USDOL Proposed Rules May Affect Ability to Oppose Union Organizing

June 21, 2011

By: Colin M. Leonard

Earlier today, the United States Department of Labor (“Department”) issued a Notice of Proposed Rulemaking which would expand the reporting requirements of employers and the labor relations consultants they hire to advise them during a union organizing campaign. The Labor-Management Reporting and Disclosure Act (“LMRDA”) already requires employers and labor relations consultants to file annual reports with the federal government to disclose agreements (and any associated payments), where a purpose of the agreement is to persuade employees “to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively.”

However, the LMRDA does not require a report when the services rendered relate to the “giving or agreeing to give advice” to an employer. This so-called “advice exception” has long been interpreted to exempt various activities engaged in by consultants, including the preparation of speeches and other written material used by an employer during a union organizing campaign, as long as the consultant does not meet directly with the employees for the purpose of engaging in persuader activity and the employer is free to accept or reject the written material prepared by the consultant.
 

The proposed rules narrow dramatically the advice exception. According to the proposed rules:

With respect to persuader agreements or arrangements, “advice” means an oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, “persuader activity” refers to a consultant’s providing material or communications to, or engaging in other actions, conduct or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize and bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or in part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.

This new definition would thus require reporting with respect to a variety of drafting and training activities which previously fell within the advice exception. For a list of those activities, click here.

The Department’s stated rationale for this change is that undisclosed persuader activities are having a deleterious effect on the rights of workers and that greater reporting will help employees make a more informed choice as to whether to exercise their Section 7 rights. Organized labor supports increased reporting because it believes an employer will be less likely to hire an outside consultant to counter an organizing effort if it has to disclose that it has done so and the amount it pays for the consultant’s services.

The Department is accepting public comment on the proposed rules until August 22, 2011. For more information on the comment process, click here.