The NLRB’s Ironic Lawsuit Against Arizona

posted at 12:30 pm on May 14, 2011 by Jazz Shaw

While much of the nation’s attention in matters concerning the National Labor Relations Board (NLRB) has been rightly focused on the affairs of Boeing in South Carolina, the board has also been busy elsewhere. Last Friday they filed a lawsuit against the State of Arizona over the not yet enforced Proposition 113. In case you missed it, this legislation seeks to protect the rights of workers to have a secret ballot when deciding if they wish to unionize. The Arizona Republic is out this week with an excellent editorial which shreds the cover story being used to defend this action.

By suing Arizona for passing a law that has yet to be enforced in any way, the National Labor Relations Board is showing whose interests matter most in Washington, D.C., these days.

It isn’t the interests of Arizona workers that matter with this extraordinary lawsuit. And it certainly is not the best interests of employers, which the NLRB is using as cover to justify its lawsuit.

Rather, the NLRB lawsuit over Arizona’s Proposition 113 is a vestige of the administration’s close ties to Big Labor, which remains committed to the dream of radically reforming federal labor law in its favor . . . and, conversely, crushing any impediments erected by the various states that stand in the way of that mission.

As the editorial goes on to point out, there is a disturbing element of irony in all this. The idea of the secret ballot as related to employer – employee relations dates back nearly a century to the earliest days of union organization. During a time when the need for labor unions was significantly greater than today, workers frequently avoided being identified as being “pro-union” for fear of reprisal. The secret ballot allowed them the ability to express that desire without immediate risk of losing their livelihood.

How strange that the NLRB, ostensibly a group specifically created to establish a clean, level playing field for employers and employees in such negotiations, seeks to eliminate that same right. And why would they do that? Because the tide has turned and the unions who supposedly exist to protect the workers have become – at least in some cases – a bigger threat to their security than the companies who employ them. The fear that some workers may choose to avoid the union label has their former protectors now seeking to strip away the rights that their grandfathers fought for.

Another question is addressed in the editorial which was a bit less obvious at first. What standing does the NLRB have to bring such a suit in the first place?

It may be a fair question whether Prop. 113 has the potential to transgress that right of employers. But the federal government should not be in the business of launching legal fishing expeditions.

The NLRB has no business second-guessing the constitutionality of state laws, unless and until there is some real person – employer or employee – who is, in fact, harmed by that law.

Even if there are problems with this state law, shouldn’t any law suit wait until the legislation is actually being enforced and the results are seen? And should that come to pass, would it not make more sense to have such a suit brought either by an employer or a worker who has experienced the actual damage from any potentially flawed law?

This is a preemptive play by the NLRB to put the brakes on any opportunity for real choice by workers. And when the only available path to achieve that end involves stripping workers of a fundamental right such as a secret ballot, the mask is truly pulled away.

This post was promoted from GreenRoom to HotAir.com.
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Gee, it’s like I get this eerie feeling that the Obama administration just doesn’t like Arizona (or for that matter anyone else that opposes Obama). It’s almost like AZ is on some sort of… enemy list! *GASP*

Weebork on May 14, 2011 at 12:32 PM

Defund this rogue NLRB until Congress reigns it in legislatively.

petefrt on May 14, 2011 at 12:38 PM

Weebork on May 14, 2011 at 12:32 PM

When he starts putting up real estate to collateralize our foreign (Chinese) debt, TX and AZ will be the first to go. Heh, for that matter, only blue states will be safe.

petefrt on May 14, 2011 at 12:43 PM

I look forward to Jan Brewer embarrassing the White House again

And this lawsuit will go nowhere.

Whats next – suing “right to work stats”… good luck with that. The desperation for this admin and their goons to manipulate laws and the Constitution reeks of absolute desperation and madness.

The National Labor Relations Board has nothing to so with a States right to create state-employee laws. Its why we have seperate state by state laws – including union friendly states.

Considering Card Check failed, never got off the ground – what exactly are they suing AZ for (aside from the clear enemy of the WH)? Forget the fact the Prop 113 hasnt gone into action yet – what exactly is the problem they are suing for?

Last time I checked, sour grapes isnt a legal term, though Payoloa and violation of Seperation of Powers are…

Odie1941 on May 14, 2011 at 12:45 PM

Abuse of power run amuck. Obama’s specialty. He didn’t study the constitution for nothing…specializes in how to undercut the constitution.

