Construction Lawyers, The Labor Sky Is Not Falling or There’s No Nee

American Bar Association

Forum on the Construction Industry

______________________________________________________________________________

Construction Lawyers, The Labor Sky Is Not Falling or There’s No Need To Fear Labor Law Changes Under the Obama Administration

Laura M. Finnegan

Baum Sigman Auerbach & Neuman, LTD

Chicago, Illinois

Presented at the 2009 Fall Meeting

“The Two-Way Street of Construction Counseling:

Learning the Ins and Outs.”

October 15-16

Philadelphia, Pennsylvania

THE EMPLOYEE FREE CHOICE ACT: ANOTHER PRPOSED AMENDMENT TO THE NATIONAL LABOR RELATIONS ACT, NOT TO BE FEARED

As of the submission of this paper the House had proposed amendments to the National Labor Relations Act, known as the Employee Free Choice Act. That bill has not been sent to the floor of Congress and there are reports that not all of the proposed language will be included in the final bill, if there ever is one. The first part of this paper will discuss the Employee Free Choice Act in the context of the history of the National Labor Relations Act. In that context that history, the debate over provisions of the Employee Free Choice Act differs little from the heated nature of the debate of the original Act and the subsequent amendments. Debate over the U.S. Labor Law has waged for over 100 years, first in the state courts, and then when labor law was federalized in the 1930’s.

I. A History of the National Labor Relations Act

After the Supreme Court held that the National Industrial Recovery Act was unconstitutional, “organized labor was again looking for relief from employers who had been free to spy on, interrogate, discipline, discharge, and blacklist union members. In the 1930s, workers had begun to organize militantly, and in 1933 and 1934, a great wave of strikes occurred across the nation in the form of citywide general strikes and factory takeovers. Violent confrontations occurred between workers trying to form unions and the police and private security forces defending the interests of anti-union employers.”¹ However, even before the Supreme Court held that the NIRA was unconstitutional, the Act did very little to promote the growth of organized labor because while it gave employees the right to organize unions, it failed to provide a means for enforcing and protecting those rights.

In response to the unconstitutionality and ineffectiveness of the NIRA, in 1935 Congress passed the controversial National Labor Relations Act or Wagner Act to address disputes between employees and employers, bring peace to industry, create a balance in the bargaining power between employees and employers, and help bring the country out of the Great Depression. When Senator Robert Wagner first introduced the NLRA, it was met with fierce opposition from Congress, the Roosevelt administration, and large corporations. Consequently, the NLRA has a long and complex legislative history. The first part of this section discusses the legislative history of the NLRA, the rights it gave employees, and the purposes for its passage. The second part of this section discusses the Taft-Hartley and Landrum-Griffin amendments to the NLRA.

NLRA would destroy free trade because it created market restraints on the national economy.¹³ The NLRA was so controversial that members of Congress and Senator Wagner’s inner circle strongly encouraged him to withdraw the bill to save his political career.¹⁴ Nonetheless, because of Senator Wagner’s unprecedented dedication to the NLRA coupled with the economic dynamics of the Great Depression, the NLRA received a majority vote in both the House and Senate. On July 5, 1935, President Roosevelt signed the NLRA into law.¹⁵

B. Newly Created Employee Rights Under the National Labor Relations Act

With the exception of the failed NIRA, the NLRA marked the federal government’s first affirmative support for unionization and collective bargaining. The NLRA cured the inadequacies of the NIRA and other current labor legislation because it gave employees enforceable and protected rights to unionize and collectively bargain. Specifically, Section (7) of the NLRA gave employees the right to self-organize, form, join, or assist labor organizations; bargain collectively through representatives of their own choosing, and engage in concerted activities for the purposes of collective bargaining.¹⁶ In sum, the NLRA gave employees the right to: (1) organize, (2) collectively bargain, and (3) engage in strikes, picketing, and other concerted activities.¹⁷ However, unlike the failed NIRA, the NLRA protected employees’ rights to unionize and collectively bargain. Specifically, Section (8) of the NLRA outlined a number of unfair labor practices to protect employees’ rights under the Act. For example, Section (8) prohibits employer interference with employees’ rights created under section (7) and forbids discrimination by employers on account of union activity in hiring, firing, and other means of employment.¹⁸ In addition, Section (8) requires employers to collectively bargain with employees’ union representatives. Under the NLRA, if employers violated any of the newly created unfair labor practices or infringed upon employees’ newly created rights under the NLRA, they would be penalized and employees would be made whole.¹⁹ Finally, Section (9) of the NLRA established the National Labor Relations Board as the administrative agency to investigate complaints alleging unfair labor practices and protect employees’ rights.²⁰

