A new rule scheduled to take effect April 25 is seen as placing new limits on employer efforts to fight union organizing drives. The U.S. Department of Labor (DOL) has announced that it will publish its new “persuader rule” in the March 24 Federal Register.
The DOL maintains that the new rule, which requires more disclosure of antiunion efforts, is necessary to ensure transparency during organizing campaigns, but employers worry that it will make it more difficult to communicate to workers their reasons for opposing unionization.
“In a nutshell, the new rule will improperly interfere with the privileged attorney-client relationship in labor disputes and will severely limit the actions that attorneys can take to assist employers to remain union free,” said Charles H. Kaplan, an attorney with Sills Cummis & Gross P.C. in New York City and an editor of New York Employment Law Letter. “Even an attorney who gives a seminar on how management can lawfully combat union organizing may run afoul of the new rule,” and attorneys who draft materials that management may lawfully distribute to employees in National Labor Relations Board (NLRB) election campaigns “will likely violate the new rule,” he said, adding that he expects the rule to spark a number of court challenges.
The rule revises two public disclosure reporting forms, the Form LM-10 (employer report) and the Form LM-20 (agreement and activities report), the DOL announced. “Speaking generally, and subject to exceptions, these reports must be filed when an employer and a labor relations consultant make an arrangement or an agreement that the consultant will undertake efforts to persuade the employer’s workers to reject an organizing campaign or collective bargaining effort by a union,” a statement from the DOL said.
The new rule pertains to the employer and labor relations consultant reporting requirements of the Labor-Management Reporting and Disclosure Act (LMRDA). The DOL statement said that under the new final rule, an employer-consultant agreement is reportable if a consultant engages in “persuader activities,” which are defined as “any actions, conduct, or communications that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights.”
Under its previous interpretation of the LMRDA, the DOL said the employer and consultant would have to file a report only if the consultant communicated directly to the workers. The new rule requires that both direct and indirect activities must be reported. The final rule also requires consultants to file reports when they hold union avoidance seminars for employers, but it doesn’t require employers to report simple attendance at such seminars, according to the DOL statement.
The DOL said that the revised interpretation in the final rule states that consultant activities that trigger reporting include direct contact with employees with an object to persuade them as well as the following categories of indirect consultant activity:
- Planning, directing, or coordinating activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees;
- Providing materials or communications for dissemination to employees;
- Conducting a union avoidance seminar for supervisors or other employer representatives; and
- Developing or implementing personnel policies, practices, or actions for the employer.
The DOL has provided a fact sheet providing information on the effects of the new rule as well as an overview/summary and a question and answer document. Although the new rule takes effect April 25, it will be applicable to arrangements, agreements, and payments made on or after July 1, according to the DOL.