Guardsmark, Inc.

National Labor Relations Board - Board Decisions

Jan 29, 2016

363 NLRB No. 103 (N.L.R.B. 2016)

363 NLRB No. 103
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Guardsmark, LLC and International Union, Security,
Police, and Fire Professionals of America
(SPFPA), Petitioner. Case 05–RC–143199
January 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, AND MCFERRAN
The National Labor Relations Board has considered
the Employer’s objections to a mail ballot election held
January 28, 2015, through February 11, 2015, and the
Regional Director’s report recommending disposition of
them.1 The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 11
for and 2 against Petitioner, with 2 void ballots and 0
challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the Regional Direc-
tor’s findings and recommendations, as further discussed
below.
The Employer’s Objection 2 alleges that the Employer
was improperly prohibited from holding a mass cam-
paign meeting—routinely called a “captive-audience
meeting”—with employees on the morning the ballots
were to be mailed. This raises the issue of when the cap-
tive-audience speech prohibition begins in mail ballot
elections. We agree with the Regional Director’s deci-
sion to overrule the objection, but we do not rely on his
rationale.
As the facts here illustrate, the Board’s existing rule
with respect to the mass captive-audience meeting prohi-
bition in mail ballot elections has been a source of confu-
sion. In Peerless Plywood Co., 107 NLRB 427, 429
(1953), the Board prohibited mass captive-audience
speeches by parties within the 24-hour period prior to the
start of a manual election. Although it is modeled on
Peerless Plywood, the mail-ballot rule at issue here,
adopted in Oregon Washington Telephone Co., 123
NLRB 339 (1959), does not begin the mass-meeting pro-
hibition 24 hours before the ballots are scheduled to be
mailed—the point that seems to correspond most natural-
ly to the Peerless Plywood rule. Instead, Oregon Wash-

1 The Regional Director’s “Report on Objections” inadvertently
contains rulings on the objections at issue, rather than recommenda-
tions, and provides for the filing of a request for review, rather than
exceptions. We have treated the Regional Director’s findings as rec-
ommendations and the Employer’s request for review as exceptions to
the Regional Director’s Report.
ington Telephone holds that the prohibition begins when
the ballots are scheduled to be mailed by the Regional
Office (as opposed to 24 hours before). Predictably, this
counter-intuitive difference between the mail-ballot rule
and the manual-election rule of Peerless Plywood invites
confusion. To avoid perpetuating that confusion, we
have decided to overrule Oregon Washington Telephone
and to align the mail-ballot rule more closely with the
manual-ballot rule.
Facts
Pursuant to a Stipulated Election Agreement, a mail
ballot election was scheduled in a unit of approximately
33 security officers. The ballots were scheduled to be
mailed to employees at 3 p.m. on January 28, 2015. On
January 21, the Employer requested clarification from
the Regional Office as to the Board’s position regarding
mass meetings with employees prior to a mail ballot
election; it wanted to hold a mass meeting with employ-
ees on the morning of January 28. The Board agent han-
dling the election informed the Employer that it was pro-
hibited from conducting a mass meeting within 24 hours
of the scheduled time for the mailing of the ballots. The
Employer disputed that answer, relying in part on Ore-
gon Washington Telephone, and it subsequently sent two
emails to the Board agent requesting further clarification.
During a telephone conversation on the morning of Janu-
ary 26, the Board agent confirmed that mass meetings
were not permitted within the 24 hours prior to the mail-
ing of the ballots. In the afternoon of January 26, how-
ever, the Region faxed a letter to the Employer that stated
as follows:
Employers and unions 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); San Diego Gas & Electric, 325 NLRB
1143 (1998).
In light of the discrepancy between the letter and the
Board agent’s previous statements, the Employer imme-
diately sent another email to the Board agent seeking
clarification. During a telephone conversation later that
afternoon, the Board agent instructed the Employer to
ignore the written directions and not to hold any mass
meetings with employees within the 24 hours before the
ballots were scheduled to be mailed. At 5:10 p.m., the
Board agent sent an email to the Employer confirming
that the Region’s position was what he had stated during
the telephone conversation: “the parties in the instant
case may not make speeches on company time to massed
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
assemblies after 3:00 p.m. on Tuesday, January 27,
2015.”
The Employer chose not to hold any mass meetings
with employees prior to the mailing of the ballots.
Following the ballot count, the Employer filed, inter
alia, an objection alleging that the Region improperly
refused its request to hold a mass meeting in the hours
prior to the mailing of the ballots, thereby “limiting no-
tice to employees about the election.” The Employer
argued that the Region’s prohibition contributed to the
alleged disenfranchisement of a large number of voters,
and that pursuant to Oregon Washington Telephone, the
Employer should have been allowed to hold a mass
meeting on the morning of the election to tell employees
that ballots were being mailed out that day. The Region-
al Director recommended overruling this objection, rely-
ing on Peerless Plywood.2 The Regional Director found
that the Employer’s reliance on Oregon Washington Tel-
ephone was misplaced because, although the meeting in
that case occurred several days after the ballots had been
mailed to employees (and therefore was indisputably
within the prohibition period), the parties had not been
put on notice of the time and date set for the mailing of
the ballots. Therefore, in Oregon Washington Tele-
phone, the election was not set aside. See 123 NLRB at
341. Here, by contrast, the Employer had the requisite
notice of the scheduled mailing time because it was in-
cluded in the Stipulated Election Agreement and in the
notice of election. The Regional Director did not directly
address the Employer’s argument that under Oregon
Washington Telephone the mass meeting prohibition
period begins when the ballots are scheduled to be
mailed, not 24 hours earlier.
The Employer, continuing to rely on Oregon Washing-
ton Telephone, asserts that it should have been allowed to
hold a captive-audience meeting on the day the ballots
were to be mailed, and that the Region’s instructions to
the contrary require that Objection 2 be sustained and the
election be set aside. Our dissenting colleague agrees
with the Employer. For the following reasons, we disa-
gree.
Analysis
In Peerless Plywood, supra, 107 NLRB 427, the Board
established a rule to be applied “in all election cases,”
prohibiting employers and unions “from making election
speeches on company time to massed assemblies of em-
ployees within 24 hours before the scheduled time for

