Throughout the history of the United States, unions have played an important role in contributing to the development of many industries, including the construction industry. The Protecting the Right to Organize Act, however, has been reintroduced as union affiliation has been on the decline, with just 10.8% of the total national workforce affiliated with a union. For construction, union affiliation is slightly higher (12.7%), meaning that the merit shop represents over 87% of the construction workforce.
Labor unions had been pushing Congress to pass the PRO Act for years—it was even approved by the 116th House of Representatives on Feb. 6, 2020, despite the opposition from the former President and the then-Republican Senate.
But with the new Democratic majorities in both House and Senate, lobbying efforts have gained new ground. In 2021, the bill has over 200 cosponsors in the House, with a modicum of Republican support—all but assuring its passage in the lower chamber again during this congressional session.
Considering the references to the PRO Act in President Biden’s “Strengthening Worker Organizing, Collective Bargaining and Unions” agenda and his “Build Back Better” plan, it is no secret where the 46th President falls on the PRO Act, as he has already vowed to it sign into law should it reach The Oval Office.
Regardless, for the bill to advance to the President’s desk, the legislative filibuster would likely have to be removed in the Senate—which would require significant political capital to achieve. Should the Senate rules be changed to allow legislation to pass with a simple majority instead of the usual 60 votes, Senate Democratic leadership could most likely pass the PRO Act (with Vice President Harris available to break a potential split vote).
Where does this likely passage leave the construction industry?
Unionization at the Cost of Employers
Many of the PRO Act’s provisions have negative implications for specific industries throughout America; however, employers in the construction industry could have the most on the line, as the industry is especially targeted by the greatest number of unwelcome proposed changes to policy.
These are misguided reforms that seek to alter the way union elections are held and force employer neutrality on union elections. A similar attempt was made in 2008, when the Employee Free Choice Act was introduced and summarily defeated on a bipartisan basis. The PRO Act would codify a version of EFCA, which would strip workers’ free choice in union elections by instituting “card check,” replacing union elections with a system that forces employees to sign union authorization cards in front of coworkers and union organizers. This provision, while still radical, is only one of many that change the foundation of labor-relations.
The PRO Act would:
- Institute the “Ambush Elections Rule,” which would speed up union elections while mandating that businesses turn over workers’ personal information—such as cell phone numbers, home addresses and even assigned shifts—to union organizers.
- Interfere with attorney-client confidentiality and make it harder for businesses, particularly small businesses, to secure legal advice on complex labor laws in the union election process by codifying the “Persuader Rule.”
- Create several new employer civil penalties up to $50,000 for each alleged violation, reaching upwards of $100,000 in cases of discrimination, retaliation or cases of “other serious economic harm.”
- Prohibit an employer from settling employee lawsuits through a binding arbitration process, while also forbidding businesses from permanently replace striking workers.
In all, the PRO Act would erode over 70 years of established labor law and eliminate employer rights and protections.
Unionization at the Cost of Employees
Both advocates and opponents of the PRO Act agree that employees should be free to voluntarily join a union if they so choose. Regardless, the new legislation would outlaw right-to-work protections across the country, including in the 27 states that have passed such laws protecting a worker’s right to refrain from joining a union as a condition of employment. The law would put millions of workers at odds with employers as they could be required to pay union fees or risk losing their jobs.
The PRO Act would codify the National Labor Relations Board’s controversial Browning-Ferris Industries joint-employer standard, which holds contractors with multiple subcontractors and independent workers on a jobsite liable for unlawful actions or behavior by expanding the definition of a “joint-employer.” This would create unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry, increasing needless litigation while discouraging innovation and freedom in the recovering economy.
The PRO Act would also curb opportunities for workers to remain independent contractors, which is an essential part of the modern construction workforce. Despite research that many workers find their independent contractor roles to be preferable, as the added flexibility and control is valued in many industries, the provision would impose the “ABC” test, a standard adopted in California’s AB 5, to forcibly reclassify many independent contractors as employees.
Unionization at the Cost of Economics
If implemented, the American Action Forum found that codifying the NLRB’s controversial Browning-Ferris Industries joint-employer standard would affect 44% of private sector employees, lead to between $17.2 billion and $33.3 billion in lost annual output for the franchise business sector alone and complicate many business-to-business contracts, causing particular harm to small businesses.
AAF research also found that, assuming 15% to 50% of independent contractors would be reclassified as employees under the ABC test, the economic consequences could be between $3.6 billion and $12.1 billion in additional costs to businesses, while putting up to 8.5% of GDP at risk.
These economic costs would come at an unwelcome time for the construction industry. Over the last eight months, while the industry has added an impressive 857,000 jobs, it has only recovered 79.1% of the jobs lost during the earlier stages of the COVID-19 pandemic. The construction unemployment rate rose to 9.6% in December 2020 and is up 4.6% from the same time last year.
At its core, the PRO Act seeks to further unionize workers in the construction industry—an industry that is overwhelmingly comprised of non-union workers nationwide. While the right to organize has been and will continue to be protected through the National Labor Relations Act, this legislation attempts to implement radical labor policies to further unionize construction industry at any cost for employers, employees and an economy that has been devastated by the COVID-19 pandemic.
