TEACHING CONSTRUCTION LABOR RELATIONS: THE LAW CONFRONTS NEW REALITIES

INTRODUCTION

Offered annually since Winter 1983, the course is required for all Building Construction juniors. It emphasizes the legal bases for construction labor relations. B CON 395 Construction Safety, B CON 460 Construction Communications, and B CON 490 Field Productivity are all electives available to our students in subsequent quarters.

At the final class meeting of my Autumn course with the juniors, I distribute the bulletin below to get them ready for a full three hours the first night we convene. They buy a complete course packet (three-hole punched for ease of use) featuring overheads, exams, labor agreement, and more. All of my material comes off of our department's Mac Plus and our college's laser printer--this means superior clarity for the students and efficient updating each year for me.

Winter 1988
B CON 390U
CONSTRUCTION LABOR RELATIONS
W 6:30-9:20 PM
Gould 435

To be prepared for the first class on Wednesday, January 6:

Purchase a course packet from Kinko's at 4125 University Way. It will be available by December 28, but you may want to call 632-0374 before you go. Look over the material and pay special attention to the syllabus and schedule.

Purchase the required course text, Smith's Construction Labor Relations, from University Book Store. If you like, purchase the recommended text, CCH's 1987 Guidebook to Labor Relations. Both are available now. Read the pages noted below prior to class.

You will each receive a ten-week subscription to BNA's Construction Labor Report. Regularly offered for nearly $600 per year, your cost will be 50 cents per issue. Please bring a $5 check, payable to Steve Goldblatt, to the first class and I will pay BNA's invoice for $300 with one personal check.

When we meet, we will discuss administrative details and review the course packet. Then we will discuss hiring, union security, and prehire agreements--read Smith ch 2 and ch 1, pages 44-51, and Guide sec 802, 308, 818-818.8. Then we will discuss discharge, discipline, and supervision--read Smith ch 4 and Guide sec 808, 809, 811, 216, 602.

I know that you will enjoy the course. See you in January!

B CON 390U W'88

SYLLABUS

TEXT: Smith, Construction Labor Relations (Commerce Clearing House, 1984) is required. 1987 Guidebook to Labor Relations (Commerce Clearing House, 1987) is recommended. A ten-week subscription to the Construction Labor Report (Bureau of National Affairs), at a very modest student rate, is required.

COURSE DESCRIPTION: An introduction to construction labor topics, including labor-management organization, legis­lation, and regulation, collective bargaining, and job site administration.

PURPOSE: Every firm in the construction industry, whether unionized or not, deals with employees on a daily basis. They must conduct their business according to numerous rules established over the last fifty years. The purpose of this course is to provide you with enough background in the particulars of construction labor relations to avoid problems on the job.

MAJOR OBJECTIVES: As a result of satisfactorily completing this course, you will be able to understand the organ­ization of American labor-management relations; recognize key pieces of labor legislation and regulation and identify the primary purpose, issues, and impact of each; analyze labor contract terms, especially those dealing with wages, hours, and fringe benefits; recognize and distinguish certain procedures used in the processes of collective bargaining; and compare and contrast labor relations in union and open shop construction.

READING: Assigned reading is to be done prior to class discussion as listed in the schedule. Supplemental material will be put on two-hour reserve in the college library each week.

EXAMS AND REPORT: Three essay exams and a short report are required as listed in the schedule.

EVALUATION: Scores will be earned on the three exams (weighted 25%, 35%, and 30%) and the report (10%). Grades will be based on total weighted T scores.

CLASS SCHEDULE AND STRUCTURE

I have scheduled this ten-week quarter's course to meet one night each week for three fifty-minute hours, separated by two ten­minute breaks. This permits an uninterrupted discussion of the subject matter in a format I became familiar with in law school.

The, sixty-student class is divided into twelve five-person teams, six labeled "management" and six "union" for the collective bar­gaining exercise described below. Sitting together in class with their teammates, students get about one opportunity per hour to discuss a sample fact pattern in their small groups. I usually ask only open-ended questions to encourage student participation in front of the entire class and to lessen the anxiety of those who are not fully prepared.

In a semester system, the course can be expanded to include such things as labor-management history, labor economics, increased depth, and more guest speakers.

B CON 390U W'88

SCHEDULE

First January 6 Administration, overview: course packet; hiring, union security, prehire agreements: Smith ch 2, 1:44-51, Guide sec 802, 308, 818-818.8; discharge, discipline, supervision: Smith ch 4, Guide sec 808, 809, 811, 216, 602.

