
for locations in Iraq/Kuwait/Afghanistan, 8-10 days for locations in 
Japan/Korea, and 15-18 days for locations in Africa. https://faq.usps.com/s/article/How-long-will-it-take-for-mail-to-reach-a-MPO.
---------------------------------------------------------------------------

    Further, telecommunications have evolved markedly since 1950, as a 
result of which the Board anticipates it will be much easier to 
determine the locations and addresses of any employees on military 
leave. The Board is inclined to believe that most employees on military 
leave will have provided their employer with their contact information, 
and so determining such employees' mailing addresses may often be as 
simple as sending an employee an email to ask for it. Even where this 
is not possible, the Board is inclined to believe that employers will 
possess sufficient information to permit the parties to use the 
military personnel locator services provided by the U.S. Navy,\55\ U.S. 
Marine Corps,\56\ U.S. Army,\57\ and U.S. Air Force.\58\ Moreover, so 
long as an employee's installation is known, the Department of Defense 
website provides a convenient tool for obtaining the installation's 
mailing address.\59\ And in at least some instances, the Board 
anticipates that employees on certain types of military leave will be 
reachable at their home address, which the employer is already required 
to provide to the Board pursuant to the voter list requirement 
discussed at greater length above. Based on these considerations, the 
Board is inclined to conclude, subject to comments, that the 
difficulties in locating and securing mailing addresses for employees 
on military leave are far less likely to be present today than was the 
case when Wilson and Link Belt were decided.
---------------------------------------------------------------------------

    \55\ https://www.navy.mil/navydata/nav_legacy.asp?id=168.
    \56\ https://www.marines.mil/FAQ/.
    \57\ Id.
    \58\ https://www.afpc.af.mil/Support/Worldwide-Locator/.
    \59\ See https://installations.militaryonesource.mil/ mil/.
---------------------------------------------------------------------------

    Perhaps more importantly, the Board is inclined to agree with 
former Member Johnson's suggestion that provision of absentee mail 
ballots to individuals on military leave would be more consistent with 
other laws and public policies than the Board's current refusal to 
provide absentee ballots. In this regard, the Board is inclined, 
subject to comments, to conclude that Congress has manifested an 
approach or general policy of providing special protections to service 
members, especially with respect to matters of employment and voting. 
In 1940, before Cudahy, Congress enacted the Soldiers' and Sailors' 
Civil Relief Act--which in 2003 was restated, clarified, revised, and 
retitled the Servicemembers Civil Relief Act \60\--which provides a 
wide range of protections for servicemembers as they enter active 
duty.\61\ Cudahy's holding was itself based on a congressional statute 
and resolution entitling servicemembers to reinstatement of their pre-
service employment.\62\ More recently, in the Uniformed Services 
Employment and Reemployment Rights Act of 1994 (USERRA),\63\ Congress 
similarly provided a range of employment protections for servicemembers 
in order to, among other things, encourage military service ``by 
eliminating or minimizing the disadvantages to civilian careers and 
employment which can result from such service.'' 38 U.S.C. 
4301(a)(1).\64\ In addition, in 1986 Congress passed the Uniformed and 
Overseas Citizens Absentee Voting Act (UOCAVA),\65\ which provides 
various protections and mechanisms for absentee voting in federal 
elections by military personnel and overseas citizens. UOCAVA has been 
amended several times in order to facilitate its purposes; of 
particular note here, amendments made as part of the National Defense 
Authorization Act for Fiscal Year 2002 stated that it is the sense of 
Congress that all administrators of Federal, State, or local elections 
``should be aware of the importance of the ability of each uniformed 
services voter to exercise the right to vote'' and should perform their 
duties to ensure that uniformed services voters receive ``the utmost 
consideration and cooperation when voting'' and that ``each valid 
ballot cast by such a voter is duly counted.'' \66\
---------------------------------------------------------------------------

    \60\ See Public Law 108-189, Dec. 19, 2003, 117 Stat 2935.
    \61\ See 50 U.S.C. 3910 et seq.
    \62\ See 29 NLRB at 835 fn. 5.
    \63\ See 38 U.S.C. 4301 et seq.
    \64\ Congress also stated that the Federal Government should be 
a model employer in carrying out the provisions of USERRA. 38 U.S.C. 
4301(b).
    \65\ 52 U.S.C. 20301 et seq. (as amended).
    \66\ Public Law 107-107, div. A, title XVI, Sec. 1601(a)(1), 
(2)(A)-(B), Dec. 28, 2001, 115 Stat. 1012.
---------------------------------------------------------------------------

    The Board does not suggest that any of these statutes apply to 
Board-conducted elections or require the provision of absentee ballots 
to employees on military leave. But taken together, they do indicate a 
national policy that favors taking measures to ensure that 
servicemembers' employment and electoral rights are preserved. Indeed, 
this policy has informed the Act itself: Section 10(b) (as amended in 
1947), 29 U.S.C. 160(b), provides that no complaint shall issue based 
on any unfair labor practice occurring more than six months prior to 
the filing of the charge ``unless the person aggrieved thereby was 
prevented from filing such charge by reason of service in the armed 
forces in which event the six-month period shall be computed'' from the 
date of discharge. Given that the Act itself reflects this policy, that 
Board-conducted elections implicate the employment-related rights of 
those on military leave, and that Congress has exhorted administrators 
who conduct political elections to facilitate the right of 
servicemembers to vote, the Board is inclined to find, subject to 
comments, that it too should provide for absentee balloting by 
employees on military leave.
    The Board recognizes that adopting a policy of providing for 
absentee mail ballots presents a number of logistical challenges. The 
Board believes,

