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Since 1959, employers have been required to file a report with the United States Department of Labor if they engage a third party, such as a consultant or attorney, to persuade employees concerning collective bargaining rights.  Most often, employers engage consultants during union campaigns in an effort to persuade employees not to unionize.  Historically, the reporting rule was interpreted to only apply when a consultant has direct contact with the employees being influenced.  However, the rule was recently revised by the Department of Labor and it will dramatically change the types of activities that must be reported starting July 1, 2016.  Under the new rule, employers must file a report with the Department of Labor if it engages a consultant for any of the following activities:

  1. Direct Persuasion. Direct contact or communication with any employee in an effort to persuade such employee.
  1. Indirect Persuasion. Any one or more of the following activities with an intent to persuade employees:
  • Planning, Directing, or Coordinating the Activities of Supervisors or Managers. This includes “behind the scenes” planning meetings and discussion with supervisory employees to discuss which employees to meet, where to meet, when to meet, the topics to discuss and the manner in which they are presented, and how to gather information from employees, debriefing with the supervisor to orchestrate the next steps in the campaign, and identifying materials to disseminate to employees.
  • Providing Persuasive Materials. Providing any materials or communications to the employer in any form for distribution to employees.
  • Developing or Implementing Personnel Policies or Actions. According to the DOL, reporting is required only if the consultant develops or implements personnel policies that are intended (directly or indirectly) to persuade employees (e.g., the identification of specific employees for disciplinary action, reward or other targeting based on their involvement with a union representation campaign or perceived support for the union, or implementation of personnel policies or practices during a union organizing campaign). For example, if the consultant, in response to employee statements about the need for a union to protect against firings, develops a policy under which employees may arbitrate grievances, reporting would be required. However, if the grievance process was set up in response to a request by employees – without any history of a desire by them for union representation – or as a policy developed as part of a company’s startup of operations, without any indication in the agreement or accompanying communications that the policy was established to avoid union representation of the employer’s workforce, no reporting would be required.

By:  Todd C. Hicks, Esq.

In the event you have any questions concerning the new Union Persuader Rules or any labor related issues, feel free to contact Todd C. Hicks or David M. Ondrey.