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District Court Dismisses NLRB Secret Ballot Amendment Challenge

Recently four (4) states (Arizona, South Carolina, South Dakota and Utah) enacted secret ballot elections amendments to their state constitutions designed to protect an employee's right to vote by secret ballot for employee representation. The amendments guarantee when local, state or federal labor law permit or require elections, designations, or authorizations for employer representation, an employee's right to vote by secret ballot.

Immediately upon enactment, the National Labor Relations Board (NLRB) took steps to strike down these amendments arguing they were preempted by the National Labor Relations Act (NLRA) which provides workers' rights to voluntary recognition. Specifically, the NLRB argued that under Federal law workers may choose a union by two methods: (1) voting in a secret ballot election conducted by the NLRB; or (2) persuading an employer to voluntarily recognize a union after a majority of workers sign authorization cards. The NLRB argued that state amendments requiring a secret ballot election prohibits use of the voluntary recognition option and interferes with the exercise of a well established Federally protected right.

A U.S. District Court judge in Arizona found that the constitutional amendment for Arizona may be preempted by National Labor Relations Act, but noted it would depend significantly on how the amendment was applied. Specifically, Judge Frederick J. Martone granted Arizona's Motion to Dismiss the Complaint filed by the NLRB, but left the door open for future claims identifying the possibility that State legislation 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 practice. The Court noted, due to the lack of application of the amendment to date, it could not assume that the amendment would conflict with the NLRA.

Relying on the general rules of preemption, originally set forth in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959), the Court identified that when it is clear or may fairly be assumed that the activities which a state purports to regulate are protected by Section 7 of the NLRA or constitute an unfair labor practice under Section 8, due regard for the Federal enactment requires that state jurisdiction must yield. The U.S. District Court noted that it was unable to conduct the required balancing test due to the wide variety of possible practical circumstances in which the constitutional amendments requirements may or may not overlap with of the NLRA pertaining to designation and selection of required representative; thereby triggering the enforcement of Section 7 or Section 8 rights.

This will most likely not be the final word on this issue. One could certainly expect that a case regarding a voluntary recognition will be brought before the Court under challenge. Once the state's authority is invoked in an actual case, the Court will not necessarily strike down the amendment, but will need to conduct preemption balancing test to determine if the Federal law would trump the state's interests.

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