The Publication for Merit Shop Pipeline Contractors AMERICAN PIPELINE CONTRACTORS ASSOCIATION 2nd Quarter 2022 APCA Convention Promotes Pipelines, Motivates Membership Employee Complaint Investigation Checklist for Employers OSHA Announces National Emphasis Program on Heat Hazards Contract Notice: Clarity Is Key DOL Seeks to Significantly Expand Davis-Bacon Coverage Keynote Speaker Andy Stumpf
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PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 5 Officer Directors Of f i c ial Publ i cat ion of the Amer i can Pipel ine Cont rac tors Assoc iat ion Board of Directors Publication Staff PO Box 638 Churchton, MD 20733 (703) 212-7745 • www.americanpipeline.org ©2022 American Pipeline Contractors Association Nick Bertram Jomax Construction Co., Inc. Mike Castle, Jr. Castle Scott Coppersmith Mears Group, Inc. David Dacus (Advisory) Troy Construction, LLC Ricky Dyess M.G. Dyess, Inc. John Fluharty (Advisory) Mears Group, Inc. Chris Jones HardRock Directional Drilling, LLC Patrick McRae Primoris Pipeline Sean Renfro Sunland Construction, Inc. Aaron Simon (Advisory) Troy Construction, LLC Publisher TimothyWagner Editor Michael Ancell Advertising Sales Stacy Bowdring Information Technology Greg Smela Accounting James Wagner Layout & Design JosephWagner Government Affairs Jaime Steve Government Affairs Zachary Perconti President Taylor Dacus Troy Construction, LLC 1st Vice President RoyWeaver Weaver, LLC 2nd Vice President Kevin LaBauve WHC Energy Services Treasurer Nick Bruno Bi-Con Services AMERICAN PIPELINE CONTRACTORS ASSOCIATION Employee Complaint Investigation Checklist for Employers 11 By Greg Guidry When confronted with a complaint about inappropriate workplace behavior, an employer should promptly conduct a thorough investigation. Failure to do so could negatively impact the employer’s defense should a formal complaint, charge, or lawsuit be filed. This checklist outlines the recommended dos and don’ts for conducting an effective investigation. Contract Notice: Clarity Is Key 14 By John Grayson This new regular column by John Grayson, Cokinos | Young, offers practical and commonsense suggestions regarding the construction contract based on decades of experience in construction and pipelining related law. This quarter’s column looks at notice provisions in the contract. APCA Convention Promotes Pipelines, Motivates Membership 17 More than 260 APCA members, family, and friends traveled to Scottsdale, Ariz., in March for the APCA Convention, where they met with fellow members, learned more about their industry, and charted a path forward in uncertain times. And, of course, they had a great time! Inside Washington 7 News Briefs 30 APCA Member News 36 New APCA Members 38 Advertiser Index 38 Industry Calendar 38 2nd Quarter 2022
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 7 InsideWashington continued on page 8 INSIDE WASHINGTON DOL Seeks to Significantly Expand Davis-Bacon Coverage While the impacts of the Davis-Bacon Act (DBA) do not regularly impact interstate pipeline construction projects, as a key association whose purpose is to defend merit-shop contractors, lessening the impacts of federal prevailing wage requirements has always been a fundamental part of APCA’s mission. So, when the U.S. Department of Labor (DOL) issued its long-anticipated Notice of Proposed Rulemaking (NPRM) seeking to expand the scope of DBA, APCA didn’t stay on the sidelines. The proposed rule includes significant changes that will benefit union contractors while undermining the merit-shop construction sector at a time when the nation needs to provide all qualified construction entities the opportunity to bid on the countless infrastructure projects coming our way. In March, DOL published its NPRM to “update” DBA regulations that propose wide-ranging implications for construction industry businesses that work on federal and federally assisted construction projects. In fact, the proposed rule implements more than 50 significant changes to prevailing wage regulations. Congress has incorporated DOB requirements into dozens of statutes where federal agencies provide funding assistance for construction projects through direct funding, grants, loans, loan guarantees, or even insurance. However, the most high-profile example of pushing DOB requirements was the $1.2 trillion Infrastructure Investment and Jobs Act (IIJA), where many projects funded in whole or in part are accompanied by DOB requirements. Setting Local Prevailing Wage Rates The NPRM proposes changes to the definition of “prevailing wage” and to the scope of data to be considered in its wage surveys to set prevailing wages. Addressing “the overuse of weighted average rates,” DOL proposes to return to the definition of “prevailing wage” that it used from 1935 to 1983. Under current law, a single wage and benefit rate may be identified as prevailing in the area “only if it is paid to a majority of workers in a classification on the wage survey. Otherwise, a weighted average is used.” DOL proposes to return to the “30-percent rule,” where in the absence of a wage rate paid to a majority of workers in a particular classification, a wage rate will be considered prevailing if it is paid to at least 30 percent of such workers. Because unions historically have shown far greater participation in the wage survey process than do merit-shop contractors, this would result in many more job classifications. DOL also proposes a new methodology to give it the authority and discretion to adopt state or local wage determinations as DBA prevailing wages where certain specified criteria are satisfied to fill in gaps in its survey data with prevailing rates that have been collected already by state or local agencies. According to DOL, this change will “increase efficiency and reduce confusion for the regulated community where projects are covered by both federal and local or state prevailing wage laws and contractors are already familiar with complying with the local or state prevailing wage requirement.” Expansion of Site of Work Payment of prevailing wages to workers applies to performing
