For well over 40 years, the rule for labor consultants and management attorneys has been that if those individuals deal directly (i.e., face-to-face) with an employer’s employees in connection with labor relations matters, then the employer must fill out and file with the United States Department of Labor (DOL) an LM-10, and the attorney or consultant must fill out and file an LM-20. In contrast, consultation with the employers and their managers about the best way to communicate with rank-and-file employees was deemed “advice” and not subject to disclosure on the LM-10 and LM-20 forms.
In its June 21, 2011 proposed rule modifications, the DOL’s Office of Labor-Management Standards embarked on a mission to require employers and their advisors to disclose to the public the details of their consultations relating to labor relations, including those consultations with employers and their managers, as well as direct dealings with rank-and-file employees. In doing so, the DOL concluded that the regulation has not been properly applied. The DOL states that it does not intend to infringe upon the attorney-client privilege, and parties would be able to limit their descriptions to preserve the privilege.
According to the DOL, “advice” means (or should have meant all along) an oral or written recommendation regarding a decision or a course of conduct. By way of example, the DOL suggests activities such as telling an employer what it may or may not say, advising an employer on compliance with the law, providing an employer guidance on NLRB practice and procedure, or representation of an employer in proceedings constitute advice. So far, so good.
The DOL then virtually erases the line between advice and persuader activity by re-categorizing other activities traditionally deemed advice as reportable persuader activity. The new LM-20 form will have a checklist of activities that are deemed persuader activity, as opposed to advice, when it comes to persuading employees about their right to (or not to) organize:
- Drafting, revising, or providing written materials for presentation, dissemination, or distribution to employees
- Drafting, revising, or providing a speech for presentation to employees
- Drafting, revising, or providing audiovisual or multi-media presentations for presentation, dissemination, or distribution to employees
- Drafting, revising, or providing website content for employees
- Planning or conducting individual or group employee meetings
- Developing or administering employee attitude surveys concerning union awareness, sympathy, or proneness
- Training supervisors or employer representatives to conduct individual or group employee meetings
- Coordinating or directing the activities of supervisors or employer representatives
- Establishing or facilitating employee committees
- Developing personnel policies or practices
- Deciding which employees to target for persuader activity or disciplinary action
- Conducting a seminar for supervisors or employer representatives
The comment period for the proposed rule is 60 days from June 21.