Monday, May 9, 2011
The National Labor Relations Board filed suit last week against the State of Arizona challenging its constitutional provision that guarantees the right to vote by secret ballot for employee representation. The complaint alleges that Article 2, Section 37, of the Arizona Constitution--approved by Arizona voters just last November--is preempted by the National Labor Relations Act.
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.
But the National Labor Relations Act permits (but does not require) secret ballot elections only in certain circumstances. Otherwise, employees have the right to organize and to bargain collectively "through representatives of their own choosing." 29 U.S.C. Sec. 157.
The NLRB argues that the state constitution clashes with the Act:
Because Article 2, Section 37, of Arizona's constitution provides that a secret ballot election is "guaranteed" wherever federal law "permits or requires elections" (emphasis supplied), Article 2, Section 37, requires elections where federal law does not and thereby deprives private sector employees of their right to pursue the other options permitted by federal law to designate, select, or authorize representatives of their own choosing and to secure their employers' voluntary recognition of such representatives.
We posted on other states' efforts to limit collective bargaining rights here.