Wednesday, June 22, 2011

Proposed Union Consultant Rule

DOL Perhaps the Department of Labor doesn't want to be left behind the NLRB and its rulemaking, because the Department has recently proposed a new rule that would make employers disclose more information about their use of union consultants.  Under current regulations, employers only have to report consultants who directly attempt to influence employees, but not those who only give "advice" to employers.  The new rule would limit this advice exception by require disclosure of consultants who give communications to influence employees, even if their is no direct contact between the consultants and employees.  According to the Department's news release:

The U.S. Department of Labor today announced a proposed rule to revise the interpretation of "advice" as it pertains to the employer and labor relations consultant persuader reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act. The proposal adopts the plain meaning of the term "advice" as "an oral or written recommendation regarding a decision or course of conduct."

Section 203 of the LMRDA requires the disclosure of agreements or arrangements between employers and labor relations consultants when a consultant undertakes or agrees to undertake activities that seek to directly or indirectly persuade workers concerning whether or not to exercise, or the manner of exercising, their rights to organize and bargain collectively. Neither an employer nor a consultant is required to file a report with the Department of Labor covering the services of a consultant if the consultant is merely giving or agreeing to give advice to the employer.

Under the proposal, an agreement would be reportable in any case where the consultant engages in persuader activities that go beyond the plain meaning of "advice." Reportable persuader activities would include those in which a consultant engages in any actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers concerning their rights to organize and bargain collectively, regardless of whether or not the consultant has direct contact with workers. An agreement also would be reportable in any case in which a consultant engages in specific persuader actions, conduct or communications regardless of whether advice is given, such as when a consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort.

The LMRDA does not regulate the actual persuader activities or statements, and the proposed rule only focuses on whether the activities would have to be publicly disclosed. The current interpretation of "advice" has resulted in significant underreporting of employer and consultant persuader agreements. Better disclosure is critical to helping workers make informed decisions about their right to organize and bargain collectively.

You can see the full proposal here.


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