On January 29, 2016, the NLRB in Guardsmark, LLC, 363 NLRB No. 103 (decision), changed over 50 years of precedent under the guise of “clarifying” a well-established rule concerning when the captive-audience speech prohibition begins in mail-ballot elections.  In 1959, the Board in Oregon Washington Telephone Co., 123 NLRB 339 (1959) established that captive-audience speeches were prohibited from the time and date the ballots were scheduled to be mailed by the NLRB Regions and continuing until the time and date set forth for the return of the ballots.  This Oregon Washington Telephone rule is contrasted to the Peerless Plywood rule, which prohibits mass captive-audience speeches by parties within the 24-hour period prior to the start of a manual election.   Peerless Plywood Co., 107 NLRB 427 (1953).   In Guardsmark, LLC, the Board found that the two rules caused confusion, overruled Oregon Washington Telephone, and set the prohibition to begin 24 hours before the Regions are scheduled to mail the ballots.

At issue in Guardsmark, LLC, was an employer’s objection to the election through which the employer alleged that the Region improperly and incorrectly prohibited the employer from holding captive-audience meetings with employees 24 hours before the ballots were scheduled to be mailed.  In its decision, the Board majority did not dispute that the Region had erred in its position to the employer.  In fact, the Board majority acknowledged that the employer had been correct—that “the rule of Oregon Washington Telephone is that the mass captive-audience meeting prohibition in mail ballot election begins when the ballots are scheduled to be mailed and not 24 hours before that time.” 

Despite the established Board precedent, the Board majority decided to change the rule—allegedly to clarify the rule.  The Board majority noted: “we believe 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.” (internal quotation marks and citation omitted).

Dissenting, Board Member Miscimarra found no reason for the change, noting “[i]ronically, my colleagues deal with the Region’s error by making the Region’s mistake into a new requirement applicable to all future mail-ballot elections.” Member Miscimarra explained the rationale that the Board had in maintaining separate rules for mail-ballot and manual elections, and reviewed why the change in Board precedent was not justified. According to the Board, the captive-audience speech rules arose because the Board believed that “last-minute speeches . . . have an unwholesome and unsettling effect and tend to interfere with that sober and thoughtful choice which a free election is designed to reflect.” Thus, the Board set forth a rule prohibiting captive-audience speeches 24 hours prior to the start of a manual election.  In the context of mail-ballot elections, the same rule does not apply because “the employee’s receipt of the mail ballot—which occurs, at the earliest, the day after the ballots are mailed by the regional office—effectively constitutes the start of the election.”  Given this distinction, Member Miscimarra found no reason for changing the rule and no justification for converting the 24-hour restriction in manual elections into what he deemed to be a 48-hour prohibition against captive-audience speeches in mail-ballot elections  (24 hours before the mailing of the ballots and at least 24 hours during which the mail ballots are delivered and employees commence voting).

The takeaway for employers is that irrespective of whether there is any validity to the Board majority’s reasoning for the change, employers (and unions) have lost 24 hours during which they were previously able to engage in captive-audience speeches.   Now Guardsmark, LLC requires the parties to refrain from captive-audience speeches starting 24 hours prior to the mailing of the ballots.