The National Labor Relations Board ("NLRB") has advised Arizona, South Carolina, South Dakota, and Utah that recently approved state constitutional amendments regulating union elections conflict with federal labor law and, therefore, are preempted by the United States Constitution. Each of those states had enacted amendments that require secret ballot elections for private sector employees to choose union representation. The federal-state conflict arises because federal law and precedent recognize two paths to union representation: secret ballot election or voluntary recognition by an employer upon a showing of majority support for the union. According to the NLRB, each state amendment prevents workers from persuading their employers to voluntarily recognize a union upon a showing of majority support. The NLRB has authorized its Acting General Counsel to file lawsuits against the states, if necessary, to enjoin state action and invalidate the amendments. This NLRB action could signal an era of Board activism.

For more information on the state amendments, please refer to our previous alert on this topic.