This past Friday, January 14, 2011, the National Labor Relations Board advised the Attorneys General of four states – Arizona, South Carolina, South Dakota and Utah – that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections. Letters sent by Acting General Counsel Lafe Solomon assert that these amendments, approved by voters in each of these states last November, conflict with Section 7 of the National Labor Relations Act.

In the letters, Acting GC Solomon cites Linden Lumber Division v. NLRB, 419 U.S. 301 (1974) and NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) for the proposition that federal law provides employees two different paths to pursue the Section 7 right to choose a representative: a secret ballot election or voluntary recognition. The state constitutional amendments, however, require only secret ballot elections to select union representation according to the Acting GC’s letters. Accordingly, the letters assert these conflicting amendments are preempted by operation of the Supremacy Clause set forth in Article VI of the U.S. Constitution.

Acting GC Solomon requested responses from the states within two weeks. If the states refuse to acknowledge that these provisions are unconstitutional, the Board has indicated it will initiate civil actions in federal court to have them invalidated.  When we reported on similar efforts by states in early 2009, we noted that federal preemption principles would likely pose significant legal challenge to the enforcement of these state provisions.  It seems we will soon find out.

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