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July 28, 2014

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Example of how rotten labor law is’

Blue Man Group workers vote to unionize, a vote Blue Man founder Matt Goldman pledges to honor beforehand.

The NLRB certifies the results, which Blue Man then contests. The union files an unfair labor practice charge with the regional NLRB, alleging the company refuses to bargain, a clear violation of labor law.

The NLRB rules that Blue Man must cease and desist and bargain with the union; Blue Man also must post a notice within 14 days - for 60 consecutive days - in conspicuous places saying it violated labor law.

The NLRB files a petition for enforcement of its order with the U.S. Court of Appeals in Washington, D.C.

Dar Lawrence, left, and Ron Gamire from Theatrical Stage Employees Local 720 lead demonstrators in front of the Venetian while protesting the Blue Man Group's refusal to negotiate. The company says the election in support of union representation was not valid.

The International Alliance of Theatrical Stage Employees Local 720 won an election 16 months ago to represent workers at the Blue Man Group's show at the Venetian.

To date, no bargaining has taken place. The company's founder had promised to abide by the vote. Instead, the company has refused to recognize the union and embarked on a series of appeals, arguing that the election wasn't valid.

The union disagrees and has the backing of the National Labor Relations Board. Yet the appeals drag on in what labor experts say is an example of how modern labor law allows employers to abuse a system fraught with legal delays to effectively snuff out organizing drives.

The conflict between the stagehands union and the show started when it left the Luxor for the Venetian in fall 2005 - and the members' pension and health care plans stayed behind.

At the Luxor, the crew was union, protected by the property's so-called "facilities agreement." At the Venetian, the show became a "four wall" operation, where Blue Man owners are tenants at the property and the direct employer of the show's crew.

Soon, Blue Man's 40-plus stagehands began asking for union representation. For a while, it looked as if they had it. In May 2006 employees voted for the union, 20-14 , and in June the National Labor Relations Board certified the results.

Before the vote, Matt Goldman, founder of the Blue Man Group, pledged to honor the results "in accordance with the great democratic traditions of our country."

But after , Blue Man argued that the election was not valid because it did not include a half-dozen musical technicians. The union said it had never represented music techs, and the NLRB later found that the stage crew and the music techs were "significantly distinct" from one another.

But the company fought, represented by Akin Gump Strauss Hauer & Feld, a large Washington, D.C., law firm with a history of representing companies such as Starbucks and Albertsons in labor disputes.

Here's what has happened since:

The union filed an unfair labor practice charge with the regional NLRB in June 2006, alleging the company refused to bargain, a clear violation of labor law. The board agreed and issued a complaint against Blue Man.

The company filed a challenge, sending the case before the full NLRB in Washington. In September 2006 the Washington board rejected Blue Man's arguments and ordered bargaining to begin.

Four days later Blue Man sued to have the ruling overturned.

The next month the NLRB filed a petition for enforcement of its order with the U.S. Court of Appeals in Washington. A year later, both sides are still waiting on a decision.

"This is an example of how rotten the labor law is," said Nelson Lichtenstein, a labor historian at the University of California, Santa Barbara , and director of the school's Center for the Study of Work, Labor and Democracy. "Victory postponed is defeat. It doesn't matter whether you are right or wrong. By delaying, you are winning."

The tactic is common in labor disputes, effectively killing a union's momentum and jeopardizing organizing efforts, said Gordon Lafer, a professor at the University of Oregon's Labor Education and Research Center. "Even in cases where management knows it's filing a frivolous suit, it's rational to do it," he said. "Apart from attorney fees, it's costless. The only real goal is to delay and suck the air out of the organizing momentum."

The fact that the NLRB cannot enforce its own orders, thus requiring court action, is a fundamental weakness of labor law, Lafer said.

In the Blue Man case, the union has filed additional charges with the NLRB. It contends that the company illegally changed the show's work rules and fired a key union supporter. A hearing on those allegations is set for next month at the local NLRB.

"It sent a chill through everybody working there," said Rob Rovere, an union organizer involved in the Blue Man effort.

At first blush, the numbers appear to be on the union's side. According to NLRB figures, federal appeals courts decided 79 cases involving labor board orders in fiscal 2006, ruling against employers in all but two cases.

Blue Man fears the vote will set a precedent for its company. It stages shows in five U.S. cities, none of which uses union labor. In Toronto, the show was the subject of a boycott over its refusal to recognize several theatrical unions. On Jan. 8, the company closed that show after an 18-month run.

Ultimately, the federal court can levy fines on employers that refuse to negotiate in good faith.

But court fines are small - and rarely imposed, Lichtenstein said.

"Breaking the law is far cheaper than doing anything else," he said. "The real penalty for the company is paying the lawyers."

In fact, although unions win roughly half of all representation elections, labor studies show that between a third and half of the workers who achieve collective bargaining rights lack a contract a year after the vote.

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