NLRB Acting General Counsel Lafe Solomon has announced his intent to file lawsuits in Arizona and South Dakota to nullify those states’ constitutional amendments that preserve secret ballot elections. According to Solomon, the state measures are preempted by the National Labor Relations Act (NLRA) and the U.S. Constitution’s Supremacy Clause, and are therefore invalid.

The NLRB’s dispute over the constitutional measures began in November of 2010, when four states – Arizona, South Dakota, Utah and South Carolina – approved constitutional amendments containing language upholding the “fundamental” right to the secret ballot. These efforts were widely viewed as preemptive strikes against the possible reintroduction of the beleaguered Employee Free Choice Act (EFCA) and other efforts to bypass secret ballot elections. In response to these constitutional amendments, Acting General Counsel Solomon informed the attorneys general of those states that it was the Board’s position that the amendments were unconstitutional and that any attempt to enforce or enact those provisions would result in litigation.

In a strongly-worded response to the NLRB, the attorneys general explained that they would “vigorously defend any legal attack” and urged the Board to reconsider its decision. The attorneys general claimed that the NLRB premises its proposed lawsuit:

on the erroneous conclusion that our constitutional provisions require elections when federal law does not. We do not believe that is true. Our amendments support the current federal law that guarantees an election with secret ballots if the voluntary recognition option is not chosen. . . . Accordingly, your letter fails to establish that our State constitutional protections have disrupted the federal regulatory scheme in any way. Both the State amendments and the NLRA support secret ballot elections in selecting union representatives.

Shortly after this letter, Acting GC Solomon responded that he would hold off filing any lawsuits in the hope that the matter could be “resolved without the necessity of costly litigation.”

By letter dated April 22, Acting GC Solomon stated that “in view of the seeming impossibility of settling this dispute without litigation, I have directed by staff to initiate lawsuits in federal court seeking to invalidate” Arizona’s and South Dakota’s amendments. Solomon will hold off on filing similar suits in South Carolina and Utah “to conserve limited federal and state agency resources and taxpayer funds,” although he reserved the right to take action in those states at a later date. According to Solomon, Arizona’s and South Dakota’s provisions are similarly-worded, “requiring a secret ballot election whenever an election, designation, or authorization for employee representation is required or permitted by state or federal law. Accordingly, I have decided it would be efficient to place those two provisions before the courts within the same general time frame.”

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