Panic in the State and Local Building Trades over the NLRB’s Indeck Decision!!! It’s Just Not Fair!!!!
By Jim Ryan, AGCSD Executive Vice President 

A couple of months ago the National Labor Relations Board (NLRB) issued the long awaited Indeck Decision…..and when I say long awaited, I mean about 11 years.! (A summary of the decision is included in the August 20, 2007 MMQB….click here ). This decision, in our opinion, makes union only project labor agreements that are negotiated between a project owner and the building trades unions illegal.  The NLRB basically took the position that an owner of a project that is not an employer in the construction industry can not enter into an agreement with the building trades that excludes non-union contractors from participating on the project.  Now, if you read our previous article, the decision is a bit more complex, but that is the “guts” of what the NLRB decided.

The Building Trades at the national, state and even our esteemed local head of the San Diego Building and Construction Trades Council…..Tom Lemmon…..all stated that the decision meant nothing….”Don’t worry about it.” 

Well…..guess what….AGC has come across a PLA that the State building Trades and yes our own Tom Lemmon are trying to negotiate that indicates to many of us that they are worried about Indeck….worried to the point that they are willing to force general contractors participating on PLA projects into a terrible position!!!!!

The proposed PLA was issued in September, after the Indeck decision was handed down. This PLA is not between the owner of the project and the building trades like most PLAs.  This PLA is between the “primary contractor” and the building trades.  Gee….maybe all that “malarkey” in the Indeck decision about negotiating an agreement between the owner of a project and the building trades is important after all!!!!

So….what does this new PLA do to the “primary” or general contractor?  Well, when a PLA was negotiated between the owner and the building trades and the general chose to sign the PLA, the general was agreeing to be bound to the agreement only for those crafts that the general employed on the site…..usually carpenters…laborers….cement masons….assuming the GC was self performing some of the project work.  The subcontractors the general selected for the project simply agreed to be bound for the crafts they employed….i.e. an electrical contractor was bound to the IBEW agreement through the PLA etc.

In our opinion, this new PLA binds the general to all of the trade agreements…..even if the general does not employ craft workers in a particular craft…i.e.…the general is bound to the IBEW agreement for that project.  Back in the 1960’s we called this a “wall to wall” agreement.

So….if you are a general contractor what does this mean.  Well…here are some examples of the problems this causes for the general contractor.

Right now the IBEW has decided that all of the construction that brings electrical service to the project is the IBEW’s work….so that means digging the trenches etc is within the IBEW’s scope.  The laborers have traditionally completed this work.  In this new PLA, the general is signatory to both the laborer’s agreement and the IBEW agreement.  If the Laborers and the IBEW get into a fight over this work, they used to go to a jurisdictional dispute mechanism to solve it….a mutually agreed upon party that would decide whose work it is and when the decision was made it was accepted and the project moves forward.  The GC basically stayed out of the way and let the unions decide the issue and accepted the decision….kind of a “no harm, no foul” mechanism.  Well, now because the general is signatory to the IBEW agreement, the IBEW could file a grievance and force the general into a position, that if the IBEW is ultimately awarded the work, any work that was completed by the laborers, would have to be paid also to the IBEW….the general would pay twice.

Now this example could go on an on….there are literally hundreds of criss crossing craft jurisdictions in the building trades collective bargaining agreements.

Another example…..what if a second or third tier sub to the mechanical contractor is found not to be signatory.  In the past that was the mechanical contractor’s problem….they had the only agreement with their union.  Now the general also has the same agreement.  A grievance could be filed seeking relief from both parties. 

This agreement also has a clause that states, “ If the general is terminated for all or part of the project, or if the owner takes over all or part of the project from the general, that the general is subject to liquidated damages of $30 per hour for each hour worked after the termination if the work is completed by a firm that is not signatory to the PLA.”  Hmm, in Indeck, the whole fight started when the general was replaced by the owner with another general that did not comply with the PLA.

And one more thing….the unions have included off site fabrication in the covered work description.  So…if they feel something should have been fabricated on the project but was actually fabricated in China ……yes you guessed it….a grievance will be filed and the general will be required to pay twice!!!!

Evidently, the unions are in a difficult position.  They need a PLA signed by someone, and Indeck seems to prohibit the owner.  If they do not have a PLA signed, and even an understanding with the owner that the project will be completed all union, it is a worry….what if the general comes to the owner and says….”If we open up this craft or that craft’s work to the entire market, we are going to save $500,000.”…..the unions are concerned that if they do not have a signed PLA, the owner might not see the value in the all union deal, and take the $500,000 and run….

You know Tom (Lemmon)….sometimes life just is not fair…..but as we used to say in Iowa …. “fair” is where you enter your pigs….nothing more …nothing less.!!!!

 

Mixer on the Midway….A Great Friday Night!

