10/1/01 Dispatch: Labor - Employee Rights Concerning Payment of Union Dues or Fees

FedGovContracts.com

Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: October 1, 2001

SUBJECT: Department of Labor (DOL); Notice of Employee Rights Concerning Payment of Union Dues or Fees

SOURCE: Federal Register, October 1, 2001, Vol. 66, No. 190, page 50009

AGENCIES: Office of Labor-Management Standards, DOL

ACTION: Notice of Proposed Rulemaking

SYNOPSIS: DOL is proposing a new regulation to implement Executive Order 13201, Notification of Employee Rights Concerning Payment of Union Dues or Fees, dated February 17, 2001. E.O. 13201 requires non-exempt federal contractors and subcontractors to post notices alerting nonunion employees that they cannot be forced to pay fees to unions to support activities not related to collective bargaining, contract administration, and grievance adjustment.

EDITOR'S NOTE: For more on E.O. 13201, see the February 22, 2001, FEDERAL CONTRACTS DISPATCH "Executive Order 13201, Notification of Employee Rights Concerning Payment of Union Dues or Fees."

DATES: Comments must be submitted on or before November 30, 2001.

ADDRESSES: Send comments to Don Todd, Deputy Assistant Secretary for Labor-Management Programs, Office of Labor-Management Standards, Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-5605, Washington, DC 20210. As a convenience, comments of five or fewer pages may be transmitted by fax to 202-693-1340.

FOR FURTHER INFORMATION CONTACT: Don Todd, 202-693-0200. Individuals with hearing impairments may call 1-800-877-8339 (TTY/TDD).

SUPPLEMENTAL INFORMATION: On February 22, 2001, President Bush signed E.O. 13201 "to promote economy and efficiency in government procurement" by requiring government contractors to inform their workers that federal labor laws give those workers certain rights related to union membership and use of union dues and fees." E.O. 13201 provides the text of a contract clause that federal agencies must include in all nonexempt contracts and subcontracts. That clause requires contractors to post a notice, and specifies the exact language of the notice. The clause also requires contractors to include the same clause in their nonexempt subcontracts and purchase orders, and describes generally the sanctions, penalties, and remedies that may be imposed if the contractor fails to satisfy its obligations under the E.O. and the clause.

The text of the notice informs employees that they cannot be required to join, or maintain membership in, a union in order to keep their jobs; that under certain conditions, the law permits a union and an employer to enter into a union-security agreement requiring employees to pay dues and fees to the union; and that, even when such a union-security agreement exist, employees who are not union members can only be required to pay their share of union costs relating to certain specific activities. The notice also provides a general description of the remedies to which employees may be entitled if these rights have been violated, and provides contact information for further information about those rights and remedies.

To implement E.O. 13201, DOL proposes to add a new Part 470 to Volume 29 of the Code of Federal Regulations (29 CFR Part 470), Obligations of Federal Contractors and Subcontractors; Notice of Employee Rights Concerning Payment of Union Dues or Fees. The new part would consist of the following:

Subpart A -- Preliminary Matters
470.1	What definitions apply to this part?
470.2	Under the Executive Order, what employee notice clause must be included in Government contracts?
470.3	What contracts are exempt from the employee notice clause requirement?
470.4	What contractors or facilities are exempt from the posting requirements?

Subpart B -- Compliance Evaluations, Complaint Investigations, and Enforcement Procedures
470.10	How will the Department determine whether a contractor is in compliance with the Executive Order and this part?
470.11	What are the procedures for filing and processing a complaint?
470.12	What are the procedures to be followed when a violation is found during a complaint investigation or compliance evaluation?
470.13	Under what circumstances, and how, will enforcement proceedings under the Executive Order be conducted?
470.14	What sanctions and penalties may be imposed for noncompliance, and what procedures will the Department follow in imposing such sanctions and penalties?
470.15	Under what circumstances must a contractor be provided the opportunity for a hearing?
470.16	Under what circumstances may a contractor be reinstated?

Subpart C -- Ancillary Matters
470.20	What authority under this part or the Executive Order may the Secretary delegate, and under what circumstances?
470.21	Who will make rulings and interpretations under the Executive Order and this part?
470.22	What actions may the Assistant Secretary take in the case of intimidation and interference?
470.23	What other provisions apply to this part?

While much of proposed 29 CFR Part 470 is taken practically verbatim from the E.O., the proposed rules do "flesh out" some necessary provisions and procedures. The following are some of the more significant ones:

Section 470.2 states that the contract clause is required to be included in contracts resulting from solicitations issued on or after April 18, 2001 (the date DOL issued an Interim Procedural Notice providing guidance to contractors and subcontractors on compliance with the E.O. until a final rule is published). Also, it states that the required employee notice poster will be provided by the contracting agency or may be obtained from the Division of Interpretations and Standards, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-5605, Washington, DC 20210, or from any field office of DOL's Office of Labor-Management Standards or Office of Federal Contract Compliance Programs.
Section 470.3 states that contracts and purchases below the $100,000 simplified acquisition threshold are exempt from the 29 CFR Part 470.
Section 470.4 states that contractors and subcontractors with fewer than 15 employees, contractor establishments or construction work sites where no union has been formally recognized by the contractor or certified as the exclusive bargaining representative, and contractor establishments or construction work sites in jurisdictions where state law forbids enforcement of union-security agreements are exempt. In addition, a contractor may request that the Deputy Assistant Secretary for Labor-Management Programs waive the requirements for a contractor's facility that is in all respects separate and distinct from activities related to a covered contract. Finally, work performed outside the United States that does not involve the recruitment or employment of workers within the United States is exempt.
Section 470.10 states that the Deputy Assistant Secretary for Federal Contract Compliance may conduct a compliance evaluation to determine whether a contractor is in compliance with the requirements of 29 CFR Part 470.
Section 470.12 states DOL will seek compliance with the E.O. through conciliation if violations of the E.O. are found.
Section 470.14 provides, if a contractor cannot or will not comply with the E.O., that DOL may "direct a contracting agency to cancel, terminate, suspend, or cause to be canceled, terminated or suspended, any contract or any portions thereof" or "issue an order of debarment..."
Section 470.16 permits DOL to reinstate any debarred contractor or subcontractor upon written request if the contractor has come into compliance and intends to remain in compliance.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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