Saturday, June 4, 2011

NLRB v. Arizona: Does the State’s Secret Ballot Amendment Violate Federal Law?

            On November 2, 2010, Arizona voters approved Proposition 113, the Save Our Secret Ballot Amendment (“Amendment”), which amended Arizona’s state constitution to guarantee the right to secret ballot elections in employee representation.[1]  In response, on May 6, 2011, the National Labor Relations Board (“NLRB” or “Board”), filed a lawsuit against the state in an effort to void the Amendment.[2]  The Board claims that the Amendment conflicts with federal law by eliminating an alternate method of union recognition, the card check method.[3]  Arizona Attorney General Tom Horne purports that the Amendment is valid and in full compliance with federal law.[4]  Ultimately, the constitutionality may be determined by how the state of Arizona enforces this new law.
I.                   BASIS FOR PROPOSITION 113
            The Save Our Secret Ballot Amendment was a response to the Employee Free Choice Act (“Act”).[5]  Federal legislators introduced the Act to both sides of Congress on March 10, 2009.[6]  The Act would have amended existing labor laws to allow a union to be certified if organizers simply collected signatures from a majority of employees, generally referred to as a card check; it also would have revoked employers’ right to force a secret ballot election once a majority of employees had shown their support of a union.[7]  Proponents of the Act believed it would streamline the union certification process by requiring employers to recognize a majority through a card check.[8]  However, some argued the Act would all but eliminate the use of secret ballots and deny workers, and employers, this commonly relied on form of union certification.[9]
            Though the Act was not passed by 111th Congress and it seems unlikely that any similar bill could be passed by the current Republican-controlled House, opponents in pro-business states across the country took preventative action.[10]  Encouraged by Save Our Secret Ballot, a not-for-profit organization, lawmakers in Arizona and three other states, South Dakota, South Carolina and Utah, proposed state constitutional amendments that would guarantee the right to secret ballot elections in deciding upon union representation.[11]  Legislators in each state put the measure before voters by placing it on the states’ ballots in November of 2010.[12]  The ballot measures passed in each state.[13] 
In January of 2011, the NRLB declared the new amendments in Arizona, South Dakota, South Carolina and Utah unconstitutional because they appeared to conflict with federal labor laws.[14]  After negotiations with each state failed, the NLRB filed suit against Arizona and stated its intention to challenge South Dakota’s new law in the future.[15]  Acting General Counsel of the NLRB, Lafe Solomon, expressed concerns that these amendments will be used to prevent the less rigorous card check method and create enormous road blocks to employee organization in these states.[16] 
Attorney General Horne attempted to give assurances to the Board that the state would not interpret its new law in a manner inconsistent with federal law.[17]  However, these assurances have fallen flat considering the fact that the Amendment was intended to trump a proposed federal law.[18]   Horne also stated that he would defend the Amendment even if the state judiciary interpreted it as prohibiting card check certifications.[19]  As a result, Solomon has made it clear that the NLRB will make a strong effort to counter this and similar state laws in an effort to preserve workers’ rights to organize.[20]
III.             DISCUSSION
            As written, the Save Our Secret Ballot Amendment does not conflict with federal law.[21]  The NLRB’s current case against Arizona may not be ripe for a decision by federal courts for that reason.[22]  However, the constitutionality of the new amendment may ultimately be determined by the effect of the law and how it is enforced.  If the Amendment results in a more difficulty certifying unions, democratic legislators may reintroduce the Employee Free Choice Act, which if passed could put the Arizona constitution in direct conflict with federal law.[23]  Furthermore, concerns linger about whether the Amendment was ever intended to provide protection to individual workers or if it was truly proposed to inhibit attempts to organize.[24]
            How the Amendment will be interpreted by judges in Arizona is unclear.  The Amendment guarantees “individuals” the right to vote by secret ballot, however, there is strong reason to believe that an employer could qualify as an “individual” with the right to demand a secret ballot election.[25]  If the federal government ultimately revokes this right from employers, Arizona’s law will be at odds with federal law and, therefore, unconstitutional.[26] 
            Currently federal law authorizes both workers and employers to initiate a secret ballot election.[27]  According to Attorney General Horne, Arizona’s amendment is intended to reinforce existing rights and protect these rights if federal law changes.[28]  While it is not uncommon for state and federal law to overlap, it was the anticipated revocation of employers’ rights by the federal government that prompted legislators to introduce Proposition 113.[29]  Therefore, some infer that Arizona intends to support employers’ rights to secret ballot even if it is in direct opposition to any future revisions of federal labor laws.[30]
            The battle between the NLRB and states with secret ballot amendments, including Arizona, may continue for many years.  The Board’s composition and perspectives on labor law change with each new administration.  At this time, Arizona’s Save Our Secret Ballot Amendment appears to comply with federal law, which may preclude a judicial decision voiding the law.  However, the questionable reasoning for proposing the Amendment and Attorney General Horne’s intent to defend the law regardless of how it is interpreted both give cause for concern.  Arizona and Horne should be prepared for sharp backlash and invalidation if employers use the law to violate federal protections for workers.

