January 21, 2018

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Federal Court Upholds Arizona’s Union Secret Ballot Amendment

We’ve been covering constitutional amendments passed in four states that guarantee a secret ballot in all union elections. Shortly after the amendments were enacted, the NLRB challenged Arizona’s amendment in court, arguing that it was preempted by the National Labor Relations Act.

The Board brought a facial challenge to the law—which had not yet been invoked in state court—arguing that the state’s attempt to regulate union elections was preempted by the NLRA. In a decision issued yesterday, the United States District Court for the District of Arizona rejected the NLRB’s argument that the amendment was, on its face, preempted by the Act. The court noted that while “it is possible that state litigation invoking Article 2 s. 37 may impermissibly clash with the NLRB’s jurisdiction,” it could not find the amendment preempted on its face. Such a challenge will have to wait until the law is actually applied.

The NLRB almost certainly will appeal this decision, as well as possibly bring an as-applied challenge if and when the amendment is invoked for the first time. Stay tuned.

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About this Author

Justin Keith, Greenberg Traurig, employment lawyer, discrimination legal counsel, reductions in force attorney, wage and hour class actions law

Justin F. Keith represents employers in all areas of labor and employment law, including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues. He is experienced with wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of...