The National Labor Relations Board this afternoon filed suit against the State of Arizona in the federal District Court for the District of Arizona.  Consistent with its previous announcement of its intent to do so, the Board is seeking a Declaratory Judgment proclaiming Arizona Constitution Article 2 § 37 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.

After citing sections of the NLRA which pertain to the designation or recognition of a union representative, the Board’s Complaint asserts:

The NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative where, for example, employees successfully petition their employer to voluntarily recognize their designated representative on the basis of reliable evidence of majority support, in accordance with Sections 7 and 9 of the NLRA, 29 U.S.C. §§ 157 and 159, or where a construction union seeks recognition from a construction employer in accordance with Section 8(f) of the NLRA, 29 U.S.C. § 158(f).

Moreover, argues the Board, the provision ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Following an earlier exchange of positions between the Board and four states on this issue, several witnesses at a February 11, 2011 hearing before the House Committee on Education and the Workforce encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

The State Attorneys General responsible for enforcing their states’ secret ballot protection measures responded strongly to the initial threats by the Acting General Counsel to initiate litigation.  In the face of politically charged reactions to other recent choices, the Acting General Counsel is showing no signs of embracing a less aggressive approach going forward.