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Employers saw a flurry of union-friendly decisions by the National Labor Relations Board (“NLRB”) in 2015, and, thus far, 2016 has brought more of the same.

In one recent decision, Guardsmark, LLC, the NLRB changed its longstanding rule on when employers may hold “captive-audience” meetings before union elections conducted through mail ballots. The Board’s decision shortens by 24 hours the time period within which employers are permitted to hold such meetings.

Background

During union election campaigns, employers often hold captive-audience meetings – i.e., presentations that employees are required to attend, at which the employer makes its case as to why employees should vote against unionization. Under the National Labor Relations Act, employers are permitted to hold captive-audience meetings during the work day, require employees’ attendance, and discipline employees if they fail to attend.

Captive-audience meetings are frequently used by employers for advocating a “no” vote, and, generally speaking, they are an effective tool. According to a 2009 Economic Policy Institute study, between 1999 and 2003, unions prevailed in 47 percent of election campaigns when the employer held at least one captive-audience meeting, but a much higher 73 percent of campaigns when the employer did not hold a captive-audience meeting.

Legal Precedents

Since a 1953 decision, Peerless Plywood Co., the NLRB has prohibited employers from holding captive-audience meetings within the 24-hour period prior to a union election. The rationale behind this prohibition is that employees should be left undisturbed during the final hours before an election to make their final voting decisions.

In a subsequent decision issued in 1959, Oregon Washington Telephone Co., the NLRB refined this rule in the context of elections conducted through mail balloting. (While union elections are traditionally held through manual ballots, NLRB procedures permit mail balloting in certain situations, such as where eligible voters are scattered over a wide geographic area because of their job duties, or where eligible voters’ work schedules vary significantly, so that designating a particular day for manual voting would be difficult.)

Specifically, Oregon Washington Telephone Co. prohibited employers from holding captive-audience meetings from the date and time the ballots are scheduled to be sent out by the NLRB Regional Director until the date and time set as the deadline for the ballots to be returned.

NLRB’s Guardsmark Ruling

In the NLRB’s recent Guardsmark case, a Stipulated Election Agreement established a mail-ballot union election under which ballots were scheduled to be mailed to employees at 3 p.m. on January 28, 2015. Several days before the mailing date, the employer sought confirmation from the NLRB Regional Office as to the agency’s position regarding the timing of captive-audience meetings prior to a mail-ballot election.

Despite the longstanding and seemingly clear holding of Oregon Washington Telephone Co., the NLRB agent informed the employer that it could not conduct a captive-audience meeting within 24 hours prior to the scheduled date and time for mailing the ballots. Two additional requests by the employer for clarification yielded the same answer, and the NLRB Regional Director subsequently affirmed that position. After the union prevailed in the election, Guardsmark objected to the election.

On review, the NLRB majority upheld the Regional Director’s position, concluding 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.” In addition, the majority asserted that the new rule would help to avoid “ambiguity” by establishing a uniform 24-hour rule governing the timing of captive-audience meetings, regardless of whether an election is to be held by manual or mail balloting.

Implications And Recommendations

The Guardsmark majority claimed that its decision would avoid potential confusion as to how the captive-audience rule applies in the context of a mail-ballot election. This assertion seems dubious, however, in light of the longstanding and seemingly clear Oregon Washington Telephone Co. decision. Rather, it appears that the labor-friendly Obama NLRB simply viewed the case as another opportunity to tip election scales in favor of unions.

At any rate, employers facing mail-ballot union elections should be sure to comply with the new Guardsmark rule, as a captive-audience meeting held in violation of the new time restriction could constitute grounds for overturning an election result in an employer’s favor.

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Please feel free to contact us with any questions about the Guardsmark decision or union elections generally. The Firm’s attorneys have a wealth of experience in this area, and we would be happy to help.