Second January 13 Strikes, striker rights, lockouts: Smith ch 1:28-30, 8, Guide sec 1100-1102, 212, 613, 803-806, 810, 822-824, 813; picketing, related activity: Guide sec 1103-1109; remedies for unlawful strikes, picketing: Guide sec 1112-1115.

Third January 20 First exam (25%); collective bargaining obligations, subjects: Smith ch 1:8-28,1:33-39, Guide sec 304, ch 12; bottom-up organizing: Guide ch 4.

Fourth January 27 Review exam; collective bargaining structure: Smith ch 1:1-8, 1:30-33, 1:39-44; union hierarchy, local structure: packet; negotiating concepts, preparation: packet.

Fifth February 3 Unfair labor practices: Guide ch 5 (see as needed ch 6-10); bargaining game outcomes: bargaining game report due (10%).

Sixth February 10 Restrictive agreements: Smith ch 9; grievances, arbitration: packet; employee benefit plans: packet.

Seventh February 17 Second exam (35%); open, dual shop: Smith ch 3.

Eighth February 24 Review exam; employment discrimination, affirmative action: Smith ch 6.

Ninth March 2 Wage and hour laws, prevailing wage laws: Smith ch 5; health and safety: Smith ch 7.

Tenth March 9 Third exam (30%); student evaluation.

TEXTBOOK SELECTION AND RESERVE

Textbook selection is relatively easy right now; there is only one book that is reasonably up to date--CCH's Construction Labor Relations by Arthur Smith--and it was written in 1984! Students find it harder to read than McGraw-Hill's Labor Law in Contrac­tor's Language by McNeill Stokes, but the latter was written in 1980 and is dated. CCH's Guidebook to Fair Employment Prac­tices and Guidebook to Labor Relations are revised every two or three years and should be put on two-hour reserve.

B CON 390U W'88 

BOOKS ON RESERVE

PERIODICALS: CURRENT EVENTS

Current events are the lifeblood of the course. I subscribe to or receive a number of daily, weekly, and monthly publications that are crucial to staying up to date. It can be a daunting, year-round task--I enjoy it. Three particular periodicals together are suffi­cient to provide excellent coverage: BNA's Construction Labor Report (weekly), ENR (weekly), and The Wall Street Journal (weekdays). The Journal allows instantaneous discussion of an event, whereas CLR and ENR give greater breadth and depth to issues in our industry two weeks after an event occurs.

Because so few students regularly read their local daily news­papers, these too should be studied for regional events, regional slant on national events, and state legislative matters.

Timely articles can be copied and put on two-hour reserve in the library. More importantly, they can be copied onto overhead transparencies for a powerful visual aid to classroom discussion.

B CON 390U W'88

SELECTED PERIODICALS

ABA Journal

American Bar Association (Chicago) monthly

Builder & Contractor

Associated Builders and Contractors (Washington DC) monthly

Congressional Quarterly Weekly Report Congressional Quarterly (Washington DC) weekly

Construction Labor Report

Bureau of National Affairs (Washington DC) weekly

Constructor

Associated General Contractors (Washington DC) monthly

ENR (formerly Engineering News-Record)

McGraw-Hill (New York City) weekly

Investor's Daily weekdays

Legislative Digest & History of Bills Supplement Washington State Legislature (Olympia) daily during session

Legislative Meeting Schedule & Bill Status

Washington State Legislature (Olympia) daily during session

National Journal

National Journal (Washington DC) weekly

Puget Sound Business Journal

American City Business Journals (Kansas City) weekly

Seattle Daily Journal of Commerce daily except Sunday

Seattle Post-Intelligencer daily

The New York Times daily

The Seattle Times daily

The Wall Street Journal weekdays

COLLECTIVE BARGAINING EXERCISE

Despite the common understanding that only one-third of all construction (by dollar volume) is performed by union labor, I am convinced that a collective bargaining exercise is valuable for a number of reasons. The agreement we use is an actual, current Seattle-area contract loaded with the complexities and trade-offs of many years' bargaining. It not only teaches students about terms and conditions of employment, wages and fringe benefits, and craft jurisdictional scope, it reflects our recent local economic climate. Students also learn about teamwork and negotiating, as well as the nature of multiemployer associations such as AGC.

