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ABC Beltway Blueprint: Infrastructure Update and PRO Act Hearing in the Senate

ABC Beltway Blueprint: Infrastructure Update and PRO Act Hearing in the Senate

Infrastructure Update:
While Senate Majority Leader Chuck Schumer, D. N.Y, continues to push a procedural vote this week on the bipartisan infrastructure bill currently being negotiate, final legislative text has not been agreed to as issues remain with policy language included in the bill and pay-fors. Without a finalized deal, Schumer plans to use existing Senate legislation as the vehicle to move forward in a procedural vote that could be amended with the finalized deal language at a later date.

Lead Republican negotiator on the bill Sen. Rob Portman, R-Ohio, stated “It’s absurd to move forward with a vote on something that’s not yet formulated,” making it unlikely that Republicans will move forward on a procedural vote without the full legislative text of an agreement. Any vote to move forward would need 60 votes to pass, which will require all 50 votes in the Democratic caucus and at least 10 Republican votes, which remains unlikely at this time.

The bipartisan group of 22 U.S. Senators are still working to finalize the infrastructure deal but outstanding issues remain on how to pay for the new spending provided under the bipartisan group’s framework, and Sen. Schumer is facing a tight deadline ahead of the August recess. If no deal can be reached on infrastructure spending, Democrats still plan to go it alone through the budget reconciliation process that could provide trillions more in funding for Democratic priorities, though would have to obtain support from nearly all Democrats in the House and all 50 in the Senate to pass.

ABC continues to advocate for key policies that ensure no restrictive labor provisions are included and that any bipartisan deal supports the construction industry and fair and open competition for infrastructure projects.

Ask Your Senators to Oppose PLA Mandates in Infrastructure Legislation
If you live in one of the following states, please consider reaching out to your senator(s) included in the group of 22 bipartisan negotiators: Alaska, Arizona, Colorado, Delaware, Indiana, Kansas, Louisiana, Maine, North Carolina, New Hampshire, Nevada, Ohio, South Carolina, Virginia, West Virginia. The link only works for individuals located in these states.

Senate PRO Act Hearing Thursday:
The U.S. Senate Committee on Health, Education, Labor and Pensions will hold its first hearing on the PRO Act (S. 420) this Congress. Among the list of witnesses for the Democrats include Mark Pearce, who served as Chairman of the National Labor Relations Board during the Obama Administration from 2011-2017. ABC opposed President Trump’s renomination of Pearce to serve on the board in 2018, citing his positions on the joint employer standard and ambush union elections, among others. The hearing is a dangerous step forward by Democrats to push for a vote on the legislation. However, as it currently stands, the PRO Act only has the support of 47 Senate Democrats.

ABC has drafted a letter to the committee ahead of the hearing which will include all ABC chapters that do not OPT OUT of signing onto the letter. You may view the letter here, and if you would like to opt out, please email [email protected].

Reminder that the Free Enterprise Alliance has created a website dedicated to pushing back against the PRO Act with an action alertone-pager and social media tool kit.

Texas Judge Blocks New DACA Applications:
A Texas federal judge ordered the U.S. Department of Homeland Security to stop approving new applications under the Deferred Action for Childhood Arrivals program, ruling Friday that the executive branch overstepped its discretionary authority when it created the program.

In a 77-page ruling, U.S. District Court Judge Andrew Hanen found that DACA is unlawful and that the Department of Homeland Security can no longer approve new applicants into the program, which has granted work permits and protection from deportation to immigrants brought to the U.S. as children. Hanen also ruled, however, that DHS could continue to process DACA renewals for now as the issue continues to move through the courts.

President Biden called the ruling ‘deeply disappointing’ and said the Department of Justice would appeal the decision while urging Congress to act on the issue.

