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2017 ABC National Chair Chuck Goodrich’s op-ed calling on Congress to pass the Fair and Open Competition Act (H.R. 1552/S. 622) was published in The Hill on April 10. This ABC-priority legislation would allow America’s entire construction workforce—including the 86 percent of the private construction workforce that has chosen not to join a labor union—to compete on a level playing field by ensuring that taxpayer-funded construction cannot be subjected to costly and discriminatory government-mandated project labor agreements (PLAs).

 “Gaylor Electric’s 1,100 skilled employees and their families benefit from opportunities provided by fair and open competition on public works projects,” wrote Goodrich. “However, the government undermines our ability to fairly compete for contracts subject to government-mandated PLAs because it forces us to hire unfamiliar workers instead of the key ingredient that makes our company a safe and efficient industry leader.”

The bill, introduced by Rep. Dennis Ross (R-Fla.) and Sen. Jeff Flake (R-Ariz.), and would ensure that PLAs cannot be mandated in order to perform federal or federally-assisted construction projects. It was reported favorably out of the U.S. House Oversight and Government Reform Committee March 28. It currently has 35 co-sponsors in the U.S. House of Representatives and two in the U.S. Senate.

ABC is encouraging members to call on their representatives in Congress to co-sponsor the Fair and Open Competition Act. Members can voice their support through the ABC Action Center or through the ABC Action app on iPhone and Android devices.

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On April 10, Judge Neil Gorsuch was sworn in as an associate justice of the U.S. Supreme Court after being confirmed by a vote of 54 – 45 in the U.S. Senate. ABC supported his confirmation. The vote was along party lines; however, three Democrats, Sens. Joe Manchin (W.V.), Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.), voted with the Republican majority to confirm Judge Gorsuch.

Faced with a Democratic filibuster, Senate Majority Leader Mitch McConnell elected to change Senate rules and invoke the “nuclear option,” which allowed Judge Gorsuch to be confirmed by the Senate with a simple majority of 51 votes instead of a supermajority of 60 votes.  The confirmation of Judge Gorsuch will put nine justices on the U.S. Supreme Court, which has been operating with only eight justices since the death of Justice Antonin Scalia in February, 2016.

ABC sent a letter to members of the Senate Judiciary Committee April 3 urging them to swiftly approve the nomination of Judge Gorsuch to the Supreme Court, and the committee voted 11 – 9 to send the nomination to the full Senate. Following the committee vote, ABC sent a letter to members of the full Senate on April 5 urging them to vote yes on cloture to prevent a Democratic filibuster and ensure that the Senate had the opportunity to vote on Judge Gorsuch’s nomination. Although the vote on cloture failed, Judge Gorsuch was confirmed to the Supreme Court by a simple majority after the Senate rule change. 

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On April 6, the Occupational Safety and Health Administration (OSHA) announced they were delaying enforcement of the silica standard as it applies to the construction industry to September 23, 2017. The standard was set to go into effect June 23, 2017. 

On March 10, 2017, the ABC-led Construction Industry Safety Coalition (CISC) sent a letter to the acting secretary of Labor requesting that the department delay enforcement of OSHA’s final silica rule by one year. 

ABC along with several national construction organizations are challenging the rule in the U.S. Court of Appeals for the D.C. Circuit. ABC will continue to update members on any developments regarding the legal challenge through Newsline.  

For more information on the Silica Final Rule: 

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ABC urged Senators to vote to avoid a partisan filibuster and ensure that the U.S. Senate has the opportunity to vote on Judge Neil Gorsuch’s nomination for the U.S. Supreme Court. ABC also informed Senators that it will consider the vote a key vote for its 115th congressional scorecard.

In a letter, ABC highlighted Judge Gorsuch’s judicial record and confirmation by the U.S. Senate for previous appointments saying, “with a strong record of judicial integrity and respect for the Constitution, Judge Gorsuch is an exceptional choice to serve on the Supreme Court, and we applaud the Trump Administration for his nomination. Given that Judge Gorsuch’s appointment to the 10th Circuit Court of Appeals on July 20, 2006, was approved by voice vote without opposition, we believe there should be bipartisan support for his nomination to serve as an associate justice of the Supreme Court.”

ABC is encouraging all members to call on their senators to vote to avoid a filibuster on Judge Gorsuch’s nomination. Members can take action through the ABC Action Center or through the ABC Action App on both iPhone and Android devices.

Filling the vacancy on the Supreme Court is one of ABC’s top priorities for the Trump Administration, and we encourage the Senate to act quickly to restore the court to its full strength. ABC praised Judge Gorsuch’s nomination when he was announced earlier this year.

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ABC commended President Trump for signing a resolution into law eliminating the Obama administration’s controversial “Volks rule” (formally known as Clarification of an Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness final rule). Congress passed the resolution through the Congressional Review Act (CRA).

