Case 2:11-cv-00921-SRB Document 1 Filed 05/09/11 Page 1 of 18

Formatted: Left: 1", Right: 0.5"

Andrew J. Kahn AZ. Bar #15835

1
Elizabeth A. Lawrence AZ Bar #201537
2 DAVIS COWELL & BOWE LLP
2401 North Central Avenue 2nd Floor
3
Phoenix, Arizona 85004
4 Telephone: 800-622-0641
Fax: (602) 251-0459
5
Email: ajk@dcbsf.com
6 Attorneys for Plaintiffs UFCW Local 99,
McLaughlin and Colbath
7
8 Gerald Barrett, AZ Bar #5855
Ward Keenan & Barrett, PC
9 3838 North Central Avenue, Suite 1720
10 Phoenix AZ 85012
Tel.: (602) 279-1717
11 Fax: (602) 279-8908
12 Email: gbarrett@wardkeenanbarrett.com
Attorneys for Plaintiffs UA Local 469,
13 McNally and Rothans
14 UNITED STATES DISTRICT COURT
15 DISTRICT OF ARIZONA
16
17 UNITED FOOD & COMMERCIAL CASE NO.
WORKERS LOCAL 99; JAMES
18 McLAUGHLIN; LOCAL UNION NO. 469
19 OF THE UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF
20 THE PLUMBING AND PIPEFITTING COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF
21 INDUSTRY OF THE UNITED STATES
AND CANADA; PHILLIP A. McNALLY
22 JR.; ROBERTA COLBATH; DAVID J.
23 ROTHANS
24 Plaintiffs,
25 vs.

26 JAN BREWER, in her capacity as Governor

of the State of Arizona; STATE OF
27
ARIZONA; KEN BENNETT, in his capacity
28 as Secretary of State of the State of Arizona;

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RANDALL MARUCA, in his capacity as

1
Director of the Labor Department of the
2 Industrial Commission of Arizona; SHERIFF
JOE ARPAIO, in his capacity as Sheriff of
3
the County of Maricopa;
4
Defendants.
5
6
7 Plaintiffs allege:
8 INTRODUCTION
9 1. This is a civil rights action brought to enjoin enforcement of a recent enactment of
10 the Arizona Legislature, Senate Bill 1363, due to its invalidity under the state and federal
11 constitutions in numerous ways. A true and correct copy of this enactment is attached hereto as
12 Exhibit A.
Formatted: Bullets and Numbering
13 2. In SB 1363, the Legislature violated constitutional rights in at least six ways: first,
14 it expanded employer remedies for union violations of an anti-picketing statute already struck
15 down as unconstitutional by the Arizona Supreme Court. No intervening court decision
16 resuscitated this invalid law, which prohibits labor picketing of any establishment where a
17 majority of workers have not yet decided to support such picketing, a prohibition clearly
18 violating the picketers’ rights of free speech. Second, SB 1363 criminalizes any assemblies by
19 labor in an “unreasonable” manner, without defining this term in any way other than saying it
20 should not be construed to violate federally-protected rights. This is absurdly vague and
21 overbroad in violation of the First and Fourteenth Amendments: ordinary union members do not
22 have constitutional law scholars at their beck and call while they are out demonstrating. Third,
23 the bill contains additional punishments for secondary boycotts which the U.S. Supreme Court
24 has already held that state laws cannot seek to provide, due to the Supremacy Clause and
25 existing secondary boycott provisions of federal labor law. Fourth, SB 1363 allows defamation

26 suits to be brought against unions for mere negligence in their speech, whereas the U.S.

27 Supreme Court has already declared that in labor disputes the standard is the higher one of

28 intentional falsity or recklessness. Fifth, SB 1363 punishes any employer who lives up to its

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1 union contract obligation to deduct dues as previously requested by an employee (“dues

