Not taking care of business: state responses to the Employee Free Choice Act, preemption, and the NLRA.

• Author: Luecke, Meghan Maskery
• Position: National Labor Relations Act

1. INTRODUCTION

   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.

2. LEGAL BACKGROUND

   1. Legislation

      In 1935, Congress passed the Wagner Act pursuant to its constitutional authority to regulate commerce. (11) The law provides the current process for union formation and other provisions affecting labor relations between employers engaged in interstate commerce and their employees. (12) Under the current law, known as the NLRA, a union becomes the official employee association for a work site once the NLRB certifies the union. (13) This certification process involves two major steps.

      The first step, known as the card check process, occurs when the union presents a company's board with a petition, along with signed cards, from "a substantial number of employees [who] ... wish to be represented for collective bargaining." (14) The NLRB has promulgated a regulation stating it will normally require cards from at least thirty percent of employees before holding an election. (15) In the second step, the employer may voluntarily recognize the union or call for a secret ballot election to determine whether a majority of employees wants the union to represent them. (16) The union petitioner can also request a secret ballot election. (17)

      The stated purpose of the current NLRA is to "protect the free flow of commerce." (18) Congress outlined two ways to achieve that goal in the statute. First, the NLRA's provisions ensure "the free flow of commerce" through an enactment of collective bargaining rules that regulate the conduct of both employers and labor unions. (19) And second, the provisions ensure free choice for employees in choosing a union to represent them through a set of procedures for union elections that are overseen by the NLRB. (20) For example, Section 7 of the current NLRA lists "the right[s of employees] to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (21)

      The next section of the NLRA provides a list of "unfair labor practices." (22) This section details prohibited conduct and is divided into two lists of prohibitions, one for labor unions and the other for employers. (23) Under the section regarding prohibited conduct for employers, it is an unfair labor practice for an employer to "refuse to bargain" with a union selected by the employees and certified by the NLRB under the election process provided in Section 9 of the act. (24) The election process outlined under Section 9 would be amended under the Employee Free Choice Act (EFCA).25 The EFCA proposal would add a subsection requiring the NLRB to certify a union after a majority of employees signs cards indicating their desire for union representation. (26) The effect of the new provision would be to eliminate the ability to request a secret ballot election if a majority of employees signs the cards. (27) The remaining provisions under the current Section 9 would remain intact even if EFCA wins passage, (28) meaning the process would remain unchanged if less than a majority of employees were to sign the cards.

   2. Case Law

      The current NLRA governs much of the relationship between unions and employers. (29) It does not contain an express preemption provision, (30) and the Supreme Court has not found that Congress intended for the NLRA to preempt all state laws regulating labor relations. (31) Thus, the issue of whether the federal law would preempt state-mandated secret ballot elections likely would be settled by applying the preemption analysis used by federal and state courts in the past to decide jurisdiction over labor relations. (32) Early preemption cases involving the NLRA focused on the conflict between state and federal laws. In two of these cases, (33) the Supreme Court of the United States looked at "Little Wagner Acts"--the title given to state labor relations laws that closely resemble the federal NLRA. (34)

      In the first of these cases, Bethlehem Steel Co. v. New York State Labor Relations Board, the Court considered the constitutionality of New York's Little Wagner Act. (35) The state statute was challenged after New York's labor relations board allowed foremen to unionize. (36) The federal NLRB had held that foremen could not organize under the NLRA, (37) which expressly excludes supervisory employees from unionizing. (38)

      First, the Court noted the lack of congressional direction on the issue of whether the federal law should preempt state law on labor issues already addressed by the NLRA. (39) The Court then considered whether Congress implied federal preemption of state labor laws by looking at whether states have historically regulated labor relations. (40) After determining that states have historically regulated employment matters, the Court noted that Congress created the NLRB, a federal agency, to promulgate regulations governing labor relations. (41) The Court determined that, under such a scheme, "state regulation in the field of the statute is invalid even though that particular phase of the subject has not been taken up by the federal agency." (42) The Court then distinguished previous cases in which it held that states could use their police powers to enact legislation dealing with conduct the federal agency is authorized to regulate when the federal agency has not yet promulgated regulations or has promulgated only a few regulations, despite its vast authority to make rules. (43) Regarding New York's labor relations law, the Court noted that the NLRB had refused to consider petitions by foremen many times in the past, which, in the Court's view, equated to a ruling that foremen could not bargain collectively under the federal law. (44) The NLRB's...