On Aug. 12, the National Labor Relations Board published a Notice of Proposed Rulemaking titled Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, which proposes amendments to the representation election regulations.

“The board believes, subject to comments, that the proposed amendments would better protect employees’ statutory right of free choice on questions concerning representation,” the NLRB said in a news release.

The board majority is proposing three amendments:

Blocking Charge Policy: Replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.

Voluntary Recognition Bar: Returning to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the National Labor Relations Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and a 45-day open period within which to file an election petition.

Section 9(a) Recognition in the Construction Industry: In the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001).

ABC’s general counsel, Littler Mendelson P.C., published an analysis with more information on the NLRB proposal.

The NLRB is soliciting feedback on the proposed rule, and the deadline for submitting comments is Oct. 11, 2019. ABC will continue to keep members informed of any developments about this proposal in Newsline.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs recently published several compliance assistance guides to provide federal contractors with resources on recordkeeping, postings and notices, technical assistance and more.

As part of the new compliance assistance resources, OFCCP released OFCCP at a Glance, which introduces contractors to the agency, its mission, the equal employment opportunity laws it enforces and more. Along with this summary, OFCCP published a guide on what general contractors can expect during their interactions with OFCCP.

Other compliance assistance resources include individual recordkeeping guides for Executive Order 11246 on Equal Employment Opportunity, Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act, as well as a guide and checklist on postings and notice requirements. 

Visit the OFCCP website for more information on these and other compliance assistance resources.

Last week, ABC’s Vice President of HSE and Workforce Development, Greg Sizemore, made a presentation to the Republican Legislative Campaign Committee on the importance of continuing workforce development reforms at the state level.

Sizemore outlined the current challenges construction contractors face recruiting, hiring and retaining the skilled workers needed to ensure the industry is in a position to meet both current demand for construction and future economic forecasts. Sizemore also briefed state lawmakers on how industry associations like ABC are stepping up to address the skilled workforce shortage by expanding outreach initiatives, awareness of career opportunities and apprenticeship programs. 

Nearly 100 state Republican legislative leaders attended the group’s national meeting in Colorado Springs, Colorado.

The RLCC is one of a handful of state political groups that ABC National belongs to that offers opportunities to share with lawmakers some of the concerns of the construction industry and the ways industry can partner with decision-makers to offer solutions. 

On June 25, the U.S. Department of Labor issued a proposed rule on apprenticeship programs that would establish a process for creating high-quality, industry-recognized apprenticeship programs by organizations that apply to become DOL recognized Standards Recognition Entities. DOL’s new release on the proposal is available here.

While the purpose of the proposal is to expand apprenticeships and close America’s skills gap, it excludes the construction industry. Under the rule, DOL would not, at least initially, accept applications from SREs that seek to recognize apprenticeship programs in construction. The reason for the initial exclusion is that DOL considers the construction industry a sector that already has significant registered apprenticeship opportunities.   

Immediately following the proposed rule’s release, ABC President and CEO Mike Bellaman commented: 

“Established industry-recognized apprenticeship programs have been utilized by the merit shop construction industry for decades to provide hardworking Americans with not just a job, but a well-paid, in-demand construction career. ABC members invested $1.6 billion in craft, leadership and safety education for more than 980,000 course attendees in 2018 alone. And ABC will continue to lead the sector in recruiting, educating and upskilling the people who build the places where we live, learn, work and play. We are still reviewing the proposed rule and look forward to providing comments illustrating why all Americans would benefit from the construction industry being included in the IRAP final rule.”

ABC is currently drafting its comment letter on the proposed rule, which will be submitted to DOL by the public comment deadline of Aug. 26.  We welcome any feedback on the proposed rule from ABC chapters and members, which can be emailed to Brad Mannion at [email protected].

We will continue to provide updates in Newsline on DOL’s apprenticeship expansion proposed rule. 

Additional information can be found at DOL’s website, apprenticeship.gov.

On July 31, the Department of Labor’s Employee Benefits Security Administration issued a final rule that would allow small and mid-sized businesses to band together and offer 401(k) plans to their employees through Association Retirement Plans. The final rule goes into effect Sept. 30, 2019.

The DOL anticipates that the final rule will enable small businesses to offer benefit packages comparable to those offered by large employers, reduce administrative costs through economies of scale and strengthen small businesses' hand when negotiating with financial institutions and other service providers.

