The state Senate Judiciary Committee last week passed SB 1191, legislation that aims to eliminate municipalities’ attempts to sidestep Arizona’s right-to-work law, which ensures union membership remains voluntary and not a required condition of any employment. 

Some cities have adopted local ordinances to give organized labor a leg up when issuing zoning permits. The bill prohibits municipalities and counties from requiring the use of union labor in zoning and land use activities and prohibits certain requirements from being included in public works contracts.

A representative from the Greater Phoenix Â鶹´«Ă˝Ół»­ of Commerce testified in support of the bill. 

“The purpose of the bill and amendment language is to ensure that competitive advantages aren’t given to union labor companies,” said Mike Huckins, the chamber’s vice president of public affairs. “These (local ordinances) have a chilling effect on the business communities and create an unfair burden on businesses, especially small businesses.”

The Arizona Building and Construction Trades Council opposed the bill. 

“This comes down to local control. It comes down to whether community leaders know best,” the Council’s Luke Douglas said. “It also could end up jeopardizing prices.”

Those in support of the bill said the bill could put downward pressure on construction costs.

“The city will sometimes attach conditions to zoning requirements, including the use of union labor workers. Tempe is demanding this as part of the development agreements,” said Jon Riches of the Goldwater Institute. “This drives up prices for consumers, infringes on basic private property rights, and gives preferences to organized labor workers.”  

Josh Umar, a representative from the American Subcontractors Association of Arizona, spoke to the legislation’s effect on small businesses. 

“Small and upcoming businesses and contractors are going to be the ones that are going to be benefiting from this,” he said. 

Jake Hinman of the Arizona Multihousing Association said the rising construction costs hurt housing consumers.

“Researchers have examined the prevailing wage and found that the rates are unbearably higher, increasing construction costs in the low-income residential products,” he said.

Other groups in support of the bill include the Arizona Â鶹´«Ă˝Ół»­ of Commerce & Industry, Arizona Builders’ Alliance, Arizonans for Fair Contracting, and the Arizona Chapter of National Association of Industrial & Office Properties. 

Opponents include associations representing city and county governments and Living United for Change in Arizona, a progressive advocacy group. 

The bill will receive a vote of the full Senate after being considered by each party’s caucus. 

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Leaders of Arizona’s business community on Monday urged the U.S. Senate not to adopt the Protecting the Right to Organize, or PRO Act, legislation they say would harm job creation efforts.

At a press conference at the offices of the Arizona chapter of the Associated General Contractors, the business group leaders said the bill would eviscerate Arizona’s right-to-work law, which makes union membership voluntary and not a condition of employment.

“The only thing hotter than the temperature is Arizona’s economy,” said Arizona Â鶹´«Ă˝Ół»­ of Commerce and Industry President and CEO Danny Seiden. “Why would we want to put that all at risk?”

Michelle Ahlmer, executive director of the Arizona Retailers Association, said her industry would be unable to continue recovering from the Covid-19 pandemic if the PRO Act passes.

“Before the pandemic, our industry had record highs in profits, wage growth, and employment. As we climb out from the last 18 months, we need every tool to get back on our feet,” Ahlmer said. “We simply cannot add to the challenging economic environment by passing the PRO Act. The PRO Act is a harmful bill that would essentially give unions free rein to wreak havoc on local businesses.”

National Federation of Independent Businesses Arizona state director Chad Heinrich said the PRO Act’s independent contractor status test would hurt many Arizona small businesses, whose employees prefer the flexibility of working as independent contractors. 

“California adopted a strict three-part test to classify independent contractor status. This has been a significant problem for California small businesses,” Heinrich said. “When California first adopted this test, they had to immediately carve out dozens of exceptions because it was unworkable. The PRO Act has no exceptions.”

The bill, a priority of the organized labor movement and progressive activists, has already passed the U.S. House of Representatives on a party-line vote and President Joe Biden has supported the legislation. U.S. Senate Majority Leader Charles Schumer, D-N.Y., said he’ll bring the bill to a vote in his chamber if it can secure 50 cosponsors. Arizona senators Kyrsten Sinema, D, and Mark Kelly, D, so far have refused to sign-on to the legislation.

“We’d like to thank Sens. Sinema and Kelly for being willing to listen to all sides on this issue,” Associated General Contractors Arizona chapter President David Martin said. “We’re grateful they’re taking a pragmatic approach to this very complicated matter that involves many employers and employees in Arizona.”

Polling data indicates the bill does not have broad support among the American public. 

