Proposed DOL Rule Could Require That Employers Report Agreements with Their Attorneys

By Steven W. Suflas and Timothy R. Mulliner

The U.S. Department of Labor (DOL) has asked for public comment on a proposed rule that would significantly affect reporting requirements for agreements with labor relations consultants, including attorneys. The Labor-Management Reporting and Disclosure Act (LMRDA) requires employers and consultants to report any agreements that, directly or indirectly, are intended to "persuade employees" with regard to their collective bargaining rights. The proposed rule would severely narrow the exception to those reporting requirements by redefining the term "advice" given to employers.

Until now, the DOL has broadly interpreted this "advice" exception to include any activity that does not involve direct contact between the consultant or attorney and employees. The DOL's new interpretation would narrow the definition of advice to "an oral or written recommendation regarding a decision or a course of conduct." If the attorney's actions go beyond ensuring compliance with the law and are deemed to have the objective of persuading employees, those actions must be reported. The following are a few examples cited by the DOL under the proposed rule:

  • An attorney's revisions to a proposed letter to employees would trigger reporting requirements if those revisions went beyond advice regarding the exercise of the employer's legal rights and instead enhanced the persuasive message of the letter.
  • A seminar presented by a law firm would trigger reporting requirements if, for example, it involved the training of supervisors to conduct individual or group employee meetings in a manner that would persuade employee behavior.
  • If an attorney's actions involve both "advice" and the persuasion of employees, the advice exemption would no longer apply. The DOL's new interpretation would require reporting "in any situation where it is impossible to separate advice from activity that goes beyond advice.

Employers and attorneys are encouraged to review 76 Fed. Reg. 36,178 regarding this significant change of interpretation and other changes to LMRDA, including mandatory electronic filing, detailed reporting requirements to describe a consultant agreement, and changes to the relevant forms. The deadline for public comment on the proposed rule is August 22, 2011.

Proposed NLRB Rule Would Have Union Elections Take Place Much More Quickly

The National Labor Relations Board (the Board) has proposed a rule for public comment that would make significant changes to the union election process. According to the Board, these changes are intended to simplify and expedite the election process, reduce litigation, and make better use of modern technology. Whatever the motivation, the proposed rule could result in elections being held much sooner than the current process, causing concerns about whether employers will have a fair chance to discuss their views on collective bargaining with employees prior to the election.

The new rule would expedite the entire process, beginning with the electronic filing of the petition, which must be accompanied by evidence in support of the petitioner's claim of representational status. This would eliminate the two-day window after filing within which petitioners currently must submit a showing of interest. The rule would also expedite the timing of the pre-election hearing, requiring that it be held within seven days of the notice of hearing being served.

The hearing itself would also change significantly in the Board's attempt "to defer both litigation and consideration of disputes concerning the eligibility or inclusion of individual employees until after the election." For example, prior to the pre-election hearing, the parties would be required to submit Statements of Position demonstrating a "genuine issue of material fact" on the sole issue of whether "a question concerning representation exists." Only issues raised in the Statements of Position would be entertained at the hearing. If the only factual dispute involved the voting eligibility of employees who represented less than 20 percent of the voting unit, the hearing would be closed. Those employees would vote as challenged ballots and eligibility would be resolved after the election only if the contested employees' votes would affect the outcome.

Under the new rule, appeals from a regional director's decisions would essentially be filed only after the election takes place. Even then, the appeal would be entertained by the Board under more limited circumstances. On the rare occasions when an appeal is available prior to the election, the appeal would not stay the proceedings unless specifically stated by the Board and the election would move forward.

Finally, rather than having seven days after the direction of election to submit an Excelsior list, employers would have only two days to provide this list of potentially eligible employee names and addresses. More important, the list now would need to include telephone numbers and e-mail addresses, if available.

Employers are encouraged to review these and other proposed changes to the union election process at 76 Fed. Reg. 36,812. This proposed rule is open for comment until August 22, 2011.

If you have questions about how this change would affect your operations, contact Steven W. Suflas at 856.761.3466 or suflas@ballardspahr.com, Timothy R. Mulliner at 702.387.3094 or mullinert@ballardspahr.com, or any member of Ballard Spahr's Labor and Employment Group.


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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

 

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