2 The Regional Director cited American Red Cross, 322 NLRB 401
(1996), for the proposition that the Peerless Plywood prohibition “is
explicitly extended to mail-ballot elections with stipulated election
agreements.”
conducting an election.” Id. at 429 (emphasis added).
That rule was established because “last-minute speeches
. . . have an unwholesome and unsettling effect and tend
to interfere with that sober and thoughtful choice which a
free election is designed to reflect.” Id. The Board fur-
ther found that “the real vice” of last-minute mass cap-
tive-audience speeches is that they tend “to create a mass
psychology” that gives an unfair advantage to the party
that “obtains the last most telling word.” Id.
In Oregon Washington Telephone, the Board stated
that “the reasons for promulgating the Peerless Plywood
rule are relevant to situations where balloting is conduct-
ed by mail.” 123 NLRB at 340. The Board articulated a
rule for mail ballot elections providing that notice will be
given to the parties at least 24 hours before the time and
date the ballots will be dispatched and that the parties
will be prohibited from making election speeches on
company time to massed assemblies of employees “with-
in the period set forth in the notice, i.e., 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.” 123 NLRB at
341.3
We agree with our dissenting colleague that the rule of
Oregon Washington Telephone is that the mass captive-
audience meeting prohibition in mail ballot elections
begins when the ballots are scheduled to be mailed and
not 24 hours before that time. Nevertheless, a more re-
cent, full-Board decision strongly suggests that this pro-
hibition in mail ballot elections does begin 24 hours be-
fore the ballots are scheduled to be mailed. See San Die-
go Gas & Electric, 325 NLRB 1143 (1998) (clarifying
the circumstances under which it is within the Regional
Director’s discretion to order a mail ballot election). In
setting forth their views in San Diego Gas & Electric on
the implementation of the Peerless Plywood prohibition
in mail ballot elections, all five Board members—despite
their awareness of the Oregon Washington Telephone
decision—agreed that the prohibition begins 24 hours
before the ballots are scheduled to be mailed.4 The

