In a January 13, 2011, letter to newly-elected Attorney General Alan Wilson, the National Labor Relations Board (NLRB) threatened to file suit against South Carolina if the General Assembly ratifies the recently passed constitutional amendment guaranteeing individuals the right to a secret ballot vote on the issue of union representation. The letter, written by Acting NLRB General Counsel Lafe Solomon, asserts that federal labor law preempts state law – including state constitutional provisions – and gives him the right to file suit in federal court to hold the conflicting state provision unconstitutional.

Solomon, whose nomination as NLRB General Counsel has yet to be confirmed by the Senate, advises Wilson that federal law gives employees two mechanisms by which to chose union representation: (1) the traditional representation election whereby the employees are given the opportunity to vote in secret, or (2) through voluntary recognition on the part of the employer presented with union cards signed by a majority of employees. Because the South Carolina constitutional amendment provides that only the secret ballot election method is allowed, Solomon argues the amendment is in conflict with, and therefore preempted by, federal law.

Employee rights supporters have criticized the NLRB recently for its aggressive pro-union stance and have expressed their concern that employee rights are being disregarded in favor of union growth. There is no mention of voluntary recognition in the National Labor Relations Act itself:

Whenever a petition shall have been filed in accordance with such regulations as may be prescribed by the Board, (by an individual, union or employer), the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists . . . it shall direct an election by secret ballot and shall certify the results thereof.

NLRA Section 9 (emphasis added)

The NLRB and some courts have allowed recognition without, or in spite of, a secret ballot election under some circumstances, including as a remedy for pervasive unfair labor practices by an employer which have made a fair election impossible. However, the decision of the U.S. Supreme Court Solomon cites in his letter, and upon which he apparently relies for his legal position, seems to leave the question open:

In sum, we sustain the Board in holding that, unless an employer has engaged in an unfair labor practice that impairs the electoral process, a union with authorization cards purporting to represent a majority of the employees, which is refused recognition, has the burden of taking the next step in invoking the Board’s election procedure.

Linden Lumber Division, Summer & Co., v. NLRB, 419 U.S. 301, at 310 (1974).

Solomon’s threat comes shortly after the NLRB issued another related ruling. In Dana Corp, the NLRB approved a process whereby a union and an employer entered into a secret agreement regarding terms and conditions of employment before the impacted employees signed union authorization cards. Dana Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) AFL-CIO (December 6, 2010). For the NLRB to suggest this ruling protects employee rights is highly questionable if not completely disingenuous.

The South Carolina amendment to Article 2, Section 12 of the state’s Constitution was ratified by over 86 percent of voters. Similar amendments ratified this past November in Arizona, South Dakota and Utah also are being challenged by the NLRB. The authors of the amendments admit to concern that Congress might pass the Employee Free Choice Act (EFCA) which would not only provide for “card check” unionization, but also for mandatory first contracts and binding arbitration when the union and employer could not agree on terms. Supporters of the amendment noted that obtaining a signature on a union authorization card could be achieved through pressure, intimidation and coercion, whereas secret ballot elections allow employees to express their choice, for or against union representation, free of intimidation. Past experience certainly supports this concern. Under current federal law, groups of union representatives can visit employees at their homes, showing up uninvited, for the purpose of obtaining that signature, and the NLRB’s rules require employers to give the unions employee names and addresses.

This constitutional showdown may occur soon. Solomon’s letter advised Attorney General Wilson that he would authorize the filing of a lawsuit if Wilson did not respond within two weeks. The right of South Carolina citizens to vote in secret regarding union representation is at risk.