In a letter sent on Friday, the labor board told those states that it would invoke the United States Constitution’s supremacy clause in asserting that the state constitutional amendments conflict with federal laws and are pre-empted by those laws. One federal official said the lawsuits would be filed in the next few days.
The Arizona and South Dakota constitutional amendments were promoted by various conservative groups worried that Congressional Democrats would pass legislation allowing unions to insist on using card check in organizing drives, meaning that an employer would have to recognize a union as soon as a majority of workers signed pro-union cards. Under current law, private sector employers can insist that secret ballots be used when unions are trying to organize.
Unions like using card check because it makes it easier to win unionization campaigns. Organizers can gather signature cards quietly until they get a majority of workers, making it more difficult for an employer to mount an opposition campaign. Congressional Republicans blocked passage of the card-check bill.
In January, the labor board threatened to sue four states, including South Carolina and Utah, which also have constitutional amendments barring card check. But in a letter sent on Friday to the four states’ attorneys generals, N.L.R.B. officials said they were suing just two states to conserve legal resources.
The labor board’s acting general counsel, Lafe Solomon, said the government reserved “the right to initiate a suit against the other two states at the appropriate time.”
N.L.R.B. officials evidently hope that victories in the Arizona and South Dakota cases would serve as precedents to invalidate the South Carolina and Utah prohibitions.
In an interview, Tom Horne, Arizona’s attorney general, criticized the board’s planned suit, saying, “I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot.” He said that while federal pre-emption might apply to laws passed by Congress, it should not apply to the labor board’s decision allowing card check to be used in some unionization campaigns.
South Dakota’s attorney general, Marty J. Jackley, said he respectfully disagreed with the board’s analysis, adding that he did not believe the agency “has the authority under circumstances like this to sue a state.”
Last week, the N.L.R.B. infuriated South Carolina officials when it announced that it was bringing a case against Boeing that seeks to press the company to move an airline production line from a nonunion plant in South Carolina to a unionized facility in Washington State. The labor board said that Boeing had unlawfully moved the production line, originally planned for Washington, to retaliate against unionized employees there for engaging in repeated strikes.
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