69–006 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 115–325 

EMPLOYEE PRIVACY PROTECTION ACT 

SEPTEMBER 25, 2017.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Ms. FOXX, from the Committee on Education and the Workforce, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 2775] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and the Workforce to whom was referred the bill (H.R. 2775) to amend the National Labor Relations 

Act to require that lists of employees eligible to vote in organizing 

elections be provided to the National Labor Relations Board, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Employee Privacy Protection Act’’. 

SEC. 2. LISTS OF EMPLOYEES ELIGIBLE TO VOTE IN ELECTIONS. 

Section 9(c)(1) of the National Labor Relations Act (29 U.S.C. 159(c)(1)) is amended by adding at the end the following: ‘‘Not earlier than 7 days after a final determination by the Board of the appropriate bargaining unit, the Board shall acquire 

from the employer a list of all employees eligible to vote in the election to be made 

available to all parties, which shall include the names of the employees, and not 

more than one additional form of personal contact information for the employee, 

(such as a telephone number, an email address, or a mailing address) chosen by the 

employee in writing.’’. 

2 

1The voter eligibility list is a list of employees who are presumed to be eligible to cast a vote 

in a union election. 2 357 NLRB No. 83 (2011). 

3 357 NLRB No. 72 (2011). 

4 357 NLRB No. 76 (2011). 

PURPOSE

H.R. 2775, the Employee Privacy Protection Act, protects employee privacy, modernizes the voter eligibility list,1 and empowers 

workers, while ensuring unions can continue to communicate with 

employees. The legislation ensures labor organizations will continue to receive a list of eligible voters within seven days of an election agreement or direction of an election. However, rather than requiring employers to provide each employee’s home address, as required under current law, the bill provides employees the right to 

choose the contact information provided to the union. 

COMMITTEE ACTION

112TH CONGRESS

Committee Hearing on National Labor Relations Board’s Unprecedented Rulemaking 

On July 7, 2011, the Committee on Education and the Workforce 

(Committee) held a hearing entitled ‘‘Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free 

Choice’’ on the National Labor Relations Board’s (NLRB) June 22, 

2011, proposed election procedure regulation. The proposal expanded the list of required employee contact information (Excelsior 

list) and reduced the time for production. Witnesses before the 

Committee agreed the proposal would have significantly hindered 

an employer’s ability to communicate with his or her employees 

and crippled an employee’s right to choose whether to be represented by a labor organization. Witnesses before the panel were 

the Honorable Peter C. Schaumber, Former NLRB Chairman, 

Washington, D.C.; Mr. Larry Getts, Tube Press Technician, Dana 

Corporation, Garrett, Indiana; Mr. John Carew, President, Carew 

Concrete & Supply Company, Appleton, Wisconsin, representing 

himself and the National Ready Mixed Concrete Association; Mr. 

Michael J. Lotito, Attorney, Jackson Lewis LLP, San Francisco, 

California; and, Mr. Kenneth Dau-Schmidt, Professor, Indiana University, Maurer School of Law, Bloomington, Indiana. 

Committee Hearing on NLRB’s Decision to Disfranchise Employees 

in Union Elections 

On September 22, 2011, the Committee held a hearing on the 

‘‘Culture of Union Favoritism: Recent Actions of the National Labor 

Relations Board.’’ In August 2011, the NLRB issued a number of 

biased anti-worker decisions, including Specialty Healthcare and 

Rehabilitation Center of Mobile (Specialty Healthcare),2 Lamons 

Gasket Company,3 and UGL–UNICCO Service Company.4 Additionally, the NLRB finalized a rule requiring almost every employer to 

post a vague, union-biased notice on employee National Labor Relations Act (NLRA) rights. The NLRB’s unbridled overreach of authority demanded a complete examination by the Committee. Witnesses before the Committee included Mr. Curtis L. Mack, Partner, 

3 

McGuireWoods LLP, Atlanta, Georgia; Ms. Barbara A. Ivey, Employee, Kaiser Permanente, Keizer, Oregon; Mr. Arthur J. Martin, 

Partner, Schuchat, Cook & Werner, St. Louis, Missouri; and Mr. G. 

Roger King, Partner, Jones Day, Columbus, Ohio. 

Introduction of H.R. 3094, Workforce Democracy and Fairness Act 

On October 5, 2011, then-Committee Chairman John Kline (R– 

MN) introduced H.R. 3094, the Workforce Democracy and Fairness 

Act, with 26 cosponsors. Recognizing the NLRB had moved far beyond an adjudicative body designed to implement congressional intent under the NLRA, the legislation sought to (1) reinstate the 

traditional standard for determining which employees comprise an 

appropriate bargaining unit; (2) ensure employers can participate 

in a fair union election; (3) guarantee workers have the ability to 

make a fully informed decision in a union election; and, (4) safeguard employee privacy by allowing workers to decide the type of 

personal information provided to a union. 

Committee Legislative Hearing on H.R. 3094, Workforce Democracy 

and Fairness Act 

On October 12, 2011, the Committee held a legislative hearing 

on H.R. 3094. Witnesses included the Honorable Charles Cohen, 

Senior Counsel, Morgan, Lewis and Bockius LLP and Former Member, National Labor Relations Board, Washington, D.C.; Mr. Robert 

Sullivan, President, RG Sullivan Consulting, Westmoreland, New 

Hampshire, representing the Retail Industry Leaders Association; 

Mr. Michael J. Hunter, Partner, Hunter, Carnahan, Shoub, Byard 

and Harshman, Columbus, Ohio; and, Mr. Phillip Russell, Attorney, Ogletree Deakins, Tampa, Florida. 

Committee Consideration of H.R. 3094, Workforce Democracy and 

Fairness Act 

On October 26, 2011, the Committee considered H.R. 3094. ThenChairman Kline offered an amendment in the nature of a substitute. Nine additional amendments were offered and debated; 

however, no additional amendments were adopted. The Committee 

favorably reported H.R. 3094 to the House of Representatives by a 

vote of 23 to 16. 

House Passage of H.R. 3094, Workforce Democracy and Fairness 

Act 

On November 30, 2011, the House of Representatives considered 

H.R. 3094, as amended by the Committee. Four amendments and 

an amendment in the nature of a substitute were offered, but none 

were adopted. The House passed H.R. 3094 by a bipartisan vote of 

235 to 188. The bill was not considered by the Senate prior to the 

conclusion of the 112th Congress. 

