Friday, January 14, 2011

NLRB: State Secret-Ballot Measures Are Preempted

NLRB The NLRB has just informed the Attorneys General of four states that they're new laws requiring secret-ballot elections for union recognition are preempted by the NLRA.  From the Board's notice:

The National Labor Relations Board today advised the Attorneys General of Arizona, South Carolina, South Dakota, and Utah that recently-approved state constitutional amendments governing the method by which employees choose union representation conflict with federal labor law and therefore are preempted by the Supremacy Clause of the U.S. Constitution.

The states were also advised that the Board has authorized the Acting General Counsel to file lawsuits in federal court, if necessary, to enjoin them from enforcing the laws.

Under the 1935 National Labor Relations Act, private-sector employees have two ways to choose a union: They may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means.

The state amendments prohibit the second method and therefore interfere with the exercise of a well-established federally-protected right. For that reason, they are preempted by the Supremacy Clause of the U.S. Constitution. . . . The amendments have already taken effect in South Dakota and Utah, and are expected to become effective soon in Arizona and South Carolina.

As I've said in our earlier reporting on these measures, this is a no-brainer.  I only wonder whether the various state officials will be willing to waste the money to continue to make their political points on this issue.

Hat Tip:  Jason Walta & Justin Keith

-JH

https://lawprofessors.typepad.com/laborprof_blog/2011/01/nlrb-state-secret-ballot-measures-are-preempted.html

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Comments

Hoyt Wheeler and I testified to a state senate subcommittee against the SC proposal. One of the points I made was that SC would be buying a lawsuit that it couldn't win. The subcommittee and the senate naturally ignored our advice and put the measure on the ballot where some 80% of the voters approved it. I learned later that the response to our objection was that any suit would be against an employer so the state wouldn't have to pay for the litigation. That struck me as pretty dumb at the time, because one of the attorney general's most important responsibilities is to defend the constitutionality of state laws. Had it occurred to me that the NLRB rather than some union would sue, I would have mentioned that possibility --- not that it would have had any more effect than the rest of our testimony.

Posted by: Dennis Nolan | Jan 14, 2011 2:06:54 PM

If you find the time, you might want to comment on Calvin Massey's query at The Faculty Lounge: http://www.thefacultylounge.org/2011/01/conflict-preemption-and-the-secret-ballot-for-union-representation-.html

Posted by: Patrick S. O'Donnell | Jan 14, 2011 5:52:52 PM

Interesting that a website that advocates state limits on employer free speech (barring so-called "captive audience" presentations) concludes that the outcome of challenges to state protections of employee rights to a secret-ballot election is a "no-brainer."

Posted by: James Young | Jan 16, 2011 8:24:12 PM

James, you're confusing me and Paul (or ignoring the fact that there is not a single voice on this blog). He's the state captive-audience guy, while I've repeatedly argued for a smaller state role in labor and employment regulations.

Posted by: Jeff Hirsch | Jan 19, 2011 8:59:56 AM

Thanks for the clarification, Jeff; it wasn't clear to me whether there was accord among those who run this website on these issues.

And, of course, prudence dictates that I not offer my opinion on the substantive issue. My only purpose was to note the apparentl conflict

Posted by: James Young | Jan 20, 2011 11:46:19 AM

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