Federal Contractors: Posting Requirement Stands

A challenge opposing a pro-union workplace posting lost in U.S. District Court.

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President Obama issued Executive Order 13496 in 2009, which prompted the U.S. Department of Labor to release a new workplace posting for Federal contractors, Employee Rights Under the National Labor Relations Act. The posting reminds employees of contractors with contracts from the Federal government valued at $100,000 or more that they have the right to organize a union and use collective bargaining.

Two groups representing Federal contractors took the posting and its rule to court and lost.

The National Association of Manufacturers and Virginia Manufacturers Association argued that the regulations compelled speech in violation of the First Amendment and that the President and Department of Labor lacked the authority to issue the rule (Civil No. 1:13-cv-01998).

On the first charge, the trade group representatives argued that employers would be forced to communicate a pro-union message to workers, even if participating companies held other opinions about unions. The Court, however, determined that:

“…the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting.”

Government contractors and subcontractors involved in Federal contracts valued at $100,000 or more are required to post the notice:

“…in conspicuous places in and about [their] plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically.” [29 C.F.R. § 471, Subpt. A, App. A.]

Contractors covered by the rule who fail to display the posting risk having their contracts with Federal agencies cancelled.

Employers may recall the NLRB posting debacle of 2011 wherein the Board tried issuing a posting required for U.S. employers. Two different Courts ruled they lacked both the authority to issue posting requirements and the power of enforcement.

In the more recent case of E.O. 13496, however, the combined authority of President Obama and the DOL make for power only the Wonder Twins could dream of.

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