2 checkoff”) merely because such employee later changes his mind, even when the employee is
3 violating his own contractual promise in the checkoff agreement to pay dues for a longer period.
4 This provision violates constitutional prohibitions against impairment of contractual obligations
5 and is preempted by federal labor laws. Sixth, SB 1363 prohibits law enforcement officials
6 from asking an employer who wants unionists removed for any proof of the employer’s right to
7 make such request, merely because the employer without giving notice to the Union persuaded
8 the Secretary of State to place this employer on a “No Trespass” list published by the Secretary,
9 a form of notice not compliant with due process because mail and personal notice are both easily
10 done by the employer instead. Also, in many alleged “trespass” situations, the unionists have a
11 right protected by the National Labor Relations Act (NLRA) to be present on employer property
12 because they are employees of an employer at the facility and hence they are not true
13 trespassers. Forbidding law enforcement officials from accommodating federal labor law rights
14 or making inquiries before forcibly moving people violates due process, the Supremacy Clause
15 and Separation of Powers between legislative and executive branches.
16 JURISDICTION
17 3. This Court has good jurisdiction over this action under 42 USC 1988, 29 USC
18 1332 and 1343, as this action involves federal constitutional questions and interpretation of
19 federal statutes.
20 PARTIES
21 4. Plaintiff James McLaughlin is a taxpayer in the State of Arizona and the head of
22 Plaintiff United Food & Commercial Workers Local 99. Local 99 has over 40,000 taxpaying
23 members in Arizona, most of whom work in retail stores and are covered by the NLRA, but
24 some of whom are covered by Arizona’s Agricultural Employment Relations Act.
25 McLaughlin’s functions as a union president are directly and immediately impacted by this new
26 law. Plaintiff Roberta Colbath is a member of Local 99.
Formatted: Bullets and Numbering
27 5. Plaintiff Phillip McNally is a taxpayer in the State of Arizona and head of Plaintiff
28 UA Plumbers and Steamfitters Local 469, a local labor organization with approximately 2500

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1 taxpaying members in Arizona and affiliated with an international union. Local 469 has labor
2 agreements covering private sector NLRA-covered employees in Arizona that afford members
3 with the right to elect to pay dues via payroll deduction of at least one year. McNally’s functions
4 as a union business manager are directly and immediately impacted by these new anti-labor
5 laws. Plaintiff David J. Rothans is a member of Local 469.
6 6. Plaintiffs and the other members of the two locals will all suffer the injuries of
7 seeing tax monies used to enforce the new anti-labor laws, likely starting with SB 1363’s
8 mandate to the Secretary of State to compile a “No Trespass” list. . Plaintiffs and their members
9 will also suffer other economic injuries from the unconstitutional provisions, but these injuries
10 are irreparable because Defendants likely have various immunities from an award of damages
11 including the Eleventh Amendment. Moreover, as described further herein, Plaintiffs will suffer
12 inherently-irreparable injuries to their speech and assembly rights, to union members’ receipt of
13 representation and to union officials’ functioning as labor representatives.
14 7. Defendant Jan Brewer is the Governor of Arizona and is named as Defendant in
15 this action in her official capacity. As Governor, she is responsible for carrying out the laws
16 enacted by the Legislature, including enforcement of SB 1363 through the Department of Public
17 Safety and overseeing the Labor Department of the Industrial Commissioner which is
18 responsible for enforcing some of the provisions of SB 1363. Defendant Randall Maruca is the
19 Director of the Labor Department and named in his official capacity. Defendant Joe Arpaio is
20 Maricopa County Sheriff and responsible for enforcing several provisions of SB 1363 in areas
21 where Plaintiff Unions have been and will continue to be active.
22 8. The office of Secretary of State is an executive branch office existing pursuant to
23 Article 5, Section 1 of the Arizona Constitution. As Secretary of State, Defendant Bennett was
24 given the responsibility by SB 1363 of compiling and distributing a so-called “No Trespass
25 Public Notice List” to all law enforcement agencies in the State in order to carry out the forced
26 expulsion of any trade unionist whom an employer asks to be expelled from some property. The
27 Secretary will likely carry out the enactments at issue here absent further order of this Court.
28

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1 FACTUAL AND LEGAL BACKGROUND

