The National Labor Relations Board (NLRB) has directed its regional office personnel to begin reporting alleged labor law violations by government contractors named by regional directors in unfair labor practice complaints issued on or after July 1, 2016.
In Memorandum OM 16-23, Associate General Counsel Anne Purcell notes that when an employer is named in an unfair labor practice complaint, the NLRB will report the information to a federal database to comply with President Obama’s July 31, 2014 Fair Pay and Safe Workplaces Executive Order 13673.
The executive order requires the NLRB and other contracting agencies to collect information concerning a potential prime contractor’s 3-year violation history with respect to 12 federal labor, employment, wage payment, and safety laws, 2 other executive orders, and all “equivalent State laws.” The agencies report this information to assist contracting agencies in weighing labor law violations to assess whether a company should be permitted to bid on a new federal contract or continue working on existing federal contracts valued at more than $500,000. The labor compliance advisers and contracting officers in each agency will assess whether contractors’ labor law violations should be classified as serious, repeated, willful, or pervasive, as defined in a lengthy proposed guidance issued by the U.S. Department of Labor in May 2015. The final guidance is anticipated in the Fall of 2016.
Contractors should note that the NLRB does not consider the filing of an unfair labor practice charge to be a reportable violation. The NLRB will only report the alleged violation to the federal data base when a regional director issues a complaint. The agency will send the information to the database even though there has not been a hearing or final determination on the merits of the complaint, the contractor is challenging or can challenge the allegations, and even a merits determination is subject to appeal or further review. The memorandum instructs regional personnel to inform charged party employers that the NLRB will not forward information to the database if an employer settles or resolves an unfair labor practice case before the issuance of a complaint—a practice that many contractors feel amounts to a tactic by the NLRB designed to encourage them to settle claims—even if they are meritless—rather than putting their federal contracting work at risk.
The NLRB will also collect data on whether an employer is or has been a federal contractor, and will gather identification numbers, including Commercial and Government Entity (CAGE) Codes and Data Universal Numbering System (DUNS) identifiers, and Employer Identification Number (EIN) or Taxpayer Identification Number (TIN). Employers will be asked to provide the business identification numbers using an online form. The memorandum contains a sample email for regional personnel to send that would warn an employer that if it has not provided business identification data to the NLRB, the agency will transmit the case information it has along with a report describing the employer’s noncompliance.
There are legislative efforts in the works that would exempt defense contractors from Executive Order 13673, and other attempts to attach a rider to appropriation bills that would block funding needed to establish and support agency Labor Contract Advisors or to otherwise enforce the executive order. These initiatives have yet to pass both houses of Congress and, if passed, would still be subject to veto by President Obama if he chooses to do so.
More information on Executive Order 13673 can be found in our article, “Contractor Blacklisting: Sweeping ‘Labor Violation’ Reporting Duties in the Proposed “Fair Pay and Safe Workplaces” Guidance and Procurement Rules.” Ogletree Deakins will continue to monitor these legislative efforts and provide updates as they develop.