Last week, we noted the recent introduction of a resolution in Florida to amend the state’s Constitution to guarantee the use of secret ballots in the designation of a union representative by employees. A number of other states have, to date, introduced similar measures — and one has already passed it.
A quick jaunt around the web reveals the introduction of resolutions seeking to preclude the card-check scheme envisioned by EFCA: SJR25 in Alabama; Senate Resolution 108 in Georgia; Senate Resolution 1828 in Kansas; Legislative Resolution 10 in Nebraska; House Resolution 3305 in South Carolina; House Joint Resolution 008 in Utah; and Senate Joint Resolution 8214 in Washington. Some of these resolutions seek to pass State Constitutional amendments, others call for the state’s federal legislators to oppose EFCA when re-introduced later this year.
As we indicated in our earlier post, proponents of some of these state measures will ultimately need to establish that federal preemption should not preclude these state efforts to regulate labor issues. Save Our Secret Ballot, an organization supporting some of these resolutions, asserts at its website:
Although the National Labor Relations Act generally pre-empts state laws, the US Supreme Court has ruled that state law may prevail if it safeguards important interests and does not disrupt the federal regulatory scheme. The US Supreme Court has recognized the right to vote by secret ballot and freedom of association as important interests.
Professor Jeff Hirsch of Workplace Prof Blog is not convinced:
The NLRB’s jurisdiction over representational issues in the private sector is given more deference than anything else the Board does, and NLRA preemption clearly applies. But the initiative is obviously more about the political battle over EFCA, and I have little doubt that it will not be the last of its kind.
- "Assessing Legal Prospects for Protecting the Right to Secret Ballot in State Constitutions" — Clint Bolik, Goldwater Institute
- "State Efforts on Combatting the Employee Free Choice Act" — Alliance for Worker Freedom
- "A Constitutional Amendment to Save the Secret Ballot?" — Say Anything
- "Push Afoot to Keep Union Secret Ballot" — Arkansas Democrat Gazette (12/31/2008)