3 In American Red Cross, supra, 322 NLRB 401, the Board clarified
this rule with respect to stipulated election agreement cases, stating that
a stipulated election agreement that included the dispatch time and date
“provided sufficient written notice to the parties about the election.”
American Red Cross dealt with the impact of the Region’s failure to
send a formal notice of the date and time of ballot dispatch pursuant to
Oregon Washington Telephone and did not address the issue presented
here.
4 See 325 NLRB at 1151 (Members Hurtgen and Brame, dissenting)
(citing Oregon Washington Telephone for the proposition that “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”); 325 NLRB at 1148–1149 (Chairman Gould,
concurring) (“As the majority notes, an employer is free to conduct
GUARDSMARK, LLC 3
statements made in San Diego Gas & Electric were dicta,
but they reflect a shared misreading of Oregon Washing-
ton Telephone—and they represent the Board’s most re-
cent articulation (or misarticulation) of the Oregon
Washington Telephone rule. Moreover, although not
binding on the Board, Section 11336.2(b) of the
Casehandling Manual also cites Oregon Washington Tel-
ephone but provides that the mass-meeting prohibition in
mail-ballot elections begins 24 hours before the “dis-
patch time.” That section states as follows:
Written notification is sent to the parties at least 24
hours before the time and date on which mail ballots
will be dispatched to the voters, informing the parties
of the dispatch time and thus the time of the ‘start’ of
the election for application of the Peerless Plywood
rule. Oregon Washington Telephone Co., 123 NLRB
339 (1959); Peerless Plywood, 107 NLRB 427 (1953).
Although we note the ambiguity of this section, the state-
ment that the “dispatch time” is the “‘start’ of the election”
suggests that the captive-audience prohibition begins 24
hours before the time the ballots are scheduled to be mailed.
Given the confusion reflected in Board precedent and
the General Counsel’s instructions to the regional offices,
it is appropriate that we clarify at what point the captive-
audience speech prohibition begins in mail ballot elec-
tions. As discussed above, Peerless Plywood, which
applies “in all election cases,” prohibits employers and
unions “from making election speeches on company time
to massed assemblies of employees within 24 hours be-
fore the scheduled time for conducting an election.” 107
NLRB at 429 (emphasis added). The Oregon Washing-
ton Telephone Board did not provide a policy rationale
for a different rule in mail ballot elections, but our col-
league speculates that the Board selected the ballot dis-
patch time as the starting time of the captive-audience
speech prohibition “because this would normally provide
at least 24 hours free of captive-audience speeches before
employees receive their ballots.” Even if so, the essen-
tial purpose of the Oregon Washington Telephone rule,
like the Peerless Plywood rule, was to provide a “bright
line” standard. That endeavor has not been successful.
Thus, our overriding goal here is to achieve the clarity,

‘captive audience’ speeches throughout the campaign period until the
Peerless Plywood rule takes effect 24 hours before the ballots are
mailed . . . .”) (footnotes omitted); 325 NLRB at 1146 (Members Fox
and Liebman, joined in pertinent part by Chairman Gould) (“[W]e
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 peri-
od beginning 24 hours before the actual balloting period begins, the use
of mail ballots ‘significantly silences’ the employer.”
uniformity, and simplicity that a single rule for all elec-
tions will provide.
The question, therefore, is what is “the scheduled time
for conducting” a mail ballot election. In our view, it is
the time that the ballots are scheduled to be mailed.5
Accordingly, we believe that it is appropriate to provide
for a full 24-hour period before the ballot mailing that is
free from speeches that tend to interfere with the “sober
and thoughtful choice which a free election is designed
to reflect.” 107 NLRB at 429.6 To the extent that Ore-
gon Washington Telephone is inconsistent, it is over-
ruled. Although it is within the Board’s authority to ap-
ply this new rule retroactively,7 we find it unnecessary
here in the absence of objectionable conduct, as ex-
plained below.
As we indicated previously, we agree with our dissent-
ing colleague that the mass-meeting rule in effect at the
time of the events in this case was not Peerless Plywood,
but the one set forth in Oregon Washington Telephone.
We also agree that the Regional Office did not coherently
communicate this rule to the Employer, at least arguably
resulting in the Employer’s decision to forgo a mass
meeting of its employees within the 24-hour period be-
fore the ballots were mailed. Even assuming, however,
that the Region erred in this regard, we do not agree with
our colleague that the “inflexible consequence” of setting
aside the election is required or appropriate. There was
no “mass meeting” violation here, which was the prob-
lem that the Peerless Board and the Oregon Washington
Telephone Board addressed. Assuming there was an
error, it amounted to a procedural irregularity in the Re-
gion’s conduct of the election. In such circumstances, a
different legal standard applies.

