Tie Vote on Union Dues Shows Shift in Balance on Supreme Court

The Farm Equipment Manufacturers Association is among 600 organizations supporting a suit against the Department of Labor to dispute the final draft of the so-called persuader rule.

The rule requires employers to disclose any talks with outside consultants about how to craft their message to workers during union-organizing. It broadens an earlier rule that required disclosure only when these consultants talked directly to workers.

The Association and its counterparts argue that by broadening the disclosure rule, the Labor Department is violating employers’ First Amendment rights as well as Fifth Amendment due-process rights.

“This complicated, vague rule fails to give manufacturers fair notice on what actions are considered forbidden and what forms of communication and outreach are considered reportable,” said Linda Kelly, senior vice president and general counsel at the National Association of Manufacturers, which is part of the suit. “Criminal liability will now be thrust on manufacturers based on a rule that is confusing and open-ended. Rather than risk criminal penalty from a lack of reporting, employers will simply stop communicating with their employees on important issues.”

Critics of the rule also argue that it creates a catch-22 for small businesses. Beth Milito, who is senior legal counsel for the Small Business Legal Center at the National Federation of Independent Business, said the rule would lead to breaches of confidentiality by requiring attorneys labeled as persuaders to disclose other clients.

“They have to realize this would make it virtually impossible for most lawyers to offer advice to business owners,” Milito said.

The American Bar Association was among groups that filed opposition to a draft of the proposal. S