NLRB to Sue Over Card Check Bans

The National Labor Relations Board (NLRB) has informed Arizona and South Dakota to expect federal lawsuits seeking to invalidate their states constitutional amendments that prohibit private sector employees from choosing to unionize through a procedure known as card check.

NLRB plans to invoke the United States Constitution’s supremacy clause, asserting state constitutional amendments that conflict with federal laws are in fact pre-empted by those laws.

While not expected to be named, South Carolina and Utah also have card check bans, and wins by NLRB in Arizona and South Dakota could serve as precedents to invalidate their state’s law.

Tom Horne, Arizona’s attorney general is quoted in The New York Times as saying, “I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot.”

Horne said that while federal pre-emption might apply to laws passed by Congress, it should not apply to the labor board’s decision allowing card check to be used in some unionization campaigns.

South Dakota’s attorney general, Marty Jackley, said he respectfully disagreed with the board’s analysis, adding that he did not believe the agency “has the authority under circumstances like this to sue a state.” ◆