Who’s behind Amendment K?
The Out-of State Players:
The Las Vegas consulting firm that failed to get enough signatures to put “secret ballot” on your November ballot is the same out-of-state consultants that put Initiated Measure 9 on South Dakota’s 2008 General Election Ballot. Voters rejected it. Governor Mike Rounds publicly opposed Measure 9.
Silver Bullet, LLC, http://www.silverbulletllc.com/
Former Oklahoma Congressman Ernest Istook, SOS Ballot Chairman, who was accused of trading favors with convicted felon and disgraced lobbyist, Jack Abramoff. He did give the “questionable” $$$ to the Boy Scouts.
The South Dakota Connections:
Joel Dykstra, former candidate for Senate, was a South Dakota “secret ballot” spokesman. http://www.keloland.com/NewsDetail6162.cfm?Id=0,75440
The South Dakota donors who paid for the failed attempt to gather petition signature in South Dakota.
State Senator Dave Knudson, Republican, Sioux Falls, sponsor of SJR 3 – now Amendment K. http://www.sdsos.gov/electionsvoteregistration/electvoterpdfs/2010/2010%20BQ%20Pamphlet&Cover.pdf
What will happen if K passes?
It’s a trap - an expensive federal lawsuit at taxpayer expense: David Owen, President, South Dakota Chamber of Commerce and Industry, proponent of SJR 3 - now Amendment K , says Amendment K “will undoubtedly” be settled by lawsuit in article posted on the Society For Human Resource Management “South Dakota Voters to Decide Secret Union Ballot Initiative” 3/24/10 http://www.shrm.org/LegalIssues/StateandLocalResources/Pages/SouthDakotaVoters.aspx
What will happen in court? It’s a loser of a case for the defendants – the South Dakota Taxpayers.
Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to “occupy the field” in that area of the law. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated.San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).
More preemption: From the Notice of Appeal on May 28, 2010, filed on behalf of the State Federation of Labor AFL-CIO, in the Supreme Court of the State of South Dakota.
A. NLRA Preemption.
The Supremacy Clause in the Constitution of the United States invalidates all state laws that conflict with or interfere with acts of Congress under the doctrine of pre-emption. Rose v. Ark. State Police, 479 U.S. 1, 3, 107 S.Ct. 334, 334-35, 93 L.Ed.2d 183 (1986). The National Labor Relations Act, 29 U.S.C. § 151 et seq. (hereafter the “NLRA”), was enacted by Congress as a comprehensive code to protect and regulate the right of employees to self-organization and to select representatives for collective bargaining. Nash v. Fla. Indus. Comm'n, 389 U.S. 235, 238, 88 S.Ct. 362, 365-66, 19 L.Ed.2d 438 (1967).10 The NLRA does not contain express language preempting state or local laws. However, Supreme Court cases have established that the Act does indeed preempt state laws under certain conditions. First, under Garmon preemption doctrine, "when it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by §7 of the National Labor Relations Act, or constitute an unfair labor practice under §8, due regard for the federal enactment requires that state jurisdiction must yield." San Diego Bldg. Trades Council v. Garmon, 359 US 236, 244 (1959).
Second, under Machinists preemption doctrine, state law may not regulate conduct in the collective bargaining setting "left to be controlled by the free play of economic forces." Lodge 76, Int'l Ass'n of Machinists and Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 US 132, 140 (1976).
As to the instant action, the NLRA preempts Constitutional Amendment K under the Garmon doctrine because § 7 of the Act protects the right of an employee to bargain 10See 29 U.S.C. § 157; N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33, 57 S.Ct. 615, 622, 81 L.Ed. 893 (1937). N.Y. Tel. Co. v. N.Y. State Dep't of Labor, 440 U.S. 519, 528, 99 S.Ct. 1328, 1334-35, 59 L.Ed.2d 553 (1979).
collectively through a chosen representative, including a representative designated by a process other than a secret ballot election. Additionally, the NLRA preempts the Constitutional amendment under the Machinists analysis because limiting the ability of employees or an employer to choose a manner of recognition other than secret ballot election would frustrate effective implementation of the Act's representation process.
(i) Garmon Preemption.
To the extent that the Constitutional amendment requires a secret ballot election for private sector employees to choose their representative, it directly conflicts with the NLRA's process allowing several different methods to determine representation. State legislation purporting to regulate activity arguable protected by § 7 of the NLRA or arguably prohibited by § 8 of the NLRA must yield to the federal law. San Diego Bldg. Trades Council v. Garmon, 359 US at 244 (1959). "When an activity is arguably subject § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." Id. at 245. Federal law preempts state law that threatens interference with the clearly indicated policy of the NLRA. Like the state law preempted in Garmon providing damages for tortuous labor picketing, the Constitutional amendment will interfere with the NLRA's set procedures and policy mechanisms and will expose the State of South Dakota to liability.