Treasury Coronavirus Recovery Funds FAQ on PLAs and NEPA:
Yesterday, the U.S. Treasury Department updated their Coronavirus State and Local Fiscal Recovery Funds FAQs that provided further clarification of the Davis-Bacon prevailing wage issue. Please see below:

6.17. Are eligible infrastructure projects subject to the Davis-Bacon Act? [7/14]

The Davis-Bacon Act requirements (prevailing wage rates) do not apply to projects funded solely with award funds from the CSFRF/CLFRF program, except for CSFRF/CLFRF-funded construction projects undertaken by the District of Columbia. The Davis-Bacon Act specifically applies to the District of Columbia when it uses federal funds (CSFRF/CLFRF funds or otherwise) to enter into contracts over $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works. Recipients may be otherwise subject to the requirements of the DavisBacon Act, when CSFRF/CLFRF award funds are used on a construction project in conjunction with funds from another federal program that requires enforcement of the Davis-Bacon Act. Additionally, corollary state prevailing-wage-in-construction laws (commonly known as “baby Davis-Bacon Acts”) may apply to projects. Please refer to FAQ 4.10 concerning projects funded with both CSFRF/CLFRF funds and other sources of funding.

Treasury has indicated in its Interim Final Rule that it is important that necessary investments in water, sewer, or broadband infrastructure be carried out in ways that produce high-quality infrastructure, avert disruptive and costly delays, and promote efficiency. Treasury encourages recipients to ensure that water, sewer, and broadband projects use strong labor standards, including project labor agreements and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions, not only to promote effective and efficient delivery of high-quality infrastructure projects, but also to support the economic recovery through strong employment opportunities for workers. Using these practices in construction projects may help to ensure a reliable supply of skilled labor that would minimize disruptions, such as those associated with labor disputes or workplace injuries. Treasury has also indicated in its reporting guidance that recipients will need to provide documentation of wages and labor standards for infrastructure projects over $10 million, and that that these requirements can be met with certifications that the project is in compliance with the Davis-Bacon Act (or related state laws, commonly known as “baby Davis-Bacon Acts”) and subject to a project labor agreement. Please refer to the Reporting and Compliance Guidance, page 21, for more detailed information on the reporting requirement.

The document included an additional FAQ on the NEPA:

6.4. Does the National Environmental Policy Act (NEPA) apply to eligible infrastructure projects?

NEPA does not apply to Treasury’s administration of the Funds. Projects supported with payments from the Funds may still be subject to NEPA review if they are also funded by other federal financial assistance programs.

Reminder—ABC-Led Coalition Advocacy Campaign Against PLA Mandates:
Build America Local, a coalition of construction industry and business organizations led by Associated Builders and Contractors, is currently running a six-figure issue advocacy campaign aimed at educating Americans and members of the U.S. Senate about controversial government-mandated project labor agreements that reduce competition and increase costs for the construction of taxpayer-funded affordable housing, clean energy and infrastructure projects across America.

Today, the publication Construction Dive highlighted the issue advocacy campaign at the top of their newsletter, saying “As the negotiating over a bipartisan infrastructure deal continues in Washington, whether PLAs are included is sure to remain a key issue, as Democrats push to include them and construction employer organizations like ABC fight to make sure they aren’t.”

The campaign urges senators to oppose government-mandated PLA schemes as bipartisan infrastructure negotiations continue between a select group of Senate Republicans and Democrats and the Biden administration.

“As Congress works to craft infrastructure legislation, it is critical for the U.S. Senate to oppose government-mandated PLAs so all qualified contractors and construction workers have the ability to fairly compete and build America’s infrastructure,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Ensuring fair and open competition on taxpayer-funded construction projects will ultimately result in savings to taxpayers, more opportunities for all qualified small businesses, minorities and women in the construction industry, and the construction of more quality infrastructure projects so America can Build Back Better and faster.”

ABC chapters and members can access ABC National’s press release on the campaign here and are encouraged to share this website and announcement with external stakeholders and potential coalition members interested in the status of PLA language as infrastructure talks continue.

ABC Beltway Blueprint: House Democrats Push Forward with Budget Reconciliation

House Democrats Push Through Budget Framework for Reconciliation:
Yesterday, all 220 Democrats in the U.S. House of Representatives voted for a $3.5 trillion budget resolution embedded in a House rule that also sets a Sept. 27 deadline for a House vote on the Senate’s bipartisan $1.2 trillion infrastructure package. The measure provided passage of the budget resolution that moves the partisan budget reconciliation process forward and also included a commitment to ensure consideration of the Senate’s Infrastructure Investment and Jobs Act that quelled the concerns from a group of ten House Democrats that held talks with Democratic leadership this week after urging for a vote on the IIJA before considering passage of the budget resolution. Speaker Pelosi has continued to call for passing the completed budget reconciliation bill before or in tandem with the bipartisan infrastructure proposal.

