Feds' Bid To Tip Scales Toward Unions
When faced with a union organizing drive and professional union organizers, most employers, especially medium-sized and small businesses, are at a severe disadvantage. Many of these employers have turned to labor lawyers or consultants to help them exercise their right to inform their workers about unions. That avenue of assistance may no longer be available under proposed regulations that supposedly “reinterpret” long-standing federal law.
Originally a federal statute, the Labor Management Reporting and Disclosure Act required a company and its outside counsel to file annual reports with the government if the company arranged for the lawyer to communicate directly with employees. However, for more than 40 years, there has been a recognized exception to this requirement if the lawyer is providing legal or practical advice to company managers on how they can communicate with employees about unions, so long as the lawyer is only talking to management. This longstanding exception has now been targeted by the U.S. Department of Labor, which is on a mission to help unions increase their power and membership.
Under the reinterpretation, areas in which employers frequently seek legal advice, such as “developing personnel policies or practices” or conducting training for supervisors, would be reportable if they’re designed to prevent union organizing. But in practice, every policy and procedure that’s designed to ensure employees are treated fairly also inevitably reduces the employer’s vulnerability to union organizing. For instance, the lawyer who drafts or reviews a company’s “union-free” handbook policy or a CEO’s “welcome” to the company that states its position against third-party representation could trigger the DOL’s reporting requirements. Yet, under federal law, such statements are subject to close scrutiny by the National Labor Relations Board and must be carefully drafted to avoid an unfair labor practice.
This situation creates an untenable dilemma for companies that want to exercise their right to tell employees that their personnel policies and practices create a positive work environment and make union representation unnecessary. To make matters worse, the required reports would be very burdensome and could require the lawyer to violate attorney-client privilege. If the company uses an attorney who engages in reportable activity, the company will have to file a form — signed under the penalty of perjury, plus the threat of civil and criminal penalties, and personal liability — that itemizes financial arrangements with and payments to the attorney.
Of course, no employer will want to file this kind of report, so the easier thing to do may be to simply forego legal help on union issues. In addition, the attorney filings would breach the confidentiality of clients who may not wish to publicly disclose their use of counsel in matters unrelated to union organizing drives. Even the American Bar Association has expressed serious concerns to the Labor Department, urging it to not impose an “unjustified and intrusive burden” on lawyers and their clients.
If these rules hold up, unions will find it easier to organize because companies and law firms will be deterred from providing management training and legal advice. Of course, this is the result the government hopes to achieve. This shows that it’s committed to helping organized labor reverse its decades-long membership decline.
Ralph F. Abbott, Jr. is a partner with Skoler, Abbott & Presser, P.C., which has an office in Worcester.
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