Conservatives, Don’t Take the NLRB Bait
January 17, 2011 2 Comments
George McGovern ran against Richard Nixon in 1972, and virtually every county in America voted for Nixon. McGovern had been successfully pinned as an out-there liberal. Lyndon Johnson had done exactly the same thing to Barry Goldwater, in reverse, in 1964, and won by a record landslide, only eclipsed by Nixon’s defeat of McGovern. God bless McGovern and Goldwater, the former resolutely liberal, the latter resolutely conservative. And God bless the American people’s steadfast moderation.
McGovern stayed in politics for a while, but ultimately lost his reelection bid in 1980 during what would become known as the “Reagan Revolution.” He tilted to teaching, lecturing, and think tank activity. In 1988, he started a private business, which taught him something every politician should know. He later wrote, “I … wish that during the years I was in public office I had had this firsthand experience about the difficulties business people face every day. That knowledge would have made me a better U.S. senator and a more understanding presidential contender.”
That’s backdrop for last Friday’s announcement by the National Labor Relations Board, threatening to sue Arizona, South Carolina, South Dakota and Utah over state constitutional amendments guaranteeing workers the right to a secret ballot in union elections. Yes, the federal government is threatening to sue Arizona, again. (Is Arizona bizarrely the cauldron of all that divides us?)
But this one, I think, is a ruse. The four target states have adopted constitutional amendments guaranteeing secret ballots in union elections. On its face, that is a salutary thing. Any decision to unionize should be made by secret ballot. The high-profile union drive to promote coercive “card-check” and bypass secret balloting, via the odious and misnamed Employee Free Choice Act, deserves every bit of opposition conservatives, moderates, and some liberals can muster. The union overreaching on this issue is abhorrent. George McGovern, having finally been a small-businessman, agrees, as to both the card check and compulsory arbitration provisions. “I’ve always been a champion of labor unions,” McGovern says — but EFCA is way too much.
But hang on. The latest NLRB ploy is not about enacting the Employee Free Choice Act via regulation — a specter many have rightly deplored, given the President’s appointments to the NLRB. The NLRB is doing something less deplorable here — and probably hoping reaction to it will hand them an easy victory.
The NLRB is simply saying that a state guarantee of a secret ballot conflicts with federal law because federal law permits a private employer to recognize a union, if the employer wishes, without a secret ballot. In other words, the state constitutional amendments at issue arguably take away a hypothetical employer’s right to recognize a union without balloting.
I know, what employer would be that stupid? But federal law enshrines the right. And if the NLRB is correct that the state constitutional amendments forbid the right, then the state constitutional amendments are likely preempted by federal law.
Federal law preempts any state law in conflict with it, including provisions in state constitutions. The United States Constitution, Article VI, clause 2, states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
So there’s no defending state laws or constitutional provisions Contrary to federal law. And federal law does clearly provide a private employer with the right to recognize a union without secret balloting.
It might be argued that the state constitutional provisions at issue aren’t even triggered in the event the employer simply recognizes a union without a secret ballot. But I wouldn’t take that argument to the bank. More likely, the constitutional amendments technically run afoul of federal law, and the NLRB hopes to score quick and easy victories on that basis, and tout those victories with its labor union base, which contributes millions to Democratic party campaigns.
And beating Arizona wouldn’t be bad PR for this administration either.
UPDATE (April 26, 2011): NLRB announces that it will proceed with lawsuits against Arizona and South Dakota. Oddly, the NLRB website linked in my original post has taken down all mention of the threat to sue the four states. But here it was.