Sen. Hatch Unveils Employee Rights Act to Reform Labor Law

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Hatch photoIt's been more than 50 years since Congress passed a major piece of legislation to curb union privileges. Sen. Orrin Hatch, R-Utah (see photo), thinks that's far too long. On August 2, Sen. Hatch, a member of the Senate Committee on Health, Education, Labor and Pensions, along with freshman Rep. Tim Scott, R-S.C., introduced a far-reaching reform bill, the Employee Rights Act (H.R. 2810, S. 1507), to align labor law with emerging workplace realities of a market economy. The bill would shield individual workers from the arbitrary power of union leaders, long accustomed to equating their own interests with those of American workers as a whole. Hatch admitted that passage won't be easy. "I fully expect the unions and their supporters to come out against to Employee Rights Act, and characterize it as a radical, anti-union bill." 

With the National Labor Relations Act of 1935 (NLRA) as the lodestar, labor law in this country effectively grants unions veto power over many aspects of employment contracts and enforcement. The law, while giving workers the right to join a union without employer reprisals, also gives unions the authority to coerce others into recognizing, joining, remaining within, or funding them. A union, for example, can do the following: exclude other unions from representing employees at the same company or worksite; force employers to terminate employees who refuse to pay union dues or fees in the 28 states without a Right to Work law; employ violence and/or property destruction if it can justify such behavior as a legitimate pursuit of business interests; and declare a strike without having to conduct a secret ballot among rank and file.

NLRA has been amended several times to the benefit of public accountability, most notably in the form of the Taft-Hartley Act (1947) and the Landrum-Griffin Act (1959), which, respectively (among other things), authorized the creation of state Right to Work laws and mandated stronger standards for union financial disclosure. But such laws have achieved only modest success in reining in union monopoly power. That's mainly because the goals themselves were modest.

Union leaders and their political supporters believe, by contrast, that organized labor has far too little power. From their standpoint, this is understandable. Only about 7 percent of all private-sector workers belong to a union, down from about a third back in the mid- to late Fifties. But this is far more attributable to changing economic realities than it is to "union-busting." The Obama administration and congressional Democrats notwithstanding are committed to expanding opportunities for union control over workplace and national economic decision-making. Unions reciprocate that support, now raising hundreds of millions of dollars per election cycle for Democratic candidates, not to mention providing a rich source of volunteer campaign labor. Obama's people, though somewhat chastened by the 2010 midterm elections, intend to deliver. For example, they haven't given up persuading Congress to enact organized labor's prize legislation of recent years, the Employee Free Choice Act (EFCA), which would trigger automatic employer recognition of a union-sponsored "card check" campaign gaining a simple majority, thus bypassing the National Labor Relations Board (NLRB)-supervised and certified secret ballot process. And lately they are trying to push through a proposed NLRB rule change that would give unions the authority to conduct "quickie" elections with only a minimum of debate.

The main obstacle to these and other wish-list items is Congress, which this term now has a comfortable Republican majority in the House and a slim Democratic majority in the Senate. Even the five-member NLRB, with a natural Democratic majority under a Democratic president - currently that majority is 2 to 1 due to a pair of vacancies - would have less room to issue pro-union rulings if Congress can serve as a countervailing force. A number of legislators, like Sen. Hatch and Rep. Scott, see a chance to reverse existing union privileges  and not simply block the creation of new ones. Hatch, who introduced his bill on behalf of Senate colleagues Richard Burr, R-N.C., Lindsey Graham, R-S.C., and John McCain, R-Ariz., entered the following statement into the Congressional Record on August 2:

Our nation's labor laws were designed to preserve the rights of employees to join labor unions and engage in collective bargaining. Contrary to what some might think, I am not anti-union and I do not want to stand in the way of unionization if the decision to unionize is truly the will of the employees. However, I believe that the right not to join a union is equally important. It is this right that far too often goes overlooked under our current laws, and particularly policies implemented by unelected bureaucrats at various administrative agencies...There's not a single provision in this bill that will empower employers at the expense of the union. The only parties whose position will be improved by the Employee Rights Act are employees. Anyone whose real concern is preserving the rights of individual workers should support this bill.

The bill focuses on seven areas: 1) secret ballot elections; 2) union recertification elections; 3) paycheck protection; 4) standardized election time; 5) decertification coercion prevention; 6) secret ballot strike vote; and 7) criminalization of union threats and violence. The following is a summary of each:

Secret ballot elections. This provision would grant employees the right to vote in secret ballot elections to determine union representation. Under current law, a union can send organizers to a worksite to persuade undecided workers to sign agreements (i.e., card checks) indicating a desire to join. If somewhere around 75 percent of all workers say "yes" (the threshold varies by industry), that's often enough to convince an employer to recognize the union as a bargaining agent in lieu of holding an election. Knowing this, unions often use time-tested high-pressure tactics that cross over the line into outright threats against reluctant workers or the employer. According to the NLRB, unions in 2009 bypassed elections in favor of card checks 38 percent of the time. The Hatch-Scott measure, far from barring card checks, would simply require that unions agree to an election on top of any card check they might conduct.