B CON 390U W'88

COLLECTIVE BARGAINING EXERCISE

Each team member should study the June 1987 contract which begins in three pages. Each team should begin meeting imme­diately to review the plumbers and pipefitters' agreement with MCAW W in preparation for upcoming negotiations.

From your viewpoint (management or labor), select five clauses in the agreement that you would like to see changed. For each of the five clauses, draft a proposal and develop target and resistance points. A proposal is what you are going to ask for. A target point is what you hope to get. A resistance point is the limit to which you will go.

For each work classification, draft a proposal and develop target and resistance points on wages and fringe benefits effective 6/1/89 and 6/1/90. You can assume that the new contract period will run two years from 6/1/89.

Prior to negotiations, but no later than January 29, each team leader is to submit to the instructor its proposals and target and resistance points for the clauses, wages, and fringe benefits. Teams are to exchange proposals only with their counterparts (Management 1 with Union 1, Management 2 with Union 2, ...).

Then conduct two full-team bargaining sessions with "the other side". Limit the first meeting to negotiations over proposed clause changes or the monetary package. Use the second meeting for the remaining negotiations. Reduce all agreements to writing as they occur--memories do fade! No credit will be given to teams failing to reach agreement.

On February 3, the two team leaders from each "game" together will submit to the instructor one signed memorandum of agreement indicating terms of the new contract. At that class meeting, the leaders will discuss the results of their games with the entire class and our guest Jim Donaldson, MCAWW negotiator.

Two weeks later, February 17, all class members will be asked on the second exam about their particular team's and game's negotiations.

COURSE OUTLINE

My overhead transparencies, reproduced in the course packet, comprise the course outline and serve many functions. They direct the students' reading prior to each class session, lessen the burden of note-taking to make learning easier, and focus the students' exam preparation.

B CON 390U

Class 1 OH 1 HIRING

Immigration Reform and Control Act of 1986 (IRCA) Recent developments

Drug testing, negligent hiring, polygraph testing & HR 1212 Hiring hall

Source of skilled workers

Exclusive v. non-exclusive

Priority for former employees: travelers? Minimum qualifications

UNION SECURITY

Compulsory unionism Closed shop Union shop Agency shop

Right-to-work laws

PREHIRE AGREEMENTS

"Top down" organizing

Unique to construction

Voidable until Deklewa: now enforceable for its duration

At expiration, no contin presump of union's majority status Area agreements

Union security provisions

Elections

Representation

Deauthorization

Unlawful picketing

B CON 39OU Class 1 OH 2

DISCHARGE AND DISCIPLINE

Employee rights

Self-organize

Form, join, assist unions Bargain collectively Concerted activity Refrain from above

Discharge factors

Legitimate business reason: AIDS? Company rules' violation Inability to perform work Drug abuse and testing

Recent developments

Smoking, stress, wrongful discharge, references

SUPERVISION

Defined by NLRA Contractor's rights Sources and ratios Conflicting loyalties Union relationships Limited rewards Management communications Adequate training? Casual employment Union discipline

B CON 390U Class 2 OH 1

STRIKES, STRIKER RIGHTS, LOCKOUTS

The right to strike LMRA provisions

Economic v. ULP strikes

Basic NLRB definitions Recall v. reinstatement rights Conversion to ULP strike

Loss of recall or reinstatement rights Permanent employment elsewhere Employer ceases operations Strike misconduct

Discrimination against strikers Super seniority for replacements

No right to pay while on strike

Back pay for discharged strikers

Strike settlement agreements Recall rights

B CON 390U Class 2 OH 2

more STRIKES, STRIKER RIGHTS, LOCKOUTS

Sympathy strikers

Protected status Concerted activity

Refusal to handle struck work

Contractual restrictions on right to strike Scope of obligation Boys' Market injunction: criteria

Implied clause enforcement: Gateway Coal

Exceptions to no- strike clauses Sympathy strikes: Buffalo Forge ULP strikes

Safety dispute strikes

Lockouts

Offensive v. defensive

Replacement of locked-out employees

Washington in 1987: Lockheed and C 2 L 87

until 12/27/87

B CON 390U Class 2 OH 3

PICKETING AND RELATED ACTIVITY

Introduction Primary/secondary distinction

Traditional primary picketing

Primary object/secondary effect Common-situs picketing: Denver Building Trades

Reserved gate doctrine: Moore Dry Dock criteria

Sign language

Secondary employer at primary sites: General Electric criteria Handbilling: DeBartolo revisited "Area standards" picketing

