• Legislative Update
  • March 18, 2010 | Author: Andre B. Mathis
  • Law Firm: Glankler Brown, PLLC - Memphis Office
  • In our last issue, we discussed the Employee Free Choice Act (“EFCA”), which seemed destined to become law. Now it seems that passage of the EFCA, in the form presented to Congress, is at best highly unlikely. Senator Dianne Feinstein, one of the sponsors the EFCA in 2007, and many other legislators have announced their opposition to part of the EFCA—the card check provision, which provides that the National Labor Relations Board (“NLRB”) must certify a union if a majority of eligible voters in the bargaining unit sign the authorization cards.

    In March 2009, the National Labor Relations Modernization Act (“NLRMA”) was introduced in the House of Representatives. The NLRMA essentially mirrors the EFCA’s provisions for increased penalties for unfair labor practices and for supplying mediation and binding arbitration procedures to ensure an initial collective bargaining agreement is reached. The NLRMA does not contain the EFCA’s controversial card-check provision, which would functionally eliminate the secret-ballot election. Instead, during the campaign leading up to a secret-ballot election, when an employer campaigns against the union by holding employee meetings, making announcements, displaying signs, or distributing literature, the NLRMA would require the employer to give the union equal access to its employees.

    Another bill that is lurking just below the surface is the Common Sense English Act. This law would amend the Civil Rights Act of 1964 to allow employers to require employees to speak English during work hours without fear of a discrimination lawsuit based on national origin.

    Both the NLRMA and the Common Sense English Act, along with the EFCA, have been referred to committees and the success or failure of these bills is anyone’s guess.

    Executive Order Update

    Upon taking office in January 2009, President Barack Obama quickly issued three executive orders that will have some effect on employment law with regard to federal contracts.

    Executive Order 13494 - Economy in Government Contracting. Under this executive order, federal contractors are forbidden to pass along any expenses associated with persuading workers with regard to their National Labor Relations Act (“NLRA”) rights to the government. Examples of costs that federal contractors cannot bill to the government are: (1) preparing and distributing NLRA materials; (2) hiring or consulting legal counsel or consultants; (3) holding meetings about the NLRA; and (4) planning or conducting activities by managers, supervisors, or union representatives during work hours. This executive order may not withstand judicial scrutiny because the NLRA statutory language providing the right of employees to receive information opposing unionization preempts any law not passed by Congress.

    Executive Order 13495-Nondisplacement of Qualified Workers Under Service Contracts. This executive order requires general contractors and subcontractors to offer, in good faith, “line” employees employed under a predecessor contract whose employment will be terminated as a result of the award of the federal contract or the expiration of the contract under which the employees were hired, a right of first refusal of employment under the contract in positions for which the employees are qualified. The predecessor contractor is not required to offer a right of first refusal to any employee of the predecessor contractor whom the contractor or any of its subcontractors “reasonably believe”, based on past performance, has failed to perform suitably on the job. Two issues are presented by this executive order: (1) even where the predecessor performed poorly, the successor may have a difficult time demonstrating that any employees it rejects were likewise poor performers, and (2) if a union represents the employees at issue, the successor is likely to end up having to recognize that labor organization.

    Executive Order 13496-Notification of Employee Rights Under Federal Labor Laws. This executive order requires all new federal contracts to contain clauses requiring the contractor to post a notice regarding employees’ rights under the NLRA. The purpose of this rule is to ensure that federal contracts will be performed by contractors whose work will not be interrupted by labor unrest. Any contractor who fails to comply with this order risks the possibility of termination of its federal contract.