NLRB Loses Challenge to Arizona Law Guarantying Secret Ballot Elections

Contributed by Terry Fox

Arizona citizens passed a state constitutional amendment in 2010 guarantying secret balloting in union elections. This citizen initiative was a response to the National Labor Relations Board’s  suggestion it would conduct “card check” elections despite the failure of the Employee Free Choice Act.  When that amendment took effect, the board sued in federal court for a judgment declaring the Arizona Constitutional Amendment was preempted by the National Labor Relations Act. 

The NLRB argued that it alone had the right to determine election issues, and that power was granted by the federal government.  Thus, it asserted the Arizona Amendment was contrary to the National Labor Relations Act because it gave Arizona State courts the right to determine issues in a union election conducted in Arizona. 

In the order issued by U.S. District Court Judge Frederick J. Martone, [2:11-cv-00913-FJM] the court found that the illegality of the Arizona Amendment could not be decided on the face of that amendment.  Instead, the court would require evidence of how, when, and where the Amendment would be invoked.  It pointed out that the NLRB has the discretion to exercise its jurisdiction in election disputes or not.  Arizona argued that its interests in a secret ballot election are “deeply rooted in local feeling and responsibility,” such that a balancing of interests is required to determine if state action offended the regulatory scheme imposed by the NLRA.  That, the court found, requires a factual context.  As such, the court denied the NLRB’s motion for summary judgment and instead entered summary judgment for the state of Arizona. 

Not surprisingly, the Arizona Attorney General Tom Horne issued a press release describing the decision as a “stinging rebuke to an outrageous National Labor Relations Board attack.” To avoid card-check elections organized or sanctioned by the NLRB, states may want to consider enacting similar legislation or constitutional amendment.  Interestingly, three other states passed amendment similar to Arizona’s, but the NLRB only targeted Arizona for litigation. The formal title of the case is National Labor Relations Board v. State of Arizona and Save Our Secret Ballot, et al.