By: Eric Whytsell
In an opinion issued May 7, 2015 in Nat’l Ass’n of Mfrs. v. Perez, D.D.C., No. 1:13-cv-01998, the District Court for District of Columbia rejected various challenges to the Department of Labor (DOL) regulation requiring nearly all federal contracts to post workplace notices informing their employees of their rights under the National Labor Relations Act (NLRA)(the “Posting Rule”). The Posting Rule in question implements President Obama’s Executive Order 13496, promulgated in January 2009.
The National Association of Manufacturers and the Virginia Manufacturers Association had challenged the rule, asserting it violated the First Amendment to the U.S. Constitution and was preempted by the NLRA. They sought to rely on a previous court ruling invalidating the promulgation by the National Labor Relations Board of its own rules requiring the posting of notices of rights under federal labor law.
The Court held, however, that the earlier case was not controlling, the rule was constitutional and properly adopted and, accordingly, granted summary judgment to the government. More specifically, the Court concluded that while the rule requires contractors to “host government speech as a condition of receipt of a federal contract,” it does not interfere with the contractor’s ability to convey [its own] message – and is not likely to cause employees “to believe that the Notice is their employer’s speech.” Rejecting the notion that the NLRA preempts the rule, the Court also held the DOL had authority to advance the statutory policy goal by requiring a rights notice and that nothing in the NLRA precludes the DOL from promoting “the government’s interest in efficient and stable contracting through the posting of a labor rights notice.”
For now, at least, the Posting Rule continues to require most federal contractors to provide mandated information to their employees concerning their rights under the NLRA.
Eric Whytsell is responsible for the contents of this Short Take.
© Jackson Kelly PLLC 2015
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