Federal Court Upholds Federal Contractor Union Notice Requirement

by FordHarrison
Contact

Executive Summary: A federal court in the District of Columbia has upheld the validity of the Department of Labor's (DOL) rule requiring covered federal contractors to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). In National Ass'n of Manufacturers v. Perez (D.D.C. May 7, 2015), the court held that the rule does not violate employers' First Amendment rights, was properly adopted, and is not preempted by the NLRA.

Background

As discussed in our prior Alert, on May 20, 2010, the DOL issued a final regulation implementing Executive Order 13496, which requires non-exempt federal contractors and subcontractors to post a notice informing employees of their rights under the NLRA. After the regulation was issued, trade groups representing government contractors challenged it in federal court. On May 7, 2015, the federal district court for the District of Columbia rejected these challenges.

No Violation of First Amendment Rights

The court held that the posting requirement does not violate employers' First Amendment rights because the rule does not compel a federal contractor to speak at all. "Rather, the contractor is required to host government speech as a condition of receipt of a federal contract." The court noted that a contractor has a choice between posting the notice or foregoing federal contracting. The court also noted that the rule does not interfere with an employer's right to express its own views on union organizing. "Indeed, nothing in the rule prevents a contractor from creating its own posting" and placing it next to the DOL's notice to make it clear that the DOL's notice does not express the employer's opinion. Federal contractors may want to consider posting the Beck Notice, which stemmed from President George W. Bush's executive order requiring federal contractors to post a notice informing employees of their right to not join a labor union and not to pay fees for union expenses which were unrelated to labor representation matters.  One of President Obama's first executive orders revoked the Beck Notice requirement but federal contractors may still voluntarily post such a notice.    

Additionally, the court held that the decision of the District of Columbia Circuit Court of Appeals in NAM v. NLRB does not compel a finding that the DOL's rule is unconstitutional. In NAM, the Court of Appeals held that the NLRB's notice, which is substantially identical to the DOL's notice, violates § 8(c) of the NLRA. Because the decision in NAM was based on § 8(c), the district court declined to read it as requiring a determination that the DOL's rule violates the First Amendment.

Promulgation of Rule

The court also held that the President did not exceed his authority under the federal Procurement Act in issuing EO 13496. Citing an earlier decision that found the Procurement Act authorized an executive order requiring contractors to post a notice informing employees of their right to refrain from joining a union, the court held that EO 13496 was, similarly, a valid exercise of Presidential authority under the Procurement Act. Relying on that same case, the court also held that the posting rule has a sufficiently close nexus to procurement policy that it was not arbitrary and capricious.

No Preemption by the NLRA

The court also found that the DOL's authority to require the posting was not preempted by the NLRA. "The court is aware of no authority, and Plaintiffs have pointed to none, holding that the NLRA so occupies the field of labor law that an agency of the federal government other than the NLRB cannot promote the government's proprietary interest in efficient and stable contracting through the posting of a labor rights notice."

The Bottom Line:

Federal contractors covered by the DOL's notice posting rule should continue to post the notice as required by the rule. The notice posting rule does not apply to public sector employers and employers covered by the Railway Labor Act.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© FordHarrison | Attorney Advertising

Written by:

FordHarrison
Contact
more
less

FordHarrison on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.