[[Page 45563]]

however, that these can be avoided if the absentee ballot procedure is 
properly structured. The Board is accordingly soliciting comments from 
stakeholders, the general public, the Board's regional personnel, and 
other governmental agencies regarding what procedures should apply if 
the Board adopts the proposed amendment. Among other things, commenters 
are invited to address:
     Whether there should be a time limit on when an absentee 
ballot may be requested;
     who should be permitted and/or required to request 
absentee ballots on behalf of employees on military leave;
     whether the Board should require documentary proof that 
the individual will in fact be on military leave at the time of the 
election;
     how the Board should approach securing the addresses of 
employees on military leave, including whether the parties should be 
responsible for doing so;
     whether time limits on returning absentee ballots should 
be set and, if so, what those time limits should be;
     whether other procedures or provisions are necessary or 
desirable to help avoid challenges to or objections over absentee 
ballots.
    Subject to any such comments that may be received, the Board's 
preliminary inclination is to adopt a new procedure, rather than 
reinstate the standard applied under South West Pennsylvania Pipe 
Lines. That procedure involved case-specific determinations as to 
whether absentee ballots were warranted, and the Board suspects that 
such individualized determinations were part of the reason the Link 
Belt Board opted to return to Wilson's blanket prohibition on absentee 
ballots. Further, despite South West Pennsylvania Pipe Lines' guidance 
regarding these determinations, the application of that guidance in 
subsequent cases is often difficult to understand and not always 
consistent with South West Pennsylvania Pipe Lines itself.\67\ Nor is 
the Board inclined to engage in individualized determinations as to 
whether absentee balloting is feasible for specific employees, given 
the likelihood that such an approach would prove time-consuming and 
would give rise to increased litigation. The Board is therefore instead 
inclined to adopt a procedure that simply specifies that the Regional 
Director ``shall provide absentee mail ballots for eligible voters or 
individuals permitted to vote subject to challenge who are on military 
leave upon timely notice from any party or person that such voters or 
individuals will otherwise be unable to vote in the election.''
---------------------------------------------------------------------------

    \67\ As noted earlier, the Board appears to have promptly 
disregarded South West Pennsylvania Pipe Lines' emphasis on the 
relatively small unit size and number of employees on military 
leave, as well as the emphasis on the parties' agreement to permit 
absentee balloting. In addition, certain of the procedures used 
under that case would likely be superfluous in light of subsequent 
developments. Thus, South West Pennsylvania Pipe Lines' concern with 
gathering and sharing employee addresses is likely unnecessary 
following the Board's adoption of the voter list requirement.
---------------------------------------------------------------------------

    With respect to notification and the timeliness thereof, the 
Board's initial inclination is, as just set forth, to provide that 
absentee ballots will be provided upon notice ``from any party or 
person.'' As a threshold matter, the Board is of the view that it would 
indeed be impracticable to require regional directors to investigate 
and identify employees on military leave in each case; such an approach 
would almost certainly overburden regional personnel. The Board also 
believes that it would be unfair to adopt a rule requiring those 
employees on military leave to secure their own absentee ballots. The 
Board is generally of the view that the parties will be in the best 
position to know if there are employees in the unit that are (or will 
be) on military leave, and that they are also best positioned to inform 
the Board that absentee ballots will be required. The Board has 
considered whether the burden of identifying personnel on military 
leave should be allocated to a specific party, but is inclined, subject 
to comments, not to impose any such burden. Although the employer is 
probably best positioned to know if there are (or will be) any 
employees on military leave, there may be situations where an incumbent 
or petitioning union, or individual decertification petitioner, has 
earlier notice of the situation. Further, the Board's goal in adopting 
this amendment is to ensure that employees on military leave have 
maximum opportunity to participate in the election; accordingly, who 
informs the Board of the existence of such employees is immaterial. The 
Board is inclined to find that so long as timely notice is received 
from someone, the Board should furnish the employee on military leave 
with an absentee ballot.
    On a closely related count, the Board recognizes that there may be 
situations in which a party is aware that an eligible employee is on 
military leave but does not so inform the Board, whether due to 
neglect, indifference, or gamesmanship. In such situations, the Board 
believes, subject to comments, that the party should be estopped from 
filing an objection based on the failure to provide the eligible 
employee with an absentee ballot. This is consistent with the Board's 
voter list requirement, which prevents an employer from filing an 
objection based on its own failure to comply with the requirement, as 
well as with the broader principle that a party cannot profit from its 
own misconduct. See, e.g., Republic Electronics, 266 NLRB 852, 853 
(1983). The proposed amendment accordingly provides that ``[a] party 
that was aware of a person on military leave but did not timely notify 
the Regional Director shall be estopped from objecting to the failure 
to provide such person with an absentee ballot.'' By the same token, 
the Board has considered whether it should impose a penalty on parties 
that are aware, but fail to notify the Board, of eligible voters on 
military leave. The Board believes, subject to comment, that it is not 
necessary to include such a provision in the amendment because Board 
precedent is already clear that causing an employee to miss the 
opportunity to vote is objectionable. See, e.g., Sahuaro Petroleum & 
Asphalt Co., 306 NLRB 586, 586-587 (1992).\68\
---------------------------------------------------------------------------

    \68\ The Board notes, however, that in such situations an 
election is set aside only if the employees prevented from voting 
could have affected the election results had they cast ballots. See 
id.
---------------------------------------------------------------------------

