NLRB sues Arizona

The NLRB has sued the State of Arizona to invalidate, as preempted, an Amendment to the Arizona Constitution which would require a secret ballot election before a union could be designated, selected, or authorized to be the collective bargaining representative for any group of employees. It will be surprising if this case lingers before a ruling in favor of the NLRB.

Preemption of state secret ballot legislation

Earlier this month NLRB General Counsel Lafe Solomon urged threatened to sue four states unless they acknowledge their recently passed state laws requiring secret ballot elections are preempted by the NLRA. The four state's attorneys general have now responded. The point asserted is that the state laws are consistent with the NLRB's current law which also requires a secret ballot election when an employer refuses to recognize a union voluntarily. If that were the end of discussion, the AG's would be correct, but the head scratchers would ask what is the reason to pass such legislation. It is widely believed the legislation is a preemptive strike against the possibility the NLRB might change its rules, or Congress might pass something like EFCa. If such a conflict arose, it would be real and implicate federal preemption. Also, the state laws purport to regulate voluntary recognition, which likely will revert to pre-Dana law which guarantees no secret ballot election.

Nullification!

Four states have passed laws requiring secret ballot elections by workers on unionization. This insurance policy was taken out by republican and business interests last November, even though EFCA was already dead. Now the NLRB has threatened to sue the states unless they agree the laws are unconstitutional and preempted. A few years back, I would have bet this was a slam dunk issue for the NLRB, but the scope of Garmon preemption may not seem as broad for the current Supreme Court. We have already entered a time when serious talk of nullification of federal laws by state officials would raise John C. Calhoun from eternal rest and spin Andrew Jackson a few times in his grave. Can serious talk of narrowing preemption when it serves to undercut federal authority be far off?

State anti-EFCA measures

Four states (Arizona, South Carolina, South Dakota and Utah) passed provisions requiring secret ballot elections to determine a union's majority status. First, it is extraordinarily unlikely the NLRB will abandon secret ballot elections, so any petition would be processed under the current, long-standing secret ballot election procedures used by the NLRB. As for voluntary recognition situations, under which employers and unions may by-pass the election process, the effect is less certain, but absent a major rethinking of federal preemption, I do not see how states can permissibly regulate the process of determining majority status by card check or other non-election evidence that a majority of the employees support unionization.

Starcaps case advances

The Starcaps case advances. A Minnesota trial court has held that the NFL violated state law by failing to notify affected Vikings' players Kevin and Pat Williams of their test results within the required three day period. Nevertheless the court upheld the NFL's suspensions of the players, finding the notice violations had not harmed the players. This news report seems to have garbled some of the courts reasoning. It seems also the state court judge will suspend his ruling pending the players' appeal. Our previous post on the Eighth Circuit's opinion is here.