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On Nov. 8, ABC joined the Coalition for a Democratic Workplace and six other employer organizations in filing an amicus brief before the U.S. Supreme Court to request that the court reverse the judgment of the Washington Supreme Court in Glacier Northwest, Inc v. International Brotherhood of Teamsters. The Washington Supreme Court’s decision stated that the National Labor Relations Board preempts state tort suits, allowing unions and their supporters to intentionally destroy an employer’s property while claiming to be engaged in protected concerted activity.

The ABC-led CDW issued the following statement, “There is no federal law that gives unions or their members a free pass for intentionally destroying someone else’s property. Unions, like everyone else, need to settle disputes within the confines of the law. Without property protections, local communities, workers, and businesses will suffer the collateral damage that will inevitably arise as businesses are harmed and potentially crushed by vandalism.”

Background:

In June, ABC joined CDW and other employer organizations in filing an amicus brief with the U.S. Supreme Court to request review of the Washington Supreme Court’s decision in Glacier Northwest.

The brief states that the decision “leaves employers without a remedy for the intentional destruction of their private property” and “encourages the intentional destruction of employer property.” The brief also states that the decision “upsets the balance of power in labor disputes in favor of unions willing to engage in lawless acts and against law-abiding businesses,” and will result in harm to local communities and workers. The CDW and the other organizations argued that the Washington state ruling conflicts with past U.S. Supreme Court precedents and rulings issued by multiple federal circuits and state high courts.

On Oct. 3, the U.S. Supreme Court announced it will hear the Glacier case, which will determine if employers can sue unions over damage to their property.

Learn more about the case proceedings on the U.S. Supreme Court website.

Continue to monitor Newsline for updates on this case.

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On Nov. 3, the National Labor Relations Board issued a new notice of proposed rulemaking addressing election-blocking charges, voluntary recognition and construction industry bargaining relationships. The proposal rescinds the ABC-supported 2020 NLRB final rule, which would “better protect employees’ statutory right of free choice on questions concerning representation.”

According to the NLRB, the proposed rule has three parts, each rescinding specific parts of the 2020 rule, including:

• Bringing back the “blocking charge” policy, which halts union representation or decertification elections if the union alleges the employer committed unfair labor practices until those charges are resolved;
• Eliminating the 45-day window that allows workers to challenge union representation via a secret ballot election if the employer voluntarily recognizes the union based on signed authorization cards; and
• Rescinding amendments that required unions in the construction industry to maintain proof of majority support if they want an exclusive collective bargaining relationship that is resistant to challenge.

In issuing the proposal, NLRB Chair Lauren McFerran said, “The Board believes, subject to comments, that these proposed changes will better protect workers’ ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining.”

The Republican board members, Marvin E. Kaplan and John F. Ring, dissented.

ABC will be filing comments opposing the proposed rule. Comments are due Jan. 3, 2023.

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Since August, ABC’s Free Enterprise Alliance has spent $2.7 million on get-out-the-vote campaigns and—separately—issue advocacy. Additionally, ABC PAC raised $1.7 million and contributed $1.6 million directly to federal candidates that believe in free enterprise and open competition, placing ABC among the most politically active trade associations in the nation over the 2021-2022 election cycle.

FEA was active in a total of 21 states and 30 congressional districts, including Arizona, California, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Maine, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Virginia and Wisconsin. FEA’s important issue advocacy messages were delivered to ABC members and the public via digital ads, mailers and text messages.  

FEA also powers ABC Votes, which is home to election resources for ABC chapters and members.  

FEA’s GOTV digital ads are available in English and Spanish. In addition, customized GOTV ads were produced for the following states:

FEA’s issue advocacy campaign focused on fighting for ABC’s legislative priorities, including free enterprise and an economic strategy that supports a thriving construction industry. Here are just a few examples:

Watch ads funded through the Free Enterprise Alliance on the FEA YouTube page. To learn more about FEA and contribute to its efforts, visit the FEA website.

