AGC's Human Resource and Labor News - October 14, 2010 / Issue No. 5-10 (Print All Articles)

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Year-to-Date Collective Bargaining Results in Low and No Increases in Wages and Fringe Benefits

Collective bargaining settlements reported to the Construction Labor Research Council (CLRC) between January and September of this year resulted in an average first-year wage-and-benefits increase of $0.64 or 1.3 percent – about half of the $1.29 or 2.7 percent average reported around the same time last year.  Similar to findings reported in its June report, CLRC reported widespread occurrences of wage freezes in its latest Wage and Benefit Settlements Report, and even some reductions.  “No increase was negotiated in about one quarter of contracts,” CLRC found. 

Collective bargaining settlements reported to the Construction Labor Research Council (CLRC) between January and September of this year resulted in an average first-year wage-and-benefits increase of $0.64 or 1.3 percent – about half of the $1.29 or 2.7 percent average reported around the same time last year.  Similar to findings reported in its June report, CLRC reported widespread occurrences of wage freezes in its latest Wage and Benefit Settlements Report, and even some reductions.  “No increase was negotiated in about one quarter of contracts,” CLRC found. 

CLRC also continued to find fewer multi-year agreements than typical for the industry.  In cases where multi-year agreements were negotiated, the parties, on average, agreed to higher increases in the latter years.  The average second-year increase in newly negotiated multi-year agreements was $0.92 or 1.8 percent, and the average third-year increase was $1.35 or 2.6 percent. 

Of the 190 settlements covered by the report, 105 were from the East North Central Region (Illinois, Indiana, Michigan, Minnesota, Ohio, west Virginia, and Wisconsin), where the average first-year increase was $0.97 or 1.8 percent.  Twenty-seven reported settlements came from the Middle Atlantic Region (District of Columbia, Delaware, Maryland, New Jersey, New York, and Pennsylvania), where the average first-year increase was about $0.65 or 1.3 percent – also about half the average reported for the region a year ago.  Craft variation tended to reflect the regional location of the settlements, according to CLRC.

The complete report is posted along with other CLRC reports on the Labor & HR Topical Resources page of AGC’s website at www.agc.org/labor/topicalresources.  Select “Collective Bargaining” from the first pull-down menu and “Collective Bargaining Agreement Data” from the second for links to the reports.  For a searchable database of collectively bargained wage and fringe benefit rates, go to www.agc.org/cbrates.  

Collective bargaining AGC chapters are reminded to kindly send all settlements information to CLRC promptly upon completion.  Information may be submitted to CLRC by e-mail at clrc@clrc.biz, by fax to (202) 347-8442, or by mail to 1750 New York Ave., NW, Washington, DC  20006.


NLRB Issues Unfavorable Decisions Finding Union Bannering Lawful

In a disappointing but not surprising move, the National Labor Relations Board on August 27 issued a long-awaited decision about the lawfulness of union bannering, finding it to be permissible, protected activity under the National Labor Relations Act (NLRA). 

In a disappointing but not surprising move, the National Labor Relations Board on August 27 issued a long-awaited decision about the lawfulness of union bannering, finding it to be permissible, protected activity under the National Labor Relations Act (NLRA).

The decision covers three consolidated cases out of Arizona in which representatives of Carpenters Local 1506 held 16-foot-long banners near establishments -- two medical centers and a restaurant -- to protest work being performed for the establishments' owners by open-shop construction contractors.  The main issue was whether a union violates the NLRA when it displays a large, stationary banner on or near the premises of a neutral employer announcing a "labor dispute" and seeking to elicit "shame on" the employer or to persuade customers not to patronize the employer. 

NLRA Section 8(b)(4)(ii)(B) prohibits conduct found to "threaten, coerce, or restrain" a secondary employer not directly involved in a primary labor dispute if the object of that conduct is to cause the secondary to cease doing business with the primary employer.  Prior cases have established that picketing that seeks a consumer boycott of a secondary employer is coercive and therefore unlawful, while stationary handbilling with that same object is not coercive and is protected speech.  The question before the Board was whether the bannering in the cases at bar was more like picketing or handbilling.  The Board majority held that the bannering was not coercive and did not constitute unlawful picketing.  The two Republicans on the Board at the time (the term of one Republican expired on August 27) issued a dissent asserting that the bannering was coercive and unlawful.

