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Here We Go Again! DOL Proposes to Rescind the Permanently Enjoined “Persuader” Rule - and Perhap

Harold Coxson
June 28, 2017

The U.S. Department of Labor (DOL) moved one step closer to undoing President Obama’s permanently enjoined “persuader activity” regulation when, on June 12, the agency issued a notice of proposed rulemaking (NPRM) for reverse rulemaking to rescind the rule and perhaps revise it. According to the NPRM, the DOL will be accepting public comments on the rule until August 11, 2017.

The DOL’s rule would have significantly revised and expanded the reporting and disclosure requirements imposed on employers and advisors (including consultants and lawyers) under the Labor-Management Reporting and Disclosure Act (LMRDA). If implemented, the DOL’s new rule would have required employers and consultants to report and disclose direct or indirect communications that have an object to persuade employees with regard to union organizing—including what was formerly considered exempt “advice” provided to management by consultants, including lawyers.

The so-called “persuader” rule, which would have required employers to disclose who advises them on how to discourage union organizing activity, was already set aside last November when a Texas federal judge ruled that, among other grounds, it exceeded the DOL’s authority and compromised free speech and attorney-client privilege. Employers and other interested parties should use this opportunity to provide comments to the DOL on the effects of the persuader rule on their organizations.

What is “Persuader Activity”?
Ever since the 1947 Taft-Hartley Act amendments, employees in the United States have had protected rights to engage in or refrain from union activity or other forms of concerted action. Unions have consistently sought to undermine, in Congress, employees’ rights to refrain from union activity and have labeled employers who inform employees of their rights to refrain from union membership, “union busters.”

Attacks against employer communications have occurred despite the fact that section 8(c) of the Taft-Hartley Act amendments (the so-called “free speech” proviso) shields employers from unfair labor practice charges for communications and views or opinions expressed about unions with their employees provided that the communication “contains no threat of reprisal or force or promise of benefit.” While supporting section 8(c) legal “free speech” protections, the ever-changing decisions of the NLRB have created a mine field of interpretations as to what constitutes unlawful “threat[s] of reprisal[s] or force or promise of benefit[s].”

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