113TH CONGRESS

Subcommittee Hearing on Union Organizing 

On September 19, 2013, the Subcommittee on Health, Employment, Labor, and Pensions (HELP) held a hearing on ‘‘The Future 

of Union Organizing’’ to examine the future of NLRB representational elections. Witnesses were Mr. David R. Burton, General 

4 

Counsel, National Small Business Association, Washington, D.C.; 

Mr. Clarence Adams, Field Technician, Cablevision, Brooklyn, New 

York; Mr. Ronald Meisburg, Member of the Firm, Proskauer, 

Washington, D.C.; and Mr. Stefan J. Marculewicz, Shareholder, 

Littler Mendelson, Washington, D.C. 

Committee Hearing on the NLRB’s Proposed Ambush Election Rule 

On March 5, 2014, the Committee held a hearing entitled ‘‘Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.’’ Ms. Doreen S. Davis, Partner, Jones Day, New York, 

New York; Mr. Steve Browne, Vice President of Human Resources, 

LaRosa, Cincinnati, Ohio; Ms. Caren P. Spencer, Shareholder, 

Weinberg, Roger & Rosenfeld P.C., Alameda, California; and, Mr. 

William Messenger, Staff Attorney, National Right to Work Legal 

Defense Foundation, Inc., Springfield, Virginia, testified before the 

Committee. The witnesses stated the February 6, 2014, proposed 

ambush election rule, like its predecessor, would substantially limit 

the opportunity for a full evidentiary hearing or NLRB resolution 

of contested issues, including voter eligibility. 

Introduction of H.R. 4321, Employee Privacy Protection Act 

On March 27, 2014, then-HELP Subcommittee Chairman David 

‘‘Phil’’ Roe (R–TN) introduced H.R. 4321, the Employee Privacy Protection Act, with 20 cosponsors. With the NLRB’s ambush election 

rule undermining employee privacy, the legislation was necessary 

to ensure employees could choose what personal information was 

provided to a union. 

Committee Consideration of H.R. 4321, Employee Privacy Protection 

Act 

On April 9, 2014, the Committee considered H.R. 4321. HELP 

Subcommittee Chairman Roe offered an amendment in the nature 

of a substitute to make a technical change to clarify employees only 

have to provide one form of personal contact information. Two additional amendments were offered and debated but were not adopted. 

The Committee favorably reported H.R. 4321 to the House of Representatives by a vote of 21 to 17. 

114TH CONGRESS

Subcommittee Legislative Hearing on H.J. Res. 29, Providing for 

Congressional Disapproval of the NLRB’s Ambush Election 

Rule 

On March 4, 2015, the HELP Subcommittee held a legislative 

hearing entitled ‘‘H.J. Res. 29, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule 

submitted by the National Labor Relations Board relating to representation case procedures.’’ This Joint Resolution would have disapproved and nullified the NLRB’s December 15, 2014, rule relating to representation case procedures. Witnesses testified to the urgent need for Congress to overturn the NLRB’s ambush election 

rule because of its negative consequences for workers and families. 

Witnesses were Ms. Brenda Crawford, Registered Nurse, Murrieta, 

California; Mr. Roger King, Senior Labor and Employment Counsel, testifying on behalf of the Retail Industry Leaders Association, 

5 

Washington, D.C.; Mr. Arnold E. Perl, Member, Glankler Brown, 

Memphis, Tennessee; and Mr. Glenn M. Taubman, Staff Attorney, 

National Right to Work Legal Defense and Education Foundation, 

Inc., Springfield, Virginia. 

Introduction of H.R. 1767, Employee Privacy Protection Act 

On April 14, 2015, then-HELP Subcommittee Chairman Roe introduced H.R. 1767, the Employee Privacy Protection Act, with two 

original cosponsors. The text of H.R. 1767 was identical to the text 

of H.R. 4321 from the 113th Congress. 

115TH CONGRESS

Subcommittee Hearing on Restoring Balance and Fairness to the 

NLRB 

On February 14, 2017, the HELP Subcommittee held a hearing 

entitled ‘‘Restoring Balance and Fairness to the National Labor Relations Board.’’ Witnesses discussed the harmful consequences of 

several NLRB actions, including the ambush election rule, which 

cripples worker free choice. Witnesses were Ms. Reem Aloul, 

BrightStar Care of Arlington, Arlington, Virginia, on behalf of the 

Coalition to Save Local Business; Ms. Susan Davis, Partner, Cohen, 

Weiss, and Simon, LLP, New York, New York; Mr. Raymond J. 

LaJeunesse, Jr., Vice President and Legal Director, National Right 

to Work Legal Defense Foundation, Inc., Springfield, Virginia; and, 

Mr. Kurt G. Larkin, Labor Attorney, Hunton & Williams, LLP, 

Richmond, Virginia. 

Introduction of H.R. 2775, Employee Privacy Protection Act 

On June 6, 2017, Rep. Joe Wilson (R–SC) introduced H.R. 2775, 

the Employee Privacy Protection Act, with seven cosponsors. The 

text of H.R. 2775 is identical to the text of H.R. 1767 from the 

114th Congress, which was referred to the Committee in April 

2015. 

Subcommittee Legislative Hearing on H.R. 2776, H.R. 2775, and 

H.R. 2723 

On June 14, 2017, the HELP Subcommittee held a hearing entitled ‘‘Legislative Reforms to the National Labor Relations Act: H.R. 

2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee 

Privacy Protection Act; and H.R. 2723, Employee Rights Act.’’ Witnesses testified about the need for H.R. 2775 to fix the increased 

burden on employers of requiring additional employee information 

to be given to a union with little prior notice. Witnesses also testified that H.R. 2775 would protect workers and provide workers’ 

choice in determining what personal information may be shared 

with a union. Witnesses were Mr. Seth H. Borden, Partner, 

McGuireWoods LLP, New York, NY.; Mr. Guerino J. Calemine, III, 

General Counsel, Communications Workers of America, Washington, D.C.; Ms. Karen Cox, Dixon, Illinois; and, Ms. Nancy 

McKeague, Senior Vice President and Chief of Staff, Michigan 

Health and Hospital Association, Okemos, Michigan, on behalf of 

the Society for Human Resource Management. 

6 

5The NLRA does not cover all employees and employers in the United States. For example, 

public sector employers (state, local, and federal employees), employers covered by the Railway 

Labor Act (airlines and railroads), agricultural labor, and supervisors are not covered by the act. 

29 USC § 152(2). 6 29 U.S.C. § 141 et. seq. 

7 Archibald Cox, Some Aspects of the Labor Management Relations Act of 1974, 61 Harv. L. 

Rev. 1, 4 (1947). 8 29 U.S.C. § 157. 

