AGC is working to address the employment and labor challenges employers face in the construction industry. AGC provides members with compliance assistance resources, best practices information, timely news and a strong voice in the federal agencies, owners groups, organized labor and Capitol Hill. Throughout this web page you can find the latest rulemakings and legislative proposals in Congress and the federal agencies impacting the industry. For additional information and guidance on a vast array of labor and HR topics relevant to construction employers visit the Labor & HR Topical Resources section on the AGC website.
The National Labor Relations Board (NLRB or Board) is a federal agency charged with enforcing and interpreting the National Labor Relations Act (NLRA). The NLRA, which was enacted in 1935, establishes the right of employees to join or refrain from joining a union and governs relations between most private businesses and unions. Recently, the NLRB has made some controversial decisions as well as proposing new regulatory rules which would significantly impact the construction industry.
"Quickie Election" or "Ambush Elections"
On June 22, 2011, the NLRB issued a proposed rule that would compress the time frame between a call by a union for a vote over union representation and the election. Among the changes proposed, the rule would: shorten the time between the filing of the petition and the holding of the election, eliminate pre-election hearings, expand the information that employers must disclose about employees to include e-mail addresses and telephone numbers, and render post-election review by the Board discretionary.
AGC urged the NLRB to withdraw the "Quickie Election" rule. The rule would have a particularly difficult application and detrimental impact on the construction industry. This is due to a number of unique aspects of the industry, including the complexity of bargaining unit and voter eligibility determination, and the decentralized nature of the workplace. Regarding the proposed mandatory disclosure of employee e-mail addresses and telephone numbers, recent cases have illustrated how construction unions might misuse such information. AGC is also concerned that the proposed rule might lead to unintended consequences in the realm of increased litigation and backlash legislation.
Update: The National Labor Relations Board (NLRB or Board) has again delayed the effective date of a new regulation requiring nearly every private-sector employer to post a particular notice informing employees of their rights under the National Labor Relations Act. Amid legal challenges to the Board?s authority to issue the regulation, the Board first postponed the original effective date of Nov. 14, 2011, to Jan. 31, 2012. On Dec. 23, the Board further pushed back the date to April 30, 2012, stating that "postponing the effective date of the rule would facilitate the resolution of the legal challenges."
The rule requires businesses to post an 11-by-17-inch notice in a prominent location explaining a worker's right to bargain collectively distribute union literature and engage in other union activities without reprisal. The poster includes language explaining the legal right not to join a union. The rule also includes electronic and foreign language posting requirements for ceratin employers. An employer that fails to post the notice may be found to have committed an unfair labor practice. AGC opposed the rule because it believes that the poster should contain more balanced information, including additional information about the rights of employees who do not wish to join a union and examples of illegal union conduct along.
When complaints of unfair labor practices issued by regional directors do not lead to settlement, they typically result in a hearing before an NLRB administrative law judge. These decisions are subject to review by the NLRB. The NLRB issues several hundred decisions per year. There have been several recent controversial decisions and actions by the NLRB.
In the Lamons Gasket Company decision, the NLRB stripped workers of voting rights by ruling that employees cannot petition for a private ballot election after an employer voluntarily recognizes a union through "card check." Now, employees could be barred from challenging a union recognized through "card check" for up to a year, and far longer if the employer and union sign a contract. Every employee should have right to a secret ballot.
In the Specialty Healthcare decision, the NLRB paved the way for the formation of "micro-unions," which make it easier for unions to organize by permitting them to form smaller bargaining units that often exclude those similarly situated employees who oppose unionization. This effectively disenfranchises them. Prior to the decision, bargaining units had to include employees who share a "community of interest." Smaller units were only permissible where the employees in the proposed unit had interests that were "sufficiently distinct from those of other employees to warrant the establishment of a separate unit." In the Specialty Healthcare decision, the NLRB failed to consider the unique nature of the construction industry and the board should not apply new standards to all industries. The construction industry has unique patterns of collective bargaining and this decision could disrupt the process.
The NLRB General Counsel filed a complaint April 20, 2011 against Boeing, claiming that Boeing violated federal labor law by building a second production line for its Dreamliner at a non-union factory in South Carolina in retaliation against past strikes by the unions. The case could impact a company's ability to move operations from a pro-union state to a right-to-work state for fear of having the NLRB meddle in the decision. AGC supports legislation addressing the complaint that has been introduced in Congress.
Agencies within the Department of Labor (DOL) are charged with regulating and enforcing a variety of individual worker protections. The Obama Administration has increased the focus on enforcement activities.
