On Feb. 9, the ABC-led Coalition for a Democratic Workplace and 15 employer organizations filed an amicus brief before the U.S. Court of Appeals for the 9th Circuit in Cemex Construction Materials Pacific v. NLRB, in which the National Labor Relations Board altered the union representation election process to essentially eliminate secret ballot elections in place of card check. The CDW called on the 9th Circuit to set aside and decline to enforce the NLRB’s order, which takes away employees’ right to choose representation without pressure or coercion.

The coalition wrote that the NLRB’s decision in Cemex is contrary to congressional intent by defaulting union representation to card check rather than via secret ballots and puts the burden on employers to call for an NLRB-supervised election rather than the union, as currently required. The brief also argues that the decision violates U.S. Supreme Court precedent in the Gissel case by making any unfair labor practice sufficient to support the issuance of a bargaining order against the employer, forcing the employer to recognize a union that may not have majority support from the workforce.

“The Cemex decision has upended the union representation process. Instead of workers voting via a private ballot on whether they want to unionize, unions can now coerce, intimidate and lie to workers to get them to sign authorization cards with no guarantee that a secret ballot election will ever be held,” said Kristen Swearingen, CDW chair and ABC vice president of political & legislative affairs, in a statement. “The Board pursued this policy despite the Supreme Court, federal appeals courts, and Congress all clearly stating that the secret ballot process is the only method that gives workers the privacy they need to truly vote their conscience on such an important issue.

“With this ruling, the Board has made it clear they do not want to protect workers’ privacy,” said Swearingen. “They do not want a fair and level playing field during unionization campaigns. They want to tip the scales in favor of unions at any expense, including the rights and wellbeing of workers. The Board’s Cemex decision should be set aside, and secret ballot elections should be protected at all costs.”

On Feb. 9, the U.S. Department of Labor’s Occupational Safety and Health Administration sent its Worker Walkaround Representative Designation Process final rule to the Office of Information and Regulatory Affairs at the Office of Management and Budget for final review. The rule would allow employees to choose a third-party representative, such as an outside union representative or community activist, to accompany an OSHA inspector into nonunion facilities. The review at the OIRA is usually the final step in the process before a rule is officially published in the Federal Register. ABC will be meeting with the OIRA to express its serious concerns about the rule.

On Nov. 13, 2023, ABC submitted comments in opposition to the proposed rule and urged OSHA to withdraw it. ABC also signed on to comments submitted by the Coalition for Workplace Safety and Construction Industry Safety Coalition. In a press release about the proposed rule, ABC stated that “the Biden administration is trying to revive a failed Obama-era initiative, which was bad policy then and is bad policy now. This power grab does nothing to promote workplace health and safety, and instead pushes the administration’s ‘all-of-government’ agenda to encourage unions and collective bargaining. OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results.” 

On Sept. 26, ABC joined 40 other CWS 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.  

ABC will continue to monitor this issue and provide updates as they become available.

ABC is conducting an important survey of contractor members and chapter staff to gauge opinions on the U.S Department of Labor’s controversial proposed rule, which significantly overhauls regulations for government-registered apprenticeship programs. Ensuring as many members and chapters as possible respond to this survey will be vital so ABC can provide effective, informed comments that seek regulatory clarity and push back against concerning aspects of the DOL’s proposed rule.

The proposal would make significant changes to how employer and chapter GRAPs are approved and run, adding more recordkeeping and paperwork requirements while also eliminating flexible competency-based approaches to workforce development in certain circumstances. ABC is concerned that the rule would undermine ABC and the construction industry’s investments in GRAPs, which is a key component of ABC’s all-of-the above approach addressing the construction industry’s skilled labor shortage of 501,000 in 2024 alone. ABC is a major participant in the GRAP system, with over 450 government-registered apprenticeship programs operated by chapters across the country.

For more information on the proposed rule, Apprenticeship for America has provided an overview of the rule and a section-by-section analysis of changes from the existing rule. The proposed rule’s table of contents also provides links to specific aspects of the proposal. Additionally, on Jan. 30, ABC conducted a webinar to provide insight into the proposed rule’s impact on GRAPs. A recording of the webinar is now available on the ABC Academy website.