The case was the first to be decided among a dozen or so bannering cases presented to the Board, including two brought by AGC's San Diego Chapter.  The Board decided one of the two San Diego Chapter cases on September 22, finding that the union's conduct there was essentially the same as that found lawful in the first case.  Applying its holding in the first case, the Board concluded that, "absent the use of traditional picket signs, patrolling, blocking of ingress or egress, or some other evidence of coercion, the display of banners in this case was not coercive and did not violate 8(b)(4)(ii)(B)."  The Board issued similar opinions in other cases on September 30 and October 7. The second San Diego Chapter case and several other bannering cases remain pending.

These decisions have strong implications for the construction industry and, as noted in the dissenting opinion, come at a particularly detrimental time.  By allowing unions to engage in such blatantly secondary and misleading activity as conducted in these cases, the decisions have the potential to cause increased boycott activity and the disruption of construction projects during a time when the economy in general, and the construction industry in particular, are already highly distressed. 

While AGC recognizes and supports the rights of employees and their union representatives to utilize economic pressure tactics against a primary employer with which they have a labor dispute, AGC maintains that allowing such activity as the bannering in these cases runs contrary to NLRA Section 8(b)(4)(ii).  AGC is hopeful that the parties will consider an appeal and that a more rational decision will come out of a circuit court.  AGC also hopes that the Board will take any opportunities presented by the still-pending cases to limit the scope of its decision.

United Bhd. of Carpenters Local 1506 (Eliason & Knuth), 355 NLRB No. 159 (Aug. 27, 2010); United Bhd. of Carpenters Local 1506 (AGC San Diego Chapter), 355 NLRB No. 191 (Sept. 22, 2010); Southwest Reg'l Ccl. of Carpenters (Carignan Constr.), 355 NLRB No. 216 (Sept. 30, 2010); United Bhd. of Carpenters Local 1506 (Sunstone Hotel Investors), 355 NLRB No. 219 (Sept. 30, 2010); Southwest Reg'l Ccl. of Carpenters, 355 NLRB No. 216 (Sept. 30, 2010); Southwest Reg'l Ccl. of Carpenters (Richie's Installations), 355 NLRB No. 227 (Oct. 7, 2010).


Open-Shop Contractors' Applicant Referral Program Ruled Unlawful

The National Labor Relations Board (NLRB or Board) has struck down an applicant referral system for open-shop electrical contractors run by the Greater Houston chapter of the Independent Electrical Contractors association (IEC), finding that it unlawfully discriminated against union "salts."

The National Labor Relations Board (NLRB or Board) has struck down an applicant referral system for open-shop electrical contractors run by the Greater Houston chapter of the Independent Electrical Contractors association (IEC), finding that it unlawfully discriminated against union "salts."

In 1990, IEC established a centralized employee applicant referral system for its member contractors that operated similarly to a union hiring hall.  IEC would advertise for electricians, accept and sort applications, and provide them to interested member firms.  IEC also offered members a "shared man" program, which enabled members who needed additional workers to "borrow" employees from each other for up to 60 days under certain circumstances.  Meanwhile, in the early 90's, the International Brotherhood of Electrical Workers (IBEW) launched a "salting" campaign known as COMET that targeted IEC members and other open-shop contractors.  As part of the campaign, IBEW salts filed over 200 applications through the IEC referral service over the course of about two years, often indicating on their applications that they were union members and intended to engage in organizing activity if hired.  None of the salts was hired.  In 1996 and 1997, IBEW Local 716 filed unfair labor charges against the IEC and three of its member-employers for maintaining an allegedly discriminatory referral system and for discriminatory refusal to hire three particular union organizers.

The Board agreed with the union, finding that the referral system violated Section 8(a)(1) of the National Labor Relations Act, because, "in its totality, [it] hindered the efforts of applicants who were salts and union members to be hired by IEC employer members, and reasonably tended to interfere with those applicants' right to seek employment on equal terms with other applicants."  The Board cited four main reasons in support of its conclusion.  First, the Board pointed to various statements published in the IEC newsletter indicating that the referral system helped IEC members avoid salting.  Second, the Board relied on certain components of the referral system that disadvantaged union-member applicants, including the IEC's failure to keep records of use of the service; its policy of not revealing to applicants which contractors received or reviewed their applications; its policy of not permitting applicants to review their applications; a $50 per-application fee that IEC imposed in 1997 on all applicants who filed more than one application within a 30-day period with the exception of recently laid-off former employees of IEC members; and IEC members' practices of reviewing only applications that had been filed within the last few days.  Third, the Board felt that the IEC's shared man program, by its operation in tandem with the referral system, tended to further ensure that union members would not be hired.  Fourth, the Board noted that demand for skilled electricians in the Houston area was quite high during the relevant period, making it reasonable to expect that any competent applicant would have been quickly hired.

