Wyatt Employment Law Report

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U.S. Department of Labor Proposes New Rule Concerning Reporting Of Persuader Activity By Labor Relations Consultants and Attorneys

By Edwin S. Hopson

On June 20, 2011, the U.S. Department of Labor issued a press release in which it announced a proposed rule to revise the interpretation of “advice” as it pertains to the employer and labor relations consultant persuader reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). The proposal defines the term “advice” as “an oral or written recommendation regarding a decision or course of conduct.”

 Section 203 of the LMRDA requires the disclosure in writing to the Department of Labor of agreements or arrangements between an employer and labor relations consultant in the event that a consultant undertakes or agrees to undertake for that employer activities that seek to directly or indirectly persuade workers during a union organizing campaign or collective bargaining negotiations. Neither the employer nor the consultant is required to file a report with the Department if the services of the consultant consist of merely giving or agreeing to give advice to the employer.  However, if the consultant’s activities go beyond “advice”, that is for instance, if the persuader activities consisted of actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers during the organizing campaign, regardless of whether or not the consultant has direct contact with workers, then the arrangement would be reportable.  An agreement also would be reportable where the consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort. Continue reading