Section 203 of the Labor-Management Reporting and Disclosure Act requires the disclosure of agreements with persons who work on behalf of employers to persuade employees to exercise or not exercise their rights to organize or collectively bargain, or to persuade employees as to how they should exercise such rights. See 29 U.S.C. § 433(b). However, the Act provides an exemption to this so-called “persuader” reporting requirement where the would-be persuader is merely “giving or agreeing to give advice” to an employer. See id. at § 433(c).
On June 21, 2011, the U.S. Department of Labor’s Office of Labor-Management Standards (”OLMS”) will publish a proposed rule in the Federal Register narrowing this ”advice exemption” and thus expanding the Act’s reporting requirements. Historically, the advice exemption has been broadly interpreted, exempting persuader reporting when consultants or attorneys advising employers have no direct contact with employees. This includes situations where consultants or attorneys have prepared materials for use by the employer.
The OLMS’s proposed rule will reject the current interpretation of “advice” and expand the definition of reportable “persuader activities” to include “all actions, conduct, or communications, on behalf of an employer that . . . have a direct or indirect object to persuade employees concerning their rights to organize or bargain collectively.” The proposed rule will seek to limit the advice exemption to the “plain meaning” of “advice,” defined as “an oral or written recommendation regarding a decision or course of conduct.” Reporting will thus be required “in any case in which the agreement or arrangement, in whole or in part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is given.”
The proposed regulation will also provide examples of reportable agreements or arrangements, including a labor consultant:
- Agreeing to plan or orchestrate an anti-union campaign through specific persuader activities;
- Engaging on behalf of the employer in any other actions, conduct, or communications designed to persuade employees;
- Engaging in any conduct, actions, or communications that utilize employer representatives to persuade employees, such as directing or coordinating the activities of employer representatives, or providing persuader material to them for dissemination; and
- Drafting or implementing policies for the employer that aim to directly or indirectly persuade employees.
Under the proposed rule, reporting would still not be required where a consultant or attorney enters into an arrangement exclusively to provide advice to an employer - as that term is narrowly construed by the proposed rule - such as counseling employer representatives on what they may lawfully say to employees, ensuring a client’s compliance with the law, or providing guidance on NLRB practice or precedent.