2 9. SB 1363 was approved by the Arizona Legislature and signed by the Governor in
3 April 2011.
4 10. At the time of this enactment, Plaintiff Unions were (and still are) parties to
5 collective bargaining agreements with private sector employers covered by the NLRA or AERA
6 which provide for the employers to deduct dues when employees have executed written
7 authorizations, and provide for arbitration over disputes. Most such agreements of UFCW last
8 past October 2011.
9 11. Membership in Plaintiff Unions is chosen voluntarily, for Arizona’s “Right to
10 Work” Laws bars anyone from being denied employment for refusal to join a union. Ariz.
11 Const. Art. 25; ARS 23-1301 et seq.
12 12. Plaintiff Unions have bylaws to which anyone choosing to join and the unions are
13 bound, and which provide for holding of open membership meetings and regular elections of
14 officers, and provide internal administrative remedies for members. In addition, Plaintiff
15 Unions are governed by the union democracy requirements of the Labor Management Reporting
16 and Disclosure Act, 29 USC 401 et seq.
17 13. Federal law comprehensively regulates the union-member relationship of private
18 sector employees covered by the NLRA.
19 14. Federal law in the LMRDA (29 USC 411(a)(2) gives each member a legal right to
20 meet and assemble freely and oppose decisions made by union leaders as to political matters.
21 15. Federal law in the LMRDA (29 USC 481) gives members the right to vote for
22 their local unions’ officers at least every three years. Each plaintiff union is in compliance.
23 16. Federal law in the LMRDA (29 USC 411(a)(3) governs the ability of a union to
24 access union dues. Any change in structure or amount must be approved by a majority of
25 members in a secret ballot election. Each plaintiff union is in compliance.
26 17. Federal law further regulates the creation and use of a dues check-off procedure.
27 Decisions of the NLRB uniformly hold that “dues checkoff” is a matter related to "wages, hours,
28 and other terms and conditions of employment" within the meaning of the Act and is therefore a

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1 mandatory subject for collective bargaining. See, Quality House of Graphics, Inc., 336 N.L.R.B.
2 497, 511 & n.42 (2001) (citing various cases); see also Sw. Steel & Supply v. NLRB, 806 F.2d
3 1111, 1114 (D.C. Cir. 1986). Section 8 (a) (5) of the National Labor Relations Act, 29 U.S.C. §
4 158 (a) (5) provides that it is an unfair labor practice for an employer "to refuse to bargain
5 collectively with the representatives of his employees" with respect to "wages, hours, and other
6 terms and conditions of employment." While a mandatory subject of bargaining, federal law
7 does not require an employer to agree to a dues check-off system.
8 18. If an employer agrees to a dues check-off system, Section 302 (c )(4) of the
9 LMRDA, 29 U.S.C. § 186 (c ) (4), establishes the procedures that must be followed by
10 providing an exception to the general prohibition against an employer tendering any money to a
11 union. Such is lawful “Provided, That the employer has received from each employee, on whose
12 account such deductions are made, a written assignment which shall not be irrevocable for a
13 period of more than one year, or beyond the termination date of the applicable collective
14 agreement, whichever occurs sooner.”
15 19. This exception to the general prohibition against an employer tending money to a
16 union affords employees with a convenient means to pay periodic union dues. However,
17 employee participation is voluntary and remains in effect only until an employee desires to
18 terminate the check-off during the times the Congress expressly established. The statute protects
19 the interests of participating unions and employers in having stability in dues deductions for a
20 limited defined time period.
21 20. By virtue of Section 14 (b) of the NLRA, states may enact so-called “right to
22 work” laws for the limited purpose of prohibiting employers and unions from entering into a
23 collective bargaining agreement that conditions employment opportunity on the employee
24 becoming a member of a union or paying union dues.
25 21. Under Arizona’s Right to Work laws, employees are not compelled to pay any
26 form of union dues, not even a “fair share” for the cost of negotiating and administering
27 collective bargaining agreements. AFSCME Local 2384 v. City of Phoenix, 213 Ariz. 358; 142
28 P.3d 234 (Ct. App. 2006) rev. denied 2007 Ariz. LEXIS 6.

