Labor Relations Today

Labor Relations Today

Three Lawsuits Take First Shots at New DOL ‘Persuader Rule’

Posted in Department of Labor, Federal Court Litigation, Persuader Rules

The Department of Labor’s final rule regarding the advice exemption to the “persuader rule” in the Labor-Management Reporting Disclosure Act of 1959 (LMRDA) is currently facing three lawsuits filed by various law firms, business groups, and associations. The DOL’s new Rule modifies the “advice exemption” by revising the instructions to forms filed by employers (Form LM-10) and labor relations consultants (Form LM-20) to report persuader agreements and arrangements. According to those new instructions, the advice exemption is significantly narrowed in an attempt to increase the number of disclosures required to be filed by employers and their labor relations consultants and law firms. The three lawsuits assert similar claims in three different jurisdictions.

The first lawsuit was filed on March 30, 2015, one week after the Rule was issued, in the Eastern District of Arkansas by the National Association of Manufacturers, other industry groups, and a law firm.  The lawsuit asserts that the Rule:

  • “infringes on the right of those who seek to give labor relations advice to employers, including the Plaintiff associations, attorneys, and other third party consultants…to render such advice without fear of criminal penalties for failing to file the reports newly required by the Rule”;
  • violates the plaintiffs’ First Amendment rights of Freedom of Speech and Freedom of Association; and
  • infringes on the confidentiality of the plaintiffs’ attorney-client communications and impermissibly invades the attorney-client relationship.

The second lawsuit, filed by a group of labor and employment law firms and an association of management-side labor and employment law firms, was filed on March 31, 2015, in the District of Minnesota. The Minnesota lawsuit, raising similar claims, asserts that the Rule “is an impermissible viewpoint-based regulation of speech” as it “singles out for regulation communications that are ‘anti-union.'”

The National Association of Home Builders and the National Federation of Independent Business (NFIB) filed the third challenge in the Northern District of Texas. In the Texas lawsuit the plaintiffs assert:

[The new rule] is without statutory authority, is in direct conflcit with specific existing statutory provisions, is contrary to Constitutional provisions, and usurps, without legal authority, the right of States to regulate the attorney-client relationship. It will require practicing attorneys to either violate DOL’s new federal “interpretation” of federal law or state ethics rules on disclosure of attorney-client information. DOL’s new rule illegally interferes with the right of Plaintiff’s employer-members to obtain confidential legal advice and impedes their right to communicate with employees about unions and workplace issues.

All lawsuits seek to enjoin the Rule pending a final decision on the merits and an order vacating the challenged rule.

Please continue to follow our blog, Labor Relations Today, our Twitter feed (@LRToday), and our Flipboard magazine for additional developments and analysis.

DOL Issues Final Persuader Rule Significantly Narrowing the Advice Exemption

Posted in Department of Labor, Persuader Rules

Today the Department of Labor issued its final rule for publication tomorrow, March 24, 2016, addressing the “advice exemption” to the so-called “persuader rule” in Labor-Management Reporting Disclosure Act of 1959 (LMRDA). Almost five years after it published the proposed rule, the DOL announced that it was adopting “the proposed rule, with modifications, [providing] increased transparency to workers without imposing any restraints on the content, timing, or method by which an employer chooses to make known to its employees its positions on matters relating to union representation or collective bargaining.” The final rule becomes effective 30 days after publication, and applies “to arrangements and agreements as well as payments (including reimbursed expenses) made on or after July 1, 2016.” Moreover, according to the DOL, the “persuader rule” applies to labor relations governed by both the National Labor Relations Act and the Railway Labor Act.

In the Final Rule, the DOL asserts that:

section 203(c) (known as the “advice exemption”) does not shield employers and their consultants from reporting agreements in which the consultant has no face-to-face contact with employees but nonetheless engages in activities behind the scenes (known as indirect persuader activities) where an object is to persuade employees concerning their rights to organize and bargain collectively.