C. Reasons and Purposes for the National Labor Relations Act

The NLRA had four primary functions: (1) to create peace among employees and employers, (2) create peace in industry, (3) revitalize the national economy and bring the country out of the Great Depression, (4) and promote economic progress and social justice.²¹ However, to fully understand the need for the NLRA, one must consider the economic conditions leading up to its passage.

First, from 1919 to 1933 the productivity of the average worker doubled and corporate profits grew exponentially.²² However, by contrast, from 1919 to 1933 the average worker’s share in manufactured product fell from 42% to 36%.²³ Moreover, the real income of individual full-time workers fell from 1933 to 1935.²⁴ The exponential growth of corporate profits and falling real wages led to an unequal distribution of wealth and power. Senator Wagner and supporters of the NLRA argued that this left employees powerless and at the whim of their employers. In 1935, when Senator Wagner introduced a revised version of the NLRA, he quoted the Supreme Court to describe the imbalance of power between employees and employers he said “[a] single employee was helpless in dealing with an employer. He was dependent ordinarily upon his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he though fair, he was, nevertheless unable to leave the employee and resist arbitrary and unfair treatment.”²⁵ The imbalance of power between employees and employers because of employees’ inability to unionize and collectively bargain led to a growing number of labor disputes and falling real wages. The disputes led to falls in production and industry disruptions. The falling wages led to lower collective spending power by the working class which many argued perpetuated the Great Depression. ²⁶ Thus, to support the NLRA, Senator Wagner argued that unionization was necessary to bring the country out of the Great Depression because it gave employees sufficient leverage to bargain on equal terms for higher wages.²⁷ In sum, with the NLRA Congress intended to promote union growth to give employees sufficient leverage to collectively bargain for higher wages and better working conditions which would revitalize the national economy during the Great Depression.²⁸ However, in addition to revitalizing the national economy, Senator Wagner used the NLRA as an affirmative vehicle for overall economic progress and social justice because it promoted an equitable division of wealth and power.²⁹

D. Amendments to the NLRA

Because of the NLRA’s imperfections, Congress has made two important amendments to the Act. First, in 1947, Congress amended the NLRA by passing the Taft-Hartley Act.³⁰ The Taft-Hartley Act primarily limited employees’ power granted under the NLRA and shifted some power back to employers. It placed certain restrictions on union activity and prohibited unions’ bad practices.³¹ Then, in 1959, Congress amended the NLRA again by passing the Labor-Management Reporting and Disclosure Act or Landrum-Griffin Act.³² The Landrum-Griffin Act required certain financial disclosures by unions, set forth procedures for the election of union officers, and provided remedies for financial abuses by union officers.³³ The Landrum-Griffin Act also broadened the scope of secondary boycott provisions and placed certain restrictions on unions’ rights to picket.³⁴ The sections below discuss the needs, purposes, and impacts of each amendment. However, for the Landrum-Griffin Act, the section focuses only on Section 8(f) relating to the construction industry.

1. The Taft-Hartley Act of 1947

In 1947, after World War II, Congress passed the first major piece of legislation amending the NLRA. Twice in 1947 President Truman had to invoke federal law to require striking employees back to work. Employers wanted some legal means to avert further labor disputes and disruptions. Republicans had a majority in both the House and Senate, despite the Democratic executive, Harry Truman. The Taft-Hartley Act was sponsored by two Republican Congressmen, Taft in the Senate and Hartley in the House. The amendments were extensive. Taft-Hartley was much larger in text and scope than what is proposed currently in the Employee Free Choice Act. Much of what we know of the NLRA today is encompassed in the Taft-Hartley amendments.

