Friday, January 14, 2011

NLRB Tells AG's in Four States that Secret-Ballot Amendments are Preempted by Federal Law

This past election cycle four states, Arizona, South Carolina, South Dakota, and Utah, had ballot measures that would ban card check legislation--that is, sought to preempt the controversial Employee Free Choice Act (EFCA). In response to this, the National Labor Relations Board (NLRB) has advised the Attorney Generals in those four states these amendments conflict with federal labor law and therefore are preempted by the Supremacy Clause of the U.S. Constitution.

From the press release:

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. Further details are available on this page, including a fact sheet prepared by the NLRB and copies of the advisory letters.

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