NLRB Tells States Secret Ballot Only Union Election Laws Are Preempted By Federal Labor Law

On January 14, 2010, the National Labor Relations Board ("NLRB") issued a press release stating it informed the Attorneys General of Arizona, of South Carolina, and of Utah that recently-approved constitutional amendments to those states' laws requiring that union elections be conducted only by secret-ballot elections and not by submission of signed union authorization cards or by other means.  The NLRB informed those states also that the NLRB would file suit in federal court to enjoin those states from enforcing those laws.

The NLRB does, occasionally, take an active interest in changes to law at the State level. In 2007-2008 the NLRB joined the Chamber of Commerce's attack on California legislation restricting labor-related communications by employers who receive state funds. There, the NLRB argued that California law's restrictions on non-coercive employer communications with employees about labor issues conflicted with employers' protections under federal law in the National Labor Relations Act. The Supreme Court agreed with NLRB and struck down the California law in the 2008 Chamber of Commerce v. Brown ruling.

The posture taken by NLRB may, on its face, appear hostile to the concept of secret ballot elections. However, the NLRB's position is supported by decades of legal authority allowing for bargaining relationships between employers and unions to be created with mechanisms other than secret ballot elections. Voluntary recognition, providing for a bargaining relationship without a secret ballot election, has long been a way for employers and unions to commence relationships provided that the union first gathers uncoerced evidence of majority support from the employees the union claims to represent.

By limiting lawful employee representation to instances where a secret ballot election has been held, the various state enactments would effectively eliminate voluntary recognition as a viable mechanism for private sector labor relations governed by the National Labor Relations Act. Additionally, the enactments if allowed to remain in effect may very well call into question the ongoing validity of preexisting bargaining relationships where there has been no secret ballot election conducted by NLRB or otherwise. In that light, the enactments clearly call into question matters regulated by the NLRB and which affected employees, employers, and labor unions should reasonably expect to be stricken down as enacted.

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