Justifying the Final Rule’s interpretation of the “advice exemption,” the DOL claims that:

it is important for employees to know that if the employer claims that employees are family — a relationship will be impaired, if not destroyed, by the intrusion of a third party into family matters — it has brought a third party, the consultant, into the fold to achieve its goals. Similarly, with knowledge that its employer has hired a consultant, at substantial expense, to persuade them to oppose union representation or the union’s position on an economic issue, employees may weigh differently a claim that the employer has no money to deal with a union at the bargaining table.

The rule modifies the “advice exemption” by revising the instructions to forms filed by employers (Form LM-10) and labor relations consultants (Form LM-20) to report persuader agreements and arrangements. According to those instructions, reports must now be filed if the labor relations consultant undertakes activities that fall within the following categories:

  1. A consultant engages in direct contact or communication with any employee, with an object to persuade such employee; or
  2. A consultant who has no direct contact with employees undertakes one or more of the following activities with an object to persuade employees:
    • Planning, Directing, or Coordinating Supervisors or Managers.  This includes both meetings and other less structured interactions with employees. Examples include the consultant planning, directing or coordinating which employees they meet; where they meet; when they meet; for how long they meet; the topics discussed and the manner in which they are presented; the information gathered from the employees and how they should gather it; debriefing with the supervisor to orchestrate the next steps in the campaign; and identifying materials to disseminate to employees.
    • The Provision of Persuader Materials. This covers the providing of materials or communications to the employer, in oral, written, or electronic form, for dissemination or distribution to employees. However, a consultant’s revision of employer-created materials, including edits, additions, and translations, if an “object” of the revisions is to ensure legality as opposed to persuasion, does not trigger reporting. On the other hand, if the revisions are intended to increase persuasiveness of the material, then the reporting obligation is triggered. Where a consultant merely provides an employer with “off-the-shelf” material selected by the employer from a library or other collection of pre-existing materials prepared by the consultant for all employer clients, then no reporting is required as long as the consultant does not play an active role in selecting the materials for its client’s employees based on the specific circumstances faced by the employer-client.
    • Conducting a Seminar for Supervisors or Other Employer Representatives.  Seminar agreements must be reported when the consultant develops or assists the attending employers in developing anti-union tactics and strategies for use by the employer’s supervisors or other representatives. A consultant who merely solicits business by recommending that the employer hire the contractor to engage in persuasive activities does not trigger reporting. In no case is the employer required to file a Form LM-10 for attendance at a multiple-employer union avoidance seminar.
    • Developing or Implementing Personnel Policies or Actions. According to the DOL, reporting is only required if the consultant develops or implements personnel policies, practices, or actions for the employer that have as an object to, directly or indirectly, persuade employees (e.g., the identification of specific employees for disciplinary action, or reward, or other targeting, based on their involvement with a union representation campaign or perceived support for the union, or implementation of personnel policies or practices during a union organizing campaign). For example, if the consultant, in response to employee statements about the need for a union to protect against firings, develops a policy under which employees may arbitrate grievances, reporting would be required. However, if the grievance process was set up in response to a request by employees — without any history of a desire by them for union representation — or as a policy developed as part of a company’s startup of operations, without any indication in the agreement or accompanying communications that the policy was established to avoid union representation of the employer’s workforce, no reporting would be required.

The final rule, however, provides that:

no reporting is required by reason of a consultant merely giving “advice” to the employer, such as, for example, when a consultant offers guidance on employer personnel policies and best practices, conducts a vulnerability assessment for an employer, conducts a survey of employees (other than a push survey, i.e., one designed to influence participants and thus undertaken with an object to persuade), counsels employer representatives on what they may lawfully say to employees, conducts a seminar without developing or assisting the employer in developing anti-union tactics or strategies, or makes a sales pitch to undertake persuader activities. Reporting is also not required for merely representing an employer in court or during collective bargaining, or otherwise providing legal services to an employer.

In addition, the DOL eliminated the term “protected concerted activities” from the definition of “object to persuade employees” provided in the proposed rule. Instead, reporting is required only for agreements in which the consultant engages in activities with an object to persuade employees concerning representational and collective bargaining activities, but not “other protected concerted activities.”

