Academic journal article Missouri Law Review

Not Taking Care of Business: State Responses to the Employee Free Choice Act, Preemption, and the NLRA

Academic journal article Missouri Law Review

Not Taking Care of Business: State Responses to the Employee Free Choice Act, Preemption, and the NLRA

Article excerpt


In 2009, Senator Ted Kennedy (D-MA) and Representative George Miller (D-CA) introduced legislation in their respective chambers that would significantly change how workers form unions under the National Labor Relations Act (NLRA). (1) Under the current process, at least thirty percent of a company's employees must first sign cards that accompany a petition requesting union representation, after which the employees or the employer can ask the National Labor Relations Board (NLRB) to hold a secret ballot election to poll employees on the issue of whether a majority wants to be represented by a union. (2) If passed, the Employee Free Choice Act would generally leave the current process intact but would eliminate the ability of both the employer and any employee to ask the board to hold a secret ballot election if more than half the workers sign the cards. (3) To ensure employers and employees do not lose the right to call for a secret ballot election, even when a majority signs cards in support of union representation, one group has launched a national campaign to encourage state officials to move to amend their constitutions to require an election by secret ballot. (4) State-mandated secret ballot elections, if allowed, would defeat the purpose of the federal legislation to allow unionization without such elections. In Missouri, Secretary of State Robin Carnahan approved an initiative petition to amend the state constitution to require secret ballot elections in union organizing. (5)

Two issues arise from this potential battle between federal and state law over the formation of unions. The first question is, if both the Employee Free Choice Act and a state constitutional amendment are approved, will the federal NLRA preempt a state constitution's secret ballot requirement? The other issue is whether a state constitutional amendment would govern union organizing in Missouri if the Employee Free Choice Act does not succeed and the state amendment is passed.

Supporters of the secret ballot proposal likely will argue that the state can require secret ballot elections as part of its police powers because the NLRA does not contain an express preemption provision. The long legal history regarding preemption and the NLRA, however, suggests that states cannot create regulations governing how employees choose a union to represent them, (6) especially when the state and federal laws attempt to govern the same employers and employees on the same issues. (7) For instance, a state must show more than just the existence of a local interest in order to avoid preemption under the analysis the Supreme Court of the United States has applied when it has considered the effect of state laws that conflict with the NLRA. (8) The state also must show that the regulation does not attempt to regulate conduct that is actually "protected or prohibited" under the law. Finally, the state's interest in regulating the conduct at issue must be greater than the regulation's potential for interference with Congress's intent for a uniform labor policy to be implemented by the NLRB. (9)

If both the federal Employee Free Choice Act and the state constitutional amendment proposed in Missouri win approval, the federal act's provision allowing union formation without a secret ballot election likely would preempt the state requirement for a secret ballot election. Preemption of the state law would result because an actual conflict would exist. An employer could not try to enforce the state law without violating the federal law. For example, an employer who demands a secret ballot election pursuant to the newly ratified state constitutional amendment likely would be committing "an unfair labor practice" if the employer were to refuse to recognize a union certified pursuant to the federal law, as amended by the Employee Free Choice Act. (10)

Likewise, if only the state constitutional amendment passes, the current NLRA, which allows, but does not mandate, secret ballot elections, likely would preempt any state law that would require such elections for many of the same reasons federal preemption would arise if the Employee Free Choice Act were enacted as well. …

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