Friday, January 28, 2011
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