ABC sent a letter to the House yesterday opposing the reconciliation package and expressing concerns about the impact of the partisan proposal’s tax hikes and labor requirements on the nation’s construction industry.

Of note, key votes for Senate Democrats, Sen. Joe Manchin, D-W.Va., and Sen. Kyrsten Sinema, D-Ariz., have made clear their opposition to the $3.5 trillion price tag on the current budget proposal and their opposition will likely lead to further discussions among Democrats on a viable proposal that can pass through both chambers and support the president’s policies.

House committees will begin marking up their portions of the $3.5 trillion reconciliation package bill next week and plan to assemble the full package by mid-September ahead of the promised infrastructure vote. Congress is faced with critical deadlines at the end of September including the expiration of the current surface transportation authorization and government funding for federal agencies.

The House yesterday also passed H.R. 4, the John Lewis Voting Rights Act, House Democrat’s proposal to restore provisions on minority voting originally enacted as part of the 1965 Voting Rights Act, but that were struck down by the U.S. Supreme Court several years ago. Unlike the ABC-opposed, so-called For The People Act (H.R. 1/S. 1), this legislation was narrowly focused on the judiciary and avoided larger election reform issues supported by Democrats.

Potential Labor Provisions in $3.5 Trillion Reconciliation Bill:
There are also reports that there will be some labor provisions included in the $3.5 trillion reconciliation bill, the two most discussed possibilities have been increased penalties for violations of the National Labor Relations Act and deductibility of union dues. Democrats might also look to include new requirements that would make it harder for workers to qualify as independent contractors and additional financial support for striking workers. The provisions would need to pass the scrutiny of the budget reconciliation Byrd Rule that prevents extraneous measures from passing through the reconciliation process, though Democrats believe the employer penalties and tax provision should be deemed germane to the federal budget. ABC will continue to provide critical information on the progress of the reconciliation package.

As a reminder, the Senate wrapped up their final votes before leaving town for August recess, passing their budget resolution in a 50-49 vote that will set the stage for a proposed $3.5 trillion partisan spending bill through the budget reconciliation process. The Senate concluded its “vote-a-rama” on amendments to the budget resolution, which included several GOP amendments on issues from taxes to immigration. ABC, as part of the Main Street Employers coalition, also issued a statement of support for an amendment from Sen. Steve Daines, R-Mont., that would prevent changes to the 199A tax deduction for small businesses, and also joined a coalition in support of an amendment by Sen. John Kennedy, R-La., to preserve Section 1031 of the tax code affecting like-kind exchanges.

REMINDER – 2021 Congressional Recess Grassroots Toolkit
ABC National Government Affairs has posted this year’s Congressional Recess Grassroots Toolkit in the abc.org academy, and it is also available on National Connections. Members are encouraged to review and utilize this comprehensive resource with the latest legislative updates during the August recess period. Included in the toolkit are the 116th Congress Eagle Award recipients and their staff contact information.

Please contact Patrick McCarty ([email protected]) for any questions or feedback regarding the Grassroots Toolkit. Please contact Shreya Kanal ([email protected]) with any questions related to Eagle Awards.

ABC Beltway Blueprint

Budget Reconciliation Outlook:
Last week, all 220 Democrats in the U.S. House of Representatives voted for a $3.5 trillion budget resolution embedded in a House rule that also sets a Sept. 27 deadline for a House vote on the Senate’s bipartisan $1.2 trillion infrastructure package. The deal was punctuated with a statement from Speaker Pelosi, memorializing the mutual understanding of the terms, and a nominal commitment from Pelosi to only vote on a reconciliation bill “that can pass the Senate,” though progressive Democrats in the House pushed back, reiterating threats to vote against the bill unless they first vote for the reconciliation package, adding to the pressure to negotiate, draft, vet, and whip the bill in a matter of weeks.