A recent found that 63% of Arizona voters did not want unions to have more influence, and 74 % of them were concerned about losing right-to-work protections and forcing workers to pay union dues to obtain a job.

Right-to-work, which allows for employees to work without being obligated to join a union, has been protected by Arizona’s constitution since 1946. 

According to data from the Bureau of Labor Statistics, just 5.3 percent of Arizona workers are members of unions, less than half the national average.

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A bill is currently being discussed in the Senate that would not only impose dangerous alterations to over 85 years of labor law, but is also a series of reckless policies that would favor unions at the expense of employers and the economy. 

The proposal in question is the (S. 420/H.R. 842). Proponents of the PRO Act claim it would “,” but a closer look at the proposed legislation illustrates it only ensnares employers in unrelated labor disputes and would severely damage Arizona workplaces and competitiveness.

Right-to-Work Elimination

A bipartisan research firm, recently conducted , and the results reveal serious concerns Americans have about the PRO Act.

Among the litany of bad ideas within this proposed legislation would be the effective repeal of right-to-work protections that currently exist in 28 states, including Arizona.These right-to-work laws provide assurances to employees that they do not have to pay labor union dues in order to keep their job. According to the poll, this specific issue alone was a serious concern for. Moreover,, “these results did not vary much based on party either: 68 percent of Democrats, 65 percent of Independents, and 74 percent of Republicans said they had concerns over repealing right-to-work laws.”

Currently, employees can elect not to join a labor union at their workplace — it is entirely their choice. The PRO Act would change that and allow unions to disregard established state law and collect dues from employees who have decided to opt out of a union. Additionally, in a state without right-to-work laws, an employer would more than likely be required by the labor contract to terminate an employee who refuses to pay union dues. This is why more and more states have adopted right-to-work laws.

“If the PRO Act were to pass, it would do tremendous damage to Arizona’s workplaces and its overall competitiveness,” said David Martin, President of the Arizona chapter of the Associated General Contractors in a Â鶹´«Ă˝Ół»­ article last month. “We’re so fortunate to have a right-to-work law in Arizona that ensures that the decision whether to join a labor union is left up to the employee. Our workplaces are largely free of hostility and intimidation. We want to keep it that way.”

Revival of the card check, eliminating secret ballots

The PRO Act will also undermine the use of secret ballot elections. Instead, allowing labor unions to use a “card check” where workers would sign a card to authorize a union rather than privately voting a ballot. These secret ballot elections, which are overseen by the National Labor Relations Board, provide protections to workers from coercion and/or intimidation by either the labor union or the employer.

According to the poll, this specific issue alone was a serious concern for. Moreover,, “these results did not vary much based on party either: 68 percent of Democrats, 65 percent of Independents, and 74 percent of Republicans said they had concerns over repealing right-to-work laws.”

The potential for union organizers to abuse this information in order to pressure workers is concerning. Workers could become subject to coercion and intimidation within their workplace, home, and out with their family. It’s not clear how this “levels the playing field and brings more fairness to working Americans”.

Economic Impact

Some might not oppose this proposed act at first glance, but many American workers would reconsider if they knew long term it would hurt their jobs and their wallet.

Unions’ demands for mandated wage packages and stringent staffing rules would effectively kneecap the competitiveness of American companies.

This fact is a large reason unionization rates in the country have., “The number of wage and salary workers belonging to unions, at 14.3 million in 2020, was down by 321,000, or 2.2 percent, from 2019.”

If the PRO Act really were pro-worker, more Americans might support it. But the recent polling data is revealing. American workers don’t want dollars from their paychecks diverted to labor unions, and they don’t want to stifle job growth, especially in a post-pandemic economy. Let’s hope Arizona Senators Kyrsten Sinema and Mark Kelly and the rest of the Senate are paying attention. For more information on the PRO Act click .

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In partnership with the country’s leading business advocacy organization, business groups across Arizona have made defeat of the anti-employer PRO Act one of their top priorities for the remainder of the year.

The U.S. Â鶹´«Ă˝Ół»­ of Commerce is working with its partner organizations in Arizona to express their gratitude that the state’s two senators, Kyrsten Sinema and Mark Kelly, continue not to support the legislation. 

Sinema and Kelly are two of only three Democratic senators who have not agreed to cosponsor the bill. Senate Majority Leader Charles Schumer (New York) says he will bring the bill to a vote once it secures 50 cosponsors, which makes Sinema and Kelly’s position on the bill even more important.