The Board also agreed with the union that the IEC members refused to hire the salts based on unlawful, anti-union discrimination.  The Board applied the framework for analyzing such cases established in its 2000 FES decision, which requires that the NLRB general counsel first demonstrate that:  (1) the employer was hiring, (2) the applicants had the training or experience required for the jobs, and (3) anti-union animus contributed to the decision not to hire the applicants.  If the general counsel meets this burden, then the burden shifts to the employer to show that it would not have hired the applicants even in the absence of their union affiliation or activity.  If the employer fails to do so, then a violation of NLRA Section 8(a)(3) is established.  The Board found this to be the case with each of the three employers involved here.

AGC chapters that sponsor applicant referral systems on behalf of their members are advised to review the operation of the system with qualified labor counsel in light of this decision.  Beyond that, the case is mostly significant for signaling the pro-union opinions that can be expected of the new Board.

KenMor Electric Co., Inc., 355 NLRB No. 175 (Aug. 27, 2010).


AGC Continues to Educate Federal Agencies About the Perils of Mandating PLAs

The latest of AGC of America's ongoing efforts to educate federal agencies about the complications inherent in government mandates for project labor agreements (PLAs) includes an October 1 letter to the U.S. Naval Facilities Engineering Command (NAVFAC) and a September 8 letter to the Federal Highway Administration (FHWA).  As explained in the letters, while AGC neither supports nor opposes PLAs in general, AGC strongly opposes government mandates for PLAs on publicly funded construction projects. AGC is committed to free and open competition in all public construction markets and believes that publicly funded contracts should be awarded without regard to contractors' lawful labor relations policies and practices.  The letters urge the agencies to defer to contractors' judgment as to whether a PLA is appropriate for a given project and to their expertise in negotiating a PLA should they deem one appropriate.

The latest of AGC of America's ongoing efforts to educate federal agencies about the complications inherent in government mandates for project labor agreements (PLAs) includes an October 1 letter to the U.S. Naval Facilities Engineering Command (NAVFAC) and a September 8 letter to the Federal Highway Administration (FHWA).  As explained in the letters, while AGC neither supports nor opposes PLAs in general, AGC strongly opposes government mandates for PLAs on publicly funded construction projects. AGC is committed to free and open competition in all public construction markets and believes that publicly funded contracts should be awarded without regard to contractors' lawful labor relations policies and practices.  The letters urge the agencies to defer to contractors' judgment as to whether a PLA is appropriate for a given project and to their expertise in negotiating a PLA should they deem one appropriate.

AGC sent the letter to the FHWA in follow-up to previous communications with the agency regarding PLAs and in response to FHWA-issued Interim Guidance on the Use of Project Labor Agreements.  In the Interim Guidance, the agency advises state departments of transportation (DOTs) that it will approve PLA mandates on federal-aid highway projects if the DOTs meet certain conditions spelled out in the document.  FHWA has reported that it has approved PLAs on six projects thus far, five in Illinois and one in New York.

AGC encouraged FHWA to exercise the broad latitude granted by the executive order to reject any state DOT request to impose a PLA mandate and direct them to use PLAs only at the contractor's discretion.  In the event that FHWA refuses to follow this recommendation, the letter continued, then it should approve such requests only after the state DOT has produced a record demonstrating that it has conducted a thorough analysis of uniform, fact-based criteria to determine that such a mandate is appropriate for the project.  The six-page letter sets out a number of specific issues that FHWA should require state DOTs to consider in such an analysis.  It also points out the pitfalls of various options for the required timing and execution of a PLA, and recommends requiring state DOTs to give bidders and contractors maximum flexibility on such matters. 

The letter to NAVFAC covered many of the same issues.  It was sent in response to the agency's request for input into its consideration of whether or not to the require the use of PLAs on Guam realignment construction projects.  AGC provided specific comments about whether PLA requirements on the projects would advance each of the government interests set forth in President Obama's executive order on PLAs as conditions for such mandates.  The nine-page letter explains how PLA mandates in Guam could be particularly impractical and problematic.  The letter was also hand-delivered by an AGC representative at a stakeholders meeting with NAVFAC's PLA Team on October 6.

AGC will continue to monitor the PLA activities of FHWA, NAVFAC, and other federal agencies.  If you become aware of any new federal PLA mandates, please advise AGC by sending information to Denise Gold at (703) 837-5326 or goldd@agc.org, or Marco Giamberardino at (703) 837-5325 or giamberm@agc.org.

