On March 24, the U.S. Department of Labor finalized a rule that requires reporting of “persuader” activities and agreements meant to “directly or indirectly persuade employees concerning their rights to organize and bargain collectively.” The rule forces employers to identify consultants hired to counterbalance union organizing activities.
Most employers believe they need assistance in dealing with increasingly sophisticated and aggressive union techniques. The Labor Department estimates that “in somewhere between 71% and 87% of employee organizing drives, the employer retains one or more consultants.”
Federal contractors and the U.S. Postal Service, which is covered by the Labor-Management Reporting and Disclosure Act (LMRDA), must follow the new rule. Most federal agencies in the executive branch are covered by the Civil Service Reform Act of 1978 (CSRA), and so are not immediately affected by the change.
Previous interpretations of section 203c of LMRDA allowed management to avoid such disclosures as long as consultants did not speak directly to employees. Organizations could hire consultants to advise managers on how to “handle” union issues and even create materials that could be handed out to employees without reporting that they were receiving and paying for these services.
The Labor Department argues that under the new rule interpretation, employees “will be able to better discern whether the views and specific arguments of their supervisors about the benefits and drawbacks of union representation are truly the supervisors’ own, or rather reflect a scripted industrywide (or even wider) antipathy towards union representation and collective bargaining.”
Consultant activities that trigger reporting of an agreement or arrangement with an employer include direct contact with employees with an object to persuade them, as well as the following categories of indirect consultant activity undertaken with an object to persuade employees:
- Planning, directing or coordinating activities undertaken by supervisors or other employer representatives including meetings and interactions with employees;
- Providing material or communications for dissemination to employees;
- Conducting a union avoidance seminar for supervisors or other employer representatives;
- Developing or implementing personnel policies, practices or actions for the employer.
The American Bar Association has objected to the new rule arguing that it violates attorney-client confidentiality, and other groups argue that the new rule has a chilling effect on management’s rights. The Labor Department has rejected these arguments.
Some consultant activities continue to be exempt from disclosure under the new rule. These include merely providing advice to an employer, conducting a survey of employees, and conducting a seminar without developing or assisting the employer in developing anti-union tactics or strategies.
For USPS, the rule comes as it is in arbitration proceedings with the American Postal Workers Union over an expected new contract designed to run from May 21, 2015, when the last contract expired, through May 20, 2018.
Both unions and management, including federal contractors, will be watching closely to see if the new rule causes union organizing drives to increase their success rate.
