Federal Court Dismisses National Labor Relations Board Challenge to Arizona State Constitution’s Secret Ballot Guarantee

District Court Judge Frederick J. Martone yesterday issued an Order granting summary judgment to the State of Arizona in the National Labor Relations Board’s lawsuit challenging an amendment to the state’s constitution. Back in May of last year, the NLRB filed suit against Arizona seeking a Declaratory Judgment proclaiming that Arizona Constitution Article 2 § 37 is pre-empted by the National Labor Relations Act. Article 2 § 37 of the Arizona Constitution, approved by voter referendum on November 2, 2010, states:

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

The Court analyzed the Board’s claim under the general rules of preemption originally set forth in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 79 S. Ct. 773 (1959).Garmon held:

[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the [NLRA], or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.

The Court here, however, asserted that it was unable to conduct the required balancing test due to the wide variety of possible factual circumstances in which Arizona Constitution’s requirements might or might not overlap with § 9 of the NLRA, which pertains to the designation and selection of a bargaining representative; and, subsequently with enforcement of § 7 or 8 rights.

The Order reads:

On its face, Article 2 § 37 does not address who must hold secret ballot elections, who must ensure that these are conducted appropriately, and when in the course of union organizing these must occur. It guarantees the right to election by secret ballot, a process that the NLRB itself must follow when it determines an election is needed. See 29 U.S.C. § 159(c)(1) ("If the [NLRB] finds. . . that such a question of representation exists, it shall an election by secret ballot direct ") (emphasis added). It is possible that state litigation invoking Article 2 § 37 may impermissibly clash with the NLRB’s jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices. But because we are presented with a facial challenge to a law for which there "is a basic uncertainty about. . . how it will be enforced," it "would be inappropriate" for us to assume that Arizona courts will construe, and enforce, Article 2 § 37 "in a way that creates a conflict" with the NLRA. See Arizona , 132 S. Ct. at 2510. Thus, we cannot conclude as a matter of law that Article 2 § 37, on its face, is preempted by the NLRA. Our ruling today, however, should not be construed to foreclose as-applied challenges if and when they materialize.

In other words, this will not likely be the last word on the issue. One might certainly expect a test case pushed by a labor union seeking voluntary recognition. The NLRB was quick to issue a statement today suggesting the Court recognized that federal law contemplates alternative methods of union designation, but did not have the facts before it upon which to rule:

“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,” said NLRB Chairman Mark Gaston Pearce. “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.”

On the other hand, the Goldwater Institute, which authored the secret ballot language on which the Arizona amendment was based, highlighted the Judge’s indication that even once the state authority is invoked in an actual case, the courts will need to perform the balancing test to determine if the federal scheme should trump state interests:

“Today’s ruling is a huge victory for federalism and the authority of states to protect the rights of their citizens,” declared Clint Bolick, Goldwater Institute Vice President for Litigation. “In the backdrop of continued power grabs by federal agencies like the NLRB, this ruling affirms that vital protections such as the right to secret ballot can remain in place.”

Depending on the outcomes of November’s elections, we might also see a renewed legislative push for amendment of the NLRA to clarify the role of the secret ballot one way or another. During 2011, Senator Jim DeMint (R-SC) and Rep. Phil Roe (R-TN) both introduced the Secret Ballot Protection Act — federal legislation similar to the state amendments at issue here.