9 29 U.S.C. § 158. 

10 29 U.S.C. § 158(c). 11 29 U.S.C. § 159(d). 12 NLRB v. Savair Mfg, 414 U.S. 270, 278 (1973). 13 Excelsior Underwear Inc., 156 NLRB 1236 (1966). 

Committee Consideration of H.R. 2775, Employee Privacy Protection 

Act 

On June 29, 2017, the Committee considered H.R. 2775, the Employee Privacy Protection Act. Rep. Wilson offered an amendment in 

the nature of a substitute, making a technical change to clarify employees only have to provide one form of personal contact information, which was adopted. Additional amendments were offered and 

debated but were not adopted. The Committee favorably reported 

H.R. 2775, as amended, to the House of Representatives by a vote 

of 22 to 16. 

SUMMARY

The Employee Privacy Protection Act, H.R. 2775, ensures labor 

organizations will continue to receive a list of eligible voters within 

seven days of an election agreement or direction of election. The 

bill modernizes the process, while providing employees the right to 

choose how they wish to be contacted by a union. 

COMMITTEE VIEWS

In 1935, Congress passed the NLRA, guaranteeing the right of 

most private sector employees 5 to organize and select their own 

representative. In 1947, Congress passed the most significant 

amendment to the NLRA, the Taft-Hartley Act 6 (Taft-Hartley), 

abandoning ‘‘the policy of affirmatively encouraging the spread of 

collective bargaining [and] striking a new balance between protection of the right to self-organization and various opposing claims.’’ 7

Taft-Hartley clarified employees have the right to refrain from participating in union activity,8 created new union unfair labor practices,9 codified employer free speech,10 and made changes to the determination of bargaining units.11

The NLRA established the NLRB, an independent federal agency, to fulfill two principal functions: (1) to prevent and remedy employer and union unlawful acts (called unfair labor practices or 

ULPs) and (2) to determine by secret ballot election whether employees wish to be represented by a union. In determining whether 

employees wish to be represented by a union, the NLRA is wholly 

neutral.12

To promote free and informed choice in union elections, in the 

1966 Excelsior Underwear Inc. case, the NLRB created a requirement that employers must provide a list of all eligible voters and 

their home addresses to the union(s) seeking representation prior 

to the election.13 This list is commonly referred to as the Excelsior 

list. Currently, within two days of the regional director’s pre-election decision or approval of the election agreement, the employer 

7 

14 National Labor Relations NLRB Casehandling Manual ¶ 11312. 15 Id. 16 NLRB, REPRESENTATION PETITIONS (2017), https://www.nlrb.gov/news-outreach/ 

graphs-data/petitions-and-elections/representation-petitions-rc. 17 79 Fed. Reg. at 7324. 18 Id. 19 Id. 20 NLRB, supra note 15. 21 NLRB, TABLE 2: TYPES OF UNFAIR LABOR PRACTICES ALLEGED, FISCAL YEAR 

2010, https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1696/table_2.pdf. 22Legislative Reforms to the National Labor Relations Act: H.R. 2776, Workforce Democracy 

and Fairness Act; H.R. 2775, Employee Privacy Protection Act; and, H.R. 2723, Employee Rights 

Act: Hearing before the Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. 

on Educ. and the Workforce, 115th Cong., 12 (2017). (written testimony of Seth Borden) [hereinafter Borden]. 

must file the Excelsior list with the regional director (from 1996 

through 2014, employers had seven days to provide this information).14 The regional director makes the list available to all parties. 

Unless waived, the non-employer parties, most commonly the 

union(s) seeking representation, must have at least 10 days to review the list prior to the election.15 Under this procedure (including 

the seven-day timeframe), unions won over two-thirds of representational elections in Fiscal Year (FY) 2014.16

In February 2014, in a rare exercise of formal rulemaking, the 

NLRB published in the Federal Register a Notice of Proposed Rulemaking, which became final on December 15, 2014, and took effect 

on April 14, 2015. This rule adds additional information to the Excelsior list and cuts the timeframe for its production.17 In addition 

to employee names and addresses, the employer now must provide 

unit employees’ phone numbers, email addresses, work locations, 

shift information, and job classifications.18 Absent extraordinary 

circumstances or party agreement, this information must be provided to the union within two days of the regional director’s decision or approval of the election agreement.19 Under this new procedure, unions won over 72 percent of representational elections in 

FY 2016.20

Privacy Implications of an Expanded Excelsior List 

The inclusion of employee phone numbers and email addresses 

on the Excelsior list further encroaches on employee privacy. Moreover, providing unions with employees’ phone numbers, email addresses, and home addresses without consent puts employees and 

their families at risk of coercion and intimidation. The NLRB reported that in FY 2010 unions faced a total of 6,338 unfair labor 

practice allegations; 80.6 percent of those charges were cases where 

a union attempted to ‘‘restrain or coerce employees in the exercise 

of the rights guaranteed’’ by the NLRA (Sec. 8(b)(1)).21

The December 2014 rule provides only a vague warning that this 

information should not be misused. It states that employee information shall not be used ‘‘for purposes other than the representation proceeding, Board proceedings arising from it, and related 

matters.’’ Seth Borden, a Partner at McGuireWoods LLP, testified 

at a June 14, 2017, HELP Subcommittee hearing that ‘‘despite numerous comments seeking assurances about enforcement of this 

provision, the Board declined to include any specific mechanisms to 

protect against abuse.’’ 22

8 

23 NLRB, supra note 21. 24Legislative Hearing on H.R. 2346, Secret Ballot Protection Act, and H.R. 2347, Representation Fairness Restoration Act: Hearing before the Subcomm. on Health, Employment, Labor and 

Pensions of the H. Comm. on Educ. and the Workforce, 113th Cong., 2 (2013) (written testimony 

of Marlene Felter). 25 Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ 

Free Choice: Hearing before the H. Comm. on Educ. and the Workforce, 112th Cong., 2 (2011) 

(written testimony of Larry Getts). 26 Id. at 2–3. 27Parrish, Jennifer, A breath of employee freedom, The Washington Times (Aug. 7, 2014), 

http://www.washingtontimes.com/news/2014/aug/7/parrish-a-breath-of-employee-freedom/. 

Employees clearly face significant and, at times, unlawful union 

pressure.23 However, union communications need not be unfair 

labor practices or criminal acts to be unwelcome. In testimony before the HELP Subcommittee witnesses described their negative 

and unwelcome experiences with union organizers. 

