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Freedom of Speech and FAR 52.222-40 Notification of Employee Rights under the National Labor Relations Act

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In the suit, National Association of Manufacturers, et al, v. National Labor Relations Board, et al (No. 12-5068, May 7, 2013), the United States Court of Appeals for the District of Columbia Circuit has ruled that a National Labor Relations Board (NLRB) requirement that nearly 6,000,000 employers post on their properties and on their websites a “Notification of Employee Rights Under the National Labor Relations Act” violates the First Amendment’s freedom of speech right not to speak.

What is the impact for those contracts with FAR 52.222-40? Can we take the posters down, citing the ruling? Due to the ruling, will the requirements for FAR 52.222-40 precribed at FAR22.1605 require amending or will contractors doing business with the Federal Government just have to bite the bullet and realize that the do not have the freedom of speech right not to speak?

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ANSWER 1: Even though the court may have said the NLRB cannot force an employer to post a notice, an employer may still voluntarily choose to post the notice. In accepting a government contract that includes the contract clause at FAR 52.222-40, the employer/contractor voluntarily agrees to comply with the requirements of the clause.

ANSWER 2: Ask a competent attorney.

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It seems the decision does not rely on the First Amdt but on 29 USC 158( c ). In any case Constitutional rights are rarely absolute.

[Edit: I suspect that, to the extent a government contract requires particular speech as a condition of award, a reviewing court would look to cases relating to commercial speech (e.g., 433 US 350) and/or cases relating to loyalty oaths for government employees (e.g., 405 US 676 (1972)), depending on the content of the speech.]

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It will be interesting to see how this plays out, but I agree with Ji20874. When the contractor submits an offer in response to a solicitation that contains this clause, they are agreeing to the acceptance of this requirement. Failure to follow through would be a violation of there terms of the contract.

As slow as changes are made the FAR, I wouldn't look for any change (if ever) to come anytime soon.

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52.222-40 says in part "the Contractor shall post an employee notice, of such size and in such form, and containing such content as prescribed by the Secretary of Labor." If the Secretary's rule requiring the notice has supposedly been invalidated, has the Secretary prescribed a notice to be posted?

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The decision found that two of the three enforcement mechanisms for the notice under 29 CFR 104 were contrary to 29 USC 158( c ). It found that the third mechanism--tolling of the statute of limitations--conflicted with section 10( b ) of the NLRA.

The enforcement mechanisms for the clause at 52.222-40 are different than those challenged in the decision. Under para (e) of the clause, the government can terminate the contract and debar the contractor.

If you don't like the clause, the better way to attack it is not to rely on this decision, but to argue that Executive Order 13496 somehow conflicts with the NLRA.

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Rob - As the USDOL is responsible for implementing and enforcing the law regarding the requirement I would strongly suggest you contact the USDOL with your question. Per the following website here is a contact that would hopefully assist you on your question.

"Questions About Executive Order 13496?

If you have questions about E.O. 13496 or its implementing regulations, call OLMS at (202) 693-0123 or send an email to olms-public@dol.gov."

http://www.dol.gov/olms/regs/compliance/EO13496.htm

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