Hearings on the bills started in January 1947. On April 10, 1947, Hartley in the House introduced his version of the bill. In his report to the House, Mr. Hartley argued that:

For the last 14 years, as a result of labor laws ill-conceived and disastrously executed, the American working man has been deprived of his dignity as an individual. . His whole economic life has been subject to the complete domination and control of unregulated monopolists. He has on many occasions had to pay them tribute to get a job. He has been forced into labor organizations to get a job . . . In many cases his economic life has been ruled by Communists and other subversive influences. In short, his mind, his soul, and his very life have been subject to a tyranny more despotic than one could think possible in a free country . . .

The employer’s plight has likewise not been happy. He has witnessed the productive efficiency in his plants sick to alarmingly low levels. He has been required to employ or reinstate individuals who have destroyed his property and assaulted other employees. When he has tried to discharge Communists he has been prevented from doing so by a board which called this valid reason for the discharge a mere pretext. [35]

Of the two, Hartley was more conservative and, for example, wanted to go so far as to eliminate any union influence over health and pension funds. During the House debates on April 16, 1947, the House rejected an amendment to ban the union shop and the closed shop, the house rejected an amendment removing the ban on the miners’ welfare fund and similar benefits, and the house rejected an attempt to permit industry wide-bargaining.[36]

The House minority report, against Hartley’s bill, described the proposed legislature as:

Deliberately designed to wreck the living standards of the America people. Under the false guise of “correcting abuses” this bill is designed to so weaken, as in effect to repeal, the National Labor Relations Act . . . This bill does not merely wipe out labor’s gains under the beneficent administration of President Roosevelt; it turns the clock of history back at least a century and a half and eliminates the safeguards and protection which both Republican and Democratic Congresses have sponsored for generation.[37]

John F. Kennedy supplemented the House Minority Report with the following:

This is a critical time in the development of America as a strong and free industrial democracy. We are in the second year of a post-war period full of trial and difficulty. If internal cleavages are to split the Nation, it will mean unrest at home and weakness and indecision in dealing with problems abroad. If, on the other hand, there is full cooperation between labor and management and recognition of mutual responsibilities, America can look forward to a prosperous future at home and a real capacity to fulfill its obligations abroad.[38]

Ultimately, the Taft-Hartley bill was vetoed by Truman, as had been a prior version in June.

2. The Landrum-Griffin Act of 1959 Relating to the Construction Industry

In 1959, Congress amended the NLRA by passing the Landrum-Griffin Act.[39] The Landrum-Griffin Act intended to prevent racketeering and corruption activities among several strong unions. First, it required certain financial disclosures by unions. Second, it set forth election procedures for union officers. Finally, it provided civil and criminal remedies for financial abuses by union officers. However, the Landrum-Griffin Act added a provision to the NLRA that specifically addressed the construction industry, Section 8(f).

The legislative history makes clear that Congress added Section 8(f) because of the problems created in the construction industry under the Taft-Hartley Act. Initially, the NLRA did not apply to, and thus regulate the construction industry. However, after the Taft-Hartley Act, the NLRA applied to the construction industry which led to organized labor problems because of the industry’s uniqueness. Because of the occasional and intermittent nature of employment in the construction industry, and because of the usually short duration of construction jobs, unions and employers entered into collective bargaining agreements for future employment for future construction jobs.[40] Applying the NLRA to the construction industry after the Taft-Hartley Act, when employers engaged in this practice they committed unfair labor practices because under the NLRA employers cannot enter into collective bargaining agreements until after a certain number of employees have been hired[41] Consequently, Congress added Section 8(f) as an exception to the NLRA for construction industry employers.[42] Under Section 8(f), construction industry employers could enter into collective bargaining agreements in the form of prehire agreements with unions before they reach majority status.[43] Essentially, Section 8(f) allows construction industry unions and employers to negotiate and enter into collective bargaining agreements that would otherwise be prohibited under the NLRA and Taft-Hartley Act. In NLRB v. Iron Workers Local 103, addressing Section 8(f), the Supreme Court held that it explicitly permitted construction industry employers to enter into prehire agreements with minority unions.[44] Prehire agreements are collective bargaining agreements providing for union recognition, compulsory union dues or equivalents, and mandatory use of union hiring halls, prior to the hiring of any employees.⁴¹ Under the NLRA and Taft-Hartley Act, employers entering into such prehire agreements would be committing unfair labor practices because they recognized and bargained with minority unions.⁴² However, after the Landrum-Griffin Act amended the NLRA by adding Section 8(f), employers in the construction industry could enter into prehire agreements with unions regardless of whether they have reached majority status without committing an unfair labor practice outlined under Section 8(a) of the NLRA. Congress gave two primary reasons for the need to allow construction industry employers to enter into prehire agreements.⁴⁴ First, construction industry employers must know their labor costs before making an estimate on which they base their bids.⁴⁵ Second, construction industry employers must have an adequate supply of skilled craftsmen ready to go.⁴⁶

