The National Labor Relations Board has significantly changed its rule governing when “mass campaign meetings” with employees by the parties (employer or union) to an NLRB-conducted mail-ballot election may be held. Mass campaign meetings are planned or unplanned “captive-audience” meetings or discussions about unionization involving two or more employees at a time. The new rule provides that a captive-audience employee meeting by either of the parties to the election ending less than 24 hours prior to the ballot mailing by an NLRB’s Regional Office is unlawful. Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016).

In 1953, in Peerless Plywood Co., 107 NLRB 427, the NLRB, in the context of a manual (in-person) election, ruled that mass captive-audience speeches by either party to the election ending within the 24-hour period prior to the start of such an election violated the National Labor Relations Act. Next, in Oregon Washington Telephone Co., 123 NLRB 339 (1959), involving a mail-ballot election, the Board decided that its captive-audience meeting prohibition did not begin until the time and date the ballots are mailed to voters. In its latest move, in Guardsmark, LLC, the Board decided that, because the Oregon Washington Telephone mail-ballot election rule did not contain a 24-hour component, there was a “counter-intuitive difference” between the rules in manual and mail-ballot elections that “invited confusion.” Therefore, the Board overruled Oregon Washington Telephone, adding a 24-hour requirement in mail-ballot elections “to align the mail-ballot rule more closely with the manual-ballot rule.”

As part of the pre-election procedure, the Regional Director notifies the parties of the date and time the ballots will be mailed. The Notice of Election issued by the Regional Director also will state the date and time the ballots will be mailed.

This rule change is very significant. It is a trap for the unwary:

  • It overturns guidance set more than 50 years ago in the questionable interest of symmetry.
  • It adds yet more time to the period in which employers are forbidden from addressing groups of employees about the issues in a Board mail-ballot election. (Employees typically are given two weeks to return their ballots; employers are forbidden to hold captive-audience meetings during that entire period, to which Guardsmark has added an additional 24 hours.)
  • It exposes unsuspecting employers to a greater risk of having the NLRB snatch election victories from their grasp.   An employer’s failure to comply with the captive-audience rule can result in the automatic invalidation of an employer’s election victory (if the union files a post-election “objection”) and the ordering of a re-run election.

An employer faced with a mail-ballot election must know the date and time the ballots will be mailed and instruct all of its supervisors not to conduct any group meetings or discussions with employees about unionization less than 24 hours prior to the NLRB’s mailing of ballots. Employers, however, may continue to have one-on-one discussions.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.