February 26, 2016

NLRB Extends Captive-Audience Ban for Mail-Ballot Elections

4 min

Uprooting over 50 years of precedent, the NLRB on January 29 held that employers are prohibited from holding mass campaign meetings with employees in the 24-hour period before ballots are to be mailed out to employees in connection with mail-ballot elections. See Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016). The Board's decision ultimately diminishes an employer's ability to communicate with its employees in advance of a mail-ballot election.

Board Precedent Regarding "Captive-Audience" Meetings

The NLRB has long held that neither employers nor unions can hold mass campaign meetings – commonly referred to as "captive-audience" meetings – in the time period immediately preceding a union election, concluding that "last-minute speeches . . . tend to interfere with that sober and thoughtful choice which a free election is designed to reflect." In the context of standard, manual elections, the Board held in the 1953 decision of Peerless Plywood Co. that employers may not hold captive-audience meetings within the 24-hour period preceding the start of the election. The rule for mail-ballot elections, adopted in the 1959 decision of Oregon Washington Telephone Co., states that the prohibition on captive-audience meetings begins at the time when ballots are scheduled to be mailed out by the Regional Office. Although intended to provide "bright line" guidance, the above rules caused much confusion, ultimately leading the NLRB to depart from its longstanding mail-ballot standard in Guardsmark.

The Guardsmark Decision

In the case at issue, Guardsmark LLC sought guidance from the Board's Regional Office regarding the latest date on which it could hold a mass campaign meeting with employees in advance of a mail-ballot election. After providing conflicting guidance, the Regional Office informed Guardsmark that it could not hold a mass campaign meeting in the 24-hour period before ballots are mailed to employees – an erroneous instruction in conflict with the Oregon Washington rule. Guardsmark decided against holding a mass campaign meeting prior to the election. After the union won the election, Guardsmark filed objections, alleging that the Regional Office's inaccurate guidance induced Guardsmark to forgo a meeting, thereby "limiting notice to employees about the election."

Although the NLRB readily agreed that the Regional Office had provided Guardsmark with inaccurate guidance, the Board deemed the Region's conduct a mere "procedural irregularity" and declined to set aside the election results. However, the Board majority saw this as an opportunity to revisit and revise its standard for when the captive-audience prohibition begins in mail-ballot elections.

The NLRB compared the Peerless Plywood manual election standard with the mail-ballot standard of Oregon Washington, holding that the two approaches are "counter-intuitive" and "invite[] confusion." Instead, noting its intention to achieve "clarity, uniformity, and simplicity," the Board decided to adopt a more unified approach. Under the new mail-ballot election standard, employers are prohibited from holding captive-audience meetings in the 24-hour period before ballots are scheduled to be mailed out to employees.

Board member Miscimarra dissented, arguing that the Board was dealing with the Regional Office's erroneous guidance to Guardsmark "by making the Region's mistake into a new requirement applicable to all future mail-ballot elections." According to the dissent, there existed no incongruity between the manual and mail-ballot election approaches; both prohibited captive-audience meetings "within 24 hours of the time that employees may actually mark a ballot." The Board's new rule, however, "all but guarantee[s] that, in mail-ballot elections, there will be a 48-hour prohibition against captive-audience speeches."

Effect on Employers

Although providing a superficially uniform 24-hour guideline, the Board's new approach will have the practical effect of diminishing the time period during which an employer may communicate with employees in advance of a mail-ballot election. By adding an additional 24 hours to the captive-audience prohibition period, the Board's decision makes it increasingly difficult for employers to impart a lasting, final message to employees before a mail-ballot election. Thus employers must carefully plan their communication strategies in advance of such elections. Communications should leave employees with a lasting message, but must also adhere to the Board's revised time frame limitations (along with all other applicable limitations under the NLRA).

The Board's decision comes on the heels of a recent proposal to the NLRB, submitted by over 100 law professors, urging the Board to introduce a rule that would allow unions to hold workday meetings on the employer's premises if the employer chooses to hold its own captive-audience meeting. At present, employers may bar unions from holding meetings on the employer's premises. Although the Board is unlikely to adopt the proposal, the Guardsmark decision should serve as a stark reminder that the NLRB is closely focused on the election process, and changes to long-standing precedent may arise at any time.