For more information on PLAs, go to AGC's Labor & HR Topical Resources Web page, then select the category "Collective Bargaining" and subcategory "Project Labor Agreements."


Employers Using E-Verify Must Now Match Passport Photos with Government Photos

On September 26, 2010, The U.S. Citizenship and Immigration Services (USCIS) began requiring E-Verify-participating employers to compare the photo from U.S. passports presented during the I-9 process with the government's digitally stored photos online.  This new requirement occurred shortly after the one-year anniversary date of the same agency's rule requiring federal contractors and subcontractors to use the E-Verify system to verify their employees' authorization to work in the U.S.

On September 26, 2010, The U.S. Citizenship and Immigration Services (USCIS) began requiring E-Verify-participating employers to compare the photo from U.S. passports presented during the I-9 process with the government's digitally stored photos online.  This new requirement occurred shortly after the one-year anniversary date of the same agency's rule requiring federal contractors and subcontractors to use the E-Verify system to verify their employees' authorization to work in the U.S. 

In the E-Verify system, photo matching is activated automatically if an employee has presented with his or her Form I-9 a:

  • I-551, (Permanent Resident Card)
  • Form I-766, (Employment Authorization Document), and now a
  • U.S. passport or passport card.

If no photo is available, E-Verify will automatically skip photo matching, or "No Photo on this Document" may display in place of a photo.  Other documents with photos (such as a driver's license) will not activate photo matching.

According to USCIS, if an employee presents a U.S. passport or one of the other documents listed above, the employer will be required to make a photocopy of the passport's biographic page and keep it with the employee's I-9.  If the photo screen activates during the E-Verify process, the employer will be instructed to compare the passport copy with the photo displayed in E-Verify to see if they are reasonably identical.  If the employer indicates that the photos do not match, E-Verify will return a Tentative Nonconfirmation and the employee will be given the opportunity to contest.  At that time, the employer must send a photocopy of the passport copy or document to USCIS for further analysis.

Click here for information on photo matching or download USCIS's E-Verify User Manual for Employers.


AGC Submits Comments on Affirmative Action Obligations Related to Individuals with Disabilities

On September 21, AGC submitted comments to a July 23, 2010, Office of Federal Contract Compliance Programs (OFCCP) Advanced Notice of Proposed Rulemaking. The comments were in response to plans to implement affirmative action and nondiscrimination obligations of contractors and subcontractors, and to evaluate the affirmative action provisions under Section 503 of the Rehabilitation Act.

On September 21, AGC submitted comments to a July 23, 2010, Office of Federal Contract Compliance Programs (OFCCP) Advanced Notice of Proposed Rulemaking. The comments were in response to plans to implement affirmative action and nondiscrimination obligations of contractors and subcontractors, and to evaluate the affirmative action provisions under Section 503 of the Rehabilitation Act.

While AGC agrees that individuals with disabilities must not be discriminated against, AGC's comments addressed the belief that the OFCCP's contemplated broad affirmative action requirement for the recruitment of individuals with disabilities may be difficult to achieve or possibly counterproductive in the construction industry. AGC noted that record unemployment in construction, the unique nature of the construction industry, and the undue burden the additional recordkeeping would place on construction employers may make the new requirements difficult to achieve.

AGC urged the OFCCP to continue to leave the decision to hire to construction employers, and those decisions should be made on a case-by-case basis based on the candidate's ability to perform the essential functions of a particular job safely, with or without a reasonable accommodation.

Read more about the notice here.

For guidance on compliance with OFCCP requirements, visit the AGC Bookstore for AGC's Affirmative Action Manual for Construction.


Limited Space Still Available for Next Week's HR Professionals and Training & Development Conferences

AGC's 9th Annual HR Professionals Conference and 4th Annual Training & Development (T&D) Conference will take place October 18-20, 2010, at the Doubletree Paradise Valley Resort in Scottsdale, Ariz.  Training, development and human resource professionals will gather to network and earn valuable continuing education credits toward their respective designations.

AGC's 9th Annual HR Professionals Conference and 4th Annual Training & Development (T&D) Conference will take place October 18-20, 2010, at the Doubletree Paradise Valley Resort in Scottsdale, Ariz.  Training, development and human resource professionals will gather to network and earn valuable continuing education credits toward their respective designations. 

