ALERT: "Economy In Government Contracting" Executive Order
Jones Day is currently analyzing the Executive Order to assess its consistency with the National Labor Relations Act ("NLRA") and will be monitoring the FAR regulatory process. Last Term before the Supreme Court, Jones Day represented the Chamber of Commerce of the United States and others in their successful challenge to a California statute that barred employers from using state funds to speak to their employees about union-related matters. Justice John Paul Stevens, writing for the Court, reiterated that the NLRA favors "uninhibited, robust, and wide-open debate in labor disputes" and held that the California statute was preempted because it interfered with "the right of employees . . . to receive information opposing unionization." Chamber of Commerce v. Brown, 128 S. Ct. 2408, 2414 (2008) (internal quotation marks and citation omitted). The same NLRA preemption principles that the Court applied in Brown also apply to the Executive Order. In a case before the Court of Appeals for the District of Columbia Circuit, Jones Day successfully argued, again on behalf of the Chamber and others, that an executive order signed by President Clinton that would have debarred federal agencies from contracting with employers that permanently replaced striking employees was inconsistent with the NLRA and therefore invalid. See Chamber of Commerce v. Reich, 74 F.3d 1332 (D.C. Cir. 1996).
In light of Brown, Reich, and other NLRA preemption precedents, Jones Day is carefully analyzing whether the Executive Order is preempted by the NLRA.
For further information, please feel free to contact:
Willis J. Goldsmith
Michael A. Carvin
This alert is intended to provide a brief synopsis of recent developments in the law and should not be construed as legal advice.