While AGC members throughout the country went home on Friday night, and “feasted” on cold pizza and fell asleep in front of the TV by 9 pm, over 500 AGC San Diego members were spending the evening on the aircraft carrier USS Midway… having cocktails, outstanding food, enjoying the beautiful San Diego harbor, touring the Midway, and “flying” the flight simulators on the Midway (from what I could see, few, if any of those flying the simulators would have survived the landing on the Midway….!!!)  However, the best part of the evening was getting to spend a great evening with others from the industry.

Our thanks to the Specialty Contractors Council, especially Pat Riley of American Technologies for organizing the event, and our thanks to the following sponsors that made the evening possible:

ABD Insurance - Ed Nokes
Carlin Law Group - Kevin Carlin
Cement Cutting, Inc. - Harold Grafton & Greg Becker
Echo Pacific Construction – Chris Rowe & Dan Smith
Johnson, Barnes & Finch, Inc. - Mark Finch
Rossin Steel, Inc. - Ted Rossin & Jeff Clinkscales

 

AGC News from Capitol Hill

California Judge Blocks "No-Match" Rule, but Contractors Encouraged to Comply

 

The business community and the AFL-CIO have won a major, if less than final, victory in their lawsuit against the Department of Homeland Security’s (DHS) “no-match" rule.  The rule, which took effect on September 14, is a letter from the Social Security Administration (SSA), informing an employer that employee name and social security number submitted on W-2s do not match SSA records, or a letter from DHS informing an employer that an immigration status or I–9 document presented by an employee, was not assigned to that employee according to DHS records. 

 

The U.S. District Court for the Northern District of California has issued a preliminary injunction against that rule, blocking its implementation until the court can render a final decision on the merits of the case. 

The judge issued the injunction primarily because the rule - which DHS has entitled "Safe-Harbor for Employers Who Receive a No-Match Letter" - carries a significant risk of irreparable harm to both employers and employees, while further delay in its implementation would carry little if any risk of harm to the government.   The judge also found that the plaintiffs had raised serious questions about the rationale for the rule, about the scope of the department's authority, and about the department's efforts to comply with the Regulatory Flexibility Act.
 
While AGC is encouraged by the ruling, we continue to urge members to comply fully with all immigration rules and regulations, and promptly to respond to any "no-match" letters that they receive from SSA.  It appears that DHS still has the discretion to take a harder look at any employer that ignores a no-match letter, and to use such a letter as at least one piece of evidence of what an employer knew about an individual's right to work in the United States.  
 
In meetings with AGC, DHS has made it clear that the department intends to step up enforcement of the law.  An employer that ignores discrepancies in social security numbers may therefore continue to run a risk of scrutiny.  How an employer has dealt with such discrepancies may continue to be at least one factor that DHS takes into account, as it assesses the totality of the circumstances surrounding an employer's practices, and whether the circumstances justify finding that the employer has violated the law.  
 
AGC will continue to monitor the situation carefully, and to encourage both the legislative and regulatory changes necessary to effect truly comprehensive immigration reform.  For more information, contact Mike Kennedy at kennedym@agc.org or (703) 837-5335. 

House Votes for Delayed Implementation of 3% Withholding and Against Death Tax Repeal

 

The House of Representatives voted on two tax issues vital to AGC members last week: Legislation to delay the implementation of the 3% withholding for one year, and the permanent repeal of the death tax.

 

A one-year delay of the new law requiring 3% of every payment be withheld from all contracts with federal, state and some local governments was attached to an unrelated tax measure.  Under current law, the withholding requirement begins on payments starting in 2011.  The legislation to delay the implementation of the 3% withholding until 2012 passed by a vote of 212 to 173. 

 

AGC will continue to work for a permanent repeal by urging the House to vote on H.R. 1023. H.R. 1023 is bipartisan legislation with 218 cosponsors that would simply repeal the law.
 
During a procedural motion on the same legislation, Republicans brought up a measure to permanently repeal the death tax.   The tax is due to revert in 2011 to a 55 percent tax on anything over $1 million, an untenable outcome.   A “yes” vote on the motion failed by 196-232, but AGC will continue to work for a permanent solution.

Click here to see how your congress member voted on the death tax vote.  For more information, contact Heidi Blumenthal at blumenthalh@agc.org or (202) 547-8892.

 

Fundraiser for San Diego City Council Candidate April Boling – October 23 @ Roel Construction

Although the June, 2008 Primary Election is months away, the race to replace termed-out San Diego City Councilman Jim Madaffer is underway! 

April Boling is AGC’s candidate for the 7^th District…her highest priority is fixing the City’s financial mess in order to build urgently needed infrastructure projects.  April is a Certified Public Accountant, so she will make sure the city gets the most out of its “construction dollar”. 

Please join AGC and Roel Construction for a fundraiser for April Boling on Tuesday, October 23 from 5-7 PM at Roel Construction (3366 Kurtz Street, SD, 92110, 619-297-4156).  You will have an opportunity to meet April and hear her plans for the City’s future!  Oktoberfest food and beverages will be served! 

