We’ve been covering the NLRB’s attempts to challenge constitutional amendments guaranteeing the right to a secret ballot in union elections passed by voters in Arizona, South Carolina, South Dakota, and Utah. In February, NLRB Acting General Counsel Lafe Solomon stated that he and his staff would engage in discussions with the Attorneys General for the four states in an effort to resolve the matter without litigation.

Those settlement discussions have proved unsuccessful, prompting Acting GC Solomon to advise the Attorneys General that he has directed his staff to file lawsuits in Arizona and South Dakota seeking to invalidate the amendments in those states. According to a letter sent by Solomon, he is pursuing litigation against these states first because, in his view, the amendments “contain very similar language” and therefore it would be more efficient to bring suits against Arizona and South Dakota at the same time. Click here to read AGC Solomon’s letter.

We will continue to monitor and report on this issue.

Update: On Friday, May 6, the NLRB filed a lawsuit against the state of Arizona seeking to invalidate the state’s constitution amendment entitled “Right to secret ballot; employee representation.” As we’ve previously reported, NLRB Acting General Counsel Lafe Solomon has taken the position that the constitutional amendment passed in Arizona (as well as similar amendments in South Carolina, South Dakota, and Utah) are preempted by the National Labor Relations Act. This lawsuit comes at a time when the Board is facing increased scrutiny from Congress over this litigation and other recent enforcement actions. We will continue to monitor and report on this issue.

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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.