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ABC Newsline
On Feb. 26, ABC sent a letter calling on Congress to consider how its infrastructure investment agenda could impact merit shop contractors and the small business community during a hearing titled Moving America’s Infrastructure Forward. Convened by U.S. House of Representatives Committee on Small Business’ Contracting and Infrastructure Subcommittee, the hearing was timed to coordinate with the recent release of Democrats’ $760 billion infrastructure investment framework, the Moving Forward Framework.
In the letter, ABC urged Congress to find appropriate funding and financing for the plan, thoughtfully improve the permitting process to enable timely execution on infrastructure projects, maintain and enhance the construction workforce and safeguard a diverse supply chain. In addition, ABC advised that all contracts in a potential infrastructure package should be awarded through a fair and competitive bidding process that allows qualified union and nonunion contractors to compete on a level playing field based on merit, experience, quality and safety.
Meanwhile, the U.S. Senate is continuing the push for a bipartisan surface transportation reauthorization bill, the America’s Transportation Infrastructure Act of 2019, which would authorize $287 billion from the Highway Trust Fund over five years. The Senate reauthorization includes an ABC-supported section on workforce development that allows states greater flexibility to address surface transportation workforce development, training and education needs.
The House and Senate committees of jurisdiction are now tasked with the responsibility of crafting the legislative language and allocating funding for their respective infrastructure plans. It will require bipartisan support in order to get a bill to the president’s desk.
ABC will continue to track and report on administration and congressional infrastructure news in Newsline.
Information about the coronavirus (COVID-19) continues to be issued at a rapid pace. In order to stay up to date and access accurate information, employers are encouraged to utilize the below links.
Visit the Centers for Disease Control and Prevention website for more information on the coronavirus, including the resources below:
Visit ABC general counsel Littler Mendelson’s coronavirus webpage, which includes the resources below:
Visit the U.S. Equal Employment Opportunity Commission’s website for additional employer resources:
Visit the Occupational Safety and Health Administration’s website for interim guidance on preventing exposures and infection:
Educating employees on what is known about the virus, including transmission and prevention.
Establishing a written communicable illness policy and response plan.
Allowing employees flexible work options to help prevent the spead of illness in the workplace.
On Feb. 26, the National Labor Relations Board issued its final rule on the standard for determining joint-employer status under the National Labor Relations Act. ABC is pleased that the final rule clearly delineates and limits the types of control that would be treated as creating joint-employer status under the NLRA. In 2019, ABC submitted comments in support of the NLRB’s proposed rule, as did the ABC-led Coalition for a Democratic Workplace.
In a press release announcing the final rule, NLRB Chairman John F. Ring said, “This final rule gives our joint-employer standard the clarity, stability and predictability that is essential to any successful labor-management relationship and vital to our national economy. With the completion of today’s rule, employers will now have certainty in structuring their business relationships, employees will have a better understanding of their employment circumstances and unions will have clarity regarding with whom they have a collective-bargaining relationship.”
According to the NLRB fact sheet, the final rule does the following:
ABC Vice President of Legislative and Political Affairs Kristen Swearingen issued the following statement about key provisions in the joint employer final rule:
“Associated Builders and Contractors and our 21,000 members applaud the National Labor Relations Board’s final rule on the joint employer standard under the National Labor Relations Act. The final rule reinstates the traditional joint employer standard and provides clear criteria for companies to apply when determining status, which is especially important for industries such as construction. With further clarification of the standard, contractors will be better able to work and coordinate with multiple employers without fear of being unexpectedly and unfairly found to be joint employers.”
The final joint-employer rule will go into effect April 27, 2020.
To learn more about the joint-employer final rule, read ABC general counsel, Littler Mendelson’s analysis. Employers assessing their potential status as joint employers are advised to consult with counsel.
Additional NLRB materials can be found here.
ABC was a vocal opponent of the expanded definition of joint employer that was created by the board’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.
This article is intended for informational purposes only and does not constitute legal advice or opinion.
On Feb. 4, the Occupational Safety and Health Administration released a revised National Emphasis Program aimed at identifying and reducing or eliminating worker exposures to respirable crystalline silica in general industry, maritime and construction. The OSHA news release states that this NEP targets specific industries expected to have the highest numbers of workers exposed to silica, and focuses on enforcement of the new silica standards, one for general industry and maritime and one for construction.
Effective in June 2016, the silica final rule for construction lowers the permissible exposure limit from 250 micrograms per cubic meter of air to 50 micrograms per cubic meter of air averaged over an eight-hour day and requires contractors to follow several ancillary provisions. Construction employers were required to begin complying with the standard as of Sept. 23, 2017.
