Executive Order -- Notificiation of Employee Rights Under Federal Labor Laws
For Immediate Release January 30, 2009
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NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including the Federal
Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in
order to ensure the economical and efficient administration and
completion of Government contracts, it is hereby ordered that:
Section 1. Policy. This order is designed to promote economy and
efficiency in Government procurement. When the Federal Government
contracts for goods or services, it has a proprietary interest in
ensuring that those contracts will be performed by contractors whose
work will not be interrupted by labor unrest. The attainment of
industrial peace is most easily achieved and workers' productivity is
enhanced when workers are well informed of their rights under Federal
labor laws, including the National Labor Relations Act (Act), 29 U.S.C.
151 et seq. As the Act recognizes, "encouraging the practice and
procedure of collective bargaining and . . . protecting the exercise by
workers of full freedom of association, self organization, and
designation of representatives of their own choosing, for the purpose
of negotiating the terms and conditions of their employment or other
mutual aid or protection" will "eliminate the causes of certain
substantial obstructions to the free flow of commerce" and "mitigate
and eliminate these obstructions when they have occurred." 29 U.S.C.
151. Relying on contractors whose employees are informed of such
rights under Federal labor laws facilitates the efficient and
economical completion of the Federal Government's contracts.
Sec. 2. Contract Clause. Except in contracts exempted in
accordance with section 3 of this order, all Government contracting
departments and agencies shall, to the extent consistent with law,
include the following provisions in every Government contract, other
than collective bargaining agreements as defined in 5 U.S.C. 7103(a)(8)
and purchases under the simplified acquisition threshold as defined in
the Office of Federal Procurement Policy Act, 41 U.S.C. 403.
"1. During the term of this contract, the contractor agrees to
post a notice, of such size and in such form, and containing such
content as the Secretary of Labor shall prescribe, in conspicuous
places in and about its plants and offices where employees covered by
the National Labor Relations Act engage in activities relating to the
performance of the contract, including all places where notices to
employees are customarily posted both physically and electronically.
The notice shall include the information contained in the notice
published by the Secretary of Labor in the Federal Register
(Secretary's Notice).
"2. The contractor will comply with all provisions of the
Secretary's Notice, and related rules, regulations, and orders of the
Secretary of Labor.
"3. In the event that the contractor does not comply with any of
the requirements set forth in paragraphs (1) or (2) above, this
contract may be cancelled, terminated, or suspended in whole or in
part, and the contractor may be declared ineligible for further
Government contracts in accordance with procedures authorized in or
adopted pursuant to Executive Order [number as provided by the Federal
Register] of [insert new date]. Such other sanctions or remedies may
be imposed as are provided in Executive Order [number as provided by
the Federal Register] of [insert new date], or by rule, regulation, or
order of the Secretary of Labor, or as are otherwise provided by law.
"4. The contractor will include the provisions of paragraphs (1)
through (3) above in every subcontract entered into in connection with
this contract (unless exempted by rules, regulations, or orders of the
Secretary of Labor issued pursuant to section 3 of Executive Order
[number as provided by the Federal Register] of [insert new date]) so
that such provisions will be binding upon each subcontractor. The
contractor will take such action with respect to any such subcontract
as may be directed by the Secretary of Labor as a means of enforcing
such provisions, including the imposition of sanctions for non
compliance: Provided, however, that if the contractor becomes involved
in litigation with a subcontractor, or is threatened with such
involvement, as a result of such direction, the contractor may request
the United States to enter into such litigation to protect the
interests of the United States."
Sec. 3. Administration.
(a) The Secretary of Labor (Secretary) shall be responsible for
the administration and enforcement of this order. The Secretary shall
adopt such rules and regulations and issue such orders as are necessary
and appropriate to achieve the purposes of this order.
(b) Within 120 days of the effective date of this order, the
Secretary shall initiate a rulemaking to prescribe the size, form, and
content of the notice to be posted by a contractor under paragraph 1 of
the contract clause described in section 2 of this order. Such notice
shall describe the rights of employees under Federal labor laws,
consistent with the policy set forth in section 1 of this order.
(c) Whenever the Secretary finds that an act of Congress,
clarification of existing law by the courts or the National Labor
Relations Board, or other circumstances make modification of the
contractual provisions set out in subsection (a) of this section
necessary to achieve the purposes of this order, the Secretary promptly
shall issue such rules, regulations, or orders as are needed to cause
the substitution or addition of appropriate contractual provisions in
Government contracts thereafter entered into.
Sec. 4. Exemptions. (a) If the Secretary finds that the
application of any of the requirements of this order would not serve
the purposes of this order or would impair the ability of the
Government to procure goods or services on an economical and efficient
basis, the Secretary may exempt a contracting department or agency or
group of departments or agencies from the requirements of any or all of
the provisions of this order with respect to a particular contract or
subcontract or any class of contracts or subcontracts.
(b) The Secretary may, if the Secretary finds that special
circumstances require an exemption in order to serve the national
interest, exempt a contracting department or agency from the
requirements of any or all of the provisions of section 2 of this order
with respect to a particular contract or subcontract or class of
contracts or subcontracts.
Sec. 5. Investigation.