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1 22. Each plaintiff union has entered into collective bargaining agreements with
2 multiple employers that contain a voluntary dues check-off provision in conformity with federal
3 law.
4 23. Each plaintiff union has entered into dues deduction agreements with their
5 members which allow them to terminate membership at the end of their anniversary year and at
6 the end of the labor agreement, but not earlier.
7 24. Most such deduction agreements of UFCW will continue past November 2011
8 unless the member affirmative decides to terminate membership, which historically most
9 members have not done.
10
FIRST CLAIM FOR RELIEF
11 (Unconstitutionality of SB 1363’s Ban on Picketing Absent Majority Consent)
12
25. Plaintiffs incorporate herein the foregoing paragraphs.
13
26. Plaintiffs and other unions regularly engage in picketing facilities where it is
14
unclear or doubtful whether a majority of workers at the facility have a dispute with the
15
employer, because they are trying to mobilize those workers or because workers elsewhere are
16
injured by the unfair competition from this employer.
17
27. Plaintiffs and others would continue to do so were it not for the deterrent effect
18
that SB 1363 is having given the strong likelihood it will be enforced against them by
19
Defendants and other law enforcement officials.
20
28. SB 1363 expands the remedies for an existing provision of Arizona law, ARS 23-
21
1322(1), which purports to make it unlawful to picket any employer where there is not majority
22
employee support for such picketing. However, such statute has already been found
23
unconstitutional by the Arizona Supreme Court in Baldwin v. Arizona Flame Restaurant, Inc.,
24
82 Ariz. 385, 313 P.2d 759 (Ariz. 1957)(“The plain wording of section 56-1310, supra [also in
25
ARS 23-1322], requires as a condition precedent to a labor organization picketing the
26
establishment of any employer that there exists a bona fide dispute between such employer and a
27
majority of his employees. It, therefore, effectively provides that under all circumstances, and
28

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1 regardless of purpose, a union having less than a majority is prohibited from all peaceful
2 picketing. Such clearly on its face constitutes a general prohibition against peaceful picketing in
3 violation of the United States Constitution, as such has been interpreted by the highest court in
4 the land.”). That decision is still correct, for this statute is no more constitutional than one
5 banning all picketing of abortion clinics unless a majority of clinic patients consent thereto.
6 29. ARS 23-1322(1) and the new enforcement provisions for it in SB 1363 are also
7 facially preempted by the National Labor Relations Act (and hence unconstitutional under the
8 U.S. Constitution’s Supremacy Clause), because unions and employees have NLRA-protected
9 rights to picket even if a majority of employees at that facility are not yet supportive.
10 30. These statutes also facially violate the First and Fourteenth Amendments to the
11 U.S. Constitution and the state constitution, as it is well-settled from the U.S. Supreme Court’s
12 flagburning and funeral cases that an audience’s dislike for some speech is no basis for banning
13 such speech.
14 31. In adopting the new provisions the Arizona Legislature and Governor lacked any
15 good faith belief that the Arizona Supreme Court was incorrect in its prior invalidation of the
16 predicate statute.
SECOND CLAIM FOR RELIEF:
17
Unconstitutionality of New Restrictions on Assembly
18
19 32. Plaintiffs incorporate herein the foregoing paragraphs.
20 33. The new ARS 23-1327(A)(5) makes it both criminally and civilly actionable to
21 “assemble other than in a reasonable and peaceful manner”.
22 34. Plaintiffs and other unions have regularly engaged in assembling workers in ways
23 which some but not all people would find unreasonable, such as where voices are raised beyond
24 conversational tones or noisemakers used but without threatening anyone’s eardrums or sleep, or
25 where words are used that are not fighting words but from which some might take offense, such
26 as labeling strikebreakers as “scabs”.
27 35. As a result of this provision of SB 1363 and the strong likelihood of its
28 enforcement by Defendants against them, Plaintiffs and others are curtailing such activities.

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1 36. Such provision is likely to have a chilling effect on any assembly of workers as
2 workers would have no way of knowing what a judge would consider “unreasonable” in
3 assembling (no raising of one’s voice? No use of any noisemakers? Not leaving 10 feet of space
4 for someone to walk by? 20 feet?
5 37. Recognizing this extraordinarily-vague and broad new provision could violate
6 rights under constitutional law, this bill cleverly tries to avoid such outcome with equally-vague
7 exemption language in 23-1327(B)(“This section does not prohibit assembly to the extent that
8 assembly is authorized under the Arizona or federal constitution or federal law.”). That
9 exception means the average person who wishes to assemble has to hire a constitutional scholar
10 to figure out what kind of assembly is allowed, or else suffer potential criminal penalties.
11 38. SB 1363 in other provisions enhances the likelihood of violations of constitutional
12 rights by allowing injunctions to be issued under the weaker evidentiary and procedural
13 standards heretofore used only for a series of acts of serious personal harassment, where the
14 moving party need not even show any efforts to give notice to the defendant if a court is
15 persuaded for unstated reasons “that notice should not be given”, nor show a likelihood of
16 success (merely “reasonable evidence”), nor show that irreparable injuries have occurred if
17 instead “good cause exists to believe that great . . . injury would result” if the injunction were
18 not granted immediately, and no bond is required. ARS 12-1809(E).
19 39. These two provisions of ARS 23-1327 fail to provide notice to the average person
20 of what conduct he or she is prohibited from engaging in. They allow for arbitrary and
21 discriminatory enforcement by government officials, and they have a chilling effect upon
22 protected activities of Plaintiffs and others in assembling workers. Accordingly, they violate the
23 First and Fourteenth Amendments to the U.S. Constitution and violate free speech and due
24 process rights under the Arizona Constitution.
25 40. The new ARS 23-1327 bars any “hinder[ing] or prevent[ing] of any lawful work
26 or employment by mass assembly, unlawful threats or force”. The terms “hinder” and “mass
27 assembly” are not defined and not capable of being understood by ordinary persons, and include
28 one well-established and NLRA-protected means for unions to advance their goals, when