In her June 2013 testimony, Ms. Marlene Felter, a medical 

records coder at Chapman Medical Center in Orange, California, 

stated the following: 

From July to November 2011, my co-workers reported 

that [Service Employees International Union] operatives 

were calling them on their cell phones, coming to their 

homes, stalking them, harassing them, and even offering 

to buy them meals at restaurants to convince them to sign 

union cards.24

In his June 2011 testimony, Mr. Larry Getts, a Dana Corporation 

employee in Fort Wayne, Indiana, stated the following: 

On a daily basis[,] my coworkers and I would find UAW 

officials waiting in our break room. They’d approach us 

during our lunch breaks. They would even follow us to our 

vehicles at the end of the day and some of us even to our 

homes.25

Not surprisingly, Mr. Getts said he would object to his employer 

providing his phone number and email address to a union.26

In a 2014 Washington Times article, Ms. Jennifer Parrish described her alarming experience with a Service Employees International Union organizer, saying: 

My story starts in the spring of 2006, when a man I’d 

never met walked into my Minnesota home and asked for 

my signature on what he claimed was a petition asking 

the state for health insurance for child care providers like 

myself (sic). As it happened, I already had health insurance, and I didn’t feel it was the state’s responsibility to 

provide it to me. 

I repeatedly declined to sign his petition, but this wasn’t 

enough. The gentleman grew angry, and his demands became louder and more insistent. His behavior was alarming; to get him to leave, I promised to sign his card later 

if he would return after I had time to look it over.27

On June 14, 2017, at a HELP Subcommittee hearing, Ms. Karen 

Cox testified about her experience attempting to decertify an unwanted union and how her privacy was infringed upon as a result. 

She stated the following: 

9 

28Legislative Reforms to the National Labor Relations Act: H.R. 2776, Workforce Democracy 

and Fairness Act; H.R. 2775, Employee Privacy Protection Act; and, H.R. 2723, Employee Rights 

Act: Hearing before the Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. 

on Educ. and the Workforce, 115th Cong., 2 (2017) (written testimony of Karen Cox). 29 AT&T Workers Petition U.S. Supreme Court to Overturn Union Exemption for Identity 

Theft Laws, National Right to Work Legal Defense Foundation, Inc. (July 19, 2012), http:// 

www.nrtw.org/en/press/2012/07/fisher-supreme-court-appeal-07192012. 30 Id. 31 Union Settles Lawsuit Alleging Identity Theft in Retaliation Campaign against Independent 

Worker, National Right to Work Legal Defense Foundation, Inc. (May 9, 2009), http:// 

www.nrtw.org/en/press/2009/05/union-settles-lawsuit-alleging-ident. 32 Id. 33 Id. 34 Id. 35Legislative Reforms to the National Labor Relations Act: H.R. 2776, Workforce Democracy 

and Fairness Act; H.R. 2775, Employee Privacy Protection Act; and, H.R. 2723, Employee Rights 

Act: Hearing before the Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. 

on Educ. and the Workforce, 115th Cong., 5 (2017) (written testimony of Nancy McKeague). 

In November 2012, I made the two-hour trip to Peoria 

and filed the first petition with the NLRB. On my way 

back[,] I got a phone call from my dad. He told me a union 

rep contacted him and mentioned something about people 

losing their jobs and said that I needed to settle my grievances. My dad said, ‘Watch your back, because that was a 

threat.’ I was shocked.28

Of equal concern are alleged union misuses of personal employee 

information outside an organizing campaign. In the fall of 2007, 33 

AT&T employees at the company’s Burlington, North Carolina facility resigned from Communication Workers of America (CWA) 

membership and ceased paying union dues.29 In apparent retaliation, the CWA Local posted the 33 AT&T employees’ names and social security numbers on a publicly accessible bulletin board located 

in a hallway close to the building entrance, stating the employees 

had resigned from the union and ceased paying dues.30

In 2009, Ms. Patricia Pelletier, an employee of the Connecticut 

Student Loan Foundation, organized an effort to decertify the 

CWA.31 In response, CWA representatives allegedly forged 

Pelletier’s signature on numerous magazine subscriptions and 

product solicitations.32 As a result, Pelletier received numerous unwanted pieces of mail. Not only was Pelletier forced to spend many 

hours canceling subscriptions, she was also billed for thousands of 

dollars by magazine companies.33 Ultimately, Ms. Pelletier filed a 

lawsuit against the union that was settled.34

At a June 14, 2017, HELP Subcommittee hearing, Ms. Nancy 

McKeague, Senior Vice President and Chief of Staff of the Michigan Health and Hospital Association, testifying on behalf of the Society of Human Resource Management, noted that from a HR professional’s perspective the new requirements were ‘‘abhorrent.’’ She 

stated, ‘‘If we begin to provide to a third party, without employees’ 

consent, personal information such as home addresses, home telephone numbers, cell phone numbers, and shift schedules, how long 

do you think the employee will trust us with the rest of the employment information we keep?’’ 35

Additionally, there is a threat from mishandled or unprotected 

personal data. At the same hearing, Mr. Seth H. Borden, Partner 

at McGuireWoods LLP in New York City, New York, testified to 

the following: 

The more significant risks, however, go far beyond the 

prospect that a union might intentionally misuse this emVerDate Sep 11 2014 02:12 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR325.XXX HR325
10 

36 Borden, supra note 22 at 12. 37 E-mail from Gina Stevens, Congressional Research Service American Law Division, to 

Marvin Kaplan, former-Workforce Policy Counsel, House Education and the Workforce Committee (Aug. 12, 2014, 11:08 EST) (on file with author). 

ployee personal contact information. Nowadays, no one is 

immune from the dangers of data piracy. The risks of falling victim to hacking, ‘phishing’ attacks, and/or identity 

theft are all increased by the volume of unwanted email or 

text message engagement directed at employees. Nothing 

in the rule dictates what measures should be taken to protect this information for example, whether it might be 

stored on secured networks only, or whether it must be destroyed upon resolution of the petition, etc. The [NLRB] 

glossed over all these very real concerns.36

As these examples illustrate, employees face unwelcome, even 

unlawful, union coercion and intimidation, as well as union misuse 

of their personally identifiable information. Providing additional 

private personal information to unions will only increase these incidents. 

Necessary Legislation To Address Unnecessary Encroachment on 

Employee Privacy 

The Employee Privacy Protection Act addresses the shortcomings 

of the NLRB’s December 15, 2014, changes to union election procedures by modernizing the Excelsior list, while protecting employee 

privacy by empowering workers. Seven days after the regional director’s pre-election decision or approval of the election agreement, 

employers will be required to provide a list of eligible employees. 

