On January 29, 2016, the National Labor Relations Board (NLRB) issued a decision in Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016) moving the deadline for employers to hold captive audience meetings in mail ballot elections to 24 hours before the regional office mails the ballots. In so doing, the NLRB overruled a near-60 year-old precedent set in Oregon Washington Telephone Co., 123 NLRB 339 (March 24, 1959), which held that employers could hold captive audience meetings until the time the regional office mailed the ballots. This decision, coming on the heels of the NLRB’s recent “ambush” election rules, is another brick in the wall of the NLRB’s effort to limit the time employers have to speak to and educate their employees during a union organizing campaign.

Captive Audience Meetings and Prior NLRB Precedent

A “captive audience meeting” refers to a meeting held in the course of a union organizing campaign during working hours that employees are required to attend. These meetings can be an effective tool for employers to educate employees during a union organizing campaign. However, as established in Peerless Plywood Co., 107 NLRB 427 (December 17, 1953), captive audience meetings cannot be held within 24 hours of a union election. The NLRB’s reasoning for this rule is that “last-minute speeches by either employers or unions delivered to massed assemblies of employees on company time have an unwholesome and unsettling effect and tend to interfere with that sober and thoughtful choice which a free election is designed to reflect.”

In Oregon Washington Telephone, the NLRB applied its Peerless Plywood reasoning to mail ballot elections and created the bright-line rule that captive audience meetings are forbidden from “the time and date on which the ‘mail in’ ballots are scheduled to be dispatched by the Regional Office until the terminal time and date prescribed for their return.” In addition, the NLRB required regional offices to give the parties 24 hours’ written notice of the mailing.

The NLRB’s Decision

The NLRB’s Guardsmark decision simply replaced one bright-line rule with a different and—unsurprisingly—more union-friendly one. The NLRB focused on the fact that the Oregon Washington Telephone rule has, on occasion, been incorrectly applied by the NLRB, stating that the NLRB’s overall goal in its Guardsmark decision was to “achieve the clarity, uniformity, and simplicity” that the Oregon Washington Telephone rule failed to provide. The NLRB first cited an 18-year-old decision in which the majority and dissent, as asides, stated that captive audience meetings are forbidden starting 24 hours before the ballots are mailed. The NLRB also invoked the section of the NLRB’s Casehandling Manual that cites Oregon Washington Telephone to address captive audience meetings during mail ballot elections, and referred to this section as ambiguous as to when captive audience meetings are forbidden.

The NLRB then devoted a mere paragraph to explain why changing the Oregon Washington Telephone rule was a better approach than reaffirming the rule. The NLRB simply stated in conclusory fashion, citing to off-topic regulations regarding posting notices of elections and barely taking into account the policy considerations of Peerless Plywood, that the NLRB “believe[s] that it is appropriate to provide for a full 24-hour period before the ballot mailing that is free from speeches that tend to interfere with the ‘sober and thoughtful choice which a free election is designed to reflect.’”

In dissent, Member Miscimarra thoroughly rebuked the NLRB’s flimsy reasoning. Member Miscimarra first pointed out that the Oregon Washington Telephone rule already provided the “clarity” and “simplicity” that the majority sought.  He also questioned why tangential language from an 18-year-old Board decision and language from the NLRB’s Casehandling Manual specifically citing to Oregon Washington Telephone could provide sufficient ambiguity to warrant overturning nearly 60 years of precedent. Member Miscimarra next examined the policy considerations underlying Peerless Plywood and noted that the NLRB’s new rule would cut off the time for captive audience meetings much earlier than Peerless Plywood intended and provide a double standard directly in opposition to the NLRB’s stated goal in Guardsmark of “uniformity” in elections. Ballots mailed will not reach employees until, at the earliest, the day after they are mailed; thus, the NLRB’s new rule for mail ballot elections cuts off captive audience meetings at least 48 hours before employees can cast their votes, double the time required for manual elections. Ultimately, according to Member Miscimarra, the NLRB’s new rule upsets the delicate balance struck over 60 years ago in Peerless Plywood between an employer’s right to free speech and employees’ freedom of electoral choice.

Key Employer Takeaways

The most basic employer takeaway going forward is to follow the NLRB’s new rule in any mail ballot election. This decision should also give pause to any employer considering holding a mail ballot election. Although in many instances the parties stipulate to when a regional office will mail the ballots, the fact that a regional office need only give 24 hours’ notice of the mailing could result in an employer being precluded from giving a “25th hour” speech if the regional office were to give the minimum 24 hours’ notice.

More significant on a policy level is that the NLRB’s efforts to limit employers from speaking to and educating their employees during a union organizing campaign has not stopped with the new “ambush” election rule. Nearly 60 years of precedent and a lack of reasoning did not deter the NLRB in Guardsmark from further limiting employer communications. Moreover, the NLRB clearly demonstrated its hostility to captive audience meetings, and with some advocating for the NLRB to require equal time for unions to hold captive audience meetings or to otherwise regulate captive audience meetings, more significant changes in this area could soon come down the pike.

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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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