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

Published date29 July 2020
Record Number2020-15596
SectionProposed rules
CourtNational Labor Relations Board
Federal Register, Volume 85 Issue 146 (Wednesday, July 29, 2020)
[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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \83\ ``Number of Elections Held in FY19,'' https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/number-elections-held-fy17.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \86\ SBA Guide at 37.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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:
                ---------------------------------------------------------------------------
                 \88\ See SBA Guide at 18.
                ---------------------------------------------------------------------------
                 --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\
                ---------------------------------------------------------------------------
                 \89\ Id. at 19.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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
                

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