Is it 2012 yet?

tinkerthinker on May 14, 2011 at 12:46 PM

I do not like the feds using tax money to support clearly political causes.

JIMV on May 14, 2011 at 12:49 PM

Abuse of power run amuck. Obama’s specialty. He didn’t study the constitution for nothing…specializes in how to undercut the constitution.

Is it 2012 yet?

tinkerthinker on May 14, 2011 at 12:46 PM

You give the idiot too much credit. He didnt learn anything, nor does he grasp the 105 Intro to Constitutional Law material.

It takes some brains to know your way around the Constitution in order to “undercut it” – and he is 40-50 IQ points short of that feat.

Odie1941 on May 14, 2011 at 12:54 PM

Why is it ironic? It’s just down-the-line Leftism.

rrpjr on May 14, 2011 at 1:01 PM

I’m starting to think this is the Obama Arizona Doctrine.

Obama has singled out one state he feels is a “rogue” state and is going to hammer them over and over in an attempt to break them.

If he can break Arizona to give in to federal overreach, then he knows it will set legal precedent to walk over any other state that attempts to “get out of line”.

ButterflyDragon on May 14, 2011 at 1:06 PM

The Goonions have to have the Feds to join them in their thuggery. That’s all they know. It’s the power of persuasion or the persuasion of power.

cartooner on May 14, 2011 at 1:07 PM

Hasn’t SD been sued as well? Why is it only AZ that gets the attention? I thought the suit was filed the same time the one against AZ was filed. I know they have 4 times the number of electoral votes as we do in SD, but still.

duggersd on May 14, 2011 at 1:10 PM

The dude is a kenite

True_King on May 14, 2011 at 1:12 PM

It just seems Obama and his alinskyites are doing all they can to have blood shed in the streets of America. They want to come against the people? Bring it on.

wepeople on May 14, 2011 at 1:12 PM

Sigh, so much to undo. . . .

karra on May 14, 2011 at 1:16 PM

Why oh why isn’t crr6 here explaining to us proles why this is wholly legal, commonplace, and the right thing to do?

Patrick S on May 14, 2011 at 1:19 PM

Wow, that Craig Becker dude has some really weirdly malformed ears. Look at the photo. Now try not to stare at his ears. Can’t do it, can you? Just sayin…

bofh on May 14, 2011 at 1:27 PM

Why oh why isn’t crr6 here explaining to us proles why this is wholly legal, commonplace, and the right thing to do?

Patrick S on May 14, 2011 at 1:19 PM

Shes busy working on validating the Boeing Exec hearsay quotes…

Odie1941 on May 14, 2011 at 1:29 PM

Talk about a punchable face.

I’m not advocating anything mods, just an observation.

Machiavelli Hobbes on May 14, 2011 at 2:05 PM

I think every right to work state needs to pass an anti card check law. Let obozo sue them all and lose in 2012 for abuse of power and over-reach.

The NLRB needs to be neutered.

karenhasfreedom on May 14, 2011 at 2:09 PM

Let me guess; the NLRB wants an ‘injunction’, barring implementation. Then it will drag the case out for years – or until Barry gets thrown out of office.

GarandFan on May 14, 2011 at 2:12 PM

Considering Card Check failed, never got off the ground – what exactly are they suing AZ for (aside from the clear enemy of the WH)?

They’re alleging the AZ law is preempted. FWIW, it probably is.

crr6 on May 14, 2011 at 2:20 PM

ARIZONA IS THE HOT-BED OF ISSUES PERTINENT TO CITIZENS EVERYWHERE.

Today, a large group of Arizona tea party organizations, including Tea Party Patriots affiliates, jointly rejected a recently passed bill, SB1402, authorizing the state to issue “Tea Party” license plates and distribute sale proceeds to “Tea Party organizations” by a government appointed and supervised board. The very foundation of the Tea Party Movement stresses the importance of less government, not more, and we will not compromise this principle to justify requests and acceptance of monies generated by a state governmental agency.

Trying to get this bill passed, the establishment politicos only went to get the support of a few, hand-chosen Tea Party groups. It seems the entrenched, elite Republican establishment is trying to mess with Arizona’s independent-minded citizens and wreak havoc by pitting Tea Party groups against eachother — just like they are trying to do in this state. What a completely moronic, pathetic waste of time, resources and energy.