According to the OSHA press release, the following changes were made to the NEP:
OSHA will conduct 90 days of compliance assistance for stakeholders prior to beginning programmed inspections for the NEP, according to the news release.
More information on the revised NEP and the crystalline silica standards for general industry, maritime and construction can be found on the OSHA website.
Silica remains a top priority for ABC, and on Oct. 15, 2019, ABC submitted comments as part of the Construction Industry Safety Coalition on OSHA’s Request for Information on Table 1 of the agency’s Respirable Crystalline Silica Standard for Construction.
ABC will continue to keep members informed of any developments on the silica rulemaking in Newsline.
A bill introduced in the Baltimore City Council by Councilmember Shannon Sneed and Council President Brandon Scott would make sweeping changes to the City of Baltimore’s procurement laws. The proposed ordinance, File 20-0488, would impose government mandated project labor agreements on any construction contract valued at $25 million or more. The same mandate would also apply on any long-term capital improvement plan that involves construction projects at multiple locations if the total value of the project is valued at more than $15 million.
This is not the first instance where the Baltimore City Council has debated a PLA mandate on publicly financed construction projects in the city. In 2010, the Council proposed a similar ordinance that would have required PLAs on projects valued at $5 million or more. That legislation never made it into law after widespread pushback, including opposition from the Baltimore City Solicitor and minority contractors that spoke out against the discriminatory nature of PLA mandates.
If passed and signed, the law would go into effect 30 days after enactment.
On Feb. 6, the U.S. House of Representatives passed the disingenuously named Protecting the Right to Organize Act by a vote of 224 to 194. Five Republicans voted for the bill: Reps. Don Young (Alaska), John Katko (N.Y.) and co-sponsors Jeff Van Drew (N.J.), Chris Smith (N.J.) and Brian Fitzpatrick (Pa.). Seven Democrats opposed the bill, along with Rep. Justin Amash (I-Mich.): Reps. Henry Cuellar (Texas), Joe Cunningham (S.C.), Kendra Horn (Okla.), Ben McAdams (Utah), Lucy McBath (Ga.), Stephanie Murphy (Fla.) and Kurt Schrader (Ore.). ABC urged members of Congress to oppose the PRO Act, considering the vote a “KEY VOTE” for the ABC Legislative Scorecard on the 116th Congress.
Thankfully, the bill is dead on arrival in the Republican-controlled Senate, and in a veto threat, the White House said in a Statement of Administration Policy that the legislation would “take the country in precisely the opposite direction from the president’s successful deregulatory agenda, which has produced rising blue-collar wages and record low unemployment.“
The PRO Act is rife with policies that impose radical changes to settled U.S. labor law, benefiting big labor at the expense of workers’ rights and the well-being of the nation’s small businesses. A recent analysis by the American Action Forum proved the PRO Act’s economic cost would be disastrous for the economy. The provision limiting independent contractors’ rights would affect 8.5% of GDP and put up to $12.1 billion of additional annual cost pressure on employers, and the joint employer provision would cost up to $33.3 billion in lost annual output for the franchise business sector alone.
Following the passage of the PRO Act, ABC vice president of legislative and political Affairs Kristen Swearingen issued the following statement:
“This big labor wish list was passed at the expense of workers, entrepreneurs and small businesses by the Democrat-controlled House, and seeks to hamper growth of the U.S. construction sector, which supports more than 7.5 million jobs. Violating privacy rights, eliminating choice and diminishing the freedom of construction employees in order to shift the advantage toward forced unionization would fundamentally harm our nation’s businesses and curb opportunities for hardworking Americans.
"Ignoring sound policy that supports American workers and allows our economy to thrive, Democrats and some Republicans grit their teeth while supporting this bill to gain political favor with labor leaders. Thankfully, President Trump has issued a veto threat against the bill and Majority Leader Mitch McConnell will never bring this harmful legislation to the Senate floor.”
Swearingen also chairs the Coalition for a Democratic Workplace—a coalition of hundreds of organizations representing millions of businesses in nearly every industry nationwide that oppose the PRO Act.
Thad Claggett, president of Claggett & Sons Inc., has thrown his hat into the Republican primary for Ohio House District 71. Claggett is a civil engineer and a fourth-generation commercial and industrial construction contractor based in Newark, Ohio.
Claggett previously served as chair of the ABC Central Ohio Chapter and the statewide association, ABC of Ohio. His company has deep roots in the Central Ohio area construction industry dating back to 1953 when the company was founded by Claggett’s grandfather, Lloyd Claggett. Thad himself has been involved in the family business for more than 40 years.