5 This view is consistent with the Board’s Rules and Regulations.
See Sec. 102.67(k) (“In elections involving mail ballots, the election
shall be deemed to have commenced the day the ballots are deposited
by the regional office in the mail.”). See also FJC Security Services
Inc., 360 NLRB No. 115, slip op. at 8 (2014) (same); Club Demonstra-
tion Services, 317 NLRB 349, 349 (1995) (“The parties’ Stipulated
Election Agreement provided that the ballots in the instant mail ballot
election were to be mailed from the Regional Office on Wednesday,
May 27, 1992, thereby commencing the election on that date.”).
6 The dissent relies on the length of the captive-audience speech
prohibition in mail ballot elections as a reason not to include the 24
hours before the ballots are mailed in the prohibition period. We do not
share that view. The majority in San Diego Gas & Electric noted that
“during the Peerless Plywood period, the employer and its agents re-
main free to continue to campaign against the union not only through
mailings to employees at their homes, but also in the workplace, where
they can distribute and post literature, communicate with employees
one-on-one, and even continue to conduct mass meetings, as long as the
meetings are on the employees’ own time and attendance is not manda-
tory.” 325 NLRB at 1146. See also 325 NLRB at 1148–1149 (Chair-
man Gould, concurring).
7 See, e.g., UGL-UNICCO Service Co., 357 NLRB No. 76, slip op.
at 8, fn. 28 (2011).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The goal of the Board’s election procedure is to estab-
lish “those safeguards of accuracy and security thought
to be optimal in typical election situations.”8 The Board
acknowledges both that “strict compliance with its elec-
tion procedures does not guarantee the validity of an
election,” and that “deviation from these procedures does
not necessarily require setting aside an election.”9 There
is no “‘per se rule that . . . elections must be set aside
following any procedural irregularity.’”10 The test for
setting aside an election based on regional office conduct
is whether the alleged irregularity raised “a reasonable
doubt as to the fairness and validity of the election.”11
The objecting party’s showing of prejudicial harm must
be more than speculative to establish that a new election
is required.12
In its exceptions, the Employer argues that the Re-
gion’s alleged procedural error contributed to a disen-
franchisement of eligible voters. Specifically, the Em-
ployer contends that the purpose of its proposed mass
meeting was to inform employees of the time when the
ballots would be mailed. It argues that the Region’s
mixed messages on the meeting-prohibition period re-
sulted in a chilling of its right to hold the meeting. The
Employer thus concludes that the Region engaged in
objectionable conduct that, together with other alleged
objectionable conduct, resulted in a low ballot return in
the election and requires a second election. We disagree.
We have overruled the Employer’s other objections.13
Thus, we are left with this single instance of alleged vot-
er disenfranchisement. There is no question that the Em-
ployer was free to hold a mass meeting up until 3 p.m. on
January 27 to convey its intended message. In light of
this and other means available to remind the employees
of the date the ballots would be mailed,14 we are not per-
suaded that the Employer’s decision not to hold a mass
meeting for this purpose on January 28 raises any serious

8 Polymers, Inc., 174 NLRB 282, 282 (1969), enfd. 414 F.2d 999
(2d Cir. 1969), cert. denied 396 U.S. 1010 (1970).
9 Affiliated Computer Services, 355 NLRB 899, 909 (2010).
10 St. Vincent Hospital, LLC, 344 NLRB 586, 587 (2005) (quoting
Rochester Joint Board v. NLRB, 896 F.2d 24, 27 (2d Cir. 1990)).
11 Polymers, Inc., supra at 282; see also Physicians & Surgeons Am-
bulance Service, Inc., 356 NLRB No. 42, slip op at 1 (2010), enfd. 477
Fed.Appx.743 (D.C. Cir. 2012).
12 See, e.g., Transportation Unlimited, 312 NLRB 1162 (1993), and
cases cited there.
13 In a separate decision issued today, the Board adopted the hearing
officer’s findings and recommendations overruling Objections 3 and 4,
finding that the failure of some eligible voters to receive ballots did not
warrant setting aside the election.
14 Here, it is undisputed that the date and time of the mailing was in-
cluded in the Stipulated Election Agreement, as well as the notice of
election.
questions regarding the validity of the election.15 More
significantly, we fail to see how employees not being
reminded again of the mailing date of the ballots in itself
resulted in employees being unable to complete their
ballots once received. The Employer’s evidence of dis-
enfranchisement is decidedly speculative.
Consistent with the foregoing discussion, the Regional
Office’s instruction prohibiting a mass campaign meeting
on the morning that the ballots were scheduled to be
mailed was not objectionable conduct. Accordingly,
Objection 2 is overruled.
ORDER
IT IS ORDERED that the Employer’s Objections 1, 2, 3,16
and 5 are overruled.17
Dated, Washington, D.C. January 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
In this case, the Region improperly prohibited “captive
audience” speeches1 for a longer period of time than is
established in longstanding Board case law. Employer

