Prounion House embraces ‘blacklisting’ in defense bill

In a series of amendments to the National Defense Authorization Act for fiscal year 2023, the House of Representatives advanced a series of unabashedly prounion positions. The most significant of the amendments bars the U.S. Department of Defense (DOD) from awarding contracts to companies with workplace violations or give preferences to unionized companies. Similar “blacklisting” provisions have been proposed—and failed—in the past.

Among the most controversial amendments are those that would prevent the DOD from contracting with “any employer” that had been found to have committed an unfair labor practice within three years of the contract award or had committed two or more violations of the Fair Labor Relations Act (FLSA) within the past five years. In light of the aggressive posture of the National Labor Relations Board (NLRB), new bases for unfair labor practices are already in the works, and more unfair labor practices are being issued under existing laws.

Much the same is true of violations of the FLSA. The uncertainty of the law and regulations involving classification of independent contractors, for example, makes this area a legal mine field, filled as much with error and inadvertence as intent. In all these cases, the cost of an administrative finding would be so high—debarment—that it would ensure lengthy litigation of even the most minor alleged violations.