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Office of Labor-Management Standards Initiative. Currently, the Office of Labor-Management Standards (OLMS) may investigate potential employer malfeasance with regard to union funds in the absence of any complaint by a worker or union but may not do the same with regard to potential union malfeasance. If OLMS has evidence that a union may be violating the law based on information available to the agency (such as annual financial disclosure reports, information developed during an audit of a union’s books and records, or information obtained from other government agencies) it should be permitted to open an investigation. It should have the same enforcement tools available for both employers and unions.

• Revise investigation standards. The Office of Labor-Management Standards should revise its investigation standards to authorize investigations without receiving a formal complaint.

Persuader Rule. During the Obama Administration, DOL created significant regulatory burdens for employers with respect to the advice that employers receive about union activity. As a general matter, employers who hire lawyers or other consultants to advise employees about union issues must file disclosure forms with the department, as must the lawyers and consultants themselves. Prior to the Obama Administration, advice provided solely to the employer required no disclosure. The Obama Administration attempted to eliminate this “advice exemption” with a directive known as the “persuader rule,” which was successfully challenged in court. In 2018, the Trump Administration formally rescinded the persuader rule.

• DOL should rescind the persuader rule once again should the Biden Administration revive it.

Unionizing the Workplace: Card Check vs. Secret Ballot. Under the NLRA, instead of having a secret ballot election about the decision to unionize a workplace, a union may instead collect signed pro-union cards from a majority of the employees it wishes to represent and then ask the employer and National Labor Relations Board for voluntary union recognition. That request gives the employer the option to hold a secret-ballot election or to recognize the union without any such election. This “card check” procedure is likely to induce employees to provide their signed cards in ways that do not accurately reflect their true preferences—ranging from a desire not to offend the signature requestor to a wish to avoid intimidation and coercion to signing based on false information provided by union organizers. In short, the card check procedure sidesteps many aspects of democratic decision-making that free and fair elections conducted by secret ballot are supposed to accomplish. Notably, the general counsel of the National Labor Relations Board has recently proposed an esoteric legal theory that card-check