The House version of the PRO Act passed along mostly party lines in March. All of Arizona’s Democratic congressional delegation members voted in favor of the bill. 

If the PRO Act were to pass, it would overturn decades of labor law, disrupting workplaces, weaking protections for employees and employers, and lead to increased litigation according to the U.S. Â鶹´«Ă˝Ół»­. 

At a special established by the group, there are tools for Arizonans to contact their senators and applaud their refusal not to join as bill cosponsors.

One of the most concerning provisions of the PRO Act is its elimination of states’ right-to-work laws, which protect workers from being fired if they choose not to join a labor union. Arizona is a right-to-work state. 

“If the PRO Act were to pass, it would do tremendous damage to Arizona’s workplaces and its overall competitiveness,” said David Martin, president of the Arizona chapter of the Associated General Contractors. “We’re so fortunate to have a right-to-work law in Arizona that ensures that the decision whether to join a labor union is left up to the employee. Our workplaces are largely free of hostility and intimidation. We want to keep it that way.”

The bill also undermines the use of secret ballots in union organizing elections, allowing labor unions to use instead so-called “card check,” whereby workers sign cards to authorize a union rather than voting a ballot privately.

Among the litany of anti-employer elements, the PRO Act would also allow “secondary boycotts,” where one company is pressured not to do business with another company that is the subject of a labor action. Currently outlawed, this secondary activity would result in strikes and pickets against businesses with no direct role in a labor dispute, such as suppliers and vendors and even professional service firms like banks and accountants.

“If the PRO Act becomes law, business owners in Arizona could wake up on any given day to find picket lines in front of their business even though the dispute has nothing to do with them,” Tucson Metro Â鶹´«Ă˝Ół»­ President and CEO Amber Smith and U.S. Â鶹´«Ă˝Ół»­ Chief Policy Officer Neil Bradley in a column last month. 

Â鶹´«Ă˝Ół»­s of commerce and other business groups across Arizona are increasing their communications with Sinema and Kelly. More than 50 business groups and chambers of commerce in April to the two senators urging them not to join the bill.

“We thank Senators Sinema and Kelly for not lending their support to this extremely damaging bill,” Martin said. “The Arizona economy is on much more solid footing today than it was a year ago and we’re poised for tremendous growth. Passage of the PRO Act would be a major step back and would do real harm to Arizona’s job creators and our economy.”

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The House recently passed the Protect the Right to Organize Act, or PRO Act, which has been championed as both a bill aimed to protect workers’ rights and curb businesses’ ability to interfere with union activities. Despite its rosy gloss, there are far more negative consequences to this expansive legislation than those championing the bill would readily admit.

The the act would “undermine worker rights, ensnare employers in unrelated labor disputes, disrupt the economy, and force individual Americans to pay union dues regardless of their wishes.” 

While all five of Arizona’s House delegation signed on to the bill as part of the vote that pushed it through that chamber, the bill is a disaster for Arizonans. While there is likely not enough backing to pass the Act through the Senate, it’s important to note the effects legislation like this would have on Arizona.

Right-to-work legacy

Many states around the country, including Arizona, have long enjoyed the benefits of being a “right-to-work” state. This means that employees in those states are free to choose whether they would like to pay union dues, and the payment of dues cannot be a stipulation of the person’s employment status. 

There are currently 27 states that operate as right-to-work states. The PRO Act would amend the National Labor Relations Act to invalidate current state right-to-work laws. 

The PRO Act passed the House last month with a 225-206 vote, with five Republicans joining all Democrats in voting in favor of the bill. Under this bill, unionized workplaces could potentially require payment of union dues to meet “union security clauses,” which enforce the payment of union dues for services such as bargaining contracts, even if the employee opts out of union membership. Employees who fail to pay these dues are subject to termination under the aforementioned clause.

As a right to work state, there is a lot at stake for Arizona. There is bountiful potential for the economic success that the state has had to be diminished or even reversed, and not just for big business. 

According to Jeffrey Eisenach of NERA Economic Consulting, the economic benefits experienced by the

• Between 2001 and 2016 private sector employment growth of 27 percent, which was 12 percent higher than non-RTW;
• An annual unemployment rate that was 0.4 percentage points lower than non-RTW states. In terms of jobs, if non-RTW states had the same employment rate, 249,000 more people would be employed;
• Output in RTW states grew 38 percent from 2001 to 2016, whereas non-RTW reached 29 percent growth output;
• Another staple of economic productivity, real manufacturing output rose by over 30 percent in RTW states from 2001 to 2016, compared with 21 percent in non-RTW states.

paint right-to-work laws as anti-worker, but states with RTW provisions seem to perform far better and deliver far more to workers.

