The state's largest private sector union is trying to block voters from deciding in November whether to constitutionally guarantee a secret ballot in public and union elections.
Maricopa County Superior Court Judge Robert Oberbillig will hear arguments this coming week from attorneys for United Food and Commercial Workers Local 99 who contend the proposal, as crafted, is illegal.
Attorney Andrew Kahn said it improperly contains two subjects: votes on public elections and votes to authorize union representation. He said that was done on purpose, with the public likely to be swayed into voting for anything that they see as protecting the secrecy of their ballots.
"It hopes that by joining the two subjects it can generate more support for its anti-union provision that a more honest focused measure could not," Kahn charges in his lawsuit.
And Kahn pointed out that the Arizona Constitution already spells out that, when it comes to regular elections, "that secrecy in voting shall be preserved."
Jonathan Paton, who led the effort to put the issue on the ballot when he was in the state senate last year, defended tying the issues together. And Paton, now running for Congress, denied it was crafted to fool voters.
But Paton acknowledged that he is interested in undermining a proposed federal law that would allow a union to be formed without an election.
Current labor law requires a union that wants to organize workers to first get a majority of employees to sign cards seeking an election. Under the National Labor Relations Act, that leads to an election.
Some labor groups have argued that procedure gives employers too much time to try to intimidate workers. What they want instead is a law that a union be formed automatically once a majority of workers sign those cards in support.
President Obama has said he backs the change.
With Congress in Democrat hands, business interests are concentrating their efforts on individual states, most considered business-friendly, trying to get "secret ballot" requirements inserted into individual state constitutions.
Arizona lawmakers complied last year, voting to put the question on this November's ballot.
Paton, who sponsored the legislation, said there is nothing wrong with combining the two issues into a single ballot question.
"I don't see what the big deal is," he said. "The same principle applies whether you're having a regular election or you're having a union organizing election."
He acknowledged the existing constitutional language on secret ballots. But Paton said this new verbiage, if approved, would make absolutely sure that requirement covers not only state elections but also those for local races and school boards - and unions.
Paton said the state needs the constitutional protection to preempt federal "card check" laws. He said that really isn't a fair process, as workers asked to sign these cards who really don't want union representation could be "intimidated" by co-workers who do, as everyone knows who did - and did not - sign the cards.
"This is not Russia; this is America," Paton said. He said unions don't want the secret ballot because they're more likely to be successful in organizing a company "if they're able to basically use intimidation tactics."
James McLaughlin, the union local's president, was unavailable for comment.
One question that remains is whether the measure, if it stays on the ballot and is approved in November, would make any difference.
Clint Bolick, an attorney with the Goldwater Institute, said nothing in the National Labor Relations Act specifically preempts state laws on union organizing. He said, though, that courts have struck down any laws that even arguably conflict with it.
Conversely, Bolick said courts have agreed to allow state laws that protect "important interests."
"We're really looking at uncharted territory," Bolick said.