The list shall include employee names and one additional piece of 

personal contact information. The additional piece of information, 

such as a phone number, an email address, or a home address, will 

be chosen in writing by employees, thereby ensuring effective union 

communication and modernizing the Excelsior list while protecting 

employee privacy by allowing employees to choose how to be contacted by the union. 

Privacy Protection 

Congress has acted repeatedly to protect personally identifiable 

information. The following are examples of federal laws that include protections for personally identifiable information: 37

• The Fair Credit Reporting Act of 1970 (FCRA) sets forth 

rights for individuals and responsibilities for consumer ‘‘credit 

reporting agencies’’ in connection with the preparation and dissemination of personal information in a consumer report. 

Under the FCRA, consumer reporting agencies are prohibited 

from disclosing consumer reports to anyone who does not have 

a permissible purpose. 

• The Family Educational Rights and Privacy Act of 1974 

governs access to and disclosure of educational records to parents, students, and third parties. 

• The Right to Financial Privacy Act of 1978 restricts the 

ability of the federal government to obtain bank records from 

financial institutions and sets forth procedures for the federal 

government’s access to bank customer records. 

11 

38 National Do Not Call Registry, Federal Trade Commission, http://www.consumer.ftc.gov/articles/0108-national-do-not-call-registry (last visited Aug. 2, 2017). 39 Id. 40FTC Issues FY 2012 National Do Not Call Registry Data Book, Federal Trade Commission, 

http://www.ftc.gov/news-events/press-releases/2012/10/ftc-issues-fy-2012-national-do-not-call-registry-data-book (last visited Aug. 2, 2017). 41 Annual Estimates of the Resident Population for Selected Age Groups by Sex for the United 

States, States, Counties, and Puerto Rico Commonwealth and Municipios: April 1, 2010 to July 

1, 2014. United States Census Bureau, https://factfinder.census.gov/faces/tableservices/jsf/pages/ 

productview.xhtml?src=bkmk (last visited on Sep. 8, 2017). 

• The Cable Communications Policy Act of 1984 limits the 

disclosure of cable television subscriber names, addresses, and 

utilization information for mail solicitation purposes. 

• The Video Privacy Protection Act of 1988 regulates the 

treatment of personal information collected in connection with 

video sales and rentals. 

• The Driver’s Privacy Protection Act of 1994 regulates the 

use and disclosure of personal information from state motor vehicle records. 

• The Health Insurance Portability and Accountability Act of 

1996 set a deadline of August 1999 for congressional action on 

privacy legislation for electronically transmitted health information and required the secretary of Health and Human Services to issue final privacy regulations by February 2000 in the 

absence of congressional action. 

• The Communications Act of 1934, as amended by the Telecommunications Act of 1996, limits the use and disclosure of 

customer proprietary network information by telecommunications service providers and provides a right of access for individuals. 

• The Children’s Online Privacy Protection Act of 1998 requires parental consent to collect a child’s age or address and 

requires sites collecting information from children to disclose 

how they plan to use the data. 

• The Gramm-Leach-Bliley Act of 1999 requires financial institutions to disclose their privacy policies to their customers. 

Customers may opt out of sharing personal information, and 

the institutions may not share account numbers with non-affiliated telemarketers and direct marketers. 

The National Do Not Call Registry, authorized by the bipartisan 

Telemarketing and Consumer Fraud and Abuse Prevention Act, provides insight into American sentiment on this issue. The National 

Do Not Call Registry gives Americans the opportunity to limit the 

telemarketing calls they receive.38 Once registered on the National 

Do Not Call Registry, covered telemarketers must cease calling the 

registered number within 31 days.39 According to the Federal 

Trade Commission, at the end of FY 2012 the National Do Not Call 

Registry contained approximately 217 million actively registered 

phone numbers.40 In 2012, the U.S. population was approximately 

314 million,41 suggesting the vast majority of Americans would object to having an employer provide their personal information to 

any third party. 

Former Rep. John Dingell (D–MI) stated during debate on the 

Do-Not-Call Implementation Act that the ‘‘national [Do Not Call 

Registry] will allow consumers to limit . . . unwanted intrusions 

12 

42DO-NOT-CALL IMPLEMENTATION ACT. Congressional Record. February 12, 2003, 108th 

Congress, 1st Session .Issue: Vol. 149, No. 26 43 Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). 44 Excelsior Underwear Inc., 156 NLRB 1236 (1966). 45 U.S. POSTAL SERVICE: A DECADE OF FACTS AND FIGURES, United States Postal Service, 

https://about.usps.com/who-we-are/postal-facts/decade-of-facts-and-figures.htm (last visited Aug. 

2, 2017). 46 NUMBER OF ADULT E-MAIL USERS IN THE UNITED STATES FROM 2012 TO 2017 (in millions), 

Statista, https://www.statista.com/statistics/253794/number-of-adult-e-mail-users-in-the-unitedstates/ (last visited Aug. 2, 2017). 47Mobile Technology Fact Sheet, Pew Research Center Internet Project, http:// 

www.pewinternet.org/fact-sheet/mobile/ (last visited Aug. 2, 2017). 

and once again answer their telephones without aggravation.’’ 42

Like the National Do Not Call Registry, the Employee Privacy Protection Act limits unwanted intrusions. However, recognizing the 

importance of a free and informed choice in union elections, the 

Employee Privacy Protection Act does not forbid employers from 

providing employee information to a union. Instead, the Employee 

Privacy Protection Act modernizes the Excelsior list and allows employees to choose what personal information is provided to the 

union. 

Modernized Union Communication 

Under current rules, labor organizations have multiple avenues 

through which they may contact employees to encourage support 

for the union. In general, employees may solicit support in the 

workplace during non-work time, including breaks and lunch.43

Given that unions win over two-thirds of representational elections, 

having employee phone numbers and email addresses is not essential to secure employee support. However, the Employee Privacy 

Protection Act recognizes that the Excelsior list promotes free and 

informed choice, but it is outdated. As such, the Employee Privacy 

Protection Act codifies a modernized Excelsior list that protects employee privacy and choice. 

The ways individuals communicate has changed significantly 

since 1966 when the NLRB created the Excelsior list. At the time, 

traditional mail was one of the most widely used forms of communication.44 However, the use of traditional mail has declined significantly in recent years. From 2007 to 2016, single-piece FirstClass Mail volume dropped by approximately 22.6 billion pieces.45

In contrast, the use of email and cell phones has risen significantly. 