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 8 Inside Washington Continued from page 7 duties at the “site of the work.” The rule seeks to expand the definition of site of the work to include sites that are currently excluded, including off-site construction of “significant portions” of a prefabricated building. DOL is also looking to expand the DBA coverage of truck drivers, including drivers dropping off materials from material suppliers who were not previously covered under the DBA. Impacts on Enforcement Under current law, in order for a contractor to have a contract subject to the DBA, the government funding agency must include DOB requirements and wage determinations as part of the contract. If the government agency fails to do so, DOL cannot hold the contractor liable or enforce the requirements unless and until the government agency amends the contract to add the required DBA requirements. However, the proposed rule stipulates that DBA contract requirements be effective by “operation of law,” regardless of a mistaken omission of DBA requirements from a contract. If this provision is adopted in the final rule, DOL will be allowed to enforce DBA requirements against contractors and demand back pay even where the contractor had no knowledge that the requirements applied. The NPRM also proposes changes to make it easier for DOL to request that contracting and funding agencies withhold contract payments from any contracts if deemed necessary by DOL to secure funds for potential back pay during a DOL DBA investigation. If enacted, the NPRM will have significant negative impacts on contractors with respect to costs, compliance responsibilities, and enforcement penalties, and APCA will work with our industry allies to weigh in and point out the shortcomings of this harmful proposal. Race for $8 Billion in Hydrogen Projects Is On As previously reported, APCA continues to fight the ongoing assault on natural gas and the pipelines that carry it. While attacks on natural gas were fierce in last year’s infrastructure debate, the pipeline industry was pleased to see that in the end, significant funding was provided for carbon capture use and storage (CCUS) projects and demonstration projects that will evaluate whether increased use of hydrogen can also be considered a viable energy source in the future. The IIJA provided upwards of $20 billion in the final bill to investigate these issues, and the demonstration projects that will be funded with those dollars will undoubtably include a significant role for pipelines. Building new pipelines and/ or adjusting existing pipeline infrastructure will be needed to determine if we can begin to carry higher volumes of hydrogen and help achieve a range of energy goals. Let’s take a look at where we are with regard to hydrogen. Hydrogen is emerging as one of the cleanest options to power industries that typically rely on fossil fuels, and it may help generate electricity with less carbon dioxide. Companies across the world are exploring hydrogen as a possible fuel for long-haul trucks, factories, trains, ships, and even airplanes, though most of these efforts are in early stages. While a “hydrogen economy” where hydrogen runs power plants, factories, and is relied on as a main American fuel source is years down the road, that hasn’t stopped several states from jockeying for a share of the $8 billion in federal funds in IIJA earmarked for hydrogen “hubs.” The IIJA includes funding to build at least four hydrogen hubs—places where the gas can be produced and used in a self-sustaining way. Two hubs must be in regions with abundant natural gas reserves, such as West Virginia. During the IIJA debate, this policy helped secure support from Sen. Joe Manchin (D-W.Va.), arguably the most powerful lawmaker in Congress. The hubs are intended to test different ways to produce and use hydrogen and are a focal part of efforts to transition American industry off fossil fuels in the name of fighting climate change. Gas rich states are beginning to express interest in IIJA dollars, although formal applications have not been filed yet, and there is much work to be done before and after applications are filed. That said, many major corporations are said to be beginning to get serious about pursuing federal dollars to develop efforts to increase the use of hydrogen. Interestingly, while some states are acting on their own, other states are banding together and using collective resources to develop solid plans to secure IIJA resources. This will be interesting to watch, but one thing is clear: any efforts to test hydrogen as a possible major American fuel source will not be possible without safe and dependable interstate pipelines and the contractors who build, repair and maintain them.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 9 This will be interesting to watch, but one thing is clear: any efforts to test hydrogen as a possible major American fuel source will not be possible without safe and dependable interstate pipelines and the contractors who build, repair and maintain them. Permitting Reform Back on the Table APCA has long considered project permit reform as a top priority. Whether dealing with Clean Water Act Sec. 401, Sec. 404, or other federal or state permits that have plagued the viability of pipeline projects by a stubborn but well-organized environmental community, APCA has fought the good fight. While our industry has relied on only a small handful of Democrats to support the concept of streamlining the permit process (think Joe Biden), a recent announcement from the White House was more than surprising. The Biden administration recently indicated that they will tweak the federal review process for environmental permits in an effort to speed up infrastructure construction. However, while administration officials laid out a blueprint for a permitting action plan that included priorities and directives, the White House announcement did not carry the weight of an executive order. According to administration officials, the new plan is intended to accelerate permitting for infrastructure projects without compromising environmental standards. APCA and other contractor groups have long criticized the lengthy and complicated project-approval process. The new permit plan aims to create a permitting council to bring relevant federal agencies together to improve the environmental-review process. The plan includes five key elements, where the White House intends to: • Engage in “early and meaningful outreach” with states and local governments to gain input on projects in their area from the start. • Consolidate decision-making among federal agencies to reduce the number of permits subject to a given