Claggett is mounting a primary challenge against speaker-appointed incumbent Rep. Mark Fraizer in a race that has been named one of the top 10 legislative primaries to watch in Ohio this year by Cleveland.com. The winner of the primary will be a heavy favorite to win a full term this fall for House District 71, where the Republican nominee has exceeded 60 percent of the vote in every general election since 2012.
Claggett has been endorsed in the election by ABC of Ohio.
The Ohio Republican Primary is quickly approaching on March 17, and we encourage you to visit ClaggettforOhio.com to learn more about his candidacy.
ABC is excited to follow the race of yet another ABC member who is exemplifying the association’s mantra of “Get Into Politics or Get Out of Business,” and we look forward to updating you on the outcome of this important race.
The U.S. Department of Labor’s Veterans Employment and Training Service is accepting employer applications for the 2020 HIRE Vets Medallion Program Award, which recognizes employers for their efforts to recruit, employ and retain our nation’s veterans. In 2019, the program recognized 427 employers for their dedicated efforts to hire American veterans, including ABC member United Rentals. The deadline to apply is April 30.
DOL - Frequently Asked Questions about the Program:
The HIRE Vets Medallion Award is the only veterans hiring award at the federal level. Its criteria allow for the highest level of recognition for employers who are committed to veteran careers, including recruiting, employment, and retention. These employers set an example to other employers about the importance of prioritizing and encouraging successful veteran hiring and retention. The award also signals to veterans that an employer is committed to and supports our nation’s heroes.
Applications opened Jan. 31, 2020, at hirevets.gov. Applicants will complete the application form, provide chief executive officer or chief human resources officer attestation and submit it electronically. The application period will close on April 30, 2020.
HIRE Vets Medallion Awards will be awarded by employer size: large employer awards for employers with 500 or more employees, medium employer awards for employers with more than 50 but fewer than 500 employees and small employer awards for employers with 50 or fewer employees. Within each of the three employer categories, there are two levels of awards: platinum and gold.
Learn more about the program’s criteria, timeline and application fee on this FAQ page. For more information about the program and the application, go to hirevets.gov.
In control for the first time since 1993, Democratic leadership in Virginia’s General Assembly is poised to pass legislation at the expense of Commonwealth taxpayers who finance the construction and maintenance of schools, affordable housing roads, bridges, transportation projects and other infrastructure projects in disrepair. Legislation introduced by Sen. Richard L. Saslaw (SB 182) and Del. Alfonso Lopez (HB 358), will eliminate Virginia’s Fair and Open Competition statute restricting government-mandated project labor agreements, which will allow state and local governments to mandate PLAs on public works construction projects. Other bills by Sen. Scott Surovell (SB 995) and Del. Lopez (HB 1635) eliminate fair and open competition protections on Metrorail construction projects procured by the Washington Metropolitan Area Transit Authority, which would permit future PLA mandates on metro construction projects similar to the controversial failed attempt to mandate a PLA on Phase 2 of the Silver Line.
When mandated by governments, PLAs prevent nonunion contractors and subcontractors—which employ 97.8% of Virginia's construction workforce—from building and working on projects funded by taxpayer dollars. As a result, taxpayers can expect to pay 12% to 20% more on all government-mandated PLA projects.
Yesterday the Virginia Pilot published this op-ed by an ABC Virginia member in opposition to SB 182/HB 358 and in support of Virginia’s existing fair and open competition statute. In addition, legislation introduced by Sen. Saslaw (SB 8) and Del. Jennifer Carroll Foy (HB 833) would result in prevailing wage requirements on construction projects at non-market rates set by the U.S. Department of Labor, via the 1931 Davis-Bacon Act. As amended, Sen Saslaw’s SB 8 sets a threshold of $250,000 on all state construction projects. And as amended, Del. Carroll Foy’s HB 833 requires prevailing wages on all state construction projects and allows localities to pass an ordinance requiring prevailing wages on local projects.
Research suggests prevailing wage regulations increase compliance and regulatory burdens on small businesses and increases construction costs from 10% to 25%.
The net impact of both of these bills is that it will lead to tax hikes or fewer public works construction projects procured by the Commonwealth and local governments. In addition, it will needlessly increase construction costs and steer contracts to out-of-state unionized businesses and unionized workers at the expense of Virginia’s construction industry and small, women- and minority-owned businesses.
Tuesday was Virginia’s legislative crossover deadline, and all six of these bills passed their chamber of origin. Both chambers must now pass their opposite chambers’ bills by the legislative session’s sine die adjournment March 7 in order to give Gov. Ralph Northam (D) 30 days to consider the legislation.
The General Assembly is scheduled to reconvene on April 22 for the purpose of considering bills which may have been returned by the governor with a veto or recommendations for their amendment. Virginia residents can contact their lawmakers through this easy-to-use ABC grassroots campaign. Alternatively, stakeholders can communicate to lawmakers with language from this message and email it to targeted House and Senate lawmakers.
