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A new federal law will require certain federal contractors and subcontractors, including many in the construction industry, to post in the workplace a notice informing employees of their rights under the National Labor Relations Act (“NLRA”), including their right to form and join labor unions. This new posting requirement stems from Executive Order 13496, signed by President Obama shortly after he took office, and marks the first time that employers have been required to post a notice informing employees of the full range of their NLRA rights.

Because the required poster discusses organizational rights, broadly describes unlawful employer and union acts under the NLRA, and provides contact information for the National Labor Relations Board ("NLRB"), it is likely that the new posting requirement will stimulate union-organizing activity and lead to an increased number of unfair labor practice charges being filed against employers. Most construction-industry employers that perform work on federal construction projects will be subject to the posting requirement, but advance planning and action can help minimize the impact of the notice once it goes up in the workplace.

Employers Covered by the Posting Requirements

The Department of Labor’s Office of Labor-Management Standards recently issued its final rules implementing Executive Order 13496. Under these rules, federal agencies must, with very few exceptions, include a clause mandating the posting of the NLRA notice in all contracts for the purchase, sale, or use of personal property or nonpersonal services (including construction work) that are solicited on or after June 21, 2010, and that are for an amount in excess of $100,000.

A prime contractor with a federal contract that contains the NLRA notice clause must include that clause in each subcontract that is necessary to the performance of the federal contract and that is for an amount in excess of $10,000. Subcontractors that have the NLRA notice clause in their subcontracts must include the clause in lower tier subcontracts that are necessary to the performance of the federal contract and that meet the $10,000 threshold.

The NLRA notice clause, which is quite long, may be included in federal contracts and subcontracts by reference to the Code of Federal Regulations citation for the new final rules rather than by reproducing the text of the clause. Therefore, employers entering into federal contracts and subcontracts should be on the lookout for references to “29 C.F.R. Part 471,” as that mere reference is sufficient to impose the posting requirement.

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John W. Alden; Randall D. Avram; Louis W. Doherty - Kilpatrick Stockton LLC

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