15 See, e.g., San Diego Gas, 325 NLRB at 1146, 1148–1149 (listing
available means of communicating with employees other than last
minute captive-audience meetings).
16 As noted by the Regional Director, objection 3 relates to two void
ballots and was to be considered at a hearing only if those two ballots
were determinative after objection 4 was resolved.
17 In light of the overruling of objections 1, 2, and 5 in this Decision
and Order, and the overruling of objections 3 and 4 in its separate deci-
sion issued today, the Board issued a Certification of Representative
attached to that decision.
1 The term “captive-audience speech” is commonly used to describe
election speeches made by employers or unions “on company time to
massed assemblies of employees.” Peerless Plywood Co., 107 NLRB
427, 429 (1953). For the past 50 years, the Board has maintained simi-
lar restrictions on captive-audience speeches in conventional (manual)
elections and mail-ballot elections, respectively. See the text accompa-
nying fn. 6 infra (Peerless Plywood standard applicable to manual
elections) and text accompanying fn. 8 infra (Oregon Washington Tele-
phone standard applicable to mail-ballot elections).
GUARDSMARK, LLC 5
Objection 2 complains that the Region prohibited cap-
tive-audience speeches beginning 3 p.m. Tuesday, Janu-
ary 27, 2015, which was 24 hours before ballots were to
be mailed from the Baltimore Regional Office.2 This
was clearly the wrong starting time for the prohibition
against captive-audience speeches in a mail-ballot elec-
tion. More than 50 years ago, in Oregon Washington
Telephone Co.,3 the Board held that, in a mail-ballot
election, the prohibition against captive-audience
speeches begins when the regional office puts the ballots
in the mail. In the instant case, the Region’s prohibition
started 24 hours too early. In Peerless Plywood,4 another
case decided in the 1950s, the Board stated a captive-
audience-speech rule that applies to manual elections
(when voters cast ballots in person). In a manual elec-
tion, the prohibition against captive-audience speeches
begins 24 hours before the scheduled commencement of
the election.
Ironically, my colleagues deal with the Region’s error
by making the Region’s mistake into a new requirement
applicable to all future mail-ballot elections. Summarily
overruling Oregon Washington Telephone, the majority
now holds that, in all mail-ballot elections, the prohibi-
tion against captive-audience speeches starts 24 hours
earlier than it did before. In my view, there is no valid
reason to change the rule established by Oregon Wash-
ington Telephone that, in a mail-ballot election, the pro-
hibition against captive-audience speeches begins when
the ballots are scheduled to be mailed. The Oregon
Washington Telephone “time of mailing” rule, which
applies to mail-ballot elections, is consistent with the
Peerless Plywood 24-hour rule, which applies to manual
elections. Therefore, I disagree with my colleagues’
statement that overruling Oregon Washington Telephone
will “align the mail-ballot rule more closely with the
manual-ballot rule.” To the contrary, my colleagues’
decision misaligns what was already aligned and has
been consistently applied by the Board for more than 5
decades. Accordingly, as to this issue, I respectfully dis-
sent.
Discussion
The principles that govern captive-audience speeches
are set forth in two cases applicable here. The first is
Peerless Plywood, which dealt with a conventional
(manual) election, where the Board expressed concern
that “last-minute speeches by either employers or unions
delivered to massed assemblies of employees on compa-

