Lawsuit Challenges Arizona Labor Union Law

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Goldwater Institute attorney Clint Bolick and labor attorney Stan Lubin debate the merits of National Labor Relations Board v. State of Arizona. This lawsuit filed by the NLRB would invalidate a voter-approved amendment to Arizona’s constitution that guarantees use of a secret ballot when organizing a labor union.

Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons. Arizona's jobless rate fell two tenth of a percent last moment it's now at 9.1%. Most of the hiring came in education, with the start of school. Also of note, construction added jobs for the seventh straight month. Voters last year approved an amendment to the state constitution that guarantees the right to a secret ballot in union organizing votes. But the national labor relations board went to court, saying the voter-approved initiative is unconstitutional. Here to talk about the case is Clint Bolick, director much litigation for the Goldwater Institute, an intervener in the lawsuit, and Phoenix attorney Stan Lubin who represents the Arizona AFL/CIO. Good to have you both here. Thanks for joining us

Stan Lubin: Thank you.

Clint Bolick: Thanks for having us.

Ted Simons: Stan, I want to start with you. Why this lawsuit? Has anyone been harmed? What's going on here?

Stan Lubin: Yes, people are harmed. When you have a constitutional amendment or a law like the one that was passed, it creates an atmosphere where people will not use -- enforce their rights or stand up for their rights. More importantly, it interferes with the operations of the federal law by limiting the means by which people can select the unions of their choice. In addition, it takes away the ability of -- grants the ability to individuals who might not like what's going on to file their own lawsuits in state court. And you can end up I think about four or five states have passed this kind of law, you can end up with four or five different kinds of approaches by each state, multiply it by 50 and you can see what kind of damage it does. All of that hurts the administration of a uniform policy nationally, which is what the national labor relations act is all about.

Ted Simons: Interfering, meddling, pick the term, employee labor relations. Agree?

Clint Bolick: Absolutely not. The national labor relations act has protected the right to secret ballot informing unions for 75 years. The Obama administration, addicted to its union support base, vowed to get rid of that. And to replace it with a system that is ripe with coercion. And so the voters of Arizona overwhelmingly voted to protect the right to secret ballot. It is a right that people don't have to exercise, but if they want to do it, we are protecting it in this law. And it's unfortunate that the Obama administration has nothing better to do than sue Arizona every week it seems, and especially to take away the right to secret ballot.

Ted Simons: The idea of secrecy being the best way to show genuine worker sentiment, how do you feel about that?

Stan Lubin: Clint and I went around about this on while back on this show. The fact is, the statute does not require a secret ballot. It says that any means by which a union can demonstrate majority support is valid. The problem is when you go to the secret ballot election; it takes about six weeks to set it up. And in that period of time, management hires these union busting outfits that come in from out of state, all across the country, and basically intimidate, coerce, etc., and harass the employees into basically scaring them away from their union. The bullet points to some kind of harassment of the unions - The fact of the matter is - for every single incident of union harassment found by the labor board over the last 75 years, there have probably been a thousand, and I'm not exaggerating, incidents where management has done that during the election run-up. That's why it is important to have this alternative means.

Ted Simons: Harassment -- .

Stan Lubin: It's been there forever. The case Goss back into the '50s supporting the right of unions to be organized, employees to organize their unions by virtue of voluntary recognition or other means- cards, in addition to secret ballots.

Ted Simons: The idea of coercion being a two-way street.

Clint Bolick: Oh, absolutely it is. And the right to secret ballot is what prevents coercion by both sides. In fact over a dozen Democratic members of Congress wrote to the Mexican government a few years ago urging them not to get rid of the right to secret ballot to prevent employer coercion.

Ted Simons: I don't want to go too far on that aspect. The judge who allowed this case to continue said among other things that congressional attempt from where he sits is at the federal law should be the framework, federal law by way of Congress, should be the framework for settling labor employee disputes. This looks like it leaps over that.

Clint Bolick: Well, no. And it's important to recognize that the arguments have not been engaged yet. Basically the state asked the judge to dismiss the lawsuit, he declined to do that. And he granted the Goldwater Institute the right to intervene on behalf of workers who don't want to lose their right to secret ballot. So the question of federal preemption, does the federal law basically sweep away the state law has yet to be argued. And if all you have to do is look, for example, at the recent employer sanctions decision by the U.S. Supreme Court to see that the courts will not sweep aside state protections very lightly.

