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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. 

With new Democratic majorities in both House and Senate and with President Biden in the White House, the PRO Act has emerged as a real threat for many industries opposed to its anti-competitive provisions.

While the U.S. House of Representatives, with a modicum of Republican support, passed the PRO Act this year by a vote of 225-206, the legislation faces a tougher path in the U.S. Senate where Democrats hold the slimmest majority possible.

Though Senate Majority Leader Chuck Schumer (D-N.Y.) has expressed his desire to pass the PRO Act, and Biden has also vowed to sign the bill into law should it reach his desk, to do so as written, the legislative filibuster would likely have to be removed in the Senate. While the pressure to reform or repeal the filibuster continues to grow, so far, Democratic Senators Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have upheld their positions in defense of the Senate’s 60 vote threshold to pass most legislation. Additionally, the PRO Act has yet to gain the support of five key Senators, along with Manchin and Sinema, Sens. Mark Warner (D-Va.), Angus King (I-Maine), and Mark Kelly (D-Ariz.) have yet to publicly support the bill. 

With the Senate currently unable to pass the PRO Act, the bill remains in legislative limbo, as the construction industry remains rightfully concerned at the certain upheaval this bill would cause if enacted. Several of the most dangerous provisions would have a significant negative impact on workers and job creators in the industry, many of whom are seeking to rebound from the COVID-19 pandemic. 

Unionization at the Cost of Job Creators

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. The PRO Act would codify a version of the Employee Free Choice Act, which was introduced in 2008 and summarily defeated on a bipartisan basis. This similar attempt to 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, while still radical, is only one of many that change the foundation of labor-relations. 

The PRO Act would also:

Strip “secondary boycott” protections that prevent unions from using their anti-trust exemptions and immunity from some state laws to targeting and disrupting the supply chains of businesses they are attempting to organize.

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.”

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 Workers

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 PRO Act 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 and paying a union as a condition of employment. This unilateral ban of Right-to-Work state laws and constitutional amendments will impact many of the states with the highest rate of economic growth over the last few years, some of which can be contributed to their RTW status.

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.

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.

Unionization at the Cost of Economic Recovery

If implemented, the American Action Forum found that codifying the 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, 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.  


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