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December 10, 2004
Overtime protection for millions is probably dead
When he won the Nov. 2 election, President George W. Bush said he had earned "political capital" and expected to use it to get his legislation adopted.
The president spent a little of that capital last month, and as a result, up to six million Americans, according to the AFL-CIO, will lose the ability to earn overtime after working 40 hours per week. The Bush Administration says far fewer U.S. workers will lose access to overtime.
On Nov. 17, Bush told Congress he would veto a $388 billion fiscal appropriations bill if lawmakers insisted on protecting workers' overtime pay rights by including an overtime pay protection amendment. On Nov. 18, congressional Republicans got the message, and eliminated the overtime pay protection language, even though some GOP lawmakers voted with Democrats on six separate occasions in the past to save overtime pay.
Rep. Tom Harkin (D-Iowa) pointed out that some of the six million workers who will lose their overtime pay protections, likely voted for Bush in the presidential election. "This is what happens when you vote that way," he said after President Bush's final veto threat killed his overtime pay protection amendment, putting what may be the final nail in the coffin.
Since the Bush administration announced in March 2003 that it would change overtime pay eligibility rules under the federal Fair Labor Standards Act to take away overtime pay rights, workers sent more than 1.6 million e-mails, faxes and letters to Congress to protest the action, the AFL-CIO said.
"I am disappointed Republican leaders turned their backs on America's workers," said Congressman Bart Stupak (D-Menominee). "Families are struggling to make ends meet, and taking away their overtime pay, which (can) amount to 25 percent of their annual income, will make that task all the more difficult."
Bush's new overtime plan actually went into effect in August, but Democrats in Congress had been attempting to get the new rule repealed. After Republicans declined to help veto the new rules last month, organized labor started talking about changing laws on the state level - a sure sign that the long fight to save overtime pay on the federal level is about over.
According to a study by Ross Eisenbrey of the labor-backed Economic Policy Institute, under the overtime provisions in the Fair Labor Standards Act - which was overturned by Bush and the Republican-controlled Congress - most workers were guaranteed the right to overtime pay with time-and-a-half pay for every hour worked beyond the normal 40-hour work-week.
The changes in the Federal Labor Standards Act guarantee overtime pay to workers who earn less than $23,600 per year. However, the rules allow employers to deny or withdraw overtime pay from workers who earn between $23,600 and $100,000 and who are in the category of "administrative," "professional," and "executive."
The problem for workers: Bush's rules can be interpreted to expand the definitions of what job categories fit into those supervisory categories, "vastly increasing the number of exempt employees and making it likely that millions of them will work longer hours at reduced pay," Eisenbrey said.
Workers like pre-school teachers, chefs, nurses and mortgage loan officers - who may technically have some supervisory capacity, are expected to be among the job classifications that will lose overtime eligibility, Eisenbrey said.
Bush's Labor Secretary Elaine Chao has said that the new rules are intended to increase clarity of the rules in order to reduce lawsuits - but the Economic Policy Institute cited three top non-partisan experts on the Fair Labor Standards Act, who said the new rules are so confusing and self-contradictory that they will provoke additional court litigation. They said virtually every change in the new regulations will weaken or eliminate the right to overtime pay.
Unionized employees working under a collective bargaining contract are exempt from the new rules. But Dr. Dale Belman, associate professor with Michigan State University's School of Labor and Industrial Relations, said this autumn that the effects of the new rules will eventually filter down to union workers, especially foremen and supervisors.
"Nonunion workers will be affected first," he said,
"and that will create market pressure on the union side.
Few employers are going to want to anger their employees by taking
away overtime, but new employees will eventually be reclassified.
The pressure on unions will increase gradually."
America's union leaders will be taking a very close look at their organizations when the AFL-CIO's Executive Council meets in mid-February.
The meeting could be momentous, and could lay the groundwork for historic, profound changes in the structure of the AFL-CIO's 65 international unions - including restructuring, union mergers and reallocation of resources.
Then again, maybe nothing will happen, or worse than nothing - labor may emerge further fractured, with unions choosing to go it alone rather than deal with other unions that don't share their goals.
"We've had too many recommendations" for change, "which leaders have not adopted," said Service Employees International Union (SEIU) President Andrew Stern, who is a driving force behind the call to reorganize the house of labor. "We need to change the AFL-CIO now."