The preemption doctrine protects the NLRB's primary jurisdiction because of the agency's labor expertise as well as the policy interest in a uniform exercise of labor law nationwide. See New York Tel. Co. v. New York State Dep't of Labor, 440 U.S. 519, 527-28 (1979) "To allow the exercise of state jurisdiction in certain contexts might create a significant risk of misinterpretation of federal law and the consequent prohibition of
protected conduct." Sears, Roebuck and Co. V. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 199 (1978) ("there is a constitutional objection to state-court interference with conduct actually protected by the Act."). Preemption doctrine is designed to "prevent conflict in its broadest sense with the complex and interrelated federal scheme of law, remedy and administration." Wisconsin Dep't of Indus., Labor and Human Relations v. Gould Inc., 475 U.S. 282, 286 (1986).
The proposed Constitutional amendment directly conflicts with the federal scheme for choosing union representation set forth in the NLRA. The NLRA in § 7 protects the right to a representative of employees' own choosing. 29 U.S.C. § 157 (2007). Section 9(a) of the NLRA requires that an employer bargain with "representatives designated or selected for purposes of collective bargaining." 29 U.S.C. § 157 (2007). While § 9(c) of the NLRA provides for a secret ballot election process to designate or selective the representative, the NLRB permits other suitable methods to ascertain majority status. The options of either an election or another suitable method have existed since 1935. The use of majority authorization card sign up or other method other than secret ballot election has been endorsed by the NLRB, the Supreme Court and Congress. Card check is widely used and permitted by the NLRB as long as a majority of employees sign authorization cards or petitions for the union and the employer agrees to recognize the union based on the majority support.11
11 "It has been the Board's longstanding policy that employees are not limited only to a Board election in the selection of their bargaining representative." MGM Grand Hotel, Inc., 329 NLRB 464, fn 7 (1999) (citing NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).); McLaren Health Care Corp., 333 NLRB 256, 257 (2001) ("a Board-conducted election is not the only route by which a union may acquire the status of a bargaining representative; an employer may lawfully recognize a union based upon a showing of majority status by other means-including authorization cards").
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme Court stated that the NLRA from its inception "recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means" including "by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes."
Additionally, the fact that the federal labor law scheme even makes card check an available option supports preemption. If a party has "a reasonable opportunity either to invoke the Board's jurisdiction himself or else to induce his adversary to do so" the NLRA maintains primary jurisdiction and preempts state law. Sears, Roebuck and Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. at 201 (1978).
(ii) Machinists Preemption
The manner in which employees and employers achieve union representation may be used as a strategic, economic weapon, and therefore, the Constitutional amendment would improperly regulate conduct intended to be left to the free play of economic forces. When state law operates to "curtail or entirely prohibit self-help", it "would frustrate the effective implementation of the Act's processes" and is preempted. See Lodge 76, Int'l Ass'n of Machinists and Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. at 147-48 (1976). The Supreme Court in Machinists held that the NLRA preempts particular economic pressure tactics used by employees and their unions in collective bargaining. The Court ruled that a Wisconsin state law prohibiting employees' concerted refusal to work overtime was preempted by the NLRA. The Court focused its analysis not on primary jurisdiction (as in Garmon), but on the
"crucial inquiry whether Congress intended that the conduct involved be unregulated because left to be controlled by the free play of economic forces." Lodge 76, Int'l Ass'n of Machinists and Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. at 140 (quotations and citations omitted).
The ability of employees to convince an employer to recognize the union without a NLRB election could be construed as a "permissible economic weapon in reserve…actual exercise (of which) on occasion by the parties, is part and parcel of the system" set forth in the NLRA. Id. at 141 (quotations and citations omitted). "Self-help" actions permitted by federal law that form an integral part of employees' "effort to achieve its bargaining goals during negotiations" cannot be frustrated by conflicting state law. Id. at 146. "Allowing its use is a part of the balance struck by Congress between the conflicting interests of the union, the employees, the employer and the community…the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy." Id. In other words, a state cannot regulate an area of "labor combat" permitted by the NLRA. Id. at 146-47.
By preventing employees from using a procedure specifically allowed and sanctioned by the NLRA, the NLRB and the courts, the Constitutional amendment would eliminate an economic weapon expressly allowed by federal law. That the employer currently makes the choice to voluntarily recognize a union or force a NLRB election is of no consequence. The weapons of economic self help are equally available to the employer as the employee and are also protected against state law intrusion. Id. at 147. "The crucial inquiry is the same: whether the exercise of plenary state authority to curtail
or entirely prohibit self-help would frustrate effective implementation of the Act's processes." Id. at 147-48. Employers sometimes have reason to choose voluntary recognition or card-check recognition over a secret ballot election. Laws prohibiting the employer's choice would frustrate the Act's processes.
