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The National Labor Relations Board on Friday threatened to sue Utah, Arizona, South Carolina and South Dakota over constitutional amendments guaranteeing workers the right to a secret ballot in union elections.
The amendments conflict with federal law, which also gives employers the option of recognizing a union if a majority of workers sign cards that support unionizing, said Lafe Solomon, the agency's acting general counsel.
The amendments, approved by voters on Nov. 2, have taken effect in Utah and South Dakota, and will do so soon in Arizona and South Carolina.
Business and anti-union groups sought the changes, arguing secrecy is necessary to protect workers from union intimidation. They also are concerned Congress might enact legislation that would require employers to recognize the "card check" process in forming unions.
In letters to the attorneys general, Solomon said the supremacy clause of the U.S. Constitution preempts the amendments because they conflict with employee rights laid out in the National Labor Relations Act. That clause says that when state and federal laws are at odds, federal law prevails.
Solomon is asking the attorneys general in Utah and South Dakota for official statements agreeing that their amendments are unconstitutional "to conserve state and federal resources," rather than going to court.
Utah Attorney General Mark Shurtleff said Friday he believes the state is on solid ground. He plans to coordinate a response with the other three states, rejecting the option of card-check elections.
"If they want to bring a lawsuit, then bring it," Shurtleff said. "We believe a secret ballot is as fundamental a right as any American has had since the beginning of this country. We want to protect the constitutional rights of all our citizens, including employees in the workplace."
South Dakota Attorney General Marty Jackley also promised to "vigorously defend our South Dakota Constitution" against any federal lawsuit.
Unions long have pushed for the card-check legislation, but the effort hasn't won enough support in Congress. Union officials say companies often use aggressive tactics to discourage workers from organizing unions.
Jim Judd, president of the Utah AFL-CIO, said incidents of union organizers pressuring workers are rare, but employer coercion is common and typically takes place well before any secret vote.
"Think about who has the power to coerce," Judd said. "Is it an outside union organizer? Or is it the business owner or manager who has the ability to hire, fire, demote, transfer or take other punitive actions?"
Judd said the federal agency's letter threatening legal action comes as no surprise. He had predicted a costly lawsuit in testimony he gave during hearings on the proposed amendment last year. The law took effect Jan. 1.
Among those that pushed for passage of the state amendments was Americans for Prosperity, a conservative group that spent millions to back congressional Republicans in last year's elections. Phil Kerpen, the group's vice president for policy, said the federal action "shows how determined the board is to accomplish card check by backdoor means against the wishes of the American people and Congress."
Kimberly Freeman Brown, executive director of the pro-union group American Rights at Work, said the labor board was confirming that "these initiatives were intended to restrict workers' rights to determine how they choose a union, disingenuously cloaked in the language of worker protection."
The Associated Press contributed to this story.
About the amendment
R The amendment to Utah's constitution approved by voters on Nov. 2 guarantees workers the right to secret balloting in union elections.