Stern made his call for change before a Nov. 10 meeting of the AFL-CIO Executive Council, issuing a 10-point plan that recommended a massive overhaul of the AFL-CIO. Although the meeting was held just after the presidential election - in which organized labor spent a record amount to support losing candidate John Kerry - talk of reorganization has gone on throughout 2004.
His plan includes spending $2 billion for organizing, ramping up a $25 million campaign to unionize Wal-Mart, a campaign for universal health care - details unspecified - and greater top-down direction, including mergers, ordered by the AFL-CIO to individual unions. And in a telephone press conference afterwards, Stern made clear that unless there is drastic change, his union, the federation's largest, might leave.
Stern noted earlier this year that at the American Federation of Labor and Council of Industrial Organizations merger in 1955, one of every three U.S. workers was unionized, mostly in industry. Now one of every eight are unionists, with many of them working in the service sector. The SEIU makes up one-tenth of the entire AFL-CIO's 13.1 million membership.
"Today, our employers have changed, our industries have changed and the world has certainly changed, " Stern said, "but the labor movement's structure and culture sadly stayed the same."
But while the Service Employees International Union may be the AFL-CIO's largest stakeholder, industrial unions and those that cover the building trades still have considerable muscle and have different thoughts on which direction the labor federation should take. For instance, the building trades may wonder if their needs are best served with more money going into organizing Wal Mart.
In an interview with Press Associates, International Association of Machinists President Thomas Buffenbarger sharply criticized the proposal to impose union consolidation. And in reality, consolidation cannot be imposed by the federation - international labor unions have the right to merge or not merge as their leaders and members see fit.
"We'll defend ourselves if the AFL-CIO chooses to leave our people out of the equation, by focusing on the service sector and the public sector and leaving the manufacturing sector and the transportation sector out," Buffenbarger said.
The building trades collectively have had a mostly solid relationship with the AFL-CIO in recent years - with the exception of the United Brotherhood of Carpenters. The UBC broke away from the federation in 2001 in a disagreement over how the federation was structured and how it spent money on organizing.
Carpenters President Doug McCarron and Laborers President Terence O'Sullivan are among five union presidents who are on board with the SEIU's Stern in an informal alliance called the New Unity Partnership.
In an article by the Construction Labor Report, nearly all the building trades leaders who were quoted echoed Frank Hanley, international president of the Operating Engineers, who said some of Stern's ideas are valid, but he faulted him for "going about it the wrong way," through the media.
Building trades unions collectively represent 1.18 million Hardhats, or 17.2 percent of all U.S. construction workers (using 2002 figures). That represents one of the highest unionization rates of all job sectors, behind transportation and public utility industries.
The largest International Union in the Building Trades Department is the IBEW, with 665,0091 members. The smallest: the Heat and Frost Insulators, with 17,545. (2002 numbers).
One union leader cautioned that consolidation is not always a good thing. He told the Construction Labor Report, "you can say that just because a union is small, it cannot be effective and should be merged." He cited as an example the Elevator Constructors, which has 26,000 members but is 90 percent unionized in that trade specialty.
Embattled AFL-CIO President John Sweeney - whose four-year term is up for election in July - said the federation agrees with many of Stern's goals, and he has started to implement some of them. He said the proposals "stimulate a good discussion about change."
By Marty Mulcahy
Wayne State University, long known as a commuter college, wants a substantial number of its students to stop commuting.
General contractor Walbridge-Aldinger, a slew of subcontractors and more than 200 construction workers are in the process of building a combined nine- and eleven-story residence hall that will provide on-campus housing for 1,800 students. Two residence halls have already been erected nearby.
"This exciting venture is the third phase of new residential living here on campus," said Wayne State University President Dr. Irvin Reid. Speaking to a small crowd at the building's topping out ceremony on Nov. 29, Reid jokingly promised that the "Residence Hall - Phase III will have a name for it before any students move in."
According to Wayne State, the $51.5 million residential building will include a 400-seat dining room and a mini-fitness facility for occupants. Students will be assigned to rooms in groupings corresponding to their academic discipline.
Suite-style dwelling rooms, multiple laundry facilities, an electronic security system, and areas for socializing and study are among other amenities. There will be approximately 12,000 square feet available on the ground floor for retail space.