(a) The Secretary may investigate any Government contractor,
subcontractor, or vendor to determine whether the contractual
provisions required by section 2 of this order have been violated.
Such investigations shall be conducted in accordance with procedures
established by the Secretary.
(b) The Secretary shall receive and investigate complaints by
employees of a Government contractor or subcontractor, where such
complaints allege a failure to perform or a violation of the
contractual provisions required by section 2 of this order.
Sec. 6. Compliance.
(a) The Secretary, or any agency or officer in the executive
branch lawfully designated by rule, regulation, or order of the
Secretary, may hold such hearings, public or private, regarding
compliance with this order as the Secretary may deem advisable.
(b) The Secretary may hold hearings, or cause hearings to be held,
in accordance with subsection (a) of this section, prior to imposing,
ordering, or recommending the imposition of sanctions under this
order. Neither an order for cancellation, termination, or suspension
of any contract or debarment of any contractor from further Government
contracts under section 7(b) of this order nor the inclusion of a
contractor on a published list of noncomplying contractors under
section 7(c) of this order shall be carried out without affording the
contractor an opportunity for a hearing.
Sec. 7. Remedies. In accordance with such rules, regulations, or
orders as the Secretary may issue or adopt, the Secretary may:
(a) after consulting with the contracting department or agency,
direct that department or agency to cancel, terminate, suspend, or
cause to be cancelled, terminated, or suspended, any contract, or any
portion or portions thereof, for failure of the contractor to comply
with the contractual provisions required by section 2 of this order;
contracts may be cancelled, terminated, or suspended absolutely, or
continuance of contracts may be conditioned upon future compliance:
Provided, that before issuing a directive under this subsection, the
Secretary shall provide the head of the contracting department or
agency an opportunity to offer written objections to the issuance of
such a directive, which objections shall include a complete statement
of reasons for the objections, among which reasons shall be a finding
that completion of the contract is essential to the agency's mission:
And provided further, that no directive shall be issued by the
Secretary under this subsection so long as the head of the contracting
department or agency, or his or her designee, continues to object to
the issuance of such directive;
(b) after consulting with each affected contracting department or
agency, provide that one or more contracting departments or agencies
shall refrain from entering into further contracts, or extensions or
other modifications of existing contracts, with any noncomplying
contractor, until such contractor has satisfied the Secretary that such
contractor has complied with and will carry out the provisions of this
order: Provided, that before issuing a directive under this subsection,
the Secretary shall provide the head of each contracting department or
agency an opportunity to offer written objections to the issuance of
such a directive, which objections shall include a complete statement
of reasons for the objections, among which reasons shall be a finding
that further contracts or extensions or other modifications of existing
contracts with the noncomplying contractor are essential to the
agency's mission: And provided further, that no directive shall be
issued by the Secretary under this subsection so long as the head of a
contracting department or agency, or his or her designee, continues to
object to the issuance of such directive; and
(c) publish, or cause to be published, the names of contractors
that have, in the judgment of the Secretary, failed to comply with the
provisions of this order or of related rules, regulations, and orders
of the Secretary.
Sec. 8. Reports. Whenever the Secretary invokes section 7(a) or
7(b) of this order, the contracting department or agency shall report
to the Secretary the results of the action it has taken within such
time as the Secretary shall specify.
Sec. 9. Cooperation. Each contracting department and agency shall
cooperate with the Secretary and provide such information and
assistance as the Secretary may require in the performance of the
Secretary's functions under this order.
Sec. 10. Sufficiency of Remedies. If the Secretary finds that the
authority vested in the Secretary by sections 5 through 9 of this order
is not sufficient to effectuate the purposes of this order, the
Secretary shall develop recommendations on how better to effectuate
those purposes.
Sec. 11. Delegation. The Secretary may, in accordance with law,
delegate any function or duty of the Secretary under this order to any
officer in the Department of Labor or to any other officer in the
executive branch of the Government, with the consent of the head of the
department or agency in which that officer serves.
Sec. 12. Implementation. To the extent permitted by law, the
Federal Acquisition Regulatory Council (FAR Council) shall take
whatever action is required to implement in the Federal Acquisition
Regulation (FAR) the provisions of this order and any related rules,
regulations, or orders issued by the Secretary under this order and
shall amend the FAR to require each solicitation of offers for a
contract to include a provision that implements section 2 of this order.
Sec. 13. Revocation of Prior Order and Actions. Executive Order
13201 of February 17, 2001, is revoked. The heads of executive
departments and agencies shall, to the extent permitted by law, revoke
expeditiously any orders, rules, regulations, guidelines, or policies
implementing or enforcing Executive Order 13201.
Sec. 14. Severability. If any provision of this order, or the
application of such provision to any person or circumstance, is held to
be invalid, the remainder of this order and the application of the
provisions of such to any person or circumstances shall not be affected
thereby.
Sec. 15. General Provisions.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and
Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in equity
by any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other person.
Sec. 16. Effective Date. This order shall become effective
immediately, and shall apply to contracts resulting from solicitations
issued on or after the effective date of the rule promulgated by the
Secretary pursuant to section 3(b) of this order.
BARACK OBAMA
THE WHITE HOUSE,
January 30, 2009.
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