project. This would include plans to set up sector-specific teams to coordinate and streamline permit applications from a wide range of industries. • Establish goals and timelines needed to track project information. • Improve technical assistance and other support for project partners. • Leverage existing agency resources to prioritize permitting review. According to a White House statement, if implemented, the plan “will result in better permitting outcomes, enhanced predictability for project sponsors, and increased accountability across federal agencies to execute efficiently and effectively.” In the wake of the IIJA, which will inject hundreds of billions in new spending for countless infrastructure projects, the Biden administration seems to be changing course. This follows a much different approach than Biden took in April, when he restored regulations included in the National Environmental Policy Act, the environmental law that requires review of federal projects to assess their likely impacts on climate change and nearby communities. Former President Donald Trump had loosened the law in an effort to accelerate construction. Perhaps the president has seen the light regarding the need to implement a reasonable permitting process after enacting a $1,2 trillion infrastructure law and has realized that we can do without needless delays based not on science but on political ideology. 7 Provider of Launchers and Receivers for all Pipe Diameters Our Rentals Include: • Pig Launcher Rentals (4”-48”) • Pig Receiver Rentals (4”-48”) • Valve Rentals 713-906-0271 candacetcrentals17@gmail.com tedbtcrentals@gmail.com www.tcrentalsinc.com P.O. Box 1688 • Tomball, TX 77377 c . . ll,
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PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 11 HUMAN RESOURCES Employee Complaint Investigation Checklist for Employers Human Resources continued on page 12 Greg Guidry Ogletree Deakins Nash Smoak & Stewart greg.guidry@ogletree.com (337) 769-6583 One of the most important things an employer must do when confronted with a complaint about inappropriate workplace behavior (e.g., harassment) is to promptly conduct a thorough investigation. Failure to do so could be a disaster and negatively impact the employer’s defense should a formal complaint, charge, or lawsuit be filed. For example, in one case, the plaintiff alleged that her supervisor sexually harassed her and that her employer failed to properly investigate the sexual harassment claim by questioning her in front of the supervisor accused of harassing her, by failing to properly track and maintain records of incoming phone calls to its sexual harassment hotline, by failing to provide call-back or follow-up services when complaints were lodged, by failing to properly staff the sexual harassment hotline, and by failing to properly train employees working on the sexual harassment hotline. The jury awarded $95 million to the claimant. The following checklist outlines the recommended dos and don’ts for conducting an effective investigation when an employee complaint alleges unlawful or inappropriate behavior in the workplace. A. Preparing for the Investigation • Review the personnel file of relevant employees. In particular, review the files of the complaining employee and the employee(s) accused. • Collect and review all relevant documents, including applicable policies and/or work rules. • Prepare a preliminary list of persons who may have knowledge of the matter being investigated. • Set a timetable and establish a plan for conducting interviews. • It may also be helpful to consult with legal counsel regarding your initial investigation plan. Counsel can advise you regarding the most effective way to complete the investigation. B. Consider Confidentiality Needs and Restrictions • Assess need to require witnesses to maintain confidentiality. • Is evidence in danger of being destroyed? • Is there danger of witness collusion and/or fabrication of testimony? • Is there a need to prevent a cover-up? • Do witnesses need protection? • Do these concerns outweigh the employees’ interests in discussing discipline or disciplinary investigations? • If you have determined that some level of witness confidentiality is necessary and outweighs the employees’ interest in discussing workplace investigations, inform each witness of necessary confidentiality restrictions. • Tell each witness that any confidentiality restriction “does not prohibit you from reporting possible violations of law to any government agency and does not prohibit you from making any disclosures protected under the whistle blower provisions of law or government regulations.” C. Thoroughly and Immediately Investigate ALL Complaints • Investigate every complaint. Thorough investigations may help to insulate or at least limit liability from legal claims of harassment, discrimination, wrongful termination, etc. • Keep the investigation and the facts that it uncovers on a strict “need-to-know” basis. Do not make any promises that information will remain confidential. This simply may not be possible and may even jeopardize your ability to conduct a thorough investigation. • Interview the complainant, accused, immediate supervisors, and witnesses as soon as possible. Take written statements when appropriate.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 12 D. Interview the Complainant • Remain objective. • Determine the identity of the accused. • Determine when and where the alleged incident occurred. • Determine if the incident was isolated or part of a pattern of conduct. • Get specific details of the incident(s). • Ask the complainant his or her reaction to the incident(s). • Determine if there were any witnesses to the incident(s). • Determine if the complainant has spoken to anyone else about the incident(s). • Assure the complainant that the complaint will be taken seriously and investigated thoroughly. • Assure the complainant that the complaint will be kept as confidential as possible, consistent with your obligation to conduct a thorough investigation. • Never agree to forego an investigation of a complaint pursuant to the complainant’s request for confidentiality. • Ask “Is there anything else you think I should know?” E. Interview the Accused • Remain objective. • Determine if the accused knows of the incident(s) to which the complainant is referring. If so: • Determine when and where the incident(s) took