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By W. Samuel Niece
Howrey LLP
Since 2001, federal government contractors and subcontractors have been require to post so-called “Beck Notices” advising certain employees of their right to opt-out of contributing to union political activities. The new administration has revoked this requirement.
Background: Section 8(a)(3) of the National Labor Relations Act (NLRA, codified at 29 USC §158(a)(3)) permits an employer and a union to enter into an agreement requiring all employees either to become union members or to pay the union agency fees equal to union dues. The American Telephone and Telegraph Company entered into such an agreement with the Communications Workers of America.
In 1979, one Beck and 19 other employees of AT&T who chose not to become union members filed suit challenging CWA’s use of their agency fees for purposes other than collective bargaining or representational activities. Specifically, the non-union employees objected to CWA’s expenditure of their agency fees on activities such as organizing the employees of other employers, lobbying for labor legislation, and participating in social, charitable and political events.
The case eventually reached the U.S. Supreme Court, which agreed with the employees, holding that “§8(a)(3)... authorizes the exaction of only those fees and dues necessary to ‘perform the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.’ ” Communications Workers of America v. Beck, 487 U.S. 735, 762-63, 108 S.Ct. 2641, 2657 (1988), quoting Ellis v. Railway Clerks, 466 U.S. 435, 448, 104 S.Ct. 1883, 1892 (1984) [construing a similar provision of the Railway Labor Act].
In 2001, President Bush issued Executive Order 13201, which required government contractors to post Beck notices advising employees of their opt-out rights under the Beck decision. FAR §52.222-39 implements Executive Order 13201.
Change: On January 30, 2009, President Obama issued Executive Order 13496, revoking Executive Order 13401 and instead requiring contractors and subcontractors to post a notice advising employees of their rights to bargain collectively and to be protected in the exercise of their rights to engage in union activities. Executive Order 13496 does not include the exact text of the new notice -- the Secretary of Labor will prescribe the size, form and content of the new notice.
At this point, it does not appear that Executive Order 13496 makes any substantive changes to an employee's rights as established by Congress in the NLRA and construed by the Supreme Court in the Beck decision. However, the new executive order does affect what government contractors and subcontractors are required to advise employees about those rights.
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For more information about the issues covered in this report, please contact W. Samuel Niece in our San Francisco office at 415-848-4979 or at nieces@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2009 Howrey LLP
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