(iii) Exceptions to NLRA Preemption Doctrine Do Not Apply
The proponents of the Constitutional amendment will likely argue that the state of South Dakota has a strong interest in protecting individual liberties, secret ballot democracy and the freedom of association of its citizens. While the U.S. Supreme Court has carved out limited exceptions to the NLRA preemption doctrine, none of them apply to the Constitutional amendment. Most of these exceptions arise out of the traditional police powers afforded to states and localities. For example, a state can prohibit ex-felons from serving as union officials as the NLRA does not preempt every restriction on the "complete freedom of a group of employees to designate representatives of their own choosing." De Veau v. Braisted, 363 U.S. 144, 152 (1960). The state law evidenced an effort to rid the area of criminal elements, rather than conflict with established federal labor policy. Id. at 154.12
The Supreme Court in Garmon recognized that some conduct "touched interests so deeply rooted in local feeling and responsibility that, in that absence of compelling congressional direction, we could not infer that Congress has deprived the States of power to act." San Diego Bldg. Trades Council v. Garmon, 359 US at 244 (1959). A
12 See also Brown v. Hotel and Rest. Employees and Bartenders Int'l. Union Local 54, 468 U.S. 491, 509 (1984) ("this conclusion does not implicate the employees' express section 7 right to select a particular labor union as their collective bargaining representative, but only their subsidiary right to select the officials of that union organization.").
state law so immersed in local responsibility, to avoid preemption, can involve "the maintenance of domestic peace: or be "merely [a] peripheral concern" of the federal labor laws. Linn v. United Plant Guard Workers of America, 383 U.S. 53, 61 (1966) (NLRA has no relevance to, provides no similar remedy to, and does not preempt state laws redressing malicious libel.). Matters traditionally subject to state regulation are permissible so long as they do not "threaten undue interference with the regulatory scheme." "The pertinent inquiry is whether two potentially conflicting statutes were brought to bear on precisely the same conduct." Sears, Roebuck and Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. at 193-94, 205 (1978) (trespassory nature of picketing not preempted). A state lay of "general applicability" deeply rooted in local realm also may not be preempted. See, e.g., New York Tel. Co. v. New York State Dep't. of Labor, 440 U.S. at 450 (1979) (state law requiring payment of unemployment benefits to strikers upheld).
The Constitutional amendment addresses the procedure for choosing employee representatives, a subject not within the traditional police powers of the state and directly in conflict with the procedures contemplated by the NLRA. Even a state law with a clear, local purpose is preempted when the intent of Congress to leave the matter to the federal law is evident. See New York Tel. Co. v. New York State Dep't. of Labor, 440 U.S. at 540 (1979). Unlike the types of regulatory activity exempted from preemption doctrine, the Constitutional amendment implicates employees § 7 rights and interferes with the established regulatory scheme.13
13 The other exceptions to preemption doctrine do not apply to the Joint Resolution. States may regulate activity that injures innocent, third parties, such as replacement employees. See Belknap, Inc. v. Hale, 463 U.S. 491 (1983). Similarly, state laws not
As the foregoing illustrates, the proposed measure will fall under the preemption doctrine, and based upon this clear violation of federal law, the state will ultimately be held liable for its active role in violating the NLRA. Yet, the Attorney General made no reference to the problems associated with federal preemption. In fact, he made no mention whatsoever of any likelihood of exposure to liability by the State of South Dakota.
What’s the point of all this? Is there a point to all this?
What’s the “possible change to federal law” that Amendment K would stop? The Employee Free Choice Act – and Congress will not be voting on it this year – or next year. It says that if 30% of workers ask for an election to organize a union, an election will be held – by secret ballot. If 50% plus one worker sign cards and ask to form a union, that majority “sign-up” would allow the official certification required to form and recognize the union.
Union workers do earn 10% more than workers in non-union companies. Who supports making it easier for workers to bargain for better wages, benefits, and working condition? According to Hart Research Associates, the American people do.
South Dakota average wages are the lowest in the nation. Yes, the LOWEST.
So, Amendment K is a way to undercut workers attempts to organize and bargain for better wages, safer working conditions, and benefits like health insurance. So, is “secret ballot” anti-union? Bloomberg Businessweek Magazine says it is. http://www.businessweek.com/ap/financialnews/D9HHUEC80.htm
Your real Secret Ballot is already protected under South Dakota law.
If you’re a South Dakota voter – Article 7 – Section 3 of our state constitution already guarantees your right to a secret ballot.
§ 3. Elections. The Legislature shall by law define residence for voting purposes, insure secrecy in voting and provide for the registration of voters, absentee voting, the administration of elections, the nomination of candidates and the voting rights of those serving in the armed forces.
History: 1889 Const., art. VII, §§ 3, 6, 7; amendment proposed by SL 1974, ch 2, approved Nov. 5, 1974
|No! on Amendment K, PO Box 1445, Sioux Falls, SD, 57101 Steve Sandven, Treasurer