It is important to note that both rule-making proposals are intended to work together and, like an axe in an executioner’s hand, they are intended to make an employer’s resistance to unionization futile.
On the one hand, the NLRB’s proposal to ‘streamline’ union elections is meant to make it easier for unions to unionize employers in the least amount of time with the least amount of resistance, while giving union organizers access to employee telephone numbers and e-mail addresses and drastically curtailing employers’ ability to appeal NLRB decisions.
However, on the other hand, in an effort to broaden the definition of “union busting,” it is the Department of Labor’s proposal to redefine the term ‘persuader’ that will force many unsuspecting businesses, associations, and “consultants” (i.e., lawyers, human resource consultants, PR firms, and others, as well as seminar attendees and providers) to report their fee arrangements to the federal government—or face jail time and/or fines for failing to do so.
Here’s a quick summary:
According to the Department of Labor, you might be union busting if…
You give (or attend) a seminar that provides information on how to communicate with employees about their Section Seven Rights or collective bargaining
You conduct (or purchase) an employee attitude survey
You produce (or purchase) a website, a video, other multi-media presentation, or communicationof any sort that educates employees about unions
You develop personnel policies
You establish or facilitate employee committees
You provide (or purchase) information about a labor organization (i.e., constitution, bylaws, etc.)
With respect to persuader agreements or arrangements, “advice” means an oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, “persuader activity” refers to a consultant’s 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 rights to organize or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.
An employer and consultant each must file a report concerning an agreement or arrangement pursuant to which the consultant engages in activities that have as a direct or indirect object to, explicitly or implicitly, influence the decisions of employees with respect to forming, joining or assisting a union, collective bargaining, or any protected concerted activity (such as a strike) in the workplace. Specific examples of persuader activities that, either alone or in combination, would trigger the reporting requirements include but are not limited to: drafting, revising, or providing a persuader speech, written material, website content, an audiovisual or multimedia presentation, or other material or communication of any sort, to an employer for presentation, dissemination, or distribution to employees, directly or indirectly; planning or conducting individual or group meetings designed to persuade employees; developing or administering employee attitude surveys concerning union awareness, sympathy, or proneness; training supervisors or employer representatives to conduct individual or group meetings designed to persuade employees; coordinating or directing the activities of supervisors or employer representatives to engage in the persuasion of employees; establishing or facilitating employee committees; developing employer personnel policies or practices designed to persuade employees; deciding which employees to target for persuader activity or disciplinary action; and coordinating the timing and sequencing of persuader tactics and strategies. [pages 68 & 69].
The Department of Labor is also attempting to cause employers who attend (and those who give) seminars, conferences or webinars to learn about unions and collective bargaining to report that activity as well.
The Department has considered whether seminars, webinars, or conferences offered by lawyers or labor consultants to employers and their representatives must be reported. During such events, guidance is offered to attendees, who represent multiple employers on labor-management relations matters, including how to persuade employees concerning their organizing and bargaining rights. In general, to the extent that these meetings involve actions, conduct, or communications that have a direct or indirect object to persuade employees concerning their representation or collective bargaining rights, then the consultant and employer would be required to file the necessary reports.
The Department invites specific comment on the nature and scope of such seminars, and the applicability of the section 203 reporting requirements to them [pages 63 & 64].
It is important to note that the activities described by the Department of Labor’s union extremists may not have the direct effect of persuading employees about unionization, but may have an indirect effect—which can lead to just about any pro-active employee relations engagement between an employer and consultant.
Here is the checklist [page 138] that the DOL is proposing that consultants (and lawyers) fill out, in addition to disclosing their firms’ annual income (as well as their salaries).
While the Department of Labor is proposing these new rules under the auspices of ‘transparency,’ to better inform employees if their employer has hired persons to thwart unionization, the reality is that—given the NLRB’s push for fast-track elections—these new rules will fail in that regard since the initial reporting deadline is not until 30 days from the date the employer has engaged a consultant, which would be after a fast-track election takes place.
The reality is, the DOL’s proposal is nothing more than a way of establishing a database of companies for unions to target with negative publicity, protests and other actions, the same way the unions in Wisconsin boycotted companies who would not be blackmailed into putting signs in their windows.
The problem is, the DOL’s rules will place many more businesses (both consultants and employers) than most realize under the obligation to report their financial transactions. Out of the 13,575 human resource consulting businesses that exist, according to the DOL, only 2,549 are estimated to be affected. Frankly, that number is wrong.
If setting up an employee handbook, doing a employee opinion survey, establishing roundtable meetings, or safety committees—since a positive workplace negates having a union and indirectly keeps unions out—then, literally, every human resource consultant would likely fall into the DOL’s new definition of persuader and will be required to file reports.
Despite the DOL and NLRB’s intent to make resisting unions futile, this is one more area that may just backfire on the union extremists dreaming up these cockamamie ideas.
Next Up: We’ll be exposing some “union busters” (under the DOL’s proposed regs) that may surprise you.
“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776