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ABC has updated an action alert to help members tell the Federal Acquisition Regulatory Council to withdraw a controversial proposed rule opposed by ABC that would require project labor agreements on federal construction contracts of $35 million or more.

Government-mandated PLAs are anti-competitive schemes that restrict competition, increase costs, create delays and place nonunion contractors at a significant competitive disadvantage. The proposed rule would especially harm small business contractors that would be disenfranchised by the costly requirements of government-mandated PLAs

The FAR Council issued the proposed rule, Federal Acquisition Regulation: Use of Project Labor Agreements for Federal Construction Projects, on Aug. 19, which implements President Biden’s Feb. 4 Executive Order 14063 mandating PLAs on federal construction contracts procured by federal agencies.

Take action now and submit comments by Oct. 18!

More information on the executive order and proposed rule is available in ABC’s FAQ. For any questions regarding the action alert, please reach out to Michael Altman at [email protected]. 

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Comments are closed for this post, but if you have spotted an error or have additional info that you think should be in this post, feel free to contact us.

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On Sept. 29, the U.S. House Committee on Transportation and Infrastructure held a hearing, “Investing in our Nation’s Transportation Infrastructure and Workers: Why it Matters,” which covered the impacts of the American Rescue Plan Act of 2021, the Infrastructure Investment and Jobs Act of 2021 and the Inflation Reduction Act of 2022.  

Before the hearing, ABC sent a letter to the committee communicating how the ARP, IIJA and the IRA have all missed the mark on providing pathways into the construction industry for all Americans, as they have effectively prevented merit shop contractors, who employ 87.4% of the construction industry’s workforce, from having a fair chance at competing to build taxpayer-funded projects funded by these bills.

ABC’s key concern with President Biden’s executive order and proposed rule to require project labor agreements on federal construction contracts of $35 million or more, and many federally assisted projects, was echoed by several members of Congress.

In the hearing, Rep. Brian Babin, R-Texas, expressed his opposition to government-mandated PLAs, saying, “I’m very deeply concerned about our President Biden’s project labor agreements or PLA mandates, threats from the left to ensure that infrastructure funds only pay for union labor. These comments are very concerning, especially for the 87.4% of nonunion workers in construction. I have received correspondence from more than 1,000 construction companies and another letter from nearly 20 business groups that all oppose Biden’s PLA mandate. They say that PLAs discriminate against firms and workers based on whether or not their workers are union.”

Watch Rep. Babin’s statement and question on government-mandated PLAs here.

Rep. Dusty Johnson, R-S.D., also voiced concern with the Biden administration’s pro-PLA policies, noting that the vast majority of contractors have “indicated that they wouldn’t bid on a federal project that had a project labor agreement as a requirement. I look at a workforce crisis out in this country; we have a lot of big things we want to get done. We don’t have enough talented and hardworking people to get done what we want to get done.

“You got a number of outstanding firms across our country where the workers have chosen not to unionize, they have made that decision. And they are at risk. Now, this is of particular importance in my state, South Dakota, where 4% of the workers are unionized. There are simply not enough unionized shops to be able to respond to the edicts that the administration has put out, saying that some workers will be frozen out of this kind of work. It seems to me that if we are shrinking the number of firms and workers available to bid on these projects, it will by necessity increase the price of those projects at a time when inflation is already destroying the purchasing power of these federal dollars.”

Watch Rep. Johnson’s statement and question on government-mandated PLAs here.

Additionally, ABC noted the increase in nonresidential construction input prices, which are up 16.7% from a year ago and more than 40% since February 2020. On top of the significant increase in materials prices, ABC was also joined by several members of Congress opposing the new inflationary U.S. Department of Labor Davis-Bacon regulations, which will make construction more expensive and discourage participation from small businesses.

