The NLRB Warns State Secret Ballot Amendments Illegal

The National Labor Relations Board (NLRB) has advised the Attorneys General of Arizona, South Carolina, South Dakota and Utah that recent attempts to mandate the use of secret ballot-only union elections are illegal.

All four states have recently approved state constitutional amendments requiring secret ballot elections in circumstances where federal law permits private sector employees to express their choice of union representation by other means. But under the 1935 National Labor Relations Act, private-sector employees have two ways to choose a union: They may vote in a secret ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means. While the four amendments differ in language, all of them conflict with federal law by stripping away workers’ rights to gaining union representation via the second method, in place now for 76 years.

The Supremacy Clause of the U.S. Constitution deems any state law that conflicts with federal law invalid.

The NLRB says it is prepared to sue all four states in federal court if necessary.