NLRB prepared to sue to protect key provision of NLRA

NYHTC — February 01, 2011

In a January 14, 2011, press release, the National Labor Relations Board announced it is prepared to bring suit to invalidate amendments in four state constitutions that abrogate a key portion of the National Labor Relations Act. The four states are Arizona, South Carolina, South Dakota, and Utah. The amendments apply to workers in the private sector, and while somewhat different in form, they are basically alike in substance. The Board has concluded these amendments restrict the rights available to workers and employers under Section 7 of the NLRA, and are thus violative of the Supremacy Clause of the United States Constitution and cannot legally be applied or enforced.

Ever since the NLRA's enactment in 1935, Section 7 has defined the means by which workers can win union representation. There are two. One is certification of the union after it has demonstrated the requisite degree of support in a secret ballot election conducted by the NLRB. The other is voluntary recognition by the employer subsequent to the union's demonstration by reliable evidence that it has the support of a majority of the workers.

Each of the union-hostile state constitutional amendments takes away from workers a critical right federal labor law grants them, specifically, their right under Section 7 of the NLRA to designate by means other than a Board-conducted election that they want to be represented by a union and have chosen the union they want as their representative. In the fact sheet the Board issued with its press release, it further noted that the amendments also restrict the rights of employers, as it wipes out their right under federal labor law to recognize the union voluntarily after a sufficiently reliable showing of support for the union by the workers.

NYHTC members often work side-by-side with NYHTC organizers to assist non-union workers in organizing their hotels and becoming members of our union. They know from first-hand experience that Board-conducted elections are not the only fair and legally sanctioned means of winning union representation. They also know that employers bent on preventing their workers from unionizing can drag out the Board-conducted proceedings for months and even years, during which time they wage war against their employees by engaging in sophisticated anti-union campaigns designed to intimidate union supporters and crush their fight to win union representation.

But, whether or not she or he has participated in a union organizing campaign, every NYHTC member needs to recognize these four state amendments for exactly what they are. What they are not are vehicles of fairness enacted to protect the rights of workers. To the contrary, they are part of a brutal and concerted attack being mounted across the country by anti-union politicians and corporations eager to weaken and destroy both public and private sector unions..