During the hearing, Rep. Beth Van Duyne, R-Texas, discussed the regulatory burden that both the public and private sector face with the implementation of complicated Davis-Bacon wage regulations, saying, “State funds have to have all of these different regulatory, federal regulatory costs on top of them. For example, the Biden administration wants to obligate every Navy grant applicant, regardless of local or state regulations, to use Davis-Bacon wage requirements … the problems associated with the implementation of Davis-Bacon Act are well documented. I’ve worked at HUD; people who worked in [the] Davis-Bacon department hated it and wanted it to go away. We’ve seen it directly and indirectly; the compliance requirements are burdensome and costly.”

Watch Rep. Van Duyne’s statement on the burdensome Davis-Bacon Act here.

In what is expected to be the last significant hearing for the retiring Rep. Peter DeFazio, D-Ore., as chairman, the committee could turn to a different focus next session if control of the House flips to Republicans, as priorities would shift to the committee’s oversight capacity.

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On Oct. 4, the General Services Administration released a Request for Information regarding the Biden administration’s “Buy Clean” initiative. The initiative calls for federal agencies to prioritize the use of American-made, lower-carbon construction materials in federal procurement as well as federally assisted projects.

The initiative identifies four materials identified as the most carbon-intensive, which agencies will prioritize low-carbon selections for:

• Concrete
• Steel
• Glass
• Asphalt

The RFI seeks to gather information on the current availability of construction materials and products with lower levels of embodied carbon, the ability of manufacturers to provide environmental product declarations and the impacts of the initiative on the industry.

Responses to the RFI are due by Nov. 3 and can be submitted via GSA’s online form.

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ABC recently updated an action alert to help members tell the Federal Acquisition Regulatory Council to withdraw a controversial proposed rule opposed by ABC that would require project labor agreements on federal construction contracts of $35 million or more.

Government-mandated PLAs are anti-competitive schemes that restrict competition, increase costs, create delays and place nonunion contractors at a significant competitive disadvantage. The proposed rule would exacerbate existing skilled labor shortages and restrict the construction industry’s workforce development initiatives.

The FAR Council issued the proposed rule, Federal Acquisition Regulation: Use of Project Labor Agreements for Federal Construction Projects, on Aug. 19, which implements President Biden’s Feb. 4 Executive Order 14063 mandating PLAs on federal construction contracts procured by federal agencies.

Take action now and submit comments by Oct. 18!

For any questions regarding the action alert, please reach out to Michael Altman at [email protected]. 

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

In June, ABC joined the Coalition for a Democratic Workplace and four 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, which 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 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 ruling conflicts with past U.S. Supreme Court precedents and rulings issued by multiple federal circuits and state high courts.

Continue to monitor Newsline for updates on this case.

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On Sept. 29, ABC joined the Coalition for a Democratic Workplace and several other organizations in urging the National Labor Relations Board 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. 

On Sept. 6, 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 whom 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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On Sept. 28, after failing to secure the support of at least 59 of his Senate colleagues, Sen. Joe Manchin, D-W.Va., requested that his efforts to attach language on federal permitting reform for energy projects be removed from the must-pass continuing resolution, ensuring smooth passage of a government funding bill ahead of the Sept. 30 deadline.

In August, Manchin, chair of the U.S. Senate Energy and Natural Resources Committee, exacted a promise from Senate Majority Leader Chuck Schumer, D-N.Y., to hold a vote on Manchin’s permitting reform priorities before the government funding deadline for his support of the Democrat’s reconciliation bill, the Inflation Reduction Act. On Sept. 21, Manchin released the text of his Energy Independence and Security Act with the intent of including the language in the continuing resolution. However, on Sept. 27, with the funding deadline looming and support for the proposal lacking, Manchin urged Leader Schumer to remove the proposal from the CR.

Manchin’s proposal would have set target timelines for NEPA reviews and court challenges while creating a rolling list of 25 energy projects that are in the “national interest,” which would require these projects to adhere to prevailing wage requirements, expanding the use of Davis-Bacon prevailing wage requirements into the private sector.

