1. CUE Member Alert The DOL “Persuader” Rulemaking NLRB “Quickie Election” Rulemaking CUE Member Survey Presented by: Doug Seaton – Seaton Peters Revnew LLP Phillip Wilson – Labor Relations Institute, Inc.

2. 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 CUE Member Alert – DOL Rulemaking

3. 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 CUE Member Alert – DOL Rulemaking

4. 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 or managers 13.Other (must explain) CUE Member Alert – DOL Rulemaking Revised Part C Persuader activities include drafting, revising or providing…

5. Privileged Communications Must disclose agreement, fees, and persuader activity but don’t have to disclose privileged communication (See NPRM at 65) Privileged Communications Must disclose agreement, fees, and persuader activity but don’t 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? CUE Member Alert – DOL Rulemaking

6. CUE Member Alert – NLRB Rulemaking Petition filed Hearing - SOP Employee List Election* Post-Election Hearing Unit + Objections Review by NLRB 0 7919 Days 33 Objections Due 26 Proposed NLRB Election Process Petition filed Hearing Employee List Election Post-Election Hearing Review by NLRB 0 71442 Days Objections Due 49 Current NLRB Election Process * Note: Rulemaking does not mandate new targets, only makes them possible Review by NLRB

7. Consolidate all review issues into one, post-election request for review Hearing suspended to post- election if issues effect less than 20% of unit Key Changes Electronic Filing Statement of Position Form (all future litigation limited to statement of position) Eliminate 25-30 day waiting period to allow review of Regional Director decisions Provide voter phone numbers, email, shift & departments within 2 days of direction of election (and immediately to Board) CUE Member Alert – NLRB Rulemaking

8. Review all individual voter eligibility issues post- election Other Changes Pre-Election Notice required (electronic posting required where possible) Final Notice to employees electronically transmitted Request for comment on blocking charges (offer of proof, pre-election investigation, impound) Election can be held within 10 days of transmission of eligibility list (or earlier if union agrees) Use of electronic signatures to support a showing of interest CUE Member Alert – NLRB Rulemaking

9. Action Item 1: Comment Go to regulations.gov and comment NLRB Rule RIN 3142-AA08 Comments due August 22, 2011 DOL (LMSO) Rule RIN 1245-AA03 Comments due September 21, 2011 Key topics for comment: No need for the rule Substance of the rule Cost of compliance Policy problems or unintended consequences Action Item 1: Comment Go to regulations.gov and comment NLRB Rule RIN 3142-AA08 Comments due August 22, 2011 DOL (LMSO) Rule RIN 1245-AA03 Comments due September 21, 2011 Key topics for comment: No need for the rule Substance of the rule Cost of compliance Policy problems or unintended consequences CUE Member Alert – What to Do Now

10. 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 (Kline is Chair) Also Boehner, Issa, King (House) and DeMint (Senate) 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 (Kline is Chair) Also Boehner, Issa, King (House) and DeMint (Senate) CUE Member Alert – NLRB Rulemaking

11. Resources for comments and outreach CUE Comments Sent Soon http://LRIonline.com/olms-advice-rule http://LRIonline.com/nlrb-streamlined-elections http://www.nam.org/Issues/Employment-and- Labor/Employee-Free-Choice-Act-Summary.aspx http://uschamber.com/issues/labor http://www.shrm.org/Advocacy/Issues/EmploymentandLab or/Pages/default.aspx CUE Member Alert – NLRB Rulemaking

12. CUE Member Survey and Report Third annual survey, administered at CUE member conference in October 2010 Total of 216 members who responded 24 unique industries, 16 industries with greater than 5 responses NLRB petition and election data for 13 primary industries Complete report available at cueinc.com LLACCCAC

13. Level of Concern About Potential Organizing CUE Member Survey and Report

14. Active Organizing CUE Member Survey and Report

15. Top Tactics Used in Traditional Organizing Efforts CUE Member Survey and Report

16. Top 10 Issues Targeted CUE Member Survey and Report

17. Corporate Campaigns CUE Member Survey and Report

18. Corporate Campaign Tactics Used CUE Member Survey and Report

19. Neutrality Agreement Of those who experienced corporate campaign activity, 17 percent indicated some pressure to enter into neutrality agreement Four respondents said an agreement was reached CUE Member Survey and Report

20. Card Check Agreement Of those who experienced corporate campaign activity, 13 percent indicated some pressure to enter into card check agreement Five respondents said an agreement was reached CUE Member Survey and Report

21. Election Agreement Of those who experienced corporate campaign activity, 5 percent indicated some pressure to enter into an election agreement One respondent said an agreement was reached CUE Member Survey and Report

22. A Special Thanks to: CUE members who participated in the survey Ben Foster Jr., Michael Lennane and Ryan Lile for writing articles for the Labor Law/Labor Activity Update CUE Consultant Advisory Committee (CCAC) for contributing to and supporting this report Labor Relations Institute, Inc. for providing NLRB petition and election data Look forward to the next survey in the fall. Welcome suggestions to improve response rate CUE Member Survey and Report