WASHINGTON – The National Labor Relations Board on Friday threatened to sue Arizona, South Carolina, South Dakota and Utah over constitutional amendments guaranteeing workers the right to a secret ballot in union elections.
The agency's acting general counsel, Lafe Solomon, said the amendments conflict with federal law, which gives employers the option of recognizing a union if a majority of workers sign cards that support unionizing.
The amendments, approved Nov. 2, have taken effect in South Dakota and Utah, and will do so soon in Arizona and South Carolina.
Business and anti-union groups sought the amendments, arguing that such secrecy is necessary to protect workers against union intimidation. They are concerned that Congress might enact legislation requiring employers to allow the "card check" process for forming unions instead of secret ballot elections.
In letters to the attorney general of each state, Solomon says the amendments are pre-empted by the supremacy clause of the Constitution because they conflict with employee rights laid out in the National Labor Relations Act. That clause says that when state and federal laws are at odds, federal law prevails.
Solomon is asking the attorneys general in South Dakota and Utah for official statements agreeing that their amendments are unconstitutional "to conserve state and federal resources."
In his letter to South Carolina's attorney general, Solomon asks the state to take measures that would prevent the Legislature from ratifying the amendment. Solomon requested that Arizona's governor decline to make the amendment official.
Utah Attorney General Mark Shurtleff said he believes the state is on solid ground. He plans to coordinate a response with the other three states.
"If they want to bring a lawsuit, then bring it," Shurtleff said. "We believe that a secret ballot is as fundamental a right as any American has had since the beginning of this country. We want to protect the constitutional rights of our citizens."
South Dakota Attorney General Marty Jackley also promised to "vigorously defend our South Dakota Constitution" against any federal lawsuit.
Unions long have pushed for the card-check legislation, but the effort hasn't won enough support in Congress. Union officials say companies often use aggressive tactics — borderline illegal, they contend — to discourage workers from organizing unions.
Americans for Prosperity, a conservative group that spent millions to back congressional Republicans in last year's elections, was among the groups that pushed for passage of the state amendments. Phil Kerpen, the group's vice president for policy, said the NLRB's action "shows how determined the board is to accomplish card check by backdoor means against the wishes of the American people and Congress."
Kimberly Freeman Brown, executive director of the pro-union group American Rights at Work, said the board was confirming that "these initiatives were intended to restrict workers' rights to determine how they choose a union, disingenuously cloaked in the language of worker protection."
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