Government Affairs

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Priority Issue Briefs

Right to Work

Status

Employees in 27 states enjoy the benefits of right-to-work laws prohibiting employers from requiring employees to join unions as a condition of employment, incentivizing competition and producing a better work environment for businesses and workers. However, the ABC-opposed and House-passed PRO Act would completely reject this choice by eliminating these independently passed state laws, forcing individuals to join a specific union and forfeit a portion of their hard-earned paychecks to support the activities and influence of unions if they want a job at a unionized factory, jobsite, school or company.

According to a report issued by the American Action Forum on Aug. 13, 2021, the PRO Act’s provisions would produce significant economic costs for the nation’s 27 right-to-work states in an effort to increase union power at the expense of worker freedom and small businesses.

Desired Outcome

ABC will continue to support the right of all individuals to work without having to join a union or pay union dues or fees as a condition of employment. Right-to-work laws ensure workers have an opportunity to choose whether union representation makes sense for them and allow workers who do not want to participate in the union to opt out of joining the union or paying dues or fees. Further, right-to-work laws do not eliminate unions or outlaw the right to organize or eliminate government-mandated PLAs. ABC is supportive of the National Right to Work Act (S. 406), which would preserve and protect the free choice of individual employees to form, join or assist labor organizations or to refrain from such activities.

Salting Abuse

OVERVIEW

“Salting” abuse is the intentional placement of trained union professional organizers and agents in a merit shop facility to harass and/or disrupt company operations, apply economic pressure, increase operating and legal costs and ultimately put the company out of business.

ABC SUPPORTS
  • Legislation that would amend the National Labor Relations Act to make it clear that an employer is not required to hire any person who seeks a job primarily to organize employees or put nonunion companies out of business, or do both. This change would not infringe on any rights or protections otherwise afforded to employees under the NLRA. It would alleviate the legal pressures imposed on employers to hire individuals whose overriding purpose for seeking a job is to disrupt the workplace or otherwise inflict economic harm.

ABC OPPOSES
  • Union salting procedures that drive up costs for targeted merit shop construction companies. In defending themselves against false and frivolous charges, employers incur thousands of dollars in legal expenses, delays and lost work hours.

BACKGROUND

Salting is not merely an organizing tool—it has become an instrument of economic destruction aimed at nonunion companies. Unions send their agents into merit shop workplaces under the guise of seeking employment. Hiding behind the shield of the NLRA, these “salts” often try to destroy their employers or deliberately increase costs through various actions, including workplace sabotage and frivolous discrimination complaints with various agencies.

Frivolous salting charges cost companies significant time, money and resources, and prevent employers from hiring more employees, investing in better equipment and securing more work to grow the company and provide additional jobs in the community.

ABC will continue to work with the House Education and Labor Committee and the Senate Health, Education, Labor and Pensions Committee to educate Congress about the detrimental impacts of union salting.

Tax Reform

Status

The Democrats’ reckless tax and spend reconciliation bill, the Inflation Reduction Act (H.R.5376), which raises taxes and imposes new restrictive labor policies tied to tax incentives was signed into law on Aug. 16, 2022.

The legislation, opposed by ABC, provides more than $369 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects. Developers/taxpayers can receive a bonus tax credit 500% greater than a baseline tax credit of 6%, but this is conditioned on requirements that project contractors pay Davis-Bacon prevailing wages and utilize apprentices enrolled in government-registered apprenticeship programs. This new policy is an unprecedented expansion of Davis-Bacon and registered apprenticeship requirements/enticements onto private construction projects via the federal tax code.

Critically for the construction industry, ABC believes this bill penalizes employers that believe in fair and open competition and pay wages based on experience, quality and market rates and limits opportunities for thousands of construction workers and industry-recognized apprentices.

The bill reinstates the Hazardous Substance Superfund financing rate on crude oil and imported petroleum products at the rate of 16.4 cents per barrel, indexed to inflation. ABC is concerned that this tax would cause further increases in gas prices, utility costs and additional price spikes in petroleum-based products. Many construction materials are petroleum-based and already have seen a price increase of 100% or more over the past year.

As the U.S. economy faces recessionary trends, rising costs of doing business, and supply chain delays, adding a substantial tax burden would make it even more difficult for America’s job creators to grow their business and fully recover from the economic effects of the COVID-19 pandemic.

While supporters of the legislation have stated this bill will reduce inflation, the Penn Wharton Budget Model shows low confidence that the legislation will have any impact on reducing inflation.

ABC believes that the bill imposes anti-competitive policies that will handicap merit shop construction contractors and further jeopardize the nation’s economy at this critical time. 

On Oct. 31, an ABC-led coalition of 22 construction and energy groups sent the U.S. Department of Treasury and the Internal Revenue Service a letter requesting a 60-day extension of the Nov. 4 deadline in response to their request for comments regarding implementation of the IRA’s clean energy tax credits. Specifically, the agencies requested comments on Davis-Bacon and government-registered apprenticeship requirements for applicable clean energy construction projects. A previous extension request by ABC received no response.

