Construction Legislative Week in Review
www.agc.org January 5, 2012
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On the Inside
LABOR
Obama Makes Recess Appointments to NLRB
NLRB Issues Final Rule on “Quickie” Elections
NLRB Further Delays Implementation of Posting Rule
ENVIRONMENT
U.S. EPA Requesting Additional Data on Dirt in Construction Site Runoff
INFRASTRUCTURE
Water Infrastructure is Front Page News in the Nation’s Capital
FEDERAL
Federal Contractor Contribution Disclosure Requirements Blocked in Defense Authorization, Omnibus Bills
ELECTION 2012
Romney Wins Iowa, New Hampshire Next—306 days until Election Day
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LABOR
Obama Makes Recess Appointments to NLRB
 

On Jan. 4, 2012, President Obama bypassed the Senate confirmation process and announced he would make three recess appointments to the National Labor Relations Board (NLRB). The three appointments are: Sharon Block (D), currently deputy assistant secretary for congressional affairs at the U.S. Department of Labor; Terence Flynn (R), chief counsel to NLRB Member Hayes; and Richard Griffin (D), general counsel for the International Union of Operating Engineers.  The appointments would join the two sitting board members and would result in a full board for 2012 with the three recent appointees’ terms expiring at the end of 2013.

The decision by Obama to make the recess appointments is highly controversial and nearly unprecedented. It was believed that the Senate was holding pro forma sessions – a brief meeting of the Senate in which no business is conducted to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other – thereby blocking the president from exercising his recess authority. However, Obama abandoned this precedent and contends that he has this authority. The move soured the already bad relations between republicans and democrats in congress making it even less likely that Congress and the president will be able to get together on big issues that require bipartisan support like major transportation and water legislation.

The move by Obama will be contested in court and has escalated an already partisan discourse in Washington. In the future, the NLRB will be faced with handling many important cases impacting employers and employees. It is important to have objective decisions and ensure that the decisions will not be later contested in court challenges surrounding the president’s legal authority to make these appointments.  AGC is also concerned that the president bypassed the traditional vetting and confirmation process in the Senate and is instead escalating the partisanship in Congress rather than working on finding common ground on important legislation, such as working on a long-term transportation bill.

For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org. Return to Top

NLRB Issues Final Rule on “Quickie” Elections
 

On Dec. 22, the National Labor Relations Board issued a final rule revising representation-case procedures, also known as the “quickie elections” or “ambush elections.” The effective date of the rule is April 30, 2012.

The final rule is a limited version of a more comprehensive and highly controversial rule proposed by the Board last June.  Critics dubbed the rule the “quickie” or “ambush” election rule because it would effectively expedite the union election process, limiting employers’ opportunity to communicate with workers about union representation and depriving employees of the ability to make a fully informed decision.  The Board received over 65,000 comments on the proposed rule, including objections submitted by AGC detailing how the regulation would detrimentally affect the construction industry.  In late November, the Board – facing imminent loss of a quorum and the authority to issue regulations – passed a resolution that pared down the dozens of changes in the original proposal to about six procedural changes.  The final rule is based on that resolution.

The Board asserts that the final rule will “reduce unnecessary litigation in representation cases,” enable the agency “to better fulfill its duty to expeditiously resolve questions concerning representation” and “save time and resources for the parties and the agency.”  While the final rule is much less drastic than the proposed rule, it retains several disconcerting changes to the current process, including:

  • limiting regional hearings to issues relevant to the question of whether an election should be conducted, allowing the hearing officer to exclude evidence regarding voter eligibility and other matters;
  • allowing hearing officers to decide whether and when to accept post-hearing briefs;
  • eliminating a party’s right to file a pre-election request for review of a regional director’s decision and direction of election, deferring all such requests until after the election; and
  • rendering Board review of a regional director’s resolution of certain election disputes only discretionary.

A technical summary of the changes is posted on the Board’s website at http://www.nlrb.gov/node/3240.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, both of which AGC is a member, have jointly filed a lawsuit asking the U.S. District Court for the District of Columbia to enjoin enforcement of the rule and seeking a declaratory judgment that the rule violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act and the U.S. Constitution.  AGC will continue to monitor and report on developments.

For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org. Return to Top

NLRB Further Delays Implementation of Posting Rule
 

The National Labor Relations Board has again delayed the effective date of a new regulation requiring nearly every private-sector employer to post a particular notice informing employees of their rights under the National Labor Relations Act.  Amid legal challenges to the Board’s authority to issue the regulation, the Board first postponed the original effective date of Nov. 14, 2011, to Jan. 31, 2012.  On Dec. 23, the Board further pushed back the date to April 30, 2012, stating that “postponing the effective date of the rule would facilitate the resolution of the legal challenges.”

For background information on the regulation, click here, here, and here.

For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org. Return to Top

ENVIRONMENT
U.S. EPA Requesting Additional Data on Dirt in Construction Site Runoff
 

As previously reported, the U.S. Environmental Protection Agency (EPA) is back to square one in developing a rule that would set a first-time numeric limit on how much dirt is allowed in stormwater that runs across a construction site.  EPA published a Federal Register notice on Jan. 3 requesting additional data on the performance of technologies in controlling turbidity levels (a measure of water clarity) in construction stormwater discharges.  EPA said it will use the data and information submitted by the public to set a new “corrected” numeric turbidity limit for construction site runoff.

