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Labor Issues Staying at the Forefront of Political, Legal Discussions with NLRB, DOL Activity


January 22, 2015

As we have discussed over the past few weeks, the NLRB was busy as 2014 drew to a close. On December 11, 2014, the Board overruled its Register Guard decision in Purple Communications, establishing a new standard that requires employers to accommodate employees’ use of e-mail for protected concerted activity, subject only to “uniform and consistently enforced controls” that are “necessary to maintain production and discipline.” The very next day, the Board adopted a final version of its quickie election rules, which are scheduled to take effect on April 14, 2015, pending any legal challenges. These are not the only recent actions of interest to employers and labor practitioners. Amid post-election budget wrangling and the Board’s busy month, the Senate approved the nomination of a new Democratic appointee to the Board, and the Department of Labor (DOL) provided more guidance on persuader rules and union annual reports, potentially putting a final point on two long-running contentious issues.

New NLRB Member Lauren McFerran Takes Seat

Last month, the Senate quietly confirmed President Obama’s nomination of Lauren McFerran to the Board. The largely party-line, 54-40 vote to confirm Ms. McFerran came after the Senate’s Health, Education, Labor and Pensions (HELP) Committee approved her appointment without the support of any Republican members.

Ms. McFerran, who replaced Member Nancy Schiffer when her term expired at the end of last year was President Obama’s second choice. The President first nominated former recess appointee Sharon Block, but her nomination was withdrawn under political pressure in the days after the November elections. Ms. McFerran served as labor counsel to retiring Iowa Senator Tom Harkin and the late Senator Edward “Ted” Kennedy. Since 2010, she has served as the HELP committee’s chief labor counsel. Notwithstanding her testimony during her nomination hearing that she would keep a “very open mind” about labor issues, her early votes have been in lockstep with the other two Democratic appointees on the Board.

DOL Publishes Plans for Persuader Rule, New Annual Report Requirements

In a regulatory agenda released late last month, the DOL said that it expects to issue a final persuader rule by the end of July 2015 that will revise its interpretation of Section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). As we have covered in the past, an extended comment period, during which the proposed rule took on heavy criticism from a wide array of groups across the political spectrum, ended on September 21, 2011. Section 203 of the LMRDA, among other things, requires employers to file reports with the DOL when they hire consultants or contractors (including attorneys) to persuade employees on the issue of unions. The revised interpretation would narrow the advice exemption and bring within the scope of required disclosures any actions, conduct, or communications on behalf of an employer that could directly or indirectly persuade workers concerning their right to organize and bargain collectively, regardless of whether the attorney/consultant/contractor has direct contact with workers and regardless of whether the employer accepts or rejects the proposals. Furthermore, the DOL’s proposed interpretation would specifically require reporting the preparation of persuasive scripts, letters, videos, or other digital media for use by an employer or revisions to an employer’s documents by an attorney or consultant.

The DOL also proposed significant changes to the LM-10 and LM-20 forms, used by the employer and consultant respectively, to disclose reportable activity. The DOL’s agenda states that it hopes to issue in July 2015 a notice-and-comment rulemaking that would make electronic filing mandatory for the Consultant Form LM-21, the Receipts and Disbursements Report, and to require more detail from consultants. The DOL previously had slated these changes for the end of 2014.

The DOL’s agenda also indicates that it has pushed back plans to release a new rule that would make electronic filing mandatory for the Form LM-3 and LM-4 Labor Organization Annual Reports. This action was previously scheduled for December 2014, but has been delayed until November 2015. Currently, the largest labor organizations (with $250,000 or more in total annual receipts) file Form LM-2, which already requires electronic filing. The proposed rule would require smaller labor organizations, which file either the Form LM-3 or LM-4, to also submit their forms electronically. 

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