Employers and labor experts said that the Labor Department’s latest union election rule could further tilt the scales in favor of labor groups.
The agency, led by controversial Labor Secretary Tom Perez, released a final version of the "persuader rule" on Wednesday, a rule that would force employers to disclose any advice they seek from legal counsel or labor consultants during a union election campaign.
The rule currently requires employers to disclose "persuaders" if their lawyers or consultants speak directly to employees, but not if they speak only to the employer. Now employers will be forced to disclose any outside help they receive, even if it is only sought behind closed doors with management.
The rule would expand the definition of "persuader activities" to include "any actions, conduct, or communications that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights."
"The final rule requires that both direct and indirect activities must be reported," the department said in a release. "The final rule also requires consultants to file reports when they hold union avoidance seminars for employers, but does not require employers to report simple attendance at these seminars."
The new regulation sparked an outcry from labor watchdogs and American employers. Associated Builders and Contractors, a construction industry trade group, said that the new rule would effectively "silence employers."
"Associated Builders and Contractors is disappointed with the Department of Labor’s final persuader rule, which will improperly narrow the longstanding ‘advice’ exemption used by employers," ABC spokeswoman Kristen Swearingen said in a release. "In narrowing this exemption, DOL is greatly limiting businesses’ ability to obtain labor relations advice from attorneys, consultants and trade associations, including ABC, which will have a particularly onerous impact on any business without in-house counsel."
Perez, who is being floated as a potential running mate for Hillary Clinton, said that the new rule is about transparency, rather than benefitting unions.
"Workers should know who is behind an anti-union message. It’s a matter of basic fairness," Perez said in a release. "Full disclosure of persuader agreements gives workers the information they need to make informed choices about how they pursue their rights to organize and bargain collectively. As in all elections, more information means better decisions."
Critics say that stricter union election rules hinder the ability of workers to make informed choices. Labor organizers can present their case for unionization for months and even years before calling for an election with the National Labor Relations Board. By contrast, labor laws limit the time period when employers can present their case about the effects of unionization.
David French, spokesman for the National Retail Federation, said the rule would "discourage employers from seeking advice of counsel."
"DOL’s new rules would trigger reporting requirements for any communications that could even indirectly persuade workers regarding collective bargaining. NRF is concerned that the new standard will discourage employers from seeking advice of counsel in a broad swath of areas that have nothing to do with traditional persuader activities," French said in a release. "The end result will be a chilling effect on simple legal advice regarding employee or collective bargaining issues. Small retailers will be the first to suffer, and Big Labor will profit from this muzzling of free speech."
The rule was first floated in 2011. Unions have long sought to change the way workplaces are organized: during the early years of the Obama administration, unions pushed "card check" legislation that would have made it easier for organizers to bypass a secret ballot election with enough signed petitions supporting unionization. That legislation failed to clear the Democratic Party-controlled Senate.
A number of union aims, including goals included in card check legislation, have been achieved through the back door through Labor Department regulations. The agency implemented ambush election rules in 2015 that significantly reduced the time between election petitions and voting. Now, unions can spend months and even years campaigning, while employers are limited to several weeks once a petition has been filed. President Barack Obama vetoed a measure from congressional Republicans to block the rule.
Critics say that the persuader rule is the next step in the ambush process. Swearingen, the ABC official, said that employers will not only have less time to consult with labor experts, but will be less comfortable seeking their input.
"The final rule is clearly an attempt by DOL to restrict employers from communicating the potential pros and cons of unionization with their employees and, along with the flawed ‘ambush election rule,’ is the administration’s attempt to achieve the goals of its failed ‘card check’ proposal by regulation," she said.
The rule is set to go into effect on April 25.