We are pleased to let you know that the next DMCC Annual Meeting has been scheduled for Thursday, March 21^st from 3:00-5:30PM. The meeting will be held at the Master Builders of Iowa headquarters (ELEVATE Business and Events Center) at 4100 Westown Parkway, West Des Moines, IA. 

DMCC members and all signatory contractors in Central Iowa are invited to attend. Newly elected Des Moines Mayor Connie Boesen will join us for a meet and greet. 

PLEASE RSVP BY CLICKING HERE

As many DMCC members know, discussions with signatory trades will begin in April. You are encouraged to review those contract expiration dates on our website here: https://www.dmcc.build/contract-expiration-dates. Additionally, by attending our quarterly meeting, you’ll have an opportunity to join the discussion about the upcoming negotiations.  

President Lacks Legal Authority to Impose Such Sweeping Labor Policy, Especially When the Government’s Own Data Shows Imposing Project Labor Agreements Fail to Produce Contracting Efficiencies, Association Notes

The Associated General Contractors of America and its Louisiana AGC chapter filed suit today in federal court to block the Biden Administration’s unlawful effort to mandate project labor agreements for major federal construction projects. Association officials noted that President Biden lacks the legal and constitutional authority to impose such sweeping labor policies that undermine current labor agreements for union firms and discriminate against open shop contractors.

“This new regulation is an unlawful solution in search of a nonexistent problem,” said Stephen E. Sandherr, the chief executive officer of the Associated General Contractors of America. “Current law prohibits the president from unilaterally imposing labor and employment terms that would disrupt existing agreements for union contractors and exclude open shop firms from competing for federal projects.”

The association and its chapter filed the lawsuit in the U.S. District Court for Western Louisiana in response to the administration’s efforts to implement the new project labor agreement regulation. This regulation seeks to impose what are known as project labor agreements for all federal construction projects that are valued at or above $35 million. Government-mandated project labor agreements require a contractor to negotiate with unions – regardless of whether they have ongoing relationships with those unions – and gives the unions immense leverage to set the terms and conditions of agreements because the contractor is required to have an agreement as a condition of being awarded the project. This allows unions to impose more costly work rules and practices.

In its legal filing, the association noted that the president’s project labor agreement regulation is beyond the scope of executive authority. Current laws governing federal procurement do not provide the president with the authority to impose labor policies as a precondition for securing projects. The complaint also notes that the regulation contradicts, among other things, the Procurement Act, the Competition in Contracting Act and the National Labor Relations Act in terms of limits that can be placed on competing for federal work and decisions of requiring union participation in the workforce.

The association also noted that an analysis it conducted of federal procurement data since President Obama issued an executive order required federal agencies to “consider” imposing project labor agreements found that federal procurement officials disfavor PLAs. Specifically, in 99.4 percent of federal defense-related construction projects, procurement officials found no benefit to mandating a project labor agreement. This analysis is backed up by the administration’s own analysis, stating that only 12 PLAs were used out of a possible 2,000 eligible federal projects.

The association is seeking to have the court order the administration to halt its efforts to impose the president’s new project labor agreement mandate. In requesting the court action, the association noted that, without legal intervention, the new and unlawful regulation would undermine existing collective bargaining agreements for union contractors, prohibit open shop construction firms from competing for federal projects and reduce efficiencies in the delivery of federally funded infrastructure projects. The association does not oppose project labor agreements that are voluntarily negotiated between employers and unions, however.

“This regulation punishes firms that have already entered into a collective bargaining agreement with construction unions, discriminates against open shop firms and their employees and deprives taxpayers of the benefits of open competition,” Sandherr added.    

On October 31, 2023, the National Labor Relations Board (NLRB) and OSHA announced the signing of a Memorandum of Understanding (MOU) to coordinate investigations and enforcement actions between the two agencies. This coordination between agencies is nothing new for the NLRB. The agency has also signed MOUs with the Wage and Hour Division and the Office of Labor-Management Statistics. These actions all are consistent with NLRB General Counsel Jennifer Abruzzo’s stated goal of taking a “whole government approach” to enforcement of the National Labor Relations Act (NLRA).

