In letters to four state attorneys general released on January 13, 2011, NLRB Acting General Counsel Lafe Solomon threatened to sue four states that recently passed state constitutional amendments banning the use of the card check process in union elections.
In November 2010, voters in Arizona, South Carolina, South Dakota, and Utah passed constitutional amendments requiring secret ballot elections in all union elections. Currently, Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret ballot elections and voluntary recognition after a showing of majority support through the use of the card check process. The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111th Congress, which would have permitted the use of the card check process for union selection even outside the context of voluntary recognition.
Solomon warned the attorneys generals of those states that such amendments were contrary to federal labor law and preempted under the U.S. Constitution. Solomon also warned that the amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support. Solomon asked the four state attorneys general to halt voluntarily the amendments from becoming law or to prevent reliance on those amendments.