Jurisdictional disputes: JA Jones criteria Organizational and recognitional picketing Picketing over a prehire agreement after Deklewa

B CON 39OU Class 2 OH 4

REMEDIES FOR UNLAWFUL STRIKES AND PICKETING

Damage suits for unlawful strikes Monetary damages (LMRA 303) Compensatory v. punitive damages Recover from union

Private injunction suits for strikes over arbitrable issues Background/history

Contractor must allege:

Mandatory arbitration procedure No-strike clause or obligation Strike subject to procedure

Breaches occurring or threatened Irreparable injury

Balanced equities favor contractor ULP complaints

NLRB procedures: charge, withdrawal, priorities, settlement, hearing, order, review, compliance, enforcement

NLRB injunctions

Responding to violence, mass picketing, trespassing Altemose Construction: settlement after 15 years

B CON 390U Class 3 OH 1

COLLECTIVE BARGAINING OBLIGATIONS

Introduction

Multiemployer bargaining

Union consent

Contractor withdrawal Unequivocal notice Timely

Unusual circumstances

Picketing "Bottom-up" organizing Good-faith bargaining

NLRA section 8(d)

Strong policy

Refusal (ULP) seen in conduct Reasonable times and places Agreement not required Subjects

B CON 390U Class 3 OH 2

COLLECTIVE BARGAINING SUBJECTS

Mandatory subjects

Wages and compensation Fringe benefits Work hours, loads, rules Safety practices Grievance procedures Meals, discounts, services Subcontracting Union security clauses No-strike clauses Drug testing

Permissive subjects Bargaining unit scope Multiemployer bargaining Supervisor contract terms Negotiators' designation Agreement ratification IAF, PAC contributions Litigation settlement Business termination

Illegal subjects

Closed shop

Certain "hot cargo" agreements

B CON 390U Class 3 OH 3

"BOTTOM-UP" ORGANIZING

Employment factors

Wages and fringe benefits Supervision

Grievance procedure Personal treatment

Union objective

Union campaign

Field representative Employees' role Authorization cards

Over 50% authorization

Over 30% authorization

Employer "good faith doubt"

Representation election

NLRB role

Election petition: 30% determination Representation hearing: appropriate unit Timing: too early? too late? Contract bar

Election: tally and objections

NLRB certification If employer wins If union wins

Employer obligation

Area agreement

Impasse

B CON 390U Class 4 OH 1

COLLECTIVE BARGAINING STRUCTURE

Definitions

Informal v. formal structure Election v. bargaining unit

Determinants

Region

Branch of industry

Single trade negotiations Advantages

Informal comparisons ' Two-part decision Disadvantages

National agreements

Parties Terms Problems

National Construction Stabilization Agreement of 1987

Project agreements

Ohbayashi for Toyota in Kentucky: yes! BE&K for USX-POSCO in California: no!

B CON 390U Class 4 OH 2

UNION HIERARCHY

Convention

Functions

Election methods: delegates or referendum Elected officers:                        General president

Secretary-treasurer

Executive board

Appointed officials: Professional staff

International representative

Intermediate level: District council

Joint board

Local

Elected officials: President

Business agent Vice presidents

Recording and financial secretaries Sergeant at arms

Committees: Executive Negotiating Grievance

Steward

Professional staff

Jurisdiction

Politics

Minority control Small attendance Elections

Recent developments

Teamsters, Manhattan carpenters, Ohio carpenters, Philadelphia roofers

B CON 390U Class 4 OH 3

UNION FINANCES

Significance

Costly activities Local autonomy Fluctuations

Sources

Dues

Fees

Special assessments Investment income

Recent developments

Variations

Craft unions Industrial unions

B CON 390U Class 4 OH 4

CONTRACT NEGOTIATION CONCEPTS

Collective bargaining Definition

Result

Characterizations

Armed truce: power relationship

Working harmony: power and rationality

Management/labor coop: rationality and problem solving

Issue types

Distributive

Integrative

Indirect factors

Attitudinal structuring Intra-organizational bargaining Target and resistance points

Planning strategy
Priorities

Arguments for proposed alternatives Presentation approach

B CON 390U Class 4 OH 5

COLLECTIVE BARGAINING PREPARATIONS

Management objectives

Maintain competitive labor costs Pursue chosen labor policy

Management team

Contractor representatives Specialists

Management preparation Identify problem areas Gather supporting data Develop bargaining book Plan negotiating course

