January 25, 2022

Volume XII, Number 25

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January 25, 2022

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January 24, 2022

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NLRB Initiates Litigation Against the State of Arizona on Amendment Limiting Method for Choosing Union representation

The Acting General Counsel of the National Labor Relations Board today submitted for filing a complaint in U.S. District Court in Phoenix seeking a declaration that an Arizona constitutional amendment conflicts with federal labor law and is therefore preempted by the Supremacy Clause of the U.S. Constitution.

The state constitutional amendment, passed by Arizona voters on November 2, 2010, limits the means by which employees can choose union representation to one option – a secret ballot election.

In January 2011, Acting General Counsel Lafe Solomon advised the Attorneys General in Arizona and three other states with similar amendments – South Carolina, South Dakota and Utah – that the new provisions were in conflict with the National Labor Relations Act, and that the Board had authorized the Acting General Counsel to pursue litigation if necessary.

After attempts to negotiate a resolution failed, Mr. Solomon on April 22, 2011 advised the Attorneys General of Arizona and South Dakota that he would soon proceed with litigation in those states, while reserving the right to sue the remaining states at a later time. A complaint is expected to be filed in South Dakota in the coming weeks.

Under the 1935 National Labor Relations Act, private-sector employees have two ways to choose a union: They may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means.

The state amendments prohibit the second method and therefore interfere with the exercise of a well-established federally-protected right.

As the complaint submitted to the Court today explains,

“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.”

For more information on the state amendments and litigation, please see this NLRB Fact Sheet.

© Copyright 2022 National Labor Relations BoardNational Law Review, Volume I, Number 130
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About this Author

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

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