Ted Simons: Why shouldn't Arizona or other states have their own laws regarding unions and voting for unions in this case?

Stan Lubin: Because the federal government has passed a law, the Congress passed a law in the '30s that basically says it will be one federal policy towards organizing into unions across the country. I know that in the '40s and '50s in Wisconsin there were a number of attempts by the state of Wisconsin to pass their own laws allowing different things to be done. One of which was -- required a secret ballot. Every one of those laws was struck down by the Supreme Court systematically because it interfered with the operation of the labor relations act. That's the problem with the Arizona law. It interferes with the ability and authority to enforce this law uniformly, which will include the right to have a union without necessarily going through a secret ballot.

Ted Simons: NLRB, if this goes through, this is OK and everyone starts putting up their own laws, their own rules, what's the NLRB for?

Clint Bolick: If you look at the NLRB website, you'll find that what it is supposedly for is to protect the right of workers to exercise their freedom of conscience. They are violating that. They are running roughshod over the very law they're supposed to be enforcing. So the same people who are predicting our defeat here also predicted the defeat of Arizona's employer sanctions law, but what's similar about them is that both of them promote the underlying objectives of the federal law.

Ted Simons: Do you agree, promote the underlying objectives of the federal law?

Stan Lubin: You know, the argument that Clint just made is exactly the same argument that has been rejected by the U.S. Supreme Court on at least a dozen occasions. And I don't agree with him. The fact is that it will -- it is not -- the purpose of the law is not to protect the right of a secret ballot. The purpose of the law is to allow employees to choose or not choose whether or not they want to be part of the union. Whether they want to be represented by a union. That is the one purpose of the law, the second purpose is to require employers to deal with them in a fair and honest way should they choose to join a union. And that's the two purposes of the act that the NLRB is required and authorized to enforce.

Clint Bolick: Stan, how many federal cases have recognized the right of secret ballot as the preferred means of union recognition? A lot of them. So this is going to be a feisty battle, and I think the Supreme Court is going to side with the workers.

Stan Lubin: It's not a question of the preferred means, it's a question of the fact that the Arizona law superimposes a requirement for that in all cases. It's going to scare employers out of recognizing voluntarily even when they know all their employees or most of them want the union, it's going to authorize individual employees who are angry at the fact that -- I'm sorry, who are upset at the fact a union represents them that doesn't want them to file a lawsuit, and throw into chaos the idea of bargaining until that lawsuit is resolved one or two years down the road. That is not what this -- what Congress wanted to see happen. And the NLRB for the first time in 75 years is finally recognizing that in a bigger way than they have in the past.

Ted Simons: Critics say this is just a way to protect business from folks who want to form a union. That's the bottom line.

Clint Bolick: Actually, it's about protecting the right of conscience of workers when given the free choice, repeatedly workers have rejected unions. Why? Because the unions have been wiping out their jobs, wiping out their industries.

Stan Lubin: That's nonsense.

Ted Simons: How is this not a free choice without the secret ballot, it's not a free choice?

Clint Bolick: Basically what happens, the alternative is you get tapped on the shoulder and asked to sign a card. That is the kind of system you have in Russia, not in the United States.

Ted Simons: Shoulders being tapped out there?

Stan Lubin: Shoulders will always be tapped out, there but at least they're not being hit by a hammer by the antiunion crusaders that come into the state, charge a couple hundred thousand dollars to the employer and beat up on the employees. They fire them, it takes two or three years to get their jobs back, they don't get a decent remedy. That's the alternative to what this law is all about.

Ted Simons: You think the Supreme Court winds up with this?

Stan Lubin: Probably not. I don't think it will get there.

Ted Simons: You think so, don't you?

Clint Bolick: I do. Federalism is the defining legal issue in the age of Obama, the U.S. Supreme Court is very interested in these issues.

Ted Simons: Gentlemen, great discussion. Good to have you here.

Stan Lubin: Thanks for having us.

Clint Bolick: Thank you.

Clint Bloick:Goldwater Institure attorney; Stan Lubin:labor attorney;

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