The Labor-Management Reporting and Disclosure Act (LMRDA) section 203 establishes reporting and disclosure requirements for employers and persons, including labor relations consultants, who enter into any agreement or arrangement whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer. Each party must disclose information concerning such agreement or arrangement, including related payments, and the employer, additionally, must disclose certain other payments, including payments to its own employees, to persuade employees as to their bargaining rights and to obtain certain information in connection with a labor dispute.
Pursuant to regulations issued by the Department, an employer must file a Form LM-10, Employer Report, for each fiscal year in which it entered into such an agreement or arrangement, as well for each fiscal year in which it made any persuader payments, as required under section 203. Additionally, the consultant must file a Form LM-20, Agreement and Activities report, disclosing the agreement or arrangement.
The Department’s Office of Labor-Management Standards (OLMS) held a public meeting on May 24, 2010 seeking comments on several significant matters concerning employer and consultant reporting pursuant to section 203. The first matter was the so-called “advice exception” of LMRDA section 203(c), which provides, in part, that employers and consultants are not required to file a report by reason of the consultant’s giving or agreeing to give “advice” to the employer. Under current policy, as articulated in the LMRDA Interpretative Manual and in a Federal Register notice published on April 11, 2001 (66 Fed. Reg. 18864), this so-called “advice exception” has been broadly interpreted to exclude from the reporting any agreement under which a consultant engages in activities on behalf of the employer to persuade employees concerning their bargaining rights but has no direct contact with employees, even where the consultant is orchestrating a campaign to defeat a union organizing effort.
The Department views its current policy concerning the scope of the “advice exception” as over-broad, and that a narrower construction will result in reporting that more closely reflects the employer and consultant reporting intended by the LMRDA. Regulatory action is needed to provide labor-management transparency for the public, and to provide workers with information critical to their effective participation in the workplace. As a result, the Department announced in its Spring 2010 Regulatory Agenda the intention to engage in such rulemaking to narrow the scope of the “advice exception.” See: http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201004&RIN=1215-AB79.
Another exception to reporting is in section 203(e), which provides that no “regular officer, supervisor, or employee of an employer” is required to file a report covering services undertaken as a “regular officer, supervisor, or employee of an employer.” Further, the employer is not required to file a report covering expenditures made to a “regular officer, supervisor, or employee” as compensation for service as a “regular officer, supervisor, or employee.” The Department sought comments on the application of this exemption to the scope of employer reporting under sections 203(a)(2) and (a)(3), which require employers to report payments to their own employees for purposes of causing them to persuade other employees as to their bargaining rights, and to report expenditures to “interfere with, restrain, or coerce employees” in their bargaining rights and to obtain information concerning activities of employees and labor organizations in connection with a labor dispute.
Additionally, the Department sought comments on whether electronic filing should be mandated for Form LM-10 and LM-20 reports. Currently, labor organizations that file the Form LM-2 Labor Organization Annual Report are required by regulation to file electronically, and there has been good compliance with these requirements. It is reasonably expected that employers and consultants will have the information technology resources and capacity to file electronically, as well. An electronic filing option is planned for all LMRDA reports as part of an information technology enhancement.
Date and Time:
Monday, May 24, 2010, from 10:00 a.m. until 12:00 noon.
U.S. Department of Labor
Frances Perkins Building Auditorium
200 Constitution Avenue, N.W.
Washington, D.C. 20210.
All interested parties were invited to participate. The meeting provided interested parties an opportunity to provide suggestions and recommendations to OLMS concerning employer and consultant reporting pursuant to section 203. In particular, comments were solicited on the issues outlined above: the application of the “advice exemption” of LMRDA sections 203(c); the application of the “regular officer, supervisor, and employee” exemption of section 203(e); and the effect of a potential regulatory proposal requiring employers and consultants to submit reports electronically. The Department sought comment, as well, regarding the layout of the Form LM-10 and LM-20 and the level of detail and itemization currently required to be reported on these forms. Finally, the Department invited information about how the use of labor relations consultants by employers has affected labor-management relations and about how persuader activity has changed since the enactment of the LMRDA. The Department presented a PowerPoint at the beginning of the meeting, which outlined the agenda:
Stakeholder Meeting Powerpoint Presentation (PowerPoint Show format - 197 KB)
Recording of Stakeholder Meeting
Listen to Audio from Stakeholders Meeting (31:41 minutes 36.6 MB, MP3 format)
Registration for the public meeting was free. During the meeting, participants were invited to come up to a microphone and provide comments on the topic being discussed.
Last Updated: 7-21-10