The National Labor Relations Board says it will move ahead with lawsuits seeking to invalidate state constitutional amendments in Arizona and South Dakota that require workers to hold secret ballot elections before a company can be unionized.
The move comes after months of negotiations that failed to reach a settlement with attorneys general for the two states, according to an April 22 letter from the agency's acting general counsel, Lafe Solomon.
It's the latest in a series of high-profile steps the agency has taken to defend union rights since gaining a Democratic majority last year for the first time in nearly a decade. And it comes as Republican state legislators are enacting anti-union laws in many states as budget-cutting efforts.
Last week, the NRLB filed a controversial lawsuit that accuses Boeing Co. of putting one of its assembly lines for the new 787 in South Carolina _ a right to work state _ to retaliate against union workers in Washington state who went on strike in 2008.
Solomon told state officials he has directed staff to file the lawsuits against Arizona and South Dakota "shortly." He claims the amendments conflict with current federal law that gives employers the option to recognize a union if a majority of workers simply sign cards, a process known as "card check."
Solomon also claims the state amendments are pre-empted by the supremacy clause of the Constitution. That clause says federal law prevails if there is a conflict between state and federal law.
But Arizona Attorney General Tom Horne said the NLRB had no legal basis to file a lawsuit.
"There's no statute that says people can't have secret ballot elections, so there's no preemption," Horne said.
The amendments were approved by voters on Nov. 2 after business and conservative groups argued that secret ballots are needed to protect workers from union coercion. Those groups fear that Congress might enact card check legislation that would require employers to recognize unions of a majority of workers sign cards instead of holding secret ballot elections.
The agency had also threatened to sue South Carolina and Utah over the same issue. Solomon's letter said he is not suing those states at this time "to conserve limited federal and state agency resources and taxpayer funds."
NLRB spokeswoman Nancy Cleeland said the agency "doesn't have enough staff to handle four lawsuits at the same time."
Attorneys general in all four states have said they would vigorously defend the changes to their state constitutions against a federal lawsuit. The amendments passed as ballot initiatives with 61 percent approval in Arizona, 86 percent in South Carolina, 79 percent in South Dakota and 60 percent in Utah.
"South Dakota's constitutional amendment is consistent with existing federal law," South Dakota Attorney General Marty Jackley said Monday. "The NLRB's continued threatened federal litigation against the states is unwarranted."
NRLB officials thought they might be able to work out a compromise earlier this year when attorneys general for the four states issued a letter saying the amendments were not trying to supersede federal law. But Jackley said compromise talks broke down over the NLRB's request for a confidentiality agreement. He said such an agreement would "limit our ability to explain to our citizens any course of action in this important matter."
Unions have tried for years to pass federal card check legislation, but the measure has never garnered enough support in Congress.