The National Labor Relations Board conducts representation elections by manual voting, where voters cast their ballots in a voting booth, by mail voting, where voters mail their ballots to an NLRB regional office, or a combination of manual and mail voting. In order to protect employee free choice in an election, the NLRB has developed rules governing when an employer may hold mandatory captive audience meetings among its employees before an election. In manual voting situations, the NLRB’s long-established rule, known as the Peerless Plywood rule, prohibits employers from conducting mandatory captive audience meetings within 24 hours of the start of the election. In mail ballot cases, the NLRB set out its rule in a 1959 case called Oregon Washington Telephone Co. There, the NLRB ruled that an employer was prohibited from holding captive audience meetings after an NLRB regional office was scheduled to mail ballots to eligible voters.
In Guardsmark, LLC, the NLRB took the opportunity to reevaluate the captive audience rule in mail ballot cases in order to alleviate the apparent confusion caused by the Oregon Washington Telephone rule. In Guardsmark, the NLRB abandoned the Oregon Washington Telephone rule and imposed a new rule for mail ballot cases: “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.”
Whether the NLRB needed to jettison the Oregon Washington Telephone rule is debatable; dissenting Member Miscimarra certainly didn’t think so. He noted that the old rule already incorporated a 24-hour buffer by virtue of the time lag between when ballots were mailed and when they were received by the voters.
In any event, employers now have one less day to hold captive audience meetings in a mail ballot setting. For example, under the Oregon Washington Telephone rule, if a regional office was scheduled to mail the ballots at 9:00 a.m. on a Thursday, the employer was prohibited from holding a captive audience meeting after 9:00 a.m. on that Thursday. Now, under the new Guardsmark rule, employers may not hold captive audience meetings after 9:00 a.m. on Wednesday. In the new world order resulting from the NLRB’s re-write of its election procedures last April, every day counts, but now there is one less day and one less opportunity for employers to engage in captive audience meetings.