The legislative history makes clear that Section 8(f) was enacted to immunize employers in the building and construction industry from the strictures of Section 8(a) of the Act in situations where they recognize and enter into agreements with an unassisted labor organization whose majority status has not previously been established under the provisions of Section 9 of the Act. Thus, as stated in the Report of the House of Representatives Committee on Education and Labor:

In the building and construction industry it is customary for employers to enter into collective-bargaining agreements for periods of time running into the future, perhaps 1 year or in many instances as much as 3 years. Since the vast majority of building projects are of relatively short duration, such labor agreements sometimes apply to jobs which have not been started. The practice of signing such agreements for future employment is not entirely consistent with Wagner Act rulings of the NLRB that exclusive bargaining contracts can lawfully be concluded only if the union makes its agreement after a representative number of employees have been hired. One reason for this practice is that it is necessary for the employer to know his labor costs before making the estimate upon which his bid will be based. A second reason is that the employer must be able to have available a supply of skilled craftsmen ready for quick referral. The committee has decided that the object of validating the prehire agreement in the building and construction industry is sound an as chosen to accomplish this object by providing that a prehire agreement in that industry shall not constitute an unfair labor practice under the act. [Emphasis supplied.]

The 1959 amendment adding a proviso to subsection (e) permits a general contractor's prehire agreement to require an employer not to hire other contractors performing work on that particular project site unless they agree to become bound by the terms of that labor agreement.⁴⁷8(f) contains a final proviso that permits employees, once hired, to utilize the NLRB election process under §§ 9(c) and 9(e) of the Act, 29 U.S.C. §§ 159(c) and (e), if they wish to reject the bargaining representative or to cancel the union security provisions of the prehire agreement. ⁴⁸

II. The Employee Free Choice Act

A. The Proposed Amendments to the NLRA

The Employee Free Choice Act is the newest of the bills to propose amendments to the NLRA. Not unlike the Wagner Act introduced in 1935, the sponsors of the bill raise current economic conditions for employees as the paramount reason for the bill. On March 10, 2009, the day the House bill was referred to the House Committee on Education and Labor, Rep. Miller stated “Americans’ wages have been stagnating or falling for the past decade. For far too long, we have seen corporate CEOs take care of themselves and shareholders at the expense of workers.” “If we want a fair and sustainable recovery from this economic crisis, we must give workers the ability to stand up for themselves and once again share in the prosperity they help to create.”

Senator Kennedy also commented that “The current crisis has shown us the dangers of an economy that leaves working families behind. The people who work in our factories, build our roads, and care for our children are the backbone of this great nation. The Employee Free Choice Act will give these hardworking men and women a greater voice in the decisions that affect their families and their futures. It’s a critical step toward putting our economy back on track, and I hope that we can act quickly to send it to the President’s desk.”

“Just as the National Labor Relations Act, the 40 hour week and the minimum wage helped to pull us out of the Great Depression and into a period of unprecedented prosperity, so too will the Employee Free Choice Act help reinvigorate our economy,” “Today is one of those defining moments in history as we introduce legislation that puts power back into the hands of the people who are truly the backbone of this economy.” Sen. Tom Harkin D-Iowa.

