In response to constitutional amendments recently adopted in four states that contain language upholding the “fundamental” right to the secret ballot, the National Labor Relations Board has advised the attorney generals in Arizona, South Carolina, South Dakota and Utah that the National Labor Relations Act preempts such provisions. Each attorney general was also informed (pdf) that if a response to the NLRB’s letter was not issued within the next two weeks, the agency would file lawsuits in federal courts to enjoin enforcement of the amendments.

The state constitutional changes are considered to be preemptive strikes against the (unlikely) enactment of the Employee Free Choice Act (EFCA) and other administrative efforts to bypass secret ballot elections. The NLRB contends in a fact sheet (pdf) that these state constitutional amendments govern the method by which employees choose union representation in conflict with federal labor law, and therefore are preempted by the Supremacy Clause of the U.S. Constitution. Specifically, the NLRB contends that the NLRA permits employees to choose a representative via certification based on a Board-conducted secret ballot election or through voluntary recognition based on other convincing evidence of majority support. The NLRB argues that by eliminating the latter option, the state constitutional amendments conflict with private sector employees’ Section 7 right to representatives of their choosing and are therefore preempted.

The NLRB asks the attorney generals in Arizona and South Carolina, where the amendments have not yet taken effect, to voluntarily take steps to ensure that the amendments are not officially enacted and/or ratified. For South Dakota and Utah – where the respective amendments have been formally adopted – the NLRB asks the state attorney generals to stipulate to their unconstitutionality.

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