Business use of anti-union consultants targeted by Federal rule

Employers will now have to disclose any talks with outside consultants about how to craft their message to workers during union organizing drives.

Previously, employers only had to file reports to the government when their consultants talked directly to workers. Advice, including how to persuade workers to reject a union, was exempt from disclosure.

Business groups see the Department of Labor's new "persuader" rule as another move by Obama administration to make it easier for labor unions to organize workplaces.

“That created a huge loophole where employers could hire consultants to create materials, strategies and policies for organizing campaigns — and could even script managers’ communications with employees — without disclosing anything,” the Department of Labor states.

That’s not fair to workers, the agency contends, so it issued a new rule that requires employers to report “actions, conduct or communications that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights.”

“Workers should know who is behind an anti-union message. It’s a matter of basic fairness,” said Secretary of Labor Thomas E. Perez. “This new rule will allow workers to know whether the messages they’re hearing are coming directly from their employer or from a paid, third-party consultant.”

Employers also will have to disclose how much money they’re paying anti-union consultants.

The U.S. Department of Labor estimates that between 71 percent and 87 percent of employers facing union organizing drives hire consultants to help fight them.

Business groups see the new rule as another move by the Obama administration to tip the scales in favor of labor unions by discouraging employers from hiring such consultants.

“Labor law is complex, and many businesses rely on the support of outside counsel to ensure that their actions during an organizing campaign comply with the morass of rules and regulations,” said Kelly Kolb, vice president for government relations at the Retail Industry Leaders Association. “By undermining the advice exception, DOL is putting employers in a no-win situation where seeking the guidance they need will almost certainly be used against them by organizers.”

The National Retail Federation said the new rule is so broad that it could discourage employers from seeking advice on matters that go beyond tailoring their message to workers.

“The end result will be a chilling effect on simple legal advice regarding employee or collective bargaining issues,” said David French, NRF’s president for government relations. “Small retailers will be the first to suffer, and Big Labor will profit from this muzzling of free speech.”

The rule will have a “particularly onerous impact on any business without in-house counsel,” said Kristen Swearingen, vice president of legislative and political affairs for Associated Builders and Contractors.

“No employer should have to wade through the final rule’s 446 pages to figure out whether they can safely get advice on what they can say to their employees,” Swearingen said. “The final rule is clearly an attempt by DOL to restrict employers from communicating the potential pros and cons of unionization with their employees.”

“The rule in no way limits what employers or consultants can say,” the Department of Labor counters. “It just means that workers will know who is saying what. “

Source: Philadelphia Business Journal