ABC PAC has directly supported incumbents and candidates throughout the country to ensure a merit shop-friendly majority controls the U.S. House and Senate in 2023. ABC PAC has supported more than 260 campaigns, PACs, committees and state parties with its $1.6 million spend.

On Thursday, Nov. 10, the ABC National political affairs team will provide a post-election analysis and discuss key campaign takeaways from the biggest races of the year in its members-only 2022 Midterm Election Results Review webinar from 4:15-5 p.m. ET. Members will have the opportunity to ask questions on top Senate and House races across the country. Register today.

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On Oct. 5, 2022, the U.S. Department of Treasury and Internal Revenue Service issued a request for comments regarding implementation of the Inflation Reduction Act, notably on Davis-Bacon and apprenticeship requirements. The legislation, opposed by ABC, was signed into law on Aug. 16, 2022, and provides over $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.

Treasury and IRS are seeking feedback on prevailing wage, apprenticeship, domestic content and energy communities requirements under the IRA by Nov. 4, 2022. The wage and apprenticeship provisions apply to projects that begin construction 60 days after Treasury has published relevant guidance with respect to the requirements. It has been reported that Treasury intends to issue guidance by the end of the year, so this aspect of the IRA may be in effect as early as March 2023. 

On Oct. 25, ABC launched a survey to all contractor members to help inform a detailed letter in response to Treasury and IRS’s request for comments. If you did not receive the survey, please reach out to Michael Altman at [email protected] to receive the link. The survey will close at 12 p.m. ET on Monday, Oct. 31.

Apprenticeship Provisions

In order to access full tax credits, developers of qualifying projects are required to use apprentices from government-registered apprenticeship programs for at least 15% of the total labor hours of the project in 2024, which phases in at 10% for construction work beginning in 2022, 12.5% for construction work in 2023 and 15% in 2024 and thereafter. Each contractor and subcontractor employing four or more individuals on a qualifying project must employ one or more apprentices from a government-registered apprenticeship program. Of note, taxpayers who have made a good faith effort to hire qualified apprentices with respect to the construction of a project are deemed to satisfy the requirement and are eligible for the bonus rate, assuming they have also met the prevailing wage requirement when required. A good faith effort is defined as requesting apprentices and receiving a denial or not receiving a response within five business days, although Treasury is asking for feedback about this good faith effort process. 

ABC chapters and members with government-registered apprenticeship programs should prepare for new opportunities as a result of enactment of the IRA. 

Davis-Bacon Provisions

Developers seeking the full bonus credit must require contractors and subcontractors to pay laborers and mechanics employed for the construction and alteration or repair of a qualifying project an hourly prevailing wage rate set by the U.S. Department of Labor via the Davis-Bacon Act. It is unclear if Treasury/IRS or the DOL will be enforcing compliance and the additional regulatory red tape and practices that typically accompany regulations related to the DBA. Of note, the DOL is currently engaged in a total rewrite of its regulations governing enforcement of the DBA independent of the IRA, adding to the uncertainty over compliance issues. The IRS is seeking feedback on this issue.

ABC members with experience complying with the DBA may find new opportunities in the clean energy space as a result of this law. ABC chapters should consider providing additional webinars, forums and educational content around DBA compliance for membership to prepare for these changes.

Developers/taxpayers failing to comply with both of these requirements face significant and varying penalties that may undermine the value of the tax credits.

ABC is concerned the prevailing wage and apprenticeship requirements tied to the IRA’s tax incentives on clean energy projects will needlessly increase costs, harm small businesses, exacerbate the construction industry’s skilled labor shortage and expand a harmful regulatory bureaucracy to clean energy projects that will ultimately undermine America’s energy security and slow down its swift transition to clean energy.

For more details on IRA’s prevailing wage and apprenticeship requirements, see ABC’s member webinar. Please reach out to Michael Altman at [email protected] for additional information.

