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Government wants to limit employers’ communications about unionization
Proposed rule seeks to narrow 'advice exception' under Labor-Management Reporting and Disclosure Act
A proposed rule by the U.S. Department of Labor, Office of Labor-Management Services, would have a substantial impact on the substance and process of employer communications with employees regarding union representation.
DOL recently announced a notice of proposed rulemaking revising the so-called "persuader" regulations and thereby narrowing the "advice exception" under the Labor-Management and Disclosure Act. These regulations require employers and their consultants to file publicly available reports with the Department of Labor regarding "persuader" activities, i.e., activities undertaken for the purpose of "persuading" employees choosing whether or not to be represented by a labor union.
In the past, the DOL has construed this exception broadly to exclude agreements or arrangements where the consultant does not have any direct contact with employees. Accordingly, if a consultant or lawyer were to draft or review communications (e.g., documents, letters, speeches) presented to employees during an organizing drive or in anticipation of an NLRB election, such conduct was deemed "advice," and therefore, there was no need to inform the DOL.
However, should the DOL's proposal become effective, the term "advice" would be limited to "oral or written recommendation regarding a decision or course of conduct." On the other hand, "persuader activity" would include a consultant providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object (directly or indirectly) to persuade employees concerning their right to organize and bargain collectively. All agreements for persuader activities would need to be reported, even if a consultant/lawyer did not have direct contact with employees.
The proposed rule is available here.
Related to the DOL rule, the National Labor Relations Board is seeking to shorten the time frame between the filing of a petition for a union representation election and the election itself. Currently, employers typically have several weeks between the two dates. The proposed NLRB rule would allow only 10 days, failing to give employers sufficient time to communicate their position on unionization and collective bargaining.
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Founded in 1916, the Pennsylvania Chamber of Business and Industry is the state's largest broad-based business association, with its membership comprising businesses of all sizes and across all industry sectors. The PA Chamber is The Statewide Voice of Business.
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