The National Labor Relations Board (NLRB) Jan. 14
sent letters to the attorneys general of Arizona, South Carolina, South Dakota and Utah demanding that they halt enforcement of their recent state constitutional amendments guaranteeing the right to a secret-ballot election in union organizing campaigns or risk a federal lawsuit.
In a news release, the NLRB claimed the state laws are pre-empted by the federal government’s jurisdiction over labor law; however, the board has taken no action in recent years to stop other state and local laws that have infringed on federal jurisdiction to promote union organizing at the expense of free speech.
Although the NLRB has said that it is seeking to protect voluntary card check agreements from being restricted by state laws, the state constitutional amendments at issue were enacted in part to protect employees against being compelled to submit to card checks instead of secret ballot elections. Such compulsion was a key component of the Employee Free Choice Act (EFCA), which failed to pass Congress last year. Under the card check process, employees may be forced to indicate their choice of whether to join a union by signing a card in front of their co-workers, employers and union organizers, opening the door to coercion and intimidation.
All four state constitutional amendments were approved by voters Nov. 2, 2010, but only the South Dakota and Utah amendments have taken effect, and no enforcement of any of the state amendments is considered imminent. Under similar circumstances, past court decisions have held that state law preemption challenges are not “ripe” for review. However, in its letter to the states, the NLRB is threatening immediate litigation unless each state submits a “judicially sanctioned stipulation concerning the unconstitutionality of the Amendment” within two weeks.
For more information, visit the
NLRB website.