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Washington Labor & Employment Wire » NLRB Acting General Counsel Solomon to Delay Lawsuits Over State Card-Check Bans

NLRB Acting General Counsel Solomon to Delay Lawsuits Over State Card-Check Bans

In a February 2, 2011 letter, NLRB Acting General Counsel Lafe Solomon appeared to back down from a previous threat to bring suit against four states that recently passed state constitutional amendments banning the use of the card check process and requiring secret ballot elections for union recognition. In his letter, he expressed an interest resolving apparent conflicts between the state amendments and federal law without “the necessity of costly litigation.”

Previously, on January 13, Solomon had sent the state attorneys general a letter threatening legal action to halt implementation of the amendments. He warned the attorneys general 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 voluntarily halt the amendments from becoming law or to prevent reliance on those amendments, warning that the NLRB would be filing suit to overturn or otherwise void the amendments.

The response of Attorneys General Tom Horne of Arizona, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, and Mark L. Shurtleff of Utah in a joint letter on January 27 claimed that the amendments could be reconciled with federal law, and pledged to defend them. In urging resolution of the matter, Solomon’s February 2 letter agreed that he hoped that the amendments could be reconciled with the NLRA.

In November, voters 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.