Skip to comments.NLRB Seeks to Overturn Voter-Approved Secret Ballot Laws in Arizona, South Dakota
Posted on 04/28/2011 9:10:43 AM PDT by jazusamo
(CNSNews.com) The National Labor Relations Board is seeking an unprecedented expansion of powers in a lawsuit to overturn voter-approved constitutional amendments in at least two states guaranteeing the secret ballot for union elections, South Dakota Attorney General Marty Jackley said.
The NRLB contends it is perfectly within the agencys jurisdiction to bring a preemptive lawsuit against the states.
The agency announced it would move forward with litigation against the states of South Dakota and Arizona to strike the laws from the states that voters approved last November to guarantee employees have the right to vote via secret ballot on whether to form unions at their workplace. The states of South Carolina and Utah passed similar amendments to their constitutions.
Many lawyers will tell you it [the secret ballot] is an implied right within their state constitutions, Jackley told CNSNews.com.
But this made it clear this is going to be an explicit right, a fundamental right, guaranteeing the right to the secret ballot for a variety of things: For elected officials such as myself, for the referendum process or ballot initiatives, and for employment representatives. That certainly has been the touchiest point with the AFL-CIO that had filed that initial state court lawsuit, Jackley added.
The AFL-CIO in South Dakota sought to prevent the measure from going to the ballot after it was passed by the legislature. The South Dakota Supreme Court ruled the measure could go to voters.
The ballot measure passed in the four states by wide margins in November. In Arizona, 61 percent of voters approved the measure. In South Carolina, 86 percent of the voters backed the secret ballot amendment. In South Dakota, 79 percent of the voters approved the amendment, and in Utah the initiative was approved by 60 percent of voters.
NLRB acting General Counsel Lafe Solomon told the four attorney generals in an April 22 letter, I have directed my staff to initiate lawsuits in federal court seeking to invalidate Arizona Constitutional Article 2 S. 37 and South Dakota Constitutional Article 6 S.28 as preempted by operation of the NLRA [National Labor Relations Act] (29 U.S.C. 151) and the Supremacy Clause of the United States Constitution (U.S. Const. Art. VI., cl. 2). I expect that they will do so shortly.
Solomon said it would not be efficient to take action against all four states at this time, leaving the door open for future suits against South Carolina and Utah.
We adhere to our position that all four state constitutional provisions are preempted and reserve the right to initiate a suit against the other two states at the appropriate time, Solomon continued.
The effort at the state level was in response to the proposed Employee Free Choice Act, a bill backed by congressional Democrats and President Barack Obama that never passed. This bill would have allowed secret-ballot elections in union organizing to be replaced with a system in which union organizers ask workers to sign a card, and once a majority signs, the union is recognized.
Opponents of the act say it opens the door for union organizers to pressure and intimidate employees. Advocates for the bill say that management intimidates workers from voting in the secret ballot elections, and attempt to block the elections from even taking place thus the card check system is necessary.
Under the 1935 National Labor Relations Act, private-sector employees have two ways to choose a union, according to an NRLB news release. Employees may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support for one. The board contends the amendments violate the second provision.
While he will be advocating for his states right to implement constitutional amendment, Jackley will also challenge the NLRBs authority to even bring the lawsuit.
If you look at historic case law dealing with the National Labor Relations Board it typically deals with labor disputes involving an employee and a business, and it doesnt involve a federal appointed board trying to undo the democratic process of a states voters to challenge a states constitution, Jackley said. I understand that just because there isnt a case that deals with that doesnt mean they cant do it, but this is an unprecedented expansion of this boards powers and authority.
The NRLB right to take such action has been upheld in court, said Nancy Cleeland, NRLB director of public affairs.
This action is far from unprecedented, Cleeland told CNSNews.com in a statement. The boards authority to initiate preemption lawsuits was upheld by the U.S. Supreme Court in a 1971 case called NLRB v. Nash-Finch Co. Since that time the Board has initiated or participated in a number of preemption actions against states, which are detailed in a fact sheet on our website. Such preemption lawsuits give effect to the Supremacy Clause of the U.S. Constitution, which expressly applies to state statutes and state constitutional provisions.
The action by the NLRB is simply political, as Obama and the Democrats could not push card check through the legislative process, said Katie Gage, executive director of the Workforce Fairness Institute, an advocacy group opposed to card check laws.
The Obama administration was not able to deliver, so it is using its National Labor Relations Board and any other group of unelected bureaucrats it can in time to deliver labor for the presidents reelection campaign, Gage told CNSNews.com. They look at it as their mission to partner with big labor unions to force people into labor unions. Workers rights to vote on the secret ballot are something that affects peoples everyday lives.
Solomon's reason of it not being efficient doesn't seem logical, could there possibly be something about SC and UT that would make for a more difficult case for NLRB?
We don’t have an Administration, we have a Junta.
Agreed. Obama and his appointed thugs will try any end run around Congress possible to gain power for the thug in the White House.
So that if they lose, they can figure out a way to improve their approach for the other two states?
Whatever happens this will wind up in the USSC and there Obama and his union thugs will lose.
I think this is a wonderful issue for the election as it highlights the extreme connection between the unions and the Left in the country. Since the majority of Americans now see the Unions as greedy and are FOR reductions in tax payer benefits for them, the issue will be a winner for the Republicans.
Thanks. That does seem like a possibility. Maybe they figure if they lost to all four states it would slam the door on them for future suits.
Obama’s NRLB is treasonous. How DARE them commies seek to thwart the states. The damnable NRLB is not even Constitutional, anyway.
Good points and I agree that it could go to SCOTUS. With the present court I believe it’s pretty certain the NLRB will be shot down.
“Employees may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support for one. The board contends the amendments violate the second provision.”
This sounds screwy to me. Hold the secret-ballot vote, and if the majority wants a union, so be it. Making people sign a card is pure union thuggery, and intimidation! And I’ve been the victim of union thuggery! I was too good a worker. producing too many parts per day.
Because it gives the NLRB a second bite at the apple if the first lawsuit doesn't go their way.
Never forget - THE ENEMY IS WITHIN
Bye-bye Free Republic...hello, Police State.
Thanks, I thought that a possibilty too.
That is a pretty weak foundation. I predict the NLRB gets slapped down.
Death to unions.
Those who refuse to sign are known to the union, and subject to harassment. Those who sign are unknown to management until the union gets a majority. So the union just keeps going until they get enough.
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