For the first time in decades, union power is under serious threat. Indiana is on the verge of becoming the 23rd state to enact a right-to-work law, liberating workers from being forced to join a union. New Hampshire may also adopt some form of right-to-work. Murmurs about a national right-to-work law are growing. Public sector unions continue to face efforts to curb their power and trim their lavish contracts.
And now there’s a shrewd new challenge to organized labor: the Employee Rights Act. It would take labor law in a new direction. Unlike right-to-work statutes, which help businesses escape unionization, the ERA would protect union workers from high-handedness and abuses of power by their union leaders.
The measure was formulated by Richard Berman, a Washington lobbyist and longtime foe of excessive union power in labor relations and politics. It’s been passionately embraced by Senator Orrin Hatch of Utah and 20 other Republican senators. In the House, its chief sponsor is Tim Scott of South Carolina, a star of the freshman class of 87 Republicans.
Though it has dazzlingly high poll numbers, the measure is unlikely to be enacted any time soon. Unless Republicans capture the White House and the Senate in the November election while keeping control of the House, it’s a sure loser. Even if Republicans gain full control in Washington, passage is not guaranteed.
As expected, labor leaders view the ERA with dread. Indeed, it threatens to diminish their authority significantly. And when labor chieftains feel strongly about an issue, congressional Democrats reflexively line up on their side.
Yet the ERA isn’t doomed to oblivion. In fact, depending on where you live, you may be hearing about it. Berman has pledged to raise and spend $10 million in 2012 on TV ads promoting the proposal. So far, ads have been aired only in Washington, D.C., but Berman says they will soon be broadcast in Las Vegas, a strong union town, and then in states like Missouri and Montana with tossup Senate races.
What the ERA would do is entirely sensible. The most striking of its seven reforms would force unions to face a “recertification” election every three years, allowing workers to decide if they want to stick with their current union. Hatch says that “less than 10 percent” of union members today have ever voted on whether to have or keep a union. Another part of the measure would prevent union leaders from “intimidating or coercing employees from exercising their rights, including the right to decertify the union.”
That’s strong medicine. The rest of the ERA would guarantee secret ballot elections, give members the right to refuse to back their union’s political operations, require at least 40 days to hear both sides before voting to certify or decertify a union, require a secret ballot vote before a strike, and make it a crime for unions to use violence or threats to coerce members.
Notice the emphasis of all seven provisions. It’s on the individual rights of employees, not on economic concerns. Right-to-work laws let workers decline to join a union, but they are usually promoted as a tool for attracting business to a state and increasing jobs. By the way, 108 economists have endorsed the act.
Berman hired the Opinion Re-search Corporation to survey union and nonunion households to gauge the ERA’s popularity. Only the secret ballot requirement drew less than 80 percent support. It was backed by 78 percent of both union and nonunion households.
Here’s the most surprising result: Eighty-four percent of nonunion and 83 percent of union households favor an election every three years to recertify or jettison the union. And 85 percent of nonunion and 88 percent of union households back the need for a majority of members to approve a strike.
Hatch says he expects to be attacked as an opponent of unions. But he insists the ERA isn’t antiunion. “I don’t think it’s pro-business. It’s pro-worker.” Nor does he regard it as dead legislatively for the foreseeable future. “I would never count it out. The polls show union workers are with us.”
Berman sees the ERA as a long-term project. What matters, he says, is that the ERA puts the cause of union reform on the offensive. “Offense takes a long time to penetrate and become part of mainstream thinking.”
His goal for 2012 is for the issue to enter the campaign debate. With Democrats normally pro-union and Republicans usually critical of union power, one aim is to interest independents.
The ERA is “foundational,” Berman says. It’s not designed to nullify a ruling of the National Labor Relations Board. Nor would it affect the relationship between workers and management. Instead, it seeks to change the balance of rights and obligations between unions and employees, a balance that now strongly favors union bosses.
If enacted, the ERA would be the most important labor legislation since the Landrum-Griffin bill in 1959, which dealt mainly with labor racketeering. Even today, most labor law was created in the Wagner Act of 1935. The Taft-Hartley law in 1947 legalized right-to-work laws.
So the ERA represents a dramatic step. But it would be a step in the right direction, with the twin benefits of vindicating individual rights and removing some of the drag on the economy imposed by union bosses.
Fred Barnes is executive editor of The Weekly Standard.