NLRB Challenges State Amendments Weakening Worker Rights

David Moberg

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.

David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy.

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