The election of a Republican-rich Congress probably brought the curtain down on the Employee Free Choice Act (“EFCA”), and its controversial elimination of the employer’s right to demand a secret-ballot election before a union can be certified as its employees’ bargaining representative.
Nevertheless, the public in four states (Arizona, South Carolina, South Dakota and Utah), voted to amend their State Constitutions to preserve secret-ballot Union elections.
- The amendments in South Carolina and Utah provide an absolute guarantee of a secret ballot election.
- The amendment in Arizona and South Dakota provide that a secret-ballot election is required whenever an election is permitted by state or federal law.
The South Dakota and Utah amendments are already in effect; the other two will be soon.
Interestingly, on January 13, 2011, National Labor Relations Board (“NLRB”) General Counsel Lafe Solomon wrote the Attorney Generals in the four states stating his belief that the constitutional amendments are preempted by the Supremacy Clause to the United States Constitution. The Supremacy Clause essentially invalidates state legislation that conflicts with a federal law. Because the National Labor Relations Act (“NLRA”) lets an employer choose to recognize a Union without an election, General Counsel Solomon wrote that the States’ amendments conflict with its federal law and are, therefore, preempted. The General Counsel has been authorized to file federal lawsuits to enjoin application these new State laws.
Not to be outdone, on January 27, 2011, Congressional Republicans introduced the Secret Ballot Protection Act, which would amend the NLRA to make it an unfair labor practice for an employer to recognize, or for a union to cause an employer to recognize, a union without a secret ballot election.
Also on January 27, the Attorney Generals of the four states wrote a joint letter to General Counsel Solomon stating: “[W]e will defend these provisions of our State Constitutions if they are challenged, but we also firmly believe that lawsuits by the federal government to attack these provisions would be misguided. Such lawsuits not only would cost the taxpayers substantially, but would seek to undermine individual rights that the NLRA and our state and federal Constitutions protect [via the First and Fourteenth Amendments].”
In a final twist, on February 2, 2011, General Counsel Solomon wrote the states another letter stating that he shared their desire “to resolve this matter without unnecessary expenditure of taxpayer money” and that there “may . . . be a basis upon which this matter can be resolved without the necessity of costly litigation.”
Bottom Line
The struggle over secret ballot is likely to continue at both the state and federal level for some time to come. As it stands now, however, the NLRB presumably will continue to insist that secret ballot elections are not required by the NLRA, and they may still decide to sue one or more states that seek to require them.