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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, 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.  


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. State enactments that conflict with federal laws such as the National Labor Relations Act are invalid by operation of the Supremacy Clause of the U.S. Constitution. U.S. Const. Art. VI, cl. 2. That clause states: 

This Constitution, 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.


The four 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. South Carolina and Utah provide an absolute guarantee of a secret ballot election. Arizona and South Dakota require a secret ballot election whenever an election is permitted by state or federal law.

Voters in the States approved the Amendments on November 2, 2010. However, the Amendments become effective on different dates. The first was South Dakota’s, which became effective November 2, 2010. Utah’s became effective January 1, 2011. Unless South Carolina and Arizona fail to take additional action, the amendments in those states will become effective shortly. 

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 U.S. 138, 144-147 (1971), the U.S. Supreme Court upheld the NLRB’s authority to seek federal court injunctions against state actions that conflict with federal rights. On several occasions in recent years, the Board has either initiated or participated in litigation seeking to invalidate state laws inconsistent with the NLRA. For example, in NLRB v. State of North Dakota, 504 F. Supp. 2d 750 (D.N.D. 2007), the Board successfully argued that a state statute requiring non-union members to pay the union for the costs of processing their grievances conflicted with federal law.  

Other lawsuits 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. Milwaukee County, 431 F.3d 277 (7th Cir. 2005) (ordinance impaired employer’s right to decide whether to enter a card check and labor peace agreement); and NLRB v. State of Illinois Dep’t of Emp’t Sec., 988 F.2d 735 (7th Cir. 1993) (statute impaired employees’ receipt of a back pay award). 

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.

Instead, federal 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. Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 309-310 (1974); NLRB v. Gissel Packing Co., 395 U.S. 575, 596-599 (1969). 

    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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