NLRB Mails it In: Captive-Audience Speeches in Mail-Ballot Elections Now More Restrictive
By Ruder Ware Alumni
February 4, 2016
For most companies that have experienced a union organizing campaign, the concept of “captive audience” speeches on the eve of a manual, secret-ballot election is very familiar. In this context, the National Labor Relations Board (“NLRB”) has long held that employers are generally prohibited from conducting massed captive-audience speeches within the 24-hour period prior to the scheduled start of a manual, secret-ballot representation election. This is the so-called “24 hour rule.” This rule does not prohibit, however, certain other types of voluntary meetings with employees or non-coercive, one-on-one meetings with employees during the 24-hour prohibited period.
For over 50 years, mail-ballot representation elections have been guided by a slightly different set of rules—employers are generally prohibited from conducting massed captive-audience speeches from the time the mail ballots are scheduled to be dispatched until the time and date set for their return. In other words, speeches during the 24-hour period leading up to the dispatch of the ballots historically have been permissible.
Recently, the NLRB, in Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016), changed the rules of the game in connection with mail-ballot representation elections. According to the NLRB, in response to “confusion” concerning the mail ballot election rules [and the NLRB’s apparent misapplication of the law precipitating the Guardsmark case—perhaps creating a self-fulfilling prophecy?], employers are now prohibited from conducting massed captive-audience speeches within the 24-hour period prior to the date and time mail ballots are scheduled to be dispatched until the time and date set for their return.
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