place. • Get specific details of the incident(s). • Ask how the complainant reacted. • Determine if there were any witnesses to the incident(s). • Determine if the accused spoke to anyone else about the incident(s). • Determine if there was ever a prior consensual relationship between the parties. • Determine the accused’s perception of his or her working relationship with the complainant. • Ask whether the complainant and accused socialized together, either alone or in a group. • Determine if the accused knows of any reason why the complainant would make the allegation. • Determine whether the accused directed, or had responsibility for, the work of other employees, or the complainant had authority to recommend employment decisions affecting others or was responsible for the maintenance or administration of the records of others. • Observe the accused’s demeanor and reaction. • When the accused is the complainant’s supervisor, determine if the complainant was recently granted or denied any job benefits, such as raises or promotions. • Assure the accused that the complaint will be kept as confidential as possible, consistent with your obligation to conduct a thorough investigation. • Ask “Is there anything else you think I should know?” F. Interview the Immediate Supervisors • Determine the parties’ discipline problems or behavior patterns. • Determine whether the parties’ supervisors had any knowledge about any relationship between the complainant and the accused. • Determine if the complainant ever reported the conduct to the supervisor. • Ask “Is there anything else you think I should know?” G. Interview Witnesses Where Necessary • Remain objective. • When the witness is a current or former employee, review his or her personnel file prior to the interview. • Be cognizant of privacy concerns for both the complainant and the accused. • Start with broad, open-ended questions. Get more specific as necessary. • Do not give details of the complaint unless it is necessary to obtain relevant information. • Phrase questions so as not to give unnecessary information. • Do not automatically limit the investigation to witnesses currently in the workforce. Interview former employees, friends, and relatives of both the complainant and the accused if advised to do so by counsel. • Ask “Is there anything else you think I should know?” H. Consider Searches as an Investigatory Tool • Minimize the intrusiveness of the search and base the search on reasonable suspicion that the premises or property to be searched will yield results. • Avoid searches of an employee’s person except in the most extreme situations. • Do not use or threaten force against an employee when searching person or property. • Require that more than one employer representative be present during any interrogation or search of an employee related to theft. • Do not prevent an employee from leaving the room or the workplace during a search or interview, since doing so may create potential liability for false imprisonment. • Ask law enforcement officials to conduct a search if you suspect the search situation might get “out of control.” • Do not move illegal substances discovered during a search, but rather contact the police. • Maintain the confidentiality of the search results to the Human Resources Continued from page 11
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 13 greatest extent possible. • Release information or discuss the search results only with persons having a legitimate “need to know.” • Keep search and investigation information in a secure area with limited access. • Do not confiscate personal property. I. Determine Appropriate Response and Take Any Necessary Corrective Action • Promptly take necessary corrective action, up to and including discharge, where warranted. Corrective action must be effective and must guard against further harassing acts. • Consider the severity of the conduct, the frequency, the pervasiveness of the conduct, any past actions, and whether you believe the accused will engage in any further actions. • When imposing discipline on the accused, any form of discipline, short of discharge, should be issued, along with a warning that similar misconduct in the future may result in immediate termination. • Document the response and all corrective action taken. Include a summary of the investigation explaining the appropriateness of the action. J. Follow Through • After you have thoroughly investigated the complaint, inform the complainant what action was taken. • Instruct the complainant to immediately report recurring or continuing harassment. • Periodically check back with the complainant to ensure that the harassment has been eliminated and is not continuing. • Thank all witnesses for participating in the investigation, and remind them of your anti-retaliation policy. K. Mistakes to Avoid • Failing to have appropriate policies encouraging employees to report inappropriate behavior. • Failing to investigate. • Failing to properly scope the investigation. • Failing to select the right investigator. • Failing to collect and preserve evidence. • Failing to report, or properly report, results. 7 Pipelayers Flat Bed Tractors Padding Machines Bending Machines Excavators Trenchers Dozers For Rentals And Supplies Visit CrossCountryIS.com Or Call 1-855-955-CCIS (2247) SUPPLIES INCLUDE: Abrasive & Cutting Tools > Environmental > Safety Products > Valves, Fasteners & Fittings > Lifting & Rigging > Pigging Products > Pipe Testing Equipment > and Much More EQUIPMENT RENTALS INCLUDE: Pile Drivers
