By: Tommy Eden, Attorney
On August 3, 2009, the Department of Labor published a notice of proposed rulemaking (NPRM) seeking comments on proposed 29 CFR Part 471 which time to submit comments has passed. We expect that the final regulations will issue in the next 30 days. See proposed regulations at: http://edocket.access.gpo.gov/2009/pdf/E9-17577.pdf.
Proposed Part 471 implements Executive Order (E.O.) 13496, signed by President Barack Obama on January 30, 2009 (74 FR 6107, February 4, 2009) as part of his Big Labor payback. See: http://edocket.access.gpo.gov/2009/pdf/E9-2485.pdf.
Appendix A to Subpart A of Part 471— Text of Employee Notice Clause
NOTICE TO EMPLOYEES RIGHTS OF EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT
‘"It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection." 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. 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, including 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 Web site: http://www.nlrb.gov/.
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. ‘‘2. The contractor will comply with all provisions of the Secretary’s Notice, and related rules, regulations, and orders of the Secretary of Labor. ‘‘3. In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order 13496 of January 30, 2009. Such other sanctions or remedies may be imposed as are provided in Executive Order 13496 of January 30, 2009, or by rule, regulation, or order of the Secretary of Labor, or as are otherwise provided by law. ‘‘4. The contractor will include the provisions of paragraphs (1) through (4) herein in every subcontract or purchase order entered into in connection with this contract (unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order 13496 of January 30, 2009, so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any such subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non-compliance: Provided, however, if the contractor becomes involved in litigation with a subcontractor, or is threatened with such involvement, as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.’’
Appendix B to Subpart A of Part 471— Electronic Link Language
RIGHTS OF EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT
‘‘It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection.’’
The proposed regulation implements E.O. 13496 by prescribing the form and content of the notice, which incorporates employee rights under the National Labor Relations Act (NLRA). The proposed regulation also includes enforcement procedures and provisions regarding sanctions, penalties, and remedies that may be imposed for violations. Federal Government contracting departments and agencies are obliged to include the notice requirements in every Government contract, except collective bargaining agreements entered into by a Federal agency, contracts for purchases under the Simplified Acquisition Threshold, and in those cases where the Secretary exempts a contracting department or agency pursuant to the Executive Order. The proposed regulation requires government contractors to include the contract clause in all subcontracts.
The provisions of the proposed contract clause include the text of the required notice, enforcement procedures, and an explanation of the sanctions, penalties, and remedies that may be imposed if the contractor or subcontractor fails to comply with its obligations.
The notice required by E.O. 13496 and the proposed regulation outlines the fundamental rights regarding union activity and collective bargaining that employees have under the NLRA; provides examples of conduct that is illegal under the NLRA; and provides contact information in the event that an employee suspects that the law has been violated.
Enforcement responsibilities for proposed Part 471 are shared by two agencies. The Office of Federal Contract Compliance Programs (OFCCP) is responsible for investigation and conciliation, and that agency will refer violations to the Office of Labor-Management Standards (OLMS) for enforcement. The sanctions, penalties, and remedies under proposed Part 471 include the debarring of Federal contractors and subcontractors from future Federal contracts and subcontracts.
E.O. 13496 also revoked E.O. 13201, which required Federal contractors and subcontractors to post a notice (the “Beck poster”) informing their employees of rights concerning payment of union dues or fees. See E.O. 13496, Section 13. The Department published a final rule on March 30, 2009, rescinding the regulations at 29 CFR Part 470, which had implemented the Beck poster provisions (74 FR 14045). See: http://edocket.access.gpo.gov/2009/pdf/E9-6926.pdf.
Taken right off the DOL website: E.O. 13496 advances the Administration's goal of promoting economy and efficiency of Federal government procurement by ensuring that workers employed in the private sector as a result of Federal government contracts are informed of their rights to engage in union activity and collective bargaining. Knowledge of such basic statutory rights promotes stable labor-management relations, thus reducing costs to the Federal government.
Common Sense Counsel: if you are a federal contractor falling under this Obama Administration payback initiative to Big Labor, you are highly encouraged to review the regulations and be prepared to implement them on fairly short notice. Once the final regulations are issued, we will provide you an additional update and recommended guidance.
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork.com