Declining to follow many years of precedent, a panel of the National Labor Relations Board voted 3-1 to further limit the period for so-called "captive audience" speeches when mail ballots are to be used in a Board election. Since 1959, the rule, originally established in Peerless Plywood, allowed employers to make captive audience speeches until the day that the ballots were due to be mailed by the NLRB Regional Office handling the case. But in Guardsmark, the Board majority cut that period by another 24 hours, ruling that captive audience speeches must end 24 hours beforethe ballots are due to be mailed by the Regional Office (what the majority finds is the "scheduled time" for the election within the meaning of the Peerless Plywoodcase).
In cases involving manual ballots, all captive audience speeches must end at least 24 hours before the voting period begins.
Under any of the rules, regardless of type of ballot, there is no statutory or Board-created constraint whatsoever on unions' ability to meet with employees outside of the workplace.
Meanwhile, on January 15, a group of 106 college and law school professors petitioned the NLRB to adopt a new rule that would allow "equal time" for unions in representation elections to give captive audience speeches in the workplace. ("Interested persons" are allowed to petition the Board for changes to the Board's rules or regulations.) Among other things, the academics assert that an employer who has not given a union an equivalent opportunity to talk with employees has interfered with the "laboratory conditions" necessary for a fair election. They also advocate setting aside any election in which a union loses after not being given equal time.
Under current Board law, employers are permitted to give such speeches to employees while they are at work, provided the speeches are not given within the 24-hour period before voting starts. Employers regularly do so, and pay the employees for the time spent in the meetings. Unions are not normally offered on-site, on-the-clock access to communicate their message, but they typically have unfettered access to employees outside of work and fewer restrictions regarding what they can say.
The academics' proposal, if adopted, would change the current balance and force employers to give up property rights and employer-control rights during employees' paid time at work.