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 14 I enjoyed meeting many of you at the APCA Annual Convention at the beautiful Fairmont Princess Resort in Scottsdale. I am privileged to be involved with an industry as dynamic as pipeline contractors and was particularly honored to speak at one of the joint sessions. As I said, energy pipelining is the ultimate infrastructure and is relied upon by the masses but understood and appreciated by only a few. In my presentation, I briefly touched on a few topics relating to the construction contract, which based on observation and experience, can be problematic and are deserving of particular attention. Because of time limitations, I was not able to get into much detail on any of the topics during my presentation. It is my hope to dig a little deeper into some of these topics and more here in this regular column. Needless to say, every project is different, every contract is different, and there is no way that “one size fits all” when it comes to contracts for your projects. For that reason, hard and fast rules applicable to every situation are beyond the scope of this column, and this is not an effort to write or rewrite your contracts. But experience in drafting contracts and litigating disputes involving them has taught us that planning and foresight, along with a desire to constantly improve, can make a big difference in your success and profitability. You will quickly notice that this column is not a legal treatise; nor is it intended to be. Here, I will offer practical and commonsense suggestions based on our decades of experience in construction and pipelining related law. Before we go too far, keep in mind, because the contract is binding on both parties, anything the contractor insists upon is fair game for the owner to also demand. Therefore, it is good to remember the old saying that goes something like this: “What’s good for the goose is good for the gander.” Normally from the contractor’s perspective this is not a problem, and I often use this saying during negotiations of a particular term or clause in a contract when I am trying to level the playing field between the contractor and the owner. Notice This All contracts require the parties to give some kind of notice to each other. This article will focus on notice. Everyone in the pipeline business knows that the simple things can sometimes be the source of the biggest problems. This can be said of the notice provision. The Texas Supreme Court very recently considered a client’s project that involved a notice of termination provision. The question was whether stringing together a series of informal emails between owner and contractor, that do not mention termination, constitutes compliance with the contractual notice of termination requirement. In other words, is “substantial compliance” but not “strict compliance” with a notice provision good enough? In that situation, the notice provision was fairly normal and standard, but the notice requirement was not as specific as it could have been about the reasons for termination and did not expressly require strict compliance. The other party took advantage and claimed a few emails, scattered over several weeks, was good enough to meet the formal notice requirement. In other words, substantial compliance was good enough. The Supreme Court held that a notice provision that requires the notice must be in writing, requires just that: a writing. This could be a letter, fax, email, text, etc. If there is no writing, there is no compliance with the written notice requirement. The next question was whether the writing substantially complies with the specific requirements of the notice provision. Here is where we can make sure the notice satisfies and fulfils its purpose. Here is where we can make sure the notice requirement is as specific as we need it to be. If it is a notice of termination for safety violations, we can require it to spell out in detail the nature and number of violations, including the date(s), and to clearly state that the termination is due to those safety violations. In high-stakes projects, a termination notice is obviously important, and there should be no question or confusion about what the notice is saying. The same could be said for a notice of default and others. The notice should inform of the nature of the default, when the default happened, and what is necessary to cure the default. These specifics should be spelled out in the notice of default provision. It is true that certain notices might be more important than others. Default, Breach, and Termination are notices neither party to the contract wants to overlook or miss. Such notices must also be very clear and specific. Analyzing letters, voicemails, emails, or texts to decipher their meaning to decide if notice has been given is not a productive exercise, and if you are having to do that, you already have trouble. For that reason, you should consider including a strict performance/ compliance requirement for notices of Default, Breach, and Termination. For such a provision, substance matters more Contract Notice: Clarity Is Key By John Grayson
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 15 than form. The point is to insist on compliance with the notice requirements described in the contract. You could say, “Strict compliance with the notice requirements described herein is required and the noticing party expressly agrees and covenants not to rely on substantial performance when attempting to provide notice of Default, Breach, or Termination.” There are many ways to say it. Whatever is required to be in the notice (type of notice, date, details, etc.) must be clearly stated. Of course, strict compliance could be applied to all notices, but some leeway as to less impactful notices could be a good thing depending on the situation. The same goes for how and to whom notice should be given. Clarity is key. Particular person(s) authorized to send and receive formal notice should be identified in the contract section(s) addressing notice. A physical mailing address, telephone, and fax number should be stated. If email is an accepted method of notice, provide the complete email address. Speaking of email, because most people receive too many emails and no one wants an important notice to be crowded out in the inbox and lost, you might consider setting up a unique, dedicated email address limited to project-related notices. A convenient and clear way to designate those who are authorized to send and receive notice is a simple table (see above). The contract governs the relationship between the parties. Good, clear communication is key to any relationship, and that is especially true regarding a pipeline construction contract. A good, clear notice provision is vital to good communication. I hope these few basic suggestions are helpful. At a minimum, they can serve as reminders of a few things to think about. In future articles, we will discuss various other contractual provisions. If you have any questions, or if there are specific topics you would like addressed in future columns, please contact me. 7 Equipment Solutions for the Energy Industry semicrawlers.com | 800-524-2591 500 Davenport Drive College Station, TX 77845 79 Firetower Road Louisville, MS 39339 PROJECT OWNER NAME CONTRACTOR NAME Name: Name of the individual Name: Name of the individual STREET ADDRESS: STREET ADDRESS: MAILING ADDRESS: MAILING ADDRESS: EMAIL: EMAIL: PHONE: FAX: PHONE: FAX:
