State senators approved a controversial - and potentially illegal - measure on Monday designed to block Congress from implementing the "card check" system for labor unions organizing in Arizona.
The 18-11 vote asks voters to adopt a constitutional amendment to preserve the right of a secret ballot. SCR1026 specifically mentions elections for public offices or ballot measures.
But the proposal, crafted by business interests, is actually aimed at pre-empting federal law that would make it easier for unions to organize.
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 requirement that a union be formed automatically once a majority of workers sign those cards in support. Other provisions in the proposal are designed to make it easier for unions to force employers to bargain with them.
Congress has killed similar measures in the past. But this year backers have not only the Democratic majority they first got in 2006 but also the support of President Barack Obama.
So foes are instead concentrating their efforts on individual states, most considered business friendly like Arizona, trying to get "secret ballot" requirements inserted into individual constitutions.
Sydney Hay, who represents a trade association of companies that do business with the copper mining industry, said businesses fear that unions will use intimidation to force workers to sign the cards. By contrast, she said, while the current system also includes cards - and people know who did and did not sign - it ultimately allows workers to vote, in secret, against forming the union.
SCR1026 now goes to the House and, ultimately, would appear on the 2010 ballot. So far, lobbyists for various unions have been unable to derail it.
The big question is whether the constitutional provision, if approved by voters, would make any difference.
Attorney Clint Bolick with the Goldwater Institute said nothing in the National Labor Relations Act specifically pre-empts state laws on union organizing. He said, though, courts have struck down any laws that even arguably conflict with it.
Conversely, Bolick said courts have agreed to allow state laws which protect "important interests." Bolick said he will argue that the right of a secret ballot fits within that definition.
"We're really looking at uncharted territory," Bolick said.
Bolick said he also is heartened by what he sees as the tilt of the U.S. Supreme Court to recognizing the rights of individual states.
Bolick also pointed out that the federal legislation has yet to be approved. He speculated that backers, in order to get the necessary 60 votes to clear the U.S. Senate, might have to compromise and specifically include an allowance for states to opt out.
The most notable exception in the National Labor Relations Act is the provision allowing states to have "right to work" laws.
These spell out that if employees at a workplace form a union, workers can't be fired if you decide not to join. They also say that union members who decide to resign from the union cannot be fired.