Last Friday, the National Labor Relations Board (NLRB) announced its intentions to sue four states–Arizona, South Carolina, South Dakota and Utah–to overturn voter-approved amendments requiring any attempts to unionize a workplace be done with the same secret ballot system used for general elections.  The NLRB contends such amendments conflict with federal law and that federal law “pre-empts” them.  “The four amendments differ in language, but all conflict with federal law by closing off a well-established path to union representation recognized by the Supreme Court and protected by the National Labor Relations Act,” according to the labor board.

On June 16, 1933, Congress passed the National( Industrial) Recovery Act, (NRA) characterized by president Franklin Delano Roosevelt as “the most important and far-reaching ever enacted by the American Congress.”  Title 1 of that law called for writing and implementing a code system of fair competition for various industries–all of which could be deleted, re-written or created where none existed, by the president himself.  Roosevelt could not force businessmen to sign the code, but he could withhold an icon known as the NRA’s “blue seal of approval” posted in many shop windows, which signaled a business’s intention to cooperate with the government in rebuilding an economy decimated by the Great Depression. Two years later, Title 1 was unanimously overturned by the Supreme Court, which decided the act gave the Executive branch too much power to issue whatever edicts the president desired, and Congress too much control over interstate commerce which “invade(d) the power reserved exclusively to the States.”

Organized labor saw the repeal of this act as a further blow to their ambition to be protected from abusive business employers, which reached critical mass in 1933 and 1934, when a series of strikes occurred in the form of citywide shutdowns and factory takeovers.  Such strikes were often characterized by violent confrontations between workers wanting to form unions, and both police and private security forces protecting the interests of anti-union employers.  The majority of those strikes ended in failure, but in 1935 Congress responded and passed the National Labor Relations Act (NLRA). More commonly known as the Wagner Act, after Senator Robert R. Wagner of New York, the law gave employees  “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.”  It also gave  private-sector employees  two ways to organize a union: voting in a secret-ballot election conducted by the NLRB, or persuading an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means.

The second method, more familiarly known today as “card check,” was overturned by the aforementioned states in the November election.  Perhaps reflecting Americans’ current-day attitude towards unions in general, none of the votes were close.  Requiring secret ballot elections only got 60%  of the vote in Utah, 61% in Arizona, 79% in South Dakota, and 86% in South Carolina.  So far, the new amendments have only taken effect in South Dakota and Utah, but Arizona and South Carolina are expected to quickly follow suit.  And despite the intention of the NLRB to litigate, state officials indicated they would not back down.  ”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. If that right is challenged, our office is prepared to defend it in court,” said Mark Plowden, a spokesman for South Carolina’s attorney general.  “We believe we’re on very strong ground on this one,” said Utah Attorney General Mark Shurtleff. “The right to a secret ballot vote is as fundamental as the birth of this nation. We can’t believe you can change that by federal law.”  Shurtleff also indicated he was planning to formulate a detailed rebuttal and would ask the other three states to join him.

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