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PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 17 Closing out the recent 2022 American Pipeline Contractors Association Convention, President Taylor Dacus, Troy Construction, perfectly summed up the mood of APCA members: “The world’s largest gas field is 200 miles away from New England, and we import Russian gas because the federal agencies will not let us lay pipelines to supply affordable, reliable, and clean energy. To that, I say enough is enough. It is time to put politics aside. It is time to put labor aside. It is time to take action. It is time for all of us to join forces and push Washington to get out of the way. This country and this industry are on the verge of a massive bull run.” His audience—260 attendees, including 13 new members and 27 first timers—erupted in applause. APCA members, family, and friends traveled to Scottsdale, Ariz., in March for the APCA Convention, where they met with fellow members, learned more about their industry, and charted a path forward in uncertain times. The convention’s Opening Session featured Andy Stumpf, a highly decorated, retired Navy SEAL, who delivered a powerful talk on leadership. He said the characteristics he looks for in a leader are humility, accountability, clarity and conciseness, and the ability to control of one’s emotions. He said that we should lay out a structured approach to our goals and then have the motivation and discipline to stick to the plan. “Don’t think about how far away your goal is,” he said, “just focus on the next step.” The following morning, members crowded into the highly informative Government & Industry Relations session for a discussion of important legislative and regulatory issues as well as a look at how the industry presents itself to the public at large. The panel included APCA President Taylor Dacus of Troy Construction, APCA Past President Mike Castle of CASTLE, Tony Straquadine of the INGAA Foundation, and Susan Waller of Natural Allies for a Clean Energy Future. APCA has been working closely with Natural Allies over the past year, and Waller updated members on efforts to inform policymakers and the public about the critical role natural gas plays in America’s clean energy transition. “If you get the information out there, you can change their minds,” she said. The APCA Initiatives panel looked closely at ongoing association projects, including social media outreach, the 811 Emergency damage prevention study, and efforts to APCA Convention Promotes Pipelines, Motivates Membership Convention Recap continued on page 18
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 18 create a model contract. APCA’s Tim Wagner reported that the association’s social media accounts are growing rapidly, especially LinkedIn, where followers have increased by more than 1,000 percent in the last year. He credited the members: “We’re where we are because of you guys. It’s real, it works, and it does change the hearts and minds of people on issues important to us.” While APCA efforts to develop an equitable model contract that could be used throughout the industry has hit some roadblocks, John Grayson, of APCA-member Cokinos | Young, was on hand to help members deal with the contracts they currently deal with. He discussed change orders, owner-caused delays, and notice provisions. He urged members to hold strong during contract negotiations: “Competing for a project does not mean rolling over.” (For more contract advice, see Grayson’s article beginning on page 14, the first in a continuing series.) Mark Bridgers, architect of the 811 Emergency study and principal of Continuum Capital, said that he’s been consulting in the industry since the late 1990s and “has never seen a study get as much attention as this one.” The study examined 811 operations in every state, Washington, D.C., and Chicago and found that failures in the system are costing some $61 billion a year in waste and excess costs and creating unnecessary hazards for public safety. The study was released in November 2021, and the coalition has been publicizing it and engaging with industry stakeholders in the ensuing months. Bridgers said that the next steps include “hard work at the state level” to drive positive changes in their 811 systems. Learn more at icpweb.org. Bridgers was back on stage the next morning, leading a session on the state of the pipeline construction market: The Glass Is More Than Half Full. He detailed the promising opportunities that are available in the pipeline market, including CO2, H2, and RNG pipelines, as well as pipeline integrity & maintenance, gas distribution, and more. He said, “There’s lots of opportunity out there, but remember what Darwin said: ‘Those who can adapt will survive.’” In his Employment Law session, Greg Guidry, Ogletree Deakins, described recent developments in labor and employment law from the Biden White House, NLRB, EEOC, Labor Department, and others. “It’s an all-out assault on employers,” he said. Among his many recommendations were reviewing pay practices, reviewing the employee handbook, training supervisors on employment law dos & don’ts, implementing a robust anti-harassment program, and hiring a good HR professional. A highlight of the convention every year is the Associates Exhibit & Breakfast, where contractors meet with vendors to discuss jobsite issues and learn more about their products and services. A big topic this year, unsurprisingly, was how supply chain issues are affecting product availability. APCA members meet next at the 2022 Mid-Year Meeting, October 5-9, at the Roosevelt in New Orleans. Learn more at www. americanpipeline.org or by following APCA on LinkedIn. 7 Convention Recap Continued from page 17
AMERICAN PIPELINE CONTRACTORS ASSOCIATION 2022 Annual Convention Gold Sponsors Silver Sponsors Bronze Sponsors
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 20 Images of APCA 2022 6SusanWaller, executive director of Natural Allies for a Clean Energy Future, updates APCA members on the group’s ongoing efforts to inform policymakers and the public about the critical role natural gas plays in America’s clean energy transition. “If you get the information out there, you can change their minds.”
