We’ve been covering constitutional amendments passed in four states that guarantee a secret ballot in all union elections. Shortly after the amendments were enacted, the NLRB challenged Arizona’s amendment in court, arguing that it was preempted by the National Labor Relations Act.

The Board brought a facial challenge to the law—which had not yet been invoked in state court—arguing that the state’s attempt to regulate union elections was preempted by the NLRA. In a decision issued yesterday, the United States District Court for the District of Arizona rejected the NLRB’s argument that the amendment was, on its face, preempted by the Act. The court noted that while “it is possible that state litigation invoking Article 2 s. 37 may impermissibly clash with the NLRB’s jurisdiction,” it could not find the amendment preempted on its face. Such a challenge will have to wait until the law is actually applied.

The NLRB almost certainly will appeal this decision, as well as possibly bring an as-applied challenge if and when the amendment is invoked for the first time. Stay tuned.

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced…

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced with wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.

Justin is a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin’s practice encompasses all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010).