ABC distributed the survey on Feb. 7. Please email Michael Altman at [email protected] to receive the survey link or if you have any questions. The survey will close at 11:59 p.m. ET on Feb. 22.

While the U.S. House of Representatives passed the ABC-supported Tax Relief for American Families and Workers Act last week, the bill still has an uncertain pathway in the U.S. Senate, where Republicans have taken a harder line against the proposal, calling for an amendment process. Sen. John Thune, R-S.D., said the expanded Child Tax Credit in the deal is the biggest issue for the GOP.

Key to ABC members and the construction industry are the bill’s provisions to expand innovation and competitiveness with pro-growth economic policies that include:

• Research and development expensing so businesses of all sizes can immediately deduct the cost of their U.S. R&D investments instead of over five years, supporting innovation and growth here at home.
• 100% expensing for business investment in U.S. facilities, equipment and machines.
• Increase in the maximum amount a taxpayer may expense from $1 million to $1.29 million for property placed in service starting in 2024.

View more information on the bill and committee markup here. ABC will continue to provide updates on the bill’s progress. 

The U.S. Department of Labor’s Occupational Safety and Health Administration is hosting a webinar on electronically submitting workplace injury and illness data using the Injury Tracking Application on Feb. 7 from 1-2 p.m. ET. Registration is free.

Establishments that meet certain size and industry criteria are required to electronically submit injury and illness data from their OSHA Form 300A, 300 and 301 (or equivalent forms) annually to OSHA no later than March 2. OSHA collects this work-related injury and illness data through the ITA, which also includes answers to frequently asked questions. Also, see the Protecting Personally Identifiable Information fact sheet, which  explains how establishments can avoid submitting PII through the ITA.

To determine whether you are required to submit this data, visit the ITA Coverage Application. This application only applies to establishments located in states under Federal OSHA jurisdiction. If your establishment is located in a State Plan State, please contact their OSH plan for guidance.

Background:

On July 21, 2023, the U.S. Department of Labor’s Occupational Safety and Health Administration issued its Improve Tracking of Workplace Injuries and Illnesses final rule, which undoes the ABC-supported provisions of the 2019 final rule promulgated under the Trump administration and reprises the 2016 Obama-era rule. The final rule went into effect on Jan. 1, 2024, for certain employers and OSHA intends to make much of the data it collects publicly available online.

In a press release, ABC announced its opposition to the final rule. “Unfortunately, the Biden administration is moving forward with a final rule that does nothing to achieve OSHA’s stated goal of reducing injuries and illnesses,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Instead, the final rule will force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized and misused for reasons wholly unrelated to safety, as well as subject employers to illegitimate attacks and employees to violations of their privacy.”

What does the final rule do?

• Establishments with 100 or more employees in certain high-hazard industries are required to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. They are also required to include their legal company name when making electronic submissions to OSHA.
• Establishments with 20 to 249 employees in certain high-hazard industries will continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA once a year.
• Establishments with 250 or more employees that must routinely keep records under OSHA’s injury and illness regulation will also continue to be required to electronically submit information from their Form 300A to OSHA once a year.
• The data must be electronically submitted through OSHA’s ITA.

More Information:

• OSHA fact sheet
• OSHA frequently asked questions
• OSHA news release
• OSHA Injury Tracking Application webpage
• ABC general counsel Littler Mendelson’s analysis of the final rule
• ABC’s members-only archived webinar, “OSHA Developments Affecting the Construction Industry”

In June 2022, ABC submitted comments urging OSHA to withdraw the proposed rule.

On Jan. 30, the Federal Acquisition Regulatory Council released a proposed rule, Pay Equity and Transparency in Federal Contracting.

The proposal would prohibit federal contractors and subcontractors from requesting or considering information about a job applicant’s salary history during hiring for certain positions and would also require them to publicly disclose the salary for certain positions as part of any advertisements for the job opening.

Companies would be required to comply with these provisions for any position that will perform work on or in connection with a federal contract. The rule also establishes a complaint process for job applicants to report contractor noncompliance to the contracting agency.

Comments on the proposed rule are due April 1. ABC will be analyzing the proposed rule and participating in the regulatory process.