War on independent contractors

Another significant change proposed is the tightening of requirements surrounding who is an who isn’t an “independent contractor.” The “ABC” test under the PRO Act would reclassify millions of traditional independent contractors as “employees,” which would then make them subject to union dues and representation: “(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact; (B) the service is performed outside the usual course of the business of the employer; and (C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.” 

Under this provision the federal government aims to end the debate happening within states over the classification of independent . 

On the state level, this has been tried and received backlash. California, a Democratic stronghold, passed AB5 in 2019, which made it virtually impossible for workers to be deemed independent contractors. Just one year later, after backlash from many businesses and workers, voters there passed Proposition 22, rendering AB5 null. The people were fed up with a bill that limited the ability of workers to participate in the gig economy, even in one of the nation’s most liberal states.

Striking makes a comeback

If the PRO Act were to pass through the Senate, an additional change to the current law would be the allowance of . Under ) of the National Labor Relations Act, secondary strikes and boycotts were prohibited as they were seen to be non-essential to a worker’s right to strike and would interfere with certain aspects of the economy. 

This type of conduct is aimed at a secondary employer, such as a supplier to a company. The purpose of these strikes is to use the secondary employer to put pressure on the primary employer, or the employer with whom there is a direct labor dispute.

Hurting small business

Another provision of the act is to “” decisions and liability of franchise owners’ corporate counterparts. Businesses would suffer additional stress at the expense of corporate decisions by being forced to be held accountable for the actions of corporations. The Act would re-classify a variety of small businesses that franchise or contract with larger companies as “joint-employers” (which was recently redefined by the National Labor Relations Board). The definition was expanded to include indirect, direct, and potential unexercised control over employees in a joint employer determination. The decision made by the NLRB was met with dismay from many states that have passed retaliatory bills, including Michiga, Louisiana, Tennessee and Texas.

Under the previous law, franchisors and franchisees were separate businesses and only joint employers when they shared direct control over the terms and conditions of employment. , small businesses who work under franchisors could be held liable for the actions of their franchisors as well. 

For , under the proposed legislation, businesses would be subject to heavy civil penalties ranging from $500 to $100,000. Both companies and individuals at the company are subject to these fines, but no penalties are proposed for unions that violate the law. 

Another stark change in law is that after the passage employers would be forced to disclose if they receive legal advice from attorneys regarding labor disputes which renders the current practice of attorney-client privilege null. Additionally, any attorney would be required to disclose whether they were paid for the consultation they gave on union issues. This is known as the “persuader rule,” which was implemented during the Obama administration, but eventually was blocked by a federal district court in 2016. 

Other changes to the NLRA

The PRO Act aims to make more than to current employment law and overhaul the NLRA, which hasn’t been done in more than 70 years. Included in these changes are efforts to:

• Limit the ability of employers to contest union election petitions and allow unions to engage in coercive tactics which were previously deemed to be unlawful
• Restrict the ability of employers to obtain labor relations advice
• Facilitate union organizing in micro-units
• Redefine the definition of “supervisor” to include more frontline leaders as “employees” covered by the NLRA
• Give employees the right to utilize employer electronic systems to organize and engage in protected concerted activity
• Prohibit employers from using mandatory arbitration agreements with employees
• Force parties into collective bargaining agreements via interest arbitration
• Expand penalties for violations of the NLRA

As ruinous as this would be for the businesses and corporations, another issue is at stake: workers’ rights.

On top of potentially being forced to join a union in order to keep their jobs, there are other provisions that as they currently exist. Under the act, the ability of union employees to utilize a secret ballot might be in jeopardy. Card check elections take place in the open, which would make workers vulnerable to intimidation as others would be able to see how members vote. Additionally, workers’ privacy would be at stake. 

The act would allow for unions to have access to employees’ personal cell phone numbers, emails, and home addresses — and the employee could not prevent the company from releasing this information. Another troubling provision of the bill is the quick unionization elections that would be able to take place. For workers, this means they would not be able to receive the details of what unionization could potentially mean in regards to their workplace before voting. There are laws set in place currently that regulate the ways that unions currently are organized. Through the PRO Act, businesses would not have to be notified of attempts to organize until they are taking place, which leaves business with fewer than three weeks to respond.  

