In its Cemex Construction Materials ruling issued August 25, the National Labor Relations Board (NLRB) paved the way for unions to represent employee units without winning a secret ballot election outside the 8(f) exemption, effectively placing the burden on employers to disprove a union’s claim of 9(a) representative status. A day earlier, the NLRB issued new election rules (effective December 23, 2023) that speed up the election process and effectively bar employers from litigating key election issues until after a vote. (For info on the differences between 9(a) and 8(f) union recognition, see here and here.)

The National Labor Relations Board on Aug. 25 adopted a final rule amending procedures governing union representation elections. The rule shortens the time period between the filing of a representation petition and the holding of an election and makes other changes that operate to unions’ advantage. Reversing regulations issued by the Board during the Trump Administration, the new rule marks a return to the “Quickie Election” or “Ambush Election” Rule issued by the Board during the Obama administration almost in its entirety. AGC took several steps to stop the Obama-era rule – including regulatory comments, Congressional lobbying, and even litigation – but the rule survived all substantive challenges. While the Board’s new rule could be vulnerable on procedural grounds (given the agency’s failure to provide the public with advance notice and an opportunity to comment before making the rule final), its similarity to the Obama-era rule means it, too, would likely survive substantive challenge. The rule is set to take effect on Dec. 26.

Don’t miss the excitement of Construction Super Conference 2023. Earn educational credits in the conference training classes led by industry experts and leaders.

Recording of Aug. 16 town hall now available

AGC Members and Chapters Welcome to Participate

On August 21, AGC raised concerns with proposed changes to rules that govern the implementation of the Endangered Species Act (ESA) such as the designation of critical habitat (AGC comment letter) and the interagency consultations (AGC comment letter) that are part of the approval process for projects that involve federal permits or funding. The proposed revisions reverse reforms made by the prior administration to streamline the process, change key definitions and concepts, and introduce additional requirements, for example to offset any impacts that cannot be avoided through the “reasonable and prudent measures” (RPMs) that project proponents currently employ.

A growing number of state and local governments have adopted wage theft laws that aim to ensure employees receive full compensation by creating severe penalties. These laws often target the construction industry and impose significant penalties for employers who “misclassify” workers or fail to comply with expanded recordkeeping and notice requirements. Wage theft laws can make general contractors liable for their subcontractors’ or temporary labor brokers’ violations, even if these violations were not reasonably discoverable by the general contractor. Consequences for violating wage theft law can be severe, including fines and even criminal penalties in extreme cases. Some states have upstream liability provisions that can make the project owner liable for wage theft violations. Also, some wage theft laws negate the enforceability of specific contract provisions, while others require certain provisions to be included in contracts.

According to the Bureau of Labor Statistics (BLS), over the past 10 years, at least, an average of 346 workers were killed from falls, slips, and trips, and nonfatal injuries and illnesses that resulted from falls, slips, and trips occurred at a rate of 31.4 per 10,000 full-time workers in 2020. Moreover, fall protection violations continue to be among the most cited standards in the construction industry, consistently topping the list of OSHA’s most frequently cited violations.

Every year, during September — National Suicide Prevention Month — the construction industry dedicates a week to raising awareness about the high number of suicides in the industry, and to provide resources to help prevent those deaths.