Friday, September 7, 2012
As we've discussed in the past, a handful of states passed laws that purported to require a secret-ballot election to unionize a workforce. I say "purported" because, in the face of preemption challenges, the Attorney Generals of the states said that the measures only require secret ballots if there is an election ordered. I noted before that this basically says that the measures have absolutely no practical impact.
Acting on a preemption suit filed by the NLRB against Arizona, a district judge granted the state summary judgment. Before you get excited one way or another--or trust media reports that Arizone "won" the case, the judge's reasoning was basically that the states' interpretation of the law would, if actually followed, avoid preemption because it mirrors the NLRA. Thus, the judge stated that a preemption challenge is unripe but that the NLRB could file an as-applied challenge later if one of the states tried to apply the law differently--i.e., tried to prevent voluntary recognition. The operative portion of the decision states that:
Although Article 2 § 37 guarantees the "right to vote by secret ballot for employee representation," it does not, on its face, address how, when, or by whom these elections are conducted. Without an actual state court proceeding addressing Article 2 § 37, we are left to speculate how state litigation concerning the right to a secret ballot may arise, and precisely what conduct might be challenged. However, given that the NLRA places the responsibility on the NLRB to conduct secret ballot elections, the outcome of which is only judicially reviewable in the context of an unfair labor practice proceeding, we conclude that state court proceedings invoking Article 2 § 37's guarantee of secret ballot elections will at least arguably overlap with the NLRB's jurisdiction under § 8 of the NLRA to address unfair labor practices.
Accordingly, the decision does nothing to undermine the NLRB's argument that any state attempt to cut-off an NLRB-approved means of unionization would be preempted. Indeed, the judge emphasized that both voluntary recognition and elections are valid means to select a union.