Can’t Hold Me Down! – NLRB Extends Time Period for Captive Audience Ban

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11/23/2017

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Can’t Hold Me Down! – NLRB Extends Time Period for Captive Audience Ban

By: Michael C. Saqui

The NLRB has ended a 50-year-old rule which allowed employers to hold “captive audience” meetings up to the 24-hour period before an election is to be held with regard to elections via mail-in ballots. Normally, in a conventional election, employers are barred from holding captive audience meetings 24 hours before the employees are scheduled to mark the ballot. With mail-in ballots, there was some confusion in the case law about when the ban was supposed to start. Some cases held that the ban was measured from when employees were able to mark the ballot, others held that the ban was measured from when the ballots were scheduled to be mailed out. 

In Guardsmark LLC, the NLRB clarified the confusion and established a bright-line rule that no captive audience meetings are permitted within the 24 hours before ballots are scheduled to be mailed out. Based on the mailing time, this effectively extends the ban significantly, severely restraining an employer’s ability to communicate its opinion about the union. The dissent criticized the rule as making the situation more confusing by having one set of rules for mail-in elections and yet another set of rules for conventional elections.

This development follows a trend of union-friendly decisions coming out of the NLRB in recent months. This decision taken along with the NLRB’s new ambush election rules, position on class action waivers, and a recent proposal by a group of law professors to draft a rule allowing unions to hold workday meetings on company property, clearly reflect an anti-employer trend. With President Obama in the last year of his term, this trend is likely to continue as the outgoing president will have the opportunity to fill two more seats on the Board with pro-labor members for 5-year terms before his departure.

COUNSEL TO MANAGEMENT:

An election is a particularly momentous event that requires expert management. A union election can have long-term effects on the operation of your business. The rules on captive audience meetings, employer conduct, and the procedure for the election have many pitfalls, traps, and technicalities which can have dire consequences for your business if you do not have an expert there to navigate them. If your business is facing an impending election or you have questions about the new captive audience ban rules, contact the experts at The Saqui Law Group today.


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