In November, we reported that four states passed constitutional amendments guaranteeing the right to a secret ballot in union elections. On January 14, 2011, the NLRB ‘s Acting General Counsel, Lafe Solomon (who was recently nominated by President Obama to serve as the Board’s General Counsel), sent letters to the Attorneys General of these four states (Arizona, South Carolina, South Dakota, and Utah), advising them that it is the NLRB’s position that the voter-approved measures conflicted with the National Labor Relations Act and were therefore preempted. The NLRB has asked the states to respond within two weeks, and stated that it intends to file suit in federal court to invalidate the measures should the states not voluntary stipulate that the amendments are unconstitutional.

Click here to read an NLRB fact sheet about the issue and here to read the Board’s letters to the states. We will continue to monitor and report on this issue as it unfolds.

Update: On January 27, 2011, the Attorneys General for Arizona, South Carolina, South Dakota, and Utah signed a letter promising to defend the amendments to their state constitutions.  Click here to read the letter.

Update: On February 2, 2011, NLRB Acting General Counsel Lafe Solomon responded to the letter sent by the Attorneys General.  Acting GC Solomon wrote that their letter “may provide a basis upon which this matter can be resolved without the necessity of costly litigation.”  The Acting General Counsel has directed his staff to explore the issue further with the states.  Click here to read the letter.

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.