Rules + Regs

OSHA to extend date for submitting injury and illness logs

The Occupational Safety and Health Administration (OSHA) intends to extend the initial date by which certain employers are required to electronically submit their injury and illness logs under the record-keeping rule issued in May 2016. This regulation requires certain employers to submit the information from their completed 2016 Form 300A to OSHA electronically by July 1, 2017.

NRCA has testified before Congress outlining members' concerns with the record-keeping rule and requested the Trump administration review the regulation for possible delay, modification or repeal. Additionally, litigation challenging the legality of the regulation is pending.

OSHA has not yet announced the proposed extension date. For the most recent updates and additional information, visit OSHA's record-keeping pages by clicking here and here.

Missouri bans mandatory project labor agreements

On May 30, Gov. Eric Greitens (R-Mo.) signed a bill barring project labor agreements that require open-shop contractors to pay union wages.

The new law takes effect Aug. 28 and prohibits state and local governments from requiring bidders on public projects to use union labor or pay union wages. It also prohibits preferential treatment for union contractors and cuts state funding to local governments that violate the law. The new law gives enforcement authority of its provisions to the state attorney general and local prosecutors and includes a private right of action allowing wrongly excluded contractors to pursue damages.

"Project labor agreements drive up the cost of construction and kill jobs," Greitens said in a statement published in Bloomberg BNA. "Our top priority is more jobs for the people. We're eliminating this sweetheart deal for special interests, protecting taxpayers and creating more opportunity for all workers in Missouri."

Previously, project labor agreements were banned in Missouri for projects funded 50 percent or more with state funds but were allowed for other projects.

Before the new legislation was approved, the Missouri Chamber of Commerce and Industry predicted the bill would save thousands of dollars for the state.

"The bill would leave it in the hands of the contractor, and as a result, the contractor can choose the most cost-efficient way to get the job done," Brian Bunten, general counsel for the Missouri Chamber of Commerce and Industry, said in a February statement. "That's a win for the contractor, a win for the employees chosen for the job, and it's a win for Missouri taxpayers."

Supporters of the new law argue project labor agreements discriminate against open-shop contractors and raise the cost of public works projects.

Critics of the law, including the Missouri AFL-CIO and the United Steelworkers, say local governments should be able to use the agreements because they lower costs, shorten project timeframes, improve safety and reduce labor disputes.

OSHA reverses changes to Volks rule

The Occupational Safety and Health Administration (OSHA) officially canceled a regulation that extended the statute of limitations for injury and illness record-keeping violations. The regulation was introduced by the Obama administration, and President Trump signed a Congressional Review Act resolution April 3 to disapprove the rule.

In a final rule scheduled for publication May 3, OSHA formally withdrew the requirements of the canceled "Volks rule," which allowed for employers to be fined for record-keeping violations for up to five years. The administration now is eliminating those previsions from federal regulations and restoring the previous six-month statute of limitations for citing a record-keeping violation.

The Volks rule was meant to reverse the effects of a 2012 U.S. Court of Appeals for the District of Columbia Circuit decision, commonly called Volks II. The unanimous three-judge decision said the Occupational Safety and Health Act prohibited OSHA from citing violations more than six months old.

OSHA tried to bypass that court decision in the Volks rule by clarifying employers had a continuing obligation to maintain accurate records for five years.

Routine stretching doesn't trigger OSHA's recordable injury rule

An employer telling a worker to continue regular stretching exercises with no alterations after the worker reports a "minor discomfort" does not trigger the Occupational Safety and Health Administration's (OSHA's) recordable injury requirement, according to a May 24 interpretation letter released by OSHA.

In the letter, OSHA responded to a question regarding whether the stretching recommendation required an employer to list the minor discomfort as a recordable injury.

William Principe, a partner with Atlanta-based law firm Constangy, Brooks, Smith & Prophete LLP, contacted OSHA with the question. Principe told Bloomberg BNA OSHA's response was unusual because most OSHA interpretations of standards addressing stretching conclude reporting is required.

