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.