Friday, January 28, 2011

States Strike Back Against NLRB Secret-Ballot Preemption Stance

NLRB As we noted earlier, the NLRB's General Counsel informed four states that their secret-ballot union election measures were preempted by the NLRB.  The AGs of those states have now responded and as will probably not be a surprise, have stated in a letter (which you can access here) that they will vigorously defend those laws. 

The sole legal basis for the states' position seems to be that their measures do not require secret-ballot elections in all cases and are, therefore, consistent with the NLRB's interpretation of the NLRA.  The problem with this argument is that it begs the question of why have the measures?  If they apply only where employer's are unwilling to voluntary recognize a union then they're a complete waste of time (save for the opportunity to criticize unions, which may be exactly the point).  The states' interpretation also seem to go against the text of the measures, which appear to give individuals the right to vote on union representations, which suggests that an individual employee can insist on a secret-ballot election even if the employer is willing to voluntarily recognize the union. 

Adding to this issue is a recent move at the federal level to require secret-ballot elections.  We saw this earlier as a reaction to EFCA and it's not likely to go anywhere at this point.

Hat Tip:  Dennis Walsh


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"GCs"? I thought that were "AGs."

Posted by: James Young | Jan 28, 2011 4:24:17 PM

that = "they"

Posted by: James Young | Jan 28, 2011 4:24:31 PM

The letter is disingenuous. It seems to interpret the amendments as giving the employer the right to determine whether or not there will be a ballot -- which, as Jeff notes, is what federal law already does. The text of the amendment, however, does not grant employers that right. The South Carolina version, for example, uses the ambiguous passive voice but seems to be an absolute guarantee of an *individual* right to a ballot: "The fundamental right of an individual to vote by secret ballot is guaranteed for a designation, a selection, or an authorization for employee representation by a labor organization."

My hunch is that the AG decided he couldn't possibly win a suit by defending the obvious intention of the amendment, so he is trying instead to portray it as innocuous. Given two choices, illegal or pointless, the latter is less painful.

Posted by: Dennis Nolan | Jan 28, 2011 4:49:26 PM

Don't know if Nash-Finch is worth the trouble, but I guess I'd better dust off the file.

Posted by: Michael Duff | Jan 29, 2011 6:49:02 AM

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