formal comments to the Board's proposed rule. - SEIU

solicitation may present” against the importance of a fair election process and an informed electorate.
The Board’s proposed rule appropriately balances these interests.
A. § 102.62(d) restriction on use of voter eligibility list is flawed and unworkable
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Although SEJU strongly supports the proposed revisions to the Excelsior list requirements, we
disagree with the proposed restriction in § 102.62(d) and § 102.67(j) which states: “The parties shall use
the list exclusively for purposes related to the representation proceeding and related Board proceedings.”
(“The Restriction”). The Restriction is unnecessary and ill-defined. It should not be included in the
final rule.
The NPRM is silent about the need for, as well as the parameters of, the Restriction. The
Restriction is stated in a single, short paragraph that has no explication of the meaning of the Restriction,
the problem the Restriction addresses, or a means of enforcement. This is particularly distressing
because the Restriction is a new concept without precedent. No restriction is imposed on parties’ use of
the eligibility list under Excelsior and Wyman-Gordon even though critics have long argued that the
Excelsior list invaded the employers’ rights, infringed employees’ privacy and was subject to abuse by
the union. The NPRM does not explain which of these concerns, or any others, are the motivation
behind the Restriction. A change in Board law of this significance should not be undertaken without a
well-thought Out and articulated argument demonstrating the need for such a change.
Employee privacy does not justify the Restriction. The proposed changes in the voter list that
implicate employee privacy are the provision of the telephone number and e-mail address, if available.
Non-employer parties already receive names and home addresses. Home visits by union staff are
routine in organizing drives and are more intrusive then phone calls or e-mails. The minimal additional
infringement of employee privacy falls far short of justifying a radical departure from Board law, which,
as shown below, will be impracticable to define or enforce.
The Restriction clearly would not apply to information that was obtained independently of the
voter list. But this raises several difficult definitional issues. Non-employer parties accumulate contact
information for many workers before the petition is filed, as they must in order to obtain a sufficient
showing of interest. Pro-union employees often provide contact information for other employees during
organizing drives, and often this contact information is incomplete, such as including a phone number
but no home address. Is it a “use of the list” within the meaning of the Restriction if the union contacts a
worker for whom it had a telephone number, but not a home address or an e-mail address? Is it “use of
the list” if the union could have obtained a phone number prior to receiving the list (because it had a
1d.
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