It’s no secret that skilled workers – particularly skilled trade workers – are in short supply. Construction managers report that the shortage is felt on site daily, forcing contractors to delay construction schedules and incur other costs.
In the construction industry, signatory contractors often receive workers from a union hiring hall pursuant to a “hiring-hall clause” in the contractor’s collective bargaining agreement (CBA) or in a project labor agreement (PLA). These clauses are permitted by the NLRA, but only if the employer is primarily engaged in the construction industry.
However, given the current shortage of skilled workers, the hiring halls can’t always provide the workforce needed for the job.
Exclusive, Non-Exclusive, and Open-Hiring Clauses
Before a contractor can take steps to shore up their workforce, the contractor first has to understand what type of hiring clause is contained in the CBA or PLA.
There are three types of clauses typically contained in a CBA or PLA:
- Exclusive hiring-hall clauses – clauses in which the employer agrees that they will not hire any employees for bargaining unit jobs except those referred to the employer by the union, (although contractors often negotiate the right to accept or reject referrals). In most cases, these clauses provide that if the union cannot refer a sufficient number of qualified individuals within a specified period of time (e.g., 24 or 48 hours), the contractor may then hire workers from any source.
- Non-exclusive hiring-hall clauses – clauses in which provide that the employer may request the union to send the employer employees, but that the employer is not required to do so and, as a result, remains free to hire from any source it chooses. Employees hired by the employer, whether through the hiring hall or not, will be covered by employment terms set forth in the CBA or PLA, including any union-security clause, which would require the worker to either join the union or pay a fair-share fee after a certain period of time.
- Open-Hiring clauses – clauses that expressly provide a contractor may hire employees from any source. As a result, the contractor has seemingly unfettered discretion to recruit its workforce.
Finally, it is important to note that hiring-hall clauses are not required to be in any CBA or PLA. Thus, if a CBA or PLA is silent on the subject, then the contractor is likely not required to call the union for referrals, but may do so if it chooses. In the absence of contract language, “past practice” may come into play. So, as with any past practice, a prudent contractor may wish to notify the union before changing an established past practice.
So How Do I Find Workers?
First you need to review the CBA or PLA to determine whether you have an exclusive hiring hall clause, a non-exclusive hiring hall clause or an open hiring clause.
- If you have an exclusive hiring hall clause, you are contractually required to solicit workers from the union hiring hall first.
- If the union is unable to provide you with workers (or if you have a non-exclusive or open-hiring clause), you have the right to hire workers from any source.
- Remember that you may need to refer these workers to the hiring hall pursuant to the union-security clause, so that they can join the union or, if they desire not to be union members, become fair-share payors.
Contractors should consider posting on job boards, partnering with local community colleges and universities, and even targeting workers from non-union competition. Signatory contractors can tout high wages and excellent benefit packages as a draw for workers.
For example, the Center for Construction Research and Training reported that, in 2015, the average union wage for production workers in construction was $26.56 per hour, which was 49 percent higher than the hourly wage for their non-union counterparts ($17.84). Signatory Contractors should not be shy about touting these wages to key employees of their nonunion competition.
In today’s environment, hiring halls can’t always provide signatory contractors the workforce they need to man the job. Signatory contractors should be prepared to pivot and recruit additional workers that are needed in order to get the job done. Be sure to review your CBA or PLA carefully, but these agreements generally don’t prevent a contractor from finding qualified workers when the union’s bench is empty.
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