Wednesday, September 28, 2011
Laura Cooper (Minnesota) sent me word of this, and I'll admit that it took me awhile to figure out what was going on. Here goes:
The LMRDA imposes reporting requirements (including the disclosure of fees and expenses) whenever an employer hires a consultant to "persuade" employees regarding their organizing and collective-bargaining rights (i.e., whenever an employer hires a "union-busting" firm). LMRDA Section 203 creates an exemption for "advice" or representation before a court, agency or arbitral tribunal, or in collective bargaining.
Over the years, and especially following a 2001 Department of Labor interpretation of Section 203, the exception came to swallow the rule -- it would exempt an employer from the reporting requirement any time the employer was "free to accept or reject" materials provided by the consultant -- which of course was almost always.
In June 2011, the DOL proposed a new interpretation of Section 203 that would substantially narrow the exemption. The proposed interpretation provides:
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 or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.
The proposal also provide examples of reportable and non-reportable agreements or arrangements:
Reportable agreements include those in which a consultant agrees to plan or orchestrate a campaign or program on behalf of an employer to avoid or counter a union organizing or collective bargaining effort..., or otherwise engages on behalf of the employer, in whole or part, in any other actions, conduct, or communications designed to persuade employees.... No report is required concerning an agreement or arrangement to exclusively provide advice to an employer, such as when a consultant exclusively counsels employer representatives on what they may lawfully say to employees, ensures a client's compliance with the law, or provides guidance on NLRB practice or precedent.
Unsurprisingly, the AFL-CIO supports the new interpretation. The American Bar Association, however, opposes the new interpretation, at least to the extent that the new interpretation will apply to lawyers. The ABA's argument is that the restriction on the exemption unduly interferes with the relationship between the management-side lawyers and their corporate clients.
Now, as Laura points out, there's a fight brewing between the AFL-CIO lawyers and the ABA over the proposed new interpretation.