Kelly S. Riggs of Vmax Performance Group will address both groups in a joint keynote session on October 19, where he will define the three keys to powerful coaching and teach HR and training professionals how to identify employees at every talent level who will benefit from effective coaching.  In addition to the joint keynote session, HR Professionals Conference attendees will participate in sessions related to drug testing and substance abuse management, conducting workplace investigations, analyzing the risks and benefits of modern technology in the workplace, using performance management to enhance company and individual growth, utilizing a variety of compensation best-practices in a rebounding economy, and more.  Attendees of the T&D Conference will participate in sessions on generational diversity, linking performance management to employee learning, implementing project team training, building partnerships with academic institutions, giving high-impact presentations, and more.  

As an authorized provider of continuing education credits, AGC is providing the opportunity for participants who successfully complete the T&D Conference program to receive 0.8 IACET CEUs and/or 7.25 recertification credits towards PHR, SPHR or GPHR recertification from the Human Resource Certification Institute (HRCI), and participants who successfully complete the HR Professionals Conference program will receive 0.9 IACET CEUs and/or 9.0 recertification credits towards PHR, SPHR or GPHR recertification from HRCI.  Attendees of both conferences will receive a maximum of 1.7 IACET CEUs and /or 16.25 HRCI recertification credits. 

With expert speakers providing compliance-related guidance for HR professionals and interactive sessions that are guaranteed to help T&D professionals excel and solve common challenges, these conferences allow participants to maximize certification credits in a single location over the span of just a few days.

There are still a few spaces available for those who wish to attend.  For registration and hotel information, contact Tamika Carter at cartert@agc.org or (703) 837-5382.  For detailed information on speakers and conference sessions, visit www.agc.org/hr_td.


AGC Debuts NEW Davis-Bacon Compliance Manual with Two-Day Compliance Webinar

With the downturn in the availability of commercial work, many construction contractors are bidding more on federal and federally-assisted work and having to comply with the Davis-Bacon and Related Acts. The application of the Davis-Bacon and Related Acts to all projects funded under the American Recovery and Reinvestment Act of 2009 (ARRA) has also left many contractors uncertain about the requirements of federal prevailing wage laws and the consequences of non-compliance. AGC is offering two resources to help contractors comply with the requirements of this sometimes complicated law.

With the downturn in the availability of commercial work, many construction contractors are bidding more on federal and federally-assisted work and having to comply with the Davis-Bacon and Related Acts. The application of the Davis-Bacon and Related Acts to all projects funded under the American Recovery and Reinvestment Act of 2009 (ARRA) has also left many contractors uncertain about the requirements of federal prevailing wage laws and the consequences of non-compliance. AGC is offering two resources to help contractors comply with the requirements of this sometimes complicated law.

 

AGC's new Davis-Bacon Compliance Manual - Third Edition, authored by Davis-Bacon expert Deborah Wilder, is a must-have for any contractor with existing or prospective federal or federally assisted construction contracts. This tool provides concise, practical information about the prevailing wage requirements and compliance principles of the Davis-Bacon and Related Acts, plus a special section devoted to ARRA. This manual is user-friendly and includes modern examples, references to recent court cases and many sample formulas. 

In addition to the compliance manual, AGC will provide a webinar over the course of two days - December 8 and 9 from 2:00-3:30 p.m. EST.  Join Wilder and the head of Davis-Bacon enforcement for the U.S. Department of Labor's Wage & Hour Division's Government Contracts Team, Timothy Helm, as they provide the information necessary to understand the specific requirements of the Davis-Bacon and Related Acts in a contractor-friendly manner.  They will cover such topics as:

  • How wage determinations are published and where to find them;
  • How to read wage determinations;
  • How to request additional classifications or rate corrections;
  • Which classification in the wage determination applies and what is area practice;
  • Who is a "laborer or mechanic";
  • What is "site of the work";
  • Coverage of truck drivers;
  • Coverage of apprentices, trainees, and helpers;
  • Fringe benefit requirements, credit, and annualization;
  • Overtime issues;
  • General reporting requirements;
  • Certified payroll records;
  • Subcontractor reporting;
  • Enforcement initiatives;
  • Investigation procures;
  • Hearings and appeals process;
  • Penalties; and
  • Where to get assistance.

Each webinar registrant will receive a copy of the presentation slides and handouts used on both days along with a link to the complete audio-recording of the live webinar, including the question-and-answer period.  Webinar registrants will also be able to co-order AGC's new Davis-Bacon Compliance Manual - Third Edition for a special discounted price, or purchase the compliance manual independently.  Click here to order the webinar and compliance manual together for a discounted price.

Register today at www.agc.org/DBWebinar or download the webinar flyer.

*This program has been submitted to HRCI for review.


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