A federal judge will allow the National Labor Relations Board to pursue its bid to void an anti-union initiative approved last year by Arizona voters.
Judge Frederick Martone said the evidence presented so far shows that the measure illegally encroaches on the area of relations between labor and employers. And that, he said, interferes with the intent of Congress to have federal law be the “central procedural framework for resolving disputes.”
Martone’s ruling, released Thursday, does not void the state law. It suggests, though, the judge believes that Arizona cannot come up with its own laws on how unions can be formed.
But Clint Bolick, an attorney for the Goldwater Institute, which crafted the anti-union measure, said he still believes Martone can be convinced it is legal.
Bolick will get his chance: While Martone rejected the state’s bid to dismiss the NLRB lawsuit, he did give the Goldwater Institute permission to intervene in the case to defend the law.
At the heart of the case is a constitutional measure placed on the 2010 ballot by the Legislature, at the behest of business interests, spelling out that unions can be formed in Arizona only by secret ballot. It was approved by a 61-49 margin.
The move was organized as a preemptive strike against federal legislation that would have allowed union organizers to demand employer recognition once they had cards with the signatures of at least half the workers. That procedure, known as “card check,” would have been an alternative to a process where workers petition for an election by secret ballot.
Bolick said employers fear a card-check system could result in coercion by union organizers, as they would know who does and doesn’t support organizing.
“The effect of card check would be devastating to the private-sector economy,” he said. “The stakes are enormously high.”
As it turned out, the federal legislation faltered. And the chance of approval now, with the House in Republican hands, is virtually nil.
The NLRB filed suit earlier this year anyway, arguing the state was intruding into an area where it is not allowed.
Nancy Cleeland, the agency’s director of public affairs, said there are existing labor laws that allow a union to be formed without an election.
“An employer can say, ‘I believe that you have the majority on your side and I’m going to recognize the union,’ ” she explained. “Our reading of this (Arizona) amendment would make that impossible.”
Martone, a U.S. district court judge for Arizona appointed by President George W. Bush and a former Arizona Supreme Court justice, said there is evidence to back that argument.
He said the National Labor Relations Act guarantees the right of workers “to bargain collectively through representatives of their own choosing.” And he said the law allows employees to choose a representative either through secret election or “voluntary recognition based on other evidence of majority support.”
Martone also noted the law gives the NLRB the power to investigate any complaints of unfair labor practices — a power, he noted, that cannot be affected by any other means.
“The purpose of the National Labor Relations Act is to ensure that its substantive rules are uniformly applied and to avoid conflicts resulting from a multitude of local procedures and attitudes,” the judge wrote. And he said that requirement for uniform application “not only demands that the NLRB’s primary jurisdiction be protected, it also forecloses overlapping state enforcement ... as well as state interference with the exercise of rights” protected by the law.
Bolick noted that Martone’s ruling is not the final word. He said that gives him and the business interests Goldwater represents a chance to argue that there is no conflict between Proposition 113 and the National Labor Relations Act.
He acknowledged that federal law does provide for formation of a union without a secret vote. And he said the Arizona initiative does allow a single employee to demand a secret election, even if the vast majority of coworkers already have signed cards saying they want a union and even if the employer agrees.
But he reads the federal law to say that already is their right — a right that they would lose only if “card check” were approved by Congress.
Bolick also said he will argue there is a First Amendment right of workers to demand a secret ballot.