By Edwin S. Hopson
On June 20, 2011, the U.S. Department of Labor issued a press release in which it announced a proposed rule to revise the interpretation of “advice” as it pertains to the employer and labor relations consultant persuader reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). The proposal defines the term “advice” as “an oral or written recommendation regarding a decision or course of conduct.”
Section 203 of the LMRDA requires the disclosure in writing to the Department of Labor of agreements or arrangements between an employer and labor relations consultant in the event that a consultant undertakes or agrees to undertake for that employer activities that seek to directly or indirectly persuade workers during a union organizing campaign or collective bargaining negotiations. Neither the employer nor the consultant is required to file a report with the Department if the services of the consultant consist of merely giving or agreeing to give advice to the employer. However, if the consultant’s activities go beyond “advice”, that is for instance, if the persuader activities consisted of actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers during the organizing campaign, regardless of whether or not the consultant has direct contact with workers, then the arrangement would be reportable. An agreement also would be reportable where the consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort.
In the proposed rule summary, the Department of Labor specifically cites a consultant’s or attorney’s preparation and/or revision of materials and communications to employees seeking to persuade them to vote against a union in an NLRB representation election as reportable, but also states:
“For example, persuader activities may additionally include: Training or directing supervisors and other management representatives to engage in persuader activity; establishing anti-union committees composed of employees; planning employee meetings; deciding which employees to target for persuader activity or discipline; creating employer policies and practices designed to prevent organizing; and determining the timing and sequencing of persuader tactics and strategies. [Footnote omitted].In these instances, the lawyer or labor consultant has gone beyond mere recommendation and has engaged in actions, conduct, or communications with the object to persuade employees, either directly or indirectly, about the employees’ protected, concerted activity. As such, these activities, whether or not the consultant is in direct contact with the employees, trigger the duty to report.”
It was also noted that even seminars, webinars, and conferences offered by lawyers or labor consultants to employers and their representatives are reportable activities that must be reported. Other reportable activities include the training of supervisors who are urged to engage in communications/activities to encourage employees to vote against union representation. The rule summary states: “The Department generally views so-called ‘union-avoidance; seminars and conferences offered by lawyers or labor consultants to employers to involve reportable persuader activity.”
The law does not regulate the actual content of persuader activities or statements, and focuses on what activities would have to be publicly disclosed. The current interpretation of “advice” has been much more restricted which has resulted in virtually no reporting by employers or consultants.
The report (LM-10) to be filed by an employer includes the name of the consultant/attorney and how much was expended. The report to be filed out by the consultant/attorney (LM-20) must contain the name of the employer and type of activities, among other things. That is to be followed by the filing of an LM-21 report which must contain, among other things, the amount of fees collected by the consultant/attorney for reportable activities.
The proposed rule was published on June 21, 2011, in the Federal Register. Public comments can submitted online at http://www.regulations.gov. The deadline for comments is August 22, 2011.