Wyatt Employment Law Report

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Federal Court Rejects NLRB Challenge to State “Secret Ballot” Law

By Edwin S. Hopson

On September 5, 2012, U.S. District Court Judge Frederick J. Martone ruled that an Arizona state constitutional amendment addressing how employees choose a union was not on its face preempted by the National Labor Relations Act.  The NLRB had filed suit in federal court in Phoenix, Arizona in 2011, challenging the Arizona provision which essentially compelled union elections to be by secret ballot.  The NLRB contended that the so-called “secret ballet amendment” conflicted with longstanding federal labor law on how employees choose a union.  The judge in dismissing the NLRB’s lawsuit stated: “[i]t is possible that state litigation 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 practices.”  However, while leaving open the possibility of a meritorious future challenge, the judge declined to assume the amendment to the Arizona constitution would conflict with the NLRA since the amendment to the had not yet actually been applied.

Judge Martone also stated: “[a] bargaining representative may be voluntarily recognized by an employer if there is convincing evidence of majority support. Alternatively, the NLRB may certify a union as the bargaining representative after it conducts a secret ballot election.”

According to an NLRB press release, the state of Arizona had “represented to the court that there was no preemption because the state’s ‘guarantee’ of a secret ballot election would only apply if and when the voluntary recognition option is not selected.”

In that same press release, NLRB Chairman Mark Gaston Pearce states: “Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states.”

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Federal Judge Blocks New Idaho State Law Which Would Have Limited Unions

By Edwin S. Hopson

On July 6, 2011, the Associated Press and Times News Magic Valley in Boise, Idaho, reported that a federal district judge in Idaho issued an injunction on July 1, 2011, blocking implementation of a part of a new Idaho law called the Fairness in Contracting Act that sought to limit the power of labor unions, ruling the measure conflicted with federal law.  The law, among other things, would have prevented unions from using union dues to help union contractors submit winning bids on construction projects.

The state law in question was passed during the 2011 session of the Idaho Legislature and was to have gone into effect on July 1.  It was passed despite an opinion from the Idaho Attorney General who found the proposed legislation illegal. According to the Associated Press, “U.S. District Judge B. Lynn Winmill issued a preliminary injunction on Friday after unions sued, agreeing they had a good chance of succeeding.”  The unions had argued the law, which prohibited  “job-targeting programs” using union dues, was unconstitutional and preempted by the federal National Labor Relations Act.

The unions also challenged the portion of the that prohibited “project labor agreements” that require contractors to sign agreements with unions as a condition of winning state government construction jobs.  However, the unions did not request that Judge Winmill block that portion of the new law.