Nat'l Labor Relations Bd. v. Arizona
| Decision Date | 05 September 2012 |
| Docket Number | CV 11-00913-PHX-FJM |
| Parties | National Labor Relations Board, Plaintiff, v. State of Arizona, Defendant, and Save Our Secret Ballot; Joyce McClain; Jose Barraza; R. Scott Brooks, Jr.; Sandra Brown; Dominic T. Drobeck; Rafael Barraza; Jamie Franklin; Ahelardo Garcia; Angelo Granata; Justin Helwig; Jose Hernandez; Raul Hernandez; Reyes Inzunza; Derek Kaiser; Enrique Lara, Jr.; Benny P. Martinez; Gabriel Mendez; Eleuterio Miguel; Chad A. Mullenax; Roger S. Myllenbeck; Adalberto Pena Parra; Tyson Petrie; Jeff Phillips; Shawn Riegle; Daniel Rusch; David Santellano; Roy C. Smith; Kelvin L. Steffen; Johnnie Teller, III; Marco Teran; Steven R. Tulloss; Israel Vargas; Harvey Wietting; Raeleen Kasinec, Intervenor-Defendants. |
| Court | U.S. District Court — District of Arizona |
The court has before it the intervenor-defendants' motion for certification (doc. 53), plaintiff's response (doc. 56), and the intervenor-defendants' reply (doc. 58). We also havebefore us the National Labor Relation Board's ("NLRB") motion for summary judgment ("MSJ") (doc. 49) and separate statement of facts (doc. 50), an amicus brief from United Food and Commercial Workers, Local 99 and Arizona AFL-CIO in support of the NLRB's MSJ (doc. 57), the intervenor-defendants' response (doc. 60), the State of Arizona's ("the State") response (doc. 61), and the NLRB's reply (doc. 63). In addition, we have the intervenor-defendants' MSJ (doc. 51) and separate statement of facts (doc. 52), the State's MSJ (doc. 54) and separate statement of facts (doc. 55), the NLRB's consolidated response to both motions (doc. 59) and controverting statement of facts (doc. 59-1), the intervenor-defendants' reply (doc. 62), and the State's reply (doc. 64).
The facts are undisputed. The NLRB is the agency tasked with administration of the National Labor Relations Act ("NLRA"). See 29 U.S.C. §§ 151, 153. On November 2, 2010, a majority of Arizona voters approved adding Article 2 § 37 to the Arizona Constitution.1 It 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." Id. To date, Arizona courts have not addressed Article 2 § 37.
The NLRB asks for a declaration that Article 2 § 37, to the extent that it applies to employers, private employees, and labor organizations subject to the NLRA, is preempted because it creates a state forum to protect employee representation rights, a task which Congress assigned exclusively to the NLRB.2 The intervenor-defendants and the State each cross-move for summary judgment.
The Arizona Supreme Court may answer questions of Arizona law certified to it by a district court "which may be determinative of the cause then pending in the certifying court," and for which there is no controlling state court precedent. A.R.S. § 12-1861. Under federal law, it is "manifestly inappropriate to certify a question" if there is no uncertain state law question whose resolution may affect the federal claim. Stenberg v. Carhart, 530 U.S. 914, 945, 120 S. Ct. 2597, 2617 (2000) (quoting Houston v. Hill, 482 U.S. 451, 471, 107 S. Ct. 2502, 2514 (1987)).
The intervenor-defendants move to certify the following question to the Arizona Supreme Court: "[d]oes Ariz. Const. Art. II, § 37 create a parallel state enforcement mechanism for protecting employee representation rights in addition to such enforcement mechanisms that may exist under the [NLRA], 29 U.S.C. § 151, et seq.?" Mot. for Certification at 1. The intervenor-defendants argue that the resolution of this question may be outcome-determinative, as the NLRB's sole argument for preemption will evaporate if the Arizona Supreme Court holds that Article 2 § 37 does not create a cause of action. Even if the court holds that it does, the intervenor-defendants argue that the court's articulation of the scope and nature of the cause of action will permit us to better assess the arguments raised by the parties here.
