Thursday, June 02, 2011

Arizona, South Dakota, South Carolina, Utah; the Federal Courts; and the Constitution


“The NLRB’s Ironic Lawsuit Against Arizona
posted at 12:30 pm on May 14, 2011 by Jazz Shaw

While much of the nation’s attention in matters concerning the National Labor Relations Board (NLRB) has been rightly focused on the affairs of Boeing in South Carolina, the board has also been busy elsewhere. Last Friday they filed a lawsuit against the State of Arizona

over the not yet enforced Proposition 113. In case you missed it, this legislation seeks to protect the rights of workers to have a secret ballot when deciding if they wish to unionize. The Arizona Republic is out this week (May 12, 2011—my addition) with an excellent editorial

which shreds the cover story being used to defend this action.

‘By suing Arizona for passing a law that has yet to be enforced in any way, the National Labor Relations Board is showing whose interests matter most in Washington, D.C., these days.

It isn’t the interests of Arizona workers that matter with this extraordinary lawsuit. And it certainly is not the best interests of employers, which the NLRB is using as cover to justify its lawsuit.

Rather, the NLRB lawsuit over Arizona’s Proposition 113 is a vestige of the administration’s close ties to Big Labor, which remains committed to the dream of radically reforming federal labor law in its favor . . . and, conversely, crushing any impediments erected by the various states that stand in the way of that mission.’

As the editorial goes on to point out, there is a disturbing element of irony in all this. The idea of the secret ballot as related to employer—employee relations dates back nearly a century to the earliest days of union organization. During a time when the need for labor unions was significantly greater than today, workers frequently avoided being identified as being ‘pro-union’ for fear of reprisal. The secret ballot allowed them the ability to express that desire without immediate risk of losing their livelihood.

How strange that the NLRB, ostensibly a group specifically created to establish a clean, level playing field for employers and employees in such negotiations, seeks to eliminate that same right. And why would they do that? Because the tide has turned and the unions who supposedly exist to protect the workers have become—at least in some cases—a bigger threat to their security than the companies who employ them. The fear that some workers may choose to avoid the union label has their former protectors now seeking to strip away the rights that their grandfathers fought for.

Another question is addressed in the editorial which was a bit less obvious at first. What standing does the NLRB have to bring such a suit in the first place? (NONE!—my addition)

‘It may be a fair question whether Prop. 113 has the potential to transgress that right of employers. But the federal government should not be in the business of launching legal fishing expeditions.

The NLRB has no business second-guessing the constitutionality of state laws, unless and until there is some real person—employer or employee—who is, in fact, harmed by that law.’

Even if there are problems with this state law, shouldn’t any law suit wait until the legislation is actually being enforced and the results are seen? And should that come to pass, would it not make more sense to have such a suit brought either by an employer or a worker who has experienced the actual damage from any potentially flawed law?

This is a preemptive play by the NLRB to put the brakes on any opportunity for real choice by workers. And when the only available path to achieve that end involves stripping workers of a fundamental right such as a secret ballot, the mask is truly pulled away.

This post was promoted from GreenRoom to To see the comments on the original post, look here.

It took some searching to confirm that this case was filed in an inferior federal court in Arizona. It was confirmed in the following news story published May 9, 2011.


“The NLRB, which is charged with protecting employees’ rights to organize, said it reserves the right to sue South Carolina and Utah at a later time.

‘Because of my desire to conserve limited federal and state agency resources and taxpayer funds (If he had any real desire to conserve taxpayer funds, there would be NO lawsuit!—my addition), I have decided not to bring suit at this time against all four states,’ Solomon said in an April 22 letter preceding Friday’s filling in Arizona.”

The Republicans gained a strong majority in the House of Representatives in the 2010 election. They also increased their number of Republican governors and increased their majorities in State legislatures. One result is that States are, more and more, asserting their sovereignty and attempting to remove themselves from the control of the federal government. Control that is NOT sanctioned by the United States Constitution.

In this particular instance, a federal bureaucracy—the National Labor Relation Board—is suing the States of Arizona and South Dakota over sections of State Constitutions which have recently (2010) been amended. As is the normal situation, these lawsuits are originating within the inferior federal court of the particular State being sued.

And yet, the whole process will be a direct and obvious violation of the United States Constitution! Does that make sense—using an unconstitutional process to rule a legitimately passed State Constitutional Amendment to be unconstitutional!

For as I’ve said repeatedly, NO inferior federal court judge has jurisdiction over a State. NONE! The Constitution of the United States of America clearly states in Article III, Section 2, ¶ 2: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” Who has jurisdiction when a State is a party to the case? The United States Supreme Court!!! And only the United States Supreme Court until and unless the Constitution is amended!!! An inferior federal court has no such jurisdiction! The inferior federal courts in the United States have NO jurisdiction over States! NONE!!!

It’s time, it is past time to TAKE BACK THE NATION!!! It’s time, it past time to be obedient to the Constitution of the United States!!! It’s time, it is past time to TAKE BACK THE NATION!!!