The Acting General Counsel of the National Labor Relations Board has responded to the joint letter by the Attorneys General of Arizona, South Carolina, South Dakota and Utah proclaiming their intent to defend their state constitutions against any NLRB litigation to invalidate recent secret ballot amendments.

On Friday, January 14, 2011, the Acting GC advised the Attorneys General of these four states that he believed the National Labor Relations Act preempted their states’ constitutional amendments to require the use of secret ballots in union representation elections.  He requested a response from the states within two weeks, and threatened a federal lawsuit unless the states stipulated that their secret ballot provisions were unconstitutional.

Last week, the states sent a letter back rejecting the Board’s assertion and refusing to "stipulate to the unconstitutionality" of the state amendments.  The AGs’ letter defended the significance of secret ballots in union representation elections, and urged the Board to reconsider its threat to litigate.

By letter yesterday, the Acting GC advised the four states:

As you have unanimously expressed the opinion that the State Amendments can all be construed in a manner consistent with federal law, I believe your letter may provide a basis upon which this matter can be resolved without the necessity of costly litigation.  My staff will shortly be in contact with the staff members you have designated to explore this issue further.

Employers in all fifty states should continue to follow these developments.  The results of these discussions should reveal a bit more about the extent to which the Board will seek to elevate alternative methods of designating a union representative.