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NAM, business groups sue Labor Department over Union “Persuader” Rule

The Hill reports that in a Wednesday press release, the NAM announced it has filed a lawsuit with the US District Court for the Eastern District of Arkansas against the Labor Department “over the agency’s union ‘persuader rule.’”

A “coalition of business groups,” including the Associated Builders and Contractors, the Arkansas State Chamber of Commerce, Associated Industries of Arkansas, the Arkansas Hospitality Association and the Coalition for a Democratic Workplace joined the NAM in challenging the “long-awaited controversial” rule which “forces employers to report any ‘actions, conduct or communications’ undertaken to ‘affect an employee’s decisions regarding his or her representation or collective bargaining rights.’”

According to The Hill, “The NAM claims it violates manufacturers’ First Amendment rights and the Fifth Amendment’s due process clause by restricting manufacturers’ ability to educate and inform their workforce.”

NAM Vice President and General Counsel Linda Kelly released a statement saying, “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.” Kelly added, “Criminal liability will now be thrust on manufacturers based on a rule that is confusing and open ended.”

The business groups argue the new rule violates employers’ due process right and free speech, Reuters reports. The article also highlights Kelly’s statement on the rule’s impact, quoting her as saying, “Rather than risk criminal penalty from a lack of reporting, employers will simply stop communicating with their employees on important issues.”

Meanwhile, Bloomberg Government reports the NAM and business groups seek “injunctive and declaratory relief” with their lawsuit, alleging the Labor Department’s Office of Labor-Management Standards’ final rule, among other things, “violates the Administrative Procedure Act by exceeding the agency’s statutory authority” and by being “arbitrary and capricious”; violates Section 8(c) of the National Labor Relations Act; and “infringes attorney-client confidentiality.”

Politico Pro  also highlights the lawsuit, which alleges the “rule infringes on the right of employers (including the plaintiff associations and many more employers represented by them) to communicate with and receive advice from expert advisors on labor relations issues, including trade associations, attorneys, and other third party consultants.”

The lawsuit also states “The challenged rule equally infringes on the right of those who seek to give labor relations advice to employers.” Should NAM members want to read the full article for free, they may contact National Association of Manufacturers Account Manager Molly Fluet at

The Washington Examiner (3/31, Higgins) states that while the Obama administration stated the rule was needed for transparency, “Business groups have denounced it, arguing it was little more than an attempt to aid union organizing efforts by making it harder for businesses to get legal advice.”

Associated Industries of Missouri is the sole official designated partner of the National Association of Manufacturers in Missouri.

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