NLRB Advises Attorneys General in Four States that Secret-Ballot Amendments are Preempted by Federal Labor Law

 
Thursday, January 27, 2011
 
The National Labor Relations Board advised the Attorneys General of Arizona, South Carolina, South Dakota, and Utah that recently-approved state constitutional amendments governing the method by which employees choose union representation conflict with federal labor law and therefore are preempted by the Supremacy Clause of the U.S. Constitution.

The states were also advised that the Board has authorized the Acting General Counsel to file lawsuits in federal court, if necessary, to enjoin them from enforcing the laws.

Under the 1935 National Labor Relations Act, private-sector employees have two ways to choose a union: They may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means.

The state amendments prohibit the second method and therefore interfere with the exercise of a well-established federally-protected right. For that reason, they are preempted by the Supremacy Clause of the U.S. Constitution.  Further details are available on this page, including a fact sheet prepared by the NLRB and copies of the advisory letters.

The amendments have already taken effect in South Dakota and Utah, and are expected to become effective soon in Arizona and South Carolina.

The National Labor Relations Board is an independent federal agency vested with the authority to safeguard employees’ rights to organize and to determine whether to have a union as their collective bargaining representative, and to prevent and remedy unfair labor practices committed by private sector employers and unions.

Note: The attorneys general for South Carolina and Utah have made public statements opposing the Board’s attempt to thwart the will of their state’s voters.  The Utah Attorney General, Mark Shurtleff, stated, “[B]ring it on, because we think card-check violates federal constitution protections.”  South Carolina Attorney General Alan Wilson noted that his state’s voters overwhelmingly voted “to ensure that their ballot votes are kept between them and their Maker — not to be influenced by union bosses.”

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