Trade associations are given somewhat different treatment under the Final Rule. As a general rule, trade associations will only be required to report in two situations: 1) where the trade association’s employees serve as presenters in union avoidance seminars or 2) where they undertake persuader activities for a particular employer or employers (other than by providing off-the-shelf materials to employer-members).

In response to commenters’ assertions that the proposed rule violates the attorney-client privilege, the DOL repeatedly asserted:

None of the information required to be reported under the revised interpretation is protected by the attorney-client privilege. To the extent the agreement provides confidential details about services other than reportable persuader/information-supplying activities, the principles of attorney-client privilege would apply and such information is not reportable absent consent of the client.

Specifically, the DOL explained that as a general rule information such as the fact of legal consultation, clients’ identities, attorneys’ fees, and the scope and nature of the employment are not deemed privileged. Moreover, the DOL asserts that section 204 of the LMRDA, as a federal law, controls over any conflicting state ethics rules prohibiting the disclosure of confidential client information such as the identity of the client, the fact of representation, and the fees paid as part of that representation.

The DOL, however, did not address the impact that the Final Rule will have on consultants’ reporting requirements in Form LM-21, Receipts and Disbursements Report. Annual Form LM-21 requires the reporting and public disclosure of all clients and fees on account of any labor relations advice or services, even if unrelated to persuader activityIn response to comments concerned about the proposed rule’s impact on Form LM-21, such as the scope and detail of reporting about service provided to other employer clients, the DOL merely stated that Form LM-21 “is not the subject of this rulemaking.” Indeed, the DOL plans on publishing a proposed rule on Form LM-21 in September 2016, in which it will “propose mandatory electronic filing for Form LM-21 filers, and it will review the layout of the Form LM-21 and its instructions, including the detail required to be reported.”

According to the DOL, the average cost of compliance will be $151.14 per Form LM-20 for labor consultants, and is $226.70 per Form LM-10 for employers.

As there have been many critics to the proposed rule, including the American Bar Association and the Association of Corporate Counsel, it is almost a given that there will be legal challenges to the Final Rule. Also, some organizations have already issued press releases asserting that they will work with lawmakers to reverse the Final Rule. Accordingly, please follow our blog, Labor Relations Today, our Twitter feed (@LRToday), and our Flipboard magazine for additional developments and analysis.

NLRB Caught with Egg on its Face: ALJ Finds Agency Violated Federal Labor Law By Failing to Negotiate with its Union

Posted in NLRB, NLRB Administration, NLRB Misc.

Last month a Federal Labor Relations Authority administrative law judge found that the National Labor Relations Board, the agency whose duties include determining whether private employers bargain in good faith, violated its duty to bargain with its union under the Federal Service Labor-Management Relations Statute and the Rules and Regulations of the Federal Labor Relations Authority.

The case arose when the union, representing employees working for the NLRB’s General Counsel and the Chairman and Members (the Board) at the headquarters building, requested to bargain over issues related to the relocation of the NLRB’s headquarters. The NLRB and the union ultimately reached a ground rules agreement providing for two days of bargaining. The parties then met for two days, but the Union requested to continue bargaining the following week. The NLRB denied the request, insisting that the ground rules limited bargaining to two days.

The issue before the ALJ was whether, by participating in two days of negotiations called for in the ground rules, the NLRB fulfilled its statutory duty to bargain concerning the relocation. In its defense, the NLRB asserted that the union waived its right to future bargaining when it agreed to the ground rules and that the parties had reached impasse when the second day of bargaining ended.

The ALJ disagreed with the NLRB and chided it for its failure to bargain with the union:

Because the ground rules agreement cannot reasonably be interpreted as limiting the parties’ bargaining period to two days, I conclude that the Union did not waive its right to bargain until either an agreement was reached or the parties had come to an impasse. Additionally, the evidence conclusively demonstrates that the parties had not reached impasse. The parties had only begun to discuss the many issues on the table, neither side had submitted a full range of counterproposals, and the Agency inexplicably refused even to attempt mediation. These factors establish that there was a strong potential for further and productive bargaining, if only the Agency had the patience to persist beyond its arbitrary deadline. Therefore, the Agency violated its duty to bargain and deprived the Union of a proper opportunity to negotiate the impact and implementation of the move to a new headquarters.