    As for ``timely'' notice, the Board is of the view that there must 
be a point after which absentee ballots will no longer be provided. 
Such a cutoff point is necessary to ensure that the absentee ballot 
procedure does not come at the expense of promptly conducting and 
resolving elections. The Board's preliminary view, subject to comments, 
is that the cutoff point should be linked to the issuance of the 
decision and direction of election or the approval of the stipulated 
election agreement. In stipulated cases, the agreement contains the 
election details, at which point the parties (or other persons) will be 
able to determine with certainty whether there are indeed employees on 
military leave who will be unable to vote unless they are provided with 
an absentee ballot. In directed elections, regional directors have the 
discretion to include the election details in the decision and 
direction of election, though they retain the discretion to 
subsequently issue the election details. The 2019 amendments made the 
regional directors' discretion in this regard clear (the prior rules 
having stated that regional directors will ``ordinarily'' include the 
election details in the decision and direction of election), but the 
supplementary information to the 2019 amendments also made clear that 
the Board expected

[[Page 45564]]

that regional directors ``should ordinarily be able to provide the 
election details in the direction of election.'' 84 FR 68544. In view 
of these considerations, as well as the fact that the voter list is due 
(pursuant to the 2019 amendments) 5 business days after the issuance of 
a decision and direction of election or approval of an election 
agreement, the Board is inclined to provide that any request for an 
absentee ballot must also be received within 5 business days of the 
approval of an election agreement or issuance of the decision and 
direction of election. But given that there may be situations where the 
election arrangements are unknown until some point after the issuance 
of a decision and direction of election, the Board is inclined to also 
provide that requests for absentee ballots must be received within 5 
business days ``absent extraordinary circumstances.''
    With respect to securing the mailing addresses of employees on 
military leave, the Board is inclined, subject to comments, to provide 
that in order to be timely, a request for an absentee ballot must not 
only be received within 5 business days of the direction of election or 
approval of an election agreement, but must also be ``accompanied by 
the mailing address at which the person can be reached while on 
leave.'' As discussed above, the Board believes that the parties--most 
often the employer--will already have such employees' contact 
information or will have a way of readily obtaining it, and in such 
situations the parties should simply provide it in the course of 
notifying the Board that absentee ballots will be needed for those 
employees.\69\ The Board would, however, be particularly interested in 
the input of the Department of Defense (and any other commenters with 
experience in securing contact information for military personnel) with 
respect to how best to accomplish the goal of gathering military 
mailing addresses.
---------------------------------------------------------------------------

    \69\ To the extent employers use the voter list to notify the 
Regional Director of the need for absentee ballots for employees on 
military leave, the Board is proposing that the voter list must 
include the employee's mailing address while on leave in addition to 
the employee's home address. The Board acknowledges that there may 
be situations in which a home address alone will be sufficient to 
provide the voter on military leave with an absentee ballot, 
including where the military leave involved is short-term.
---------------------------------------------------------------------------

    Finally, the Board is also of the view that there must be a 
provision setting forth a time after which absentee ballots will not be 
counted. Such a cutoff point is, like the cutoff point for notifying 
the Board of employees on military leave, necessary to prevent the 
absentee ballot procedure from unduly delaying the finality of election 
results. The Board is of the preliminary view that the cutoff point for 
counting absentee mail ballots should be tied to the date on which they 
are mailed to the employees, and that 30 calendar days should, in most 
circumstances, provide enough time for the absentee ballot to be 
delivered to the employee, filled out, and returned to the region. The 
Board recognizes, however, that this will often create situations when 
the election has been conducted but the period for receiving absentee 
ballots has not yet passed. The Board is of the view that where 
absentee ballots remain outstanding when the ballots would otherwise be 
counted (usually at the end of manual polling periods), the region 
should conduct the count as usual, but the tally of ballots should 
include a tabulation for outstanding absentee ballots. In the event the 
outstanding absentee ballots could not be determinative, the tally of 
ballots will be considered final; if the absentee ballots could be 
determinative, the region will wait until the 30-day period has 
elapsed, after which the region will determine whether the absentee 
ballots received (if any) since the initial tally of ballots are 
sufficient in number to affect the result. If so, the Regional Director 
will open and count such ballots and issue a revised tally of ballots; 
if not, the initial tally of ballots will be deemed final.
    The Board believes that by adopting these or similar procedures, 
absentee ballots for military personnel can be provided without 
sacrificing the prompt conduct and conclusion of elections. Under the 
proposed amendment, the election itself will not be delayed, nor will 
the ballot count; the likely worst-case scenario is that the final 
tally of ballots will be delayed by several days in order to wait for 
and count outstanding determinative absentee ballots. The Board also 
believes that these or similar procedures will minimize or avoid the 
types of considerations that may otherwise favor prohibiting absentee 
balloting, such as those identified by the Third Circuit in Cedar Tree, 
169 F.3d at 797-798. First, by limiting absentee ballots to employees 
on military leave, the Board believes that only a subset of all 
representation cases will be affected, avoiding logistical costs and 
concerns that would follow if the Board provided for absentee balloting 
by other categories of employees. Likewise, a blanket rule that 
absentee ballots will be provided to employees on military leave when 
timely requested avoids time-consuming individualized determinations as 
to whether an absentee ballot should be provided in a given case. In 
this regard, the proposed amendment will be predictable and even-
handed. And finally, the proposed amendment will not result in the 
postponement of vote counts, but only (at worst) a modest delay in the 
issuance of a final tally of ballots.