Labor objectives

Maintain competitive labor costs Preserve jurisdictional work rules

Labor team

Negotiating committee representatives Specialists

Labor preparation

Mass meeting Wish list

"Winnowing down" the list Separate demands

B CON 390U Class 5 OH 1

UNFAIR LABOR PRACTICES BY EMPLOYERS

Interference with employee rights

Employer responsibility

Free speech v. interference

Threat v. prophecy

Employee rights v. property rights

Interference with labor unions

Discrimination against employees

Dis/encourage union membership

Who filed charges with NLRB

Refusal to bargain Mandatory subjects

Good-faith obligation

Extent of duty Surface bargaining

Certain "hot cargo" agreements

B CON 390U Class 5 OH 2

UNFAIR LABOR PRACTICES BY UNIONS

Introduction

Background/history

Employer responsibility and free speech Restraint or coercion of employees Causing employers to discriminate Refusal to bargain

Prohibited strikes and boycotts

Secondary boycott

Common-situs picketing

Reserved-gate picketing

Jurisdictional strike Excessive initiation fees Featherbedding Prohibited picketing

Organizational

Recognitional

Dual-purpose: informational? Certain "hot cargo" agreements

B CON 39OU Class 6 OH 1

RESTRICTIVE AGREEMENTS

LMRA section 8(e) prohibition

Primary v. secondary effects "Employer in the construction industry" "Entering into" an agreement Work "at the site"

Total ban on subcontracting Union signatory clauses

Connell and Woelke & Romero

"Wall to wall" clauses

Owner and CM clauses Union standards clauses

Fringe benefit delinquency clauses Work preservation clauses Union label clauses

Anti-double-breasting clauses Restrictions on truck owner-operators Picket line clauses

Enforcement provisions Summary

Antitrust law effects

Subcontracting restrictions Multiemployer bargaining

"They too" and "me too" clauses Industry fund clauses

Owner involvement in negotiations

B CON 390U Class 6 OH 2

GRIEVANCES

Grievance = alleged violation of worker rights

Violation of collective bargaining agreement

Violation of federal or state law

Violation of past practice Violation of company rules

Violation of management responsibilities

High grievance rate factors

Unfavorable task environment

Aggressive union leadership I

neffective managerial decision-making

Types of grievances

Employee

Union

Class action

Types of grievants

Nongrievants

One- or two-time grievants

Repeated grievants

Grievants responding to company disciplinary action

Management philosophy Hard-line

Cost-effective

Permissive

B CON 390U Class 6 OH 3

GRIEVANCES AND ARBITRATION

Grievance procedure

Entry: who/what/where

Range of disputes: rights, not interests Process: steps

Default: statute of limitations

Arbitration

Last resort

Selection: AAA, FMCS Arbitrator(s) role

Quasi-legal: due process, evidence, precedence Decision: binding, enforceable

Appeals: process, authority, arbitrariness

Misco: boost for finality

No-strike pledge

Exchanged for grievance procedure Boys' Market: restraining order Buffalo Forge: arbitrable grievance Wildcat strike

B CON 390U Class 6 OH 4

EMPLOYEE BENEFIT PLANS

Mandatory subject of bargaining

LMRA 302(a) Illegal to influence with money

(b) Illegal to accept money

(c) Exempts employee benefit plans

Employee Retirement Income Security Act of 1974 (ERISA) Problems with growth of private pensions

Covered plans: defined-contrib plans, defined-benefit plans,

employee welfare benefit plans, IRAs Employee eligibility and participation Employer contributions until age 70 Vesting = legally enforceable claim to benefits

Employee contributions fully and immediately

Employer contributions usually phased over time

Full vesting at retirement

Fiduciary responsibilities and liabilities: "social" investing

Insurance and bonding

Reporting and disclosure Funding of benefits by employers Limitations on contributions and benefits

Set by Tax Reform Act of 1986 (TRA) Multiemployer Pension Plan Amendments Act (1980)

Plan termination and plan termination insurance

Pension Benefit Guaranty Corp (PBGC)

Defined-benefit plans covered

Multiemployer plan member withdrawal liability

Many underfunded plans` shrinking bases?

