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Beginning June 21, 2010, federal contractors and subcontractors must notify employees of their rights to join a union and their rights under the National Labor Relations Act. Failure to comply may result in the cancellation, termination, or suspension of any contract.
Shortly after taking office in January 2009, President Obama issued Executive Order 13496 requiring government contractors and subcontractors to notify employees of their rights under the National Labor Relations Act (NLRA), which governs relations between unions and private employers. The purpose of the Order was ostensibly to "promote economy and efficiency in government procurement" by ensuring that government contracts are performed by "contractors whose work will not be interrupted by labor unrest." The Order explains that "[r]elying on contractors whose employees are informed of their rights under federal labor laws facilitates the efficient and economical completion of the Federal Government's contracts" and sets out mandated language for inclusion in contracts and subcontracts. It also directs employers to post a Notice informing employees of their rights under the NLRA. The Order delegates to the Secretary of Labor the task of preparing regulations and the Notice.
Business community reaction: Biased toward unions.
Comments from the business community indicated that the proposed language was "strongly biased towards union organizing efforts" and provided minimal information for employees "about their rights not to join or to decertify an existing union." Likewise, the proposed Notice provided information regarding employer unfair labor practices but failed to address union unfair labor practices. The U.S. Chamber of Commerce, in comments published in the Federal Register, stated that "it is our assessment that almost every substantive sentence of the notice is an incomplete or inaccurate statement of the law that is presented in a less than balanced manner." Predictably, union response to the proposed regulations and Notice language was overwhelmingly favorable.
Result: Rule revised.
On May 20, 2010, responding to widespread characterizations of the proposed rule and poster as too "pro union," the Office of Labor-Management Standards published a revised final rule1 implementing the Order's mandate that federal contractors and subcontractors notify their employees of their rights under the NLRA. The language of the revised mandated Notice lists employee rights and sets out separate activities that, when engaged in by either employers OR unions, are illegal under the NLRA. The Notice also provides the National Labor Relations Board contact information for employees who feel that their rights have been violated and explains that the NLRA "covers most private-sector employers" and lists specific exclusions. The Notice does not mention the right to a representation election.
Posting deadline is June 21, but requirements provide for electronic posting.
Beginning June 21, 2010, contracting employers, with some exceptions,2 are required to post the Notice in "conspicuous places in and about [their] plants and offices where employees covered by the NLRA engage in activities relating to the performance of the contract, including in all places where notices to employees are customarily posted both physically and electronically." The Department of Labor's website includes a link that provides for electronic posting.
Additionally, where "a significant portion" of the contracting employer's workforce is not proficient in English, the employer must provide the Notice in the language that its employees speak. The rule includes a list of sources3 for translations of the Notice.
Recommendation: Review and Comply by June 21.
Contracting employers covered by Executive Order 13496 and its implementing rule should review the requirements of the rule promptly and comply by the June 21, 2010 deadline. A copy of the complete Final Rule is available in both the May 20, 2010 Federal Register4 and through the Department of Labor website.5
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1 75 Fed. Reg. 28368 (May 20, 2010) (to be codified at 29 C.F.R. Part 471).
2 See § 471.3 of the Final Rule.
3 See § 471.2(e) of th Final Rule.
4 See http://edocket.access.gpo.gov/2010/pdf/2010-11639.pdf.
© 2012 Bracewell & Giuliani LLPAbout the Author
