The D.C. Download, March 2023

March 28 2023

Government, Legislative Affairs, TAUC News

DOL Secretary Nomination

President Joe Biden has nominated current Deputy Secretary of Labor Julie Su to replace outgoing Labor Secretary Marty Walsh. Before assuming her current role in July 2021, Su worked as the Labor Secretary for the State of California. Her nomination has received strong support from unions, but drawn opposition from business groups, particularly over her role in developing and implementing California’s worker-classification rules-AB 5.

President Biden has struggled to get his labor nominees confirmed. Julie Su was confirmed as Deputy Secretary on a 50-47 vote. David Weil, nominated to lead DOL’s Wage and Hour Division, and Jessica Looman, nominated to replace Weil, were unable to get confirmed last year. Democrats are hopeful to be able the advance the Su and Looman nomination in the 118^th Congress given their larger majority. This is complicated by potential opposition to Su from some moderate Democrats and the medical absences of Senators John Fetterman (D-PA) and Dianne Feinstein (D-CA).

CHIPs Act Investment

U.S. Commerce Department released the first notice of funding opportunity (NOFO) for the more than $50 billion to be made available under the CHIPS and Science Act. The funding will be available for grants, loans and loan guarantees for projects to construct, expand, or modernize commercial facilities for producing semiconductors in the United States.

Funding made available under the NOFO requires that all laborers and mechanics employed by an awardee, subrecipients, contractors, or subcontractors in the performance of construction, alteration, or repair work must be paid the Davis-Bacon prevailing wages as determined by the U.S. Secretary of Labor. The NOFO also “strongly encourages” applicants for funding to use PLAs. Applicants who do not plan to utilize a PLA are required to submit workforce continuity plans and demonstrate additional steps taken to reduce the risk of project delivery delays.

Also, the U.S. Treasury Department  Advanced Manufacturing Investment Credit, which was created in the CHIPS Act. The provision incentivizes the domestic manufacture of semiconductors and semiconductor manufacturing equipment by providing a tax credit or reduction in tax liability equal to 25% of an eligible taxpayer’s qualified investment in an advanced manufacturing facility.

Walsh Announces $20 Million To Expand Construction Training

Prior to leaving the DOL, Labor Secretary Marty Walsh announced a $20 million agreement between the Department and the non-profit TradesFutures to advance opportunities in construction through the department’s “Scaling Apprenticeship Readiness Across the Building Trades” initiative.

TradeFutures develops and promotes Apprenticeship Readiness Programs (“ARPs”) administered by state and local Building Trades Councils as programs to provide students with the fundamental skills and knowledge necessary to succeed in registered apprenticeship in the construction industry. The goal of the non-profit is to enroll more than 13,000 people in apprenticeship readiness programs, placing 7,000 of them into Registered Apprenticeships in the construction industry. The non-profit will provide a gateway to women, people of color, veterans, Native Americans, and others to access and succeed in programs in Missouri, Ohio, Pennsylvania, and Tennessee. The $20 million agreement will also allow the non-profit to start working in additional states. purpose of ARPs.

DOL Launches Initiative to Boost Training for Large Infrastructure Projects

The DOL also announced an initiative to promote access and opportunity to large federally funded projects. The “Mega Construction Project Program” will work with the public and private sector to provide workers access to large transportation projects—projects valued at $35 million or more. Through the program, the Office of Federal Contract Compliant Programs (OFCCP) will provide assistance to contractors and subcontractors to strengthen hiring and recruitment, with a particular emphasis on getting underrepresented communities into the construction industry.

Legislation Introduced to Rescind Presidential Executive Order on Project Labor Agreements

Legislation has been introduced in both the House and the Senate to overturn President Biden’s 2022 Executive Order (E.O.) on federal agencies’ use of project labor agreements (PLAs) on large-scale federal construction projects. TAUC joined with the Construction Employers of America (CEA) in sending letters in opposition to these bills. H.R. 1209, sponsored by Rep. James Comer (R-KY) and S. 537, sponsored by Sen. Todd Young (R-IN), would rescind E.O. 14063, which would require federal agencies to use PLAs for large-scale construction projects with an estimated cost of $35 million or more. 

House Fails to Override President Biden’s Veto of Resolution Nullifying Rule on Selecting Plan Investments

President Biden issued his first veto earlier this month on a resolution passed in both the House and the Senate to nullify the Employee Benefits Security Administration’s (EBSA) “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights” rule. The resolutions were passed under the Congressional Review Act (CRA), which allows Congress to nullify “major” rules issued by federal agencies. If the veto were overridden, the resolution would have nullified the EBSA’s final rule, which permitted fiduciaries to consider union jobs created by an investment and the associated plan contributions they generate when assessing the economic value of plan investments. TAUC and the CEA have supported providing plan trustees with this flexibility and opposed efforts to base investment considerations to just the financial return of an investment. 

Biden Unveils FY 2024 Budget

The Biden Administration unveiled its fiscal year 2024 budget. Included in the budget is a request for a $1.5 billion increase to the Department of Labor’s (DOL) discretionary budget, which would bring the DOL’s budget to $15.1 billion. Highlights from the budget include $522 million for improving the unemployment insurance program and $430 for DOL’s worker protections agencies, which includes the Wage and Hour Division and the Occupational Safety and Health Administration. The White House has also requested that Congress improve DOL’s ability to levy fines against companies that have committed workplace infractions. The boost in funding follows recent findings that determined that OSHA “did not consistently ensure complaints and referrals were adequately addressed.” The release of the President’s budget is usually the starting point for the annual appropriations process, which is expected to be very difficult with year with the House Republican majority pledging to make significant budget cuts to domestic discretionary spending programs.

PRO Act Reintroduced

Rep. Bobby Scott (D-VA) and Senator Bernie Sanders (I-VT) have reintroduced the “Richard L. Trumka Protecting the Right to Organize Act of 2023” (H.R. 20/S. 567).

The legislation would make significant changes to dozens of labor laws. Changes in the bill to existing labor law include: 

• Authorizes “card check” organizing.
• Repeals restrictions on secondary boycotts and common situs picketing.
• Allows intermittent strikes.
• Imposes mediation and binding arbitration.
• Establishes joint employer status change could alter well-settled subcontracting practices in the construction industry; and
• Grants the NLRB the power to levy civil fines on employers that violate labor law. 

The PRO Act passed the House in both the 116th and 117th Congresses but failed to be considered in the Senate.