More than 500 ABC members joined ABC in submitting comments to the Department of Labor asking them to reconsider and withdraw a proposed rule that would expand the circumstances in which consultant services provided to an employer that are used to inform employees about their rights to collective bargaining would have to be reported. 

Currently, under section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA), attorneys and other third parties are exempt from reporting requirements as long they are providing to employers what is considered “advice” and do not speak directly to employees. 

The notice of proposed rulemaking would significantly narrow the exemption by expanding the definition of “advice” in such a way that means reportable activity would include anything that has both a direct and indirect objective to persuade employees, known as “persuader activities.” Any persuader activity would have to be reported by both the consultant and the employer. 

In its comments, ABC argued that the proposed changes would deprive employers of their right to free speech, freedom of association, and legal counsel, and would deprive employees of the right to obtain balanced and informed input from both sides as they decide whether to represented by a union. 

In addition, ABC noted that the regulatory burdens imposed by the proposal’s expanded reporting requirements are completely unjustified and would harm small construction businesses barely surviving the current economy. 

“It is essential that employers in the construction industry, which are predominately small businesses without access to in-house labor relations advisors, retain the ability to obtain advice from labor relations experts before, during and after a union organizing campaign,” ABC said. 

Under the proposed rule, reportable persuader activities would be triggered through any direct or indirect actions, conduct or communications by the consultant on behalf of the employer intended to persuade employees concerning their rights to organize and bargain collectively. In addition, any activity in which a consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort would be reportable. As written, this would include information given by associations to their members that concerns collective bargaining. 

“The department’s actions appear on their face to be contrary to congressional intent, and the proposed rulemaking will have serious adverse consequences for small businesses and their representatives in the construction industry,” ABC said. “There is no justification for the department to implement a proposed rule that would unquestionably create such a direct chilling effect on ABC and its members.” 

To learn more about the persuader rule, members can attend a free webinar to be hosted by ABC Tuesday, Oct. 11 at 2 p.m. (ET) called, “Coping with the New Pro-Union Rules from NLRB and USDOL.”  During the webinar, ABC General Counsel Maury Baskin will update attendees on the status of new and unprecedented rules that have been announced by the NLRB and USDOL this past summer, including the persuader proposal.