When an employee decides whether to vote for union representation, a lot of things can factor in, not least among them information from their employer. What employees may not know though, is how much of that information comes from an outside consultant – or how much those consultants were paid.

But thanks to a new rule from the Department of Labor, that information will now be available.

On March 23, the Labor Department issued a new rule that puts employers on par with unions. It requires reporting on employer-consultant or “persuader agreements,” a new interpretation that includes indirect as well as direct activity. Before, companies were only required to report on things like consultants meeting with employees, where the consultants had direct contact with the potential union members. Now, they will have to report activity that previously occurred behind the scenes, like talking points, scripts and letters drafted for management to be used on employees. 

The new persuader rule from the Department of Labor requires employers to report on both direct and indirect activity related to their union-busting campaigns – something labor organizers have long been required to do.

“Workers should know who is behind an anti-union message. It’s a matter of basic fairness,” said U.S. Secretary of Labor Thomas E. Perez. “As in all elections, more information means better decisions.”

The rule is a reinterpretation of the Labor-Management Reporting and Disclosure Act, a law that requires labor organizations, consultants and employers to file reports and disclose expenditures on labor-management activities. The previous interpretation created a loophole that allowed employers to report only direct activity.

Anywhere from 71 to 87 percent of employers hire consultants to manage their union-busting campaigns, says the Labor Department, despite very few reports coming in. In some cases, the consultants may even direct managers to say things that don’t actually match their personal views.

Those opposed to the rule say it violates confidentiality between attorneys and clients. The Labor Department however, says that it only requires disclosure of the client’s identity, the fee arrangement and the scope of the agreement, and only in cases where the consultant provides services other than legal. And employers do not have to report when a consultant is only giving advice.

On April 27, the House held a hearing at which a member of IBEW’s general counsel, Jonathan D. Newman, was the only pro-labor person to speak on the panel. In his statement, Newman quotes a union buster as saying that he has never in his life filed with Department of Labor and that few union busters do.

“Labor consultants do not merely give advice, but instead craft the game plan and call the plays for anti-union election campaigns,” Newman said.

Additionally, Newman elucidated the difference between the transparency the rule will provide and the continued protection of attorney-client privilege.

“Critics of the rule who claim that it will force employers to report virtually all contact with advisors on union-related issues, or who assert that the rule will deter small businesses from seeking help to navigate labor laws, must not have read the rule,” Newman said.

Newman also pointed out the current discrepancy between the reporting required of unions and companies.

“Labor organizations already have broad transparency obligations under the LMRDA and report much more than that which is required of employers and consultants under the rule,” he said.

On May 18, a committee in the House of Representatives voted 21-10 in a party-line vote to approve Republican legislation that would block the persuader rule, reported The Hill, a publication that focuses on Capitol Hill. From there, the bill goes to the full House for consideration. Even if the legislation passes in the House and the Senate, it would likely be vetoed by President Obama.

“The rule levels the playing field for organizers and management and ensures that working men and women are making truly informed choices, which is exactly as it should be,” said International President Lonnie R. Stephenson. 

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