“The Volks rule, finalized by the Occupational Safety and Health Administration (OSHA) under President Obama, imposed a massive paperwork burden on contractors without improving jobsite safety,” said ABC Vice President of Legislative and Political Affairs Kristen Swearingen. “Associated Builders and Contractors members value workplace safety and regulations based on sound evidence; however, OSHA’s rule directly contradicted the Occupational Safety and Health Act and the U.S. Court of Appeals decisions. ABC looks forward to continuing to work with OSHA to develop standards that include real-world input from contractors and accomplish the agency’s important goal of improving jobsite safety without unduly burdening job creators.”

Under the Occupational Safety and Health (OSH) Act, contractors are still required by OSHA to maintain injury and illness logs for five years. The CRA resolution (H.J. Res. 83), does not change contractors’ responsibility to maintain injury and illness logs, however, it limits OSHA’s ability to retroactively cite contractors for past incidents to the six month statute of limitations set by the OSH Act and multiple U.S. Court of Appeals decisions.

ABC sent letters to members of the U.S. House of Representatives and U.S. Senate ahead of the CRA resolution votes on the Volks rule urging them to support the resolution and informing them ABC would consider the vote a key vote on its 115th Congressional Scorecard.

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On Jan. 9, 2017, the Occupational Safety and Health Administration (OSHA) issued a final rule on beryllium exposure. The construction industry is included in the final rule; this was expanded from the proposed rule, which focused on general industry. Beryllium is a lightweight but strong metal used in a number of industries.

The final rule points directly to the construction task of abrasive blasting operations which use slags that contain trace amounts of beryllium. More information on the final rule can be found on OSHA’s website. 

The agency has delayed the effective date of the final rule to May 20, 2017, to allow further review and consideration. ABC signed onto a letter supporting the extension of the effective date.  However, most of the provisions in the final rule don’t go into effect until March 12, 2018. 

On March 9, ABC and other construction groups filed a petition against the final rule in the U.S. Court of Appeals for the D.C. Circuit. This case along with others is being consolidated to the eighth circuit.  ABC will continue to keep members informed of any legal developments through Newsline. 

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On March 31, 2017, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) updated its Annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark Database to reflect a new hiring benchmark of 6.7 percent.  The new benchmark is slightly lower than the previous year’s benchmark of 6.9 percent. 

The VEVRAA benchmark is a figure federal contractors must use to evaluate hiring and representation of protected veterans in the workforce. Under VEVRAA regulations, contractors may either use the OFCCP’s annual benchmark, which is based on annual data from the Bureau of Labor Statistics, or establish their own benchmark by following the five-factor method outlined in the OFCCP’s regulations.

Factor 1: The average percentage of veterans in the civilian labor force for the state where the establishment is located for the previous three years. 
Factor 2: The number of veterans who participated in the employment service delivery system in the state where the establishment is located over the previous four quarters. 
Factor 3: The applicant ratio and hiring ratio for the establishment for the previous year. 
Factor 4: The most recent assessment of the effectiveness of outreach and recruitment efforts. 
Factor 5: Any other factor, such as the nature of the job openings or the facility’s location that would tend to affect the availability of qualified protected veterans.

The new benchmark is effective March 31, 2017. Contractors that adopted the previous 6.9 percent benchmark in their affirmative action plans after March 4, 2016, but prior to the OFCCP’s announcement, may keep their benchmark at 6.9 percent.

More information on the VEVRAA hiring benchmark requirement can be found here.

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On March 24, the U.S. Department of State signed a permit approving the TransCanada Keystone XL pipeline. The decision comes after President Trump’s Presidential Memorandum on Jan. 24, regarding the construction of the Keystone XL Pipeline, designed to expedite the completion of the pipeline. The memorandum, invited TransCanada to re-submit  its application for a Presidential permit for the construction of the Keystone XL pipeline, a 1,600-mile pipeline that would ship crude from Canada’s western oil-sands region to refineries on the Gulf Coast, and requested that the State Department reach a final permitting decision within 60 days of TransCanada’s submission of the permit application.

The approval comes 16 months after the Obama administration’s denial of the Keystone XL pipeline permit, preventing jobs resulting from the $7 billion project. Under Executive Orders 11423 of Aug. 1968, and 13337 of April 30, 2004, the Secretary of State is delegated the authority to issue a Presidential permit for any cross-border pipeline project that “would serve the national interest” of the United States. 

In September 2010, the project’s owner, TransCanada, announced it was voluntarily requiring contractors to sign a project labor agreement (PLA) with various construction trade unions as a condition of working on all but 120 of the 1,600 miles of the Keystone XL pipeline. The Southern portion of Phase 3, about 120 miles worth of pipeline, and some of the pumping stations along the 120 mile stretch are reportedly not subject to the PLA, and were awarded to a contracting firm from Eunice, La. 

