NLRB Advises Four States That Respective State Constitutional Amendments Are Pre-Empted By Federal Labor Law

NLRB Advises Four States That Respective State Constitutional Amendments Are Pre-empted By Federal Labor Law

On January 14, 2011, the National Labor Relations Board (NLRB) advised the Attorneys General of Arizona, South Carolina, South Dakota, and Utah of its position that recently-approved state constitutional amendments governing the methods by which employees may choose union representation in those states conflict with federal labor law and are therefore pre-empted by such law under the Supremacy Clause of the United States Constitution. The NLRB also advised those states that it has authorized the acting General Counsel to file civil actions in federal court to enjoin them from enforcing the amendments, if necessary.

The National Labor Relations Act (NLRA), enacted by Congress in 1935, is the primary law governing relations between employers, employees, and unions in the private sector. Under the NLRA, private-sector employees have two ways to choose a union as their bargaining representative. First, employees may seek certification of the union through a secret ballot vote conducted by the NLRB. Second, employees may seek voluntary recognition of the union by the employer based on other convincing evidence of majority support for the union. According to the NLRB, however, recently-approved constitutional amendments in Arizona, South Carolina, South Dakota, and Utah prohibit employers in those states from voluntarily recognizing a union. Therefore, the NLRB asserts, the constitutional amendments directly interfere with employees’ exercise of a federally-protected right in those states in contravention of the Supremacy Clause of the United States Constitution.

Accordingly, the NLRB has advised the Attorneys General of Arizona, South Carolina, South Dakota, and Utah of its legal position with regard to their constitutional amendments, invited them to review the Board’s legal position in hopes of reaching a judicially-sanctioned stipulation as to the unconstitutionality of those amendments, and informed them of the Board’s intention to file federal lawsuits to prohibit the enforcement of those amendments in the event no resolution is reached.