IV. Regulatory Procedures

The Regulatory Flexibility Act

A. Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (``RFA''), 5 U.S.C. 601 et 
seq., ensures that agencies ``review draft rules to assess and take 
appropriate account of the potential impact on small businesses, small 
governmental jurisdiction, and small organizations, as provided by the 
[RFA].'' \70\ It requires agencies promulgating proposed rules to 
prepare an Initial Regulatory Flexibility Analysis (``IRFA'') and to 
develop alternatives wherever possible, when drafting regulations that 
will have a significant impact on a substantial number of small 
entities.\71\ However, an agency is not required to prepare an IRFA for 
a proposed rule if the agency head certifies that, if promulgated, the 
rule will not have a significant economic impact on a substantial 
number of small entities.\72\ The RFA does not define either 
``significant economic impact'' or ``substantial number of small 
entities.'' \73\ Additionally, ``[i]n the absence of statutory 
specificity, what is `significant' will vary depending on the economics 
of the industry or sector to be regulated. The agency is in the best 
position to gauge the small entity impacts of its regulations.'' \74\
---------------------------------------------------------------------------

    \70\ E.O. 13272, Sec. 1, 67 FR 53461 (``Proper Consideration of 
Small Entities in Agency Rulemaking'').
    \71\ Under the RFA, the term ``small entity'' has the same 
meaning as ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' 5 U.S.C. 601(6).
    \72\ 5 U.S.C. 605(b).
    \73\ 5 U.S.C. 601.
    \74\ Small Business Administration Office of Advocacy, ``A Guide 
for Government Agencies: How to Comply with the Regulatory 
Flexibility Act'' (``SBA Guide'') at 18, https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf.
---------------------------------------------------------------------------

    As discussed below, the Board is uncertain whether its proposed 
rule will have a significant economic impact on a substantial number of 
small entities. The Board assumes for purposes of this analysis that a 
substantial number of small employers and small entity labor unions 
will be impacted by this rule because at a minimum, they will need to 
review and understand the effect of

[[Page 45565]]

the changes to the voter list requirement and the provision of absentee 
ballots to employees on military leave. Additionally, there may be 
compliance costs that are unknown to the Board.
    For these reasons, the Board has elected to prepare an IRFA to 
provide the public the fullest opportunity to comment on the proposed 
rule.\75\ An IRFA describes why an action is being proposed; the 
objectives and legal basis for the proposed rule; the number of small 
entities to which the proposed rule would apply; any projected 
reporting, recordkeeping, or other compliance requirements of the 
proposed rule; any overlapping, duplicative, or conflicting Federal 
rules; and any significant alternatives to the proposed rule that would 
accomplish the stated objectives, consistent with applicable statutes, 
and that would minimize any significant adverse economic impacts of the 
proposed rule on small entities.\76\ An IRFA also presents an 
opportunity for the public to provide comments that will shed light on 
potential compliance costs that are unknown to the Board or on any 
other part of the IRFA.
---------------------------------------------------------------------------

    \75\ After a review of the comments, the Board may elect to 
certify that the rule will not have a significant economic impact on 
a substantial number of small entities in the publication of the 
final rule. 5 U.S.C. 605(b).
    \76\ 5 U.S.C. 603(b).
---------------------------------------------------------------------------

    Detailed descriptions of this proposed rule, its purpose, 
objectives, and the legal basis are contained earlier in the SUMMARY 
and SUPPLEMENTARY INFORMATION sections. In brief, the proposed rule 
includes two provisions. First, in order to better protect employee 
privacy interests, the proposed rule modifies the current voter list 
provisions to eliminate the requirement that the employer provide 
``available personal email addresses'' and ``available home and 
personal cellular (`cell') telephone numbers'' of all eligible voters 
(including individuals permitted to vote subject to challenge) to the 
Regional Director and the other parties. Second, the proposed rule 
establishes a procedure to provide absentee ballots to employees on 
military leave in order to maximize their opportunity to participate in 
Board-conducted elections.

B. Description and Estimate of Number of Small Entities to Which the 
Rule Applies

    To evaluate the impact of the proposed rule, the Board first 
identified the universe of small entities that could be impacted by the 
changes to the voter list requirement and by the introduction of 
absentee balloting by employees on military leave.
    Both changes will apply to all entities covered by the National 
Labor Relations Act (``NLRA'' or ``the Act''). According to the United 
States Census Bureau, there were 5,954,684 businesses with employees in 
2016.\77\ Of those, 5,934,985 were small businesses with fewer than 500 
employees.\78\ Although the proposed rule would only apply to employers 
who meet the Board's jurisdictional requirement, the Board does not 
have the means to calculate the number of small businesses within the 
Board's jurisdiction.\79\ Accordingly, the Board assumes for purposes 
of this analysis that the great majority of the 5,934,985 small 
businesses could be impacted by the proposed rule.
---------------------------------------------------------------------------

