Department Of Labor Seeks Reporting of Union Avoidance Consultations

Posted by Attorney David McClurg in Labor Relations / Comments

The Department Of Labor (DOL) oversees the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), which requires unions, employers and "persuaders" to report certain information and activities for public disclosure. Reports must be made by any employers, consultants or lawyers who enter into agreements seeking to influence employees’ decisions on whether to exercise their collective bargaining rights. In addition to the identity of the parties to the agreement, the report must include the terms of the arrangement, the type of activity involved, the identity of the employees targeted and the union involved. Criminal sanctions may be imposed on parties failing to file these reports, which the DOL publishes online.

Under the statute, "advice" on organizing activities is exempted from reporting. The DOL has consistently interpreted this "advice exemption" as excluding virtually all union avoidance consulting that did not involve direct contact with employees. Under the proposed rules, however, the “advice” exception has been all but eliminated. The proposed DOL rules would now require reporting of the following activities which have previously been considered exempt:

• Preparation of, or revisions to, written or oral communications for the employer to provide, directly or indirectly, to employees.
• Supervisor training on communicating with employees.
• Drafting/review of employer policies designed to prevent organizing. (This could include drafting or review of employee handbooks that communicate the company’s position on unionization and its “open door” policies.)
• Union avoidance seminars.

Contrary to the views of most attorneys, the proposed rules suggest their clients' identities, the amount of attorneys' fees charged to those clients and the scope and nature of the work performed are not privileged. The only items the comments exclude from the reporting obligation are (1) telling employers what they may lawfully say to employees, (2) ensuring compliance with the law and (3)providing guidance on NLRB practices or precedent, none of which are defined in any detail.

There is great concern that this expanded reporting requirement would allow unions to pursue negative public relations campaigns against employers involved in union avoidance activities,  specially those using attorneys or consultants who have been the most effective in assisting their clients to resist organizing efforts.

A copy of the proposed rule can be viewed and comments on the proposed rule can be submitted on line, until August 22, 2011.