Republicans have also proposed their own permitting reform bill earlier in the month, on Sept. 12, with Sen. Shelley Capito, R-W.Va., leading 46 of her Republican colleagues in introducing the Simplify Timelines and Assure Regulatory Transparency Act.

On Sept. 27, ABC sent a letter to Capito and the Senate outlining ABC’s support for the START Act, which addresses many of the priorities of the merit shop construction industry in reforming the permitting process for critical energy and natural resource construction projects.

• The START Act codifies the ABC-supported National Environmental Policy Act regulations implemented under the Trump administration, which would modernize NEPA by creating a coordinated, predictable and transparent method for permitting. ABC will continue to oppose the Biden administration’s NEPA revisions, which would undermine the 2020 rule’s efforts to modernize the federal environmental review process.
• ABC has advocated for sensible reforms, such as One Federal Decision language included in the 2021 Infrastructure Investment and Jobs Act, to ensure that projects are completed on time and on budget while protecting communities and the environment. The START Act would codify key elements of the One Federal Decision framework for energy projects, including timely approvals for projects, permitting review schedules for projects that are no longer than two years and limitations on the page length of environmental documents. Additionally, by offering clear timelines for litigation and judicial challenges to energy project approvals, the START Act would provide certainty for contractors and developers to plan and execute projects.
• The START Act would also codify the ABC-supported Navigable Waters Protection Rule’s definition of “waters of the United States” under the Clean Water Act. 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 supports the EPA and the Corps maintaining the clear, concise definition of WOTUS implemented in the 2020 NWPR final rule so its members have the information they need to comply with the law while also serving as good stewards of the environment. The START Act would also codify the Trump administration’s Section 401 Certification Rule under the Clean Water Act to prevent state actions that unreasonably block energy projects.
• While ABC supports the Endangered Species Act’s purpose of protecting species threatened with extinction and recognizes the need for science-based, data-driven actions that conserve those species and the habitats on which they depend, much-needed reforms to the ESA have been difficult to achieve. By shortening ESA consultation timelines from 90 days to 60 while shortening thresholds for ending or extending consultation times from 150 days to 100, the START Act offers an improved pathway to more efficient permitting.

While Congress is set to pass the CR and return to the campaign trail ahead of the November midterm elections, there could be an opportunity to find compromise on a proposal to reform the nation’s permitting process. ABC will continue to advocate for critical reforms that streamline reviews and avoid unnecessary and overly burdensome considerations that cause significant delays to construction projects throughout the country, and will continue to monitor permitting reform legislation in Newsline.

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The Small Business Administration’s Office of Advocacy will host a roundtable to discuss the Federal Acquisition Regulatory Council’s proposed rule that would require federal contractors and their subcontractors to enter into project labor agreements for federal construction projects of $35 million or more. The virtual roundtable will take place on Thursday, Sept. 29, 2022, from 1-2 p.m. ET. ABC encourages all federal contractors and subcontractors to participate to make their voices heard on this critical issue.

On Aug. 19, 2022, the FAR Council proposed a rule to amend the Federal Acquisition Regulations to implement EO 14063, the Use of Project Labor Agreements for Federal Construction Projects, which increased the contract threshold from $25 million to $35 million. A PLA is defined as a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.

Ben Brubeck, vice president of regulatory, labor and state affairs at ABC, will present at the roundtable on the impact of the proposed rule on small construction companies.

Roundtable meetings are open to all interested persons, except the press, in order to facilitate an open and frank discussion about issues of interest to small business. The purpose of this meeting is to exchange opinions, facts and information and to obtain attendees’ views and opinions regarding regulatory and policy issues affecting small businesses.

The Office of Advocacy does warn that presentations made during this roundtable will not substitute for written comments directly from interested parties to the FAR Council. Written comments on this proposed rule are due on Oct. 18, 2022. If you need assistance drafting your comments, contact Michael Altman at [email protected].

RSVPs should be sent to Janis Reyes, assistant chief counsel, at [email protected]. 

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