The NLRB opened a busy February by overruling a rule it established in 1959 governing when captive audience meetings may be held for mail-ballot elections. For nearly 60 years, there was a divide in the way the NLRB handled captive audiences for mail-ballot elections and manual (in-person) elections. For mail-ballot elections, the NLRB followed the precedent it established in its Oregon Washington Telephone Co.decision prohibiting both employers and unions from holding 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.” The new rule set forth in last week’s Guardsmark, LLC¹ decision, overrules the Oregon Washington Telephone Co. decision and provides that the captive audience prohibition now goes into effect 24 hours before the ballots are mailed.
Captive audience meetings include meetings with employees by an employer or union, typically held during a union campaign, to discuss their views on unionization. Employers often require employee attendance and hold the meetings during work time.
A significant reason for the new rule is to bring consistency between the procedures governing mail-ballot and manual (in-person) elections. For manual elections, the longstanding rule² followed by the NLRB has been that captive audience meetings are prohibited within the 24-hour period before the start of the election. In the newGuardsmark, LLC decision, the divided panel (3-1) conceded that the conflicting rule for mail-ballot elections was “counter-intuitive” and that a new rule was necessary to avoid perpetuating the confusion. The effect of the Guardsmark LLC decision is that mail-ballot elections will now be handled with the same 24-hour restriction as manual elections. The new rule, according to the Board, is consistent with the 24-hour rule in manual elections and will help “achieve the clarity, uniformity, and simplicity that a single rule for all elections will provide.”
The rule means that employers have 24 hours less to address union election issues with the employees. Employers already face a shortened election period as a result of the Board’s changes in 2015, when the Board shortened the time it takes to go from filing a petition to the election. (See our previous posts concerning the issuance and implementation of the rules here, here, and here.) And an employer’s failure to comply can have significant consequences. A violation, even an unwitting one, may lead to an automatic invalidation of an election and a re-run election can be ordered.
Employers faced with a union campaign must know how the captive audience rule will apply to the particular election, including being aware of the date and time that the ballots will be mailed for a mail-ballot election. Employers should also take the time to familiarize supervisors with the new rule and the captive audience prohibitions.