Center for American Progress Action

National Labor Relations Board Maintains Consistency in Preemption

National Labor Relations Board Maintains Consistency in Preemption

Suits Filed Against Arizona and South Dakota Laws Restricting Card Check

The board’s suits against Arizona and South Dakota continue a long precedent of striking down state laws in violation of the National Labor Relations Act, writes David Madland.

National Labor Relations Board Chairman Wilma B. Liebman sits in a conference room at NLRB headquarters in Washington. (AP/J. Scott Applewhite)
National Labor Relations Board Chairman Wilma B. Liebman sits in a conference room at NLRB headquarters in Washington. (AP/J. Scott Applewhite)

On Friday, the National Labor Relations Board, or NLRB, sued the states of Arizona and South Dakota seeking to invalidate those states’ constitutional amendments that prohibit private-sector employees from choosing to unionize through a procedure known as card check. The lawsuit is unsurprising, and it continues a long precedent of striking down state laws preempted by the National Labor Relations Act, or NLRA.

Still, some conservative politicians and corporations are apoplectic about these lawsuits. Rep. Lynn Westmoreland (R-GA) wrote that the suits “[step] over the 10th Amendment and the rights of states to determine their own laws.”

Geoffrey Burr, chair of the Coalition for a Democratic Workplace, which counts the U.S. Chamber of Commerce, Americans for Prosperity, and Freedom Works as members, claims the lawsuits are a “move against the voters and workers of Arizona and South Dakota … [and] simply another example of the Board placing the interests of union bosses above those of employees, businesses and the American public.”

Yet on many other occasions, conservatives—including some of these same parties—have argued that the NLRA preempted other state efforts to regulate labor relations. Not surprisingly, those laws would have made it easier for workers to join unions.

Under the NLRA, workers are allowed to join a union if a majority signs a card stating their support—as long as the employer agrees to this arrangement. The constitutional amendments passed in Arizona and South Dakota, as well as those recently passed in South Carolina and Utah (but not part of the lawsuit in order to conserve the NLRB’s limited resources), would restrict the ability of workers and firms to use the card check method.

The NLRB wrote on its website that Arizona’s and South Dakota’s efforts “conflict with federal law by closing off a well-established path to union representation recognized by the Supreme Court and protected by the National Labor Relations Act.”

Conservatives and corporations, in spite of their reaction to the NLRB’s lawsuits, have a long record of supporting federal preemption of laws related to the National Labor Relations Act. On its website the U.S. Chamber of Commerce states its opposition to state and local governments “attempting to interfere with these rights [spelled out in the National Labor Relations Act] as well as NLRB jurisdiction by enacting conflicting legislation.”

But the chamber’s support for the NLRA seems to be focused on repealing other laws that would help workers join unions.

Several state and federal laws have been struck down in recent years because of NLRA preemption. California and New York passed similar laws that prohibited companies that received state money from spending those state funds to counter workers’ efforts to organize a union. The absence of management pressure would have made unionization easier.

The Chamber of Commerce argued that these laws restricted the rights of companies under the NLRA. It was supportive of efforts to challenge these laws and it was even the main plaintiff in the case against the California law. The chamber also filed an amicus brief supporting an effort to strike down a similar debarment law in Wisconsin. Further, the chamber took the lead in challenging an executive order by President Bill Clinton that would prohibit the federal government from contracting with companies that hired permanent striker replacements.

Federal courts ruled in favor of preemption in all of these cases, stating that the laws were in conflict with the NLRA. The preemption language in the act is very strong. As a primer on employment and labor law puts it: “The NLRA preempts state laws that purport to regulate conduct protected by or prohibited by the NLRA.”

In fact, the importance of the NLRA’s preemption is recognized across party lines. Former Bush NLRB General Counsel Arthur F. Rosenfeld complemented the NLRB on its decision to file suit against Arizona and South Dakota, saying, “I have to applaud the Board’s quick authorization, the quick action in the authorizing the acting general counsel in order to protect the Board’s jurisdiction.”

In sum, using preemption to defend the National Labor Relations Act’s purview is well established, and it has been used to strike down laws that favor management and those that favor labor. The Chamber of Commerce-backed Coalition for a Democratic Workplace explains in its statement in opposition to the NLRB’s lawsuits—without noting the irony—that “if the government is going to pursue a policy of challenging laws based on federal preemption, it should do so consistently.”

A look at the record shows that is exactly what the NLRB is doing.

David Madland is the Director of the American Worker Project at the Center for American Progress Action Fund.

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.


David Madland

Senior Fellow; Senior Adviser, American Worker Project