Captivating! NLRB Reverses 57-Year-Old Decision, Expands "Captive Audience" Rule in mail Ballot Elections

In conjunction with other recent changes to its rulings regarding organizing and elections, the National Labor Relations Board recently ruled to expand the period of time during which "captive audience" meetings are banned in mail-ballot elections. The ruling aligns the rules for manual and mail-ballot elections. Although this alignment may simplify compliance, employers should be aware that captive audience meetings are now banned 24-hours prior to the mailing of ballots and that the ban continues through the election.

Captive Audience Background

Since 1953, National Labor Relations Board (NLRB) precedent has prohibited employers and unions from holding mandatory-attendance mass campaign assemblies, speeches, or similar communications less than twenty-four hours before the scheduled time for an election (i.e., "captive audience" meetings). Peerless Plywood, 107 NLRB 427 (1953).

Later NLRB precedent interpreted the Peerless Plywood case to apply to manual elections—and applied the captive audience rule differently to mail-ballot elections. Specifically, in Oregon Washington Telephone Co., 123 NLRB 339 (1959), the NLRB held that in mail-ballot cases, the captive audience rule applied only from the time that the ballots were actually mailed by the NLRB regional office, rather than 24 hours before. The ban continued until the terminal time and date for the return of the ballots.

The Guardsmark Decision

In its new decision in Guardsmark, Inc., 10-CA-121178, 363 NLRB No. 104 (2016), the NLRB found that the different standards for the two types of elections caused confusion. The NLRB then looked to its Rules and Regulations and held that the "scheduled time for conducting" a mail-ballot election "shall be deemed to have commenced the day the ballots are deposited by the regional office in the mail." 29 C.F.R. §102.67(k) (2014). After making this determination, the NLRB officially overturned Oregon Washington Telephone Co. and chose to apply the earlier Peerless Plywood standard. 

Therefore, the NLRB will now treat mail-in ballot elections and in-person elections the same with regard to the 24-hour captive audience prohibition. This means that the parties to an election are prohibited from "speeches that tend to interfere with the sober and thoughtful choice which a free election is designed to reflect" for a full 24-hour period even before the ballots are mailed.