"We know from continuing discussions and feedback that a significant number of students and prospective students prefer to reside on campus," Reid said. "Living on campus affords the advantage of proximity to the numerous academic, cultural and recreational facilities available on and near the campus, while also enabling students to immerse themselves more fully in the university experience."
Located along Anthony Wayne Drive north of Warren in Detroit, the new hall sits on a wide slab of 300,000 square feet. Construction started in April and work is expected to be complete in August 2005. The pre-cast concrete structure was topped out by Whitmore Steel, with the work of a number of Local 25 iron workers. As workers and guests signed the last beam with magic markers, Walbridge personnel made sure that no one signed the side that would be facing out.
"The precast has gone up well without any problems; the tricky part was the foundation," said Walbridge-Aldinger Project Manager Terry Clemens. He said the four-foot-thick concrete "mat foundation" which extends under the footprint of the building was set in a single day. "We placed 4,800 yards of concrete, all in one day - a very busy Saturday," he said.
Combined with two other recently constructed residential facilities (North Hall and South Hall) located just a half-block away, the Phase III residential building will bring the total number of new beds added by Wayne State this decade to almost 1,800. The three new housing facilities enable the university to offer WSU students a traditional room-and-board arrangement for the first time in decades. The university also operates several buildings that feature apartment-style living.
"The tradespeople have been great; they've done an excellent
job," Clemens said. "We're right where we want to be."
By Bob Pawlowski,
The Michigan Occupational Safety and Health Administration (MIOSHA) enforces workplace safety and health regulations under authority of the Michigan Occupational Safety and Health Act, Act 154 of 1974 as amended (MIOSH Act).
The MIOSHA Construction Safety and Health Division (CSHD) enforces regulations promulgated under authority of the MIOSH Act with regard to the construction industry.
As the governmental agency that enforces regulations related to use and provision of personal protective equipment (PPE) in the workplace, we felt compelled to respond to your article titled, "Who Pays for Personal Protective Equipment?" published in the Oct. 29, 2004 issue of the The Building Tradesman.
MIOSHA recognizes the importance of appropriate PPE to protect employees in the construction trades. Many of the rules and standards that we enforce require the use of PPE based on the hazard the employee may be exposed to. The standards address PPE of many kinds: hard hats, gloves, goggles, safety shoes, safety glasses, welding helmets and goggles, face shields, chemical protective equipment and clothing, and specialized equipment such as respiratory protection and fall protection.
MIOSHA Part 6, Personal Protective Equipment, addresses general requirements for PPE in construction. Rule 617(1) of Part 6 states:
"An employer shall provide to an employee, at no expense to the employee, the initial issue of personal protective equipment and replacement equipment necessary due to reasonable wear and tear required by this part or any other construction safety standard rules, unless specifically indicated otherwise in this part or any other construction safety standard rules, or unless a collective bargaining or other employer-employee agreement specifically requires employees to provide such equipment."
The key phrase in Rule 617(1) is "at no expense to the employee" and leads MIOSHA to the interpretation that the employer is responsible for paying for necessary PPE.
Federal OSHA rule 1926.95(a), Criteria for personal protective equipment, states that PPE; "shall be provided, used and maintained in a sanitary and reliable condition wherever it is necessary," but it does not include language that addresses who pays. However, OSHA like MIOSHA, has historically required the employer to pay for most required PPE.
The difference noted above in the comparable OSHA standard related to PPE, we believe, is at least part of the reason why, on March 31, 1999 OSHA issued proposed rules to clarify the issue of who pays. In the rulemaking, OSHA proposed regulatory language to clarify that, with only a few exceptions for specific types of PPE, the employer must pay for PPE provided.
OSHA proposed an exception from employer payment, in certain circumstances, for three specific kinds of PPE; safety-toe protective footwear, prescription safety eyewear, and the logging boots required by 29 CFR 1910.266(d)(1)(v) [MIOSHA General Industry, Part 51, Rule 5125(1)].
OSHA also stated at that time that the proposed rule would not require employers to provide PPE where none had been required before. Instead, the proposed rule stipulated that the employer must pay for all required PPE, except in the limited cases stated above.
Since employers already paid for most of required PPE, the proposed rule would have shifted only minimal additional costs to the employer. Based on information collected at the time, OSHA stated that the rules would have imposed additional annualized costs of about $61.9 million across the affected industries. Public comments were heard on the rules, hearings were held and the record was closed on December 13, 1999.
