Recently, 106 labor law professors and labor studies academics filed a rulemaking petition with the National Labor Relations Board (NLRB) seeking an administrative rule that would require employers to provide “equal time” to union organizers to campaign on employer-controlled premises at the employer’s cost. This “equal time” requirement would be imposed if an employer conducted meetings at any time after the employer first became aware of a union organizing campaign or had a sense that such a campaign was likely to be launched.

The labor law professors who filed the petition urge a return to a 65-year-old Board rule that banned “captive audience” speeches that endorse a “No” vote. The professors explicitly praised a rule under the Railway Labor Act that bans all “Vote ‘No’”-captive audience speeches in the airline and rail transportation industries. The professors have also called for an overruling of the current Board rule permitting anti-union captive audience communications that do not threaten reprisals.

What an Equal Time Rule Would Do

The professors’ proposal for equal access would grant the draconian remedy of a rerun election in situations where:

  1. the employer, through its agents, including frontline supervisors, held meetings of any kind with employees on premises controlled by the employer on paid work time, and urged the employees to vote “No” in the election; and
  2. the employer, refused upon request to provide the union with an equivalent opportunity to address  employees.

Under the proposal, the employer’s election victory would be set aside even if the content of the employer’s communications during employee meetings contained only lawful content under Board law. Essentially, according to the professors, refusing a union request for access constitutes objectionable conduct, taints the election outcome and requires a rerun election.  If the employer persisted in denying the union “equal time” during a rerun election, the NLRB would have the authority to order the employer to grant the union “equivalent opportunity.” The NLRB’s order would be enforceable by the contempt powers of a federal court. 

An Equal Time Rule as a Means of Banning “Captive Audience” Speeches? 

The current Board majority may adopt an equal time rule. The ultimate objective of such a rule is to increase the cost of “captive audience” speeches by a magnitude that will induce rational employers to abandon company communications to mass audiences or one-on-one pitches by frontline supervisors on premises controlled by the company on paid-for time.

Recently, in Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016), the Board’s majority effectively doubled the duration of the total ban on “captive audience” communications in mail ballot elections. For 57 years, the Board’s rules had prohibited such speeches if they were delivered 24 hours of the scheduled mailing of the ballots, and continuing until the date specified for return of the ballots to the Board’s office. Now the ban is in effect 24 hours prior to the scheduled and continuing until the date specified for the return of the ballots.

Although the majority opinion in Guardsmark speaks of the ban duration as a means of insulating voters from a supposed bandwagon effect, the antipathy of the Board’s majority toward all manner of captive audience communications shines through.

An Equal Time  Rule as a Content-Based Speech Regulation?

The labor law professors who filed the equal time petition with the Board claim that implementation of an equal time rule does not present any First Amendment issues because the proposed regulation is aimed at a mode of communication, not the content of communication.

But the content of communications between management and employees is implicated by the equal time rule/Consider the following example: An employer assembles the workforce on company premises, on paid-for time. The highest-ranking managers address the group and unambiguously tell the employees that the employer doesn’t care whether they vote for the union. The employer’s managers go on to affirm that the employer will respect any outcome and will work with any union to achieve a continuous healthy workplace relationship that benefits all. Frontline supervisors follow up with the same message, several times daily, for many days prior to the election. Under the equal time rule, these meetings and communications would not require the company to allow union organizers to come on the premises and repeat the same news on company paid-for time.

If the same mode of communication was employed to deliver a message to vote “No” on the question of union representation, the employer would be required to grant organizers equal time to urge a “Yes” vote. Thus, application of the equal time rule turns on the content of the communications.

Would an Equal Time Rule Reduce the Quantity and Quality of Speech? 

If an equal time rule were adopted, an employer would be required to pay employees to listen to the union organizer’s message. Not only would the employer pay for time in which no contribution was made to the marginal product, but the spillover effect in lost productivity produced by the conflict-laden environment would be considerable. It is reasonable then to expect that some employers will cut back on, if not eliminate, captive audience speeches if an equal-time rule is adopted. (That is, after all, the seeming purpose of the rule.) . There is no justification under First Amendment law for handicapping an employer, in a representation election by imposing a de facto tax on the use of an effective, efficient means of communication, unless such mode of communication imposes substantial social harm.

Key Employer Takeaways 

  1. The Board will probably not grant the professors’ petition to conduct a rulemaking process in which employers can be heard in opposition to the proposed rule. The Board typically waits for the “right” case (which, no doubt, will be coming soon). If the Board engages in the rulemaking process, employers should be prepared to make the best constitutional case against the rule.
  2. The Board may ultimately conclude that, absent an opportunity for “equal time” extended to a union, captive audience speeches void employer electoral victories and are unfair labor practices. Federal courts, however, may be reluctant to enforce such a rule because the employer has a constitutional right to present the case against unionization in the most persuasive, cost-efficient means available, absent a threat of reprisal.
  3. Employers should continue to use the best modes of communication available, including captive audience speeches.