There is great confusion in the construction community about the legality of PLAs in right to work states. The media, public, elected officials and construction professionals would benefit from understanding the small but significant difference between PLAs in right to work states and PLAs in non-right to work states.PLAs can occur in right to work states, though they are less common. The Southern Nevada Metropolitan Water District project and the Iowa Events Center project are perhaps the most prominent examples of government-mandated PLAs in right to work state.
A right to work state is simply a state which has passed a law prohibiting employees from being forced to pay dues to any labor organization. Such laws are specifically authorized by Section 14 of the National Labor Relations Act and 22 states have passed such laws. (Note: Indiana, Michigan, Wisconsin, West Virginia ad Kentucky passed RTW since this blog post was published in 2009. The map below has been updated to included all 27 RTW states, as of May 2018).
A right to work law does not outlaw unions, and it does not outlaw collective bargaining agreements. There are many unionized employers operating in right to work states. Although the right to work law prevents unionized employers from forcing their employees to pay dues to the union, employees of a union contractor in both right to work and non-right to work states are still required to work under terms and conditions exclusively negotiated by unions under PLAs.
Under such conditions, a union-favoring PLA mandate has not been held to violate state right to work laws, so long as the contract does not require anyone to join a union or pay full union dues. (However, some court challenges have held that employees in right to work states may be required to pay representational fees to unions, sometimes called agency shop fees, but not full dues.) The PLA contract can still comply with law and require employees to work under a union contract. That is why we refer to PLAs as “union-only” in most instances; not because anyone has to pay dues or “join” the union, although that mandate is often the case in non-right to work states.
In non-right to work states, union-only PLA agreements can go further in that they can require employees not only to work under a union contract but also can require those employees to pay full union dues to a labor union while working on the project. Construction unions benefit from nonunion workers that are forced to pay union dues in order to work on a construction jobsite subject to a PLA. This arrangement is obviously more onerous and coercive than in a right to work state, but in both cases, the PLA has the practical impact of being “union-only,” because employees are forced to work under union terms and conditions of employment.
A lesson to be learned from this brief explanation about PLAs and right to work laws is that if you are a contractor and conduct business in a right to work state, you should still be concerned about government-mandated PLAs. If written correctly, they will not violate state law. You will likely see more of them due to the changing political environment in Washington, D.C., and around the states as the political influence of Big Labor grows.
Likewise, you should be concerned that President Obama’s Executive Order 13502 will result in an increase in government-mandated PLAs on federal and federally funded construction projects in right to work states where PLAs are scarce.
Since right to work states typically have a low density of union construction workers (see data from www.unionstats.com), PLAs could lead to out of state union contractors and their union employees taking work away from your company and your local employees unless you agree to be bound the inefficient and costly terms and conditions in a PLA (like paying into union pension plans, following union hiring procedures and following inefficient union work rules).
So don’t stick your head in the sand and pretend that PLAs aren’t a problem and you are protected by state right to work laws. It is time to be proactive and get politically engaged because PLAs will limit free and open competition for construction contracts in your market and are guaranteed to impact your company’s bottom line.
You can learn more about right to work laws here.