Judge dismisses lawsuit over secret ballot amendment

Michael P. Tremoglie Sep. 10, 2012, 12:29pm


PHOENIX (Legal Newsline) - A federal Judge on Wednesday dismissed a lawsuit brought by the National Labor Relations Board against the state of Arizona's constitutional amendment guaranteeing workers the right to vote for a union by secret ballot.

But the judge said there is a potential conflict with federal law.

The amendment was passed in response to NLRB's "card check" rule which permits the option of workers signing a card to indicate their preference. Judge Frederick Martone found that the amendment may be preempted by the National Labor Relations Act, but it will depend on how the amendment is applied.

Although granting the state's motion to dismiss the case, he left the door open for future litigation.

"It is possible that state litigation invoking (the amendment) may impermissibly clash with the NLRB's jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices," he wrote.

But because the amendment has not yet been applied, he could not assume that it would conflict with the NLRA. He made it clear that federal labor law provides for two ways for employees to choose a union: "A bargaining representative may be voluntarily recognized by an employer if there is convincing evidence of majority support. Alternatively, the NLRB may certify a union as the bargaining representative after it conducts a secret ballot election."

The NLRB asserted in January 2011, that recently-adopted "secret-ballot amendments" in Arizona, South Dakota, South Carolina and Utah conflicted with federal labor law by restricting the methods by which employees can choose a union. When no agreement with Arizona could be reached, the NLRB filed suit to have the Arizona amendment declared unconstitutional.

Arizona maintained there was no preemption because the state's "guarantee" of a secret ballot election would only apply if and when the voluntary recognition option is not selected.

"Our objective from the beginning was to ensure that employees protected by our law continue to have the same options for choosing representation that they have always had," NLRB Chairman Mark Gaston Pearce said. "Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states."

Arizona Attorney General Tom Horne issued a statement praising the judge's ruling.

"This is a stinging rebuke to an outrageous National Labor Relations Board attack made in 2011 when that panel tried to subvert the sanctity of the secret ballot," Horne said. "As I said at the time, this intimidation by our own elected leaders must stop, and today's court decision is a welcome step in that direction.

"Judge Martone's ruling makes it clear that the 2010 state constitutional amendment... cannot be overruled by the bureaucrats at the NLRB. This is a tremendous victory not only for the people of Arizona, but for the institution of free elections for all people, a cherished right for which our forebears fought a revolution."

Horne added that all four states were threatened by the NLRB with legal action if they did not voluntarily negate their amendments.

"All four states refused to be intimidated," he said. "However, the NLRB only sued Arizona, so Arizona successfully carried the ball for the entire country on this important issue concerning our basic freedoms."

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