Posted by AzBlueMeanie:
"I warned you at the time that the Prop. 113 'secret ballot' referendum that the legislature sneaked onto the ballot in a special session, after the "Save Our Secret Balot" ("SOS") initiative, Prop. 108, was ruled ineligible by the court, was preempted by federal law. NLRB to sue Arizona over Prop. 113 "secret ballot" referendum.
Here is the proposition explanation of Prop. 108 113 that I provided at the time. Updated: The 2010 Arizona Ballot Propositions:
The next proposition is Prop. 108, the "Republicans hate unions" special session produced Arizona Save Our Secret Ballot Amendment, Proposition 108. This is more of the wingnut opposition to the Employee Free Choice Act currently sidetracked in Congress, which would permit "card check" certification of a union. Other than the Affordable Care Act, no other legislative proposal has had so much misinformation and disinformation spread about it. The original version of this proposition which was invalidated by the courts was the handiwork of Sen. Jonathan Paton, mercifully defeated in his race for Congress. Leave it to a former lobbyist for the predatory payday loan industry to come up with such a misleadingly-named proposition that was defectively drafted.
Union organizing generally involves a two-step process. First, enough employees have to sign a card saying that they want union representation to hold an NLRB sanctioned election. Then there is a statutory election period, followed by a "secret ballot" vote either for or against union representation. The "card check" proposal simply would dispense with the need for an NLRB sanctioned election if a majority of employees sign the card saying they want union representation. There would still be an NLRB sanctioned election with a "secret ballot" vote if 60% of employees want it. The "card check" proposal is already dead for this legislative session in Congress so, once again, this is yet another solution in search of a non-existent problem.
The "rationale" behind this proposition is that unions intimidate workers into signing the cards for union representation. This proposition will prevent "union intimidation" by requiring a "secret ballot" in all union elections. "Payday Paton" would have you believe that employers never engage in threats, intimidation and retaliatory employment actions to dissuade employees from voting for a union. Ha! that never happens. This is why these actions are illegal under the National Labor Relations Act. Unfortunately, Republican administrations have rarely enforced the law or fined employers for unlawful intimidation and retaliation.
I should have also added that an employer can simply recognize a union as a bargaining unit without any election under federal labor law. This appears to be the critical provision, in addition to the legal principle of federal preemption, to Judge Frederick Martone in his initial ruling in this NLRB case. (Note the anti-union spin in this headline by the East Valley Tribune). Judge hands Arizona setback in dispute over union ballots – East Valley Tribune:
A federal judge will allow the National Labor Relations Board to pursue its bid to void an anti-union initiative approved last year by Arizona voters.
Judge Frederick Martone said the evidence presented so far shows that the measure illegally encroaches on the area of relations between labor and employers. And that, he said, interferes with the intent of Congress to have federal law be the “central procedural framework for resolving disputes.”
Martone’s ruling, released Thursday, does not void the state law. It suggests, though, the judge believes that Arizona cannot come up with its own laws on how unions can be formed.
* * *
Nancy Cleeland, the [NLRB]’s director of public affairs, said there are existing labor laws that allow a union to be formed without an election.
“An employer can say, ‘I believe that you have the majority on your side and I’m going to recognize the union,’ ” she explained. “Our reading of this (Arizona) amendment would make that impossible.”
Martone, a U.S. district court judge for Arizona appointed by President George W. Bush and a former Arizona Supreme Court justice, said there is evidence to back that argument.
He said the National Labor Relations Act guarantees the right of workers “to bargain collectively through representatives of their own choosing.” And he said the law allows employees to choose a representative either through secret election or “voluntary recognition based on other evidence of majority support.”
Martone also noted the law gives the NLRB the power to investigate any complaints of unfair labor practices — a power, he noted, that cannot be affected by any other means.
“The purpose of the National Labor Relations Act is to ensure that its substantive rules are uniformly applied and to avoid conflicts resulting from a multitude of local procedures and attitudes,” the judge wrote. And he said that requirement for uniform application “not only demands that the NLRB’s primary jurisdiction be protected, it also forecloses overlapping state enforcement … as well as state interference with the exercise of rights” protected by the law.
This is the legal principle of federal preemption that the secessionist Tea-Publican Arizona legislature rejects under the long discredited pre-Civil War "states' rights" theory of nullification. The backers of this defective proposition are being represented by Clint Bolick of the Golwater Institute. Initially it was Attorney General Tom Horne.
I swear our lawless Tea-Publican Arizona legislature enacts these unlawful and unconstitutional provisions just to make work for their right-wing think tank lawyers to milk legal fees out of the taxpayers of Arizona in their attempt to relitigate issues that are well-settled law. This ought to be treated as a scandal in its own right. I deeply resent my tax dollars being used to pay legal fees to the Goldwater Institute.
Here is the press release from the Arizona AFL-CIO:
Judge Delivers Boost to Arizona Workers' Rights Case
Arizona AFL-CIO Praises Court Decision Allowing NLRB Suit to Proceed
Phoenix, AZ – On Thursday, Federal Judge Frederick J. Martone rejected a request by the State of Arizona to dismiss a suit filed by the National Labor Relations Board (NLRB) which challenges a 2010 state constitutional amendment (Proposition 113) that restricts the rights of Arizona workers to form unions through majority sign-up, or card check.
Rebekah Friend, Executive Director and Secretary/Treasurer of the Arizona AFL-CIO, issued the following statement on Judge Martone's ruling:
"Judge Martone's ruling affirms our belief that the state amendment is an unconstitutional attack on the rights of Arizona workers.
“We knew from the start that this anti-union amendment was superseded by federal law, and I am pleased to see that Judge Martone will allow the NLRB to continue its defense of workers’ rights in Arizona. Attorney General Tom Horne knows as well that this law is unconstitutional and cannot stand, but continues to defend it on behalf of his corporate campaign supporters.
“Arizonans deserve a path to unionization that is fair and free of coercion. But because corporate CEOs want to make it harder for workers to bargain for better wages and benefits, they mounted yet another political attack on our rights at work with this unlawful constitutional amendment banning unionization by majority sign-up.
“The big business groups and anonymous, out-of-state donors who backed this law never intended to protect workers’ freedoms. After all, these same groups pushed the repeal of collective bargaining rights in Wisconsin and Ohio. The ballot measure that attempted to ban card check was merely a political stunt that took advantage of Arizona’s referendum process to promote a national anti-worker agenda.
“More than ever, Arizonans need better wages and benefits, job security and safer workplaces. The Arizona AFL-CIO urges business groups to stop their political attacks on unions and work together with us to restore the American middle class.”
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