MANAGEMENT DEPARTMENT OF LABOR EXPANDS PERSUADER REGULATIONS HR FOCUS Jim Kyger, Assistant Vice President, Human Relations, Printing Industries of America The Magazine 14 05.2016
On March 24, the U.S. Department of Labor (DOL) released a revised fi nal regulation of the so-called “Persuader Rule.” The revised regula- tion was initially issued in 2011 and sparked quite a bit of controversy regarding the use of third-party consultants by employers during union organizing (and union decertifi cation) campaigns. Under the current regulation, a persuader is a person who is hired by a company to communicate directly to employees (in person usually) about issues sur- rounding union representation. Persuaders are usually very charismatic people and often are former union members who urge employees to vote against union representation. Persuaders who have direct contact with employees must fi le reports with the DOL, as well as employers who hire them. Persuaders are often very eff ective but their usage has declined over the years as employers (typically owners) have taken it on themselves to speak to employees.
Why the Change in the Regulation? According to the National Labor Relations Board’s (NLRB) FY 2015 election report, unions won 69% of 1,490 representation elections held. By comparison, unions won 58.9% of 2,007 representation elections in FY 2005, a nice increase in win rates. However, the decline of represen- tation elections held has resulted in fewer new members. Only in 2015 did an increase in new members result because the average voting unit size increased signifi cantly for elections the unions won. Organizing larger units (or employers) is more expensive for unions and they want to increase “sales” (new members) while keeping their “selling costs” low (spending less time dealing with employer opposition). This is where the revised persuader regulation comes into play (along with last year’s revised NLRB regulation that speeds up elections). Since direct-persuader use has declined, the use of consultants and attorneys giving behind- the-scenes “advice” to employers on how to conduct a union avoidance campaign has increased dramatically over the decades. DOL estimates that between “71 to 87 percent of employers hire consultants to manage counter-organizing campaigns.”
Unions wanted DOL to require that the agreements and fees paid by employers to union avoidance consultants and attorneys be publicaly disclosed via forms fi led with DOL and posted on their website. The idea is that unions will obtain this information and tell employees who will be voting in an upcoming election that the employer is using “outsiders” and
paying them “big bucks.” Secretary of Labor Thomas Perez recently said, “The fi nal rule … is designed to ensure workers have the information they need to make informed decisions about exercising critical workplace rights such as whether to form a union or join a union.” Further, DOL has written that “full disclosure of both direct and indirect persuader activ- ities protects employee rights to organize and bargain collectively and promotes peaceful and stable labor-management relations.” Plus, DOL says “it is possible that an employee may weigh diff erently any messages characterizing the union as a third party.”
While the rule’s preamble says “the rule imposes no restrictions on what employers may say or do when faced with a union organizing campaign,” the unstated goal is certainly to curb the use of consultants and lawyers during union organizing campaigns.
What’s in the Persuader Rule? According to DOL, the revised Persuader Rule requires employers and their hired consultants to report when the consultants directly persuade workers or when the consultants are in one of the following categories:
• Plan, direct, or coordinate managers to persuade workers • Provide persuader materials to employers to disseminate to workers • Conduct union avoidance seminars
• Develop or implement personnel policies or actions to persuade workers
Under the Persuader Rule, as examples, employers and consultants will have to report any of the following activities as they relate to union representation:
• Planning or conducting employee meetings
• Training supervisors or employer representatives to conduct meetings
• Coordinating or directing the activities of supervisors or employer representatives
• Establishing or facilitating employee committees • Drafting, revising, or providing speeches
• Developing employer personnel policies designed to persuade employees
• Identifying employees for disciplinary action, reward, or other targeting
MANAGEMENT
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