Republican AGs to Defend Secret Ballot Amendments; Senate Republicans Introduce Secret Ballot Protection Act
On January 27, 2011, the Republican state attorneys general of Arizona, South Carolina, South Dakota, and Utah sent a joint response to NLRB Acting General Counsel Lafe Solomon pledging to defend recent state constitutional amendments barring the use of the card check process in union elections. On January 13, Solomon had threatened legal action against the four states.
In November, voters in those four states 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.
In support of the Republican attorneys general, Sen. Jim DeMint (R-S.C.) and 17 Republican co-sponsors, introduced the Secret Ballot Protection Act (S. 217). Mirroring the state constitutional amendments, the bill would ban the card check/voluntary recognition pathway and require secret ballot elections in all circumstances. With Democrats maintaining their Senate majority, the legislation faces an uphill battle to obtain the required 60 votes needed for cloture in the Senate.