Court delivers blow to NLRB & union election efforts

US District Court Delivers Another Blow to NLRB
By Todd Lyon and Valerie Berg
By Barran Liebman,
Oregon Law Firm

A United States District Judge in Arizona upheld a state constitutional amendment on September 5, 2012, which requires secret ballot elections if workers want to organize a labor union.

During the height of the Free Choice Act’s consideration, at least two states, Arizona and South Carolina, passed constitutional amendments protecting employers from the Free Choice Act’s requirements. Among other things, the Free Choice Act would have required employers to bargain with unions upon collecting a majority of workers’ signatures without first holding a secret ballot. The National Labor Relations Board (NLRB) sued to overturn the Arizona constitutional amendment, arguing that the Arizona constitutional amendment was preempted and interfered with the NLRB’s power to protect union workers’ rights.

The U.S. District Court for the District of Arizona ruled in favor of Arizona finding that the NLRB failed to demonstrate that the constitutional amendment would interfere with the NLRB’s power under the National Labor Relations Act (NLRA). The court ruled that the NLRB’s position was speculative and the right to secret ballot election does not dictate who holds elections or when and how they should occur. However, the court left open the door for future challenges once the amendment is applied.

This decision delivers another blow to the NLRB’s continuing efforts to expand traditional labor rights and all but confirms that the previously defeated 2009 federal Employee Free Choice Act (Free Choice Act) is dead. Additionally, NLRB v. Arizona shows that the NLRB’s attempts to expand labor rights will be scrutinized and appropriately overruled.

This decision is just one of several recent defeats for the NLRB in which the courts have reigned in the Board. Such instances have included the following:

• On May 14, 2012, the D.C. District Court determined the NLRB did not have a quorum for its “quickie” election rule, which would have sped up the union election process. Chamber of Commerce v. NLRB, Case No. 11-CV-2262 (D.D.C. 2012).

• On April 17, 2012, D.C. District Court enjoined the NLRB’s posting requirement. National Ass’n of Mrfs. v. NLRB, 192 LRRM 2999 (D.D.C. 2012).
NLRB Cases and Actions on the “watch-list” include:

• The NLRB found on January 6, 2012, that mandatory arbitration agreements cannot prohibit class claims. The case is presently on appeal. D.R. Horton Inc. v. NLRB, Case No. 12-60031 (5th Cir. 2012).

• President Obama’s recess appointments in January 2012 of three NLRB members without Senate approval have been challenged and are awaiting a final decision. Noel Canning v. NLRB, Case No. 12-1115 (D.D.C. 2012).

• In November 2011, the Representation Fairness Restoration Act (S. 1843) was introduced in the Senate to legislatively reverse the NLRB’s August 26, 2011 complete overhaul of bargaining unit composition case law as stated in Specialty Healthcare and Rehabilitation Center, 357 NLRB No. 83 (2011). In the NLRB’s groundbreaking case, a party who attempts to expand the petitioned-for unit must show ‘an overwhelming community of interest.’

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