On Nov. 4, ABC submitted comments in response to this notice, opposing the unnecessarily burdensome and costly Davis-Bacon and apprenticeship requirements the act would impose.

Desired Outcome

Maintaining pro-growth tax policies will be essential to ensuring the economy is able to fully recover from the COVID-19 pandemic. ABC will continue to advocate for the beneficial tax proposals included in the Tax Cuts and Jobs Act that will spur economic growth and create jobs throughout the country.

ABC will advocate for fixes to the bill’s most harmful tax and labor policies that will burden the construction industry.

 

Waters of the United States

Status

In 2019, the U.S. Environmental Protection Agency under President Trump and the U.S. Army Corps of Engineers repealed the ABC-opposed 2015 WOTUS rule and replaced it with the Navigable Waters Protection Rule.

In August 2020, following a federal court decision, the agencies halted nationwide implementation of the NWPR.

In December 2021, the agencies issued a proposed rule that would repeal the NWPR and restore the pre-2015 definition of WOTUS. ABC submitted comments urging the EPA and the Corps to withdraw the proposed rule.

On Dec. 30, 2022, the EPA and Corps issued a final rule to revise the definition of “waters of the United States” applicable to all Clean Water Act programs, repealing the ABC-supported 2020 Navigable Waters Protection Rule. ABC issued a statement on the final rule, calling it the rule a “significant step back” that will “delay critical infrastructure projects and raise costs for the construction industry.”

On Feb. 16, 24 state attorneys general filed a lawsuit against the EPA and Corps, seeking to overturn the final rule.

On Feb. 27, ABC, along with members of the Waters Advocacy Coalition, sent a letter to the U.S. House of Representatives Transportation and Infrastructure Committee supporting H.J. Res. 27, a joint resolution of disapproval under the Congressional Review Act of the revised WOTUS regulation.

On March 9, the House passed H.J. Res. 27. ABC key voted the resolution which passed by a bipartisan 227-198 vote.

On March 19, the U.S. District Court for the Southern District of Texas issued a ruling blocking the EPA and Corps from enforcing the WOTUS final rule, but only in the states of Texas and Idaho. The court separately rejected a request to block enforcement nationwide.

On March 29, the U.S. Senate passed H.J. Res. 27 in a 53-43 vote with the support of all Senate Republicans and five Democrats. President Joe Biden vetoed the resolution on April 6.

On April 12, a federal judge in the U.S. District Court for the District of North Dakota issued a ruling blocking the EPA and Corps from enforcing the WOTUS final rule. The preliminary injunction applies to Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming. This brings the total number of states blocking the WOTUS rule to 26.

On April 18, the House held a vote on overriding President Biden’s veto. ABC issued an action alert asking members to urge their member of Congress to vote in support. The veto override again received bipartisan support in a 227-196 vote but failed to meet the two-thirds threshold needed to pass.

On May 25, the U.S. Supreme Court narrowed the scope of WOTUS in its decision in Sackett v. Environmental Protection Agency by rejecting the “significant nexus test,” eliminating the costly regulatory uncertainty that has plagued construction projects around the country for decades without providing meaningful environmental protections for America’s waterways.

On Aug. 29, the EPA and Corps issued a final rule and fact sheet regarding amendments to the definition of “waters of the United States” subject to Clean Water Act regulation. This rule is aimed at bringing the January 2023 WOTUS final rule into compliance with the Supreme Court’s decision in Sackett v. EPA.

ABC noted that although the rule implements some of the key wins from the Sackett decision, it fails to fully implement the court’s opinion, including on the definition of “relatively permanent” waters, and may result in continued regulatory uncertainty.

The final rule took effect on Sept. 8, 2023, after being published in the Federal Register. The amended version of the January 2023 final rule is now in effect, except in states where it is currently blocked by a preliminary injunction. 

Desired Outcome

For decades, uncertainty surrounding the scope of federal authority under the Clean Water Act has resulted in litigation, regulatory uncertainty and confusion in the business community. ABC urges EPA and the Corps to return to the clear, concise definition of WOTUS implemented in the 2020 NWPR final rule so that its members have the information they need to comply with the law while also serving as good stewards of the environment

Workforce Development

Status

President Biden supports the  ABC-opposed National Apprenticeship Act of 2023 (H.R. 2851), which would not achieve its goal of expanding apprenticeship opportunities, as it would further restrict small businesses’ ability to access federally registered apprenticeship programs, limit job opportunities in the construction industry and create additional obstacles for the construction industry to meet future workforce demand and needs. The bill, reintroduced in the 118th Congress by Rep. Bobby Scott (D-VA), would:

  • Further enshrine the rigidity of the federal registered apprenticeship system into law;
  • Limit access to apprenticeship opportunities for hardworking Americans;
  • Directly discriminate against the industry performing on a merit shop basis;
  • Allow unions involved in a collective bargaining agreement to restrict the pool of apprentices;
  • Limit the portability of registered apprenticeship programs throughout the country; and
  • Limit the availability of many Americans in the construction industry from furthering their career.

