On January 30, 2009 President Obama issued three executive orders clearly demonstrating a shift in how the Executive Branch will treat organized labor. The orders, available in full text here. are an indication, according to the President, of the administration's desire to "level the playing field" between labor and management. The orders require federal contractors to comply with new requirements relating to notice, nondisplacement, and the funding of efforts to inform employees about the effects of organizing. The orders revoke certain Bush-era policies relating to labor issues for federal contractors. In addition to the orders, the President officially established a task force to raise the living standards of the middle class.
According to Executive Order 13494, contractors are now prohibited from using taxpayer funds obtained from federal contracts to persuade employees to either organize or avoid organizing. This prohibition specifically covers preparing and distributing materials, consulting with legal counsel, holding meetings and planning or conducting activities during work hours. The prohibition seeks to establish a neutral forum to discuss the merits of organizing, but the likely effect is that only the union's views will occupy the forum.
The order also explicitly attempts to achieve the laudable goal of reducing government spending. Any company that desires to use its own funds to persuade employees not to organize will need to ensure that it keeps complete records of the funds used so as not to violate the order. Because of the free speech restrictions contained in this order, legal challenges will likely follow.
In an effort to eliminate the displacement of workers who lose their jobs as a result of a service contract being awarded to another entity in the same location, employees now have a right of first refusal to gain employment with the new contractor under Executive Order 13495. The right is limited to those positions for which the employee is qualified and does not extend to an employee in a supervisory or managerial role.
The bulk of this order provides for a new contract clause which will be inserted in federal contracts. The clause requires that a federal contractor grant the eligible employees the right of first refusal before engaging in any other hiring practice. While the order may provide for a more experienced workforce, another effect of such a provision is to force a new federal contractor to accept the employees of the former contractor, and as a result to recognize the union that represents them.
Executive Order 13496 mandates that all federal contracts shall require contractors to post information about the federal labor laws as prescribed by the Secretary of Labor. This requirement shall also be included in each subcontract made under the initial contract. The failure to post the required notice provides adequate grounds to cancel or terminate the contract.
In addition to requiring the posting of the notice, this order expressly revokes Executive Order 13201, which had required employers to post so-called "Beck Notices" informing employees of their right to pay "service fees" instead of full union dues. Coupling this order with the prohibitions against persuading employees to organize outlined in Executive Order 13494 severely limits an employer's ability to counteract the organizing efforts of union representatives.
President Obama also used the signing of these orders to discuss the Middle Class Task Force that will be headed by Vice President Biden. The task force will "focus on policies that will really benefit the middle class, policies to create jobs that pay well and provide a chance to save, to create jobs in growing fields and train workers to fill them, to ensure that workplaces are safe and fair as well as flexible for employees juggling the demands of work and family." President Obama challenged the task force to come up with recommendations to help achieve the goals that he has set for protecting the middle class. Materials and reports regarding the task force are available here. The creation of the task force, and the issuing of these orders are only the precursor to many changes to come from the Obama administration in the field of labor relations. Several sources have indicated that in addition to pushing the Employee Free Choice Act, Obama intends to revoke other Bush Executive Orders related to labor relations. Executive Order 13202, which prohibits the requirement of a project labor agreement for construction projects that are federally funded, was revoked by Executive Order 13502 on February 6, 2009. While these orders only apply to federal contractors, the swift change in policy portends future legislation that will impact the landscape of labor-management relations.