(1)
NLRB Challenges State Amendments Weakening Worker Rights
By David Moberg
In These Times
January 14, 2011
http://inthesetimes.com/working/entry/6864/nlrb_challenges_state_amendments_weakening_worker_rights/

Reacting to state efforts to undermine workers' right to
organize unions, the National Labor Relations Board has
threatened to sue four states if they did not
acknowledge their recent state constitutional amendments
violated the U.S. Constitution.

On Thursday, the NLRB advised four states that their
amendments requiring a secret ballot vote for
recognition of a union violate federally protected
worker rights and the U.S. Constitution, which states
that federal law preempts any conflicting state laws.

After a campaign by Save Our Secret Ballot (SOS Ballot)
for a referendum last November 2, voters in Utah, South
Dakota, South Carolina, and Arizona approved the
amendments by solid majorities. The laws have already
taken effect in South Dakota and Utah and were expected
to do so soon in the other to states.

Acting general counsel Lafe Solomon of the NLRB asked
the four state attorneys generals to avoid the waste of
public funds on a court fight, but it seems likely the
Labor Board will have to file lawsuits in all cases. The
NLRB in the past has asserted preemption over state
laws, including those that expanded worker rights.

These amendments were never serious pieces of lawmaking
but political stunts by a group led by right-wing
Republican politicians-like former Oklahoma Rep. Eugene
Istook and Club for Growth leader and now Pennsylvania
Sen. Pat Toomey-and business interests. It was part of
the battle over the proposed, now-dormant (maybe
comatose) Employee Free Choice Act, which would have
guaranteed that workers could form a union whenever a
majority of them signs up in support.

Now workers can win recognition through elections or
majority sign-up ("card check"), but the employer
essentially has the right to choose the method. Business
groups and conservatives effectively-if duplicitously--
used the argument that EFCA would deny sacred secret
ballots, even though the law would not have done so and
even though secret ballots are not required for forming
other voluntary organizations.

Supporters of the four state amendments recognized all
along that they would never pass constitutional muster.
Here's what the National Association of Manufacturers
wrote a few days before the November vote on its
Shopfloor blog:

    Although the anti-democratic Employee Free Choice
    Act is a frequent topic at Shopfloor, our focus has
    always been on the legislation's prospects in
    Congress and, more recently, the possibility of the
    National Labor Relations Board enacting its
    provisions through rules and case decisions. Union
    elections fall under federal labor law, which we
    would guess - it's a guess! (if somewhat informed) -
    that the state measures would not stand a challenge
    in the courts.

    But the state votes on these "Save our Secret
    Ballot" measures will still send a powerful message,
    one that members of Congress need to take
    seriously...

    If the [EFCA co-sponsoring] House members [from
    these states] are re-elected next week even as the
    state secret-ballot measures win approval, the
    voters will have put them on notice: Do not EVER
    support the Employee Free Choice Act again.

By the way, even in a bad year and in conservative
states, five of the seven co-sponsors won re-election,
but they're not going to get a chance to strengthen
workers' rights for a while.

(2)
Fact Sheet
State Constitutional Amendments Conflict With the NLRA
National Labor Relations Board
January 14, 2011

** Operation of the Supremacy Clause of the United
States Constitution.

State enactments that conflict with federal laws such as
the National Labor Relations Act are invalid by
operation of the Supremacy Clause of the U.S.
Constitution. U.S. Const. Art. VI, cl. 2. That clause
states: This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding. ** Board
Authorization of Lawsuits against Four States. On
January 6, 2011 the National Labor Relations Board
authorized the Acting General Counsel to file lawsuits
against the States of Arizona, South Carolina, South
Dakota, and Utah in order to enjoin the application or
enforcement of recently approved State Constitutional
Amendments insofar as they conflict with the federal
rights of private sector employees to designate a union
to represent them.

