Previously, Vorys on Labor reported on several state ballot initiatives that advanced amendments to state constitutions.  The amendments purported to protect the right to a secret ballot in any election, including a labor election.  These amendments passed by substantial margins in Utah, South Dakota, South Carolina, and Arizona — everywhere they were on the ballot.

As the prior post discussed, the state constitutional amendments raised a question about whether they were preempted by the NLRA.  The NLRB recently concluded that they were, and has formally notified the Attorney General of each of the four states of its position.  The NLRB reasons that federal law permits employees to organize either by secret ballot or by "voluntary recognition [by an employer] based on other convincing evidence of majority support" (i.e., union authorization cards or card check).  Because the state amendments limit one of these rights, and because federal law is supreme under the U.S. Constitution, the state amendment is preempted, and unconstitutional.

The Acting General Counsel of the NLRB wrote each state’s Attorney General explaining this position.  The letters demand that the state respond within 14 days of the letter or else a lawsuit attacking the amendments will be filed.

The NLRB’s action is certainly an aggressive one.  It has not decided to wait for a case in which the state amendment was invoked to reach the question of its constitutionality.  Rather, it is affirmatively threatening a lawsuit in order to have the amendments publicly declared to be unconstitutional.  This push towards litigation relatively soon after the election results is certainly consistent with the NLRB’s, and its Acting General Counsel’s, recent pursuit of stronger remedial measures for violations of the NLRA (see here, for example).