On Dec. 21, 2018, ABC submitted comments to the EBSA in support of its proposed rule, explaining that the  proposal will provide a vehicle for millions of hard-working Americans to save for the future through ARPs. By allowing more businesses to pool together to offer 401(k) plans, ARPs will create an attractive alternative for small employers to offer high-quality benefits to their workforce and allow them to focus their time and resources on managing the day-to-day activities of their businesses.

The rulemaking came at the direction of President Trump’s Executive Order 13847, Strengthening Retirement Security in America, which ordered the U.S. secretary of labor to allow more small and mid-sized businesses to adopt multiple employer plans as a workplace retirement option.

For more information, see EBSA’s news release and factsheet.

Two graduates of ABC Pelican Chapter's Baton Rouge Training Center and one from the ABC Heart of America apprenticeship program were in Washington last week to attend the one-year anniversary celebration of President Trump’s Pledge to America’s Workers at the White House. Last year, ABC pledged to educate and upskill at least 500,000 construction workers over the next five years during the kick-off event.

Photo courtesy of the White House

Representing ABC at the White House was Tim Gros, an ISC Constructors employee and graduate of the ABC Pelican Chapter's Baton Rouge Training Center, who spent the past two years earning more electrical and instrumentation credentials to take the next step in his career, which increased his salary by 24%. Gros, who shared his personal story with presidential advisor Ivanka Trump before the event, was interviewed about his construction career and experience at the White House on Varney and Co., Fox and Friends First and NBC4i.

Another graduate of the Baton Rouge Training Center in attendance was Sharon Ramsey, who previously worked as a nurse and accountant, and completed her instrumentation education at the age of 62. She currently tutors students going through similar craft training programs and wants her story to be an example of how women can succeed in a male-dominated field. Representing the ABC Heart of America apprenticeship program was Jeff Hawk, who enrolled as an electrical apprentice in September 2018. Hawk worked as a front desk clerk in a hotel and wanted to expand his career opportunities by becoming an electrician.

In 2018 alone, ABC members invested $1.6 billion in craft, leadership and safety education, up from $1.1 billion in 2013, according to a recent survey. The 45% increase in spending resulted in nearly twice as many course attendees—more than 980,000—receiving education to advance their careers in commercial and industrial construction.

Since President Trump signed the executive order to establish the National Council for the American Worker on July 19, 2018, more than 200 companies and organizations have signed the Pledge to America’s Worker, committing to offering more than 9.9 million new education and training opportunities for American students and workers over the next five years.

On July 25, the ABC-led Coalition for a Democratic Workplace testified before a House subcommittee on the Protecting the Right to Organize Act (H.R. 2474), which would jeopardize workers’ privacy, constitutional rights and freedoms if passed. This legislation currently has 186 Democrat cosponsors and is essentially a “union boss wish list,” as Ranking Member Tim Walberg (R-Mich.) described it in his opening statement.

CDW, which is comprised of hundreds of organizations representing millions of businesses in the United States, has been leading the opposition to the PRO Act. In testimony before the Subcommittee on Health, Employment, Labor and Pensions on behalf of the CDW, G. Roger King, senior labor and employment counsel at HR Policy Association, said the bill would take the country’s labor laws backward and hurt many employers, employees and independent contractors.

There are currently 27 states that have adopted "right-to-work" laws, which guarantee workers can seek employment without fearing they will be required to join or pay dues to a union if they are hired. The PRO Act would remove these protections and effectively take away workers' right not to join a labor union. In addition, this bill would strip away workers' right to secret ballots elections, as well as their privacy rights. Forcing employers to divulge their workers' private information, like home addresses, shift schedules, telephone numbers and personal email addresses, to unions is another radical provision in the PRO Act and a fundamental breach of privacy that could lead to unwanted harassment.

You can read King’s full testimony here.

ABC supports the Highway Trust Fund Reform Act of 2019 (H.R. 3904), legislation introduced on July 24 by Rep. Virginia Foxx (R-N.C.) that would exempt federally funded or federally assisted Highway Trust Fund projects from federal Davis-Bacon requirements, known as prevailing wage. The Congressional Budget Office estimates that repealing Davis-Bacon would save the Federal Highway Administration more than $700 million a year.

Determined through an unscientific and fundamentally flawed survey process administered by the U.S. Department of Labor, prevailing wage requirements preclude a free-enterprise approach to awarding construction contracts based solely on merit and require ineffective and burdensome wage and work restrictions, which can drastically increase project costs. By eliminating Highway Trust Fund prevailing wage requirements, this legislation would ensure American taxpayers get the best possible products at the best possible price, especially when it comes to stretching tax dollars to fix our nation’s crumbling infrastructure.

