The Department of Labor’s Office of Labor-Management Standards (OLMS) published a notice of rulemaking on June 21, 2011 that would revise the interpretation of “advice” to expand the requirements for reporting persuader agreements between employers and labor relations consultants.
Section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA or Act), in part, requires the disclosure of agreements by employers and consultants, or 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. Under the LMRDA disclosure requirements, employers are required to file an LM-10 Employer Report, while the consultant is obligated to file an LM-20 Agreement and Activities Report. However, the Act provides an exemption to this “persuader” reporting requirement in situations where the persuader is merely “giving or agreeing to give advice” to an employer. The primary focus of the OLMS’ proposed rulemaking is the revision of its interpretation of the “advice” exemption by limiting the definition of the types of activities that constitute “advice.”
Under the proposed rule, the definition of reportable “persuader activities” would expand 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.” Further, the proposed rule seeks 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 would therefore 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.” Persuader activities include instances in which a consultant “engages in any actions, conduct, or communications on behalf of an employer that have a direct or indirect object to persuade employees concerning their rights to organize and bargain collectively.”
Examples of reportable agreements or arrangements, according to the proposal, would include a consultant: planning or orchestrating a campaign or program to avoid or counter a union organizing or collective bargaining effort; 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; and drafting or implementing policies for the employer that have an object to persuade employees.
Reporting would not be required under the proposed rule in cases where a consultant’s activities pursuant to an agreement or arrangement exclusively involve advice, “such as when a consultant exclusively counsels employer representatives on what they may lawfully say to employees,” ensures compliance with the law, or provides substantive guidance on National Labor Relations Board practice or precedent.
The OLMS also proposes revisions to Forms LM-10 and LM-20 with the intent to modify the content and layout of the forms and instructions to better outline the reporting requirements and improve their form and function. Comments on the proposed rule are due Aug. 22. Comments should be identified by RIN 1215-AB79 and 1245-AA03. They may be submitted online through the federal e-rulemaking portal at www.regulations.gov.