On July 8, 2004 OSHA published a notice asking for further comment on one issue they believe requires further scrutiny. Specifically, the issue relates to whether or how a general requirement for employer payment for PPE, should address types of PPE that are typically supplied by the employee, taken from job site to job site or from employer to employer, and considered to be "tools of the trade."
In light of significant comments in the record, OSHA believes that further information is necessary to fully explore the issues concerning a possible limited exception for paying for PPE that is considered to be a "tool of the trade."
The MIOSH Act states at Section 11(a) that it is the employers responsibility to: "Furnish to each employee, employment and a place of employment which is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee."
The MIOSH Act clearly places responsibility for a safe and healthy workplace on the employer. MIOSHA also believes that employer-provided and required PPE is more likely to provide the protection we feel is necessary, in that the quality, appropriateness and replacement of PPE may be compromised if the employee has to pay for the PPE.
Since the employer has ultimate control over the workplace, they are in a better position to control the types of and the condition of PPE that is used by employees.
For the reasons stated above, MIOSHA has typically viewed providing and paying for PPE to protect employees as a responsibility that falls to the employer. We understand that construction workers have typically provided their own steel-toed work boots [in accordance with MIOSHA Part 6, Rule 625(2)] and hard hats, although we would not discourage employers from paying for this necessary equipment.
As a "State Plan" program, MIOSHA is required to have rules and standards that are "at least as effective as" Federal OSHA. The MIOSHA program is monitored on a continual basis by Federal OSHA to ensure that we are meeting our obligations in this regard. At the other end of the spectrum, MIOSHA can make decisions regarding rules, standards or policies that we believe enhance safety and health for employees beyond the minimum requirements mandated by Federal OSHA.
We are not sure at this time what OSHA will conclude with
regard to "tools of the trade" and employer-payment
for PPE. We will however, be watching closely what federal OSHA
does with regard to employer-payment for PPE. Our decision to
adopt new policies will be based on whether or whether not such
changes enhance protection for Michigan workers.
SAULT STE. MARIE - Congress has been trickling out funds to build a new Soo lock in recent years, but a deluge of money is needed.
In November, Congress released $2.6 million to continue design of a new lock that would be a twin in size to the Poe Lock, the Soo's largest. Another lock is needed because if the Poe Lock were to be disabled for any length of time because of sabotage or mechanical problems, a great deal of Great Lakes shipping would grind to a halt.
According to Congressman Bart Stupak (D-Menominee), just over $5 million has already been allocated for design work and the construction of cofferdams.
"The funding is absolutely critical to continue this
project, which is vital to the nation's commercial and homeland
Stan Jacek, Soo-area engineer for the Army Corps of Engineers, which has jurisdiction over the locks, said at this rate of funding it would be "several years" before design work is complete.
He said overall construction activity at the Soo in 2005 is expected to be "flat, with no new construction authorized." The only recent work that has gone on at the Soo is the installation of new security lights and fencing.
The Soo Locks have been in operation since 1855 and currently four locks are included in the complex. Only the Poe lock, completed in 1968, can handle the 1,000 ft. long by 105 ft. wide bulk carriers that keep steel mills supplied from the iron ore ranges found around Lake Superior.
Two of the smaller locks, the Davis and the Sabin, were built
more than 80 years ago and the MacArthur lock was completed in
1944. Current planning calls for the new lock to replace the
Davis and Sabin locks. As things presently stand, loss of the
Poe Lock would disrupt 70% of the Great Lakes fleet, hence the
need to build a modern backup.
Such a jump would be welcome - even if it is modest. This year construction activity is expected to be up 9 percent over 2003 levels - but much of that rise is in the residential sector. In 2005, the PCA predicted that residential construction will experience its first drop in years, by .03 percent.
"The level and composition of construction spending is shifting," said Portland Cement Association chief economist Ed Sullivan. "In retrospect, 2004 represented a year of transition for the U.S. construction market. The strengthening economy and an increase in interest rates have set the stage for a recovery in public and nonresidential activity." Rising interest rates are expected to drive construction activity in the first part of 2005, giving impetus to homeowners to get their homes built.
"Through 2008, nonresidential and public spending are expected to assume the mantel of growth leadership," the PCA said.
In the world of cement, the Portland Cement Association said
demand for its products would increase 2.9 percent in 2005 and
2.1 percent in 2006.
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