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1 crowds of striking workers from one facility to gather on public property outside another facility
2 owned by the same employer and without blocking or violence, urge those workers to join their
3 strike. Such conduct is carried out entirely through protected speech, yet if successful, arguably
4 “mass assembly” and “hindering work” in violation of this new law. The lack of any definition
5 of “mass assembly” and of “hindering or preventing work” renders this provision excessively
6 vague and substantially overbroad, and the provision also violates the Supremacy Clause by
7 interfering with NLRA rights.
8 41. Various forms of assembling of workers in a manner “unreasonable” to some
9 judges was deemed protected by federal labor law in the Norris LaGuardia Act and in the
10 National Labor Relations Act. The new ARS 23-1327(A)(5) and its enforcement provisions
11 infringe upon conduct arguably protected and arguably prohibited by the NLRA and hence are
12 preempted by the NLRA and unconstitutional on that ground as well.
13 42. The new provisions for injunctions against speech and assembly transformed by
14 the bill into “harassment” violate the First and Fourteenth Amendments due to the lack of
15 assurance of notice to the party to be enjoined and the lack of procedures for accurate and final
16 judicial determination that the defendant’s conduct is defamatory or otherwise unprotected and
17 unlawful.
18
THIRD CLAIM FOR RELIEF:
19
(Unconstitutionality of Secondary Boycott Provisions)
20
21 43. Plaintiffs incorporate herein the foregoing paragraphs.
22 44. SB 1363 expanded the remedies against secondary boycotts through amendments
23 to ARS 23-1323.
24 45. Plaintiffs (like other unions) have in the past been accused of engaging in
25 secondary boycotts as defined in ARS 23-1321, and while Plaintiffs deny having done so,
26 resolution of such disputes is rendered difficult by the necessity of ascertaining the underlying
27 purpose for picketing (especially difficult where multiple employers share the same facility,
28

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1 which is commonplace) and by the unclear legal definition of “picketing” which employers
2 argue extends to banners, balloons, large crowds of leafletters and other forms of publicity.
3 46. Plaintiffs would likely again engage in publicity of the sort that employers have
4 contended is secondary picketing, were it not for the deterrent effect upon them of SB 1363 and
5 strong likelihood it will be enforced against them by Defendants.
6 47. Federal labor laws already provide ample remedies against the secondary
7 picketing and coercion: such conduct violates both section 8(b)(4) of the NLRA (29 USC
8 158(b)(4)) and section 303 of the LMRA (29 USC 187), which allow for private suits for
9 damages. However, Congress expressly chose not to allow for punitive damages nor private
10 injunction suits to enforce the ban on secondary boycotts, contrary to what this bill does, but to
11 leave injunctive relief solely up to the NLRB. The U.S. Supreme Court has therefore already
12 held that section 303 preempts state secondary boycott laws in Local 20, Teamsters, Chauffeurs
13 and Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253 (1964)(“state law has been displaced
14 by s 303 in private damage actions based on peaceful union secondary activities.”). See also
15 Smart v. Local 702 Int'l Bhd. of Elec. Workers, 562 F.3d 798, 808 (7th Cir.2009)(Section 303
16 “completely preempts state-law claims related to secondary boycott activities described in
17 section 158(b)(4); it provides an exclusive federal cause of action for the redress of such illegal
18 activity.”).
19 48. The provisions of SB 1363 expanding remedies against alleged secondary boycotts
20 are unconstitutional under the Supremacy Clause.
21 49. In enacting these provisions the Legislature and Governor lacked any good faith
22 belief that there was any reasonable likelihood that the U.S. Supreme Court would overrule its
23 precedent on this issue.
24
FOURTH CLAIM FOR RELIEF:
25 (Unconstitutionality of Prohibiting Contractually-Authorized Dues Deductions)
26
27 50. Plaintiffs incorporate herein the foregoing paragraphs.
28