Since 1935, workers have been allowed to form a union either through majority sign-up or through a National Labor Relations Board election. While the NLRB election process uses slanted rules that dramatically favor employers, studies have found that the majority signup process reduces pressure and coercion in the workplace. Currently, however, employers can veto workers’ decision to organize through majority signup and force them into the divisive NLRB election process where, according to a recent study, a pro-union worker is illegally fired in a quarter of all organizing drives.

The full text of the proposed bill follows from the House Report:

To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Employee Free Choice Act of 2009'.

SEC. 2. STREAMLINING UNION CERTIFICATION.

(a) In General- Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:

`(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

(B) in paragraph (7)(C) by striking `when such a petition has been filed' and inserting `when such a petition other than a petition under section 9(c)(6) has been filed'.

SEC. 3. FACILITATING INITIAL COLLECTIVE BARGAINING AGREEMENTS.

Section 8 of the National Labor Relations Act (29 U.S.C. 158) is amended by adding at the end the following:

`(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:

`(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.

`(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.

`(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.'.

SEC. 4. STRENGTHENING ENFORCEMENT.

(a) Injunctions Against Unfair Labor Practices During Organizing Drives-

(1) IN GENERAL- Section 10(l) of the National Labor Relations Act (29 U.S.C. 160(l)) is amended--

(A) in the second sentence, by striking `If, after such' and inserting the following:

`(2) If, after such'; and

(B) by striking the first sentence and inserting the following:

`(1) Whenever it is charged--

`(A) that any employer--

`(i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8;

`(ii) threatened to discharge or to otherwise discriminate against an employee in violation of subsection (a)(1) of section 8; or

`(iii) engaged in any other unfair labor practice within the meaning of subsection (a)(1) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7;

while employees of that employer were seeking representation by a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) until the first collective bargaining contract is entered into between the employer and the representative; or

`(B) that any person has engaged in an unfair labor practice within the meaning of subparagraph (A), (B), or (C) of section 8(b)(4), section 8(e), or section 8(b)(7);

the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred.'.

(2) CONFORMING AMENDMENT- Section 10(m) of the National Labor Relations Act (29 U.S.C. 160(m)) is amended by inserting `under circumstances not subject to section 10(l)' after `section 8'.

(b) Remedies for Violations-

(1) BACKPAY- Section 10(c) of the National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking `And provided further,' and inserting `Provided further, That if the Board finds that an employer has discriminated against an employee in violation of subsection (a)(3) of section 8 while employees of the employer were seeking representation by a labor organization, or during the period after a labor organization was recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract was entered into between the employer and the representative, the Board in such order shall award the employee back pay and, in addition, 2 times that amount as liquidated damages: Provided further,'.

(2) CIVIL PENALTIES- Section 12 of the National Labor Relations Act (29 U.S.C. 162) is amended--

(A) by striking `Any' and inserting `(a) Any'; and

(B) by adding at the end the following:

`(b) Any employer who willfully or repeatedly commits any unfair labor practice within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation. In determining the amount of any penalty under this section, the Board shall consider the gravity of the unfair labor practice and the impact of the unfair labor practice on the charging party, on other persons seeking to exercise rights guaranteed by this Act, or on the public interest.'.

B. The Employee Free Choice Act Does not Change the 1959 Amendments to the NLRA

What this proposed legislation does not amend is Section 8(f) or Section 8(e). Those were the bulwarks of the 1959 legislation for the construction industry and nothing in the Employee Free Choice Act changes that. What it does change is what happens when a majority of employees sign authorization cards and those cards are presented to the employer. Under the current law, if an employer is presented with authorization cards from a majority of its employees, the employer has the choice of not recognizing the union as the collective bargaining representative or recognizing the union and bargaining a contract. Under the proposed changes under Employee Free Choice, the employer would not have the choice to take the process to election. The choice will be the employees’ when they sign authorization cards. If the employees’ choose to initiate an election, they can choose to initiate an election.

