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10 Constr. Law. 1 (1990)

handle is hein.journals/conlaw10 and id is 1 raw text is: Double Breasting in the Construction Industry Joseph H. Bucci and Brian P. Kirwan Brian P. Kirwan I. An Introduction to the Practice of Double Breasting The construction industry is a volatile one character- ized by wide fluctuations in product demand and a sen- sitivity to changing economic, political, technological and labor relations developments. The competitiveness of the construction industry, and one's survival in it, re- quires a conscious awareness of the above factors and an ability to react and respond to each. An emerging concept that encompasses both the prevailing economic pressures and labor relations is the practice of double breasting. Double breasting refers to the creation of two distinct operating entities, one governed by a collective bargaining agreement and one totally unencumbered by such an agreement. The single most universal character- istic of any double-breasted operation is common own- ership of both the unionized and nonunionized com- panies by a central business entity. Joseph H. Bucci is an associate in the Construction Industry Practice Group at the national law firm, Shea & Gould in New York City. Mr. Bucci specializes in the representation of architects, engineers, con- tractors, owners, and developers. He is a graduate of the Duquesne University School of Law, a former project engineer and in-house counsel to a national general contracting firm, and a journeyman steamfitter. Brian P. Kirwan is in his third year of law school at The Catholic University of America School of Law in Washington, D.C. Currently he works for Lyon and McManus, a construction litigation firm in Washington, D.C. The practice of double breasting is one that has arisen in response to the rapid growth and success of open shop operations. An open shop contractor is not signatory to a collective bargaining agreement and has complete con- trol of the hiring of employees, the assignment of job tasks, the size of work crews, and the establishment of wage, hours, and fringe benefits. Marking the mid- 1960s as our starting point, union control has effectively been reduced to less than one-third of construction dollar vol- ume in the United States.' Indeed, while union employ- ment as a percentage of total employment in the con- struction industry was approximately 40 percent in 1973, by 1983 there was a decline to approximately 30 percent, with further declines through 1988 to a figure of 21.1 percent.2 Additionally, union losses have not been lim- ited to any one particular geographic region or craft. The traditional union contractor is being confronted with the realization that profit margins are susceptible to wide fluctuations on projects utilizing union labor while there appears to be a thriving and expanding market awaiting contractors who have adopted the open shop structure. Double breasting is being hailed as the means through which a contractor will possess the commanding advan- tage of being able to effectively compete in both the unionized and nonunionized markets within the con- struction industry. While no one factor may be attrib- (continued on page 24) Copyright © 1990 American Bar Association Joseph H. Bucci Produced by the ABA Press

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