The NLRB’s bargaining team included, among others, Andrew Krafts, Deputy Chief General Counsel to Member Nancy Schiffer, and Rachel Lennie, Richard Griffin’s Assistant General Counsel.

The Battle Over the Status of Uber and Lyft Drivers Continues

Posted in Federal Court Litigation, NLRA, State/Local Issues, Unfair Labor Practices

Uber and Lyft have seen a number of attacks challenging the status of their independently contracted drivers in an effort to force both companies to reclassify and/or treat their drivers as employees. A recent example was a local ordinance enacted in Seattle, Washington, allowing drivers working for ride-hailing companies like Uber and Lyft the right to unionize. Specifically, the ordinance, enacted in December 2015, would allow drivers working for the same company to form a nonprofit organization that would collectively bargain for them.

However, on March 3 the U.S. Chamber of Commerce filed suit in Washington federal court challenging the ordinance. In addition to various challenges under state law, the complaint’s primary challenges under federal law rely upon the Sherman Antitrust Act and the National Labor Relations Act.  The complaint asserts that the ordinance violates and is preempted by the Sherman Antitrust Act as it would allow the independently contracted drivers to form an illegal cartel and engage in illegal horizontal fixing of prices. Federal labor law also preempts the city ordinance, according to the complaint, because:

  • Congress expressly left independent contractors unregulated and excluded from the NLRA’s collective-bargaining requirements; and
  • the NLRA preempts state resolution of issues committed to the exclusive jurisdiction of the National Labor Relations Board.

The complaint specifically notes that the “NLRB has not definitely resolved the employee status of drivers who receive ride requests from software applications and, indeed, as to certain drivers, that issue is currently pending before the NLRB.”

The lawsuit presumably references five different NLRB cases where the Board, as part of its investigation of alleged unfair labor practices by Uber, must determine whether Uber’s drivers are employees or independent contractors. As part of its investigation of those cases, the NLRB issued two subpoenas to Uber requiring the production of sworn answers to 107 written interrogatories and 34 requests seeking production of documents “regarding…the threshold issue of whether the drivers at issue are employees under Section 2(3) of the Act.”

Uber has produced some documents responsive to the subpoenas, but, according to the NLRB, Uber “has not provided the majority of the documents and information requested in the Subpoenas. It continues to maintain that the Board is not entitled to the answers and documents it requested in its Subpoenas, and it has limited its scant production of evidence to the two Charging parties that filed charges in Region 20.” As a result, the NLRB filed a lawsuit in a California federal court to enforce the subpoenas. While the federal court will not decide the “threshold issue,” its decision will determine what information the NLRB has to evaluate the independent contractor issue. If the NLRB ultimately determines that Uber’s drivers should be classified as employees and not independent contractors, it will issue a complaint and have a hearing before an administrative law judge to decide that issue.

Please continue to follow the blog, our Twitter (@LRToday) feed, and our Flipboard magazine for developments on this petition.

NLRB Invites Briefs on Whether It Should Continue to Permit Administrative Law Judges to Approve Unilateral Settlement by “Consent Order”

Posted in Amici Briefs, NLRB

On February 19, 2016, the National Labor Relations Board (the “Board”) invited briefs from interested parties to consider whether the Board should continue to permit Administrative Law Judges to issue “consent orders,” subject to review by the Board, incorporating the terms proposed by the respondent to settle an unfair labor practice case, to which no other party has agreed, over the objection of the Board’s General Counsel.

The Board consistently has maintained a policy to encourage settlements which effectuate the purposes of the National Labor Relations Act.  Consistent with the policy, an Administrative Law Judge is authorized to accept a proposed settlement even if the General Counsel and the charging party oppose such action.  Thus, a respondent may propose a unilateral agreement, which the Administrative Law Judge may approve, based on the totality of the circumstances surrounding the agreement, in the form of a “consent order.”

