Labor Law-NLRB Regulation of Employer’s Pre-Election Captive Audience Speeches

One of the most effective weapons that an employer may utilize to dissuade his employees from accepting unionization is an antiunion speech delivered to the assembled employees on company time and property shortly before a scheduled representation election. Two recent National Labor Relations Board (NLRB) decisions have provided an opportunity for reopening the much debated question of a campaigning union’s right to reply under equal opportunity conditions to such a captive audience speech. In McCulloch Corp., a union sought to have the unfavorable results of a representation election set aside on the ground that the employer’s refusal to allow an equal reply to his captive audience speech had interfered with the holding of a free and fair election. The NLRB, sustaining the election, reaffirmed its current doctrine that, absent special circumstances, an employer need not grant a union equal opportunity to reply to a captive audience speech. Moreover, the Board noted that further consideration of this doctrine would be deferred until the effect of the accompanying Excelsior decision upon union organizational opportunities could be evaluated. In Excelsior Underwear Inc., the issue was whether an employer’s refusal to provide a campaigning union with the names and addresses of employees eligible to vote in a forthcoming representation election constituted grounds to set aside that election. Overturning existing policy, the Board announced a new rule to be applied prospectively in all election cases: within seven days after the direction of a representation election, the employer must deposit with the regional office of the NLRB a list containing the names and addresses of employees eligible to vote; failure to comply will be, upon the filing of proper objections by the union, a sufficient basis for having the ensuing election set aside.