On June 9, 2011, the nonprofit organization Save Our Secret Ballot and 34 individuals moved to intervene as defendants in the National Labor Relations Board’s lawsuit against the State of Arizona challenging Article 2 § 37 of the Arizona Constitution.  That state constitutional provision, passed by voter referendum last year, requires a guarantee of a secret ballot in any election for union representation. Save Our Secret Ballot is a nonprofit organization whose stated purpose is to educate the public on the continued need for a secret ballot for union recognition. Almost all of the individual intervenors are Arizona residents employed in the non-unionized, private construction industry.

In the lawsuit, the Board claims that Arizona Constitution Article 2 § 37 is pre-empted by the National Labor Relations Act. Article 2 § 37, 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 Board’s Complaint asserts that “[t]he NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative…” Accordingly, the Board argues that Arizona Constitution Article 2 § 37 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."

Save Our Secret Ballot argues in its motion that it is entitled to intervene because it has acquired particular knowledge of legal and factual issues implicated by the Board’s lawsuit through its development of the ballot measure in Arizona and in other states. It also claims that Arizona’s interests are not identical to its own “because Save Our Secret Ballot’s interests include expanding the secret ballot protection in states beyond Arizona.” The motion further explains that the individuals should be allowed to intervene because:

the individual applicants will assert their personal rights under the First Amendment and the National Labor Relations Act…. Although the State has standing to defend individual rights established by its laws, see, e.g., Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 605 (E.D. Va. 2010); Florida ex rel. McCollum v. U.S. Dept. of Health & Human Services, 716 F. Supp. 2d 1120 (N.D. Fla. 2010), it does not have standing to assert individual federal constitutional or statutory rights. Those critical affirmative defenses may only be raised by the individual applicants.  

Save Our Secret Ballot and the individuals claim that amicus status is insufficient because it does not allow them to raise issues or arguments formally and gives them no right to appeal an adverse decision.  According to the motion, the State of Arizona will not oppose their request to intervene.

Several former Board officials, including one former Republican General Counsel who testified at a February 11, 2011 hearing before the House Committee on Education and the Workforce, have suggested that the Board’s preemption theory has significant merit under these circumstances.  Other witnesses at that hearing 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.