Just in from the DOL/OLMS regarding the “advice” exception (here is the entire email from OLMS):

OLMS News 03-11: Notice of Proposed Rulemaking: Employer-Consultant Reporting: Interpretation of “Advice” in Section 203(c) of the LMRDA

Number: 03-11

June 20, 2011

OLMS News 03-11: Notice of Proposed Rulemaking: Employer-Consultant Reporting: Interpretation of “Advice” in Section 203(c) of the LMRDA
The Department of Labor’s Office of Labor-Management Standards (OLMS) is publishing on June 21, 2011 a proposed rule to revise the interpretation of “advice” as it pertains to the employer and labor relations consultant persuader reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA).  The proposal adopts the plain meaning of the term “advice,” as “an oral or written recommendation regarding a decision or course of conduct.”  The proposed rule will be published in tomorrow’s edition of the Federal Register.  See http://www.ofr.gov/OFRUpload/OFRData/2011-14357_PI.pdf.

Section 203 of the LMRDA requires the disclosure of agreements or arrangements between employers and  labor relations consultants pursuant to which the consultant undertakes or agrees to undertake activities that seek to directly or indirectly persuade workers concerning whether or not to exercise, or the manner of exercising, their rights to organize and bargain collectively.  Neither an employer nor a consultant is required to file a report with the Department of Labor covering the services of a consultant if the consultant is merely giving or agreeing to give advice to the employer.  More information on employer-consultant reporting is available here.

Under the proposal, an agreement would be reportable in any case where the consultant engages in persuader activities that go beyond the plain meaning of “advice.” Reportable persuader activities would include those in which a consultant engages in any actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers concerning their rights to organize and bargain collectively, regardless of whether or not the consultant has direct contact with workers. An agreement would also be reportable in any case in which a consultant engages in specific persuader actions, conduct, or communications regardless of whether advice is given such as when a consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort.

The LMRDA does not involve regulating the actual persuader activities or statements, and the proposed rule only focuses on whether the activities would have to be publicly disclosed.  The current interpretation of “advice” has resulted in significant underreporting of employer and consultant persuader agreements.  Better disclosure is critical to helping workers make informed decisions about their right to organize and bargain collectively.

Comments must be received on or before August 22, 2011.

For additional information on the NPRM, including methods to submit comments, please visit the OLMS Web site at:  http://www.dol.gov/olms/regs/compliance/ecr_nprm.htm.

 

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