Please share this news with colleagues and friends who will be negatively impacted by these controversial bills. Together, we can make keep Virginia competitive by educating lawmakers and the public about how these bills will increase costs and hurt the Commonwealth’s construction industry and economy.
A study released in January 2020 by the Beacon Hill Institute found that Connecticut schools built under controversial government-mandated project labor agreements cost 19.8% more than schools that were bid and constructed through fair and open competition, free from PLA requirements.
The study, “The Effect of Project Labor Agreements on Public School Construction in Connecticut,” which reviewed data on 95 school construction projects from 2001 to 2019, found that those built under a PLA mandate cost $89.33 more per square foot (in 2019 prices) relative to non-PLA projects. Taxpayers would have saved $503.5 million, or more than $9.7 million per project, if PLAs had not been used.
“This study confirms what we have been saying all along: Government-mandated project labor agreements unnecessarily and significantly drive up construction costs, forcing taxpayers to pay more,” said Chris Fryxell, president of the Connecticut Chapter of the Associated Builders and Contractors. “For years, our state has struggled with fiscal and budgetary issues, including the availability of funds for construction projects. We should be looking to spend every tax dollar as wisely and efficiently as possible, and step one should be the elimination of government-mandated PLAs.”
Fryxell noted that costs are not the only consequence of PLAs— they also have the effect of discriminating against local workers and contractors, based solely on their non-affiliation with a labor union. This can also allow out-of-state union contractors to obtain Connecticut public construction work ahead of local merit shop contractors if the local unions cannot meet labor demands for a project.
“Roughly 85% of the construction industry in Connecticut chooses not to sign on with a union,” said Fryxell. “PLAs effectively prevent those local, qualified workers and contractors from getting a fair opportunity to work on public projects paid for by their own tax dollars, and that’s just wrong.”
Currently, 25 states prohibit government-mandated PLAs, but Connecticut is not among them. Fryxell urged legislators and government officials to read the report and look at the data when they make decisions on the use of PLAs.
“The latest study by the Beacon Hill Institute corroborates 2019 research in New Jersey, and previous research in California, Connecticut, Massachusetts, New York and Ohio that found anti-competitive government-mandated PLAs prevent taxpayers from getting the best return on their investment,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “There is a reason a total of 25 states have passed laws restricting government-mandated PLAs: All taxpayers deserve efficient, accountable and effective construction spending and investment in schools and infrastructure free from costly schemes that discourage competition from qualified, local workers and contractors.”
ABC has long opposed wasteful and discriminatory PLA mandates, which past academic studies have shown drive up the cost of construction projects by 12% to 20% and which discriminate against the 87.4% of U.S. construction workers who choose not to join a union.
“ABC encourages lawmakers to take the study’s findings into consideration as they deliberate legislation promoting government-mandated PLAs on public works projects,” said Brubeck. “Additionally, ABC encourages President Trump to rescind President Obama’s Executive Order 13502, which promotes costly PLA mandates on federal and federally assisted construction projects, and replace it with a common-sense policy that would guarantee fair and open competition from America’s best construction companies and create opportunities for America’s entire skilled construction workforce.”
PLAs typically ensure construction contracts are awarded only to companies that agree to recognize unions as the representatives of their employees on that job; use the union hiring hall to obtain workers at the expense of existing qualified employees; follow inefficient union work rules; pay into union benefit and multi-employer pension plans workers will never benefit from unless they meet vesting requirements; and force workers to pay union dues and/or join a union as a condition of employment.
“Opponents of government-mandated PLAs argue these controversial agreements end fair and open competition and discourage local nonunion contractors from working on projects in their own communities, which effectively limits competition during the bidding process and drives up construction costs,” said David G. Tuerck, president of the Beacon Hill Institute and co-author of the report. “Our recent study of 96 Connecticut school construction projects showed that PLAs added 19.84% to construction costs, with the result that the state spent $503 million more on those projects than it would have without the PLAs. This in accord with past studies we have done showing that PLAs consistently add more to costs or bids compared to non-PLA projects. The only possible interpretation is that PLAs are an expensive way of kowtowing to the construction unions wherever they are implemented.”
ABC members overwhelming reported that government-mandated PLAs harm their businesses, hiring and workforce development practices and ability to complete work safely, on time and on budget, according to the results of a membership survey published in 2019.
Ninety-eight percent of survey respondents said they were less likely to bid on a taxpayer-funded construction contract if the bid specifications required the winning firm to sign a PLA with labor unions, and 97% of survey respondents said a construction contract that required a PLA would be more expensive compared to a contract procured via free and open competition.