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4 State Attorney General’s Warned
Secret Ballot Amendments Not Lawful
January 15, 2011 -
The National Labor Relations Board on Friday advised the Attorneys
General of Arizona,
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.
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.
have already taken effect in
and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
Board Authorization of Lawsuits against Four States. On January 6, 2011 the National Labor Relations Board authorized the Acting General Counsel to file lawsuits against the States of Arizona, South Carolina, South Dakota, and Utah in order to enjoin the application or enforcement of recently approved State Constitutional Amendments insofar as they conflict with the federal rights of private sector employees to designate a union to represent them.
Amendments differ in language, but all conflict with federal law by
closing off a well-established path to union representation recognized
by the Supreme Court and protected by the National Labor Relations Act.
The Amendments require secret ballot elections in circumstances where
federal law permits private sector employees to express their choice of
union representation by other means.
Voters in the
States approved the Amendments on November 2, 2010. However, the
Amendments become effective on different dates. The first was
In letters dated
January 13 and delivered January 14, the Acting General Counsel
communicated with the States to explain the Agency’s position regarding
the federal-state conflict created by the Amendments, and to inform the
States that the Board has authorized the commencement of civil actions
in federal court if necessary to invalidate the Amendments.
The authority of
the Board to bring such lawsuits was long ago settled. In NLRB v.
Nash-Finch Co., 404
where the Board has acted to protect federal rights from state
interference include Chamber of Commerce v. Brown, 554 U.S. 60 (2008)
(statute impaired employer’s right to campaign for or against
unionization); Livadas v. Bradshaw, 512 U.S. 107 (1994) (state’s
interpretation of statute impaired employees’ right to collective
bargaining representation); Metro. Milwaukee Ass’n of Commerce v.
NLRA Section 7 Grants Employees Two Paths to Vindicate Their Rights. Section 7 of the NLRA (29 U.S.C. § 157) guarantees the right of employees to organize and select their own bargaining representatives, as well as the right to refrain from all such activity. The Supreme Court has long recognized that Congress did not condition that fundamental right on the employees' manifesting their choice in a secret ballot election.
law provides employees two paths to vindicate their Section 7 right to
choose a representative: certification based on a Board-conducted secret
ballot election or voluntary recognition based on other reliable
evidence of majority support.
Impact of the Amendments on Private Sector Employees and Employers.
The State Amendments’ impair the rights that federal law grants
employees and employers. The option that federal law gives employers
to act on employee petitions or written authorizations of union
representation is denied by the States. Instead, employers are
placed under direct state law pressure to refuse to recognize – or
withdraw recognition from – their employees’ choice of a bargaining
representative if that representative has not been designated in a
secret ballot election.
In addition, even though employees have designated their choice of a union representative in accordance with federal law and federal law obliges their employer to bargain with that representative, the State Amendments invite employees unhappy with a union designated by the majority of their fellow employees to bring state court lawsuits claiming a violation of their state constitutional rights.
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