Continuing the pro-labor actions of the current Administration, the U.S. Department of Labor on August 3, 2009, proposed regulations to implement an Executive Order issued by President Barack Obama, within two weeks after taking office, requiring government contractors to advise employees of their rights under the National Labor Relations Act to join and form labor unions. Executive Order 13496, one of three employment-related Executive Orders issued on January 30, 2009, reversed Bush Administration policies which required government contractors to notify employees of their rights not to join unions or contribute agency fees for union expenditures unrelated to representation pursuant to Communication Workers of America v. Beck, 487 U.S. 735 (1988). For more about the Executive Orders, see President Signs Three Pro-Union Executive Orders and Executive Order: Notification of Employee Rights under Federal Labor Laws.
In the Administration's opinion, it is vital that covered contractors notify employees of their organizational rights in order to protect the government's interest in contract performance as "the attainment of industrial peace is most easily achieved and workers' productivity is enhanced when workers are well informed of their rights under Federal labor laws, including the National Labor Relations Act (Act), 29 U.S.C. 151 et seq."
The proposed regulations are not applicable to contracts involving collective bargaining agreements and contracts involving purchases below the simplified acquisition threshold (currently $100,000).
The proposal, subject to limited exceptions, mandates that:
- specific language advising covered contractors of their obligations be included in every covered contract resulting from a solicitation after the effective date of final regulations, along with a specific acknowledgment that failure to comply can result in contract cancellation, ineligibility for further government contracts and further sanctions or remedies; and
- covered contractors post the following expansive notice advising employees of their rights under the National Labor Relations Act (this notice also must be posted electronically or a link be made available electronically if the contractor customarily posts notices electronically):
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NOTICE TO EMPLOYEES
RIGHTS OF EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT
Under federal law, you have the right to:
Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
Form, join or assist a union.
Bargain collectively through a duly selected union for a contract with your employer setting your wages, benefits, hours, and other working conditions.
Discuss your terms and conditions of employment with your co-workers or a union; join other workers in raising work-related complaints with your employer, government agencies, or members of the public; and seek and receive help from a union subject to certain limitations.
Take action with one or more co-workers to improve your working conditions, including attending rallies on non-work time, and leafleting on non-work time in non-work areas.
Strike and picket, unless your union has agreed to a no-strike clause and subject to certain other limitations. In some circumstances, your employer may permanently replace strikers.
Choose not to do any of these activities, includin g joining or remaining a member of a union.
It is illegal for your employer to:
Prohibit you from soliciting for the union during non-work time or distributing union literature during non-work time, in non-work areas.
Question you about your union support or activities.
Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in other activity for mutual aid and protection, or because you choose not to engage in any such activity.
Threaten to close your workplace if workers choose a union to represent them.
Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances, for example, as where doing so might interfere with patient care.
Spy on or videotape peaceful union activities and gatherings or pretend to do so.
It is illegal for a union or for the union that represents you in bargaining with your employer to: discriminate or take other adverse action against you based on whether you have joined or support the union.
If your rights are violated:
Illegal conduct will not be permitted. The National Labor Relations Board (NLRB), an agency of the United States government, will protect your right to a free choice concerning union representation and collective bargaining and will prosecute violators of the National Labor Relations Act. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits and may order an employer or union to cease violating the law. The NLRB can only act, however, if it receives information of unlawful behavior within six months.
If you believe your rights or the rights of others have been violated, you must contact the NLRB within six months of the unlawful treatment. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency's website: www.nlrb.gov.
Click on the NLRB's page titled "About Us," which contains a link, "Locating Our Offices." You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.
This is an official Government Notice and must not be defaced by anyone.
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The proposed regulations also provide that the Office of Federal Contract Compliance Programs can initiate a compliance investigation to ensure the notice is posted at all necessary work locations and that each covered contract contains the necessary contractual language. Further, the proposal provides for an employee complaint procedure and an adjudication procedure. It appears that an investigation in response to a specific complaint can be expanded to include a review of compliance with all aspects of the regulations. Failure to fully comply can cause a government contractor to be debarred. The Federal Register notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-17577.pdf.
The DOL has invited comments from “current and potential Government contractors, subcontractors, and vendors, and current and potential employees of such entities; labor organizations; public interest groups; Federal contracting agencies; and the public.” Jackson Lewis is analyzing the proposed regulations closely and by September 2, 2009, the last day of the 30-day comment period, likely will submit a letter on behalf of the Firm and its clients recommending certain modifications to the proposed regulations. If your organization or trade association is contemplating submitting comments, our attorneys would be happy to discuss that process with you and are available to provide further information regarding this development. Any employer covered by Executive Order 13496 is encouraged to provide the Firm with its thoughts and comments.
