This Sunday, legislative attempts to restrict union power found an audience among Super Bowl viewers. Football fans in the Washington, D.C. area were treated to an anti-card check ad from the conservative Center for Union Facts (CUF) right before kickoff.
"Today, union lobbyists are demanding that most employees be forced to vote in public," says the ad's voice over. "The Employee Rights Act guarantees that your private vote will always be protected to avoid pressure from union organizers."
The commercial refers to prior union advocacy for legislation which would have made union certification in the workplace possible without a secret ballot vote. That legislation was the 2009 Employee Free Choice Act (EFCA), which would have allowed union certification after a majority of employees signed cards—not in secret—saying they would like union representation. Opponents of EFCA said that it made workers more vulnerable to union intimidation, whereas its supporters called the current election process needlessly unwieldy and heavily slanted in favor of the boss. (Currently, after a majority of workers sign cards expressing their desire for a union, employers have the right to demand a secret ballot election.)
The Employee Rights Act (ERA) promoted in CUF's Super Bowl commercial would go even further than that, amending the National Labor Relations Act to make secret ballot elections virtually mandatory. The revised language would make it so that employees' bargaining representatives would necessarily be "selected by secret ballot in an election conducted by the Board."
It doesn't stop there. Every three years, a private organization "chosen by agreement between the employer and the labor organization" would have to oversee a secret ballot referendum over whether or not to dismantle the union. The ERA would also restrict how unions are allowed to use employee dues, and add language which could make it easier for unions—but not employers—to be found guilty of unfair labor practices.
The law was first introduced in 2011 by Sen. Orrin Hatch, R-Utah, and then-Congressman Tim Scott, R-S.C. (Scott is now a U.S. Senator.) In a 2011 Washington Times op-ed, Hatch said he introduced the legislation because "union bosses have held hostage such basic workers’ rights" for too long.
In early 2012, CUF promoted the legislation with a full-page New York Times ad suggesting that American union members are unfree in much the same way as North Korean citizens. The bill never made it to the floor during that legislative session, but CUF Managing Director Justin Wilson told msnbc.com he was optimistic that it would come up again.
"There was pretty widespread support for the bill, and I'd be surprised if it wasn't also reintroduced," he said. A spokesperson for Sen. Hatch's office confirmed that Hatch is planning on reintroducing the bill during this legislative cycle, though he said they had not yet picked a firm date for doing so. When the law was first introduced, it failed to get a single Democratic sponsor in either chamber, suggesting that it would be unlikely to pass a divided Congress.
CUF has run Super Bowl ads "off and on over the years," said Wilson, including ads promoting the ERA and opposing EFCA.
"The Super Bowl's a fun time to advertise," he said. "We try to make entertaining ads which catch people's attention."