What, there are no other pressing issues with which GOP party leadership has to handle? Then, let me suggest one: FIND ME ONE, DAMN PRESIDENTIAL CANDIDATE WORTH VOTING FOR!

It is as the blog-father Glenn Reynolds/Instapundit writes: Yes, we have the worst political class by far in American history.

Mutnodjmet on May 14, 2011 at 2:22 PM

Secure the borders.

Outlaw public unions.

Give Richard Trumpka a good swift kick in the teeth.

ardenenoch on May 14, 2011 at 2:31 PM

Obviously, 0bama thinks we made a mistake getting rid of King George’s administration!!!

Consequently, the Zero is trying to get us back to the “good old days” when rulers could issue edicts, subjects had no right to ask questions, and government had absolute control of you and your property.

landlines on May 14, 2011 at 2:46 PM

They’re alleging the AZ law is preempted. FWIW, it probably is.

crr6 on May 14, 2011 at 2:20 PM

By what?

ButterflyDragon on May 14, 2011 at 3:20 PM

They’re alleging the AZ law is preempted. FWIW, it probably is.

crr6 on May 14, 2011 at 2:20 PM

Says our resident legal expert, the one without a license to practice law.

Know what’s also preempted by federal law? San Francisco’s policy of refusing to hold for ICE criminals suspected of being in the country illegally. But amazingly enough, they’re not being sued for their infringement on federal immigration law. Gee, I wonder why . . . .

AZCoyote on May 14, 2011 at 3:24 PM

Force them into unions and watch the sabotage/production ratio skyrocket.

Don L on May 14, 2011 at 3:42 PM

By what?

ButterflyDragon on May 14, 2011 at 3:20 PM

The NLRA.

Know what’s also preempted by federal law? San Francisco’s policy of refusing to hold for ICE criminals suspected of being in the country illegally.
AZCoyote on May 14, 2011 at 3:24 PM

How do you figure? The Feds can’t force State LEO’s to enforce federal law. (See Printz)

crr6 on May 14, 2011 at 3:50 PM

Eliminating the secret ballot for workers to protect their rights reminds me of how Communist Dictatorships of the Proletariate supposedly put the workers and peasants in charge but did so by taking away the right to vote for anyone who wasn’t a member of the Communist party. How did that work out for the workers and the peasants the communists said they were putting in charge?

KW64 on May 14, 2011 at 4:17 PM

Arizona … ignore the lawsuit and declare the NLRB illegitimate.

darwin on May 14, 2011 at 5:27 PM

What Obama and his minions can’t pass legislatively, they are implementing through edict, using the bloated bureaucracy like a club.

Don’t just defund it, but eliminate the NLRB. It is extra-constitutional. Labor is the jurisdiction of the states anyway.

DeathB4Tyranny on May 14, 2011 at 5:54 PM

The secret ballot allowed them the ability to express that desire without immediate risk of losing their livelihood.

My job was unionized back in 1960 an this was our main worry. We received cards wanting to indicate whether we wanted to join the union or not but since no one contacted us in person we didn’t know who was behind the sending of the cards. The secret ballot is imperative to assure there will be no reprisals to the employee from either the union or the company.

Herb on May 14, 2011 at 7:56 PM

The secret ballot is imperative to assure there will be no reprisals to the employee from either the union or the company.

Herb on May 14, 2011 at 7:56 PM

So I suppose otherwise it would become coercive and cause duress… people wouldn’t vote their conscience, they’d vote according to pressure.

ericdijon on May 14, 2011 at 9:53 PM

The NLRA.

crr6 on May 14, 2011 at 3:50 PM

I don’t know much about it, but I thought the NLRA had a specific provision in it stating secret ballot elections for unionization?

How would Arizona’s law preempt federal law if they’re identical?

ButterflyDragon on May 14, 2011 at 11:39 PM

Pretty easy to see the reasoning here.

Amnesty + card check = a million new SEIU members in Arizona.

rockmom on May 15, 2011 at 12:00 AM

I see Obama has brought the corruption of Chicago politics to Washington… well, I’ve seen that for quite a while… this is just more proof.

sadatoni on May 15, 2011 at 12:01 AM

I don’t know much about it, but I thought the NLRA had a specific provision in it stating secret ballot elections for unionization?

ButterflyDragon on May 14, 2011 at 11:39 PM

Section 9(a) of the Act says the employees’ exclusive bargaining rep shall be the union “designated or selected” by a majority of the employees, and neither 9(a) nor 8(a)(5) specify how that rep is to be chosen. Since the beginning of the NLRA it’s been black letter law that employers can choose to recognize unions based on card-check without an election.