The Keystone XL pipeline PLA has not been made available to the public, so it is unclear if any merit shop contractors or subcontractors and nonunion construction workers would be exempted from the PLA under certain circumstances.

On privately financed projects like the Keystone XL pipeline, a PLA can prohibit nonunion firms from bidding or prevent all nonunion workers from being hired, even if they have the necessary qualifications and experience. In other instances, all firms are permitted to bid on the PLA project and a PLA allows a limited number of nonunion workers, but forces them to pay union dues and fees as a condition of employment. In general, PLAs can needlessly increase construction costs, interfere with existing union collective bargaining agreements and unfairly discourage competition from nonunion contractors and their employees, who comprise 86.1 percent of the U.S. private construction workforce.

TransCanada is seeking approval from the Nebraska Public Service Commission to approve the pipeline’s route through the Nebraska, which is necessary for the completion of the pipeline along the proposed route. The Keystone XL pipeline is also expected to face delays from private landowners who are concerned with the project’s use of eminent domain. 

Continue to read Newsline for more updates on the Keystone XL pipeline.

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ABC applauded the House Committee on Oversight and Government Reform’s favorable reporting of the Fair and Open Competition Act (H.R. 1552) out of committee. The bill, introduced by Rep. Dennis Ross (R-Fla.) and passed by voice vote, will boost competition on government construction projects and reduce building costs to taxpayers by preventing federal agencies from forcing contractors to sign controversial project labor agreements (PLAs) in order to compete to build federal and federally assisted construction contracts.

“Associated Builders and Contractors believes it is imperative to rebuild our nation’s crumbling infrastructure through a bidding process inclusive of small businesses and qualified contractors that are harmed by PLA requirements,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “By removing federal agencies’ ability to discriminate against the 86.1 percent of the U.S. private construction workforce that chooses not to join a labor union, this legislation will create jobs for America’s skilled veterans, minorities and women not affiliated with construction labor unions. Rep. Ross’s common-sense legislation will increase competition on taxpayer-funded construction projects and ensure taxpayers get the best possible return on their investment in infrastructure. Today’s action by the committee follows the momentum built at the state and local levels to eliminate these special-interest handouts.”

An ABC-led coalition of business groups sent a letter to members of the committee ahead of today’s markup and has long opposed PLA mandates as discriminatory and anti-competitive backroom deals that increase costs to taxpayers.

When mandated by a government agency on a taxpayer-funded project, PLAs drive up the cost of construction projects between 12 percent and 18 percent, according to a series of academic studies. PLAs typically ensure construction contracts are awarded only to companies that agree to recognize unions as the representatives of their employees on that job; use the union hiring hall to obtain workers at the expense of existing qualified employees; obtain apprentices through union apprenticeship programs; follow inefficient union work rules; pay into union benefit and multi-employer pension plans workers will never benefit from unless they meet vesting requirements; and force workers to pay union dues and/or join a union as a condition of employment.

In 2009, President Obama signed Executive Order 13502, which strongly encourages, on a case-by-case basis, government-mandated PLAs on federal construction projects and permits state and local governments procuring federally assisted construction contracts to mandate PLAs. In January 2017, letters sent by ABC and a coalition of construction and industry stakeholders asked President Trump to rescind Obama’s pro-PLA policy and replace it with Executive Orders 13202 and 13208, which prohibited government-mandated PLAs on $147.1 billion worth of federal construction contracts and hundreds of billions of dollars’ worth of federally assisted projects from 2001 until they were rescinded by President Obama in 2009.

A total of 22 states— 20 since 2010—have passed similar measures ensuring fair and open competition on state and local projects. This year, a number of states may pass similar bills, such as Wisconsin’s AB 24/SB 3, which was sent to Gov. Scott Walker’s desk on March 9. In 2015, West Virginia became the 22nd state to ban PLA mandates when Gov. Earl Ray Tomblin (D-W.Va.) signed the bipartisan Establishing Fair and Open Competition in Governmental Construction Act. Gov. Tomblin is the first Democratic governor to sign a bill prohibiting PLA mandates. Also in 2015, Arkansas Gov. Asa Hutchinson (R-Ark.) signed into law a bipartisan bill prohibiting PLA mandates that had previously passed both the State Senate and House of Representatives in unanimous votes.

In the 114th Congress, a similar bill, the Government Neutrality in Contracting Act (H.R. 1671) introduced by Rep. Mick Mulvaney (R-S.C.), passed out of the House Oversight and Government Reform Committee.

Sen. Jeff Flake (R-Ariz.) has introduced ABC-supported companion legislation, S. 622, which has been referred to the Senate Homeland Security and Government Affairs Committee and awaits further action. An ABC-led coalition of 14 construction industry and business associations also sent a letter to the Senate in support of the bill.

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