Saturday, June 23, 2007 | 7:12 a.m.
A fundamental tool of organized labor, with roots early in the last century, is emerging as a flash point of the modern labor movement.
In Congress and in steely contract negotiations between the Culinary Union and MGM Mirage, the fight is over whether employees can organize simply by signing cards expressing their preference, or must hold a government-supervised , secret - ballot election.
The outcome almost unquestionably will influence the growth of unions for years to come.
At the federal level, the focus is on the proposed Employee Free Choice Act, which passed the House in March but faces a veto from President Bush. If it becomes law, it would tip the scales back toward unions and workers who want to organize.
The issue comes down to this: Existing labor law gives employers the option to require employees to express their desire to organize by voting in an election. Employers argue that an election is democratic.
Unions counter, with ample evidence behind them, that employers win elections by conducting campaigns of intimidation and threats.
Unions favor a method that emerged from the labor wars of the 1930s. It allows workers to express their desire to organize by turning in a card. They are not required to sit through employer-run campaigns leading up to an election.
Labor historians say the pending legislation would bring about long-overdue reform, correcting a system that has heavily favored employers. The bill, they say, reaffirms employees' right to "self-organization," a critical promise in President Franklin D. Roosevelt's New Deal.
A little history:
In the early 20th century, workers were striking en masse, interrupting interstate commerce, with the goal of forcing employers to recognize unions, which would in turn negotiate collective-bargaining agreement s .
"All hell was breaking loose," said James Gross, professor of labor policy and labor arbitration at Cornell University's School of Industrial and Labor Relations. "People were poor and marching in the streets. People were unhappy and they wanted to organize."
As a result, Congress passed and Roosevelt signed in 1935 the Wagner Act, more commonly known as the National Labor Relations Act. Under it, the public policy of the United States was to promote collective bargaining for the nation's workers, said David Montgomery, a labor historian and professor emeritus of history at Yale University.
"The original idea was that democracy is provided by a union," Montgomery said. "What's crucial is any mechanism that is convenient and does not lend itself to all kinds of rigging."
For many workers, that mechanism was a union card. Once a majority of employees signed cards signifying their support for the union, collective bargaining could begin, without certification from the National Labor Relations Board.
Under the law, elections were not mandatory.
In fact, secret ballots emerged largely as a means to determine which union among many would represent employees. Notably, in those years the labor board wanted employers to remain neutral. Any intervention in the form of campaigns by employers was regarded as inherently coercive.
"The question of whether or not to have a union was the workers' business to decide," Montgomery said.
Labor historian David Brody has noted that nearly one- third of all union certifications in the late 1930s did not involve elections. Cards - and often a show of hands - were common.
The balance of power shifted in 1947, with the passage of the Taft-Hartley Act. Big business cried that labor law was unfairly weighted toward unions. Business sought avenues to exercise "employer free speech" in organizing drives. Further, business argued that unions were abusing "card checks," often by intimidating workers into signing.
So employers demanded - and won - the right to require secret ballots. Companies became direct participants in union organizing drives, mounting increasingly sophisticated campaigns against unionization.
And although the law barred employers from threatening workers or extending promises, an entire industry, dubbed "union avoidance," cropped up to help companies skirt the law, said Gross, who has studied abuses in NLRB elections.
Even within the confines of the law, Gross said, employers have an advantage today, namely in their ability to require workers to attend anti-union seminars on company time. Beyond that, companies break the law regularly, firing key worker activists, he said.
"The deck is really stacked here," Gross said. "The sophistication and unlawfulness of many employer campaigns has made the secret ballot election a sick joke. It's not a free choice anymore."
Election results are often subject to appeal, union advocates say, and companies can drag their feet for years, killing enthusiasm and support for organization. At the same time, the NLRB, whose members are political appointees, has favored employers in its decisions during the past four decades, said Gross, author of a three-volume study of the labor board. Punishment for unfair labor practices is minimal, he said.
"It's a systemic problem," said Lance Compa, a senior lecturer at Cornell University's School of Industrial and Labor Relations. "It's not a question of election yes or election no."
For those reasons, many unions, including the Culinary Union in Las Vegas, refuse to participate in NLRB-supervised elections, instead seeking to negotiate voluntary neutrality agreements with employers and to gain majority worker support though card checks.
As Culinary Secretary-Treasurer D. Taylor put it: "We know that secret ballot is a code word for a big fight."
Which also might describe the current debate in the Senate.
Nevada Sen. John Ensign, head of the Republican National Senatorial Committee, this week called the proposed legislation favoring card checks "completely un-American" and vowed to work with Republicans to kill the bill.
"It goes to the very heart of what we are as a people - the idea of a secret ballot that you can express your will in a free election process," Ensign said. "And when I say free, I mean free from intimidation."
Labor unions have been pushing Senate Democrats to introduce the legislation, despite its poor prospect of passing, in hope of setting the stage for 2008 - when they hope a bigger Democratic majority, and possibly a Democratic president, will push the bill through.
At stake, advocates say, is nothing less than the future of the American labor movement.
Brody, a labor historian and celebrated author, has noted that labor loses 500,000 members a year through natural attrition and changes in the economy. And under the current system, the movement produces fewer than 100,000 new members a year.
Even in Las Vegas, long a darling of the American labor movement, things are changing.
Negotiations between the Culinary and MGM Mirage are stalled, largely over card checks.
In the short term, MGM Mirage seeks to limit the union's organizing rights at nongaming portions of CityCenter, under construction on the Strip. They involve about 800 workers at two boutique hotels managed by third parties.
Culinary is concerned about precedent in an era when more casino companies are turning to third-party operators, which are independent companies whose workers are not automatically covered by the Culinary contract.
Labor historians interviewed by the Sun called the rhetoric by opponents of the Employee Free Choice Act simply a ruse to maintain a system that favors employers.
"There's no question that the mechanism set up by the Wagner Act has been totally hijacked by enemies of collective bargaining," Montgomery said. "For the friends of business to be champions of free election is phony."
James Sherk, a labor expert at the conservative Heritage Foundation, disagreed, saying that existing labor law favors unions. He cited NLRB statistics showing that unions win three of every five elections. Those figures to not reflect the number of organizing efforts that fail before elections can be held.
Under law, an employer's right to keep a "captive audience" is balanced by that employer's obligation to provide to union organizers a contact list of all employees.
Card check, he said, would invite the intimidation and coercion that Taft-Hartley sought to curb. "There's a reason Congress decided workers had a right to privacy and there's no reason to go back on that now," Sherk said.
Still, union advocates see the bill as a return to the original New Deal promise.
"This is really like flipping the default," Compa said. "There would still be an opportunity for an election, but it would be up to the employees to decide the method."