In this case, the worker participated in stretching exercises hourly and at the beginning of each shift. The worker notified a supervisor of a minor discomfort in his left shoulder, and the supervisor advised the worker to continue participating in stretching sessions and notify the supervisor if the pain continued. The worker did not report any additional symptoms.

OSHA concluded that because there wasn't any change to the stretching exercises for the minor discomfort, the supervisor's advice to continue stretching did not trigger the recordable injury requirement for medical treatment that goes beyond first aid. If a worker is told to stretch as a "new course of action" to treat a work-related pain, the recordable injury requirement would be triggered.

OSHA delays crane operator certification deadline

The Occupational Safety and Health Administration (OSHA) announced May 22 it intends to propose an extension of the compliance date for certification for construction crane operators. Construction crane operators won't have to meet a Nov. 10 deadline to comply with OSHA's rule mandating they be certified by a third-party evaluator and designated as qualified; at press time, a new deadline had not been issued.

The construction crane rule was issued in 2010, but in 2013, OSHA agreed to reconsider requirements for certification by third-party evaluators and operator qualification after crane industry representatives said the mandates were not what a panel of industry and OSHA representatives envisioned as it drafted the rule in 2003 and 2004. The agency began a new rulemaking that addressed qualification and certification but made little public progress toward issuing a final rule before the Nov. 10 deadline.

OSHA officials interpreted the 2010 rule as requiring operators to be certified not only for the type of crane but also by the crane's lifting capacity. For example, an operator certified to control a hydraulic crane would need separate certifications for hydraulic cranes with different weight capacities.

Although crane industry representatives agree type certification is needed, most disagree with capacity certification, saying it would add expenses not considered by the rulemaking panel; tie up cranes for certification tests instead of being at building sites; and take operators away from projects.

Crane industry representatives also questioned why OSHA considered an operator to be "qualified" if the operator was only certified. An operator who is certified only has met basic requirements to operate a crane, whereas employers contend designating an operator as "qualified" involves additional in-house evaluations beyond a certification test.

NLRB must reconsider case of fired boilermakers

A federal court ruled May 26 the National Labor Relations Board (NLRB) must reconsider whether Hawaiian Dredging Construction Co., Honolulu, illegally fired members of International Brotherhood of Boilermakers Local 627 after their union contract expired.

NLRB said Hawaiian Dredging Construction fired 13 boilermakers because of their union membership, which violates federal labor law. However, the company argued it followed the legal practice of not employing construction craft workers in the absence of a union contract.

Although NLRB cited evidence the company employed union members during gap periods when a contract was not in effect, the U.S. Court of Appeals for the District of Columbia Circuit said the board never confronted an administrative law judge's findings that the company's conduct was consistent with its practice during 20 years and emphasized the NLRB needs to observe the "unique legal framework" involved with prehire bargaining agreements in the construction industry.

The appeals court's decision said Hawaiian Dredging Construction was involved with collective bargaining agreements with the local boilermakers. Section 8(f) of the National Labor Relations Act says construction industry employers can enter agreements to recognize unions without a showing of majority status; such relationships typically can be terminated at the end of a collective bargaining agreement. In the Hawaiian Dredging Construction case, the parties disputed the company's right to fire employees after exercising its right to terminate an 8(f) agreement.

Hawaiian Dredging Construction and the union bargained for months without reaching an agreement after the company's most recent contract expired. International Brotherhood of Boilermakers Local 627 refused to dispatch employees to Hawaiian Dredging Construction, and the company decided to no longer employ boilermakers, firing 13 of the local union's members.

NLRB said the firings were illegally motivated by the boilermakers' union membership and awarded the employees reinstatement and back pay. Appeals Court Judge Judith W. Rogers said NLRB's consideration of the evidence was "problematic" and the board had not "adequately engaged the record evidence" on which the administrative law judge relied. The case then was remanded to NLRB for further consideration.

The boilermakers' union attorney David A. Rosenfeld said he's confident the union will triumph when NLRB reconsiders the case because whatever right Hawaiian Dredging Construction had to suspend operations after its union contract expired does not explain the decision to fire the boilermakers.