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 21 6During the Pipeline Construction Market Update session, Mark Bridgers of Continuum Capital details the opportunities that are available in the pipeline market, including CO2, H2, and RNG pipelines, as well as pipeline integrity & maintenance, gas distribution, and more. “There’s lots of opportunity out there, but remember what Darwin said: ‘Those who can adapt will survive.’” 4Closing out the 2022 Annual Convention, APCA President Taylor Dacus, Troy Construction, urged his fellow APCA members to be the kind of people who see a problem and then take action to make things happen.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 22 3 ”It’s an all-out assault on employers.” Greg Guidry, Ogletree Deakins, describes recent developments in labor and employment law from the BidenWhite House, NLRB, EEOC, Labor Department, and others. 5The entertaining APCA Initiatives session included, from left, John Grayson of Cokinos | Young on contract law, Taylor Dacus of Troy Construction on APCA strategic planning, Mark Bridgers of Continuum Capital on the 811 Emergency study, and APCA’s Tim Wagner on APCA branding.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 23 5Andy Stumpf, a highly decorated, retired Navy SEAL, opens the 2022 APCA Convention with a powerful talk on leadership. He said the characteristics he looks for in a leader are humility, accountability, clarity and conciseness, and the control of one’s emotions. 6John Grayson, Cokinos | Young, on construction contracts: “Competing for a project does not mean rolling over.” 6 INGAA Foundation Executive Director Tony Straquadine explains how natural gas and the pipelines that carry it are essential to America’s transition to a lower-carbon future. “Gas is the backstop to keep the lights on.” 6APCA President Taylor Dacus says that if our outreach efforts sway just a small percentage of people in such an evenly divided electorate, “Just imagine what we could do.”
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 24 3Talking business at the Board & Sponsor Reception are APCA Past President Mike Castle, CASTLE, and J.W. Gulley and John Fry, both from Sunbelt Equipment Marketing. 5SusanWaller tells the APCA audience that Natural Allies is “moving the needle with core parts of the Democratic coalition.”Affordability is a major selling point. 5John Grayson, Cokinos | Young, calls pipelines, “The ultimate infrastructure we have—needed by everyone and appreciated by few.” 3Mike Byram, Vermeer, and Brent Hargrave, Delta Fuel Company, chat during the Board & Sponsor Reception. 4Despite numerous challenges, Mark Bridgers, Continuum Capital, is optimistic about the U.S. economy: “In my view, the glass is more than half full.” 4 6 Despite fantastic weather and lots of fun things to do in the Scottsdale area, APCA members crowded into all the convention’s sessions: Regular Member Meeting below left, Government & Industry Relations Panel below right, and Pipeline Construction Market Update right.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 25 5 There is always something to learn at an APCA Member Breakfast. Just ask APCA 1st Vice President RoyWeaver, Weaver, LLC, and John Lohman, WB Pipeline. 6Tending to association business at the Board of Directors meeting are, from left, Ricky Dyess, M.G. Dyess, LLC; Nick Bruno, Bi-Con Services; Roy Weaver, Weaver, LLC; and Sean Renfro, Sunland Construction. 6Bobby Sanford, CRC-Evans Pipeline International, addresses fellow members during the Associate Member Meeting. 6Keynote speaker Andy Stumpf discusses how motivation and discipline helped him survive Navy SEAL qualification training. 6 Among the many people enjoying Andy Stumpf ’s keynote speech was Blair Finstad, Ritchie Bros. Auctioneers. 5 Jordan Buck, Sterling Site Access Solutions, pays close attention to a discussion on building APCA’s membership during the Associate Member Meeting.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 26 6JR & AmyWatts, Vector Environmental Services, enjoy theWelcome Reception. 3 Perfect family photo op at theWelcome Reception for Jamie, Tami, and Jayden Amonett. 5At theWelcome Reception, Stephan Faucher, Serimax North America, greets Paul & Ashley Cook, Sunland Construction. 6Tom Clapper, Equix Energy, talks with Delta Fuel’s Brent Hargrave and Sam Ferguson. 3A gorgeous evening in Scottsdale for theWelcome Reception as APCA kicked off the 2022 Convention. 4APCA 2nd Vice President Keven LaBauve, WHC Energy Services, and TK Kim, Prime NDT, discuss testing services during the Annual Associates Exhibit & Breakfast. 6 Drinking coffee, talking construction: Gregory Cokinos, Cokinos | Young; Theo Facaros, Lincoln Electric; and Taylor Dacus, Troy Construction.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 27 3 If you want to see cowboy credentials for Chip & Barb Black, Apache Industrial Services, just read the belt buckles. 34 Copper Canyon, like the set of an oldtime a western movie, provided a fun and picturesque setting for the Associate Membersponsored Country Western Party. Just a couple cowboys cutting it up: Lance Reynolds, Worldwide Machinery Pipeline Division, and Randy Hayes, Vacuworx, LLC. 4A gorgeous Arizona evening to hang out with friends for Alexis Prosser and Brandy Naylor. 