E-news for the Construction Division Spring 2014

Proposed NLRB Rule Draws Criticism From Construction Industry

Steve Stort

Amid the extended media coverage on a missing Malaysian airliner and contested Affordable Care Act enrollment figures, a deadline pertinent to the construction industry escaped closer scrutiny by the press—the April 7 filing date for comments regarding proposed changes to the unionizing election process by the National Labor Relations Board. For most sources reporting NLRB’s action, the proposed rule-making has been labeled as nothing less than controversial. 

Published in the February 6 Federal Register following a 3-2 split decision along political lines, NLRB stated that it is “again proposing the same changes” that were included in a 2011 proposal. According to the Construction Industry Round Table, the rule was invalidated in 2012 on procedural grounds when the US District Court for the District of Columbia held that the amendments were not properly adopted by the board because of a lack of a quorum. CIRT notes, however, that the court did not address the substance of the rule-making, so NLRB has returned with essentially the same proposal but more comprehensive. It is touted by labor as furthering the goals of the National Labor Relations Act (NLRA) by “modernizing processes, enhancing transparency, and eliminating unnecessary litigation and delay.” 

“These proposals are intended to improve the process for all parties, in all cases, whether nonunion employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” says NLRB Chairman Mark Gaston Pearce in a statement to TheHill.com. Labor unions advocate that the NLRB rule is necessary to limit delays and obstacles for workers wanting to organize, with AFL-CIO Chairman Richard Trumka claiming that current election rules allow employers to “manipulate and drag out the process through costly and unnecessary litigation.”

Stating her perspective in The Hill, Sarita Gupta, executive director of Jobs With Justice, a labor rights advocacy group, says the current union election system is a “senseless” system that discourages workers from organizing. “Currently, workers who petition for a union election encounter delays of months and even years before an election is held, and some never get a vote at all,” she points out. “This rule would cut back on senseless procedural delays, closing the loopholes employers have exploited for decades.” 

At the heart of the controversy are the proposal’s critics, who firmly denounce the rule-making as undercutting the very purpose of the NLRAreferring to the amendments as promoting ambush or quickie elections—all in the name of efficiency and rapid decision-making. Under the new proposal, the period of a standard union election process would be reduced from 42 days to a range of 10 to 21 days. In practice, according to reported election periods, the median duration has been 38 days.

“This proposal is a solution in search of a problem,” says Geoff Burr, vice president of government affairs for the Associated Builders and Contractors. “Unions already are winning 64% of elections, and more than 94% of those elections occur within 56 days—exceeding NLRB’s own goals related to election timeframes.” With more than 70,000 public comments already issued against the proposal, Burr says it is “disappointing that NLRB has doubled down on this failed ambush elections rule,” emphasizing that “it’s absolutely bad policy.” 

ABC and numerous other construction and business groups have rebuked NLRB for reviving the rules, promising they would respond with a forceful legal challenge. “That’s why we sued them on this the first time,” Burr explains. “We do plan to challenge this in the courts again, and we do plan to pursue a legislative solution.” ABC, the Associated General Contractors of America (AGC), the American Council of Engineering Companies, the National Association of Home Builders, and the US Chamber of Commerce are just some of the major players in a larger advocacy organization—the Coalition for a Democratic Workplace—which successfully challenged the original NLRB rule in court.

Other provisions in NLRB’s proposed rule are drawing equal skepticism, too. For instance, in addition to eliminating the required 25-day waiting period prior to holding an election, employers would be required to file a formal position statement regarding a unionizing petition within seven days or forfeit the right to pursue any issues. Moreover, an employer’s automatic right to a post-election NLRB review of contested issues would be eliminated. The proposed rule would also require targeted nonunion employers to turn over personal employee information such as home addresses, e-mail addresses, home phone numbers, and cell phone numbers to the union to facilitate contact. Finally, workers at a given site would be allowed to cast ballots even if their eligibility is contested, deferring any legal action until after the election.

Commenting on the earlier 2011 proposed rule, AGC contended that the amendments would be particularly difficult to apply in the construction industry due to a number of unique aspects of the industry, including the complexity of bargaining unit and voter eligibility determination, and the decentralized nature of the workplace. Regarding the mandatory disclosure of personal employee data, AGC notes that recent cases have illustrated how construction unions might misuse such information. The organization is also concerned that the proposed rule might lead to unintended consequences, including increased litigation and protracted legislative fights at both the federal and state levels.

The National Legal and Policy Center, in its published online article “NLRB Revives ‘Ambush Election’ Rule to Thwart Opposition to Union Campaigns,” states, “In effect, where a union would have months and even years to build support at a given work site before approaching the NLRB to supervise an election, an employer would have at most a few weeks to offer any responses. This rule change especially would hurt small businesses, which typically do not employ a labor issues counsel. The result would not be a level playing field. Election campaigns would be rigged in favor of unions.”