[1] Howard Fisher, Labor Board Sues Arizona over New Union Law, Verde Independent, May 10, 2011, (last visited May 25, 2011).  Legislatively-referred constitutional amendments with nearly identical language were included as ballot measures on Arizona, South Carolina, South Dakota and Utah’s November 2, 2010 ballots.  Id.
[2] Complaint for Declaratory Judgment, Nat’l Labor Relations Bd. v. State of Arizona, No. CV11-0913-PHX-FJM (D. Ariz. filed May 6, 2011), available at (last visited May 25, 2011).
[3] Id.  The card check method is also known as the majority sign-up method.  Under this method, union organizers collect workers’ signatures supporting organization.  Once a union receives thirty percent of workers’ signatures, it can demand a secret ballot election.  29 C.F.R. § 102.85 (2010).  In the alternative, the union can wait until it has documented support of fifty percent of workers and demand recognition by the employer, who can then initiate a secret ballot election through the NLRB.  Nat’l Labor Relations Bd. v. Gissel Packing Co., Inc., 395 U.S. 575, 609 (noting employers not required to accept majority through card checks).
[4] See supra note 1 (noting Attorney General Horne’s steadfast support of the Amendment).
[5] Kristin Borns, Understanding Arizona’s Propositions? Prop 113, Arizona State University Morrison Institute for Public Policy, 2010, (last visited May 25, 2011)
[6] H.R. 1409, 111th Cong. (2009); S. 560, 111th Cong. (2009).  See also H.R. 1409: Employee Free Choice Act of 2009, GovTrack, (last visited May 25, 2011) and S. 560: Employee Free Choice Act of 2009, GovTrack, (last visited May 25, 2011) (detailing the path of the Act through Congress).
[7] H.R. 1409, 111th Cong. (2009); S. 560, 111th Cong. (2009).
[8] AFL-CIO, Why Does America Need the Employee Free Choice Act?, Jan. 2009, available at  (last visited May 25, 2011).
[9] See supra note 1 (articulating concerns that employers could lose their right to demand secret ballot elections).  Arizona business owners and other business supporters have expressed concerns that union organizers use coercion to manipulate workers into signing petitions in support of organization.  The anonymity of secret ballot elections would protect individual workers from harassment by overzealous organizers.  See supra note 1 (noting concerns that workers are subject to threats if they oppose efforts to organize).
[10] Employee Free Choice Act of 2009, GovTrack, (last visited May 25, 2011); S. 560: Employee Free Choice Act of 2009, GovTrack, (last visited May 25, 2011).  See also supra note 1 (outlining the motivation behind Proposition 113).
[11] See supra note 5 (noting importance of backing by out-of-state pro-business law supporters).  Save Our Secret Ballot, based out of Las Vegas, Nevada, contributed approximately $800,000 to support the campaign for Proposition 113.  Arizona Save Our Secret Ballot Amendment, Proposition 113 (2010), Ballotpedia,,_Proposition_113_(2010)#cite_note-21 (last visited May 25, 2011) (hereinafter Ballotpedia).
[12] See supra note 1 (discussing November ballot measures).  Arizona’s Save Our Secret Ballot Amendment was initially introduced as Proposition 108.  Proposition 108, if passed, would have required secret ballots in public elections and employee representation.  The Arizona Supreme Court ordered Proposition 108 removed from the ballot because it violated Arizona’s single-subject rule, which only allows one question to be proposed in each constitutional ballot measure.  McLaughlin v. Bennett, 225 Ariz. 351 (2010).  Following the court’s decision, the proposition was altered and recertified as Proposition 113.  See supra note 5 (discussing obstacles to Proposition 113 reaching ballot).
[13] A.Z. Const. art. II, § 37; S.C. Const. II, § 12; S.D. Const. art. VI, § 28; U.T. Const. art. IV, § 8.  In Arizona, over sixty percent of voters supported the measure.  State of Arizona Official Canvas, Arizona Secretary of State, (last visited May 25, 2011).
