National Labor Relations Board Acting General Counsel Lefe E. Solomon has instructed NLRB lawyers to immediately initiate lawsuits in federal court seeking to invalidate constitutional amendments recently adopted in Arizona and South Dakota that require a secret ballot election whenever an election, designation, or authorization for employee representation is required or permitted by state or federal law. The NLRB contends the state constitutional provisions are preempted by the National Labor Relations Act (NLRA) and the Supremacy Clause of the U.S. Constitution.

In January 2011 Mr. Solomon informed the attorneys general of Arizona, South Dakota, South Carolina, and Utah that Section 7 of the NLRA provided employees two avenues to choose a representative--a secret ballot election conducted by the NLRB or voluntary recognition based on “other convincing evidence of majority support.” Mr. Solomon contended that the state constitutional provisions adopted in the four states requiring secret ballot elections preclude voluntary recognition that is permitted by the NLRA. The four attorneys general jointly responded to Mr. Solomon that each would defend their state’s constitutional amendment and that the amendments did not conflict with the NLRA.

Although the constitutional amendments adopted in South Carolina and Utah contain similar provisions to those to be challenged in Arizona and South Dakota, Mr. Solomon stated he had decided not to institute additional lawsuits against those two states “at this time” in the hope of conserving “limited federal and state agency resources and taxpayer funds.” Mr. Solomon stated that he reserved the right to institute additional lawsuits against South Carolina and Utah at an appropriate time.