So yeah, I’d be pretty surprised if this law weren’t preempted, just like a EFCA-esque state card-check law would be.

crr6 on May 15, 2011 at 12:05 AM

crr6 on May 15, 2011 at 12:05 AM

Yeah, if the employer chooses to recognize the union. If the employer doesn’t choose to recognize the union, then it’s put to a secret ballot.

ButterflyDragon on May 15, 2011 at 5:18 AM

Gee, it’s like I get this eerie feeling that the Obama administration just doesn’t like Arizona (or for that matter anyone else that opposes Obama). It’s almost like AZ is on some sort of… enemy list! *GASP*

Weebork on May 14, 2011 at 12:32 PM

Democrats really thought they were going to start winning in Arizona, right up to the Presidential level. Much of that was based on keeping the border porous and passing amnesty and card check. They then planned to unionize all the newly-minted citizens and get millions more dollars into their campaign coffers via the SEIU.

Then Jan Brewer came along and messed up all their plans. But they are not going down withotu a fight.

What is happening in Arizona is a microcosm of Democrats’ plans for America. They want to turn the entire country into Mexico, a failed semi-socialist state where the ruling class – all Democrats, of course – enjoys fabulous wealth while everyone else is dirt poor.

rockmom on May 15, 2011 at 8:46 AM

I think every right to work state needs to pass an anti card check law. Let obozo sue them all and lose in 2012 for abuse of power and over-reach.

The NLRB needs to be neutered.

karenhasfreedom on May 14, 2011 at 2:09 PM

I think this would be a sound idea. Since there is no federal statute behind card check, the supremacy clause shouldn’t apply. The NRLB’s legality is constitutionally dubious because it has executive, legislative and judicial powers rolled into one entity which as Robert Alt says:

That is no doubt the sort of — ahem, the “spirit” of — separation of powers and checks and balances that the Founders had in mind when they wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny.”

cartooner on May 15, 2011 at 12:24 PM

Obama promised the Union card check so they could force unions on everyone. You don’t sign a card you get a friendly visit, like Al Capone did with the bootlegging in the 20′s. That is where the Union learned their thug tactics. Obama will give them card check through the NLRB (they are an independent agency LOL LOL) by them making a rules change. The Congress and Senate will never approve card check but what Obama wants Obama gets or he steals it, extorts it, or just does it anyway because he knows that nobody is going to challenge him and be labeled a Racist.

old war horse on May 15, 2011 at 12:33 PM

Yeah, if the employer chooses to recognize the union. If the employer doesn’t choose to recognize the union, then it’s put to a secret ballot.

ButterflyDragon on May 15, 2011 at 5:18 AM

Right, an employer can refuse to recognize a union after they show a card majority, at which point it’s the union’s responsibility to file an election petition.

The AZ law changes that though, because it mandates an NLRB election even if the employer has voluntarily agreed to represent the union after a showing of a card majority.

crr6 on May 15, 2011 at 2:16 PM

The AZ law changes that though, because it mandates an NLRB election even if the employer has voluntarily agreed to represent the union after a showing of a card majority.

crr6 on May 15, 2011 at 2:16 PM

But I would think someone would need to show harm. And if you have a majority of employees who want it, then a secret ballot election is not going to cause harm.

If it’s truly a majority, then it will still remain a majority after the election.

ButterflyDragon on May 15, 2011 at 3:34 PM

But I would think someone would need to show harm.

The Feds have standing to challenge the law if it’s preempted by a federal statute; they don’t need a private party to show an injury in fact.

And if you have a majority of employees who want it, then a secret ballot election is not going to cause harm.

Yes, it will.

If it’s truly a majority, then it will still remain a majority after the election.

ButterflyDragon on May 15, 2011 at 3:34 PM

Sadly, no that’s often not the case. Elections are usually held a month or two after a petition is filed, which gives the employer plenty of time to run a coercive anti-union campaign in order to whittle down the number of union supporters to a minority.

crr6 on May 15, 2011 at 3:47 PM

… which gives the employer plenty of time to run a coercive anti-union campaign in order to whittle down the number of union supporters to a minority.

