Secret Ballot Laws Could Create Constitutional Conflicts, Judge Says

A federal judge found that an Arizona state constitutional amendment controlling how employees choose a union – the so-called “secret ballot” amendment – may be preempted by the National Labor Relations Act.

Whether the Arizona legislation will conflict with the NRLA will depend on how the amendment is actually used.

U.S. District Court Judge Frederick J. Martone on 5 Sept. 2012 granted a motion to dismiss the case but left the door open for future action.

“It is possible that state litigation invoking (the amendment) may impermissibly clash with the NLRB’s jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices,” he wrote.

Secret Ballot Amendent NRLA Conflict Will Depend On Use

But because the amendment has not yet been applied, Judge Martone wrote, he could not assume that it would conflict with the NLRA.

The court’s decision made clear that federal labor law provides for two ways for employees to choose a union: “A bargaining representative may be voluntarily recognized by an employer if there is convincing evidence of majority support. Alternatively, the NLRB may certify a union as the bargaining representative after it conducts a secret ballot election.”

In January 2011, the NLRB advised Arizona and three other states that recently-adopted secret-ballot amendments conflicted with longstanding federal labor law by restricting the methods by which employees can choose a union.

When no agreement could be reached, the agency filed suit to have the Arizona amendment declared unconstitutional.

The state later told the court that there was no preemption because the state’s “guarantee” of a secret ballot election would only apply if and when the voluntary recognition option is not selected.

“Our objective from the beginning was to ensure that employees protected by our law continue to have the same options for choosing representation that they have always had,” said NLRB Chairman Mark Gaston Pearce. “Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states.”