Fresh on the heels of its lawsuit against Boeing for attempting to locate a new plant in a state where it can commit the crime of running a profit, the NLRB now says it plans to sue the states of Arizona and South Dakota for passing state constitutional amendments requiring a secret ballot for unionizing a company.
The two targeted states argue there is no federal pre-emption of state law in this instance, because the federal labor statute doesn't prohibit secret ballot elections. The NLRB counter-argues that "Congress did not condition [the] fundamental right [to unionize] on the employees' manifesting their choice in a secret ballot election." It also explains that it is unfair to place employers "under direct state law pressure to refuse to recognize – or withdraw recognition from – their employees’ choice of a bargaining representative if that representative has not been designated in a secret ballot election." Yeah, I don't think that possibility is bothering many employers, but thanks for watching out for us!
Arizona and South Dakota aren't the only potential targets. While they passed their constitutional amendments by 61% and 79% votes respectively, voters in South Carolina and Utah passed similar constitutional amendments by 86% and 60% popular votes. The NLRB explained that it is not pursuing immediate lawsuits against the two additional states because it "doesn't have enough staff to handle four lawsuits at the same time." That confession suggests an immediate counter-strategy to this litigator.
The long-term counter-strategy, of course, is scheduled for November 2012.
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