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1 51. Dues deduction agreements which employees have entered into with Plaintiff
2 Locals and other unions provide these unions with some stability of income by limiting the
3 times during which the employee can cease paying dues to specified window periods.
4 52. However, every year a number of workers try to rescind their dues deductions
5 outside the window period in their dues deduction agreements, and no doubt such conduct will
6 continue in the near future.
7 53. Up until now most employers have honored the deduction agreements despite
8 untimely repudiations by workers, as these deductions do not occur unless originally promised
9 the union by the employer in the collective bargaining agreement, as is the case with Plaintiff
10 Unions and their signatory employers. However, during the last round of grocery negotiations,
11 several employers urged workers to withdraw financial support from Local 99 and ignore the
12 stated window periods as a means of exerting economic pressure upon this union to consent to
13 the employers’ proposals, and dozens of workers did so.
14 54. The amendments to ARS 23-352 would prohibit employers from honoring their
15 labor agreement and the employee’s prior written contractual promise unless ordered otherwise
16 by a court, merely because the employee sent a note claiming to revoke, even when such
17 revocation is obviously untimely and the employee cites no other lawful basis for revocation.
18 55. Obviously the expense to the union of bringing a court action against a worker for
19 dues would far exceed any dues recoverable, and accordingly this new statute is just a backdoor
20 method of depriving the union entirely of the benefit of its bargain. Most labor agreements
21 provide for dispute resolution via arbitration instead of court resolution. The bylaws of Plaintiff
22 Unions and other unions also provide an internal administrative procedure for addressing
23 member complaints rather than lawsuits. The NLRB also will investigate and render
24 determinations on claims as to dues deduction, but often not resulting in a court order (for
25 example, when the NLRB General Counsel investigates a worker’s charge that a deduction is
26 unlawful and finds it meritless and refuses to issue complaint thereon). Unions are deprived by
27 SB 1363 of these less expensive, more expeditious and more expert methods of decision making
28 on disputes over dues deductions. This provision of the bill violates the federal and state

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1 constitutional prohibitions on impairment of contractual obligations. There is no social crisis

2 which would warrant granting union duespayers an additional protection against improper dues
3 exactions given the numerous other legal protections against the Union’s conduct set forth
4 above.
5 56. The negotiation and enforcement of dues deduction agreements is actually or at
6 least arguably protected or prohibited by the National Labor Relations Act and the Labor
7 Management Relations Act, and comprehensively regulated thereby, and accordingly this
8 provision of SB 1363 is preempted by federal labor laws. See Hubins v. Operating Engineers
9 Local Union No. 3, 2004 WL 2203555 (N.D.Cal. 2004)(“The Court agrees with defendants that
10 state law claims based on an employer's unauthorized deduction of union dues from employees'
11 paychecks are preempted by the NLRA, under the doctrine of Garmon preemption, because
12 states may not ‘provid[e] their own regulatory or judicial remedies for conduct prohibited or
13 arguably prohibited by the [NLRA].’ See Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S. at
14 286.”).
FIFTH CLAIM FOR RELIEF
15
UNCONSTITUTIONALITY OF “NO TRESPASS LIST” PROVISIONS (ARS 23-1325)
16
17 57. Plaintiffs incorporate herein the foregoing paragraphs.
18 58. SB 1363 takes the unprecedented approach of declaring (falsely) that the publishing of a list
19 of employers in legal ads in newspapers and on a government website puts everyone in the state
20 who might later engage in protest activity on notice that each listed employer has a property
21 right to bar people from any premises claimed by this employer, even if such claim would be
22 disputed if it were actually known to those workers (for example, disputed due to recorded
23 easements for public access on such property not disclosed by the employer to the Secretary of
24 State).
25 58. Such presumption of notice is contrary to reality and accordingly violates due
26 process. See Tot v. United States, 319 U.S. 463, 467-468, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519
27 (1943); State v. Campbell, 543 P.2d 1171, 1173-74 (Idaho 1975).
28