Recent developments: Federal FY88 budget (HJRes 395), minimum health insurance coverage under S 1265, unpaid parental leave under HR 925 and S 249, pension portability under Chandler and McCain bills, Consolidated Omnibus Reconciliation Act of 1985 (COBRA)

B CON 390U Class 7 OH 1

OPEN AND DUAL SHOP

Growth and nature of open shop

ABC: "merit shop"

Advantages of dual shop Disadvantages of dual shop

Prevailing wage law and ERISA impediments Evaluating "double-breasted" operations

"Separate employer" concept

Common management

Common control of personnel and labor relations

Interrelation of operations

Common ownership and financial control

Bargaining unit criteria

"Alter ego" principles

Practical considerations Organization models Bankruptcy and open shop Union strategies

Legislative reform

HR 281 and S 492 Legal actions Subcontracting clauses Market recovery programs Organizing

Contractor strategies

B CON 39OU Class 8 OH 1

EQUAL EMPLOYMENT OPPORTUNITY

The process of discrimination

Individual

Organizational

Structural

Civil rights laws

Acknowledge and combat discrimination Administered and enforced by the EEOC

Title VII of the Civil Rights Act of 1964 as amended Prohibited discrimination

HR 3071 and S 1575: AIDS

Sexual harassment: Mentor Savings Bank Spoken accent

Covered employers

Equitable relief

Two theories of discrimination

Disparate treatment = intentional discrimination Private, non-class action, discrimination suit

Prima facie case

Employer defense

Pretext evidence

Disparate impact = discriminatory result Disproportionate adverse effect "Facially neutral" treatment "Pattern or practice" consequence Evidence of effect on protected class Use of statistics

B CON 390U Class 8 OH 2

more EQUAL EMPLOYMENT OPPORTUNITY

Age Discrim in Employment Act of 1967 (ADEA) as amended

Prohibited discrimination

No mandatory retirement since 1/1/87

Covered employers Exceptions

Executives or policymakers

Apprenticeship

Equal Pay Act of 1963 amended FLSA

Prohibited discrimination Covered employers Equal work standards

Defenses: seniority, merit, production, other non-sex factor

Comparable worth Pre-employment inquiries Recent developments

B CON 390U Class 8 OH 3

AFFIRMATIVE ACTION

Goals, not quotas: good-faith effort Voluntary programs permitted in Johnson

Executive Order 11246 (1967) as amended

Rehabilitation Act of 1973: AIDS after Arline Vietnam Era Veterans Readjustment Act of 1974

Office of Federal Contract Compliance Programs (OFCCP) Affirmative action plan:

1. Ensure harassment-free working environment

2. Develop minority and female recruitment sources

3. Maintain minority and female applicants and referrals

4. Notify director of union non-referrals

5. Develop training opportunities

6. Review EEO policy internally

7. Disseminate EEO policy internally

8. Disseminate EEO policy externally

9. Direct recruitment to minority and female organizations

10. Encourage minority and female employees to recruit

11. Conduct annual inventory and evalution

12. Ensure non-discrimination personnel practices

13. Ensure non-segregated facilities and activities

14. Document M/WBE subcontractor solicitations

15. Review supervisors' performance annually

16. Validate selection test procedures Compliance and enforcement: OFCCP under attack Hometown plans retained but governed Minority/women business enterprises (M/WBE)

Washington: C 328 L 87 set up statewide cert as of 1/1/88

Richmond VA, San Francisco Recent developments

B CON 390U Class 9 OH 1

WAGE AND HOUR LAWS

Fair Labor Standards Act of 1938 (FLSA) as amended Construction employers covered since 1967 Employee or independent contractor?

Exempt employees: executives, administrators, professionals Compensable working time

Minimum wages

Overtime pay after 40 hours/week Child labor

Recordkeeping requirements Enforcement remedies Recent developments

Bills to raise minimum wage: fed (S 837), Calif, Wash

Contract Work Hours and Safety Stds Act of 1962 as amended Federal contractors covered Overtime pay after 40 hours/week since 1/1/86

Promotes use of "flextime"

Overtime itself may not be required

B CON 39OU Class 9 OH 2

PREVAILING WAGE LAWS

Davis-Bacon Act (1931) as amended

Law History

Prevailing wages and fringe benefits Peak payroll period Similar construction Project vicinity

Time period Recordkeeping Rate request Compliance problems Labor defense Contractor violations

Helpers: DOL proposed rule changes 8/13/87 Recent developments

HR 2216 and companions, truck drivers?, Navy lease

State statutes

Washington: renewed administrative commitment since 1986

C 321 L 87: facilities leased at least 80% by the state

included since 7/26/87 Recent developments: Massachusetts, Oregon

B CON 390U Class 9 OH 3

CONSTRUCTION SAFETY

B CON 395: Spring quarter elective

Occupational Safety and Health Act of 1970 (OSHA) Definition of "construction"

