Employers May Soon Lose Unionbusting Reporting Loophole

Mike Elk

Labor Department plans to close the advice exemption’

I think a lot of people feel now that the Employee Free Choice Act is dead that there is nothing the government can do to crack down on union busting,“ exclaims fiery UE Political Action Director Chris Townsend. However, there are dozens of things the government can do without even passing legislation that could crack down on unionbusting. One small thing that would have a huge impact is to get companies to report the outside unionbusters they hire.”

The Labor-Management Reporting and Disclosure Act (LMRDA) also establishes reporting and recordkeeping requirements for employers and labor relations consultants.

If we could force corporations to file [a labor management] form within 48 hours of bringing in an outside unionbusting counsel, we could at least inoculate our members against the attacks likely to come in a unionbusting drive,” says Townsend. We could figure out who is the unionbusting firm, what is their playbook of attacks, and prepare ourselves to counter that attack.”

The Department of Labor may soon do exactly what Townsend would like to see happen. But to understand the action DOL is considering taking, you’ve got to understand how LMRDA works.

Under LMRDA, an employer must report certain expenditures and activities, including any agreement or arrangement with a third party labor relations firm — like the many unionbusting firms on the markets — to persuade employees as to their collective bargaining rights or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer.

The law requries that a labor relations consultant is also required to report such agreements or arrangements with an employer on LM-20 within 30 days of entering into that agreement. Those consultants are also required to file a an annual consultant report, Form LM-21, at the end of each fiscal year.

In addition to corporations, unions have to file out these forms. Unions spends massive amounts of resources and money putting together these forms in order to comply with the law. Corporations, however, often do not put down all the outside consultants that they hire to work on these campaigns. In particular, the LM-10 requires corporations to list when they hire an outside union busting firm. Often corporations fail to do this or do it in such an untimely manner that it’s irrelevant.

Corporations often don’t file these forms due to an advice exemption. The exemption allows corporations to not report any outside counsel that does not directly talk to workers. Say, for instance, a big corporation hires a unionbusting firm to coach its supervisors in how to run one-on-one intimidation campaigns. The corporation does not have to report that expenditure on its LM forms. As former unionbuster Martin Jay Levitt wrote in his famous Confessions of a Union Buster, this is the preferred method of unionbusting — have someone workers know, such as a supervisor, do the union busting.

The advice exemption allows organized labor to know very little about the operations of unionbusters — and it’s that exemption that may soon vanish.

We are planning on publishing a proposed rule on the advice exemption,” says John Lund, director of the Office of Labor-Management Standards at the Department of Labor. The Department of Labor is considering revising the interpretation of 203© Labor-Management Reporting and Disclosure Act to narrow the scope of the advice exemption. Section 203© currently exempts employers and labor relations consultants from the reporting otherwise required by sections 203(a) and (b), if the consultant only provided advice to the employer in connection with persuading employees concerning the right to organize and bargain collectively.

Such small reforms as the LM forms could have a big effect on organizing. Having accurate and timely information about the unionbusting forces of employees could greatly help unions in their organizing drives.

Organized labor must remain vigilant and fight for such small but oft ignored reforms, as bosses will surely pay attention and fight against them.

Editor’s note: The original headline to this article began with the word corporations.” While corporations will be affected by this possible Labor Department action, all other employers will as well.

Mike Elk wrote for In These Times and its labor blog, Working In These Times, from 2010 to 2014. He is currently a labor reporter at Politico.
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