“Transportation and infrastructure are key components of economic development efforts in North Carolina, and the Highway Trust Fund Reform Act would keep important road and bridge projects going in the short term while discussions continue on a long-term bill,” Rep. Foxx said. “The federal government can keep the Highway Trust Fund solvent and continue to fund important highway projects with the bill’s common-sense reforms to lower the cost of infrastructure contracts funded by the American taxpayer.”

On July 24, the U.S. House of Representatives passed the Rehabilitation for Multiemployer Pensions Act (H.R. 397) by a vote of 264-169 with 29 Republicans supporting the majority.

Advocates argue the measure is needed to protect the pensions of 1.3 million workers in certain multiemployer pension plans and prevent the collapse of the Pension Benefit Guaranty Corporation, while critics maintain the legislation is a taxpayer-funded bailout of MEPPs and does little to address the fundamental structural flaws of MEPPs.

“This legislation fails to include any reforms that would ensure responsible funding of future benefit promises or prevent a similar situation from recurring,” said Rep Virginia Foxx (R-N.C.) during the debate over H.R. 397 on the House floor. "The bill also fails to address the chronic underfunding that plagues the entire union multiemployer system and passively accepts that plan trustees and actuaries may continue to underestimate pension promises—to the detriment of workers and retirees.”

The House bill, also known as the Butch Lewis Act, was introduced by Rep. Richard Neal (D-Mass.), and a companion bill was introduced in the upper chamber by Sen. Sherrod Brown (D-Ohio).

In general, unionized construction trade contractors typically participate in a defined benefit MEPP, while nonunion contractors typically provide defined contribution plans such as a portable 401(k) retirement plan.

Lawmakers have pushed construction industry contractors and workers into MEPPs via so-called responsible contractor laws and government-mandated project labor agreements on taxpayer-funded construction projects. Nonunion contractors are typically wary of competing for contracts subject to such terms because MEPPs can expose contractors to potentially catastrophic liability and harm retirement prospects for its workforce if MEPPs fail.

If MEPPs become insolvent, they are taken over by the PBGC—an independent agency of the federal government that monitors and privately insures pension benefits in private sector defined-benefit plans such as multiemployer pension plans—and qualified individual beneficiaries may receive up to $12,870 per year in defined benefits in certain circumstances. However, because of a number of factors, including exposure to struggling MEPPs, the PBGC is projected to become insolvent around 2025, after which it will not be able to pay guaranteed benefits for insolvent MEPPs.

ABC analysis of data from the PBGC demonstrates the construction industry is responsible for almost half of the current PBGC-backed MEPP underfunding and is a primary contributor to projected future PBGC MEPP insurance program funding shortfalls.

Senate Majority Leader Mitch McConnell (R-Ky.) has not indicated whether the full Senate would take up the legislation.

ABC has not taken a position on the bill but will continue to monitor all legislative proposals concerning the PBGC and MEPPs and will continue to oppose government-mandated PLAs and other laws mandating contractor and employee participation in MEPPs.

Construction industry stakeholders interested in reviewing construction industry MEPPs in critical and declining, critical and endangered status from 2008 to Jan. 22, 2018, can search this spreadsheet or visit the DOL website on MEPPs.

On July 18, the U.S. Small Business Administration issued an interim final rule that will adjust monetary-based small business size standards for inflation to allow more small businesses to become eligible for the SBA’s loan and contracting programs.

The interim final rule lays out the new size standards by industry, which will be raised nearly 8.4% from current levels. Interested parties can view the new size standards beginning on page 34,269 in the Federal Register notice. The final rule is effective Aug. 19, 2019. SBA also invites public comment on the interim final rule, which is due Sept. 16, 2019.

According to an SBA press release, the agency is adjusting its size standards to reflect the inflation that has occurred since the last adjustment for inflation in 2014. The SBA estimates that nearly 90,000 additional businesses will gain small business status under the adjusted size standards, which could lead to as much as $750 million in additional federal contracts awarded to small businesses and up to 120 additional small business loans totaling nearly $65 million.

The SBA also recently issued a proposed rule to modify its method for calculating annual average receipts used to prescribe size standards for small businesses from a three-year averaging period to a five-year averaging period. The agency is soliciting comments on this proposal, which are are due Aug. 23, 2019.