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.