Second, once the employees have chosen the union as their collective bargaining representative, the employer and the union have 90 days to negotiate a contract. If the parties cannot negotiate a contract within 90 days, the union has the option to request binding arbitration to reach an agreement. Such binding arbitration already exists in the public sector and is commonly referred to as interest arbitration.

Lastly, if during the period during which the union is trying to organize an employer and the employer discriminates against an employee during that process, the penalties for such discrimination have been increased. In addition, the NLRB and the its regional offices have to treat complaints of discrimination with priority, instead of letting them linger for months without resolution.

Proposed Amendments to OHSA Rules on the Operation of Cranes and Derricks

There are 89 fatalities a year on cranes. The majority of the fatalities are due to the equipment coming into contact with a live electrical line. There are other accidents that are also widely reported. On Saturday March 18, 2008, a tower crane collapsed in Manhattan destroying a townhouse, killing 4, and injuring several others. [45] Recognizing the need to monitor the safe operation of cranes, the Bush Administration OSHA proposed extensive changes to the current rules, which have been in place since 1979.[46] It was during the beginning of the Obama administration that hearings were held and formal written comments were submitted.

OSHA summarized the proposed rule as follows:

OSHA is proposing a rule to protect employees from the hazards associated with hoisting equipment when used to perform construction activities. Under this proposed rule, employers would first determine whether the ground is sufficient to support the anticipated weight of hoisting equipment and associated loads. The employer then would be required to assess hazards within the work zone that would affect the safe operation of hoisting equipment, such as those of power lines and objects or personnel that would be within the work zone or swing radius of the hoisting equipment. Finally, the employer would be required to ensure that the equipment is in safe operating condition via required inspections and employees in the work zone are trained to recognize hazards associated with the use of the equipment and any related duties that they are assigned to perform.

1) A certification requirement

2) Training operators and crew on power line safety

3) Systematic, reliable procedures and methods used to prevent a safe clearance distance from being breached

4) Where necessary, de-energizing lines, covering link lines with an insulating sleeve, using insulating links and non-conductive tag lines, and grounding equipment”

Currently, 14 states including the District of Columbia and California Connecticut Hawaii Massachusetts Minnesota Montana Nevada New Jersey New Mexico New York Oregon Rhode Island Utah Washington (as of 2010) West Virginia have rules that requiring heavy equipment operators to be certified in order to operate any number of a variety of cranes. Many insurance policies require such certification of the operators in order to insure the crane and the job. Interestingly, many states do not have such rules and OSHA has stepped in to fill that gap.

The State of Ohio does not require certification of crane operators. Nevertheless, there is process by which crane operators are certified. According to Donald W. Frantz, Regional Coordinator for the Cygnet Training Center for the Ohio Operating Engineers Apprenticeship Fund, “OSHA’s proposed rule, does codify an industry practice that began in the State of Ohio in 1996 when the CCO began administering a written test. The CCO began administering its practical test in 1998. This industry practice in Ohio has expanded over the past 12 to 13 years to the point that at least 95 percent of IUOE Local 18’s signatory contractors request certified crane operators when seeking referrals from the Local Union’s hiring hall. Contractors seek certified crane operators for all types of work, including power plants, chemical plants, refineries, bridge construction, foundation work, building construction, and crane rental.”

Coinciding with the proposed rule, OSHA implemented a National Crane Safety Initiative to address safety hazards during construction crane operations. According to Assistant Secretary for Occupational Safety and Health Edwin G. Foulke Jr.:

Three important features of this initiative are that it will provide information and outreach to the construction industry and other stakeholders, offer enhanced resources to OSHA inspectors who address crane safety, and implement a National Emphasis Program on Crane Safety. The Bureau of Labor Statistics recently reported the 2007 fatality rate was the lowest in recorded history, including a reported five percent reduction in fatalities for the construction industry. This initiative builds upon this successful record.