In United States Postal Service, the Administrative Law Judge approved a unilateral settlement agreement by “consent order” over the objection of the charging party and the Board’s general counsel.  In seeking review, the General Counsel averred that the respondent is a recidivist that has committed hundreds of labor law violations across its many facilities.  According to the General Counsel, the “consent order,” which restricted the settlement to one facility and included a six-month sunset clause, is contrary to the Board’s goals of preventing recidivism and monitoring compliance with decisions.

The Board’s invitation to file briefs asks two questions:

  1. May the Board, consistent with Section 3(d) of the National Labor Relations Act, continue to permit administrative law judges to issue a “consent order,” subject to review by the Board, incorporating the terms proposed by a respondent to settle an unfair labor practice case, to which no other party has agreed, over the objection of the General Counsel?
  2. If Section 3(d) does allow the Board’s current practice, should the Board alter or discontinue the practice as a matter of policy?

Briefs are due by March 18, 2016, with responsive filings by April 1, 2016.

NLRB Invites Briefs on Whether Revise Its Treatment of Search-for-Work Expenses as Part of the Make-Whole Remedy

Posted in Amici Briefs, NLRB, Remedies

On February 19, 2016, the National Labor Relations Board (the “Board”) invited briefs from interested parties in a case considering whether the Board should revise its treatment of search-for-work expenses and interim employment expenses as part of the make-whole remedy for unlawfully discharged employees.

For decades, the Board has treated an unlawfully discharged employee’s reasonable search-for-work and interim employment expenses as an offset to reduce the amount of interim earnings subtracted in calculating gross backpay.  Under current Board law, a discharged employee who incurred expenses while searching for interim work, but was ultimately unsuccessful in finding employment, is not entitled to any reimbursement for expenses.  Likewise, a discharged employee who obtains interim employment but earns less interim earnings than his or her search-for-work expenses also is not entitled to reimbursement. In King Soopers, Inc. (27-CA-129598), the Board’s General Counsel contended that current Board law is inequitable and contrary to the National Labor Relations Act’s remedial principles.  According to the General Counsel, a discharged employee should be entitled to an award of search-for-work expenses as part of the make-whole remedy regardless of whether the discharged employee received interim earnings.

The Board’s invitation to file briefs asks three questions:

  1. Should the Board adopt the change requested by the General Counsel?
  2. What considerations warrant retaining the Board’s traditional treatment of search-for-work and interim employment expenses?
  3. What considerations warrant making the requested change?

Briefs are due by March 18, 2016, with responsive filings by April 1, 2016.

Electrical Subcontractor Cannot Catch a Break from the Eighth Circuit

Posted in Duty to Bargain, Federal Court Litigation, NLRA, NLRB, Unfair Labor Practices

On February 9, 2016, the Eighth Circuit Court of Appeals held that National Labor Relations Board (the “Board”) properly concluded that an electrical subcontractor violated the National Labor Relations Act when it unilaterally changed its employee break policy without affording the employees’ union an opportunity to bargain over the change. Parsons Electric, LLC v. NLRB, Nos. 14-3239 and 14-3662 (8th Cir. Feb. 9, 2016).  This decision is a reminder for employers to consider whether a change in the terms and conditions of employment is sufficiently significant to require bargaining with a union before implementation.

Although the collective bargaining agreement between the employer and the union was silent on employee breaks, since at least 2005, the employer maintained a written employee break policy providing for a 15-minute break in the morning and a 15-minute break in the afternoon, subject to jobsite managerial discretion. In 2012, however, the employer amended its employee break by eliminating the default 15-minute breaks and stating that “[the employer] may establish specific break policies as part of the jobsite expectations.”  After a number of employees complained to the union that the employer ceased permitting afternoon breaks and early departures in lieu of breaks, the union filed an unfair labor practice charge.

