Last November, voters in Arizona, South Carolina, South Dakota, and Utah approved state constitutional amendments that would guarantee or require the use of secret ballots in union representation elections. In January of this year, NLRB Acting General Counsel Lafe Solomon told the attorneys general of the four states that Section 7 of the National Labor Relations Act preempts the amendments. Federal law provides two paths to choosing a union representative: (1) certification based on a Board-conducted secret ballot election, or (2) voluntary recognition based on other convincing evidence of majority support. The state constitutional amendments require secret ballot elections but do not specifically address voluntary recognition where it is permitted under the NLRA.

The attorneys general responded in a joint letter, asserting that they were prepared to defend the state amendments in court. The NLRB took them up on the offer and filed suit against the state of Arizona on May 6. The Board is asking the district court to declare that, to the extent the Arizona provision applies to private sector employees, employers, and unions subject to the NLRA, the state measure is preempted by the NLRA under the Supremacy Clause of the U.S. Constitution. Arizona has filed a motion to dismiss the lawsuit.

According to an NLRB press release, a second complaint is expected to be filed in South Dakota in the coming weeks. Solomon has said he would not immediately try to litigate the South Carolina and Utah measures.