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In proposed rules issued within one day of each other, two federal labor agencies have taken significant steps toward making union organizing easier.  While the proposed rules, if implemented, would likely have less of an effect in the construction industry – where “bottom-up” union organizing is less common – than in other industries, they still raise serious concerns about employer and employee rights for 51���� members.

While the percentage of construction craft workers represented by a union declined modestly between 2008 and 2010, the number of such workers declined substantially, according to the Construction Labor Research Council’s (CLRC) latest Union/Non-Union Trends report.  CLRC reports that unions represented 18 percent of craft workers in 2010, a decline of just two percent from 2008.  The total number of union-represented craft workers declined by 31 percent – or 342,000 workers – during the two-year period.

The Union Contractors Committee will hold two events for union contractors and their chapters on October 17, 2011, in Washington, D.C.:  an 51����-Basic Trades Forum and a Union Contractors Committee Meeting.  Chapter executives, chapter staff, and member leaders involved in collective bargaining or other labor relations matters for 51���� union contractors are invited and encouraged to attend both meetings.

On June 14, 2011, a U.S. Department of Labor Administrative Law Judge (ALJ) ruled that two affiliated companies operated as a “single entity” federal contractor, even though neither company met federal contractor status requirements independently.  This was the outcome of a case involving the Office of Federal Contract Compliance Programs (OFCCP) and Manheim Auctions, Inc., along with its subsidiary, Manheim Auctions Government Services.  As a result, the companies were jointly and individually liable for meeting the requirements set forth in the laws regulated by OFCCP, including Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans Readjustment Assistance Act.

Collective bargaining settlements reported to the Construction Labor Research Council (CLRC) between January and June of this year resulted in an average first-year wage-and-benefits increase of $0.98 or 1.9 percent.  This average is up moderately from the $0.55 or 1.1 percent average reported at the same time last year but still significantly lower than the $1.49 or 3.1 percent average reported two years ago.  As reported in CLRC’s latest Wage and Benefit Settlements Report, nine percent of year-to-date settlements included no increase at all in first-year wages and benefits, as compared to nearly a quarter of settlements at this time last year.

The Financial Accounting Standards Board (FASB or Board) at a June 29 meeting held further redeliberations of its proposal to update accounting standards related to disclosure of an employer’s participation in a multi-employer benefit plan.  The discussions are largely continuing in a direction favorable to 51���� and to the Construction Industry FASB Coalition (CIFC), of which 51���� is a member.  The original proposal – which was over broad and potentially very damaging to 51���� members that contribute to multi-employer plans – has now been significantly pared back to a compromise that should achieve FASB's goal of greater transparency but without the severe consequences for construction firms.

On July 11, 2011, 51���� submitted comments on the April 26, 2011, Office of Federal Contract Compliance Program (OFCCP) 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. 51���� fully supports OFCCP’s stated overall goal of increasing employment opportunities for covered veterans; however, 51���� does not support the burdensome requirements of this proposed rule, nor does 51���� believe more covered veterans will be hired as a result of the proposed requirements.

In recent weeks, Immigration and Customs Enforcement (ICE), a division within the U.S. Department of Homeland Security, issued 1,000 Notices of Inspection (NOI) beginning its second round of immigration audits this year. 

51���� recently met with the U.S. Department of Labor’s Wage and Hour Division (WHD) acting administrator, Nancy Leppink, who is responsible for enforcing such laws as the Fair Labor Standards Act, the Family and Medical Leave Act, the Davis-Bacon Act (DBA), and other laws that govern how wages are paid to workers.  During the meeting, 51���� explained that its members want to be in compliance with the law and asked Ms. Leppink for additional guidance and in-depth training for the often complicated and confusing wage laws, including the DBA.  As a result, the agency informed 51����, in a follow-up letter, of a new resource to assist contractors:  a video of WHD’s Prevailing Wage Conference.

On April 26, 2011, the Office of Federal Contract Compliance Programs (OFCCP) proposed significant revisions of the regulations governing affirmative action requirements for direct federal contractors and subcontractors with respect to protected veterans.  51���� requested an extension of the 60-day comment period.  While OFCCP did not fully grant 51����’s request, OFCCP did grant a 14-day extension.The proposed rule would impact all stages of federal contracting and subcontracting for construction employers.  Specifically, the proposed rule would require covered employers to:calculate and establish numerical hiring benchmarks using data contractors would have to research for the calculation;extend an offer to self-identify as a protected veteran pre-hire in addition to the current post-hire requirements;track and maintain several new data points on veteran referrals, applicants, and hires, and maintain the data for five years;sign written linkage agreements with a minimum of three veteran sources, per establishment and perform a self-critical analysis of the effectives of each;list vacant positions with employment services in the manner and format they require;create a file for every known veteran applicant and employee, to include every opportunity for which the veteran was considered (vacancy, training and promotion), and a statement outlining the reason for rejection if the veteran was not selected;conduct annual meeting and training programs for all employees and management; andperform and document annual reviews of job descriptions listing the physical and mental job qualifications for all job openings and provide an explanation regarding why each requirement is related to the job.To read more about the proposed rule, click here.Given the importance of the proposal, 51���� hosted a conference call with its HR Forum Federal Subforum to discuss the implications of the proposed rule.  As a result, 51���� felt it was necessary to submit a letter to OFCCP requesting an additional 60 days to more thoroughly review and comment on the newly proposed requirements – particularly the reporting and recordkeeping requirements.While 51���� is continuing to work on the comments that will be submitted on behalf of the industry, members are also encouraged to participate in the regulatory process by submitting comments on behalf of each company.  51���� members can ask OFCCP to exempt the construction industry from the requirements of this proposed rule or, at minimum, simplify the requirements by sending a letter to OFCCP through the 51���� Legislative Action Center (LAC).  Members can submit a copy of the pre-composed letter or make changes to the letter identifying the specific impact this rule would have on the company.  Letters will be automatically sent to OFCCP through the LAC before the new submission deadline of July 11, 2011.