CIRT further cites Brian Hayes, a former NLRB member, who claims that “. . . by administrative fiat in lieu of congressional action, the Board [NLRB] will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

Save the Date!

Join professional engineers from around the country for networking, continuing education, and a fantastic Fourth of July celebration in the nation's capital!

Conveniently located in the heart of Washington, DC, with easy access to museums, the National Mall, and all Independence Day festivities, the NSPE 2014 Annual Meeting is one you and your family won't want to miss.                        

Watch www.nspe.org for future details.

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NSPE Legislative Affairs News

NSPE Expresses Serious Concerns With the FUELS Act

On March 19, the National Society of Professional Engineers urged Senator Mark Pryor (D-AR) to reconsider his bill S. 496, the Farmers Undertake Environmental Land Stewardship (FUELS) Act. The FUELS Act would substantially weaken the current EPA Spill, Prevention, Control, and Countermeasure (SPCC) rule, placing the public and the farmers it seeks to protect at increased risk of devastating oil spills. NSPE understands that some members of the agricultural community have concerns with the current SPCC rule. NSPE would like to underscore two important points, though: first, the protection of the public health, safety, and welfare must be of paramount importance; and second, the Congressional Budget Office (CBO) estimates that most farms would be exempt from the rule. Read the press release.

NSPE Members Visit with Members of Congress to Advocate for the Professional Engineering Community

On March 6, NSPE members and staff participated in the 2014 Society of Women Engineers Capitol Hill Day to discuss issues of importance to professional engineers, including STEM education, investment in national infrastructure, and qualifications-based selection. NSPE Treasurer Julia Harrod, P.E., F.NSPE, and NSPE Legislative and Government Affairs Committee STEM Task Force Chair Karen Moran, P.E., F.NSPE, lead the delegation and met with several champions of engineering. Visits with Representatives Donna Edwards (D-MD), Michael McCaul (R-TX), Daniel Lipinski (D-IL), Paul Tonko (D-NY), and NSPE's very own PE in Congress, David McKinley, P.E. (R-WV), were extremely productive. There is growing interest and commitment to NSPE's issues and these visits served to bring these matters to the forefront. 

For all the latest NSPE legislative activities visit the 
NSPE website [ return to top ]

NSPE & ACEC Seeking Nominations for QBS Award

Every year, ACEC and NSPE partner to administer the QBS Awards. The purpose of the QBS Awards is to recognize public and private entities that make exemplary use of the qualifications-based selection process at the federal, state, and local levels. In turn, QBS Award winners serve as examples of how well the QBS process works, and they help ACEC and NSPE promote the practice of QBS in jurisdictions that do not use, or underuse, QBS to procure engineering services.

ACEC and NSPE are now seeking nominations for the 2014 QBS Awards, honoring entities that retain design professionals using qualifications-based selection. The deadline for nominations is Friday, June 6, 2014.

Please visit the NSPE website for a nomination form.  
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Engineering a Stronger Profession

Since July 2012, NSPE and its members have been engaged in an open process aimed at building a Society dedicated to organizational innovation and development. The foundation of that effort has been the association management book Race for Relevance, which outlines the challenges faced by today’s associations and provides a plan for change. 

Informed by data collected through extensive surveying and the active engagement of about 100 members from 41 states involved in seven task forces, the NSPE Board of Directors has committed itself to reinvigorating an organization that has been serving professional engineers for 80 years. By following the changes outlined in Race for Relevance, NSPE will be renewing its unique and vital role in promoting and protecting the value of the licensed professional engineer. 

The NSPE Board is committed to integrating the values, strategies, objectives, and action plan outlined in its new Statement of Strategic Direction (approved January 29, 2014) into the very fabric of NSPE’s ongoing governance and operations. 

Read more:

Staying Strategic (March 2014 PE)
By Executive Director Mark Golden

Change or Be Changed (April 2014 PE)
By President Robert Green, P.E., F.NSPE

Background on NSPE’s Race for Relevance initiative.  [ return to top ]

NSPE Spring Webinar Series

NSPE's spring webinar series features a session on April 17 titled A Conversation About Conflicts of Interest, Confidentiality, and the Public Health, Safety, and Welfare, hosted by Arthur Schwartz, NSPE's deputy executive director and general counsel, who will be joined by other ethics experts. Schwartz will also facilitate A Conversation on Employment and Professional Practice on May 14. 

Get a group of your colleagues together in the conference room and all of you can participate and receive credit for the low member price of $99 for most of the webinars. Each webinar is held from 12:30–1:30 p.m. EST.

Access the entire webinar schedule on the NSPE website. Don't miss out! Registeronline today.  [ return to top ]

201314 PEC Executive Board

For a complete list of PEC Executive Board Officers, please visit the PEC website.
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