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On Oct. 20, ABC participated in the U.S. Small Business Administration’s Office of Advocacy virtual roundtable on the National Labor Relations Board joint employer proposed rule. ABC expressed disappointment that the NLRB is once again revising its standard for determining joint-employer status, which will cause great confusion among construction contractors, specifically small business owners.

During the roundtable, convened to gather input from small businesses on the proposed rule, ABC explained that the construction industry has long consisted primarily of specialized, separate employers who come together on specific construction projects to achieve the highest degree of productivity, while maintaining their separate status from project to project. Owners, developers, design firms, construction managers, general contractors, subcontractors and staffing agencies, to name only the most common specialties, each play unique roles in the construction process on individual jobsites. Their functions routinely overlap, but they typically remain separate entities with their own workforces.

Further, ABC stated it is unfortunate that the NLRB is taking an ax to the ABC-supported 2020 joint employer final rule. Its new proposal is a radical departure from the final rule, which focused on “direct and immediate control,” providing clear and consistent criteria for companies to apply when determining joint employer status.

The new proposal will greatly expand joint-employer liability by trying to make indirect or even just reserved, unexercised control sufficient to trigger joint employer status. This overbroad joint-employer standard will not only have an adverse impact on our member contractors, but the overall economy.

ABC concluded by stating it plans to submit comments opposing the new proposal by the comment deadline of Dec. 7.

Background:

On Sept. 6, 2022, the NLRB announced a new joint employer proposal, which would rescind and replace the ABC-supported 2020 final rule on Joint Employer Status Under the National Labor Relations Act.

ABC issued the following statement on the new proposed rule on Sept. 6:

“It is unfortunate that the Biden NLRB took an ax to the ABC-supported 2020 NLRB joint employer final rule, which provides clear criteria for companies to apply when determining status,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Today we see that the partisan NLRB proposes to greatly expand joint-employer liability under the NLRA, which will cause confusion and impose unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry. As a result, contractors may be vulnerable to increased liability, making them less likely to hire subcontractors, most of which are small businesses.”

As NLRB members Marvin E. Kaplan and John F. Ring explained in their dissent, the proposed rule “would not merely return the board to the Browning-Ferris Industries standard but would implement a standard considerably more extreme than BFI.” ABC was a vocal opponent of the expanded definition of joint employer that was created by the NLRB’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.

On Sept. 29, ABC joined the Coalition for a Democratic Workplace and several other organizations in urging the NLRB to extend the comment period to Jan. 6, stating, “Given the expansive nature of the proposed standard and the complexity of issues relating the standard’s impact on employers and other entities in different industries, employers and other parties will require more time to engage in a meaningful evaluation of the proposed standard and to formulate comments that will benefit the Board when giving further consideration to the proposed rule and during any development of a final rule.”

Additionally, CDW created a grassroots toolkit to tell the NLRB to abandon its radical joint employer standard. The toolkit provides an explanation of the rulemaking and a ready-to-send letter to the board explaining why the standard would be disastrous.

In a press release issued on Oct. 14, the National Labor Relations Board announced it is extending the comment deadline on the joint employer proposed rule from Nov. 7 to Dec. 7 in order to allow sufficient time for parties to file initial comments.

In 2019, ABC submitted comments in support of the Trump-era NLRB’s proposed rule, as did the ABC-led CDW.

To learn more about the new NLRB proposal, read ABC general counsel Littler’s analysis, NLRB Proposes New Joint-Employer Standard That Would Dramatically Expand Scope of “Joint Employment” Under the National Labor Relations Act.

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On Oct. 25, the U.S. Department of Labor’s Wage and Hour Division announced it is extending the comment deadline on the ABC-opposed independent contractor proposed rule from Nov. 28 to Dec. 13 in order to allow sufficient time for parties to file initial comments.

On Oct. 19, ABC urged the DOL to extend the comment period by 60 days, stating, “ABC represents a large number of contractors and subcontractors who will be significantly impacted by this new proposed rule. Due to the complexity of the issues included in the 58-page proposal, the current 45-day comment period does not allow sufficient time for ABC to fully analyze the rulemaking as well as effectively communicate the broad scope of issues with its members before providing comments.”