    \77\ See U.S. Department of Commerce, Bureau of Census, 2016 
Statistics of U.S. Businesses (``SUSB'') Annual Data Tables by 
Establishment Industry, https://www.census.gov/data/tables/2016/econ/susb/2016-susb-annual.html (from downloaded Excel Table titled 
``U.S., 6-digit NAICS'').
    \78\ Id. The Census Bureau does not specifically define ``small 
business'' but does break down its data into firms with fewer than 
500 employees and those with 500 or more employees. Consequently, 
the 500-employee threshold is commonly used to describe the universe 
of small employers. For defining small businesses among specific 
industries, the standards are defined by the North American Industry 
Classification System (NAICS).
    \79\ Pursuant to 29 U.S.C. 152(6) and (7), the Board has 
statutory jurisdiction over private sector employers whose activity 
in interstate commerce exceeds a minimal level. NLRB v. Fainblatt. 
306 U.S. 601, 606-607 (1939). To this end, the Board has adopted 
monetary standards for the assertion of jurisdiction that are based 
on the volume and character of the business of the employer. In 
general, the Board asserts jurisdiction over employers in the retail 
business industry if they have a gross annual volume of business of 
$500,000 or more. Carolina Supplies & Cement Co., 122 NLRB 88 
(1959). But shopping center and office building retailers have a 
lower threshold of $100,000 per year. Carol Management Corp., 133 
NLRB 1126 (1961). The Board asserts jurisdiction over non-retailers 
generally where the value of goods and services purchased from 
entities in other states is at least $50,000. Siemons Mailing 
Service, 122 NLRB 81 (1959).
    The following employers are excluded from the NLRB's 
jurisdiction by statute:
    --Federal, state and local governments, including public 
schools, libraries, and parks, Federal Reserve banks, and wholly-
owned government corporations. 29 U.S.C. 152(2).
    --employers that employ only agricultural laborers, those 
engaged in farming operations that cultivate or harvest agricultural 
commodities or prepare commodities for delivery. 29 U.S.C. 152(3).
    --employers subject to the Railway Labor Act, such as interstate 
railroads and airlines. 29 U.S.C. 152(2).
---------------------------------------------------------------------------

    These two changes will also impact all labor unions, as 
organizations representing or seeking to represent employees. Labor 
unions, as defined by the NLRA, are entities ``in which employees 
participate and which exist for the purpose . . . of dealing with 
employers concerning grievances, labor disputes, wages, rates of pay, 
hours of employment, or conditions of work.'' \80\ The Small Business 
Administration's (``SBA'') ``small business'' standard for ``Labor 
Unions and Similar Labor Organizations'' is $7.5 million in annual 
receipts.\81\ In 2012, there were 13,740 labor unions in the U.S.\82\ 
Of these unions, 11,245 had receipts of less than $1,000,000; 2,022 
labor unions had receipts between $1,000,000 and $4,999,999; and 141 
had receipts between $5,000,000 and $7,499,999. In aggregate, 13,408 
labor unions (97.6% of total) are small businesses according to SBA 
standards.
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    \80\ 29 U.S.C. 152(5).
    \81\ See 13 CFR 121.201.
    \82\ The Census Bureau only provides data about receipts in 
years ending in 2 or 7. The 2017 data has not been published, so the 
2012 data is the most recent available information regarding 
receipts. See U.S. Department of Commerce, Bureau of Census, 2012 
SUSB Annual Data Tables by Establishment Industry, https://www2.census.gov/programs-surveys/susb/tables/2012/us_6digitnaics_r_2012.xlsx (Classification #813390--Labor Unions and 
Similar Labor Organizations).
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    The proposed change to the voter list requirement will only be 
applied as a matter of law under certain circumstances in Board 
proceedings, namely, when a petition has been filed pursuant Section 
9(c) of the Act and the Regional Director, based on that petition, has 
either approved an election agreement or directed an election. 
Therefore, the frequency with which the issue arises is indicative of 
the number of small entities most directly impacted by the proposed 
rule. For example, in Fiscal Year 2019, 1,179 petitions were filed and 
proceeded to an election.\83\ Each of these elections involved at least 
one employer and at least one labor union, but even so, this is only a 
de minimis amount of all small entities under the Board's jurisdiction.
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    \83\ ``Number of Elections Held in FY19,'' https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/number-elections-held-fy17.
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    Similarly, the number of small entities expected to be impacted by 
the provision of absentee ballots for military personnel is also low. 
Although in theory each party to an election could be affected by this 
proposed change, it is unlikely that every Board-conducted election 
will require absentee ballots for military personnel. But even if every 
election were to require such ballots, the number of parties involved 
is once again only a de minimis amount of all small entities under the 
Board's jurisdiction.

C. Recordkeeping, Reporting, and Other Compliance Costs

    The RFA requires agencies to consider the direct burden that 
compliance with a new regulation will likely impose on

[[Page 45566]]