** The Nature of the State Amendments.

The four Amendments differ in language, but all conflict
with federal law by closing off a well-established path
to union representation recognized by the Supreme Court
and protected by the National Labor Relations Act. The
Amendments require secret ballot elections in
circumstances where federal law permits private sector
employees to express their choice of union
representation by other means. South Carolina and Utah
provide an absolute guarantee of a secret ballot
election. Arizona and South Dakota require a secret
ballot election whenever an election is permitted by
state or federal law.

** Effective Dates of the Amendments.

Voters in the States approved the Amendments on November
2, 2010. However, the Amendments become effective on
different dates. The first was South Dakota's, which
became effective November 2, 2010. Utah's became
effective January 1, 2011. Unless South Carolina and
Arizona fail to take additional action, the amendments
in those states will become effective shortly. ** Agency
Communication with the States. In letters dated January
13 and delivered January 14, the Acting General Counsel
communicated with the States to explain the Agency's
position regarding the federal- state conflict created
by the Amendments, and to inform the States that the
Board has authorized the commencement of civil actions
in federal court if necessary to invalidate the
Amendments.

** Precedent for the Lawsuits.

The authority of the Board to bring such lawsuits was
long ago settled. In NLRB v. Nash-Finch Co., 404 U.S.
138, 144-147 (1971), the U.S. Supreme Court upheld the
NLRB's authority to seek federal court injunctions
against state actions that conflict with federal rights.
On several occasions in recent years, the Board has
either initiated or participated in litigation seeking
to invalidate state laws inconsistent with the NLRA. For
example, in NLRB v. State of North Dakota, 504 F. Supp.
2d 750 (D.N.D. 2007), the Board successfully argued that
a state statute requiring non- union members to pay the
union for the costs of processing their grievances
conflicted with federal law. Other lawsuits where the
Board has acted to protect federal rights from state
interference include Chamber of Commerce v. Brown, 554
U.S. 60 (2008) (statute impaired employer's right to
campaign for or against unionization); Livadas v.
Bradshaw, 512 U.S. 107 (1994) (state's interpretation of
statute impaired employees' right to collective
bargaining representation); Metro. Milwaukee Ass'n of
Commerce v. Milwaukee County, 431 F.3d 277 (7th Cir.
2005) (ordinance impaired employer's right to decide
whether to enter a card check and labor peace
agreement); and NLRB v. State of Illinois Dep't of Emp't
Sec., 988 F.2d 735 (7th Cir. 1993) (statute impaired
employees' receipt of a back pay award). ** Federal Law
at Issue: NLRA Section 7 Grants Employees Two Paths to
Vindicate Their Rights. Section 7 of the NLRA (29 U.S.C.
 157) guarantees the right of employees to organize and
select their own bargaining representatives, as well as
the right to refrain from all such activity. The Supreme
Court has long recognized that Congress did not
condition that fundamental right on the employees'
manifesting their choice in a secret ballot election.
Instead, federal law provides employees two paths to
vindicate their Section 7 right to choose a
representative: certification based on a Board-conducted
secret ballot election or voluntary recognition based on
other reliable evidence of majority support. Linden
Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 309-310
(1974); NLRB v. Gissel Packing Co., 395 U.S. 575,
596-599 (1969).

** Impact of the Amendments on Private Sector Employees
and Employers.

The State Amendments' impair the rights that federal law
grants employees and employers. The option that federal
law gives employers to act on employee petitions or
written authorizations of union representation is denied
by the States. Instead, employers are placed under
direct state law pressure to refuse to recognize - or
withdraw recognition from - their employees' choice of a
bargaining representative if that representative has not
been designated in a secret ballot election. In
addition, even though employees have designated their
choice of a union representative in accordance with
federal law and federal law obliges their employer to
bargain with that representative, the State Amendments
invite employees unhappy with a union designated by the
majority of their fellow employees to bring state court
lawsuits claiming a violation of their state
constitutional rights.

For further information, please contact the NLRB Office
of Public Affairs at 202-273-1991, or
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