For more than 50 years, the Board has maintained a rule for mail ballot elections prohibiting the parties from holding mass campaign meetings on company time (commonly referred to as “captive audience” meetings) with employees “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.” Oregon Washington Telephone, 123 NLRB 339 (1959). Last week, however, the Board “ironically” decided to overrule that long-standing rule and replace it with a rule incorrectly followed by at least two regional offices.

In Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016), the Board majority of Chairman Pearce and Members Hirozawa and McFerran declared that the new rule was needed because of confusion surrounding the rule and a need for a “bright line” standard. The confusion, however, was of the NLRB’s own creation. The Board’s Representation Case Outline of Law provides that:

Where an election is conducted by mail, the Regional Director must give all parties 24 hours’ notice of the date when the ballots are to be mailed. Employers and unions alike are prohibited from making speeches on company time to massed assemblies from the time and date the ballots are scheduled to be sent out by the Region until the time and date set for their returnOregon Washington Telephone Co., 123 NLRB 339 (1959); and San Diego Gas & Electric, 325 NLRB 1143 (1998).

While correctly setting forth the Oregon Washington Telephone rule, the Representation Case Outline cites San Diego Gas, in which the Board’s majority, concurring, and dissenting opinions all incorrectly explained (in dicta) that the prohibition of captive audience meetings started 24 hours before the ballots are mailed.

Finally, we reject the dissent’s contention that because, under the rule in Peerless Plywood Co., 107 NLRB 427 (1953), employers are prohibited from giving mass ‘‘captive audience’’ speeches to employees during the period beginning 24 hours before the actual balloting period begins, the use of mail ballots ‘‘significantly silences’’ the employer.

As the majority notes, an employer is free to conduct ‘‘captive audience’’ speeches throughout the campaign period until the Peerless Plywood rule takes effect 24 hours before the ballots are mailed and, during the actual balloting period, the employer is free to lawfully campaign in the workplace.

With respect to the factor of full opportunity to hear all points of view, we note that, underPeerless Plywood, 107 NLRB 427 (1953), the employer is essentially barred from having group meetings with employees during the 24-hour period before the balloting. While this rule may make good sense prior to a manual election, the application of that rule to a mail ballot election makes no sense. The mail ballot election occurs over a period of several weeks, and thus the Peerless Plywood rule applies to the entire period beginning 24 hours before the ballots are mailed by the Regional Director and ending with the return of the ballots.

Moreover, it appears that at least some regional offices of the NLRB were incorrectly following San Diego Gas to prohibit captive audience speeches in the 24 hour period before mail ballots were mailed by the Region, as evidenced by Region 5 in Guardsmark and Region 25’s Summer 2013 newsletter (page 5), in which it advised a union representative that the prohibition on captive audience meetings began 24 hours before the scheduled time for the mailing out of the ballots.

Member Miscimarra vehemently disagreed with the Board’s “clarification.” In his dissent Miscimarra asserts that the new rule does not create consistency, but rather “a double standard that, in [his] view, lacks any rational justification”:

By setting the starting time of the captive-audience-speech prohibition in mail-ballot elections 24 hours before a regional office puts ballots in the mail, my colleagues establish a new rule, contrary to over 50 years of precedent, that upsets the consistency between Oregon Washington Telephone and Peerless Plywood. My colleagues say the point in time 24 hours before ballots are mailed “seems to correspond most naturally to the Peerless Plywood rule.” To the contrary, by overruling Oregon Washington Telephone, my colleagues all but guarantee that, in mail-ballot elections, there will be a 48-hour prohibition against captive-audience speeches, double the 24-hour restriction adopted in Peerless Plywood for manual elections.