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Kathy Hoekstra: Advice to NLRB: Don't change the union "persuader rule"

When a child knows he is losing a game, he either throws a tantrum or changes the rules of the game in a desperate attempt to win — or both.

We are seeing the same childish behavior from Washington and Big Labor, with colossally higher stakes. They want to change the rules of labor organization in ways that would deprive employers of their right to free speech, freedom of association and legal counsel, cost billions of dollars and cheat the nation’s workforce of the ability to make informed decisions about whether to join a union.

The temper tantrum has been brewing in the wake of a years-long decline in union membership. America’s unionized workforce is currently 11 percent, a mere 6.6 percent in the private sector. That’s a far cry from 20 percent in 1983 and its peak of nearly 35 percent in 1954.

To try and reverse this trend, labor unions and their Washington backers banked on the Employee Free Choice Act (EFCA), a legislative game-changer that would have ended secret-ballot elections and allowed unions a thuggish competitive edge in organizing efforts.

EFCA failed to get through Congress. Twice. So an increasingly frustrated child, the Department of Labor, went to the National Labor Relations Board for some mid-game rule changes.

One proposal would overhaul the 50-year-old “persuader rule,” enshrined in theLabor Management Reporting and Disclosure Act of 1959. This rule requires employers, management and legal counsel to disclose details of legal agreementsregarding activity that could be considered a way to “persuade” employees as it relates to unions.

Run-of-the-mill legal advice is exempt from reporting requirements and “persuader activity” has to be pretty blatant. As a longtime attorney whose firm specializes in labor law told me, “no one in our firm has ever had to fill out one of these obnoxious forms.”

This rule has worked for decades and has been endorsed by every presidential administration since enactment.

The proposed change, however, would consider nearly any communication involving labor and employment as “indirect persuader activity” and reportable.

Every single business that would ever talk with an attorney about an issue that falls under the jurisdiction of the National Labor Relations Board would have to report details of their meetings to the government, and so would their lawyers. Construction, retail, restaurant, lodging, grocery, healthcare, bakers, butchers, candlestick makers — you name it.

The effects would be chilling. Many employers would be too intimidated to use their legally-protected right to free speech. Imagine being too afraid of the federal government to seek legal advice to help navigate the already very complicated waters of labor relations and educate their employees.

Attorney-client privilege also goes out the window. The American Bar Association calls the proposed change an “unjustified and intrusive burden on lawyers and law firms and their clients.” And it flies in the face of Congress’ specific intent in the current rule to protect this privilege:

“SEC. 204. Nothing contained in this Act shall be construed to require an attorney who is a member in good standing of the bar of any State, to include in any report required to be filed pursuant to the provisions of this Act any information which was lawfully communicated to such attorney by any of his clients in the course of a legitimate attorney-client relationship.”

A “trigger” provision also forces a huge ethical dilemma on lawyers. Any labor relations counsel who performs one so-called “persuader activity” with one client has to report not only that one meeting, but all labor related activities with all other clients — including non-persuader activities. Asking my counsel to review a section of my employee manual that talks about a collective bargaining agreement triggers a reporting nightmare for my lawyer as he would then have to tell the government about his and his firm’s other clients.

Then there’s the cost. The Department of Labor estimated that compliance with this rule change would cost $826,000 a year. But a June 2012 report submitted to the U.S. House Committee on Oversight and Government Reform said the cost would be more than double the DOL estimate. And a former chief economist with the DOL calculated that the time spent learning about the proposed rule could cost as much as $10.6 billion in the first year, followed by up to $6.5 billion per year to obey it.

This proposed rule would hurt employees. When employers are hesitant to seek even the most basic advice about an organizing drive, and when lawyers are hesitant to give such advice, employees are robbed of the balanced information they deserve before making a decision about the future of their workplace. The petulant union that couldn’t get its way on Capitol Hill thus holds the power to move in and win over employees.

This persuader rule upgrade is a job-killing, fear-inspiring disaster waiting to happen. The only silver lining is that the proposal is so egregious that the DOL is having trouble getting support — beyond unions- – so the NLRB continues to delay hearings on it. This effort to placate a withering Big Labor special interest at the expense of the workforce is quite possibly one of the most audacious intimidation tactics in recent times.

And one of the most childish.


Kathy Hoekstra
Kathy is Senior Manager for Communications for an employee education advocacy organization. Prior stints include media relations for a political consulting company, former presidential candidate Herman Cain and a Michigan think tank. She also spent 15 years as an radio and television news anchor and reporter. Kathy graduated from the University of Michigan, is a lifelong Michigan resident and calls Saginaw County home. You can also find her on Facebook and Twitter at @Khoekstra