2 The scheduled time of mailing was 3 p.m. Wednesday, January 28,
2015.
3 123 NLRB 339 (1959).
4 107 NLRB at 427.
ny time have an unwholesome and unsettling effect and
tend to interfere with that sober and thoughtful choice
which a free election is designed to reflect.”5 Therefore,
in the context of a manual election, the Board articulated
an “election rule” “that employers and unions alike will
be prohibited from making election speeches on compa-
ny time to massed assemblies of employees within 24
hours before the scheduled time for conducting an elec-
tion. Violation of this rule will cause the election to be
set aside whenever valid objections are filed.”6
The Board in Peerless Plywood was careful to explain
that, not only did the prohibition apply to employers and
unions alike, but there were two sides to the rule: within
24 hours of the election, captive-audience speeches are
prohibited; before the 24-hour prohibition begins, cap-
tive-audience speeches “will not interfere with a free
election,” and parties are free to engage in such speech:
We institute this rule pursuant to our statutory authority
and obligation to conduct elections in circumstances
and under conditions which will insure employees a
free and untrammeled choice. Implicit in this rule is
our view that the combined circumstances of (1) the
use of company time for preelection speeches and (2)
the delivery of such speeches on the eve of the election
tend to destroy freedom of choice and establish an at-
mosphere in which a free election cannot be held. Also
implicit in the rule is our judgment that noncoercive
speeches made prior to the proscribed period will not
interfere with a free election, inasmuch as our rule will
allow time for their effect to be neutralized by the im-
pact of other media of employee persuasion.7
The second case that governs this area is Oregon
Washington Telephone Co., where the Board established
the following “election rule” applicable to mail-ballot
elections:
Henceforth, the Regional Director will give the parties
written notice setting forth the time and date on which
“mail in” ballots will be dispatched to the voters, and
also setting forth a terminal time and date by which the
ballots must be returned to the Regional Office. Such
notice will be given [to] the parties at least 24 hours be-
fore the time and date on which the ballots will be dis-
patched by the Regional Office. Employers and unions
alike will be prohibited from making election speeches
on company time to massed assemblies of employees
within the period set forth in the notice, i.e., from the
time and date on which the “mail in” ballots are

5 107 NLRB at 429 (emphasis added).
6 Id. (emphasis added).
7 Id. at 429–430 (emphasis added).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scheduled to be dispatched by the Regional Office until
the terminal time and date prescribed for their return.
Violations of this rule by employers or unions will
cause an election to be set aside whenever valid objec-
tions are filed.8
As my colleagues recognize, the Board’s language in
Oregon Washington Telephone plainly states that in
mail-ballot elections, the captive-audience speech prohi-
bition begins at “the time and date . . . ballots are sched-
uled to be dispatched by the Regional Office.” This lan-
guage could not be clearer. In the instant case, however,
the Region imposed a ban on captive-audience speeches
at odds with Oregon Washington Telephone. The Re-
gion prohibited the Employer from making captive-
audience speeches beginning 3 p.m. Tuesday, January
27, 2015, which was 24 hours before ballots were to be
mailed from the Baltimore Regional Office (3 p.m.
Wednesday, January 28, 2015).9 Instead of barring cap-
tive-audience speeches “from the time and date on which
the ‘mail in’ ballots are scheduled to be dispatched by
the Regional Office,” the Region incorrectly prohibited
such speeches during the 24 hours preceding the time of
mailing (with the prohibition against captive-audience
speeches continuing throughout the ensuing period dur-
ing which mail ballots could be returned).
The “time of mailing” rule established for mail-ballot
elections in Oregon Washington Telephone is a logical
extension of the 24-hour rule established for manual
elections in Peerless Plywood. There, the Board ex-
pressed concern about the impact of last-minute captive-
audience speeches on employees’ ability to make a “so-
ber and thoughtful choice” in a manual election.10 Em-
ployees make this “choice” when they mark and cast
their ballot, and the earliest they can do so in a manual
election is when the polls open. Accordingly, the Board
held that beginning 24 hours before the polls are sched-
uled to open, employers and unions alike are prohibited
from giving speeches to massed assemblies of employees
on company time. Oregon Washington Telephone ad-
heres to the rationale of Peerless Plywood. In a mail-
ballot election, the employee’s receipt of the mail bal-
lot—which occurs, at the earliest, the day after the bal-
lots are mailed by the regional office—effectively consti-
tutes the start of the election. Thus, the Oregon Wash-
ington Telephone rule prohibiting captive-audience
speeches commencing at “the time and date on which . . .

