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.