President Obama may have difficulty distancing his administration’s policies from the past era in national security issues, but not so in the labor agenda. One of the President’s early executive orders (13496, issued on January 30, 2009) required companies doing business with the federal government to notify their employees of their rights under the National Labor Relations Act. The NLRA governs union activities, as well as any collective action among employees even in non-union shops.
The Department of Labor now has proposed a rule to implement the Executive Order. The rule describes the notice that federal contractors must post. The preamble highlights the shift from Bush to Obama leadership:
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 rule also determines that the posting requirement, as well as the requirement to place the wording in all contracts, applies to subcontractors of the federal contractors. . The rule applies to all federal contracts worth more than $100,000. The Department estimates this rule will reach more than 65,000 prime contractors, each of which has an average of three subcontractors. Some of these subcontractors, of course, work on more than one prime subcontractor’s job. The rule does not apply to state and local governments, which are exempt under the National Labor Relations Act.
The posting requirement expresses faith that more information is all employees need to insist on their rights. Anecdotally, I believe there is some truth to this assumption. Employees with wage and hour complaints often state that their employers did not make the required posting regarding minimum wage, or that it was inaccessible to the employees. It is easier to make a claim that an employee is not covered by the law if the law is not described in the lunchroom.
This posting does seem calculated to describe rights and to inspire employees to use them. The list of rights under the NLRA is described as follows:
- 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, including joining or remaining a member of a union.
Perhaps even more critical to the goal of disclosing information to employees is the list of illegal activities by employers.
It is illegal for your employer to:
- Prohibit you from soliciting for the union during non-work time or istributing 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.
The rule goes on to state:
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.
Comments to this proposed rule are due by September 2, after which the rule will be modified or may go into effect shortly thereafter.