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Friday, May 28, 2010

Regulations Squelching Employer Free Speech

By Tommy Eden

Obama Plan #1 Persuasion and Advice: The Department of Labor (DOL) held on May 24, 2010 an “open forum” to discuss proposed rule changes to consultant, attorney and now employer reporting of “persuasion and advice” activities regarding unions. The changes will require Law Firms and Consulting Firms to report many so-called “advice” activities as “persuasion” under Section 203(c) of the Labor Management Reporting Disclosure Act of 1959 (LMRDA).

In addition the DOL wants to change Section 203(e) of the LMRDA to require employers to report when supervisors and managers speak about union issues to employees. It is important to note that failure to report these activities is a crime punishable by both fine and imprisonment.

The U.S. Chamber of Commerce and the National Association of Manufacturers spoke in opposition. Speaking in favor of the rule changes were several unions including the AFL-CIO, the Mine Workers of America, the Bricklayers Union and Operating Engineers. Expect the new rules sometime late fall or early 2011 (after the mid-term elections).

Obama Plan #2 Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws. The U.S. Department of Labor published a final rule in the May 20 edition of the Federal Register requiring federal contractors and subcontractors to provide notice to their employees of their rights under the National Labor Relations Act. The Rule is effective June 19, 2010.

Federal contractors and subcontractors will be required to post the prescribed employee rights notice at their workplaces. The notice lists employees' rights under the NLRA to form, join and assist a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or complaints. The rule implements provisions of Executive Order 13496, which was signed by President Barack Obama on Jan. 30, 2009. The requirement for posting this employee notice must be included in every covered federal contract and subcontract.
Contractors that violate the requirements of the regulations may be subject to sanctions, including suspension or cancellation of the contract.
For more information, visit
were you may view the 152-page Final Rule and a variety of compliance resources and download the mandated11x17 poster.

Obama Plan #3 National Mediation Board: These actions by the DOL are following the administration’s regulatory playbook who had the National Mediation Board change a 75year old voting rule for employers in DOT regulated FAA and FMCSA Companies where only a majority of those employees voting, not total members of the bargaining unit, are needed to vote in a union.

Common Sense Counsel: if you are a federal contractor of any description (bank, credit union, sell stuff to the federal government, receive federal funding, etc) falling under this Obama Administration payback initiative to Big Labor, you are highly encouraged to review the regulations and be prepared to post the notice on June 19, 2010. More to come as the rest of the Obama playbook is implemented through regulation rather than legislation.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at