The NLRB made good on its January 13, 2011.pdf threat to sue individual states that enact legislation that it believes are solely within its province.  In a complaint filed against the State of Arizona.pdf today, the NLRB asserts that voter enacted Arizona Constitutional Amendment Article 2 § 37 is preempted by the National Labor Relations Act, and therefore inoperable.  Article 2, § 37, which passed after an election held on November 2, 2010, provides, “The 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 NLRB complaint alleges

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. . .

Essentially, the NLRB’s position is that the State of Arizona’s guarantee of a secret ballot election is preempted by the NLRA, which allows employers to voluntarily recognize a union in certain circumstances. 

There is, of course, a much broader context to this issue.  The debate over how employees select unions has been the subject of intense public debate over the last three and a half years.  From mid-2008 until last year, there was a strong effort to pass federal legislation in the form of the oddly named Employee Free Choice Act (“EFCA”), which would have required an employer to recognize a union on the basis of signed authorization cards alone, without recourse to a secret ballot election.  The fervor to get EFCA passed caused a large public outcry that likely resulted in Arizona’s efforts to pass this constitutional amendment.

EFCA died with the shift in Congress, starting with the election of Senator Scott Brown who effectively ended the super-majority needed to get the legislation passed.  Since then, of course, the pendulum has swung even further with a Republican majority taking firm hold of the House of Representatives.  Several state legislatures, including those in Arizona, South Dakota, and Utah have seized on the public opinion to enact guarantees of their own.

It is expected that South Dakota will be the next state to have to defend against an NLRB lawsuit.

 

Posted in NLRA, NLRB, Preemption
Tags: Arizona, NLRA, NLRB, Preemption, secret ballot, Section 7, Section 9, State law
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Read more about Mark Theodore
Show more Show less
Related Posts
NLRB Sues Oregon Seeking To Invalidate State Law Prohibiting “Captive Audience” Meetings
February 19, 2020
NLRB GC Abruzzo Issues Memo Calling for Harsher Remedies for Noncompetes and Stay or Pay Provisions That Violate the NLRA
October 9, 2024
NLRB Regional Director Targets No-Poach Agreements in Latest Complaint
September 17, 2024