OMG !!
Can’t have THAT !!

pambi on May 15, 2011 at 4:50 PM

OMG !!
Can’t have THAT !!

pambi on May 15, 2011 at 4:50 PM

Exactly. The point of an NLRB election is to allow employees to exercise their free choice, and it’s difficult if not impossible for that to occur if an interested party with total physical and communicational control over the workplace runs an anti-union campaign for 6-8 weeks prior to the election.

crr6 on May 15, 2011 at 5:53 PM

Exactly. The point of an NLRB election is to allow employees to exercise their free choice, and it’s difficult if not impossible for that to occur if an interested party with total physical and communicational control over the workplace runs an anti-union campaign for 6-8 weeks prior to the election.

crr6 on May 15, 2011 at 5:53 PM

You know as well as I do that it’s flat out illegal for an employer to run any type of campaign.

When I was a manager in a call center we had a union attempt to come in an unionize the workforce.

We were given explicit instructions on how to answer questions regarding the what may occur.

We were not allowed to say anything to the employees one way or the other about whether it was a good idea or a bad idea.

The final outcome was the union was not able to get their foot in the door. But it had nothing to do with management or the company running any type of campaign.

That would break the law and the unions would have a hey day with it.

ButterflyDragon on May 15, 2011 at 6:07 PM

You know as well as I do that it’s flat out illegal for an employer to run any type of campaign.

No, absolutely not. That couldn’t be more wrong.

When I was a manager in a call center we had a union attempt to come in an unionize the workforce.

We were given explicit instructions on how to answer questions regarding the what may occur.

We were not allowed to say anything to the employees one way or the other about whether it was a good idea or a bad idea.

The final outcome was the union was not able to get their foot in the door. But it had nothing to do with management or the company running any type of campaign.

Maybe your call center entered an employer neutrality agreement (basically a private contract between the employer and the union whereby the employer agrees to maintain neutral in the run-up to the election). But yeah, it’s perfectly legal and in fact protected under the NLRA for an employer to express anti-union views (See Section 8(c)).

That would break the law and the unions would have a hey day with it.

ButterflyDragon on May 15, 2011 at 6:07 PM

Like I said, an anti-union campaign certainly wouldn’t break the law as long as it’s within certain (relatively generous) legal boundaries. Even still, it often makes sense for an employer to break the law by running an overtly coercive anti-union campaign, because (given weak and ineffective NLRB remedies) the economic benefit of breaking the law to prevent unionization outweighs the expected costs of any sanctions imposed by the Board for committing an unfair labor practice.

crr6 on May 15, 2011 at 6:17 PM

maintain neutral

remain neutral*

crr6 on May 15, 2011 at 6:19 PM

crr6 on May 15, 2011 at 6:17 PM

I distinctly recall that as a member of management, I could not say anything that would even hint at the idea that voting for or against a union would impact any employee’s employment standing in any way whatsoever.

Which is why we said nothing.

Maybe the company as a whole can make their views on unionization clear, but I know as a member of the management team I could not do so.

Perhaps our Director and HR head were being overly cautious, but I could have sworn they went over some type of law saying we couldn’t engage employees on the matter.

ButterflyDragon on May 15, 2011 at 7:41 PM

I distinctly recall that as a member of management, I could not say anything that would even hint at the idea that voting for or against a union would impact any employee’s employment standing in any way whatsoever.

Well yeah that’d probably be a threat (e.g. “if you support unionization you’ll lose seniority”). But there’s nothing wrong with saying you oppose unionization and explaining why.

Perhaps our Director and HR head were being overly cautious, but I could have sworn they went over some type of law saying we couldn’t engage employees on the matter.

ButterflyDragon on May 15, 2011 at 7:41 PM

That’s interesting. Like I said, it’s possible they entered a neutrality agreement, or maybe you’re right and they were just being overly cautious.

crr6 on May 15, 2011 at 8:26 PM

Exactly. The point of an NLRB election is to allow employees to exercise their free choice, and it’s difficult if not impossible for that to occur if an interested party with total physical and communicational control over the workplace runs an anti-union campaign for 6-8 weeks prior to the election.

crr6 on May 15, 2011 at 5:53 PM

Right, the union is just looking out for the employers and want people to exercise their choice without coercion…

Which is why unions oppose secret ballots? It’s laughable that you expect people to believe that unions don’t currently and haven’t historically resorted to using their own strong-arm tactics to coerce employees to be pro-union. Unions love freedom of choice so much that they continually oppose right to work laws.

gwelf on May 16, 2011 at 8:05 AM