ABC LEADERS MEET WITH PRESIDENT BUSH TO DISCUSS ENERGY CRISIS: ABC Executive Committee member Michael J. Uremovich and Kirk Pickerel, ABC president and CEO, August 12 met with President George W. Bush at the White House to discuss the impact high energy prices are having on the commercial and industrial construction industry. During the hour-long session, Uremovich voiced his concerns about rising fuel prices and changes in company policies as a result of higher energy costs.  “The energy crisis has driven up costs in all aspects of our business,” said Uremovich.  “Not only have we made changes to company travel policies and felt the impact on our fleet of more than 100 vehicles, but for the first time since STARCON International was founded 25 years ago, we had to lay off employees. Additionally, our clients have cancelled or postponed nearly $2 billion of projects which translates to fewer jobs.”

ABC, as a member of the Coalition for Affordable American Energy, joined eight other national trade associations in the discussion. Each organization outlined its policy position on energy to President Bush. Uremovich told President Bush that ABC believes a sensible, comprehensive energy policy must be put in place to help ease the financial burden on businesses, families and employees.  Uremovich said President Bush firmly stated that the U.S. Congress needs to have an up-or-down vote on offshore oil drilling, without any other issue that would “muddy the waters.” He added that President Bush said “it’s what the American people want.”

ABC ANNOUNCES CHANGES TO APPLICATIONS FOR LEGAL ASSISTANCE: ABC recently announced significant changes to the Construction Legal Rights Foundation’s (CLRF) applications for legal assistance, issue advocacy and rapid response funding.  The changes are designed to make both the application and funding processes clearer and easier for applicants and to help ensure the information provided to CLRF is as complete as possible.  In addition, the updated applications can be submitted directly to the CLRF administrator in electronic format.  As a result, forms will no longer have to be filled out manually.

ABC WARNS THAT PROPOSED E-VERIFY RULE MAY BE ILLEGAL:ABC August 11 filed comments with the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council, pointing out the legal and financial ramifications of a proposed rule that would require contactors to use the E-Verify employment verification system for all employees working on federal contracts.  The proposed rule would amend the Federal Acquisition Regulation and require that contractors and subcontractors enroll in the E-Verify system within 30 days of being awarded a contract, use E-Verify to confirm the employment eligibility of all employees directly performing work on the contract and comply with the requirements of the E-Verify program for the duration of the contract.

In its comments, ABC said it is opposed to the hiring of illegal workers and supports the need for comprehensive immigration reform that will address the broad range of immigration issues.  ABC noted that it supports employers’ use of the E-Verify program as the law permits. However, ABC also pointed out that the current governing terms and conditions for employers to use the E-Verify system only allow the program to be used for new hires and that until those terms are modified by Congress, requiring the broader use of E-Verify for contractors would be illegal.  “ABC opposes the employment of undocumented immigrants,” the comments stated.  “However, at the current time neither the President nor the Councils have the legal authority to adopt and require the employment verification requirements that have been proposed in this rulemaking.  Under the governing statute, the use of E-Verify is strictly voluntary, and even then, E-Verify can only be used to verify the employment of new employees.”  ABC also noted that all employers, not just federal contractors, are required to comply with the I-9 requirements when verifying employment eligibility of workers and that requiring contractors on federal contracts to use the E-Verify system for existing employees who have already been cleared using the I-9 would expose contractors to a number of potentially significant problems, including fines and penalties and civil lawsuits.

BARGAINING UNIT UPDATE:Supervisors are to be excluded from bargaining units under the NLRA.  In the construction industry, job site superintendents are normally excluded from union contract bargaining units and working foremen are normally included in such bargaining units.  On July 30, 2008, the United States District Court for the Eastern District of Pennsylvania issued a decision reminding construction industry contractors with a union contract that this line may be blurred by the actions of the contractor.  The contractor in question hired a journeyman employee but later asked the journeyman to open and manage an office in another state.  At that point, the employee no longer performed journeyman work and served as a company management representative.  Instead of excluding the manager from the bargaining unit, the construction company continued to treat the office manager’s job as being covered by the union CBA and made payments into the union benefit fund.  After the employee experienced some health problems, his workweek was cut to 32 hours per week and payments to the benefit fund were reduced accordingly.  However, the construction company continued to pay additional compensation to the employee as “management wages” and no contributions were made to the benefit fund for such payments.  Predictably, the benefit fund sued in federal court to recover payments on the “management wages” and the federal district court agreed with the union benefit funds.  The construction company could have avoided the litigation by simply removing the office manager from the bargaining unit.  Failure to do so led to the federal court litigation and the requirement that benefit fund contributions be made on all compensation given to the office manager.  This decision reminds all construction industry employers that careful and complete separation between management personnel and bargaining unit personnel must be established when it comes to wages and benefits paid.  Failure to do so might result in litigation like this case.                                                                    By Bill Harding, Chapter Attorney