Monday, March 28, 2016
“Pay no attention to that man behind the curtain. The great Oz has spoken,” the actor Frank Morgan thundered in the famous 1939 movie. Once Toto pulled back the curtain, and we saw the white-haired man frantically pulling levers and turning cranks, we knew who was really talking. Viewers can argue about whether the Wizard of Oz was an enterprising charmer with brains, heart and courage to spare, or a cynical con artist. But you can’t make an informed decision if you can’t see behind the curtain.
When the message is heard but the speaker is hidden, the result can be confusion. That’s what often happens in today’s workplaces when workers try to organize. Workers may perceive that trusted managers and supervisors are speaking their own minds, when in fact these co-workers are reciting a message crafted by professional consultants called “persuaders.”
New rules from the Labor Department will now provide transparency to workers and the public. We have refreshed an outdated statutory interpretation, putting in place a simple, common-sense reporting requirement for when employers pay for persuader services during union organizing efforts. The rule in no way limits what employers or consultants can say. It just means that workers will know who has crafted the message.
Basic fairness dictates that workers know who is responsible for the information that is being shared with them during union organizing efforts. If someone was trying to persuade me about something as personal and direct as my job and my workplace, I’d want to know all of the sources for their messages. Only then would I feel I could judge for myself the content of the messages.
In many cases, unions already have to disclose information about how they spend their money, including during organizing. But on the employer side, workers have had little if any information, as the prior interpretation of the statute made it easy for paid consultants to influence and persuade workers without their involvement ever becoming known.
Persuaders often have employers tell their employees that a union is an outsider or a “third party.” Sometimes this message is taken even further. Workers are told that they and the employer are a family and the family will be harmed by the intrusion of the third-party union. But many employees might give this “intruding union” argument less weight if they knew that the employer itself brought in an outside third party. In addition, workers who are told that there is no money for raises that the union might push for may be interested in knowing how much money their employer is spending on outside consultants.
The reporting requirements put into place by the revised rules are minimal. Employers and consultants will file a brief form with checkboxes when they have entered into persuader agreements. Consultants will also file a form when they present union avoidance seminars for employers. That’s it. Plus, the form already exists. Employers and consultants already file it in some cases, when persuaders themselves directly communicate with the employees.
The new interpretation simply applies the statute to circumstances when it’s most needed: when the consultant is hidden. The rule only applies to agreements entered into after the rule becomes effective. This is a small change that will result in a meaningful increase in the amount of information available to workers and the public.
For all the rhetoric that has flown forth during the years the department has worked on this regulation, let’s face it: many employers engage consultants when there is a union organizing effort. If an outside expert drafts communications for you to share with your employees, and if you are willing to pay the outsider to prepare what you tell your employees, then all this rule tells you to do is to draw back the curtain and reveal who scripted the message and managed its delivery.
Michael Hayes is the director of the department’s Office of Labor-Management Standards.