Olms interpretative Manual

WHENANDWHERETOFILECONSULTANTREPORTS

262.001LMRDA,SECTION207(b)

Each person required to file a report under section 201(b), 202, 203(a), or the secondsentence of 203(b) shall file such report within ninety days after the end of each of its fiscalyears; except that where such person is subject to section 201(b), 202, 203(a), or the secondsentenceof 203(b)as thecase maybe, foronly aportion ofsuch fiscalyear (because thedate of

enactment of this Act occurs during such person’s fiscal year or such person becomes subject tothis Act during its fiscal year) such person may consider that portion as the entire fiscal year inmakingsuch report.

262.002See29CFR406.1(b),406.4,406.7,402.2,406.3,406.1(a).

See also Instructions for LM-20, LM-21.

262.005TIMEFORFILINGREPORTS

Labor relations consultants, and other persons, who enter into an agreement or arrangementof the kind described by section 406.2 of the Regulations must file a report within 30 days aftermaking such agreement or arrangement.Thus, the date of submission of the report is determinedby the date of the agreement or the arrangement, rather than the date on which certain activitieswereperformed.

PERSUASIONBYCONSULTANT

263.001LMRDA,SECTION203(b)(1)

. . . to persuade employees to exercise or not to exercise or persuade employees as to themanner of exercising, the right to organize and bargain collectively through representatives oftheir own choosing; or . . .

263.005PURPOSESOFARRANGEMENT

Thepurposeswhichwouldmakeanarrangementsubjecttothereportingrequirementsofsection 203(a)(4) and 203(b)(1) need not be unfair labor practices or otherwise in violation oflaw.These suggestions speak of activities to “persuade” employees in the exercise of theircollective bargaining rights, in significant contrast with section 203(a)(3) which requiresreporting by employers of expenditures where the object is “to interfere with, restrain, or coerceemployees” in the exercise of these rights.The legislative history supports this conclusion.Theprovisioncorrespondingtosection203(a)(4)intheHouseBillas reported(section203(a)(4)of

H.R. 6342) would have required reporting only in the case of an agreement to provide anemployer with the services of a person or firm engaged in the business of “interfering with,restraining, or coercing employees in the exercise of rights guaranteed by the LMRDA, theNational Labor Relations Act, or the Railway Labor Act.This provision was replaced by thepresentsection203(a)(4)withitstestofpersuasion.

(TechnicalRevisions:Dec.2016)

263.100SPEECHBYCONSULTANT

When a labor relations consultant addresses the employees of an employer and expressesto the employees the employer’s views, argument, or opinion under the free speech provision(section 8(c) of the NLRA, as amended), such an activity constitutes persuasion within themeaning ofthe Act.

Accordingly, the labor relations consultant should file a report in accordance with therequirementsofsection203(b)oftheAct.As indicatedinsection406.2oftheRegulationon

labor relations consultants reports, the report must be filed within 30 days after the agreement orarrangementis made.

263.102SPEECHINSPANISH

A consultant prepared a speech to be given by an employer in connection with a unionorganization drive in the employer’s plant.Since most of the employees to whom the speechwas to be delivered did not understand English well, the consultant translated the speech intoSpanish and delivered it himself.The object of the speech was to persuade the employeesconcerningtheir organizingandbargainingrights.

The delivery by a consultant of a speech in Spanish is no different than the delivery ofsuch a speech in English (which has been held to be outside of the section 203(c) “advice”exemption)andthereforeconstitutesareportableactivitybytheconsultantundersection203(b).

However, a truly “neutral” translation into Spanish of a “persuasive” speech delivered bythe employerin English is not a reportable activity.In this connection, alleged translation mightbe reportable where there is substantial evidence that the translation was not "neutral," e.g.,wherethetranslatorsignificantlyaddedtothepersuasiveimpactoftheemployer'sspeech.

263.200JOBAPPLICANTSCONSIDERED"EMPLOYEES"

Attorney Xwas employed by Employer Yto inform prospective employees being givenpre-employment interviews of the employer's policy of maintaining an open shop. Attorney X'stalk to these job applicants tended to persuade them concerning the manner of exercising theircollectivebargaining rights.

It is the Department's view that when prospective employees or job applicants areexposedtothistypeofpersuasion,areportisrequiredfromtheemployerpursuanttosection203(a)(4) and from the attorney pursuant to section 203(b)(1), even though the section 3(f)definition of "employees" does not specifically include applicants as employees, for thefollowingreasons:

1. 
   The court decisions under the LMRA have held that job applicants are "employees" undercertain provisions of that Act, holding this conclusion to be necessary to carry out thepolicy of that Act. Similarly, the policy of the LMRDA requires such a conclusion inrelation to the reporting requirements of section 203(a)(4) and 203(b)(1). A restrictivereading of section 3(f) that eliminated reporting of this type of activity would frustrate thepolicyoftheActandmightgivetheemployeranunwarrantedadvantageifthepersuasive activities of the consultant were not identified as employer-inspired. ThelegislativehistoryoftheLMRDAalsosupportsthisview.
   

2. 
   Since the Act does not limit reports to situations where a consultant speaks directly toemployees, but reporting depends rather on whether the activity in question has as anobject to persuade employees, it can be said that the consultant's persuasive activitiesdirected at potential employees had as its object the persuasion of an (subsequently hired)employee.