On September 5, 2012, the United States District Court for the District of Arizona granted the State’s motion for summary judgment in NLRB v. State of Arizona. The ruling upheld, for the time being, a recently enacted amendment to Arizona’s constitution that essentially requires any elections for union representation to take place by secret ballot. This amendment ostensibly makes it more difficult for employees to form a union by means other than an election (for instance the “card check” method that would have been available under the failed Employee Free Choice Act).
Court Saves Question of Preemption for Another Day
The NLRB challenged the constitutional amendment, arguing that the National Labor Relations Act governs union representation rights and proceedings and that Arizona’s amendment should be preempted by federal legislation. In its decision, the Court agreed that the amendment might be preempted, but held that it could not rule on the preemption issue until an actual dispute arose that demonstrated how Arizona would apply the law. In other words, the Court entertained the possibility that Arizona would enforce the law in a way that did not infringe upon the NLRB’s jurisdiction and decided upon a “let’s wait and see” approach.
While this decision is not the outcome that the NLRB or the labor movement had hoped for, it is a far cry from the “smack-down” being touted by anti-union forces. On the contrary, the Court left the door wide open for striking down the law on the basis of preemption should Arizona attempt to use the law to override the rights guaranteed by the NLRA or the enforcement powers of the NLRB.