                Arizona, South Carolina, South Dakota and Utah are among the twenty-two right-to-work states in the United States.  Right-to-work states have laws that prohibit terms in collectively bargaining agreements that would require union membership as a condition of employment.  Right-to-work states are also generally known for additional pro-business laws that are frequently the subject of conflict between union advocates and right-to-work advocates.   See Brett McMahon, Time to Correct Off-Course Labor Board, The Daily Caller, May 10, 2011, (last visited May 25, 2011) (arguing changes to labor laws under Barack Obama’s administration favor unions and harm employers).
[14] Holly Rosencrantz, Secret-Ballot Union Votes in States Challenged by U.S., Bloomberg, Jan. 4, 2011, (last visited May 25, 2011).  The Supremacy Clause of the United States Constitution states that if federal and state laws conflict, the state law will be considered void.  U.S. Const. art. VI, cl. 2.
[15] See supra notes 1 and 2; Al Ortiz, NLRB Targets Arizona and South Dakota in Secret Ballot Lawsuit, Ballot News, Apr. 26, 2011, (last visited May 25, 2011).  Right now, the Board does not plan to pursue claims against South Carolina or Utah in order to preserve its resources.  Ballotpedia, supra note 11.
[16] See supra note 1 (addressing concerns about the effect of the Amendments).
[17] See supra note 1 (stating promises by Attorney General Horne and Arizona lawmakers regarding compliance with federal law have not quelled concerns about the intent and affect the Amendments).
[18] See supra note 1 (indicating the reason Arizona legislators introduced Proposition 113 was to counter the Employee Free Choice Act).  Several news media sources have referred to Arizona as a rogue state due Proposition 113 and the state’s new immigration law, which many believe will result in racial profiling.  See Lexington, Arizona, Rogue State, The Economist, Jul. 28, 2010, (last visited May 25, 2010) (describing outrage over Arizona law enforcement’s new authority to stop people based on reasonable suspicion of illegal status); Ruben Navarrette, Jr. Arizona, a Rogue State at War, CNN, May 27, 2010, (last visited May 25, 2010) (expressing distain for Arizona lawmakers).
[19] See supra note 1 (identifying one basis for the NLRB’s continued efforts to invalidate the Amendment). 
[20] See supra note 2 (outlining basis for NLRB’s claim).
In the past several months, the NRLB has indicated strong interest in exercising its power to increase workers’ rights.  The NLRB recently considered a complaint filed by Dawnmarie Souza against her employer American Medical, which terminated Souza after she posted derogatory comments about her supervisor online.  Souza argued that the company’s policy against criticizing the company or its employees through social media forums violated workers’ rights to engage in concerted activity.  See Robert G. Brody and Sami Asaad, NLRB Breathes New Life into Federal Labor Law; Are You Ready?, Industrial Week, May 11, 2011, (last visited May 25, 2011) (addressing Board’s new direction under Barack Obama’s administration). 
Though Souza and American Medical ultimately reached a settlement, under George W. Bush’s administration, it is unlikely that idea of such a claim would have been entertained at all.  See id. (noting the effect in changes in administration); Gerald F. Lutkus, Are We Really Surprised?  NLRB Takes on Facebook Comments, TLNT, Nov. 16, 2010, (last visited May 25, 2011) (addressing the change in composition of the NLRB under the Obama administration and new perspective of labor laws accompanying the change). 
[21] A.Z. Const. art. II, § 37.  The new law states:
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.
[22] See Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967) (articulating Court’s basis for determining if claim is ripe to be adjudicated and not contingent on events that have not occurred).
[23] Compare A.Z. Const. art. II, § 37 with H.R. 1409, 111th Cong. (2009) and S. 560, 111th Cong. (2009). 
[24] See supra note 8 (describing concerns about influence of Big Business on employee rights and benefits).
[25] In 2010, the Supreme Court determined that corporations are “citizens” within the meaning of the First Amendment.  Citizens United v. Fed. Election Comm’n, 130 S.Ct. 876 (2010).  Considering the origins of Proposition 113, it seems a strong possibility that the Arizona courts may apply a similarly liberal interpretation to the word “individual.”  If not, the law is truly unnecessary, as federal legislators have not proposed any laws that would limit the rights of workers to initiate a secret ballot.
[26] See supra note 14 (explaining the Supremacy Clause).
[27] See supra note 3 (detailing methods of union certification).
[28] See supra note 1 (remarking that Horne’s assurances of federal compliance should be sufficient to alleviate concerns held by Acting General Counsel Solomon and other opponents) .
[29] See supra note 5 (identifying that the purpose of Proposition 113 was to counter the Employee Free Choice Act).
[30] See supra notes 2 and 8 (detailing bases for criticism of secret ballot amendments).