Nat'l Labor Relations Bd. v. Arizona, CV 11-00913-PHX-FJM

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtFrederick J. Martone
PartiesNational Labor Relations Board, Plaintiff, v. State of Arizona, Defendant.
Docket NumberCV 11-00913-PHX-FJM
Decision Date12 October 2011

National Labor Relations Board, Plaintiff,
State of Arizona, Defendant.

CV 11-00913-PHX-FJM


Dated: October 12, 2011


The court has before it defendant's motion to dismiss (doc. 6), plaintiff's response (doc. 15), and defendant's reply (doc. 16). We also have before us intervenor-defendants' motion to intervene (doc. 7), plaintiff's response (doc. 8), and intervenor-defendants' reply (doc. 11).

I. Background

On November 2, 2010, Arizona voters approved amending the Arizona Constitution to include Article 2 § 37. Article 2 § 37, drafted by the non-profit organization Save Our Secret Ballot, states that "[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation." Az. Const. art. 2, § 37. The amendment became effective on December 14, 2010.

Plaintiff National Labor Relations Board (NLRB), an agency of the United States tasked with the administration of the National Labor Relations Act (NLRA), 29 U.S.C. § 151

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et seq., filed this action on May 6, 2011. Plaintiff first alleges that Article 2 § 37 "requires elections where federal law does not," thus depriving employees in the private sector of "their right to pursue the other options permitted by federal law" to choose representatives and to secure their employers' "voluntary recognition" of those representatives. Compl. at 4. Thus, according to plaintiff, Article 2 § 37 is preempted by operation of 29 U.S.C. § 157, which affords covered employees the right to choose representatives by voluntary recognition. Alternatively, even if Article 2 § 37 merely supports the guarantee of a secret ballot election when the voluntary recognition route is not selected, plaintiff claims that the amendment is preempted by its creation of "a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the" NLRB. Id. Plaintiff seeks a declaratory judgment that Article 2 § 37 is preempted by the NLRA and the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl.2, to the extent that it applies to employers, private employees, and labor organizations subject to the NLRA. Defendant filed a motion to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P. Save Our Secret Ballot and thirty-four Arizona residents subsequently filed a motion to intervene as defendants. Thirty-three residents are in the class of people eligible to organize a union, and one resident is employed as a public school teacher.

II. Standing

Defendant argues that plaintiff lacks constitutional standing. Article III of the Constitution limits federal court jurisdiction to cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130, 2136 (1992). Standing is a "core component" of determining whether a case or controversy exists. Id. at 560, 112 S. Ct. at 2136. The plaintiff bears the burden of establishing all three elements of constitutional standing: (1) the plaintiff suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent," (2) the existence of a "causal connection between the injury and the conduct complained of" that is fairly traceable to defendant's action, and (3) the likelihood that plaintiff's injury can be redressed by a decision in his favor. Id. at 560-61, 112 S. Ct. at 2136.

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To determine whether a sufficient injury in fact exists, the "touchstone" is whether plaintiff "has suffered an injury or threat of injury that is credible," not speculative. Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir. 2010). According to defendant, plaintiff's allegations cannot establish an injury in fact, because Article 2 § 37 neither regulates nor interferes with plaintiff's operations, and there is no allegation of any pending state proceeding to enforce the provision. Thus, defendant argues that plaintiff's opposition to Article 2 § 37 is a generalized grievance not amounting to an injury. Defendant also argues that plaintiff has not alleged a causal connection and cannot establish that declaratory relief would redress any injury. Plaintiff contends that it has alleged the following injuries: 1) the impeding of employee and employer rights to establish a bargaining relationship by means other than a secret ballot election, 2) the impairment of plaintiff's ability to efficiently carry out its mission of protecting NLRA rights, and 3) the grant of jurisdiction to state courts to resolve issues assigned to plaintiff by Congress.

Plaintiff urges that the "permits or requires" language in Article 2 § 37 means that in Arizona, a secret ballot election is now required every time an election is permitted, thus foreclosing an employee's right under Section 7 of the NLRA to engage in voluntary recognition of a bargaining representative via other means. Defendant maintains that the amendment merely guarantees the right to vote by secret ballot once employees have selected to hold an election rather than pursue voluntary recognition. We need not determine the meaning of the amendment to ascertain whether jurisdiction lies, because under either interpretation of Article 2 § 37 plaintiff has sufficiently alleged an injury.

United States labor policy as articulated in the NLRA is, among other things, to eliminate obstructions to the flow of commerce "by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing." 29 U.S.C. § 151. Section 8(f) of the NLRA permits employers in the construction industry to enter into pre-hire agreements with unions. Id. § 158(f). Section 7 guarantees the right of employees "to bargain collectively through representatives of their own choosing." Id.§ 157.

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Employees may choose a representative using either of two methods: (1) a secret ballot election, or (2) voluntary recognition based on other evidence of majority support. See NLRB v. Gissel Packing Co., 395 U.S. 575, 596-97, 89 S. Ct. 1918, 1930-31 (1969). Interference with, restraint of, or coercion with respect to an employee's Section 7 rights is an unfair labor practice. 29 U.S.C. § 158(a)(1).

When creating the NLRB, Congress empowered it "to prevent any person from engaging in any unfair labor practice. . . affecting commerce." 29 U.S.C. § 160(a). If a charge is made that anyone is engaging in an unfair labor practice, the NLRB has the power to issue a complaint, hold a hearing, and order a person to stop the unfair practice. Id. §§ 160(b), 160(c). "This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." Id. § 160(a). The purpose of the NLRA is to ensure that its substantive rules are uniformly applied and to avoid conflicts resulting from a multitude of local procedures and attitudes. NLRB v. Nash-Finch Co., 404 U.S. 138, 144, 92 S. Ct. 373, 377 (1971). To achieve Congress's "overriding interest" that the NLRA be interpreted in a "uniform, nationwide" manner, the Supreme Court has held that the enforcement power of the NLRB, the "centralized expert agency" created by the NLRA, is exclusive. New York Tel. Co. v. New York State Dept. of Labor, 440 U.S. 519, 528, 99 S. Ct. 1328, 1334 (1979). Uniform application of the NLRA "not only demands that the NLRB's primary jurisdiction be protected, it also forecloses overlapping state enforcement of the prohibitions in § 8 of the Act, as well as state interference with the exercise of rights protected by § 7 of the Act." Id. at 528, 99 S. Ct. at 1334-35 (citations omitted). The Supreme Court recognized that the effect of the NLRA was not just to create substantive labor law, but also to establish a central procedural framework for resolving disputes:

Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order.

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Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 76, 346 U.S. 485, 490, 74 S. Ct. 161, 165-66 (1953). The court noted that the same reasoning that prohibits federal courts and state administrative agencies from "assuming control of matters expressly placed within the competence of the [NLRB] also exclude[s] state courts from like action." Id. at 491, 74 S. Ct. at 166. See also Amalgamated Util. Workers v. Consol. Edison Co. of New York, 309 U.S. 261, 264, 60 S. Ct. 561, 563 (1940) ("Congress declared that certain labor practices should be unfair, but it prescribed a particular method by which such practices should be ascertained and prevented. By the express terms of the [NLRA], the [NLRB] was made the exclusive agency for that purpose.").

Article 2 § 37 was approved by Arizona voters and has been added as an amendment to the state constitution. As such, a person who believes that his rights under Article 2 § 37 have been violated may bring an action in Arizona...

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