ABC plans to submit comments opposing the new proposal, and members are encouraged to do so as well. 

Background:

On Oct. 11, the DOL announced a new proposal to rescind and replace a commonsense, ABC-supported 2021 final rule on independent contractors.

ABC issued the following statement in response to the DOL’s announcement:

“ABC is deeply disappointed that the Biden DOL is moving forward with a proposed rule that will disrupt legitimate independent contractors, which are an essential component of the construction industry,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Independent contractors provide specialized skills, entrepreneurial opportunities and stability during fluctuations of work common to construction. Rescinding the commonsense 2021 final rule will increase the confusion and litigation chaos that has bedeviled the regulated community for years. Any effort by DOL to undermine the use of independent contractors in the rulemaking will likely be challenged by ABC and other stakeholders.”

ABC is one of the co-plaintiffs that successfully sued the Biden administration’s DOL for attempting to delay and rescind the commonsense 2021 independent contractor final rule. Under the March 2022 decision issued by the U.S. District Court for the Eastern District of Texas, the 2021 final rule went into effect as scheduled on March 8, 2021, and is currently in effect.

To learn more about the DOL’s new proposed rule, see ABC general counsel Littler Mendelson’s analysis.

Continue to monitor Newsline for future updates.

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Associated Builders and Contractors has submitted more than 40 pages of comments to the Federal Acquisition Regulatory Council calling on the Biden administration to withdraw a controversial proposed rule that would require anti-competitive and inflationary project labor agreements on federal construction contracts of $35 million or more.

ABC’s opposition is joined by more than 50 members of the U.S. Senate and House, 18 Republican governors and a diverse coalition of construction industry, small business and taxpayer advocates urging the administration to withdraw President Biden’s Feb. 4 Executive Order 14063, the Aug. 19 proposed rule and additional policies promoting PLA mandates on federal and federally assisted construction projects. Government-mandated PLA schemes needlessly increase costs and exacerbate the construction industry’s skilled labor shortage of 650,000 because they exclude almost nine out of 10 of America’s construction workforce from participating in critical infrastructure projects.

“ABC calls for the immediate withdrawal of this illegal proposed rule and its imposition of anti-competitive and inflationary government-mandated PLAs on federal contracts,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “PLA mandates undermine economy and efficiency in federal contracting, increase construction costs by 12% to 20%, create project delivery delays and discriminate against nonunion contractors and workers, who comprise 87.4% of the construction workforce.

“The Biden administration’s rule will only exacerbate significant headwinds the U.S. construction industry faces: severe supply chain disruptions, unprecedented materials cost inflation of 40.5% since the onset of the COVID-19 pandemic, declining investment and a widespread skilled workforce shortage,” said Brubeck. “ABC strongly urges the FAR Council to immediately withdraw the proposed rule to efficiently provide taxpayers with the best possible construction product at the best possible price and provide all construction industry stakeholders with a fair opportunity to compete for taxpayer-funded construction projects.”

ABC identified numerous problems with the proposed rule:

• Government-mandated PLAs required by the proposed rule will increase costs and reduce competition by deterring the majority of construction contractors and their employees, including small and disadvantaged businesses, from bidding or performing work on government contracts.
• PLA mandates force contractors to replace most or all existing employees with workers from union hiring halls and require companies to obtain apprentices from union apprenticeship programs, undermining workforce development strategies.
• PLA mandates force employees to join a union and/or pay union dues/fees as a condition of employment and force contractors to pay employee benefits into union plans, exposing workers to wage theft of 34% of their paychecks and employers to significant multiemployer pension plan liabilities.
• PLA mandates are likely to decrease hiring of local, minority, women, veteran and reentering construction workers and small, minority, women, veteran and disadvantaged business enterprises.
• This proposed rule violates numerous federal laws, including the Competition in Contracting Act, the Congressional Review Act, the Federal Property Administrative Services Act, the Administrative Procedure Act and the Small Business Act and will expose the Biden administration and federal construction projects to costly litigation.

