In keeping with NLRB Acting General Counsel Lafe Solomon’s recent announcement, the NLRB has formally filed a complaint (pdf) against the state of Arizona regarding its constitutional amendment that seeks to preserve the right to secret ballot elections.

In November 2010, voters in Arizona approved a provision to the state constitution that reads: “[t]he 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.” Similar measures were approved in Utah, South Dakota, and South Carolina.

The five-page complaint filed in an Arizona federal court seeks a declaration that the Arizona amendment – to the extent it applies to private employees, employers, and labor organizations subject to the National Labor Relations Act – is preempted by the NLRA and the Supremacy Clause of the United States Constitution. The complaint alleges that:

The NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative where, for example, employees successfully petition their employer to voluntarily recognize their designated representative on the basis of reliable evidence of majority support, in accordance with Sections 7 and 9 of the NLRA . . . or where a construction union seeks recognition from a construction employer in accordance with Section 8(f) of the NLRA.

According to the agency, because the state amendment guarantees the right to secret ballot elections, it “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,” and is therefore in conflict with federal law. The complaint further alleges that the amendment “creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned” to the Board.

Because the Arizona amendment’s wording is nearly identical to that approved in South Dakota, it is anticipated that the NLRB will soon file a similar lawsuit in that state. The agency has reserved its right to pursue litigation in Utah and South Carolina as well, although the attorneys general in all four states have vowed to “vigorously defend” against any such action. Acting GC Solomon initially stated that he would refrain from filing any lawsuit in the hope that the matter could be “resolved without the necessity of costly litigation.” In a letter (pdf) dated April 22, however, Solomon wrote that “in view of the seeming impossibility of settling this dispute without litigation,” he had directed his staff to file the instant lawsuit.

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