Last November, Arizona voters amended their constitution to say that a secret ballot on issues of employee representation is a fundamental right that “shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.”
Voters in South Carolina, South Dakota, and Utah approved similar constitutional amendments. National Labor Relations Board (NLRB) Acting General Counsel Lafe E. Solomon has taken the position that these state constitutional amendments conflict with provisions of the National Labor Relations Act (NLRA) that do not require ballots but allow for voluntary recognition of union employee representation.
In April 2011, Solomon informed the state attorneys general that the NLRB would proceed with lawsuits challenging the constitutional amendments in Arizona and South Dakota, but would not immediately pursue the South Carolina and Utah amendments. Arizona Attorney General Tom Horne responded by saying that Arizona workers deserve the protection of a secret ballot in voting for their representation.
On May 6, 2011 the NLRB filed suit in Arizona federal court seeking a declaration that the amendment is preempted by the NLRA. NLRB v. Arizona (D. Az. 2011). Employers will have to wait and see if there is any impact on the secret ballot protections.