NLRB Seeks to Overturn Voter-Approved Secret Ballot Laws in Arizona, South Dakota

By Fred Lucas | April 28, 2011 | 4:01 AM EDT

( – 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 agency’s 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

“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 state’s right to implement constitutional amendment, Jackley will also challenge the NLRB’s 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 doesn’t involve a federal appointed board trying to undo the democratic process of a state’s voters to challenge a state’s constitution,” Jackley said. “I understand that just because there isn’t a case that deals with that doesn’t mean they can’t do it, but this is an unprecedented expansion of this board’s 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 in a statement. “The board’s 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 president’s reelection campaign,” Gage told “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 people’s everyday lives.”