WORKER COMPENSASTION UPDATE:On May 6, a Kansas appeals court ruled that a construction company worker was not eligible for worker compensation benefits when he was injured on the job, and the decision may be important to the Nebraska construction industry in the future. The worker in question operated a roller which leveled dirt before laying down asphalt. When the employee tried to back the machine over a large pile of dirt, it tipped over causing severe injuries and requiring hospitalization. The employee was not wearing a seatbelt at the time and a drug test revealed that the employee had more than four times the level of marijuana in his system required to establish a conclusive presumption of impairment. The Kansas Workers’
Compensation Board awarded worker compensation benefits but the Court of Appeals reversed that decision noting that the evidence justified a conclusion that the employee’s marijuana impairment contributed to his injuries and justified a denial of worker compensation benefits. Neb. Rev. Stat. § 48-127 also denies worker compensation benefits if the employee was injured by reason “of being in a state of intoxication.” The burden of proving intoxication is, of course, on the Nebraska contractor attempting to assert the defense. However, the decision in Kansas may be of assistance in that regard. At a minimum, the Kansas decision reminds all Nebraska construction industry employers that it is a good idea to have a policy requiring post-accident drug testing. By Bill Harding, Chapter Attorney
EPA DELAYS ENFORCEMENT OF LEAD SAFETY PROGRAM: The Environmental Protection Agency (EPA) June 18 announced that it will delay enforcing its new Lead-Safe Renovation, Repair and Painting Program until Oct. 1. The final rule, which went into effect in April, mandates that contractors performing renovation, repair and painting projects that disturb more than six feet of lead-based paint in most pre-1978 homes, child care facilities and schools must be certified and follow specific work practices to prevent lead poisoning.
According to a memo from a top EPA official to regional enforcement directors, the agency will not enforce the lead-safe rule’s certification provision until Oct. 1. Furthermore, individual renovation workers will not be penalized if they have enrolled in training classes by Sept. 30, as long as the training is completed by Dec. 31. The memo also stresses that contactors performing work that triggers the lead-safe rule will still be expected to comply with the rule’s work practice requirements during this period.
ABC CRITICIZES PROPOSED RULE THAT COULD AFFECT RIGHTS OF FEDERAL CONTRACTORS: ABC June 14 filed comments with the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council opposing a proposed rule implementing Executive Order 13494, “Economy in Government Contracting.” The executive order was issued in January 2009 and prohibits federal contractors from being reimbursed for costs associated with educating employees about joining a union, including preparing and distributing materials; hiring or consulting legal counsel; holding meetings; and activities planned or conducted by managers, supervisors or union representatives during work hours.
ABC criticized the proposed rule for being a misguided attempt to regulate labor policy through the procurement process and in a manner preempted by the National Labor Relations Act. In its comments, ABC expressed concern that the classification of the costs listed as “unallowable” in the proposed rule will significantly diminish a contractor’s ability to inform employees about the potential disadvantages of unionization and to engage in legal counsel in the face of organizing campaigns – both of which are legal, protected activities.
ABC also pointed out the proposed rule would especially have a negative impact on contractors for which government projects comprise the bulk of their workload because the overhead associated with the having to pay for the costs of protected activities out of pocket would result in lower profit margins. Contractors that cannot afford to bear these expenses would essentially have their protected rights eliminated because they would no longer be able to engage in these activities. In addition, while the proposed rule does not currently include explicit recordkeeping or disclosure requirements, ABC is concerned that employers may be required to record and retain records on their unallowable expenses, and then submit the information to government entities.
SUPREME COURT RULES NLRB CANNOT DECIDE CASES WITH ONLY TWO MEMBERS: The U.S. Supreme Court June 17 ruled that the National Labor Relations Board (NLRB) was not authorized to issue decisions during a 27-month period when three of its five seats were vacant, invalidating more than 500 decisions. The 5-4 decision by the Supreme Courtresolved a series of conflicting appellate court opinions by clarifying what constitutes a quorum on the board. According to the court opinion, the NLRB must have at least three members in order to issue decisions.
“The Supreme Court’s decision is embarrassing for the Administration because of the failure to fill the Board’s empty seats for such a long period of time,” said Maurice Baskin of Venable LLP, ABC’s general counsel. “This resulted in cases being decided, mostly against employers, without legal basis.” The ruling did not dictate how the NLRB should handle the previously decided two-member cases. The NLRB will have to decide which cases need to be revisited and what procedures should be adopted to comply with the Supreme Court’s decision.
UNION ORGANIZING UPDATE:On May 26, a representative of the Teamsters Union gave a speech at the Labor and Employment Relations Association’s luncheon program entitled, “Not Your Father’s Union: New Strategies Because it is a New World.” James Kimball, the Director of Economics and Contracts for the Teamsters Union, noted that in 1950, 25% of the non-agricultural workers in the private sector were represented by a union but today that figure remains at just 7%. Kimball suggested two primary approaches for the Teamsters Union and all unions to take in union organizing. First, Kimball suggested that unions target young people which, as a group, were not historically a target for union organizers. Kimball suggested that union organizers access and target audience through social networks such as Facebook, Twitter and blogs. Second, Kimball suggested that unions need to learn more about company operations so that they can deliver a message of cooperation, rather than confrontation. Kimball gave an example of a food distribution company in Minneapolis, which was moving to an all new automated stocking system, which will eliminate 300 jobs. The Teamsters worked with the company to create positions within the bargaining unit for the repair and maintenance of the new machines creating 150 jobs for a net loss of only 150. If other unions are listening, the suggestions advanced by the Teamsters Union may be the approaches followed in the construction industry to organize open-shop contractors. By Bill Harding, Chapter Attorney