House committees will begin marking up their portions of the $3.5 trillion reconciliation package bill this week and plan to assemble the full package by mid-September ahead of the promised infrastructure vote. Congress is faced with critical deadlines at the end of September including the expiration of the current surface transportation authorization and government funding for federal agencies. Today, ABC sent a letter to the House Small Business Committee outlining concerns with the reconciliation package, including potential tax increases and labor requirements for small construction companies.

Also last week, ABC sent a letter to the House opposing the reconciliation package and expressing concerns about the impact of the partisan proposal’s tax hikes and labor requirements on the nation’s construction industry.

Of note, key votes for Senate Democrats, Sen. Joe Manchin, D-W.Va., and Sen. Kyrsten Sinema, D-Ariz., have made clear their opposition to the $3.5 trillion price tag on the current budget proposal, while progressives have called the $3.5 trillion proposal a compromise. These opposing views will lead to further discussions among Democrats on a viable proposal that can pass through both chambers and support the president’s policies.

ABC Tells OSHA Not to Expand COVID-19 Emergency Temporary Standard to Construction:
On Aug. 20, the Construction Industry Safety Coalition, of which ABC is a steering committee member, submitted comments in response to the U.S. Department of Labor’s Occupational Safety and Health Administration’s Occupational Exposure to COVID-19; Emergency Temporary Standard interim final ruleRead more.

EEOC Announces New Filing Deadline for EEO-1 Component 1 Data Collection for 2019 and 2020:
Due to the continuing impact of COVID-19 on business operations, the U.S. Equal Employment Opportunity Commission announced on Aug. 18 that the 2019 and 2020 EEO-1 Component 1 data collection filing deadline has been extended to Monday, Oct. 25, 2021. The deadline was previously extended from July 19 to Aug. 23. Read more.

NLRB’s New General Counsel Issues Memorandum Outlining Priorities:
On Aug. 12, the National Labor Relations Board’s new general counsel, Jennifer A. Abruzzo, issued Memorandum GC 21-04 to all NLRB regional offices, which outlines the priorities of the Office of the General Counsel. Read more.

ABC Beltway Blueprint: ABC Action Alert and Reconciliation

Yesterday, ABC issued an action alert opposing the House’s efforts to move forward with the partisan budget reconciliation process that could result in tax hikes and far-reaching labor requirements for ABC members. Please urge your representatives to oppose this package this week as House Committees continue to mark up their sections of the package.

ABC also joined a coalition of organizations in a letter to the House Ways and Means Committee opposing efforts to cap the Section 1031 like-kind exchange tax provision currently in law. ABC also plans to provide committees with several other letters highlighting concerns with the reconciliation package and its potential to impact the construction industry.

Today, the Ways and Means Committee released a significant portion of the Democrats’ $3.5 trillion reconciliation bill dealing with universal paid family and medical leave, retirement, childcare, Trade Adjustment Assistance, Medicare and more and posted the legislation on its website hereThe Ways and Means Committee markup is scheduled to begin Thursday at 10 a.m. to address these provisions while the tax portions of the bill will be considered next week.

CAMMU Press Release on Steel Prices:
Last week, the Coalition of American Metal Manufacturers and Users (CAMMU), of which ABC is a member, released a statement calling for the complete elimination of the Section 232 tariffs. The release highlights the record high steel prices for U.S. manufacturers and notes the “shortage of steel in the United States that will only worsen if and when Congress passes an infrastructure bill,” and calls on the Biden Administration to eliminate the Section 232 tariffs. The release also included the CAMMU steel price chart can be found here.

ABC Beltway Blueprint: Biden COVID Plan, ABC and CDW Action on Reconciliation, PRO Act Letter to Mayors, Anti-“Salting” Bill, and TPS Extension

President Biden to Announce Six-Part Plan to Combat COVID-19
At 5pm this evening, President Biden will unveil a six-part plan to combat coronavirus, which will include signing an executive order to require COVID-19 vaccinations for federal workers, including contractors that do business with the federal government.