We have attached a registration flyer for you to complete and fax to the AGC.  Contributions are accepted up to $270 per person by personal check or $540 per couple w/ joint checking account (check made payable to “April Boling for City Council”).  Note: It is unlawful for a contributor to be reimbursed by any organization, business or similar entity for a contribution supporting or opposing a City candidate.

 

 

AGC Holiday Dinner Dance - December 1, 2007

AGC members should have received their Invitations to attend the AGC Holiday Dinner Dance scheduled for December 1, 2007 at the Hotel Del Coronado. The invitations were mailed out over a week ago. This is always the grandest event of the year with AGC guests filling the Del's Ballroom in their finest formal attire. 

For those that are planning to attend and want to reserve a room, please click here for  information for the AGC Room Block.  Members will be making their own reservations directly with the Hotel Del, so be sure to identify yourself with the AGC to receive the discounted room rate. 

Contact Rae Krushensky with any questions at raek@agcsd.org.

 

AGC Tech Briefing - November 14th
Trends, Standards and Best Practices in Construction Technology

The Technology Trends in Construction Committee of the San Diego Chapter AGC presents a moderated expert panel discussion created to educate our industry on the trends, industry standards, and best practices in construction technology from a General and Subcontractor perspective.  The expert panel will consist of industry experts from local and national construction companies and vendors who will share their knowledge as it relates to the following areas:

Ÿ Building Information Modeling (BIM)

Ÿ Digital Plan Distribution

Ÿ On-Screen Takeoff

Ÿ Estimating Systems

Ÿ Scheduling & Project Management

Ÿ Paperless Technology

Ÿ Hardware Systems & Networking

The San Diego Chapter of the AGC has just recently formed a Technology Trends in Construction Committee chaired by Ed Wenz of Reno Contracting and the Committee has decided to put on this Tech Event on November 14^th from 8:00 AM – 1:00 PM at AGC (breakfast and lunch are included). This will be the first event of its kind in the San Diego construction industry, and we are anticipating a great attendance.

Please do not hesitate to contact Mandy Parent, Data Net Solutions, Inc., 760-466-1200, mparent@4datanet.com, Jessica Kovack, AGC Staff, 858-874-8560 Ext. 11, jessica@agcsd.org, or Ed Wenz, Reno Contracting, 619-220-0224, edwenz@renocon.com, should you have any questions or need additional information. Please click here for registration form.

 

Build San Diego- Awards Banquet Luncheon- November 1st

The AGC membership is invited to attend the Build San Diego Awards luncheon, which will be held Thursday, November 1, 2007 beginning at 11:00 AM at the Manchester Grand Hyatt, downtown. Over 400 members and guests are expected to attend this event, which features the “best of the best” of San Diego’s construction projects during the past two years. The membership competed in the following categories:

• Building Construction- Public

• Building Construction- Private

• Unique Small Project- Public

• Unique Small Project- Private

• Heavy/Highway

• Unique Special Project

In addition, AGC traditionally invites public and private sector owners and our political leaders to this event.  We encourage all members to attend this award banquet luncheon. Please CLICK HERE FOR INVITATION.

 

“AGC Education & Training….Building a Solid Foundation”

Safety Training Classes

OCTOBER
OSHA 10-Hour – October 15 Click here for flyer / Click here to register
Fall Protection – (changed to October 24 from Oct. 10th)  Click here for flyer / Click here to register
CPR/First Aid – October 31 Click here for flyer / Click here to register
 

Construction Education Training Classes

OCTOBER
Advanced SWPPP Training – October 16 – Click here for flyer / Click here to register
CPM Scheduling – October 17 – Click here for flyer / Click here to register
CQM – October 18-19
Real Estate Workshop – October 18 – Click here for flyer / Click here to register
Blue Print Reading 102 – 4 sessions starting October 23 – Click here for flyer / Click here to
register
Green Building Workshop- LEED – October 24 – Click here for flyer / Click here to register
Microsoft Outlook – Level Two – October 30 – Click here for flyer / Click here to register

 

All committee meetings are held at AGC unless indicated otherwise

OCTOBER
Oct 18 – Specialty Contractors’ Council – 11 AM
Oct 19 – Caltrans Liaison – 7:30 AM @ SANDAG
Oct. 24 – Education Meeting @ SDSU- 11 AM
Oct 25-   Meetings & Events- 12PM
Oct 29-   Airport Authority @ Airport- 11 AM

AGC Toastmasters- Every other Wednesday- 7 AM at the Roel Training Center. Click here

For more information, please contact the President of Toastmasters for AGC, Mandy Parent at mparent@4datanet.com

 

UPCOMING AGC EVENTS
November 1 - Build San Diego Awards  invitation
November 14 – AGC Tech Briefing 8AM-1PM
December 1- Holiday Dinner Dance- Hotel del Coronado
December 13- Annual Meeting- Hilton Mission Bay 

SAVE THE DATE – 2008  
Spring Conference in Cabo San Lucas, Mexico – April 17-20, 2008 – click here for brochure