If your company has federal contracts or subcontracts, you should be preparing to comply with Executive Order 13496 by June 21, 2010. The Executive Order, which was signed by President Obama in January, 2009, requires that all companies with federal contracts or subcontracts post a detailed notice to employees informing them of their rights to engage in union organizing. The notice must be posted in “conspicuous places in and about the company’s plants and offices so that it is prominent and readily seen by employees.” “Conspicuous placement” includes, but is not limited to, areas in which the employer posts other notices to employees about terms and conditions of employment. If employers customarily give notices to employees electronically, this notice must be given in a similar format. Copies of the notice are available at the following link: www.dol.gove/olms/regs/compliance/EO13496.htm.
Critics of the required notice say that it is unbalanced. They claim that the notice is designed more to encourage and support union organizing than to make employees aware of their rights. The required notice informs employees of their rights to: organize a union; join or assist a union; bargain collectively; discuss unions with co-workers; take action with co-workers to improve working conditions by, among other things, raising work-related complaints and seeking help from a union; strike and picket. After reciting all of those rights, the required notice states also that employees may “choose not to do any of these activities.”
The notice also includes the following list of illegal actions by an employer: prohibiting employees from soliciting for a union during non-work time; questioning employees about union support or activities; taking adverse action against a person because of union activities or threatening to do so; threatening to close a business in response to union activity; promising raises, promotions, or other benefits to discourage union activity; prohibiting employees from wearing union hats, buttons, or other insignia in the workplace “except under special circumstances.” The notice also includes certain things illegal for unions to do: threatening that jobs will be lost unless employees supporting a union; refusing to process a grievance because an employee has criticized the union; discriminatory practices in hiring hall referrals; causing an employer to discriminate against an employee because of union activity; taking other adverse action against an employee based on refusal to support a union.
The posting requirement will be enforced by the Office of Federal Contracts Compliance Programs (“OFCCP”), the same federal agency that enforces affirmative action obligations of federal contractors and subcontractors. The sanctions for failure to post can include: termination or cancellation of a federal contract and debarment from future federal contracts.
Do not make the mistake of viewing this as “just another poster requirement.” Organized labor will use this required posting as a head-start for organizing workers of federal contractors and subcontractors. The companies required to post this notice should be evaluating their readiness to respond to union organizing activity. This should include at least the following steps:
- Reviewing existing policies concerning solicitation, distribution, posting, and other actions in the workplace that could impact union organizing to be certain that they are effective and legal.
- Reviewing management training efforts to be sure that all managers are aware of the company’s position on unions, familiar with early signs of union organizing, and confident about how to respond.
- Taking stock of company efforts to provide competitive wages and benefits, meaningful communication with employees, and fair treatment. These are among the most important ways to defeat union organizing.
- Considering a specific message to employees at or near the time of first posting the required notice so that workers know the company’s position on union organizing.