This week, the EPA officially announced its plans to collect more data on the effectiveness of existing stormwater “passive-treatment technologies” at construction sites before moving ahead with a one-size-fits-all enforceable limit for construction stormwater runoff, coupled with monitoring and reporting requirements to show compliance.  The Jan. 3 Federal Register notice also requests information on other topics relevant to establishing numeric effluent limitations for stormwater discharges from construction sites, including sample collection, applicability to electric transmission line construction, cold weather considerations, and the ability of small sites to meet a numeric standard.  EPA will accept comments until March 5. AGC is currently reviewing the notice and plans to issue a comprehensive response. 

The EPA’s decision to slow down and collect more construction stormwater data bolsters AGC’s long-standing argument that a nationally applicable numeric limit is neither defensible nor practical because terrain, geography and rainfall vary significantly in most regions of the country.  So far, the EPA has presented only impossible-to-meet standards and unclear monitoring and reporting requirements.

For more information, contact Leah Pilconis at pilconisl@agc.org or see AGC’s environmental news page at http://news.agc.org/topics/environment Return to Top

INFRASTRUCTURE
Water Infrastructure is Front Page News in the Nation’s Capital
 

For returning federal and Congressional employees on what was the first day back to work for many in the nation’s capital, the Washington Post featured an above-the-fold front page story on the state of water and wastewater infrastructure in D.C. and the rest of the U.S. “Although they are out of sight and out of mind except when they spring a leak, water and sewer systems are more vital to civilized society than any other aspect of infrastructure,” the article declares after decrying the failing state of the water and sewer infrastructure in Washington. At a Senate Hearing last month, the Committee was briefed on a new study, showing it will take $335 billion to resurrect water systems and $300 billion to fix sewer systems. The article declares, “[t]here is no better illustration of the looming national crisis than the District’s system.” AGC hopes that this will be an eye-opening read for decision-makers as the presidential campaign cycle begins in earnest and the second session of the 112th Congress gets into swing.

Click here to read the article.

For more information contact Scott Berry at (703) 837-5321 or berrys@agc.org.
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FEDERAL
Federal Contractor Contribution Disclosure Requirements Blocked in Defense Authorization, Omnibus Bills
 

Two major pieces of legislation, the Defense Authorization and Omnibus Appropriations bill for FY 2012, contain prohibitions on requiring the disclosure of political contributions by contractors bidding on federal work. The efforts, led by Congressional Republicans in the House and Senate, were included in response to continuing threats by Congressional Democrats to put forth an AGC-opposed draft Executive Order (EO) by the Obama administration. 

Congressional Republicans and industry allies have called the executive order unconstitutional and see it as an effort by the administration to use executive power to reward their supporters. AGC is concerned that forcing government contractors to disclose all political contributions would make it too easy for political appointees to punish contractors for their political views or to coerce contributions from firms. On April 29, 2011, AGC voiced these concerns in a letter to the president, and again on May 12, 2011, in testimony submitted to the House Oversight and Government Reform Committee on a hearing examining the proposed EO.  AGC stated in both the letter and testimony that the draft EO is unnecessary, noting that there is no evidence to indicate that political contributions are influencing the award of federal contractors.  AGC also pointed out that contractors are already required to disclose the vast majority of political spending and that there is already a publicly available, web-based, searchable database showing all political contributions. 

AGC will continue to encourage members of Congress to oppose the draft EO and will continue to report on this developing issue.

For more information, please contact Marco Giamberardino at (703) 837-5376 or giamberm@agc.org. Return to Top

ELECTION 2012
Romney Wins Iowa, New Hampshire Next—306 days until Election Day
 

On the road to the Republican presidential nomination, Mitt Romney narrowly won the first battle on Tuesday: the Iowa Caucuses. Romney edged Rick Santorum by a mere eight votes. The final count showed Romney winning 30,015 votes to Santorum’s 30,007 — or 24.6 percent to 24.5 percent. Ron Paul finished in third with 21.4 percent. Newt Gingrich, Rick Perry, Michelle Bachmann and Jon Huntsman finished in the fourth, fifth, sixth and seventh slots, respectively.

Historically, disappointing finishes in Iowa lead to campaigns closing shop. This year’s caucuses were no different. As a result of her sixth place finish, Michelle Bachmann announced her decision to end her bid for the White House on Wednesday.  

Interestingly enough, however, the Iowa Caucuses deliver no actual delegates for the Republican nomination — the state’s 25 delegates to the Republican convention will be awarded by a state convention in June. That said, the event generates incalculable momentum for the winners going into New Hampshire. Current polls for that primary, held on Tuesday, Jan. 10, forecast a victory for Mitt Romney. However, the energy behind Rick Santorum’s finish in Iowa may allow him to gain ground. AGC PAC continues to closely monitor the race ahead.

For more information, please contact Jimmy Christianson at 202-547-5013 or christiansonj@agc.org.
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