A proposed rule by the Department of Labor's Office of Labor-Management Standards would broaden reporting requirements of labor relations consultants (including attorneys and associations) who conduct activities to persuade employees concerning their rights to organize or bargain collectively and of the employers who receive assistance from such consultants. The proposed rule would have a damaging impact on the construction industry due to various unique features of labor relations and labor law in the industry and due to the rule's inclusion of association-provided advice and education as "persuader" activity.
There is legislation in Congress to address recent controversial actions by the NLRB.
On June 22, 2011, the National Labor Relations Board (NLRB) proposed changes to the rules governing union elections. The changes include the speed and due process of union representation elections and the identification of bargaining units when determining interest in union representation.
The Workforce Fairness and Democracy Act, H.R. 3094, forces the NLRB to codifie protections that workers and employers have received for decades. The bill addresses the "quickie election" proposed rule and the Specialty Healthcare decision by specifically:
The bill passed the U.S. House November 30, 2011 by a margin of 235 to 188.
The National Labor Relations Board (NLRB) General Counsel filed a complaint April 20, 2011 against Boeing, claiming that Boeing violated federal labor law by building a second production line for its Dreamliner at a non-union factory in South Carolina in retaliation against past strikes by the unions. The NLRB action has created an additional layer of uncertainty over decisions made by employers who want to expand operations and bring on new employees.
The Protecting Jobs from Government Interference Act, H.R. 2587, would prohibit the NLRB from ordering any employer to relocate, shut down or transfer employment under any circumstance. AGC supports the legislation, because the Boeing complaint creates an additional layer of uncertainty over decisions made by employers who want to expand operations and bring on new employees.
In the 112th Congress, both the House and Senate have introduced legislation prohibiting PLA mandates on federal construction projects. The Government Neutrality in Contracting Act would ensure fairness in the federal procurement process and would oppose any efforts that would impose or favor the use of government mandated PLAs on federal and federally funded construction projects. There have also been three separate votes this Congress on amendments in opposition to PLA mandates, all of which have failed. For more information on legislation involving PLAs, please visit AGC’s Project Labor Agreement website.
The mission of the Office of Federal Contract Compliance Programs (OFCCP) is to enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government.
Compensation Data Collection
On August 10, 2011, the Office of Federal Contract Compliance Program's (OFCCP) issued an advance notice of proposed rulemaking (ANPRM) pertaining to non-discrimination in compensation and the creation and mandated use of a new compensation data collection tool for federal and federally-assisted contractors. While the ANPRM proposal is not presently intended to apply to construction contractors, it does inquire about whether expansion to include the construction industry is warranted.
OFCCP's proposal would create a compensation data collection tool and require federal contractors to input compensation data for employees that would later be analyzed by the agency to determine if a more in-depth audit of a contractor's pay practices is necessary.
Affirmative Action for Veterans
On April 26, 2011, the Office of Federal Contract Compliance Program (OFCCP) issued a notice of proposed rulemaking, which would implement significant revisions of the regulations governing affirmative action requirements for direct federal contractors and subcontractors with respect to protected veterans. AGC fully supports OFCCP's stated overall goal of increasing employment opportunities for covered veterans; however, AGC does not support the burdensome requirements of this proposed rule, nor does AGC believe more covered veterans will be hired as a result of the proposed requirements.
Affirmative Action for Individuals with Disabilities
On July 23, 2010, the Office of Federal Contract Compliance Programs (OFCCP) issued an Advanced Notice of Proposed Rulemaking for plans to implement affirmative action and nondiscrimination obligations of contractors and subcontractors, and to evaluate the affirmative action provisions under Section 503 of the Rehabilitation Act. While AGC agrees that individuals with disabilities must not be discriminated against, AGC's believes that the OFCCP's contemplated broad affirmative action requirement for the recruitment of individuals with disabilities may be difficult to achieve or possibly counterproductive in the construction industry.
Currently, comprehensive immigration reform appears to be stalled in Congress. However, there are attempts to pass some piecemeal legislation. Some of the more politically popular legislation introduced recently includes legislation in regards to employment verification.
On September 21, 2011, the House Judiciary Committee approved, H.R. 2885, the Legal Workforce Act. The legislation would require all U.S. employers to use E-Verify. Although E-Verify is not currently mandatory, federal contractors are required to use the system and many businesses voluntarily use the program. Nearly 290,000 American employers use E-Verify and an average of 1,300 new businesses sign up each week. The bill aims to bring certainty to the verification process by preempting states and localities from enacting their own E-Verify laws.
AGC works with owner groups, federal agencies and Capitol Hill to advance the industry. For additional information contact an AGC staff member.
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