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Don't fall for Gimmicks in Blocking Card Check.

ALG Editor's Note: National Right to Work highlights state-level efforts to amend their constitutions to ensure that workers keep their right to a private ballot:

Don't fall for Gimmicks in Blocking Card Check.

By Ray LaJeunesse, Jr.

There are efforts in several states to enact state constitutional amendments guaranteeing workers a secret ballot as to union representation. Foundation attorneys have litigated cases involving issues of preemption of state laws by federal labor statutes for almost forty years, including a leading United States Supreme Court case, Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971). We have concluded that the courts would find these proposed state constitutional amendments preempted and unenforceable as to workers covered by the National Labor Relations Act (NLRA).

The “Supremacy Clause declares the primacy of federal law over state constitutional provisions as well as over state common and statutory law. See U.S. Const. art. VI, cl. 2.” Utility Workers Local No. 246 v. Southern Cal. Edison Co., 852 F.2d 1083, 1087 (9th Cir. 1988); see, e.g., Local 514,Transport Workers Union v. Keating, 212 F.Supp.2d 1319 (E.D. Okla. 2002), aff'd, 358 F.3d 743 (10th Cir. 2004) (NLRA preempts certain provisions of Oklahoma's Right to Work constitutional amendment). That is explicit in the Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. (italics added).

Federal labor laws do not preempt state laws of general application “deeply rooted in local feeling and responsibility,” such as traditional tort and criminal laws. However, the proposed constitutional amendments are not such, because they are intended to establish labor policy. Determining how exclusive bargaining representatives are chosen under federal labor law is not an issue “deeply rooted” in local interests. No cases support the proposition that the secret ballot in union representation is a deeply rooted local interest. The First Amendment right not to associate does not help, because, unfortunately, the Supreme Court has already upheld the constitutionality under the First Amendment of exclusive representation (monopoly bargaining) and forced support of union bargaining activities and is unlikely to overrule those cases today. See, e.g., Minnesota State Bd. v. Knight, 465 U.S. 271, 278-79 (1984); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 217-37 (1977).

Not only is the secret ballot in union representation elections not traditionally a “deeply rooted” local interest, but recognition based on union authorization cards is a core interest of the NLRA currently and as amended by the so-called “Employee Free Choice Act” (EFCA). The current NLRA permits employers to recognize unions voluntarily based on authorization cards; EFCA would require it.

Thus, the courts would find the proposed constitutional amendments preempted, just as in SeaPak v. National Maritime Union the courts, including the Supreme Court, held that the section of Georgia's Right to Work law making dues deduction authorizations revocable at will is preempted by a section of federal law which requires that an assignment for deduction of union dues shall not be irrevocable for more than one year, because the “area of checkoff of union dues has been federally occupied to such an extent . . .that no room remains for state regulation.” 300 F. Supp. 1197, 1200 (S.D. Ga. 1969), aff'd, 423 F.2d 1129 (5th Cir. 1970) (adopting District Court's opinion), aff'd, 400 U.S. 985 (1971). Significantly, Congress did not explicitly state that the federal law preempts state laws, yet the courts still found preemption.

Preemption would be even more certain if the version of EFCA introduced in this Congress explicitly states that it preempts state laws, which it may now that state constitutional amendments that attempt to avoid EFCA are being introduced.

The time and treasure being devoted to enacting state constitutional amendments would be better spent on grass-roots efforts opposing passage of EFCA in Congress, like those of the National Right to Work Committee.

Raymond J. LatJeunesse, Jr., is Vice President and Legal Director for the National Right to Work Legal Defense Foundation, Inc., and can be contacted at rjl@nrtw.org.


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