CUE Member Alert The DOL “Persuader” Rulemaking NLRB “Quickie Election” Rulemaking CUE Member Survey Presented by: Doug Seaton – Seaton Peters Revnew LLP

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


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)


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 – NLRB Rulemaking

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Proposed NLRB Election Process

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Current NLRB Election Process

* Note: Rulemaking does not mandate new targets, only makes them possible

Revie

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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)


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


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)


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 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


Active Organizing


Top Tactics Used in Traditional Organizing Efforts


Top 10 Issues Targeted


Corporate Campaigns


Corporate Campaign Tactics Used


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


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


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


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


Documents

CUE Member Alert The DOL “Persuader” Rulemaking NLRB “Quickie Election” Rulemaking CUE Member Survey Presented by: Doug Seaton – Seaton Peters Revnew LLP