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

Source: Meghan Maskery Luecke, Missouri Law Review, Volume 74, Number 4, Fall 2009

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).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. 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. 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. 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.

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.

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