8 123 NLRB at 341 (emphasis added).
9 The election was conducted by mail ballot pursuant to the parties’
Stipulated Election Agreement, which I agree precludes the Employer
from challenging the appropriateness of a mail-ballot election in poste-
lection objections.
10 107 NLRB at 429 (emphasis added).
ballots will be dispatched to the voters”11 provides the
same (or greater) protection from captive-audience
speeches as the 24-hour rule applicable to manual elec-
tions that the Board adopted in Peerless Plywood.
By setting the starting time of the captive-audience-
speech prohibition in mail-ballot elections 24 hours be-
fore a regional office puts ballots in the mail, my col-
leagues establish a new rule, contrary to over 50 years of
precedent, that upsets the consistency between Oregon
Washington Telephone and Peerless Plywood. My col-
leagues say the point in time 24 hours before ballots are
mailed “seems to correspond most naturally to the Peer-
less Plywood rule.” To the contrary, by overruling Ore-
gon Washington Telephone, my colleagues all but guar-
antee that, in mail-ballot elections, there will be a 48-
hour prohibition against captive-audience speeches,12
double the 24-hour restriction adopted in Peerless Ply-
wood for manual elections. Nor do I believe there is
merit in my colleagues’ explanation that they are provid-
ing “a single rule for all elections.” There was already a
single rule for all elections that the Board has applied for
more than 50 years: no captive-audience speeches are
permitted within 24 hours of the time that employees
may actually mark a ballot. Although my colleagues
state their goal is “to achieve . . . clarity, uniformity, and
simplicity,” the existing rule under Oregon Washington
Telephone was already simple and clear. Indeed, my
colleagues admit as much.13 As for achieving uniformi-
ty, I believe my colleagues’ decision does just the oppo-
site: it creates a double standard that, in my view, lacks
any rational justification and is likely to increase litiga-
tion in mail-ballot election cases.14 Finally, my col-

11 123 NLRB at 341 (emphasis added).
12 As illustrated by the instant case, my colleagues would prohibit,
in every mail-ballot election, any captive-audience speeches during the
24 hours preceding the mailing of ballots, and the ban on captive-
audience speeches would continue for a minimum of 24 hours from the
time ballots were mailed until the time they are received by voters. In
unusual cases, mail ballots might be received less than 24 hours after
they were mailed. In the overwhelming majority of cases, however, it
will take at least 24 hours from the time of mailing until ballots are
received.
13 They say: “We agree . . . that the rule of Oregon Washington
Telephone is that the mass captive-audience meeting prohibition in mail
ballot elections begins when the ballots are scheduled to be mailed and
not 24 hours before that time.” Nothing could be simpler or more clear.
14 I disagree with my colleagues’ suggestion that today’s decision is
warranted by a need to clarify confusion reflected in Board precedent
and election guidelines. Although a 1998 Board decision, San Diego
Gas & Electric, 325 NLRB 1143, contains language regarding mail-
ballot elections that appears to differ from Oregon Washington Tele-
phone, the issue addressed in San Diego Gas & Electric was whether
and when it is proper to order a mail-ballot election in the first place,
and the Board was not deciding any issue regarding the duration of the
prohibition against captive-audience speeches in mail-ballot elections.
Even if one regards San Diego Gas & Electric as introducing some
GUARDSMARK, LLC 7
leagues say the “essential purpose of the Oregon Wash-
ington Telephone rule . . . was to provide a ‘bright line’
standard.” Setting aside for the moment that Oregon
Washington Telephone already provided a “bright line”
standard, I disagree with my colleagues’ premise. The
essential purpose of both Oregon Washington Telephone
and Peerless Plywood was to strike a proper balance be-
tween protecting employees’ freedom of electoral choice,
on the one hand, and preserving the free speech rights of
the parties to inform the exercise of that choice on the
other.15 In my view, the majority’s decision upsets this
balance in mail-ballot elections at the expense of the free
speech protection that is afforded to all parties involved
in an election campaign.
It bears emphasis that, in a mail-ballot election, the
captive-audience-speech prohibition imposed under Ore-
gon Washington Telephone continues for considerably
longer than the 24-hour prohibition period in advance of
a manual election under Peerless Plywood. As stated in
Oregon Washington Telephone, the captive-audience-
speech prohibition starts on the date that ballots are dis-
patched by the Region and continues “until the terminal
time and date prescribed for their return.”16 In the in-