small entities.\84\ Thus, the RFA requires the Board to determine the 
amount of ``reporting, recordkeeping and other compliance 
requirements'' imposed on small entities.\85\
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    \84\ See Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. 
Cir. 1985) (``[I]t is clear that Congress envisioned that the 
relevant `economic impact' was the impact of compliance with the 
proposed rule on regulated small entities.'').
    \85\ See 5 U.S.C. 603(b)(4), 604(a)(4).
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    The Board concludes that the proposed rule imposes no capital costs 
for equipment needed to meet the regulatory requirements; no lost sales 
and profits resulting from the proposed rule; no changes in market 
competition as a result of the proposed rule and its impact on small 
entities or specific submarkets of small entities; and no costs of 
hiring employees dedicated to compliance with regulatory 
requirements.\86\
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    \86\ SBA Guide at 37.
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    Small entities may incur some costs from reviewing the rule in 
order to understand the substantive changes. To become generally 
familiar with the revised voter list requirements and the military 
absentee ballot procedure, the Board estimates that a human resources 
specialist at a small employer or labor union may take at most ninety 
minutes to read the rule. It is also possible that a small employer or 
labor union may wish to consult with an attorney, which the Board 
estimates will require one hour. Using the Bureau of Labor Statistics' 
estimated wage and benefit costs, the Board has assessed these labor 
costs to be $147.12.\87\
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    \87\ For wage figures, see May 2017 National Occupancy 
Employment and Wage Estimates, found at https://www.bls.gov/oes/current/oes_nat.htm. The Board has been administratively informed 
that BLS estimates that fringe benefits are approximately equal to 
40 percent of hourly wages. Thus, to calculate total average hourly 
earnings, BLS multiplies average hourly wages by 1.4. In May 2017, 
average hourly wages for a Human Resources Specialist (BLS #13-1071) 
were $31.84. The same figure for a lawyer (BLS #13-1011) was $57.33. 
Accordingly, the Board multiplied each of those wage figures by 1.4 
and added them to arrive at its estimate.
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    The Board does not foresee any additional compliance costs related 
to eliminating the required disclosure of available personal email 
addresses and telephone numbers of employees and other individuals 
included on the voter list. For small employers, existing compliance 
costs are limited to gathering the required information (including 
available email addresses and telephone numbers), placing it in the 
proper format, and serving it on the Regional Director and the other 
parties within the required timeframe. The Board believes that removing 
the required disclosure of email addresses and telephone numbers will 
reduce existing compliance costs for small employers. There are no 
existing compliance costs for small unions with respect to the voter 
list requirement; they are merely obligated to refrain from misusing 
the list or the information contained therein. Removing email addresses 
and phone numbers from the list may result in some additional costs to 
small unions, who will now need to gather such information themselves 
or, failing that, resort to other methods of contacting eligible 
voters, but such costs do not involve compliance with the proposed 
change itself. Should a commenter provide data demonstrating the cost 
of eliminating provision of personal email addresses and telephone 
numbers, the Board will consider that information.
    The Board also believes that any additional compliance costs 
related to the provision of absentee ballots to employees on military 
leave will be de minimis. As proposed, all a party need do to comply 
with the change is timely inform the Board when it is aware of such 
voters; parties are not required to affirmatively ascertain whether 
such voters exist. A party's failure to comply may in some 
circumstances give rise to objections, related litigation, and 
potentially a second election, but the cost of compliance itself is 
merely the de minimis cost of telling the Board what the party knows 
with regard to employees on military leave when the party knows it. The 
proposed change may result in some situations where a final tally of 
ballots is delayed due to outstanding dispositive absentee ballots, but 
the Board does not think that such delay will result in additional 
costs because once the final tally of ballots issues, parties will have 
the usual allotted time to file objections. It is possible that the 
absentee balloting procedure may itself give rise to additional 
litigation surrounding whether absentee ballots were timely requested 
and/or provided to the absentee voter, improperly denied or provided, 
or whether late-arriving absentee ballots should have been counted. But 
the Board's proposed procedure addresses these contingencies and should 
accordingly minimize this type of litigation and the costs associated 
with it. Should a commenter provide data demonstrating the cost of 
instituting an absentee ballot procedure for employees on military 
leave, the Board will consider that information.

D. Overall Economic Impacts

    The Board does not find the estimated, quantifiable cost of 
reviewing and understanding the rule--$147.12 for small employers and 
unions--to be significant within the meaning of the RFA.
    In making this finding, one important indicator is the cost of 
compliance in relation to the revenue of the entity or the percentage 
of profits affected.\88\ Other criteria to be considered are the 
following:
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    \88\ See SBA Guide at 18.
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    --Whether the rule will cause long-term insolvency, i.e., the 
regulatory costs that may reduce the ability of the firm to make future 
capital investment, thereby severely harming its competitive ability, 
particularly against larger firms;
    --Whether the cost of the proposed regulation will (a) eliminate 
more than 10 percent of the businesses' profits; (b) exceed one percent 
of the gross revenues of the entities in a particular sector; or (c) 
exceed five percent of the labor costs of the entities in the 
sector.\89\
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    \89\ Id. at 19.
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    The minimal cost to read and understand the rule will not generate 
any such significant economic impacts.
    Since the only quantifiable impact that the Board has identified is 
the $147.12 that may be incurred in reviewing and understanding the 
rule, the Board does not believe there will be a significant economic 
impact on a substantial number of small entities associated with this 
proposed rule. The Board welcomes input from the public regarding 
additional costs of compliance not identified by the Board or costs of 
compliance the Board identified but lacks the means to accurately 
estimate.

E. Duplicate, Overlapping, or Conflicting Federal Rules

    Agencies are required to include in an IRFA ``all relevant Federal 
rules which may duplicate, overlap or conflict with the proposed 
rule.'' \90\ The Board has not identified any such federal rules, but 
welcomes comments that suggest any potential conflicts not noted in 
this section.
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    \90\ 5 U.S.C. 603(b)(5).
---------------------------------------------------------------------------

F. Alternatives Considered

    Pursuant to 5 U.S.C. 603(c), agencies are directed to look at ``any 
significant alternatives to the proposed rule which accomplish the 
stated objectives of applicable statutes and which minimize any 
significant impact of the proposed rule on small entities.'' 
Specifically, agencies must consider establishing different compliance 
or reporting requirements or timetable for small entities, simplifying 
compliance and reporting for small entities, using performance rather 
than design

[[Page 45567]]

standards, and exempting small entities from any part of the rule.\91\
---------------------------------------------------------------------------

    \91\ 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    First, the Board considered taking no action. Inaction would leave 
in place the current voter list requirements and would not provide 
absentee ballots for employees on military leave. However, for the 
reasons stated in Section I through III, the Board finds it desirable 
to revisit these policies and to do so through the rulemaking process. 
Consequently, the Board rejects maintaining the status quo.
    Second, the Board considered creating exemptions for certain small 
entities. This was rejected as impractical, considering that exemptions 
for small entities would substantially undermine the purposes of the 
proposed rule because such a large percentage of employers and unions 
would be exempt under the SBA definitions. Specifically, to exempt 
small entities from the decision to eliminate the required disclosure 
of available personal email addresses and telephone numbers from the 
voter list would leave the employees of most small entities with 
inadequate protection of their privacy interests and would in fact 
penalize small employers by requiring them to disclose more contact 
information than would be required of other employers. And to exempt 
small entities from the provision of absentee ballots to employees on 
military leave would be contrary to the purposes of the rule: To 
maximize the opportunity such employees have to participate in Board-
conducted elections.
    Moreover, given the very small quantifiable cost of compliance, it 
is possible that the burden on a small business of determining whether 
it fell within an exempt category might exceed the burden of 
compliance. Congress gave the Board very broad jurisdiction, with no 
suggestion that it wanted to limit the coverage of any part of the Act 
to only larger employers. As the Supreme Court has noted, ``[t]he 
[NLRA] is federal legislation, administered by a national agency, 
intended to solve a national problem on a national scale.'' \92\
---------------------------------------------------------------------------

    \92\ NLRB v. Natural Gas Utility Dist. of Hawkins County, 402 
U.S. 600, 603-604 (1971) (quotation omitted).
---------------------------------------------------------------------------

    Because no alternatives considered will accomplish the objectives 
of this proposed rule while minimizing costs for small businesses, the 
Board believes that proceeding with this rulemaking is the best 
regulatory course of action. The Board welcomes public comment on any 
facet of this IRFA, including alternatives that it has failed to 
consider.

Paperwork Reduction Act

    The NLRB is an agency within the meaning of the Paperwork Reduction 
Act (``PRA''). 44 U.S.C. 3502(1) and (5). The PRA creates rules for 
agencies for the ``collection of information,'' 44 U.S.C. 3507, which 
is defined as ``the obtaining, causing to be obtained, soliciting, or 
requiring the disclosure to third parties or the public, of facts or 
opinions by or for an agency, regardless of form or format.'' 44 U.S.C. 
3502(3)(A). Collections of information that occur ``during the conduct 
of an administrative action or investigation involving an agency 
against specific individuals or entities'' are exempt from the PRA. 44 
U.S.C. 3518(c)(1)(B)(ii); 5 CFR 1320.4(a)(2).
    As a preliminary matter, the elimination of the required provision 
of available personal telephone numbers and email addresses in the 
voter list does not require any collection of information--indeed, it 
reduces the information collected--so the PRA does not apply.
    Aside from that circumstance, the changes contained in this 
proposed rule are exempt from the PRA because any potential collection 
of information would take place in the context of a representation 
proceeding, which is an administrative action within the meaning of the 
PRA. As the Board noted in its 2014 rulemaking, the Senate Report on 
the PRA makes it clear that the exemption in ``Section 3518(c)(1)(B) is 
not limited to agency proceedings of a prosecutorial nature but also 
include[s] any agency proceeding involving specific adversary 
parties.'' 79 FR 74468 (quoting S. Rep. No. 96-930, at 56 (1980)). See 
also 5 CFR 1320.4(c) (OMB regulation interpreting the PRA, providing 
that exemption applies ``after a case file or equivalent is opened with 
respect to a particular party''). As the Board explained in its 2014 
rulemaking, ``[a] representation proceeding is . . . `against specific 
individuals or entities' within the meaning of section 
3518(c)(1)(B)(ii),'' and the outcome is binding on and thereby alters 
the legal rights of those parties. See 79 FR 74469. The proposed 
changes will apply within representation proceedings, and thus are 
administrative actions involving specific parties and fall within the 
PRA exemption.\93\
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    \93\ As acknowledged in the Initial Regulatory Flexibility 
Analysis above, the provision for absentee ballots to employees on 
military leave may result in litigation that may in turn result in 
rerun elections, and such litigation would not have been conducted 
and such elections would not have been held under the prior policy 
of not permitting absentee ballots. Nonetheless, particular 
collections of information required during the course of an election 
proceeding are not attributable to the instant proposed rule; 
instead, such requirements flow from prior rules. And in any event, 
even if such collections of information were attributable to this 
proposed rule, an election is a representation proceeding and 
therefore exempt from the PRA.
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    Accordingly, the proposed rules do not contain information 
collection requirements that require approval of the Office of 
Management and Budget under the PRA.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Claims, Equal access to 
justice, Freedom of information, Income taxes, Labor management 
relations, Lawyers, Privacy, Reporting and recordkeeping requirements, 
Sunshine Act.

Text of the Proposed Rule

    For the reasons discussed in the preamble, the Board proposes to 
amend 29 CFR part 102 as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

0
1. The authority citation for part 102 continues to read as follows:

    Authority:  Sections 1, 6, National Labor Relations Act (29 
U.S.C. 151, 156). Section 102.117 also issued under section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and Section 102.117a also issued under section 
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and 
(k)). Sections 102.143 through 102.155 also issued under section 
504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 
504(c)(1)).

0
2. Revise Sec.  102.62(d) to read as follows:


Sec.  102.62   Election agreements; voter list; Notice of Election.