Giving considerable deference to the Board, the Eighth Circuit concluded that the policy change was “material, substantial, and significant,” thus requiring the employer to bargain with the union. As the court explained:

To be sure, [the employer] retained discretion to override the two-break standard if the particular ‘jobsite expectations’ so required, but under the 2005 Break Policy, that discretion would be exercised as an exception to the default rule. The 2012 Break Policy, by contrast, eliminated the default rule with respect to employee breaks and instead granted [the employer] unfettered discretion to determine whether employee breaks would be permitted at all, and, if they were permitted, when they would occur and how long they would last.

In other words, while the 2005 break policy provided employees with a “specific, concrete standard,” the 2012 break policy left the determination of breaks entirely to management.

The Eighth Circuit also rejected the employer’s argument that the 2012 break policy was nothing more than a clarification of the company’s standard practice under the former policy. Again deferring to the Board’s findings, the Eight Circuit noted that “the Board credited evidence and testimony that, prior to 2012, the typical practice at [the employer’s] jobsites was to follow the default standard set forth in the 2005 Break Policy.”  In the end, the court denied the employer’s petition for review and granted the Board’s petition for enforcement of its order.



West Virginia Inches Closer to Enacting Right-To-Work Law

Posted in Legislation, State/Local Issues

On Thursday, February 4, the West Virginia House of Delegates voted 54-46 to pass the “Establishing West Virginia Workplace Freedom Act,” a measure that would allow employees to opt-out of paying union dues. The Senate, which previously passed the bill 17-16 along party lines, must approve the bill again as it was amended by the House. Governor Earl Ray Tomblin has committed to vetoing the bill, but only a simply majority in the House and Senate is needed to override any veto. If enacted, West Virginia will become the 26th state to have a right-to-work law.

Additional coverage:

Eleventh Circuit Court of Appeals Overrules National Labor Relations Board; Holds That Stagehands Are Independent Contractors, Not Employees

Posted in Federal Court Litigation, NLRA, NLRB

Vacating a National Labor Relations Board (the “Board”) decision that a stagehand referral service violated the National Labor Relations Act by refusing to bargain with its stagehands’ union representative, on February 3, 2016, the Eleventh Circuit Court of Appeals held that the stagehands were independent contractors and not employees of the referral service.  In Crew One Prods., Inc. v. NLRB, No. 15-10429 (11th Cir. Feb. 3, 2016), a three-judge panel concluded that the vast majority of factors used to determine independent contract status led to only one conclusion: “the stagehands are independent contractors and the decision of the Board was contrary to law.”

The employer at issue was a referral service, which referred stagehands to event producers for concerts, plays, trade shows, and other events in the Atlanta area.  The employer offered jobs to the stagehands on a first-come, first-served basis; did not withhold taxes or offer benefits to the stagehands; did not prohibit the stagehands from accepting jobs from other referral services or from doing other work; did not provide the stagehands with any tools (other than a company vest for safety and identification reasons); and required the stagehands to sign independent contractor agreements.  For any job, the employer required only that the stagehands check-in and check-out with the company in order to keep track of their hours.  Nevertheless, when a union petitioned the Board to represent the stagehands, the Board concluded that the stagehands were employees and not independent contractors, directed an election, and certified the union.

In overruling the Board, the Eleventh Circuit concluded that the Board made “five errors…when it applied the law to the facts.”  Among those five errors, the Board did not give adequate weight to the facts that the employer did not withhold the stagehands’ taxes and that the stagehands signed independent contractor agreements.  The court also found irrelevant the Board’s consideration of the stagehands’ inability to negotiate their pay and erroneous the Board’s conclusion that the stagehands performed the “essential functions” of the employer’s operations.

Most importantly, the court stated that the Board widely missed the mark in its analysis of the most critical factor of the independent contractor analysis—control.  As the court explained, “[t]he requirement that stagehands check in and check out evinces control over the ends of the job, not the means of it.  Contrary to the Board’s findings, “[o]nly the event producers and touring crews control the means of the work performed by the stagehands, and [the employer] lacks the expertise to direct the stagehands in their work for any particular client.”  Considering all of the factors, the Eleventh Circuit vacated the Board’s decision.

