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.
Unions have sought card check legislation for some time, but that effort went nowhere in 111th Congress, despite both houses being controlled by Democrats long known for pro-union sympathies. With Republicans now controlling the House, card check is likely a non-starter. Critics of the lawsuit contend that this latest effort is yet another attempt by the Obama administration, much like its efforts with the EPA in regulating greenhouse gases, or enacting ruling regarding internet neutrality via the FCC, to bypass Congress when Congress fails to cooperate with its agenda.
Supporters of the lawsuit contend that the Constitution is clear on the issue. Lafe Solomon, attorney for the NLRB, has sent letters to the attorney generals of each state claiming that the supremacy clause of the Constitution, which says that when state and federal laws are at odds, federal law prevails, invalidates the new amendments. Samuel Estreicher, New York University labor law professor, agrees. “Secret-ballot elections are usually the best way to determine employee choice, but they are not the only way permitted by federal law,” he said. “The states have no authority dictating which method employees use in deciding whether to be represented by a union.”
U.S. Constitution article VI, Paragraph 2: ”This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, 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.”
Who will prevail? It is no secret that many Americans have become very disenchanted with unionism, more so public service employee unions than private ones. It is also no secret that Democrats see organized labor–and it expansion–as benefitting their political fortunes. But as the vote totals in the four states which amended their laws in November indicate, a substantial number of Americans view card check as a vehicle of intimidation, with all the attendant coercion that non-secret voting would engender. Unfortunately for them, the 1935 statute clearly provides two methods for organizing unions in the workplace. As a result, it seems virtually certain that the NRLB will prevail, and the state amendments will be invalidated.
On the other hand, their is nothing preventing Congress from re-writing the law, or at least attempting to, assuming a Democrat Senate and a White House veto would stop its realization. Perhaps this is yet another issue which will be one of many that animates the 2012 election. Democrats looking at the percentages of voters in those four states who were in favor of eliminating card check, can hardly be reassured that prevailing in a lawsuit serves their best interests in 2012, their affiliation with organized labor notwithstanding.
Democrats and labor may win the battle, but the “war,” aka the 2012 election, may be a completely different story.
Arnold Ahlert is a contributer to the conservative website JewishWorldReview.com
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