The enhanced cooperation between the NLRB and OSHA called for under the MOU has consequences for employers regarding their enforcement risk and their ability to consent — or refuse to consent — to a compliance safety and health officer’s (CSHO) inspection scope. OSHA has the authority to conduct workplace safety/health inspections in limited circumstances, which generally include imminent hazards, complaints, accidents that result in serious injury or death, referrals or inspections pursuant to an emphasis program. NLRA compliance is not listed. 

The MOU specifically provides that “The NLRB and OSHA may share, either upon request or upon the respective agency's own initiative, any information or data that supports each agency's enforcement mandates, whether obtained during an investigation or through any other sources to the extent permitted by law.” The only way OSHA gets labor law information is by looking for it during an inspection. Ordinarily, an employer who has consented to an inspection still may object to an expansion of that investigation beyond the purpose for which it was initiated. 

But CSHOs question employees in private. As such, employers may not even know that OSHA is seeking NLRA-related information during the site visit. In this manner, OSHA will be able to obtain information that the NLRB would not be able to obtain directly and could do so in a manner that bypasses an employer’s rights to object to an expanded investigation. 

The MOU also provides that “in appropriate cases and to the extent allowable under law, the agencies will determine whether to conduct coordinated investigations and inspections, where doing so would facilitate and not delay enforcement action.” This language could incentivize employees and/or unions to simultaneously file unfair labor practice charges along with OSHA complaints. Of course, such dual filings may be legitimate, but sometimes, they are not. They are part of a strategy to put pressure on an employer for a different purpose completely unrelated to safety and health. 

In addition, the MOU places government officials in the position of interpreting laws and regulations that are outside of their expertise. The MOU directs OSHA to counsel employees who have failed to meet OSHA deadlines for 11(c) retaliation claims to file unfair labor practice charges with the NLRB. The NLRB has a longer time period within which to file unfair labor practice charges than the time period within which OSHA retaliation claims must be filed. 

And the NLRB will likewise “promptly share with OSHA information related to workers currently or likely exposed to safety hazards or suspected violations that OSHA enforces and/or encourage affected individual(s), representatives or labor organizations to promptly contact OSHA.” The MOU directs the agencies to conduct reciprocal training for their employees on labor and workplace safety laws to help implement the MOU.

Finally, the MOU reinforces the growing movement by OSHA to expand union rights in the workplace, and the NLRB’s efforts to curb employer abuses under the NLRA that are particular to workplaces in which safety issues are prominent. This movement began in August 2023 when OSHA announced a proposed rule that would allow an outside third party selected by employees to accompany an OSHA CSHO during a “walk around” of the worksite conducted as part of an OSHA inspection.

By way of background, current regulations specify that a CSHO can be accompanied during these inspections by an employee representative or a third-party representative with specialized safety knowledge. However, under the proposed rule, employees may select any third-party representative so long as their participation is reasonably necessary to the inspection. If this rule is implemented in its current form, employees may designate a third-party union official to serve as their walkaround representative even if the union does not represent the relevant employees in collective bargaining or has any safety experience.

Since the MOU, the NLRB and OSHA issued a joint handout to accompany the MOU which specifically notes the NLRB’s emphasis on recognizing unlawful employer-dominated labor organizations under the NLRA. Section 8(a)(2) of the NLRA prohibits the formation of “company unions” or similar groups created or supported by an employer to allow employee participation in workplace decisions. This lesser-known section of the NLRA can have particular relevance concerning employee safety committees, which are one type of employer-supported employee group that could run afoul of labor law.

If an employer creates, funds and selects employees to participate in an employee safety committee, the NLRB could determine that the group qualifies as an employer-dominated labor organization. Safety committees are encouraged and, in some states, required by OSHA. Further, such committees can play an important role in continuous safety improvement at a worksite. The MOU increases the risk that issues related to safety committees could reach the NLRB and put employers in legal jeopardy for legitimate, good-faith efforts to enhance workplace safety.

Employers without any union activity at their sites may not see much impact from the MOU. But at sites with active or percolating union activity, this MOU could be impactful. Employers should be sure they know their rights under both the Occupational Safety and Health Act and the National Labor Relations Act so that they will be prepared.