And if the State Assembly attempts to enact Amendment 2 in its new 2011 session, NLRB is ready to sue, says its acting general counsel.
In a letter to Alan Wilson, newly-elected state attorney general, NLRB’s Lafe E. Solomon wrote “(the Amendment) conflicts with the rights afforded individuals covered by the National Labor Relations Act.”
And if the state tries to use the new law, “I have been authorized to bring a civil action in federal court to seek to invalidate the Amendment.”
Solomon gave Wilson two weeks to respond to the January 13 letter before filing suit.
The ballot description of the amendment in November 2’s elections read: “A ‘Yes’ vote will give employees the constitutional right to vote by secret ballot when they are voting on whether to be represented by a labor union.”
Amendment 2, which results in changes to Article II of the state constitution, received support from 86 percent of voters in the recent General Election.
Organized labor in the state argued against the amendment, though, claiming its wordage to be misleading.
Workers already have that secret-ballot option, and despite its description that insinuates protection of rights, the amendment actually removes another right.
The National Labor Relations Act allows two methods of union formation: workers can form a union by secret ballot in an election overseen by NLRB; or an employer can be asked to recognize a union after a majority of workers sign authorization cards.
The recent amendment, however, would actually take away the latter option.
Because Amendment 2 would conflict with this federal law, it violates the U.S. Constitution’s Supremacy Clause, says the NLRB, which cited many legal precedents in its letter to Wilson.
The Amendment could also conflict with the Employee Free Choice Act, a legislative bill still under review by both houses of U.S. Congress, and which is anticipated to pass following revisions.
The Employee Free Choice Act would “amend the National Labor Relations Act to establish an efficient system to enable employees to form, join or assist labor organizations to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes.”
Currently, after being approached by workers who recently voted to unionize, a company can delay union formation by insisting on a later secret-ballot vote. Before that additional voting procedure, those companies can apply pressure on employees not to form a labor union, and even fire workers who helped organize the union vote.
Under the Employee Free Choice Act, however, employers would no longer have that tactic. Companies that engaged in such procedures could be substantially fined, as well.
The proposal to add Amendment 2 to the ballots was introduced to the State Assembly by state Rep. Eric Bedingfield, and was co-sponsored by 73 other Republican state representatives.
Bedingfield openly stated his intentions behind the bill were to challenge “legislation being proposed in Washington.”
NLRB sent similar warnings to Arizona, which also passed a similar amendment in the last election, and to Utah and South Dakota, where such laws are already in effect.