By now you probably have heard about the Department of Labor's new "Persuader Rule," which requires employers to file public reports about consultants and attorneys who help them deal with labor union matters, including organizing campaigns. But like me perhaps you were left wondering how this will really help unions.
The new rule requires employers after July 1 to file annual reports with DOL revealing arrangements with outside consultants who supply labor relations advice and services. That includes attorneys, law firms, public relations firms and even trade associations holding labor relations seminars for their members.
Employer groups, law firms and the Coalition for a Democratic Workplace, consisting of more than 600 industry associations, filed lawsuits in federal courts in Arkansas, Minnesota and Texas to overturn the rule. Lawyers in particular believe the rule violates attorney-client confidentiality because it requires reporting how and how much they are compensated.
Unions were ecstatic. AFL-CIO president Richard Trumka declares, "This long-awaited rule will increase transparency about employers' activities when they hire outside third parties to do their union busting." Teamsters president James Hoffa asserts, "For years, big business has taken advantage of the nation's broken system. They've paid millions to consultants and law firms to do the dirty work of union-busting and intimidating employees. In exchange, these same companies publicly could wash their hands of the whole thing. That's over now."
Labor Secretary Thomas Perez compared the new rule to the scene in "The Wizard of Oz" where Dorothy's dog Toto pulls back a curtain to reveal the Great and Powerful Oz is nothing more than a con man desperately declaiming, "Pay no attention to that man behind the curtain." The Labor Department went so far as to put an illustration of a hand pulling back a curtain on its website displaying the words: "Transparency for Workers."
"If you believe in what an outside expert drafted for you to say to your employees, if you were willing to pay the outsider to help you say it, then open the curtain and reveal who scripted the message and managed its delivery," Perez says. "Workers should know who is behind an anti-union message. It's a matter of basic fairness."
Let's leave aside the overheated rhetoric invariably casting employers in the role of villains—particularly objectionable coming from government officials who are supposed to be unbiased umpires, not union advocates. Does anyone really think that the new rule will end up helping unions that much? Will workers weighing their votes for union representation care that much whether their employer hired the law firm of Jones, Jones, Jones & Smith or the public relations company of XYZ Corporate Communications?
Employers are only required to file these reports annually, which limits their usefulness if the union election is over by then. And keep in mind that since 1959 –for 57 years—employers have been required to file similar reports about outside consultants and lawyers who communicate directly with employees. The big change with the new rule is that it encompasses any outside labor advisor to management even if they don't directly communicate with workers.
Attorney Gregory McClune of Foley & Lardner notes the rule's proponents believe filing these reports with the government will convert confused employees into informed voters. "We can likely leave it up to common sense for a reliable indication as to whether employees will ever see these reports," he says. "But even if they do, as the current national election cycle certainly suggests, furnishing voters with more information does not appear to produce more rational voting patterns." To that all I can say is: "Amen, Brother."
David Sparkman is founding editor of ACWI Advance, the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board.