Ensuring Transparency in Reporting For Employer and Labor Relations: The “Persuader Rule”

You’ve probably watched one before.

An anti-union video so painfully corny, you probably had to turn it off after a few seconds.

Anti-union videos — like this one from Target — fliers and other materials are the bread and butter of consulting firms who specialize in “union avoidance.” A nefarious industry that steps in for employers and attempts to squelch working people’s right to a union voice on the job.

Thanks to a new transparency rule released by the Department of Labor called the “persuader rule.”

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The “Persuader Rule” Defined
Some employers hire labor relations consultants to develop and implement their message in union organizing campaigns. Workers need to understand the source of the views, materials, and policies that are being used to influence their decisions so they can make the best, informed decisions about whether or not to be represented by a union or support its collective bargaining positions. That’s where the Persuader Final Rule comes in, realigning the Department’s regulations with the text of a law passed by Congress, the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA).

This Final Rule requires that employers and the consultants they hire file reports not only for direct persuader activities – consultants talking to workers – but also for indirect persuader activities – consultants scripting what managers and supervisors say to workers. Workers often don’t know that their employer hired a consultant to manage its message in union organizing campaigns, including by scripting speeches by managers, talking points, letters, and other documents. Consultants may also direct supervisors to express specific viewpoints that don’t match those supervisors’ actual views as individuals – something workers may find relevant in assessing the information they receive from their supervisors.

AFL-CIO President Richard Trumka weighed in on the new rule:

“It takes great courage for working people to come together to form a union. Working men and women deserve to know who their employer is hiring and exactly how much they are spending to discourage workers from forming a union.”

Ultimately, employees deserve to know whether third-party union busters are being employed to influence their decision about forming a union with their co-workers and there needs to be assurance that employees are given more information about the source of the campaign material that helps them make a more informed choice in exercising their rights. Thanks to the “Persuader Rule” American workers now have that transparency.

Major Win for Unions in a Supreme Court Split

Unions Win Fee Victory as Supreme Court Ties 4-4

by Adam Liptak, New York Times

A case that seemed poised to deal a major blow to public unions ended in a 4-4 tie on Tuesday at the Supreme Court, effectively delivering a big victory to the unions.

When the case was argued in January, the court’s conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violates the First Amendment.

But the death of Justice Antonin Scalia in February changed the balance of power in the case, which was brought by California public schoolteachers who chose not to join unions and objected to paying for the unions’ collective bargaining activities on their behalf.

A ruling in the teachers’ favor would have affected millions of government workers and weakened public-sector unions, which stood to lose fees from both workers who objected to the positions the unions take and those who simply chose not to join while benefiting from the unions’ efforts on their behalf.

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Under California law, public employees who choose not to join unions must pay a “fair share service fee,” also known as an “agency fee,” typically equivalent to members’ dues. The fees, the law says, are meant to pay for collective bargaining activities, including “the cost of lobbying activities.” More than 20 states have similar laws.

Government workers who are not members of unions have long been able to obtain refunds for the political activities of unions like campaign spending. The case, Friedrichs v. California Teachers Association, No. 14-915, asked whether such workers must continue to pay for any union activities, including negotiating for better wages and benefits. A majority of the justices seemed inclined to say no.

Relying on a 1977 Supreme Court precedent, the appeals court in the case upheld the requirement that the objecting teachers pay fees. Tuesday’s announcement, saying only that “the judgment is affirmed by an equally divided court,” affirmed that ruling and set no new precedent.

View the Complete Details on The California Teachers Association Fact Sheet >>

What This Means for Unions: The NLRB Judges Decision; Walmart Strikes Lawful, Must Reinstate Workers

This week Reuters broke the news that the National Labor Relations Board Judge found the 2013 Walmart strikes lawful and they must offer to reinstate 16 dismissed employees.

The Ruling
Administrative Law Judge Geoffrey Carter said in a ruling posted on the board’s website that the U.S. retailer violated labor law by “disciplining or discharging several associates because they were absent from work while on strike”.

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The ruling was hailed by labor group Making Change at Walmart as a “huge victory” for employees, although Walmart indicated it would likely appeal the decision to the labor agency’s board in a statement:

“We disagree with the Administrative Law Judge’s recommended findings and we will pursue all of our options to defend the company because we believe our actions were legal and justified,” Walmart spokesman Kory Lundberg said (@korylundberg).

Walmart had argued that it was lawful to discipline workers with unexcused absences to participate in the protests because the strikes constituted “intermittent work stoppages” not protected under labor law.

But the judge found this case differed materially from other previous work stoppages not protected by law because, among other factors, it was not a brief strike – meaning the risk for workers was higher – and because it was not scheduled close in time with other strikes.

Judge Carter ordered Walmart to offer 16 former workers their previous jobs and make them “whole for any loss of earnings and other benefits suffered as a result of the discrimination against them”.

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Union Built PC spoke to a former Walmart Employee for his feedback on his victory… and when it is a victory at all:

“As a former Walmart employee about a decade ago, I remember how hard I laughed when my training had anti-union videos that seriously reminded me of cold war era propaganda.

“‘If you are approached by a Union Representative” – shows shady person approaching you in the clothing section as if he’s about to flash you – “don’t’ talk, get a manager to have them escorted off the premise immediately.’

“And I ‘loved’ receiving my evals; “Outstanding. Excellent. Outstanding. Enjoy your .10 raise.”

“I don’t bear any ill will to my former employer, but they definitely abused their workers when it came to pay. All under the banner of ‘the customer is always right’ and under the guise of corporate profits.”

This video is shown to all associates at on-boarding – it is mandatory that everyone working for Walmart understands they are “better off” without a union! This training video – boasting the care and concern Sam Walton has for its employees – actually leaked and posted to social platforms such as YouTube (see minute marks 2:34 and 6:45).

The Impact… Is it a “huge victory”?
Administrative Law Judge Geoffrey Carter also ordered Walmart to hold a meeting in more than two dozen stores to inform workers of their rights to organize under U.S. labor law.

The impact, if any, the decision would have on the efforts by Making Change at Walmart and other groups to pressure Walmart on wages and benefits is unclear. The UFCW has tried for years to organize Walmart workers and the hurdles remain high. With a consistent history of anti-union messaging presented to their employees – and a statement already issued by Walmart spokesman Lundberg disagreeing with these with intent to file appeal defend the company on the grounds their actions were legal and justified – how can we trust the meetings ordered by Judge Geoffrey Carter will be transparent and without bias?

We suppose Union Built PC will need to source out more Walmart employees who attended one of these meetings to understand just how clearly their right to organize under U.S. Labor Law was communicated.

Your Turn

What do you think of Judge Geoffrey Carter’s decision? What impact do you think it will have on Walmart Workers? How do you feel about the inevitable Walmart appeal?

Sound off in Comments, on our Facebook Page and #UnionStrong Facebook Group, and on our Twitter or LinkedIn Pages… And don’t forget to subscribe to the Union Built PC monthly eNewsletter where we regularly cover topics related to the Labor Movement and have a regular feature called #WalmartWatch.


Additional Sources: Nathan Layne, Reuters