Transcript CAPABILITIES SUMMARY - Labor Relations Institute

GAG RULE
The DOL Attack on Employer Free
Speech
Agreement to
Provide Labor
Relations
Services?
No Report Required
No
Yes
Agreement covers direct
communication to nonsupervisory employees?
Yes
Labor Management Reporting
and Disclosure Act of 1959
Is the indirect
communication intended to
persuade?
Yes
Yes
No
Report Required
Is the persuasive
communication covered by
the “advice” exception?
Agreement and Activities
Report – Form LM-20
Due 30 days after the Agreement to
provide “persuader” services
Labor Management Reporting
and Disclosure Act of 1959
Receipts and Disbursements
Report – Form LM-21
Due 90 days from the end of your
fiscal year
Employer Report - Form LM10
Due 90 days from the end of your
fiscal year
1960 Interpretation
Speeches, written materials =
“persuader” activity
“Advice” exemption – Section
203(c) of LMRDA
•Applies to consultants and
attorneys
•Exempts “advice” from
disclosure rules
1962 Re-Interpretation
Speeches, written materials =
“advice” activity
2001 Re-interpretation
Speeches, written materials =
“persuader” activity unless that
activity is mere review and revision
2011 Re-interpretation?
June 21, 2011 Notice of
Proposed Rulemaking:
The New Rules (proposed)
Proposed Rulemaking
• Not a final rule
• 60 days to comment
• In effect after comment
period
• Comment by web
(regulations.gov), handdelivery or by mail
• Reference 1215-AB79 and
1245-AA03 (29 C.F.R. Parts
405 and 406)
Persuader activities include drafting,
revising or providing:
1.Materials for presentation, dissemination,
distribution to employees
2.Speeches
3.Audiovisual, multimedia presentation
4.Website content
5.Planning, conducting one-on-one or group meetings
6.Employee attitude surveys concerning union
awareness, sympathy or “proneness”
7.Training supervisors to conduct meetings
8.Coordination or directing activities of supervisors
9.Establishing or facilitating employee committees
10.Developing personnel policies
11.Deciding which employees to target for persuader
activity or disciplinary action
12.Conducting a seminar for supervisors
13.Other (must explain)
Seminars and Conferences
If persuader materials are offered then DOL
says reporting is triggered (See NPRM at 63-64)
Employee Surveys
Surprising Changes
Developing or conducting surveys concerning
union awareness can trigger reporting (See
NPRM at 69)
Employee Committees
Establishing or facilitating employee committee
can trigger the requirement – almost no
explanation (See NPRM 142, 155)
Deciding Who to Target?
Apparent attempt to go after “straw polling”
and discriminatory terminations – back door
attempt to criminalize unfair labor practices?
Privileged Communications
Must disclose agreement, fees, and persuader
activity but don’t have to disclose privileged
communication (See NPRM at 65)
Common Questions
•Attorney-client privilege?
•“Mixed” persuader-advice
situations?
•What fees must be reported?
Mixed Activities
Persuader activity trumps advice; must disclose
even is some activity would be exempt if done
alone (See NPRM at 64-65)
Fees
Based on the “agreement or arrangement” and
NPRM says must report fees for BOTH advice
and persuasion in any agreement that includes
persuasion (See NPRM at 65, n. 16)
Check Your Circuit
Some Circuits (4th, 5th, 6th and 7th) require firms
to report advice activities for clients who did
not even receive persuader activity during the
reporting year.
Action Item 1: Comment
•Go to regulations.gov and comment (link on
our site)
•Key topics for comment:
• No need for the rule… the cited
“authority” is one-sided and speculative
• Far over-reaching (employee surveys,
employee committees, termination
decisions)
• Unfair – exact same activity is persuasion
in some cases, not others
• Burdensome on small (and large)
businesses – virtually every consultant
and attorney conversation potentially
subject to disclosure
• Demonizes and discourages legitimate
and protected employer speech
Action Item 2: Congress
• Newly elected Congress = Republican
majority
• House has appropriations power
• Can de-fund regulatory activities (i.e.
ergonomics)
• NLRB already under pressure due to
Boeing case
• Key people to contact:
• Your congressperson
• Members of the House Appropriations
and Education and the Workforce
Subcommittees
Action Item 3: Proactive ER
•Just the beginning (short elections, micro-units, temps,
supervisors, witnesses...)
•Key leverage point = direct relationship
•“Left of boom” ER practices
Left of BOOM
BOOM
Hiring/Onboarding
Positive ER, Engagement
Vulnerability Assessment
Tripwire Team
Right of BOOM
Counter-Campaign
Strategy
Situation Assessment
Alert Legal, Consulting,
Jump Team
Never Be Intimidated from Doing Right
The Argument from Intimidation is a confession of intellectual
impotence… How does one resist that Argument? There is
only one weapon against it: moral certainty.
When one enters any intellectual battle, big or small, public
or private, one cannot seek, desire or expect the enemy's
sanction. Truth or falsehood must be one's sole concern and
sole criterion of judgment—not anyone's approval or
disapproval; and, above all, not the approval of those whose
standards are the opposite of one's own.
Ayn Rand, The Virtue of Selfishness 1964