If finalized, this proposal will replace President Obama’s 2009 Executive Order 13502, which encourages, but does not require, federal agencies to mandate PLAs on large-scale federal construction projects exceeding $25 million in total value on a case-by-case basis, and permits states and localities to mandate PLAs on federally assisted projects. The Biden administration expects its proposed rule to affect about 120 federal contracts valued at $10 to $14 billion per year.

At least 2,500 ABC member contractors across the country submitted comments opposed to this proposed rule during the 60-day comment period. According to a September 2022 survey of ABC contractor members, 98% oppose this proposed rule. Additionally, 97% said a construction contract that required a PLA would be more expensive compared to a contract procured via fair and open competition, 99% 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 respondents said that government-mandated PLAs decrease economy and efficiency in government contracting.

ABC strongly supports the Fair and Open Competition Act (S. 403/H.R. 1284), introduced by Sen. Todd Young, R-Ind., and Rep. Ted Budd, R-N.C, which prohibits government-mandated PLAs on federal and federally assisted projects and helps taxpayers get the best possible product at the best possible price.  

Members of the U.S. House and Senate supportive of this legislation have written letters to the White House in opposition to anti-competitive pro-PLA policies championed by the Biden administration.

Currently, 24 states restrict government-mandated PLAs on state, state-assisted and local construction projects to some degree. Governors also filed comments with the FAR Council and, in April, expressed disappointment in White House efforts to push PLAs on federally assisted construction projects through infrastructure grant programs administered by federal agencies.

To learn more about how corrupt government-mandated PLAs rig the competitive bidding process, hurt taxpayers and endanger plans to rebuild America’s infrastructure, visit BuildAmericaLocal.com.

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On Oct. 13, ABC submitted a comment letter the U.S Department of Labor’s Office of Management and Labor Standards regarding its proposed revisions to the LM-10 Employer Report form. Employers must file this form with the OLMS to disclose certain payments, expenditures, agreements and arrangements, including the hiring of outside labor relations consultants to help inform their employees regarding union organizing or collective bargaining, known as “persuader activities.”

The proposed revision would add a checkbox to the form for employers to disclose whether they are a federal contractor, as well as identifying information and the federal agency or agencies contracted for.

ABC opposed the proposed revision, arguing that the OLMS intends to improperly create a chilling effect on lawful persuader activities through this new disclosure requirement and has not demonstrated a need for the requirement to enforce the existing prohibition of federal funding for persuader activities.

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An ABC-led coalition of more than 20 organizations and associations representing thousands of companies employing millions of workers in the construction industry submitted a comment letter in opposition to the Federal Acquisition Regulatory Council’s Aug. 19 proposed rule implementing President Biden’s Feb. 4 Executive Order 14063 requiring controversial and inflationary project labor agreements on federal construction contracts of $35 million or more in total value.

According to the comment letter:

“The proposal will injure competition and increase costs on taxpayer-funded construction contracts included in the Infrastructure Investment and Jobs Act of 2021 and other measures passed by Congress that fund public works contracts without government-mandated PLA requirements or PLA preferences.

“In short, hardworking taxpayers are getting less and paying more when PLAs are mandated by the government on federal construction projects. In addition, PLA requirements will exacerbate the construction industry’s 2022 projected skilled labor shortage of nearly 650,000 workers, reduce competition from experienced contractors and undermine the federal government’s mission-critical infrastructure needs by preventing strong participation from businesses and construction workers directly harmed by anti-competitive and costly pro-PLA policies.

“Because the proposal cannot be salvaged, our coalition asks the FAR Council to scrap the proposal in its entirety. In addition, we call on the Biden administration to abandon its inflationary policies independent of the proposed rule which use infrastructure grant programs administered by federal agencies to push PLA mandates and preferences on federally assisted construction projects procured by state and local governments. In place of these controversial and inflationary policies, we call on the Biden administration to promote inclusive, win-win policies that welcome all of America’s construction industry to compete to rebuild our nation’s infrastructure, increase accountability and reduce waste and favoritism in the procurement of federal and federally assisted construction projects.

