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Obama Signs Executive Orders Affecting Federal Contractors, Unions

by David S. Fortney

At the end of his first full week in office, President Barack Obama took swift action to change employment and labor law. On January 28, he signed the Lilly Lebedetter Fair Pay Act, which relaxes the statute of limitation within which workers can file pay discrimination claims. On January 29, President Obama signed three executive orders that reverse Bush administration policies regarding federal contractors and unions.

Like every administration, President Obama’s will leave its mark on all significant policy areas, including labor and employment law. There are multiple means by which policy changes and shifts are achieved. Legislative changes require time and Congress’ cooperation, and new regulations take time and political will. However, there are additional means by which the administration can move very quickly to change the landscape with regard to employment policies, without the need for congressional or regulatory action. Foremost among them is the issuance of new executive orders.

Executive orders are official signed documents by which the President manages the operations of federal agencies. The issuance — or revocation — of an executive order lies within the sole discretion of the President. An executive order can be issued and revoked quite easily. The following are the executive orders President Obama signed on January 29.

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‘Beck’ executive orders
The “Beck” executive orders illustrate the ease and swiftness with which executive orders may be issued and revoked. In Communication Workers of America v. Beck, the U.S. Supreme Court held that the National Labor Relations Act (NLRA) does not permit a union, over the objections of dues-paying non-member employees, to expend funds collected from them on activities unrelated to collective bargaining activities.

On April 13, 1992, President George H.W. Bush issued Executive Order 12800, which required federal contractors to post notices in the workplace informing employees that:

Under federal law, employees can not be required to join a union or maintain membership in a union to retain their jobs. Under certain conditions, the law permits a union and an employer to enter into a union-security agreement requiring employees to pay uniform periodic dues and initiation fees. However, employees who are not union members can object to the use of their payments for certain purposes and can only be required to pay their share of union costs relating to collective bargaining, contract administration, and grievance adjustment.

In his second week in office, President Bill Clinton issued Executive Order 12836, revoking Executive Order 12800. In his third week in office, President George W. Bush issued Executive Order 13201, requiring contractors to post the same “Beck notice” that had been required by the 1992 executive order. On January 29, President Obama signed an executive order reversing that Bush policy.

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Executive orders involving project labor agreements
These executive orders followed a path similar to that of the Beck executive orders. On October 23, 1992, President George H.W. Bush issued Executive Order 12818, which prohibited federal agencies from entering into construction contracts with companies that require bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations on the same or other related construction projects.

President Clinton, in the same executive order revoking the Beck executive order, also revoked Executive Order 12818. President George W. Bush, on February 17, 2001, issued Executive Order 13202, which was identical to President George H.W. Bush’s executive order of 1992. President Obama has revoked Bush’s executive order as well.

Nondisplacement of qualified workers
On October 20, 1994, President Clinton issued Executive Order 12933, which required that successor contractors providing maintenance services on federal buildings offer employees who are covered by the predecessor contract the right of first refusal to employment under the new contract. President George W. Bush revoked that executive order on February 17, 2001. President Obama has reinstated the Clinton policy.

While these changes in federal policy may be among the first, there certainly will be additional and more significant changes in workplace policies and legislation during the Obama administration. Of course, the attorney editors at Federal Employment Law Insider will provide in depth coverage of these developments along the way.