Union persuader rule unfair, should be nullified, groups say

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Two organizations with senior living representation are calling for the nullification of a recently passed labor rule that requires employers to disclose their use of anti-union “persuaders.”

The Department of Labor's final rule, published in the Federal Register on March 24, requires employers to disclose agreements they have entered into with third-party consultants, also known as persuaders, to try to influence the outcome of union-organizing and collective bargaining campaigns. Employers also must notify employees when they develop plans for supervisors to influence workers, create anti-union materials and lead seminars against forming unions or collective bargaining.

The rule has “no benefit to employees” and is “designed to silence employers,” the Coalition for a Democratic Workplace said in a letter sent May 10 to Rep. Bradley Byrne (R-AL), who sponsored a resolution to withdraw the rule. The group represents more than 600 organizations, including Argentum, the National Center for Assisted Living, the American Seniors Housing Association, LeadingAge Colorado and the National Multifamily Housing Council. Of the aforementioned organizations, however, only Argentum is a signer on the coalition's letter in support of Byrne's measure.

The rule, which is intended to apply to agreements made on or after July 1, closes a loophole to a 1959 law that allowed exemptions for labor consultants who advised employers but never interacted with employees directly. Closing that loophole leaves the law with “an incredibly vague standard,” the coalition said in the letter.

“The changes provide no benefit to employees but will make it very difficult for attorneys to maintain client confidentiality and small businesses to obtain confidential and critical legal counsel on labor relations matters,” the letter said. “The rule is designed to silence employers. It is unfair and unlawful and should be withdrawn.”

The U.S. Chamber of Commerce, which counts among the members of its board of directors Paul Klaassen, founder of Sunrise Senior Living, also called the rule “incredibly vague” and supports Byrne's resolution, H.J. Res. 87. In an April 26 letter to Byrne, the group said that the new rule also is “arbitrary, forcing employers and their attorneys and consultants to guess as to what activities must be reported. This ambiguity is particularly perilous given that there are criminal penalties attached to this reporting process. Moreover, public disclosure of the attorney-client relationship raises serious legal and ethical issues for attorneys, which will discourage attorneys from offering legal advice on labor matters.”

Byrne, in a press release, said that his resolution would protect employers from “a rule that would restrict privacy, upend the attorney-client relationship and limit employee access to information during an organizing campaign.”

Small and medium-sized businesses especially would be hurt by the rule, he said.

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