Thus, in collaboration with construction industry partners, OSHA plans to increase awareness and avoidance of crane hazards. The agency's safety and health compliance officers will receive enhanced crane safety “resources.” Additionally, the National Emphasis Program will incorporate increased targeted inspections of construction job sites to identify crane hazards and promote compliance with workplace crane safety requirements. ⁵²

There were two sets of issues before OSHA in the rulemaking proceeding.[47] One was the criteria for the certification of crane operators. [48] The other issue was the safety rules governing the operation of the cranes.[49] The International Union of Operating Engineers (IUOE) argued that there should be true third party verification of certification. In other words, IUOE, argued against employer self-verification of certification, in essence, arguing that the employer had a conflict of interest in verifying whether an operator was truly certified. [50] In addition, IUOE argued that OSHA should adopted standards that were at least as strict as the state standards, so as to avoid issues of pre-emption of state laws. [51] Lastly, IUOE argued that there should be a set of standardized voice and hand commands. This standard would be especially important where an operator’s first language or dominant language was not English.

¹ See

² 78 Cong. Rec. 3444 (1934)

³ Id.

⁴ Id.

⁵ Id.

⁶ 79 Cong. Rec. 7565 (1935) (remarks of Senator Wagner)

⁷ 29 Geo. Wash. L. Rev. 199, 201 (1960)

⁸ Id. at 202-203

⁹ Id.

¹⁰ Id. at 201

¹¹ Id. at 201-203

¹² Id.

¹³ Id.

¹⁴ Id. at 205

¹⁵ 29 U.S.C. §§151-163 (1994)

¹⁶ 29 U.S.C. §157

¹⁷ Id.

¹⁸ 29 U.S.C. §158

¹⁹ Id.

²⁰ 29 U.S.C §160

²¹ 79 Cong. Rec. 7565

²² 79 Cong. Rec. 7567

²³ Id.

²⁴ Id. at 7568

²⁵ Id.(quoting American Steel Foundry v. The Tri-City Central Trade Council, 257 U.S. 184 (1921)

²⁶ 79 Cong. Rec. 7568

²⁷ 78 Cong. Rec. 3444

²⁸ 79 Cong. Rec. 7565

²⁹ 29 Geo. Wash. L. Rev. at 218

³⁰ 29 U.S.C. §§141-144, 167, 172-187

³¹ Id.

³² Id.

³³ Id.

³⁴ Id.

[35] Labor Management Relations Act, 1947: Hearings on H.2. 3020 before the Commission on Education and Labor, 80th Cong. 4 (1947) (statement of Rep. Hartley) reprinted in Legislative History of the Labor Management Relations Act, Vol. 1, p. 295. (1959, reprinted 1985)

[36] 93 Cong. Rec. 3572-3634, reprinted in Legislative History of the Labor Management Relations Act, Vol. 1, p. 669-768. (1959, reprinted 1985)

[37] House Minority Report on H.R. 3020, reprinted in Legislative History of the Labor Management Relations Act, Vol. 1, p. 355-403.

[38] House Supp. Minority Report No. 245 on H.R. 3020 reprinted in Leg. Hist. LMRA, vol. 1, p. 404-406

[39] 29 U.S.C. §§141-144, 167, 172-187

[40] S. Rep. No. 187, 86th Cong., 1st Sess. 27-28 (1959)

[41] Id.

[42] Id.

[43] Id.

[44] 434 U.S. 335 (1978)

⁴¹ Jim McNeff, Inc. v. Todd, 461 U.S. 260, 265-266 (1983)

⁴² S. Rep. No. 187, 86th Cong., 1st Sess. 27-28

⁴⁴ Id.

⁴⁵ Id.

⁴⁶ Id.

⁴⁷ See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 657 (1982)

⁴⁸ See NLRB v. Iron Workers, 434 U.S. 335, 345 (1978)

[45] http://www.nytimes.com/2008/03/16/nyregion/16collapse.html

[46] 29 C.F.R. 1926.550.

⁵¹ See http://thepumphandle.wordpress.com/2009/06/22/whats-next-for-oshas-crane-rule/.

⁵² See http://thepumphandle.wordpress.com/2009/06/22/whats-next-for-oshas-crane-rule/.

[47] Post Hearing Brief of the International Union of Operating Engineers on Proposed Standard on Cranes & Derricks in the Construction Industry, Elizabeth Nadeau, Assistant General Counsel.

[48] Id.

[49] Id.

[50] Id.

[51] Id.