GAG RULE The DOL Attack on Employer Free Speech

No Report Required Is the persuasive communication covered by the advice exception? Report Required Is the indirect communication intended to persuade? Agreement covers direct communication to non- supervisory employees? Agreement to Provide Labor Relations Services? NoYes No Yes Labor Management Reporting and Disclosure Act of 1959

Agreement and Activities Report – Form LM-20 Due 30 days after the Agreement to provide persuader services Agreement and Activities Report – Form LM-20 Due 30 days after the Agreement to provide persuader services Receipts and Disbursements Report – Form LM-21 Due 90 days from the end of your fiscal year Receipts and Disbursements Report – Form LM-21 Due 90 days from the end of your fiscal year Employer Report - Form LM- 10 Due 90 days from the end of your fiscal year Employer Report - Form LM- 10 Due 90 days from the end of your fiscal year Labor Management Reporting and Disclosure Act of 1959

1960 Interpretation Speeches, written materials =persuader activity 1960 Interpretation Speeches, written materials =persuader activity 1962 Re-Interpretation Speeches, written materials =advice activity 1962 Re-Interpretation Speeches, written materials =advice activity 2001 Re-interpretation Speeches, written materials =persuader activity unless that activity is mere review and revision 2001 Re-interpretation Speeches, written materials =persuader activity unless that activity is mere review and revision 2011 Re-interpretation? Advice exemption – Section 203(c) of LMRDA Applies to consultants and attorneys Exempts advice from disclosure rules

June 21, 2011 Notice of Proposed Rulemaking: The New Rules (proposed) June 21, 2011 Notice of Proposed Rulemaking: The New Rules (proposed) Persuader activities include drafting, revising or providing: 1.Materials for presentation, dissemination, distribution to employees 2.Speeches 3.Audiovisual, multimedia presentation 4.Website content 5.Planning, conducting one-on-one or group meetings 6.Employee attitude surveys concerning union awareness, sympathy or proneness 7.Training supervisors to conduct meetings 8.Coordination or directing activities of supervisors 9.Establishing or facilitating employee committees 10.Developing personnel policies 11.Deciding which employees to target for persuader activity or disciplinary action 12.Conducting a seminar for supervisors 13.Other (must explain) Proposed Rulemaking Not a final rule 60 days to comment In effect after comment period Comment by web (regulations.gov), hand- delivery or by mail Reference 1215-AB79 and 1245-AA03 (29 C.F.R. Parts 405 and 406) Proposed Rulemaking Not a final rule 60 days to comment In effect after comment period Comment by web (regulations.gov), hand- delivery or by mail Reference 1215-AB79 and 1245-AA03 (29 C.F.R. Parts 405 and 406)

Seminars and Conferences If persuader materials are offered then DOL says reporting is triggered (See NPRM at 63-64) Seminars and Conferences If persuader materials are offered then DOL says reporting is triggered (See NPRM at 63-64) Employee Surveys Developing or conducting surveys concerning union awareness can trigger reporting (See NPRM at 69) Employee Surveys Developing or conducting surveys concerning union awareness can trigger reporting (See NPRM at 69) Employee Committees Establishing or facilitating employee committee can trigger the requirement – almost no explanation (See NPRM 142, 155) Employee Committees Establishing or facilitating employee committee can trigger the requirement – almost no explanation (See NPRM 142, 155) Deciding Who to Target? Apparent attempt to go after straw polling and discriminatory terminations – back door attempt to criminalize unfair labor practices? Deciding Who to Target? Apparent attempt to go after straw polling and discriminatory terminations – back door attempt to criminalize unfair labor practices? Surprising Changes

Privileged Communications Must disclose agreement, fees, and persuader activity but dont have to disclose privileged communication (See NPRM at 65) Privileged Communications Must disclose agreement, fees, and persuader activity but dont have to disclose privileged communication (See NPRM at 65) Mixed Activities Persuader activity trumps advice; must disclose even is some activity would be exempt if done alone (See NPRM at 64-65) Mixed Activities Persuader activity trumps advice; must disclose even is some activity would be exempt if done alone (See NPRM at 64-65) Fees Based on the agreement or arrangement and NPRM says must report fees for BOTH advice and persuasion in any agreement that includes persuasion (See NPRM at 65, n. 16) Fees Based on the agreement or arrangement and NPRM says must report fees for BOTH advice and persuasion in any agreement that includes persuasion (See NPRM at 65, n. 16) Check Your Circuit Some Circuits (4 th, 5 th, 6 th and 7 th ) require firms to report advice activities for clients who did not even receive persuader activity during the reporting year. Check Your Circuit Some Circuits (4 th, 5 th, 6 th and 7 th ) require firms to report advice activities for clients who did not even receive persuader activity during the reporting year. Common Questions Attorney-client privilege? Mixed persuader-advice situations? What fees must be reported?

Action Item 1: Comment Go to regulations.gov and comment (link on our site) Key topics for comment: No need for the rule… the citedauthority is one-sided and speculative Far over-reaching (employee surveys, employee committees, termination decisions) Unfair – exact same activity is persuasion in some cases, not others Burdensome on small (and large) businesses – virtually every consultant and attorney conversation potentially subject to disclosure Demonizes and discourages legitimate and protected employer speech Action Item 1: Comment Go to regulations.gov and comment (link on our site) Key topics for comment: No need for the rule… the citedauthority is one-sided and speculative Far over-reaching (employee surveys, employee committees, termination decisions) Unfair – exact same activity is persuasion in some cases, not others Burdensome on small (and large) businesses – virtually every consultant and attorney conversation potentially subject to disclosure Demonizes and discourages legitimate and protected employer speech

Action Item 2: Congress Newly elected Congress = Republican majority House has appropriations power Can de-fund regulatory activities (i.e. ergonomics) NLRB already under pressure due to Boeing case Key people to contact: Your congressperson Members of the House Appropriations and Education and the Workforce Subcommittees Action Item 2: Congress Newly elected Congress = Republican majority House has appropriations power Can de-fund regulatory activities (i.e. ergonomics) NLRB already under pressure due to Boeing case Key people to contact: Your congressperson Members of the House Appropriations and Education and the Workforce Subcommittees

Action Item 3: Proactive ER Just the beginning (short elections, micro-units, temps, supervisors, witnesses...) Key leverage point = direct relationship Left of boom ER practices Action Item 3: Proactive ER Just the beginning (short elections, micro-units, temps, supervisors, witnesses...) Key leverage point = direct relationship Left of boom ER practices BOOM Right of BOOM Left of BOOM Situation Assessment Counter-Campaign Strategy Alert Legal, Consulting, Jump Team Vulnerability Assessment Positive ER, Engagement Hiring/Onboarding Tripwire Team

The Argument from Intimidation is a confession of intellectual impotence… How does one resist that Argument? There is only one weapon against it: moral certainty. When one enters any intellectual battle, big or small, public or private, one cannot seek, desire or expect the enemy's sanction. Truth or falsehood must be one's sole concern and sole criterion of judgmentnot anyone's approval or disapproval; and, above all, not the approval of those whose standards are the opposite of one's own. Ayn Rand, The Virtue of Selfishness 1964 Never Be Intimidated from Doing Right