“Ensuring fair and open competition on taxpayer-funded construction projects will ultimately result in savings to taxpayers, more jobs, more opportunities for all qualified small, minority- and women-owned businesses in the construction industry and the completion of more infrastructure projects built by quality contractors and construction workers safely, on time and on budget.”

The coalition’s website, BuildAmericaLocal.com, features a grassroots campaign and a number of educational resources such as studies, op-eds, letters, talking points and a social media kit exposing problems with government-mandated PLAs and the Biden administration’s policies promoting anti-competitive and inflationary PLA schemes.

ABC strongly opposes the proposal and is submitting its own detailed comments to the FAR Council in opposition to the rule and has created an ABC Action grassroots action alert to help members submit their own comments to the FAR Council. The deadline to submit comments to the FAR Council is 11:59 p.m. ET on Tuesday, Oct. 18.

For any questions regarding the FAR Council’s proposal, please review this FAQ document on Executive Order 14063, updated on Oct. 3, or reach out to Ben Brubeck at [email protected]. For questions about the action alert or filing individual comments, please reach out to Michael Altman at [email protected]. 

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On Oct. 6, the U.S. Small Business Administration’s Office of Advocacy announced that it is hosting a virtual roundtable to gather input from small businesses on the National Labor Relations Board’s joint employer proposed rule on Thursday, Oct. 20, from 1-2:30 p.m. ET. ABC plans to participate in the roundtable. ABC members interested in attending are encouraged to RSVP to [email protected] to receive participation details.

In addition, the ABC-led Coalition for a Democratic Workplace created a grassroots toolkit to tell the NLRB to abandon its radical joint employer standard. The toolkit provides an explanation of the rulemaking and a ready-to-send letter to the board explaining why the standard would be disastrous.

Further, on Sept. 29, ABC joined CDW and several other organizations in urging the NLRB to extend the comment period for the joint employer proposed rulemaking.

The letter to the NLRB requests an additional 60 days to Friday, Jan. 6, stating, “Given the expansive nature of the proposed standard and the complexity of issues relating the standard’s impact on employers and other entities in different industries, employers and other parties will require more time to engage in a meaningful evaluation of the proposed standard and to formulate comments that will benefit the Board when giving further consideration to the proposed rule and during any development of a final rule.”

The current deadline for the public to submit comments is Nov. 7. ABC plans to submit comments opposing the new proposal, and members are encouraged to do so as well. 

Background:

On Sept. 6, 2022, the NLRB announced a new joint employer proposal, which would rescind and replace the ABC-supported 2020 final rule on Joint Employer Status Under the National Labor Relations Act.

ABC issued the following statement on the new proposed rule on Sept. 6:

“It is unfortunate that the Biden NLRB took an ax to the ABC-supported 2020 NLRB joint employer final rule, which provides clear criteria for companies to apply when determining status,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Today we see that the partisan NLRB proposes to greatly expand joint-employer liability under the NLRA, which will cause confusion and impose unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry. As a result, contractors may be vulnerable to increased liability, making them less likely to hire subcontractors, most of which are small businesses.”

As NLRB members Marvin E. Kaplan and John F. Ring explained in their dissent, the proposed rule “would not merely return the board to the Browning-Ferris Industries standard but would implement a standard considerably more extreme than BFI.” ABC was a vocal opponent of the expanded definition of joint employer that was created by the NLRB’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.

In 2019, ABC submitted comments in support of the Trump-era NLRB’s proposed rule, as did the ABC-led Coalition for a Democratic Workplace.

To learn more about the new NLRB proposal, read ABC general counsel Littler’s analysis, NLRB Proposes New Joint-Employer Standard That Would Dramatically Expand Scope of “Joint Employment” Under the National Labor Relations Act.

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