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NLRB Changes Captive Audience Rule for Mail Ballot Elections


The NLRB last week issued a decision prohibiting employers from holding captive audience meetings 24 hours before mail ballots are scheduled to be mailed (previously such meetings could be held until 24 hours after ballots were scheduled to be mailed), giving unions new grounds for filing objections in mail ballot elections.

In an interesting wrinkle, this case arose after the employer (Guardsmark) filed election objections. In advance of the election, the employer had sought clarification as to when it was prohibited from holding mass captive audience meetings. The Region informed it that the prohibition began 24 hours prior to ballots being mailed, and the employer chose not to hold any mass meetings prior to ballots being mailed. Guardsmark then filed objections arguing workers had been disenfranchised because of the Board’s instruction not to hold captive audience meetings 24 hours before ballots were mailed.

The dissent argued that the previous rule met the policies underlying the Peerless Plywood rule, as most workers would have a full 24 hours free from captive audience meetings before ballots arrived in the mail, but the majority concluded that for the sake of “clarity, uniformity, and simplicity,” it was preferable to have a single rule for all elections: no captive audience meetings 24 hours before an election is scheduled to begin (the Board concluded that a mail ballot election “begins” when ballots are mailed).

Notably, violations of the captive audience meeting rule automatically result in a rerun election, so unions should be careful to monitor compliance with the Board’s new rule. A full copy of the decision is available here

Miscellaneous Tips and Tricks for Mail Ballot Elections

1) The prohibition against captive audience meetings applies for entirevoting period.
2) Unions and employers must preserve secrecy and cannot help voters fill out ballots. Voters should fill out ballots out of sight of union or employer agents.
3) Voters must contact the Region if they have not received or have misplaced a ballot and the Region will send a duplicate ballot.
4) Union or employer agents cannot pick up replacement mail ballots, or collect or solicit ballots for submission.
5) Failure to sign the outer envelope voids a ballot. So does printing rather than signing one’s name. Make sure voters know to sign the envelope!