Inspections: complaint, probable cause, or routine Compliance officer's visit to the jobsite

When OSHA inspector arrives

Opening conference

"Walkaround" inspection

Closing conference

Enforcement by compliance officer

"General duty" clause

Safety and health standards

Regulations

Types of violations: de minimis, non-serious, serious, repeated,

willful, failure to abate, imminent danger

Penalties for violations: record construction fines in 1987 Contractor responsibility: multiemployer jobsite Options available upon receipt of citation

Contractor defenses

How to request a variance

Recordkeeping requirements

Recent developments: right to know, hazard communications, asbestos, benzene, formaldehyde, respiratory protection, toxic exposure, excavation and trenching, safety programs, criminal charges and HR 2664, plumbers and AIDS, separate OSHA for construction, CalOSHA, L'Ambiance Plaza, TARP

In honor of Lydig Construction's Wally Sharpe
saving lives at Husky Stadium 2/25/87.

In memory of
Barry Keegan '83
(1952-1983).

EXAMS

Unlike any of our other courses, my course's three exams are exclusively essay-type. Although these are very difficult to write and very time-consuming to grade, they test the students at the upper end of Bloom's Taxonomy of Leaning--analysis, syn­thesis, and evaluation. Typical multiple-choice and short-answer formats test at the lower half of the taxonomy--knowledge, comprehension, and application.

The course packet contains the previous four years' versions of all three tests, so that students may practice answering actual exam questions. Graded exams are returned at the next class and reviewed in depth. Students with the best answer on each ques­tion are asked to recite their responses. Combined with my explanation of what I am looking for in a "perfect" answer, the class then understands both the material and their individual grades. With three 90-minute exams in ten weeks, no final exam is necessary.

B CON 390U First Exam Winter 1987

QUESTION 1 (15 points): NAIL Construction threatened some of its employees with discharge if they failed to join Carpenters Local 111, which NAIL favored, and NAIL solicited. other employees to join 111. NAIL then entered into a labor agreement, containing a union security provision, with 111. Has NAIL acted lawfully? What recourse do the employees have, if any? Discuss.

QUESTION 2 (20 points): WHITE, a subcontractor, installed an electric welding machine and assigned the job of pushing the buttons to operate the machine to members of the Ironworkers. The members of Operating Engineers Local 222 struck after BLACK, the general contractor, refused to sign a contract binding on itself and all its subcontractors which would give 222 the job of operating all equipment on the jobsite. Has 222 acted lawfully? What recourse does BLACK have against 222, if any? Discuss.

QUESTION 3 (20 points): Laborers Local 333 picketed a jobsite of ACME Construction, with signs protesting ACME's failure to meet the area wage and benefits standards. 333 never requested that ACME sign a contract with 333 and stated that the picketing would cease if ACME complied with the area standards. 333 knew that the picketing had effectively halted deliveries to ACME at the jobsite. Is 333's picketing protected? Would your response differ if 333 was handbilling instead of picketing? Would your response differ if the picketing continued after 333 had lost a representation election on the project? Discuss.

QUESTION 4 (20 points): Three employees of BEAR Construction refused to cross a primary picket line established by the Ironworkers at BEAR's jobsite. BEAR discharged the three employees--a carpenter, a laborer, and an operating engineer--by relying on a no-strike clause in each of their local's agreements with BEAR. Has BEAR acted lawfully? What recourse do the discharged employees have, if any? Discuss.

QUESTION 5 (25 points): ZERO Construction, the general contractor on a project to build a school, employed members of the Bricklayers, Laborers, and Operating Engineers. PRIME, the mechanical subcontractor, employed members of the Plumbers. EDGE, the electrical subcontractor, employed members of the Merit Labor Association which, unlike the other unions, was not affiliated with the AFL-CIO. Local 555 of the Electrical Workers picketed EDGE at the jobsite and employees of ZERO and PRIME refused to cross 555's picket line. Is the picketing protected? Are the employees of ZERO and PRIME protected? What steps should ZERO take at the jobsite in its own interest? Discuss.