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1 59. To aggravate the effect of such presumption, peace officers are instructed by SB
2 1363 to remove protestors without making any further inquiry into the bona fides of the listed
3 employer’s claim of property rights.
4 60. Members of Plaintiff Unions and other Arizona unions have regularly engaged in
5 union activities on sidewalks and parking lots in front of their employer’s facilities. They have a
6 right under the NLRA to engage in such activities, as the NLRB with judicial approval has so
7 held. See Tri-County Medical Center, 222 NLRB 1089 (1976); First Healthcare Corp. v.
8 N.L.R.B., 344 F.3d 523 (C.A.6 2003). In addition, union staff including Plaintiff McLaughlin
9 have also engaged in such activities when the Union had a reasonable belief that (1) the NLRA
10 provided such right of access (because the employer did not own the facility and the actual
11 owner was not objecting to the Union’s presence, or because there was an easement across the
12 facility for the public, or because the employer was discriminating against union activities on
13 this property by allowing other kinds of solicitations, or because the Union represented workers
14 at the facility and access would allow it to observe working conditions), or (2) the Union had an
15 access right under a collective bargaining agreement. If employers attempted to remove
16 unionists in these situations, the Union promptly filed an NLRB charge or grievance, and
17 typically these would resolve the dispute rather than having it resolved through police action and
18 criminal proceedings.
19 61. However, the enactment of SB 1363, and the strong likelihood that it will be
20 enforced against Plaintiffs and other unions by Defendants and other law enforcement officials,
21 is deterring Plaintiffs and other unions from engaging in a significant amount of such activities.
22 55. Many (perhaps most) employers interested in being on such list know the identity of the
23 unions interested in accessing sidewalks and parking lots in future labor disputes, yet SB 1363
24 does not require these employers nor the government to give notice of listing to these known
25 interested parties by any of the readily-available means likely to provide actual notice (such as
26 mail, phone, email, fax or personal notice). This is contrary to basic procedural due process.
27 62. The No Trespass List provisions serve to interject the State on one side of disputes
28 over the legality of access involving federal labor laws and labor contracts, and accordingly are

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1 contrary to the preeminent role of the NLRB and labor arbitrators in resolving such issues,
2 which assigns them the right to decide these issues, at very least when the conduct is arguably
3 protected and a charge is filed with the NLRB. Thus these provisions are preempted and
4 contrary to the Supremacy Clause of the U.S. Constitution.
5 63. The Bill’s provision requiring peace officers to eject protestors solely on the
6 employer’s word without asking for supporting proof violate the Arizona Constitution’s
7 separation of powers between the Legislature and the Executive Branch, as peace officers are
8 sworn to uphold both federal and state constitutions, and to that end peace officers are entitled to
9 make their own inquiries into the bona fides of an employer’s claim of right before proceeding
10 to use force against peaceful union activities.
11
SIXTH CLAIM FOR RELIEF:
12
UNCONSTITUTIONAL EXPANSION OF DEFAMATION LIABILITY
13
14 64. Plaintiffs incorporate herein the foregoing paragraphs.
15 65. Plaintiffs and other unions have regularly engaged in speech critical of employers
16 and been accused of defamation, and intend to continue engaging in such speech absent the
17 strong likelihood they will be sued under the new provisions of ARS 23-1325 and ARS Title 12.
18 66. In Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657 (1966) and Letter
19 Carriers v. Austin, 418 U.S. 264, 279, 94 S.Ct. 2770 (1974), the U.S. Supreme Court held that
20 the standard for defamation in labor disputes is not mere negligence, but instead clear and
21 convincing evidence of “malice” defined as intentional falsity or reckless disregard for truth or
22 falsity. Such standard is necessary to accommodates NLRA rights. Such standard continues to
23 be recognized by courts. See, e.g., Sutter Health v. UNITE HERE, 186 Cal.App.4th 1193, 113
24 Cal. Rptr. 3d 132 (2010); Ross v. Duke, 116 Ariz. 298, 569 P.2d 240 (1976).
25 67. By adding negligence as a basis for liability of employees and unions in ARS 23-
26 1325(A)(2), the Arizona Legislature has violated the Supremacy Clause, thumbed its nose at the
27 U.S. Supreme Court and acted in bad faith.
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1 68. The use of a weaker evidentiary standard of merely “reasonable evidence” in