Union recertification elections. The Hatch-Scott bill stipulates that unionized workplaces must hold a secret ballot referendum every three years to determine if employees want to maintain current representation. In practice, once a workplace becomes unionized, it becomes very difficult for dissenting employees to reverse course. Thus, millions of employees simply "go along to get along." This tendency will become more pronounced if the NLRB finalizes its proposed rule change authorizing fast-track elections. Bureau of Labor Statistics data indicate that less than 10 percent of current members voted for the union representing them.

Paycheck protection. The idea behind what has come to be known as "paycheck protection" is that unions ought to obtain prior written approval from private-sector employees before spending dues or fees on activities beyond collective bargaining, contract administration and grievance adjustment. The Hatch-Scott bill thus would codify the U.S. Supreme Court's 1988 ruling in Communications Workers v. Beck, which stated that workers shouldn't be forced to involuntarily subsidize union-sponsored political causes. At present, NLRA allows unions to route dues for such purposes without employee consent, though a number of states in recent years have passed paycheck protection laws applying either to all unionized employees or those in state or local government.

Standardized election timing. This provision would require that the National Labor Relations Board wait at least 40 days before conducting a secret ballot election. This June, the NLRB unveiled a proposed regulation that would dramatically speed up the representation election process to the distinct benefit of unions. Though the rule doesn't specify a time limit, the wording suggests that elections could occur as soon a week after the union files a petition for recognition as a collective bargaining agent. That's well down from the current average of around 38 to 40 days. An employer under such circumstances would have very little time to communicate opposing views on unionization to employees.

Decertification Coercion Prevention. As it is the right for workers to seek certification, it ought to be the right for workers to seek decertification. Unfortunately, unions often go out of their way to intimidate recalcitrant employees from circulating or signing decertification petitions. NLRB statistics show that only one in four decertification efforts are successful, with only half of them even put up for a vote. The Hatch-Scott measure would penalize unions employing coercion or other undue interference to block a decertification effort.

Secret ballot strike vote. There is no federal law requiring majority support from represented workers as a prerequisite for a union to declare a strike. The Hatch-Scott would establish such a standard, requiring a simple majority of union members to approve a strike via secret ballot before their leaders can order a strike. A strike is risky business for those who engage in one, even willingly. Union strike funds typically compensate members for well under 50 percent of lost wages during a work stoppage - and often receipt of the money carries a requirement that the beneficiary walk a picket line. Union rank and file should have a say in whether to strike before the consequences occur.

Criminalization of union threats. Unions have been notorious over the decades for intimidating and assaulting employees, and vandalizing employer property. This pattern of behavior is anything but extinct. Within the last five years, the NLRB has received more than 150 complaints of union violence. Prosecution of such crimes has been made more difficult by the Supreme Court's Enmons decision (1973). The Court ruled in that case that union violence is exempt from prosecution under the Hobbs Act of 1946, which made it a federal crime to inhibit interstate commerce by robbery or extortion. The Hatch-Scott legislation would close this loophole, declaring that furtherance of union objectives is not a legitimate basis for committing violent or property crime.

Congress should have little inhibition about passing the Employee Rights Act. None of its provisions circumvent NLRA-established rights to organize or join a union. What they do is protect the rights of individual workers to decide whether unionization is for them. Moreover, the political support for such measures is strong. A poll conducted during August 5-15 by Opinion Research Corporation of more than 2,400 U.S. nonunion households and more than 600 union households indicates as much. Elements of the bill elicited support typically in the 80-to-90 percent range among respondents in each sample. For example, paycheck protection generated support from 81 percent of nonunion households and 79 percent of union households. The figures for the standardized election timing provision were 87 percent and 86 percent. And the secret ballot strike vote provision actually enjoyed more support from union than nonunion households by 88 percent to 85 percent.

Individual worker liberty is popular for a reason. Employees more than ever don't like to be subject to the whims of labor organizations any more than those of employers. That desire runs counter to the centralizing tendencies in today's economy whereby government, business and labor interests form a troika, zealously guarding their turf while agreeing not to step on the turf of others. This result has been economic stagnation, corruption and a loss of global competitiveness. This corporatism may provide more than a little explanation for unemployment rates hovering around 9 and 10 percent during these last few years. The Employee Rights Act would free, not shackle, productive resources across a wide variety of industries.

Rep. Tim Scott, whose congressional district is the focus of a bitter ongoing battle over an NLRB ruling in April requiring Boeing to halt production of its 787 Dreamliner commercial jets in a new nonunion plant near Charleston, S.C., knows this well. "We have seen in my home state of South Carolina exactly what happens when the federal government, and specifically the NLRB, overreaches their authority in an attempt to protect Big Labor," he remarked in unveiling the Employee Rights Act with Sen. Hatch. "All workers should feel safe and free from harassment in their workplace, and all workers should be able to ensure their voice is heard without fear of retribution." The unions will weigh in on this issue differently. Just give it some time.

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