Punching In: Construction Groups Take on Labor Agreements Rule

Monday morning musings for workplace watchers.

Project Labor Agreements Rule|EEOC Guidance on Emerging Bias

Rebecca Rainey: The share of construction workers who are members of unions dropped from 11.7% in 2022 to 10.7% in 2023, according to new data released by the Bureau of Labor Statistics last week. That decline was higher than the overall national trend, and could provide more ammunition to business groups representing construction employers that say the Biden administration’s moves to require project-wide collective bargaining pacts with unions on large federal construction projects will make it harder for the federal government to find workers to complete the work.

“There has never been a smaller percentage of union members in the construction industry since the BLS began tracking this data in 1973,” the Associated Builders and Contractors said in a statement on the numbers.

“The BLS data suggests that the Biden administration’s numerous policy schemes benefiting construction unions has not been enough to reverse steady declines in union market share,” said ABC Vice President of Regulatory, Labor, and State Affairs Ben Brubeck. “The president would add more value to the industry and level the playing field for all contractors to compete by creating inclusive, win-win policies that reflect the choice of industry workers not to affiliate with a union.”

The General Services Administration finalized a rule in December that would require project labor agreements on federal construction contracts that cost more than $35 million, which could include some large projects funded by the Bipartisan Infrastructure Law. President Joe Biden directed the agency to issue the rule in an executive order issued in February 2022.

But Tom Kriger, director of education and research for the North America’s Building Trades Unions, noted that the BLS data included several occupations that aren’t typically unionized into its construction industry category, such as office workers and architects, which drags down the overall density figure for the industry.

The number “doesn’t match what the reality is,” said Sean McGarvey, president of NABTU, adding that the association’s affiliates reported “record growth” last year. The group of unions also pointed to data from the Institute for Construction Employment Research (ICERES), which focused primarily on “craft workers” in its analysis and found that closer to 18% of construction workers were members of unions. When you remove the residential construction industry, that number goes up to 30%, according to the research.

But the Biden administration said its regulation won’t disadvantage non-union construction workers.

“While many PLAs do require contractors to use the union’s hiring hall for referrals, they do not necessarily prevent the use of a contractor’s workforce. The union hiring halls are legally required to refer workers to the project without regard to whether the workers are union members,” the GSA said in its final rule. “Ultimately, the contractor retains the right to decide whom to hire.”

The agency also noted many benefits for both union and non-union workers under PLAs, like higher compensation for “craft positions” and ensuring the timely completion of projects by providing a mechanism to resolve labor disputes that could disrupt work. Labor unions like NABTU’s affiliates are also helping resolve the labor shortage in the construction industry, according to McGarvey, by offering top-of-the-line job training opportunities.

“We’re the only people quite honestly that can produce skilled craft people because we’re the only ones that have the training infrastructure,” McGarvey said. “Our competitors do not have it.”

Nevertheless, legal challenges against the policy change are already mounting. ABC says it plans to sue, and the Associated General Contractors of America and one of their Louisiana-based affiliates filed a legal challenge against the rule in federal district court on Jan. 10. Their lawsuit argues in part that the rule will violate the Labor Management Relations Act because the 1947 statute permits states to issue “right-to-work” laws that allow workers to opt-out of union membership and dues.

“These laws broadly prohibit collective bargaining agreements that require covered employees to either join the union or pay union dues,” the lawsuit argued, noting that dozens of states have passed such laws.

READ MORE

• US Union Membership Dips to Record Low Despite High-Profile Wins
• Biden Cements Labor Agreement Rules for Federal Projects (1)
• Biden’s Labor Order Aims to Raise Wages on Infrastructure Jobs

Biden signs the Infrastructure Investment and Jobs Act (better known as the Bipartisan Infrastructure Law) into law at the White House in Nov. 2021.

Kyle Mazza/Anadolu Agency via Getty Images

Riddhi Setty: The US Equal Employment Opportunity Commission has released a new fact sheet on workplace discrimination against Arab, Middle Eastern, Muslim, and Jewish workers, a potential signal of rising charges filed at the commission by these workers.

The release follows remarks by EEOC’s new general counsel, Karla Gilbride, at her first press event Jan. 8 that the EEOC has received reports of an increase in employment discrimination complaints by Jewish, Muslim, and Arab workers.

The agency also indicated in its most recent strategic enforcement plan, released in September 2023, that addressing discrimination in response to “local, national or global events,” including historical prejudices, is a priority for the commission.

In the fact sheet issued Jan. 18, the EEOC says that Title VII of the 1964 Civil Rights Act prohibits discrimination “on the basis of religion, national origin, and race, in all aspects of employment,” which includes hiring, firing, pay, promotions, and layoffs.

For example, the agency said it’s illegal to treat an individual adversely based on the fact or perception that they are Israeli or Palestinian, or to segregate them into non-customer facing positions because of their religious dress, such as a turban, kippah, yarmulke, or hijab.

“A single incident can create a hostile work environment if it is sufficiently severe, such as the display of certain symbols of violence or hatred (e.g., a swastika) toward individuals sharing the same protected characteristic,” the EEOC said in the guidance.

Since the Oct. 7 attack on Israel and ensuing retaliation against Hamas, some private companies have withdrawn job offers to individuals who published comments criticizing the actions of parties to the conflict, including law firms Winston & Strawn, Foley & Lardner, and Davis Polk & Wardwell.

“This moment harkens back to the increase in harassment following 9/11,” said Sunu Chandy, a senior advisor at Democracy Forward and former EEOC attorney. “As an EEOC attorney during those years, we tracked the increased number of changes against many communities, including South Asians.”

Gilbride said in her remarks that the EEOC is reviewing charge data to evaluate whether the agency is witnessing an uptick in charges “on the basis of religion or national origin affecting Jewish, Muslim, and Arab communities or people who might be perceived as belonging to those communities.”

Though the agency is yet to publicly release information about these charges, EEOC spokesperson Victor Chen told Bloomberg Law in an emailed statement that “the EEOC has been engaging with other federal agencies, community groups, and workers to address increased discrimination, harassment, and retaliation since the attacks of October 7, 2023, and during the ensuing conflict.”

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.