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NLRB Authorizes Lawsuits against Four States Requiring Secret Ballots in Union Elections

By Roger S. Kaplan and Jeffrey W. Toppel
  • January 19, 2011

The Acting General Counsel of the National Labor Relations Board, Lafe E. Solomon, has notified the attorneys general in four states — Arizona, South Carolina, South Dakota, and Utah — that the Board had authorized him to file lawsuits in federal court seeking to enjoin the attorneys general from enforcing each state’s recently passed state constitutional amendment governing the method by which employees choose union representation.  The Acting General Counsel is taking the unprecedented move of demanding that the four attorneys general agree to ignore the decision by their state’s voters to require the right to vote by secret ballot in all union elections. Solomon’s January 13, 2011, letters are just the latest Board initiative in its continuing effort to change the national labor policy.

State Constitutional Amendments

In November, voters in Arizona, South Carolina, South Dakota, and Utah voted to pass amendments to each state’s constitution to require secret ballot elections in circumstances where federal law permits private-sector employees to express their choice of union representation by other means. The amendments passed in South Carolina and Utah provide an absolute guarantee of a secret ballot election. Those passed in Arizona and South Dakota require a secret ballot election whenever an election is permitted by state or federal law. 

The amendments were largely in response to efforts by the labor movement to pass the Employee Free Choice Act (EFCA), which would have eliminated the right to a secret ballot election under federal law. Although it became apparent last year that EFCA would not get to the President’s desk for signature, the voters in these four states still voted overwhelmingly in favor of the right to a secret ballot election: Arizona (Prop 113 passed by 61%); South Carolina (Amendment 2 passed by 86%); South Dakota (Amendment K passed by 79%); and Utah (Amendment A passed by 60%).  The South Dakota and Utah amendments already have become effective while the Arizona and South Carolina amendments are expected to go into effect shortly.

Acting General Counsel’s Letters to the Four States

In his January 13th letters, the Acting General Counsel informed the attorneys general that the voter-approved amendments conflict with “the employee rights and employer obligations set forth in the NLRA.”  According to Solomon, “By closing off an alternative route to union representation authorized and protected by the NLRA, [the Arizona Amendment] creates an actual conflict with private sector employees’ Section 7 right to representatives of their own choosing.”  In his letter to Arizona’s Attorney General Tom Horne, for example, Solomon concludes:

The inevitable consequences of this Amendment is that Arizona employers are placed under direct state law pressure to refuse to recognize — or withdraw recognition from — any labor organization lacking an election victory….In these circumstances, the Amendment impairs important federal rights of employees, employers, and unions covered by the NLRA in Arizona.

To avoid the Board’s threatened litigation, Solomon asked the attorneys general to take steps to prevent the amendments from taking effect.  For example, he asked the Arizona Attorney General if he “might be willing to take voluntary measures to ensure that the Amendment will not be proclaimed, and that the public will be so notified.”  The letter provided the Arizona Attorney General two weeks to respond and stated that, absent any response, the Acting General Counsel “intends to initiate the lawsuit.”


States Reject Pressure

The Acting General Counsel essentially has told the states that they should ignore the will of their voters and voluntarily refuse to implement their voter-passed constitutional amendments simply because the NLRB has told them to do so.  No legal authority is cited under the various state laws on which the attorneys general could base such action.

The attorneys general for South Carolina and Utah have made public statements opposing the Board’s attempt to thwart the will of their state’s voters.  The Utah Attorney General, Mark Shurtleff, stated, “[B]ring it on, because we think card-check violates federal constitution protections.”  South Carolina Attorney General Alan Wilson noted that his state’s voters overwhelmingly voted “to ensure that their ballot votes are kept between them and their Maker — not to be influenced by union bosses.”
Based on these early comments, it does not appear that the targeted states will be pressured into voluntarily agreeing to bypass their voters’ decisions.  Jackson Lewis will continue to update you on the NLRB’s campaign to eliminate the fundamental right to a secret ballot election.

©2011 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

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