6 Mike Castle, CASTLE, and Michael Wilcox, Benchmark Industrial Services, discuss jobsite environmental issues during the Associates Exhibit. 5 Greg Guidry, Ogletree Deakins, carefully slides the Jenga block while his wife Jane keeps a close eye on him. 5 Keith Boyet, Cross Country Infrastructure Services, and Daniel Schwarzenbach, Sunland Construction, catch up during the Associates Exhibit.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 28 5Great day on the links for Matthew Scruggs, Thomasson Company; Tyler Rosenberg, Caterpillar Global Pipeline; Shell Sanford, Sunbelt Tractor & Equipment Co.; and Patrick McRae, Primoris Pipeline. 3Scott Shook, Troy Construction, launches one down the fairway. 4Bryant Harvey, Viking Mat Company is stoked after turning a super-fast lap. 6Taylor doesn’t even need to watch—he knows Megan Dacus is going to sink this putt. 4Enjoying the APCA Golf Tournament are John Fry, SEMI; Ricky Dyess, M.G. Dyess, LLC; Kevin Gully, Sunbelt Tractor & Equipment Co.; and J.W. Gulley, SEMI. 4The high-speed kart racing included serious racing on the track and serious partying in the winner’s circle!
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 29 4After landing just 3 feet from the pin, Hunter Dyess, M.G. Dyess, LLC, claims his closest-to-the-pin prize from Assistant Golf Chair Bobby Sanford, CRC-Evans Pipeline International. 3Celebrating another successful convention, APCA members kicked back with friends and kicked up their heels at the Final Party. 5Having a great time at the Final Party are future pipeliners Jack Robinson and Rhys Atkin. 3Danielle Solomon, Vacuworx, and Saxon Nixon enjoy the Final Party. 34The APCA crew experienced the beautiful Sonoran Desert up close and personal from the seats of ATVs and had a fantastic afternoon! 3Smiles all around for Ashley Cook, Brooke Bowden, and Sommer Dyess.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2022 30 NEWS BRIEFS FERC Seeks Comment on Draft Policy Statements on Pipeline Certification, GHG Emissions On March 24, FERC voted to seek comments on two policy statements it issued last month that provide guidance regarding the certification of interstate natural gas pipelines and consideration of greenhouse gas (GHG) emissions in natural gas project reviews. In February, the commission issued an update to its 1999 Certificate Policy Statement and also issued an interim policy statement focused on the commission’s assessment of the impact of a project’s GHG emissions. After further consideration, the commission designated both documents as draft policy statements on which it is seeking further public comment. The two draft policy statements will not apply to pending project applications or filed applications before the commission issues any final guidance in these dockets. “The U.S. Court of Appeals for the D.C. Circuit has on several occasions, including as recently as March 11th, cast significant doubt about the approach the Commission has been taking to site natural gas pipelines and LNG facilities. The policy statements were intended to provide a more legally durable framework for the Commission to consider proposed natural gas projects,” Chairman Rich Glick said. “However, in light of concerns that the policy statements created further confusion about the commission’s approach to the siting of natural gas projects, the commission decided it would be helpful to gather additional comments from all interested stakeholders, including suggestions for creating greater certainty, before implementing the new policy statements,” Glick added. 7 CDW Files Amicus Brief Calling for Preservation of Arbitration Agreements On March 21, the Coalition for a Democratic Workplace (CDW) filed an amicus brief in Ralph’s Grocery, a case before the NLRB in which the Board is considering adopting a new standard to determine if confidentiality requirements in mandatory arbitration agreements violate workers’ right to collectively bargain under the National Labor Relations Act (NLRA). APCA is a member of CDW. CDW is calling on the board to adhere to its 2020 Anderson Enterprises decision that “[held] that an arbitration agreement explicitly and prominently assuring employees of their right to file charges with the Board does not interfere with such employee rights under the NLRA.” In its brief, CDW pointed to past Supreme Court precedent (Epic Systems) clearly stating that the NLRB does not have authority to challenge enforcement of arbitration agreements between employers and employees under the Federal Arbitration Act (FAA). “Any action by the Board to overrule Anderson and impose liability on the employer here would violate the FAA and lead to another confrontation with the Supreme Court.” Furthermore, “the Board lacks jurisdiction to penalize confidentiality provisions in arbitration agreements covered by the FAA, which do not in any event interfere with employees’ exercise of Section 7 rights.” Such confidentiality provisions govern the procedures used to adjudicate legal claims but do not force employees into confidentiality over the facts underlying a claim. By attempting to regulate adjudicatory procedures and proceedings, the Board “moves outside of its expertise and is entitled to no deference.” 7
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