NLRB Clarifies Time Period for Pre-Election "Captive Audience" Speech Prohibition in Mail Ballot Elections | Practical Law

NLRB Clarifies Time Period for Pre-Election "Captive Audience" Speech Prohibition in Mail Ballot Elections | Practical Law

In Guardsmark, LLC, the National Labor Relations Board (NLRB) held that employers may not hold mass campaign "captive audience" meetings beginning 24 hours before ballots are scheduled to be mailed to employees in mail ballot elections.

NLRB Clarifies Time Period for Pre-Election "Captive Audience" Speech Prohibition in Mail Ballot Elections

by Practical Law Labor & Employment
Published on 03 Feb 2016 • USA (National/Federal)
In Guardsmark, LLC, the National Labor Relations Board (NLRB) held that employers may not hold mass campaign "captive audience" meetings beginning 24 hours before ballots are scheduled to be mailed to employees in mail ballot elections.
In Guardsmark, LLC, the panel (Board) heading the NLRB's judicial functions overruled previous Board precedent and held in a 3-1 decision that in a mail ballot election, employers may not hold mass campaign meetings or make "captive audience" speeches beginning 24 hours before ballots are scheduled to be mailed to employees. The Board portrayed its decision as resolving confusion over the issue and found that its bright line rule was preferable to the existing rule from Oregon Washington Telephone Co. that applied the prohibition on captive audience meetings beginning at the time when ballots were scheduled to be mailed. (363 N.L.R.B. No. 103 (Jan. 29, 2016).)

Background

A week before a scheduled mail ballot election, an employer requested clarification from an NLRB regional office as to whether it could hold a mass campaign "captive audience" meeting with employees during the morning of the same day ballots were scheduled to be mailed out to employees. During the next several days, the regional office provided the employer with contradictory information about the proper timing for holding a mass meeting. The regional office eventually instructed the employer not to hold any mass meetings within the 24-hour period before ballots are mailed out to employees. The employer decided not to hold any mass meetings before mailing out the ballots.
After the election, the employer objected, arguing that the regional office should have allowed the employer to hold a mass meeting on the morning of the day when the ballots were being mailed out to employees. The Regional Director overruled the objection. The employer excepted to the Regional Director's conclusion.

Outcome

A majority of the Board (Chairman Pearce and Members Hirozawa and McFerran) agreed with the Regional Director's overruling of the employer’s objection, holding that:
  • It is necessary for the Board to:
    • clear up confusion about the cutoff point for employers making pre-election captive audience speeches (which tend to interfere with the sober and thoughtful choice an election is designed to reflect) for elections conducted by mail;
    • align the rule for mail ballot elections with the rule from manual ballot elections; and
    • create a uniform, bright line captive audience speech prohibition rule.
  • In a mail ballot election, employers may not hold pre-election captive audience meetings beginning 24 hours before ballots are due to be mailed.
  • Although the regional office did not clearly communicate the existing rule from prior Board precedent that the cutoff point for making a captive audience speech in a mail ballot election is when the ballots are mailed out, this did not render the election invalid.
The Board majority noted that:
  • Peerless Plywood prohibits employers from making pre-election speeches to employees "within 24 hours before the scheduled time for conducting an election" (107 N.L.R.B. 427, 429 (1953)).
  • Oregon Washington Telephone Co. applies to mail ballot elections and prohibits employers from making election speeches "from the time and date on which the 'mail in' ballots are scheduled to be dispatched by the Regional Office" (123 N.L.R.B. 339, 341 (1959)).
  • Dicta in a more recent Board decision suggests that the captive audience speech prohibition in a mail ballot election begins 24 hours before the ballots are scheduled to be mailed (San Diego Gas & Electric, 325 N.L.R.B. 1143 (1998)).
The Board majority found that:
  • Oregon Washington Telephone Co. holds that the captive audience speech prohibition in mail ballot elections begins when the ballots are scheduled to be mailed by the regional office (as opposed to 24 hours before).
  • Although the Oregon Washington Telephone Co. rule on captive audience speeches has been in effect up to this time, the rule has failed to fulfill its purpose of providing a bright line standard for employers. To the extent Oregon Washington Telephone Co. is inconsistent with Peerless Plywood 's goal of providing employees with a full 24-hour period free from employer speeches prior to an election, Oregon Washington Telephone Co. is overruled.
  • In a mail ballot election, the "scheduled time for conducting an election" language from Peerless Plywood means the time that ballots are scheduled to be mailed out to employees. Therefore, employers can make captive audience speeches up until 24 hours before ballots are scheduled to be mailed out to employees.
  • Although the regional office did not coherently communicate to the employer the Oregon Washington Telephone Co. captive audience rule in effect at the time, at least arguably resulting in the employer’s decision to forgo a mass meeting of its employees within the 24-hour period before the ballots were mailed, the regional office's conduct amounted to at most a "procedural irregularity" and did not render the election unfair or invalid to the point where the Board should set it aside and order a new election.
Member Miscimarra dissented, noting that:
  • There is no good reason to change the Oregon Washington Telephone Co. rule that captive audience speeches are prohibited beginning when ballots are scheduled to be mailed out. The rule provided employees with the same or even greater protection than the 24-hour rule from Peerless Plywood.
  • The majority's new rule:
    • disturbs the consistency between Peerless Plywood and Oregon Washington Telephone Co.;
    • upsets the balance between protecting employees' electoral freedom and employers' free speech rights; and
    • will not achieve the uniformity the majority desires, but will instead create a double standard that will likely increase litigation in mail ballot elections.

Practical Implications

The NLRB's decision in Guardsmark attempts to align the captive audience meeting prohibition rule for mail ballot elections with the rule for manual ballot elections. The majority's position is that these type of election-related timing rules need to be clear, uniform, and simple. The majority was not persuaded by the dissent's point that it generally takes at least 24 hours for mailed-out ballots to reach the employee recipient, and that the Oregon Washington Telephone Co. rule allowing captive audience speeches up until the point ballots were mailed was likely based on that timetable. Rather, the majority's overriding goal is to achieve clarity and uniformity through a bright line rule for all elections. Although the new rule was of no avail to the employer in this case, employers should be aware that the cutoff point for making captive audience speeches in a mail ballot election is now 24 hours from the time ballots are scheduled to be mailed out to employees.