As we noted this summer, on July 1, 2016, the National Labor Relations Board issued Memorandum OM 16-23 specifying that it would begin collecting data for a federal database to comply with the Fair Pay and Safe Workplaces Executive Order despite the fact that the final rule implementing the EO had not been approved. Specifically, the NLRB announced that, beginning July 1, it would request the following information from employers once the Regional Director decided to issue a complaint based on an unfair labor practice charge:

  1. Is the charged party employer a federal contractor now or in the past? If so, its Commercial and Government Entity (“CAGE”) number;
  2. The charged party employer’s Data Universal Numbers System (“DUNS”) number, if it has one;
  3. The charged party employer’s four-character DUNS number suffix (DUNS+4), if it has one; and
  4. The charged party employer’s Employer Identification Number (EIN) or Taxpayer Identification Number (TIN).

On August 24, 2016, the administration published the Federal Acquisition Regulatory (FAR) Council’s final rule implementing the EO with an effective date of October 25, 2016. However, on October 24, 2016, a federal judge in Texas enjoined the reporting requirements of the final rule pending further litigation.

Despite that injunction, on November 7, 2016, the NLRB’s General Counsel issued Memorandum OM 17-03 expressing its intent to continue collecting the four data points from employers:

On October 24, 2016, the United States District Court for the Eastern District of Texas issued an order, preliminarily enjoining implementation of key aspects of EO 13673 (Fair Pay and Safe Workplaces). While the eventual outcome of the underlying suit in that case, Associated Builders and Contractors of Southeast Texas v. Rung, Civil Action No. 1:16-CV-425, is unknown, the Agency is not proceeding with sharing information with other Agencies in the manner contemplated by the Executive Order while the injunction is in effect.

Having developed an infrastructure to collect and enter the CAGE, DUNS,DUNS+4, and EIN/TIN, and since such information is useful for internal Agency purposes, Regions should continue to request that employers, other than the United States Postal Service, complete and return Form NLRB-5554. Regions should also enter responses they receive into the NxGen electronic case-management system. The language attached should be used to solicit employers to complete Form NLRB-5554. If you have any questions regarding the foregoing, please contact your Deputy or AGC.

The memorandum, however, does not specify how the requested information is “useful for internal Agency purposes,” but the supplied transmittal language for Form NLRB-5554 suggests that the usefulness is very limited:

Greetings – The Region has made a determination to issue a complaint in the above-referenced case, absent prompt settlement. You are requested to complete the Form 5554 and submit it to the Agency, preferably through the Agency’s e-filing portal. This information will help the Agency avoid confusing similarly-named entities.

(emphasis added).