Although there is no state court precedent addressing whether Article 2 § 37 may be enforced in state courts, ample precedent in Arizona shows that litigants have brought lawsuits to enforce state constitutional rights, including lawsuits to enforce Article 2 rights. See, e.g., Chavez v. Brewer, 222 Ariz. 309, 320, 214 P.3d 397, 408 (Ct. App. 2009) (); Aida Renta Trust v. Maricopa Cnty., 221 Ariz. 603, 607, 212 P.3d 941, 945 (Ct. App. 2009) (); Bailey v. Myers, 206 Ariz. 224, 230, 76 P.3d 898, 904 (Ct. App. 2003) (); Mecham v. Gordon, 156 Ariz. 297, 303, 751 P.2d 957, 963 (1988) (). Accordingly, the proposed question is not one for which there is no precedent at all.
Moreover, we disagree that the question proposed by the intervenor-defendants is determinative of the question before us. Although Article 2 § 37 does not on its face create a state court remedy, the parties here have all agreed (at least, for the purposes of these motions) that litigants may invoke Article 2 § 37 in state court proceedings. Indeed, the intervenor-defendants argue that Article 2 § 37 is not preempted, notwithstanding the existence of a state court action. Moreover, whether the Arizona Supreme Court might adopt a narrowing construction of the amendment or more narrowly define the scope of a cause of action is not crucial to our resolution of this action. This is because the NLRB has brought a facial challenge to Article 2 § 37, which can only succeed if it shows that "no set of circumstances exists under which the [amendment] would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987). According to the NLRB, no matter what interpretation of Article 2 § 37 the Arizona Supreme Court adopts, it is preempted because "the right to a secret ballot election has long been defined by the NLRA." Resp. to Mot. for Certification at 7.
We have the duty to decide federal questions when they are presented to us. See Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 889-90 (9th Cir. 2011) (citation omitted). At its heart, this action involves a quintessential federal question: whether a state law is preempted by operation of the NLRA and the Supremacy Clause. See Local 926, Int'l Union of Operating Eng'rs, AFL-CIO v. Jones, 460 U.S. 669, 675-76, 103 S. Ct. 1453, 1458 (1983) (). Given that this is a facial challenge to Article 2 § 37, that there is state precedent supporting the premise that Arizona provides a judicial forum for the vindication of state constitutional rights, and considering the delay that would result from certification, we conclude that certification of the intervenor-defendants' question is unnecessary.
By design, federal and state governments operate independently. Their dual existence, however, creates the possibility that federal and state law may clash. Arizona v. United States, __ U.S. _, 132 S. Ct. 2492, 2500 (2012). Under the Supremacy Clause, Congress may preempt state law. Id. Absent an express preemption provision, federal law preempts state law when Congress determines that it must exclusively regulate a particular field, or when state law impermissibly conflicts with federal law. Id. at 2500-01. We begin with the assumption that the state's police power is not superseded, "unless that was the clear and manifest purpose of Congress." Id. at 2501 (citation omitted).
The NLRA states that it is "the policy of the United States to. . . protect[] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing." 29 U.S.C. § 151. Under § 7 of the NLRA, employees possess "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," and have the right to refrain from such activities. Id. § 157. The NLRB is empowered "to prevent any person from engaging in any unfair labor practice." Id. § 160(a). Section 8 of the NLRA establishes that it is an unlawful labor practice for employers "to interfere with, restrain, or coerce employees" in their exercise of § 7 rights. Id. § 158(a)(1). One example of an unfair labor practice is an employer's refusal to bargain with the bargaining representative certified by the NLRB. NLRB v. Fin. Inst. Emps. of Am., Local 1182, 475 U.S. 192, 198, 106 S. Ct. 1007, 1010 (1986); see also 29 U.S.C. § 158(a)(5).
The NLRA provides two paths for choosing a bargaining representative. 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. See Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 306-307, 95 S. Ct. 429, 432-33 (1974). Section 9 of the NLRA addresses elections and questions of representation. When questions regardingrepresentation arise, an employee, a labor organization, or an employer may file a petition with the NLRB. 29 U.S.C. § 159(c)(1). If the NLRB determines that there is a question of representation, it is instructed to "direct an election by secret ballot" and "certify the results thereof." Id. Once the NLRB has held an election and certified the results, the...
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