The Wall Street Journal has also reported and the White House posted on its website that the President’s plan will also require employers with 100 or more employees to mandate vaccines for their workers or require testing at least once a week and will be required to provide paid time off for receiving vaccinations. Vaccines will also be required for health care workers at hospitals and facilities that receive Medicare or Medicaid reimbursements. The information states the Labor Department in the coming weeks plans to issue an emergency temporary standard implementing the new requirement, which will cover 80 million private-sector workers, officials said. Businesses that don’t comply can face fines of up to $14,000 per violation.

ABC is closely monitoring the announcement and will provide updates on the proposed requirements for employers.

REMINDER—ABC Action Alert:
Earlier this week ABC issued an action alert opposing the House’s efforts to move forward with the partisan budget reconciliation process that could result in tax hikes and far-reaching labor requirements for ABC members. Please urge your representatives to oppose this package this week as House Committees continue to mark up their sections of the package.

ABC Letters to Ways and Means Committee:
This week, ABC also sent a letter to the House Ways and Means Committee expressing concerns with the tax proposals and paid leave mandate ahead of the committee’s mark-up today. ABC also joined coalitions in three additional letters addressing stepped up basisSection 199A deduction, and Section 1031 like-kind exchanges.

House committees have begun formulating legislative text that is in line with their budget resolution instructions. The tentative mark-up schedule puts all 13 House committees on track to hit the Sept. 15 deadline for drafting the full reconciliation bill. That would then enable the House to bring the reconciliation bill to the floor before it votes on the Infrastructure Investment and Jobs Act, the bipartisan infrastructure bill, on Sept. 27.

CDW Statement on Budget Reconciliation:
Today, the Coalition for a Democratic Workplace (CDW), composed of more than 600 major business organizations, released a statement in response to the draft budget reconciliation bill from the House Education and Labor Committee, which includes provisions from the Protecting the Right to Organize (PRO) Act, including excessive penalties, unnecessary restrictions negatively impacting opportunities for gig workers and limiting employer free speech, and $5 million aimed at replacing secret ballot in union representation elections with phone-based voting— which would expose employees to union intimidation.

You can also view more information on the civil penalties included in the package in this write up from Littler. ABC will continue to provide additional updates on this proposal as it progresses through Congress.

President Biden also reaffirmed his support for restrictive labor policies and the PRO Act in an address to labor union yesterday.

CDW PRO Act Letter to Conference of Mayors:
Last month, The US Conference of Mayors passed a resolution “support[ing] the Protecting the Right to Organize (PRO) Act and other federal legislation to protect public employee collective bargaining.” It was sponsored by 15 mayors. Today, the Coalition for a Democratic Workplace responded to the resolution in a letter authored by ABC’s Kristen Swearingen that urges the United States Conference of Mayors to reconsider its support of the PRO Act.

ABC-Supports Anti-“Salting” Legislation in U.S. House:
On Sept. 8, Rep. Rick Allen, R-Ga., a member of the House Education and Labor Committee, introduced the ABC-supported Truth in Employment Act, H.R. 5178. This legislation would amend the National Labor Relations Act to protect small businesses and their employees from the coercive tactic used by big unions known as “salting,” which makes small businesses targets of harassment campaigns designed to increase forced unionization. ABC issued a statement on the legislation and has long opposed the detrimental impacts of salting abuse and will continue to work with the House Education and Labor Committee and the Senate Health, Education, Labor and Pensions Committee to educate Congress about the negative effects that the practice has on small businesses.

TPS Extension:
In a document scheduled to be officially published tomorrow September 10, 2021, the Federal Register has announced a 15-month automatic extension of Temporary Protected Status (TPS) for all current beneficiaries of El Salvador, Honduras, Nicaragua, Haiti, Nepal and Sudan.

OFCCP Issues 2021 Corporate Scheduling List for Construction Contractors
The Office of Federal Contract Compliance Programs has issued the latest Corporate Scheduling Announcement List for construction contractors for fiscal year 2021, which includes 400 federal contractors, federally assisted contractors and subcontractors. Read more.

Statewide Vaccination Mandate Tracker:
Littler Mendelson has put together this chart tracking statewide vaccination mandates, which covers directives that affect public or private entities as employers, including state contractors.  The chart also indicates states where local vaccine mandates may be applicable. ABC National will continue to share this and other resources tracking state and local mandates as they are issued.