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WECA Political Update February 17, 2022

Thursday, February 17, 2022

Eighty More Hours of Paid Sick Leave California businesses with more than 25 employees must now offer paid Covid sick leave under legislation Newsom signed recently. The new law applies to roughly 75 percent of California workers. SB 114 is retroactive to Jan. 1 and represents a significant win for labor groups, which have argued state leaders were irresponsible for allowing sick leave protections to lapse. The bill requires covered employers to provide up to 80 hours of additional sick leave, half of which can be used to care for a Covid-positive family member or a child whose school or childcare facility closes for Covid-related reasons. Most California employees are guaranteed three days of sick leave under the state’s permanent law. Federal guidelines from the Centers for Disease Control and Prevention recommend that workers isolate for five days after testing positive, while some California counties and cities require longer isolation periods. Employers with 25 or fewer workers are not subject to the new mandate.

Biden Mandates PLAs on Federal Construction The breadth of February 4, 2022, Executive Order signed by President Biden is greater than EO 13502 signed by former President Obama in 2009 (which was never reversed by President DJT). For instance, while the Obama EO only encouraged federal agencies to use PLAs on projects valued at more than $25 million, the Biden EO mandates PLAs on projects valued at greater than $35 million. It has been reported that the new EO could affect as much as $262 billion in federal contracts and over 200,000 construction workers based on FY 2021 numbers. The Biden EO applies only to directly financed federal construction projects and not other projects funded with federal monies. Federal agencies also may exclude a project from the PLA mandate if it believes a PLA will not achieve economy and efficiency. There has been significant commentary about the discriminatory effect the EO will have on construction workers who do not work for signatory contractors. Both ABC and AGC have issued statements saying most workers in the construction industry are not members of a union and PLAs reduce their work opportunities. It also has been noted that PLAs reduce competition and drive up costs. You can read a recent letter they sent to Biden here.

Challenging government-mandated PLAs through the courts has not met much success in the past. ABC successfully opposed the use of PLAs on specific projects under the Obama EO, but this was done on a case-by-case basis where the federal agency had the discretion not to use a PLA on a large federal project. Broad legal challenges to the government’s use of PLAs have been hampered ever since the Supreme Court’s decision in Building and Construction Trades Council of the Metropolitan District v. Associated Builders and Contractors of Mass./R.I., Inc., 507 U.S. 218, 226-227 (1993) (Boston Harbor). The Boston Harbor case centered on whether a state or local government requirement that contractors sign a PLA on a public work was preempted under the federal National Labor Relations Act. The preemption argument is significantly weakened because the federal executive is imposing a PLA.

Section 4 of the Biden EO contains the basic requirements of the PLA and states that they shall:

(a) bind all contractors and subcontractors on the construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;

(b) allow all contractors and subcontractors on the construction project to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;

(c) contain guarantees against strikes, lockouts, and similar job disruptions;

(d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement;

(e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and

(f) fully conform to all statutes, regulations, Executive Orders, and Presidential Memoranda.

While further study is underway, the Biden EO does not on its face prohibit non-signatory contractors from using their core employees; require them to use union hiring halls; or pay trust fund contributions to multi-employer trust funds. While there is hope that a “fair” PLA may come from this, more restrictive requirements may be mandated through regulation or individual federal agencies.

Biden lays out a program for $5 billion in EV charging infrastructure. The Biden administration has launched the process to distribute $5 billion to states to expand the nation’s network of charging stations for electric vehicles and speed the adoption of the technology that plays a significant role in the White House’s efforts to fight climate change. The funds — along with another $2.5 billion coming later this year for discretionary charger grants — are designed to help achieve Biden’s target for electric vehicles to make up half of all new vehicle purchases by the end of the decade. EV sales in the U.S. have lagged the levels seen in other industrialized countries. The latest effort forms a core part of President Joe Biden’s climate strategy, particularly with additional measures in Democrats’ Build Back Better bill dead in the water. The 31-page guidance document released by the Transportation Department details the National Electric Vehicle Infrastructure, or NEVI, formula program that requires states to lay out their plans for the money before it dispersed. Of particular interest to the electrical contractor community is the section entitled Labor and Equitable Workforce Considerations.

Installing, operating, and maintaining the NEVI Formula Program’s EV charging infrastructure will create new opportunities for workers in the electrical and other construction trades, while also creating work for the skilled incumbent workforce around the country. To ensure safety and high-quality delivery, each State Plan should consider the training and experience level of the workforce that is installing and maintaining EV charging infrastructure. This includes ensuring the workforce is trained in high-quality training programs like the Electric Vehicle Infrastructure Training Program (EVITP).

To help meet the workforce needs of the NEVI Formula Program, each State Plan should also consider steps that will grow and diversify their local workforce. This includes utilizing geographic, economic, or other hiring preferences or innovative contracting approaches authorized by law to maximize job creation and economic benefits for local communities.

