Four AGs ready to defend new state laws

By Jessica M. Karmasek | Jan 28, 2011


COLUMBIA, S.C. (Legal Newsline) - South Carolina Attorney General Alan Wilson and three colleagues on Thursday replied to a threat of lawsuits from the U.S. National Labor Relations Board, saying they are prepared to defend recent amendments to their constitutions.

The recent amendments were made, the states say, to ensure workers the right to a secret ballot when determining representation.

In South Carolina, the measure was approved by 86.2 percent of the voters in November general election. Arizona, South Dakota and Utah passed similar constitutional amendments.

Now, the NLRB is seeking to invalidate those amendments.

"South Carolina voters spoke overwhelmingly to ensure that their ballot votes are kept between them and their Maker -- not to be influenced by union bosses. If that right is challenged, our office is prepared to defend it in court," Wilson said in a statement.

The NLRB, according to a Jan. 14 statement, says the amendments conflict with federal labor law and therefore are preempted by the Supremacy Clause of the U.S. Constitution.

The board points to the 1935 National Labor Relations Act, under which private-sector employees have two ways to choose a union: They may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means.

The four states' amendments, the NLRB says, prohibit the second method and therefore interfere with the exercise of a well-established federally-protected right.

In the multistate response, the attorneys general wrote that they reject the NLRB's "demand to stipulate to the unconstitutionality" of the amendments.

"These state laws protect long existing federal rights, and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision," they said.

"As Attorneys General, we will defend these provisions of our State Constitutions if they are challenged, but we also firmly believe that lawsuits by the federal government to attack these provisions would be misguided. Such lawsuits not only would cost the taxpayers substantially, but would seek to undermine individual rights that the NLRA and our state and federal Constitutions protect."

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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