2 paragraph (E) of both ARS 12-1809 and 12-1810 instead of clear and convincing evidence also
3 for defamation claims violates the Supremacy Clause and constitutional freedoms of speech.
4
5 SEVENTH CLAIM FOR RELIEF:
UNCONSTITUTIONALITY OF INSULATING EMPLOYERS’ “INTANGIBLE
6 PROPERTY” OF BUSINESS GOODWILL AND LICENSES
7
69. Plaintiffs incorporate herein the foregoing paragraphs.
8
9 70. SB 1363 punishes any destruction of an employer’s “intangible property” that
10 causes a termination of a contract or business expectancy (ARS 23-1321(1)), or merely
11 threatening to harm a person’s “intangible property”. This term is not defined here, but has
12 already been defined in Arizona caselaw (by quoting Blacks Law Dictionary) as including
13 business goodwill.
14 71. It is in the very nature of a consumer boycott that it negatively impacts a business’
15 goodwill, yet the U.S. Supreme Court has squarely held that such boycotts are protected by the
16 First Amendment to the U.S. Constitution. NAACP v. Claiborne Hardware Co., 458 U.S. 886
17 (1982).
18 72. Picketing or handbilling by unions of the employer with which there is a labor
19 dispute typically results in harm to the goodwill of the employer, yet is nonetheless this is
20 protected by the National Labor Relations Act. See, e.g., Atlantic Scaffolding Company, 356
21 NLRB No. 113 (2011)(“Respondent's argument is that the work stoppage lost its protection
22 because of the economic harm inflicted on the Respondent. This argument is antithetical to the
23 basic principles underlying the statutory scheme, i.e., the right of employees to withhold their
24 labor in seeking to improve their terms of employment, and the use of economic weapons such
25 as work stoppages as part of the ‘free play of economic forces’ that should control collective
26 bargaining. NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971). The protected nature of the
27 work stoppage in this case was not vitiated by the effectiveness of its timing.”).
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1 73. Another form of intangible property is licenses or permits from the government.
2 SB1363 violates the unions’ constitutional right to petition government to deny licenses, and
3 their NLRA right to seek license denials, and their related rights to threaten to do what is lawful,
4 to seek denial of a license or permit.
5 74. Plaintiffs and other unions frequently have engaged in publicity which adversely
6 impacted business goodwill and sought denials of licenses and permits, but have curtailed and
7 will curtail such activities since SB 1363’s adoption due to their reasonable fear that SB 1363
8 will be enforced against them by government officials in Arizona.
9 75. Accordingly, these provisions of SB 1363 are unconstitutional under the First and
10 Fourteenth Amendments and Supremacy Clause of the U.S. Constitution.
11 PRAYER FOR RELIEF
12 WHEREFORE, Plaintiffs pray:
13 1. For preliminary and permanent injunctions against enforcement of SB 1363 in its
14 entirety, or at a minimum, against enforcement of the provisions specified above as to Plaintiffs
15 and their members covered by existing contracts and by the National Labor Relations Act;
16 2. For a judicial declaration that SB 1363 (or provisions or applications thereof
17 described above) is unconstitutional;
18 3. For an order mandating the State Defendants give notice to courts and the public
19 as to these judicial findings of unconstitutionality by publishing notice thereof as part of the
20 Arizona Revised Statutes, if such statutes are not immediately repealed;
21 4. For Plaintiffs’ attorneys fees and costs herein pursuant to 42 USC 1988 and other
22 law; and
23 5. For such other and further relief as may be appropriate.
24
25 JURY TRIAL DEMANDED
26 Plaintiffs request jury trial on all issues triable thereto.
27
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Respectfully submitted this 9th day of May, 2011.

1
2 DAVIS COWELL & BOWE LLP
3
By: S/Andrew J. Kahn
4 2401 North Central Avenue 2nd Floor
Phoenix, Arizona 85004
5
Attorneys for Plaintiffs UFCW Local 99,
6 McLaughlin and Colbath
7 and
8
WARD KEENAN & BARRETT, P.C.
9
10 By: S/Gerald Barrett
Ward Keenan & Barrett, PC
11 3838 North Central Avenue, Suite 1720
12 Phoenix AZ 85012
Attorneys for Plaintiffs UA Local 469,
13 McNally and Rothan
14
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