For a bill that has been championed as a workers’ rights bill and a pro-labor package, there are plenty of reasons to believe that the PRO Act is anti-labor, anti-growth, and against the interests of the great majority of Americans. 

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Right-to-work laws first came about in response to the National Labor Relations Act (NLRA),  which authorized labor unions to act as workers’ “exclusive bargaining representatives.” This meant individuals were not able to negotiate their contracts separately, even if they didn’t belong to the union. 

After the passage of the NLRA, unions began negotiating contracts that made paying union dues a condition of a worker’s employment contract. States that enacted right-to-work  statutes to counter union power saw this as ensuring workers an important right: freedom to choose. 

Recently right-to-work laws have been under attack through various bills proposed at a state and federal level. 

One such bill introduced in the U.S. House is the Protecting the Right to Organize (PRO) Act. It was originally proposed in 2019 and would have effectively abolished all state Right to Work laws. Many free market organizations, including the Goldwater Institute, wrote a letter openly opposing the bill saying that, “invalidating these laws would hurt workers and employers, but would provide more dues to unions.”  

The bill has returned in 2021 with a number of changes that erode states’ right-to-work laws.

Glenn Spencer, the U.S. Â鶹´«Ă˝Ół»­ of Commerce senior vice president of the Employment Policy Division the bill “strips workers of their privacy, threatens private ballots, imposes California’s disastrous independent contractor test, jeopardizes employers’ right to free speech, and threatens the loss of a job should workers choose not to pay union dues.” 

“While claiming to be pro-worker, we firmly believe today’s legislation is a grab-bag of harmful policies that would deprive millions of workers of their privacy and fundamentally alter our nation’s system of labor relations,” he said.

Missouri’s union blues

Protection against forced union membership is offered in 28 out of the 50 states in the form of right-to-work legislation. 

States like Missouri have had ongoing battles in their legislature as they attempt to provide the opportunity for workers to choose whether to join a union membership in different work environments such as construction. 

This issue was slated to be on the Missouri ballot in 2020. The state’s Republican Party submitted the ballot initiative in December 2018. In February of 2019, the secretary of state approved the initiative for signature gathering. However, petitioners did not submit signatures by the deadline. 

Economic competitiveness

Being a right-to-work state benefits an economy through more outside investment, lower cost of living, and higher economic productivity. 

According to Jeffrey Eisenach of NERA Economic Consulting, the economic benefits experienced by the

• Between 2001 and 2016 private sector employment growth of 27 percent, which was 12 percent higher than non-RTW;
• An annual unemployment rate that was 0.4 percentage points lower than non-RTW states. In terms of jobs, if non-RTW states had the same employment rate, 249,000 more people would be employment;
• Output in RTW states grew 38 percent from 2001 to 2016, whereas non-RTW reached 29 percent growth output;
• Another staple of economic productivity, real manufacturing output rose by over 30 percent in RTW states from 2001 to 2016, compared with 21 percent in non-RTW states.

The AFL-CIO, a federation of 55 American unions, right to work laws as a way to lower workers’ wages. However, while the wage averages in , the average cost of living in right-to-work states is below the national average as well. 

Arizona’s experience

In the state of Arizona, organized labor only accounted of wage and salary workers in 2019. Since 1989, when the data for states became widely available, Arizona’s union membership rates have stayed below the national average. 

As of November of 1946, the Arizona Constitution has had a provision for the state to be a right-to-work state. 

The constitutional amendment reads, “No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.” 

Proposition 4 was an initiated constitutional amendment, which officially prohibited the requirement of labor organization membership for a person to be employed. The amendment passed in the 1946 general election by 55 percent. 

State lawmakers’ support for right-to-work policy derives from the economic benefits that are associated with these laws, including more attraction of outside investment. 

, an economics professor at the University of Kentucky said, “It sends a signal to businesses that, as a state, we are trying to make ourselves more open and friendly and [as] flexible as possible for businesses that want to locate here.”

The status of Arizona’s right to work could soon be up for debate again. With the defeat of pro-right-to-work Senator Martha McSally, there is a chance that Congress has the majority needed to pass the aforementioned PRO Act. 

As the National Right to Work Committee Vice President, Mary King , “Indeed, the Senate could potentially be Right to Work’s last firewall against not just the PRO Act, but an entire host of Big Labor power grabs.”

Among the PRO Act’s 209 cosponsors are Arizona Representatives Ruben Gallego, Raul Grijalva, Ann Kirkpatrick, Tom O’Halleran and Greg Stanton.

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