This also includes taking proactive steps to encourage broader participation among women, Black, Latino, Asian American Pacific, Indigenous, and other underrepresented groups in the development of those workforces. States should also consider how they can expand registered apprenticeship, including through the use of apprentices on installation projects, and invest in entry-level training programs, like quality pre-apprenticeship programs. Consistent with Justice40, States should also consider how disadvantaged communities will benefit from this added job growth.

Strong labor, training, and installation standards will help produce a nationwide network of 500,000 EV chargers by 2030 that provides a convenient, reliable, affordable, and equitable charging experience for all users. See section VI-C for additional information on labor and workforce requirements that may be included in the minimum standards and requirements to be established by the Secretary of Transportation, in coordination with the Secretary of Energy and in consultation with relevant stakeholders.

Bid Preference for Contractors ATT. Senator Dave Cortese (D-San Jose), who is a political dynasty member (see article later), has authored SB 1004, which provides a 5 percent bid preference to any contractor who has “approved to train” status with a state-approved apprenticeship program. What is particularly intriguing is that this OE-sponsored bill does not differentiate between joint (union) and unilateral (merit-shop) apprenticeship programs. Now before you get all warm and fuzzy about SB 1004 and Dave, I will remind you that the bill was just introduced, has a long way to go, and Dave, as the graph indicates, has a “close” relationship with labor. 

Political Dynasties – California Style Dan Walters recently observed, “It’s common for authoritarian regimes to evolve into oligarchies with those in command bequeathing their positions to family members. The extreme example is the Democratic Peoples Republic of Korea, otherwise known as North Korea, which is anything but democratic.” While he didn’t state that California had reached the level of DPRK, he pointed out several dynastic political families in the State Legislature – the longest-lasting being the Calderons who have had five family members elected to one house or the other – including two who eventually served time in custody for bad behavior.

Senate Bill Seeks to Prevent Local Government Attempts to Undermine State’s Right-To-Work Law California readers are thinking, “What?” Arizona readers will cheer. LAST WEEK, the ARIZONA state Senate Judiciary Committee passed SB 1191, legislation that aims to eliminate municipalities’ attempts to sidestep Arizona’s right-to-work law, which ensures union membership remains voluntary and not a required condition of any employment. Story

No Valentines for Leaders A new poll suggests that Democrat Sen. Dianne Feinstein’s approval numbers “have tumbled to the lowest point in her three-decade Senate career, with just 30 percent of California voters giving her positive marks.” So says a new UC Berkeley Institute of Governmental Studies poll co-sponsored by the Los Angeles Times. Also worth noting: Both President Biden and Vice President Kamala Harris are underwater in the Golden State. Biden’s net approval is -1 (47 percent approve, 48 percent disapprove), and Harris’ is -8 (38 percent approve, 46 percent disapprove). And Governor Newsom, who just survived a recall, isn’t doing much better. The same poll gave Newsom poor marks on handling crime and homelessness. Californians did, however, like his mask-less selfies and restaurant choices.

New Bill Highlights Growth of Hydrogen as Alternative Fuel Source Legislation introduced in the ARIZONA state Senate puts a spotlight on the increasing market demand for alternative-fuel vehicles and new low-carbon energy sources. State Sen. T.J. Shope, R-Coolidge, has proposed SB1396. This bill would establish a legislative hydrogen study committee to “Investigate and evaluate existing laws and regulations and recommend legislation related to the production, distribution, and storage of hydrogen.” Story

The California Business Roundtable invested $1.6 million toward qualifying a proposal that would throw up barriers to new or higher taxes. It would require voter approval when the Legislature raises or enacts taxes — fortifying the already-tough 2/3 legislative vote requirement — while broadening the definition of what counts as a tax and upping the threshold for local voter-passed taxes to two-thirds. A potent coalition of labor and local government groups has already mobilized against this effort. If it gets enough signatures, that could give supporters leverage to win concessions from Sacramento, as happened with a 2018 deal disarming local governments on soda taxes.

Contractors Who Use Forklifts: The California Air Resources Board (CARB) invites contractors to participate in a public workgroup meeting to discuss the development of a potential regulatory measure that would require fleets to replace their propane and gasoline forklifts with a battery-electric or fuel-cell electric version. This measure is part of continued efforts by CARB to protect Californians from the impacts of air pollution and climate change. During CARB’s public workgroup meeting, staff will provide a presentation on the draft measure concept followed by a discussion session where the public can provide feedback and ask questions.

Virtual Public Workgroup Meeting

?February 22, 2022 9 a.m. to noon.

Register here

Learn more here or email ZEForklifts@arb.ca.gov


Join Richard Markuson of WECA Government Affairs for a new quarterly call-in series for WECA Member Contractors

First call-in March 9 at 9 a.m.

Stay up-to-date on all things political at the state, local and federal levels with a new quarterly call-in series hosted by Richard Markuson of WECA Government Affairs.

The first call-in will take place on March 9 at 9 a.m. If you have a particular question you would like to ask during the call-in, please submit it via email at richard@pacificadvocacygroup.com the Friday before the Zoom call.

Access the call here:

Meeting ID: 861 4407 7242
Passcode: 841151

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Or find your local number here.

We look forward to talking with you!