single reporting obligation152/).153/ In fact, the Department of Labor lists only 215 consultant registrants from the Act's passage through March 31, 1978154/ or an average of fewer than one new registrant a month. Since Section 203 (b) requires that every LM-20 Report be followed at the end of the fiscal year by an LM-21, the discrepancy between these figures may also mean that some consultants filed only the first report. A comparison of the number of LM-20 Reports and Employer Reports (LM-10) which have been filed demonstrates another aspect of Title II's failure. Sections 203 (a) (4) and 203 (b) require separate filings by both the employer and the consultant for each agreement or arrangement that the consultant will undertake persuader or certain information-gathering activity for the employer. The number of LM-10 Reports in a given year, therefore, should at least match the number of LM-20 Reports, since LM-10 Reports are required also for numerous other types of agreements and 155/ payments. According to Department figures, however, in seven of the twenty years the number of LM-20 reports actually exceeded the number of LM-10 reports, and in most other years the figures were 156/ close, strongly indicating employer non-compliance with at least some parts of Section 203. The Department lists approximately 1,550 different employers as having registered under the Act during the period from its passage through March 31, 1978, apparently keeps no records regarding compliance with the statutory mutual filing requirement. 157/ but Perhaps the most discouraging statistic of non-compliance is the vast difference between the number of Employer Reports and the number of unfair labor practice charges and findings against employers by the National Labor Relations Board. Section 203 (a) (3) requires employer reporting of every expenditure where an object is "to interfere with, restrain, or coerce employees in the exercise of the right to organize and bargain collectively through representatives of their own choosing," language which Section 203 (g) explicitly states is drawn from Section 8 (a) of the Labor-Management 158/ Relations Act. From 1959 through mid-1979 2,646 LM-10 reports were filed by employers, only some of which, of course, would have been filed pursuant to the first clause of Section 203 (a) (3). But during the same period the annual number of unfair labor practice charges against employers had increased from 8,266 in 1959 to 29,026 in FY 1979.159/ Even granting that the intent element Non-compliance is probably attributable to several factors: willfulness and ignorance by consultants and employers, the scant enforcement and publicity by the Department of Labor, and general uncertainty as to the precise parameters of the statutory requireEmpirical analysis of the reasons why would-be regulatees 162/ One recent survey ments. do not comply is virtually nonexistent. of management attorneys serving on committees of the Labor Relations Law Section of the American Bar Association - a sector of consultants one would presume to be especially knowledgeable about the law, and especially sensitive to the personal consequences revealed the law's ineffectiveness as currently of non-compliance enforced. - Whereas 64.6% of the respondents acknowledged having performed reportable activity during the previous five years, only 1.8% had in fact filed reports with the Department of Labor. of the non-reporters, 19.4% knew of their obligation, 17.5% were uncertain about their duty, and the remainder were ignorant of 163/ the requirements. Moreover, 59% of the respondents believed that fewer than 10% of all management attorneys complied fully with Section 203.164/ When compared to non-attorney consultants who are unversed in the law and have no bar association wielding concurrent authority over them, the dimensions of the problem came into clearer focus. Even so, the current law is far from toothless and there is much the Department ought to do to revitalize it. Section 210 remains available as a potent weapon to compel compliance in particular cases and to serve notice generally that the Department is serious about Section 203. Unions have a role to play here as well: they can request civil actions if they are aware of unreported employer or consultant activity (although they may not be, precisely because it is unreported), and are probably entitled to judicial 165/ review of a Department decision not to seek compliance. Along with this enforcement authority, Section 601 confers broad investigatory powers on the Department to be exercised when the Department "believes it necessary in order to determine whether any person has violated or is about to violate" Title II. This authority includes the power to subpoena records and to con 166/ duct searches. 167/ Moreover, the Department need not have probable cause in order to initiate an investigation and is not bound by specific time limitations.168/ Thus, the way is clear for the Department to look more closely into the affairs of particular consultants or employers. Up to now, however, the Department appears to have applied this authority aggressively only against The Department also enjoys broad rulemaking authority to prescribe reporting forms which will satisfy the purposes of the reporting requirements.170/ An examination of the LM-20 Reports filed indicates that even those consultants who do report provide no detail about the work they actually perform for employers.171/ Labor consultants are also subject to criminal penalties under the Act. Section 209 mandates fines of up to $10,000, and imprisonment up to one year, for "willfully" violating the Act, "knowingly" making false statements, or misrepresentations of a material fact, "knowingly" failing to disclose a material fact, or "willfully" violating the Act's record-keeping requirements. Culpability under Section 209 has been interpreted to include "reckless disregard" of whether an action is lawful or not.173/ More 172/ over, any labor consultant (or other person) who is convicted of violating Title II, or of bribery, extortion, or certain other criminal offenses is prohibited under Section 504 from serving as a labor consultant for five years following conviction or But one can now only speculate release from imprisonment. 174/ about the potential deterrent consequences of a serious effort by the Departments of Justice and Labor to prosecute labor consultants for "willful" violations. The Department of Labor can also undertake a program of education to apprise employers, consultants, and employer attorneys of the Act's requirements. This, too, could serve to inhibit non-compliance and employer and consultant abuse. Such a program should include revision of the Department's sixteen-year old explanatory pamphlet, "Employer and Consultant Reporting," which precedes all of the case law which has applied and interpreted Title II. In the wake of renewed concern by organized labor over employer and consultant non-reporting, the Department's office of Labor-Management Standards Enforcement ordered its field offices in November 1979 to give the investigation of complaints arising under Section 203 priority equivalent to that accorded investigation of embezzlement complaints, with "primary consideration" to be given to complaints involving large or national consultant organizations or employers. According to the Department, Section 203 investigations increased five-fold during the preceding year, from 30 to 150. New procedures include national office review of The procedures are 175/ 176/ field office decisions not to investigate. |