Recent analysis of DOL data by ABC found that it would take 12 years for all federal and state construction industry government-registered apprenticeship programs to educate the more than half a million workers the construction industry needs to hire in 2023. ABC estimates that the construction industry’s federal and state registered system yielded just 45,000 completers of four-to-five-year apprenticeship programs, and just 250,000 apprentices were enrolled in all construction industry registered apprenticeship programs in 2022.

On Dec. 14, 2023, the DOL’s Office of Apprenticeship announced a proposed rule that would make significant and controversial revisions to the National Apprenticeship System.

On Dec. 18, ABC issued a press release in response to the ABC-opposed proposal.

Results from ABC’s February 2024 survey of contractors and ABC chapter GRAP providers confirmed that the proposed rule will strongly discourage GRAP participation, with 96% of respondents stating new recordkeeping and reporting requirements will make them less likely to participate in or start their own GRAP.

ABC launched an action alert via ABC’s Action Center and app that stakeholders can use to oppose this costly new rule by the DOL’s March 18 comment deadline. ABC will request feedback from affected parties and submit comments on the proposed rule to help create a final rule that can deliver value to taxpayers, the construction industry workforce and employer participants in the government-registered apprenticeship system.

On March 6, Vice President Kamala Karris and U.S. Department of Labor Acting Secretary Julie Su announced President Joe Biden’s new Executive Order  on Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums, with the stated goal of expanding the usage of government-registered apprenticeship programs by the federal government. While specific details on how these new requirements will be implemented are not yet available until a rulemaking is completed, in a March 6 statement ABC expressed concerns that any new mandates or incentives on federal contracts and grants will reduce competition from contractors that choose not to participate in the GRAP system or lack access to these programs.

Desired Outcome

ABC will continue to advocate for an all-of-the-above workforce development strategy, including industry-driven and government-registered apprenticeship programs, so workers and employers have freedom to choose the best way to provide value and help rebuild America.

ABC supports the Training America’s Workforce Act, which would allow for the federal recognition of industry and market-driven apprenticeship programs in the United States through third-party entities, approved by the DOL, to recognize and perform oversight of apprenticeship programs developed by the private sector.

On April 21, Republican Sens. John Thune, S.D., Tim Scott, S.C., Mike Braun, Ind., and Tommy Tuberville, Ala., reintroduced the Training America’s Workforce Act for the 118th Congress. This bill would expand opportunities for careers in construction, allowing for the federal recognition of industry and market-driven apprenticeship programs developed by the private sector. ABC worked closely with Sen. Thune’s office in drafting this legislation.

The legislation mirrors much of the efforts of the Trump administration’s Industry Recognized Apprenticeship Program rule. While the Trump rule explicitly excluded construction, ABC worked to ensure that the construction industry and associations like ABC, its chapters and its members are able to participate under this new proposal.

Worker Walkaround Representative Designation Process

Status

On April 1, 2024, the U.S. Department of Labor’s Occupational Safety and Health Administration issued its Worker Walkaround Representative Designation Process final rule. This rule allows two or more employees to authorize a third-party representative, such as an outside union representative or community organizer, to accompany an OSHA safety inspector into nonunion workplaces during site inspections. The final rule is effective on May 31.

Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone onto a jobsite. There simply is no business case for this final rule and no benefit during a compliance inspection.

By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law. This final rule adversely impacts employers’ rights while ignoring the rights of the majority of employees who have not authorized a union to represent them.

OSHA’s rule also poses an unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to walk a construction jobsite safely. The rule does not include any requirement that the authorized person be equipped or conduct themselves to the same standards as OSHA safety inspectors.

Further, the final rule fails to answer who is legally responsible if the third party gets injured during the inspection or harms someone else.

To learn more on the final rule, see ABC’s Newsline and press release, and ABC general counsel Littler Mendelson’s publication.

On Nov. 13, 2023, ABC submitted comments urging OSHA to withdraw its Worker Walkaround Representative Designation Process proposed rule. Read ABC’s new release on the proposed rule. ABC also signed on to comments submitted by the Coalition for Workplace Safety and Construction Industry Safety Coalition.

On Sept. 26, 2023, ABC joined 40 Coalition for Workplace Safety members in sending a letter to the U.S. House Education and the Workforce Committee’s Subcommittee on Workforce Protections, calling out OSHA for its proposed rule and the politicization of the agency that the rulemaking exemplifies. Read CWS’s press release.

On Feb. 21, 2013, OSHA issued a letter of interpretation endorsing union representatives and other nonemployee third parties accompanying OSHA inspectors on walkaround inspections at nonunion workplaces, which ABC adamantly opposed, expressing serious concerns. OSHA eventually rescinded the letter of interpretation on April 25, 2017.

Desired Outcome

ABC is deeply concerned that the Biden administration has moved forward with a failed Obama-era initiative, which does nothing to promote workplace safety and will have a substantial negative impact on the rights of employers and their employees.

OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results.

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