On September 5, 2012, U.S. District Court Judge Frederick J. Martone ruled that an Arizona state constitutional amendment addressing how employees choose a union was not on its face preempted by the National Labor Relations Act.  The NLRB had filed suit in federal court in Phoenix, Arizona in 2011, challenging the Arizona provision which essentially compelled union elections to be by secret ballot.  The NLRB contended that the so-called “secret ballet amendment” conflicted with longstanding federal labor law on how employees choose a union.  The judge in dismissing the NLRB’s lawsuit stated: “[i]t is possible that state litigation invoking (the amendment) may impermissibly clash with the NLRB’s jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices.”  However, while leaving open the possibility of a meritorious future challenge, the judge declined to assume the amendment to the Arizona constitution would conflict with the NLRA since the amendment to the had not yet actually been applied.

Judge Martone also stated: “[a] bargaining representative may be voluntarily recognized by an employer if there is convincing evidence of majority support. Alternatively, the NLRB may certify a union as the bargaining representative after it conducts a secret ballot election.”

According to an NLRB press release, the state of Arizona had “represented to the court that there was no preemption because the state’s ‘guarantee’ of a secret ballot election would only apply if and when the voluntary recognition option is not selected.”

In that same press release, NLRB Chairman Mark Gaston Pearce states: “Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states.”