According to Statista, there are 203.8 million adult email users in 

the United States.46 According to Pew Research, as of January 

2017 95 percent of American adults have a cell phone, 77 percent 

of which are smartphones.47 The Employee Privacy Protection Act 

modernizes the Excelsior list to allow employees to provide a personal email address or phone number in lieu of a home address. 

However, to ensure employee privacy and choice, the Employee Privacy Protection Act leaves it to the individual employee to choose 

which piece of personal information is provided to the union. 

CONCLUSION

Over the last several years, the NLRB has issued multiple decisions and rules intended to unbalance labor relations to benefit organized labor. One of the most significant of these recent actions 

was the NLRB’s December 15, 2014, rulemaking regarding election 

procedures. The changes to the Excelsior list unnecessarily infringe 

13 

on employee privacy. The Employee Privacy Protection Act protects 

employee privacy by providing employees with the power to choose 

what personal contact information is provided to the union. 

SECTION-BY-SECTION

The following is a section-by-section analysis of the Amendment 

in the Nature of a Substitute offered by Rep. Wilson and reported 

favorably by the Committee. 

Section 1. Provides that the short title is the ‘‘Employee Privacy 

Protection Act.’’ 

Section 2. Amends the National Labor Relations Act to reverse 

the December 15, 2014, changes to representational election procedures by establishing the composition of and timetable upon which 

the employer must provide a list of eligible voters. Seven days after 

the final determination by the NLRB of the appropriate bargaining 

unit, the NLRB shall acquire the list of eligible employees from the 

employer and make it available to all parties. The list shall include 

the employee names and one additional form of personal employee 

contact information, such as telephone number, email address, or 

mailing address, chosen by the employee in writing. 

EXPLANATION OF AMENDMENTS

The amendments, including the amendment in the nature of a 

substitute, are explained in the body of this report. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch. H.R. 2775, the 

Employee Privacy Protection Act, protects employee privacy, modernizes the voter eligibility list, and empowers workers, while ensuring unions can continue to communicate with employees. 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 

provisions of the reported bill include unfunded mandates. This 

issue is addressed in the CBO letter. 

EARMARK STATEMENT

H.R. 2775 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of 

House Rule XXI. 

ROLL CALL VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee Report to include for each record vote 

on a motion to report the measure or matter and on any amendments offered to the measure or matter the total number of votes 

for and against and the names of the Members voting for and 

against. 

14 


Insert offset folio 15 here HR325.001
15 


Insert offset folio 16 here HR325.002
16 


Insert offset folio 17 here HR325.003
17 


Insert offset folio 18 here HR325.004
18 


Insert offset folio 19 here HR325.005
19 


Insert offset folio 20 here HR325.006
20 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause (3)(c) of House Rule XIII, the goal of 

H.R. 2775 are to protect employee privacy, modernize the voter eligibility list, and empower workers, while ensuring unions can continue to communicate with employees. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 2775 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting H.R. 2775 does not specifically direct the completion of any specific rule makings within 

the meaning of 5 U.S.C. 551. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

body of this report. 

NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the 

Committee has received the following estimate for H.R. 2775 from 

the Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, Washington, DC, July 24, 2017. 

Hon. VIRGINIA FOXX, 

Chairwoman, Committee on Education and the Workforce, 

House of Representatives, Washington, DC. 

DEAR MADAM CHAIRWOMAN: The Congressional Budget Office 

has prepared the enclosed cost estimate for H.R 2775, the Employee Privacy Protection Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Christina Hawley Anthony. 

Sincerely, 

MARK P. HADLEY

(For Keith Hall, Director). 

Enclosure. 

21 

H.R. 2775—Employee Privacy Protection Act 

H.R. 2775 would amend the National Labor Relations Act to require the National Labor Relations Board wait at least seven days 

after the board has issued its final determination on a petition for 

collective bargaining representation before obtaining from an employer a list of employees who are eligible to vote in an election for 

such representation. CBO estimates that enacting H.R. 2775 would 

not affect the federal budget. 

Enacting the bill would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. CBO estimates 

that enacting H.R. 2775 would not increase net direct spending or 

on-budget deficits in any of the four consecutive 10-year periods beginning in 2028. 

The bill contains no intergovernmental mandates as defined in 

the Unfunded Mandates Reform Act (UMRA) and would impose no 

costs on state, local, or tribal governments. 

The bill would impose a private-sector mandate as defined in 

UMRA by requiring employers to obtain, in writing, their employees’ preferred method of being contacted by union representatives. 

The bill would allow employees to choose what type of personal 

contact information (telephone number, email address, or mailing 

address) to share with union organizers seeking to establish a 

union in their workplace. Because complying with the mandate 

would only entail a small change relative to current requirements, 

CBO estimates that the aggregate cost of the mandate would fall 

well below the annual threshold established in UMRA for privatesector mandates ($156 million, in 2017, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Christina Hawley 

Anthony (for federal costs) and Logan Smith (for private-sector 

mandates). The estimate was approved by H. Samuel Papenfuss, 

Deputy Assistant Director for Budget Analysis. 

COMMITTEE COST ESTIMATE

Clause 3(d)(1) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 2775. However, clause 

3(d)(2)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

22 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

NATIONAL LABOR RELATIONS ACT 

* * * * * * * 

REPRESENTATIVES AND ELECTIONS

SEC. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in 

a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of 

collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any 

individual employees or a group of employees shall have the right 

at any time at present grievances to their employer and to have 

such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. 

(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercisiong the rights 

guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, 

or subdivision thereof: Provided, That the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit; or (2) decide that any craft unit 

is inappropriate for such purposes on the ground that a different 

unit has been established by a prior Board determination, unless 

a majority of the employees in the proposed craft unit vote against 

separate representation or (3) decide that any unit is appropriate 

for such purposes if it includes, together with other employees, any 

individual employed as a guard to enforce against employees and 

other persons rules to protect property of the employer or to protect 

the safety of persons on the employer’s premises; but no labor organization shall be certified as the representative of employees in a 

bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization 

which admits to membership, employees other than guards. 

(c)(1) Whenever a petition shall have been filed, in accordance 

with such regulations as may be prescribed by the Board— 

(A) by an employee or group of employees or any individual 

or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in section 9(a), or (ii) assert that the individual or labor organization, 

which has been certified or is being currently recognized by 

their employer as the bargaining representative, is no longer 

a representative as defind in section 9(a); or 

23 

(B) by an employer, alleging that one or more individuals or 

labor organizations have presented to him a claim to be recognized as the representative defined in section 9(a); 

the Board shall investigate such petition and if it has reasonable 

cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of 

the regional office, who shall not make any recommendations with 

respect thereto. If the Board finds upon the record of such hearing 

that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. Not earlier 

than 7 days after a final determination by the Board of the appropriate bargaining unit, the Board shall acquire from the employer 

a list of all employees eligible to vote in the election to be made 

available to all parties, which shall include the names of the employees, and not more than one additional form of personal contact 

information for the employee, (such as a telephone number, an 

email address, or a mailing address) chosen by the employee in 

writing. 

