ESA Federal Register Notice

Interpretation of the ``Advice'' Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act; Notice [04/11/2001]

Volume 66, Number 70, Page 18863-18864

[[Page 18863]]

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Part III





Department of Labor





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Office of Labor Management Standards



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Interpretation of the ``Advice'' Exemption in Section 203(c) of the 
Labor-Management Reporting and Disclosure Act; Notice


[[Page 18864]]


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DEPARTMENT OF LABOR

Office of Labor-Management Standards

 
Interpretation of the ``Advice'' Exemption in Section 203(c) of 
the Labor-Management Reporting and Disclosure Act

AGENCY: Office of Labor-Management Standards, Employment Standards 
Administration, Labor.

ACTION: Notice of rescission of revised statutory interpretation.

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SUMMARY: The Department is rescinding the revision of an interpretation 
of the ``advice'' exemption in section 203(c) of the Labor-Management 
Reporting and Disclosure Act of 1959, as amended (LMRDA) published in 
the Federal Register on January 11, 2001. This action is being taken 
because, after review of the revised interpretation, the Department has 
concluded that the prior longstanding interpretation is the more 
appropriate one. Accordingly, as a matter of enforcement policy, the 
Department will not apply the revised interpretation.

EFFECTIVE DATE: The Notice published on January 11, 2001 at 66 FR 2782 
is rescinded as of April 11, 2001.

FOR FURTHER INFORMATION CONTACT: Kay H. Oshel, Chief, Division of 
Interpretations and Standards, Office of Labor-Management Standards, 
Employment Standards Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5605, Washington, DC 20210. (202) 693-
1233 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: The Secretary of Labor administers the 
Labor-Management Reporting and Disclosure Act of 1959, as amended 
(LMRDA), Public Law 86-257, 73 Stat. 519-546, codified at 29 U.S.C. 
401-531. Sections 203(a) and (b) of the LMRDA, 29 U.S.C. Sec. 433(a) 
and (b), require employers and other persons to file certain reports 
with the Department of Labor in connection with persuading employees 
about the right to organize and bargain collectively. LMRDA section 
203(c) creates an exemption from these reporting requirements if the 
consultant's activity is limited to ``giving or agreeing to give 
advice'' to an employer.
    Since 1962, the Department has construed ``advice'' to include not 
only a consultant's review of persuasive material prepared by the 
employer and comments thereon, but also the consultant's preparation of 
material for the employer, so long as the employer is free to accept or 
reject the material. On January 11, 2001, the Department published a 
notice in the Federal Register (66 FR 2782) revising its interpretation 
of section 203(c) of the LMRDA. Under the revised interpretation, 
section 203(c) would exempt employers and labor relations consultants 
from the reporting otherwise required by sections 203(a) and (b) if the 
consultant reviews and revises persuasive material prepared by the 
employer but not if the consultant prepares or provides the material.
    On February 9, the Department published a notice in the Federal 
Register (66 FR 9724) delaying the implementation date of the revised 
interpretation for 60 days, from February 10, 2001 to April 11, 2001, 
in order to enable Department officials to review and consider the 
matter. That notice was issued in accordance with the memorandum of 
January 20, 2001 from the Assistant to the President and Chief of 
Staff, entitled ``Regulatory Review Plan,'' published in the Federal 
Register on January 24, 2001 (66 FR 7702).
    The notice of January 11, 2001, set forth two reasons for revising 
the longstanding interpretation of LMRDA section 203(c): (1) ``the 
textual basis for the prior interpretation is dubious'' in that it ``is 
in tension with the ordinary meaning of the term `advice' ''; and (2) 
the prior interpretation ``has harmed the effectiveness of the LMRDA in 
requiring disclosure of persuader activities.''
    Upon review and reconsideration of the revised interpretation, the 
Department has determined that the revision is not warranted or 
justified. The evidence and argument presented in the notice of January 
11, 2001 is insufficient to support the conclusion that the 
interpretation of the term ``advice'' taken since 1962 is inconsistent 
with the ordinary understanding of that term or that it is inconsistent 
with the intent of the LMRDA reporting requirements. See also 
International Union, UAW v. Dole, 869 F.2d 616, 618-620 (D.C. Cir. 
1989) (interpretation taken since 1962 is a permissible interpretation 
of the statute). Moreover, the revision of the Department's 
longstanding interpretation was made without the benefit of input from 
all the parties most directly affected by the change in the reporting 
requirements.
    Consequently, the revised interpretation of LMRDA section 203(c) 
issued on January 11, 2001 is rescinded and the former interpretation 
is reinstated.

    Signed at Washington, DC this 6th day of April, 2001.
Joe N. Kennedy,
Acting Assistant Secretary of Labor for Employment Standards.
[FR Doc. 01-9036 Filed 4-10-01; 8:45 am]
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