AGC of San Diego Predicts Some Good Things from the Obama Administration!

I have some shocking news. The AGC of San Diego has finally printed some good news. Good news to me that is.

The AGC here in town usually prints anti-union venom every Monday with their Monday Morning Quarterback. It does have some good information sometimes about local and national construction industry news, but often it just includes anti organized lab rants and raves by the senior staff.

In their post election analysis they were certain that the Obama Administration was going to push for two major labor policy changes. The first is removing the ban on Project Labor Agreements on Federally funded projects. The second is implementing the Free Choice Act. This update to the National Labor Relations Act, allows for a workplace to be organized if majority of workers to say that they want to be a part of a union.

Below you can find the article. Please remember the author's tone is not labor friendly and they are getting ready to fight. But it is good to see the local AGC on thier heels.

President Elect Obama is going to face some unprecedented challenges as he takes office this January. Our economy is in terrible shape, and we are fighting two wars on two different fronts. I am sure all AGC members understand the difficult task the new administration will be facing and how important it is that the administration stay focused on the critical problems our country is now experiencing.

However, we also see some troubling priorities that appear to be on our President Elect’s “front burner.” These priorities involve sweeping changes to our labor laws that will result in the most comprehensive changes in labor relations since the 1940’s. With the Democratic Party holding solid majorities in both the U.S. House of Representatives and the US Senate, we see the following actions moving soon after the inauguration:

To set the tone….here is a quote from President Elect Obama’s April 2008 speech to the delegates attending the Building Trades National Convention….

“They (Bush Administration) don’t believe in unions. They don’t believe in organizing. They’ve packed the National Labor Relations Board with their corporate buddies. Well, we’ve got news for them….it’s not the Department of Management, it’s the Department of Labor, and we’re going to take it back.”

So what can we expect?

The Employee Free Choice Act

As a Senator, President-Elect Obama was a co-sponsor of the Employee Free Choice Act. This law makes union organizing of a workforce easy……I think too easy. It simply requires the union to obtain 50% +1 of your employees in a particular craft to sign cards. There is no election. When this happens your firm has a union. Yes, you do get to negotiate for an agreement after the cards are signed, but if you are unable to reach an agreement with the union within a specified time period, an arbitrator will be called in and the terms of the agreement will be subject to binding arbitration. This initial agreement will be a two-year agreement.

Under the law that has existed since the 1940’s, unions could get cards signed by 30% of your work force and then call for an election which is overseen by the National Labor Relations Board (NLRB). If 50% +1 of the unit employees voted for the union you are required to enter into negotiations. If you are unable to reach an agreement, the union has the right to strike/picket but does not necessarily end up with an agreement.

The Employee Free Choice Act takes away the secret ballot election that is currently a mandatory part of the election process. In addition, it contains a powerful new tool that will create a very difficult atmosphere for employers facing a union organizing campaign. The union, probably through individual employees, will be able to file a civil suit against an employer for violating an employee’s right to organize during a campaign. The fine is up to $20,000 per violation. I would assume that it will be tempting for the unions to convince the employees to file these suits during the card signing process even if the allegation is a “stretch.”

Unions like nothing better than to have a big fine hanging over an employer’s head during these campaigns. This is not possible under current law. In addition, if an employee is fired during a campaign, and it is found that the firing was a result of the employee’s involvement in the campaign, the employer will owe the employee the employees lost wages times three.

Now, it is a given that the Employee Free Choice Act is going to pass and be signed by the President during 2009. Obviously, AGC and all other major construction and non-construction interests are gearing up for the legislative battle that will surround this Act when it is introduced. Its exact form is not known, but assuming that it passes in a form similar to the above, please understand that AGC staff and legal experts are working on innovative ways to assist contractors.

And….if you are a union contractor do not believe that you will not be affected by the Employee Free Choice Act. It is no secret that there is a great deal of union to union friction in the Building Trades right now. I predict that there will be efforts to amend the Employee Free Choice Act to position some of the larger Building Trades unions to organize workers in the smaller building trades unions. Certain building Trades Unions are committed to the concept of reducing the number of building trades unions, and this is a real opportunity to structure easy takeovers of smaller unions!!!!

Project Labor Agreements (PLAs)

In a September 16th, 2008 letter to the International Brotherhood of Electrical Workers President Elect Obama wrote….

“We need to make sure the government uses project labor agreements to encourage completion of projects on time and on budget. One of the first things George Bush did when he got into office was to ban PLAs. One of the first things I’ll do as President is repeal that ban.”

This returns us to the way it was before President Bush took office. How extensively the PLA will be used in this “Federal” context remains to be seen, but….beware.

National Labor Relations Board (NLRB)

The NLRB in Washington hears and attempts to decide all major labor cases. There are five Board members appointed by the President. Normally three of the appointees will be from the President’s party, and will view labor relations as the President does, and two appointees will be from the other party. During the Bush years, the President did not have a full five-member Board for very long. This caused some of the most controversial cases, including the “Ban the Banner” case, not to be decided since these cases by tradition will only be addressed when five members are serving.

We expect all five to be appointed quickly in the Obama Administration!!!

I have been involved in construction industry labor relations for the past 30 years. There is no question that the next few years will be a real challenge. If the Employee Free Choice Act passes in any form similar to what we have seen in past versions of the legislation, our industry and all other industries face some real difficulties. However, please remember actually implementing something this unfair will be difficult.

Stay tuned.

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