* * * * *
    (d) Voter list. Absent agreement of the parties to the contrary 
specified in the election agreement or extraordinary circumstances 
specified in the direction of election, within 5 business days after 
the approval of an election agreement pursuant to paragraph (a) or (b) 
of this section, or issuance of a direction of election pursuant to 
paragraph (c) of this section, the employer shall provide to the 
Regional Director and the parties named in the agreement or direction a 
list of the full names, work locations, shifts, job classifications, 
and home addresses of all eligible voters. The employer shall also 
include in separate sections of that list the same information for 
those individuals who will be permitted to vote subject to challenge. 
In order to be timely filed and served, the list must be received by 
the Regional Director and the parties

[[Page 45568]]

named in the agreement or direction respectively within 5 business days 
after the approval of the agreement or issuance of the direction unless 
a longer time is specified in the agreement or direction. The list of 
names shall be alphabetized (overall or by department) and be in an 
electronic format approved by the General Counsel unless the employer 
certified that it does not possess the capacity to produce the list in 
the required form. When feasible, the list shall be filed 
electronically with the Regional Director and served electronically on 
the other parties named in the agreement or direction. A certificate of 
service on all parties shall be filed with the Regional Director when 
the voter list is filed. The employer's failure to file or serve the 
list within the specified time or in proper format shall be grounds for 
setting aside the election whenever proper and timely objections are 
filed under the provisions of Sec.  102.69(a)(8). The employer shall be 
estopped from objecting to the failure to file or serve the list within 
the specified time or in the proper format if it is responsible for the 
failure. The parties shall not use the list for purposes other than the 
representation proceeding, Board proceedings arising from it, and 
related matters.
* * * * *
0
3. Revise Sec.  102.67(l) to read as follows:


Sec.  102.67   Proceedings before the Regional Director; further 
hearing; action by the Regional Director; appeals from actions of the 
Regional Director; statement in opposition; requests for extraordinary 
relief; Notice of Election; voter list.

* * * * *
    (l) Voter list. Absent extraordinary circumstances specified in the 
direction of election, the employer shall, within 5 business days after 
issuance of the direction, provide to the Regional Director and the 
parties named in such direction a list of the full names, work 
locations, shifts, job classifications, and home addresses of all 
eligible voters. The employer shall also include in separate sections 
of that list the same information for those individuals who will be 
permitted to vote subject to challenge. In order to be timely filed and 
served, the list must be received by the Regional Director and the 
parties named in the direction respectively within 5 business days 
after issuance of the direction of election unless a longer time is 
specified therein. The list of names shall be alphabetized (overall or 
by department) and be in an electronic format approved by the General 
Counsel unless the employer certifies that it does not possess the 
capacity to produce the list in the required form. When feasible, the 
list shall be filed electronically with the Regional Director and 
served electronically on the other parties named in the direction. A 
certificate of service on all parties shall be filed with the Regional 
Director when the voter list is filed. The employer's failure to file 
or serve the list within the specified time or in proper format shall 
be grounds for setting aside the election whenever proper and timely 
objections are filed under the provisions of Sec.  102.69(a)(8). The 
employer shall be estopped from objecting to the failure to file or 
serve the list within the specified time or in the proper format if it 
is responsible for the failure. The parties shall not use the list for 
purposes other than the representation proceeding, Board proceedings 
arising from it, and related matters.
0
4. Revise Sec.  102.69(a)(1), (2), and (7) to read as follows:


Sec.  102.69   Election procedure; tally of ballots; objections; 
certification by the Regional Director; hearings; Hearing Officer 
reports on objections and challenges; exceptions to Hearing Officer 
reports; Regional Director decisions on objections and challenges.

    (a) Election procedure; tally; objections. (1) Unless otherwise 
directed by the Board, all elections shall be conducted under the 
supervision of the Regional Director in whose Region the proceeding is 
pending.
    (2) All elections shall be by secret ballot. The Regional Director 
shall provide absentee mail ballots for eligible voters or individuals 
permitted to vote subject to challenge who are on military leave upon 
timely notice from any party or person that such voters or individuals 
will otherwise be unable to vote in the election. Absent extraordinary 
circumstances, such notification will be timely if received by the 
Regional Director within 5 business days of the direction of election 
or approval of election agreement, and if accompanied by the mailing 
address at which the person can be reached while on leave. This 
paragraph (a)(2) does not in any way modify the requirement that the 
employer provide the voter list information required in Sec.  102.62(d) 
or Sec.  102.67(l). A party that was aware of a person on military 
leave but did not timely notify the Regional Director shall be estopped 
from objecting to the failure to provide such person with an absentee 
ballot. Absentee ballots must be returned to and received at the 
regional office within 30 calendar days from the date they are mailed 
to the employees by the Regional Director.
* * * * *
    (7) Upon conclusion of the election the ballots will be counted and 
a tally of ballots prepared and immediately made available to the 
parties. If the Regional Director has provided absentee ballots to 
employees on military leave, the time for returning such ballots 
remains open at the conclusion of the election, and absentee ballots 
remain outstanding, the tally of ballots shall include the number of 
absentee ballots that remain outstanding. If the outstanding absentee 
ballots are potentially dispositive, after the time for returning 
absentee ballots has passed the Regional Director shall determine 
whether the number of outstanding absentee ballots received since the 
initial tally of ballots is dispositive; if so, the Regional Director 
shall open and count any absentee ballots received since the election, 
and shall issue a revised tally of ballots. If the number of 
outstanding absentee ballots received since the initial tally of 
ballots is not dispositive, the initial tally of ballots shall be 
deemed final.
* * * * *

    Dated: July 15, 2020.
Roxanne L. Rothschild,
Executive Secretary, National Labor Relations Board.
[FR Doc. 2020-15596 Filed 7-28-20; 8:45 am]
BILLING CODE 7545-01-P