Prop. 113 ‘Secret Ballot’ Lawsuit Filed

Posted by AzBlueMeanie:

Does the Arizona legislature not have legal staff to review the legality and constitutionality of measures before they enact them? Or do they simply not care and actually want to go to court as a means of full employment for lawyers from right-wing think tanks like the Goldwater Institute? Doesn't this constitute legislative malpractice?

The latest legal imbroglio arises out of the "we hate unions" ideology of the GOP. In 2010, there was the Save Our Secret Ballot (SOS) Initiative, Prop. 108, meant to "preempt" union organizing by the "card check" method that anti-union forces believed the Democratic Congress would pass — "card check," by the way, died in committee.

The SOS Initiative contained a fatal error: supporters were too clever by half and applied it to all elections in Arizona, not just union organizing elections. This violated Arizona's "single subject" rule for initiatives and referendums, and organized labor successfully argued to the court that the initiative was unconstitutional and could not be referred to voters.

Governor Brewer immediately called a special session and her "we hate unions" GOP legislature passed a "secret ballot" legislative referendum, Prop. 113, in the eleventh hour just before the filing deadline to refer matters to the ballot. Prop. 113 was approved by voters in November 2010.

The federal Department of Labor immediately notified the state, "not so fast."

Federal labor law preempts more restrictive state labor laws; federal law sets the floor. States can enact higher standards, such as Arizona's minimum wage law enacted by a citizen's initiative, but states cannot enact laws more restrictive than federal labor law. That would constitute the long-discredited theory of "nullification" of federal law, something with which our Tea-Publican legislature has a serious problem.

The National Labor Relations Board (NLRB) enagaged in negotiations with the state of Arizona to attempt to resolve this matter, but as previously reported, negotiations broke down and the NLRB announced plans to file a legal challenge to Prop. 113. That lawsult was filed on Friday. Federal regulators sue Arizona over union amendment:

Claiming preemption by federal law, the National Labor Relations Board filed suit Friday to void a voter-approved state constitutional amendment spelling out that unions can be formed in Arizona only by secret ballot.

The lawsuit, filed in federal court, says the measure mandating elections by affected workers would eliminate the option that now exists for employers to recognize a union without having an election. That, according to attorneys for the NLRB, runs afoul of federal law.

More to the point, the lawyers say that in cases of such a conflict, federal statute prevails.

The NLRB is absolutely correct. Federal labor law preempts Arizona's attempt to impose a more restrictive labor law.

[T]he amendment runs afoul of existing labor laws which already allow a union to be formed without an election simply by having cards with the consent of half the workers.

“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.”

Under current federal law, "card check" is the first step in the union organizing process. If a majority of employees express an interest in representation by a union (i.e., by completing a card), the employer can recognize the union, or has the option to demand a "secret ballot" election. Also, if more than 30% of employees demand it, there is a "secret ballot" election. No one is being denied a secret ballot election under current federal law. The proposed federal "card check" law that died in committee would have eliminated the employer's right to demand a "secret ballot" election, but it preserved the right of employees to demand one.

Of course our ethically challenged Attorney General, "Banned For Life By The SEC" Tom Horne, said "nothing in the state constitutional amendment conflicts with the federal law. Instead, he argued, it merely says that if a company chooses not to voluntarily allow a union to be formed, then only a secret vote of the employees can force the issue." Mr. Horne fundamentally misreads the federal labor law at issue.

And back to full employment for lawyers of right-wing think tanks like the Goldwater Institute: "Clint Bolick of the Goldwater Institute, who helped push the issue, said the fear of employers is that a card check system could result in coercion by union organizers, as they would know who does and does not support organizing."

Encouraging legislative malpractice to enact measures that are clearly unlawful or unconstitutional so that the Goldwater Institute can bill for attorneys fees and costs later in defending these clearly unlawful measures seems to me to be a legal ethics question. I do not know whether anyone has ever pursued this ethics question with the State Bar of Arizona. Maybe it's time they did.