From the desk of Steve Cabot: With his Congressional rubber stamp privileges revoked by the decisive loss of the House of Representatives last November, President Obama continues to use the rule-making and regulatory powers of the Executive Branch to work his will on employers.  He seems emboldened by the push-back from the American people, and is doubling down on his efforts to “transform” the country in his remaining time in office.

Previously, we described how the Democrat-dominated NLRB recently proposed rules which would significantly impact management’s ability to makes its case leading up to a union ratification election. Now it’s the Department of Labor which has stepped in to influence and intimidate employers who seek advice from outside attorneys and consultants (officially known as “persuaders”) as they prepare for these elections.

Specifically, the DOL has proposed a rule related to the reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act of 1959, which would broaden “advice” to mean any “oral or written recommendation regarding a decision or course of conduct.” The rule stipulates that both the company and its consultants must open their books to report any of the newly-covered activities – and, even more intrusively, the details of any compensation involved.

As usual, the devil is in the details, as found in the language of the rule:

“For example, persuader activities may additionally include: Training or directing supervisors and other management representatives to engage in persuader activity; establishing anti-union committees composed of employees; planning employee meetings; deciding which employees to target for persuader activity or discipline; creating employer policies and practices designed to prevent organizing; and determining the timing and sequencing of persuader tactics and strategies.”

The rule goes on to state that even “union avoidance” seminars and conferences offered by lawyers or labor consultants to employers will constitute “reportable persuader activity.”  The proposed rule was  published on June 21, 2011, in the Federal Register. Public comments can submitted until August 22, 2011.

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From the desk of Stephen Cabot: Now that President Obama has lost his Democratic majority in the House of Representatives, he will only be able to satisfy the demands of his union backers by resorting to pro-labor executive orders.

To begin, the Labor Office of the Solicitor has issued an aggressive operating plan to increase pressure on employers. The plan includes a proposal to send strong warnings to employers that the Department of Labor will increase litigation efforts to bring about the results it seeks. It also intends to use the public arena to shame employers.

To further pressure and disrupt the operation of companies, the DOL intends to engage in “enterprise-wide enforcement,” which means that it will target multiple work sites with multiple enforcers, so that officials from the wage and hour division and OSHA, for example, will arrive at workplaces in tandem. And is if that would not be sufficiently problematic, the required remediation period will be significantly truncated.

Rather than just using fines to force compliance, the DOL now intends to utilize court injunctions to bring about immediate resolutions. And if necessary, it will also seek out companies that can serve as test cases. Such test cases are meant to serve as warnings to Corporate America.

To coincide with the DOL’s new aggressive policy, the Administration has established a passive policy regarding unions, for it has cut funding for the Office of Labor-Management Standards (OLMS), so that there will be fewer officials to investigate union malfeasance, such as defalcations and kickbacks. Along with cutbacks, the DOL has rescinded an order which had required unions to report transparently about its bank accounts, especially its strike funds.

While union transparency that existed during the last Bush Administration will now be cloaked in governmental darkness, an intense beam of abuse will be focused on Corporate America, which will serve to reduce productivity and profitability.

expert labor relations advice