Claiming preemption by federal law, the National Labor Relations Board filed suit Friday to void a voter-approved state constitutional amendment spelling out that unions can be formed in Arizona only by secret ballot.
The lawsuit, filed in federal court, says the measure mandating elections by affected workers would eliminate the option that now exists for employers to recognize a union without having an election. That, according to attorneys for the NLRB, runs afoul of federal law.
More to the point, the lawyers say that in cases of such a conflict, federal statute prevails.
But Arizona Attorney General Tom Horne said nothing in the state constitutional amendment conflicts with the federal law. Instead, he argued, it merely says that if a company chooses not to voluntarily allow a union to be formed, then only a secret vote of the employees can force the issue.
The measure, on the ballot in November as Proposition 113, was pushed by business interests as a preemptive strike against federal legislation which 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.
Clint Bolick of the Goldwater Institute, who helped push the issue, said the fear of employers is that a card check system could result in coercion by union organizers, as they would know who does and does not support organizing.
As it turned out, the federal legislation faltered. And the chances of approval now, with the House in Republican hands, is virtually nil.
But Arizona voters, by a 61-49 margin, approved the state constitutional change. And Nancy Cleeland, director of public affairs for the NLRB, said that, even with the failure of the federal legislation, the amendment runs afoul of existing labor laws which already allow a union to be formed without an election simply by having cards with the consent of half the workers.
“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.”
Horne said that’s not the case, saying the federal law and the Arizona constitutional provision can work together.
But Horne also said he would defend the Arizona amendment even if it would preclude the alternate method of forming a union.
“I would ask you to ask your readers to consider how they would feel if their secret ballot was taken away from them when they elect their congressmen?” he said. “And then consider how workers would feel in what is really the same situation — even more so, because they have more at stake.”
No date has been set for a hearing.
The lawsuit against Arizona could just be the first of several.
Lafe Solomon, the NLRB’s acting general counsel wrote to Horne and his counterparts in South Dakota, South Carolina and Utah warning that the provisions, virtually identical in all four states, were in conflict with the National Labor Relations Act. Solomon followed up last month with letters threatening legal action.
The NLRB, in a press release Friday, said a similar lawsuit will be filed against South Dakota “in the coming weeks,” with litigation possible against the other two states in the future.