The D.C. Download - February 2022

February 16 2022

Government, Legislative Affairs, TAUC News

Congress continues to look for a path to complete the fiscal year 2022 appropriations process to fund the federal government for the remainder of the fiscal year. While progress is being made in negotiations, Congress is poised to enact another short-term continuing resolution. The House passed a stopgap measure funding the government until March 11th, which the Senate is likely to take up soon. Failure to complete the annual appropriations process could limit the investment contained in the Infrastructure Investment and Jobs Act (IIJA), portions of which require enactment of an annual appropriation bill.

Meanwhile, efforts to negotiate the House-passed $1.75 trillion Build Back Better reconciliation bill also remain stalled, as Senator Joe Manchin (D-WV) called for a blank slate to kickstart discussions with the White House and his colleagues in the Senate. He also highlighted increasing inflation as a concern for enacting additional social safety net initiatives.

Here is an exclusive update from TAUC on the policy and regulatory issues of vital interest to contractors and the union construction and maintenance industry in Washington, DC.

White House Announces Executive Order Requiring Project Labor Agreements for Federal Contracts

TAUC Chief Executive Officer Dan Hogan joined President Biden for the signing of an Executive Order (EO) requiring large infrastructure projects built through direct federal procurement of more than $35 million in value to use project labor agreements (PLAs). The White House estimates that the EO could affect $262 billion in federal government construction contracting.

The EO also directs the departments of Defense and Labor, along with the Office of Management Budget, to lead a training strategy for the Federal government’s contracting workforce on the implementation of PLAs.

White House Task Force on Worker Organizing and Empowerment Releases Report

On February 7th, the White House Task Force on Worker Organizing and Empowerment issued a report to President Biden discussing options for increasing union density. The document includes dozens of recommendations and actions the Administration can take without Congressional action to promote collective bargaining and workplace organizing in both the private and public sectors. President Biden has discussed his support for unions and initiated the task force to renew federal efforts to boost union membership.

The report includes a number of recommendations that could be beneficial to the union construction and maintenance industry, including a call for the Department of Labor to prioritize efforts to address worker misclassification and strengthen government tools to ensure prevailing wage rates are consistent with certified payroll data for workers on federally funded projects.

Supreme Court Blocks Federal Vaccine Mandate

Last month the Supreme Court ruled 6-to-3 that the Occupational Safety and Health Administration (OSHA) does not have the authority to mandate vaccinations or frequent testing. The decision noted that COIVD-19 represents a non-workplace-specific health hazard and thus is outside of OSHA’s jurisdiction. The ruling occurred less than a week before firms with more than 100 employees were set to begin enforcing the vaccine or test regime.

After the Supreme Court decision, OSHA withdrew the emergency temporary standard (ETS). The withdrawal appeared in the Federal Register on January 26th. OSHA and the Biden administration expressed support for workplace-specific vaccination requirements. Further regulatory and legal action is possible, but the Supreme Court ruling makes any blanket requirements from the federal government highly unlikely.

CEA Sends Amicus Brief to NLRB Regarding Independent Contractor Determination Standard

At the end of last year, the National Labor Relations Board (NLRB) solicited public input regarding whether the Board should reconsider the standard for determining the independent contractor status of workers under the National Labor Relations Act. The comment period closed on February 10th. TAUC joined the other members of the Construction Employers of America (CEA) in sending an amicus brief to the Board urging steps be taken to restore its previous standard to ensure proper worker classification and to strengthen joint enforcement of efforts to address worker misclassification – which is rampant in the construction industry.

House Passes the America COMPETES Act with Prevailing Wage Coverage

The House passed the America COMPETES Act by a vote of 222-210. The legislation is designed to increase U.S. semiconductor manufacturing and boost American competitiveness with China. The Senate passed companion legislation, the U.S. Innovation and Competition Act, last year. Both the House and Senate version include strong prevailing wage coverage for construction of semiconductor manufacturing facilities built using tax incentives included in the bill. Enactment of this legislation remains a top priority for Congressional leaders and the Biden Administration.

DOL Nominations

David Weil, nominee for chief of the Wage and Hour Division (WHD), advanced through the Senate Health, Education, Labor, and Pensions Committee on an 11-10 party-line vote. Weil awaits a challenging Senate confirmation vote. He faces unanimous Republican opposition and questions from moderate Democrats, including Senator Manchin. In January, several Republican senators sent a letter to the President urging the White House to withdrawal Weil’s nomination, calling him “hostile to employers, unproductive to the employees served by such employers, and the actions he took at the federal level were mired in costly litigation” (see last month’s D.C. Download for more info).

The committee also voted to advance Lisa Gomez to lead the Employee Benefits Security Administration (EBSA), José Javier Rodríguez to serve as assistant secretary of the Employment & Training Administration (ETA), and Susan Harthill to the Occupational Safety and Health Review Commission.