NLRB Says States Cannot Require Secret Ballot Elections

Written by Robert G. Brody on February 25, 2011

The National Labor Relations Board (NLRB) announced it believes constitutional amendments passed in four states prohibiting an employer’s voluntary recognition of a union are preempted by the National Labor Relations Act (NLRA).  The final decision on this issue could have a huge impact on how union representation elections are held in the United States.

Under the NLRA, there are two ways a union can be recognized as the employee’s representative: 1) secret ballot elections, and 2) voluntary recognition.  Voters in Arizona, Utah, South Carolina, and South Dakota approved amendments to their state constitutions which require unions to be recognized through secret ballot elections.  The NLRB claims these amendments are preempted by Section 7 of the NLRA, which grants all employees the ability to choose whether or not they want to be represented by a union. 

These amendments were created in response to the Employee Free Choice Act (EFCA), a bill repeatedly introduced in Congress.  Among other things, EFCA would eliminate secret ballot elections in many instances.  While that bill has yet to become law, these four states wanted to preemptively insure an employee’s right to a secret ballot election.  However, the NLRB thinks the states went too far and trampled on employee’s federal rights.

The NLRB has threatened the Attorney Generals in each state, saying if the states do not repeal these amendments, the NLRB will get them repealed through a Federal lawsuit.  If the NLRB’s efforts fail, other states are sure to follow, making secret ballot elections more common.  This in turn will make it harder for unions to get elected. 

We will continue to keep you updated on this issue.  In the mean time, employers in these four states who may be facing a union election should contact legal counsel to ensure compliance with all state and federal laws.  Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More