(2) In determining whether or not a question or representation 

affecting commerce exists, the same regulations and rules of decision shall apply irrespective of the identity of the persons filing the 

petition or the kind of relief sought and in no case shall the Board 

deny a labor organization a place on the ballot by reason of an 

order with respect to such labor organization or its predecessor not 

issued in conformity with section 10(c). 

(3) No election shall be directed in any bargaining unit or any 

subdivision within which, in the preceding twelve-month period, a 

valid election shall have been held. 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. In any election where none of the choices on the ballot receives a majority, a run-off shall be conducted, the ballot providing 

for a selection between the two choices receiving the largest and 

second largest number of valid votes cast in the election. 

(4) Nothing in this section shall be construed to prohibit the 

waiving of hearings by stipulation for the purpose of a consent election in conformity with regulations and rules of decision of the 

Board. 

(5) In determining whether a unit is appropriate for the purposes 

specified in subsection (b) the extent to which the employees have 

organized shall not be controlling. 

(d) Whenever an order of the Board made pursuant to section 

10(c) is based in whole or in part upon facts certified following an 

investigation pursuant to subsection (c) of this section and there is 

a petition for the enforcement or review of such order, such certification and the record of such investigatioon shall be included in the 

transcript of the entire record required to be filed under section 

10(e) or 10(f), and thereupon the decree of the court enforcing, 

modifying, or setting aside in whole or in part the order of the 

Board shall be made and entered upon the pleadings, testimony, 

and proceedings set forth in such transcript. 

24 

(e)(1) Upon the filing with the Board, by 30 per centum or more 

of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to 

section 8(a)(3), of a petition alleging they desire that such authority 

be rescinded, the Board shall take a secret ballot of the employees 

in such unit and certify the results thereof to such labor organization and to the employer. 

(2) No election shall be conducted pursuant to this subsection in 

any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held. 

* * * * * * * 

(25) 

1 156 NLRB 1236 (1966). 

2 29 C.F.R. § 102.62(d). 

MINORITY VIEWS 

This bill overturns the National Labor Relations Board’s (NLRB) 

2015 election rule that levels the playing field by ensuring that a 

union has access to the same employee contact information as the 

employer prior to a union representation election. The bill tilts the 

playing field against workers’ efforts to unionize by unfairly restricting employee contact information that an employer must provide to a union after the NLRB orders a union representation election, and then by imposing needless delays in providing such contact information. The bill was approved and reported out of the 

Committee with 22 Republicans voting ‘‘aye’’ and all 16 Democrats 

present opposing H.R. 2775. 

Background 

Since the NLRB’s Excelsior Underwear decision1 over 60 years 

ago, the NLRB has required the employer to provide a list of employee names and home addresses prior to a representation election. The ‘‘Excelsior list’’ had to be provided to the NLRB within 

7 days of the direction of an election by the NLRB, which, in turn, 

provided the list to the union. The reason for this mandate was to 

address the problem where only one side—the employer—had the 

opportunity to communicate by mail with all workers prior to the 

election, and the union did not have an equivalent ability to respond. The employer, unlike the union, is also free to contact employees one-on-one in the workplace, and can lawfully require employees to attend captive audience meetings on the worksite where 

they must listen to the employer’s views regarding unionization. 

Given the employer’s advantages in contacting employees during a 

union election, the Excelsior list attempts to level the playing field. 

In 2015, the NLRB’s election rule updated the requirements for 

the Excelsior list to better effectuate the list’s purpose. The NLRB’s 

current rule requires the employer to provide the list directly to the 

union in electronic form within 2 days of the ordering of an election.2 Further, the contents of the list now must include, in addition to the employees’ names and home addresses, their work locations, shifts, job classifications, available personal email addresses, 

and available home and cell phone numbers. 

Impact of the Legislation 

H.R. 2775 does not simply reverse the NLRB’s 2015 rule governing the Excelsior list, it undermines the list’s purpose. The bill 

does not replace the 2-day deadline with the 7-day deadline that 

existed prior to the rule. Instead, it mandates a minimum 7-day 

waiting period before the employer can submit the list to the 

26 

3Testimony of Guerino J. Calemine, III, Before the U.S. House of Representatives Subcommittee on Health, Labor, Employment, and Pensions (June 14, 2017) https:// 

edworkforce.house.gov/uploadedfiles/calemine_-_testimony.pdf. 4 Associated Builders & Contractors of Texas, Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016); 

Chamber of Commerce of the United States of America v. NLRB, 118 F. Supp. 3d 171 (D.C. Cir. 

2015). 5 Email communications to the Education and Workforce Committee Democratic staff from the 

NLRB, July 6, 2017. 6 29 CFR 102.62(d) 

NLRB, with no maximum timeframe for submission. The bill ‘‘does 

not limit how long the union may be forced to wait for this basic 

information. The union could receive the list of voters the night before the election under EPPA,’’ according to the testimony of Jody 

Calemine, General Counsel of the Communications Workers of 

America, before a June 14, 2017 legislative hearing on H.R. 2775.3

Adding further delay, the bill requires the employer to send the list 

to the NLRB, rather than directly to the union. 

This bill goes even further by limiting the amount of information 

that the employer must include in the list. Under H.R. 2775, the 

employer only must include the employee’s name and one of three 

forms of contact information—a mailing address, email address, or 

telephone number—to be selected by each employee and provided 

to his or her supervisor. This procedure invites intimidation, where 

employers can pressure their workers to provide outdated contact 

information. 

In undermining the effectiveness of the Excelsior list, H.R. 2775 

unnecessarily interferes with settled law. The NLRB’s 2015 election rule, which governs the Excelsior list, has been upheld in every 

court where the rule has been challenged.4

Republican Arguments Regarding Employee Privacy Are Hypothetical and Are Not Supported by Evidence 

Committee Republicans contend that the new NLRB rule ‘‘jeopardizes the privacy of workers’’ because unions will abuse this contact information. They rely upon anecdotes that have not been substantiated by NLRB complaints or proceedings. 

