CUE Member AlertThe DOL “Persuader” RulemakingNLRB “Quickie Election” RulemakingCUE Member Survey
Presented by:Doug Seaton – Seaton Peters Revnew LLPPhillip Wilson – Labor Relations Institute, Inc.
Agreement and Activities Report – Form LM-20
Due 30 days after the Agreement to provide “persuader” services
Receipts and Disbursements Report – Form LM-21
Due 90 days from the end of your fiscal year
Employer Report - Form LM-10
Due 90 days from the end of your fiscal year
Labor Management Reporting and Disclosure Act of 1959
CUE Member Alert – DOL Rulemaking
1960 InterpretationSpeeches, written materials =
“persuader” activity
1962 Re-InterpretationSpeeches, written materials =
“advice” activity
2001 Re-interpretationSpeeches, written materials =
“persuader” activity unless that activity is mere review and revision
2011 Re-interpretation?
“Advice” exemption – Section 203(c) of LMRDA
• Applies to consultants and attorneys
• Exempts “advice” from disclosure rules
CUE Member Alert – DOL Rulemaking
1. Materials for presentation, dissemination, distribution to employees
2. Speeches3. Audiovisual, multimedia presentation4. Website content5. Planning, conducting one-on-one or group
meetings6. Employee attitude surveys concerning union
awareness, sympathy or “proneness”7. Training supervisors to conduct meetings8. Coordination or directing activities of
supervisors9. Establishing or facilitating employee
committees10. Developing personnel policies11. Deciding which employees to target for
persuader activity or disciplinary action12. Conducting a seminar for supervisors or
managers13. Other (must explain)
CUE Member Alert – DOL Rulemaking
Revised Part CPersuader activities include
drafting, revising or providing…
Privileged CommunicationsMust disclose agreement, fees, and persuader activity but don’t have to disclose privileged
communication (See NPRM at 65)
Mixed ActivitiesPersuader activity trumps advice; must disclose even is some activity would be exempt if done
alone (See NPRM at 64-65)
FeesBased on the “agreement or arrangement” and
NPRM says must report fees for BOTH advice and persuasion in any agreement that includes
persuasion (See NPRM at 65, n. 16)
Check Your CircuitSome Circuits (4th, 5th, 6th and 7th) require firms to report advice activities for clients who did
not even receive persuader activity during the reporting year.
Common Questions• Attorney-client privilege?• “Mixed” persuader-advice
situations?• What fees must be reported?
CUE Member Alert – DOL Rulemaking
CUE Member Alert – NLRB Rulemaking
Petiti
on file
d
Hearin
g - SOP
Emplo
yee
List
Elect
ion*
Post-E
lect
ion H
earin
g
Unit + O
bject
ions
Revie
w by
NLRB
0 7 9 19Days 33
Object
ions
Due
26
Proposed NLRB Election Process
Petiti
on file
d
Hearin
g
Emplo
yee
List
Elect
ion
Post-E
lect
ion H
earin
g
Revie
w by
NLRB
0 7 14 42Days
Object
ions
Due
49
Current NLRB Election Process
* Note: Rulemaking does not mandate new targets, only makes them possible
Revie
w by
NLRB
Consolidate all review issues into one, post-election
request for review
Hearing suspended to post-election if issues effect less
than 20% of unit
Key Changes
Electronic Filing
Statement of Position Form (all future litigation limited to statement of position)
Eliminate 25-30 day waiting period to allow review of
Regional Director decisions
Provide voter phone numbers, email, shift &
departments within 2 days of direction of election (and
immediately to Board)
CUE Member Alert – NLRB Rulemaking
Review all individual voter eligibility issues post-
election
Other Changes
Pre-Election Notice required (electronic posting required
where possible)
Final Notice to employees electronically transmitted
Request for comment on blocking charges (offer of
proof, pre-election investigation, impound)
Election can be held within 10 days of transmission of eligibility list (or earlier if
union agrees)
Use of electronic signatures to support a showing of
interest
CUE Member Alert – NLRB Rulemaking
Action Item 1: Comment• Go to regulations.gov and
comment• NLRB Rule
• RIN 3142-AA08• Comments due August 22,
2011• DOL (LMSO) Rule
• RIN 1245-AA03• Comments due September
21, 2011 • Key topics for comment:
• No need for the rule• Substance of the rule• Cost of compliance• Policy problems or unintended
consequences
CUE Member Alert – What to Do Now
Action Item 2: Congress• Newly elected Congress = Republican
majority• House has appropriations power• Can de-fund regulatory activities (i.e.
ergonomics)• NLRB already under pressure due to
Boeing case• Key people to contact:
• Your congressperson• Members of the House Appropriations
and Education and the Workforce Subcommittees (Kline is Chair)
• Also Boehner, Issa, King (House) and DeMint (Senate)
CUE Member Alert – NLRB Rulemaking
Resources for comments and outreach• CUE Comments Sent Soon• http://LRIonline.com/olms-advice-rule• http://LRIonline.com/nlrb-streamlined-elections• http://www.nam.org/Issues/Employment-and-Labor/
Employee-Free-Choice-Act-Summary.aspx• http://uschamber.com/issues/labor• http://www.shrm.org/Advocacy/Issues/
EmploymentandLabor/Pages/default.aspx
CUE Member Alert – NLRB Rulemaking
CUE Member Survey and Report
• Third annual survey, administered at CUE member conference in October 2010
• Total of 216 members who responded• 24 unique industries, 16 industries with
greater than 5 responses• NLRB petition and election data for 13
primary industries• Complete report available at cueinc.com
LLAC
CCAC
Level of Concern About Potential Organizing
CUE Member Survey and Report
Active Organizing
CUE Member Survey and Report
Top Tactics Used in Traditional Organizing Efforts
CUE Member Survey and Report
Top 10 Issues Targeted
CUE Member Survey and Report
Corporate Campaigns
CUE Member Survey and Report
Corporate Campaign Tactics Used
CUE Member Survey and Report
Neutrality Agreement• Of those who experienced corporate campaign
activity, 17 percent indicated some pressure to enter into neutrality agreement
• Four respondents said an agreement was reached
CUE Member Survey and Report
Card Check Agreement• Of those who experienced corporate campaign
activity, 13 percent indicated some pressure to enter into card check agreement
• Five respondents said an agreement was reached
CUE Member Survey and Report
Election Agreement• Of those who experienced corporate campaign
activity, 5 percent indicated some pressure to enter into an election agreement
• One respondent said an agreement was reached
CUE Member Survey and Report
A Special Thanks to:• CUE members who participated in the survey• Ben Foster Jr., Michael Lennane and Ryan Lile for writing articles
for the Labor Law/Labor Activity Update• CUE Consultant Advisory Committee (CCAC) for contributing to
and supporting this report• Labor Relations Institute, Inc. for providing NLRB petition and
election data
Look forward to the next survey in the fall.Welcome suggestions to improve response rate
CUE Member Survey and Report
Top Related