NLRB tells states they can’t ban card-check unionization

The National Labor Relations Board, in a letter dated Jan. 13, has told Arizona, South Carolina, South Dakota and Utah that their recently passed amendments banning the card check method of union recognition are null and void.

Amendments to the constitutions of those states conflict with federal labor law, says the NLRB and are automatically pre-empted by the Supremacy Clause of the U.S. Constitution.

The attorneys general of the four states were also told the Board has authorized the filing of lawsuits in federal court, if necessary, to prevent them from enforcing the illegal amendments to their state constitutions.

The NLRB reminded the states that under the 1935 National Labor Relations Act, private sector employees have two ways to choose a union: They may vote in a secret ballot election conducted by the NLRB, or they may persuade an employer to recognize a union after showing majority support by signed authorization cards or other means.

“The state amendments prohibit the second method and therefore interfere with the exercise of a well-established federally-protected right,” the Board wrote in its letter to the states. “For that reason, they are pre-empted by the Supremacy Clause of the U.S. Constitution.”

The amendments have already taken effect in South Dakota and Utah, and had been expected to become effective soon in Arizona and South Carolina.

An excerpt from the NLRB letter to Tom Horne, the attorney general of Arizona, underlines the apparent high level of determination by the Board to use the power of the federal government to protect the rights of workers:

The NLRA, enacted by Congress in 1935, is the primary law governing relations between employees, employers and unions in the private sector. The NLRA implements the national labor policy of assuring ‘full freedom’ in the choice of employee representation and encouraging collective bargaining as a means of maintaining industrial peace.

Section 7 of the NLRA guarantees the right of employees to organize and select their own bargaining representatives, as well as the right to refrain from all such activity.

This Section 7 right of employees is a fundamental right.

Congress could have conditioned that fundamental Section 7 right on the employees’ choice ‘surviving the crucible of a secret ballot election.’ But Congress did not do so.

The section of the law that defines the conditions under which a union may obtain the status of ‘exclusive representative,’ requires only that the union be ‘designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes.’ As a result, ‘almost from the inception of the Act it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation.

The NLRB letter to the four states also criticizes the state amendments because “the inevitable consequence is that employers are placed under direct state law pressure to refuse to recognize – or withdraw recognition from – any labor organization lacking an election victory.”

The Board also noted that a small disgruntled minority of workers would find it easier to take away the right of an overwhelming majority of workers to continue to be represented by their union:

“In addition, employees unhappy with a union designated by the majority of their fellow employees and recognized by their employer in accordance with federal law could bring state court lawsuits against both their employer and union claiming a violation of their constitutional rights.”