The National Labor Relations Board (NLRB) may be yet another new sheriff in town (in addition to all the other sheriffs such as the FTC, FCC, SEC, OCR, OIG, state AGs, etc.), poised to box the ears of data breach “scofflaws” with expensive, time-consuming, conflicting and perhaps impossible-to-comply-with requirements related to computer security incidents.

Although most of the pleadings on the relevant NLRB docket are retrievable only via Freedom of Information Act request and thus do not inform this blog post, the pleadings that are available via the docket reveal that the American Postal Workers Union, the National Association of Letter Carriers and the National Rural Letter Carriers Association are claiming that the United States Postal Service violated the National Labor Relations Act (NLRA) by failing to collectively bargain with the postal workers unions before implementing a response plan related to a data breach last fall. See NLRB Case Nos. 05-CA-140690, 05-CA-143686, 05-CA-140896, 05-CA-141248. The unions claim that the plan, including provision of one year of free credit monitoring to the data subjects, should not have been implemented without collective bargaining because the plan implicated wages, benefits and/or working conditions regulated under the NLRA.

It of course remains to be seen how this NLRB proceeding ultimately plays out. But if data breaches involving unions implicate the NLRA, unionized companies are in for a whole new level of pain in attempting to comply with data breach laws that require notification, in some instances, in as few as five days after discovery.

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Photo of Blaine C. Kimrey Blaine C. Kimrey

Blaine C. Kimrey is a Shareholder at Vedder Price, Chair of the Media & Entertainment Litigation practice group, and a member of the Privacy, CyberSecurity, & Media practice group.  A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property, entertainment, insurance, banking, real estate, civil rights, telecommunications, and mass catastrophes and torts.  Among other accolades, Mr. Kimrey is Chambers USA Band 2 rated for Media & Entertainment Litigation in the state of Illinois, is listed in Best Lawyers in America for Intellectual Property Litigation, and is AV-rated by Martindale-Hubbell.

Photo of Bruce R. Alper Bruce R. Alper

Bruce R. Alper is a Shareholder at Vedder Price, where he has practiced management-side labor and employment law for over 30 years. An accomplished litigator, Mr. Alper has represented employers in employment disputes of all types in judicial, administrative and arbitral forums. He has years of experience advising employers on matters involving employment discrimination, sexual harassment, wrongful discharge, workforce reductions, labor relations, family/medical leaves and other employment regulatory matters. Mr. Alper represents a wide range of private-sector employers, including hospitals, financial institutions, manufacturers and universities, where he partners with management, corporate counsel and human resources professionals to develop strategic, cost-effective approaches to employee relations problems and risk management.