The U.S. Department of Labor’s Wage and Hour Division recently announced a series of virtual compliance seminars to provide information on prevailing wage requirements for federally funded construction and service contracts. Each seminar will offer separate sessions focused on Davis-Bacon Act and Service Contract Act compliance.

Seminars will take place on the following dates:

• Feb. 27
• May 15
• Aug. 29

Registration via the DOL’s website is required to attend the seminars.

On Jan. 30, 2024, ABC submitted a letter requesting a 30-day extension of the comment period on the U.S. Department of Defense’s proposed rule and guidance documents implementing the Cybersecurity Maturity Model Certification 2.0 Program.

As proposed, CMMC 2.0 would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures to maintain eligibility for performing and winning new federal awards.

ABC’s letter urges the DOD to provide additional time for comments beyond the current 60-day period, considering the extensive new cybersecurity requirements that were proposed by the agency.

The new requirements would apply to all contractors and subcontractors that process, store or transmit information on contractor servers that meet the standards for Federal Contract Information or Controlled Unclassified Information. Requirements vary from a self-assessment of compliance with cybersecurity measures to triennial assessment and certification of compliance by third-party contractors or the DOD, dependent on the data involved in a specific contract. More than 200,000 companies in the defense industrial base could be affected by the rule.

On Jan. 25, 2023, ABC hosted a webinar, “Cybersecurity Maturity Model Requirements for ABC Members Doing Federal Work,” with two cybersecurity experts who provided practical tips and best practices for businesses to assess their cybersecurity readiness in advance of complying with CMMC 2.0. Additional information and resources are available on ABC’s Cybersecurity Resource Guide website.

Comments on the proposed rule are due to the DOD by Feb. 26.

To inform ABC’s comments on the proposal, ABC members are encouraged to submit feedback or questions to Michael Altman at [email protected].

The Federal Acquisition Regulatory Council’s final rule, Use of Project Labor Agreements for Federal Construction Projects, took effect on Jan. 22. The final rule implements President Joe Biden’s Executive Order 14063, which requires federal construction contracts of $35 million or more to be subjected to controversial project labor agreements.

ABC previously issued a statement condemning the anti-competitive and inflationary rule and continues to explore options for challenging and overturning the regulation, including legal action and individual procurement bid protests. Language from the final rule has already begun to be implemented on some federal solicitations.

ABC members are encouraged to flag for ABC National’s advocacy team any solicitations with PLA requirements or pro-PLA language, as well as any federal agency PLA surveys, by emailing [email protected].

Of note, the Associated General Contractors filed suit in federal court in Louisiana on Jan. 10 seeking to block the final rule.

ABC stands ready to assist members seeking to bid on large-scale federal construction contracts in compliance with the final rule. ABC has drafted a Frequently Asked Questions guide to the PLA rule and other Biden pro-PLA policies to address common contractor and stakeholder inquiries.

ABC also recently hosted a webinar on the final rule, with a recording available for ABC members.

Additionally, a Dec. 18, 2023 White House Office of Management and Budget memo, M-24-06, Use of Project Labor Agreements on Federal Construction Projects, provides guidance about how this rule should be implemented by federal agencies and may be useful for contractors bidding on these projects.

ABC members are strongly encouraged to participate in this ABC Action grassroots campaign by asking their federal lawmakers to fight the Biden administration’s pro-PLA schemes and co-sponsor the Fair and Open Competition Act (H.R. 1209/S. 537), introduced in the 118th Congress by Rep. James Comer, R-Ky., and Sen. Todd Young, R-Ind.

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, and access additional ABC resources at abc.org/pla.

The Biden administration continues to roll back Trump-era initiatives and institute new, pro-union policies that challenge ABC members’ ability to win work. ABC continues to fight against these proposed rules and regulations affecting merit shop contractors and advocate for open competition and free enterprise.

ABC’s Regulatory Roundup is updated on a regular basis and includes information about federal regulations, guidance and compliance materials from the U.S. Department of Labor, U.S. Department of the Treasury, Federal Acquisition Regulation Council, National Labor Relations Board, Federal Trade Commission, Environmental Protection Agency and Council on Environmental Quality.

Read ABC’s January Regulatory Roundup to learn more about the latest developments affecting the construction industry.