To assess the merits of this contention, the NLRB was asked 

whether there have been any unfair labor practice charges or cases 

adjudicated regarding the improper use of Excelsior list contact information by a union, or complaints filed about improper contact 

with eligible voters during a union election campaign using information provided through the Excelsior list. If such cases exist, the 

NLRB was asked how many of these cases have there been since 

April 2015 when the NLRB election rule went into effect. 

The NLRB’s response: There are no such cases.5

This is unsurprising since the NLRB rule states that ‘‘[t]he parties shall not use the list for purposes other than the representation proceeding, Board proceedings arising from it, and related 

matters.’’ 6

Given the absolute lack of evidence, it appears that this legislation is a solution in search of a problem, and is nothing more than 

a pretext to undermine the ability of workers to band together and 

attempt to bargain with their employers to improve the employees’ 

wellbeing. 

27 

7See, e.g. Utah Code § 34–48–102 (prohibits employers from requiring employees to provide 

passwords); N.H. Rev. Stat. § 275:74 (prohibits employers from requiring passwords, requiring 

employees to add themselves to a list of contacts, or to change privacy settings of social media 

accounts). See generally State Social Media Privacy Laws, National Conference of State Legislatures http://www.ncsl.org/research/telecommunications-and-information-technology/state-lawsprohibiting-access-to-social-media-usernames-and-passwords.aspx (May 5, 2017). 

COMMITTEE DEMOCRATS OFFER AMENDMENTS TO FIX 

FLAWS IN H.R. 2775 

Democrats offered the following amendments to H.R. 2775 at the 

June 29, 2017 markup: 

AMENDMENT 1—TO AMEND THE TIMING AND CONTENT OF THE VOTER

INFORMATION LIST

In order to ensure that employee contact information is provided 

to unions in a timely manner and to assure adequate modes of 

communication, Ranking Member Bobby Scott offered an amendment to codify the NLRB’s 2015 election rule. This amendment requires employers to provide the union with the Excelsior list of eligible voters within 2 days of the direction of an election, instead 

of setting a minimum 7-day waiting period to provide the list to the 

NLRB (and not directly to the union) provided in the bill. The 

amendment ensures that the employer provides the employee’s 

name, mailing address, phone number, or email if available. This 

amendment assures unions have access to all modes of contact information, in addition to work locations, shifts, and job classifications. 

The amendment was rejected 16–22, with all present Committee 

Democrats voting for the amendment. 

AMENDMENT 2—PROTECTING EMPLOYEE PRIVACY REGARDING EM- PLOYERS THAT REQUIRE ACCESS TO EMPLOYEES’ SOCIAL MEDIA ACCOUNTS

In order to ensure that the Employee Privacy Protection Act improves employee privacy, Representative Jared Polis offered an 

amendment that would limit application of the bill to employers 

who adopt policies barring management from requiring employees’ 

email and social media names, user names, and passwords. Currently, federal law does not protect employees from employers requiring such disclosures. Although 25 states have enacted some 

protections for employees, they vary greatly across the states.7 The 

amendment, unlike the bill text, actually protects the employee privacy that the bill’s title purports to protect. 

The amendment was rejected 16–22, with all present Committee 

Democrats voting for the amendment. 

AMENDMENT 3—PROTECTING EMPLOYEE PRIVACY REGARDING EMPLOYERS ENGAGING IN GPS TRACKING OF EMPLOYEES DURING NONWORK HOURS

In order to ensure that the Employee Privacy Protection Act actually improves employee privacy, Representative Carol Shea-Porter offered an amendment that would limit application of the bill 

to employers who adopt policies that prohibit management from installing and activating GPS tracking through employer-provided 

28 

8See Cal. Lab. Code § 435; Conn. Gen. Stat. § 31–48b; Del. Code tit. 11, § 1335; N.Y. Lab. Law 

§ 203–c; R.I. Gen. Laws § 28–6.12–1; W. Va. Code § 21–3–20. 

cellular phones, unless the employee provides written consent. Although employers may have reason to track employees during 

working hours, such tracking of employees during their personal 

time is an unwarranted violation of employees’ privacy without any 

legitimate business purposes. No federal law currently protects employee privacy from GPS tracking by their employers outside working hours. 

The amendment was rejected 16–22, with all present Committee 

Democrats voting for the amendment. 

AMENDMENT 4—PROTECTING EMPLOYEE PRIVACY REGARDING EM- PLOYERS CONDUCTING VIDEO SURVEILLANCE IN EMPLOYEE BATH- ROOMS AND LOCKER ROOMS

In order to ensure that the Employee Privacy Protection Act actually improves employee privacy, Representative Alma Adams offered an amendment that would limit application of the bill to employers who prohibit management from conducting video surveillance of employees in designated private areas, such as bathrooms 

and locker rooms. Although at least six states have codified this 

principle, most jurisdictions allow this surveillance and no federal 

protections exist.8

The amendment was rejected 17–21, with all present Committee 

Democrats and one Republican voting for the amendment. 

AMENDMENT 5—TO SUBSTITUTE THE TEXT OF THE BILL WITH THE

GIVING WORKERS A FAIR SHOT ACT

Representative Polis offered an amendment to replace the bill 

with the Giving Workers a Fair Shot Act (H.R. 2275). This amendment promotes collective bargaining by authorizing mandatory arbitration for a first contract following an election if the parties cannot reach agreement after a reasonable period of time. It also prohibits federal contractors from seeking reimbursement for union 

avoidance activity, and prohibits the CEO and Chairman of a publically traded company from being the same person. The bill also 

establishes monetary sanctions for violations of the NLRA, and 

strengthens the enforcement of the Occupational Safety and Health 

Act, the Fair Labor Standards Act, the Federal Mine Safety and 

Health Act, and the Migrant and Seasonal Agricultural Worker 

Protection Act. 

The amendment was ruled non-germane. The appeal of the ruling was tabled on a vote of 22–16, with all present Committee 

Democrats voting for the amendment. 

ROBERT C. ‘‘BOBBY’’ SCOTT, Ranking Member. SUSAN A. DAVIS. RAU ́ L M. GRIJALVA. JOE COURTNEY. MARCIA L. FUDGE. 

JARED POLIS. 

GREGORIO KILILI CAMACHO

SABLAN. 

29 

FREDERICA S. WILSON. SUZANNE BONAMICI. MARK TAKANO. ALMA S. ADAMS. MARK DESAULNIER. DONALD NORCROSS. LISA BLUNT ROCHESTER. RAJA KRISHNAMOORTHI. CAROL SHEA-PORTER. ADRIANO ESPAILLAT. 

Æ