“confusion” or “misarticulation” of the Oregon Washington Telephone
rule, this would warrant, at most, a reaffirmation of the “time of mail-
ing” rule that has been the law for more than 5 decades under Oregon
Washington Telephone. Nor does “confusion” reasonably justify the
creation of a new standard that creates a captive-audience-speech re-
striction double the time period established in Peerless Plywood. Alt-
hough Sec. 102.67(k) of the Board’s Rules and Regulations states that a
mail-ballot election “commences” when a regional office mails the
ballots, this has nothing to do with the appropriate duration of the cap-
tive-audience-speech prohibition. Rather, this language involves a rule
change adopted by the Board in 2014 that requires employers to post a
notice of election at least 3 full working days “prior to 12:01 a.m. of the
day of the election,” which required the Board, for this purpose, to state
when a mail-ballot election would be deemed to commence.
Nothing in the Board’s Rules and Regulations abandons the captive-
audience rule applicable to mail-ballot elections as established in Ore-
gon Washington Telephone. Moreover, the Board’s Casehandling
Manual states, with a citation to Oregon Washington Telephone, that
“[w]ritten notification is sent to the parties at least 24 hours before the
time and date on which mail ballots will be dispatched to the voters,
informing the parties of the dispatch time and thus the time of the
‘start’ of the election for application of the Peerless Plywood rule.”
Casehandling Manual Sec. 11336.2(b) (emphasis added). My col-
leagues read this language to support their position. In my view, it
plainly opposes it—and any possible doubt on this score is dispelled by
the citation to Oregon Washington Telephone.
15 As the Board explained in Peerless Plywood: “Implicit in this rule
is our view that the combined circumstances of (1) the use of company
time for preelection speeches and (2) the delivery of such speeches on
the eve of the election tend to destroy freedom of choice and establish
an atmosphere in which a free election cannot be held. Also implicit in
the rule is our judgment that noncoercive speeches made prior to the
proscribed period will not interfere with a free election.” 107 NLRB at
429–430.
16 123 NLRB at 341 (emphasis added).
stant case, had the Region adhered to Oregon Washing-
ton Telephone, the captive-audience speech prohibition
would have lasted 14 days (from January 28 to February
11).
In both Peerless Plywood and Oregon Washington
Telephone, the Board imposed an inflexible consequence
when parties deviate from the “election rule” established
by these cases: violations “will cause an election to be
set aside whenever valid objections are filed.”17 I do not
believe we can reasonably apply a more flexible standard
when the parties were improperly prohibited from engag-
ing in protected speech that would not have interfered
with a free election, contrary to the standard that has
governed this important area for more than 50 years.18
Conclusion
I do not favor the delay associated with a new election,
but I believe we have no choice in the unfortunate cir-
cumstances presented here: the Region improperly pro-
longed the time during which both sides were prohibited
from making captive-audience speeches, contrary to dec-
ades-old rules established by the Board. We cannot re-
construct what would have occurred had the proper
standard been utilized by the Region, and this involves
such a fundamental issue—the parties’ protected right to
engage in election-related speech—that it is unreasona-
ble, in my view, for the Board to treat this error as if it
did not occur.
Rather than correcting this error, my colleagues make
it worse by summarily overruling Oregon Washington
Telephone, which has controlled this area for more than
50 years. In my view, there is no valid reason to aban-

17 Peerless Plywood, 107 NLRB at 429 (emphasis added); Oregon
Washington Telephone, 123 NLRB at 341 (emphasis added).
18 I would reach the same result even under the standard applied by
my colleagues. See Polymers, Inc., 174 NLRB 282, 282 (1969) (hold-
ing that to set aside an election based on the region’s conduct of the
election, the objecting party must show that “the manner in which the
election was conducted raises a reasonable doubt as to the fairness and
validity of the election”), enfd. 414 F.2d 999 (2d Cir. 1969), cert. de-
nied 396 U.S. 1010 (1970). In my view, the Region’s interference with
the Employer’s fundamental free speech right to express its views
concerning the election at a time when the Employer was entitled,
under governing precedent, to express those views in captive-audience
speeches raises a reasonable doubt as to the fairness and validity of the
election. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969) (“[A]n employer’s free speech right to communicate his views
to his employees is firmly established and cannot be infringed by a
union or the National Labor Relations Board.”); United Rentals, Inc.,
349 NLRB 190, 191 (2007) (“[T]ruthful statements that identify for
employees the changes unionization will bring inform employee free
choice which is protected by Section 7 and the statements themselves
are protected by Section 8(c).”) Although Section 8(c) is not, by its
terms, applicable to representation cases, “‘the strictures of the [F]irst
[A]mendment . . . must be considered in all cases.’” Allegheny Ludlum
Corp., 333 NLRB 734, 737 fn. 20 (2001) (quoting Dal-Tex Optical Co.,
137 NLRB 1782, 1787 fn. 11 (1962)).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
don Oregon Washington Telephone, and the new rule
adopted by my colleagues creates different standards—
one applicable to mail-ballot elections, the other to man-
ual elections—that cannot be reconciled with one another
or with Peerless Plywood.
For these reasons, as to the above issues, I respectfully
dissent.
Dated, Washington, D.C. January 29, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD