Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
President Biden has claimed that he has been “America’s most pro-union president ever,” and he took a major step toward making good on that dubious distinction in his executive order of February 4. In it, he announced strong steps to make sure that only firms that agree to hire union labor on jobs worth more than $35 million can land those contracts. The order, if and when implemented, is anticipated to cover $262 billion in federal contracts annually. As one might expect, the provision generated divided opinion, with Secretary of Labor Marty Walsh announcing his full-throated endorsement while construction firms have expressed their strong doubt about the proposal, which is bad as a matter of both law and economics.
There are two fatal flaws to his order. The first is that the executive order is in flat contradiction to the rules governing the formation of labor unions under the National Labor Relations Act (NLRA). The second is that the labor law defects are not cured by the general language of the Federal Property and Administrative Services Act of 1949, which at an abstract level is intended “to promote economy and efficiency.” Indeed, the entire mishmash is so far off base that employers and dissenting employees should be entitled to get a preliminary injunction so that the executive order never goes into effect at all.
Start with the key command of the executive order: each government agency “shall require every contractor or subcontractor engaged in construction on the project to agree, for that project, to negotiate or become a party to a project labor agreement with one or more appropriate labor organizations,” under a pre-hire agreement, that is, one that has to be negotiated prior to bidding. These contracts are supposed to contain safeguards against “strikes, lockouts, and similar job disruptions” and to “set forth effective, prompt, and mutually binding procedures” to resolve disputes.