An interesting battle is developing in a federal court in Washington, D.C. The National Association of Manufacturers (NAM) is seeking summary judgment in an action it brought (along with the Virginia Manufacturer’s Association) in December 2013. They asserted that the poster informing employees of their right to unionize (required of federal contractors by the DOL's Office of Federal Contract Compliance Programs in accordance with a rule issued in 2010 by the Office of Labor-Management Standards) violates contractors' First Amendment rights. In its motion for summary judgment, NAM relies upon a prior decision in which the D.C. Circuit struck down the NLRB’s post-noticing requirement on the grounds that it compelled speech and thus violated the National Labor Rights Act.
In its opposition to NAM’s motion for summary judgment, the DOL argues that its poster requirement authority is properly derived from the Procurement Act, and that notifying federal contractor employees of their labor rights ensures efficiency in procurement of contracts by protecting against any labor unrest. The DOL asserts that the requirement does not interfere with contractors’ First Amendment free speech rights because the notices are “government” speech and not “private” speech, and does not interfere with federal contractors’ ability to disseminate their own speech regarding unionization. Finally, the DOL contends that the government is permitted to set certain conditions on the receipt of federal funds and contractors have a choice whether or not to enter into a contract with the government knowing that it will require such notices to be posted.
News and commentary from the Construction Law attorneys at Preti Flaherty.
