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Taking on the PRO Act

THE POWERS THAT BE ARE IN AGC

BY A.D. THOMPSON

On February 4, the Protect the Right to Organize (PRO) Act was introduced in Congress, but its name belies the bill’s ambition: a sweeping reversal of federal policy that would leave contractors of all stripes vulnerable at the bargaining table and on the job. AGC members have the power to stop it.

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The PRO Act, says AGC CEO Stephen Sandherr, is being sold as something simple, a law designed to guarantee employees of their right to or-ganize and bargain collectively, but the legislation within is far more than meets the eye.

“It would give unions significant economic weapons they could use to force employers to acquiesce to their demands at the bargaining table,” he ex-plains. “It would allow employees to sue even if the National Relations Labor Board (NLRB) had ruled favorably for the employer. It would limit employees’ access to secret-ballot elections by overturning the results. It would allow unions to demand personal information from employers with no limits on how they could use it or who they share it with…”

Sounds like a lot of bad news, but there’s profound sunshine in these dark clouds.

You, as an AGC member, have the power to stop it.

It sounds pro-union, but it’s not. And AGC has done its due diligence in educating union members.

“I’ve not encountered any union contractors who’ve said this is a good thing,” says Sandherr.

And it only takes the smallest glance inside the PRO Act’s plans to see why.

“It allows for unlimited picketing and strikes for any reason,” he explains.

Under current federal labor policy, unions may generally strike for two reasons: when an employer has committed an unfair practice, or the parties have reached an impasse in collective bargaining.

“The PRO Act would allow it to happen at any time for any reason,” says Sandherr. “So, if unions want to put pressure on an employer prior to collective bargaining, they can strike.”

Unions may also strike to set off a chain reaction, exerting force on their own employer to put pressure on another, using leverage to sever that business connection. This is in direct contrast to the current NLRB policy.

Under the current construct, such acts are forbidden. Unions are barred from interfering with a secondary business’ work (for example, the general contractor) with the primary employer (the subcontractor). It’s an easily illustrated model in construction, says Sandherr, since GCs have numerous sub-contractors on any given job.

“Let’s assume the IBEW — the union of that sub — has a dispute with it, perhaps over collective bargaining,” he models. “In order to put pressure on the electrical subcontractor, the union sets up a picket line at the jobsite where they are working….”

Current laws outline that the GC would set up a reserve gate at the site — a gate solely for use by the IBEW workers — and the picket line would be re-stricted to that gate, which prevents interference of other union workers’ access to the jobsite.

“The PRO Act would remove that,” says Sandherr. “The picket line would run around the whole site — or at all the gates — forcing the union employees of other subs and the GC to honor the line, which shuts the project down.”

This would leave little choice for the contractor, left with the unenviable choice of pressuring their electrical sub to straighten it out.

“‘Give the union what it wants so the project can continue, or we’ll find another sub,’” is the inevitable result, which leaves the GC to pay penalties in order to keep the project going. It’s an unappealing solution, the harsh impact of secondary boycotts, “and a very useful tool for unions to shut down any project, anytime, for a dispute with a single employer on a multi-employer site.”

Following the logic to its natural conclusion?

“How many of these disruptions will a private construction owner tolerate before they decide they will no longer use union firms on their projects?” Sandherr poses.

OPEN SHOPS WILL SUFFER, TOO

For these firms, for whom day-to-day employee fluctuation is already a challenge to NLRB secret-ballot elections — top-down organization will be the PRO Act’s biggest threat.

“In 1959, Congress passed legislation that allows unions and employers to sign pre-hire agreements, which allow them to negotiate an agreement without showing a majority of support,” Sandherr explains. It’s an acknowledgment of the practical considerations that exist in the construction industry — a unique animal — and a useful tool for both unions and employers.

The PRO Act’s sharp definition of “independent contractor” will have deep impacts on emerging firms, leaving many entrepreneurial spirits crushed under its weight.

Now assume a PRO-Act scenario which removes some of the safeguards in Sandherr’s easy-to-follow example:

Local hospital contracts with open-shop contractor to build a new wing. Work commences. Local unions are upset a non-union firm was chosen. In re-sponse, they set up a picket line.

But what if the nurses are also in a union? And in solidarity with their brothers and sisters from another industry, they honor the picket line and don’t go to work.

“Because the PRO Act would allow for this — as well as the prohibition of the hospital to take any action against employees who take part — they’re in a real pickle,” Sandherr explains.

Do they choose to operate without nurses and jeopardize the care of the patients? Or do they go to the contractor with the false choice of signing a un-ion agreement or losing the gig?

“Now, the hospital is in breach of contract with their initial firm,” says Sandherr, “which will make the project more expensive. They may have chosen that open-shop firm for the price. That will lead to paying damages to the first contractor for breach of contract.”

IT’S A BUSINESS KILLER

The PRO Act’s sharp definition of “independent contractor” will have deep impacts on emerging firms, leaving many entrepreneurial spirits crushed under its weight. For construction professionals, this is best illustrated by independent owner/operators of trucks, which help contractors meet many of their DBE (Disadvantaged Business Enterprise) goals.

“These are often individuals looking to get a start in the industry with a hope to expand,” says Sandherr. Many AGC members were once small startups — it’s likely they can relate.

“These are most often arms-length contractual relationships,” he notes. “but the PRO Act would likely require that small business owner to become an employee of the GC due to their limited control over the independent business.”

Such restriction would likely discourage these independent minds from flying the nest of secure employment.

“If they wanted to be an ‘employee,’” says Sandherr, “they’d go drive a truck for someone else.”

WHAT IS AGC DOING?

A lot. In terms of education, motivation and public relations. Sandherr says they’ve made their case successfully.

“Contractors are motivated to contact their Congress members,” he says. “And we’ve embarked on social media and digital advertising campaigns to elevate awareness in key congressional districts and generate additional activity by our members in swing areas to get them to support our position on this legislation.

But they can’t do it without you.

“We can write all the position papers and have all the coalition meetings we want,” he says plainly, “but ultimately, senators are responsible to their constituents. That’s who’s going to have the most impact on this legislation.”

Early numbers are positive.

Following the PRO Act’s introduction and then scheduled vote, AGC launched national action alert campaigns that asked construction professionals to voice their opposition to the bill in messages to members of Congress and President Biden. Nearly 7,000 construction acted on these alerts. Even more impressive, over 30,000 messages were sent to members of Congress and President Biden.

But more can be done. Go to advocacy.agc.org/proact. Send a message to your senator, letting him or her know how important their vote against the bill is.

“Our members need to step up. They have the power.”