Although the Board and other federal government agencies continue to be hostile to independent contractor relationships, the Eleventh Circuit’s decision is a welcome reminder that not all workers classified as independent contractors are actually employees.

NLRB Legitimizes Improper Mail Ballot Election Rule Followed by Certain Regional Offices

Posted in NLRB, NLRB Decisions, Representation Elections

For more than 50 years, the Board has maintained a rule for mail ballot elections prohibiting the parties from holding mass campaign meetings on company time (commonly referred to as “captive audience” meetings) with employees “from the time and date on which the ‘mail in’ ballots are scheduled to be dispatched by the Regional Office until the terminal time and date prescribed for their return.” Oregon Washington Telephone, 123 NLRB 339 (1959). Last week, however, the Board “ironically” decided to overrule that long-standing rule and replace it with a rule incorrectly followed by at least two regional offices.

In Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016), the Board majority of Chairman Pearce and Members Hirozawa and McFerran declared that the new rule was needed because of confusion surrounding the rule and a need for a “bright line” standard. The confusion, however, was of the NLRB’s own creation. The Board’s Representation Case Outline of Law provides that:

Where an election is conducted by mail, the Regional Director must give all parties 24 hours’ notice of the date when the ballots are to be mailed. Employers and unions alike are prohibited from making speeches on company time to massed assemblies from the time and date the ballots are scheduled to be sent out by the Region until the time and date set for their return. Oregon Washington Telephone Co., 123 NLRB 339 (1959); and San Diego Gas & Electric, 325 NLRB 1143 (1998).

While correctly setting forth the Oregon Washington Telephone rule, the Representation Case Outline cites San Diego Gas, in which the Board’s majority, concurring, and dissenting opinions all incorrectly explained (in dicta) that the prohibition of captive audience meetings started 24 hours before the ballots are mailed.

Finally, we reject the dissent’s contention that because, under the rule in Peerless Plywood Co., 107 NLRB 427 (1953), employers are prohibited from giving mass ‘‘captive audience’’ speeches to employees during the period beginning 24 hours before the actual balloting period begins, the use of mail ballots ‘‘significantly silences’’ the employer.


As the majority notes, an employer is free to conduct ‘‘captive audience’’ speeches throughout the campaign period until the Peerless Plywood rule takes effect 24 hours before the ballots are mailed and, during the actual balloting period, the employer is free to lawfully campaign in the workplace.


With respect to the factor of full opportunity to hear all points of view, we note that, under Peerless Plywood, 107 NLRB 427 (1953), the employer is essentially barred from having group meetings with employees during the 24-hour period before the balloting. While this rule may make good sense prior to a manual election, the application of that rule to a mail ballot election makes no sense. The mail ballot election occurs over a period of several weeks, and thus the Peerless Plywood rule applies to the entire period beginning 24 hours before the ballots are mailed by the Regional Director and ending with the return of the ballots.

Moreover, it appears that at least some regional offices of the NLRB were incorrectly following San Diego Gas to prohibit captive audience speeches in the 24 hour period before mail ballots were mailed by the Region, as evidenced by Region 5 in Guardsmark and Region 25’s Summer 2013 newsletter (page 5), in which it advised a union representative that the prohibition on captive audience meetings began 24 hours before the scheduled time for the mailing out of the ballots.

Member Miscimarra vehemently disagreed with the Board’s “clarification.” In his dissent Miscimarra asserts that the new rule does not create consistency, but rather “a double standard that, in [his] view, lacks any rational justification”:

By setting the starting time of the captive-audience-speech prohibition in mail-ballot elections 24 hours before a regional office puts ballots in the mail, my colleagues establish a new rule, contrary to over 50 years of precedent, that upsets the consistency between Oregon Washington Telephone and Peerless Plywood. My colleagues say the point in time 24 hours before ballots are mailed “seems to correspond most naturally to the Peerless Plywood rule.” To the contrary, by overruling Oregon Washington Telephone, my colleagues all but guarantee that, in mail-ballot elections, there will be a 48-hour prohibition against captive-audience speeches, double the 24-hour restriction adopted in Peerless Plywood for manual elections.