B CON 390U

Second Exam Winter 1987

QUESTION 1 (15 points): What is your team ID? What did you agree upon as changes to wages and benefits in your new contract? Which team(s) proposed changes to the following two contract sections from your game and what agreement was reached on them? Game 1: overtime, shift work; Game 2: protection of rights, apprentice progression; Game 3: recognition, pre-employment processing; Game 4: grievance procedures, protection of rights; Game 5: apprentice progression, pre­employment processing; Game 6: shift work, pre-employment processing.

QUESTION 2 (20 points): MERCER Construction contracts with a non-union supplier to deliver ready-mixed concrete to a site where MERCER is engaged in the construction of an interstate highway. Teamsters Local 222 has a contract with MERCER which limits the subcontracting of on-site construction work to companies whose employees are covered by an appropriate union contract. 222 seeks to enforce this clause by interfering with deliveries of the concrete to the jobsite. Has MERCER acted lawfully? Has 222 acted lawfully? Discuss.

QUESTION 3 (20 points): While negotiating with AGC for a new contract, Iron Workers Local 333 states that it will not sign any agreement unless AGC agrees that its signatory members post payment bonds on all projects. Such bonds would assure the payment of wages and fringe benefits to 333 members employed on AGC member projects. AGC refuses to agree to the provision. 333 then ceases bargaining. Has AGC acted lawfully? Has 333 acted lawfully? Discuss.

QUESTION 4 (20 points): For many years, Plumbers Local 444 has had labor agreements with MCA. Prior to this year's negotiations for a new contract, ten members of MCA withdraw from multiemployer bargaining. 444 then rejects these employers' requests to bargain with them individually on the ground that the only unit in which 444 members wish to bargain is the MCA multiemployer unit. 444 sends letters to the ten employers, telling them that they will be struck unless they sign a form agreeing to be bound by any agreement reached between MCA and 444. Has MCA acted lawfully? Has 444 acted lawfully? Discuss.

QUESTION 5 (25 points): On consecutive days, POWER Construction is approached by Electrical Workers Local 555 and Utility Workers Local 666. 555 and 666 each claim to represent a majority of POWER's employees at its various project sites in the area. The next week, when 555 convinces POWER of its majority status by signed authorization cards, POWER negotiates a prehire agreement with 555 that contains a typical union security clause. 666 then files a petition for a representation election. Does the prehire agreement bar an election? Has POWER done enough to resolve the matter? Discuss.

B CON 390U

Third Exam Winter 1987

QUESTION 1 (10 points): What obligations does a federal contractor have to the Office of Federal Contract Compliance Programs with respect to its equal opportunity policies? Whose interests are looked out for by OFCCP? Discuss.

QUESTION 2 (20 points): The owner of a unionized lathing and plastering contracting firm which did a small amount of drywall installation discontinued her drywall operations and set up a non-union firm, under her daughter's management, to do drywall business on a much larger scale. What union tactics would be used to combat the owner's action? Discuss.

QUESTION 3 (20 points): Why is a contractor compelled to pay its hourly workers a minimum wage on private and federal work? What are some recent rule changes that affect these matters? What are some further proposed changes to resolve still-perceived problems? Discuss.

QUESTION 4 (25 points): Several Hispanic women unsuccessfully apply for bookkeeping jobs with a contractor on a large project in the Southwest. When the positions remain open, what can the women do to challenge the contractor? Can the contractor defend its actions on the basis of the women's spoken accents? Discuss.

QUESTION 5 (25 points): What legal/social/political/ economic changes will impact the construction labor environment over the upcoming few years? Discuss.

EVALUATION

Scores are earned on the three exams (weighted 25%, 35%, and 30%) and the report (10%). Thanks to John Feldhusen in Edu­cation at Purdue, grades are based on total weighted T scores-­calculated separately for each exam question. My Mac again does the tough job by computing all scores using a Microsoft Excel spreadsheet.

CONCLUSION

A course in construction labor relations is an integral part of an undergraduate construction program. The subjects covered can be quite provocative, and the students emerge from the course better prepared to contribute as citizens to the public debate.

ACKNOWLEDGMENTS

At Purdue for an interview in June 1980, Dorsey Moss asked me about teaching the construction labor relations course formerly taught by Jim Snyder. After recovering my composure, I agreed; I guess he figured that any attorney should be capable enough. The course described above is based upon my collaboration with three former Purdue colleagues--Tom Hood, Lloyd Jones, and Ron Mincy--during the 1980-82 school years. My thanks to all five for introducing me to a fascinating slice of our industry.