Florida Construction News staff writer
Should contractors be prepared for a push for mandatory construction industry unionization – especially for federal infrastructure projects?
The answer is “yes”, says Nexsen Pruet employment lawyer William Floyd, based in the practice’s Columbia, SC office.
He says the Biden administration, backed by organized labor, supports unionization initiatives including the PRO Act and proposals for Project Labor Agreements (PLA)s for the work to be funded by the government’s $2.3 billion infrastructure bill.
These developments, if successful, could have disproportionate influence in the Carolinas, which currently is the least unionized region in the US, at about half of the nation-wide unionized market share of 6.8 percent, according to 2018 data from the US Bureau of Labor Statistics.
Speaking at an April 20 webinar, Floyd acknowledged that the Biden administration has an uphill challenge in getting its bills passed through the Senate, if the filibuster provisions there (requiring a 60-vote majority) remain in place. However, Democrats are angling for ways around the filibuster, including the possibility of using budget reconciliation rules to push through the infrastructure law, while tying the PRO Act provisions to that legislation.
Floyd cited the recent Amazon unionization drive in Alabama, which failed, but which union leaders plan to continue litigating. They are also pushing for the PRO Act, which, if passed, would:
- Negate Right-to-Work laws;
- Reduce independent contractors;
- Expand “Joint Employer” status;
- Limit employer free speech;
- Decide contractual terms; and
- Penalize employers and managers.
An example of changes under the new rules, if implemented, would be the status of initial “good faith” contract negotiations, for which there are currently no time limits.
“Under the PRO Act, that would all change,” he said. “We’d be on a stopwatch, so to speak for negotiations.”
If there wasn’t an agreement – perhaps because the employer believes there is no way it could meet the union’s demands for wages — “a three-person arbitration board would decide the terms of the contract that were in dispute.”
“Moreover, this PRO Act would penalize employers and managers who allegedly have committed unfair labor practices, and then would impose fines and penalties,” Floyd said.
In addition to the PRO Act, construction employers need to be especially concerned about possible mandatory PLAs, especially for projects funded by infrastructure funds.
Under PLAs, all employees for specific projects will be unionized. “And if you hire more employees, you’re going to need to hire them from the union, and you’ll be paying rates far beyond what you would normally would have paid, and pay benefits far beyond what you would normally would have.”
While PLAs are project-specific, they can have lingering consequences, especially in areas such as pension fund obligations, including unfunded liability challenges.
PLAs aren’t entirely negative, Floyd said. Generally, they have provisions to prevent strikes during the project, and they make it easier to amass the number of skilled workers required for high-volume jobs. But there are trade-offs. Competition is restricted, labor costs are much higher and there can be significant post-project consequences, such as the pension fund liabilities.
Other PLA issues include the requirement to use the union hiring halls and unionized foremen, along with greater red tape and costs.
With the enhanced power of unionization, and greater risk for employer measures to push back against union campaigns, employers will need to be wary of unions “salting” organizers in their labor force applications.
“You will want to prepare for salting . . . or what I call fictitious applicants.”
If you were hiring for a site and needed 20 people on that site, and you’d get “you know, 100 resumes, and all of them would say ‘electrician and full time union organizer’ or maybe something else indicating their union participation,” and even if you declined to hire some these union members on a legitimate basis, “you would still have salt charge failed against you, or it could be an unfair labor practice charge.”
Floyd suggested these additional measures for employers concerned about possible union encroachments on their businesses:
- Conduct an attorney-client review of applicable workplace policies and procedures;
- Develop and implement a union-free approach or policy;
- Enhance effective communication with employees, including listening to opportunities or concerns;
- Consider business options;
- Review and update safety programs and procedures;
- Confirm that compensation and benefits are appropriate and competitive within the community or business segment; and
- Provide up-to-date labor and employment training (for the) management team.