Critics say NLRB pursuing card check outside legislative process

The Republican victories last November dashed organized labor’s hopes of Congress passing the Employee Free Choice Ace (EFCA), especially its card check provision, which would effectively eliminate the secret ballot in union organizing elections.

However, what the Obama administration could not get through Congress, it now aims to do via regulation.

Obama appointees to the National Labor Relations Board (NLRB) already have taken steps to push a pro-card check agenda. The latest occurred last Thursday, when NLRB General Counsel Lafe Solomon threatened to sue four states that recently amended their constitutions to guarantee workers the right to a secret ballot in union elections.

Voters in Arizona, South Carolina, South Dakota and Utah recently passed Secret Ballot Protection Acts, all with at least a 20 percent margin. The language in each state measure differs, but each guarantees workers the right to a secret ballot in employee representation elections.

The NLRB asserted that a provision in federal law preempts the state acts. In a letter, Solomon gave the states the option of calling the laws unconstitutional and allowing for a judicial order calling the amendments illegal “to conserve state and federal resources.” If the states fail to comply, Solomon threatened, “I intend to initiate [a] lawsuit.”

Solomon’s threat drew harsh criticism in the targeted states. Utah Attorney General Mark Shurtleff said he was ready to take the NLRB to court, asserting, “If they want to sue, my attitude is, bring it on, because we think card-check violates federal constitution protections.”

A spokesman for South Carolina Attorney General Alan Wilson said, “South Carolina voters spoke overwhelmingly to ensure that their ballot votes are kept between them and their Maker — not to be influenced by union bosses.”

Clint Bolick, litigation director at Arizona’s Goldwater Institute and a primary drafter of the ballot language for all four state measures, vowed to fight the NLRB. “The Obama administration has declared war on the right to a secret ballot, which voters in four states overwhelmingly acted to protect,” said Bolick. “Though any battle over federal preemption is a difficult one, the administration will have one heck of a fight on its hands.”

Solomon’s letter comes on the heels of the NLRB decision to hear a case that could overturn decades of legal precedent. The NLRB recently announced it would consider Roundy’s v. Milwaukee Building and Construction Trades, AFL-CIO, a case concerning union access to employer property.

Currently employers can decide who can gain access to their property. For example, a business owner can allow a charity access to solicit donations but can stop a union from holding a protest or trying to organize workers. This is because the charity is engaged in a neutral activity while the union’s action could be seen as hostile to the employer. The Obama NLRB likely will change this to allow unions full access if an employer grants admission to any charity.