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How Marty Walsh Saved David Weil From Building Trades Opposition

Sept. 14, 2021, 2:30 PM

The prospect of David Weil returning as the U.S. Labor Department’s top wage regulator didn’t thrill some leaders of the politically moderate building trades unions, who thought he was lackluster in overseeing construction prevailing wage standards during the Obama administration.

But then Labor Secretary Marty Walsh got involved.

Walsh, whose political rise began in the building trades, convinced Sean McGarvey, president of North America’s Building Trades Unions, to shelve criticism of Weil, according to three sources briefed on a call Walsh held with the union leader shortly after he became labor secretary in late March.

The outcome of that call cleared a path for the White House to nominate Weil as Wage and Hour Division administrator in June. Weil, whose nomination is pending in the Senate, would give Walsh a proven agency leader to fulfill high-priority Biden campaign promises, such as expanding overtime eligibility and combating misclassification of workers as independent contractors. Weil has been a sharp critic of gig-economy powers such as Uber Technologies Inc. and Lyft Inc. for labeling their workers as contractors.

Yet Walsh’s outreach to McGarvey also underscores the advantageous political climate President Joe Biden has cultivated for NABTU and its roughly 3 million members across 14 affiliate unions. Many of the blue-collar members supported former President Donald Trump, but could occupy swing votes in future elections.

Weil, who ran the Wage and Hour Division from 2014 until early 2017, earned high marks from progressive unions as an innovative defender of low-wage workers’ paychecks. But he had vexed some building trades leaders, who resented what they viewed as his disregard for a narrower piece of the agency’s jurisdiction: regulating and enforcing construction prevailing wage standards under the Davis-Bacon Act, according to a dozen interviews and a review of relevant documents.

Weil’s defenders point to his arrival at the Labor Department midway through Obama’s second term, a period when the White House required him to execute on a high-profile, time-consuming regulation to extend overtime pay to about 4 million new workers.

Construction unions had long called for the department to issue new Davis-Bacon regulations to redefine what constitutes a prevailing wage that builders must pay when receiving government dollars, keeping it more in line with collectively bargained union rates. But Weil’s agency didn’t have the bandwidth to take that on, former Obama DOL officials said.

The situation is different now, with DOL preparing for a heightened focus on investigations that would align with massive new federal infrastructure investments nearing passage in Congress.

Sean McGarvey, president of North America’s Building Trades Unions, speaks during an event in April 2019.
Photographer: Zach Gibson/Getty Images

The $550 billion Senate-approved infrastructure bill now awaiting a House vote would create a robust expansion of building projects subject to Davis-Bacon wage levels. The Wage and Hour Division is readying a new regulation to update construction pay rules under Davis-Bacon, with an initial proposal expected in November.

“I don’t think there’s any question that under this administration, at this point of time, under this secretary of labor, that anybody who is coming in as the wage and hour administrator understands that a huge part of their job is going to be making sure that Davis-Bacon is properly enforced in a time where there’s a significant amount of money going into government contracting,” said Michael Hancock, who worked under Weil as WHD’s assistant administrator for policy during the Obama administration.

AFL-CIO Huddle

It was a much different story in November when the AFL-CIO held a session, shortly after Biden was elected, for affiliate union staffers to discuss people they’d consider endorsing for posts in the new administration.

When it was put forward that Weil be recommended for a return as wage-hour chief, representatives from various union sectors were enthusiastic—except for those from the building trades who opposed it, citing complaints that he neglected Davis-Bacon, said three sources familiar with the meeting. They countered by pushing Sonia Ramirez, a former top lobbyist for the building trades, for the position.

That effort to maneuver against a potential recommendation of Weil had deep roots. McGarvey wrote to Weil in November 2015 to express a litany of frustrations, according to a copy of the letter viewed by Bloomberg Law. He accused Weil of ignoring complaints of construction wage abuses that building trades-sponsored organizations had filed with the WHD.

McGarvey acknowledged that Weil’s agency had taken on numerous “innovative actions,” but said “it would be most unfortunate if resources are being allocated to these new areas at the expense of other equally vital programs, such as the” Davis-Bacon Act.

Weil, an economist and a dean at Brandeis University who studied targeted enforcement of minimum pay and overtime laws, responded in July 2016 in a letter also shared with Bloomberg Law. He provided data disputing McGarvey’s assertions that the agency’s Davis-Bacon investigations had declined; he showed instead that annual Davis-Bacon cases had held steady within a range of 1,495 to 2,035 over the prior few years.

He also highlighted his agency’s limited resources to investigate workplaces under multiple statutes—not just the construction-specific Davis-Bacon.

GOP Opposing Weil

Five years later, Weil is facing a narrow path to confirmation, making the detente Walsh struck with the building trades that much more important. The Senate labor committee deadlocked along party lines on Weil’s nomination Aug. 3; the full Senate must now vote to advance him to the floor.

Republicans are opposing Weil over his Obama-era record of aggressively enforcing wage laws—which they argue stifles job growth.

The building trades, who have political connections on both sides of the aisle, aren’t working to peel off Democratic votes. That’s a crucial development, because if Weil maintains unanimous support among Democrats, Republicans won’t have the votes to block his confirmation.

The union group’s chief of staff, Mike Monroe, declined to comment on the Walsh-McGarvey communication or its Obama-era arguments against Weil, but said NABTU “did and continues to fully support David Weil’s nomination.”

DOL and the White House didn’t respond to a detailed list of questions. A Biden administration official, who asked for anonymity because they weren’t authorized to discuss a nominee during the confirmation process, said, “Weil brings tremendous expertise, from his time both in and outside government, and is exactly the right person to lead the Wage and Hour Division in this moment.”

Weil declined to comment.

Labor Secretary Marty Walsh discusses the administration’s infrastructure vision at an event in Washington, D.C., in May.
Photographer: Al Drago/Bloomberg

No Reason to Fight

The agency is now being run on an acting basis by Jessica Looman, a former executive director of the Minnesota building trades coalition. She’s spearheaded regular meetings with WHD staffers on improving Davis-Bacon enforcement, including providing better training for investigators.

Mark Erlich, a former official with the United Brotherhood of Carpenters—which isn’t affiliated with NABTU—said he doesn’t believe “there’s any reason to fight a confirmation where the department has already made clear they’re going to ramp up the efforts” to reboot Davis-Bacon wage surveys. He was referring to outdated survey data, which leads to hourly wages of as little as $7.25 on taxpayer-funded construction sites.

“I think David has a very deep and sophisticated understanding of the construction industry,” Erlich added.

At his confirmation hearing in July, Weil assured Sen. Ben Ray Luján (D-N.M.) that he’d “be delighted” to work with him to correct flaws in Davis-Bacon surveys.

The Associated General Contractors, which lobbies for union and nonunion construction companies, is expecting the division under Weil’s watch to increase Davis-Bacon regulatory and enforcement activity, said Denise Gold, AGC’s associate general counsel.

“We are hopeful,” Gold said, that Biden’s labor team “will tackle the issues intelligently and reasonably, and that AGC will have an opportunity to help.”

—With assistance from Josh Eidelson (Bloomberg News)

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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